Masetlha v President of the Republic of South Africa and Another

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Nkabinde J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Navsa AJ
• Judgment Date: 03 October 2007
• Citation: 2008 (1) SA 566 (CC)
• Docket Number: CCT01/07
• Hearing Date: 10 May 2007
• Counsel: N Tuchten SC (with M Chaskalson) for the applicant IAM Semenya SC (with L Gcabashe) for the respondents
• Court: Constitutional Court

Masetlha v President of the Republic of South Africa and Another
2008 (1) SA 566 (CC)

2008 (1) SA p566

Citation	2008 (1) SA 566 (CC)
Case No	CCT01/07
Court	Constitutional Court
Judge	Langa CJ, Moseneke DCJ, Madala J, Nkabinde J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Navsa AJ
Heard	May 10, 2007
Judgment	October 3, 2007
Counsel	N Tuchten SC (with M Chaskalson) for the applicant; IAM Semenya SC (with L Gcabashe) for the respondents

Flynote : Sleutelwoorde E

Administrative law — Administrative action — What constitutes — Dismissal of public sector employee — Termination of contract of service of head of National Intelligence Agency by State President — Whether authority to dismiss being executive F power or administrative action reviewable under Promotion of Administrative Justice Act 3 of 2000 — Power to dismiss being executive function and not administrative action — As such, not susceptible to review — Whether procedural justice being requirement for exercise of power to dismiss — Presidential decisions still to meet requirements of legality and rationality and be consistent with Constitution — On facts, President's loss of trust in G incumbent constituting rational basis for decision to dismiss — President's decision therefore lawful.

Constitutional law — Judicial review of public power — Constitutional validity of conduct of President — Constitutional and legislative source and reach of power of President to appoint or dismiss State functionary — Whether power to amend term of employment or to dismiss being located within s 209(2) of Constitution, read with H s 3(3)(a) of Intelligence Services Act 65 of 2002 (ISA) and s 12(2) of Public Services Act or within all these provisions read together, and whether said provisions capable of being construed harmoniously — President's power to appoint head of National Intelligence Agency (NIA) deriving from s 209(2) of Constitution, read with s 3(3)(a) of ISA — Power to dismiss being implicit in power to appoint — President therefore having power to dismiss head I of NIA, including power to amend in such manner as to end term — While lawful, President's decision being in breach of contract of service — Reinstatement not appropriate — Court awarding contractual measure of damages — Review application dismissed.

Employment law — Dismissal — Of public sector employee — Termination of J

2008 (1) SA p567

employment — Whether power to appoint, in absence of any specific provision to contrary, including power to A dismiss — Power to employ and to dismiss not to be conflated with contractual implications of terminating fixed-term employment contract prematurely.

President — State President — Powers of — To appoint or dismiss State functionary — Whether presidential decision to amend head of National Intelligence Agency's (NIA) term of office or dismiss him being constitutionally permissible — President B unilaterally amending term of office of head of Intelligence Agency to expire months earlier than original term — Blatant effect of amendment being dismissal from office — Source of such power — President's power to appoint head of NIA deriving from s 209(2) of Constitution read with s 3(3)(a) of Intelligence Services Act 65 of 2002 — Power to dismiss being implicit in power to appoint — President therefore having power to dismiss including power to amend head's term of C office.

Review — Of President's decision to dismiss head of National Intelligence Agency — Power to dismiss being executive function and not administrative action — As such, not susceptible to review under Promotion of Administrative Justice Act 3 of 2000. D

Headnote : Kopnota

Presidential decisions which constitute the exercise of executive powers and functions under s 85(2)(e) of the Constitution of the Republic of South Africa, 1996, are clearly not susceptible to administrative review under the tenets of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) even if they otherwise constitute administrative action. (Paragraph [76] at 592H - 593B.) The E powers to appoint and to dismiss are conferred specially upon the President for the effective business of government. It is clear that the Constitution and the legislative scheme give the President a special power to appoint and that it will be reviewable only on narrow grounds. The power to dismiss - being a corollary of the power to appoint - is similarly executive action that does not constitute administrative action. It would not be appropriate to F constrain executive power to requirements of procedural fairness, which is a cardinal feature in reviewing administrative action, for the effective pursuit of national security. (Paragraphs [68], [75] and [77] at 590E - G; 592E - G and 593B - E.) However, this does 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 G exercised in bad faith, arbitrarily or irrationally. (Paragraph [23] at 576E - F.)

