Constitutional Court upholds dismissed soldier’s appeal

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The SA National Defence Union (Sandu) assisted a dismissed SA National Defence Force (SANDF) member in legal action as far as the Constitutional Court and won what it calls “a victory for the rights of soldiers”.

The case dragged on for more than five years going from the High Court, which ordered his reinstatement and was opposed by Defence Legal Services, the national defence force’s legal division, and then to the Supreme Court of Appeal.

A media summary issued by the Constitutional Court notes, among others, the case against Mozamane Teapson Maswangayi, who was charged with rape and subsequently had his service terminated as well as being denied reinstatement, was appealed.

The Johannesburg court granted an application for leave to appeal and the appeal was upheld.

In a unanimous judgement delivered last Friday, the Constitutional Court held the words “conviction” and “sentence” in the relevant section of the Defence Act must be interpreted to refer to valid and final convictions and sentences in instances where there is an appeal. This was in line with the High Court overturning the member’s conviction and sentence.

“Once the decision of the trial court was set aside there was no longer any lawful conviction of sentence and the relevant jurisdictional factors in the Defence Act fall away or were, as a result absent. The member would no longer have a criminal record and no purpose would be served by continuing to subject the member to penal provisions.”

The summary further notes the member “continues to be in the employ of the SANDF in the same position and capacity he was in 18 July 2014”.

Respondents quoted as the “Minister of Defence and Military Veterans and Others” were ordered to pay the applicant’s costs in both the High Court and the Supreme Court of Appeal “jointly and severally”.

Welcoming the judgement the country’s largest military trade union said it was a win for soldiers to be treated “fairly” by the Department of Defence.



Sandu national secretary Pikkie Greeff said it was “unfortunate hundreds of thousands of taxpayers’ money was spent by the Department of Defence unnecessarily litigating this matter”.