Suspension of 1200 soldiers unconstitutional: High Court

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The North Gauteng High Court today ruled the Department of Defence’s (DoD) 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 South African National Defence Union (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 South African National Defence Force (SANDF) responded that the soldiers were given a chance to respond, albeit not orally.

The Cape Argus in December last year reported about 250 of the 1420 “were reinstated last month after it was found that they had not been involved” in the August 26 mutiny. Many had been on duty at an agricultural show in Pretoria that day, promoting military service.

Justice Cynthia Pretorius interdicted the SANDF from discharging the personnel, many SANDU members. “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 received by the South African Press Association.

SANDU called on its members who had been placed on special leave to report back to their units tomorrow. “From tomorrow it’s back to normal. If the employer is not happy with the ruling, they will have to come back to court,” SANDU president Mosima Mosima said outside the court. “We have started to win the battle. If they appeal and it goes to the Constitutional Court, we are confident that we will win again.”

The DoD in a statement says it “notes the decision of the court”. It also expressed relief at the judgment “because it has held us up for more than a year. The ruling allows the department to thoroughly address this matter and deal with the shameful conduct of ill disciplined soldiers. Our resolve to ensure that the SANDF remains a structured and well managed and disciplined force is unshaken.
“The department wishes to state that this is a Pyrrhic victory [for the unions] as it does not prevent us from continuing with the very action and processes we would have undertaken. We wish to re-iterate the obvious that the provisions of the RSA Constitution Section 198(d) which states that ‘National Security is subject to the authority of parliament and the national executive.’ The department also emphasises that national security is inextricably interwoven with the provisions of Section 200 which require that the ‘Defence Force must be structured and managed as a disciplined Military Force.’
“It must be stated that the responsibility of disciplining soldiers and the command-and-control is not a shared responsibility but, is a sole responsibility of the Chief of the SANDF. The court may deem the notices deficient or may find procedural infirmities in the manner we dealt with the soldiers slated for dismissal but we are resolute. We shall correct the procedural infirmities and move with expedition towards the finalisation of the process which may lead to dismissal of these men and women. Ill-disciplined soldiers have no place in the SANDF and failure to act firmly may itself be a breach of the constitutional provisions requiring that the ‘Defence Force must be structured and managed as a disciplined Military Force,” the DoD said.
“In the circumstances, we will abide by the court order in as far as it relates to the unlawfulness of the notice issued on the 30th August 2009 (Notice of intended Administrative Discharge: Dismissal Members of the SANDF) in as far as the interdict pending finalisation of a dispute referred to the Military Bargaining Council (MBC) and if it is not resolved in the MBC to be referred to the Military Arbitration Board (MAB), we reserve our right to appeal against this decision and we will apply to court for the judge to reconsider and clarify the order as it relates to the MBC and MAB.
“We believe that the judge erred in making a finding that the issue of discipline is an issue to be decided by the MBC and the MAB. Discipline is non-negotiable in the military and is not a shared responsibility.”

SANDU national secretary Advocate Johannes “Pikkie” Greeff last year September said his unio 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 as other South Africans.



The judgment did not improve relations between the unions and the military, with the latter asserting SANDU and SASFU have too few members to sit in the MBC and MAB and the unions stating the opposite. Defence and Military Veterans minister Lindiwe Sisulu and President Jacob Zuma have both since last August last year stated that they want the military de-unionised.