Mail and Guardian
Armscor sackings don’t fly
20 Sep 2013 Glynnis Underhill
The chairperson of the Armscor board, Lieutenant General Maomela “Mojo” Motau, and his deputy, attorney Refiloe Mokoena, are considering further legal action after they took Defence Minister Nosiviwe Mapisa-Nqakula to court for firing them and won their case.
They are returning to their nonexecutive posts on the board with immediate effect, but mystery still surrounds the reason for their sudden “political” dismissal on August 8.
There have been reports about a general dysfunction at Armscor, which has been blamed on poor leadership, but speculation is running rife about the actual reason for why Motau and Mokoena were fired. Military and other well-placed sources believe the dismissals might be linked to Mapisa-Nqakula’s intention to buy three Boeing executive jets for the presidency and Cabinet ministers but this could not be confirmed.
The Mail & Guardian was told that Motau and Mokoena could have been seen as an obstacle to these purchases, which have to go through the Armscor board.
However, the court documents point directly to a falling-out between Motau and Mapisa-Nqakula, with the possibility that Mokoena might have been removed because there could have been an expectation she would replace him. Questions sent to Mapisa-Nqakula’s spokesperson, Sonwabo Mbananga, went unanswered.
Mokoena said on Thursday that she was considering further legal action as she had been defamed.
Ulterior purpose “I feel vindicated and I feel glad that my dignity and integrity have been restored,” she said. “This is a very good case to show that ministers are not above the law.”
Motau declined to comment after the court ruling this week but confirmed he was also considering further legal action.
Judgment was handed down in the high court in Pretoria on Wednesday by Judge Francis Legodi, who dramatically resigned as a commissioner from the controversial Arms Procurement Commission on the eve of the public hearings in July.
In his judgment, Legodi explored the possibility that the decision to dismiss Motau and Mokoena was taken for an ulterior purpose or motive.
A transcript of a board meeting held after their dismissal was examined by the court and Mapisa-Nqakula was quoted as saying: “… and I also believe that the removal of the two people in the board, for me it’s not a legal matter, it is a political matter.
“It is informed by my experience and I hope that nothing would get us to a point where we engage a legal rep [sic] on the matter, because I don’t think it is necessary for that.”
Legodi said in his judgment it was expected that, when the corporation was not functioning properly, the department would be affected, and the consequences would be to show the minister as not being efficient and effective.
“In the process, the first respondent [the minister] has to account to her political head. But no pressure to bear should make her override the basic principles of our Constitution and the rule of law,” he wrote.
Long-running saga The court heard that, in their letters of dismissal, Motau and Mokoena were told that, under their leadership, Armscor had not been able to meet the defence materiel requirements with the department “effectively, efficiently and economically”. They were blamed for a number of issues, including the delays in the execution of various projects and service-level agreements not being reached due to their poor leadership.
The quest to buy new planes for the presidency has been a long-running saga, mired in controversy. Mapisa-Nqakula cancelled the controversial purchase of a 300-seater Boeing for the president and another jet for his deputy, Kgalema Motlanthe, in July last year. The deal would have cost more than R1.6-billion.
But in May this year, Mapisa-Nqakula addressed the Cape Town Press Club and went public about her wish to buy jets for VVIPs (very, very important people) and strategic airlifting capacity planes as soon as possible. Since then, nothing further has been said about it publicly.
Attempts by the M&G to get details about the purchases have been firmly rebutted by the department of defence, which has failed to respond to questions.
This is not the first time Motau has had a spot of bother at Armscor. Appointed by the former defence minister Lindiwe Sisulu in 2011, he was dismissed by her a year later. According to reports at the time, he refused to leave office as he was about to be replaced by Mokoena.
Unlawful Motau and Mokoena brought an urgent application to the court, claiming that the termination of their roles by Mapisa-Nqakula was “unconstitutional, unlawful and consequently invalid”.
Mapisa-Nqakula wrote in her heads of argument that the application should be struck from the roll for lack of urgency.
But Motau and Mokoena said that the minister intended to fill the vacancies before the end of September and the appointments would be unlawful.
They accused her of acting in a “high-handed way” and contended their removals from the board constituted a serious violation of their right to dignity, reputation and just administration.
The court documents reveal that Motau’s and Mokoena’s three-year terms as board members expire on August 30 2014.
In her answering affidavit, the minister said there was a breakdown in the relationship between herself and Motau in particular.
Legodi found that proper procedures were not followed, and Motau and Mokoena were never given a notice requesting them to explain why they should not be dismissed. The decision to terminate their services and the subsequent sackings were unlawful, the judge found.