THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 51/2021

In the matter between:

WILLIAM FRANCE MASINGA
FIRST APPELLANT

RIRHANDZU JOY KHOSA
AND 33 OTHERS                                                   SECOND TO THIRTY-

FIFTH APPELLANTS

and

CHIEF OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE                                 FIRST RESPONDENT
MINISTER OF DEFENCE AND
MILITARY VETERANS
SECOND RESPONDENT
SURGEON GENERAL OF THE SOUTH
AFRICAN NATIONAL DEFENCE FORCE            THIRD RESPONDENT
SECRETARY OF DEFENCE
FOURTH RESPONDENT

Neutral citation: Masinga and Others v Chief of the South African National
Defence Force and Others (Case no 51/2021) [2022]
ZASCA 1 (05 January 2022)

Coram:
PETSE AP and MAKGOKA, SCHIPPERS, NICHOLLS and
MABINDLA-BOQWANA JJA
Heard:

23 November 2021
Delivered:            This judgment was handed down electronically by circulation
to the parties' representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The
date and time for hand-down is deemed to be 15h00 on 05
January 2022.
Summary: Statutory interpretation – s 59(3) of the Defence Act 42 of 2002 –
jurisdictional requirements – officers of South African National Defence Force
discharged after absenting themselves from official duty – whether they were
entitled to hearing – whether discharge lawful.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Hughes J,
Mlambo JP and Francis J concurring, sitting as court of appeal):
1 The appeal against the costs orders in paragraphs 1 and 2 of the order by the
court a quo dated 19 June 2020 succeeds, and the costs orders are set aside.
2 Save as aforesaid, the appeal is dismissed.

JUDGMENT

Schippers JA (Petse AP and Makgoka, Nicholls and Mabindla-Boqwana JJA
concurring)

[1] The appellants were officers in the South African Military Health Service
(SAMHS), the medical branch of the South African National Defence Force
(SANDF). They were part of a group of 35 officers selected to study military
medicine in Cuba. Of this group 26 were chosen in 2017 (the 2017 group), and
nine were selected and commenced studying in Cuba in 2018, pursuant to a
memorandum of understanding between the Department of Defence (DoD) and
the Cuban military authorities concerning the training of members of various
divisions of the SANDF in Cuba (the MOU).

[2] On 26 March 2019 the appellants were informed that they had been
dismissed from the SANDF in terms of s 59(3) of the Defence Act 42 of 2002
(the Act), for refusing to attend classes from 11 February to 20 March 2019, in
defiance of an order by their commanding officer. Section 59(3) of the Act

provides that members of the SANDF who absent themselves from official duty
for more than 30 days without the permission of their commanding officer, must
be regarded as having been dismissed. The appellants were sent back to South
Africa. The central issue in this appeal, which is with the special leave of this
Court, is whether the appellants’ dismissal was lawful.

The facts
[3] The main reason for training the appellants in Cuba is that it has a unique
system of training doctors in military medicine. The intake of South African
students was dependent on available slots at the University of Ciencias Medicas
(UCIMED) in Havana, where, in terms of the MOU, students were required to
study medicine. UCIMED is an accredited teaching institution with the relevant
Cuban authority which is the equivalent of the Health Professions Council of
South Africa (HPCSA). Due to an increase of students registered at UCIMED, it
established two satellite campuses in Santiago, namely Ciencia Medicas Facultad
2 Santiago de Cuba and the Inter Arms School General José Maceo (the Inter
Arms School).

[4] The Inter Arms School was established in 1980 to train the Revolutionary
Armed Forces of Cuba. The School became a higher education centre in 1983 and
offers qualifications in Military Science, which includes specialities such as
Infantry, Tanks, Military Intelligence, Military Politics, Engineering, Logistics
and Military Medicine. The latter qualification is known as General Military
Basic Doctor, comprising six years of study. Professors from UCIMED at
Santiago and the Dr Joaquin Castillo Duany Military Hospital provide academic
training to students at the Inter Arms School. The School provides training to
military officers from Venezuela, Angola, South Africa, Congo and Vietnam.

[5] Some of the appellants commenced their studies in Cuba in August 2017
and were enrolled at the Inter Arms School. On 3 April 2018 they raised the
following concerns with the third respondent, the Surgeon General of the SANDF
(the Surgeon General). The Inter Arms School was not accredited to offer
medicine, it had not done so before and the quality of education was
unsatisfactory. There was no proof of registration of first year students at the
UCIMED campus in Santiago, which was necessary to register those members as
medical students with the HPCSA.

