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Barely a month after the chief of the defence force, General Solly Shoke, recalled 509 soldiers he had placed on special leave for marching to the Union Buildings in 2009, they are planning to claim millions of rands in a class action.
Although they sat at home with full pay for six years and were returned to work three weeks ago, two of these soldiers submitted papers to the North Gauteng High Court in order to set up the class action against their boss.
The first step of approval from the court would be to hear the soldiers’ claims in one class action.
In justifying the reasons for the class action against the defence force, the South African National Defence Union is blaming the military for having squandered at least R560 million on potential salaries and benefits for the soldiers, who were at home during their suspension. The trial was subsequently abandoned.
The union believes it would cost the military a lot more if the class action is successful.
The soldiers want to claim for the “potential” damages they have suffered due to not being able to further their careers or attend advancement courses throughout the period of their suspension.
Captain Romano Lottering of 21 SAI (infantry battalion), who is acting as spokesperson for the group, said the defence force was deliberately prejudicial towards them by trying to have them discharged.
“Now the situation has blown up in the military’s face and we want to see who is going to accept the responsibility,” he said.
Although the size of the claim will only be determined much later, they foresee it amounting to hundreds of millions of rand.
When asked, what if the military can’t afford it? Lottering said: “Then we ask the sheriff to confiscate President Jacob Zuma’s presidential jet [which is registered to the defence force].”
The war between the soldiers and the military started when a number of soldiers took leave to participate in the protest action in 2009. Many were subsequently fired but the union took legal action, forcing the military to withdraw its action. It subjected the soldiers to a court case and charged them with various crimes, including being absent without leave, insubordination and abandoning their posts.
Lottering says that he, for example, was on leave for the birth of his daughter. He was therefore not absent without leave as the military claimed and he has copies of his unit’s attendance register to prove it.
Nevertheless, the discharge of the soldiers made it to the Supreme Court of Appeal twice, where the defence force was given a bloody nose both times. But still the military did not allow the soldiers to return to work.
A special disciplinary tribunal, led by former chief justice Sandile Ngcobo, was then set up to try the soldiers. In April, Ngcobo found the defence force did not have the right to take disciplinary action against the soldiers outside the structures of the military court.
He further determined that the tribunal didn’t have the jurisdiction to make a ruling outside of the Military Discipline Code, on which the military legal system is based, in a case that is primarily of a disciplinary nature.
Since Ngcobo’s ruling the soldiers are however still in the dark about their future, says Lottering.
“Six years and 10 months of our lives have been wasted. Careerwise we will never be able to recover because the deficit is just too great. Even at this moment, we don’t know where and when we will have to report for duty again.”
The last thing he received was a lawyer’s letter in September last year, telling him that he is one of the “accused” before Ngcobo’s tribunal.
In their application before the court the soldiers are asking that the army release a complete list of names of the soldiers who were affected, as well as take out a newspaper ad to inform those involved of the class action. Those who do not want to take part in the suit have the option to withdraw from it.
The court has given the defence force until July 25 to indicate whether it is opposing the application. It did not respond to enquiries.
