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[2014] ZASCA 102
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Minister of Defence and Others v South African National Defence Union and Another (514/2013) [2014] ZASCA 102; 2014 (6) SA 269 (SCA); [2014] 4 All SA 441 (SCA) (28 August 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 514/2013
DATE:
28 AUGUST 2014
REPORTABLE
In the matter
between:
THE MINISTER
OF
DEFENCE
...........................................................
First
Appellant
THE SECRETARY
FOR DEFENCE
................................................
Second
Appellant
THE CHIEF OF
THE SOUTH AFRICAN
NATIONAL
DEFENCE
FORCE
........................................................
Third
Appellant
And
SOUTH AFRICAN
NATIONAL
DEFENCE
UNION
...........................................................................
First
Respondent
LYNDON ERIC
FREDERICKS
....................................................
Second
Respondent
Neutral citation: Minister of Defence v SANDU
(514/2013)[2014] ZASCA 102 (28 August 2014)
Coram:
BRAND, MAYA,
WALLIS AND SALDULKER JJA and SCHOEMAN AJA.
Heard:
19 August 2014
Delivered:
28 August 2014
Summary:
Defence Act 42 of 2002
– disciplinary proceedings against
soldiers in terms of
s59(2)(e)
– whether precluded by absence
of regulations – whether procedure adopted fair.
ORDER
On
appeal from: North Gauteng High Court, Pretoria (Du Toit AJ sitting
as court of first instance):
The appeal is
dismissed with costs, such costs to include those consequent upon the
employment of two counsel.
JUDGMENT
Wallis
JA (Brand, Maya and Saldulker JJA and Schoeman AJA concurring)
[1]
This Court
[1]
previously described the events leading to this
appeal in the following terms:
‘On 26 August 2009
many members of the South African National Defence Force gathered at
the precincts of the Union Buildings
in Pretoria to demonstrate their
grievances. In doing so they contravened military orders and a court
order that had been issued
that morning. Some amongst them were armed
with pistols, pangas, knobkerries and petrol bombs. The conduct of at
least some of
them provoked a confrontation with the police, who
found themselves compelled to use a water cannon, and to fire rubber
bullets,
in an attempt to bring things under control, and police and
military vehicles were damaged.’
Since 26
August 2009 the South African National Defence Force (the SANDF) has
tried to discipline the participants in that demonstration.
It was
the third of those attempts that gave rise to the present appeal. At
the instance of the respondent, the South African National
Defence
Union (SANDU), the high court (per Du Toit AJ) held it to be unlawful
and unconstitutional. This appeal is with his leave.
[2]
Initially the SANDF sought to
discipline the soldiers under s59(2)(e) of the Defence Act 42 of 2002
(the Act). It gave them notice
of their intended administrative
discharge from the Defence Force in terms of that section; informed
them that they had been provisionally
discharged; and invited them to
show cause why their provisional discharge should not be confirmed.
In an article published in
a widely read newspaper the then Chief of
the Defence Force said that he had persuaded the then Minister of
Defence that ‘the
only sanction this deserves is summary
dismissal or imprisonment of the soldiers’. Not surprisingly
this was held to have
prejudged the issue and the procedure was
accordingly set aside as unlawful by the high court. The SANDF
appealed but abandoned
its challenge to that part of the order.
[3]
All the affected soldiers had been
placed on special leave pending the outcome of those legal
proceedings. The final paragraph of
the letter of suspension, signed
by the acting chief of the SANDF, read as follows:
‘You are therefore
ordered not to report for work until a further express order has been
given to you in writing by me.’
On 6
August 2012, shortly before the previous appeal was to be heard, and
apparently because the challenge to the order declaring
the earlier
disciplinary proceedings unlawful was to be abandoned, fresh letters
were addressed to the soldiers. These were headed
‘INSTRUCTION
TO REPORT TO YOUR UNIT’ and were signed by the Acting General
Officer Commanding Defence Works Formation.