[6] These concerns were unfounded. The allegation that students at the
UCIMED campus in Santiago had not been registered as medical students was
pure speculation: the respondents presented evidence that there were 17 South
African students studying medicine at the Inter Arms School in Santiago, 13 of
whom were in their second year of medical studies with satisfactory results. The
evidence placed it beyond question that UCIMED Santiago, as well as the Inter
Arms School, were accredited institutions with the relevant Cuban authority.
Despite this, the appellants embarked on protest action and refused to attend
classes. Furthermore, as stated earlier, nine of the appellants had been selected in
2018 and would have completed their language studies only in 2019, after which
they would have commenced with the study of medicine.

[7] After completing their Spanish and pre-medical courses, the appellants
came home for their annual break in July 2018. Before returning to Cuba in
August 2018 to commence their medical studies at the Inter Arms School, each
of the appellants concluded an agreement concerning a foreign learning
opportunity with the national Government, represented by the DoD (the
agreement). The agreement was explained to them and they were informed that
they could withdraw from the programme if they did not consent to the essential
terms and consequences of the agreement.

[8] The salient terms of the agreement were these. The appellants would study
military medicine on a full-time basis at a Cuban medical institution and attend
classes during official hours of duty for the duration of the prescribed period of
the course. They undertook to attend every training session and abide by the rules
governing attendance of the course as well as any other rules and regulations of
the institution. Two of the appellants raised the following queries on the
agreements they had signed: there was no clarity on the difference between
military medicine and the MBChB qualification; the Inter Arms School was not
accredited to teach medicine; and registration with the HPCSA was not
mentioned in the agreement.

[9] In terms of the agreement, the DoD undertook to pay the appellants’ fees
and all related expenses from State funds. This was no small thing. The SANDF
had not only paid the appellants’ salaries, service benefits, stipends and any
additional expenses to facilitate the studies, but had also paid for their studies in
full, in advance.

[10] The following facts were not in dispute. The institution at which a South
African student studies medicine must be listed on the database of the HPCSA.
Upon graduation from the foreign institution, the HPCSA would examine its
curriculum and if there is a shortage in hours of training on any aspect of
medicine, students are required to complete those hours in South Africa and
thereafter do an internship and render community service, after which they may
be registered as independent medical practitioners. If the medical institution is
not listed on the database of the HPCSA, that institution is required to inform the
HPSCA in writing of the health professional body which has granted it
accreditation and the requisite training hours. Prior to commencing their studies
in Cuba, the appellants were informed that they would be required to pass the
HPCSA examination to register as medical doctors.

[11] The 2017 group commenced classes at the UCIMED campus in Santiago
in September 2018 because classrooms and logistical arrangements for study at
the Inter Arms School were still being prepared. The group was informed that this
was temporary and that classes at the Inter Arms School would start in February
2019.

[12] From 11 February to 20 March 2019 the appellants refused to attend classes
at the Inter Arms School, in defiance of an order by the principal and their
commanding officer in Cuba, Colonel Joel Pavon Lopez. Four members of the
2017 group complied with the order and returned to class. They have since been
enrolled at UCIMED in Santiago, as it was not feasible for only four SANDF
members of the 2017 intake to continue their studies at the Inter Arms School. At
the time 13 members of the SANDF who were part of the 2016 group in their
second year, were receiving tuition at the Inter Arms School.

[13] On 20 March 2019 Colonel José Rodriguez, the Head: External Relations
of FAR (Revolutionary Armed Forces of Cuba), wrote to Colonel Mokete Thulo,
the Assistant Defence Attaché at the South African Embassy in Cuba, and
informed him that the appellants had refused to attend classes from 11 February
to 20 March 2019. Colonel Rodriguez cited the following examples of their
indiscipline. The appellants had absented themselves from classes with no
reference to their whereabouts. They refused to participate in activities and
created disorder. They put pressure on second-year cadets (the 2016 group) and
four students of the 2017 group not to attend classes. They dirtied bathrooms and
left taps running with the result that the dormitory ran out of water and other
cadets could not shower.

