IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DELETE WHICHEVER IS NOT APPLICABLE
( 1) REPOR T AB LE : NO
(2) OF INTEREST TO O THER JUDGES: NO
(3) REV ISED.
(4) Da te: 14 November 2025
Signature:
In the matter between:
EBRAHIM FISHER
And
THE MINISTER OF DEFENCE AND MILITARY
VETERANS
THE SECRET ARY FOR DEFENCE
THE CHIEF OF THE SOUTH AFRICAN NATIONAL
DEFENCE FORCE
Case No : A 126/2024
Court a quo: 48823/2020
Appellant
First Respondent
Second Respondent
Third Respo ndent
THE CHIEF OF THE SOUTH AFRICAN NAVY
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Fourth Respondent
THE CHIEF HUMAN RESOURCES Fifth Respondent
THE MILITARY OMBUD Sixth Respondent
Coram:
Heard on:
Delivered:
Khumalo J, et Nyathi & Millar JJ
20 March 2025
14 November 2025 - This judgment was handed down
electronically by circulation to the parties' representatives by
email, by being uploaded to the CaseLines system of the GD
and by release to SAFLII. The date and time for hand-down is
deemed to be 14H00 on 14 November 2025.
JUDGMENT
NY A THI J (KHUMALO et MILLAR JJ CONCURRING)
INTRODUCTION
[1] This is an appeal against the judgment of the Hon ourable Acting Justice M Baloyi
Mbembele delivered on 20 July 2023, in which the appellant's application for
review was dismissed with costs.
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[2] The appellant, Mr Ebrahim Fisher, sought to challenge the decision of the Military
Ombud , which upheld the refusal by the South African National Defence Force
(SANDF) to award him a Core Service System (CSS) contract following the expiry
of his Military Skills Development System (MSDS) contract.
[3] The relief sought included:
[3.1] The review and setting aside of the Military Om bud's findings;
[3.2] An order directing the respondents to award the appellant a CSS contract
and reinstate him in the SANDF from 1 February 2015;
[3.3] Payment of all associated allowances and benefits from that date;
[3.4] Costs of the application.
BACKGROUND
[4] The appellant joined the SANDF on a two-year MSDS contract commencing 9
February 2013 and ending 31 January 2015.
[5] During his service, he was implicated in a disciplinary matter involving the alleged
use of dagga, resulting in a pending charge under section 46 of the Military
Discipline Code .
[6] His application for a CSS contract was considered by the Fleet Human Resources
Division CSS Contract Allocation Board on 15 October 2014. He was not
recommended due to the pending disciplinary charge.
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[7] The appellant was not afforded an opportunity to make representations prior to
the board's decision. He was informed in December 2014 that he would not be
awarded a CSS contract.
[8] His military court case concluded on 1 July 2016 with an acquittal. Subsequent
internal recommendations suggested he be considered for a CSS contract, but
no contract was awarded.
[9] The appellant pursued internal grievance procedures and ultimately lodged a
complaint with the Military Ombud , who found the decision not to award the
contract was fair and in accordance with SANDF policy.
ISSUES FOR DETERMINATION
[1 O] The central issues for determination are:
[10.1] Whether the appellant had a legitimate expectation to be awarded a
CSS contract;
[10.2] Whether the Military Ombud 's decision is reviewable under the
Promotion of Administrative Justice Act 3 of 2000 ("PAJA ");
[10.3] Whether the respondents acted procedurally and substantively fairly
in declining to award the CSS contract.
LEGITIMATE EXPECTATION
[11] The doctrine of legitimate expectation, as established in Administrator, Transvaal
v Traub1, requires that an expectation must be reasonable, based on clear and
unambiguous representations, and that the affected party must be afforded
procedural fairness.
1 1989 (4) SA 731 (A ).
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[12) The appellant's reliance on internal communications not addressed to him, and
on general provisions of Admin Instruction 24/14, does not meet the threshold for
a legitimate expectation.
[13) The MSDS contract does not create an automatic entitlement to a CSS contract.
The appellant's disciplinary status at the time of consideration was a relevant
factor under the applicable policy.
[14) The absence of a recommendation from his commanding officer further
undermines any claim of entitlement.
REVIEW OF THE MILITARY OMBUD 'S DECISION
[15) The Military Om bud was established under the Military Om bud Act 4 of 2012 ("the
Act").
[16) Section 13 of the Act permits review of the Ombud 's decisions by the High Court
within 180 days.
[17) The Ombud 's role is investigative, not appellate. The appellant was afforded an
opportunity to comment on the preliminary report but failed to do so.
[18) In Mokheseng v Minister of Defence and Military Veterans and Others
(11458/2021) [2022) ZAGPPHC 919 (23 November 2022) in para 44, the court
found that the decision of the Military Ombud does amount to administrative
action as contemplated by PAJA and consequently that the applicant should have
proceeded in terms of PAJA .
[19] In the case of Temane v Minister of Defence and Military Veterans and others
[2019) JOL 45171 (GP) the findings and recommendations by the Military Ombud
were reviewed and set aside in terms of PAJA.
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[20] In the case Edgar Davids v The Minister of Defence and M ilitary Veterans and
Others and Zilta Miles v The Minister of Defence and Military Veterans and O thers
(854/2023) [2024] ZASCA 171 (12 December 2024) para 8, the court held that if
the Ombud dismisses the complaint, such a decision may be reviewed by the
high court in terms of section 13, but short of a successful review, the decision is
final and binding.
[21] The Ombud 's findings were based on policy compliance and financial constraints,
and no procedural irregularity or irrationality has been demonstrated.
[22] The decision is therefore not reviewable under PAJA , quite interestingly, the
period within which an aggrieved party should take his matter on review in section
13 of the Act, mirrors that stipulated in PAJA.
CONCLUSION
[23] The appellant has failed to establish a legitimate expectation or any procedural
unfairness in the respondents' conduct.
[24] The Military Ombud's decision was lawful, rational, and procedurally fair.
[25] The appeal must accordingly fail.
[26] It is trite that costs are a matter for the exercise of judicial discretion. On
consideration of the matter as a whole, given the particular circumstances, there
will be no order for costs.
ORDER
[27] In the circumstances, I propose the following order:
[27.1) The appeal is dismissed.
[27.2] There is no order as to costs.
I AGREE AND IT IS SO ORDERED
I AGREE,
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JS NYATHI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
NV KHUMALO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
A MILLAR
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD ON :
JUDGMENT DELIVERED ON :
COUNSEL FOR THE APPELLANT:
INSTRUCTED BY:
COUNSEL FOR THE RESPONDENTS
(FIRST TO FIFTH):
INSTRUCTED BY :
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25 MARCH 2025
14 NOVEMBER 2025
ADV. GL VAN DER WESTHUIZEN
GRIESEL BREYTENBACH ATTORNEYS
ADV. P MANAGA
ADV. M MAKHUBELE
STATE ATTORNEY , PRETORIA