They instructed the
soldiers to report to their headquarters on 16 August 2012 at 08:00
for the sole purpose of being warned of
the charges preferred against
them and to be arraigned for conduct relating to the incident that
took place on 26 August 2009 in
Pretoria. The apparent intention of
the SANDF was to charge the soldiers in terms of the Military
Discipline Code. The notice was
given widespread coverage in the
media in an endeavour to bring it to the attention of all the
affected soldiers many of whom had
returned to homes in far-flung
parts of the country. In the later radio broadcasts that occurred
after the deadline of 16 August
2012 had passed they were informed
that nonetheless they should report to their units for the same
purpose.
[4]
Notwithstanding these efforts it does not appear that the
instruction came to the attention of all the soldiers. Some 300
soldiers
reported to their bases in terms of the notice, some even as
late as 10 September 2012. They resumed their duties and preliminary
investigations were commenced in regard to their conduct on 26 August
2009. However, a number did not return. Many of them appear
to have
acted on the advice of SANDU, which quite wrongly, and as the high
court held obstructively, advised its members that they
should not
obey the order because of a perceived inconsistency with the order
placing them on special leave. This stultified the
efforts of the
SANDF to pursue proceedings under the Military Discipline Code
against these members of the force.
[5]
Some correspondence between attorneys representing SANDU and
various persons within the SANDF followed upon these notices. It is
unnecessary to traverse that correspondence because on 5 November
2012 the SANDF once more changed its approach to disciplining
the
soldiers who had not reported to their bases. On that day they were
sent letters in the following terms:
‘NOTICE OF INTENDED
ADMINISTRATIVE DISCHARGE/DISMISSAL: MEMBERS OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE (SANDF) WHO PARTICIPATED
IN AN ILLEGAL MARCH
ON 26 AUGUST 2009 IN PRETORIA.
1. You were placed on
special leave for participating in an illegal march on 26 August
2009, conduct unbecoming for a professional
soldier. You further
disobeyed an order to report to your unit on 16 August 2012 for
warning and arraignment.
2. Based on the above you
are hereby called upon to provide reasons or show good cause, within
ten (10) days of the service of this
notice, as to why I should not
discharge or dismiss you from the SANDF in terms of
section 59(2)(e)
of the
Defence Act 42 of 2002
, as amended, and the common law. You
may submit your response to the following address or fax number …
3. Unless I receive your
response on or before 19 November 2012, 12:00, you shall be confirmed
to be administratively discharged
or dismissed from the SANDF.’
The letter was signed by
the Chief of the SANDF.
[6] In addition to those
letters a notice was published in the Sowetan newspaper on 14
November 2012 and in the Daily Sun newspaper
the following day. The
notice read as follows:
‘NOTICE OF INTENDED
ADMINISTRATIVE DISCHARGE: MEMBERS OF THE SOUTH AFRICAN NATIONAL
DEFENCE FORCE WHO DISOBEYED A DIRECTIVE
TO RETURN TO THEIR HOME UNITS
In terms of
Section
59(2)(e)
of the
Defence Act, Act
42 of 2001, the Chief of the South
African National Defence Force (C SANDF) has issued a notice of
intended administrative discharge
to all members who failed to report
to their home units as he directed in August 2012. In execution of
his Constitutional responsibility
to manage the SANDF as a
disciplined military force, the C SANDF issued a directive that all
members of the SANDF who were placed
on Special Leave following their
participation in an illegal march at the Union Buildings in 2009
should report back to their home
units.
Some members responded to
the directive as expected of military personnel to obey orders, some
did not respond as required by military
discipline. The SANDF is also
mindful of the fact that the South African National Defence Union
(SANDU) advised some members not
to heed the instruction.
