About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 157
|
|
Minister of Defence and Military Veterans and Another v Mamasedi (622/2017) [2017] ZASCA 157; 2018 (2) SA 305 (SCA) (24 November 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 622/2017
In the matter between:
MINISTER
OF DEFENCE AND
MILITARY
VETERANS
FIRST
APPELLANT
CHIEF
OF THE
SANDF
SECOND
APPELLANT
and
JONAS
MOLEFI
MAMASEDI
RESPONDENT
Neutral
citation:
Minister
of Defence v Mamasedi
(622/2017)
[2017] ZASCA 157
(24 November 2017)
Coram:
Ponnan
and Majiedt JJA and Plasket, Mbatha and Schippers AJJA
Heard:
15
November 2017
Delivered:
24
November 2017
Summary:
Defence
Act 42 of 2002
–
Section 59(3)
– deemed dismissal of
member after absence of 30 days – re-instatement of member on
good cause shown – board
of enquiry making recommendation to
Chief of SANDF not to re-instate member – member not given
opportunity to participate
in proceedings of board of enquiry,
contrary to
s 102
of Act – decision of Chief of SANDF not to
re-instate member correctly set aside by court below on account of
procedural
unfairness – order of re-instatement of member
incorrectly made and set aside.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Wentzel AJ sitting as court of
first instance):
(a)
The appeal succeeds to the extent that paragraph 2 of the order of
the court below is set aside.
(b)
The order of the court below is accordingly amended to read as
follows:
‘
1 The decision of
the second respondent not to re-instate the applicant made on 4 June
2013 is reviewed and set aside.
2 The respondents are
ordered to pay the applicant’s party and party costs.’
JUDGMENT
Plasket
AJA (Ponnan and Majiedt JJA AND Mbatha and Schippers AJJA concurring)
[1]
The respondent, Mr Jonas Molefi Mamasedi, held the rank of sergeant
in 1 South African Tank Regiment in the South African National
Defence Force (SANDF) before his dismissal. He challenged by way of a
review application a decision taken by the second appellant,
the
Chief of the SANDF, not to re-instate him. Wentzel AJ, sitting in the
Gauteng Division of the High Court, Pretoria, made an
order setting
(1) aside the Chief of the SANDF’s decision not to re-instate
Mamasedi; (2) directed that he be re-instated
‘as a member of
the South African National Defence Force with full benefits including
his salary from 15 December 2011’;
and (3) directing the
appellants to pay Mamasedi’s costs. When the appellants applied
for leave to appeal against her order,
she granted leave to appeal to
this court.
The
facts
[2]
On 29 November 2011, Mamasedi failed to report for duty as he was
required to do. He remained absent without leave until 18
January
2012, when he returned to his unit. By that time, however, he was, in
terms of s 59(3) of the Defence Act 42 of 2002 (the
Act), deemed to
have been dismissed for misconduct. Section 59(3) provides:
‘
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.’
[3]
It has been held by this court, dealing with similar provisions in
other employment-related legislation, that dismissal follows
absence
in excess of the prescribed period by operation of law, consequently
no decision is taken to dismiss the employee that
is susceptible to
review, but that thereafter a decision may be taken to reverse a
dismissal if good cause for so doing is shown.
[1]
[4]
According to Mamasedi, after his return to his unit, and on
discovering that he had been dismissed, he travelled to the SANDF’s
Headquarters in Pretoria to lodge a grievance about his discharge. He
was advised to return to his unit in Bloemfontein, which
he did, and
to lodge his grievance with his commanding officer.
[5]
His commanding officer, Lieutenant-Colonel Jansen, informed him that
she would ‘only deal with [the] grievance as soon
as she
receives a confirmation from SANDF, Pretoria’. In the meantime,
she said, Mamasedi should remain in the barracks.
He left the
barracks on 9 March 2012 when he was, he claimed, ‘unceremoniously
locked out of the barracks’.
[6]
In the meantime, a board of enquiry had been convened on 18 January
2012 – the day of Mamasedi’s return to his unit
–
to investigate the reasons for Mamasedi’s absence without leave
and to make recommendations to the Chief of the SANDF
in that regard.
The board of enquiry had yet to make a recommendation by 7 December
2012 when Mamasedi made representations to
the Chief of the SANDF.
Receipt of the representations was confirmed on behalf of the Chief
of the SANDF on 22 January 2013. In
his representations, Mamasedi
stated that he had been absent without leave because he had been
‘abducted and taken to an
initiation school for the period from
29 November 2011 to 31 December 2011’.
[7]
The letter acknowledging receipt of the representations informed
Mamasedi that ‘the matter is currently being investigated
and a
response will be made available in due course’.
