REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED:
DATE
In the matter between:
MAHLATSE ERNEST MODULA
and
MINISTER OF DEFENCE AND MILITARY VETERANS
SECRETARY FOR DEFENCE
CHIEF OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE
ADJUTANT GENERAL MAJOR GENERAL, E MNISI
CASE NO: 2024-052069
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
THE MILITARY OMBUDSMAN Fifth Respondent
JUDGMENT
THIS JUDGMENT IS HANDED DOWN REMOTELY AND WILL BE
CIRCULATED TO THE PARTIES ELECTRONICALLY.
WELGEMOED , AJ
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[1] This is an opposed application that was set down for hearing on the
opposed motion roll for 24 November 2025 and heard on 26 November
2025, wherein I reserved judgment. The applicant sought the following
relief:
u1. That the decision by the Fifth Respondent of 31 January 2024 declining
to consider the Applicant's complaints, be reviewed and set aside;
2. Directing the Third and Fourth Respondents to reinstate the Applicant
to his employment in the South African National Defence Force in the
same rank and applicable benefits with effect from the 13th December
2017;
3. Directing the Fifth Respondent make a recommendation that the flrst
Respondent reinstate the Applicant to his employment in the South
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African National Defence Force in the same rank and applicable
benefits with effect from the 13th December 2017;
3. Directing the First, Third and Fourth Respondents to pay Applicant his
salaries and benefits from the 13th December 2017 to date of his
reinstatement in the South African National Defence Force;
4. Costs of the application on Attorney and Own-client scale against the
First, Third and, Fourth Respondents."
BACKGROUND:
[2] The facts of the application are largely common cause between the parties
and are set out hereunder.
[3] On 29 April 2002, an offer was made to the applicant to be appointed in the
Medium-Term Service System of the SANDF as Prosecutor in the Legsafo
Bloemfontein Sub-Office Kimberley in the South African Air Force with effect
from the date of acceptance of the offer. The applicant accepted the offer
on 6 May 2002 and he commenced his service on 1 June 2002.
[4] On 5 September 2006, the applicant was given notice that his contract with
the SANDF would terminate on 31 May 2007. The applicant was offered a
contract of employment in the core service system of the SANDF for a
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period of 10 years commencing on 1 June 2007 and ending on 31 May
2017.
(5) In terms of the service contract signed by the applicant, his service could
be terminated under the following circumstances:
- Firstly, at the lapsing of the service contract as contemplated by the
Defence Act, Act 42 of 2002 and Chapters 111 and IV of the General
Regulations promulgated in terms of the Defence Act ("the
Regulations");
- Secondly, termination by the SANDF at any time on the grounds
stipulated in the Defence Act and Chapters Ill and IV of the Regulations;
- Thirdly, by the applicant's voluntary resignation on a 90-day notice
period.
[6] In 2014, the applicant was assigned to assist in a trial of accused soldiers
of the SAN OF held at the SA Army Gymnasium in Heidelberg. The trial was
collectively referred to as Operation Flikker. Attending these trials required
that the applicant travel from Legal Satellite Office (Legsato) Polokwane to
Military Base Heidelberg (SA Army Gymnasium) and to remain in
Heidelberg for periods of time whilst the trials were ongoing. For this
purpose, the applicant was permitted to draw subsistence and travel
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allowance advances to cover his accommodation and other expenses in
Heidelberg.
[7] Upon his return to Polokwane from Heidelberg the applicant would then
submit counter claims to reconcile the advances with his expenses. The
applicant also used detailed trip sheets to claim compensation for the use
of his private vehicle for official trips whilst attending these trials. The trials
would occasionally be postponed from time to time during which time the
applicant was required to return to Polokwane until the trial resumes.
