Badenhorst v Minister of Defence (37350/05) [2006] ZAGPHC 122 (11 August 2006)

CASE NO : 37350/05

DATE: 11/8/2006

UNREPORABLE

Respondent

IN THE HIGH COURT OF SOUTH AFRICA [TRANSVAAL PROVINCIAL DIVISION]

In the matter between :

And

GJM BADEN HORST Applicant

THE MINISTER OF DEFENCE

INTRODUCTION:

1 . The applicant was a colonel in the South African National Defence

Force. The respondent is the Minister of Defence. The applicant

applies for an order that the decision of the respondent to

discharge the applicant from service in the South African National

Defence Force, be reviewed and set aside and that the respondent

be ordered to restore the applicant with full rank and benefits from

date of dismissal.

2. Any reference herein to the "respondent" includes a reference to

the Defence Force and the subordinates of the respondent who

partook in the decision which forms the subject matter of this

application.

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THE FACTS:

An exposition of the relevant facts is necessary in order to adjudicate the relief sought by the applicant in its proper context.

4. The applicant was the head of Govert Information pertaining to Western Africa, which is a sub-division in Defence Intelligence. The mission of Defence Intelligence is to provide intelligence and counter-intelligence for both strategic and operational decision­-making purposes. It is further tasked to provide the national government with intelligence to assist the government in taking decisions of strategic importance in pursuance of security objectives of the country. It operates in an environment of espionage against other foreign intelligence services from which it follows that its work is extremely sensitive in that its actions can seriously affect the relations between South Africa and other states involved.

5. The Special Acquisition Directorate of Defence Intelligence is the directorate responsible for the most sensitive operations and the acquiring of secret information in technologies equipment, plans and general security intentions of other countries. It handles highly classified contracts with people from other countries who are

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prepared to co-operate with it. Due to the nature of the task, employees of the Defence Force who work for the Special Acquisition Directorate, have to be highly reliable and truthful. Breaches of security and standing operational procedures are

therefore viewed in a serious light.

The applicant was part of the Special Acquisitions Directorate and was accordingly trained in this field and was aware of the policies, regulations and standing operational procedures of the unit.

7. Prior to 16 September 2004 the applicant was involved in an incident which involved the Department of Home Affairs and which, in the eyes of his superiors, amounted to a breach of security. The matter was discussed between his supervisor, General Nyembe, and himself and, at some stage, he submitted a report wherein he explained and answered to the allegations against him. Due to the classified nature of the report same was not annexed to the papers.

8. According to the respondent General Nyembe discussed the matter with the applicant on many occasions and gave him different options to resolve the matter. The following is alleged in this regard in paragraph 14 of the answering affidavit:

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"General Nyembe suggested to him that due to the serious nature of this matter, the applicant must consider the following options: take a transfer to another Department of Defence or transfer out of the Department of Defence or resign. The applicant declined either of the options. Brigadier General Nyembe discussed all the developments of the matter with both Major Senior Shilubane (Chief Director) and myself and received further guidance in this regard."

9. On 16 September 2004 a letter was forwarded to the applicant by

Brigadier General L C Odendaal (Chief Director of Intelligence

Support) wherein he was informed as follows:

"You are hereby informed that Defence Intelligence has requested that your services terminated wef [sic] 31 Oct 04, because of the incident in which you were involved while working for the Directorate Special Acquisition. Please provide reasons why Defence Intelligence should not proceed with the request.

It will be appreciated if you could respond before 29 Sep 04."

10. Approximately on 13 September 2004 the applicant submitted a

redress of wrongs in terms of the provisions of section 61 of the

Defence Act No 42 of 2002 (the "Defence Act") which document was

once again not annexed, due to the classified nature thereof.

11. On the same day United Legal Assistance of South Africa ("ULASA"),

the legal support section of the South African National Defence

Union ("SANDU") responded to the letter, with a letter wherein the

following was inter alia recorded:

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"1. Col D J M Badenhorst is a member of SANDU and ULASA is

the legal support section of SANDU.

You have requested Col Badenhorst to provide reasons why Defence Intelligence should not terminate his services with

effect from 31 October 2004.

Before he is in a position to react to your request, he needs to know why this very drastic measure is considered.

