Minister of Defence and Military Veterans and Others v Maswanganyi

• Jurisdiction: South Africa
• Judgment Date: 31 May 2019
• Citation: 2019 (5) SA 94 (SCA)

Minister of Defence and Military Veterans and Others v Maswanganyi
2019 (5) SA 94 (SCA)

2019 (5) SA p94

Citation	2019 (5) SA 94 (SCA)
Case No	739/18; [2019] ZASCA 86
Court	Supreme Court of Appeal
Judge	Navsa ADP, Majiedt JA, Van der Merwe JA, Molemela JA and Davis AJA
Heard	May 31, 2019
Judgment	May 31, 2019
Counsel	DT Skosana SC (with M Gwala) for the first appellant.; GL van der Westhuizen for the respondent.

Flynote : Sleutelwoorde

Defence force — Member — Service — Termination — Member sentenced to G imprisonment without option of fine — Whether termination decision required to be made or termination following by operation of law — Defence Act 42 of 2002, s 59(1)(d).

Headnote : Kopnota

Mr Maswanganyi, a member of the South African National Defence Force, was H convicted of rape and sentenced to life imprisonment (see [2]). This had the effect that his service was terminated under s 59(1)(d) of the Defence Act 42 of 2002 ('(t)he service of a member of the Regular Force is terminated . . . if he . . . is sentenced to a term of imprisonment by a competent civilian court without the option of a fine . . .' (see [3] and [7]).

Mr Maswanganyi appealed the conviction and sentence and they were set aside. I Some time thereafter he asked the Defence Force to reinstate him (see [3]). When this was declined, Mr Maswanganyi obtained a High Court order setting aside the purported 'decision' of the Chief of the Defence Force to terminate his service under s 59(1)(d), as well as one reinstating him (see [1], [3] and [6]).

Here, the Minister of Defence, the Chief of the Defence Force and the Secretary for Defence J appealed to the Supreme Court of Appeal (see [1]).

2019 (5) SA p95

The Supreme Court of Appeal held that where the requirements of s 59(1)(d) A were met, the member's service was terminated by operation of law, and no decision was required to be made (see [13]). And if a requirement for the operation of the section was not met, this would not mean that the individual's service was automatically reinstated (see [14]).

Appeal upheld and the High Court's order set aside and replaced with an order dismissing Mr Maswanganyi's application (see [16]). B

Cases cited

Minister of Defence and Military Veterens and Another v Mamasedi 2018 (2) SA 305 (SCA) ([2017] ZASCA 157): dictum in para [24] applied

Minister of Defence and Others v South African National Defence Union and Another 2014 (6) SA 269 (SCA): referred to C

National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393; [2009] 2 All SA 243; [2009] ZASCA 1): referred to

North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd 2013 (5) SA 1 (SCA) ([2013] ZASCA 76): dictum in para [24] applied

Novartis SA (Pty) Ltd and Another v Maphil Trading (Pty) Ltd 2016 (1) SA 518 (SCA) ([2015] 4 All SA 417; [2015] ZASCA 111): referred to D

Phenithi v Minister of Education and Others 2008 (1) SA 420 (SCA) ([2005] ZASCA 130): referred to.

Legislation cited

The Defence Act 42 of 2002, s 59(1)(d): see Juta's Statutes of South Africa 2018/19 vol 1 at 3-205. E

Case Information

DT Skosana SC (with M Gwala) for the first appellant.

GL van der Westhuizen for the respondent.

An appeal against a decision of the Gauteng Division. F

Order

1.

The appeal is upheld with costs, including the costs of two counsel.

2.