[8] During 2017, the applicant was charged with various charges relating to his
subsistence claims and his failure to return to Polokwane whilst the trials,
were postponed. The applicant was charged with 9 charges. Charges 1 to
6 and their alternative charges related to fraud, contravention of section 30
Military Disciplinary Code ("MDC"} - false statements made in official
documents. Charges 7 to 9 related to contravention of section 14(a) of the
MDC, being absent without official leave. The Court of the Senior Military
Judge ("CSMJ") heard the matter on 13 December 2017 whereby the
applicant was found guilty of the alternative charges to charges 1 to 5,
acquitted on charge 6 and found guilty on charges 7 to 9. The sentence
imposed was dismissal from the SANDF.
[9] As provided for in section 34(2} of the Military Discipline Supplementary
Measures Act, 16 of 1999 ("MDSMA"), the findings of the CSMJ were
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reviewed by the Court of Military Appeals ("CMA") on 04 July 2018, and 25
July 2018, when the CMA was addressed by counsel for the accused. The
chairperson of the CMA was the Honourable Barn J and the two presiding
members were Colonel Venter and Colonel Barnard appointed in
accordance with section 7(1)(b) of the MDSMA.
[10) At the conclusion of the review, conflicting judgments were handed down
by the chairperson and the two members. On 26 September 2018, the
chairperson amended the findings of the CSMJ and substituted the
sentence of termination of service with a fine of R2000.00 ("the
dissenting/minority judgment"), which was not permitted under the relevant
legislation. The two members, on the other hand, did not agree with the
judgment of the chairperson. Also, on 26 September 2018 the members
upheld the findings and sentence of the CSMJ of dismissal from the
SANDF. The CMA further confirmed and upheld the trial a quo court orders
in terms of section 128(1 )(a) and 129(1) of the MDC. The applicant forfeited
full pay for periods absent without leave (26 days) and applicant placed
under deduction of pay in the amount of loss of state property or fruitless
expenditure, namely R 35 470.06, ("the majority judgment").
[11] The chairperson thereafter delivered an addendum to his dissenting
judgment on 28 September 2018 wherein he expressed the view, though
incorrect in law, that his judgment is the prevailing and final judgment. The
first to fourth respondents do not agree with the view of the chairperson.
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The reason being that in terms of the MDSMA the CMA is comprised of
three members. It would be contrary to the intention of the legislator and
non-sensical if the judgment of one of these members ( a minority judgment)
is enforced despite the existence of a majority judgment by two of the
members. This would make the requirement that there must be three appeal
members redundant. Section 89 of the MDC confirms this.
[12] It is of importance to point out that while the military judicial proceedings
against the applicant were pending, his contract expired and he resigned.
The applicant failed to place these facts before court. At a meeting held by
the Defence. Legal Services' Contract Review Board on 28 February 2018,
it was resolved that the applicant's contract would not be renewed but that
the SANDF had to await the outcome of the CMA to ascertain whether the
reason for termination of the applicant's service would be captured as a
dismissal by court order of the CMA/CSMJ or the nonMrenewal of his
contract. On 31 July 2018, the applicant tendered his resignation with effect
from 1 October 2018 with his last working day being 30 September 2018.
[13] Section 59(1 )(a) of the Defence Act states that the service of a member of
the Regular Force is terminated upon the expiration of three months after
the date on which the member lodged his or her resignation or upon the
expiration of any shorter period approved by the Chief of the Defence Force.
Furthermore, section 59(1)(b) of the Defence Act states that the service of
a member of the Regular Force is terminated on the termination of any fixed
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term contract concluded between the member and the Department of
Defence or on the expiration of any extended period of such contract.
[14] The applicant's resignation was not accepted. In terms of section 59(5)(b)
of the Defence Act, a member who is entitled to be discharged due to
resignation from the force may not, without the prior consent of the Chief of
the Defence Force, be permitted to obtain his or her discharge while
disciplinary proceedings are still pending against him or her. In August 2018
the SANDF informed the applicant that his contract was extended until 31
September 2018 only for purposes of awaiting the outcome of the review by
the CMA. It was important to await the outcome of the review to ascertain
whether the termination of the applicant's service must be recorded as
dismissal, the expiry of the contract or resignation.
