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A Constitutional Court ruling last month has granted protection to members of the SA National Defence Force (SANDF) against the abuse of the Defence Act provision which deals with dismissals from the army.
Former soldier Teaspoon Maswanganyi took the Minister of Defence and Military Veterans Nosiviwe Mapisa-Nqakula to court to challenge his dismissal. But despite winning his appeal, the SANDF refused to reinstate him. Last month, in a unanimous decision, the judges of the apex court ruled in his favour again.
This week lawyer Tumisang Phasha, of law firm Tumisang Phasha Incorporated in Polokwane, Limpopo, said Maswanganyi’s court victory against Mapisa-Nqakula had added a layer of legal protection for soldiers against unfair dismissals.
The law firm has represented several SANDF members in matters of unfair dismissals.
According to a unanimous Constitutional Court judgment on March 20, Maswanganyi had been a permanent member of the SANDF since April 2009. In 2010 he was arrested on a charge of rape and in July 2014 he was convicted and sentenced to life imprisonment.
He lodged an appeal against his conviction and sentence. However, he was denied bail pending his appeal and he immediately began serving his sentence.
In February 2015, his appeal succeeded, his conviction and sentence were set aside and he was released from prison.
But when he requested that the SANDF reinstate him, he was told to submit an application for his re-employment, which he did but all to no avail.
The apex court judges said that once the charges Maswanganyi was initially convicted on and sentenced to prison for were set aside on appeal, he should have been treated as if he had never been convicted or jailed.
“If the SANDF is allowed to stick to its initial stance, which was based on an erroneous decision of the trial court, irrespective of the decision of the superior court setting the earlier decision aside, this would have the effect of excusing the SANDF from the obligation to comply with the binding orders of appellate courts,” the judges ruled.
The judges “declared that the applicant’s service with the SANDF 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 SANDF in the same position and capacity”.
Phasha said section 59(1)(d) of the Defence Act provided “a short cut to the department of defence or the SANDF to dismiss members without observing the requirements of disciplinary hearings and observing fair military labour procedures, like conducting disciplinary hearings, and appeal procedures”.
The statutory provision was intended to ensure that the SANDF does not have in its ranks members convicted of serious crimes. However, Phasha said, it had often been abused by army chiefs.
“This Constitutional Court judgment provides relief to many members of the SANDF and Reserves, mostly members of the nonstatutory forces, who find themselves in the same predicament as Maswanganyi,” Phasha said.
“It is true that the likes of Lieutenant Colonel Babalo Mvithi and others will benefit from this judgment,” he said.
Mvithi, who worked for the air force, is one of his clients who came through advocate Zondeka Makonde’s organisation, the African Law Project.
His reinstatement to the SA Air Force was recommended by the Military Ombudsman in 2012 and confirmed by the Public Protector in 2017, but the SANDF refused to comply.
Last November, in Mvithi’s absence, the Pretoria High Court set aside the findings of Public Protector Busisiwe Mkhwebane, who had found in favour of Mvithi.
Nathi Mncube, spokesperson of the Office of the Chief Justice, told City Press earlier this year that “the draft order [was] prepared by the parties and presented to a judge hearing the matters.
“If one of the parties is contesting the order, they have every right to take it up and apply for recession,” Mncube said.
Phasha said “the lower-ranking members of the SANDF suffered heavily from the section 59(1)(d) application by the SANDF from 2002 until this life-saving decision of the Constitutional Court”.
He cited as an example the case of Dexter Dlamini, a former client of Phasha’s who is now a candidate attorney at Pretoria-based Sekati Monyane Attorneys.
“We are of the opinion that the judgment of Maswanganyi settles the issue of reinstatement of Mvithi and others as it has provided a correct interpretation of section 59(1)(d).
“What remains to be seen is whether the chief of the SANDF will act according to the Constitutional Court decision and reinstate Maswanganyi, Mvithi and many others who have been victims of section 59(1)(d),” Phasha said.
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