[8]
On 11 July 2013, Mamasedi received ‘final feedback from SA Army
Headquarters regarding the Ministerial Enquiry’
into his
absence without leave. The report of the board of enquiry, including
its recommendation, dated 21 February 2013, was attached.
The board
of enquiry recommended to the Chief of the SANDF that Mamasedi not be
re-instated. The Chief of the SANDF accepted the
recommendation and
decided not to re-instate Mamasedi.
[9]
The board of enquiry appears to have been convened in terms of s 101
of the Act. Section 101(1) provides:
‘
The Minister, the Secretary for
Defence or the Chief of the Defence Force may, at any time or place,
convene a board of inquiry
to inquire into any matter concerning the
Department, any employee thereof or any member of the Defence Force
or any auxiliary
service, any public property or the property or
affairs of any institution or any regimental or sports funds of the
said Force,
and to report thereon or to make a recommendation.’
[10]
I have said that the board of enquiry appeared to have been convened
in terms of s 101(1) of the Act because the answering
affidavit of
the Chief of the SANDF is unhelpful in this respect. He does not say
whether he or someone else convened the board
of enquiry and nor is
the convening order disclosed. Because the board of enquiry was
referred to in its report as a ‘ministerial
enquiry’ it
presumably was convened by the Minister of Defence and Military
Veterans in terms of s 101(1) of the Act.
[11]
Both counsel for the appellants and for Mamasedi assumed that the
board of enquiry was one contemplated by s 103 but that assumption
is
incorrect, and both conceded as much in argument. A board of enquiry
contemplated by s 103 is convened by the absentee soldier’s
commanding officer while the soldier is still absent without leave
and its purpose is to establish the fact that the soldier is
absent
without leave and whether any of his or her kit is missing. It has no
power to determine the reasons for the absence without
leave.
[2]
The
issues
[12]
Two issues arise for decision. They are, first, whether the decision
not to re-instate Mamasedi was vitiated by a failure of
procedural
fairness in that he was not given an oral hearing before the board of
enquiry made its recommendation to the Chief of
the SANDF and to
comment on the recommendation; and secondly, if that point succeeds,
whether re-instatement was relief that was
competent in the
circumstances. The implications of our findings, insofar as the
question of costs are concerned, will also have
to be considered.
Procedural
fairness
[13]
The procedure that was followed in this case was a two-stage process.
The board of enquiry investigated the facts relevant
to the reason
for Mamasedi’s absence without leave, and made a recommendation
to the Chief of the SANDF, who then took a
decision in terms of s
59(3) of the Act. This appears to have been a sensible approach
because a factual dispute existed as to
whether or not Mamasedi had
been abducted and taken to an initiation school, or had gone there of
his own free will.
[14]
In my view, the two-stage process in this case must be viewed
holistically and be seen as affecting rights at each stage, as
was
held to be the case in
Minister
of Health & another NO v New Clicks South Africa (Pty) Ltd &
others (Treatment Action Campaign & another as
amici curiae)
,
[3]
rather than as a bifurcated process involving, first, an
investigation with no effect on rights and, secondly, a decision that
affects rights, as was the approach in such cases as
Cassem
en ‘n ander v Oos-Kaapse Komitee van die Groepsgebiederaad en
andere
[4]
and
South
African Defence and Aid Fund & another v Minister of Justice
.
[5]
The latter two cases, based as they were on the discredited
‘classification of functions’ approach to procedural
fairness
and the idea that a right to be heard only applied if it was
impliedly incorporated into the empowering provision, are not
compatible
with s 33 of the Constitution.
[15]
The investigation of the board of enquiry followed by the decision
taken by the Chief of the SANDF not to re-instate Mamasedi
– to
refuse to make a ‘determination’ – taken together,
was an administrative action as defined in s 1
of the Promotion of
Administrative Justice Act 3 of 2000 (the PAJA): it was an exercise
of a statutory power of a public and administrative
nature taken by
an organ of State which adversely affected Mamasedi’s rights
and which had a direct, external legal effect.
[6]
[16]
The PAJA gives effect to the fundamental right to administrative
action that is lawful, reasonable and procedurally fair.
[7]
Section 3, insofar as it is relevant to this case, provides:
‘
(1) Administrative action which
materially and adversely affects the rights or legitimate
expectations of any person must be procedurally
fair.
(2) (
a
) A fair administrative
procedure depends on the circumstances of each case.
