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[2019] ZASCA 86
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Minister of Defence and Military Veterans v Maswanganyi (739/18) [2019] ZASCA 86; [2019] 9 BLLR 890 (SCA); 2019 (5) SA 94 (SCA); (2019) 40 ILJ 2267 (SCA) (31 May 2019)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 739/18
In
the matter between:
THE MINISTER OF
DEFENCE AND MILITARY VETERANS FIRST
APPELLANT
THE CHIEF OF THE SOUTH
AFRICAN NATIONAL
DEFENCE
FORCE SECOND
APPELLANT
THE
SECRETARY FOR
DEFENCE THIRD
APPELLANT
and
MOZAMANE TEAPSON
MASWANGANYI RESPONDENT
Neutral
citation:
Minister
of Defence and Military Veterans v Maswanganyi
(739/18)
[2019] ZASCA 86
(31 May 2019)
Coram:
Navsa ADP and
Majiedt, Van der Merwe and Molemela JJA and Davis AJA
Heard:
21 May 2019
Delivered:
31 May 2019
Summary:
Interpretation of statute – s 59(1)(
d
)
of
Defence Act 42 of 2002
– operates ex lege – no
decision required to be made – nothing capable of being
reviewed and set aside –
no automatic reinstatement in terms of
that section.
ORDER
On
appeal from
:
Gauteng Division of the High Court,
Pretoria (Raulinga J sitting as court of first instance):
1 The appeal is upheld
with costs, including the costs of two counsel.
2 The order of the high
court is set aside and substituted with the following:
‘
The
application is dismissed with costs’.
JUDGMENT
Majiedt
JA (Navsa, Van der Merwe and Molemela JJA and Davis AJA concurring):
[1]
The central issues in this appeal are, first, whether
s 59(1)(
d
)
of the Defence Act 42 of 2002 (the
Defence Act) operates
ex
lege
, or whether a decision must be made by
any one or more of the appellants to put it into operation. The
second issue is whether
reinstatement follows automatically in terms
of that section. The respondent, Mr Mozamane Teapson Maswanganyi, was
a member of
the Regular Force of the South African National Defence
Force (the SANDF) until his appointment was terminated in terms of
s
59(1)(
d
) of the
Defence Act. He
applied to the Gauteng Division of the High Court,
Pretoria, for his reinstatement to the SANDF and for the
reinstatement of his
salary and benefits, both with retrospective
effect. Although the relief sought in the Notice of Motion was framed
as a mandamus,
Raulinga J reviewed and set aside the ‘decision’
of the second appellant, the Chief of the SANDF. The learned Judge
also issued orders for the retrospective reinstatement of the
respondent to the SANDF and of his salary and benefits. This appeal
is with the leave of this court.
[2]
The factual background is largely common cause or not seriously
disputed. The respondent became a permanent member of the SANDF
on 1
April 2009. During the course of 2010 the respondent was arrested on
a charge of rape. He was convicted as charged on 18 July
2014 and
sentenced to life imprisonment. He immediately began serving his
sentence and, although he lodged an appeal against conviction
and
sentence, he was not granted bail pending his appeal. On 13 February
2015 the respondent’s appeal succeeded and his conviction
and
sentence were set aside. He was released from prison on 16 February
2015.
[3]
After his release from prison, the respondent, whose employment had
been terminated by the SANDF upon his conviction and sentence
in
terms of
s 59(1)(
d
) of
the
Defence Act, applied
for his reinstatement to the SANDF. The
appellants refused to re-employ the respondent. They adopted the
stance that the termination
of his service had occurred by operation
of law and that he could not simply be reinstated, as the
Defence Act
did
not provide for such reinstatement. The respondent was informed
of this stance and also that his post had been filled before the
finalisation of his appeal. He was advised that he had to follow the
normal recruitment process for employment in the SANDF.
[4]
There is a dispute on the papers with regard to whether the SANDF was
aware of the respondent’s arrest. For the reasons
that follow,
this aspect has no bearing on the outcome. In any event, even if it
had any relevance, that dispute must be resolved
in favour of the
appellants.