The members are required
to provide reasons or show good cause as to why the C SANDF should
not discharge or dismiss them from the
SANDF on or before 19 November
2012. The response is to be forwarded to the above address.’
Below that there is a
further heading preceding a list of 664 names. This heading, like
that on the letter, reads:
‘NOTICE OF INTENDED
ADMINISTRATIVE DISCHARGE/DISMISSAL: MEMBERS OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE (SANDF) WHO PARTICIPATED
IN AN ILLEGAL MARCH
ON 26 AUGUST 2009 IN PRETORIA.’
[7] The sending of these
letters and the publication of this notice precipitated an urgent
application by SANDU on 19 November 2012
seeking a declaratory order
that this procedure was unconstitutional and unlawful. Whilst the
relief originally sought was far-reaching
the only orders ultimately
made by Du Toit AJ were the following:
‘1. Declaring that
the procedure adopted by the first respondent as reflected in the
first respondent’s ‘NOTICE
OF INTENDED ADMINISTRATIVE
DISCHARGE/DISMISSAL: MEMBERS OF THE SOUTH AFRICAN NATIONAL DEFENCE
FORCE (SANDF) WHO PARTICIPATED IN
AN ILLEGAL MARCH ON 26 AUGUST 2009’
dated 5 November 2012 (‘the Notice’), is unlawful and/or
unconstitutional.
2. Declaring that the
procedure adopted by the first respondent as reflected in ‘NOTICE
OF INTENDED ADMINISTRATIVE DISCHARGE:
MEMBERS OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE WHO DISOBEYED A DIRECTIVE TO RETURN TO THEIR
HOME UNITS’ appearing in
the Sowetan newspaper on 14 November
2012 and the Daily Sun newspaper on 15 November 2012 (‘the
Advertisement’) is
unlawful and/or unconstitutional.’
The appeal lies against
the grant of those orders.
[8]
Section 59 of the Act deals with the
various circumstances in which the services of a member of the SANDF
may be terminated. Section
59(1) covers resignation; the termination
of a fixed term contract of employment; reaching the prescribed age
of retirement;
being sentenced to a term of imprisonment by a
competent civilian court without the option of a fine or having a
sentence of discharge
or dismissal imposed upon him under the
Military Discipline Code; or if the surgeon-general certifies the
member to be unfit to
serve in the SANDF. Section 59(3) deals with a
member absenting himself or herself from official duty for a period
exceeding 30
days. In that event they are treated as having been
automatically dismissed.
[9]
Section 59(2), which the SANDF sought to
invoke in the present case, reads as follows:
‘The service of a
member of the regular force may be terminated in accordance with any
applicable regulations –
(a) As a result of the
abolition of such member’s post or any reduction or adjustment
in the post structure on the Department
of Defence;
(b) If for reasons other
than the member’s own unfitness or incapacity, such discharge
is likely to promote efficiency or
increased cost-effectiveness in
the Department of Defence;
(c) On account of
unfitness for his or her duties or inability to carry them out
efficiently, irrespective of whether such unfitness
or inability is
caused by such member’s ill-health not amounting to a condition
referred to in subsection (1)(e);
(d) If, after serving a
period of probation in terms of this Act, his or her appointment is
not confirmed; or
(e) If his or her
continued employment constitutes a security risk to the State or if
the required security clearance for his or
her appointment in a post
is refused or withdrawn.’
[10]
It is common cause that no regulations have
been promulgated under this section. In those circumstances the first
point argued on
behalf of SANDU was that it was impermissible for the
SANDF to use this section in order to dismiss these soldiers, or
indeed anyone.
It sought to rely on the principle that where a
statute provides that something be done as a condition precedent to
an exercise
of a lawful power, non-compliance with the condition
precedent, or jurisdictional fact as it is frequently called, is
fatal to
the exercise of the power.
[2]
In addition it contended that as the decision to
terminate the services of a member of the SANDF involved the exercise
of a discretion,
it was necessary for regulations to be promulgated
in order to circumscribe the scope of that discretion.
[3]
[11]
The first question is whether in accordance
with the established principles of statutory interpretation
[4]
the exercise of the powers conferred by s59(2) is dependent on the
existence of regulations. In my opinion neither the language
of the
section nor its context points to that construction. As to language,
the section refers to ‘any applicable regulations’.
