Matjila v Minister of Defence and Military Veterans and Others (2023/065385) [2025] ZAGPPHC 826 (15 August 2025)

Case Note

Matjila v Minister of Defence and Military Veterans and Others
(2023/065385) [2025] ZAGPPHC ___ (15 August 2025)

Reportability

This judgment is expressly marked reportable. It clarifies the statutory threshold for disqualification from commissioning in the South African National Defence Force (SANDF) under section 54 of the Defence Act 42 of 2002 and, in doing so, contributes to the developing body of administrative-law jurisprudence on rationality, procedural fairness and the proper exercise of statutory power. The judgment is also significant because it pronounces upon the scope of the Chief of the SANDF’s administrative instructions vis-à-vis the President’s constitutional prerogative to confer commissions. Finally, it contains a useful discussion on condonation principles where the State is a litigant, providing practical guidance for future public-law litigation.

Cases Cited

The full text of the judgment refers generally to “authorities” but does not specify individual reported cases. No explicit case citations appear in the body of the judgment.

Legislation Cited

Defence Act 42 of 2002
Promotion of Administrative Justice Act 3 of 2000
Promotion of National Unity and Reconciliation Act 34 of 1995
Individual Grievance Regulations (promulgated under the Defence Act)

Rules of Court Cited

The judgment does not cite any specific Uniform Rules of Court.

HEADNOTE

Summary

The applicant, Flight Sergeant Frans Mabothe Matjila, successfully completed an officers’ forming course and was placed in the rank of Candidate Officer pending presidential commissioning as a Lieutenant. Two minor military offences—one for negligent driving and another for improper parking to purchase food—were later relied upon by the SANDF to refuse his commissioning and to instruct that he revert to the substantive rank of Flight Sergeant.

Matjila launched review proceedings in the Gauteng Division, Pretoria, attacking both the refusal to commission him and the consequential instruction to revert. He argued that the decision was ultra vires, irrational, procedurally unfair and taken without affording him an opportunity to be heard. The respondents opposed and relied principally on section 54(2)(f) and (g) of the Defence Act, contending that the applicant’s convictions for “multiple serious offences” rendered him legally disqualified.

Acting Judge HF Jacobs held that the offences in question were neither “serious” nor of a nature that automatically disqualified the applicant under section 54(2)(f). Moreover, the Chief of the SANDF had misconstrued an internal November 2022 instruction as creating a blanket bar, thereby fettering his discretion and usurping the President’s power to confer commissions. The failure to invite representations breached the audi alteram partem rule, rendering the decision unlawful under PAJA. The court reviewed and set aside the impugned decision, reinstated the applicant as Candidate Officer with retrospective salary and benefits, and remitted the matter for proper reconsideration.

Key Issues

• Whether minor military disciplinary convictions constitute an automatic bar to commissioning under section 54(2)(f) of the Defence Act.
• Whether the Chief of the SANDF acted ultra vires and irrationally in refusing to process the applicant’s commissioning.
• Whether procedural fairness required affording the applicant an opportunity to be heard before adverse administrative action was taken.
• Whether the late filing of the respondents’ answering affidavit should be condoned.

Held

The court held that the two convictions did not fall within the statutory disqualification contemplated by section 54(2)(f); that the decision was irrational and procedurally unfair; that the Chief of the SANDF exceeded his statutory powers; and that the matter must be remitted for lawful reconsideration. Condonation for the respondents’ late filing was granted in the interests of justice, but costs were awarded against them.

THE FACTS

The applicant has served in the South African Air Force since 1998, progressively rising through the ranks to Flight Sergeant. In 2017 he completed the officers’ forming course at the South African Air Force College, whereupon his substantive rank changed to Candidate Officer. He was posted to Air Force Base Zwartkop as a Technical Officer, awaiting the formal presidential commission that would confirm his elevation to Lieutenant.

Despite his successful completion of training and satisfactory performance, the commissioning process stalled. Matjila lodged an internal grievance on 20 June 2019 in terms of the Defence Act’s Individual Grievance Regulations. The grievance proceeded through the hierarchy, culminating in a December 2019 directive that he obtain SAPS confirmation of a clean criminal record, which he duly produced in August 2021. A further direction in June 2021 ordered an Inspector-General investigation, the outcome of which was never communicated.