4. He now respectfully requires you to disclose to him,

a)

b)

c)

d)

e)

5.

which actions or failure to act led to this drastic proposal [sic] action;

dates, times and places of such actions, are requested;

why does Chief Director Defence Intelligence regard such action to be so serious that this member has to be dismissed from the DOD?

in terms of which authority does Chief Director Defence Intelligence intend to discharge this member;

has Chief Director Defence Intelligence considered the redress of wrongs this member recently instituted? He has had no reaction to it yet;

"

12. On 20 September 2004 Brigadier General Odendaal responded as

follows to the aforesaid letter:

"I would like to bring it to your attention that Colonel Badenhorst is fully aware of the reasons and circumstances that compelled the Defence Intelligence to request the termination of his services. If however, Colonel Badenhorst claims otherwise, he may approach the office of Lieutenant General M J Mutau for an explanation. Colonel Badenhorst may also be accompanied by whomever he may deem necessary."

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13. On 23 September 2004 ULASA responded to this letter with a letter

wherein the following was inter alia recorded:

"1.

2. We need to point out to you:

(a) that Sections 23 and 33 of the RSA Constitution fully

applies to the State, the Department of Defence and Defence Intelligence;

(b) that the Promotion of Administrative Justice Act,

promulgated as a result of Section 33 of the RSA Constitution, also applies to the State, the 000 and Defence Intelligence.

You will note that Section 33 of the RSA Constitution states that apart from willful, reasonable and procedurally fair administrative action, everyone whose rights have been adversely affected by administrative action, has the right to be given written reasons. Colonel Badenhorst has been so effected since November 2003 and now faces dismissal.

In terms of Section 23 of the Constitution, this member also has the right to fair labour practices. His employment in the DOD and utilization in Defence Intelligence do not change

this.

Colonel Badenhorst can only react to your notice of intended dismissal dated 16 September 2004 if his employer discloses

to him:

(a) why such drastic action is necessary;

(b) why he could not be awarded an opportunity to explain his actions for which his employer wants to dismiss him to an objective forum;

(c) why he could not be transferred to another division or part of the DOD instead of being dismissed;

(d) in terms of which authority does Defence Intelligence plan to dismiss him summarily?

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On receipt of the written reasons for your insistence on an immediate dismissal, and the authority whereby it is to be done, Colonel Badenhorst will be in a position to reply to your

letter of 16 September 2004.

We may add that ordering this member to resign or to accept a summary dismissal, will be of no value, as it would not

constitute a lawful dismissal."

14. Brigadier General Odendaal did not respond to the aforesaid letter

and instead directed a letter on 27 September 2004 directly to the

applicant, wherein he recorded the following:

"1. It will be appreciated if you could comply with the following

requests:

(a) Could you formally indicate to Defence Intelligence who your appointed attorneys are;

(b) Could you give permission to Defence Intelligence to discuss everything related to your case with your appointed attorneys;

2. A positive response will bi[sic] highly appreciated."

15. On 4 October 2004, and in response to the aforesaid letter, ULASA

pointed out to the respondent that SANDU is a registered military

union which assists its members whenever they suffer from unjust

administrative action, unfair labour practices or in general to assist its

members with grievances.

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16. Approximately on 2 November 2004 the applicant came in

possession of a letter from which it appears that he was to be

declared redundant. On 30 November 2004 ULASA forwarded a

letter to the respondent, wherein the following was inter alia

recorded :

"1.

Colonel Badenhorst was recently informed that he was to be carried addition[sic] to "their current structure with effect of

01 January 2005."

3. This is not clear what is intended with this action:

(a) Does it mean that Col Badenhorst has lost his staffing/placing in the new 000 structure?

(b) Does it mean that he would be re-staffed or replaced else where in the DOD structure in a post of suitable responsibility, seniority and remuneration, in future?

(c) If he is to be re-staffed/placed, when can he expect it to happen?

(d) Does the decision to carry more than 70 colonels listed

as from "additional to the current structures" have any

relation to their race?

4.

We would like to assist this member in what seems to be an unfair labour practice. We therefore request this information in terms of Regulation 21 of chapter IV of the General Regulations promulgated in terms of the Defence Act. Also please take note of Regulation 84 of the same chapter IV.