[5]
As stated, the appellants’ case was that
s 59(1)(
d
)
operated
ex lege
and
that, upon the respondent’s conviction and sentence to life
imprisonment, his service as a member of the Regular Force
was
automatically terminated. Therefore there was no need for a decision
to be taken in this regard. The respondent, on the other
hand,
contended that, instead of invoking
s 59(1)(
d
),
the appellants, more particularly the second appellant, should, in
terms of
s 42(1)
, read with s 42(2), of the Military Discipline
Supplementary Measures Act 16 of 1999 (the MDSMA), have suspended him
from duty
pending his trial and subsequent appeal. As an alternative,
it was contended that, if the argument that s 59(1)(d) operates
ex
lege
were to be upheld, then the converse
must also apply, namely that upon the setting aside of the conviction
and term of life imprisonment,
the respondent’s reinstatement
should automatically have followed.
[6]
The high court upheld the contentions advanced by the respondent. It
held that subsections 59(1)(
d
)
and 59(3)
[1]
of the
Defence Act
and
s 42(1)
of the MDSMA had to be read conjunctively. Raulinga J
reasoned that, because the respondent had spent more than 30 days in
prison
until his release, the Chief of the SANDF had a choice between
invoking
s 59(1)(
d
)
or
s 59(3)
or
S 42(1).
The election to invoke
s 59(1)(
d
),
and not one of the other two subsections, was in itself an
administrative decision which was ‘arbitrary in the
circumstances’.
Raulinga J found that the SANDF was aware of
the respondent’s arrest. He ordered the respondent’s
reinstatement to
the SANDF and the reinstatement of his salary and
benefits, both retrospectively from the date of his arrest, 18 July
2014. As
stated, the ‘decision’ of the Chief of the SANDF
(the second appellant) was also reviewed and set aside by the high
court.
[7]
Section 59(1)(
d
) of the
Defence Act reads
as follows:
’
59
Termination of service of members of Regular Force
(1)
The service of a member of the Regular Force
is terminated
–
(d)
if he or she is sentenced to a term of imprisonment by a competent
civilian court without the option of a fine or if a sentence
involving discharge or dismissal is imposed upon him or her under the
Code. . .
’
(emphasis added).
Section
42
of the MDSMA reads:
’
42
Suspension awaiting trial or appeal
(1)
When in the opinion of the Chief of the South African National
Defence Force, it will be in the interest of the good governance
or
reputation of the South African National Defence Force, or in the
interest of justice, he or she may order any person subject
to the
Code
not to return to duty during any period subsequent to that
person
–
(
a
)
appearing as an accused before any civil court or military court; or
(
b
)
having been convicted by any civil court or military court, if that
person intends appealing against the conviction or applying
for the
review of the case, pending the conclusion of the trail, appeal or
review as the case may be.
(2)
The Chief of the South African National Defence Force shall give
written notice of his or her intention to consider exercising
the
power contemplated in subsection (1) to the affected person and shall
allow that person to respond in writing within 24 hours,
or any
longer period that the Chief my determine, of that person’s
receipt of such notice
’
. (emphasis added).
‘
Code’
is defined in both
s 1
of the
Defence Act and
s 1
of the MDSMA as ‘.
. . . the Military Discipline Code referred to in
Section 104(1)
of
the
Defence Act [44
of 1957]’. Section 104(1) of the 1957
Defence Act provides
that ‘(t)he provisions of the First
Schedule together with the rules made under subsection (3) shall
comprise, and may for
all purposes be cited as the Military
Discipline Code’. It is common cause that, as a member of the
Regular Force of the
SANDF, the respondent was at all material times
subject to the Code. It is clear that the MDSMA is concerned with
matters of military
discipline. In terms of s 42 the military can
rightly be concerned about someone charged with a criminal offence
continuing in
active service. It would be concerned about public
perception and morale.
[8]
The respondent’s reliance on s 42 of the MDSMA is at variance
with the case pleaded in his founding affidavit. After narrating
the
factual background and citing the provisions contained in s 59(1)(
d
)
and s 42, the respondent made the following averment:
‘
20.
I confirm that
I was
not suspended
during
my trial or after my conviction, as stipulated in section 42(1) of
[the MDSMA]. In fact, I was called up to attend a course
in the midst
of my trial. . .’
