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
>>
2016
>>
[2016] ZAGPPHC 528
|
|
Minister of Defence and Another v Snyman and Others (A314/2014) [2016] ZAGPPHC 528 (15 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
CASE
NO: A314/2014
DATE:
15/6/2016
In
the matter between:
THE
MINISTER OF
DEFENCE
.........................................................................
FIRST
APPELLANT
CHIEF
OF THE
NAVY
....................................................................................
SECOND
APPELLANT
And
ANTHONY
JOHN LEONARD
SNYMAN
......................................................
FIRST
RESPONDENT
THEUNIS
JACOBUS VAN
NIEKERK
......................................................
SECOND
RESPONDENT
PIERRE
RAUTENBACH
................................................................................
THIRD
RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
This is an appeal against the second, third and fourth orders
made by, and that part of the judgment pertaining to such orders,
given by Bam J and dated 28 February 2014.
[2]
The three respondents had launched three different review
applications which are so similar that for the sake of convenience
they
were heard together and one consolidated judgment was delivered.
[3]
This appeal is with the leave of the court a quo.
[4]
In the court a quo the respondents had applied for a review
and setting aside of the decision of the appellants not to grant
their
application in terms of the Mobility Exit Mechanism (the MEM)
and that it be replaced by an order that respondents are ordered to
approve their applications.
[5]
The application was dismissed but, rather unusually, the
learned Judge then went further and made the following orders:
‘
2.
The second respondent is ordered to refer the applications of the
three applicants in terms of the provisions of MEM to the Chief
of
the SANDF within 10 days from the date of this order.
3.
The first respondent is ordered to issue a directive to the
Chief of the SANDF to consider the mentioned applications of the
three
applicants within 20 days of this order and to furnish the
applicants with his decision, and his reasons therefore, within 10
days
thereafter.
4.
The respondents are ordered to pay the applicants’ costs
on an attorney and client scale.’
[6]
It is these further orders that are the subject of this
appeal.
[7]
The crisp issue before us is whether the court a quo was
correct, after dismissing the review application, in making the
further
orders that it did in the absence of such specific relief
having being sought.
[8]
The respondents contend that the court a quo could indeed do
so, apparently, under the rubric ‘Further and/or alternative
relief.’
[9]
Although much of the arguments in the respective heads of
argument and in the oral submissions were directed against the
reasons
and orders granted, in my view, a determination of whether
the court a quo was correct in granting the relief that it did when
such relief was not sought by any of the respondents would be
dispositive of the appeal.
[10]
At this juncture it should be noted that the respondents have
not filed an appeal or cross-appeal against the dismissal of the
review
application. Mr Bouwer, who appeared for the respondents said
it was because the respondents were of the view that the court a quo
was correct in granting the relief that it did.
[11]
In order to place the matter in proper context it is necessary
to state the background to the application in the court a quo.
[12]
During 2001 the South African National Defence Force (the
SANDF) embarked on an exercise in ‘rightsizing’ the
SANDF.
This exercise called for the services of a number of members
of the SANDF to be terminated. However, s59 of the Defence Act 42 of
2002 (the Act) allowed for a termination of service under
circumscribed circumstances only. The section provides for
termination
by way of resignation of the member concerned (which
would generally be to the financial disadvantage of the member) or,
by a unilateral
discharge of the member by the SANDF on a basis other
than the member's unfitness or incapacity but that such discharge is
likely
to promote efficiency or increased cost-effectiveness in the
SANDF. The SANDF decided to implement the rightsizing on the latter
ground, i.e. on the basis that it is likely to promote efficiency or
increased cost-effectiveness in the SANDF.
