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[2020] ZAGPPHC 245
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Minister of Police v Nkabenyane (A174/2019) [2020] ZAGPPHC 245 (21 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No: A336/2019
27234/2019
In the matter
between:
THE CHIEF OF THE SOUTH
AFRICAN
NATIONAL DEFENCE
FORCE
1
st
APPELLANT
THE MINISTER OF
DEFENCE AND
MILITARY
VETERANS
2
nd
APPELLANT
THE SURGEON
GENERAL
3
rd
APPELLANT
THE SECRETARY OF
DEFENCE
4
th
APPELLANT
and
WILLIAM FRANCE
MASINGA
1
st
RESPONDENT
RIRHANDZU
JOY KHOZA AND 33 OTHERS
2
nd
to 35
th
RESPONDENTS
Neutral
citation:
National
Defence Force v Masinga and 35 Others
(A336/2019)
[2020] ZAGP (19 June 2020)
Coram:
Mlambo JP, Francis and Hughes JJ
Heard:
13 March 2020
Delivered:
19
June 2020
Summary:
Military Law – appeal against termination of
members services- applicability of
section 59
and
103
of the
Defence
Act 42 of 2002
– Item 14 of the Military Disciplinary Code –
section 18
(1) and (3) of the
Superior Courts Act 10 of 2013
.
ORDER
1.
The appeal in
the main review application succeeds with costs, including the costs
of two counsel where so employed.
2.
The appeal in
terms of
section 18(4)
(ii)
of the
section 18(3)
order
likewise succeeds with costs, such costs to include the employment of
two counsel where so employed.
JUDGMENT
HUGHES J
Introduction
[1]
This Court is
seized with two appeals which have been consolidated. The main appeal
is against the judgment of Basson J emanating
from a review
application, where she reviewed and set aside the decision of the
Chief of the National Defence Force (the first
appellant) to
terminate the services of
the
thirty-six respondents with the South African National Defence Force
(the SANDF). These
respondent’s
services
were
reinstated retrospectively from the date of their termination.
[2]
Having been
successful in their review application
the
respondents then sought
and
were granted an order in terms of
section 18(1)
and (3) of the
Superior Court’s Act 10 of 2013, also by Basson J. The second
appeal pertains to this order and is referred
to in these proceedings
as the section
18(3)
appeal.
[3]
Leave
to appeal the main
judgment to the
Full Court was granted by the court
a
quo
. Whilst, in terms of
section 18(4)
(ii) of the
Superior Courts Act, the
appeal of the order in terms
section 18(3)
is automatic.
[4]
For easy
reference
sections 18(1)
-(4) of the
Superior Courts Act reads
as
follows:
‘
18
Suspension of decision pending appeal
(1)
Subject to
subsection (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the decision of
the application
or appeal.
(2)
Subject to
subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision
that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application for leave to appeal
or of an
appeal, is not suspended pending the decision of the application or
appeal.
(3)
A court may
only order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order otherwise,
in addition proves
on a balance of probabilities that he or she will suffer irreparable
harm if the court does not so order and
that the other party will not
suffer irreparable harm if the court so orders.
(4)
If the court
orders otherwise, as contemplated in subsection (1) –
(i)
the court must
immediately record its reason for doing so;
(ii)
the aggrieved
party has an automatic right of appeal to the next highest court;
(iii)
the court
hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv)
such order
will be automatically suspended, pending the outcome of such appeal.
(5)
…’
Background
[5]
The appeal in
the main
application derives
its
origin from a diplomatic relationship known as Operation Thusano,
involving the conclusion of a Memorandum of Understanding
(MOU)
between the SANDF and the Cuban Military Department of Defence as
regards the training of South African members of the Air
Force, Navy,
Army and South African Military Health Services (SAMHS). In this
specific instance the respondents were medical students
of the SAMHS
who were sent over to Cuba in order to be trained as doctors,
specifically in military medicine. The program comprised
of the first
year of study being dedicated to learning the Spanish language in
another institution in Santiago, Cuba.
[6]
The next five
years were dedicated to the science of medicine, culminating in one
qualifying as a General Military Basic Doctor
which is equivalent to
a MBCHB in South Africa.