5.

May we refer you again to paragraphs 2 to 4 of our letter dated 23 September 2004.

6.

......."

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17. On 2 December 2004 it transpired that the applicant's access card

which gave him access to his workplace, was cancelled resulting in

him not being able to obtain access. As a result thereof ULASA

wrote a further letter on the same date when the following was inter

alia recorded :

"1. Our member informed us that his access card to Liberty Life

Building was yesterday cancelled without notice.

He consulted with Brig Gen Odendaal this morning who informed him that he has instructions to dismiss Col Badenhorst from the service of the Department of Defence.

We have to point out that to date you have failed to provide written reasons for these actions. We understand that you may wish not to give secret details to us, but we fail to see why you are not prepared to give written reasons to Col

Badenhorst for this severe action.

We again place on record that Col Badenhorst wants to proceed with his military career, in any part of the Department of Defence. He still tenders his service and respectfully request if he may report for duty at SAMIC or Army HQ as

from tomorrow.

He requested us, as we hereby do, to invite you to charge him

in a military court, as that would at least indicate what you are holding against him, and should allow him an opportunity to defend himself in an objective tribunal."

18. In response to these allegations the respondent recorded the

following in paragraph 36 of the answering affidavit:

"Suffice to say that the applicant's access to the Liberty Building was denied due to his termination of employment."

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19. On 21 December 2004 ULASA forwarded a further letter to the

respondent wherein the following was inter alia recorded:

"We enclose for your convenience a copy of your letter dated 2 December 2004 to which we have had no replay[sic].

Col Badenhorst does have a right to know why he cannot be allowed to work in any other part of the Department of Defence.

We, acting as the legal support section of SANDU, a registered Military Union in terms of the Defence Act, now request you in terms of Regulation 21, chapter XX of General Regulations promulgated in terms of the Defence Act, to disclose to us why this member is refused access to his working place, while at the same time you also refuse him permission to work in any other directorate in the

Department if [sic] Defence.

We are not interested in hearing any military secrets nor are we prepared to allow you to hide behind the secret aspects of Defence Intelligence to commit unfair labour practices.

We request you to transfer this memo to Army HQ if need be to be held a supernumerary, to allow him to go to work daily and to proceed with his military career."

20. On 21 December 2004 the letter was responded to in the following

terms on behalf of Brigadier General Odendaal :

"1. ...

The instruction for the termination of service of Colonel Badenhorst was referred to the Director Personnel Separation of the Department of Defence, Brigadier General M D Myamya on 3 December 2004. It will be appreciated if any future correspondence relating to the matter could be referred to Brigadier General Myamya."

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21. On 12 January 2005 Brigadier General Odendaal informed ULASA

that the chief human resources (director military personnel utilization)

who, in conjunction with chief of the army as the career manager of

the applicant, would respond to the letters.

22. On 18 March 2005 the applicant was dismissed in terms of a letter

when the following was recorded:

"Re administrative discharge:

In terms of the measures for just and fair administration, you were granted the opportunity to submit representations as to why your services should not be terminated. As you failed to submit any such reasons, the Minister of Defence has approved an application for your administrative discharge from the South African National Defence Force with effect from 31 January 2005. Attached a copy of the ministerial authority for your reference."

23. On 4 April 2005 the applicant's erstwhile attorneys forwarded a letter

to the respondent wherein the following was inter alia recorded:

"...

On 18 March 2005, our client received a letter dated 18 March 2005 in terms of which he was informed that he was discharged from the South African National Defence Force with effect from 31 January

2005.

Our client disputes that his discharge was lawful, let alone procedurally fair.

You are hereby informed to confirm not later than the close of business on Thursday, 24 March 2005, that this discharge is retracted, failing which our client will bring an urgent application for an interdict pending a review application to be issued within a specific period of time."

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24. On 15 June 2005 the applicant's current attorneys forwarded a letter

to the respondent, wherein the following was recorded:

"Reasons for administrative action : administrative discharge Colonel DJM Badenhorst (number 7536925PE) :

Please be advised that we act on behalf of Colonel DJM Badenhorst in this matter.

You are hereby requested to provide written reasons for the administrative action that led to the discharge of our client from the SANDF. This request is made in terms of the relevant provisions of the Defence Act, 44 of 1957, and its relevant Regulations, as promulgated.