[14] The SANDF made numerous attempts to get the appellants back to class.
On 16 February 2019 Brigadier General Majola, the South African Defence
Attaché to the Republic of Cuba, addressed two of them individually and
thereafter all of them as a group. He referred them to the Code of Conduct of the
SANDF (the Code) and the agreement between the Cuban Armed Forces and the
SANDF, and showed them proof that UCIMED was a registered institution.

[15] On 18 February 2019 the appellants were handed a letter by the Surgeon
General (dated 17 February 2019) in which they were informed that he intended
to apply to the Chief of the SANDF for their administrative dismissal/discharge
and that they had committed an offence of mutiny. They were instructed to make
written submissions to the Chief of the SANDF by 21 February 2019 to show
cause why they should not be discharged.

[16] In response to the Surgeon General, the appellants referred him to their
letter of 13 February 2019 and another undated letter in February 2019. In the
former they informed the Surgeon General that they were not willing to study
medicine at the Inter Arms School because it was not an accredited medical
institution, they were not registered with the HPCSA as medical students studying
abroad and their living arrangements were not favourable for the study of
medicine. In the undated letter the appellants requested urgent intervention
because they had already missed days of lectures, and referred to the same
concerns raised in their letter of 3 April 2018.

[17] On 20 February 2019 Brigadier General Majola returned to the Inter Arms
School and informed the appellants that their response was unacceptable. By 22
February 2019 the appellants were told to hand in their Cuban uniforms and
instructed not to leave the Inter Arms School, because they would be returning to
South Africa. On 28 February 2019 Colonel Thulo again instructed the appellants

to return to class and to respond to the Surgeon General’s letter of 17 February
2019. They refused to return to class and did not respond to the letter.

[18] On 8 March 2019 a delegation of officers from the SAMHS, headed by
Major General Dabula, a medical doctor and the Chief Director: Military Health,
Force Preparation of the SANDF, stationed in Pretoria, addressed all the members
of the SANDF studying medicine in Cuba. The appellants were once again
instructed to attend classes. They refused and informed Major General Dabula
that they wished to withdraw from the programme and return to South Africa.

[19] On 9 March 2019 the appellants individually addressed letters to the
Surgeon General in which they requested to be registered at an institution that
met the standards of the HPCSA, preferably in South Africa. Of course,
registration as a medical student in South Africa was never an option and was
directly at odds with the purpose of the MOU – the training of members of the
SANDF in military medicine in Cuba. The appellants contended that the SANDF
had breached the agreement when they were withdrawn from UCIMED in
Santiago and registered at the Inter Arms School, which was not an accredited
institution. They said that they did not make submissions to the military attaché
as to why they should not be discharged because they did not understand the letter
and the charge, since they had not committed mutiny.

[20] On 26 March 2019 the appellants were instructed to clear out their units at
the Inter Arms School and sent home to South Africa. On the same day they were
handed a letter by the Chief of the SANDF (dated 25 February 2019) in which
they were informed that they had been dismissed/discharged from the SANDF
with immediate effect (the dismissal). The reasons for the dismissal were these.
Since 11 February 2019 the appellants had refused to attend classes as instructed
by their superiors. Their conduct was akin to mutiny and regarded as a very

serious offence. They were given an opportunity to make written submissions to
the Chief of the SANDF to show cause why they should not be dismissed, but
had refused to exercise that right.

The proceedings below
[21] In May 2019 the appellants launched an urgent application in the Gauteng
Division of the High Court, Pretoria (the high court) for an order declaring that
the ‘decision to terminate’ the appellants’ service with the SANDF, was unlawful
and invalid. The application came before Basson J who held that the jurisdictional
requirements of s 59(3) of the Act had not been met. The court held that the
appellants had been dismissed on 25 February 2019, the date of the letter of
discharge, when they had not been absent from their posts for a period of 30 days,
and that a board of inquiry should have been convened in terms of s 103(1) of the
Act, prior to the dismissal.

[22] The high court made an order declaring that the ‘decision to terminate’ the
appellants’ service with the SANDF was unlawful and invalid. The decision was
‘reviewed and set aside’ and the court ordered the appellants to be reinstated ‘with
full retrospective effect, with retention of all salaries and benefits’. The
respondents were granted leave to appeal to a full court.

