24 March 2020
A man was dismissed from the South African National Defence Force (SANDF) because he was convicted of a serious crime. On appeal, his conviction is set aside. Does the SANDF have to re-employ him? A unanimous Constitutional Court judgment has clarified the rights of people in this situation.
In terms of section 59 (1)(d) of the Defence Act, the employment of a member of SANDF who has been convicted and sentenced for a serious crime is terminated automatically.
Mozamane Maswanganyi became a permanent member of the SANDF on 1 April 2009. In 2010, he was arrested and charged with rape. On 18 July 2014, he was convicted and sentenced to life imprisonment. He appealed. On 13 February 2015, his appeal succeeded and his conviction and sentence were set aside. Once he was released from prison, he made a request to the SANDF to be reinstated.
He later made an application to be reinstated in the Pretoria High Court. He argued that in terms of the Military Discipline Supplementary Measures Act (MDSM Act) a member of SANDF who is appearing before a court for committing a crime can be suspended. In terms of this Act, the Chief of the SANDF must write to the affected member 24 hours in advance to notify him of his intention to suspend him and give him an opportunity to make representations.
But, Maswanganyi argued that in his case this did not happen. Instead, the Minister of Defence and Chief of SANDF relied on the Defence Act and argued that his employment was automatically terminated.
Maswanganyi also relied on section 59(3) of the Defence Act which gave the Chief of SANDF the discretion to reinstate a member who has been absent for 30 days or more if good cause is shown.
The high court ruled in favour of Maswanganyi. It found that the Chief of the SANDF had the discretion to invoke either section 59(3) of the Defence Act or section 42(1) of the MDSM. It was arbitrary not to invoke these sections. So, the Court ruled that Maswanganyi should be reinstated immediately with full salary and benefits effective from the date of his arrest on 18 July 2014.
The Supreme Court of Appeal (SCA) overturned this decision and found that Maswanganyi’s employment was terminated by operation of law. So, there was no decision for the Chief of the SANDF to make. Maswanganyi should have informed his employer of his arrest and later conviction, the court said. The only option was for Maswanganyi to apply for reinstatement as recommended by the Minister of Defence and the Chief of SANDF.
Maswanganyi then appealed the SCA decision to the Constitutional Court.
The Constitutional Court said that the legal issue it had to decide was the proper interpretation of the provisions of the Defence Act. Was Maswangayi’s service with the SANDF terminated by operation of law once he was sentenced by the trial court, irrespective of his election to lodge an appeal against his conviction and sentence? The Respondents were the Minister of Defence, the Chief of SANDF and the Secretary for Defence.
In this case, it was not in dispute that section 59(1)(d) of the Defence Act operates automatically. What was in dispute was whether this provision applies once a trial court has made its decision or only once an appeal has been lodged and the outcome heard in compliance with an accused person’s right to appeal any decision. The Respondents argued that it applies as soon as the trial court has convicted the person in question.
But, the Constitutional Court found that the Respondents’ interpretation disregards the hierarchical structure of South Africa’s court system and results in an appeal having no purpose or effect. Also, the Court drew a distinction between a pardon and a conviction being set aside. When a conviction is set aside this means for all intents and purposes it never happened. But, when someone is pardoned, this does not mean the formerly accused person escapes all consequences of his actions.
This is illustrated by the Robert McBride case, where the Constitutional Court held it was not defamatory for a newspaper to refer to McBride as a “criminal” and a “murderer” even though he had received amnesty. A pardon does not render the fact of a person’s conviction untrue or expunge the deed which led to his conviction, the court said.
So, the court found that once Maswanganyi’s conviction and sentence was set aside on appeal, his termination of employment was reversed by operation of law. This is because section 59(1)(d) no longer applied to him.
Did this mean that Maswangayi had to be reinstated or that his employment was never terminated? To answer this question the court looked at its decision in a case involving a Mr Grootboom. He was a public prosecutor who had been suspended by the NPA. While he was suspended he left South Africa to study in the UK. The NPA then decided Mr Grootboom had been dismissed by operation of law in terms of certain laws which terminated employment for absconding or absenteeism.
The Constitutional Court disagreed, finding that Mr Grootboom had been barred from performing his duties or returning to work. So, it could not have been said that he absconded. So the section did not apply to him. Having made this finding, it was not necessary for Mr Grootboom to be reinstated because in the eyes of the law he had never been dismissed. The Court concluded that the same reasoning applies to Maswanganyi’s case.
The court overturned the decision of the SCA. It declared that Maswanganyi’s employment had never been terminated. So Maswanganyi continued to occupy the same position when he was arrested on 18 July 2014 and was entitled to back-pay. The Minister of Defence and Chief of SANDF were ordered to pay Maswanganyi’s costs.