Court backs unions: SANDU

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The North Gauteng High Court has dismissed an application by the Ministry of Defence and Military Veterans for leave to appeal a judgment by the Pretoria-based court last year that found the military’s novel approach to provisionally dismiss 1420 personnel following a violent protest cum mutiny outside the Union Buildings in August 2009 was unlawful and unconstitutional.

The Department of Defence (DoD) wanted to appeal the judgment as it believed another court would have come to a different conclusion. The DoD served the personnel notices of dismissal that allowed them ten days to give reasons why they should be reinstated. The notices, that at face value run directly counter to South African labour law, placed the onus on soldiers to prove their innocence rather than on the military to prove their guilt at a disciplinary hearing.

The DoD in a statement in December said that “upon proper consideration in studying the judgment … [it] has reached a decision to appeal as it is our view that another court will come to a different conclusion. The Department considers this matter in the most serious light as it may affect the management and discipline in the Defence Force which will have a negative impact on National Security [capitals in the original].
“Ill-disciplined soldiers have no place in the SANDF and failure to act firmly may itself be a breach of the constitutional provision requiring that the ‘defence force must be structured and managed as a disciplined military force’,” the statement added. “Discipline in the military is non-negotiable and is the sole responsibility of the Chief of the SANDF who is the custodian as required by the Constitution to ensure that the “defence force is structured and managed as a disciplined military force”.

Justice Cynthia Pretorius interdicted the SANDF from discharging the personnel, many South African National Defence Union (SANDU) members, reportedly pending the finalisation of a dispute to be referred to the Military Bargaining Council (MBC). Should the matter not be resolved there, the dispute must be referred to the Military Arbitration Board (MAB). However, the DoD said the military wanted the judge to clarify certain aspects of her judgment, because they believed the MBC and MAB dealt with bargaining issues, not discipline.

The Times newspaper reports the DoD issued a notice of application for leave to appeal in December, but this was only filed last month. SANDU opposed the application, relying on a statement by the SANDF’s attorneys that they did not intend to appeal against the order declaring the notices unlawful. Pretorius said she could not imagine a case where it had been proved more clearly and unequivocally by the applicants themselves that they did not intend to appeal against the order, the paper reported.

She said it was clear that the SANDF had misinterpreted her second order, interdicting it from discharging the soldiers. “There is no order that the Military Bargaining Council and Military Arbitration Board should decide on the unlawfulness of the notice. That has been decided on 1 December 2010 by this court. The applicants [the DoD] are merely interdicted from terminating the employment of the respondents until such time as the proper relevant procedure had been followed and the relevant military authorities had decided the merits of the dismissal. It is for the military to decide how this should take place.
“This court was never tasked to decide on the merits of the dismissal and did not deal with it at all.

It is clear that the applicants are trying to avoid the submissions made during argument and on the papers when the applicants conceded that the Military Bargaining Council and Military Arbitration Board are the correct fora where the merits of the dismissal should be dealt with,” Pretorius said.

She said the SANDF had a misapprehension that her court order precluded them from disciplining employees until the lawfulness of the notice had been determined by the military disciplinary bodies. This was not the case and no other court would come to a different conclusion, she ruled.



SANDU said it was “delighted with the decision”. National secretary “Pikkie” Greeff in a statement said the decision, yesterday, vindicated “the view held by SANDU ever since the delivering of the notices. Again this finding indicates clearly that members of the SANDF are as much entitled to fair procedure and the protection of the law as any other citizen. It also confirms that the brutal violation of soldiers’ constitutional rights under the masquerade of military discipline and national security will not be tolerated by our courts.
“This principle is to be noted by all parties who were so swift to condemn unions within the military. The reality is that none of these soldiers would have been able to enjoy the protection of the law had they not belonged to SANDU which provides soldiers with the necessary and needed protection and resources. The finding itself constitutes ample vindication for military trade unionism.
“The onus is now on the minister to institute a fair procedure against whichever member of the SANDF she wishes to discipline in connection with the events of 26 August 2009, instead of further wasting taxpayer money on attempting to defend a process that is morally and legally indefensible. SANDU is ready and willing to defend all its members in a fair hearing and are confident that it would be successful. The question is whether the Minister and her Department has got the courage to subject members to fair process,” Greeff said.