Minister of Defence and Military Veterans and Another v Mamasedi

• Jurisdiction: South Africa
• Judge: Ponnan JA, Majiedt JA, Plasket AJA, Mbatha AJA and Schippers AJA
• Judgment Date: 24 November 2017
• Citation: 2018 (2) SA 305 (SCA)
• Docket Number: 622/2017 [2017] ZASCA 157
• Hearing Date: 24 November 2017
• Counsel: V Mtsweni for the appellants. D Lebethe for the respondent.
• Court: Supreme Court of Appeal

Plasket AJA (Ponnan JA, Majiedt JA, Mbatha AJA and Schippers AJA G concurring):

[1] The respondent, Mr Jonas Molefi Mamasedi, held the rank of sergeant in 1 South African Tank Regiment in the South African National Defence Force (SANDF) before his dismissal. He challenged by way of a review application a decision taken by the second appellant, the H Chief of the SANDF, not to re-instate him. Wentzel AJ, sitting in the Gauteng Division of the High Court, Pretoria, made an order setting (1) aside the Chief of the SANDF's decision not to re-instate Mamasedi; (2) directed that he be re-instated 'as a member of the South African National Defence Force with full benefits including his salary from I 15 December 2011'; and (3) directing the appellants to pay Mamasedi's costs. When the appellants applied for leave to appeal against her order, she granted leave to appeal to this court.

The facts

[2] On 29 November 2011, Mamasedi failed to report for duty as he was J required to do. He remained absent without leave until 18 January 2012,

Plasket AJA (Ponnan JA, Majiedt JA, Mbatha AJA and Schippers AJA concurring)

when he returned to his unit. By that time, however, he was, in terms of A s 59(3) of the Defence Act 42 of 2002 (the Act), deemed to have been dismissed for misconduct. Section 59(3) provides:

'A member of the Regular Force who absents himself or herself from official duty without the permission of his or her commanding officer for a period exceeding 30 days must be regarded as having been dismissed B if he or she is an officer, or discharged if he or she is of another rank, on account of misconduct with effect from the day immediately following his or her last day of attendance at his or her place of duty or the last day of his or her official leave, but the Chief of the Defence Force may on good cause shown, authorise the reinstatement of such member on such conditions as he or she may determine.' C

[3] It has been held by this court, dealing with similar provisions in other employment-related legislation, that dismissal follows absence in excess of the prescribed period by operation of law, consequently no decision is taken to dismiss the employee that is susceptible to review, but that thereafter a decision may be taken to reverse a dismissal if good cause for D so doing is shown. [1]

[4] According to Mamasedi, after his return to his unit, and on discovering that he had been dismissed, he travelled to the SANDF's Headquarters in Pretoria to lodge a grievance about his discharge. He was advised to return to his unit in Bloemfontein, which he did, and to lodge E his grievance with his commanding officer.

[5] His commanding officer, Lieutenant-Colonel Jansen, informed him that she would 'only deal with [the] grievance as soon as she receives a confirmation from SANDF, Pretoria'. In the meantime, she said, Mamasedi should remain in the barracks. He left the barracks on F 9 March 2012 when he was, he claimed, 'unceremoniously locked out of the barracks'.

[6] In the meantime, a board of enquiry had been convened on 18 January 2012 — the day of Mamasedi's return to his unit — to investigate the reasons for Mamasedi's absence without leave and to make G recommendations to the Chief of the SANDF in that regard. The board of enquiry had yet to make a recommendation by 7 December 2012 when Mamasedi made representations to the Chief of the SANDF. Receipt of the representations was confirmed on behalf of the Chief of the SANDF on 22 January 2013. In his representations, Mamasedi stated that he had H been absent without leave because he had been 'abducted and taken to an initiation school for the period from 29 November 2011 to 31 December 2011'.

[7] The letter acknowledging receipt of the representations informed Mamasedi that 'the matter is currently being investigated and a response I will be made available in due course'.

Plasket AJA (Ponnan JA, Majiedt JA, Mbatha AJA and Schippers AJA concurring)

[8] A On 11 July 2013, Mamasedi received 'final feedback from SA Army Headquarters regarding the Ministerial Enquiry' into his absence without leave. The report of the board of enquiry, including its recommendation, dated 21 February 2013, was attached. The board of enquiry recommended to the Chief of the SANDF that Mamasedi not be re-instated. The B Chief of the SANDF accepted the recommendation and decided not to re-instate Mamasedi.

[9] The board of enquiry appears to have been convened in terms of s 101 of the Act. Section 101(1) provides:

'The Minister, the Secretary for Defence or the Chief of the Defence C Force may, at any time or place, convene a board of inquiry to inquire into any matter concerning the Department, any employee thereof or any member of the Defence Force or any auxiliary service, any public property or the property or affairs of any institution or any regimental or sports funds of the said Force, and to report thereon or to make a D recommendation.'

[10] I have said that the board of enquiry appeared to have been convened in terms of s 101(1) of the Act because the answering affidavit of the Chief of the SANDF is unhelpful in this respect. He does not say whether he or someone else convened the board of enquiry and nor is the E convening order disclosed. Because the board of enquiry was referred to in its report as a 'ministerial enquiry' it presumably was convened by the Minister of Defence and Military Veterans in terms of s 101(1) of the Act.

[11] F Both counsel for the appellants and for Mamasedi assumed that the board of enquiry was one contemplated by s 103 but that assumption is incorrect, and both conceded as much in argument. A board of enquiry contemplated by s 103 is convened by the absentee soldier's commanding officer while the...