The
respondents’ medical studies were to be registered with
University of Ciencias Medicas Faculty (UCIMED) which has its
main
campus in Havana. There were also two satellite campuses, being
Ciencia Medicas Faculty 2 and another was at Inter Arms School
of
Revolutionary Armed Forces of Cuba (Inter Arms School), in Santiago.
According
to the
appellants UCIMED is accredited with the Cuban authorities and is
registered on the database of the Health Professionals
Council of
South Africa (HPCSA).
[7]
The medical
academic study terms run from September to July of the following
year. The respondents, concluded an agreement with
the Department of
Defence (DoD). The
respondents
undertook
to comply
with the various conditions set out in the memorandum of agreement
between themselves and the DoD. These conditions amongst
others were,
but not limited to, the following:
(a)
For the
prescribed period of the agreement the
respondents
would study
military
medicine at a Cuban medical facility attending classes within the
official hours;
(b)
DoD undertook
to pay fees and all related expenses of the respondents and they
would allow the respondents to attend the course;
(c)
To promptly
and loyally comply with all prescripts, rules regulations and orders
from the Institution and the DoD for the duration
of the course.
Failure to adhere to the above will result in termination of one’s
studies and/or repatriation at the sole
discretion of the DoD;
(d)
The
respondents are to attend every session of training and abide fully
to the rules and regulations as well as stipulations governing
the
attendance of the course as well as the institution;
(e)
‘
The
member understands that he is a South African soldier and that he is
subject to the Republic of South African (RSA) laws, that
he is
undertaking studies in a foreign country and that his actions reflect
on the DoD and RSA. Any conduct that brings the RSA
and/or the DoD in
disrepute may result in immediate repatriation and/or disciplinary
and/or administrative action under the appropriate
laws and/or
policies.’
[1]
[8]
There were two
groups of trainees the first consisting of some 26 trainees commenced
August 2017 and the second group of 9 trainees
in August 2018. The
2017 trainees were enrolled in the Inter Arms School for a Spanish
and pre medical courses. In 2018 this very
group (2017 group) were
due to commence their medical studies at UCIMED, Santiago, whilst,
the 2018 group would engage in the Spanish
course at the Inter Arms
School. According to the 2017 group of respondents, as far back as 3
April 2018, they raised concerns
with the Surgeon General Lt Gen AP
Sedibe and the Director of Medicine Brig. Gen Badli about the
accreditation of the institution
they were to study at, the Military
Infantry School General Jose Maceo Interamas (the Infantry School),
and they required proof
that they had been in fact registered as
medical students.
[9]
The
respondents state that in 2018 they did not receive a satisfactory
response, however, they continued to attend their lectures
which were
conducted at the University campus. They commenced their second
semester on 11 February 2019 and this is when they were
informed that
they would no longer be attending
their lectures at the University but rather at the infantry school
with the 2018 group who were
busy with pre-med studies. The
respondents refused and did not attend their lectures at the infantry
school from 11 February 2019
until
their date of termination on 26 March 2019.
[10]
To cut a long
story short the
respondent’s
attitude persisted
that they ought to attend their lectures at the University as they
had previously done. As a group they collectively
decided not to
attend classes until their concerns were addressed and opted to
remain at their base camp. On the very same 11 February
2019 they
were informed by Colonel Vladimir who is the second in command of the
infantry school that they ‘either go to class
or [we] go back
to our country’.
[11]
On 13 February
2019 both groups, the 2017 and 2018 medical students, wrote
a
l
etter to Brig. Gen
Majola raising the same concerns as they did in April 2018. The
students were visited by Brig Gen Majola at the
school on 16 February
2019. During the course of this meeting the respondents were
appraised of the code of conduct and extracts
of the agreement
between South Africa and Cuba. Hereafter, the respondents were
requested to sign that they had been advised of
the code of conduct
and the aforesaid agreement between SA and Cuba. The respondents
state that they never signed.
