Masetlha v President of the Republic of South Africa and Another (CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007)

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[2007] ZACC 20
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Masetlha v President of the Republic of South Africa and Another (CCT 01/07) [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (3 October 2007)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 01/07
[2007] ZACC 20
BILLY LESEDI MASETLHA Applicant
versus
THE
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA First Respondent
MANALA ELIAS MANZINI
Second Respondent
Heard
on : 10 May 2007
Decided
on : 3 October 2007
JUDGMENT
MOSENEKE
DCJ:
Introduction
This
case raises intricate questions on the constitutional validity of
two decisions of the President of the Republic. He first
suspended
and later terminated Mr Masetlha’s employment as head and
Director-General of the National Intelligence Agency (the
Agency).
The President did so by unilaterally amending his term of office so
that it expired within two days of the notice and
just over 21
months earlier than the original term. The termination of
employment was accompanied by an offer to pay Mr Masetlha
his full
monthly salary, allowances and benefits for the unexpired period
and other moneys that may be due to an incumbent at
the expiry of a
term of office.
Mr
Masetlha has impugned the decisions as constitutionally
impermissible. He has declined the financial pay-out and presses

on with the claim to be re-instated to his post.
These
issues reach us by way of an application for leave to appeal
directly to this Court against the decision of Du Plessis J
sitting
in the Pretoria High Court. That Court dismissed two review
applications brought by Mr Masetlha against the President
on the
grounds that his dismissal from employment constituted lawful
executive action and that the dispute over the suspension
had been
rendered moot by the dismissal.
In
this Court, Mr Masetlha seeks a declarator that the President has
no power to suspend him from his post or to alter unilaterally
his
terms of employment. In the alternative, he asks for an order
setting aside the two decisions as irregular. It must be
said that
Mr Masetlha does not concede that the decision of the President to
change the terms of his appointment in effect amounts
to his
dismissal as head of the Agency. Nonetheless, at its core, his
claim is for specific performance. It is a claim to be
re-instated
as Director-General and head of the Agency.
Mr
Masetlha asks, in the alternative, that, should this Court not find
in his favour on the disputes that are not capable of resolution
on
motion papers, the factual averments underpinning the disputes
should be referred to oral evidence. Three of the four grounds
relate to the suspension decision and one to the decision to alter
his term of office or to dismiss him. All the grounds are
directed
at the state of mind of the President when he made the impugned
decisions and in particular: (a) whether he or the Minister
for
Intelligence Services (Minister) made the decision to suspend; (b)
if the President did, whether in so doing he properly
applied his
mind; and (c) whether both decisions were actuated, not by a lawful
reason but by an ulterior purpose.
The
President is the first respondent and opposes the relief the
applicant contends for. Mr Manzini has been joined as the second
respondent. This follows from his subsequent appointment by the
President as the acting Director-General of the Agency. He
abides
the decision of this Court.
The
facts
Mr
Masetlha became Director-General and head of the Agency on 14
December 2004 through a presidential appointment. The letter
of
appointment informs that the President has appointed him to the
post in terms of the provisions of section 3(3)(a) of the
Intelligence Services Act
1
(ISA) read with section 3B(1)(a) of the Public Service Act
2
(PSA) for a period of three years.
I
deal with these legislative provisions later.
3
Let it suffice for now to say that ISA is the legislation that
regulates the establishment, administration, organisation and
control of three intelligence agencies, one of which is the Agency.
Section 3(3)(a) of ISA provides that “[t]he President
must
appoint a Director-General for each of the Intelligence Services.”
On the other hand, section 3B of the PSA regulates,
amongst other
matters in the public service, the “[h]andling of appointment and
other career incidents of heads of department”.
The head of the
Agency is a head of department under section 3B(1)(a) of the PSA.
On
31 August 2005 the so-called “Macozoma affair” broke into the
public domain. Mr Macozoma is a businessman. At issue were
the
circumstances under which he came to be placed under surveillance
by agents of the Agency. It is common cause that the surveillance
was a clumsy blunder by field operatives of the Agency. The
applicant insists that, as head of the Agency, he had not
authorised
and was not aware of the surveillance until the field
operatives were exposed and Mr Macozoma had lodged a complaint with
the
Minister. The complaint reached the Minister on the 5
September 2005. The Minister had not been informed before then
that Mr
Macozoma was under surveillance.
The
Minister requested Mr Masetlha to account formally on the
surveillance operation. Mr Masetlha reported in writing that the
surveillance did occur but that it was done without his knowledge
and in error, attributable to Mr Njenje, the deputy
Director-General
of the Agency, and certain field operatives under
Mr Njenje’s command. The Minister proclaimed himself
dissatisfied with explanations
given to him by Mr Masetlha and
instructed the Inspector-General of Intelligence
(Inspector-General)
4
to investigate the circumstances that gave rise to the
surveillance.
On
17 October 2005, the Inspector-General prepared a written report in
which he informed the Minister that the surveillance of
Mr Macozoma
was unauthorised and unlawful and that it had not been undertaken
for the reasons given by the Agency operatives
but for another
purpose. The report notes that Mr Masetlha had deliberately sought
to mislead the Inspector-General’s investigation
team and the
Minister in this regard. In addition, the Inspector-General
recommended that disciplinary steps be taken against
the applicant
for failing to exercise the required degree of management and
oversight on the surveillance operation. On the
same day, the
Minister convened a meeting attended by the Inspector-General and
the applicant. At the meeting, the Minister
read out the outcome
of the investigation by and recommendations of the
Inspector-General and he advised that he had made certain
recommendations to the President for his consideration.
For
the sake of completeness, I record that after receiving the report
of the Inspector-General, the Minister suspended and thereafter
dismissed Mr Njenje and another senior member of the Agency, Mr
Mhlanga, for their reported role in the “Macozoma affair”.

Following his suspension, Mr Njenje threatened to institute legal
proceedings.
Within
two days of the disclosure of the Inspector-General’s report and
meeting with the Minister, on 19 October 2005, the applicant
was
summoned to a meeting with the President and the Director-General
within the Presidency, Reverend Chikane. At that meeting,
the
President urged the applicant to persuade Mr Njenje to stall his
intended court case until the President had met with him.
Mr
Masetlha, in turn, raised his concerns regarding the suspension of
two of his subordinates. A further meeting, which would
include
the Minister and the Inspector-General, was arranged for the
following day at the official residence of the President.
Mr
Masetlha explains that he left the meeting of 19 October 2005 with
the distinct impression that the President wanted to reach
an
amicable arrangement with Mr Njenje and Mr Mhlanga. According to
him, the President appeared to understand the concerns raised
that
the investigation by the Inspector-General had been flawed.
The
following day, on 20 October 2005, Mr Masetlha attended the planned
follow-up meeting at the official residence of the President.
Also
present at this meeting were the Minister and the
Inspector-General. The President said that it was no longer
necessary
to proceed with matters raised the previous day. He
urged the applicant to listen to the Minister, who had something to
say.
The Minister read out a letter dated 20 October 2005 and
addressed to the applicant. It bore the signature of the Minister

and informed Mr Masetlha that he was suspended from his position as
the Director-General of the Agency. At no stage during the
meeting
did the Minister or the President suggest that the decision to
suspend Mr Masetlha had been taken by the President.
Three
weeks later, on 12 November 2005, the applicant launched an urgent
application in the High Court against the Minister and
the
President, seeking to review and set aside the suspension as
unlawful.
5
However, three days later, on 15 November 2005, the President
recorded, as his own decision, the suspension of the applicant
with
effect from 20 October 2005. This he did by way of a Presidential
Minute. The Constitution requires that a decision by
the
President, if it is to have legal consequences, must be in
writing.
6
The Presidential Minute was therefore an indispensable step to
give legal significance to the suspension as a decision of the
President.
The
applicant, however, does not accept that it is the President who
made the suspension decision. He says that the Presidential
Minute
of 15 November 2005, which purported to record the decision of the
President taken 35 days earlier, on 20 October 2005,
is a belated
effort by the President to legalise the Minister’s unauthorised
suspension decision in order to save him political
embarrassment.
On
10 March 2006, the applicant initiated a fresh application directed
at setting aside the suspension at the President’s instance.
The
founding papers carried attacks on the integrity of the President.
He also accused the President of lying. On 20 March
2006 and
before filing an answering affidavit to the second suspension
application, the President amended the applicant’s term
of office
so that it expired on 22 March 2006. This meant that the term of
office was to expire within two days of the notice
and 21 months
and nine days earlier than the original term.
In
making the decision, the President asserted that the relationship
of trust between him, as head of state and of the national
executive, and Mr Masetlha, as head of the Agency, had
disintegrated irreparably. The President said that the Minister of

Public Service and Administration (Minister Fraser-Moleketi) would
communicate with the applicant regarding benefits that would
be due
to him and conditions attached to the expiry of his term of office.
The letter also made the point that the applicant
would be
remunerated in terms of section 37(2)(d) of the PSA
7
for the remainder of his term of office before its amendment. The
section simply provides for the granting of “any special
benefit”
to a head of department before or at the expiry of a term of office
or any extended term or at a time of retirement
or discharge from
the public office.
In
a letter dated 22 March 2006, Minister Fraser-Moleketi informed the
applicant that he would be paid his full monthly remuneration
for
the remaining 21 months and nine days as well as specified benefits
due at the expiry of the term of office. The financial
tender also
contained specified conditions related to the expiry of his term of
office.
Consistent
with his stance that the President had not lawfully terminated or
amended his term of office, Mr Masetlha declined
the cumulative
salary, allowances, benefits and conditions tendered by Minister
Fraser-Moleketi. Although he did not dispute
the appropriateness
of the quantum of the offer, he repaid to the government the amount
that Minister Fraser-Moleketi had caused
to be deposited into his
banking account.
On
27 March 2005, the applicant initiated another application in which
he sought a declaratory order that the President had no
power to
amend his term of office unilaterally and that he remains the head
of the Agency. In the alternative, the applicant
asked for an
order re-instating him as Director-General of the Agency. The
suspension and the amendment applications were consolidated
and
heard together.
In
the High Court
The
High Court dismissed both review applications. It found that
section 3(3)(a) of ISA, the legislative provision which provides
for the appointment of the head of intelligence services, simply
echoes section 209(2) of the Constitution, which is the original
source of the power to appoint the head of the Agency and that,
although the power to appoint is provided for in legislation,
it
remained located in the Constitution itself. It is perhaps
convenient to recite now the provision of section 209(2) of the
Constitution:
“
The President as head of the
national executive must appoint a woman or a man as head of each
intelligence service established in
terms of subsection (1), and
must either assume political responsibility for the control and
direction of any of those services,
or designate a member of Cabinet
to assume that responsibility.”
The
High Court considered the crucial inquiry to be whether the
dismissal of the applicant is an exercise of executive power,
particularly because the Constitution and applicable legislative
provisions are silent on the dismissal of a head of an intelligence
service. The Court found that the power to appoint includes the
power to dismiss. The power to dismiss is implicit in section
209(2) of the Constitution and is an executive power in terms of
section 85(2)(e) of the Constitution. The Court reasoned that
the
authority to dismiss is therefore not susceptible to judicial
review under the provisions of the Promotion of Administrative
Justice Act (PAJA).
8
However, it observed, this did not mean that the President’s
decision is beyond the reach of judicial review on any basis.
The
decision of the President to dismiss must conform to the principle
of legality. Therefore, the power to dismiss may not
be exercised
in bad faith, arbitrarily or irrationally.
On
the facts, the Court found that, in order for the President to
fulfil his role as head of the national executive, he must

subjectively trust the head of a national intelligence service.
Therefore the irreparable break-down of the relationship of trust
between the President and the head of the Agency constituted a
lawful and rational basis for the dismissal. Having concluded
that
the dismissal was constitutionally justifiable, the Court found
that the disputes on the suspension decision had become
academic
and, on that basis, dismissed the application challenging the
validity of the suspension.
The
issues
There
are five main issues that we are called upon to decide. First,
whether leave to appeal should be granted. The second issue
is
whether the presidential decision to amend the applicant’s term
of office or to dismiss him is constitutionally permissible.
The
third issue raises the validity of the decision to suspend the
applicant from his post. The fourth issue relates to the
appropriate remedy, if any. Lastly, there is the question whether
any aspects of this case should, at the request of the applicant,
be referred to oral evidence.
The
High Court found that if the appeal against the amendment or
dismissal decision were to fail, the suspension decision would
become moot. I think that this is correct. It is plain that if an
order for the re-instatement of the applicant is not granted,
the
determination of the suspension dispute would have no practical
value. I can find nothing that would, in that event, impel
us to
decide the validity of the suspension decision. We have not been
shown nor am I aware of any public interest or any factor
in the
interests of justice that would nonetheless require us to
adjudicate the decision to suspend the applicant from his post
when
the resultant court order will have no practical value or effect as
far as the parties are concerned.
9
In addition, the issues are essentially fact-dependant and their
determination would have little, if any, precedential value.
For
that reason I am constrained to decide first the issues related to
the amendment or dismissal decision. Before I do so,
I have to
consider whether leave to appeal against the decision of the High
Court should be granted.
Should
leave to appeal be granted?
It
is by now trite that whether leave to appeal should be granted
involves a determination of whether the issues raised are

constitutional matters and whether it is in the interests of
justice to adjudicate upon the dispute raised. It was contended

somewhat half-heartedly on behalf of the President that leave to
appeal should be refused because the application is, in essence,
a
claim for re-instatement, which does not raise any constitutional
matter of broader significance and does not seek to test
the
constitutional validity of any legislative provision. There is no
merit in this submission.
We
are here confronted with an enquiry into the constitutional and
legislative source and reach of the power of the President
to
appoint or dismiss a state functionary, in this case being the head
of the Agency. The enquiry will compel us to probe whether
the
power to amend a term of employment or to dismiss is located within
section 209(2) of the Constitution, read with section
3(3)(a) of
ISA and section 12(2) of the PSA or within all of these provisions
read together, and whether the provisions are capable
of being
construed harmoniously. Clearly, the task at hand calls for a
construction of the constitutional provisions and legislation
that
give effect to them.
10
Whatever the origin or contours of the public power in issue, we
are also called upon to decide whether the authority is executive
power or administrative action reviewable under PAJA. It seems to
me beyond contestation that important constitutional issues
fall to
be resolved in this application.
On
whether it is in the interests of justice to hear this matter and
in particular whether the applicant should be permitted to
appeal
directly to this Court, it must first be said that his term of
office was due to expire on 31 December 2007. Thus, there
is
urgency and merit in having the suspension and dismissal disputes
determined before that date. If the applicant were to appeal
to
the full bench of the provincial division or to the Supreme Court
of Appeal, a possible further appeal to this Court would
be
frustrated because, on expiry of his term of office, his claim for
re-instatement would become academic well before the appeal
found
its way to this Court.
As
I have intimated earlier, the constitutional matters that arise do
not involve the development of the common law but rather
turn on
the direct application of the Constitution. In these particular
circumstances, it cannot be said that the benefit that
may be
derived from a judgment by the Supreme Court of Appeal outweighs
the disadvantage of rendering any further appeal to this
Court
moot. I am of the clear view that it is in the interests of
justice that leave to appeal directly to this Court should
be
granted.
Constitutional and legislative setting
The
operative constitutional and legislative scheme looms large in the
resolution of this matter. It is thus expedient to render
a brief
account of its main features before deciding each of the issues I
have to confront.
A
collective pursuit of national security is integral to the primary
constitutional object of establishing a constitutional state
based
on democratic values, social justice and fundamental human rights.
Chapter 11 of the Constitution recognises the importance
of
national security and to that end contains principles and other
provisions that govern national security in the Republic.
The
first of these principles is cast in evocative language and bears
repetition:
“
National security must
reflect the resolve of South Africans, as individuals and as a
nation, to live as equals, to live in peace
and harmony, to be free
from fear and want and to seek a better life.”
11
The
security services of the Republic consist of a single defence
force; a single police service and any intelligence services
established in terms of the Constitution and must be structured and
regulated by national legislation.
12
Predictably, one of the important principles prescribed is that
national security must be pursued in compliance with the law
13
and security services must act and teach and require their members
to act in accordance with the Constitution and the law.
14
Besides the rule of law imperative, this constitutional injunction
is also inspired by and deeply rooted in a repudiation of
our past
in which security forces were, for the most part, law unto
themselves; they terrorised opponents of the government of
the day
with impunity and often in flagrant disregard of the law.
Whilst
located within Chapter 11 of the Constitution, the provisions of
section 209(1) are narrowly tailored to establish and
regulate
intelligence services other than an intelligence division of the
defence force or the police service, which may be established
only
by the President and only in terms of national legislation.
15
Section 209(2) provides for the President’s power to appoint a
head of each intelligence service. He must either assume political
responsibility for the control and direction of any of those
services or designate a member of the cabinet to assume that
responsibility.
16
It is noteworthy that section 209 is silent on the power of the
President to suspend or dismiss a head of an intelligence service.
The
national legislation envisaged in section 209(1) of the
Constitution is ISA. It came into operation during February 2003
but has transitional provisions that preserve the link and
continuity with past intelligence services.
17
ISA establishes and regulates three intelligence services, one of
which is the Agency. Section 3 provides for the continued
existence of intelligence services established under previous
legislation.
18
Section 3(3)(a) of ISA provides that the President must appoint a
Director-General for each of the intelligence services, including
the Agency. Section 3(3)(b) of ISA makes it clear that the
Director-General is the head and accounting officer of the
intelligence
service. However, ISA makes no express provision for
the suspension or alteration of the terms of employment or
dismissal of
the head of an intelligence service, including the
Agency.
This
position may be contrasted with the powers conferred on the
Minister by the same legislation. Section 4 of ISA requires
the
Minister to create, in consultation with the President, the posts
of deputy Director-General within the Agency. The Minister
also
bears the responsibility to create posts of assistant
Director-General, all directorates, divisions and other lower post
structures. Section 37(1) of ISA gives the Minister the power to
make regulations, which include a power to regulate suspension
and
dismissal from the Agency. Regulations
19
(referred to by the applicant as the secret Regulations) appear to
govern the suspension of members of the Agency. It is however
clear from the provisions of ISA
20
that the Minister may regulate the suspension and dismissal of the
deputy Director-General and members of the Agency of a lower
rank
but has no similar power in relation to the Director-General and
head of the Agency.
The
head of the Agency is part of the public service for the Republic.
The basic values and principles governing public administration
are
in turn prescribed by Chapter 10 of the Constitution. Within the
public administration there is a public service. Section
197 of
the Constitution stipulates that the public service must be
structured in terms of national legislation and its terms
and
conditions of employment must also be regulated by national
legislation, which in this case is the PSA.
21
The
terms of employment of the head of an intelligence service,
including the Agency, are regulated by both the PSA and ISA.
Regrettably, the interplay between the provisions of these two
statutes in this particular context is complex and less than clear.
The starting point for understanding this interplay should be
section 2(3) of the PSA which provides:
“
Where persons employed in
the . . . Agency . . . are not excluded from the provisions of this
Act, those provisions shall apply
only in so far as they are not
contrary to the laws governing their service, and those provisions
shall not be construed as derogating
from the powers or duties
conferred or imposed upon the . . . Agency . . . ”
It
follows that the provisions of the PSA apply to the conditions of
service of a head and members of the Agency when they are
not at
odds with the provisions of ISA. There are a few such relevant
provisions in the PSA that apply to the head of the Agency
and are
not contrary to the provisions of ISA. These are section 3B(1)(a)
and sections 12(2), (3) and (4). Section 3B provides
generally for
the appointment and “other career incidents” of heads of
national departments. The relevant portion reads:
“
(1) Notwithstanding anything
to the contrary contained in this Act, the appointment and other
career incidents of the heads of departments
shall be dealt with by,
in the case of–
(a) a head of a national
department or organisational component, the President . . .”
Although
the definition of “head of department” in paragraph 1 read with
Schedule 1 of the PSA makes it clear that the conditions
of service
of the head of department of the Agency are also regulated under the
PSA, section 3B(1)(a) does not grant specific power
to appoint the
head of the Agency. The source of the power to appoint heads of
intelligence agencies is located in section 209(2)
of the
Constitution and that competence is echoed in section 3(3)(a) of
ISA.
Section
12(2) of the PSA does not seek to regulate the power to appoint but
the manner or process of appointment. Section 12(2)(a)
stipulates
that a head of department shall be appointed “in the prescribed
manner, on the prescribed conditions and in terms
of a prescribed
contract” between the relevant executing authority for a period
of five years or such shorter period as the
executing authority may
approve. In terms of section 1 of the Act, “prescribed” means
prescribed by or under the PSA. The
Public Service Regulations
22
prescribe that contracts that are to be concluded between an
executing authority and a head of department in terms of section
12(2) shall be as set out in the Regulations.
23
It may include matters referred to in subsections 12(4)(a) to (c)
of the PSA. In terms of the Regulations, the executing authority
shall provide the Minister of Public Service and Administration
with a copy of the contract shortly after its conclusion.
In
terms of section 12(4) of the PSA, the contract of employment of a
head of department:
“
.
. . may
include any term and condition agreed upon between the relevant
executing authority and the person concerned as to—
.
. . .
(c)
the grounds upon, and the procedures according to which, the
services of the head of department may be terminated before the
expiry of his or her term of office . . . .” (Emphasis added.)
It
appears plain that, in the case of the head of the Agency, the
President is the relevant executing authority.
24
In other words, the manner in which the term of office of the head
of the Agency may be amended or indeed terminated before its
expiry
may form part of the service agreement between the executing
authority and the head of the Agency.
It
is, however, significant that outside this possible contractual
process of termination, the PSA does not make provision for
dismissal of the Director-General of the Agency. Section 17(2) of
the PSA provides for discharge of officers but expressly excludes
members of the Agency. Simply put, the PSA seems to make no
provision for the termination of the service contract or dismissal
of a head of an intelligence service, including the Agency.
Another point of difference is that a discharge of an officer or
employee under the PSA is subject to the applicable provisions of
the Labour Relations Act.
25
On the other hand, section 2(b) of the Labour Relations Act
26
and section 3(1)(a) of the Basic Conditions of Employment Act
27
expressly exclude members of the Agency from the scope of their
application.
The
decision to amend conditions of service or to dismiss
In
this Court, the applicant put up a rather spirited criticism of the
decision of the High Court on two main grounds, each with
several
strands. The first is that the decision to dismiss or to alter was
not taken under section 209(2) of the Constitution.
The applicant
contends that the President purported to take the decision in terms
of section 12(2) of the PSA which does not
confer express authority
on the President or on anyone else to do so. The kernel of the
argument is that the dismissal was done
without lawful authority.
However, if section 12(2) of the PSA confers implied authority to
amend or dismiss, then its exercise
is the implementation of
legislation and thus falls to be reviewed and set aside under PAJA
as procedurally unfair.
The
second main contention is that section 209(2) of the Constitution,
even if read together with section 3(3)(a) of ISA, does
not vest in
the President the power to reduce or end the period of office of
the head of the Agency. To this main argument,
there are several
strands.
First,
is that the invocation of section 209(2) of the Constitution, as a
provision which confers the requisite power on the President,
is an
afterthought and a belated and impermissible attempt to
re-characterise his decision after the event. Second, these

