Masinga and Others v Chief of the South African National Defence Force and Others (51/2021) [2022] ZASCA 1; [2022] 4 BLLR 305 (SCA); (2022) 43 ILJ 805 (SCA); [2022] 2 All SA 399 (SCA) (5 January 2022)

Masinga and Others v Chief of the South African National Defence Force and Others (51/2021) [2022] ZASCA 1; [2022] 4 BLLR 305 (SCA); (2022) 43 ILJ 805 (SCA); [2022] 2 All SA 399 (SCA) (5 January 2022)

The Supreme Court of Appeal held that the appellants' dismissal from the South African National Defence Force was lawful and occurred by operation of law under section 59(3) of the Defence Act. The court found that the appellants had absented themselves from official duty for more than 30 days without permission by refusing to attend classes, despite being physically present at the base. The jurisdictional requirements of section 59(3) were satisfied, and the audi alteram partem principle did not apply as the dismissal was not the result of an administrative decision but rather a legal consequence. The court rejected the argument that a board of inquiry under section 103(1) was required...

Citation
[2022] ZASCA 1
Parties
Appellant: William France Masinga; Appellant: Rirhandzu Joy Khosa and 33 Others; Respondent: Chief of the South African National Defence Force; Respondent: Minister of Defence and Military Veterans; Respondent: Surgeon General of the South African National Defence Force; Respondent: Secretary of Defence
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
5 January 2022
Case Number
51/2021
Procedural Posture
Civil Appeal / Appeal From the Gauteng Division of the High Court, Pretoria, Sitting as a Court of Appeal
Outcome
Appeal against the costs orders succeeds; costs orders are set aside. The remainder of the appeal is dismissed.
Judges
Petse AP, Makgoka JA, Schippers JA, Nicholls JA, Mabindla-Boqwana JA
Legal Topics
Defence Act Section 59, Deemed Dismissal, Military Discipline, Audi Alteram Partem, Board of Inquiry, Constitutional Rights
Labour Law Administrative Law Defence Act Section 59 Deemed Dismissal Military Discipline Audi Alteram Partem Board of Inquiry Constitutional Rights

Case Brief

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Parties

William France Masinga

Appellant

Rirhandzu Joy Khosa and 33 Others

Appellant

Chief of the South African National Defence Force

Respondent

Minister of Defence and Military Veterans

Respondent

Surgeon General of the South African National Defence Force

Respondent

Secretary of Defence

Respondent

Procedural Posture

Civil Appeal / Appeal From the Gauteng Division of the High Court, Pretoria, Sitting as a Court of Appeal

Legal Issues

  1. 1 Whether the appellants' dismissal from the South African National Defence Force under section 59(3) of the Defence Act was lawful.
  2. 2 Whether the jurisdictional requirements of section 59(3) of the Defence Act were satisfied.
  3. 3 Whether the appellants were entitled to a hearing before dismissal.

Ratio Decidendi

The Supreme Court of Appeal held that the appellants' dismissal from the South African National Defence Force was lawful and occurred by operation of law under section 59(3) of the Defence Act. The court found that the appellants had absented themselves from official duty for more than 30 days without permission by refusing to attend classes, despite being physically present at the base. The jurisdictional requirements of section 59(3) were satisfied, and the audi alteram partem principle did not apply as the dismissal was not the result of an administrative decision but rather a legal consequence. The court rejected the argument that a board of inquiry under section 103(1) was required...

Court Disposition

Appeal against the costs orders succeeds; costs orders are set aside. The remainder of the appeal is dismissed.

Orders

  • The appeal against the costs orders in paragraphs 1 and 2 of the order by the court a quo dated 19 June 2020 succeeds, and the costs orders are set aside.
  • Save as aforesaid, the appeal is dismissed.