[12]
Following up
from the above on 18 February 2019 the respondents received
correspondence dated 17 February 2019 from the Surgeon
General. In
this letter they were advised that their conduct of refusing to
attend lectures constituted mutiny being a serious
offence in the
SANDF. As a result, the Surgeon General informed them that he
intended to apply for their administrative dismissal/discharge
from
the SANDF. The respondents were requested to either make submissions
individually or collectively before 21 February 2019
as to why they
should not be dismissed/discharged. On receipt of the correspondence
on 18 February 2019 the two
groups
of
2017 and 2018
respondents forwarded their letter
of
the 13 February
2019
yet again in response. This culminated in Brig Gen Majola paying the
respondents a visit and they were advised that their letter
of
the 13 February
2019
was not sufficient. He again requested and encouraged them to either
individually or collectively raise their concerns. The
respondents
stated that they had already responded to the letter from the Surgeon
General dated 17 February 2019.
[13]
The
respondents
contend
that
on 20/21 February 2019 they were requested to return their Cuban
uniforms and not to leave the base camp as they would be departing
for South Africa. Hence, on 25 February 2019 four of the respondents
decided to go back to classes. The respondents were requested
to
return to classes and
respond
to
the
Surgeon Generals
’
request, on 28 February 2019, this time by Col Thulo, the second in
command at the military attaché in Cuba. To which request
the
respondents refused to accede. The respondents were addressed by the
delegation of South African Military Health Services on
5 March 2019.
Speaking to the respondents, this time Gen Dabula requested of the
respondents to return to classes. He also responded
to their concerns
and allayed their fears that ‘The South African Military Health
Services will register us as students [the
respondents] before June
2019 but if this does not happen we [they] must be patient as it will
be done.’
[2]
Lastly, the
General advised that the Chief of the SANDF had instructed him to
bring back those respondents who did not wish to
attend classes any
longer. On the very same day, being the 8
th
March 2019, the respondents advised the Gen Dabula that they were
‘desirous to return to South Africa and to be withdrawn
from
Cuba’.
[14]
On 9 March
2019 the Director of Intelligence Brig. Gen Dyantji also requested
the respondents to return to classes and the
respondents
submitted
that they
decided not to continue with their studies because of the concerns
they had raised. On the 26
th
March 2019 the respondents were transported back to South Africa and
handed letters dated 25 February 2019 that they were discharged
from
the SADF.
[15]
As alluded to
above the respondents sought to review and set aside the decision of
the SANDF. Having been unsuccessful in the
Court
a quo
on
19 July 2019 the appellants sought and were granted on, 10 September
2019, leave to appeal the that Judgement. On 5 December
2019 the
respondents brought and succeeded in an application in terms of
section 18(1)
- (3) for their immediate reinstatement. This resulted
in the appellants seeking to appeal that order in terms of
section
18(4)
of the
Superior Courts Act. It
is these consolidated appeals
that are before this Court.
The
Letter of 25 February 2019
[16]
It is prudent
in these proceeding
s
to
set out the salient feature of the aforesaid correspondence as it
assists in shedding light on the arguments advanced by the
parties.
This correspondence as is evident is dated 25 February 2019 prior to
the respondents return to South Africa and
it’s
addressed to the
respondents the ‘South African Students’. The subject
matter is recorded as: ‘Administrative
Dismissal/Discharge from
the South African National Defence Force of Members who are currently
studying in the Republic of Cuba.’
In this correspondence the
names of the respondents are listed initially and thereafter the
following paragraphs appear:
‘
3.
From 11 February 2019 to date you have been refusing to attend
classes as required and/or instructed by your superior officers
and/or instructors. On 13 and 16 February 2019, the Defence Attaché
(DA) in Cuba Brigadier General N.T Majola personally
instructed you
to return to classes, but you refused.
4.
Your conduct is akin to, if it is not mutiny and is regarded as a
very serious offence and or misconduct in many militaries including
SANDF.
5.
The Surgeon General (SG) requested the C SANDF to administratively
discharge /dismiss you from the SANDF because of this conduct.
You
were offered an opportunity to make written submissions to C SANDF to
show cause why you should not be administratively
discharged/dismissed
from SANDF. You have refused to exercise that
right.
6.
C SANDF is left with no alternative but to make a decision without
hearing your side. Therefore, you are all dismissed /discharged
from
the SANDF with immediate effect. You are instructed to return to your
Units and clear out from the SANDF.’
