THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case no: 514/2013

In the matter between:
THE MINISTER OF DEFENCE

First Appellant
THE SECRETARY FOR DEFENCE

Second Appellant
THE CHIEF OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE

Third Appellant
and
SOUTH AFRICAN NATIONAL
DEFENCE UNION

First Respondent
LYNDON ERIC FREDERICKS

Second Respondent

Neutral citation: Minister of Defence v SANDU (514/2013)[2014]
ZASCA 102 (28 August 2014)
Coram:
BRAND, MAYA, WALLIS AND SALDULKER JJA and
SCHOEMAN AJA.
Heard:
19 August 2014
Delivered: 28 August 2014

Summary: Defence Act 42 of 2002 – disciplinary proceedings against
soldiers in terms of s 59(2)(e) – whether precluded by absence of
regulations – whether procedure adopted fair.

ORDER

On appeal from: North Gauteng High Court, Pretoria (Du Toit AJ sitting
as court of first instance):
The appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.

JUDGMENT

Wallis JA (Brand, Maya and Saldulker JJA and Schoeman AJA
concurring)
[1] This Court1 previously described the events leading to this appeal
in the following terms:
‘On 26 August 2009 many members of the South African National Defence Force
gathered at the precincts of the Union Buildings in Pretoria to demonstrate their
grievances. In doing so they contravened military orders and a court order that had
been issued that morning. Some amongst them were armed with pistols, pangas,
knobkerries and petrol bombs. The conduct of at least some of them provoked a
confrontation with the police, who found themselves compelled to use a water
cannon, and to fire rubber bullets, in an attempt to bring things under control, and
police and military vehicles were damaged.’
Since 26 August 2009 the South African National Defence Force (the
SANDF) has tried to discipline the participants in that demonstration. It

1 The Minister of Defence v SA National Defence Force [2012] ZASCA 110 para 1.

was the third of those attempts that gave rise to the present appeal. At the
instance of the respondent, the South African National Defence Union
(SANDU), the high court (per Du Toit AJ) held it to be unlawful and
unconstitutional. This appeal is with his leave.

[2] Initially the SANDF sought to discipline the soldiers under
s 59(2)(e) of the Defence Act 42 of 2002 (the Act). It gave them notice of
their intended administrative discharge from the Defence Force in terms
of that section; informed them that they had been provisionally
discharged; and invited them to show cause why their provisional
discharge should not be confirmed. In an article published in a widely
read newspaper the then Chief of the Defence Force said that he had
persuaded the then Minister of Defence that ‘the only sanction this
deserves is summary dismissal or imprisonment of the soldiers’. Not
surprisingly this was held to have prejudged the issue and the procedure
was accordingly set aside as unlawful by the high court. The SANDF
appealed but abandoned its challenge to that part of the order.

[3] All the affected soldiers had been placed on special leave pending
the outcome of those legal proceedings. The final paragraph of the letter
of suspension, signed by the acting chief of the SANDF, read as follows:
‘You are therefore ordered not to report for work until a further express order has
been given to you in writing by me.’
On 6 August 2012, shortly before the previous appeal was to be heard,
and apparently because the challenge to the order declaring the earlier
disciplinary proceedings unlawful was to be abandoned, fresh letters were
addressed to the soldiers. These were headed ‘INSTRUCTION TO
REPORT TO YOUR UNIT’ and were signed by the Acting General
Officer Commanding Defence Works Formation. They instructed the

soldiers to report to their headquarters on 16 August 2012 at 08:00 for the
sole purpose of being warned of the charges preferred against them and to
be arraigned for conduct relating to the incident that took place on 26
August 2009 in Pretoria. The apparent intention of the SANDF was to
charge the soldiers in terms of the Military Discipline Code. The notice
was given widespread coverage in the media in an endeavour to bring it
to the attention of all the affected soldiers many of whom had returned to
homes in far-flung parts of the country. In the later radio broadcasts that
occurred after the deadline of 16 August 2012 had passed they were
informed that nonetheless they should report to their units for the same
purpose.

[4] Notwithstanding these efforts it does not appear that the instruction
came to the attention of all the soldiers. Some 300 soldiers reported to
their bases in terms of the notice, some even as late as 10 September
2012. They resumed their duties and preliminary investigations were
commenced in regard to their conduct on 26 August 2009. However, a
number did not return. Many of them appear to have acted on the advice
of SANDU, which quite wrongly, and as the high court held
obstructively, advised its members that they should not obey the order
because of a perceived inconsistency with the order placing them on
special leave. This stultified the efforts of the SANDF to pursue
proceedings under the Military Discipline Code against these members of
the force.

