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[2012] ZASCA 110
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Minister of Defence and Others v South African National Defence Force Union and Another (161/11) [2012] ZASCA 110 (30 August 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 161/11
Not reportable
In the matter between:
THE MINISTER OF DEFENCE
...........................................
First
Appellant
THE SECRETARY OF DEFENCE
...................................
Second
Appellant
THE CHIEF OF THE NATIONAL
DEFENCE FORCE
...............................................................
Third
Appellant
and
SOUTH AFRICAN NATIONAL DEFENCE
UNION
....................................................................................
First
Respondent
MOSIMA MONAGENG PAINE FREDERIC
MOSIMA
...........................................................................
Second
Respondent
Neutral citation:
The
Minister of Defence v SA National Defence Force
(161/11)
[2012]
ZASCA 110
(30 August 2012)
Coram:
NUGENT, LEWIS,
PONNAN, CACHALIA and MHLANTLA JJA
Heard:
20 AUGUST 2012
Delivered: 30 AUGUST 2012
Summary: Interdict –
whether right established – peremption of appeal –
desirability of leaving intact order that
ought not to have been
granted – costs – duties of government in litigation.
___________________________________________________________
ORDER
___________________________________________________________
Application for leave to appeal
from orders of North Gauteng High Court (Pretorius J) sitting as
court of first instance):
The application for leave to
appeal against paragraph 2 of the order of the court below is
granted. The appeal against that order
is upheld and the order is set
aside. The applicants for leave to appeal are to pay the costs of the
application and of the appeal.
___________________________________________________________
JUDGMENT
___________________________________________________________
NUGENT JA (LEWIS, PONNAN,
CACHALIA and MHLANTLA JJA CONCURRING)
[1] 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.
[2] The military authorities were
rightly disturbed at what had occurred. On 30 August 2009 they issued
notices to about 1 200 members
who had been identified as having
participated in the events advising them, amongst other things, that
their services were ‘provisionally
terminated’, and
calling upon them to show cause within ten days why the ‘provisional
termination’ should not
be confirmed.
[3] The South African Defence
Union and its President (the respondents in the proceedings before
us), acting on behalf of its members
who had received such notices,
launched an urgent application in the North Gauteng High Court,
citing as respondents the Minister
of Defence, the Secretary for
Defence, and the Chief of the SANDF (I will refer to them as the
appellants). The respondents sought,
and were granted, two orders in
the following terms:
‘
Declaring
that the procedure adopted by the [military authorities] as reflected
in the [notices] dated 30 August 2009 is unlawful
and/or
unconstitutional’
and
‘
Interdicting
and restraining the [military authorities], pending the finalization
of a dispute to be referred to the Military Bargaining
Council (and,
should the matter not be resolved in the Military Bargaining Council,
to the Military Arbitration Board) by the [Union],
from terminating
and/or administratively discharging members of the [Union] pursuant
to the [notices], and/or any other similar
order, bulletin or
memorandum’.
[4] The learned judge refused
leave to appeal against her orders and the appellants thereupon
applied for leave to the President
of this court. The judges who
considered the application directed, under s 21(3)(c)(ii) of the
Supreme Court Act 59 of 1959,
that the application be heard by the
court, and that the parties be prepared to argue the merits of the
appeal should leave be
granted. That application is now before us.
[5] The appellants have since
abandoned their application for leave to appeal the declaratory
order, in circumstances that I come
to presently, and persist in
their application only in relation to the interdict. Apart from
supporting the grant of the interdict
the respondents contend that
the appellant’s right to appeal the order has been perempted.
Before turning to that issue I
deal first with whether the interdict
was rightly granted.
[6] The Military Bargaining
Council and the Military Arbitration Board referred to in the order
that is sought to be appealed are
the bodies established under
regulations 62 and 75 respectively of Chapter XX of the General
Regulations for the South African
National Defence Force and Reserve,
made under the Defence Act 44 of 1957, and kept in force by
s 106(2)
of the
Defence Act 42 of 2002
. That chapter of the regulations deals
with ‘labour rights’.
[7] The regulations allow for
representation of members of the SANDF by registered military trade
unions for purposes of collective
bargaining and the resolution of
labour disputes.