(my emphasis).
It
is plain that the respondent did not bring his application in terms
of s 42 of the MDSMA. In any event, the requisite jurisdictional
requirements for that provision to operate were lacking. Section
42(1) envisages the Chief of the SANDF forming an opinion, while
having regard to certain factors, as to whether a member should be
suspended from duty pending trial or appeal or review. It is
axiomatic that suspension from duty presupposes that the member
concerned is in fact still in the service, in the sense of physically
presenting himself or herself for duty, or being able to do so. The
provision can self-evidently only find application where the
SANDF is
aware of a member’s appearance in court (civil or military). In
his answering affidavit on behalf of the first and
second appellants
(qua respondents in the high court), General Shoke, the Chief of the
SANDF, stated that the respondent managed
to conceal his arrest and
criminal trial and that he never informed his superiors of it. He
stated that the SANDF only became aware
of the respondent’s
arrest and trial for the first time when the respondent was sentenced
to life imprisonment. Since the
respondent sought final relief in
motion proceedings, absent a rejection of these averments as being
implausible, far-fetched or
palpably false, the application had to be
decided on the common cause facts and the appellants’ version
(qua respondents
in the application).
[2]
[9]
In reply, the respondent sought to counter this by placing reliance
on a letter dated 26 October 2010 written on behalf of the
SANDF and
on an entry by the investigating officer on the docket of the
respondent’s criminal case. Both the letter and the
docket
entry constitute inadmissible hearsay as their authors did not
confirm same under oath. The letter reads as follows:
‘
Confirmation
of Employment
1.
This office hereby confirms that 92687524PE Pte Mzamani Teapson
Maswanganyi is currently employed by SANDF working at 7 SAI BN
in
Phalaborwa.
2.
The member has been withdrawn from the deployment structure.
3.
Hope you find the above in order.
’
The
inscription in the docket by the investigating officer, Warrant
Officer Chauke, reads:
‘
Time, date
Tyd, datum
Reference
Verwysing
10:15
At Phalaborwa 7 SAI Infantry
Battalion I spoke to Assistant
Officer Commander in Charge
10-10-26
Captain W.B. Maake, I informed
him about the Accused in this case and he alleged to me that the
accused is the member in their
unit. And I further informed him
about the accused’s arrest and he indicated to me that he
had already received the
message about the rape crime committed by
the accused, and that their office has taken a [fundamental]
decision to withdraw
the accused for going to perform six month
duty at the neighbouring country of Democratic Republic of Congo
[formerly] known
as Zaire in Central African Republic. The Capt
also submitted to me a confirmation of employment letter of the
Accused as
per filed
B-5’
[10]
As stated, this inadmissible hearsay evidence was adduced in the
replying affidavit. But there is a fundamental difficulty
with the
respondent’s belated attempt to bring his case under s 42 of
the MDSMA. Section 42 affords the Chief of the SANDF
a discretion,
namely whether to suspend from duty a soldier who is facing
criminal
[3]
or disciplinary
[4]
charges pending the trial or appeal or review, as the case may be.
The MDSMA is, as the long title indicates, concerned with ‘the
enforcement of military discipline’. Section 42 must thus be
read in the context of military disciplinary matters. By contrast,
s
59(1)(
d
)
falls under a section which deals with ‘termination of service
of members of Regular Force’. Furthermore, self-evidently
the
Chief of the SANDF had no reason to consider whether or not to permit
the respondent to return to duty in circumstances where
the
respondent was serving a term of life imprisonment. It will be
recalled that s 42 bears the heading ‘Suspension awaiting
trial
or appeal’. The suspension is effected by the person concerned
being directed not to report for duty. This presupposes
that the
person is physically present and in active duty prior to the
directive being issued. The respondent was not in a position
to
physically present himself for duty. The jurisdictional facts for the
operation of s 42(1) and (2) are lacking in this case.
The power
afforded the Chief of the SANDF in these subsections is discretionary
in nature. A public authority, such as the Chief
of the SANDF, must
determine the exact scope of its powers whenever it acts. That
determination entails questions of both fact
and law. Thus, the
public authority must not only be satisfied that it will be acting
within the permissible legal confines of
its powers, but also that
the requisite factual state of affairs exist for it to exercise that
power.