You are further requested to provide these written reasons as soon as possible, but within a period of 90 days from receipt hereof. It is our client's contention that his discharge was unlawful and amounted to unreasonable administrative action as contemplated in the Constitution of the RSA and the Defence Act.

4. We trust that this matter will receive your urgent attention."

25. The respondent did not respond to the aforesaid request whereafter

the application was launched.

THE APPLICANT'S GROUNDS FOR REVIEW:

26. The applicant contends that the rights afforded to him in terms of the

provisions of sections 32 and 33 of the Constitution, Act 108 of 1996

("the Constitution"), have been infringed and furthermore submits that

he has a constitutionally entrenched right to a fair labour practice as

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provided for in section 23 (1) of the Constitution which right was also

infringed.

THE RESPONDENT'S DEFENCE:

27. The respondent alleges, in the first place, that the applicant was

discharged in terms of the provisions of sections 59(1) and (2) of the

Defence Act and the applicable regulations thereto. He thereafter

alludes to the applicant's alleged breach of security and explains the

facts which gave rise to his dismissal, as summarised hereabove.

He points out that the applicant was invited to discuss the reasons for

his proposed dismissal with his superiors, but that he declined to do

so.

28. In respect of the alleged failure to provide reasons for the decision,

the following is alleged in paragraph 20 of the answering affidavit:

"It is true that the applicant was not provided with the written reasons. However, it is incorrect for the applicant to say he is in the dark as to the reasons why he was dismissed. The reasons for the applicant's dismissal is highly classified information which the Defence Intelligence feels that the disclosure thereof will constitute a breach of national security. Once the reasons are disclosed on paper to the applicant or his attorney, it would become a public document. The applicant has been given a fair hearing as reflected in the paragraphs mentioned above. The procedures followed above is [sic] not unusual procedures. It is a procedure that has been followed by the Defence Intelligence and the South African National Defence Force in general.”

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RELEVANT STATUTORY PROVISIONS:

29. In order to adjudicate the respondent's conduct, it is necessary to

have regard at relevant statutory provisions.

30. Section 59 of the Defence Act deals with the termination of service of

members of the regular Defence Force and provides in part as

follows :

"59. Termination of service of members of Regular Force -

(1) The service of a member of the Regular Force is

terminated -

(a) upon the expiration of three months after the date on which such member lodged his or her resignation or upon the expiration of such shorter period as may be approved by the Chief of the Defence Force;

(b) on the termination of any fixed term contract concluded between the member and the Department or on the expiration of any extended period of such contract;

(c) if he or she has reached the prescribed age of retirement or, where applicable, if he or she exercises his or her right to retire on pension in accordance with the provisions of the applicable pension laws;

(d) if he or she is sentenced to a term of imprisonment by a competent civilian court without the option of a fine or if a sentence involving discharge or dismissal is imposed upon him or her under the Code [the Military Discipline Code referred to in section 104(1) of the previous Defence Act, No 44 of 1957]; or

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(e) if the Surgeon General or any person authorized

thereto by him or her issues a certificate to the effect that due to medical or ...

(2)

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 of the Department of Defence;

(b)

if for reasons other than the members' 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;

(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.

(3)

......

(4)

......

(5)

......

(6)

..."

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It appears from the definition of "regular force" in section 1, read

with the provisions of section 11 (a) that the applicant was at all

relevant times a member of the regular force.

31. Section 33 of the Constitution provides for just administrative

action in the following manner:

"33. Just administrative action -

(1)

Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2)

Everyone whose rights have been adversely affected by administrative action, has the right to be given

written reasons.

(3)

....."

32 Section 36 of the Constitution provides for a limitation of rights

contained in the Bill of Rights in the following manner:

"36. Limitation of rights -

(1) The rights in the Bill of Rights may be limited only in

terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant

factors, including -

(a) the nature of the rights;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

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(d) the relation between the limitation and its

purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in sub section (1) or in any other

provision of the Constitution, no law may limit any right entrenched in the Bill of Rights."

