CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 170/19
In the matter between:
MOZAMANE TEAPSON MASWANGANYI Applicant
and
MINISTER OF DEFENCE AND MILITARY VETERANS First Respondent
CHIEF OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE Second Respondent
SECRETARY FOR DEFENCE Third Respondent
Neutral citation: Mozamane Teapson Maswanganyi v Minister of Defence and
Military Veterans and Others [2020] ZACC 4
Coram: Khampepe ADCJ, Froneman J, Jafta J, Madlanga J, Mathopo AJ,
Theron J, Tshiqi J and Victor AJ
Judgments: Tshiqi J (unanimous)
Heard on: 19 November 2019
Decided on: 20 March 2020
Summary: Termination of employment by the South African National
Defence Force — ex lege (by operation of law ) — pursuant to
section 59(1)(d) of the Defence Act 42 of 2002 — effect after
conviction and sentence set aside on appeal
2
Jurisdictional factors to section 59(1)(d) fell away — termination
of employment reversed by operation of law — employment
never validly terminated
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Division, Pretoria):
1. Leave to appeal is granted.
2. The appeal is upheld with costs, including the costs of two counsel,
where so employed.
3. The order of the Supreme Court of Appeal is se t aside and substituted
with the following:
“(a) It is declared that the applicant’s service with the
South African National Defence Force did not terminate as
contemplated in section 59(1)(d) of the Defence Act 42 of 2002 and that
he continues to be in th e employ of the South African National Defence
Force in the same position and capacity he was on 18 July 2014.
(b) The respondents are ordered to pay the applicant’s costs in the High
Court, and Supreme Court of Appeal, jointly and severally.”
3
JUDGMENT
TSHIQI J (Khampepe ADCJ, Froneman J, Jafta J, Madlanga J, Mathopo AJ, Theron J,
and Victor AJ concurring):
Introduction
[1] This is an application for leave to appeal against the judgment and order of the
Supreme Court of Appeal, in terms of which it upheld an appeal by the respondent s
against an order of the High Court of South Africa, G auteng Division, Pretoria
(High Court). The High C ourt had ordered the respondent s to reinstate the applicant
to his former position at the South African National Defence Force (SANDF) with
effect from 18 July 2014, and also his salary and benefits from the said date. At the
heart of this application lies the proper interpretation and application of section
59(1)(d) of the Defence Act (Defence Act).1
[2] Section 59(1)(d) provides:
“(1) The service of a member of the Regular Force is terminated
. . .
(d) if he or she is sentenced to a ter m 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. . .”
Factual background
[3] The applicant became a permanent member of the SANDF with effect from
1 April 2009. During the course of 2010, he was arrested on a charge of rape. On
18 July 2014, he was convicted and sentenced to life imprisonment. He lodged an
1 42 of 2002.
TSHIQI J
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appeal against his conviction and sentence, but was not granted bail pending hi s
appeal and he immediately began serving his sentence.
[4] On 13 February 2015, the applicant’s appeal succeeded, and his convict ion and
sentence were set aside; h e was subsequently released from prison. On
16 February 2015, the applicant submitted the court order and wa rrant of liberation to
Adjudant Mashabela at his unit at the SANDF and requested to be reinstated. He was
informed to submit an application for his reinstatement.
[5] On 13 March 2015, he submitted an application in the form of an affidavit
titled: “Application for Re-Employment,” in which, in relevant parts, he stated that he
had been wrongfully arrested for rape and was dismissed from work after he was
found guilty and sentenced to life imprisonment. He further stated that his conviction
and sentence had been set aside and that he was thereby bringing an application to be
reinstated. Further correspondence followed, but to no avail as the applicant was not
reinstated.
Litigation history
High Court
[6] The applicant launched an application in the High Court for an order for his
reinstatement and that of his salary and benefits with effect from 18 July 2014, being
the date of termination of his service, alternatively f rom 13 February 2015, being the
date on which his convicti on and sentence were set aside. Regarding costs, the
applicant prayed for an order for costs on a punitive scale as between attorney and
client.
[7] In his founding affidavit , the applicant stated that he was not suspended during
his trial or after conviction, as stipulated in section 4 2(1) of the
Military Discipline Supplementary Measures Act 2 (MDSM Act) and that during his
2 16 of 1999.