In January 2023 the applicant received a written instruction that, because of “multiple serious offences”, he would not be appointed as an officer and had to revert to Flight Sergeant. The referenced offences were (i) negligent/reckless driving involving bumping a pole, punished by a R1 500 fine; and (ii) unauthorised use of public property, punished by a reprimand. These disciplinary matters stemmed from military proceedings, not civilian criminal courts, and carried no imprisonment. The applicant contended that he was never given an opportunity to address the impact of these offences on his suitability, and that the decision contravened section 54 of the Defence Act as well as administrative-law norms.

THE ISSUES

The court had to decide whether the decision to refuse commissioning and to demote the applicant constituted lawful, reasonable and procedurally fair administrative action as required by the Promotion of Administrative Justice Act. Central to this inquiry was the interpretation of section 54(2)(f) and (g) of the Defence Act: do minor disciplinary offences amount to disqualifying “convictions” or to proof that the applicant is not a “fit and proper person”? The court also had to determine whether the Chief of the SANDF’s internal November 2022 instruction could override the President’s statutory role, and whether the failure to invite representations violated the applicant’s procedural rights. Finally, the court had to consider whether to condone the respondents’ late filing of their answering affidavit.

ANALYSIS

The court began by examining section 54 of the Defence Act in its entirety. Subsection (2)(f) disqualifies a person who has been “convicted and imprisoned without the option of a fine” for a criminal offence. The applicant’s disciplinary offences resulted in neither civilian criminal convictions nor imprisonment; they were dealt with internally and attracted only a fine and a reprimand. On a plain-language reading, therefore, subsection (2)(f) could not apply.

The court then turned to subsection (2)(g), which requires an officer candidate to be a “fit and proper person” with an exemplary character. Here the respondents might arguably rely on the offences, yet they failed to undertake a contextual enquiry; instead they applied the November 2022 instruction as an inflexible rule. Acting Judge Jacobs held that such rigid application amounted to a fettering of discretion and an arbitrary exercise of public power. Moreover, the decision maker did not afford the applicant an opportunity to make submissions, violating the audi principle and rendering the decision procedurally unfair under section 6(2)(c) and (d) of PAJA.

The Chief of the SANDF’s reliance on the internal instruction also raised a separation-of-powers concern. Under section 54(1)(a) only the President may confer a permanent commission. By effectively refusing to process the applicant’s commission, the Chief usurped a power reserved for the President. This jurisdictional overreach, combined with irrational reliance on inconsequential offences, satisfied the grounds for review under section 6(2)(a)(i) and (e)(vi) of PAJA.

Addressing condonation, the court applied the “interests of justice” standard. Although the respondents’ explanation for late filing was “scant”, their participation nevertheless assisted the court in reaching a fully-informed decision. Condonation was therefore granted, but the respondents were mulcted in costs.

REMEDY

Invoking section 8(1)(c)(i) of PAJA, the court reviewed and set aside the instruction that the applicant revert to Flight Sergeant. It ordered his immediate reinstatement as Candidate Officer with full retrospective effect, including payment of all back-dated salary and benefits. The respondents were directed to rectify their records within fifteen days and to pay the applicant’s costs, inclusive of the condonation application, on the ordinary party-and-party scale.

LEGAL PRINCIPLES

First, a disciplinary offence that does not result in imprisonment without the option of a fine does not trigger the disqualification in section 54(2)(f) of the Defence Act. The statutory text requires both a conviction and a sentence of direct imprisonment; lesser penalties fall outside the ambit of the exclusion.

Second, when applying section 54(2)(g)’s “fit and proper” standard, decision makers must undertake an individualized, contextual assessment. Reliance on an internal instruction as a rigid rule constitutes an unlawful fettering of discretion and may be struck down as irrational or arbitrary.

Third, administrative action affecting a person’s rank, remuneration and career progression in the SANDF is subject to the Promotion of Administrative Justice Act. The audi alteram partem principle obliges the decision maker to afford affected individuals an opportunity to make representations before adverse action is taken.

Finally, while courts may condone procedural non-compliance by the State where the interests of justice so require, inadequate explanations for delay will ordinarily attract an adverse costs order.