SUMMARY
In casu, Mr Jonas Molefi Mamasedi (“Mamasedi”), who held the rank of sergeant in 1 South African Tank Regiment in the South African National Defence Force (“SANDF”), was absent without leave for a period of 36 (Thirty six) days. Upon his return and in terms of s 59(3) of the Defence Act 42 of 2002 (“the Act”), he was deemed to be dismissed.
Upon his return and on discovering that he has been dismissed, Mamasedi lodged a grievance regarding his dismissal with the SANDF Headquarters in Pretoria. He was advised to return to Bloemfontein where he was based and lodge a grievance with his commanding officer. He was further advised that he remain in the barracks of which he claimed to be unceremoniously locked out of on 09 March 2012.
On or about 18 January 2012, a board of enquiry (“the Board”) had been convened in order to investigate the reasons for Mamasedi’s absence and to make recommendations to the Chief of the SANDF. On or about 07 December 2012, the Board had not made a recommendation. On 22 January 2013, Mamasedi made representations which he stated that he had been absent without leave because he was abducted and taken to an initiation school for the period from 29 November 2011 to 31 December 2011.
On or about 11 July 2013, the final feedback from SA Army Headquarters regarding the Ministerial Enquiry was received regarding the absence. The report included its recommendations dated 21 February 2013. The Board which appeared to be convened in terms of s 101(1) of the Act, recommended to the Chief of the SANDF that Mamasedi not be reinstated. Mamasedi took the matter on review to the High Court, who set aside the decision of the Chief of the SANDF, and substituted it with a decision of reinstatement. The Minister of Defence and Chief then brought an appeal to the Supreme Court of Appeal.
LEGAL QUESTION
There were two issues pending before the court: Firstly, whether the decision not to re-instate Mamasedi was impaired by a failure of procedural fairness in that he was not provided with an oral hearing before the Board made its recommendation to the SANDF and secondly, whether the re-instatement was a competent relief in the circumstances.
RATIO
PROCEDURAL FAIRNESS
A two-stage process was followed in the matter herein and in the view of the judge must be viewed holistically and be seen as affecting rights at each stage, rather than as a divided process involving an investigation and then a decision that affects rights.
In the matter herein it was found that the refusal to make a “determination” was an administration action as defined by in s1 of the Promotion of Administrative Justice Act 3 of 2000 (“the PAJA”). The PAJA gives effect to the fundamental right to administrative action that is lawful, reasonable and procedurally fair. The court referred to sections 3 and 6 of the PAJA. In respect of the enquiry by the Board, it was procedurally regulated by section 102 of the Act. Section 102 provides that oral evidence be adduced in a hearing of the Board subject to certain exceptions. The section further provides that if a person’s reputation is likely to affected by the evidence, then the person affected has the right to be present to testify him/herself and call witnesses. Section 102(7) places an obligation to be notified timeously of a time and a place of every meeting of the Board.
PROCEDURAL FAIRNESS
A two-stage process was followed in the matter herein and in the view of the judge must be viewed holistically and be seen as affecting rights at each stage, rather than as a divided process involving an investigation and then a decision that affects rights.
In the matter herein it was found that the refusal to make a “determination” was an administration action as defined by in s1 of the Promotion of Administrative Justice Act 3 of 2000 (“the PAJA”). The PAJA gives effect to the fundamental right to administrative action that is lawful, reasonable and procedurally fair. The court referred to sections 3 and 6 of the PAJA. In respect of the enquiry by the Board, it was procedurally regulated by section 102 of the Act. Section 102 provides that oral evidence be adduced in a hearing of the Board subject to certain exceptions. The section further provides that if a person’s reputation is likely to affected by the evidence, then the person affected has the right to be present to testify him/herself and call witnesses. Section 102(7) places an obligation to be notified timeously of a time and a place of every meeting of the Board.
Mamasedi, being the person whose reputation was likely to be affected, had a right to participate in these proceedings by providing oral evidence, to call witnesses, to cross-examine witnesses and to have legal representation. The aforesaid opportunity was never afforded to Mamasedi, thus his right to a procedurally fair administrative action was violated and a s6(2)(c) of the PAJA was established.
RE-INSTATEMENT
The order of the High Court was made to re-instate Mamasedi retrospective to 15 December 2011. the order could not stand in the SCA, for the following two reasons:
a) the re-instatement does not follow from the setting aside of the decision. Mamasedi was charged in terms of s59(3) of the Act and, in the absence of the decision by the Chief to re-instate him, he remained dismissed by the SANDF; and
b) Wentzel AJ, misdirected herself if she purported to substitute her decision for that of the Chief of the SANDF. Administrative decision making powers are not vested in judges but are vested by legislation in administrators. In the event that the Judge did actually intend on substituting her decision, she did not expressly consider whether there were exceptional circumstances present, for example whether Mamsedi went to initiation school voluntarily or not. Due to the factual disputes which were not resolved
With the above said, the appeal must succeed, to the extent that the order to re-instate Mamasedi must be set aside.
HELD
The appeal succeeded to the extent that paragraph 2 of the court order below is set aside.
The court order was amended and states that:
- the decision dated 04 June 2013 by the second respondent, not to re-instate the applicant is reviewed and set aside; and
- the respondents are ordered to pay the applicant’s costs on a party and party scale.
VALUE:
This case illustrates the importance of following prescribed legislation and ensuring that there is no infringement of a person’s rights as it may result in an irregularity in the matter.
Written by Omphile Boikanyo and supervised by Charlotte Clarke, 21 September 2018