That
language is not indicative of the need for regulations to have been
promulgated in order for the powers conferred by the section
to be
exercised. It might have been different if the section had read ‘in
accordance with regulations’ or ‘in
accordance with the
regulations’, but it does not. It is only ‘any
applicable’ regulations that must be followed
and, if there are
no applicable regulations, whether because none have been promulgated
or because those that have been promulgated
do not touch on the
exercise of the particular power under s59(2), then there are simply
no regulations for the functionary to
follow.
[12]
Reference to the context supports that
linguistic analysis. Subsection (e), which the SANDF wishes to
invoke, is one of five subsections
and the reference to regulations
applies to all of them. If regulations are required in order to
exercise the power under subsection
(e), then they must also be
required in order to exercise the powers under the other subsections.
But it is difficult to see why,
if a member’s post has been
abolished or there has been a general reduction in posts as a
consequence of budgetary cuts at
a time of financial stringency,
regulations are necessary in order to terminate the services of those
who have become redundant.
All that would be required in those
circumstances would be that a fair retrenchment procedure be
followed, but that would flow
from the soldiers’ right to be
fairly treated not the existence of regulations. Similarly if the
security clearance of a
senior serving officer were withdrawn, the
termination of their services would seem to follow as a matter of
course from the fact
that they could no longer perform their duties.
[13]
What puts the matter beyond doubt is that
under subsection (d) a soldier’s services may be terminated if,
after serving a
period of probation, their appointment is not
confirmed. If a probationary soldier does not have their appointment
confirmed then,
unless they were on probation from some other post in
the SANDF, the fact that their appointment was not confirmed would
necessarily
mean that they would have to be discharged. If they could
not be discharged in the absence of regulations, they would in effect
obtain confirmation of their appointment to the probationary post
even though they had not been confirmed in it. That cannot be
correct. In the result I reject this argument.
[14]
SANDU also advanced an argument based on
the contention that the SANDF had ‘repeated precisely the same
forms of conduct which
were held to be unlawful and unconstitutional
by the high court in October 2010 and in respect of which the
Department abandoned
its appeal’. It said that this was an
abuse of process or was barred by an application of what counsel
referred to as issue
estoppel. In support of both arguments counsel
relied on certain cases that were discussed by this court in
Caesarstone.
[5]
I doubt whether the argument is sound, because while the SANDF again
sought to invoke s59(2)(e) and intended to afford the soldiers
a
hearing by way of representations, there were also differences
between the previous situation and the present. Not least among
those
was that it could no longer be said that the soldiers were facing a
fait accompli because their fate had been predetermined.
I can see no
basis for rejecting the statement on oath by the current chief of the
SANDF that all representations would have been
considered and that no
final decision with regard to the soldiers’ administrative
discharge/dismissal had been taken when
the current letters were
issued and the current notices were published. However, as I am clear
that the procedure that the SANDF
adopted in the present case was
unfair and a breach of the soldiers’ rights it is unnecessary
to express a final view on
this.
[15]
It is likewise unnecessary to express a
final view on the contention by SANDU that the conduct of the
soldiers, both that on 26
August 2009 and their subsequent conduct in
not reporting to their bases in terms of the instruction given on 6
August 2012, was
incapable of constituting a security risk to the
State and, therefore, that the attempt to invoke s 59(2)(e) against
them was without
foundation. In considering this submission I am
mindful that in our past security risks to the State were invoked to
justify oppressive
conduct or to conceal misconduct. Our history
teaches us therefore that it is right to approach claims of a risk to
the security
of the State with healthy scepticism. Certainly the case
on behalf of the SANDF in this regard was extremely thin. It never
identified
the nature of the security risk that concerned it, nor was
any apparent from the fact that on a single occasion, now five years
ago, some soldiers disobeyed orders and behaved outrageously in order
to bring to the attention of the authorities their perceived
grievances. Their colleagues who reported in response to the
instruction of 6 August 2012 are apparently back performing duties
without any apparent impact on national security. In addition s59(3)
of the Act tells us that being absent without leave for 29
days on
its own is not a ground upon which the SANDF may treat the soldier as
automatically dismissed. Why then should absence
on a single day to
participate in a demonstration pose a threat to the security of the
State? But, against these considerations
must stand the additional
factor of their failure to report after 6 August 2012 in the light of
SANDU’s incorrect advice
that the orders they had given were
conflicting. The attitude of each soldier to the need to obey lawful
orders may have had a
bearing on the central question of whether
their continued employment as a member of the SANDF posed a risk to
national security.
