About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 312
|
|
Masinga and Others v Chief of the South African National Defence Force and Another (27234/19) [2019] ZAGPPHC 312 (19 July 2019)
THE REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE NO:
27234/19
19/7/2019
In the matter between:
WILLIAM
FRANCE MASINGA
1st Applicant
RIRHANDZU
JOY KHOSA AND 33 OTHERS
2nd to 35th Applicants
and
CHIEF
OF THE SOUTH AFRICAN NATIONAL
DEFENCE
FORCE
1st Respondent
THE
MINISTER OF DEFENCE AND MILITARY
VETERANS
2nd Respondent
THE
SURGEON GENERAL OF THE NATIONAL
DEFENCE
FORCE
3nd Respondent
THE
SECRETARY OF DEFENCE
4th Respondent
JUDGMENT
AC BASSON, J
[1]
This is an urgent application in terms of which the applicants are
seeking
an order that the decision of the 1st respondent (the Chief
of the South Africa National Defence Force) to terminate their
employment
be declared unlawful and invalid and that such decision be
reviewed and set aside. They also seek an order reinstating them
within
seven days from the date of this order in the service of the
South African Defence Force ("the SANDF") with full
retrospective
effect, with retention of all salaries and benefits as
from the date of the unlawful termination of their service.
[2]
Although urgency was not in dispute, I have nonetheless considered
the
point and I am satisfied that the matter is sufficiently urgent
to proceed. This being an urgent application, my reasons for my
order
will be brief.
Brief
background
[3]
The applicants are part of a group of the South African Military
Health
Services that were afforded the opportunity to study medicine
("MBCHB") at the University of Cuba in 2017 (also referred
to as "the 2017 group"). The group of 35 consists of
officers and non-commissioned officers who were in the employee
of
the SANDF in various capacities including but not limited to clinical
associates, nurses and dental technicians. Many of the
applicants
have been in the employ of the SANDF for more than 10 years. All the
members of this group are registered with the Health
Professions
Council of South Africa and the South African Nursing Council. They
arrived in Cuba during August 2017 and commenced
with a Spanish
Course and a pre-medical course. Both of these courses were
compulsory and ended during July 2018.
[4]
During April 2018 the 2017 group raised some concerns with the
Surgeon
General and the Director of Medicine. The details of these
concerns are not relevant for purposes of this judgment. Suffice to
point out that these concerns culminated in the applicants taking a
decision, effective from 11 February 2019, to refuse to attend
classes and/or training at the Military Infantry School. The date of
11 February 2019 is not in dispute. For the entire duration
of their
refusal to attend classes, the applicants remained at their
designated base in Cuba.
[5]
There is a dispute about how long the applicants refused to attend
classes
and when the decision was taken by the first respondent to
terminate their services. I will return to this issue herein below.
[6]
On 18 February 2019, the applicants were handed a letter dated 17
February
2019 from the third respondent indicating his intention to
approach the first respondent to recommend the administrative
discharge
of the applicants from the SANDF. The applicants were also
accused of committing mutiny which is a serious offence in the SANDF.
In the letter the applicants were instructed to make written
submissions to the first respondent showing good cause as to why they
should not be dismissed/discharged. This the applicants did. On 20
February 2019 they were informed that their submissions were
not
acceptable.
[7]
On or about 21/22 February 2019, the applicants were requested to
hand
in their Cuban uniforms. They were also instructed not to leave
their base because they would be returning to South Africa.
[8]
On 25 February 2019, four of the group decided to go back to class.
They
are currently still in Cuba. The applicants state that during
this period whilst they were waiting to return to South Africa, they
continued to attend the daily roll call.
[9]
On 28 February 2019, the applicants were once again instructed by the
second in command at the office of the military attache in Cuba to
return to class. The applicants once again refused to do so until
their grievances were resolved.
[10]
On 8 March 2019 a further meeting took place with a delegation of the
South African Military
Health Services during which the applicants
were again instructed to attend classes. The applicants refused and
informed the delegation
that they were under the circumstances
desirous to return to South Africa and to be withdrawn from the
programme. Letters to this
affect were submitted. The applicants were
informed on the same day that, if they withdraw, they will be
discharged from the SANDF.