The order of the High Court is set aside and substituted with the following:

'The application is dismissed with costs'. G

Judgment

Majiedt JA (Navsa ADP, Van der Merwe JA, Molemela JA and Davis AJA concurring):

[1] The central issues in this appeal are, first, whether s 59(1)(d) of the H Defence Act 42 of 2002 (the Defence Act) operates ex lege, or whether a decision must be made by any one or more of the appellants to put it into operation. The second issue is whether reinstatement follows automatically in terms of that section. The respondent, Mr Mozamane Teapson Maswanganyi, was a member of the Regular Force of the South African National Defence Force (the SANDF) until his appointment was I terminated in terms of s 59(1)(d) of the Defence Act. He applied to the Gauteng Division of the High Court, Pretoria, for his reinstatement to the SANDF and for the reinstatement of his salary and benefits, both with retrospective effect. Although the relief sought in the notice of motion was framed as a mandamus, Raulinga J reviewed and set aside the 'decision' of the second appellant, the Chief of the SANDF. The learned J

2019 (5) SA p96

Majiedt JA (Navsa ADP, Van der Merwe JA, Molemela JA and Davis AJA concurring)

judge A also issued orders for the retrospective reinstatement of the respondent to the SANDF and of his salary and benefits. This appeal is with the leave of this court.

[2] The factual background is largely common cause or not seriously disputed. The respondent became a permanent member of the SANDF on B 1 April 2009. During the course of 2010 the respondent was arrested on a charge of rape. He was convicted as charged on 18 July 2014 and sentenced to life imprisonment. He immediately began serving his sentence and, although he lodged an appeal against conviction and sentence, he was not granted bail pending his appeal. On 13 February 2015 the respondent's appeal succeeded and his conviction and sentence C were set aside. He was released from prison on 16 February 2015.

[3] After his release from prison, the respondent, whose employment had been terminated by the SANDF upon his conviction and sentence in terms of s 59(1)(d) of the Defence Act, applied for his reinstatement to D the SANDF. The appellants refused to re-employ the respondent. They adopted the stance that the termination of his service had occurred by operation of law and that he could not simply be reinstated, as the Defence Act did not provide for such reinstatement. The respondent was informed of this stance and also that his post had been filled before the finalisation of his appeal. He was advised that he had to follow the E normal recruitment process for employment in the SANDF.

[4] There is a dispute on the papers with regard to whether the SANDF was aware of the respondent's arrest. For the reasons that follow, this aspect has no bearing on the outcome. In any event, even if it had any F relevance, that dispute must be resolved in favour of the appellants.

[5] As stated, the appellants' case was that s 59(1)(d) operated ex lege and that, upon the respondent's conviction and sentence to life imprisonment, his service as a member of the Regular Force was automatically terminated. Therefore there was no need for a decision to be taken in this G regard. The respondent, on the other hand, contended that, instead of invoking s 59(1)(d), the appellants, more particularly the second appellant, should, in terms of s 42(1), read with s 42(2), of the Military Discipline Supplementary Measures Act 16 of 1999 (the MDSMA), have suspended him from duty pending his trial and subsequent appeal. As an alternative, it was contended that, if the argument that s 59(1)(d) H operates ex lege were to be upheld, then the converse must also apply, namely that upon the setting aside of the conviction and term of life imprisonment, the respondent's reinstatement should automatically have followed.

[6] The High Court upheld the contentions advanced by the respondent. I It held that ss 59(1)(d) and 59(3) [1] of the Defence Act and s 42(1)

2019 (5) SA p97

Majiedt JA (Navsa ADP, Van der Merwe JA, Molemela JA and Davis AJA concurring)

of the MDSMA had to be read conjunctively. Raulinga J reasoned that, A because the respondent had spent more than 30 days in prison until his release, the Chief of the SANDF had a choice between invoking s 59(1)(d) or s 59(3) or s 42(1). The election to invoke s 59(1)(d), and not one of the other two subsections, was in itself an administrative decision which was 'arbitrary in the circumstances'. Raulinga J found that the SANDF was B aware of the respondent's arrest. He ordered the respondent's reinstatement to the SANDF and the reinstatement of his salary and benefits, both retrospectively from the date of his arrest, 18 July 2014. As stated, the 'decision' of the Chief of the SANDF (the second appellant) was also reviewed and set aside by the High Court.

[7] Section 59(1)(d) of the Defence Act reads as follows: C

'59 Termination of service of members of Regular Force

(1) The service of a member of the Regular Force is terminated —

. . .

(d)

if he or she is sentenced to a term of imprisonment by a competent civilian court without the option of a fine or if a sentence involving D discharge or dismissal is imposed upon him or her under the Code.'...