[5] Some correspondence between attorneys representing SANDU and
various persons within the SANDF followed upon these notices. It is
unnecessary to traverse that correspondence because on 5 November
2012 the SANDF once more changed its approach to disciplining the

soldiers who had not reported to their bases. On that day they were sent
letters in the following terms:
‘NOTICE OF INTENDED ADMINISTRATIVE DISCHARGE/DISMISSAL:
MEMBERS OF THE SOUTH AFRICAN NATIONAL DEFENCE FORCE
(SANDF) WHO PARTICIPATED IN AN ILLEGAL MARCH ON 26 AUGUST
2009 IN PRETORIA.
1.
You were placed on special leave for participating in an illegal march on 26
August 2009, conduct unbecoming for a professional soldier. You further disobeyed
an order to report to your unit on 16 August 2012 for warning and arraignment.
2.
Based on the above you are hereby called upon to provide reasons or show
good cause, within ten (10) days of the service of this notice, as to why I should not
discharge or dismiss you from the SANDF in terms of section 59(2)(e) of the Defence
Act 42 of 2002, as amended, and the common law. You may submit your response to
the following address or fax number …
3.
Unless I receive your response on or before 19 November 2012, 12:00, you
shall be confirmed to be administratively discharged or dismissed from the SANDF.’
The letter was signed by the Chief of the SANDF.

[6] In addition to those letters a notice was published in the Sowetan
newspaper on 14 November 2012 and in the Daily Sun newspaper the
following day. The notice read as follows:
‘NOTICE OF INTENDED ADMINISTRATIVE DISCHARGE: MEMBERS OF
THE SOUTH AFRICAN NATIONAL DEFENCE FORCE WHO DISOBEYED
A DIRECTIVE TO RETURN TO THEIR HOME UNITS
In terms of Section 59(2)(e) of the Defence Act, Act 42 of 2001, the Chief of the
South African National Defence Force (C SANDF) has issued a notice of intended
administrative discharge to all members who failed to report to their home units as he
directed in August 2012. In execution of his Constitutional responsibility to manage
the SANDF as a disciplined military force, the C SANDF issued a directive that all
members of the SANDF who were placed on Special Leave following their
participation in an illegal march at the Union Buildings in 2009 should report back to
their home units.

Some members responded to the directive as expected of military personnel to obey
orders, some did not respond as required by military discipline. The SANDF is also
mindful of the fact that the South African National Defence Union (SANDU) advised
some members not to heed the instruction.
The members are required to provide reasons or show good cause as to why the C
SANDF should not discharge or dismiss them from the SANDF on or before 19
November 2012. The response is to be forwarded to the above address.’
Below that there is a further heading preceding a list of 664 names. This
heading, like that on the letter, reads:
‘NOTICE OF INTENDED ADMINISTRATIVE DISCHARGE/DISMISSAL:
MEMBERS OF THE SOUTH AFRICAN NATIONAL DEFENCE FORCE
(SANDF) WHO PARTICIPATED IN AN ILLEGAL MARCH ON 26 AUGUST
2009 IN PRETORIA.’

[7] The sending of these letters and the publication of this notice
precipitated an urgent application by SANDU on 19 November 2012
seeking a declaratory order that this procedure was unconstitutional and
unlawful. Whilst the relief originally sought was far-reaching the only
orders ultimately made by Du Toit AJ were the following:
‘1.
Declaring that the procedure adopted by the first respondent as reflected in the
first
respondent’s
‘NOTICE
OF
INTENDED
ADMINISTRATIVE
DISCHARGE/DISMISSAL:
MEMBERS
OF
THE
SOUTH
AFRICAN
NATIONAL DEFENCE FORCE (SANDF) WHO PARTICIPATED IN AN
ILLEGAL MARCH ON 26 AUGUST 2009’ dated 5 November 2012 (‘the Notice’),
is unlawful and/or unconstitutional.
2.
Declaring that the procedure adopted by the first respondent as reflected in
‘NOTICE OF INTENDED ADMINISTRATIVE DISCHARGE: MEMBERS OF
THE SOUTH AFRICAN NATIONAL DEFENCE FORCE WHO DISOBEYED
A DIRECTIVE TO RETURN TO THEIR HOME UNITS’ appearing in the
Sowetan newspaper on 14 November 2012 and the Daily Sun newspaper on 15
November 2012 (‘the Advertisement’) is unlawful and/or unconstitutional.’
The appeal lies against the grant of those orders.