[13]
The result was the creation and implementation of a so-called
Mobility Exit Mechanism during 2005 which was designed not only to
‘rightsize’ the SANDF but also to guard against an exodus
of scarce skills and specialist knowledge. The prescribed
process for
implementation of the MEM entailed that possible MEM candidates
(whether they were listed on the initiative of the
SANDF or whether
they had taken the initiative themselves to indicate an interest in
the MEM option) were first identified on the
basis of five selection
criteria:
1.
certain guidelines (based on the needs of the SANDF) were
applied to compile a shortlist from those MEM candidates that met
those
criteria and the financial implications as well as the
availability of funds (for the MEM option in respect of each of them)
were
to be confirmed;
2.
discussions with the identified individual and an opportunity
to make representations then followed;
3.
the request (for a MEM) is then evaluated at a first level of
command and referred to a second level of appropriate command
(depending
on the rank of the member concerned) for interim approval;
4.
once the approval is obtained, a formal offer is then made by
the career manager to the member concerned, where-after the member
exercises the right to accept or decline the offer; and
5.
Once an offer has been accepted, the acceptance is forwarded
to the Chief Human Resources Support on the next level of command for
the exit administrative process.
[14]
Within the concept of this process, the MEM Implementation
Measure stipulates the following:
“
8.
The Approval Authority is solely responsible for approving the
voluntary exit of members who avail themselves of the MEM option
offered by the SANDF.”
[15]
The Approval Authority is defined as follows in the MEM
implementation Measure:
‘“
Approval
Authority’ means the Minister of defence, when the MEM opinion
has been recommended by C SANDF and accepted by a
SANDF member.”
[‘C SANDF’ being a reference to the Chief of the SANDF].
[16]
The appellants say that the MEM Implementation Measure thus
created a process in terms whereof the SANDF could formally make an
informed, affordable and written offer (without compromising its own
needs) to a selected member of the SANDF for his services to
be
terminated by way of the MEM option and its associated benefits on an
envisaged exit date, which offer the member was free to
accept or
decline.
[17]
After acceptance of that offer by a member of the SANDF, the
severance of such members from the SANDF still had to be approved by
the Minister of Defence upon a positive recommendation by the Chief
of the SANDF.
[18]
The respondents contended that any decision made in terms of
the MEM had to be approved by the Minister of Defence whether it be
the approval of a member’s MEM application or its refusal. It
is only if a member’s MEM application is approved that
the
Minister of Defence makes a final decision whether to approve the
exit of the member or not.
[19]
On the other hand the appellants contend that where a refusal
of an MEM application is made by officers under the command of the
Chief of the Navy and acting as career managers at the very first
level of screening having formed the view that an applicant is
not a
suitable candidate under the MEM based on the needs of the SANDF with
regard to skills and specialist knowledge then the
matter ends at
that level and it need not be escalated further up the ranks to the
level of the first appellant.
[20]
Bam J held otherwise and made the order that he did. In
essence the court a quo ordered the completion of the processing of
the
MEM applications up to ministerial level regardless of what the
outcome on the lower levels of command was. In my view the court
a
quo lost sight of the fact that the whole MEM process was structured
in such a way that all possible MEM cases were screened
at various
levels - first at the level of the career manager of a member in his
unit, then at the level of the second appellant
and finally at the
level of the Chief of the SANDF before submission to the first
appellant.
[21]
The MEM provides that only those endorsed by a positive
recommendation are referred to the next level and those not so
endorsed
fall by the wayside. The relief granted by the court a quo
in effect ordered the appellants to go outside the scope and
provisions
of the MEM. The learned Judge erred in this regard. It
should be borne in mind that none of the respondents sought such
relief
nor was it fully canvassed in the papers. In NDPP v Zuma
(Mbeki and Another intervening) 2009(4) BCLR 393 (SCA) para [15] it
was
held that a judge should confine the judgment to the issues
before the court:
‘
It
is crucial to provide an exposition of the functions of a judicial
officer because, for reasons that are impossible to fathom,
the court
I below failed to adhere to some basic tenets, in particular that, in
exercising the judicial function, judges are themselves
constrained
by the law. The underlying theme of the court's judgment was that the
Judiciary is independent; that judges are no
respecters of persons;
and that they stand between the subject and any attempted
encroachments on liberties by the Executive (paras
161 - 162). This
commendable approach was unfortunately subverted by a failure to
confine the judgment to the issues before the
court; by deciding
matters that were not germane or relevant; by creating new factual
issues; by making gratuitous findings against
persons who were not
called upon to defend themselves; by failing to distinguish between
allegation, fact and suspicion; and by
transgressing the proper
boundaries between judicial, executive and legislative functions.’