[5]
Section 42 therefore
did not apply in this case and Raulinga J erred in his finding that
it did.
[11]
In interpreting s 59(1)(
d
),
we must apply the well-established approach of affording meaning to
the words by applying the normal rules of grammar and syntax,
viewed
within the relevant factual context, in order to ascertain the
Legislature’s intention.
[6]
Section 59 envisages the termination of the service of members of the
SANDF who serve in a full-time capacity
[7]
.
Part-time members of the SANDF serve in the Reserve Force as provided
for in
s 11(b)
of the
Defence Act. There
are three broad categories
of termination envisaged in
s 59:
(a) First,
s 59(1)
deals
with termination which ensues automatically upon the occurrence of
certain events, namely –
(i) after the expiry of
three months (or such shorter period as the Chief of the SANDF may
approve) of a member’s resignation
(s 59(1)(a))
;
(ii) upon the termination
of a fixed term contract
(s 59(1)(b))
;
(iii) where a member
reaches retirement age or exercises the right to go on pension
(s
59(1)(c))
;
(iv) if a member is
sentenced to a term of imprisonment without the option of a fine by a
competent civilian court or if a sentence
involving discharge or
dismissal is imposed upon him or her under the Code
(s 59(1)(d))
; or
(v) if the
Surgeon-General or any person authorised thereto by him or her
certifies a member to be medically or psychologically
unfit to serve
permanently in the SANDF
(s 59(1)(e)).
(b) Second, there
is the discretionary termination of service in
s 59(2)
in instances
of:
(i) the abolition of the
post or a reduction or adjustment of post structures
(s 59(2)(a))
;
(ii) if the discharge of
the member would enhance efficiency or cost-effectiveness
(s
59(2)(b))
;
(iii) unfitness for duty
or inability to carry out duties
(s 59(2)(c))
;
(iv) if a member’s
permanent appointment is not confirmed after serving a period of
probation
(s 59(2)(d)
; or
(v) if the member’s
continued employment constitutes a security risk to the State
(S
59(2)(e)).
(c) Third, there is a
provision that a member who absents himself or herself from duty
without leave for a period exceeding 30 days,
is deemed to have been
dismissed or discharged on account of misconduct.
(S 59(3)).
[12]
Termination under
s 59(2)
was considered by this court in
Minister
of Defence & others v South African National Defence Union
(SANDU) & another
[8]
and the provisions in
s 59(3)
occupied this court’s attention
recently in
Minister
of Defence and Military Veterans and another v Mamasedi
[9]
.
As far as I could ascertain,
s 59(1)
or any of its subsections have
not been considered as yet by this court. We have also not been
referred to any decided cases on
those provisions.
[13]
It is striking that the Legislature uses the words ‘the service
of a member . . .
is
terminated
’
in
s 59(1)
, designedly so, in my view. (my emphasis). The intention
is plainly that in the instances listed from
s 59(1)(
a
)
up to and including
s 59(1)(e)
, termination follows ex lege. Thus,
for present purposes, it means that once the respondent had been
sentenced to life imprisonment,
his service in the SANDF was
terminated by operation of law in terms of
s 59(1)(
d
).
No decision was required by any one or more of the appellants to
effect that termination.
[10]
This conclusion is reached by giving the words its plain meaning and
considering them against the contextual setting of
s 59(1).
Thus in
the other four instances listed in
s 59(1)
, namely resignation,
retirement (or pension), termination of a fixed term contract and
medical or psychological unfitness for duty,
retirement would follow
automatically. It would be an absurdity to, for example, require any
one or more of the appellants to take
a decision on termination of
service where a member has reached retirement age or has elected to
go on pension. In the premises,
since the respondent’s service
was automatically terminated by the operation of
s 59(1)(d)
when he
was sentenced to life imprisonment, there was no ‘decision’
that could be reviewed and set aside.
[14]
That brings me to the respondent’s alternative argument that
the section must also operate automatically in a converse
factual
scenario, namely that upon the setting aside of the respondent’s
conviction and sentence of life imprisonment, reinstatement
to the
SANDF had to follow automatically. That argument is fatally flawed.