Regulation 36
allows for a military trade union to
engage in collective bargaining and to negotiate on behalf of its
members on selected matters
that include ‘labour practices’.
An ‘unfair labour practice’, which naturally falls within
that category,
includes ‘the unfair suspension or dismissal of
a member or other disciplinary action short of dismissal’.
[8] Collective bargaining and the
resolution of labour disputes take place through the medium of the
Bargaining Council. The Bargaining
Council comprises representatives
of the SANDF and representatives of recognized military trade unions.
Its powers and duties include
‘the prevention and resolution of
labour disputes’ (reg 63).
Regulation 71(2)
requires it to
‘attempt to resolve a dispute between the parties through
conciliation’. Disputes that cannot be resolved
through
conciliation may be resolved by arbitration before the Military
Arbitration Board.
[9] The application that was
brought before the court below was directed at the validity or
otherwise of the disciplinary procedure
that had been embarked upon
by the military authorities as reflected in the notices that had been
issued to members. That procedure
was said by the respondents to be
unlawful for various reasons that need not now concern us. Once the
court below declared the
procedure to be unlawful that was the end of
the dispute that was the subject of the application.
[10] The court nonetheless
granted the interdict in addition. The reasons for doing so do not
emerge from the judgment of the learned
judge, which are directed
only to why the procedure was unlawful.
[11] It is trite that for an
interdict to be granted the applicant must establish (1) that he or
she has a clear right and (2) that
the right has been or is expected
to be infringed and (3) the absence of similar protection by any
other ordinary remedy.
1
Where the existence or otherwise
of the right has yet to be judicially determined, whether in those
proceedings, or in a related
action, a court has a discretion
meanwhile to grant an interdict maintaining the status quo pending
the outcome of that determination,
if the right relied upon is
demonstrated prima facie.
[12] In this case the Union
intimated in its founding affidavit that it intended referring the
dispute that then existed between
the parties to the Bargaining
Council. The ‘right’ that it relied upon in the founding
affidavit for the grant of the
interdict was expressed as follows:
‘
It
is submitted that [the Union] has a prima facie, if not clear, right
to have the disputes described immediately above resolved
in its
favour [by the Bargaining Council or, if necessary, by the Military
Arbitration Board].
What were referred to in that
passage as ‘disputes’ that existed between the parties,
when seen in the context of the
earlier passages, were really no more
than various facets of what was in reality a single dispute –
the dispute being whether
the military authorities were entitled to
adopt the procedure that they had embarked upon.
[13] The Union’s reliance
upon what was said to be a ‘prima facie’ right was
misplaced. The interdict was not
directed to restraining the military
from acting pending the outcome of pending legal proceedings. It was
directed to restraining
them from acting until the occurrence of an
extraneous event, which is something different. For that relief to be
granted it was
incumbent upon the Union to establish that it (or the
members it represented) had a clear right that would be infringed if
the
interdict was not granted.
[14] But I say that only in
passing. The ‘right’ relied upon (whether ‘clear’
or ‘prima facie established’)
did not support the
granting of the interdict. No doubt the Union was entitled to refer
the dispute to the Bargaining Council,
but there is no suggestion
that the Union or its members were entitled to halt the proceedings
that had been embarked upon until
the dispute was resolved. It might
have been prudent for the military to await the resolution of the
dispute, lest they later be
found to have unfairly dismissed the
members, but no basis was laid for contending that it was not
entitled to proceed until the
dispute had been resolved.
[15] On that ground alone the
interdict ought not to have been granted, but there is a further
difficulty in the way of the Union.
Even assuming that a resolution
of the dispute was a prerequisite to discharging the members, that
dispute was resolved by the
grant of the declaratory order. Once that
order was made there was simply no dispute to refer to the Bargaining
Council.
[16] In argument before us
counsel for the Union submitted that what was yet to be resolved was
the procedure to be adopted by the
military, and that the military
was not entitled to proceed until agreement had been reached on a
fair procedure, or it had been
determined by arbitration. That was
never the case sought to be made out in the court below and there is
nothing in the founding
affidavit to support it. Indeed, it would be
extraordinary if the military was precluded from embarking upon
disciplinary proceedings
without first having the agreement of the
Union or the Board’s determination of how it should do so.