[11]
On 9 March 2019, the Director of Intelligence interviewed the first
applicant and informed
the him (the applicant) that, if they do not
return to class, they will be fired. The applicants once again
decided not to proceed
with their studies because of their concerns.
[12]
From the aforegoing it is clear that by 9 March 2019 at the latest,
the respondents were
fully appraised of the intention of the
applicants not to return to their classes and that they were in fact
withdrawing from the
programme.
The letter
dated 25 February 2019
[13]
On 25 February 2019 the first respondent wrote a letter advising the
applicants of his
decision to administratively dismiss/discharge them
from the SANDF. The letter, although dated 25 February 2019, was only
given
to the applicants on 26 March 2019. In one instance the letter
was already given to another member of the group on 19 March 2019
when she had to return to South Africa to attend a funeral. On their
return to South Africa the applicants were escorted by military
police to clear out their units where after they were sent home.
[14]
The letter dated 25 February 2019 is entitled " Administrative
Dismissal/Discharge from
the South African National Defence Force of
Members who are Currently Studying in the Republic of Cuba". The
letter records
the names of the various applicants and confirms that,
as from 11 February 2019, they were refusing to attend classes as
required
and/or instructed by their superior officers. The letter
further states that the applicants' conduct is akin to "mutiny"
and if it is not mutiny, it is regarded as a very serious offence or
misconduct. Further according to the letter, the Surgeon General
requested the first respondent to administratively dismiss the
applicants from the SANDF because of their misconduct. The letter
also states that the decision to terminate/dismiss the applicants was
taken without affording them a hearing and that their services
were
terminated with immediate effect. The letter concludes with the
following paragraph:
"6. C
SANDF [the Chief of the South African National Defence Force:
General] is left with no alternative 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 of the SANDF."
[15]
Although it is not specifically recorded in this letter, it was
common cause that the decision
to terminate/dismiss the applicants
from the SANDF was taken in terms of section 59(3) of the Act. This
section reads as follows:
"59
Termination of service of members of Regular Force
(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."
[16]
The purpose of section 59(3) of the Act was explained by the Supreme
Court of appeals in
the Minister of Defence and others South African
National Defence Union and another as follows :[1]
"[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."
[17]
A member's services are thus terminated ex lege or automatically in
circumstances where the member
has absented himself or herself from
official duty for a period exceeding 30 days.[2] If the member has
been absent for less than
the prescribed 30-day period, the SANDF may
not treat the member as having been automatically dismissed.
[18]
It is accepted that, where the services of a member has been lawfully
terminated in terms
of section 59(3) of the Act, such member will
remain dismissed until the Chief of the SANDF has taken a decision to
reinstate such
member.[3] Because a discharge in terms of the section
59(3) of the Act constitutes a termination of employment by operation
of
law, it follows that no dismissal exists that could be challenged:
The only recourse that exists is for the member to make submissions
to the Chief of the SANDF to reinstate him or her.
[19]
Certain jurisdictional facts must, however, be met prior to an
automatic dismissal in terms
of section 59(3) of the Act: (i) the
member must be absent from official duty; (ii) there must be lack of
permission from the member's
commanding officer and; (iii) the
absence must be for a period exceeding 30 days. Furthermore, in terms
of section 103(1) of the
Act, a board of enquiry "must"
have been established where a member is absent without leave for more
than 30 days and
is still absent. The purpose of that enquiry is to
determine whether the member is indeed absent without leave and if
so, the reasons
therefore. This section reads as follows:
"103
Board of inquiry in relation to absence without leave
(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.
(2)
If a routine inspection reveals any deficiency in the kit, arms and
equipment or any
public property issued to the person contemplated in
subsection (1), the board of enquiry may also inquire into such
deficiency.
(3)
If the board of inquiry finds that such member has been so absent for
more than 30
days and is still so absent, it must record such
finding, including the date of the commencement of the absence
without leave,
and also its finding on any deficiencies of the kit,
arms and equipment and any public property issued to him or her and
the estimated
value thereof."
[20]
Counsel on behalf of the respondents tried to persuade the court that
it is not necessary
to have established a board of enquiry prior to
the first respondent having taken the decision to terminate the
services of the
applicants in terms of section 59(3) of the Act.