provisions do not confer on the President the implied power to
dismiss. Third, even if the power to dismiss is to be implied,
it
must be sourced, not from the Constitution but from section 3(3)(a)
of ISA, which vests in the President the power to appoint
the head
of the Agency. Since the exercise of such power would be the
implementation of legislation, it would amount to administrative
action for the purposes of PAJA. Fourth, if any implied power to
dismiss is conferred by section 209(2) of the Constitution,
it is,
in any event, subject to the procedural fairness requirement. And,
lastly, the manner in which the power to dismiss under
section 209
was exercised is inconsistent with the principle of legality. I
now turn to look at these arguments closely.
Did
the President rely on sections 12(2) and (4) of the PSA to amend the
applicant’s term of office?
It
is correct, as the applicant contends, that on his own version, the
President purported to act in terms of section 12(2) read
with
section 12(4) of the PSA to amend the applicant’s term of office
in a manner that brought it to an end. The President
chose this
manner of termination on the advice of Minister Fraser-Moleketi
because it would have the most humane financial impact
for the
applicant and his family. Minister Fraser-Moleketi explains on
affidavit that she urged the President to amend the applicant’s
term of office. This is because a head of department, who is not
dismissed but rather whose term of office expires, has greater
entitlements such as payment of his full remuneration for the whole
of the remaining period of his term of office; added pensionable
service; continued medical assistance; and resettlement benefits
according to the Regulations on conditions of service made under
ISA.
28
Counsel
for the President sought to persuade us that despite these facts,
the President did not take the decision to amend on
the strength of
section 12 of the PSA because: (a) the President’s letter of
amendment does not refer to section 12 of the
PSA; (b) it is the
affidavit of Minister Fraser-Moleketi which refers to section 12
and not that of the President; (c) the Minister
concerned made it
clear that when the President sought her advice, he had already
made the decision to relieve the applicant
of his duties; and (d)
the President could not have relied on section 12 of the PSA for
discharging the applicant from his duties
because section 17 of the
same legislation specifically excludes the discharge of members of
the Agency.
These
contentions advanced on behalf of the President bear no merit.
First, at a factual level, the President, in his affidavit,
states
that he has read the affidavit of Minister Fraser-Moleketi and
confirms the correctness of its contents.
29
In this way, the President embraced the option not to dismiss the
applicant but to amend his term of office under section 12(2)
for
reasons of financial compassion advanced by Minister
Fraser-Moleketi. Another important consideration is that the
import
of the text of the President’s letter dated 20 March 2006,
addressed to the applicant, is not open to doubt. In it the
President
states:
“
. . . I have decided to
amend your current term of office as head of the said Agency to
expire on 22 March 2006. You will be remunerated,
in terms of
section 37(2)(d) of the Public Service Act, 1994, for the remainder
of your term of office before its amendment.”
Second,
the President’s letter seeks to amend the term of appointment and
does so in deliberate terms in order to achieve a
compassionate
financial outcome for the applicant. This it achieves by making
the term of office expire prematurely. The truth
of the matter is
that, in substance, the amendment brings to an end the appointment
and is accompanied by an offer to place the
applicant in the same
financial position he would have been in had his contract of
service run its full course. To that extent,
the applicant is
right that this was the outcome that the President sought to reach
through the mechanics of an alteration of
the period of office
under sections 12(2) and (4) of the PSA.
Third,
the argument relating to section 17 of the PSA does not help the
cause advanced on behalf of the President because the
provision
does not apply to a head of a department. In any event, the
President did not rely on section 17 but on section 37(2)(d)
of the
PSA, which is applicable to any special service benefit which may
be granted to a head of department before or at the
expiry of a
term contemplated in section 12(1) of the PSA.
In
my view, it is beyond question that the President was advised and
he accepted as appropriate the form of dismissal under the
provisions of sections 12(2) and (4) read with section 37(2)(d) of
the PSA by amending the applicant’s term of office so that
it
would expire some two days later on 22 March 2006.
It
is however beyond doubt that, although the decision is couched in
the language of an alteration of conditions of service, it
is in
effect a decision to bring to an end the applicant’s term of
office or to dismiss him. The blatant effect of the amendment
of
the term of office is to extinguish it. This is particularly true
because this fatal amendment is accompanied by a financial
offer to
place the applicant in the same financial position he would have
been in but for the termination of his appointment.
This does not
however change the fact that the President sought to use the
provisions of the PSA and, in particular, sections
12(2) and (4)
read with section 37(2)(d), as a manner of terminating the term of
office. The sharp question is whether these
provisions of the PSA
alone or together with other constitutional and legislative
provisions authorise the dismissal of the head
of the Agency. It
is to that question that I now turn.
Do
sections 12(2) and (4) of the PSA authorise the President to amend
the applicant’s terms of service?
The
high-water mark of the applicant’s case is that the President
acted without lawful authority because sections 12(2) and
(4) do
not confer on him the power to amend the term of office of the head
of a department so as to reduce the term. He may
do so, not
unilaterally and not by the exercise of an unspecified statutory
power, but only, the applicant argues, consensually
in terms of a
contract of service. In other words, absent the consent of the
head of department, whatever the circumstances,
the President
cannot shorten or terminate his or her term of service.
This
argument compels us to look closely at the provisions of sections
12(2) and (4) of the PSA in order to ascertain whether
its primary
purpose is to be a source of the power to appoint or dismiss a head
of an intelligence service such as the Agency.
These
subsections state the following:
“
(2) As from the date of
commencement of the Public Service Laws Amendment Act, 1997—
(a)
a person shall be
appointed in the office of head of department in the prescribed
manner, on the prescribed conditions and in terms
of the prescribed
contract between the relevant executing authority and such a person
for a period of five years from the date
of his or her appointment,
or such shorter period as that executing authority may approve
;
(b) the term of office as head
of department of such a person may be extended at the expiry thereof
in accordance with the terms
and conditions of the contract or a
further contract, as the case may be, concluded between that
executing authority and such a
person for a period or successive
periods of not less than twelve months and not more than five years,
as that executing authority
may approve;
(c) the term of office as head
of department of any person referred to in subsection (1), or any
extended term thereof, may be extended
at the expiry of the term of
office or extended term, as the case may be, in the prescribed
manner for a period of not less than
twelve months and not more than
five years, as the relevant executing authority may approve,
provided the said person concludes
the prescribed contract with that
executing authority, whereupon any further extension of his or her
term of office shall, subject
to the provisions of paragraph (b),
take place in accordance with the terms and conditions of that
contract or a further contract,
as the case may be.
. . . .
(4)
Notwithstanding the
provisions of subsection (2), a contract contemplated in that
subsection may include any term and condition
agreed upon between
the relevant executing authority and the person concerned as to
—
(a) any particular duties of
the head of department;
(b) the specific performance
criteria for evaluating the performance of the head of department;
(c)
the grounds upon, and
the procedures according to which, the services of the head of
department may be terminated before the expiry
of his or her term of
office or extended term of office, as the case may be
; and
(d)
any other matter which
may be prescribed
.” (Emphasis added.)
By
now we know that the President appointed the applicant by a letter
of appointment that cites the power to appoint the head
of the
Agency under section 3B(1) of the PSA and section 3(3)(a) of ISA
and not under section 12 of the PSA. The period of appointment
is
for a period less than the five years envisaged in section 12(2) of
the PSA. This is permitted by the section that provides
that the
authority to agree to a shorter period is that of the President as
the executing authority. We also know that no written
or
prescribed contract, as envisioned in section 12(2)(a) of the PSA,
was concluded between the executing authority and the applicant
as
head of department. There is no explanation of this omission on
the papers.
It
is so that the President and Mr Masetlha did not agree on “any
grounds upon, and the procedures according to which the services
of
the head of department may be terminated before the expiry of his
or her term of office . . . .”
30
Also, it is clear that the provisions of section 12(4) of the PSA
are permissive and not peremptory. Additional terms may be
concluded on particular tasks and performance criteria of the head
of department. Similarly, the termination procedure, before
the
expiry of the term of service, may be agreed upon as an additional
provision to the prescribed contract under section 12(2).
The
fact of the matter is that no prescribed contract was entered into
and no agreement concluded, as envisioned in section 12(4)(c)
of
the PSA, on the procedure for ending the term of office before its
expiry. It is, however, common cause that there was a
contract of
employment for three years, between the executing authority and the
applicant, initiated by the letter of appointment.
In fact, the
very cause of action of the applicant rests on the existence of
that service contract initiated by the President’s
letter of
appointment. From this, the applicant urges us to construe the
provisions of sections 12(2) and 12(4)(c) to mean that,
whatever
the circumstances, the President, has no power, express or
implicit, to terminate the service contract of the head of
the
Agency, except with his or her consent. On this argument, the
employment relationship is a matter regulated by principles
of the
law of contract. The subtext of this contention is that section
12(2) is silent about the power to amend or dismiss and
because
section 12(4)(c), in particular, provides for the possibility of an
agreed expiry procedure, a unilateral ending of the
service
contract is impermissible.
In
my view, this contention of the applicant is unsound on several
grounds. It omits to make a necessary distinction between
the
substantive power to appoint and dismiss a head of an intelligence
service, on the one hand, and the resultant contract of
employment
which is regulated by the provisions of section 12 of the PSA. The
operative constitutional and legislative framework
does make that
distinction. The power, if any, to appoint and dismiss a head of
an intelligence service is located in section
209(2) of the
Constitution, read with section 3(3) of ISA and section 3B(1)(a) of
the PSA. However, these provisions in themselves
do not regulate
how the appointment to and termination of office should happen.
The manner and form of appointment that the
legislature has chosen
is a contract of service which, in the case of the head of the
Agency, is regulated by sections 12(2)
and (4) of the PSA.
In
my view, the applicant seeks to put the provisions of sections
12(2) to (4) of the PSA to a use not intended for. He is searching
for a power to appoint or dismiss in these provisions. But their
purpose is much more limited and is principally focussed on
the
terms and conditions of employment. It seems to me that the
purpose of section 12(2) is not to create or confer on the

executing authority the power to appoint or to end a term of office
or to dismiss its incumbent. Its purpose is to elect or prescribe,
at a general level, a manner through which a head of department
shall be appointed or dismissed. They are suited to regulating
terms and conditions of an existing contract of service, which is
open to several options.
For
instance, whilst section 12(2) of the PSA requires that the head of
department shall be appointed in the prescribed manner,
on the
prescribed conditions and in terms of the prescribed contract, it
is permissive of which provisions may or may not be
included in a
service contract. The contract may be the prescribed one or a
customised one. But the prescribed form of contract
too has
several open spaces to be completed and permits variations and
adaptation. For instance, the term may be anything between
12
months and five years. The term may be extended at expiry and may
be further extended at the end of the extended period,
if the
executing authority permits it. Section 12(4) in particular
anticipates a number of optional provisions on the job

specification, specific performance criteria and grounds and
procedure of termination before the expiry of the term of office,
all of which may be included in a service contract. Section
12(4)(d) also makes it clear that the contract may provide for “any
other matter which may be prescribed.”
But
even more importantly, nothing in the wording of section 12 of the
PSA compels the parties to agree on any terms of the service
agreement beyond the essential elements thereof, as it is the case
between the President and Mr Masetlha. It seems to me therefore
that the section provides for a contractual framework for the
manner of appointment of the head of department under section 12(2)
and also implicitly for the termination of his or her term of
office, even in the absence of a specific and agreed procedure
contemplated in section 12(4)(c) of the PSA.
In
other words, if the alteration or termination of the service
contract is not regulated by an express contractual provision,
it
would be regulated by implied contractual terms.
31
This means that neither contracting party may change the agreement
unilaterally. Once a person is appointed, a contract of
employment
arises as envisaged and regulated by section 12 of the PSA. Here,
no written contract was entered into but nevertheless
the effect of
the appointment of Mr Masetlha is that a contract of employment for
a fixed period of three years arose between
him and the government.
Given that no terms were agreed upon for termination of the
employment and that the Labour Relations
Act
32
does not apply to this class of employment contract, the ordinary
rules of contract of employment will apply to termination.
The
contract of employment is for a fixed period of three years.
Therefore, it may not be terminated as a matter of contract
before
the expiry of the period unless there is material breach of the
contract by the employee.
As
I have said earlier, the power to appoint and the power to dismiss,
if any, is not located in section 12(2) of the PSA. Section
12
provides only for the manner and form of the service contract once
the appointment or dismissal has occurred. It is therefore
unsound
to search for the power of the President to end a term of office of
the head of the Agency in section 12(2). The power
and indeed
obligation of the President to appoint the head of an intelligence
service is not sourced from a private law relationship.
It is a
public law power. In other words, this dispute between the parties
is not merely about a breach or wrongful termination
of an
employment contract. It is rather about whether public authority
has been exercised in a constitutionally valid manner.
That much
is quite apparent from the very claim and relief that the applicant
is pursuing.
The
public power at stake derives from Chapter 11 of the Constitution
and the operative legislation, which are intended to advance
national security through the control and establishment of
intelligence services. In particular, the provisions of section

209 of the Constitution regulate a specific element of the security
forces, being intelligence services. Section 209(2) enjoins
the
President to appoint a woman or a man as head of an intelligence
service and section 210 requires that national legislation
must
regulate the object, powers and functions of the intelligence
service. As we have shown earlier, that national legislation
is
ISA. Again its provisions echo the original source of the power in
section 209(2) of the Constitution when it provides that
the
President must appoint a Director-General for the Agency.
Thus,
the procedural and permissive requirements of sections 12(2) and
(4) of the PSA must not be read alone, but in conjunction
with the
constitutional and operative legislative scheme that I have
described at length.
33
It seems to me plain that the President may enter into a service
contract with the head of the Agency only if he or she has
the
power to appoint. The source of that power is not section 12(2) of
the PSA. It is section 209(2) of the Constitution, which
is
mirrored in the specific provision dealing with the appointment of
the head of an intelligence service in section 3(3) of
ISA. Of
course, section 3B of the PSA also gives the general power of
appointment of a head of department to the President.
Does
the power to appoint under section 209(2) of the Constitution and
section 3(3)(a) of ISA imply a power to dismiss?
The
next question is whether the power to appoint implies the power to
dismiss or to amend the terms of office so as to end it.
The
applicant sought to persuade us that, even if the power to appoint
exists in section 209(2) of the Constitution or section
3(3)(a) of
ISA, it does not incorporate a power to dismiss because the
Constitution has omitted the power deliberately, as it
is
unnecessary. The Constitution requires that the establishment of
an intelligence service may be done only through national
legislation. Therefore, the appointment and dismissal of heads of
security services were to be regulated by national legislation
and
not by implying provisions in the Constitution. The power to
dismiss is only found in the context of a contract, envisaged
in
section 12(4)(c) of the PSA, or may be implied in section 3(3)(a)
of ISA. And because the power to dismiss can be found only
in a
statute, its exercise is administrative action and is therefore
susceptible to judicial scrutiny under PAJA.
This
argument has a number of pitfalls. Firstly, I have already held
that the power to appoint or dismiss is not to be found
in the
context of sections 12(2) and 12(4)(c) of the PSA. Secondly, if
the Constitution does not confer implicit power on the
President to
dismiss, what would be the source of such power in national
legislation such as section 3(3)(a) of ISA? Why would
it be
competent to imply the power in legislation but not in the
empowering constitutional provision? I cannot accept that the
power to dismiss has been deliberately omitted from the
Constitution or that it is unnecessary.
The
power to dismiss is necessary in order to exercise the power to
appoint. The High Court is right that the power to dismiss
a head
of the Agency is a necessary power without which the pursuit of
national security through intelligence services would
fail.
Without the competence to dismiss, the President would not be able
to remove the head of the Agency without his or her
consent before
the end of the term of office, whatever the circumstances might be.
That would indeed lead to an absurdity and
severely undermine the
constitutional pursuit of the security of this country and its
people. That is why the power to dismiss
is an essential corollary
of the power to appoint and the power to dismiss must be read into
section 209(2) of the Constitution.
There is no doubt that the
power to appoint under section 209(2) of the Constitution and the
power under ISA implies a power
to dismiss.
Of
course, section 3(3)(a) of ISA is the legislation contemplated in
section 209(1) of the Constitution. It is couched in terms
similar
to section 209(2) and it too is silent on the power to dismiss.
However, that power must be present because it is implied
in and
flows from the empowering constitutional provision. But that does
not alter or destroy, as the applicant will have us
accept, the
constitutional character of the power to dismiss a head of the
Agency. I cannot find any valid reason why, as the
applicant
suggests, the power to dismiss may be inferred from the provisions
of section 3(3) of ISA but not from those of section
209(2) of the
Constitution.
It
follows that the power that the respondent utilised to dismiss the
applicant is located in section 209(2) of the Constitution
read
with section 3(3)(a) of ISA. The applicant pressed on us the
argument that the respondent should not be permitted to rely
on
section 209(2) because it is an afterthought. The applicant argues
that the President dismissed him under section 12(2) of
the PSA and
now seeks to rely belatedly on section 209(2) of the Constitution.
He argues that allowing the President to change
the nature of the
decision he took would violate the principle of certainty, a subset
of the rule of law, which does not permit
an organ of state to
communicate that it is doing one thing to the detriment of another
person when, in actual fact, it is doing
something else.
34
The
difficulty which confronts this argument is that section 12(2) of
the PSA is not a source of the power to dismiss but regulates
contractual terms in employment agreements of certain members of
the public service. It is clear from the facts that both the
President and Minister Fraser-Moleketi were concerned about the
manner in which the term of office should be terminated and not
with whether the President had the power to dismiss. I can find no
suggestion from the facts that they ever disavowed reliance
on
section 209(2) of the Constitution as the original source of the
power to appoint or end his term of office. If anything,
express
reference to section 209(2), as the source of the President’s
power to appoint the applicant, appears at least four
times in the
answering affidavits in the termination application. This was long
before the matter was ripe for hearing. Therefore,
the complaint
of the applicant that he would have formulated his case
differently, if he was told that the President relied and
continues
to rely on section 209(2), is indeed misplaced.
I
have no doubt that, in all the circumstances, the President had the
requisite power under section 209(2) of the Constitution
read with
section 3(3)(a) of ISA and was entitled to take a decision to bring
to an end the appointment of Mr Masetlha as Director-General
of the
Agency. However, as will become apparent later, the power to
employ and to dismiss the Director-General of the Agency
should not
be conflated with the contractual implications of terminating his
fixed term employment contract prematurely.
Is
the decision of the President reviewable on any basis?
In
sum, I have found that section 209(2) of the Constitution does
confer on the President an implied power to dismiss a head of
the
Agency and that the power includes the power to amend the term of
office of the incumbent of the Agency in such a manner
as to end
the term. I have also found that section 3(3)(a) of ISA contains a
similar implied power to dismiss. I do not agree
with the argument
that the power to dismiss the head of the Agency must be sought
only in national legislation and that that
legislation is section
12 of the PSA. I have instead found that the purpose of section 12
of the PSA is not to confer the power
to appoint but to regulate
the manner of appointment and of dismissal. I have consequently
rejected the argument that the only
manner in which the services of
the head of the Agency may be terminated is by his or her consent,
whatever the cause of the
dismissal.
The
question then is whether the power to appoint and the correlative
power to dismiss a head of the Agency as conferred by section
209(2) of the Constitution is subject to a requirement of
procedural fairness. The unfairness that the applicant complains