[8] Section 59 of the Act deals with the various circumstances in
which the services of a member of the SANDF may be terminated.
Section 59(1) covers resignation; the termination of a fixed term contract
of employment; reaching the prescribed age of retirement; being
sentenced to a term of imprisonment by a competent civilian court
without the option of a fine or having a sentence of discharge or dismissal
imposed upon him under the Military Discipline Code; or if the surgeon-
general certifies the member to be unfit to serve in the SANDF. Section
59(3) deals with a member absenting himself or herself from official duty
for a period exceeding 30 days. In that event they are treated as having
been automatically dismissed.

[9] Section 59(2), which the SANDF sought to invoke in the present
case, reads as follows:
‘The service of a member of the regular force may be terminated in accordance with
any applicable regulations –
(a)
As a result of the abolition of such member’s post or any reduction or
adjustment in the post structure on the Department of Defence;
(b)
If for reasons other than the member’s own unfitness or incapacity, such
discharge is likely to promote efficiency or increased cost-effectiveness in the
Department of Defence;
(c)
On account of unfitness for his or her duties or inability to carry them out
efficiently, irrespective of whether such unfitness or inability is caused by such
member’s ill-health not amounting to a condition referred to in subsection (1)(e);
(d)
If, after serving a period of probation in terms of this Act, his or her
appointment is not confirmed; or
(e)
If his or her continued employment constitutes a security risk to the State or if
the required security clearance for his or her appointment in a post is refused or
withdrawn.’

[10] It is common cause that no regulations have been promulgated
under this section. In those circumstances the first point argued on behalf
of SANDU was that it was impermissible for the SANDF to use this
section in order to dismiss these soldiers, or indeed anyone. It sought to
rely on the principle that where a statute provides that something be done
as a condition precedent to an exercise of a lawful power, non-
compliance with the condition precedent, or jurisdictional fact as it is
frequently called, is fatal to the exercise of the power.2 In addition it
contended that as the decision to terminate the services of a member of
the SANDF involved the exercise of a discretion, it was necessary for
regulations to be promulgated in order to circumscribe the scope of that
discretion.3

[11] The first question is whether in accordance with the established
principles of statutory interpretation4 the exercise of the powers conferred
by s 59(2) is dependent on the existence of regulations. In my opinion
neither the language of the section nor its context points to that
construction. As to language, the section refers to ‘any applicable
regulations’. That language is not indicative of the need for regulations to
have been promulgated in order for the powers conferred by the section to
be exercised. It might have been different if the section had read ‘in
accordance with regulations’ or ‘in accordance with the regulations’, but
it does not. It is only ‘any applicable’ regulations that must be followed
and, if there are no applicable regulations, whether because none have

2 Democratic Alliance v President of the RSA 2012 (1) SA 417 (SCA) para 118; Paola v Jeeva NO
2004 (1) SA 396 (SCA) paras 11-14.
3 Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of
Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA
936 (CC) para 47.
4 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18;
Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494
(SCA) paras 10-12.

been promulgated or because those that have been promulgated do not
touch on the exercise of the particular power under s 59(2), then there are
simply no regulations for the functionary to follow.

[12] Reference to the context supports that linguistic analysis.
Subsection (e), which the SANDF wishes to invoke, is one of five
subsections and the reference to regulations applies to all of them. If
regulations are required in order to exercise the power under subsection
(e), then they must also be required in order to exercise the powers under
the other subsections. But it is difficult to see why, if a member’s post has
been abolished or there has been a general reduction in posts as a
consequence of budgetary cuts at a time of financial stringency,
regulations are necessary in order to terminate the services of those who
have become redundant. All that would be required in those
circumstances would be that a fair retrenchment procedure be followed,
but that would flow from the soldiers’ right to be fairly treated not the
existence of regulations. Similarly if the security clearance of a senior
serving officer were withdrawn, the termination of their services would
seem to follow as a matter of course from the fact that they could no
longer perform their duties.

[13] What puts the matter beyond doubt is that under subsection (d) a
soldier’s services may be terminated if, after serving a period of
probation, their appointment is not confirmed. If a probationary soldier
does not have their appointment confirmed then, unless they were on
probation from some other post in the SANDF, the fact that their
appointment was not confirmed would necessarily mean that they would
have to be discharged. If they could not be discharged in the absence of
regulations, they would in effect obtain confirmation of their appointment

to the probationary post even though they had not been confirmed in it.
That cannot be correct. In the result I reject this argument.