There is no merit in this submission. The import of section 103(1) of
the Act
is clear: 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. This is a requirement
regardless of whether the legal implication of section 59(3) of the
Act is that the member who is absent without leave, is dismissed
by
operation of law. This must be so because otherwise this provision of
the Act, which envisage the convening of a board of enquiry
where a
member is absent without leave, would be meaningless. If a member may
be dismissed before the convening of a board of enquiry,
then the
board would serve no purpose.
Is the
decision reviewable?
[21]
The decision taken by the first respondent to terminate the services
of the applicants
in terms of section 59(3) of the Act is an
administrative action as defined in section 1 of the Promotion of
Administrative Justice
Act[4] ("PAJA") and is therefore
reviewable: The decision taken constituted the exercise of a
statutory power of a public
and administrative nature taken by an
organ of State which adversely affected the applicants' rights and
which had a direct, external
legal effect.[5]
[22]
At the core of the definition of administrative action is the idea of
action (a decision)
'of an administrative nature' taken by a public
body or functionary.
[23]
While PAJA's definition purports to restrict administrative action to
decisions that, as
a fact, 'adversely affect the rights of any
person', I do not think t at literal meaning could have been
intended. For administrative
action to be characterised by its effect
in particular cases (either beneficial or adverse) seems to me to be
paradoxical and also
finds no support from the construction that has
until now been placed on s 33 of the Constitution... The
qualification, particularly
when seen in conjunction with the
requirement that it must have a 'direct and external legal effect',
was probably intended rather
to convey that administrative action is
action that has the capacity to affect legal rights, the .two
qualifications in tandem
serving to emphasise that administrative
action impacts directly and immediately on individuals.
[24]
Whether particular conduct constitutes administrative action depends
primarily on the nature
of the power that is being exercised rather
than upon the identity of the person who does so....Administrative
action is rather,
in general terms, the conduct of the bureaucracy
(whoever the bureaucratic functionary might be) in carrying out the
daily functions
of the State, which necessarily involves the
application of policy, usually after its translation into law, with
direct and immediate
consequences for individuals or groups of
individuals."
[22]
Counsel on behalf of the respondents also conceded that, in the event
this court finds
that section 59(3) of the Act was incorrectly or
unlawfully applied, then the decision would be reviewable.
Was the
applicants absent without leave for a period of not less than 30
days?
[23]
I have already referred to the fact that it is a jurisdictional
requirement that, before
section 59(3) of the Act can find
application, the member must have been absent for a period exceeding
30 days.
[24]
It is common cause that the applicants refused as from 11 February
2019 to attend classes.
The decision to terminate the services of the
applicants were taken by the first respondent on 25 February 2019.
This is the operative
date. The fact that the letter was only handed
to the applicants at a later stage (on 26 March 2019) is in my view
irrelevant,
as the letter clearly reflects the date on which the
decision to terminate was taken by the first respondent.
[25]
The decision to terminate the applicants' services was thus taken
before the lapse of the
requisite 30-days and further, without having
convened a board of enquiry as required in terms of section 101(3) of
the Act. (I
will deal more fully with the non compliance of the
latter section herein below.)
[26]
Further alternative arguments were also raised on behalf of the
applicants to bolster their
argument as to why the 30-day period has
not lapsed. It was submitted that the applicants were instructed on
21/22 February 2019
to hand in their Cuban uniforms and not to leave
the base where they were staying. Effectively they were thus
thereafter no longer
required to report where training was to take
place. On that date, so it was submitted, the 30-day period was
interrupted. Because
the applicants were only again instructed on 28
February 2019 to attend training (although they again re fused), it
was submitted
that, at best for the respondent, the 30-day period
again commenced running on 28 February 2019 until the letters were
handed to
them on 26 March 2019.
[27]
Although there seems to be merit in this submission, it is in my view
not necessary to
decide whether there was indeed an interruption of
the 30-day period in light of the letter dated 25 February 2019 which
records
the decision of the first respondent.
Non-compliance
with section 101(3) of the Act.