[15) On 28 September 2018, two days after receipt of the judgments of the CMA,
the SANDF in a memorandum by Brigadier General Myburgh (former
Director Military Judicial Reviews) confirmed that the reason for termination
of the applicant's service with the SANDF is dismissal, in line with the
majority judgment of the CMA. In this letter it is recorded that the Adjutant
General ("AG") confirmed that the majority judgment will stand. The majority
judgment of the CMA was accordingly sent to the applicant's unit in
Polokwane for promulgation and implementation.
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[16] On 29 January 2020, the applicant issued summons against the first
respondent in the Pretoria High Court under case number 6611 /2020
wherein he sought an order, inter alia, that the court confirms the judgment
of Judge Barn to be the final and prevailing judgment with further relief that
mirrors the essence of the current relief sought from this Court. The
applicant applied for summary judgment in respect of the above action on
29 September 2020, which application was unsuccessful. On 30 September
2020, the applicant brought an urgent application in the Pretoria High Court
under case number 50151/2020 against the first respondent wherein the
applicant sought similar relief. The urgent application was opposed, and
the action and urgent application was still pending in this Court when the
Applicant filed a complaint with the fifth respondent on 5 July 2022.
[17] In the complaint the Applicant sought that the minority judgment be
implemented.
[18] The fifth respondent provided the applicant and the SANDF with his
preliminary report on 11 October 2023. Paragraphs 4.1.1, 6.1 and 6.2 of the
Ombud's Preliminary Investigation Report, informed that in terms of section
7(1 )(c), the Military Ombud is prohibited from investigating the matter on
which a decision has been taken by a military or civilian court, as the SAN OF
correctly stated.
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[19] On 31 January 2024 the fifth respondent informed the parties that it does
not have jurisdiction to investigate the complaint. lt is this outcome of a lack
of jurisdiction, that forms the subject of the review application before this
Court.
RELIEF MOOT:
[20] No matter the outcome of the CMA which forms the basis of the complaint
to the fifth respondent, the service of the applicant with the SANDF was
bound to terminate at the end of September 2018, not only due to the expiry
of his contract but also due to his resignation. The majority outcome of the
CMA merely confirmed the reason for termination to be dismissal as held
by the CSMJ, which preceded the expiry of the contract and the applicant's
resignation. In terms of section 116 of the MDC any finding, sentence or
order of a CSMJ as upheld, substituted or varied by a review authority (in
this instance the CMA) shall be deemed to be the finding of the CSMJ that
made the finding and the date of the order deemed to be the date of the
initial order.
[21] There is therefore no basis for granting the relief sought by the applicant
relating to his reinstatement and the payment of forfeited benefits, which
complaint was lodged with the fifth respondent. The dismissal of the
applicant by court order gave effect to the only valid judgment of the CMA
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the judgment reflecting the majority vote of the members which judgment
was correctly accepted by the SANDF as the prevailing judgment.
[22] The applicant has not brought a review application against the majority
judgment or the decision of the SANDF to enforce the majority judgment
and to dismiss the applicant. Accordingly the application is moot and the
relief sought will not have any practical effect.
[23] The fifth respondent, even if it was found to have the requisite jurisdiction,
to hear the complaint does not have the power to usurp a court order.
[24] In Mokheseng v Minister of Defence and Military Veterans and others
[2022] JOL 57145 ( GP) par 70 - 82 the court considered whether a member
of the SANDF should be reinstated under circumstances where his service
contract had lapsed due to the effluxion of time. The respondents, in
addition to a point raised regarding an unreasonable delay in bringing the
application, argued that the matter has in any event become moot. The
court held the following:
"70. Such argument is premised upon the fact that the applicant's contract
was for a period of 10 years commencing on 3 January 2011 to 31
December 2020.
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71. Consequently, the entire period of the contract has been discharged
by the effluxion of time and consequently, the rights and remedies of
the applicant that he might have had, are no longer available
because the contract has expired through the effluxion of time.
72. Consequently, there is no contract to which the applicant should be
reinstated.