TSHIQI J
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trial he was required to attend a work related course. After his conviction, Sergeant
Mdluli from his unit visited him in prison and asked him to sign documents regarding
his pension and told him that his services had been terminated. He informed Sergeant
Mdluli that he had lodged an appeal against his conviction. The applicant furthe r
elaborated that notwithstanding knowledge of his appeal, the respondents terminated
his services in terms of section 59(1)(d) of the Defence Act, instead of suspending him
pending the conclusion of his appeal as provided for in section 42(1) of the MDSM
Act.
[8] In conclusion, the applicant contended that because his imprisonment had been
set aside on appeal, the termination of his services in terms of section 59(1)(d) of the
Defence Act was unlawful , and that, alternatively, the refusal to reinstate him under
the circumstances infringed his section 23 constitutional right to fair labour practices.
[9] The first and second respondents, in their answering affidavit alleged that the
applicant had managed to conceal his arrest and criminal trial in that he never
informed the Officer Commanding or any Officer responsible of the impending
charges against him. The SANDF learnt about the applicant’ s arrest and trial for the
first time after his conviction, when he was sentenced to life imprisonment. The first
and second respondents submitted that they do not take any decision regarding a
member who is convicted and sentenced for a criminal offence. Instead, the
provisions of section 59(1)(d) of the Defence Act automatically kick in. When the
applicant was convicted and sentenced, his services were, in terms of section 59(1)(d)
of the Defence Act , terminated by the operation of law. After the appl icant’s
conviction had been set aside, he had to follow the prescribed procedure for any
person seeking employment and had to state reasons why he should have been re -
employed. Regarding section 42 of the MDSM Act, the first respondent submitted
that as the applicant was serving a prison sentence, he could not be suspended and that
section 42 could thus not be invoked.
TSHIQI J
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[10] The applicant filed a replying affidavit. In response to the allegation from the
respondents that he concealed his criminal trial, h e stated that the investigating officer
in his case, Warrant Officer Chauke, had contacted Captain Maake, the applicant’s
Assistant Officer Commanding. The latter confirmed that he was informed of the
applicant’s arrest and the charge against him . In support of this version the applicant
attached a letter dated 26 October 2010 from Lieutenant Colonel Nethononda, the
Officer Commanding 7 SA Infantry Batallion, addressed to Captain Maake. This
letter, which was forwarded by Captain Maake to Warran t Officer Chauke, confirmed
the applicant’s employment with the SANDF and further that he had been withdrawn
from the deployment structure. The applicant attac hed a copy of an extract from a
SAPS dossier relating to the rape case. This extract bears an i nscription, allegedly by
Warrant Officer Chauke, stating that he had informed Captain Maake about the
applicant’s arrest and that the latter had informed the former that he had already
received a message about the rape charge. It further stated that their office had taken a
decision to withdraw the applicant from going to perform six month duties in the
Democratic Republic of Congo.
[11] The High Court upheld the arguments advanced by the applicant. From the
outset, the High Court pointed out that the di stinction between section s 59(1)(d) and
59(3) of the Defence Act and section 42(1) of the MDSM Act is that , in terms of
section 42 of the MDSM Act, the service of a member may be suspended while
awaiting trial, review or appeal. 3 A further distinction is that section 59(1) of the
Defence Act is silent on the powers and discretion of the second respondent regarding
possible reinstatement after termination of services, whereas section 59(3) of the
Defence Act grants this power and discretion to the second respondent, on good cause
shown, to reinstate the said member. Section 42(2) of the MDSM Act , however,
directs the second respondent to give notice to th e affected member before making a
determination in terms thereof.