[23] Subsequently the appellants successfully launched an application in terms
of s 18(3) of the Superior Courts Act 10 of 2013 for the enforcement of the high
court’s order, pending the determination of the appeal by the full court. This was
met with an urgent appeal by the respondents under s 18(4)(ii) of the Superior
Courts Act, which suspended the high court’s s 18(3) order and prevented the
appellants’ reinstatement. The appeal against the main judgment and the appeal
against the s 18(3) order were consolidated for hearing before the full court.

[24] On 19 June 2020 the full court upheld the consolidated appeals and
discharged the s 18(3) order, with costs. It held that the appellants’ dismissal
under s 59(3) of the Act arose by the operation of law, and that there was no
decision susceptible to review. The court concluded that the appellants’ dismissal
was not premature because the operative date of the dismissal was 26 March
2019, when the appellants were informed of it. There was no jurisdictional
requirement that a board of enquiry must first be convened under s 103(1) of the
Act, prior to a discharge in terms of s 59(3). The appellants, in any event, had
been granted a fair hearing prior to their dismissal.

The issues
[25] Two principal issues are required to be determined in this appeal. The first
is whether the Chief of the SANDF had taken a decision to dismiss the appellants
prior to, and regardless of, any submissions they might make. The appellants
contended that the respondents elected to commence an ad hoc disciplinary
process for an alleged offence of mutiny under the Military Discipline Code (the
Code) and gave them a ‘semblance of a hearing’ in the Surgeon General’s letter
of 17 February 2019 when they were asked to show cause why they should not
be discharged. The so-called election was concluded when the appellants received
a letter from the Chief of the SANDF ‘confirming’ his decision to
administratively discharge them for misconduct. I shall refer to this issue as the
alleged decision.

[26] The second issue is the proper construction of s 59(3) of the Act, more
specifically whether its jurisdictional requirements were satisfied. I shall refer to
this as the interpretive question.

[27] The alleged decision is simply unsustainable on the evidence, and an
afterthought. The Surgeon General’s letter of 17 February 2019 stated that steps

would be taken for the appellants’ dismissal/discharge from the SANDF and that
they were being given an opportunity to make submissions individually or
collectively. That is also how the appellants understood the position. In their
response they made it clear that they were not willing to study medicine at the
Inter Arms School. There was no hint by the appellants of an ad hoc disciplinary
process or the semblance of a hearing in their responses to the letter of 17
February 2019.

[28]  What is more, the facts show that after the Surgeon General’s letter of 17
February 2019, the respondents made further attempts to get the appellants to go
back to class, even after they had been informed on 22 February 2019 that they
would be returned to South Africa. On 28 February 2019 Colonel Thulo
instructed the appellants to return to class. They were again instructed to do so on
8 March 2019 by the delegation of the SAMHS from Pretoria, led by Major
General Dabula. On the appellants’ version, all of this was a pretence kept up by
the respondents because they had already decided to dismiss the appellants in
terms of an ad hoc disciplinary process: it is fanciful and absurd.

[29] Finally, the alleged decision was denied in the answering papers and it was
stated that the appellants’ dismissal occurred by the operation of law in terms of
s 59(3) of the Act, after they did not report to their official place of duty for 30
days. They were notified of their dismissal in the letter by the Surgeon General
dated 9 April 2019. Any factual dispute in this regard had to be determined
essentially on the respondent’s version. Motion proceedings, Harms DP stated in
NDPP v Zuma,1 ‘are all about the resolution of legal issues based on common
cause facts’ and ‘cannot be used to resolve factual issues because they are not
designed to determine probabilities’. He went on to say:

1 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR
361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para 26, footnotes omitted.

‘It is well established under the Plascon-Evans rule that where in motion proceedings disputes
of fact arise on the affidavits, a final order can be granted only if the facts averred in the
applicant's (Mr Zuma’s) affidavits, which have been admitted by the respondent (the NDPP),
together with the facts alleged by the latter, justify such order. It may be different if the
respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in
rejecting them merely on the papers. The court below did not have regard to these propositions
and instead decided the case on probabilities without rejecting the NDPP’s version.’

[30] It is clear from the letter of 25 February 2019, which was handed to the
appellants only on 26 March 2019 after they had returned to South Africa, that
they were being dismissed from the SANDF with immediate effect, because they
had refused to attend classes since 11 February 2019. They had plainly been
absent from their place of duty for a period in excess of 30 days and the high
court’s conclusion to the contrary, was incorrect. Moreover, it is indisputable on
the facts that the operative date of the letter was not 25 February 2019 but 26
March 2019, after the attempts by the respondents to persuade the appellants to
return to classes. And it is trite that the operative date of an action by a
government functionary is the date on which it is communicated to the affected
person.