of lies in the President not affording him an opportunity to be
heard before the impending dismissal. The applicant argues that
the dismissal falls to be reviewed and set aside on the grounds of
procedural unfairness. The gist of this contention is that
nothing
in section 209(2) expressly excludes the common law right on the
part of the head of the Agency to be heard before dismissal.
35
For this proposition the applicant relied on the seminal passage
to be found in
Administrator, Transvaal, and Others v Traub and
Others
:
36
“
The maxim
[
audi alteram partem
]
expresses a principle of natural justice which is part of our law.
The classic formulations of the principle state that, when
a statute
empowers a public official or body to give a decision prejudicially
affecting an individual in his liberty or property
or existing
rights, the latter has a right to be heard before the decision is
taken (or in some instances thereafter . . .), unless
the statute
expressly or by implication indicates the contrary.”
37
It
is so that the audi principle or the right to be heard, which is
derived from tenets of natural justice, is part of the common
law.
It is inspired by the notion that people should be afforded a
chance to participate in the decision that will affect them
and
more importantly an opportunity to influence the result of the
decision. It was recognised in
Zenzile
38
that the power to dismiss must ordinarily be constrained by the
requirement of procedural fairness, which incorporates the right
to
be heard ahead of an adverse decision. In my view however, the
special legal relationship that obtains between the President
as
head of the national executive, on the one hand, and the
Director-General of an intelligence agency, on the other, is
clearly
distinguishable from the considerations relied upon in
Zenzile
. One important distinguishing feature is that the
power to dismiss is an executive function that derives from the
Constitution
and national legislation.
Section
85(2)(e) of the Constitution, in particular, stipulates that the
President exercises executive authority by performing
“any other
executive function provided for in the Constitution or in national
legislation.” Furthermore, it is important
to understand that
section 1 of PAJA expressly excludes, from the purview of
“administrative action”, executive powers or
functions of the
President referred to in section 85(2)(e). In other words,
presidential decisions which constitute the exercise
of executive
powers and functions under section 85(2)(e) are clearly not
susceptible to administrative review under the tenets
of PAJA even
if they otherwise constitute administrative action.
39
It
is clear that the Constitution and the legislative scheme give the
President a special power to appoint and that it will be
only
reviewable on narrow grounds and constitutes executive action and
not administrative action. The power to dismiss – being
a
corollary of the power to appoint – is similarly executive action
that does not constitute administrative action, particularly
in
this special category of appointments. It would not be appropriate
to constrain executive power to requirements of procedural
fairness, which is a cardinal feature in reviewing administrative
action. These powers to appoint and to dismiss are conferred
specially upon the President for the effective business of
government and, in this particular case, for the effective pursuit
of national security. In
Premier, Mpumalanga
,
40
this Court has had occasion to express itself on whether to impose
a requirement of procedural fairness in the following terms:
“
In determining what
constitutes procedural fairness in a given case, a court should be
slow to impose obligations upon government
which will inhibit its
ability to make and implement policy effectively (a principle well
recognised in our common law and that
of other countries). As a
young democracy facing immense challenges of transformation, we
cannot deny the importance of the need
to ensure the ability of the
Executive to act efficiently and promptly.”
41
This
does not, however, mean that there are no constitutional
constraints on the exercise of executive authority. The authority
conferred must be exercised lawfully, rationally and in a manner
consistent with the Constitution.
42
Procedural fairness is not a requirement. The authority in
section 85(2)(e) of the Constitution is conferred in order to

provide room for the President to fulfil executive functions and
should not be constrained any more than through the principle
of
legality and rationality.
It
is appropriate to recall what this Court had occasion to observe in
SARFU
:
“
[T]he exercise of the powers
must not infringe any provision of the Bill of Rights; the exercise
of the powers is also clearly constrained
by the principle of
legality and, as is implicit in the Constitution, the President must
act in good faith and must not misconstrue
the powers. These are
significant constraints upon the exercise of the President’s
power.”
43
(Footnotes omitted.)
Although
within the context of ministerial regulation-making power, Ngcobo J
restates the rationality test in the following terms:
“
The exercise of public power
must therefore comply with the Constitution, which is the supreme
law, and the doctrine of legality,
which is part of that law. The
doctrine of legality, which is an incident of the rule of law, is
one of the constitutional controls
through which the exercise of
public power is regulated by the Constitution. It entails that both
the Legislature and the Executive
‘are constrained by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by
law’. In this sense the
Constitution entrenches the principle of legality and provides the
foundation for the control of public
power.
. . .
The exercise of such power must
be rationally related to the purpose for which the power was given.
. . .
As long as the regulation of
the practice, viewed objectively, is rationally related to the
legitimate government purpose, a court
cannot interfere simply
because it disagrees with it or considers the legislation to be
inappropriate.”
44
(Footnotes omitted.)
It
is therefore clear that the exercise of the power to dismiss by the
President is constrained by the principle of legality,
which is
implicit in our constitutional ordering. Firstly, the President
must act within the law and in a manner consistent
with the
Constitution. He or she therefore must not misconstrue the power
conferred. Secondly, the decision must be rationally
related to
the purpose for which the power was conferred. If not, the
exercise of the power would, in effect, be arbitrary and
at odds
with the rule of law.
Reverting
to the present case, I agree with the High Court that ordinarily a
dismissal of a head of an intelligence service on
the basis of
irretrievable loss of trust on the part of his principal, in this
case the President, would not be arbitrary or
irrational. Of
course, the facts in a particular case may demonstrate
irrationality, arbitrariness or bad faith on the part
of the person
who makes the dismissal decision. In this case, nothing suggests
that the President acted arbitrarily or without
sufficient reason.
Even
if procedural justice was a requirement for the exercise of the
power to dismiss, it seems to me that, on the facts, Mr Masetlha
has had ample occasion to respond to the allegations that were made
against him in relation to the “Macozoma affair”. It
will be
remembered that after the unauthorised surveillance was exposed, he
had had at least two meetings with the Minister,
at which he was
called upon to provide an explanation about the surveillance and
his role in it. At the request of the Minister,
he submitted a
written report in which he sought to explain his complicity, if
any, in the surveillance. He participated in
and made submissions
regarding the investigation process set up by the
Inspector-General. Once the report of the Inspector-General
was
available, the Minister explained the adverse recommendations made
against him and the fact that they were given to the President.
Before
his dismissal, he had audience with the President at which he
expressed his views on the “Macozoma affair” and
dissatisfaction
with the findings of the Inspector-General’s
investigation, including recommendations that disciplinary
proceedings be taken
against him. Although the President did not
ask the applicant for his views at the point of dismissing him, he
had the benefit
of the view of the applicant on all material issues
that led to the dismissal.
The
President dismissed the applicant because the relationship of trust
between them has broken down irreparably. The applicant
admits to
this and blames the President for the break-down of the trust and
contends that it could be restored if the President
makes
appropriate amends for the harm the President has caused to Mr
Masetlha’s reputation.
It
cannot be forgotten that the duties of the applicant are to head,
exercise command over and control the Agency.
45
The functions of the Agency itself include the duty to gather,
evaluate and analyse domestic intelligence in order to identify
any
threat or potential threat to the security of the Republic or its
people. This duty extends to national counter intelligence
responsibilities, which includes gathering and co-ordinating
counter intelligence, in order to identify any threat or potential
threat to the Republic or its people. And importantly, the Agency
bears the responsibility to inform the President of any such
threat. It follows that in order to fulfil his duty in relation to
national security, the President must subjectively trust
the head
of the intelligence services. Once the President had apprised
himself of the facts from the Minister; the report of
the
Inspector-General; the various reports of the applicant himself;
the meetings he had with the applicant; the attacks on his
integrity and accusations of falsehoods contained in the papers on
suspension proceedings, the President concluded that he had
lost
trust in the applicant and that it was in the national interest to
terminate his appointment as head of the Agency. In
my view, that
break-down of the relationship of trust constitutes a rational
basis for dismissing the applicant from his post
as
Director-General of the Agency.
The
underlying contract of employment
As
we have seen earlier, the President had the requisite power to make
the decision to dismiss the applicant or to amend his term
of
office so as to end it. I can find no cause to hold that the
exercise of that power is not in accordance with the law. This
does not however mean that a contract of employment between Mr
Masetlha and the government comes to naught. The question is
what
the legal consequences are of the premature termination of the
underlying contract of employment.
Although
it is clear that there has been a break-down in trust, that alone
is not a sufficient ground to justify a unilateral
termination of a
contract of employment. It must however be said that the
irretrievable breach of trust will be relevant for
purposes of
remedy. The ordinary remedies for breach of contract are either
re-instatement or full payment of benefits for the
remaining period
of the contract.
46
In my view, even if the contract of employment were terminated
unlawfully, Mr Masetlha would not be entitled to re-instatement
as
a matter of contract. Re-instatement is a discretionary remedy in
employment law which should not be awarded here because
of the
special relationship of trust that should exist between the head of
the Agency and the President.
47
On
any version of the facts, trust between the head of the Agency and
the President has broken down. The President says that
the
break-down is irretrievable. In his papers, Mr Masetlha has
impugned the integrity of the President and has accused him
of
lying. He agrees that relationship of trust has disintegrated but
says that it is not irretrievable and may be restored if
the
President were to make amends to his reputation. In my view, a
relationship of trust between a President and the head of
an
intelligence service is indispensable. Trust goes to the very root
of the special arrangement between a President, as head
of state
and of the national executive, and the head of an intelligence
agency; without which the interest of national security
cannot be
best served. If anything, national security would be severely
prejudiced.
Whether
trust has irretrievably dissipated is a matter of fact, which falls
to be decided on the facts of each case. In this
case, the absence
of trust is mutually acknowledged. It has not been suggested that,
in taking the decision, the President acted
irrationally nor am I
able to find that he did.
As
we have observed earlier, when a fixed term contract of employment
is terminated the applicant may claim re-instatement or
full
payment of benefits for the remaining period of the contract. It
is however plain that, in the context of this case, the
re-instatement of Mr Masetlha would be inappropriate. To the
extent that the mainstay of his claim is to be re-instated as

Director-General of the Agency, his claim must fail. From that
must follow that Mr Masetlha’s residual or alternative remedy
is
full payment of salary, allowances and benefits of his post for the
remaining period of his contract.
Is
it still necessary to decide the suspension dispute?
Given
the conclusion I have reached, it is unnecessary to decide the
suspension dispute. It will be remembered that the first
respondent tendered costs of the suspension application on the
ground that there was no longer a live controversy between the
parties. Then the applicant took an opposite view and declined the
costs tender and the offer to place him in the same financial
position as he would have been in had his term of office run its
full course. I would accordingly dismiss the appeal and uphold
the
decision of the High Court that the suspension dispute has been
rendered moot by the decision on the dismissal of the applicant.
Should
any of the disputes between the parties be referred to oral
evidence?
The
applicant thinks that certain issues should be remitted to the High
Court for the hearing of evidence. These issues are related
to the
complaint of the applicant that in suspending and dismissing him,
the President acted with an ulterior purpose. The applicant
says
that he was obliged to proceed by way of application and to adopt a
procedure that would allow the President not to have
to testify in
relation to the performance of his official duties unless it was
necessary for the resolution of the dispute between
the parties.
For this attitude, the applicant relied on the unanimous decision
of this Court in
SARFU
.
48
The
applicant is the initiator of the suspension and termination
applications and has elected motion proceedings. The duty is
on
him to seek an order for referral to oral evidence if he is of the
reasonable view that genuine disputes of fact may require
resolution through oral evidence.
49
Ordinarily the election is not done on appeal. In any event, all
but one of the causes of action relate to the suspension dispute
that is now moot.
The
last issue is premised on a claim that the President dismissed the
applicant for an ulterior motive to protect the Minister
from
political embarrassment. On the other hand, the President refutes
this allegation and avers that he has taken the decision
to dismiss
the applicant in the public interest. I do not think that this
marginal dispute, in the overall scheme of this case,
weighs
heavier than the need for finality in this matter. Even if the
motive, at a certain stage, had been to remedy the fact
that the
wrong power had been used to effect dismissal, this would not
constitute an ulterior motive. What is important is that
the trust
between the parties had irretrievably broken down. The disputed
issues of fact relate to matters peripheral to the
basic legal
questions.
In
this regard, we will do well to remember the words of this Court in
SARFU
on a similar issue:
“
Careful consideration must
therefore be given to a decision compelling the President to give
evidence and such an order should not
be made unless the interests
of justice clearly demand that this be done. The judiciary must
exercise appropriate restraint in
such cases, sensitive to the
status of the head of State and the integrity of the executive arm
of government. On the other hand,
there is the equally important
need to ensure that courts are not impeded in the administration of
justice.”
50
In all
the circumstances, I would not grant an order to refer any issue to
oral hearing.
Remedy
In
its bare bones, the relief asked for by Mr Masetlha is to be
re-instated as Director-General of the Agency. I have come to
the
conclusion that the President was entitled to dismiss him but,
given the underlying contract of employment between Mr Masetlha
and
the government, it was open to him to claim specific performance in
the form of re-instatement or full payment of salary,
allowance and
benefits that attach to his post for the unexpired term of the
contract. For reasons that I have advanced, I hold
that this is
not an appropriate case to order re-instatement. I must
immediately add that even if the applicant had otherwise
succeeded
in this Court, this would not be a case for ordering
re-instatement.
This
is so because it would not be proper to foist upon the President a
Director-General of an important intelligence agency he
does not
trust. Nor would the public interest be served by a head of an
intelligence service who says that he has lost trust
and respect
for his principals, being the President and the Minister. Before
this Court, it was submitted on behalf of the applicant
that he
persists in seeking re-instatement more for personal vindication of
his reputation than to be returned to his previous
office. I have
understanding for this personal quest to protect and restore his
reputation. It is neither frivolous nor a matter
which does not
engage the cardinal constitutional value of dignity. At the inner
heartland of our rights culture is human dignity.
This has
implications for the manner in which public power is exercised.
Public power, even though properly conferred, must
be exercised in
a manner that would not violate the human dignity of those
concerned including reputation, which is an incident
of one’s
sense of self worth.
The
financial tender that was made to the applicant was intended to
place him in the same financial position that he would have
been in
but for the early termination of his services. The applicant
returned the tendered lump sum to the state. The appeal
of the
applicant has failed and therefore this Court has not made an order
declaring that the conduct of the President is inconsistent
with
the Constitution and invalid as envisioned in section 172(1)(a) of
the Constitution. The question is whether this Court
has the power
to make an order that is just and equitable as envisioned in
section 172(1)(b) of the Constitution when it has
not declared any
law or conduct inconsistent with the Constitution.
51
This
does not arise. Absent an order for the re-instatement of Mr
Masetlha, the state remains duty-bound to place Mr Masetlha
in
exactly the same position as he would have been had he served his
full term as Director-General of the Agency. It is quite
clear
that Mr Masetlha declined the tender in order not to prejudice his
claim for re-instatement as Director-General. Now that
that claim
has failed, there is no reason in law why he should not be paid the
amount and benefits which the state had detailed
in the letter from
Minister Fraser-Moleketi to him dated 22 March 2006 and marked
“AR3” in the application papers.
Another
additional consideration is that, during the hearing before us,
counsel for the President conceded that the government
had the duty
to honour the tender to Mr Masetlha. To that extent, the order I
intend making does not only arise from the obligation
of the
government arising from the contract of employment but also the
consent of the government. However, the one remaining
difficulty
is that Mr Masetlha has never signified whether the tender is a
true equivalent of the remuneration and benefits he
would have been
entitled to had his term of office not been interrupted. For that
reason, I plan to make an order which will
allow the parties to
approach this Court or any other court of competent jurisdiction,
on supplemented papers, for a speedy resolution
regarding the
extent of the applicant’s remuneration and benefits owing.
Costs
The
applicant has raised important constitutional issues about the
validity of certain decisions made by the President. Although
his
appeal is unsuccessful, we have required the President to place the
applicant in exactly the same financial position as he
would have
been, but for the premature termination of his term of office. At
the hearing, counsel for the President did not
seek an order of
costs against the applicant, nor do I find it appropriate to make
an adverse order of costs against the applicant
in this Court.
One
additional matter remains. The High Court dismissed the
consolidated application with costs including the costs of two