3 Maswanganyi v The Minister of Defence and Military Veterans 2017 JDR 1348 (GP) (High Court judgment).
TSHIQI J
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[12] Having distinguished the sections in dispute, t he High Court held that
sections 59(1)(d) and 59(3) of the Defence Act, as we ll as section 42(1) of the
MDSM Act had to be read conjuncti vely. In this regard, the High Court reasoned that
the second respondent had a choice between invoking either section 59(1)(d) or
59(3) of the Defence Act, alternatively, section 42(1) of the MDSM Act. However,
the High Court found that the election to i nvoke section 59(1)(d), and not one of the
other two sections, was in itself an administrative decision which was “arbitrary in the
circumstances”.4
[13] According to the High Court, the respondents could not hide behind the fact
that section 59(1)(d) is silent on the powers and discretion of the second respondent to
reinstate a member. If the second respondent was convinced that the applicant did not
report his arrest, then the respondents could have invoked the provisions of
section 59(3). Furthermore, after they were informed of the conviction and sentence
of the applicant, the respondents ought to have invoked the provisions of section 42(1)
of the MDSM Act . In the circumstances, the High Court ordered the applicant’s
reinstatement t o the SANDF and the reinstatement of his salary and benefits, both
retrospectively, from the date of his arrest, on 18 July 2014.5
[14] Unhappy with this outcome, the respondents filed an application for leave to
appeal at the High Court, which application was refused. A ggrieved by this refusal,
the respondents then applied for, and were granted leave to appeal against the High
Court’s judgment by the Supreme Court of Appeal.
Supreme Court of Appeal
[15] From the onset the Supreme Court of Appeal highlighted that the High Court
had erred in the manner in which it categorised the nature of the matter before it. The
High Court had dealt w ith the matter as if it was a revi ew application. As the
4 Id at para 18.
5 Id at para 22.
TSHIQI J
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Supreme Court of Appeal stated, the relief sought by the applicant was framed as a
mandamus (judicial writ or an order a court issues directing a party to do or refrain
from doing something). 6 He applied for his reinstatement to the SANDF, with full
benefits and for payment of his salary, both with retrospective effect. The S upreme
Court of Appeal proceeded to deal with the matter as that seeking a mandatory order.
[16] In a unanimous judgment, the Supreme Court of Appeal held that the argument
that section 59(1)(d) of the Defence Act must operate automatically, in a converse
factual scenario, namely that, upon the setting aside of the applicant’s conviction,
reinstatement to the SANDF must also follow automatically, is fatally flawed. 7 In this
regard, the Supreme Court of Appeal referred to its decision in Mamasedi, where it
held that—
“[r]einstatement does not follow from the setting aside of the decision not to reinstate
Mamasedi. He was discharged by operation of law in terms of section 59(3) and, in
the absence of a decision by the Chief of the SANDF to reinstate him, he remains
dismissed from the SANDF.”8
[17] Furthermore, the Supreme Court of Appeal held that absent a provision for any
reinstatement in section 59(1)(d) of the Defence Act, the applicant remained dismissed
by operation of law. The Supreme Court of Appeal reasoned that it is difficult to
conceive of an automat ic reinstatement following upon, for example, a member who
has become unfit for duty in accordance with section 59(1)(e) of the Defence Act,
particularly if such a member becomes medically fit for duty. 9 In the premises, the
Supreme Court of Appeal found that the High Court erred in finding that section 59(3)
of the Defence Act and section 42(1) of the MDSM Act also applied in this case.
According to the Supreme Court of Appeal, section 59(1)(d) of the Defence Act was
6 Minister of Defence and Military Veterans v Maswanganyi 2019 (5) SA 94 (SCA) (Supreme Court of Appeal
judgment) at para 1.
7 Id at para 14.
8 Minister of Defence and Military Veterans v Mamasedi [2017] Z ASCA 157; 2018 (2) SA 305 (SCA)
(Mamasedi) at para 24.
9 Supreme Court of Appeal judgment above n 6 at para 14.
TSHIQI J
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the only applicable provision. Furthermore, whilst section 59(3) of the Defence Act
pertinently makes provision for reinstatement by the Chi ef of the SANDF,
section 59(1) contains no such provision.10
[18] The Supreme Court of Ap peal remarked that it is striking that the Legislature
uses the words “the service of a member . . . is terminated” in section 59(1) of the
Defence Act.11 The meaning of the said words, so the court stated, is—
“plainly that in t he instances listed from s ection 59(1)(a) up to and including
section 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 section 59(1)(d). No decision
was required by any one or more of the appellants to effect that termination. This
conclusion is reached by giving the words its plain meaning and considering them
against the contextual setting of section 59(1). Thus in the other four instances listed
in section 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 an y one or
more of the appellants to take a decision on termination of service w here a member
has reached retirement age or has elected to go on pension. In the premises, since the
respondent’s service was automat ically terminated by the operation of section
59(1)(d) when he was sentenced to life imprisonment, there was no ‘decision’ that
could be reviewed and set aside.”12
[19] The Supreme Court of Appeal also pointed out that the “jurisdictional facts for
the coming into operation of section 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 ”.13 The Supreme Cou rt of Appeal found that in these
circumstances the respondents were correct in requiring the ap plicant to apply for