[22]
The MEM was no doubt a policy decision of the executive branch
of government. In Zuma (supra) the SCA warned against ‘transgressing
the proper boundaries between judicial, executive and legislative
functions.' This is in accordance with the doctrine of the separation
of powers as provided for in the Constitution.
[23]
As I said, counsel for the respondents submitted that the
Court was correct in granting the relief as it resorted under the
prayer
for ‘further and/or alternative relief.’ Counsel
for the appellants submitted that the function of such a prayer is
to
provide for alternative relief (whether it be a reformulation of the
main relief or relief of a different nature not originally
envisaged)
on the same cause of action, facts or evidence already on the papers
before the court. I agree. (See Johannesburg CC
v Bruma Thirty-Two
(Pty) Ltd
1984 4 SA 87
(T) 92G-93F] Hirschowitz v Hirschowitz
1965 3
SA 407
(W) 409; Queensland Insurance Co Ltd v Banque Commercial
Africaine
1946 AD 272
at 286.). It seems that the further relief
granted by the court a quo was premised on the basis that no decision
at all had been
taken on the respondents’ applications in terms
of the MEM. But that was not the case advanced in the review
applications.
Furthermore a decision, albeit a negative one, not to
grant interim approval for the respondents’ MEM application was
indeed
taken, though at a lower level of command. According to the
MEM an application by a member was simply an indication of a
willingness
on the part of the member to consider the possibility of
a voluntary exit from the SANDF by way of mutual agreement through a
formal
offer and its written acceptance but subject to the overriding
needs of the SANDF and its financial affordability.
[24]
The respondents based their review application on the
Promotion of Administrative Justice Act 3 of 2000 (the PAJA). The
Court a
quo held, correctly in my view, that PAJA was not applicable
and, amongst others, on this ground dismissed the review
applications.
[25]
In any event, it is not in dispute that the MEM is a
non-statutory instrument. Hence, any action taken in terms thereof is
by definition
not an action in terms of any legislation. Furthermore,
a MEM-related matter is in my view not a public matter but an
internal
matter of the SANDF.
[26]
The respondents had an internal remedy, known as a ‘redress
of wrong’ in s134 of the previous Defence Act 44 of 1957
and in
s61 of the current Defence Act 42 of 2002 (the Act). From the papers
it appears that they did not utilise the internal mechanism
for a
redress of any alleged wrongs or grievances. Hence it cannot be
inferred that the appellants or any of their subordinates
refused, or
failed to comply with their obligations under the MEM read with the
Act.
[27]
The court a quo, however, went further and found that each
respondent was entitled to base his claims on sections 23 and 33 of
the
Constitution. Section 23 provides, inter alia, that everyone has
a right to fair labour practices while s33 provides for just
administrative
action.
[28]
The Constitutional Court has held that where legislation is
enacted to give effect to a constitutional right, a litigant may not
bypass that legislation and rely directly on the Constitution without
first challenging that legislation as falling short of the
constitutional standard. This is referred to as the principle of
subsidiarity. Hence, where legislation gives effect to a
constitutional
right, it is not permissible to invoke the right
directly; instead, recourse must be had, in the first instance, to
the statute
giving effect to the right and, if the party contends
that the statute does not go far enough to give effect to the
fundamental
right, only then may it invoke the fundamental right to
challenge the constitutionality of that statute, (see Sali v National
Commissioner
of the South African Police Service 2014(9) BCLR 997
(CC) par [72]; Mbatha v University of Zululand 2014(2) BCLR 123 (CC)
par [173];
Mazibuko v City of Johannesburg 2010(3) BCLR 239 (CC)),
[29]
PAJA was enacted to give effect to section 33 of the
Constitution whilst Chapter XX of the General Regulations of the
South African
Defence Force and the Reserve (dealing with labour
rights within the military) was promulgated and/or enacted in
Proclamation No
R. 998 of 20 August 1999 to give effect to section 23
of the Constitution in a military context.
[30]
The court a quo erred on the law in this regard.
[31]
The court a quo held further that the SANDF did not follow its
own procedure prescribed in the MEM and this prejudiced the
respondents.