[17] No grounds were made out for
the grant of the interdict and in the ordinary course it falls to be
set aside. But, it was submitted
on behalf of the Union, the
appellants have foregone any right they might have had to appeal the
order. For that submission they
rely upon the conduct of the
appellants shortly before the matter was heard.
[18] On 26 July 2012, some three
weeks before the matter was to be heard, a spokesman for the Minister
issued a media release. The
release summarised the history of the
case, recording that the Union ‘took the matter to the High
Court and challenged the
manner in which the Department attempted to
terminate the soldiers’ employment, and that ‘the High
Court ruled in favour
of the [the Union] based on the fact that the
procedure in dismissing the soldiers was not fair’. It went on
to announce
that the Minister ‘has decided based on legal
advice, and in consultation with the Chief of the [SANDF] to withdraw
the case
from the SCA and to charge the soldiers under the military
court system.’
[19] The military court system
referred to in the media release is the system established by the
Military Discipline Supplementary Measures Act 16 of 1999
. In short,
that system allows for members of the SANDF to be tried for military
offences by a military court. If convicted the
military court is
empowered to impose various penalties that include dismissal from the
SANDF.
[20] On 31 July 2012 the
appellants’ attorney wrote to the respondents’ attorney
advising, amongst other things, that
‘we are drafting our
notice of withdrawal of the appeal to be served tomorrow’.
Curiously, on 2 August 2012, in response
to a query by the Registrar
of this court, the appellants’ attorney wrote to the Registrar
advising, without explanation,
that ‘the appellants are
not
withdrawing the appeal and as
such the matter is proceeding on the 20
th
August 2012 as set down’.
[21] On 5 August 2012 the Beeld
newspaper reported that it appeared that confusion on whether the
appeal would be withdrawn had
been cleared up: the political adviser
to the Minister had said the previous day that the defence force
stood by its decision to
withdraw the appeal. Yet the confusion
continued. Upon enquiring on 6 August whether the statement was
correct, the appellants’
attorney informed the Union’s
attorney that he would take instructions from his client, but that
‘to date our instructions
are that we are proceeding with the
Appeal on the 20
th
August 2012’. Meanwhile the
Union became aware that its members were being recalled to their
units. On 8 August 2012 the appellants
eventually settled into their
present stance. On that day, in response to further enquiry by the
Union, the appellants’ attorney
advised that ‘our client
is proceeding with its appeal’ but that ‘our client has
instructed us to advise you
that the appeal will proceed only in
respect of order number 2 and it conceded order number 1 of the
judgment’.
[22] A party who acquiesces in a
judgment will be taken to have waived his or her right to appeal. As
with all cases of the abandonment
of rights, acquiescence will not
lightly be inferred. What is required to be shown is unequivocal
conduct on the part of the litigant
that is inconsistent with any
intention to appeal, such as to point ‘indubitably and
necessarily’ to the conclusion
that he or she intended to
abandon the right.
2
[23] The general rule that a
litigant who has deliberately abandoned a right to appeal will not be
permitted to revive it is but
one aspect of a broader policy that
there must at some time be finality in litigation in the interests
both of the parties and
of the proper administration of justice.
Bearing in mind the policy underlying the rule it must necessarily be
open to a court
to overlook the acquiescence where the broader
interests of justice would otherwise not be served. As this court
said recently
in
Government
of the Republic of South Africa v Von Abo
3
,
in response to a similar contention that the appeal had been
perempted:
‘
It
would be intolerable if, in the current situation, this court would
be precluded from investigating the legal soundness of the
first
order, as a result of the incorrect advice followed by the appellants
or an incorrect concession made by them’.
[24] In this case, as pointed out
by counsel for the Union, the Minister’s spokesman said,
without qualification, that the
appellants, after taking legal advice
(the legal adviser has not been identified but it was none of her
legal representatives in
this appeal), was abandoning the appeal. It
may be inferred from its present stance that the appellants, upon
reflection and perhaps
on sounder advice, have since changed their
minds.
[25] There are two reasons why I
think it would not serve the ends of justice if the appellants were
to be held to their earlier
decision. The first is that this is not a
case in which the acquiescence by the respondents has had any
material consequences.