re-employment. Furthermore, the Supreme Court of Appeal highlighted that the
10 Id.
11 Id at para 13.
12 Id.
13 Id at para 15.
TSHIQI J
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applicant was arrested on 26 October 2010, and his conviction and sentence only
followed on 18 July 2014. As a result, the applicant should have advised his superiors
of his arrest immediately once it occurred, in that case, section 42(1) of the MDSM
Act could then have applied. According to the Supreme Court of Ap peal, the belated
attempt to invoke section 42(1) of the MDSM Act, after the fact, was misconceived.14
[20] The Supreme Court of Appeal held that the applicant’s reliance on section 42
of the MDSM Act was in any event at variance with his pleaded case. For this finding
the Supreme Court of Appeal relied on the applicant’s founding affidavit where, in
setting out the narrative, the applicant stated:
“I confirm that I was not suspended during my trial or after my convi ction, as
stipulated in section 42(1) of the MDSM [Act]. In fact I was called up to attend a
course in the midst of my trial.”15
In this Court
Issues
[21] The following issues arise for consideration by this Court:
(a) Whether the matter engages our jurisdiction and the application for leave
to appeal should be granted; and
(b) Whether on a proper interpretation of section 59(1)(d) of the Defence
Act, the applicant’s service with SANDF was terminated ex lege (by
operation of law) once he w as sentenced by the trial court, irrespective
of his election to lodge an appeal against the conviction and sentence.
14 Id.
15 Id at para 8.
TSHIQI J
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Jurisdiction and leave to appeal
Applicant’s submissions
[22] Concerning jurisdiction, the applicant submits that this matter raises several
constitutional issues, in particular, the right to fair labour practices in section 23(1) of
the Constitution, in that the consequence of the Supreme Court of Appeal’s
interpretation of section 59(1)(d) of the Defence Act is tha t the applicant’s
employment was terminated automatically, without any procedural safeguards or a
hearing. In addition to this, the applicant highlights that this section 23(1)
constitutional challenge was also raised by him in the High Court.16
[23] The applicant also contends that his right to dignity in terms of secti on 10 of
the Constitution is implicated, given that the freedom to engage in productive work is
an important component of human dignity . The applicant goes further to argue that
the other right that has been impaired is his right to a fair trial in terms of section 35 of
the Constitution, 17 in particular his right, in terms of section 35(3)(o) to appeal to a
16 The applicant’s founding affidavit filed in this Court, at footnote 8, where the applicant states—
“in para 29 of my founding affidavit in the High Court (which will form part of the record
should this Court decide to hear the matter), I stated that, in add ition to being unlawful, the
termination of my services and failure to reinstate me “ infringes on my right to fair labour
practices protected in section 23 of the Constitution.”
17 Section 35(3) of the Constitution, which deals with the right to a fair trial, states:
“Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be r epresented by, a legal practitioner, and to be informed of
this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at
state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the
proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
TSHIQI J
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higher court, in that the consequence of the Supreme Court of Appeal’s judgment is
that the applicant’s original conviction and sentence – which were set aside on appeal
– continue to exert residual punitive effects on him.
[24] Alternatively, and in the event this Court concludes that there is no
constitutional matter raised, the applicant asserts that this application then falls within
the Court’s jurisdiction as an arguable point of law of general public importance,
which ought to be considered by this Court. In support of this contention the applicant
submits that this matter concerns the proper interpretation of the Defence Act and, in
particular, the effect of an overturned sentence on a member’s employment.