[17]
Taking
the aforesaid correspondence into account the
court
a
quo
concluded
that it was common cause amongst the parties that the respondents’
services were terminated by the SANDF in terms
of
section 59
(3) of
the
Defence Act 42 of 2002
.
[3]
The
appellant’s challenge on appeal
[18]
The
court
a quo
having found that the
operative date, 25 February 2019, for the termination of the
respondent amounts to a misdirection according
to the appellants.
This they contend cannot be correct in light of the fact that the
decision had not been communicated to the
respondents by then and was
only communicated to them on 26 March 2019. To this end reference was
made of
Carlson
Investments Share Block (Pty) Ltd v Commissioner, SARS
2001 (3) SA 210
(W) at 222E-H &225I-J.
[19]
The
respondents concede that the decision to terminate their services was
only conveyed to them on 26 March 2019, however, they
agree with the
court
a
quo’s
finding
that the decision to do so was made on 25 February 2019.
[20]
The
second challenge raised by the appellant’s is against the
finding of the
court
a
quo
that the process set out in
section 103(1)
of the defence Act,
[4]
that a period of 30
days
should have elapsed from the date of the decision (25 February 2019)
prior to a termination in terms of
section 59(3).
This the appellants
contend amounts to yet another misdirection by the
court
a
quo
as this decision is in conflict
with
the findings of the Supreme Court of Appeal in the
Minister
of Defence & Military Veterans & Another v Mamasedi
case
where it was stated that a board convened in terms of
section 103
‘has no power to determine the reasons for the absence without
leave’.
[5]
Furthermore,
the appellants argue that the operation of
section 103(1)
, as regards
the formation of the board before the expiration of 30 days or even
before a termination in terms of
section 59(3)
, cannot be logical.
This is so, as on a proper reading of
section 103
it clearly denotes
the past tense, meaning one had to be absent for 30 days and is still
absent when the board ought to be convened.
[21]
The
respondents concur with
the court
a
quo’s
finding that a period of 30
days had not expired and no board was convened and the decision
to
terminate in terms of
section 59(3)
was reviewable.
[22]
Lastly,
whether in fact there was indeed a decision to dismiss by the
appellants and whether the jurisdictional prescript of
section 59(3)
were met.
Discussion
[23]
The appropriate starting point of this
discussion is to address the deeming provision being
section 59(3)
and what are the legal consequences of such deeming provision. This
in turn will shed light on other issues to be addressed in
this
judgment.
[24]
Borrowing from a case of the Supreme Court
of Canada,
R v Verrette
[1978] 2 SCR 838
at 845, Beetz J speaking for that court eloquently
provides insight on what a
deemed
provision
is:
‘
A
deeming provision is a statutory fiction; as a rule it implicitly
admits that a thing is not what it is deemed to be but decrees
that
for some particular purpose it shall be taken as if it were that
thing although it is not or there is doubt as to whether
it is. A
deeming provision artificially imports into a word or expression an
additional meaning which they would not otherwise
convey beside the
normal meaning which they retain where they are used; it plays a
function of enlargement analogous to the word
“includes”
in certain definitions; however, “includes” would be
logically inappropriate and would sound
unreal because of the
fictional aspect of the provision.’