[31] I come now to the interpretive question. Section 59(3) of the Act reads:
‘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 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.’

[32] The starting point is the language of s 59(3). In this regard, the caution that
this Court recently sounded in Capitec Bank,2 bears repetition:
‘[I]nterpretation begins with the text and its structure. They have a gravitational pull that is
important. The proposition that context is everything is not a licence to contend for meanings
unmoored in the text and its structure. Rather, context and purpose may be used to elucidate
the text.’

[33] The jurisdictional requirements of s 59(3) are straightforward. The
members must have: (i) absented themselves from official duty; (ii) without
permission of their commanding officer; and (iii) for a period of not less than 30
days. Once these requirements are met, the members, if they are officers (as in
this case), are regarded as having been dismissed on account of misconduct with
effect from the day immediately following their last day of attendance at their
place of duty.

[34] These jurisdictional requirements are not new. In Louw3 this Court held
that a deemed discharge provision comes into effect by the operation of law, and
not as a result of an administrative decision, if the person concerned is absent
from duty for 30 days. Consequently, the audi alteram partem principle which
requires affected persons to be heard before decisions are taken affecting their
rights, privileges or liberty, has no application. Whether the jurisdictional
requirements for a deeming provision have been satisfied is objectively
determinable.

[35] That a deemed dismissal comes into effect by the operation of law without
a hearing, has been affirmed by the Constitutional Court. In Grootboom,4 a case

2 Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021] ZASCA
99; [2021] 3 All SA 647 (SCA) para 51.
3 Minister van Onderwys en Kultuur en Andere v Louw 1995 (4) SA 383 (A) at 388G-H; Phenithi v Minister of
Education and Others [2005] ZASCA 130; 2008 (1) SA 420 (SCA) paras 9-11; Minister of Defence and Military
Veterans and Another v Mamasedi [2017] ZASCA 157; 2018 (2) SA 305 (SCA) para 3.
4 Grootboom v National Prosecuting Authority and Another [2013] ZACC 37; 2014 (2) SA 68 (CC) para 37.

concerning a deemed dismissal clause under section 17(5)(a)(i) of the Public
Service Act 103 of 1994, the Court stated:
‘Section 17(5)(a)(i) effectively countenances the dismissal of the state employee without a
hearing. That implicates the right to fair labour practices enshrined in s 23 of the Constitution.
The constitutionality of the section is not attacked; hence it must be interpreted in a manner
best compatible with the Constitution.’

[36]  Likewise, the Constitutional Court in Maswanganyi5 accepted that the
service of a member of the SANDF is terminated by the operation of law in terms
of s 59(1)(d) of the Act, if he or she is sentenced to a term of imprisonment by a
civilian court without the option of a fine.6 It follows, as was held in
Maswanganyi, that a deemed dismissal clause must be interpreted in the light of
s 39(2) of the Constitution, and that the respondents’ submission to the contrary
is wrong.7

[37] Applying the jurisdictional requirements to the present case, s 59(3) does
not refer to a member who is absent – a state or situation of not being present.
Instead, it envisages a volitional act – the member must absent himself or herself
from duty. In other words, the member must leave the appointed place of duty or
not go to it, when he or she is required to be there. The appellants were instructed
to report for duty at the place assigned by their commanding officer – the Inter
Arms School – and to attend classes in furtherance of their medical studies: the
very purpose for which they had been enrolled at the School.

5 Maswanganyi v Minister of Defence and Military Veterans and Others [2020] ZACC 4; 2020 (4) SA 1 (CC);
2020 (6) BCLR 657 (CC)..
6 Maswanganyi  fn 5 paras 39, 41 and 45
7 Maswanganyi fn 5 para 33. Section 39(2) of the Constitution provides:
‘39  Interpretation of Bill of Rights
. . .
(2) When interpreting any legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’

[38] Counsel for the appellants however submitted that the appellants did not
absent themselves from official duty. They had regularly reported for roll call and
were physically present at the Inter Arms School, so it was submitted, despite
their refusal to attend classes. They had never left their assigned place of duty and
their whereabouts were always known to their commanding officer.