[25] Regarding prospects of success, the applicant contends that he has at least
reasonable prospects of success. The applicant further contends that the interpretation
of section 59(1)(d) of the Defence Act that was adopted by the Supreme Court of
Appeal must be rejected. He submits that the provisions of the Defence Act must be
interpreted purposively, furthermore, the said provisions must be interpreted in a
manner that best promotes the spirit, purport and objects of the Bill of Rights. The
applicant contends that reference to a “sentence to a term of imprisonment” in section
59(1)(d) of the Defence Act must be reference to a lawful or valid sentence of
imprisonment. In this context, so argues the applicant, the trial court’s sentence was
neither final nor lawful, as a sentence that has been overturned on appeal is not a valid
sentence, cannot be relied on, and cannot have legal effect.
(k) to be tried in a language that the accused person understands or, if that is not
practicable, to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under
either national or international law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that
person has previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.”
TSHIQI J
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[26] In conclusion, the applicant avers that in this case, the jurisdic tional
requirements for section 59(1)(d) of the Defence Act were absent. There was no valid
sentence to a term of imprisonment. W here the jurisdictional requirements of section
59(1)(d) are absent, the termination of employment should be reversed by operation of
law in other words reinstatement should be automatic. This is because, properly
understood, there was no valid termination to begin with.
Respondents’ submissions
[27] The respondents submit that the applicant is not challenging the constitutional
validity of section 59(1)( d) of the Defence Act and this Court can only declare the
section invalid if an application or an appeal is made in that regard.
[28] The respondents further submit that no constitutional issue and arguable point
of law of general public importance ha ve been raised in the matter. The respondents,
however, concede that the interests of justice favour the hearing of the matter in order
to settle the divergent approaches taken by the High Court and the
Supreme Court of Appeal to the interpretation of section 59(1)(d).
[29] Regarding the correct interpretation of section 59(1)(d), the respondents argue
that a conclusion that the jurisdictional factors in section 59(1)(d) are only met at the
time of conclusion of the appeal process, defies the authority and jurisdiction of the
court of first instance to convict, impose and enforce its sentences, as the appeal
against such conviction and sentence does not suspend its operation pending appeal.
The respondents further submit that this approach would render the relevant section
nugatory, as it would suspend its operation until the conclusion of a lengthy appeal
process.
Condonation
[30] The applicant and respondents have both filed applications for condonation and
have not opposed each other’s condonation applic ations. The application for leave to
TSHIQI J
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appeal was filed six court days late. The first respondent’s answering affidavit was
filed approximately twenty days late. In view of the adequate explanations for the
respective delays and the fact that there has be en no prejudice caused by the late filing
of both the application and the answering affidavit, condonation is granted in both
applications.
Jurisdiction
[31] I now consider the preliminary issues, namely, whether this Court has
jurisdiction and whether leave to appeal should be granted. This Court’s jurisdiction
is engaged when a matter raises a constitutional issue or an arguable point of law of
general publi c importance which ought to be considered by this Court. 18 Once this
Court’s jurisdiction is engaged, the Court must be satisfied that it is in the interests of
justice to grant leave to appeal.19
[32] The manner in which the p rovisions of section 59(1)(d) were applied by the
SANDF, which was rejected by the High Court but subsequently endorsed by the
Supreme Court of Appeal has an impact on the right to appeal to a higher court in
section 35(3)(o) of the Constitution. Furthermore, this application raises an arguable
point of law of general public importance which ought to be considered by this C ourt.
In Paulsen,20 this Court found that its jurisdiction on the basis of section 167(3)(b)(ii)
of the Constitution21 is established where the matter raises a point of law:
18 Section 167(3)(b)(i) and (ii) of the Constitution.
19 S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para 12.
20 Paulsen v Slipknot Investments 777 (Pty) Ltd [2015] ZACC 5; 2015 (3) SA 479 (CC) ; 2015 (5) BCLR
509 (CC).
21 Section 167(3)(b)(ii) states:
“The Constitutional Court—
. . .
(b) may decide—
. . .
(ii) any other matter, if the Constitutional Court grants lea ve to appeal on the
grounds that the matter raises an arguable point of law of general public
importance which ought to be considered by that Court.”
