President's right to fire errant trio, but ...

Nothing stops President Cyril Rampahosa from firing Tom Moyane as SARS Commissioner. Nor does anything stop him from firing the lying Malusi Gigaba and Bathabile Dlamini. The only difference is that – depending on the terms of his contract – Moyane might be able to convince a court that he is entitled to be paid out for the rest of his contract. This is how constitutional law expert Professor Pierre de Vos sums up news that the DA has asked a court to set aside Ramaphosa’s decision to re-appoint Gigaba and Dlamini to the Cabinet, and that retired Judge Robert Nugent recommended that Ramaphosa fire Moyane immediately. ‘While it would be unwise for a court to grant the DA request, Rampahosa may well be within his rights to dismiss Moyane without a disciplinary hearing,’ he says. The Constitution and legislation bestow executive power on the President to appoint and dismiss Cabinet Ministers and the SARS Commissioner. This power is not constrained by requirements of procedural fairness. Such appointments, he says, differ from appointments made in the normal course of employment and – when such a person is dismissed by the President – he or she will not be able to have the dismissal reversed by a court on the basis that the normal requirements for procedurally fair dismissal were not followed. In an analysis on his Constitutionally Speaking blog, he says while the Constitutional Court made clear – in Democratic Alliance v President of SA and Others – that both the process and the decision to appoint or dismiss must be rationally related to the purpose for which the power was conferred, a court will only interfere with such a decision in the most extraordinary circumstances. While the DA could make ‘a plausible argument’ that it was irrational for Ramaphosa to retain Gigaba and Dlamini in his Cabinet, ‘I suspect the court may reject this argument on the grounds that the President has wide powers to select his or her Cabinet’. De Vos adds similar principles apply to the dismissal of Moyane. The power to dismiss somebody bestowed on the President by legislation is an executive function that derives from the Constitution and national legislation.

Democratic Alliance v President of SA and Others

Full analysis on the Constitutionally Speaking blog