(
b
) In order to give effect to
the right to procedurally fair administrative action, an
administrator, subject to subsection (4),
must give a person referred
to in subsection (1) -
(i)
adequate notice of the nature and purpose of the proposed
administrative action;
(ii)
a reasonable opportunity to make representations;
(iii)
a clear statement of the administrative action;
(iv)
adequate notice of any right of review or internal appeal, where
applicable; and
(v)
adequate notice of the right to request reasons in terms of section
5.
(3) In order to give effect to the
right to procedurally fair administrative action, an administrator
may, in his or her or its
discretion, also give a person referred to
in subsection (1) an opportunity to-
(
a
) obtain assistance and, in
serious or complex cases, legal representation;
(
b
) present and dispute
information and arguments; and
(
c
)
appear in person.’
[17]
Section 3(5) of the PAJA provides that where an administrator ‘is
empowered by any empowering provision to follow a procedure
which is
fair but different from the provisions of subsection (2), the
administrator may act in accordance with that different
procedure’.
[18]
Section 6(1) of the PAJA provides that any person affected by
administrative action ‘may institute proceedings in a court
. .
. for the judicial review of an administrative action’. Section
6(2) catalogues the grounds upon which administrative
action may be
reviewed. Section 6(2)(
c
)
provides that administrative action may be reviewed by a court if
‘the action was procedurally unfair’.
[19]
The proceedings of the board of enquiry were regulated, procedurally,
by s 102 of the Act. Section 102(4) provides that the
evidence given
in any hearing of a board of enquiry must be given orally, subject to
three exceptions not relevant in this case.
[8]
Section 102(6) provides that if a person’s reputation is likely
to be affected by evidence adduced before a board of enquiry,
that
evidence must be given orally even if one of the exceptions applies,
and the person affected has the right to be present,
to cross-examine
the witness who tendered it, to testify himself or herself and to
call witnesses.
[20]
Section 102(7) places an obligation on the president of the board of
enquiry to notify such an affected person timeously ‘of
the
time and place’ of every meeting of the board of enquiry and of
his or her rights in terms of s 102(6). That person,
in terms of s
102(7), may address the board of enquiry on the evidence that had
been tendered in favour of and against him or her
and has a right to
legal representation at his or her own expense or assigned to him or
her at State expense. Finally, s 102(9)
provides:
‘
Before
the record of proceedings is submitted to the person who convened the
board, the relevant findings and recommendations of
a board of
inquiry must be communicated to each person who is adversely affected
by such findings and recommendations and that
person has the right to
make written representations to the person who convened the board of
inquiry within 14 days of receipt
of the relevant findings and
recommendations.’
[21]
It is clear from s 102 that Mamasedi, being a person whose reputation
was likely to be affected by evidence led before the
board of
enquiry, had a right to participate in its proceedings. The
procedural rights he enjoyed extended beyond the minimum core
rights
to procedural fairness envisaged by s 3(2) of the PAJA. He had a
right to give oral evidence, to call witnesses, to cross-examine
witnesses and to be legally represented. The procedure created by s
102 of the Act is more extensive in its procedural protections
than
the PAJA and on that account, I find that it is a procedure that is
fair and different to s 3(2) of the PAJA, as contemplated
by s 3(5)
of the PAJA.
[9]
[22]
It is common cause that Mamasedi was never afforded the opportunity
to participate in the proceedings of the board of enquiry
and neither
were its findings and recommendation communicated to him for his
comments before being forwarded to the Chief of the
SANDF. His right
to procedurally fair administrative action was violated, and the
ground of review envisaged by s 6(2)(
c
) of the PAJA was
established, with the result that the Chief of the SANDF’s
decision not to re-instate him was correctly
set aside by the court
below.
Re-instatement
[23]
After the court below had made an order setting aside the decision of
the Chief of the SANDF, a further order was made re-instating
Mamasedi retrospective to 15 December 2011. That order cannot stand.
I say this for two reasons.
[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.
[25]
The second reason is that, if Wentzel AJ purported to substitute her
decision for that of the Chief of the SANDF, she misdirected
herself
in doing so. Administrative decision-making powers are vested by
legislation in administrators and not judges. When an
administrative
decision is set aside on review, generally speaking, it must be taken
again by the administrator concerned. As a
general rule, judges are
precluded by the doctrine of the separation of powers, which
allocates powers among the branches of government,
from taking such
decisions themselves. They also often do not have the expertise to do
so.
[10]
[26]
It is only in limited circumstances when such a ‘usurpation’
of administrative power is permitted. Section 8(1)(
c
)(ii)
of the PAJA provides that ‘in exceptional circumstances’
a court, having reviewed and set aside administrative
action may
substitute or vary the administrative action. In
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd & another
,
[11]
the Constitutional Court set out the way in which the exceptional
circumstances exception is to be applied:
‘
To my mind, given the doctrine
of separation of powers, in conducting this enquiry there are certain
factors that should inevitably
hold greater weight. The first
is whether a court is in as good a position as the administrator to
make the decision. The
second is whether the decision of an
administrator is a foregone conclusion. These two factors must be
considered cumulatively.
