Mahlangu and Another v Minister of Defence and Military Veterans and Another (54573/18) [2019] ZAGPPHC 418 (5 September 2019)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

CASE NO.: 54573/18

5/9/2019

In the matter between:

MAHLANGU, KHOHLIWE ELIJAH First

Applicant

BUSHULA, ARNOLD NELISILE Second

Applicant

and

THE MINISTER OF DEFENCE AND MILITARY VETERANS First

Respondent

CHIEF DIRECTOR: LIAISON &

STAKEHOLDER

Second Respondent

MANAGEMENT (MINISTRY OF DEFENCE0

JUDGMENT

VAN DER WESTHUIZEN, J

[1] The applicants seek a declarator that certain Reserve Force Wages are due and payable and ancillary relief thereto.

[2] The applicants appeared in person and Mr Mahlangu, the first applicant, made submissions on behalf of both the applicants. The second applicant confirmed and endorsed the submissions made by Mr Mahlangu.

[3] Mr Lupuwana appeared on behalf of the respondents.

[4] The respondents oppose the relief sought and have raised a number of defences, inter alia that this application is premature in that the available internal grievance procedures have not been exhausted and further that none of the requirements for a declarator have been met.

[5] In respect of the defence of the premature institution of this application, it is

submitted on behalf of the respondents that section 61 of the Defence Act, 42 of 2002 (the Act), read with Regulation 17 of the Individual Grievances Regulations to the Act, applies. That section provides that all internal remedies are to be exhausted prior to the seeking of external remedies.

[6] It is further submitted on behalf to the respondents that the claim to non-payment of salaries is an aspect that falls within the definition of a grievance. Hence, it is submitted that the seeking of a declarator prior to exhausting the internal grievance procedures, non-suits the applicants. In the present instance it is not required to deal with that issue in view of the approach to be taken in this judgment.

[7] In terms of the provisions of section 21(1)(c) of the Superior Courts Act, 10 of 2013, the High Court may grant a declaratory order without any consequential relief sought. That subsection provides as follows:

“21(1) A Division has jurisdiction over all persons resident or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance, and has the power –

(a) …

(b) …

(c) in its discretion, and at the instance of any interested person, to enquire into and

determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination.

(2) …

(3) …”

[8] Under common law, the High Court did not have the jurisdiction to grant declaratory relief.[1] Such power was conferred upon the High Court by the provisions of s 102 of the General Law Amendment Act, 46 of 1935. Currently it is governed by s 21 of the Superior Courts Act.

(a) The court must be satisfied that the applicant has an interest in an existing, future or

contingent right or obligation; and

(b) once a court is so satisfied, it must be considered whether or not the order should be granted.

[10] The interest that the applicant should have, is at least akin to the interest that a party has to intervene in proceedings in the High Court, i.e. have a direct and substantial interest in the subject matter.[3]

[11] The contingent right or obligation is that which falls within the narrow meaning of “conditional”, i.e. the opposite of “vested”.[4]

[12] In Ex parte Nel[5] the Appellate Division, as it was then known, held that an existing dispute was not required in respect of the interest, however, the decision is to be binding upon the parties, i.e. res iudicata as between the parties.[6]

[13] When considering the grant of the declaratory relief, the court will not grant such order where the issue raised before it, is hypothetical, abstract and academic, or where the legal position is clearly defined by statute.[7]

[14] Following on from the foregoing, the issues that require determination are:

(a) Whether the applicant has a direct and substantial interest in the subject matter;

(b) Whether the applicant has an existing, future or contingent right or obligation;

(c) Whether the legal position is clearly defined by statute.

[15] When dealing with the aforesaid requirements, it will be prudent to deal with the issues in the reverse order in view of the content of the declaratory relief sought.

[16] It would be useful to provide some background. The applicants are members of the Reserve Force in the South African National Defence Force. During April 2016, the applicants received call-up instructions to report for duty. During the period of their call-up, disciplinary measures were instituted against them following on a series of misconduct and/or poor performance. Their call-up was terminated as a result thereof.

[17] The termination of their respective call-up moved the applicants to follow the grievance process and lodged a complaint with the Office of the Military Ombudsman who recommended that their call-up instructions were to be re-instated on the grounds that proper procedures were not followed when same were terminated. On 25 January 2017 the applicants’

call-up instructions were re-instated with effect from 1 February 2017 for a period of three months, i.e. until 30 April 2017.

[18] The re-instated call-up instructions were qualified in the sense that it was made known that

from 1 May 2017 they would not be considered for a call-up instruction, though they would remain on the data base of the Reserve

Force as members of the Reserve Force.