Before the provincial division the applicant challenged two decisions taken by the first respondent, namely to suspend the applicant as head of the National Intelligence Agency (NIA), and to terminate the services of the applicant as head of the NIA. That court found that the applicant's dismissal constituted lawful executive H action - the power of the President to dismiss the applicant being necessarily implied in s 209(2) of the Constitution. The applicant then applied for leave to appeal directly to the Constitutional Court (CC) against that decision, seeking a declarator that the President did not have the power unilaterally to alter his terms of employment, alternatively an order reviewing and setting aside his decision as being unlawful for want of procedural fairness; and an I order of reinstatement. The applicant contended, inter alia, that:

(a)

the President's decision to dismiss him or alter his term of office was purportedly taken under s 12(2), read with s 12(4), of the Public Service Act, 1994 (PSA), which did not confer express authority on the President or anyone else to make such a decision; and J

2008 (1) SA p568

(b)

s 209(2) of the Constitution, read with s 3(3)(a) of the Intelligence Services Act 65 of 2002 A (ISA), did not vest in the President the power to reduce or alter the applicant's period of office.

Having granted leave to appeal directly as being in the interests of justice, the court determined these issues as follows. (Paragraph [30] at 578F.)

As to (a): B

Held, that although the decision was couched in the language of an alteration of conditions of service, the blatant effect of the amendment was to extinguish the applicant's term of office. (Paragraphs [46] and [52] at 584A - B and 589B.) Section 12(2) of the PSA did not create or confer on the executing authority the power to appoint or to end a term of office or to dismiss its incumbent. It merely prescribed the manner and form of the service contract. C (Paragraphs [59] and [63] at 587J - 588B and 589B.) In terms of s 12 the alteration or termination of the service contract of a head of department was to be regulated by the service contract itself. Where the contract was silent as to termination, the ordinary rules of contract applied so that the contract could not be unilaterally terminated before the expiry of the period contracted for unless there was a material breach of contract by the employee. (Paragraphs D [61] - [62] at 588F - 589A.)

As to (b):

Held, that the source of the President's power to appoint the head of the NIA was s 209(2) of the Constitution, which was mirrored in s 3(3)(a) of the ISA. (Paragraph [65] at 589G - H.) Although both s 209(2) of the Constitution and E s 3(3)(a) of the Intelligence Services Act (ISA) were silent on the power to dismiss, because that power was an essential corollary of the power to appoint, the power to dismiss had to be read into both sections. (Paragraphs [68] - [69] at 590F - H.)

Held, further, that the President therefore had the requisite power under those sections to dismiss the head of the NIA, and that power included the power to amend the term of office of the F incumbent of the NIA in such manner as to end the term. (Paragraphs [72] - [73] at 591E - H.)

Held, further, that the breakdown of the relationship of trust between the President and the applicant constituted a rational basis for dismissing the applicant from his post as head of the NIA. (Paragraph [86] at 596C.) Although authorised to dismiss the applicant, the President's unilateral dismissal of the applicant G constituted a breach of contract which entitled the applicant to the ordinary remedies for breach of contract. However, in the light of the special relationship of trust that should exist between the President and the head of the NIA, reinstatement would not be appropriate. Rather, he should be put in the financial position he would have been had his contract not been prematurely terminated. (Paragraphs [88] and [100] at 596F - G and 599F.) H

The decision of Du Plessis J in the Transvaal Provincial Division on 19 December 2006 confirmed.

Cases Considered

Annotations

Reported cases I

Southern African cases

Administrator, Natal, and Another v Sibiya and Another 1992 (4) SA 532 (A): referred to

Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A): referred to J

2008 (1) SA p569

Administrator, Transvaal, and Others v Zenzile and Others 1991 (1) SA 21 (A) ((1991) 12 ILJ 259): A distinguished

Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529): dicta in paras [49], [75] and [77] applied

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