[28]
It was common that such a board of enquiry was not convened prior to
the decision having
been made to terminate the applicants' services.
This factor, together with my finding that the applicants' services
have been
terminated in circumstances where they have been absent for
a prior less than the requisite 30 days, renders in my view the
decision
unlawful. The decision taken by the first respondent in
terms of section 59(3) of the Act therefore falls to be reviewed and
set
aside.
Actual dismissal
[29]
The applicants were actually dismissed. This is not an instance of a
deemed discharge where section
59(3) of the Act could have found
application.
[30]
It is not this court's finding that the SANDF may not proceed against
the applicants on some
other basis provided for in the Act or the
Military Discipline Code of the SANDF. The SANDF may do so following
an appropriate
procedure.
[31]
It must also be pointed out that the applicants are not seeking to
evade the implementation of
proper disciplinary procedures against
them. All they insist upon is that the correct and appropriate
disciplinary procedures be
followed and that they be afforded the
necessary legal rights and protections.
Appropriate
remedy
[15]
The applicants have already (on 6 April 2019) requested the first
respondent to reinstate them.
Counsel for the respondents confirmed
that the request has not yet been considered because the first
respondent is still awaiting
the outcome of the board of enquiry
established by him.
[32]
In light of my finding that the decision to terminated in terms of
section 59(3) of the
Act is reviewable, the functions board of
enquiry in respect of the present dispute has become academic.
[33]
I am satisfied that reinstatement with full retrospective effect,
including salaries and
benefits that the members would have been
entitled to, is the appropriate remedy in the present circumstances.
Reinstatement is
further necessary to ensure that the members can
face any possible future charges that the SANDF may deem necessary to
prefer against
the applicants.
Order
[34]
In the event, the following order is made:
1. Condonation
is granted for the non-compliance with the rules of court in respect
of
the time, form and service of this application and it is ordered
that the application be heard as an urgent application.
2. It
is declared that the first respondent's decision to terminate the
first to 35st applicants'
service with the South African National
Defence force ("SANDF") is unlawful and invalid.
3. The
first respondent's decision to terminate the first to 35st
applicants' service is
reviewed and set aside.
4. The
first to 35st applicants are reinstated within seven days from the
date of this
order in the service of the SANDF with full
retrospective effect, with retention of all salaries and benefits as
from the date
of the unlawful termination of their service.
5. The
respondents, jointly and severally the one paying the other to be
absolved, are
ordered to pay the costs of this application.
AC BASSON
JUDGE OF THE HIGH COURT
Appearances
For the applicants:
ADV GL VAN DER WESTHUIZEN
Instructed by:
GRIESEL & BREYTENBACH ATIORNEYS
For the respondents:
ADV DT SKOSANA SC
ADV
T LUPUWANA
Instructed by:
STATE ATTORNEY
[1]
2014
(6) SA 269
(SCA).
[2] Ibid
at para [15].
[3] The
Court held in Minister of Defence and Military Veterans and Another
v Mamasedi
2018 (2) SA 305
(SCA): "(24] The first reason is
that re-instatement does not follow from the setting aside of the
decision not to re-instate
Mamasedi. He was discharged by operation
of law in terms of s 59(3) and, in the absence of a decision by the
Chief of the SANDF
to re-instate him, he remains dismissed from the
SANDF."
[4] Act 3
of 2000.
[5] See
section 1 of PAJA for a definition of administrative action and
'decision. See too Grey's Marine Hout Bay (Pty) Ltd &
others v
Minister of Public Works & others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA): "[21]
What constitutes administrative action - the exercise of the
administrative powers of the State - has always
eluded complete
definition. The cumbersome definition of that term in PAJA serves
not so much to attribute meaning to the term
as to limit its meaning
by surrounding it within a palisade of qualifications....
'Administrative action means any decision of
an administrative
nature made ... under an empowering provision [and] taken ... by an
organ of State, when exercising a power
in terms of the Constitution
or a provincial constitution, or exercising a public power or
performing a public function in terms
of any legislation, or [taken
by] a natural or juristic person, other than an organ of State, when
exercising a public power
or performing a public function in terms
of an empowering provision, which adversely affects the rights of
any person and which
has a direct, external legal effect.