counsel, but excluding the costs of the founding papers in that
case. Having considered all the circumstances, I have come to
the
conclusion that that costs order should not stand. The applicant
sought to vindicate important constitutional guarantees
and should
not be unduly mulcted in costs for attempting to do so. I will
accordingly set aside the costs order of the High
Court and make no
order as to costs in this Court.
Order
The
following order is made:
The
application for leave to appeal is granted.
The
application to refer certain disputes of fact in the termination
application and the suspension application for determination
by
oral evidence is refused.
The
appeal against the decision of the High Court, in which it
dismissed the consolidated application, is refused.
The
order made by the High Court is set aside and is replaced with the
following order:
“The consolidated application is dismissed with no order as to
costs.”
No
order as to costs is made.
The
first respondent is ordered to pay to the applicant remuneration,
allowances, pension and other benefits in terms of section
37(2)(d) of the PSA for the period starting on 22 March 2006 up to
31 December 2007, all of which shall place the applicant
in the
same financial position that he would have been in but for the
termination of his term of office on 22 March 2006.
Should
any dispute arise between the applicant and the first respondent
in relation to the extent of the financial position
referred to in
paragraph (6) above, either party may approach this Court or any
other court of competent jurisdiction, on the
same or supplemented
papers for adjudication of the dispute.
Langa
CJ, Navsa AJ, Nkabinde J, O’ Regan J, Skweyiya J and van der
Westhuizen J concur in the judgment of Moseneke DCJ.
NGCOBO J:
Introduction
This
is an application for leave to appeal directly to this Court
against the decision of the Pretoria High Court. It raises
three
questions. The first concerns the authority to suspend the head of
the National Intelligence Agency (NIA). It arises
out of the
suspension of the applicant, who, until the events described below,
was the head of the NIA. The second question
concerns the power of
the President to unilaterally alter the term of office of the head
of the NIA so that it ends earlier than
the date of its expiry.
This question arises out of the decision taken by the President
purporting, in terms of section 12(2)
read with section 3B(1)(a) of
the Public Service Act,
1
1994 (PSA), to alter the applicant’s term of office so that it
ended on 22 March 2006 and not on 31 December 2007, which was
its
original expiry date. The third question, which arises only if the
first two questions cannot be resolved on the papers,
is whether
any unresolved material factual issues should be referred for oral
evidence.
Moseneke
DCJ holds that: (a) the President has the power under section
209(2) of the Constitution read with section 3(3)(a) of
the
Intelligence Services Act,
2
2002 (ISA) to dismiss the head of the NIA; and (b) this power
includes the power to alter the term of office of the head of the
NIA so as to end the term of office earlier than that stipulated in
the letter of appointment.
3
These powers, he holds, are implied in both section 209(2) of the
Constitution and section 3(3)(a) of ISA. He further holds
that in
the exercise of these powers the President was not subject to the
requirement of procedural fairness because: (a) his
conduct amounts
to executive action; (b) “[a]lthough the President did not ask
the applicant for his views at the point of
dismissing him, he had
the benefit of the views of the applicant on all material issues
that led to the dismissal”;
4
and (c) the special relationship that existed between the President
and the applicant distinguishes this case from the considerations
relied upon in
Zenzile
.
5
He
concludes therefore that the President acted lawfully when he
altered the term of office of the applicant. In the light of
this
conclusion, he finds that the question of the applicant’s
suspension is moot and that it is not necessary to consider
whether
to refer any factual issue for oral evidence.
I
agree that the power of the President to appoint the head of the
NIA includes the power to alter the term of office of the head
of
the NIA. However, I am unable to agree with the finding that the
President has the power to unilaterally alter the term of
office of
the head of the NIA. In my view, the exercise of the power to
alter the term of office is constrained by the principle
of the
rule of law, in particular, the doctrine of legality. The power to
unilaterally alter the term of office is inconsistent
with the
principle of the rule of law. It cannot, therefore, be implied.
On the contrary, the President was required to consult
with the
applicant prior to altering the term of office of the applicant,
which he did not do. The conduct of the President
was therefore in
breach of the principle of the rule of law and thus inconsistent
with the Constitution.
However,
like Moseneke DCJ, I find that the question of the suspension of
the applicant is moot and that it is not necessary to
consider
whether to refer any factual issues for oral evidence. But I do so
for different reasons.
Factual
background
The
applicant was appointed the Director-General of the NIA on 14
December 2004 for a fixed period of three years commencing on
1
January 2005 and ending on 31 December 2007. The appointment was
made by the President under section 3(3)(a) of ISA
6
read with section 3B(1)(a) of the PSA.
7
Other than recording the statutory provisions under which the
appointment was made and fixing the definite period of the term
of
office, the Presidential Minute said nothing more. It is common
cause that the President and the applicant did not conclude
any
other agreement setting out other terms and conditions governing
the appointment.
The
present dispute has its genesis in what was described in the papers
as the “Macozoma affair”. A businessman, Mr Macozoma,
was
placed under surveillance by the operatives of the NIA. According
to the applicant, he did not authorise the surveillance
and was not
aware of it. He was not aware of it until Mr Macozoma complained
about it to the Minister for Intelligence Services
(the Minister).
On the instructions of the Minister, the applicant investigated
this affair and thereafter reported to the Minister.
The latter
was not satisfied with the report of the applicant, in particular,
the circumstances giving rise to the surveillance.
He requested
the Inspector General of Intelligence (the IGI) to investigate the
circumstances giving rise to the surveillance.
Following
the report of the IGI to the Minister on 14 October 2005, the
Minister suspended and thereafter dismissed the Deputy
Director-General of the NIA, Mr Njenje and another senior member of
the NIA, Mr Mhlanga. The action taken against these officials
was
apparently based on their alleged involvement in the “Macozoma
affair”. Mr Njenje threatened to institute legal proceedings
in
order to have his name cleared.
On
19 October 2005, the applicant was summoned to a meeting with the
President and the Director-General in the office of the President
at the official residence of the President. There is a dispute as
to what precisely was discussed at this meeting. However,
it is
undisputed that among the issues discussed was the dismissal of Mr
Njenje and his threat to institute legal proceedings
as well as the
report of the IGI. It is also not in dispute that the President
requested the applicant to intervene and persuade
Mr Njenje to hold
in abeyance any legal proceedings until the President had had the
opportunity to meet with Mr Njenje. A meeting
was scheduled for
the following day, which presumably was a follow-up to the meeting
of 19 October 2005, when both the Minister
and the IGI would also
be present.
On
20 October 2005, the applicant attended the scheduled meeting at
the residence of the President. Apart from the President,
the
Minister and the IGI were also present at the meeting. At the
commencement, the President announced that it was no longer
necessary to discuss the matter that had been raised the previous
day because the Minister had earlier spoken to him and the
Minister
had something to say. The Minister then read out to the meeting
the contents of a letter of the same date written by
the Minister
to the applicant. In the letter, the Minister purported to suspend
the applicant from his position as the head
of the NIA and
instructed the applicant not to enter the premises of the NIA
without his permission for the duration of the suspension.
The
letter reads as follows:
“
[On the letterhead of the
Ministry: Intelligence Services Republic of South Africa]
Dear Director General
I have been provided with the
Report of the investigation by the Inspector General into the
legality of the NIA surveillance operation
on Mr Sakumzi Macozoma.
The findings of the Inspector
General in respect of your knowledge and involvement in this
operation - found by the Inspector General
to have been unauthorised
and unlawful - are serious.
I have asked the Inspector
General to extend his investigation to cover issues not covered by
the original terms of reference, but
which were raised during the
course of the initial investigation. Should the Inspector General
need to consult with you on any
issue during the further course of
his investigation, you are requested to co-operate fully.
Given the seriousness of the
issues at hand, and my concern at your involvement in what appears
at this stage to be an unlawful
and un-procedural operation by NIA I
have decided to suspend you from your post as Director General with
immediate effect until
further notice.
You are advised that for the
duration of your suspension you are not permitted to enter the
premises of the National Intelligence
Agency or the South African
Secret Services, unless you are duly authorised by me to do so –
with the exception of your residence.
Should you wish to advance
reasons as to why you should not be suspended, you are to
communicate these in writing to my office for
my consideration.
Thank You.
[Signed by R Kasrils, Minister
for Intelligence Services]”
The
Minister assured the President during the meeting that he had
consulted and had established that he, the Minister, had the
power
to suspend the applicant from his post because this was an internal
procedural matter of the NIA, which did not require
the
intervention of the President. The President enquired from the
applicant whether he had anything to say. The applicant
replied
that he first wanted to read and study the letter. The President
thereafter closed the meeting. There was no suggestion
at this
meeting either by the Minister or by the President that the
decision to suspend the applicant had been taken by the President.
On
27 October 2005, the applicant’s legal representatives addressed
a letter to the Minister requesting, amongst other things,
the
statutory provision under which the Minister purported to suspend
the applicant as well as the reasons for the suspension.
On 31
October 2005, the Minister’s legal representatives placed
themselves on record as representing the Minister and indicated
that they would respond to the applicant’s legal representatives
once they had received full instructions. In their subsequent
letters of 4 and 8 November 2005, the Minister’s legal
representatives did not address the request for reasons for
suspension
nor did they furnish the statutory authority for the
suspension. They did not deny that the Minister had suspended the
applicant
either.
It
was only on 9 November 2005 that the Minister’s legal
representatives suggested for the first time that the decision to

suspend the applicant had been taken by the President in terms of
section 3(3)(a) of ISA. Despite this allegation, however, they
went on to furnish reasons for the suspension. One of these
reasons was that “[the Minister] was concerned that [the
applicant’s]
continued presence at work during the investigation
would be detrimental to [the rest of the letter is redacted]”.
The allegation
that the President had taken the decision to suspend
was challenged by the applicant. The Minister’s legal
representatives
responded by saying the President will confirm
this.
On
12 November 2005, the applicant then launched an urgent application
in the Pretoria High Court challenging the decision to
suspend him.
He contended that despite the allegations to the contrary by the
Minister’s legal representatives and the office
of the President,
the decision to suspend him had been taken by the Minister and that
the latter had no authority in law to do
so. He further contended
that if the decision has been taken by the President, the decision
by the President to suspend him
would be invalid unless it is in
writing and signed by the President.
Three
days after the application challenging the suspension was launched,
the President purported to reduce to writing the decision
to
suspend the applicant by executing Presidential Minute number 633
of 15 November 2005. This minute does not purport to be
the
decision but purports to record a decision ostensibly taken by the
President on 20 October 2005. In addition, it purports
to operate
with retrospective effect to 20 October 2005. There is no
explanation in the papers why this minute was only executed
on 15
November 2005, almost a month after the decision purporting to
suspend the applicant had been taken. Nor is there any
indication
as to what prompted the minute.
It
is not disputed, however, that the applicant was not afforded any
opportunity to make representations as to why he should not
be
suspended either before or after the minute was executed.
On
10 March 2006, the applicant launched another application
challenging his suspension in light of Presidential Minute 633.
He
challenged the decision on various grounds, including that the
decision was that of a Minister and not that of the President;
alternatively the decision to suspend him that was taken on 20
October was not legally binding because it was not in writing;
the
decision to suspend him was inconsistent with the principle of
legality in that section 3(3)(a) of ISA does not confer on
the
President the power to suspend nor does it confer the power to
suspend with retrospective effect; and that the decision to
suspend
was taken in breach of section 6(2)(c) of the Promotion of
Administrative Justice Act,
8
2000 (PAJA), in that he was not afforded an opportunity to make
representations as to why he should not be suspended or why any
suspension imposed should not be withdrawn.
Then
on 20 March 2006, ten days after the launching of the second
suspension application, the President purported to alter the
applicant’s contract of employment by reducing his term of office
so that it ended on 22 March 2006 instead of 31 December
2007. The
letter conveying this to the applicant states:
“
Dear Mr Masetlha
The relationship of trust
between me, as Head of State and of the National Executive and you
as head of the National Intelligence
Agency, has broken down
irreparably.
Accordingly, after consultation
with the Ministers for Intelligence Services and for the Public
Service and Administration, I have
decided to amend your current
term of office as head of the said Agency to expire on 22 March
2006. You will be remunerated, in
terms of section 37(2)(d) of the
Public Service Act, 1994, for the remainder of your term of office
before its amendment.
The Minister for the Public
Service and Administration will communicate with you regarding such
benefits as would be due to you,
as well as the conditions attached
to the expiry of your term of office.
Yours Sincerely,
Thabo Mbeki”
In
altering the applicant’s term of office, the President purported
to act in terms of section 12(2) read with section 3B(1)(a)
of the
PSA. He did so after seeking and obtaining advice from the
Minister for Public Service and Administration. This emerges
from
the affidavit of the Minister for Public Service and
Administration, whose contents are confirmed by the President. She
says:
“
4. I met the First
Respondent who informed me that he had taken a decision to relieve
the Applicant of his duties due to a breakdown
of the relationship
of trust between them. The First Respondent sought my advice on how
best to go about this considering laws
that apply to service
benefits for heads of departments. In particular, the First
Respondent was concerned that the decision be
effected in a more
humane manner considering the Applicant’s long service in the
Public Service.
I advised the First Respondent
that the term of office of the Applicant as the head of the
National Intelligence Agency (herein
referred to as ‘NIA’) be
amended to expire on 22 March 2006 . . .
In terms of section 12(2),
read with section 3B(1)(a), of the Public Service Act, 1994
(promulgated under Proclamation 103 of
1994), as amended, the
President determines the term of office of the heads of national
department as their executing authority.
NIA is listed in Schedule
1 to Public Service Act. The statutory authority to determine the
term of office of a head of a national
department implies the
statutory authority for the President to amend it.
To obtain the most equitable
and favourable pension and other benefits for the Applicant upon
the termination of his services,
I advised the First Respondent to
amend his term of office to expire on 22 March 2006 and not to
terminate his services on a
basis that does not entail an expiry of
his term of office as head of NIA.”
As
indicated in the President’s letter, the Minister for Public
Service and Administration addressed a letter to the applicant
setting out the basis upon which the applicant would be remunerated
and the benefits that he would receive which included pension
and
resettlement benefits. In addition, the letter required the
applicant to vacate the official house within three months after
the effective date of the termination of his contract. Apparently
following this letter, a sum of money representing these benefits
and remuneration described in the letter was deposited into the
banking account of the applicant. The applicant declined to
accept
the money and refunded it.
On
27 March 2006, the applicant launched an application to review and
set aside the decision to alter his term of office and sought,
among other things, an order reinstating him in his post as the
head of the NIA.
In
terms of the letter from the Minister of Public Service and
Administration referred to earlier, the applicant was required
to
vacate the official house on 23 June 2006. Approximately two weeks
prior to that deadline, the second respondent, who had
since been
appointed the head of the NIA, wrote to the applicant reminding him
to vacate the house by 23 June 2006. Through
his attorneys, the
applicant resisted vacating the house pointing out that the
decision of the President to alter his term of
office was being
challenged. The State Attorney acting on behalf of the NIA,
entered the fray and gave the applicant until 25
June 2006 to
vacate the house and threatened legal action if the applicant did
not vacate.
The
next letter from the office of the State Attorney changed the tone.
The threat of securing eviction though the legal process
had
apparently been abandoned because “further court processes would
achieve nothing but the incurring of further legal costs”.
The
State Attorney now threatened to evict the applicant from the house
without a court order; this, notwithstanding the dispute
as to the
lawfulness or otherwise of the termination of the applicant’s
services. It made this threat notwithstanding the
provisions of
section 26(3) of the Constitution which requires a court order
before anyone can be evicted from one’s home.
9
In this regard the State Attorney said:
“
We are advised that, to date
Mr Masetlha remains in occupation of the State house despite
instructions that he vacate the State
house by no later than 23 June
2006. We are also informed that Mr Masetlha and his family have
access cards to the State house.
It is our advice to the
Minister of Intelligence that further court processes would achieve
nothing but the incurring of further
legal costs.
Our instructions are to inform
your client that access to the security premises including the State
house will be denied to him
and his family by
17h00 on the 01
st
August 2006
.
We are instructed to advise
further that unless your client removes his personal belongings from
the State house by the time indicated
above, the belongings will be
put in storage at his cost.”
When
the applicant’s attorney pointed out that the action threatened
in the letter of the State Attorney “would amount to
spoliation
and is clearly unlawful”, the State Attorney did not waiver. In
the letter of 1 August 2006 the State Attorney
expressed the view
that preventing the applicant from having access to the state house
would not “constitute unlawful spoliation.”
And it was made
clear that “[the NIA] will proceed to preclude access to [the
applicant] as stated [earlier].” This prompted
the applicant to
seek an urgent interdict against the Minister and the Minister for
Public Service and Administration in the
Pretoria High Court for an
order restoring quiet and undisturbed possession of the state house
to the applicant. The High Court
granted that order.
During
oral argument we were informed from the bar by counsel for the
President that the second respondent was now occupying the
state
house.
The
decision of the High Court
The
suspension application and the application challenging the
amendment of the term of office were consolidated in the High Court
and dealt with together. The High Court dealt first with the
challenge to the decision to alter the term of office and held
that: (a) the power to dismiss the head of the NIA is implicit in
section 209(2) of the Constitution; (b) the power to dismiss
the
head of the NIA constitutes an executive decision in terms of
section 85(2)(e) of the Constitution;
10
and (c) the power to dismiss is not subject to judicial review
under PAJA. It held, however, that in the exercise of the power
to
dismiss, the President is constrained by the doctrine of legality.
He may not, the High Court held, act in bad faith, arbitrarily
or
irrationally. On the facts, it found that there had been an
irreparable breakdown in the relationship of trust between the
President and the applicant. It held that this constituted a
lawful reason for the dismissal of the applicant. It accordingly
concluded that the President had acted lawfully when he altered the
term of office of the applicant and dismissed the application
with
costs.
In
the light of this conclusion, the High Court found that the
question of the validity of the applicant’s suspension is moot
and therefore declined to consider it. This conclusion also
rendered it unnecessary for the High Court to consider whether

there were any issues that should be referred for oral evidence.
The
present application for leave to appeal directly to this Court is
the sequel.
In
the light of the view I take of the powers of the President to
unilaterally alter the term of office of the head of the NIA,
it
will be convenient to first consider the challenge to the decision
to alter the applicant’s term of office.
The
contentions of the parties in this Court
The
applicant challenged the decision to alter his term of office on
the ground that section 12(2) of the PSA does not confer
on the
President the power to alter his term of office and that therefore
the President acted in breach of the doctrine of legality.

Alternatively, it was contended that if there is an implied power
to alter the term of office, the exercise of this power constitutes
administrative action and was thus subject to the provisions of
PAJA, with which the President did not comply. The applicant
further contended that in any event neither section 209(2) of the
Constitution nor section 3(3)(a) of ISA confers on the President
the power to dismiss. Alternatively, it was contended that the
exercise of the power to dismiss constitutes administrative action
and was therefore subject to the requirement of procedural fairness
envisaged in PAJA.
On behalf of the President, it was contended that the power to
dismiss and alter the term of office of the head of the NIA must
be
sought exclusively in the provisions of section 209(2) of the
Constitution read with section 3(3)(a) of ISA. It was submitted
that the power to dismiss and to alter the term of office of the
head of the NIA is implied in these provisions. And the exercise
of these powers does not constitute administrative action within
the meaning of PAJA, but amounts to an executive decision within
the meaning of section 85(2)(e) of the Constitution, so the
argument went. While accepting that there are constitutional
constraints
upon the President when he exercises these powers, it
was submitted that the irreparable breakdown of the relationship of
trust
between the President and the applicant was such that it
provided the President with a lawful reason for the termination of
the
services of the applicant.
However,
as pointed out earlier, it is clear from the affidavit of the
Minister for Public Service and Administration, whose contents
were
confirmed by the President, that in purporting to alter the
applicant’s term of office, the President acted in terms of
section 12(2) read with section 3B(1)(a) of the PSA. It was
asserted that the President has the power under these provisions
to
determine the term of office of the heads of national departments,
which includes the head of the NIA. Based on this, it
was asserted
that the power to determine the term of office implies the
statutory authority to alter the term of office. This
line of
argument, however, was not pursued in this Court on behalf of the
President. Those who represented the President in
this Court were
content to rest the President’s case on section 209 of the
Constitution read with section 3(3)(a) of ISA.
Contrary to the
assertion made by the Minister for Public Service and
Administration in her affidavit and confirmed by the President,
they submitted that section 3B(1)(a) of the PSA does not implicitly
confer on the President the power to dismiss the head of
the NIA.
It
is necessary to consider the assertion by the Minister for Public
Service and Administration because, on the papers, the decision
to
alter the applicant’s term of office was purportedly taken under
section 12(2) read with section 3B(1)(a) of the PSA. That
is the
case that the applicant was called upon to meet.
The
question presented
The
central question for determination in this case is whether the
President has the power unilaterally to alter the term of office
of
the head of the NIA. In particular, the crucial question is
whether such power can be implied from the provisions of section
12(2) read with section 3B(1)(a) of the PSA or from the provisions
of section 209(2) of the Constitution read with section 3(3)(a)
of
ISA as contended on behalf of the President in argument. If the
power contended for on behalf of the President cannot be
implied
from these provisions, then the President acted beyond his powers
in altering the term of office of the applicant. His
conduct would
then, as a consequence, be in breach of the principle of legality.
Whether
the power contended for can be implied must be determined by
construing the provisions in question in the light of
constitutional
constraints, if any, on the exercise of such power.
In order to evaluate the cogency of the contentions by the parties,
it is
necessary therefore first: (a) to have an understanding of
the constitutional and statutory context in which the President may
exercise the power to appoint and alter the term of office of the
head of the NIA; and then (b) to consider the constitutional
constraints on the exercise of this public power.
The
constitutional and statutory context
The
main constitutional and statutory provisions which regulate
appointment of the head of the NIA are the provisions of section
209(2) of the Constitution read with the provisions of section
3(3)(a) of ISA, read further with the provisions of sections 2(3),
3B(1)(a) and 12 of the PSA.
(a)
The Constitution
Section
209(2) of the Constitution empowers the President to appoint the
head of the NIA and provides:
“
The President as head of the
national executive must appoint a woman or a man as head of each
intelligence service established in
terms of subsection (1), and
must either assume political responsibility for the control and
direction of any of those services,
or designate a member of the
Cabinet to assume that responsibility.”
(b)
The
Intelligence Services Act
Section
3(3)(a) of ISA gives effect to section 209(2) of the Constitution
and provides:
“
The President must appoint a
Director-General for each of the Intelligence Services.”
Neither
section 209(2) of the Constitution nor section 3(3)(a) of ISA sets
out the terms and conditions that are applicable to
the appointment
of the head of the NIA. This is dealt with by the PSA.
(c)
The Public Service Act
The
provisions of the PSA are made applicable to the appointment of the
head of the NIA by section 2(3) of the PSA which provides:
“
Where persons employed in
the Academy, the Agency or the Service are not excluded from the
provisions of this Act, those provisions
shall apply only in so far
as they are not contrary to the laws governing their service, and
those provisions shall not be construed
as derogating from the
powers or duties conferred or imposed upon the Academy, the Agency
or the Service.”
11
Section
3B(1)(a) of the PSA provides that the appointment and other matters
relating to the heads of department at the national
level shall be
dealt with by the President. It provides:
“
Notwithstanding anything to
the contrary contained in this Act, the appointment and other career
incidents of the heads of department
shall be dealt with by, in the
case of
—
(a) a head of a national
department or organisational component, the President.”
In terms of section 1 of the PSA read with the Schedule to the PSA,
a head of department is defined to include the Director-General
of
the NIA. Thus the provisions of section 3B(1)(a) empower the
President to deal with the appointment “and other career