TSHIQI J
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(a) which “axiomatically, must not be one of fact”;22
(b) which is arguable, in that there is “some degree of merit in the
argument” and has a “measure of plausibility. . . in the sense that there is
substance in the argument advanced”;23
(c) which is of ge neral public importance, in that the point “must transcend
the narrow interests of the litigants and implicate the interests of a
significant part of the general public”;24 and
(d) which ought to be considered by the Court, and this in effect overlaps
with the “factors that are of relevance to the interests of justice factor”.25
[33] The decision of the Supreme Court of Appeal, which as stated above endorsed
the approach adopted by the SANDF, concerns a n interpretation of the provisions of
section 59(1)(d). The point of law is arguable, given the starkly different
interpretations proffered by the High Court an d the Supreme Court of Appeal. It will,
if left unchallenged, be applicable to all the other members of the SANDF, and will be
interpreted as such by all the lower courts. In this respect the application raises an
arguable point of law of general public importance which ought to be con sidered by
this Court. The interpretation adopted by the Supreme Court of Appeal is inconsistent
with the injunction in section 39(2) of the Constitution.
[34] The contention by the respondents that the applicant raises constitutional issues
for the first time in this C ourt is wrong. In paragraph 29 of his founding affidavit the
applicant stated that the interpretation of section 59(1)(d) implicates his right to fair
labour practices. Whilst sections 10 and 35 of the Constitution are not expressly
mentioned, they are covered by the pleadings. For all these reasons, this Cour t is
clothed with jurisdiction.
22 Paulsen above n 20 at para 20.
23 Id at para 21.
24 Id at para 26.
25 Id at para 17.
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[35] It would also be in the interests of justice to grant leave to appeal, as the
applicant has reasonable prospects of success .26 The rights involved are fundamental
and a decision by this Court will provide helpful clarity on an undecided legal
question.
Merits
[36] In interpreting legislation, a court must consider section 39(2) of the
Constitution which states:
“When interp reting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.”
[37] In Hyundai, this Court held that section 39(2) requires that all legislat ive
provisions must be read “so far as is possible, in conformity with the Constitution”. 27
In Cool Ideas,28 this Court restated the approach to statutory interpretation and said:
“A fundamental tenet of statutory interpretation is that the words in a statute must be
given their ordinary grammatical meaning, unless to do so would result in an
absurdity. There are three important interrelated riders to thi s general principle,
namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is,
where reasonably possible, legislative provisions ought to be interpreted to
preserve their constitutional validity. This proviso to the general principle is
closely related to the purposive approach referred to in (a).”29
26 Boesak above n 19.
27 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In Re
Hyundai Motor Distributors (Pty) Ltd v Smit N.O. [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR
1079 (CC) (Hyundai) at para 22.
28 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC) ; 2014 (8) BCLR 869 (CC)
(Cool Ideas).
29 Id at para 28.
TSHIQI J
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[38] The parties are in agreement that the purpose of section 59(1)(d) of the
Defence Act is to ensure that the SANDF does not have in its ranks, members who
have been convicted of serious crimes (and sentenced to imprisonment on this basis).
This is in line with section 200(1) of the Constitution, which sets ou t that the SANDF
“must be structured and managed as a disciplined military force”.
[39] It is not in dispute between the parties that section 59(1)(d) of the Defence Act
operates ex lege. The real bone of contention between the parties is whether the
jurisdictional requirements stipulated in section 59(1)(d) are conclusively met as soon
as a trial court has sentenced a member of the SANDF to a term of imprisonment
without the option of a fine, irrespective of his election to exercise his constitutional
right to appeal to a superior court as envisaged in section 35 (3)(o) of the Constitution
– or whether in the event the member has exercised the right to appeal, these
jurisdictional requirements are conclusively met only after there is a final
pronouncement on the sentence by a compete nt court. This entails giving true
meaning to the reference, in section 59(1)(d) to “a sentence to a term of imprisonment
by a competent civilian court, without the option of a fine”.30
[40] As stated above, the respondent s have argued for an interpretation that has the
effect of terminating the service of the member as soon as the trial court has imposed
sentence, irrespective of the election by the member to appeal against the order of the
trial court. The applicant o n the other hand has asked the C ourt to adopt the contrary
meaning. The problem with the interpretation advanced by the respondent s is that it
does not factor in the hierarchical functioning str ucture of our courts. If this C ourt
were to adopt it, it would be tant amount to saying that any appeal processes and any
subsequent decisions by the superior courts are of no moment. This interpretation
would be at variance with the provisions of section 35 (3)(o) of the Constitution. If the
SANDF is allowed to stick to it s initial stance, which was based on an erroneous
decision of the trial court, irrespective of the decision of the superior court setting the
30 Defence Act above n 1.
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earlier decision aside, this would have the effect of excusing the SANDF from the
obligation to comply with the binding orders of appellate courts.
