While only three soldiers were involved in the latest legal loss suffered by the SA National Defence Force’s (SANDF) legal services the stinging admonition by a North Gauteng High Court judge was an even bigger loss of face than the judgement.
Judge Meyer Joffe ruled the military’s defence of its own health policy as regards serving members who are HIV positive for the second time was “vexatious, frivolous and abusive” according to Business Day.
He ordered the immediate reinstatement of five people who were denied positions in the country’s military on the basis of their HIV status.
Judge Joffe also ruled the SANDF was responsible for the costs of the court action, brought by Section 27. He handed down his judgement on Friday.
Earlier this year, the non-government organisation and the defence unions Sandu (SA National Defence Union) and SASFU (SA Security Forces Union) went to court to argue that the SANDF continued to make personnel decisions based only on health status issues, despite a previous ruling deeming this practice unconstitutional.
“As a union we are obviously delighted at the judgement,” Sandu national secretary Pikkie Greeff said. He also approved of the court decision that new employment contracts be offered to the three.
“The court also specifically berated the SANDF’s pettiness to defend this matter as frivolous and vexatious, justifying the award of a punitive costs order against the SANDF.
“This case is a victory against unfair discrimination based on HIV status and is a clear illustration of the SANDF’s intransigence as regards the Constitutional rights of all soldiers.
“It is a disgrace that soldiers, in this day and age, are still compelled to seek the assistance of the courts in a simple matter such as this where the SANDF command structure blatantly disrespects the Constitution,” he said.
Given the poor success rate of lawyers acting on behalf of the SANDF, Greeff is of the opinion it’s “high time” individual senior officials and officers in the Department of Defence be held responsible.
“I see them as being responsible, in their personal capacity, for wasting not only the court’s time but also taxpayers’ money. If senior officials are prosecuted for, among others, wasteful expenditure this type of unnecessary fiasco won’t happen again.”
The latest available annual report of the Department of Defence and Military Veterans, for the 2012/13 financial year, show its legal services division as having achieved a success rate in court of just under 15%. Of the 104 cases that went to court by fat the majoring of rulings – 90 – went against military lawyers.