33 Section 3 of the Promotion of Administrative Justice Act No 3 of

2000 ("PAJA") provides for procedurally fair administrative action in

the following manner:

"3. Procedurally fair administrative action affecting any

person -

(1) Administrative action which materially and adversely

affects the rights or legitimate expectations of any person must be procedurally fair.

(2) (a) A fair administrative procedure depends on the

circumstances of each case.

(b) In order to give effect to the right to

procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1) -

(i) adequate notice of the nature and

purpose of the proposed administrative

action;

(ii) a reasonable opportunity to make

representations;

(iii) a clear statement of the administrative

action;

(iv) adequate notice of any right of review or

internal appeal, where applicable; and

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(v) adequate notice of the right to request

reasons in terms of section 5;

(3) In order to give effect to the rights to procedurally fair

administrative action, an administrator may, in his or her or its discretion, also give a person referred to in subsection (1), an opportunity to -

(a) obtain assistance and, in serious or complex

cases, legal representation;

(b) present and dispute information and argument;

and

(c) appear in person.

(4) (a) If it is reasonable and justifiable in the

circumstances, an administrator may depart from any of the requirements referred to in

subsection (2).

(b) In determining whether a departure as

contemplated in paragraph (a) is reasonable and justifiable, an administrator must take into account all relevant factors, including -

(i) the objects of the empowering provision;

(ii) the nature and purpose of, and the need

to take, the administrative action;

(iii) the likely effect of the administrative

action;

(iv) the urgency of taking the administrative

action or the urgency of the matter; and

(v) the need to promote an efficient

administration and good governance.

(5) Where an administrator is empowered by any

empowering provision to follow a procedure which is fair but different from the provisions of subsection (2),

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the administrator may act in accordance with that different procedure."

ANALYSIS:

34 Although the respondent contends that the applicant was

discharged in terms of the provisions of section 59(1) and (2) of the

Defence Act, it appears, on analysis of these sections, that section

59(1) could not have been applicable. Section 59(1) provides for

the automatic termination of the service of a member of the regular

force upon the occurrence of the events listed in subsections (a) -

(e). None of these events have occurred which means that section

59(1) is not applicable. Section 59(2) provides for a discretionary

termination ("may be terminated") in accordance with any

applicable regulations for the reasons recorded in sub paragraphs

(a) - (e).

35 It appears from the definition of "regulation" in section 1 that the

reference to regulations is a reference to regulations promulgated

in terms of the provisions of section 82. I enquired from counsel

appearing for the parties whether any of the regulations

promulgated are relevant for purposes of section 59(2) and was

informed that this is not the case. I was, however, handed a copy

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of the Defence Force's Standard Operation Procedure which, so I was informed by counsel for the applicant, is still applicable, notwithstanding the fact that it was drafted at a stage when the previous Defence Act was still in force. I shall revert to this document in due course.

36 Counsel for the applicant, correctly in my opinion, conceded that a

decision to terminate service in terms of the provisions of section 59(2) would constitute administrative action. If this is so, it follows that the aforementioned provisions of the Constitution and PAJA are applicable, which means that the decision to terminate the applicant's services must have been procedurally fair and, furthermore, that the applicant was entitled to written reasons for the decision, unless the respondent was exempted from these obligations in terms of section 36 of the Constitution and/or

section 31 and of PAJA. It means further that if the respondent did not follow the aforesaid procedure, it was incumbent upon him to show that a deviation therefrom was justified with regard to the provisions of section 36 of the Constitution and/or section 3(4) of PAJA. The importance of procedural fairness was succinctly summarised by Mokgoro J in De Lange v Smuts NO & Others [1998] ZACC 6; (1998 (3) SA 785 (CC) para 131, p834) as follows:

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"When contemplating the essential purpose of the protection afforded through the notion of procedural fairness, my sight is arrested by this fact: at heart, fair procedure is designed to prevent arbitrariness in the outcome of the decision. The time-honoured principle that no-one shall be the judge in his or her own matter and that the other side should be heard, aim towards eliminating the proscribed arbitrariness in a way that gives content to the rule of law. They reach deep down into the adjudicating process, attempting to remove bias and ignorance from it. Everyone is entitled to an impartial Judge, not because this guarantees a correct decision, but because the human arbiter, not being omniscient, should not be presented with a point of view that his or her position inherently loads. Everyone has the right to state his or her case, not because his or her version is right, and must be accepted, but because, in evaluating the cogency of any argument, the arbiter, still a fallible human being, must be informed about the points of view of both parties in order to stand any real chance of coming up with an objectively justifiable conclusion that is anything

more than chance."