[41] The words “conviction” and “sentence” in section 59(1)(d) of the Defence Act
must thus be interpreted to refer to valid and final convictions and sentences, where
there is an appeal. Once the decision of the trial c ourt was set aside , there was no
longer any lawful conviction nor sente nce and the jurisdictional factors set out in
section 59(1)(d) of the Defence Act fall away or are , as a result, absent. The member
would no longer have a criminal record and no purpose would be served by continuing
to subject such a member to the penal provisions of the section.
[42] The effect of a convictio n and sentence being overturned is distinguishable
from a pardon, in that once the conviction and sentence have been set aside, the fact of
the conviction and sentence are wiped out. They are treated as never having occurred.
On the other hand, a pardon, as this Court said in McBride,31 does not confer on the
perpetrator immunity from untrammelled discussion of the deeds that led to his/her
conviction and from the moral opprobrium that some continue to attach to those
deeds.32 Importantly, a pardon does not render untrue the fact that the perpetrator was
convicted, or expunge the deed that led to his or her conviction. 33 Those remain
historically true.34
[43] In Du Toit ,35 Langa CJ writing for a unanimous court held that the effect of
granting amnesty on civil liability that has already been det ermined is, “prospective
only”. This, the Court reasoned, shows t hat “the granting of amnesty does not
31 The Citizen 1978 (Pty) Ltd v McBride [2011] ZACC 11; 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 ( CC)
(McBride).
32 Id at paras 64-5.
33 Id at para 72.
34 Id.
35 Du Toit v Minister for Safety and Security [2009] ZACC 22; 2009 (6) SA 128 (CC); 2009 (12) BCLR 1171
(CC).
TSHIQI J
19
obliterate all direct legal consequences of conduct in respect of which amnesty is
granted”.36
[44] In Masemola,37 this Court distinguished the facts between Masemola and Du
Toit and held:
“Here, the applicant is not seeking expungement of his disqualification, he seeks only
its expungement from the date of his presidential pardon. If the applicant had sought,
retroactively, on the basis of his pardon, to have his disqualification expunged from
the date of his conviction to April 2001, his case would have been on all fours with
that of Du Toit.
But he does not seek that. The applicant only seeks the reinstatement of his special
pension from the date that he was pardoned. Therefore, in true fidelity to the
reasoning and importance of Du Toit, he seeks a retrospective but not retroactive
result. Differently put, he acknowledges that he was d isqualified from receiving his
special pension under the Act between April 2001 and his pardon in July 2011. But,
he says, his entitlement to the special pension revived when he was pardoned.”38
[45] It follows that once the applicant’ s appeal was successful, there was no longer
any connection between the purpose for which section 59(1)(d) was enacted and the
application of the provision to him. When the jurisdictional factors of section 59(1)(d)
fell away, the termination of employmen t was reversed by operation of law. This is
because, properly understood, in the absence of a valid conviction and sentence, in the
form of a final order confirming the order of the trial court, there was no valid
termination of his employment. As the ju risdictional fac tors for the operation of
section 59(1)(d) are absent, the applicant’s employment was never validly terminated.
36 Id at para 44.
37 Masemola v Special Pensions Appeal Board [2019] ZACC 39; 2020 (2) SA 1 (CC) ; 2019 (12) BCLR 1520
(CC).
38 Id at paras 38-9.
TSHIQI J
20
[46] I am fortified in this conclusion by this Court’s reasoning in Steenkamp,39
where it clarified the distinction between unlawful, unfair and invalid dismissals. The
Court stated:
“The common law which gives us the concept of the invalidity of a dismissal is rigid.