73. I was referred specifically to the matter of Notyawa v Makana
Municipality and Others, where the court decided that the matter was
moot because the employment contract, which was the subject of the
litigation, would have come to an end very shortly by the time the
application was heard.
7 4. The respondents further contend that where a contract is the subject
of dispute has discharged by effluxion of time, the matter is moot,
and the court does not have jurisdiction to entertain the matter,
unless there were exceptional circumstances.
75. The applicant's contention is that given the fact that it is only the
decision of the Ombud that is now being reviewed and considered
that the court should restrict itself to whether the review of that
decision has been brought in time and that there is no need to regard
the entire delay period.
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76. The Respondents in their heads of argument raise the argument that
the matter has become moot.
77. On the question of mootness, the Act in terms of section 6(8) states
as follows:
"If the Ombud upholds the complaint, the Ombud must recommend
the appropriate relief for the implementation to the Minister."
78. Even if the court were to substitute its decision with that of the
Ombud, the only competent relief is to uphold the complaint and to
recommend reinstatement to the Minister of Defence.
79. The Minister of Defence then would be met with a situation where
the contract period has run out through the effluxion of time and the
underlying termination has not then been reviewed and set aside.
80. The applicant, as alluded to earlier, made the submission that any
referral to the Minister would be a foregone conclusion, and that is
why the applicant initially sought the court to order reinstatement:
The applicant however did not persist with that relief.
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81. The underlying contract period has run out through the effluxion of
time.
82. Consequently, I am of the view that the question of mootness raised
by the respondents is applicable in the circumstances. This is so,
regardless of whether the review is to operate in a process akin to
an appeal, in terms of PAJA or in terms of a legality review.
[25] I am in agreement with the above conclusion reached by the Court in the
matter of Mokheseng. In this application the applicant's contract of
employment has run out of due to the effluxion of time. The fifth respondent
therefore cannot be ordered to make a recommendation for the applicant's
reinstatement where the service contract no longer exists. The application
is moot and serves no practical purpose and falls to be dismissed.
[26] I will however still hereunder address the merits of the application illustrating
that the application is in any event without merit, even if I am wrong on the
above finding.
MERITS OF APPLICATION:
[27] It is disputed by the Respondents that the decision of the fifth respondent is
in fact a decision capable of being reviewed and further alternatively that
there is any merits in the application. I do not intend to decide on what
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precise grounds the applicant argues that the decision of the fifth
respondent is reviewable, whether the application is in terms of PAJA or
brought under the principle of legality.
[28] The facts of the application illustrate beyond any doubt that the decision of
the fifth respondent was in law and fact correct and therefore no application
for review can be successful.
[29) As for the information considered by the fifth respondent, it is clear that the
fifth respondent considered all relevant information. The applicant was
afforded an opportunity to make representations in respect of the
preliminary report and to place all information before the fifth respondent for
consideration.
(30] It is not in dispute that as at 31 January 2024 (when the fifth respondent
provided his outcome on jurisdiction) there were pending actions in the Hjgh
Court wherein the applicant sought similar relief. These actions were only
withdrawn on 6 March 2024. The fifth respondent committed no error of law.
To the contrary, the fifth respondent acted in accordance with the MOA that
limits its jurisdiction to investigate a complaint if it relates to a judgment of a
Military Court or if there is pending litigation in a civilian court.
[31] The applicant has failed to put forth valid grounds of review, whether in
terms of PAJA or otherwise. It is clear that the fifth respondent followed the
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correct procedure and considered what was before him in determining
whether he has jurisdiction to investigate the applicant's complaint. The fifth
respondent correctly concluded that he does not have jurisdiction to
investigate the complaint.
ORDER:
(32] Consequently, I make the following order:
1. The application is dismissed with costs on Scale B
WELGEMOED CJ
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA GAUTENG
DIVISION, PRETORIA
Date of Hearing: 26.11.2025
Date of Judgment: 14.01.2026
Counsel for Applicant: KP Seabi
Counsel for Respondents: Adv F Storm