It is accordingly not possible on these papers to
rule that conclusion out definitively.
[16]
That clears the way for a consideration of
the central question whether the procedure adopted by the SANDF to
discipline the soldiers
who had not returned to their bases in terms
of the instruction of 6 August 2012 was fair. The parties were agreed
that any disciplinary
procedure adopted by the SANDF was required to
be fair. SANDU put this on two bases, namely that the disciplinary
proceedings constituted
administrative action in terms of PAJA
[6]
and, alternatively, that the soldiers were entitled in the absence of
any other statutory source to rely directly on their constitutional
right to fair labour practices in terms of s 23(1) of the
Constitution. I do not think that the first ground is correct in
the
light of the Constitutional Court’s decision in Gcaba,
[7]
where the court said that generally employment and labour relations
issues do not amount to administrative action within the meaning
of
PAJA. In view of the concession on behalf of the SANDF that it was
obliged to follow a fair procedure in disciplining the soldiers
it is
unnecessary to determine whether that obligation flows directly from
the constitutional guarantee of fair labour practices
or whether this
is one of those cases where rational decision-making in the exercise
of a public power not amounting to administrative
action calls for
procedural fairness.
[8]
What matters for present purposes is whether the procedure initiated
by the SANDF complied with that obligation of fairness.
[17]
The proceedings against the soldiers were
disciplinary in nature. Without seeking to be either comprehensive or
definitive, a fair
procedure in disciplinary proceedings against an
employee requires as a minimum the following. The employee must be
told what they
have done that is said to constitute misconduct with
sufficient clarity to understand the nature of the alleged
misconduct. Where,
as here, the employer seeks to say that conduct is
of a particular character it must set out why the alleged conduct has
that character.
The employees must be given an adequate opportunity
to address the charges raised in a manner that protects their own
rights. To
that end they will ordinarily be entitled to the
assistance of any trade union of which they are a member, whether in
formulating
their response or by way of representation at a
disciplinary hearing. The Constitutional Court has confirmed the
entitlement of
soldiers to be assisted and represented by their trade
union in disciplinary proceedings.
[9]
[18]
In my view the procedure adopted by the
SANDF was defective in all of these respects. I deal with each in
turn. Reading the letters,
the terms of which are set out in para 4
of this judgment, it was said that participation in the events of 26
August 2009 was conduct
unbecoming a professional soldier and in
addition it was said that the soldiers disobeyed an order to report
to their unit on 16
August 2012. In the letters there were therefore
two elements to the alleged misconduct. However, the advertisement in
the two
newspapers referred only to the soldiers having disobeyed a
directive to return to their home units. It is true that immediately
above the list of names there was reference to their having
participated in an illegal march on 26 August 2009, but there was
nothing to indicate that this was to form a ground for their possible
discharge. In the result the two notices were contradictory.
As the
soldiers whose names appeared on the list in the advertisements were
also sent letters they would not have known what charges
were being
levelled against them and indeed it is by no means clear from the
affidavits filed on behalf of the SANDF whether the
complaint related
to the events of 26 August 2009, or those following upon the order of
6 August 2012, or both of those. The procedure
was therefore unfair
because it left the soldiers in doubt as to the charges they faced.