[14] SANDU also advanced an argument based on the contention that
the SANDF had ‘repeated precisely the same forms of conduct which
were held to be unlawful and unconstitutional by the high court in
October 2010 and in respect of which the Department abandoned its
appeal’. It said that this was an abuse of process or was barred by an
application of what counsel referred to as issue estoppel. In support of
both arguments counsel relied on certain cases that were discussed by this
court in Caesarstone.5 I doubt whether the argument is sound, because
while the SANDF again sought to invoke s 59(2)(e) and intended to
afford the soldiers a hearing by way of representations, there were also
differences between the previous situation and the present. Not least
among those was that it could no longer be said that the soldiers were
facing a fait accompli because their fate had been predetermined. I can
see no basis for rejecting the statement on oath by the current chief of the
SANDF that all representations would have been considered and that no
final
decision
with
regard
to
the
soldiers’
administrative
discharge/dismissal had been taken when the current letters were issued
and the current notices were published. However, as I am clear that the
procedure that the SANDF adopted in the present case was unfair and a
breach of the soldiers’ rights it is unnecessary to express a final view on
this.

[15] It is likewise unnecessary to express a final view on the contention
by SANDU that the conduct of the soldiers, both that on 26 August 2009

5 Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499
(SCA) paras 45 and 46.

and their subsequent conduct in not reporting to their bases in terms of
the instruction given on 6 August 2012, was incapable of constituting a
security risk to the State and, therefore, that the attempt to invoke
s 59(2)(e) against them was without foundation. In considering this
submission I am mindful that in our past security risks to the State were
invoked to justify oppressive conduct or to conceal misconduct. Our
history teaches us therefore that it is right to approach claims of a risk to
the security of the State with healthy scepticism. Certainly the case on
behalf of the SANDF in this regard was extremely thin. It never identified
the nature of the security risk that concerned it, nor was any apparent
from the fact that on a single occasion, now five years ago, some soldiers
disobeyed orders and behaved outrageously in order to bring to the
attention of the authorities their perceived grievances. Their colleagues
who reported in response to the instruction of 6 August 2012 are
apparently back performing duties without any apparent impact on
national security. In addition s 59(3) of the Act tells us that being absent
without leave for 29 days on its own is not a ground upon which the
SANDF may treat the soldier as automatically dismissed. Why then
should absence on a single day to participate in a demonstration pose a
threat to the security of the State? But, against these considerations must
stand the additional factor of their failure to report after 6 August 2012 in
the light of SANDU’s incorrect advice that the orders they had given
were conflicting. The attitude of each soldier to the need to obey lawful
orders may have had a bearing on the central question of whether their
continued employment as a member of the SANDF posed a risk to
national security. It is accordingly not possible on these papers to rule
that conclusion out definitively.

[16] That clears the way for a consideration of the central question
whether the procedure adopted by the SANDF to discipline the soldiers
who had not returned to their bases in terms of the instruction of 6 August
2012 was fair. The parties were agreed that any disciplinary procedure
adopted by the SANDF was required to be fair. SANDU put this on two
bases, namely that the disciplinary proceedings constituted administrative
action in terms of PAJA6 and, alternatively, that the soldiers were entitled
in the absence of any other statutory source to rely directly on their
constitutional right to fair labour practices in terms of s 23(1) of the
Constitution. I do not think that the first ground is correct in the light of
the Constitutional Court’s decision in Gcaba,7 where the court said that
generally employment and labour relations issues do not amount to
administrative action within the meaning of PAJA. In view of the
concession on behalf of the SANDF that it was obliged to follow a fair
procedure in disciplining the soldiers it is unnecessary to determine
whether that obligation flows directly from the constitutional guarantee of
fair labour practices or whether this is one of those cases where rational
decision-making in the exercise of a public power not amounting to
administrative action calls for procedural fairness.8  What matters for
present purposes is whether the procedure initiated by the SANDF
complied with that obligation of fairness.

