Matross v Minister of Defence and Military Veterans and Another (36675/2016) [2018] ZAGPPHC 389 (24 May 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

Case Number: 36675/2016

24/5/2018

In the matter between:

MADODA MATROSS

Applicant

And

MINISTER OF DEFENCE AND MILITARY VETERANS First Respondent

THE CHIEF OF THE SOUTH AFRICAN

NATIONAL DEFENCE FORCE Second Respondent

CHAIRPERSON OF THE AUDIT COMPLAINTS BOARD,

MAJOR GENERAL M.E. MASHOALA N.O. Third Respondent

JUDGMENT

JANSE VAN NIEUWENHUIZEN J

BACKGROUND

[1] The applicant joined the South African National Defence Force ("SANDF") on 3 June 1994, through the integration of various non-statutory forces that existed inside and outside the Republic of South Africa. The applicant was appointed as a corporal.

[2] The applicant, for various reasons, did not agree with his appointment to the rank of corporal and maintained that he should have been appointed as a major.

[3] The applicant duly exhausted all internal remedies to have his rank reviewed and corrected. The applicant was partially successful, in that he, during 2011, was re-ranked to the rank of major. The aforesaid decision was conveyed to the applicant in a letter dated 25 March 2011.

[4] The appointment was, however, not with effect from 3 June 1994, but with effect from 1 April 2003. No cogent reasons were given for the aforesaid decision. The applicant being dissatisfied with this state of affairs, launched a review application in 2012.

FIRST REVIEW APPLICATION

[5] During the hearing of the first review application, it became apparent that the respondents' record of the various proceedings in respect of the applicant's grievance is almost non-existent.

[6] In view of the aforesaid, Barn AJ (as he then was) made the following order: on 2 October 2013:

"1. The matter is referred back to the respondents for reconsideration, which reconsideration should include the appointment of the applicant in the rank of major in 1994 and all his subsequent promotions to more senior ranks.

2. The respondents are ordered to attend to the matter and reconsider the applicant's complaints within 30 days of the date of this order.

3. The respondents are ordered to inform the applicant in writing of the outcome of the reconsideration and the reasons therefore within 15 days after the reconsideration of the matter.

4. The respondents are ordered to keep proper record of all the proceedings concerning the applicant.

5. The respondents are ordered to pay the applicant's costs on the scale as between attorney and own client"

[7] The respondents did not comply with the time periods contained in the order and the applicant had to launch contempt of court proceedings

to ensure compliance therewith.

COMPLIANCE WITH ORDER OF BAM AJ

[8] The second respondent eventually established an Audit of Complaints Board ("the Board") to give effect to the order of Barn AJ.

[9] Subsequent to the establishment of the Board and on or about 3 July 2015 the applicant's attorneys of record received an e-mail from the offices of the State Attorney. The relevant portion of the e-mail reads as follows:

''Kindly note that the Board will be sitting on the 06 July 2015 at 13:30 to inform Matross of the Boards Recommendations." (own emphasis)

[10] The events that unfolded on 6 July 2015 are set out in the founding affidavit as follows:

"44.6 Ms J Jenkins of Griesel Breytenbach Attorneys accompanied me and attended the meeting on the 6th of July 2015.

44.7 It soon, after the meeting started, became apparent to me that the purpose of the meeting was not to inform me of the Audit Complaints

Board recommendation. In this regard I refer the Honourable Court to the contents on pages 3 to 5 of annexure ''MM1.1" under

paragraph 8 which is a summary of the proceedings of 6 July 2015.

44.8 Contrary to my understanding that it was a meeting to inform me of its recommendation, the members of the Audit Complaints Board started interrogating me. I was not advised that this was the purpose of the meeting. Neither was I provided with any agenda and/or any indication in advance that I would be interrogated and that I would be required to provide certain information and/or answer to questions of members of the Board

44.9 My attorneys were also not advised that the purpose of the meeting was to interrogate me.

44.10 I was questioned and interrogated about information regarding certificates, courses and training which I underwent prior to the integration in 1994.

44.11 I found this. extremely unfair and disturbing considering that this information has been in the DoD's possession since 1994 and I felt that it was unbecoming of the Board to raise these questions where I was never notified in advance that it would be raised It further became apparent to me that it was implied by the Board that I did not attend all the required courses and that the Board was questioning the correctness of my information. I deny the insinuation made by members of the Board regarding the courses I attended."

[11] The Board provided a written report on 4 November 2015, in which the following recommendation is made:

''It is recommended by the Audits of Complaints Board the Mr Matross’s appointment as a Corporal during integration (1994) is upheld as well as his position as Level 9 (FMD) and subsequently Level 10 after resolution."

