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[2010] ZAGPPHC 628
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Madonsela and Another v Minister of Defence (12571/2010) [2010] ZAGPPHC 628 (15 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG,
PRETORIA)
CASE NO:
12571/2010
DATE: 15 MAY 2010
In the matter
between;
SAMUEL
MANDLA-MANDLA
MADONSELA
.....................................................................
First
Applicant
SOUTH
AFRICAN NATIONAL DEFENCE
UNION
........................................................
Second
Applicant
and
THE
MINISTER OF
DEFENCE
............................................................................................
First
Respondent
JUDGMENT
MAKGOKA.
J
:
[1] This is an
opposed application. The substantive relief sought by the first and
second applicants is set out in paragraphs 3
- 7 of the notice of
motion as follows:
3. The
respondent’s decision in terms whereof the first applicant was
administratively discharged on 30 November 2009, is
set aside and
suspended, pending the institution and finalisation of an application
review that is to be filed by the applicants
within 30 (thirty) days
from date of this order in the following terms:
a. The first
applicant shall remain suspended with pay;
b. The first
applicant is entitled to receive his usual remuneration and other
benefits that he would have received, if not for
his administrative
discharge.
4. The respondent
are (
sic
) ordered to effect payment forthwith, but no later
than two calendar days from date hereof, of any/or all of the first
applicant’s
salary and other benefits that he would have been
entitled to and received if not for his administrative discharge.
5. That the
applicants are granted leave to effect service of this court order by
transmitting a copy thereof by means of telefax
to State Attorney and
the respondent.
6. The Deputy
Sheriff of this Honourable Court is authorised and requested to
effect service of this court order by means of accepting
and
transmitting copies thereof via telefax to the respondent.
7. The costs of
this application shall be costs in the review proceedings,
alternatively, if the respondent oppose (
sic
) the relief as
applied for herein be ordered to pay the costs.
[2] The application
was brought on an urgent basis. Apart from opposition to the
substantive relief sought by the applicants, the
respondent (“the
Minister”) also contests the urgency of the matter, and counsel
for the Minister urged me to strike
the application from the roll. As
a result of the nature of the relief sought, I decided to hear the
matter, even though there
was sufficient basis to strike the matter
off the roll.
[3] The first
applicant was employed as a sergeant within the South African
National Defence Force (“SANDF”). He was
stationed at
Airforce base, in Hoedspruit. The second applicant is a trade union,
duly registered in terms of regulation 45 of
the general regulations
for the SANDF and Reserve, published in the Government Gazette R998
of 20 August 1999 (“the regulations”).
The first
applicant is a member of the second applicant and accordingly, the
second applicant assists and supports the first applicant
in this
application.
[4] The Minister is
the political head of SANDF. She exercises the command of SANDF under
authority of the President of the Republic.
[5] The common cause
factual matrix is the following: On 8 November 2008 at a South
African Air Force (SAAF) college in Pretoria,
the first applicant
shot and killed one of his colleagues, and in the process wounded
another. Pursuant to the shooting incident,
the first applicant was
arrested and criminal charges were preferred against him, which are
presently pending. On 26 February 2008,
a Board of Enquiry
recommended that the first applicant be suspended from active service
with full pay and benefits, pending the
outcome of his pending
criminal trial.
[6] On 4 March 2009
the first applicant received a letter signed by the General Officer
Commanding: Air Command, wherein notice
of intent to terminate the
first applicant’s service in terms of section 59 (2) (c) of
Defence Act 42 of 2002, (“the
Act”) was given. In the
said letter, the first applicant was invited to make representations
why he should not be so discharged.
[7] What followed
thereafter was a series of correspondence between the Air Command and
the legal section of the second applicant
wherein representations
were made on behalf of the first applicant, and the merits of the
intent to discharge the first applicant,
were debated at length.
[8] The SAAF
thereafter convened a Personal Advisory Committee (PAC), which met on
1 October 2008 to discuss the future utilization
of the first
applicant. The PAC considered the first applicant’s
representations against the intended discharge, and submitted
the
initial letter of intent, as well as the first applicant’s
representations, to the Chief Director: Human Resource Management
(Directorate Human Resource Separation) on 8 May 2009, who in turn,
laid same before the Minister with a recommendation that the
first
applicant be discharged in terms of section 59 (2) (c) of the Act.
The Minister on 23 October 2009, approved the recommendation
discharge the first applicant.
[9] Section 59 (2)
(c) of the Act empowers the Minister to administratively discharge
members of the Regular Force:
(a) ....
(b)....
(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 sub-section (1) (e);
(d)...
(e)...
[10] The notice of
motion is somewhat inelegantly worded. However, the thrust is clear:
the applicants in essence, seek an interim
interdict for the
suspension of the operation of the Minister’s decision to
discharge the first applicant, pending the determination
of review
proceedings. I therefore do not agree with the contention by counsel
for the Minister, that the relief sought has the
effect of a final
interdict. Should the relief sought be granted, and the review
proceedings subsequently fail, the effect of the
Minister’s
decision would automatically take effect.
