The Department of Defence (DoD) is to appeal a judgment handed down by the North Gauteng High Court Wednesday as it believes another court will come to a different conclusion. The Pretoria court ruled the DoD’s novel approach to provisionally dismiss 1420 personnel following a violent protest cum mutiny outside the Union Buildings in August last year was unlawful and unconstitutional.
The department 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 is a statement says that “upon proper consideration in studying the judgment … [it] has reached a decision to APPEAL [sic] 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, 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). “We believe that the judgment reaffirms that the SA Constitution as the highest law in the country and it must be respected by all those that have been elected to manage the state,” the South African Security Forces Union (SASFU) said in a statement welcoming the ruling received by the South African Press Association.
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.
SANDU national secretary Advocate Johannes “Pikkie” Greeff last year September said his union took the mater to court as “thousands of members would [otherwise] have been without jobs today without even having had the benefit of a fair hearing where evidence could have been tested and objectively considered. “Mere allegations in a letter would have sufficed in securing their unemployment. Surely no democratically minded person could support such an injustice that flies in the face of our hard won Constitution. Many of the recipients of the dismissal letters were not even near Pretoria the day in question, some being deployed, some on course and other simply on vacation leave.”
The 1333 SA Army soldiers, 80 SA Military Health Service medics and seven SA Air Force airmen the DoD is seeking to dismiss took part in a service condition protest on August 26, SANDU’s 15th birthday. The union and its rival SASFU have long enjoyed fraught relations with the military. Efforts by the military and DoD to filibuster the unions led to a series of court cases in the last decade, culminating in a Constitutional Court judgement in May 1999 in which the the court, by mouth of Justice Kate O`Regan, confirmed an earlier judgment by Pretoria High Court Judge Willie Hartzenberg that soldiers had the same labour rights – including due process – as other South Africans.
PIc: Police fire on soldiers durig a mutinous riot, August 26, 2009.