[25]
In
a decision closer to home
Phenithi
v Minister of Education & Others
2008 (1) SA 420
(SCA) at para 9 & 10 Mpati DP relied on the dicta
of Van Heerden JA in the
Louw
[6]
case
referred to herein:
‘
[9]
In
Minister
van Onderwys en Kultuur v Louw
this
court had occasion to deal with the provisions of s 72 of the
Education Affairs Act (House of Assembly), 70 of 1988,
which were
almost identical to those of s 14 of the Act. Section 72(1) of Act 70
of 1988 provided that a person ‘employed
in a permanent
capacity at a departmental institution and who – (a) is absent
from his service for a period of more than
30 consecutive days
without the consent of the Head of Education…shall, unless the
Minister directs otherwise, be deemed
to have been discharged on
account of misconduct....’. The respondent in
Louw’s
case
was a general assistant and in permanent employment at a boarding
house of a certain high school in Upington. He failed
to report for
duty over the period 29 July to 31 August 1992. On 11 September the
principal wrote him a letter informing him, in
essence, that
according to the school governing council he had been discharged
(from duty) (‘dat u ontslaan is’) and
that his last day
of service was 28 July 1992. Following unsuccessful negotiations
between his representatives and the education
authorities the
respondent instituted application proceedings in the Northern Cape
Division seeking, inter alia, an order setting
aside the ‘decision’
to terminate his services with effect from 28 July 1992. In this
court Van Heerden JA, reversing
the decision of the Northern Cape
Division, said (at 388 G-H):
‘The
deeming provision [of s 72(1)] comes into operation if a person in
the position of the respondent (i) without the consent
of the “Head
of Education” (ii) is absent from his service for more than 30
consecutive days. Whether these requirements
have been satisfied is
objectively determinable. Should a person allege, for example, that
he had the necessary consent and that
allegation is disputed, the
factual dispute is justiciable by a court of law. There is then no
question of a review of an administrative
decision. Indeed, the
coming into operation of the deeming provision is not dependent upon
any decision. There is thus no room
for reliance on the
audi
rule
which, liberty of a person.’ The court held further that where,
as in that case (and also the present matter) the
employee is
informed in a letter of discharge that he/she has been discharged in
terms of s 72(1) - in this case s 14(1) (a) -
it is not the
consequence of a discretionary decision, but merely the notification
of a result which occurred by operation of law
(at 388 I).in its
classic formulation, is applicable when an administrative – and
discretionary – decision may detrimentally
affect the rights,
privileges or [10] In my view, the
Louw
judgment
is definitive of the first issue in the present matter, viz whether
the appellant’s discharge constitutes an
administrative act.
(See also
Frans
v Groot Brakrivierse Munisipaliteit en Andere
1998
(2) 770 (C) 777I-779E.) There was no suggestion that
Louw
was
wrongly decided. There being no ‘decision’ or
‘administrative act’ capable of review and setting
aside,
the second part of the first prayer in
casu
,
viz that the ‘decision be declared an unfair labour practice’,
falls away.’
[26]
Acknowledging
that section 59(3) is a deeming provision, that is, once a member
absents himself or herself form official duty without
permission for
more than 30 days, the operation of law kicks in and it is deemed
that the member is dismissed. There is no decision
taken
whatsoever.
[7]
Notably it is
apparent that the Court
a
quo
appreciated the fact that once one is absent without permission for
more than 30 days one must be regarded as having been dismissed
in
terms of the deeming provision, section 59(3).
[27]
Now if there is in fact no decision taken
and the dismissal is purely by operation of law, there will most
certainly be no decision
or administrative act to review as was
pointed out in the cases of
Louw and
Phenithi
above. Hence, in these
circumstances the dismissal ‘decision’ was not
susceptible to review. However, the enquiry does
not end here. The
Court
a quo
was clearly misdirected, in light of
Louw’s
case, in dealing with whether all the
jurisdictional factors for the grant of a dismissal in terms of
section 59(3) were in place,
in that she added an addition
jurisdictional fact. This fact being, that a board of enquiry in
terms of section 103(1) must have
been established where a member is
absent for more than 30 days to determine whether a member is absent
and the reason for that
member’s absenteeism.
[28]
The
appellant raised concerns about the section 103 interpretation of the
Court
a
quo
in reasoning that there was no merit in their submission that the
board of enquiry need not be established in a dismissal in terms
of
section 59(3). In our view the appellants were correct to point this
out to the Court
a
quo
as it’s reasoning of the applicability of section 103 for the
jurisdictional facts to be at play for the grant of a section
59(3)
dismissal was contrary to what the dicta in
Mamasedi
sets
out. The Supreme Court of Appeal highlighted that the establishment
of the board in terms of section 103 was solely to verify
that indeed
the member was still absent and was to establish the whereabouts of
that absent member’s kit. Evidently, it is
in no way
constituted to establish the reason for the member being absent
[8]
as was determined by the Court
a
quo
.
