IN THE DEFENCE SPECIAL TRIBUNAL
(THE LABOUR COURT OF SOUTH AFRICA)
(Held at Johannesburg)
Case No: DSTJ1/00
In the matter between:
Applicant
and
Respondent
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JUDGMENT
_______________________________________________________________
Landman J:
1.The Constitution of the Republic of South Africa Act of 1993 (Interim Constitution) was established to provide for
the new order in South Africa, one following the cessation of hostilities between the South African Defence
Force and TBVC Defence Forces and the opposing forces of Umkhonto We Sizwe (MK) and Azanian People’s
Liberation Army (APLA).
2.A new beginning was to be made. A new national defence force was to be established. To this end s 224(1) of the
Interim Constitution provides: “The National Defence Force is hereby established as the only defence force for
the Republic.”
3.Section 224(2) dealt with the staffing of the new SANDF. It provided that:
The South African National Defence Force shall at its establishment consist of all members of
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(a)the South African Defence Force;
(b)any defence force of any area forming part of the national territory; and
(c)any armed force as defined in section 1 of the Transitional Executive Council Act, 1993 (Act No. 151 of 1993) and
whose names, at the commencement of this Constitution, are included in a certified personnel register referred
to in section 16 (3) or (9) of the said Act: Provided that this subsection shall not apply to members of any such
defence or armed force if the political organisation under whose authority and control it stands or with which it
is associated and whose objectives it promotes did not take part in the first election of the National Assembly
and the provincial legislatures under this Constitution.
4.The result of this was that on the promulgation of the Interim Constitution on 27 April 1994, the SANDF consisted of
the members of the South African Defence Force, the Defence Forces of the TBVC countries and MK. MK
members were included as the requirements of the proviso to s 224(2) of the Interim Constitution had been met.
See D Basson South Africa’s Interim Constitution (1994) 271. APLA did not comply with the proviso and its
members did not become members of the SANDF.
5.Section 224(2) was subsequently amended by item 3 of part D of the 6 th Schedule to the Constitution of the Republic
of South Africa of 1996 (1996 Constitution). Section 224, as amended, was one of the sections of the Interim
Constitution which were not repealed. The proviso to this subsection was replaced by the following:
“Provided that this subsection shall also apply to members of any armed force which submitted its personnel
list after the commencement of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), but
before the adoption of the new constitutional text as envisaged in section 73 of that Constitution, if the political
organisation under whose authority and control it stands or with which it is associated and whose objectives it
promotes did participate in the Transitional Executive Council or did take part in the first election of the
National Assembly and the provincial legislatures under the said Constitution.”
6.The amendment was effected to cater for the inclusion of APLA in the SANDF. The result is that when the 1996
Constitution was promulgated on 4 February 1997, the members of APLA became part of the SANDF by
operation of law. This did not involve consent or any other act on the part of an APLA member. APLA
members were now entitled, and in my view, obliged to report for duty in the SANDF.
7.I now turn to the facts of the present case.
8.Khululekile Chris Phike, the applicant, trained as a member of APLA in 1983
and was an APLA member.
9.He was infiltrated into the Bophuthatswana Defence Force (BDF) in 1984. During April 1994 the members of the
BDF became members of the newly established South African National Defence Force (SANDF). The
applicant therefore became a member of the SANDF and held the rank of captain.
10.APLA instructed the applicant to resign from the SANDF. He resigned with effect from 30 June 1995.
11.The applicant took up employment, inter alia, with Old Mutual (from 1 October 1995 to January 1996) and with
Cash Paymaster Services (from April 1997 to June 1997). The applicant was also involved in the official
activities of APLA.
12.On 2 July 1998 the applicant attended at Wallmannstal, an induction centre for APLA members, operated by the
SANDF. He entered into an interim service agreement with the SANDF with the provisional rank of a private.
13.When the applicant appeared before the SA Air Force Senior Manning Board the SANDF realised that the applicant
had been a member of the SANDF and had resigned. The SANDF terminated the applicant’s interim service
contract on 28 February 1999. The agreement was terminated because, in the view of the SANDF, the applicant
had been integrated into the SANDF and could not be integrated a second time.
14.After attempting various extracurial measures to secure his rights the applicant launched an application in the
Defence Special Tribunal which is the Labour Court sitting in terms of the Defence Special Tribunal Act 81 of
1998 (DSTA). The answering affidavit alleges that the applicant does not meet the definition of an employee
and therefore the court does not have jurisdiction. This point was correctly not pursued. See the definition of
“employee” in s 1 of the DSTA. It includes a former employee. The dispute between the parties related to a
matter which results from or is attributable to the implementation of transitional arrangements in respect of
military institutions and which is connected with the remuneration or any other conditions of service of an
employee in terms of a law regulating employment, or with any unfair labour practice by virtue of such a law.