incidents” of the head of the NIA as the head of the department.
The term “career incidents” is not defined but is wide
enough
to include other matters relating to the career of the head of
department including terms and conditions of employment.
In
effect, therefore the section empowers the President to determine
the terms and conditions of employment applicable to the
head of
the NIA. This becomes apparent from the provisions of section 12
which authorise the President to enter into a contract
with a head
of the department.
In
relevant part, section 12 provides:
“
(2) As from the date of
commencement of the
Public Service Laws Amendment Act, 1997
—
(a) a person shall be appointed
in the office of head of department in the prescribed manner, on the
prescribed conditions and in
terms of the prescribed contract
between the relevant executing authority and such a person for a
period of five years from the
date of his or her appointment, or
such shorter period as that executing authority may approve;
(b) the term of office as head
of department of such a person may be extended at the expiry thereof
in accordance with the terms
and conditions of the contract or a
further contract, as the case may be, concluded between that
executing authority and such a
person for a period or successive
periods of not less than twelve months and not more than five years,
as the executing authority
may approve;
(c) the term of office as head
of department of any person referred to in subsection (1), or any
extended term thereof, may be extended
at the expiry of the term of
office or extended term, as the case may be, in the prescribed
manner for a period of not less than
twelve months and not more than
five years, as the relevant executing authority may approve,
provided the said person concludes
the prescribed contract with that
executing authority, whereupon any further extension of his or her
term of office shall, subject
to the provisions of paragraph
(b)
,
take place in accordance with the terms and conditions of that
contract or a further contract, as the case may be.
. . . .
(4) Notwithstanding the
provisions of subsection (2), a contract contemplated in that
subsection may include any term and condition
agreed upon between
the relevant executing authority and the person concerned as to
—
(a) any particular duties of
the head of department;
(b) the specific performance
criteria for evaluating the performance of the head of department;
(c) the grounds upon, and the
procedures according to which, the services of the head of
department may be terminated before the
expiry of his or her term of
office or extended term of office, as the case may be; and
(d) any other matter which may
be prescribed.”
As
section 12(2)(a)
makes it plain, a head of department such as the
applicant is “appointed in the office of the head of department
in the prescribed
manner, on the prescribed conditions and in terms
of the prescribed contract between the relevant executing authority
and such
a person for a period of five years from the date of his
or her appointment, or such shorter period as that executing
authority
may approve.” In terms of
section 1
of the PSA the
executing authority in relation to the office of the President
means the President. And in terms of
section 1
of the PSA
“prescribed” means prescribed by or under the PSA.
Part 1
of
Annexure 2 to the PSA contains an “employment contract prescribed
in terms of Section 12 of the Public Service Act, 1994
(Proclamation No 103 of 1994), for heads of department”
(prescribed contract).
The
prescribed contract sets out the general terms and conditions of
employment applicable to all heads of department. The PSA
contemplates that this is the standard form of contract that will
be entered into with heads of department subject to the variations
contemplated in section 12(4). It is plain from the provisions of
section 12(4) that the legislature contemplates that the President
and the head of the NIA may enter into an agreement setting out any
additional terms and conditions of service including “the
grounds
upon, and the procedures according to which, the services of the
head of [the NIA] may be terminated before the expiry
of his or her
term of office . . . .”
12
Consistently with section 12(4)(c), the prescribed contract also
contemplates such an agreement. It is common cause that no
such
agreement was entered into between the applicant and the President.
Nor did the President and the applicant sign the prescribed
contract.
Notwithstanding
these provisions of the PSA, it was contended on behalf of the
President that the power of the President to alter
the term of
office must be sought exclusively in the provisions of section
209(2) of the Constitution and section 3(3)(a) of
ISA. I am unable
to agree with this contention.
Section
209(2) of the Constitution empowers the President as the head of
the National Executive to appoint the head of the NIA.
Section
3(3)(a) of ISA does no more than repeat the language of section
209(2), saying “[t]he President must appoint a Director-General
for each of the Intelligence Services.” Neither section 209(2)
nor section 3(3)(a) deals with the terms and conditions of
appointment of the head of the NIA. These provisions contemplate
that the term of office and other terms and conditions of

employment pertaining to the head of the NIA will be regulated by
the provisions of the PSA. This much is apparent from the

provisions of ISA and the PSA, in particular the provisions of the
PSA discussed below which were amended by ISA.
First,
the PSA specifically deals with the head of the NIA. It defines
the head of department to include the Director-General
of the NIA.
13
Subsections (2) and (3) of section 7 establish the NIA as a
national department and designate the head of the NIA as the head
of the department.
14
Section 8 of the PSA defines the public service as consisting “of
persons who . . . hold posts at a fixed establishment .
. . in the
Academy, the Agency or the Services.”
15
The head of the NIA is part of the public service because he or
she holds a post at a fixed establishment.
16
What is significant is that the present subparagraph (iii) of
section 8(1)(a) was introduced into the PSA by ISA.
17
In addition, section 6(1) of ISA, which deals with the appointment
of the head of the South African National Academy of Intelligence,
requires the President to appoint the head of the Academy “in
accordance with the Public Service Act, 1994”.
18
Second,
section 2(3) of the PSA, makes it plain that the provisions of the
PSA apply to all persons employed in the Academy, the
Agency or the
Service unless those persons are excluded from its provisions.
19
What is important in this regard is that subsection (3) of section
2 was introduced by ISA. Section 40(1) of ISA repealed,
among
other provisions, section 2 of the PSA by substituting for the old
subsection (3) the present subsection (3).
20
Third,
in terms of section 3B(1)(a) of the PSA, the appointment and other
career incidents of a head of the department, must be
dealt with by
the President.
21
The head of the NIA is the head of the department. Neither this
provision nor section 3(3)(a) of ISA determines the term of
office
or conditions of service. It is section 12(2) of the PSA which
does so. It provides that the term of office shall be
“a period
of five years . . . or such shorter period as [the President] may
approve.” This provision further prescribes
the conditions that
govern the contract of employment of the head of the NIA. This is
apparent from the reference to the appointment
of a head of
department “on the prescribed conditions and in terms of the
prescribed contract . . . .”
Section 12(4)
permits the President and the head of the NIA to agree upon
additional terms and conditions, including those that
will govern
the termination of the services of the head of department prior to
its expiry and the procedure to be followed in
doing so.
Finally,
the provisions of sections 3B(1)(a), 12(2) and 12(4) of the PSA are
not inconsistent with the provisions of ISA. In
addition, as
indicated above, ISA has amended some of the provisions of the PSA
in order to bring the head of the NIA within
the provisions of the
PSA.
22
It is apparent from the provisions of ISA and the PSA that the
manifest purpose of ISA is that the provisions of the PSA would
apply to the head of the NIA to the extent that they are not
inconsistent with the provisions of ISA. Indeed, this is expressly
provided for in section 2(3) of the PSA which was introduced by
ISA. The provisions of section 3B(1)(a) and sections 12(2) and
12(4) of the PSA therefore supplement and complement the provisions
of section 3(3)(a) of ISA. Together, these provisions therefore
give effect to the provisions of section 209(2) of the
Constitution. Indeed the President relied upon section 3(3)(a) of
ISA
read with section 3B(1)(a) of the PSA when he appointed the
applicant to the post. He acted properly in doing so.
In
my judgement the provisions of section 3(3)(a) of ISA, section
3B(1)(a) and sections 12(2) and 12(4)(c) of the PSA must be
read
together as governing the appointment and the terms and conditions
of the employment of the head of the NIA. I am therefore
unable to
agree with the view expressed by Moseneke DCJ
23
that sections 12(2) and 12(4) of the PSA are limited in their scope
of application to manner and form of appointment. In my
view, the
limited scope ascribed to these provisions is not warranted by both
the text and the context in which these provisions
occur. It
follows from this that the contention on behalf of the President
that the power of the President to alter the term
of office of the
head of the NIA must be sought exclusively from section 209(2) of
the Constitution and section 3(3)(a) of ISA,
cannot be upheld.
The
effect of the conduct of the President in purporting to alter the
applicant’s term of office is to remove the applicant
from his
post prior to the expiry of the term of office which is 31 December
2007. In the light of the consequences of the President’s
conduct, the applicant contended that the President does not have
the power to remove him from his post as the head of the NIA
or to
alter his term of office so as to bring his term of office to an
end prior to its expiry date. I propose to address this
submission
first.
It
must be stressed that in these proceedings we are concerned only
with the power to alter the term of office so as to terminate
the
appointment earlier than its original expiry date. This has the
effect of removing the head of the NIA from office.
The
constitutional power of the President to appoint the head of the
NIA is given effect to by section 3(3)(a) of ISA. This provision,
in terms identical to section 209(2) of the Constitution, confers
on the President the power to appoint the head of the NIA.
In
addition, section 3B(1)(a) of the PSA confers on the President the
power to appoint the head of the NIA. This provision,
however,
goes further. It empowers the President to deal with “other
career incidents of the heads of department”. Career
incidents
no doubt includes terms and conditions of the appointment as head
of the NIA.
The
power of the President to remove the head of the NIA from office
Section
84(2)(e) of the Constitution confers on the President the power to
make “any appointments that the Constitution or legislation
requires the President to make, other than as head of the national
executive”. The powers of the President include “those
necessary to perform the functions of Head of State and head of the
national executive”.
24
As head of the national executive, the President has the power to
“appointment a woman or a man as head of each intelligence
service” established under the Constitution.
25
The Constitution also invests the President with the “political
responsibility for the control and direction of any of those
services” established under the Constitution.
26
Under these constitutional provisions, therefore the President has
the constitutional authority to appoint the head of the NIA,
which
is one of the Intelligence Services contemplated in section 209(2)
of the Constitution.
As
section 84(1) makes plain, in addition to the powers expressly
conferred on the President, he has those powers that are necessary
to perform his functions as Head of State and head of the national
executive. The power to appoint the head of the NIA must
necessarily carry with it the power to enter into an agreement with
the head of the NIA which regulates the term of office and
other
conditions of appointment. This power is essential to the power to
appoint. The provisions of section 3B(1)(a) read with
section
12(2) of the PSA expressly recognise this and confer this power on
the President. As pointed out earlier, section 3B(1)(a)
empowers
the President to deal with terms and conditions of appointment of
the head of the NIA. For its part, section 12 empowers
the
President to enter into a contract of service with the head of the
NIA.
Neither
the provisions of the Constitution nor the governing legislation
expressly confer on the President the power to remove
the head of
the NIA from office prior to the expiry of the term of office.
And, notwithstanding the provisions of section 3B(1)(a)
read with
sections 12(2) and 12(4) of the PSA, the President and the
applicant did not enter into any agreement setting out the
terms
and conditions of the applicant’s appointment. All there is, is
a Presidential Minute appointing the applicant as the
head of the
NIA for a fixed period from 1 January 2005 to 31 December 2007.
Section 12(2)(a) of the PSA contemplates a fixed
term of office and
provides that the term of office shall be “a period of five years
. . . or such shorter period as [the President]
may approve”.
It
was contended on behalf of the applicant that the President neither
has the power to remove the head of the NIA from office
nor the
power to alter the term of office of the head of the NIA with the
result that it brings the period of the appointment
to an end
earlier than that agreed upon. It is true, neither the
Constitution nor the relevant legislation expressly confers
on the
President these powers. The existence and scope of these powers
depends on whether, in the first place, they are necessary
for the
performance of his executive function to appoint the head of the
NIA and therefore incidental to the power to appoint
the head of
the NIA, and, in the second place, if they are incidental to the
power to appoint, whether there are any constitutional
constraints
on the exercise of these powers.
Under
section 84(1) of the Constitution, in addition to the powers
expressly conferred on the President, the President has those
powers that are “necessary to perform the functions of Head of
State and head of the national executive”. When the President
appoints the head of the NIA, he does so as head of the national
executive.
27
The question which falls to be determined therefore is whether the
power to remove the head of the NIA from office is incidental
to
the power to appoint.
If
the President cannot remove the head of the NIA from office during
the term of office, even though there may be a need to do
so, this
may well affect the ability of the President to perform effectively
his executive functions as Head of State including
the power to
appoint the head of the NIA. Indeed, without the power to remove
the head of the NIA, the President cannot effectively
“assume
political responsibility for the control and direction of [the
Intelligence Service]” envisaged in section 209(2)
of the
Constitution. The President must place in the head of the NIA
implicit faith. The moment he loses confidence in the
ability,
judgment or loyalty of the head of the NIA, he must have the power
to remove him or her. Otherwise he cannot effectively
perform his
functions as Head of State and head of the national executive. The
power to remove the head of NIA from office is,
in my view,
incidental to the power to appoint. Indeed, the power to remove is
pre-existent in the power to appoint because
the power to remove is
essential to the power to appoint and without the power to remove,
the power to appoint cannot be exercised.
One
of the functions of the President as head of the national executive
is to declare a state of national defence.
28
In executing these responsibilities the President acts on
information placed before him by, amongst others, the Minister on
the strength of intelligence communicated to the Minister by
various services including the NIA. For the effective performance
of these and other important national security functions, the
President relies on the intelligence communicated by the head of
the NIA. In these circumstances the President must have complete
trust in the head of the NIA. When that trust, which is the
foundation of the relationship between the President and the head
of the NIA is eroded, the President must have the power to
remove
the head of the NIA from office. Otherwise the President’s
ability to perform these vital functions as head of the
national
executive may be severely compromised to the detriment of the
country. In these circumstances the power of the President
to
remove the head of the NIA from office or to alter his or her term
of office so as to bring the appointment to an end earlier
than its
expiry date, is necessary for the effective performance of his
functions as head of the national executive and is therefore
incidental to the power to appoint.
It
seems to me to be a sound principle of constitutional or statutory
construction that, in the absence of constitutional or statutory
provisions to the contrary, the power to remove must be considered
to be incidental to the power to appoint. As a matter of
constitutional construction therefore, the power to appoint the
head of the NIA carries with it the power to remove the head
of the
NIA from office when there are lawful reasons to do so. This
principle is foreshadowed in section 84(1) of the Constitution
which provides that the powers expressly conferred on the President
include the powers that are necessary to perform his functions
as
Head of State and head of the national executive.
The
same must be true of the power of the President to alter the term
of office of the head of the NIA. This power is incidental
to the
power to appoint.
It
follows therefore that the contention by the applicant that the
President neither has the power to remove the head of the NIA
from
office nor the power to alter the term of office of the head of the
NIA, must be rejected. It does not follow from this
that there are
no constraints in the exercise of these powers. This brings me to
the alternative contentions advanced on behalf
of the applicant.
In
the alternative, the applicant contended that the exercise of the
power to remove the head of the NIA from office or alter
his or her
term of office is subject to certain constitutional constraints.
It was submitted that the exercise of these powers
is subject to
the rule of law and the requirements of PAJA. Implicit in reliance
upon PAJA is the submission that the exercise
of these powers
constitutes administrative action under section 33 of the
Constitution. It is therefore necessary to consider
the
constitutional constraints applicable to the exercise of the power
to remove from office of the head of the NIA or to alter
the term
of office of the head of the NIA by the President.
Constitutional
constraints on the exercise of public power
Under
our constitutional order the exercise of all public power,
including the exercise of the President’s powers under section
84(2) of the Constitution, is subject to the provisions of the
Constitution which is the supreme law.
29
The Constitution regulates the exercise of public power in
different ways. These include the application of the Bill of
Rights
and other specific provisions of the Constitution which
regulate and control the exercise of particular powers. The right
to
just administrative action is one of the constitutional
constraints on the exercise of public power. The applicability of
the
right to just administrative action as a constitutional
constraint depends upon whether the exercise of the power in
question
amounts to administrative action within the meaning of
section 33 of the Constitution.
Another
source of constraint on the exercise of public power is the rule of
law which is one of the foundational values of our
constitutional
democracy.
30
The rule of law principle requires that the actions of all those
who exercise public power must comply with the law, including
the
Constitution. It is central to the conception of our
constitutional order that those who exercise public power including
the President, are constrained by the principle that they may
exercise only those powers and perform only those functions which
are conferred upon them by the law.
31
Their sole claim to the exercise of lawful authority rests in the
powers allocated to them under the law. The common law principle
of ultra vires is now underpinned by the constitutional doctrine of
legality which is an aspect of the rule of law.
32
Thus what would have been ultra vires under the common law by
reason of a public official exceeding a statutory power is now
invalid according to the doctrine of legality.
In
Affordable Medicines Trust
,
33
we sketched the role of the rule of law as a form of constitutional
control on the exercise of public power as follows:
“
Our constitutional democracy
is founded on, among other values, the ‘(s)upremacy of the
Constitution and the rule of law’.
The very next provision of the
Constitution declares that the ‘Constitution is the supreme law of
the Republic; law or conduct
inconsistent with it is invalid’.
And to give effect to the supremacy of the Constitution, courts
‘must declare that any law
or conduct that is inconsistent with
the Constitution is invalid to the extent of its inconsistency’.
This commitment to the
supremacy of the Constitution and the rule of
law means that the exercise of all public power is now subject to
constitutional
control.
The exercise of public power
must therefore comply with the Constitution, which is the supreme
law, and the doctrine of legality,
which is part of that law. The
doctrine of legality, which is an incident of the rule of law, is
one of the constitutional controls
through which the exercise of
public power is regulated by the Constitution. It entails that both
the Legislature and the Executive
‘are constrained by the
principle that they may exercise no power and perform no function
beyond that conferred upon them by
law’. In this sense the
Constitution entrenches the principle of legality and provides the
foundation for the control of public
power.”
34
(Footnotes omitted.)
In
Pharmaceutical
we had occasion to consider the reach of the
principle of the rule of law as a form of constraint on the
exercise of public power
by the President. The issue arose in the
context of the President’s decision to bring an Act of Parliament
into force in circumstances
where the regulatory base necessary for
the operation of the Act was not in place and other essential
regulations contemplated
by the Act had not been made. The
question for decision was whether a court has the power to review
and set aside a decision
by the President to bring an Act of
Parliament into force.
In
these cases, we held that it is a requirement of the rule of law
that the exercise of public power by the President, who is
part of
the executive branch of government, should not be arbitrary.
35
In order to pass constitutional muster, the exercise of public
power must not be arbitrary. We further held that a decision
that
is not rationally related to purpose for which the power was given
is in effect arbitrary and inconsistent with the rule
of law. We
expressed the principle as follows:
“
It is a requirement of the
rule of law that the exercise of public power by the Executive and
other functionaries should not be
arbitrary. Decisions must be
rationally related to the purpose for which the power was given,
otherwise they are in effect arbitrary
and inconsistent with this
requirement. It follows that in order to pass constitutional
scrutiny the exercise of public power
by the Executive and other
functionaries must, at least, comply with this requirement. If it
does not, it falls short of the standards
demanded by our
Constitution for such action.”
36
(Footnote omitted.)
In
Pharmaceutical
we were of course concerned with the decision
of the President to bring a statute into operation. We were not
concerned with
the procedure followed by the President in bringing
the statute into operation. In this case, we are concerned with
the decision
to alter the term of office of the head of the NIA –
which in effect amounts to removing the head of the NIA from office
–
and the manner in which the President made that decision. The
question which arises for determination in this case is whether
a
court has the power to review and set aside a decision made by the
President on the basis of the manner in which the decision
was
made.
I
have already concluded that the President, in my view, has the
power to remove the head of the NIA from office where there are
lawful reasons to do so. The question presented here is whether
the principle of the rule of law, in particular, the doctrine
of
legality, imposes constraints on how and when the President may
exercise the power to remove the head of the NIA from office
or
alter the term of office of the head of the NIA in a manner that
terminates the appointment earlier than the date of its expiry.