[29]
The court
a
quo
reasoned that the ‘decision
to terminate the services of the applicants was taken by the first
respondent on 25 February
2019’ and as such she reasoned that
this was the operative date. It is noted that the notification of the
termination of
the respondents is dated 25 February 2019. The court
goes on to state that ‘The fact that the letter was only handed
to the
applicants at a later stage (on 26 March 2019) is in my view
irrelevant…’ This cannot in our view be the case as the
notification to the respondents of their dismissal is pertinent to
this case. The Court
a quo
reasoned that the operative date of the 25 February 2019 is the date
that a ‘decision’ was taken to terminate the respondents
and this culminates in the decision having been taken before the
expiration of the requite 30 days.
[30]
Does
the letter of 25 February constitute a ‘decision’? To
this end it is prudent that we examine what a decision entails
and
how is it effected. It is trite that a decision entails a form of a
choice or evaluation.
[9]
As
such, it stands to reason that one must have a choice in order to
make a decision or one needs to evaluate a situation in order
to
decide. If a decision affects an individual’s rights it clearly
ought to be communicated to that individual for it to
become
effective. This embraces the principle of fair administrative
procedure that dictates that finality is imperative in the
decision
making process and importance of the
functus
officio
rule.
[10]
[31]
Following on the issue as to whether the
letter of the 25 February 2019 constitutes a decision it is pertinent
to examine the conduct
of the parties. On 11 February 2019 the
respondents having been informed that they will attend classes at the
infantry school the
respondents decided not to attend classes. On 12
February 2019 a
first attempt
was made by the appellant’s informing the respondents that the
infantry school was where they would attend classes. The respondents
refused and sent off their own correspondence of 13 February 2019
raising their concerns.
[32]
For easy reference the contents of the
letter of 13 February 2019 are:
‘
1.
On the 11 February 2019, it has been announced to us the medicine
group 2018 by the current head of medicine students at Santiago
de
Cuba in the Escuela Interarmas General Jose Maceo (which is the Cuban
infantry school) where we are currently doing preparations
to study
medicine in September 2019.
2. The announcement was
that we are going to study medicine here at the Escuela Interarmas
General Jose Maceo, which is not an accredited
medical institution
and not a recognized medical university by Health Professionals
Council of South Africa (HPCSA) or Cuba as
required.
…
4.
It also came to our attention that our fellow companions (medicines
group of 2017) that were doing first at Universidad Ciencias
Medicas
Facultad 2 are being removed from the university forced to come and
study separately as South African students alone in
Escuela
Interarmas General Jose Maceo in Santiago de Cuba. To be joined by us
the group of 2018 (as South Africans alone) in September
2019 as the
first class and the only class of medicine and they are currently not
registered as medical students studying abroad
at HPCSA as required.
Additionally, even if it was a medical university recognised by
HPCSA, the living arrangements are not favourable
for studying
medicine or any serious course. The overcrowded bungalow with more
than 50 people doing different courses with different
programs,
lights being switched off at 22h00 daily and being expected to
perform well in the end while studying with a foreign
language are
few of the reasons that are making it more unfavourable for studying.
5. We are therefore not willing to study medicine
here and therefore
cannot do preparation course if it means we will be studying medicine
here at the Escuela
Interarmas General Jose
Maceo, due to the above mentioned conditions and stipulation
conditions on the study contract we signed
with the South African
National Defence Force (SANDF).’
[33]
A
second
attempt
was made by the appellants on
16 February 2019 when Brig. Gen Majola addressed the respondents
individually, but still no joy.
On 18 February 2019 correspondence
was handed to the respondents dated 17 February 2019 seeking from the
respondent’s submissions
why they should not be
administratively dismissed or discharged for not attending classes as
required and /or instructed by their
senior officers. The respondents
responded by sending off their letter of the 13 February 2019 yet
again. A
third attempt.
[34]
I pause here to highlight that in the
letter of 17 February 2019 mention is made of the offence of mutiny,
it is clear that the
appellants stressed that they had an intent to
apply for the respondent’s administrative dismissal/discharge.
They had not
as yet taken a decision and required the respondents to
show cause why they should not follow up on their intent.
[35]
On 20 February 2019 the respondents were
addressed by Brig. Gen Majola again individually and they were
advised that their response
of 13 February 2019 was inadequate.