However, there was no evidence before the court a quo
that the prescribed procedure was not followed in respect of each
respondent.
On their version it
is
clear that that the procedure was followed at least up to the level
where a negative decision was taken. As I said earlier, once
that
happened, then according to the prescripts of the MEM there was no
further process to follow. The assumption by the court
a quo that
each and every ‘application’ has to be and must be
considered by the Chief of the SANDF and ultimately the
first
appellant is not supported by any of the evidence nor by the
provisions of the MEM. It would in any event be totally impractical
to expect of the Chief of the SANDF and the first appellant to
personally deal with each and every such application.
[1]
The respondents also contended in the court a quo that the
second appellant had no authority to make a decision with regard to
or
refuse any MEM application. Having dismissed the review
application, the court a quo nevertheless went on to grant further
relief
inter alia based on this issue. The prescribed process in the
MEM provides:
'f.
Requests in respect of Lt Col/Cdr and lower are to be considered by
the Service Chiefs.’
In
terms of s 12(1) of the Act, the second appellant is one of the four
Service Chiefs - the others being the Chief of the Army,
the Air
Force and the Military Health Service. It is thus apparent that the
second appellant had the power to consider requests
for the purpose
of granting interim approval for a formal offer to be made to those
members who applied for discharge in terms
of the MEM.
[2]
The court a quo also concluded that there is no indication in
the answering papers that the second appellant or a member of his
staff had the authority to refuse any application for the exit option
under the MEM. This was not an issue raised in the papers
by any of
the respondents. Also, the maximum omnia praesumuntur rite esse acta
donee probetur in contrarium (acts are presumed
to have been lawfully
done, or duly performed, until proof to the contrary be adduced)
finds application. Furthermore, the rule
of administrative law
against the sub-delegation of a power or duty (delegatus delegare non
potest) does not apply in the context
of a purely administrative
process which is part of a non-statutory mechanism for finding
consensus on the termination of the service
of a member of the SANDF
- something which falls within the domain of the human resources
management of the military.
[3]
It was thus not incumbent on the appellants to address the
issue of authorisation of any application more especially when the
option
to refuse an application was signed by a senior officer in the
office of the second appellant acting within the military chain of
command.
[4]
The court a quo ordered the first appellant to “...
issue a directive to the Chief of the SANDF to consider the mentioned
applications of the three applicants within 20 days of this order and
to furnish the applicants with his decision, and the reasons
therefore, within 10 days thereafter.”
[5]
In this regard it is to be noted that two of the respondents
(Snyman and Rautenbach) had already resigned and neither was any
longer
a ‘member’ of the SANDF. Appellants contended that
it would have not served any purpose to make them an offer for the
voluntary termination of their service with the SANDF. The
respondents’ counsel contended that their resignations were in
effect constructive dismissals. However, as I said earlier, there is
no evidence on the papers that they took any steps in terms
of s134
of the Act to seek ‘redress of a wrong’.
[6]
Finally, there is the issue of the punitive costs order
granted by the court a quo. It is so that a costs order is within the
discretion
of the court. However, it seems to me clear that there was
no obstructiveness on the part of the appellants nor is there
evidence
that they deliberately flaunted the provisions of the MEM or
the Act. In my view, a punitive costs order should not have been
granted.
[7]
I propose the following order:
1.
The appeal is upheld with costs including the costs of the
application for leave to appeal and the costs of two counsel where so
employed.
2.
The second, third and fourth orders made by the court a quo
are set aside and substituted with the following order:
“
2.
Each applicant is ordered to pay one-third of the costs of the
respondents.”
RANOHODJ
JUDGE
OF THE HIGH COURT
I
AGREE
TUCHTEN
J
JUDGE
OF THE HIGH COURT
I
AGREE
KUBUSHPJ
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Appellants: Adv M.M Oosthuizen
Adv:
P.C Pio
Instructed
by: The State Attorney
Counsel
on behalf of Respondents: Adv M. Bouwer
Instructed
by: Johan Gouws Attorneys
Date
by: 01 June 2016
Date
by: 15 June 2016