37 The rationale for the furnishing of reasons is motivated as follows

in De Ville, Judicial Review of Administrative Action in South

Africa at 287 :

"The furnishing of reasons refers to the reasons an official or administrative body must provide, after it has made a decision (or whilst taking it), in order to justify such decision. Various arguments can be presented in support of the imposition of a duty on an official or body to give reasons. These are of both an instrumental and non-instrumental nature. Firstly, giving reasons is one of the fundamentals of good administration. It encourages rational and structured decision-making and minimises arbitrariness and bias. A decision-maker knows that she has to defend or justify his/her decision with reasons, is in other words less likely to act arbitrarily or mechanically. It compels him/her to properly consider the relevant statutory provisions, the grounds for taking the action, the purpose thereof, all relevant evidence and circumstances including the specific circumstances of the matter at hand, and the policy to be implemented. Secondly, it encourages open administration. Such openness is conducive to public confidence in the administrative decision-making process. Thirdly,

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it satisfies the desire on the part of an individual to know why a decision was reached and contributes towards a sense of fairness - a person adversely affected by decision knows that he/her case has at least been considered by the administration. Fourthly, if a person is furnished with reasons, it makes it easier for that person to appeal against the decision (if provided for in the statute concerned) or to make an application for review as she/he knows what the basis for the decision was. It also assists a court in reviewing administrative action. Lastly, the furnishing of reasons serves an educational purpose. If an adverse decision was taken in, for example, an application for a licence, the person concerned may in future instances be able to improve the quality of the application. The argument against the furnishing of reasons - that it will overburden the administration, that it will stifle the exercise of a discretion, that reasons cannot be furnished in all instances, that it will lead to the ex post facto fabrication of artificial reasons to justify the decision, and that it will lead to an increase in review applications - are either unconvincing or can be remedied by applying the requirement in a contextual and flexible manner, by providing for limitations on or exceptions to the general requirement and also by training the officials concerned."

38 I am in respectful agreement with the aforesaid sentiments.

39 Should an administrator fail to furnish adequate reasons, a factual

presumption will arise that the action was taken without good

reason. The onus will be on the administrator to prove that its

actions complied with the requirements of legality (De Ville supra,

para 625).

40 With these principles in mind, I turn to the facts of this case which

bear out the following:

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40.1 Prior to 16 September 2004 the applicant was involved in an incident which involved liaison with the Department of Home Affairs and which, according to his superiors, amounted to a breach of security.

40.2 The matter was discussed with the applicant whereafter he submitted a report wherein he attempted to explain and justify his conduct.

40.3 His supervisor, General Nyembe, was not satisfied with the explanation whereafter the applicant was informed in writing on 16 September 2004 that the Defence Intelligence has requested the termination of his services "because of the incident".

40.4 A request by the applicant's union that the reasons for his proposed dismissal and the authority in terms of which the steps were taken be disclosed, was met with a response that the applicant was fully aware of the reasons and circumstances that compelled Defence Intelligence to request the termination of his services. He was furthermore informed on 20 September 2005 that, should he contend

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otherwise, he is entitled to approach the office of Lieutenant General Mutau for an (oral) explanation.

40.5 A request on 23 September 2004 by the applicant's union to be furnished with written reasons for his proposed dismissal, was met on 27 September 2004 with a letter addressed to the applicant, wherein he was invited to indicate to Defence Intelligence who his appointed attorney was.

40.6 The request of ULASA on 30 November 2004 to be furnished with information pertaining to a letter from which it appeared that the applicant was to be declared redundant,

was ignored.

40.7 The applicant's reassurance on 2 December 2004 that he did not intend divulging military secrets and his request to be granted the opportunity to defend himself in an objective

tribunal, was ignored.

40.8 The applicant's attorney's request on 15 June 2005 to be furnished with written reasons for the decision to terminate

his service, was ignored.