It says that if a dismissal is unlawful and invalid, the employee is treated as never
having been dismissed irrespective of whether the only problem with the dismissal
was some minor procedural non-compliance. It says that in such a case the employer
must pay the employee the whole back-pay, even if, substantively, the employer had
a good and fair reason to dismiss the employee.”40
It stated further:
“The distinction between an invalid dismissal and an unfair dismissal highlights the
distinction in our law bet ween lawfulness and fairness in general and, in particular,
the distinction between an unlawful and invalid dismissal and an unfair dismissal or,
under the 1956 L abour Relations Act a dismissal that constituted an unfair labour
practice. At common law the termination of a contract of employment on notice is
lawful but that termination may be unfair under the L abour Relations Act if there is
no fair reason for it or if there was no compliance with a fair procedure before it was
effected. This distinction h as been highlighted in both our case law and in academic
writings.
It is an employee whose dismissal is unfair that requires an order of reinstatement.
An employee whose dismissal is invalid does not need an order of reinstatement. If
an employee whose dismissal has been declared invalid is prevented by the employer
from entering the workplace to perform his or her duties, in an appropriate case a
court may interdict the employer from preventing the employee from reporting for
duty or from performing his or her duties. The court may also make an order that the
employer must allow the employee into the workplace for purposes of performing his
or her duties. However, it cannot order the reinstatement of the employee.” 41
39 Steenkamp v Edcon Ltd [2016] ZACC 1; 2016 (3) SA 251 (CC); 2016 (3) BCLR 311 (CC).
40 Id at para 118.
41 Id at paras 191-2.
TSHIQI J
21
Once the charges on which the applicant was initially convicted and sentenced were
set aside on appeal, the applicant should have been treated as never having been
convicted nor sentenced.
[47] This Court has on occasion dealt with termination of employme nt for failure to
meet jurisdictional factors. In Grootboom,42 Mr Grootboom was employed by the
National Prosecuting Authority (NPA) as a public prose cutor.43 He was suspended
from work and while so suspended, left South Africa to study in the United
Kingdom.44
[48] The NPA then informed him that he had been discharged from his duties from
public service in terms of section 17(5)(a)(i) of the Public Service Act, 45 which
provides for the deemed discharge of public servants who absent themselves from
their official d uties for longer than one month without their employers’ permission.
The Labour Court and the Labour Appeal Court refused to set aside Mr Grootboom’s
deemed discharged.46 On appeal to this Court he was successful.47
[49] This Court held that Mr Grootboom had been barred from performing any of
his duties or being present at work. 48 As a result, so the Court continued, he could not
be said to have absented himself from his duti es without his employer’s permission. 49
The Court concluded that the central jurisdictional fact or for the relevant provision
was absent, and that given this absence, section 17(5)(a)(i) of the Public Service Act, 50
42 Grootboom v National Prosecuting Authority [2013] ZACC 37; 2014 (2) SA 68 (CC) ; 2014 (1) BCLR 65
(CC).
43 Id at para 4.
44 Id at para 9.
45 103 of 1994.
46 Grootboom above n 42 at para 12-4.
47 Id at para 38.
48 Id at para 43.
49 Id at para 45.
50 Public Services Act above n 45.
TSHIQI J
22
was not applicable and Mr Grootboom had remained in the employ of the NPA. 51
There was thus no question whether Mr Grootboom was required to apply for
reinstatement or re -employment. As was the case in Grootboom, there was no need
for Mr Maswanganyi to apply for reinstatement or re-employment.
Conclusion
[50] It follows that the application for leave to appeal succeeds and the appeal must
be upheld.
Order
[51] The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld with costs, including the costs of two counsel,
where so employed.
3. The order of the Supreme Court of Appeal is set aside and substituted
with the following:
“(a) It is declared that the applicant’s service with the
South African National Defence Force did not terminate as
contemplated in section 59(1)(d) of the Defence Act 42 of 2002
and that he continues to be in the employ of the South African
National Defence Force in the sa me position and capacity he was
on 18 July 2014.
(b) The respondents are ordered to pay the applicant’s costs in the
High Court, and Supreme Court of Appeal, jointly and severally.”
51 Grootboom above n 42 at para 42.
For the Applicants:
For the Respondents:
G Marcus SC and M Finn instructed by
Griesel Breytenbach Attorneys
ST Skosana SC and ZZ Matebese SC
instructed by State Attorney