[39] These submissions do not bear scrutiny and have no basis in the evidence.
A member of the SANDF could just as unlawfully absent himself/herself from
official duty without permission by, for example, hiding on a military installation,
as another who absents himself/herself by walking away from it. Neither of these
individuals is performing his/her duty, and neither has authority for his/her action.
The appellant’s argument that they had not left their assigned place of duty is
plainly untenable. It would mean that members of the SANDF who report for roll
call but remain in their living quarters, or sit in a cafeteria, and refuse to attend
classes with impunity, or as was put to the appellants’ counsel in argument,
decline to engage in combat, are nonetheless on official duty. Such an
interpretation produces a manifest absurdity.8 Section 59(3) of the Act lends no
support to such a construction.

[40] On their own version, the appellants refused to go to their appointed place
of duty without the permission of their commanding officer, until their demands
were met. It is beyond question that they absented themselves from official duty,
and thus the jurisdictional requirement in (i) has been satisfied.

[41] The appellants openly defied their commanding officer, Colonel Joel
Lopez, by refusing to attend classes. It follows that they had no permission to
absent themselves from duty and thus the requirement in (ii) was satisfied. The

8 Venter v R 1907 TS 910 at 915; Smit v Minister of Justice and Correctional Services and others [2020] ZACC
29; 2021 (3) BCLR 219 (CC) para 121.

fact that their commanding officer was aware of the appellants’ whereabouts (on
the evidence he was not) or that they were physically present within the precincts
of the School of Arms, is irrelevant. In the replying affidavit the appellants denied
that Colonel Joel Lopez, a member of the Revolutionary Armed Forces of Cuba,
was their commanding officer because he had not been appointed to that rank
under the Act. They contended that Brigadier General Majola was their
commanding officer and that he had not instructed them to attend classes. Before
us the appellants rightly did not persist in this argument – it is opportunistic and
contrived.

[42] The appellants absented themselves from their official place of duty
without permission for a consecutive period in excess of 30 days and the
requirement in (iii) has also been satisfied. They must accordingly be regarded as
having been dismissed from the SANDF by the operation of law, but may be
reinstated by the Chief of the SANDF on good cause shown.

[43] It was however submitted on behalf of the appellants that they were not
absent from duty without permission for 30 consecutive days, because on 22
February 2019 they were ordered to hand over their Cuban uniforms and told not
to leave the base because they were returning to South Africa. These instructions,
so it was submitted, ‘relieved’ the appellants of any duty to attend classes, and
that their position was analogous to employees placed on suspension.

[44] Again, these submissions have no basis in the evidence. In fact, they are
wholly inconsistent with the appellants’ own case. First, by 11 February 2019
already, they had taken the decision not to attend classes until their concerns had
been addressed. The facts show that they stood by that decision until they were
sent back to South Africa. So, they could not have been ‘relieved’ of the duty to
attend classes which they had no intention of carrying out. The appellants were

instructed to hand in their uniforms precisely because they refused to attend
classes. Second, the suspension analogy is inapposite: suspension itself precludes
employees from performing their duties. And the appellants were never
suspended – they elected not to attend classes.

[45] The appellants concede, as they must, that s 59(3) of the Act is an exception
to the rule that any contravention of the Code is treated as a criminal matter to be
tried in the military courts. But it was argued that even if s 59(3) applied to them,
no valid dismissal could take place unless and until a board of enquiry was
convened under s 103(1) of the Act, in order to determine that the appellants had
been absent without leave for more than 30 days.

[46]  Section 103(1) reads:
‘Board of enquiry in relation to absence without leave
(1)
When any member of the Defence Force has been absent without leave for more than
30 days and is still absent, a board of inquiry must be convened by the commanding officer of
the absent member to inquire into such absence.’
(2)
If a routine inspection reveals any deficiency in the kit, arms and equipment for any
public property issue to the person contemplated in subsection (1), the board of enquiry may
also inquire into such deficiency.
(3)
If the board of enquiry finds that such has been so absent for more than 30 days and is
still so absent, it must record such finding, including the date of the commencement of the
absence without leave, and also its finding on any deficiencies of the kit, arms and equipment
and any public property issued to him or her and the estimated value thereof.’