Majola even addressed the respondents’ individual concerns but
the respondents retorted
that they had responded to the request set
out in the letter of 17 February 2019. This is the
fourth
attempt
.
[36]
On 20/21 February 2019 the respondents were
requested to hand in their Cuban uniforms and on 25 February 2019
four of the respondents
decided to go back to classes. On 28 February
2019 the respondents were instructed by Col Thulo, the second in
command, to return
to classes and responded to the letter of 17
February 2019. The respondents refused being the
fifth
attempt
.
[37]
On 6 March 2019 a delegation of the South
African Military Health Services arrived and they too requested of
the respondents to
attend classes and provided the assurance that
before June 2019 they would be registered as students. Yet again, the
sixth attempt
with
the requite assurance that they had been seeking all along.
[38]
On 8 March 2019 the respondents informed
the appellants that they were ‘desirous to return to South
Africa and to be withdrawn
from Cuba’. The respondents were
advised that if they withdrew they would be discharged. Another
attempt
to
get them to classes.
[39]
On 9 March 2019 the director of
intelligence Brig Gen Dyantji yet again requested that the
respondents return and that the SAMHS
would sort out the
accreditation issue, however, the respondents state that ‘We as
applicants decided not to proceed with
our studies because of the
concerns.’ The
final attempt
.
[40]
On 26 March 2019 and in South Africa the
respondents were handed the letter of the 25 February 2019 advising
that they were now
discharged for misconduct in that from 11 February
2019 they failed and or refused to attend classes as required and
instructed
to do so by their superior officers.
[41]
Conspicuously, from 11 February 2019 to 25
February 2019 the appellants had made no less than four attempts to
get the respondents
back into their classes. From the 25 February
2019 up until the 26 March 2019 was another four attempts made.
Ironically, on both
the 8 March 2019 and on 9 March 2019 the
respondents were reassured as regards to their concerns, but they
opted to withdraw and
leave Cuba. A further validation that the 25
February 2019 could not be taken as the operative date is the fact
that on 28 February
2019 the respondents are addressed by the second
in command Col Thulo and he instructs them to return to classes but
they refuse.
[42]
It goes against logic that the appellants
would have not communicated their decision when they supposedly took
it on 25 February
2019. Not when they literally begged the
respondents on various occasions thereafter to return to classes,
having supposedly taken
a ‘decision’. Clearly that cannot
be the case. Even if one believes the appellants were considering
that specific ‘decision’,
it would have only been
effective once communicated to the affected parties. So it cannot be
that the operative date is 25 February
2019 but rather 26 March 2019
when the affected parties where notified of their dismissal, which by
the way was not by way of a
decision but operation of law in
achieving finality.
[43]
In addition, the respondents
were given opportunities to make submissions why they should not be
discharged, the
audi alterum partum
principle coming into play, but were dogmatic and dug in their heels
relying on their response of the 13 February 2019, even when
they
were advised that same was not sufficient. Evidently on the
respondents in respect of the return to South Africa, the respondents
had by then absented themselves from their classes for more than 30
days, without permission. Critically one needs to acknowledge
that
attending medical classes was the very purpose for which they had
been sent to Cuba and contracted with the SANDF.
[44]
It
must be stressed that in these circumstances, that is a dismissal in
terms of section 59(3), there is no decision per se to dismiss,
but
merely one is deemed to be dismissed by operation of law in that the
requisite time having lapsed.
[11]
[45]
For the reasons set out above the appeal
must succeed as the court
a quo
clearly misdirected itself in granting the orders that it made.
The
section 18(4) appeal
[46]
Having succeeded in the main review
application the respondents sought an order in terms of section 18(3)
of the Superior Court
Act. This was granted on an urgent basis that
the order of the main review application be put into effect pending
the appeal launched
in the main application and pending further
appeal processes.
[47]
The effect of a section 18 (4) appeal is
that it is an automatic appeal. Section 18(4) reads as follows:
‘
(4)
If a court orders otherwise, as contemplated in subsection (1)-
(i)
the court must immediately record its
reasons for doing so;
(ii)
the aggrieved party has an automatic right
of appeal to the next highest court;
(iii)
the court hearing such an appeal must deal
with it as a matter of extreme urgency; and
(iv)
such order will be automatically suspended,
pending the outcome of such appeal.’