The crisp question for decision is whether the rule of law, in
particular, the doctrine of legality, has a procedural component.
In
the context of our Constitution, the requirement of the rule of law
that the exercise of public power should not be arbitrary
is not
limited to non-rational decisions. It refers to a wider concept
and a deeper principle: fundamental fairness. It does
not only
demand that decisions must be rationally related to the purpose for
which the power was given. The Constitution requires
more; it
places further significant constraint on how public power is
exercised through the Bill of Rights and the founding principle
enshrining the rule of law. Section 33 of the Constitution for
example requires that administrative action must, amongst other
things, be procedurally fair. Section 34 of the Constitution
contemplates a public hearing that is fair. The right to a fair
hearing contemplated in section 34 affirms the rule of law.
37
It
is clear from the provisions of section 33 and 34 that our
Constitution does not immunise from constitutional review decisions
which have been arrived at by a procedure which was clearly unfair.
But does our Constitution adopt a different attitude when
it comes
to the exercise of executive powers and sanction the making of
decisions arrived at by procedures that are clearly unfair?
To my
mind, the answer to this question must be in the negative. It is a
fundamental principle of fairness that those who exercise
public
power must act fairly. In my view, the rule of law imposes a duty
on those who exercise executive powers not only to
refrain from
acting arbitrarily, but also to act fairly when they make decisions
that adversely affect an individual.
One
of the goals that we have fashioned for ourselves in the
Constitution, is the establishment of “a society based on
democratic
values, social justice and fundamental human rights”.
The preamble declares that the Constitution lays the “foundations

for a democratic and open society”. Section 1 of the
Constitution which establishes the founding values of the state,
includes
as part of those values “multi-party system of
democratic government, to ensure accountability, responsiveness and
openness”.
And it is apparent from the Constitution that the
democratic government that is contemplated is a participatory
democracy which
is accountable, transparent and requires
participation in decision-making.
Consistently
with the values of accountability, responsiveness and openness, the
legislature is required to facilitate public
involvement in its
law-making processes.
38
Section 34 requires the judiciary and other tribunals that resolve
disputes through the application of the law to conduct their
proceedings in a fair manner. Institutions of public power whose
actions constitute administrative action are required by the
right
to administrative action to comply with the requirement of
procedural fairness. In my view, it would be incongruous to
free
the executive and other functionaries who exercise public power but
whose conduct does not amount to administrative action
from values
of accountability, responsiveness and openness.
The
power must be exercised in a fair manner. Our “Constitution is
not merely a formal document regulating public power”,
it is a
document which “embodies . . . an objective, normative value
system.”
39
This normative value system is “a fundamental constitutional
value for all areas of law [and it] acts as a guiding principle
and
stimulus for the legislature, executive and judiciary.”
40
The requirement to act fairly is part of this objective normative
value system and must therefore guide the exercise of public
power.
It imposes a duty on decision-makers to act fairly.
Acting
fairly provides the decision-maker with the opportunity to hear the
side of the individual to be affected by the decision.
It enables
the decision-maker to make a decision after considering all
relevant facts and circumstances. This minimises arbitrariness.

There is indeed an inter-relationship between failure to act fairly
and arbitrariness. In this sense, the requirement of the
rule of
law that the exercise of public power should not be arbitrary, has
both a procedural and substantive component. Rationality
deals
with the substantive component, the requirement that the decision
must be rationally related to the purpose for which the
power was
given and the existence of lawful reason for the action taken. The
procedural component is concerned with the manner
in which the
decision was taken. It imposes an obligation on the decision-maker
to act fairly. To hold otherwise would result
in executive
decisions which have been arrived at by a procedure which was
clearly unfair being immune from review. A reasonable
balance
must, however, be maintained between the need to protect the
individual from decisions unfairly arrived at by officials
exercising public power and the contrary desirability of avoiding
undue judicial interference in their administration.
In
First National Bank of South Africa Ltd
, this Court, albeit
in a different context, recognised that the meaning of “arbitrary”
is not limited to non-rational deprivation,
in the sense that there
is no rational connection between the means and the ends.
41
This case concerned the meaning of the word “arbitrary” as
used in section 25 of the Constitution.
42
The Court held that “context is all-important” when
considering the meaning of this word.
43
It held that in the context of section 25(1) it refers to “a
wider concept and a broader controlling principle that is more
demanding than an enquiry into a mere rationality.”
44
Commenting on the procedural aspect the Court held that:
“
De Waal
et al
are of the view that a deprivation ‘is arbitrary’ for purposes
of section 25(1) ‘if it follows unfair procedures, if it is
irrational, or is for no good reason’. The protection against
unfair procedure has particular relevance to administrative action
–
which protection is provided for under s 33 of the Constitution –
but it could also apply to legislation and be relevant
to
determining whether, in the light of any procedure prescribed, the
deprivation is arbitrary.”
45
(Footnote omitted.)
After
a consideration of foreign jurisprudence, the Court concluded:
“
Having regard to what has
gone before, it is concluded that a deprivation of property is
‘arbitrary’ as meant by s 25 when the
‘law’ referred to in s
25(1) does not provide sufficient reason for the particular
deprivation in question or is procedurally
unfair.”
46
There
is further support for the view that in the context of our
Constitution, arbitrary includes failure by the executive and
other
functionaries to act fairly. The duty on the executive and other
functionaries not to use power in an arbitrary manner
flows from
the doctrine of legality, which is an aspect of the rule of law.
But the common law principle of the rule of law
is much broader.
It has a substantive as well as a procedural component. In
Pharmaceutical
, this Court recognised that under the
constitutional principles of the common law the principle of the
rule of law “had a substantive
as well as a procedural content”.
47
The Court
48
quoted with approval the following passage from the work of
De
Smith
,
Woolf
and
Jowell
:
“
The rule of law is another
such principle of the greatest importance. It acts as a constraint
upon the exercise of all power.
The scope of the rule of law is
broad. It has managed to justify—albeit not always explicitly—a
great deal of the specific
content of judicial review, such as the
requirement that laws as enacted by Parliament be faithfully
executed by officials; that
orders of court should be obeyed; that
individuals wishing to enforce the law should have reasonable access
to court;
that no person should be condemned unheard
; and
that power should not be arbitrarily exercised.”
49
(Emphasis added.)
The
procedural aspect of the rule of law is generally expressed in the
maxim
audi alteram partem
(the audi principle). This maxim
provides that no one should be condemned unheard. It reflects a
fundamental principle of fairness
that underlies or ought to
underlie any just and credible legal order.
50
The maxim expresses a principle of natural justice.
51
What underlies the maxim is the duty on the part of the
decision-maker to act fairly. It provides an insurance against
arbitrariness.
Indeed, consultation prior to taking a decision
ensures that the decision maker has all the facts prior to making a
decision.
This is essential to rationality, the sworn enemy of
arbitrariness. This principle is triggered whenever a statute
empowers
a public official to make a decision which prejudicially
affects the property, liberty or existing right of an individual.
52
The
new constitutional order incorporates common law constitutional
principles and gives them greater substance. The rule of
law is
specifically declared to be one of the foundational values of the
new constitutional order. The content of the rule of
law principle
under our new constitutional order cannot be less than what it was
under the common law. It is also clear from
section 39(3) of the
Constitution
53
that “the Constitution was not intended to be an exhaustive code
of all rights that exist under our law”.
54
That they go beyond those expressly mentioned in the Constitution
is patently clear from section 39(3). The common law
constitutional
principles supplement the provisions of the written
constitution but derive their force from the Constitution. These
principles
must now be developed to fulfil the purposes of the
Constitution and the legal order that it establishes. And these
common law
principles must “evolve within the framework of the
Constitution consistently with the basic norms of the legal order
that
[the common law] establishes”.
55
That is why section 39(2) requires that the common law must be
developed and interpreted to promote the “spirit, purport and
objects of the Bill of Rights”.
56
To
sum up therefore, when exercising public power the executive and
other functionaries have a duty to act fairly. This is a
requirement of the rule of law which requires that the exercise of
public power should not be arbitrary. In the exercise of
his power
to remove the head of the NIA from office or to alter the term of
office of the head of the NIA, the President is constrained
by this
requirement.
Fairness,
by its very nature, is a relative concept. What the dictates of
fairness demand will depend on the facts of each particular
case.
The very essence of the requirement to act fairly is its
flexibility and practicability. The precise form and occasion
for
respecting it are matters of flexibility and sensibility and ought
to conform maximally to the exigencies and practicalities
of the
circumstances. In
Zondi
, we said the following of and
concerning procedural fairness:
“
Procedural fairness, by its
very nature, imports the element of fairness. And fairness is a
relative concept which is informed
by the circumstances of each
particular case. In each case the question is whether fairness
demands that steps be taken to trace
the identity of the person
against whom a decision is to be made. It is therefore neither
possible nor desirable to attempt to
define the circumstances where
the dictates of fairness will require the decision-maker to take
steps to ascertain the identity
of the livestock owner.
The question whether fairness
requires the decision-maker to take some steps to ascertain the
identity of the person against whom
the decision is to be made must
be determined with due regard to the circumstances of each case.
The overriding consideration
will always be what does fairness
demand in the circumstances of a particular case. The availability
of information which, with
the exercise of reasonable diligence,
renders it possible to ascertain the identity of a person is a
relevant consideration. So
is the urgency required in making the
decision.”
57
Against
this background, I now turn to consider the contentions of the
parties. It will be convenient at this stage to deal with
the
argument on behalf of the President that the power to unilaterally
alter the term of office of the head of the NIA is implied
in the
Constitution.
Is
the duty to act fairly reconcilable with the implied power to act
unilaterally?
This
Court has adopted the view that “words cannot be read into a
statute by implication unless the implication is a necessary
one in
the sense that without it effect cannot be given to the statute as
it stands”.
58
In addition, such implication must be necessary in order to
“realise the ostensible legislative intention or to make the

[legislation] workable”.
59
Similarly, where the surrounding circumstances point to the fact
that words were deliberately omitted or if the implication
would be
inconsistent with the provisions of the Constitution or the
statute, words cannot be implied. To this must of course
be added
the settled principle of constitutional construction which is this:
where a statute is capable of more than one reasonable
construction, with the one construction leading to constitutional
invalidity, while the other not, the latter construction, being
in
conformity with the Constitution, must be preferred to the former,
provided always that such construction is reasonable and
not
strained.
60
In
my view, there are powerful considerations which militate against
implying the power to unilaterally alter a fixed term of
office of
the head of the NIA that had been agreed upon. First, the asserted
implied power to unilaterally alter a fixed term
of office is
inconsistent with the requirement not to act arbitrarily, an aspect
of the rule of law. Second, the power to alter
unilaterally the
term of office is not necessary for the exercise of the power to
appoint in the sense that without it effect
cannot be given to the
power to appoint. The exercise of the power to alter the term of
office of the head of the NIA after
affording him or her a prior
hearing on the reasons for the proposed alteration of his or her
term of office and on conditions
that will be applicable to the
proposed alteration, cannot render the power to appoint unworkable.
The essence of the duty to
act fairly is its flexibility and
adaptability. As pointed out earlier, what fairness requires of a
decision-maker depends on
the facts of the particular case,
including the urgency required in making the decision.
61
Finally,
it is evident from the provisions of section 12(4)(c) of the PSA
that the framers of the PSA were alert to the fact that
there may
be a need to have the term of office of a head of department
altered so as to terminate the contract prior to its original
expiry date. Consideration was given to the grounds upon, and the
procedure according to which the services of the head of the
department may be terminated before its expiry. The legislature,
however, decided that this is an aspect which should be regulated
consensually by the President and the head of a department in terms
of an agreement. Section 12(4)(c) implicitly, if not explicitly
contemplates an agreement between the head of the NIA and the
President on the grounds on which the term of office may be altered
and on the procedure to be followed in establishing firstly whether
those grounds exist and secondly on the conditions that will
be
applicable to the alteration. This is inconsistent with the
unilateral power to alter the term of office.
In
order to terminate the services of the head of department prior to
their expiry date, section 12(4)(c) contemplates that the
President
and the head of department will follow some form of procedure and
that the termination will be based on some ground.
Under our
constitutional order which is founded on the rule of law, the
reference to a ground for termination implies the existence
of a
lawful reason for the termination of services of a head of
department and thus the requirement of rationality. The reference
to procedure implies a procedure that is fair and thus a duty to
act fairly in making a decision to alter the term of office
so as
to terminate the appointment earlier. This would, at a bare
minimum, entail informing the head of department of the proposed
action and the reasons for it and allowing the head of department
to comment on these matters.
In
my judgement, in envisaging some form of procedure to be followed
in terminating the contract prior to its original expiry
date,
section 12(4)(c), at a bare minimum, contemplates that there will
be consultation between the President and the head of
the NIA on
whether the term of office should be altered in the first place,
and secondly, if it has to be altered, the extent
of the alteration
and the terms and conditions to be applicable to such alteration.
What
must be stressed here is that we are not concerned with the case
where the President and the applicant attempted to reach
the
agreement contemplated in section 12(4)(c) but were unable to
agree. Nor are we concerned with a case where the President
sought
to reach such agreement but the applicant adopted an obstructive
attitude and refused to cooperate. We are concerned
with a case
where the President without any prior notice or warning simply took
a decision to unilaterally alter the terms of
office of the
applicant and terminated the contract prior to its expiration date.
It is not necessary therefore to consider
what are the remedies
that are available to the President where the head of a department
refuses to enter into the agreement
contemplated in section
12(4)(c) of the PSA. That question does not arise here.
It
is true that the relationship between the President and the head of
NIA has a contractual aspect. In exercising the power
to dismiss
the head of the NIA or alter the term of office, the President acts
as the head of a constitutional State and not
as a private employer
who need not listen to any representations and is entitled to act
arbitrarily as he pleases, so long as
he does not break the
contract or has a lawful reason to dismiss or to alter the term of
office. The President receives his
powers from the Constitution
and the applicable statutes and can only act within the constraints
expressed or implied by the
provisions of the Constitution and the
applicable provisions of ISA and the PSA. The contractual element
in the powers of the
President must therefore not be allowed to
obscure the fact that the President’s powers are derived from the
Constitution and
the provisions of the applicable statutes and
therefore subject to constitutional constraints in their exercise.
Nor
should the fact that the President, when he removes the head of the
NIA from office, exercises executive power be allowed
to relieve
him of the duty to act fairly. The reality is that the President
enters into a contract of service with the head
of the NIA under
the provisions of ISA read with the provisions of the PSA. Under
common law, an employer is not permitted unilaterally
to alter the
terms of a service contract with an employee. This would
constitute a breach of contract: the employee has an election
either to withdraw from the contract and sue for damages or hold
the employer to the contract. In the context of labour law,
an
employer may not unilaterally change the terms and conditions of
employment as this constitutes unfair labour practice. Even
in
circumstances where the employer has to effect a change required by
operational requirements, our labour laws require an employer
to
consult with the employees prior to effecting such changes.
62
It would indeed be incongruous to permit a public official who
exercises executive powers to alter unilaterally the terms and
conditions of employment of an employee with whom he or she has
entered into a contract of service.
For
all these reasons the power to unilaterally alter the term of
office of the applicant cannot therefore be implied as contended
on
behalf of the President. On the contrary, in my view, the
President was obliged to comply with the duty to act fairly in
making the decision to alter the term of office of the applicant.
It now remains to consider what the duty to act fairly in
this case
entailed and whether the President complied with that duty.
Did
the President act fairly in making his decision?
The
President altered the term of office because in his view an
irreparable breakdown of the trust relationship had occurred.
The
President’s subjective view was based on the events that unfolded
after the discovery of the “Macozoma affair”. These
events
were evolving. It is clear from the papers that once the President
had formed the view that the relationship between
him and the
applicant had broken down and had decided to relieve the applicant
of his duties, he sought advice from the Minister
for Public
Service and Administration “on how best [to] go about this
considering laws that apply to service benefits for heads
of
departments.” The President did this because he “was concerned
that the decision be effected in a more humane manner
considering
the Applicant’s long service in the Public Service.”
But
where the President went wrong was in failing to consult the
applicant on these issues. Manifestly, these are the very issues
on which the applicant should have been consulted. The duty to act
fairly requires that these issues should have been explored
with
the applicant. Indeed these are matters which section 12(4)(c) of
the PSA contemplates would be agreed upon between the
President and
the applicant. The President had ample opportunity to consult the
applicant. There is no suggestion in the papers
that promptitude
was essential.
Compliance
with the duty to act fairly required the President to convey to the
applicant that he was of the view that the relationship
of trust
between him and the applicant had broken down irreparably and that
for that reason he was contemplating altering the
applicant’s
term of office so as to terminate the appointment earlier. The
applicant should have been given an opportunity
to comment on these
matters. The applicant had had a long service in the Public
Service. As the President was rightly concerned,
the decision to
remove him from office had to be “effected in a more humane
manner” considering the applicant’s long service
in the Public
Service. These very same concerns, in my view, triggered the duty
to act fairly in making the decision to remove
the applicant from
office.
The
applicant should have been consulted not only on the question
whether the relationship of trust has broken down but also on
the
terms and conditions that would apply to the termination of the
contract. The fact that the applicant may have had little
or
nothing to urge in his own defence is a factor alien to the enquiry
whether he is entitled to a prior hearing. It cannot
be an answer
therefore to suggest that a fair hearing could not have made a
difference to the result. The duty to act fairly
is a vital one.
As this Court pointed out in
Zondi
:
“
It is a fundamental element
of fairness that adverse decisions should not be made without
affording the person to be affected by
the decision a reasonable
opportunity to make representations. A hearing can convert a case
that was considered to be open and
shut to be open to some doubt,
and a case that was considered to be inexplicable to be fully
explained. The reasonable opportunity
to make representations can
generally be given by ensuring that reasonable steps are taken to
bring the fact of the decision-making
to the attention of the person
to be affected by the decision.”
63
(Footnote omitted.)
The
fact that the applicant had ample occasion to respond to the
allegations that were made against him in relation to the “Macozoma
affair” and that prior to the termination of the contract the
applicant had audience with the President where the President
expressed his views on the “Macozoma affair” and his
dissatisfaction with the findings of the IGI investigation, does
not,
in my view, meet the requirement of the audi principle as
Moseneke DCJ suggests.
64
What was required was for the President, once he had formed a
subjective view to alter the term of office of the applicant,
at
that point in time to afford the applicant the opportunity to make
representations firstly on whether the term of office should
be
altered and, if so, the terms and conditions that should be
applicable to that alteration of his term of office. This he
failed to do. And in doing so, the President fell foul of the duty
to act fairly which is an aspect of the rule of law.
I
am mindful of the fact that there may be special circumstances
which would justify a public official, acting in good faith,
to
take action even if the person affected by the decision has not
been afforded an opportunity to correct or controvert any
prejudicial information. A special circumstance which comes to
mind is when a decision has to be given as a matter of urgency,
when promptitude is essential. So too is a situation where the
conduct of the person to be affected is obstructive. There was
no
suggestion in this case that there was an urgent need to act, nor
is there is any evidence on record to that effect. In addition,
there is nothing to show that the applicant was obstructive.
Accordingly,
I hold that the President had no power to unilaterally alter the
applicant’s term of office so as to terminate
the employment
contract prior to its expiry date. On the contrary, the President
was required by the duty to act fairly to consult
the applicant
prior to taking the decision to alter the term of office of the
applicant. In all the circumstances, the President
acted beyond
his powers conferred by provisions of section 209(2) of the
Constitution and section 3(3)(a) of ISA read with sections
3B(1)(a)
and 12(2) and 12(4)(c) of the PSA and therefore in breach of
doctrine of legality. His conduct was therefore inconsistent
with
the Constitution and falls to be declared as such in terms of
section 172(1)(a) of the Constitution.
In
view of this conclusion, it not necessary to consider the further
argument on behalf of the applicant based on PAJA.
It
now remains to consider the appropriate remedy.
Remedy
The
powers of this Court when deciding a Constitutional matter are set
out in section 172(1) of the Constitution which provides:
“
When deciding a
constitutional matter within its power, a court
—
(a) must declare that any law
or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency;
and
(b) may make any order that is
just and equitable, including—
(i) an order limiting the
retrospective effect of the declaration of invalidity; and
(ii) an order suspending the
declaration of invalidity for any period and on any conditions, to
allow the competent authority to
correct the defect.”
Pursuant
to section 172(1)(a), it follows therefore that an order must be
made declaring the conduct of the President inconsistent
with the
Constitution and thus invalid.
In
terms of section 172(1)(b) of the Constitution, this Court may
“make any order that is just and equitable” as part of the
relief. The requirement of just and equitable means that the
remedy must be fair and just in the circumstances of the particular
case.
65
Fairness in this case requires a consideration of a triad
consisting of the interests of the applicant, the interests of the
President as the head of the national executive and the public
interest.
66
All these interests converge in the requirement of trust which is
fundamental to the relationship between the head of the NIA
and the
President, who is the Commander-in-Chief of the defence force.
67
What is required is a careful balancing of these various
interests.
In
a different but relevant context, in
Hoffmann
, we said the
following:
“
The determination of
appropriate relief, therefore, calls for the balancing of the
various interests that might be affected by the
remedy. The
balancing process must at least be guided by the objective, first,
to address the wrong occasioned by the infringement
of the
constitutional right; second, to deter future violations; third, to
make an order that can be complied with; and fourth,
of fairness to
all those who might be affected by the relief. Invariably, the
nature of the right infringed and the nature of
the infringement
will provide guidance as to the appropriate relief in the particular
case. Therefore, in determining appropriate
relief, ‘we must
carefully analyse the nature of [the] constitutional infringement,
and strike effectively at its source’.”
68
(Footnote omitted.)
The
applicant is entitled to the most effective remedy that will place
him in the same position that he would have been but for
the
conduct that is inconsistent with the Constitution. Ordinarily,
that remedy is re-instatement in his former position as
the
Director-General of the NIA. But is re-instatement a just and
equitable order in the circumstances of this particular case?
Factors
that are relevant to this question include the nature of the
relationship between the President and the applicant as head
of the
NIA; whether the President and the applicant can still work
together; the balance of the contract period; the desirability
of
re-instating the applicant in his former position; and the need to
place the applicant in the same position that he would
have been
but for the violation of the Constitution. This involves the
balancing of all these factors bearing in mind that the
ultimate
goal is to make an order that is just and equitable.
Now
the President is the Commander-in-Chief of the defence force.
69
And as head of the national executive he may declare a state of
national defence.
70
He executes this constitutional responsibility on information
placed before him by, among others, the Minister on the strength
of
intelligence, communicated to the Minister by various intelligence
services including the NIA. In the performance of these
functions
the President therefore may have to rely on the intelligence
communicated by the head of the NIA. He may have to exchange
highly sensitive information with the head of the NIA. In these
circumstances the President must have complete trust in the
head of
the NIA. The same goes for the head of the NIA. There should be
an absolute trust between the President and the head
of the NIA.
Otherwise, the security of our country may be compromised. Trust
is therefore fundamental to the relationship between
the President
and the applicant.
Regrettably,
on the record before us, the relationship between the President and
the applicant has deteriorated at least since
the “Macozoma
affair” broke out. One need only have regard to the allegations
and counter allegations made in the papers.
The subjective views
of the President on the state of the relationship between him and
the applicant bear testimony to this.
The applicant, while
accepting that the relationship between him and the President has
deteriorated nevertheless believes it
may still be repaired. This
implicit acknowledgement of the breakdown in the relationship by
the applicant serves to confirm
the state of the relationship.
Viewed objectively therefore the relationship of trust between the
applicant and the President,
which is fundamental to the
relationship between the head of the NIA and the President, has
dropped to its lowest ebb. And in
my view, it has broken down
irreparably. It is not necessary to consider who is responsible
for this breakdown. It is sufficient
to hold that, viewed
objectively, the relationship has indeed broken down.
Given
this state of relationship, it would be too much to expect of human
nature to require that the applicant and the President
must again
work together in the context of a relationship which demands mutual
trust. On the record, nothing suggests that the
applicant and the
President can again restore mutual trust. Building trust in one
another is a process. Even if the mutual
trust between the
President and the applicant could be restored, that would require
time. Having regard to the state of relationship
between the
President and the applicant at present, I doubt whether the few
months that are remaining before the contract expires
will be
sufficient for that process. This too, is a matter that cannot be
ignored in determining what is just and equitable.
In
all the circumstances, re-instatement will neither serve the
interests of the applicant nor those of the President. Nor will
it
serve that of the public which has an interest in the mutual trust
between the President and the applicant.
There
are further considerations which are relevant in this regard. The
applicant through no fault of his has been out of office
since
about 20 October 2005. What is more, his term of office expires in
a few months. The second respondent, has been in office
for some
time now. While these factors standing alone are no reason to
refuse re-instatement to the applicant, they acquire
some
significance when viewed in the context of the relationship of
trust which has admittedly irretrievably broken down.
On
the other hand, the applicant is entitled to be afforded a relief
that will address the violation that has occurred. The most
effective manner to achieve this is to put the applicant in the
same position that he would have been but for the unconstitutional
conduct.
Balancing
all these factors, and bearing in mind that the ultimate goal is to
make an order that is just and equitable, the appropriate
order to
make is not to re-instate the applicant in his former position but
to put him in the same financial position that he
would have been
had his contract run until 31 December 2007. What this entails is
that he must receive the monetary equivalent
of all the benefits
that he would have received if he had remained physically in
employment until 31 December 2007. These benefits
must include
benefits that he received in kind such as the benefit of occupying
the official residence. The benefits that are
in kind can be
converted into monetary value. In the event of any dispute as to
the monetary value of any benefit that were
offered to him in kind,
such a dispute can be resolved by a court of competent
jurisdiction.
Before
concluding this judgment, there are two matters that remain to be
considered. The first relates to the applicant’s suspension,
the
other is whether there are any factual issues that should be
referred for oral evidence. In view of the conclusion that
I have
reached on the challenge to the alteration of the term of office,
and the order I propose to make in that regard, the
question of the
applicant’s suspension has become moot. In addition, it becomes
unnecessary to consider whether there are
any factual issues that
should be referred for oral evidence.
Costs
This
is a case in which costs should follow the event. Such costs of
course must include those that are consequent upon the employment
of two counsel.
Order
In
the event I would have made the following order:
Leave
to appeal against the decision of the Pretoria High Court is
granted.
The
appeal is upheld and the order of the High Court is set aside and
is replaced with the order set out below.
The
decision of the President to alter the term of office of the
applicant which had the effect of terminating the applicant’s
contract of employment on 22 March 2006 is declared inconsistent
with the Constitution and therefore invalid.
It
is not just and equitable that the applicant be re-instated in his
former position as the head of the National Intelligence
Agency.
The
applicant must be placed in the same position financially in which
he would have been had his contract expired on 31 December
2007.
For
the purposes of the order in paragraph (e) any benefits that the
applicant enjoyed by reason of his employment as the head
of the
National Intelligence Agency which were paid in kind must be
converted into monetary value.
In
the event of any dispute as to the monetary value of any benefit
that the applicant enjoyed, any party may refer the dispute
to a
court of competent jurisdiction.
No
order is made on the application to set aside the suspension of
the applicant.
The
President is ordered to pay the costs of these proceedings
including the costs consequent upon the employment of two counsel.
Madala
J concurs in the judgment of Ngcobo J.
SACHS J:
I
support the order proposed by Moseneke DCJ and much of his
reasoning. I agree that the power both to appoint and to dismiss
the head of the National Intelligence Agency (NIA) is derived from
the Constitution. I differ, however, in relation to the extent
to
which his judgment applies ordinary incidents of contract law to
the consequences of the breakdown of the relationship between
the
President and Mr Masetlha. To my mind, the relationship
between the President and the head of the NIA is at all times
suffused with a constitutional dimension. I do not believe that
the scant contractual details in this matter govern the issues
raised, but rather that the case must be decided in the context of
a constitutionally-controlled public power having been exercised.
The
relationship at issue is different from that which the President
would have with, say, his private secretary, or his gardener,
where
the ordinary incidents of contract law within a public
administration legal regime could play a major role. It is a

