Erasmus and Another v Minister of Defence and Others (1234/2017) [2017] ZAFSHC 134; [2017] 4 All SA 434 (FB) (24 August 2017)

Erasmus and Another v Minister of Defence and Others (1234/2017) [2017] ZAFSHC 134; [2017] 4 All SA 434 (FB) (24 August 2017)

The court found that the applicants failed to exhaust internal remedies as required by the Defence Act, the Military Ombud Act, and the Individual Grievances Regulations. The applicants did not challenge the lawfulness of the transfer instructions by way of review, nor did they properly lodge grievances or approach the Military Ombud. The court held that civil courts should not interfere in military matters except in exceptional cases involving clear breaches of constitutional rights. The only relief conceded by the respondents was the reconnection of water and electricity, which the court found to be an act of spoliation and made the interim order final in that respect. All other relief...

Citation
[2017] ZAFSHC 134
Parties
Applicant: Major Peter Erasmus; Applicant: Major Sarah Regina Mlambo; Respondent: Minister of Defence; Respondent: Chief of the South African Air Force; Respondent: Acting Chief Human Relations: Air Force (Col Mama); Respondent: Colonel MP Khoase – Officer Commanding, AFB Bloemspruit; Respondent: Lieutenant Colonel Thabo Motaung; Respondent: Lieutenant Colonel R Buys
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 August 2017
Case Number
1234/2017
Procedural Posture
Urgent Application / Final Determination of Rule Nisi and Interim Relief
Outcome
Application dismissed except for the finalisation of the interim order regarding reconnection of water and electricity. Costs awarded as specified.
Judges
Daffue
Legal Topics
Military Grievance Procedure, Interim Interdict, Exhaustion of Internal Remedies, Spoliation, Transfer of Personnel
Labour Law Civil Procedure Military Grievance Procedure Interim Interdict Exhaustion of Internal Remedies Spoliation Transfer of Personnel

Case Brief

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Parties

Major Peter Erasmus

Applicant

Major Sarah Regina Mlambo

Applicant

Minister of Defence

Respondent

Chief of the South African Air Force

Respondent

Acting Chief Human Relations: Air Force (Col Mama)

Respondent

Colonel MP Khoase – Officer Commanding, AFB Bloemspruit

Respondent

Lieutenant Colonel Thabo Motaung

Respondent

Lieutenant Colonel R Buys

Respondent

Procedural Posture

Urgent Application / Final Determination of Rule Nisi and Interim Relief

Legal Issues

  1. 1 Whether the applicants are entitled to remain at AFB Bloemspruit pending reconsideration of their transfer instructions.
  2. 2 Whether the applicants are entitled to interim interdictory relief against the enforcement of transfer orders.
  3. 3 Whether the applicants exhausted internal remedies before approaching the civil court.

Ratio Decidendi

The court found that the applicants failed to exhaust internal remedies as required by the Defence Act, the Military Ombud Act, and the Individual Grievances Regulations. The applicants did not challenge the lawfulness of the transfer instructions by way of review, nor did they properly lodge grievances or approach the Military Ombud. The court held that civil courts should not interfere in military matters except in exceptional cases involving clear breaches of constitutional rights. The only relief conceded by the respondents was the reconnection of water and electricity, which the court found to be an act of spoliation and made the interim order final in that respect. All other relief...

Court Disposition

Application dismissed except for the finalisation of the interim order regarding reconnection of water and electricity. Costs awarded as specified.

Orders

  • Paragraph 6.1 of the rule nisi issued on 10 March 2017 is made final.
  • Save for the order granted in paragraph 1, the rule nisi is discharged and the application is dismissed.