Section 59(3)
, cited above, pertinently makes provision for
reinstatement by the Chief of the SANDF.
Section 59(1)
contains no
such provision. In
Mamasedi
,
this court held that
‘. . . reinstatement does not
follow from the setting aside of the decision not to reinstate
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
reinstate him, he remains dismissed from the SANDF.’
[11]
A fortiori, in the present instance, absent a provision for any
reinstatement in
s 59(1)(
d
),
the respondent remained dismissed by operation of law. It is
difficult to conceive of such reinstatement automatically following
upon, for example, a member who has become unfit for duty and has
been certified as such under
s 59(1)(e)
, being cured and becoming
medically fit for duty.
[15]
In the premises, Raulinga J erred in his finding that
s 59(3)
of the
Defence Act and
s 42(1)
of the MDSMA also applied in this case.
Section 59(1)(
d
) was
the only applicable provision here. The jurisdictional facts for the
coming into operation of
s 59(1)(d)
are that a member of the Regular
Force must have been sentenced to a term of imprisonment without the
option of a fine by a competent
civilian court. Those facts are
common cause. For the reasons set out above, the subsection operates
automatically. The appellants
were thus correct in requiring the
respondent to apply for re-employment. It bears mention that the
respondent was arrested on
26 October 2010 and his conviction and
sentence only followed on 18 July 2014. The date of arrest emerged
for the first time in
the respondent’s replying affidavit. Be
that as it may, the respondent should have advised his superiors of
his arrest immediately
once it occurred.
Section 42(1)
could then
have been applied. The belated attempt to invoke
s 42(1)
after the
fact was misconceived.
[16]
The appeal must succeed and costs should follow the outcome.
The
following order issues:
1 The appeal is upheld
with costs, including the costs of two counsel.
2 The order of the high
court is set aside and substituted with the following:
‘
The
application is dismissed with costs’.
______________________
S A Majiedt
Judge
of Appeal
APPEARANCES:
For
First Appellant:
D T Skosana SC (with him M Gwala)
Instructed
by:
State Attorney, Pretoria
State
Attorney, Bloemfontein
For
Second Respondent:
G L van der Westhuizen
Instructed
by:
Griesel Breytenbach Attorneys, Pretoria
Phatshoane Henny
Attorneys, Bloemfontein
[1]
Section
59(3)
reads as follows:
‘
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.’
[2]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) para 26.
[3]
‘
Civil
court’ is defined in paragraph 1 of the First Schedule to the
Defence Act of 1957 as ‘any court of criminal
jurisdiction in
the Republic’ and ‘civilian court’ is defined in s
1 of the MDSMA as ‘any competent court
in the Republic having
jurisdiction in criminal matters’.
[4]
In a
military court.
[5]
Baxter,
Administrative
Law
,
1984 at 452.
[6]
North
East Finance (Pty) Ltd v Standard Bank of South Africa Ltd
2013(5) SA 1 (SCA) para 24;
Novartis
SA (Pty) Ltd v Maphill Trading (Pty) Ltd
2016(1) SA 518 (SCA) para 28.
[7]
‘
Regular
Force’ is defined in s 1 of the Defence Act with reference to
s 11(a) of that Act which reads as follows:
‘
11.
Composition of South African National Defence Force—
The South African National Defence
Force established by section 224 (1) of the Constitution of the
Republic of South Africa, 1993
(Act 200 of 1993), continues to exist
and consists of the –
(a) Regular Force, the members of
which serve full-time until –
(i) reaching
their age of retirement;
(ii) expiry of
their contracted term of service; or
(iii) otherwise
discharged from the Defence Force in accordance with the law.’
[8]
Minister
of Defence & others v South African National Defence Union &
another
2014
(6) SA 269 (SCA).
[9]
Minister
of Defence & Military Veterans and another v Mamasedi
[2017]
ZASCA 157; 2018 (2) SA 305 (SCA).
[10]
Compare:
Phenithi
v Minister of Education & others
[2005] ZASCA 130
; 2008(1) SA 420 (SCA) paras 9, 10 and 17.
[11]
S
upra
fn 9 para 24.