|On or about 31 May 2019, the Supreme Court of Appeal (the “SCA”) upheld an appeal against a judgment and order of the Gauteng Local Division of the High Court, Pretoria (Raulinga J, sitting as court of first instance) (the “High Court”). The matter concerned itself with the interpretation of s 59(1)(d) of the Defence Act 42 of 2002 (the “Act”). The salient facts were briefly as follows.
Mr Mozamane Teapson Maswanganyi (the “Respondent”), a permanent member of the South African National Defence Force (the “SANDF”), was convicted of rape and sentenced to life imprisonment. Upon the Respondent’s conviction and sentence, the Respondent’s service in the SANDF was terminated in terms of s 59(1)(d) of the Act.
This section provides that, upon a sentence of imprisonment without the option of a fine being imposed upon a SANDF member by a criminal court, that member’s service in the SANDF is terminated.
The Respondent successfully appealed against his conviction and sentence, which were set aside. The Respondent was released a few days after his conviction and sentence were appealed.
Upon his release from prison, the Respondent sought reinstatement to his post with the SANDF. However, the SANDF refused to re-employ the Respondent.
It adopted the stance that the Respondent’s service was automatically terminated by operation of law in terms of s 59(1)(d) of the Act and as such, the SANDF advised the Respondent to follow the normal recruitment process for re-employment .
The High Court ordered the SANDF to reinstate the Respondent to his post and to reinstate his salary and benefits, both retrospective from his date of arrest.
In the Respondent’s opposing papers to this appeal, the Respondent attempted to rely on s42 of the Military Discipline Supplementary Measures Act 16 of 1999 (the “MDSMA”) which provides for the suspension of a member awaiting trial or appeal for a conviction (as opposed to termination of their service in s 59 (1) of the Act).
|In upholding the appeal, the SCA held that the only provision which applied in the present instance was s59(1)(d) of the Act.
The SCA held that s42 of MDSMA deals with the enforcement of military discipline, whereas s59 of the Act dealt with termination of service in the SANDF. The jurisdictional requirements for s42 were absent in this matter.
In interpreting s59(1)(d), the SCA applied the well-established approach of affording meaning to the words by applying the normal rules of grammar and syntax, viewed with the relevant factual context, in order to ascertain the Legislature’s intention.
In this regard, the SCA held that the intention was that in the instances listed from s 59(1)(a) up to and including s59(1)(e), termination follows ex lege, which conclusion was reached by giving the words its plain meaning and considering them against the contextual setting in s59(1) of the Act.
As such, no decision was required by any one or more of the appellants to effect that termination, the Respondent remained dismissed by operation of law and the belated attempt to invoke s42(1) of the MDMSA after the fact was misconceived.
The SCA also dismissed an alternative argument on behalf of the Respondent that if s59(1)(d) operated automatically in the case of the imposition of sentence, it also had to operate automatically in respect of reinstatement where the sentence is subsequently set aside. The SCA held that the section does not make provision for reinstatement.
The court concluded that the SANDF was correct in requiring the Respondent to follow the standard SANDF recruitment process for re-employment.
The appeal was consequently upheld with costs, and the SCA substituted the High Court’s order with an order that the Respondent’s application be dismissed with costs.
s42 of the MDSMA deals with the enforcement of military discipline, whereas s 59 of the Defence Act dealt with termination of service in the SANDF.
Written by Jonathan Green and Vicky Revelas
Reinstatement to post and Interpretation of the Defence Act and the Military Discipline Supplementary Measures Act 16 of 1999. 22 August 2019