[17] The proceedings against the soldiers were disciplinary in nature.
Without seeking to be either comprehensive or definitive, a fair procedure
in disciplinary proceedings against an employee requires as a minimum

6 The Promotion of Administrative Justice Act 3 of 2000.
7 Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC) para 64.
8 Albutt v Centre of the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) paras
50-51; Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248
(CC) para 12; Minister of Home Affairs and Others v Scalabrini Centre and Others 2013 (6) SA 421
(SCA) paras 67-72.

the following. The employee must be told what they have done that is
said to constitute misconduct with sufficient clarity to understand the
nature of the alleged misconduct. Where, as here, the employer seeks to
say that conduct is of a particular character it must set out why the alleged
conduct has that character. The employees must be given an adequate
opportunity to address the charges raised in a manner that protects their
own rights. To that end they will ordinarily be entitled to the assistance of
any trade union of which they are a member, whether in formulating their
response or by way of representation at a disciplinary hearing. The
Constitutional Court has confirmed the entitlement of soldiers to be
assisted and represented by their trade union in disciplinary proceedings.9

[18]  In my view the procedure adopted by the SANDF was defective in
all of these respects. I deal with each in turn. Reading the letters, the
terms of which are set out in para 4 of this judgment, it was said that
participation in the events of 26 August 2009 was conduct unbecoming a
professional soldier and in addition it was said that the soldiers disobeyed
an order to report to their unit on 16 August 2012. In the letters there
were therefore two elements to the alleged misconduct. However, the
advertisement in the two newspapers referred only to the soldiers having
disobeyed a directive to return to their home units. It is true that
immediately above the list of names there was reference to their having
participated in an illegal march on 26 August 2009, but there was nothing
to indicate that this was to form a ground for their possible discharge. In
the result the two notices were contradictory. As the soldiers whose
names appeared on the list in the advertisements were also sent letters
they would not have known what charges were being levelled against

9 South African National Defence Union v Minister of Defence and Others 2007 (5) SA 400 (CC) paras
89-95.

them and indeed it is by no means clear from the affidavits filed on behalf
of the SANDF whether the complaint related to the events of 26 August
2009, or those following upon the order of 6 August 2012, or both of
those. The procedure was therefore unfair because it left the soldiers in
doubt as to the charges they faced.

[19] The procedure was also unfair because it did not disclose to the
soldiers why it was said that their conduct, even assuming that it
encompassed both participation in the events of 26 August 2009 and the
failure to report to base pursuant to the directive of 6 August 2012,
constituted a security risk to the State. In para 14 I drew attention to the
difficulties that confront the SANDF in advancing that contention. How
were the soldiers to know the reasons for the SANDF taking that view,
albeit provisionally, unless they were told? A soldier might after all have
responded to the letter by saying that he or she had participated in the
march and demonstration on 26 August 2009 out of a sense of grievance
and refused to return in response to the directive of 6 August 2012 on the
advice of their trade union. How would they know whether that response
would be adequate to avoid their discharge? Unless they were told why
any conduct in relation to the march and demonstration, or the failure to
return to their base to receive disciplinary charges and be arraigned,
posed a threat to the security of the State, they would be shooting in the
dark in their attempt to make meaningful representations in response to
the charge against them.

[20] I accept that in certain circumstances it may be fair and appropriate
for an employer to follow a procedure similar to that which the SANDF
adopted in this case, of informing the employee of the nature of the
alleged misconduct and asking for representations in that regard, both as

to whether the conduct occurred and constituted misconduct and as to an
appropriate sanction. However, the employee must be afforded an
adequate opportunity to respond and to obtain the assistance, if required,
of a trade union of which the employee is a member. Here the letters
afforded the soldiers ten days from the date of receipt thereof, but the
newspaper advertisements, published on 14 and 15 November 2012,
required them to respond in writing to a private bag address in Pretoria by
19 November, that is, within four days.  Manifestly that afforded the
soldiers insufficient time to obtain advice and assistance from their trade
union, of whose existence the SANDF was well aware, and to make
adequate representations, especially if one bears in mind that they were
scattered across the length and breadth of the country.

[21]  For those reasons the procedure adopted by the SANDF was not
fair and the court below was correct to grant the declaratory orders that it
did. The appeal is accordingly dismissed with costs, such costs to include
those consequent upon the employment of two counsel.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
J H Dreyer SC
Instructed by:
The State Attorney, Pretoria and Bloemfontein

For respondent:
Gilbert Marcus SC (with him P Jara, the heads
of argument having been prepared with Steven
Budlender)

Instructed by:

Griesel & Breytenbach, Pretoria

Phatshoane & Henney Attorneys, Bloemfontein.