[19] That fact moved the applicants to launch a review application to the High Court in respect of what they termed a termination of their employment and utilisation in the Reserve Force. That review application was heard by this Court and judgment handed down on 1 June 2018.

[20] This court hearing the review application did not pronounce upon the events pertaining to the 2016 call-up instructions that were discontinued presumably because that matters was adequately dealt with by the Military Ombudsman and put to rest by the January 2017 call-up instructions.

[21] What the review court pronounced upon, related to the qualification attached to the January 2017 call-up instructions, namely that the applicant would in future not be considered for deployment, although remaining on the Reserve Force data base.

[22] In that respect the review court held that the said qualification was tantamount to unlawful

termination of their appointments in the Reserve Force. The review court ordered that the applicants be reinstated to their

positions into the data base of the Reserve Force to be called up as and when their services are required, on a rotational basis, until the expiry of their five-year contract.

[23] The present application relates to the salaries and wages not received during the period that they were not called-up.

[24] It appears from the founding affidavit that the applicants do not appreciate the basis of call-up

of members of the Reserve Force. It is apparent that they are of the view that having concluded a five-year contract, they are effectively called-up for that five-year period and thus entitled to receive remuneration on a continued basis.

[25] On a purposive interpretation of the judgment of the review court, the applicants are eligible for call-up and must be called-up as per their contract of employment, but at the discretion of the GOC, in terms of section 53(3A) of the Act and the Regulations for the Reserve Force.

[26] The respondents explain in their answering affidavit that, unlike Permanent Force members who tender their services on a month to month basis throughout their period of employment, contracts of Reserve Force members do not entitle them to full time continuous utilisation, i.e. for every day of the five-year period. Furthermore, it is stated that unlike permanent employees of the Regular Force, there is no guarantee that members of the Reserve Force would be utilised at any given time. It depends on the need for utilisation and financial constraints. Members of the Reserve Force that are called-up, are only remunerated for actual work or service performed.

[27] It follows from the foregoing, that the applicants are not employed on a full-time basis during the whole period of the five-year contract period, nor are they remunerated for any period of non-utilisation.

[28] The respondents state that the GOC has a discretion to shorten or cancel a call-up instruction should the need for such services become non-existent, or when the budget no longer allows for such call-up.

[29] Furthermore, the respondents state that remuneration is determined according to rank and not office. It is further within the discretion of the GOC to deploy a lower rank in a posting, although that post requires a specific rank should budgetary demands so determine. It follows that either of the applicants could be replaced by a lower rank than their rank and that such lower rank Reserve Force member receives the call-up instruction for a particular period.

[30] It follows from the foregoing that the applicants’ views are misplaced in their demand for a call-up for the full five-year period of the contract and for payment in respect of periods for which they have not received call-up instructions.

[31] Applying the principles in respect of a declarator, and considering the requirements in the reverse order, the following is relevant in the present instance:

(a) The Defence Act read with the Regulations for the Reserve force clearly stipulate when members of the Reserve Force are eligible to and may receive call-up instructions;

(b) The Act and Regulations clearly determine the remuneration to be received on deployment in terms of the call-up instruction;

(c) The legal position is clear and unambiguous in respect of (a) and (b) above as defined by the Act and the Regulations for the Reserve Force;

(d) The applicants have no existing, future or contingent right or obligation in respect of

remuneration for periods not called-up and not deployed;

(e) Furthermore, the applicants have no direct and substantial interest in the subject matter for which the declarator is sought.

[32] It follows that the application cannot succeed.

I grant the following order:

(a) The application is dismissed;

(b) The applicants are directed to pay the costs.

C J VAN DER WESTHUIZEN

JUDGE OF THE HIGH COURT

On behalf of Applicants: Mr K E Mahlangu

Instructed by:

In person

On behalf of Respondents: Mr T Lupuwana

Instructed by:

The State Attorney

[1] Geldenhuys and Neethling v Beuthin 1918 AD 426

[2] Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005(6) SA 205 (SCA) at 213E-G

[3] Milani et al v SA Medical and Dental Council et al 1990(1) SA 899 (T) at 902G

[4] Family Benefit Friendly Society v Commissioner for Inland Revenue et al 1995(4) SA 120 ((T) at 125B

[5] 1963(1) SA 754 (A)

[6] Ex parte Attorney-General, Witwatersrand Local Division 1997(2) SA 778 (W) at 783F

[7] Ex parte Noriskin 1962(1) SA 856 (D)