[47] The argument is unsound. It ignores the plain wording, context and
jurisdictional requirements of s 59(3). The latter is a self-standing provision. It is
not rendered subject to s 103(1) or any other provision of the Act. The purpose of
s 59(3), as in the case of s 59(1)(d) of the Act (which is to safeguard the SANDF
against members convicted of serious crimes) is to ensure that the SANDF ‘is

structured and managed as a disciplined military force’,9 as required by s 200(1)
of the Constitution.10 Military discipline constitutes the difference between an
army and a mob. Obedience and order are the backbone of any military force.
The SANDF simply cannot function properly when its members absent
themselves from duty without permission, contrary to the job they agreed to do,
and the rules with which they undertook to comply. The appellants’ conduct was
a flagrant breach of duty. It is precisely for this kind of conduct that s 59(3) was
enacted.

[48] As stated, once the jurisdictional requirements of s 59(3) are met, the
member must be regarded as having been dismissed on account of misconduct,
by the operation of law and without a hearing. These consequences, affirmed by
the Constitutional Court,11 would be rendered nugatory by any inquiry into the
absence of the member under s 103(1). Likewise, the power granted to the Chief
of the SANDF to authorise the reinstatement of members deemed to have been
dismissed in terms of s 59(3), would similarly be rendered meaningless, a fortiori,
when a board of inquiry convened under s 103(1) of the Act ‘has no power to
determine the reasons for the absence without leave’.12

[49] The high court thus erred in holding that if a dismissal under s 59(3) were
to occur before a board of enquiry was convened and has recorded its findings,
this would deprive the s 103(1) inquiry any meaningful purpose. The converse is
true: s 59(3), critical to the functioning of the SANDF as a disciplined military
force, will be stripped of its efficacy if it is construed as a first step in a s 103(1)

9 Maswanganyi fn 5 para 38.
10 Section 200 (1) of the Constitution states:
‘200  Defence force
(1) The defence force must be structured and managed as a disciplined military force.’
11 Grootboom fn 4 para 37.
12 Mamasedi fn 3 para 11.

board of inquiry procedure. The text, structure and purpose of s 59(3) do not allow
for such an interpretation.

[50] For these reasons the decision of the full court that the appellants’ dismissal
in terms of s 59(3) of the Act occurred by the operation of law, cannot be faulted.
What remains is the appellants’ alternative argument that they were not given a
fair hearing. It can be dealt with briefly. The appellants recognise that in Louw,13
Phenithi14 and Grootboom,15 and the cases that followed, the dismissal occurs by
the operation of law and there is no right to a hearing. But they argued that those
cases are distinguishable from the present case because the respondents had
embarked on an ad hoc disciplinary process for an alleged offence of mutiny
under the Code. As indicated above, this argument is unsustainable on the
evidence.

[51] Finally, there is the question of costs. The appellants sought to enforce
fundamental rights under the Constitution and it cannot be said that the main
application or the application in terms of s 18(3) of the Superior Courts Act was
frivolous, vexatious or in any other way manifestly inappropriate. The full court
thus erred in failing to apply the Biowatch principle and directing the appellants
to pay costs.16

[52] In the light of the above the following order is issued:
1 The appeal against the costs orders in paragraphs 1 and 2 of the order by the
court a quo dated 19 June 2020 succeeds, and the costs orders are set aside.
2 Save as aforesaid, the appeal is dismissed.

13 Louw fn 3.
14 Phenithi fn 3.
15 Grootboom fn 4.
16 Biowatch Trust v Registrar Genetic Resources and Others [2009) ZACC 14; 2009 (6) SA 232 (CC); 2009 (10)
BCLR 1014 paras 21-24.

_______________________
A SCHIPPERS
JUDGE OF APPEAL

Appearances

For appellants:

G Marcus SC and C McConnachie
Instructed by:

Griesel Breytenbach Attorneys, Pretoria

Phatshoane Henney Attorneys, Bloemfontein

For respondents:

D T Skosana SC and T Lupuwana
Instructed by:

State Attorney, Pretoria

State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
5 January 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Masinga and Others v Chief of the South African National Defence Force and Others (Case no
51/2021) [2022] ZASCA 1 (05 January 2022)
Today the Supreme Court of Appeal (SCA) dismissed the appellants’ appeal against their
dismissal from the South African National Defence Force (SANDF) in terms of s 59(3) of the
Defence Act 42 of 2002 (the Act), but set aside the costs orders granted against them by the
court below. Section 59(3) provides that members of the SANDF who absent themselves from
official duty for more than 30 days without the permission of their commanding officer, must
be regarded as having been dismissed, but the Chief of the SANDF could reinstate a member
on good cause shown.