See s 1 of the DSTA. Consequently this tribunal has jurisdiction to entertain the application.
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15.The parties held two pretrial conferences. They narrowed the issues to two items and eliminated the need for oral
evidence. The issues are:
1. Whether condonation should be granted to the respondent for the late filing of its answer.
2. Whether applicant was entitled to reintegrate into the SANDF on 2 July 1998 in view of the fact that
applicant resigned from the SANDF with effect from 30 June 1995 after his initial integration into the SANDF.
16.The late filing was condoned. This brings me to the main issue, the socalled “integration” issue.
17.Mr Havenga, who appeared for the SANDF, submitted that the applicant has failed to take the clear wording and
purpose of s 224 of the Interim Constitution into account. The applicant was clearly entitled to “integrate” into
the SANDF either as a member of the BDF or APLA. He submitted that the applicant did so integrate before
his resignation from the SANDF on 30 June 1995. If at the time he could have obtained better conditions of
service or a better rank as a member of APLA rather than a member of the BDF, this is something that could
have been handled internally and by way of representations. Once “integration” has taken place, if that is the
correct word, such a person is a member of the SANDF in terms of s 224 of the Interim Constitution and if he
then resigns, as the applicant did, he cannot then again be “integrated” in terms of s 224 at a later date. He can
only rejoin the SANDF through the normal personnel acquisition channels and would be in the same position as
any other member of the SANDF who has resigned from service and wants to be reemployed. The applicant
was invited to do so.
18.For the reasons expressed above I am of the opinion that the applicant, like all APLA members, became a member
of the SANDF by operation of law on 4 February 1997 ie prior to his reporting at the induction centre and even
in the absence of his signing the interim service agreement.
in the absence of his signing the interim service agreement.
19.The Interim Service System, according to its terms, is a temporary system for the accommodation of nonstatutory
force members, for the interim period prior to their entering into an agreement in the SANDF. It appears that
this contract has its origin in an administrative procedure prescribed by the Joint Military Coordinating
Committee, a subcommittee of the Transitional Executive Council established in terms of the Transitional
Executive Council Act 151 of 1993. The administrative procedure, as explained in the answering affidavit
acknowledges, that “integration” takes place by operation of law. On identification of the attendee as a member
of a nonstatutory force ie APLA an interim service agreement is concluded. If certain conditions are not met
the attendee is demobilised.
20.The legal position, as I have outlined it, takes care, at least in the circumstances of this case, of the position of what
one may call a double enlistment a soldier wearing two helmets. The applicant, assuming he had an election to
belong to the SANDF as a member of the BDF or APLA, could not have made the election at the relevant time.
APLA members were not to be part of the new national defence force. It is true that the applicant could have
remained a covert member of APLA in the SANDF and have emerged on 4 February 1997 to claim rank and
privileges as an APLA member. He did not do this. He had resigned, remained a member of APLA and in 1998
he sought to rely on his APLA membership and take his place as a SANDF member. In my view, for the
reasons outlined above, he was entitled to do this.
21.The result is that the applicant is entitled to be reinstated in the SANDF. He asks that he be reinstated with
retrospective effect. I understand this to be to the date that his interim contract was terminated on 28 February
1998. The applicant prays that his proposed rank, terms and conditions of employment be retained. APLA
proposed that the applicant be appointed to the rank of colonel. At the time the interim service agreement was
terminated the senior manning board was considering, inter alia, the appropriate rank for the applicant. This
process has not been completed. The most that the applicant is entitled to is reinstatement in terms of his
interim service agreement which carries the rank of private. Thereafter the placement process will take place.
The board is not functus officio. It has not made a recommendation regarding the applicant’s rank.
22.The following order is made:
1. The applicant is reinstated in the South African National Defence Force retrospectively to 28 February 1998
on the same terms and conditions and rank set out in the interim agreement.
2. The respondent is ordered to pay the applicant’s costs.
Signed and dated at BRAAMFONTEIN this 28 th day of September 2001.
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A A Landman
Judge of the Labour Court of South Africa
25 September 2001.
28 September 2001.
Adv M J Mosopa, instructed by Khoza Seelane Motaung and Associates.
Adv H S Havenga, instructed by the State Attorney.