PRESENT REVIEW APPLICATION

[12] In view of the aforesaid facts, the applicant launched the present review application. The applicant relies on the following grounds of review:

"REVIEW:

53. I submit that the administrative acts described fall to be reviewed and set aside in terms of section 6(2) of PAJA because:

53.1.1 The DoD was biased or reasonable suspected to be biased - Section 6(2)(a)(iii),·

53.1.2 The administrative action was procedurally unfair - Section 6(2)(c) of PAJA;

53.1.3 The DoD has ulterior purposes or motive - Section 6(2)(e)(ii) of PAJA;

53.1.4 The administrative action was taken in bad faith - Section 6(2)(e)(v) of PAJA;

53.1.5 The administrative action was taken arbitrarily or capriciously - Section 6(2)(e)(vi) of PAJA;

53.1.6 The administrative decision was not rationally connected to the information before the administrator - Section 6(2)(f)(ii) of PAJA;

53.1.7 The administrative decision that was taken by the DoD was so unreasonable that no reasonable person should have so exercised the power or performed the function - Section 6(2)(h) of PAJA;

53.1.8 The administrative action taken by the DoD was unconstitutional and unlawful - Section 6(2)(i) of PAJA.

54. From what is stated above, my experience, my appointment, the unilateral decision without furnishing me with reasons and/or the opportunity to respond or to appeal squarely places the decision by the Respondent within the ambit of the sections mentioned herein above."

PROMOTION OF ADMINISTRATIVE JUSTICE ACT, NO 3 OF 2000 (PAJA)

[13] In view of the e-mail from the State Attorney's offices referred to supra advising the applicant that he should attend the Board meeting to be informed of the Board's recommendation and the documents included in the record filed by the respondents, the Board's interrogation of the applicant at the meeting is astounding.

[14] The record includes a detailed report dated September 2009 in respect of the applicant's previous rank review. By way of example the following is stated in the report:

“70. The audit task team after reading a file from the Ministry of Defence with regard to 94989258CS M Matross redress of wrongs, wrt rank review. The audit task team audited the file of 94989258CS M Matross and interviewed him giving him the opportunity to state his case as required by provisions of Section 3 of the Promotion of Administrative Justice Act 3 of 2000. The audit task team made the following observations:

….”

and

72. In view of the above the audit task team unanimously came to the conclusion that the member was prejudiced at integration and that the member should have been ranked at least at the level of a Major. Therefore, the audit task team having taken note of present existing levels in the FMD and having considered the organizational interest and recommend that of the member be given the rank of a Lt Col, equivalent to level 10 exgratia in line with the provisions of the Plenary Defence Staff Council decision as stated in bulletin no. 09/01 dated 09 February 2001. Further the audit task team is not an appeal mechanism. (MK)'

[15] Be that as it may, the applicant was clearly not informed nor given an opportunity to properly prepare for the process envisaged by the Board on 6 July 2015.

[16] The administrative action taken by the Board on 6 July 2015, was manifestly procedurally unfair as envisaged in section 6(2)(c) of PAJA. Section 3(1) and (2) of PAJA prescribes the process to be followed in order to ensure procedural fairness, to wit:

"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

(v) adequate notice of the right to request reasons in

- terms of section 5."

[17] Mr Mokhari SC, counsel for the respondents, to his credit conceded that the process followed by the Board was procedurally unfair. In the premises, the applicant is entitled to an order reviewing and setting aside the Board's decision.

APPROPRIATE REMEDY

[18] Section 8 of PAJA deals with the orders a court, having set aside a decision in terms of section 6(1), may make.

[19] Mr van der Westhuizen, counsel for the applicant, submitted that the present matter is exceptional as envisaged in section 8(1)(c)(ii) and prayed for an order substituting the decision made by the Board.

[20] Although the Board dismally failed to follow a fair procedure, I am of the view that the present matter, at this stage at least, does not justify an order substituting the decision made by the Board.

[21] It is disconcerting that the matter has dragged on from 2012 when the first review application was launched. I, however, trust that the Board, with the able guidance of the State Attorney, will speedily attend to the rank review of the applicant.

[22] Any further litigation should be discouraged as being both costly and a further assault on the state purse.

ORDER

[23] In the premises, I grant the following order:

1. The decision of the First Respondent, alternatively the Second Respondent, to approve the recommendation of the Audit Complaints

Board dated 4 November 2015 to uphold the appointment of the Applicant as a corporal during integration, is reviewed and set aside.

2. The matter is referred back to the Audit Complaints Board for reconsideration, which reconsideration should include the appointment

of the Applicant in the rank of major during integration and all his subsequent promotions to more senior ranks.

3. The Third Respondent in his capacity as chairperson of the Audit Complaints Board, is directed to ensure:

3.1 compliance with the statutory requirement of procedural fairness as envisaged in section 3(2) of the Promotion of Administrative Justice Act, No 3 of 2000;

3.2 that due regard is had to the documents contained in the record filed by the Respondents herein.

4. The Respondents are ordered to attend to the matter and reconsider the Applicant's complaints within 30 days of the date of this order.

5. The Respondents are ordered to inform the Applicant in writing of the outcome of the reconsideration and the reasons therefore within 15 days after the reconsideration of the matter.

6. The Respondents are ordered to keep proper records of all the proceedings concerning the Applicant.

7. The Respondents are ordered to pay the costs of the application.

JANSE VAN NIEUWENHUIZEN J

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE HEARD

4th of May 2018

JUDGMENT DELIVERED 24th of May 2018

APPEARANCES

Counsel for the Applicant: Advocate G.L. Van der Westhuizen

Instructed by:

Griesel & Breytenbach Attorneys

(012 343 2407)

Ref: Mr Griesel/6832/JJ

Counsel for the Respondents: Advocate W.R. Mokhari SC

and Advocate P Managa

Instructed by:

The State Attorneys, Pretoria

(012 309 1533)

Ref: 8521/14/278/gk (MS P Mabasa)

Ref: 8251/2014/z7B/TC LETHOLE