[11]
I would, as a result, proceed on the basis that the applicants’
relief, is for an interim interdict. The requisites for
an interim
interdict have been restated in many cases, and are trite. The
applicant has to establish the following: a
prima
facie
right;
apprehension of irreparable harm; that the balance of convenience
favours him; and that he has no other satisfactory remedy.
[12] In order to
assess whether the first applicant has established the above
requisites, I have to have regard to the grounds of
review as stated
by the first applicant, which in turn, would lead to an assessment of
the prospects of success in the review proceedings.
In his founding
affidavit, the grounds of review are stated as follows at paragraphs
10.2, 10.3 and 10.4.
10.2 The
Respondents (sic) omitted to act in accordance with the principles of
natural justice in that they did not afford me sufficient
opportunity
to address the unfounded allegations against me, alternatively, they
omitted to attribute sufficient importance to
the reasons advanced by
me why I should not be administrative discharged.
10.3 The
Respondents, (sic) without following any due administrative process
and despite undertaking to the contrary, have decided
to, through its
political head, the First Respondent, to dismiss me with effect 30
November 2009.
10.4 I
immediately need to point out that there exists no internal review or
appeal procedure within the SANDF against the decision
of the
Minister of Defence to administratively dismiss a member of the
SANDF.
[13] Section 3 (2)
(b) of the Promotion Administrative Justice Act 3 of 2000 (“PAJA”)
requires administrative action
which materially and adversely affects
the rights or legitimate expectations of any person to be
procedurally fair. Procedural
fairness is measured against certain
minimum requirements, first, that adequate notice of the nature and
purpose of the action;
secondly, a reasonable opportunity to make
representations; thirdly, a clear statement of the administrative
action; fourthly,
adequate notice of any right of review or internal
appeal, where applicable, and lastly, adequate notice of the right to
request
reasons.
[14] Inherent in the
stated grounds of review as set out above, is that there is no
suggestion that the Minister’s decision
was incompetent or
substantively wrong. The first applicant only relies on procedural
fairness of the administrative process. Therefore,
the Minister’s
power to act in terms of section 59 (2) (c) in general, and the
substantive correctness of her decision in
this particular instance,
are not to be contested on review.
[15]
It appears to me that the Minister, in arriving at the decision to
discharge the applicant, considered all the relevant information,
which included the applicants’ representations. At procedural
level, therefore, it seems that the Minister observed the rules
of
natural justice in that the first applicant was afforded an
opportunity to be heard before the decision was taken. The first
applicant, having been invited to do so, made extensive and elaborate
representations why he should not be discharged. On this
basis alone,
the prospects of success in the application to review and set aside
the Minister’s decision, are significantly
diminished. This
impacts on the first applicant’s
prima
facie
right.
[16]
Another aspect is the delay, unexplained in the papers, in bringing
this application. An application for an interim interdict,
must be
brought with “reasonable expedition” (
Radio
Islam v Chairperson, Council of the Independent Broadcasting
Authority and Another
1999
(3) SA 897
(W) at 908 G). The decision to administratively discharge
the applicant, was made known to him on 6 November 2009. This
application
was only launched on 25 February 2010. This, considered
against the prospects of success which I have dealt with above,
tilts,
in my view, the balance of convenience against the first
applicant.
[17]
The present is not an ordinary application for an interdict. It
concerns the exercise of a statutory power. In the absence
of any
allegations of
mala
fides,
the
court does not readily grant an interdict in such instances. (See
GooI v Minister of
Justice
1955
(2) SA 682
(C)). Taking into account all considerations in this
application, the first applicant has in my view, failed to establish
a
prima facie
right.
The irreparable harm requisite is intertwined with the establishment
of a
prima facie
right,
which I have already found not to exist. The balance of convenience,
as a result, does not favour the first applicant. He
is not without
satisfactory remedy, for, if ultimately successful in his review
application, he would be entitled to claim damages.
[18] Given the view
I take of the matter, I do not consider it necessary to address the
issue of urgency - the order I am about
to make renders it academic.
[19] The application
therefore falls to be dismissed. Costs should follow the cause.
[20] I therefore
make the following order:
1. The application
is dismissed with costs.
TM MAKGOKA
JUDGE OF THE HIGH
COURT
DATE HEARD : 24
MARCH 2010
JUDGMENT HEARD
:18 MAY 2010
FOR THE
APPLICANTS : ADV J P VAN DEN BERG
INSTRUCTED
BY :
GRIESEL BREYTENBACH ATTORNEYS,
PRETORIA
FOR THE
RESPONDENT :ADV T MASUKU, WITH ADV M K MATHIPA
INSTRUCTED
BY :
MOKUENA ATTORNEYS,
MIDRAND,
AND
MATSHEGO RAM AG AG A ATTORNEYS,
PRETORIA