Masetlha v President
Masetlha v President | |
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procedural fairness. | |
Decision by | Moseneke DCJ (Langa CJ, Nkabinde J, O’ Regan J, Skweyiya J, van der Westhuizen J and Navsa AJ concurring) |
Concur/dissent | Sachs J |
Dissent | Ngcobo J (Madala J concurring) |
Keywords | |
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Masetlha v President of the Republic of South Africa and Another is an important decision in the
Background and prior action
Billy Masetlha, the director-general of the National Intelligence Agency, was suspended from his office in October 2005 pending the outcome of a disciplinary probe into claims of misconduct.[1] He remained on suspension until March 2006, when President Thabo Mbeki fired him, citing a breakdown of trust in their relationship.[2] His difficulties at the National Intelligence Agency were widely believed to be related to an ongoing factional political battle between Mbeki and his former deputy, Jacob Zuma.[1][2]
In the interim between his suspension and dismissal, Masetlha approached the
The two applications were conjoined and heard in the
Majority judgment
In a judgment written by Deputy Chief Justice Dikgang Moseneke, the majority refused Masetlha's appeal but ordered the President to pay him all remuneration and benefits that would have been due to him had he completed his three-year term in office.
The substantive contribution of the judgment was its discussion of the President's power to appoint and dismiss heads of the National Intelligence Agency. The majority held that although national legislation – in this case the Public Service Act, 1994 and Intelligence Services Act, 2002 – regulates the terms and conditions of employment of presidential appointees, the President's powers of appointment and dismissal arise from the
The majority held that the President's "special power" of appointment and dismissal is "
The majority also agreed with the High Court that the suspension dispute was rendered moot by the finding that the termination was lawful.
Minority judgment
Justice Albie Sachs wrote a separate judgment in which he concurred with the majority's order and agreed that Masetlha's termination was lawful, but argued that Masetlha was entitled to fair labour practice (and financial recompense) as a matter of constitutional obligation.
Justice Sandile Ngcobo dissented from the majority, holding that the rule of law required that the President act fairly and that fairness in turn required the President to consult with Masetlha before deciding to terminate his appointment. In that respect, the President had acted in breach of the Constitution.
Significance
Masetlha is sometimes viewed as unusually permissive in the narrow standards it applies to the review of exercises of public power.[5] Clive Plasket, for example, was highly critical of the majority opinion insofar as it severed a presumed connection between procedural fairness and the rule of law; in Plasket's view, the rule of law entails procedural fairness and, contra Masetlha, executive decision-makers are required to follow fair procedures.[6]
In 2010, the court handed down In other words, according to Law Society, procedural fairness (at issue in Masetlha) must be distinguished from procedural rationality (at issue in Albutt). The latter, but not the former, is entailed by the principle of legality and is a requirement for the lawful exercise of a public power.[10]
References
- ^ a b "Masetlha suspension has led to 'great confusion'". The Mail & Guardian. 30 November 2005. Retrieved 18 January 2024.
- ^ a b "NIA boss Masetlha fired". News24. 22 March 2006. Retrieved 18 January 2024.
- ^ "Former spy boss fails to get job back". The Mail & Guardian. 19 December 2006. Retrieved 18 January 2024.
- ^ "Now Masetlha goes to Constitution Hill". The Mail & Guardian. 8 March 2007. Retrieved 18 January 2024.
- ISSN 1727-3781.
- ^ a b Plasket, Clive (2020). "Procedural fairness, executive decision-making and the rule of law". South African Law Journal. 137 (4): 698–712.
- ^ Albutt v Centre for the Study of Violence and Reconciliation and Others (CCT 54/09) [2010] ZACC 4; 2010 (3) SA 293 (CC) ; 2010 (2) SACR 101 (CC) ; 2010 (5) BCLR 391 (CC) (23 February 2010).
- ISSN 1556-5068.
- ^ Law Society of South Africa and Others v President of the Republic of South Africa and Others (CCT67/18) [2018] ZACC 51; 2019 (3) BCLR 329 (CC); 2019 (3) SA 30 (CC) (11 December 2018).
- ISSN 2709-555X.