The Gauteng North High Court in Pretoria has ordered the South African National Defence Force (SANDF) to reinstate four soldiers dismissed by a “suitability board” after they were charged with allegedly stealing diesel from the School of Artillery near Potchefstroom.
The Cape Argus reports Judge AJ Louw told the SANDF it may only dismiss soldiers after a process in which they have had proper representation.
Judge Louw described the “suitability boards” – which decide whether military personnel are suitable for continued employment – as a parallel process to existing legal procedures outlined in the Defence Act.
The “suitability board” recommended their dismissal to defence minister Lindiwe Sisulu, even though none of them had been found guilty in a criminal court.
Criminal charges against the quartet were withdrawn in the Potchefstroom Magistrate’s Court earlier this month.
The four were also denied any legal or other representation before the board.
Louw remarked that the practice of “suitability boards” appeared to be unconstitutional, even though he was not asked to rule on the matter.
The SA National Defence Union (SANDU) welcomed the judgment and said it will now take legal action in a bid to have the boards declared unconstitutional.
The Cape Argus reports SANDU general secretary Advocate Johannes “Pikkie” Greeff said in response that “the judgment has given credence to arguments raised by the union in another pending high court case.”
The paper says this involved a bid to have about 500 of the union’s members reinstated following a riotous clash between soldiers and police at the Union Buildings in Pretoria on August 26.
The SANDF “provisionally dismissed” 1420 soldiers, medics and airmen after the incident.
The notices, novel in SA labour law, placed the onus on soldiers to prove their innocence rather than on the military to prove their guilt.
SANDU at the time said the procedure was “patently unfair and unlawful” because it denied its members an opportunity to be heard, was vague, was not allowed by law and breached the presumption of innocence.
The SANDF responded that the soldiers were given a chance to respond, albeit not orally.
The Cape Argus says about 250 of the 1420 “were reinstated last month after it was found that they had not been involved” in the August 26 mutiny.
Sisulu and President Jacob Zuma have since decided that soldiers may not be unionised despite two earlier Constitutional Court judgments upholding their right to representation.
Department of Defence Head of Communication Simphiwe Dlamini told the Cape Argus the SANDF would “abide by the judge’s ruling and the outcome of the review application”.
He insisted however that the case would not have any bearing on the case brought over the mass dismissal of soldiers, which is to be heard next year by the North Gauteng High Court.
Greeff countered that although the facts in the two cases differed, the union would bring the same argument – “that those facing dismissal cannot be fired on mere allegations when they deny wrongdoing and have not been given representation during hearings”.
He said the government was arguing in both cases that interference in internal disciplinary procedures would undermine discipline.
“The judge came out clearly that when soldiers know their rights and are held to it, discipline will be enhanced,” said Greeff. “Again this case has clearly illustrated the dire need of SANDF members for protection by a military trade union.
“Despicable violations of fundamental rights of SANDF members by the department simply serve to detract (from) recent claims by the ministry that it cares for the wellbeing of members.”
Meanwhile, the Pretoria News reports that the North Gauteng High Court has reserved judgment on a SANDU application to set aside the special leave of 11 soldiers who allegedly took part in the riot so that they “can attend courses for which they will receive benefits.”
SANDU initially applied for 35 soldiers to have their special leave withdrawn. Judge George Webster was told on December 1 that the SANDF agreed to withdraw the special leave of 24 of the soldiers. The union therefore went ahead with the application in relation to the remaining 11 soldiers.
The 11 say the SANDF’s conduct in placing them on special leave amounts to a contravention of the September court order. They added “that the intention of this was to punish them or deprive them of the benefits previously enjoyed,” the Pretoria News added.
They told the court the they had variously had their attendance of promotional military courses cancelled, while others were withdrawn from a four-year functional training course that ends in 2012.