Mamodupi Mohlala, the ousted communications director general (DG) will tell President Jacob Zuma and the Labour Court that General Siphiwe Nyanda did not have the powers to fire her and that the minister was in violation of the law.
Mohlala said her arguments were not against the president, but against the Minister of Communications General Nyanda, who she said has usurped the powers that sit with the president.
Nyanda released Mohlala from her position as DG, last week citing a breakdown of relations between the two, in a statement issued by the ministry of communications.
But the ousted DG says, if there is a breakdown it’s not due to her conduct. She has instructed lawyers to file court papers contesting her dismissal. The documents are expected to be filed latest by Tuesday July 27. Mohlala said she had asked for an audience with President Zuma and hoped the issue would be reached amicably before it reached the court.
“In terms of the Public Service Act … It’s very clear that the powers to appoint a head of department vests in the president of the Republic sitting in cabinet,” Mohlala said.
“Obviously by implication … in terms of the Billy Masetlha [case] it was confirmed by the court that even the powers of removal, because the powers to appoint rest in the president then by implication the power of removal openly rests in the president and does not rest in the minister.”
About four years ago Masetlha was fired as DG of Intelligence. He later argued in court that only the then President Thabo Mbeki had the right to dismiss the head of intelligence services and not Ronnie Kasrils, then minister of intelligence.
“From the letter I have he is very clear that I [Nyanda] have now decided to terminate the contract. Over and above that even the fact the letter was signed by the minister and not by the president. Because of the nature of the matter and implications of the matter he would have been duty bound then to have a consultation with me.
“Even if it can be argued somehow that the president somehow had a role in making that decision, the president would have had to give me an audience and that has not happened,” Mohlala said.
In clarifying who had the rights to hire and fire director generals, law expert from Unisa Professor Shadrack Gutto said: “They are appointed by the minister because they are answerable to the minister and parliament. But the minister is a member of cabinet and can’t appoint someone without the approval of cabinet of which the president is the head. You can say by implication it’s the president.”
“But because the president does not communicate with the DG directly then you can say the DG answers directly to the minister. A minister can’t just remove (a DG) without getting approval from the head of cabinet. Where a minister fires a DG they must do so with the blessing of the cabinet and therefore the president.”
However, the president’s spokesman, Zizi Kodwa said the president had nothing to do with the firing.
“What does a president have to do with DGs, ministers appoint DGs and not the president. The president has nothing to do with the appointment of a DG of Communications and therefore the firing …the president will not be involved in the squabble between the DG and minister,” Kodwa said.
But Pierre De Vos, a law professor from the University of Cape Town said President Zuma had the last word.
“The president will act on the advice so it’s not like the president has to independently make the decision. The president has the last say, so the president can refuse the firing of a DG, but the president would normally follow the advice of the minister.”
Gutto said the ultimate question would be whether Nyanda followed the law and did not violate the Just Promotion of Administration Act, the Public Service Act and the Constitution.
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