relationship created in a constitutional setting; its fundamental
content is dictated by performance of identified constitutional
responsibilities; its possible modes of termination are governed by
constitutional criteria; and, I believe, the consequences
of
termination should be regulated by constitutional requirements. In
this respect, I agree with the broad approach to legality
adopted
by Ngcobo J, though I do not accept his finding that the contract
with Mr Masetlha was unlawfully terminated because
of a lack of
prior consultation.
The
starting point of my enquiry is the sui generis (of its own special
kind) nature of the relationship between the President
and the head
of the NIA. The Constitution expressly empowers the President, as
the head of the national executive, directly to
appoint three
functionaries, each with a leading role to play in security: the
National Director of Public Prosecutions,
1
the National Commissioner of Police
2
and the head of the NIA.
3
It will be noted that in contrast to the President’s power in
relation to Cabinet Ministers, the power to appoint these three
functionaries is not coupled with an express power to dismiss.
4
This suggests a qualitative distinction based on the fact that the
three are not purely political appointees placed in positions
of
governmental leadership. Rather, they are important public
officials with one foot in government and one in the public

administration. Members of Cabinet know that they are hired and
can be fired at the will of the President; and if fired, they
can
mobilise politically, go to the press, even demonstrate outside
Parliament, and hope to muster support for themselves at
the next
congress of their party.
As
public officials the three special appointees do not have any
equivalent political remedies. Nor can they invoke the
Promotion
of Administrative Justice Act (PAJA
),
5
which excludes them from its reach.
6
The Labour Relations Act (LRA)
7
shuts out the members of the NIA from its protection.
8
Presumably it would be regarded as invidious in their case to
employ the processes concerning unjust administrative action or
unfair dismissal under the LRA; secrets of state would be in
jeopardy of being uncovered. The provisions of the
Intelligence
Services Act (ISA
),
9
and regulations made under them, appear not to be helpful. Many of
the regulations are in fact so secret that even a court of
law
would not ordinarily have access to them.
10
Depending
on how it is used, the Public Services Act (PSA)
11
might or might not provide some protection against arbitrary
dismissal. The PSA allows for terms and conditions of appointment
to be prescribed, without laying down what these must be.
12
In the present case the reality is that no terms and conditions
were prescribed. Not even a skeleton. All that existed was
a
letter of appointment for an identified post for a fixed term. Yet
it cannot be that in a constitutional state, the secret
service is
so secret that its functioning takes place outside the realm of
law. Our Constitution eschews autocracy, and it is
unthinkable
that a senior public figure straddling the divide between the
public administration and government, and expressly
commanded to
work within the law,
13
should be obliged him- or herself to function in a legal void
without any rights at all.
Moseneke
DCJ would fill the vacuum by invoking the ordinary principles of
contract law. In my view, however, the equivalent of
terms and
conditions should be inferred in each case from the special nature
of the specific relationship between the President
and the
appointees established by the Constitution, in this case the head
of the NIA. At the very heart of the special relationship
is the
need for confidence on the part of the President in the
dependability of the intelligence passed on to him. Once the
basis
of that reliance evaporates, the whole foundation of the
relationship disappears. Extremely delicate matters of state
might
be involved. Decisions on matters of great public moment could
depend on the value of the intelligence provided. A great
deal of
subjective discretion is therefore necessarily built in to the
appreciation by the President of the work of the head
of the NIA.
Absent the trust, the core of the relationship is negated.
14
The
issue presented by this case, then, is not based on something on
which the President did not rely, namely, an allegation of
breach
of contract by Mr Masetlha. The basic question is whether the
substratum of the relationship had vanished, entitling
the
President to terminate the appointment because its primary purpose
and raison d’être (reason for coming into existence)
had
been obliterated. In my view, the facts show that it had,
entitling the President to revoke the appointment.
In
the circumstances, then, I would hold that the President was
lawfully entitled to amend the terms of the appointment to bring
it
to an immediate end. This does not mean that Mr Masetlha had
been without any protection at all. He never lost his
right to a
fair labour practice. Though the mechanisms established by the LRA
were not available to him, he was still entitled
under section 23
of the Constitution to be treated fairly.
15
Fairness in the circumstances was largely dictated by the nature
of the work to be performed and the wide discretion given to
the
President to determine whether the requisite degree of trust had
been destroyed. Had the loss of trust been based on wholly
irrational factors unrelated to functions or performance, such as
phobic horror at seeing a functionary wearing brown shoes with
a
dark suit, the dismissal would have been manifestly arbitrary and
unfair. But short of such irrational motivation, the fairness
of
the termination itself must be seen as having flown from the fact
that the basic confidence that the President needed for
the
relationship to continue had been irretrievably lost. Revocation
of the appointment in these circumstances was accordingly
not
unfair, and the President could then lawfully terminate the
relationship.
I
would hold, then, that painful as it was for Mr Masetlha, and
aggrieved as he felt that he had not had sufficient opportunity
to
present his side of the matter, the President acted within his
powers in ending Mr Masetlha’s stewardship of the NIA, even
if he
did so in a rather summary way. I should add, however, that had
the President relied on misconduct or other forms of breach
of the
relationship, then, absent extreme urgency, fairness would have
dictated that an appropriate form of prior hearing be
given. But
he did not base the termination on breach, and in this respect I
differ from Ngcobo J’s assessment that the principle
of a right
to a prior hearing applied in the circumstances of this case.
Fairness
of the termination, however, is not the end of the enquiry.
Fairness required that in the absence of fault being alleged
and
established, Mr Masetlha should not be deprived of the material
benefits he would have received had the relationship proceeded
to
full term. This was in fact attended to on what were referred to
as compassionate grounds. In my view, more than compassion
was
involved — the President was legally bound to pay out Mr Masetlha
for the remainder of his term.
There
is one extra element of fairness that needs attention. I believe
that fairness required that Mr Masetlha be consulted
on the
manner in which the termination was to be publicly communicated.
Fairness to an incumbent about to be relieved of a high
profile
position in public life presupposes the display of appropriate
concern for the reputational consequences. People live
not by
bread alone; indeed, in the case of career functionaries,
reputation and bread are often inseparable.
And
I would add that it was not only the material benefits and the
standing of the incumbent that had to be considered. The general
public too had an interest. Constitutionally-created institutions
need constantly to be nurtured if they are to function well.
This
requires that those who exercise public power should avoid wherever
possible acting in a manner which may unduly disturb
public
confidence in the integrity of the incumbents of these
institutions.
In
this regard, it is my view that fair dealing and civility cannot be
separated. Civility in a constitutional sense involves
more than
just courtesy or good manners. It is one of the binding elements
of a constitutional democracy. It presupposes tolerance
for those
with whom one disagrees and respect for the dignity of those with
whom one is in dispute. Civility, closely linked
to ubuntu-botho,
is deeply rooted in traditional culture, and has been widely
supported as a precondition for the good functioning
of
contemporary democratic societies.
16
Indeed, it was civilised dialogue in extremely difficult
conditions that was the foundation of our peaceful constitutional

revolution. The Constitution that emerged therefore presupposes
that public power will be exercised in a manner that is not