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41 Although the applicant knew that the termination of his service was

related to the aforesaid incident with the Department of Home Affairs, he did not know on which ground or grounds as provided for in section 59(2) of the Defence Act, the respondent relied for the termination of his services. In principle sections 59(2)(b), (c) or (e) could have been applicable. As a result of this it could not have been expected of the applicant to provide sensible reasons why his service should not be terminated.

42 The conduct of the respondent cannot on any conceivable basis be

regarded as procedurally fair administrative action. It appears from the answering affidavit that the approach of the respondent was to sweep its obligations pertaining to procedurally fair administrative action under a carpet of secrecy. During argument counsel for the respondent confirmed that it was the respondent's case that, due to the secret nature of the Department in which the applicant functioned, a deviation from the normal principles was justified.

43 I do not agree with this approach. Central thereto is an assumption

that, because of the secret nature of the applicant's work, the furnishing of reasons for his intended dismissal would automatically amount to a disclosure of classified information. In my opinion this assumption is wrong. It would clearly have been

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possible for the respondent to furnish the applicant with information pertaining to his dismissal without disclosing any secrets. A starting point in this regard would have been an indication of which of the grounds provided for in section 59(2) the respondent was relying for the applicant's intended dismissal. This would have enabled the applicant to make sensible representations as to why he should not be dismissed or, should he wished to do so, to obtain further detail from the respondent. During argument counsel for the applicant submitted that section 59(2)(e) was clearly applicable, which section deals with continued employment constituting a security risk to the State. If this is the case there is no cogent reason why the applicant could not have been informed of this. Section 59(2)(e) can only be utilised if, as a fact, the continued employment of a member of the regular force constitutes a security risk to the State. It does not follow automatically that, because of the Applicant's liaison with Home Affairs, his employment thereafter constituted a security risk. If the respondent wish to rely on this ground, it was incumbent upon him to inform the applicant of this so as to enable him to make sensible representations, including the possibility of alternative measures, such as the transfer to a military department which does not deal with classified information.

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44 In my opinion the invitation to be provided with oral reasons for his

proposed dismissal provided cold comfort to the applicant. This

would result in him not being able to provide a court of review with

a record of the steps taken prior to his dismissal in order to

determine whether the administrative action was procedurally fair

as is now the case.

45 For the reasons aforesaid the failure to provide written reasons

after the decision had been taken, was in my opinion not justified.

46 It is significant that clause 11 of the respondent's operating

procedure, which deals with the procedure to be followed in the

case of an administrative dismissal, provides in part as follows:

"11. Whenever the need exists for the administrative discharge of an officer or another rank of the SANDF, the following administrative actions should be effected:

(a) ...

(b) ...

(c) The Officer Commanding must provide the member,

in writing, with the specific reasons for the intended discharge, as well as the specific measures under which the member will be discharged [sic]

(Refer to Appendix B).

(d) The Officer Commanding must then allow the

member at least ten (10) working days, in terms of the audi alterem partem rule, to provide written reasons why he should not be discharged [sic].

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(e) ...

(f) ...

(g) ...

(h) ...”

47 It appears that, relying on secrecy, the respondent has failed to follow its own internal procedure. I have already indicated that this approach was, in my opinion, not justified. Because of my view of the matter it is not necessary to deal with the applicant's allegations pertaining to an unfair labour practice.

48 The result of the aforesaid is that the application must succeed. In respect of costs the applicant, who was represented by two counsel, requested the cost of two counsel in the event of the application succeeding. Respondent submitted that the employment of two counsel was not warranted. Although this might be a borderline case, I have in the exercise of my discretion, decided to award the costs of two counsel for the following reasons :

48.1 The importance of the matter to the applicant;

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48.2 The fact that, to my knowledge, there are no reported

decisions on section 59 of the Defence Force Act;

48.3 The general complexity of review applications and the

plethora of authority that exists in this regard.

IN THE RESULT I MAKE THE FOLLOWING ORDER:

1. The decision of the respondents to discharge the applicant from

service in the South African National Defence Force, is reviewed

and set aside.

2. The respondent is ordered to restore the applicant with full rank

and benefits from date of dismissal.

3. The respondent is ordered to pay the cost of the application, such

cost to include the cost occasioned by the employment of two

counsel.

B H SWART Acting Judge

11 August 2006