[19]
The procedure was also unfair because it
did not disclose to the soldiers why it was said that their conduct,
even assuming that
it encompassed both participation in the events of
26 August 2009 and the failure to report to base pursuant to the
directive of
6 August 2012, constituted a security risk to the State.
In para 14 I drew attention to the difficulties that confront the
SANDF
in advancing that contention. How were the soldiers to know the
reasons for the SANDF taking that view, albeit provisionally, unless
they were told? A soldier might after all have responded to the
letter by saying that he or she had participated in the march and
demonstration on 26 August 2009 out of a sense of grievance and
refused to return in response to the directive of 6 August 2012
on
the advice of their trade union. How would they know whether that
response would be adequate to avoid their discharge? Unless
they were
told why any conduct in relation to the march and demonstration, or
the failure to return to their base to receive disciplinary
charges
and be arraigned, posed a threat to the security of the State, they
would be shooting in the dark in their attempt to make
meaningful
representations in response to the charge against them.
[20]
I accept that in certain circumstances it
may be fair and appropriate for an employer to follow a procedure
similar to that which
the SANDF adopted in this case, of informing
the employee of the nature of the alleged misconduct and asking for
representations
in that regard, both as to whether the conduct
occurred and constituted misconduct and as to an appropriate
sanction. However,
the employee must be afforded an adequate
opportunity to respond and to obtain the assistance, if required, of
a trade union of
which the employee is a member. Here the letters
afforded the soldiers ten days from the date of receipt thereof, but
the newspaper
advertisements, published on 14 and 15 November 2012,
required them to respond in writing to a private bag address in
Pretoria
by 19 November, that is, within four days. Manifestly that
afforded the soldiers insufficient time to obtain advice and
assistance
from their trade union, of whose existence the SANDF was
well aware, and to make adequate representations, especially if one
bears
in mind that they were scattered across the length and breadth
of the country.
[21]
For those reasons the procedure adopted by
the SANDF was not fair and the court below was correct to grant the
declaratory orders
that it did. The appeal is accordingly dismissed
with costs, such costs to include those consequent upon the
employment of two
counsel.
M J
D WALLIS
JUDGE
OF APPEAL
Appearances
For
appellant: J H Dreyer SC
Instructed by: The State Attorney, Pretoria and
Bloemfontein
For respondent: Gilbert Marcus SC (with him P Jara, the
heads of argument having been prepared with Steven Budlender)
Instructed by: Griesel &
Breytenbach, Pretoria
Phatshoane
& Henney Attorneys, Bloemfontein.
[1]
The Minister of Defence v SA
National Defence Force
[2012]
ZASCA 110
para 1.
[2]
Democratic Alliance v President
of the RSA
2012
(1) SA 417
(SCA) para 118;
Paola
v Jeeva NO
[2003] ZASCA 100
;
2004
(1) SA 396
(SCA) paras 11-14.
[3]
Dawood and Another v Minister of Home Affairs and
Others; Shalabi and Another v Minister of Home Affairs and Others;
Thomas and
Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC) para 47.
[4]
Natal Joint Municipal Pension
Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) para 18;
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA) paras 10-12.
[5]
Caesarstone Sdot-Yam Ltd v World of Marble and
Granite 2000 CC and Others
2013 (6) SA 499
(SCA) paras 45 and 46.
[6]
The
Promotion of Administrative Justice Act 3 of 2000
.
[7]
Gcaba v Minister for Safety and Security and Others
2010 (1) SA 238
(CC) para 64.
[8]
Albutt v Centre of the Study of Violence and
Reconciliation and Others
2010 (3) SA 293
(CC) paras 50-51;
Democratic Alliance v
President of the Republic of South Africa and Others
2013
(1) SA 248
(CC) para 12;
Minister of Home
Affairs and Others v Scalabrini Centre and Others
2013
(6) SA 421
(SCA) paras 67-72.
[9]
South African National Defence Union v Minister of
Defence and Others
2007 (5) SA 400
(CC)
paras 89-95.