Major ruling by South African Supreme Court of Appeal

Supreme Court of Appeal

Yesterday the Supreme Court of Appeal of South Africa handed down its decision in Minister of Defence v. South African National Defence Union, No. 514/2013, [2014] ZASCA 102. The case relates to the suspension of hundreds of military personnel following a demonstration. The soldiers have been paid for years without performing duty. Here is a summary from The Times Live:

Hundreds of soldiers who were suspended for demonstrating near the Union Buildings five years ago could soon be reinstated after the Supreme Court of Appeal yesterday ruled that the SA National Defence Force's attempt to dismiss them was unlawful.

The 664 soldiers have been on special leave since the August 2009 demonstration. 

The court found the suspension process was "unfair because it left the soldiers in doubt as to the charges they faced".

SA National Defence Union spokesman Pikkie Greeff said: "It is time now to stop this nonsense and get them back to work."

Police used a water cannon and rubber bullets to disperse them, and several police and army vehicles were damaged during the protest.

The court dealt with two points of contention: the letters the SANDF sent to the soldiers instructing them to report to their units so they could be informed of the charges they faced, and a newspaper notice published on November 14 2012.

The newspaper notice only referred to the soldiers disobeying a directive to return to their units.

"But there was nothing to indicate that this was to form grounds for their possible dismissal," the court ruled.

The court also ruled that the suspensions procedure did not explain why the demonstration and the soldiers' failure to return to base constituted a security risk to the state.

Greeff said there was a possibility that the soldiers might be tried in a military court.

He said they could not be court-martialed for participating in the demonstration as a military court had a statute of limitations of three years. But they might be charged with not returning to their bases in 2012.

Spokesman for the SANDF Brigadier General Xolani Mabanga yesterday said the defence force could not comment until it had studied the contents of the judgment.

Sandu pointed out that the soldiers had spent one month short of five years on special leave, earning a total of R450-million while sitting at home. Attempts to have the soldiers dismissed had cost an additional R6-million in legal fees.

Readers who collect unlawful command influence cases will note para 2 of the opinion, where Wallis JA observes that one of the SANDF's three attempts to deal with the situation had been set aside by the High Court when it came to light that the "then Chief of the Defence Force said that he had persuaded the then Minister of Defence that 'the only sanction this deserves in summary dismissal or imprisonment of the soldiers.'" "This was held to have prejudged the issue."