Thereafter, a court should still consider
other relevant factors. These may include delay, bias or the
incompetence of an administrator.
The ultimate consideration is
whether a substitution order is just and equitable. This will involve
a consideration of fairness
to all implicated parties. It is prudent
to emphasise that the exceptional circumstances enquiry requires an
examination of each
matter on a case-by-case basis that accounts for
all relevant facts and circumstances.’
[27]
In this case, if Wentzel AJ indeed intended to substitute the Chief
of the SANDF’s decision with her decision, she did
not
expressly consider whether exceptional circumstances were present. If
she had, she would have found immediate difficulties
in following
this course because there was, on her own showing, an irresolvable
dispute of fact as to whether Mamasedi was abducted
or went to the
initiation school voluntarily. She simply was not in any position,
let alone as good a position as the Chief of
the SANDF, to take the
decision to re-instate Mamasedi.
[12]
Without the factual dispute having been resolved one way or the
other, it could not be said that the decision was a foregone
conclusion.
There is, furthermore, no indication that the Chief of
the SANDF is biased or otherwise precluded from taking the decision
again
when the facts are properly determined.
[28]
In the result, the appeal must succeed to the extent that the order
re-instating Mamasedi must be set aside.
Costs
[29]
Counsel for the appellants very fairly conceded that Mamasedi was
entitled to his costs in the court below. Having taken instructions,
he also was prepared to concede that, even though the appellants had
achieved significant success on appeal, the parties should
each bear
their own costs of the appeal.
The
order
[30]
The following order is made:
(a) The appeal succeeds
to the extent that paragraph 2 of the order of the court below is set
aside.
(b) The order of the
court below is accordingly amended to read as follows:
‘
1
The decision of the second respondent not to reinstate the applicant
made on 4 June 2013 is reviewed and set aside.
2
The respondents are ordered to pay the applicant’s party and
party costs.’
____________________
C
M Plasket
Acting
Judge of Appeal
APPEARANCES
For
the Appellants: V D Mtsweni
Instructed
by: The State Attorney, Pretoria
The
State Attorney, Bloemfontein
For
the respondent: D Lebethe
Instructed
by: Ditheko Lebethe Attorneys, Pretoria
Webbers,
Bloemfontein
[1]
Minister van Onderwys en Kultuur en
andere v Louw
[1994] ZASCA 160
;
1995 (4) SA
383
(A) at 388G-I;
Phenithi
v Minister of Education & others
2008 (1) SA 420
(SCA) paras 9-11.
[2]
Section 103 provides:
‘
(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.’
[3]
Minister of Health & another
NO v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign &
another as amici curiae
)
2006 (2) SA 311
(CC) paras 137 and 141 (Chaskalson CJ), 441-442
(Ngcobo J) and 672 (Moseneke J). See too
Administrator,
Cape & another v Ikapa Town Council
[1990] ZASCA 34
;
1990 (2) SA 882
(A) at 889J-890C;
Director:
Mineral Development, Gauteng Region & another v Save the Vaal
Environment & others
1999 (2) SA 709
(SCA) para 19;
Oosthuizen’s
Transport (Pty) Ltd & others v MEC, Road Traffic Matters,
Mpumalanga & others
2008 (2) SA 570
(T) para 25.
[4]
Cassem en ‘n ander v
Oos-Kaapse Komitee van die Groepsgebiederaad en andere
1959 (3) SA 651 (A).
[5]
South African Defence and Aid Fund
& another v Minister of Justice
1967 (1) SA 263 (A).
[6]
The PAJA, s 1. See the definitions 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) paras 21-24.
[7]
Constitution, s 33.
[8]
Section 102(5).
[9]
Police and Prisons Civil Rights
Union & others v Minister of Correctional Services & others
(No. 1)
2008 (3) SA 91
(E)
para 71.
[10]
Gauteng Gambling Board v
Silverstar Development Ltd & others
2005
(4) SA 67
(SCA) paras 28-29.
[11]
Trencon Construction (Pty) Ltd v
Industrial Development Corporation fo South Africa Ltd & another
2015 (5) SA 245
(CC);
[2015] ZACC 22
para 47.
[12]
Intertrade Two (Pty) Ltd v MEC for
Roads and Public Works, Eastern Cape & another
2007
(6) SA 442
(Ck) para 43.