ConCourt upholds Armscor dismissals

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iol news pic Constitutional Court ConCourt INLSA A full bench sitting of the Constitutional Court in Johannesburg. File picture: TIRO RAMATLHATSE

Bloemfontein - The dismissal of two senior Armscor executives by Defence Minister Nosiviwe Mapisa-Nqakula was upheld by the Constitutional Court on Tuesday.

It found that the minister had good cause to terminate the services of retired Lt-Gen Maomela Motau as chairman and those of deputy chairwoman Refiloe Mokoena.

The majority of the court held that the minister's decision in the matter amounted to an executive action rather than an administrative one.

The minister's decision was rational when she removed the two from the Armscor board, the court concluded.

The minister had justified her decision by citing various procurement projects, which had failed to progress timeously as a result of board decisions or inaction.

Other reasons included complaints she received about Armscor from the defence industry, indicating that the relationship between the two had broken down.

The majority of the Constitutional Court further held that the minister was required to comply with the process for the dismissal of directors as set out in the Companies Act. Her failure in this respect made her decision unlawful.

However, the court held the very exceptional circumstances of the matter meant that it would not be just and equitable to award a remedy of reinstatement.

“A declaration was sufficient to address the flaws in the minister’s conduct, and to draw her attention to the importance of complying with the Companies Act,” the judgment read.

Despite the defects of the minister’s decision, she had demonstrated good cause under the Armscor Act that the corporation, with the two executives as leaders, had failed to discharge it mandate.

“In the proceedings before this court the high-water mark of General Motau and Ms Mokoena’s defence seems to be their ignorance of Armscor’s parlous affairs,” the judgment read.

It was evident that the relationship between the minister and the two executives had disintegrated irreparably, the majority of the court concluded.

The dissenting judgment was that the minister's decision amounted to administrative action.

It contended the decision was procedurally unfair because Motau and Mokoena's memberships were terminated without a hearing.

Sapa



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