[48]
There
was argument whether this full court constituted the next highest
court and this was resolved by having regard to the default
position
that this matter was presided over by a single judge and the next
highest Court would clearly be a Full Court of the division.
[12]
Having settled the issue of the next highest Court I turn to the
appeal against the section 18 (3) order which makes the main review
order operative on an urgent basis.
[49]
It stands to
reason that if the appeal on the main review application succeeds
then the order granted in those proceedings falls
away and as it
follows there is no order to give effect to in terms of section
18(3). This appeal ought to succeed as well
and costs in both
appeals are to follow the result.
Order
[50]
Consequently,
the following order is made:
1.
The appeal in the main review application succeeds with costs,
including the costs of two counsel where so
employed.
2.
The appeal in terms of section 18(4) (ii) of the section 18(3) order
likewise succeeds with costs, such costs
to include the employment of
two counsel where so employed.
Electronically
signed
W
Hughes
Judge
of the Gauteng
High
Court, Pretoria
It
is so ordered:
Electronically
signed
D
Mlambo
Judge President of
the
Gauteng High Court,
Pretoria
I
concur:
Electronically
signed
J Francis
Judge
of the Gauteng High Court, Johannesburg
APPEARANCES:
For the
Appellants: Adv.
T SKOSANA SC
Adv.
T LUPUWANA
Instructed
by:
The
State Attorney Office, Pretoria.
For the
Respondents: Adv. G L VAN
DER WESTHUIZEN
Instructed
by:
GRIESEL
& BREYTENBACH Attorneys
[1]
Memorandum
of Agreement - annexure “WHM3”.
[2]
Para
64.4 if the respondents founding affidavit in the review
application.
[3]
Section
59(3)
-
A member of the Regular
Force who absents himself or herself from official duty without the
permission of his or her commanding
officer for a period exceeding
30 days must be regarded as having been dismissed if he or she is an
officer, or discharged if
he or she is of another rank, on account
of misconduct with effect from the day immediately following his or
her last day of
attendance at his or her place of duty or the last
day of his or her official leave, but the Chief of the Defence Force
may on
good cause shown, authorise the reinstatement of such member
on such conditions as he or she may determine.
[4]
Section
103(1) –
When any member of the
Defence Force has been absent without leave for more than 30 days
and is still absent, a board of inquiry
must be convened by the
commanding officer of the absent member to inquire into such
absence.
[5]
Minister
of Defence & Military Veterans & Another v Mamasedi
2018 (2) SA 291
(SCA) at para’s 9-11.
[6]
Minister
van Onderwys en Kultuur v Louw
1995 (4) 383 (A)
[7]
Minister
of Defence and Others v South African National Defence Union and
Another
2014 (6) SA 269
(SCA) at para 8;
Mamasedi
2018 (2) SA 305
(SCA) at para 3 & 24.
[8]
Mamasedi
at
para 11
[9]
Nedbank
Ltd v Mendelow and Another NNO
2013 (6) SA 130
(SCA)
at para 25:
‘
[25] Administrative
action entails a decision, or a failure to make a decision, by a
functionary, and which has a direct
legal effect on an individual. A
decision must entail some form of choice or evaluation. Thus while
both the Master and the Registrar
of Deeds may perform
administrative acts in the course of their statutory duties, where
they have no decision making function
but perform acts that are
purely clerical and which they are required to do in terms of the
statute that so empowers them, they
are not performing
administrative acts within the definition of the PAJA or even under
the common law.’
[10]
Carlson
Investments Share Block (Pty) Ltd v Commissioner, SARS
2001
(3) SA 210
(W) at 222E-H & 225I-J.
[11]
Grootboom
v NPA
2014 (2) SA 68
(CC) at para 38;
Mamasidi
at para 3.
[12]
Section
17(6)(a)
of the
Superior Courts Act;
MEC
of Co-Operative Governance v Mogalakwena Municipality
2017 (2) SA 464
(GP) at 466E-470A.