The appellants were officers in the South African Military Health Service (SAMHS), the
medical branch of the SANDF, selected to study military medicine at the University of Ciencias
Medicas (UCIMED) in Cuba, in terms of a memorandum of understanding between the
SANDF and the Revolutionary Armed Forces of Cuba. Each of the appellants concluded an
agreement concerning a foreign learning opportunity with the national Government. In terms
of this agreement they undertook to study military medicine on a full-time basis at a Cuban
medical institution and attend classes during official hours of duty for the duration of the
prescribed period of the course (six years); and the SANDF paid for the appellants’ studies in
full in advance, and paid their salaries, service benefits, stipends and any additional expenses
to facilitate their studies.

The majority of the appellants (26) commenced their studies in 2017 and nine of them started
in 2018. However, from 11 February to 20 March 2019, the appellants absented themselves
from official duty by refusing to attend classes, in defiance of an order by their commanding
officer. They refused to participate in activities and created disorder. They put pressure on
second-year cadets and other students not to attend classes. They dirtied bathrooms and left
taps running with the result that the dormitory ran out of water and other cadets could not
shower. The appellants’ reasons for breaching their duty were that the Inter Arms School

General José Maceo (the Inter Arms School), a satellite campus of UCIMED at which they
were enrolled, was not accredited to offer medicine; there was no proof of registration of first
year students at the UCIMED campus in Santiago, which was necessary to register them as
medical students with the Health Professions Council of South Africa (HPCSA); and the
appellants had not been registered with the HPCSA. These claims were unfounded. The Inter
Arms School was an accredited institution, the students at the Santiago campus had been
registered, and prior to commencing their studies in Cuba, the appellants were informed that
they would be required to pass the HPCSA examination to register as medical doctors.

The SANDF made numerous attempts to get the appellants back to class. On 16 February 2019
the South African Defence Attaché to the Republic of Cuba, requested them to return to class.
On 18 February 2019 they were handed a letter by the Surgeon General informing them that
he intended to apply to the Chief of the SANDF for their dismissal and they were instructed to
make written submissions to the Chief of the SANDF to show cause why they should not be
discharged. On 8 March 2019 a delegation of officers from the SAMHS from Pretoria, once
again instructed the appellants to attend classes. They refused and were sent home to South
Africa.

The appellants were accordingly dismissed from the SANDF for absenting themselves from
official duty by refusing to attend classes from 11 February to 20 March 2019. In May 2019
the appellants obtained an order from the Gauteng Division of the High Court, Pretoria (the
high court), that the ‘decision to terminate’ their service with the SANDF was unlawful and
invalid, and they were reinstated ‘with full retrospective effect, with retention of all salaries
and benefits’. This order was reversed on appeal by a full court, which held that the appellants’
dismissal under s 59(3) of the Act arose by the operation of law; that there was no decision
susceptible to review; and that the jurisdictional requirements of s 59(3) had been met.

The SCA upheld the decision of the full court. It concluded that the jurisdictional requirements
of s 59(3), namely that the appellants had (i) absented themselves from official duty; (ii)
without permission of their commanding officer; and (iii) for a period of not less than 30 days,
had been satisfied; and accordingly that they were regarded as having been dismissed on
account of misconduct with effect from the day immediately following their last day of
attendance at their place of duty. The appellants however contended that they had not absented
themselves from official duty because they regularly reported for roll call and were within the
precincts of the Inter Arms School, despite their refusal to attend classes. The SCA rejected
this contention as untenable: a member of the SANDF could just as unlawfully absent
himself/herself from official duty without permission by, for example, hiding on a military
installation, as another who absents himself/herself by walking away from it. Neither of these
individuals is performing his/her duty, and neither has authority for his/her action.

The appellants’ argument that they could not be dismissed until a board of enquiry was
convened under s 103(1) of the Act, to inquire into their absence without leave for more than
30 days, was rejected because it is inconsistent with the plain wording, context and purpose of
s 59(3). The latter is a self-standing provision aimed at ensuring the SANDF ‘is structured and
managed as a disciplined military force’, as required by s 200(1) of the Constitution. Obedience
and order are the backbone of any military force. The SANDF simply cannot function properly
when its members absent themselves from duty without permission, contrary to the job they
agreed to do, and the rules with which they undertook to comply. The appellants’ conduct was
a flagrant breach of duty.
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