It was for barely a week that the Union was
left under the impression that the application was to be abandoned.
Confusion remained
for another week but by 8 August the appellants’
position had become clear. There is no suggestion that the Union or
its
members acted in any way during that fortnight such that the
change of mind caused it prejudice.
[26] The second reason is perhaps
more important. The appellants are charged with a constitutional duty
to maintain a disciplined
defence force. It would be intolerable if
an interdict wrongly granted were to impede the discharge of that
duty. We were told
that the Union accepts that the interdict is not a
barrier to proceeding in the military courts, which is the present
intention
of the appellants, but that is beside the point. The
interdict was granted in the context of a specific dispute that has
now been
resolved. The broad and vague language in which it was
framed is capable of restraining the military beyond the purpose for
which
it was granted, which would be an abuse. That it is capable of
doing so is reason enough not to leave it in place, albeit that no
such circumstances are envisaged at present.
[27] There remains the matter of
costs. The manner in which this litigation has been conducted is
disturbing. The orders were made
on 1 December 2010. On 20 December
2010 the appellants applied to the court below for leave to appeal.
That application was heard
on 3 March 2011 and dismissed two weeks
later. This application was launched the following day. It was
referred for hearing by
the court on 7 July 2011.
[28] The present stance taken by
the appellants is sufficient to demonstrate that the response to the
judgment of the court below
was no more than a knee-jerk reaction.
Whatever the merits of the orders granted, the appellants had before
them the considered
and impartial views of a court as to the fairness
of the action they had embarked upon, and they might be expected to
have reflected
upon the wisdom of pursuing their chosen course,
leaving public confidence in the discipline of the SANDF unrestored
while the
litigation continued.
[29] Meanwhile for 19 months more
than a thousand members of the SANDF remained ‘provisionally
dismissed’. There is
no such thing as ‘provisional
dismissal’ – a person is either in employment or he or
she is not. It seems that
what was meant by the military was only
that the members should not present themselves for duty but would
continue being paid.
The cost to the taxpayer while the matter
remained in that state must have been millions and millions of rand
when, as its present
stance has shown, alternatives that would have
avoided that cost were available to the appellants. Eventually there
was a scurry
only weeks before the matter was to be heard, and even
then there was a fortnight of confusion.
[30] I do not think that is how
litigation should be conducted by the government or by public bodies.
Unlike private litigants they
must conduct their affairs in the
public interest, which calls for mature judgment and reflection
before commencing or persisting
in litigation. I think it proper to
record that we are aware that the incumbent of the ministerial office
changed only recently,
which might account for the commendable change
of stance.
[31] It is true, as pointed out
by counsel for the appellants, that the Union’s continued
defence of the interdict, even after
the partial abandonment,
demonstrates that the appellants were always obliged to bring these
proceedings, if only to set aside
the interdict, which they have
succeeded in doing. Yet it is by no means certain that the Union
would have continued its defence
had the appellants not sought to
appeal the substantive order in the first place.
[32] The Union has asked for
costs on the attorney and client scale but I do not think we should
accede to that. The Union might
itself have abandoned the interdict
once the appellants acquiesced in the principal order, but chose to
persist for reasons that
are not apparent. In my view it should bear
part of the blame for an appeal that was unnecessary, albeit that
their fault was slight
in comparison to that of the appellants.
[33] The application for leave to
appeal against paragraph 2 of the order of the court below is
granted. The appeal against that
order is upheld and the order is set
aside. The applicants for leave to appeal are to pay the costs of the
application and of the
appeal.
__________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For appellant: A Schippers SC
T Masuku
Instructed by:
Xulu Liversage Incorporated, Cape
Town
Lovius-Block, Bloemfontein
For respondents: G J Marcus SC
A Friedman
Instructed by:
Griesel Breytenbach Attorneys,
Pretoria
Naudés, Bloemfontein
1
‘
Interdict’
by LTC Harms in
The
Law of South Africa
ed WA Joubert 2 ed Vol 11 paras 396-399.
2
Dabner
v South African Railways and Harbours
1920 AD 583
at 594
recently reaffirmed in
Natal Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA
432
(SCA) at 443 E-G.
3
Government
of the Republic of South Africa v Von Abo
2011 (5) SA 262
(SCA)
para 19.