Judge Francis Legodi on Thursday set aside as unconstitutional and unlawful Mapisa-Nqakula’s August 8 decision to remove Retired Lt-Gen Maomela Motau as chairman and Refiloe Mokoena as deputy chairwoman of the Armaments Corporation of SA.
He reinstated both to their positions and granted a punitive cost order against the minister. Motau and Mokoena launched an urgent application for their reinstatement, submitting that they were not given a hearing before their removal. They said in court papers that the minister had exercised her power in such a high-handed manner that the court’s urgent intervention was justified.
Their removal from the board constituted a serious violation of their rights to dignity, reputation, and just administrative action. Mapisa-Nqakula said Motau, a former chief of defence intelligence, and Mokoena had “ample opportunity” to communicate with her in the process leading up to her decision, but had failed to do so.
She alleged that there had been a breakdown in their relationship and that she had not needed to follow any procedure because her decision was an executive one. The minister’s reasons for firing them included delays in the execution of various projects. She blamed their “poor leadership skills” for the non-conclusion of a service level agreement between the defence department and Armscor.
She blamed them for Armscor not being able to effectively and economically meet the defence department’s material requirements and said there had been complaints that they had failed to provide the required marketing support to the defence industry.
Legodi said it was clear there was a collective responsibility for running the affairs of Armscor, but that the two applicants had been singled out. He concluded that the minister had erred in law by thinking she was taking an executive action when she dismissed them.
The minister knew Motau previously had to be reinstated because of procedural irregularities, but fired him again and referred to her decision at a meeting with the board as “a political matter”, which raised the issue of ulterior motive, the judge said.
“One can perfectly understand the minister’s frustrations and disappointments if the efficiency and the effectiveness of the corporation are put in question. “One can understand that [she] will come blazing when things from the corporation’s side are not done as expected.
“In the process [she] has to account to her political head, but no pressure to bear should make her to override the basic principles of our Constitution and the rule of law. “The second applicant [Mokoena] appears to be a passenger in these proceedings.
“It looks like her services had been terminated simply on the basis that the minister does not know what to do with her,” Legodi said. The judge criticised Mapisa-Nqakula for blaming only Motau and Mokoena for the non-conclusion of the service level agreement.
This while she and the department had “blatantly refused to conclude the agreement… supposedly because the department could not afford it”. He said the blame for the delay could be laid at the minister’s and the department’s door.