arbitrary and not unduly disrespectful of the dignity of those
adversely affected by the exercise.
I
should stress that I make these observations in general terms in
order to establish what fairness in principle requires in matters
such as these. This judgment does not require us to take any
position on the hotly-contested factual disputes referred to in
the
papers, and I expressly refrain from doing so.
I
would conclude, then, as follows: given the loss of trust bearing
on the central task of the head of the NIA, as is evident
from the
papers, the termination by the President of the appointment of Mr
Masetlha as head of the NIA was not unlawful; the
offer to pay him
out for the balance of the period of his appointment should not be
characterised as an act of grace or compassion,
but as compliance
with a legal obligation; and to the extent that any reputational
damage to Mr Masetlha might have been
caused by the manner in
which the proceedings unfolded, the judgments in this matter
establish that the basis for the termination
of Mr Masetlha’s
incumbency was simply an irretrievable breakdown of trust, and not
dismissal for misconduct.
For the Applicant: Advocate N Tuchten SC and Advocate M Chaskalson
instructed by Haffegee Savage Attorneys.
For the First Respondent: Advocate IAM Semenya SC and Advocate L
Gcabashe instructed by The State Attorney, Pretoria.
1
Act 65 of
2002.
2
Act 103
of 1994.
3
See para [31] below on the applicable constitutional
and legislative framework.
4
The powers and duties of the Inspector-General of
Intelligence are prescribed by section 7(7) of the Committee of
Members of Parliament
on and Inspectors-general of Intelligence Act
40 of 1994 (Intelligence Services Oversight Act). Important powers
and duties include,
inter alia, monitoring compliance by any
intelligence service with the Constitution, applicable laws and
relevant policies on intelligence
and counter-intelligence;
reviewing the intelligence and counter-intelligence activities of
any intelligence service and performing
functions designated to him
or her by the President or any Minister responsible for a service.
The Agency is an intelligence service
as defined in section 1 of
this Act.
5
The applicant did not proceed with this application.
Its remaining relevance is that the papers in that application were
incorporated
by reference to the papers before the High Court in the
second suspension application.
6
Section 101 of the Constitution provides:
“
(1) A
decision by the President must be in writing if it–
(a) is taken in terms of legislation; or
(b) has legal consequences.
(2) A written decision by the President must be
countersigned by another Cabinet member if that decision concerns a
function assigned
to that other Cabinet member.”
7
Section 37 of the PSA provides for the remuneration of
officers and employees. Section 37(2) states the following:
“
Subject
to such conditions as may be prescribed—
. . . .
(d) any special service benefit may be granted to a
head of department or class of heads of department before or at the
expiry of
a term contemplated in section 12(1)(a) or (b), or any
extended term contemplated in section 12(1)(c), or at the time of
retirement
or discharge from the public service.”
8
Act 3 of 2000.
9
In
National Coalition for Gay and Lesbian Equality
and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at fn 18, the following was held:
“
A
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the
Court is
to avoid giving advisory opinions on abstract propositions of law.”
In
Independent Electoral Commission
v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) at para 11, this Court held that it retains a discretion to
decide issues on appeal even if they no longer present existing
or
live controversies, having regard to what the interests of justice
require. The question is whether a judgment will have a
practical
effect on the parties or on others. See also
JT Publishing (Pty)
Ltd and Another v Minister of Safety and Security and Others
[1996] ZACC 23
;
1997
(3) SA 514
(CC);
1996 (12) BCLR 1599
(CC) at para 15; and
Laugh
It Off Promotions CC v SAB International (Finance) BV t/a Sabmark
International (Freedom of Expression Institute as
Amicus Curiae
)
[2005] ZACC 7
;
2006 (1) SA 144
(CC);
2005 (8) BCLR 743
(CC) at para 30.
10
The interpretation of the Constitution and legislation
enacted to give effect to the Constitution give rise to
constitutional issues.
See, for example,
Alexkor Ltd and Another
v The Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) at para 23;
National Education Health
and Allied Workers Union v University of Cape Town and Others
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at paras 14-15;
Department of Land Affairs and Others v Goedgelegen Tropical
Fruits (Pty) Ltd
CCT 69/06, 6 June 2007, as yet unreported, at
para 31.
11
Section 198(a) of the Constitution.
12
Section 199 of the Constitution provides:
“
(1) The security services of the Republic consist of
a single defence force, a single police service and any intelligence
services
established in terms of the Constitution.
.
. . .
(4) The security services must be structured and
regulated by national legislation.”
13
Section 198(c) of the Constitution provides: “National security
must be pursued in compliance with the law, including international
law.”
14
Section 199(5) of the Constitution provides:
“
The
security services must act, and must teach and require their members
to act, in accordance with the Constitution and the law,
including
customary international law and international agreements binding on
the Republic.”
15
Section 209(1) of the Constitution provides:
“
Any
intelligence service, other than any other divisions of defence
force or police service, may be established only by the President,
as head of the national executive, and only in terms of national
legislation.”
16
The full text of section 209(2) of the Constitution appears in para
[22] above.
17
The
Intelligence Services Act 38 of 1994
preceded ISA.
ISA had the effect of repealing certain provisions of, inter alia,
the PSA; the
Labour Relations Act 66 of 1995
; the
Basic Conditions
of Employment Act 75 of 1997
; the
Employment Equity Act 55 of 1998
and the
Medical Schemes Act 131 of 1998
.
18
Section 3
of ISA provides:
“
(1) The National Intelligence Agency and the South
African Secret Service continue to exist and consist of the persons—
(a) who became members in terms of the Intelligence
Services Act, 1994 (Act No. 38 of 1994), whose names appear on the
personnel
list;
(b) appointed as members in terms of the
Intelligence
Services Act, 1994
, after its commencement;
(c) appointed as members in terms of this Act after its
commencement.
(2) A former member of a non-statutory service may
apply to have his or her years of service in a non-statutory service
recognised
for purposes of pension benefits, subject to the
provisions of the Government Employees Pension Law, 1996
(Proclamation No. 21
of 1996), if he or she became a member of the
Agency or the Service between 1 January 1995 and 31 March 2004.
(3) (a) The President must appoint a Director-General
for each of the Intelligence Services.
(b) A Director-General is the head and accounting
officer of the Intelligence Service in question.”
19
Intelligence Services Regulations, published under GN
R1505 in GG 25592 of 16 October 2003.
20
Section 8 of ISA provides:
“
(1) The
Minister may, subject to this Act—
(a) appoint any person as a member of the Intelligence
Services or the Academy;
(b) promote, discharge, demote or transfer any member:
Provided
that such appointment, promotion, discharge, demotion or transfer in
respect of a Deputy Director-General or equivalent
post may only be
effected in consultation with the President.
(2) A prescribed document signed by the Minister and
certifying that any person has been appointed as a member is prima
facie proof
that such person has been so appointed.”
21
The PSA took effect in 1994 and was passed under the
interim Constitution. The definition of “Constitution” was
substituted
by section 1(d) of
Public Service Laws Amendment Act 47
of 1997
. In terms of this section, references to the Constitution
in the PSA were made to relate to the final Constitution, ensuring
its
continued validity.
22
Employment contracts for heads of departments are
provided for in section B.2 contained in Part VII of Chapter 1 of
the Regulations,
made under section 41 of the PSA by the Minister of
Public Service and Administration and published as the Public
Service Regulations
under GN R1 in GG 21951 of 5 January 2001, with
effect from 1 January 2001, unless otherwise indicated.
23
The prescribed contract form is set out in Part 1 of Annexure 2 of
the Regulations.
24
The text of section 3B(1)(a) is contained in para [39]
above. Section 3B(2) refers to the President, as indicated in
section 3B(1)(a),
as the relevant executing authority.
25
Act 66 of 1995.
26
Section 2(b)
of the
Labour Relations Act states
that this Act is not
applicable to members of the Agency.
27
Act 75 of 1997. Section 3(1) of this Act states:
“
This
Act applies to all employees and employers except—
(a) members of the National Defence Force, the National
Intelligence Agency and the South African Secret Service . . . .”
28
See Intelligence Services Regulations above n 19.
29
In the President’s answering affidavit in the High
Court, he deemed it in the best interests of the applicant and the
state, for
the reasons that appeared in the affidavit of Minister
Fraser-Moleketi, that the applicant’s benefits should, as far as
legally
permissible, be maintained as if his contract of employment
had run its full course.
30
The text of section 12(4) of the PSA is contained in
para [54] above.
31
Transnet Ltd v Rubenstein
2006 (1) SA 591
(SCA);
[2005] 3 All SA 425
(SCA) at para 18;
Alfred McAlpine &
Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA
506
(A) at 531E-532A;
Pan American World Airways Incorporated v
SA Fire Accident Insurance Co Ltd
1965 (3) SA 150
(A) at 175C.
32
Above n 25.
33
See para [31] above. It should be noted further that
the PSA does not claim to cover the entire field. On its own terms,
its application,
however complementary, is subject to other
legislative provisions which establish the Agency.
34
Minister of Education v Harris
2001 (4) SA 1297
(CC);
2001 (11) BCLR 1157
(CC) at para 18.
35
Hoexter in
Administrative Law in South Africa
(Juta
and Co, Cape Town 2007) at 326 describes this right as being
“concerned with giving people an opportunity to participate
in the
decisions that will affect them, and – crucially – a chance of
influencing the outcome of those decisions.”
36
[1989] ZASCA 90
;
1989 (4) SA 731
(A).
37
Id at 748G. See also
Minister of Health, KwaZulu,
and Another v Ntozakhe and Others
[1992] ZASCA 209
;
1993 (1) SA 442
(A);
Administrator, Transvaal and Others v Zenzile and Others
1991
(1) SA 21
(A);
Administrator, Natal and Another v Sibiya and
Another
[1992] ZASCA 115
;
1992 (4) SA 532
(A); and
Van Coller v Administrator,
Transvaal
1960 (1) SA 110
(T), in which the audi maxim was
applied to a public employee before he or she was dismissed.
38
Zenzile
id at 34B-D, 34J-35B, 35H–36A, 37G.
39
The national powers and functions specifically
excluded from the definition of PAJA are listed in section 1 with
reference to relevant
constitutional provisions. The President’s
powers under section 85(2), particularly those included in section
85(2)(e) of the
Constitution, are expressly excluded in section
1(i)(aa) of PAJA. In
President of the Republic of South Africa
and Others v South African Rugby Football Union and Others
2000
(1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) at paras 141-143
(SARFU)
,
this Court distinguished between executive and administrative
action. It held that the power in question was conferred upon the
President and that it was an original power, derived directly from
the Constitution. Hoexter above n 35 at 212 argues that the
meaning
of “executive” in section 1(i)(aa) of PAJA has the effect of
excluding “only distinctively political decisions and
not
characteristically administrative tasks such as implementing
legislation.” See also
Pharmaceutical Manufacturers
Association of SA and Another: In re Ex Parte President of the
Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000
(3) BCLR 241
(CC) at para 78; and
Grey’s Marine Hout Bay (Pty)
Ltd and Others v Minister of Public Works
and Others
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA);
2005 (10) BCLR 931
(SCA) at para 27.
40
Premier, Mpumalanga, and Another v Executive
Committee, Association of State-Aided Schools, Eastern Transvaal
[1998] ZACC 20
;
1999 (2) SA 91
(CC);
1999 (2) BCLR 151
(CC).
41
Id at para 41.
42
See
Pharmaceutical Manufacturers
above n 39 at
para 85 and
Prinsloo v Van der Linde and Another
[1997] ZACC 5
;
1997 (3) SA
1012
(CC);
1997 (6) BCLR 759
(CC) at para 25.
43
SARFU
above n 39 at para 148.
44
Affordable Medicines Trust and Others v Minister of
Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC)
at paras 49, 75 and 77.
45
Section 10(1) of ISA states:
“
The
Director-General concerned or the Chief Executive Officer must,
subject to the directions of the Minister and this Act, exercise
command and control of the Intelligence Services or the Academy, as
the case may be.”
46
In essence, the applicant in this matter is seeking
specific performance of a service contract. Christie in
The Law
of Contract
4 ed (Butterworths, Durban 2001) at 606 defines
specific performance as, inter alia, an order to perform a specific
act or to pay
money in pursuance of a contractual obligation.
Analogously,
section 193
of the
Labour Relations Act contemplates
re-instatement, re-employment or compensation for dismissals that
are found to be unfair. See also
Schierhout v Minister of
Justice
1926 AD 99
and
Rogers v Durban Corporation
1950
(1) SA 65
(D).
47
Christie id at 614. See also
Schierhout
id at 107 and
Rogers
id at 65.
48
SARFU
above n 39 at paras 240-245.
49
Id at para 20. See
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-I and
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA
1155
(T) at 1162. See also
Pereira and Others v First Rand Bank
Ltd and Others
[2002] JOL 10121
(W); and
Shoprite Holdings
Ltd v Oblowitz and Others
[2006] 3 All SA 491
(C) at 500F-501H.
50
SARFU
above n 39 at para 243.
51
Section 172(1) of the Constitution provides:
“
When
deciding a constitutional matter within its power, a court—
must
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
may
make any order that is just and equitable, including—
an
order limiting the retrospective effect of the declaration of
invalidity; and
an order suspending the declaration of invalidity for
any period and on any conditions, to allow the competent authority
to correct
the defect.”
1
Proclamation No 103 of 1994.
2
Act 65 of 2002.
3
Paras [66]-[72] of Moseneke DCJ’s judgment.
4
Para [84] of Moseneke DCJ’s judgment.
5
Administrator, Transvaal, and Others v Zenzile and Others
1991 (1) SA 21
(A).
6
See below para [143].
7
See below para [146].
8
Act 3 of 2000.
9
Section 26(3) provides:
“
No one may be evicted
from their home, or have their home demolished, without an order of
court made after considering all the relevant
circumstances. No
legislation may permit arbitrary evictions.”
10
Section 85(2)(e) provides:
“
The President exercises the executive authority,
together with the other members of the
Cabinet,
by performing any other executive function provided for in the
Constitution or in national legislation.”
11
In terms of section 1 of the PSA read with sections 1
and 3 of ISA, “Agency” means the National Intelligence Agency
referred
to in ISA.
12
Section 12(4)(c) of the PSA.
13
See section 1 read with Schedule 1 of the PSA.
14
Section 7 of the PSA provides:
“
Public
service, departments and heads of departments
—
.
. . .
(2) For the purposes of the administration of the
public service there shall be national departments and provincial
administrations
mentioned in the first column of Schedule 1,
provincial departments mentioned in the first column of Schedule 2
and the organisational
components mentioned in the first column of
Schedule 3.
(3)(a) Each department shall have a head of department
who as an officer shall be the incumbent of the post on the fixed
establishment
bearing the designation mentioned in the second column
of Schedule 1 or 2 opposite the name of the relevant department, or
the
officer who is acting in that post.”
15
Section 8(1)(a)(iii) of the PSA provides:
“
The
public service shall consist of persons who hold posts on the fixed
establishment in the Academy, the Agency or the Service
. . .”
16
See section 7 read with section 8 of the PSA.
17
Section 40(1) of ISA provides:
“
The
laws mentioned in the Schedule are hereby repealed or amended to the
extent indicated in the third column thereof.”
Item 3 of the Schedule to ISA under the
heading “laws repealed or amended” provides:
“
Proclamation
103 of 1994 Public Service Act 1994
. . .
(3) The amendment of section 8 by the substitution in
subsection (1)(a) for subparagraph (iii) of the following
subparagraph:
“(iii)
in the
[Agency or the Service]
Intelligence Service or the
Academy
”.
18
Section 6(1) provides:
“
The
President must in accordance with the Public Service Act, 1994
(Proclamation No. 103 of 1994), appoint a head of the Academy
who
is also the Chief Executive Officer, principal and accounting
officer of the Academy.”
19
See above para [145].
20
Section 40(1) of ISA provides:
“
The
laws mentioned in the Schedule are hereby repealed or amended to the
extent indicated in the third column thereof.”
Item 2 of the Schedule to ISA under the
heading “laws repealed or amended” provides:
“
Proclamation
103 of 1994 Public Service Act 1994
. . .
(2) The amendment of section 2 by the substitution for
subsection (3) of the following subsection ‘(3) Where persons
employed
in the
[Agency or Service]
Intelligence Services
or the Academy
are not excluded from the provisions of this Act,
those provisions shall apply only in so far as they are not contrary
to the laws
governing their service, and those provisions shall not
be construed as derogating from the powers or duties conferred or
imposed
upon the
[Agency or Service]
Intelligence Services
or the Academy
.’”
21
See above para [146].
22
See above para [153].
23
Para [58] of Moseneke DCJ’s judgment.
24
Section 84(1) of the Constitution.
25
Section 209(2) of the Constitution.
26
Id.
27
Section 209(2) of the Constitution. See above para
[142].
28
Section 203(1) of the Constitution reads as follows:
“
The
President as head of the national executive may declare a state of
national defence, and must inform Parliament promptly and
in
appropriate detail of
—
(a) the reasons for the declaration;
(b) any place where the defence force is being
employed; and
(c) the number of people involved.”
29
Section 1(c) of the Constitution provides:
“
The
Republic of South Africa is one sovereign, democratic state founded
on the following values:. . . [s]upremacy of the Constitution
and
the rule of law.”
Section 2
of the Constitution provides:
“
This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed
by it
must be fulfilled.”
See also
President of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 28;
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC);
1999 (10) BCLR
1059
(CC) at para 38.
30
Section 1(c) of the Constitution.
31
Fedsure Life Assurance and Others v Greater Johannesburg
Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at para 58.
32
Id at para 59;
Pharmaceutical Manufacturers Association of South
Africa and Another: In re Ex Parte President of the Republic of
South Africa and
Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 20.
33
Affordable Medicines Trust and Others v Minister of
Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC).
34
Id at paras 48-49.
35
Pharmaceutical
above n 32 at para 85;
Affordable Medicines Trust
above n 33 at para 75.
36
Pharmaceutical
above n 32 at para 85.
37
De Beer NO v North-Central Local Council and
South-Central Local Council and Others (Umhlatuzana Civic
Association Intervening
)
[2001] ZACC 9
;
2002 (1) SA 429
(CC);
2001 (11) BCLR
1109
(CC) at para 11;
National Director of Public Prosecutions
and Another v Mohamed NO and Others
[2003] ZACC 4
;
2003 (4) SA 1
(CC);
2003 (5)
BCLR 476
(CC) at paras 36-38.
38
Sections 59(1), 72(1) and 118(1) of the Constitution.
See also
Doctors for Life International v Speaker of the
National Assembly & Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at paras
135-146;
2006 (12) BCLR 1399
(CC) at 1447E-1451F.
39
Carmichele v Minister of Safety and Security and
Another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4)
SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 54.
40
Decision of the German Constitutional Court in 39
BVerfGE
, 1
at 41 cited with approval in
Du Plessis and Others v De Klerk and
Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para 94
and
Carmichele
above n 39 at para 54.
41
First National Bank of SA Ltd t/a Wesbank v
Commissioner, South African Revenue Service and Another; First
National Bank of SA Ltd
t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002
(4) SA 768
(CC);
2002 (7) BCLR 702
(CC) at para 65.
42
Section 25(1) of the Constitution provides:
“
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of
property.”
43
First National Bank
above n 41 at para 63.
44
First National Bank
above n 41 at para 65.
45
First National Bank
above n 41 at para 67.
46
First National Bank
above n 41 at para 100.
47
Pharmaceutical
above n 32 at para 37.
48
Pharmaceutical
above n 32 at para 39
49
De Smith, Woolf and Jowell
Judicial Review of
Administrative Action
5 ed (Sweet and Maxwell, London 1995) at
14-15.
50
Minister of the Interior v Bechler and Others;
Beier v Minister of the Interior and Others
1948 (3) SA 409
(A)
at 451.
51
Administrator, Transvaal, and Others v Traub and Others
[1989] ZASCA 90
;
1989
(4) SA 731
(A) at 750D-I and the cases referred to therein.
52
Transvaal Agricultural Union v Minister of Land Affairs and
Another
[1996] ZACC 22
;
1997 (2) SA 621
(CC);
1996 (12) BCLR 1573
(CC) at para
25;
R v Ngwevela
1954 (1) SA 123
(A) at 127E-F;
South
African Roads Board v Johannesburg City Council
1991 (4) SA 1
(A) at 10G-I.
53
Section 39(3) provides:
“
The
Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by common law, customary
law or legislation, to the extent that they are consistent with the
Bill.”
54
Pharmaceutical
above n 32 at para 49.
55
Pharmaceutical
above n 32 at para 49.
56
See
Pharmaceutical
above n 32 at para 49.
57
Zondi v MEC for Traditional and Local Government
Affairs and Others
[2004] ZACC 19
;
2005 (3) SA 589
(CC);
2005 (4) BCLR 347
(CC)
at paras 113-114.
58
Mohamed
above n 37 at para 48 quotes
Rennie
NO v Gordon NNO
1988 (1) SA 1
(A) at 22E-F adopted in
Bernstein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996
(4) BCLR 449
(CC) at para 105.
59
Palvie v Motale Bus Service (Pty) Ltd
[1993] ZASCA 105
;
1993 (4) SA 742
(A) at
749B-C adopted in
Bernstein
above n 58 at para 105.
60
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai
Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at paras 22-24.
61
See above para [190].
62
Section 64
of the
Labour Relations Act 66 of 1995
provides:
“
(4) Any
employee
who or any
trade union
that refers a
dispute
about a unilateral change to terms and
conditions of employment to a
council
or the Commission in
terms of subsection 1
(a)
may, in the referral, and for the
period referred to in subsection 1
(a)
—
(a)
require the employer not to implement unilaterally the change to
terms and conditions of employment; or
(b)
if the employer has already implemented the
change unilaterally, require the employer to restore the terms and
conditions of employment
that applied before the change.
(5) The employer must comply with a requirement in
terms of subsection (4) within 48 hours of
service
of the
referral on the employer.”
63
Zondi
above n 57 at para 112.
64
Para [84] of Moseneke DCJ’s judgment.
65
Hoffmann v South African Airways
2001 (1) SA 1
(CC);
2000 (11) BCLR 1211
(CC) at para 42.
66
See
Hoffman
above n 65 at para 43.
67
Section 202(1) of the Constitution.
68
Hoffmann
above n 65 at para 45.
69
Section 202(1) of the Constitution.
70
Section 203(1) of the Constitution.
1
Section 179(1)(a) of the Constitution
provides:
“
There
is a single national prosecuting authority in the Republic,
structured in terms of an Act of Parliament, and consisting of

National Director of Public Prosecutions, who is the head of the
prosecuting authority, and is appointed by the President, as
head of
the national executive”.
2
Section 207(1) of the Constitution provides:
“
The
President as head of the national executive must appoint a woman or
a man as the National Commissioner of the police service,
to control
and manage the police service.”
3
Section 209(2) of the Constitution provides:
“
The
President as head of the national executive must appoint a woman or
a man as head of each intelligence service established in
terms of
subsection (1), and must either assume political responsibility for
the control and direction of any of those services,
or designate a
member of the Cabinet to assume that responsibility.”
4
Section 91(2) of the Constitution provides:
“
The
President appoints the Deputy President and Ministers, assigns their
powers and functions, and
may
dismiss them
.”
(Emphasis added.)
5
Act 3 of 2000.
6
Section 1(i)(aa) of PAJA excludes from its operation “the
executive powers or functions of the National Executive, including
the powers or functions referred to in sections . . . 85(2)(b), (c),
(d)and (e). . . of the Constitution”.
Section 85(2)(e) of the Constitution
provides:
“
The
President exercises the executive authority, together with the other
members of the Cabinet, by performing any other executive
function
provided for in the Constitution or in national legislation.”
7
Act 66 of 1995.
8
Section 2(b) provides that the LRA is not applicable to members of
the NIA.
9
Act 65 of 2002.
10
Intelligence Services Regulations, GN R1505, GG 25592, 16 October
2003 (referred to by the applicant as “the secret regulations”).
11
Act 103 of 1994.
12
The relevant part of section 12 of the PSA provides:
“
(2) As from the date of commencement of the Public
Service Laws Amendment Act, 1997—
(a) a person shall be appointed in the office of head
of department in the prescribed manner, on the prescribed conditions
and in
terms of the prescribed contract between the relevant
executing authority and such a person for a period of five years
from the
date of his or her appointment, or such shorter period as
that executing authority may approve;
. . .
(4) Notwithstanding the
provisions of subsection (2), a contract contemplated in that
subsection may include any term and condition
agreed upon between
the relevant executing authority and the person concerned as to—
(a) any particular duties of the head of department;
(b) the specific performance criteria for evaluating
the performance of the head of department;
(c) the grounds upon, and the procedures according to
which, the services of the head of department may be terminated
before the
expiry of his or her term of office or extended term of
office, as the case may be; and
(d) any other matter which may be prescribed.”
13
The relevant part of section 198 of the Constitution provides:
“
The
following principles govern national security in the Republic:
. . .
(c) National security must be pursued in compliance
with the law, including international law.
. . . .”
14
I expressly refrain from dealing with the factors that
would justify terminating the appointments of the National Director
of Public
Prosecutions and the National Commissioner of the Police
where different constitutional and statutory considerations apply.
15
Section 23(1) provides: “Everyone has the right to
fair labour practices.”
16
See, for example, Rawls
Justice as
Fairness: A restatement
(Harvard University
Press, Cambridge 2001) at 116:
“
[A]
requirement of a stable constitutional regime is that its basic
institutions should encourage the cooperative virtues of political
life: the virtues of reasonableness and a sense of fairness, and of
a spirit of compromise and a readiness to meet others halfway.

These virtues underwrite the willingness if not the desire to
cooperate with others on terms that all can publicly accept as fair
on a footing of equality and mutual respect.”