Minister of Defence and Another v Mbambo (A358/2015) [2017] ZAGPPHC 318 (24 April 2017)

Minister of Defence and Another v Mbambo (A358/2015) [2017] ZAGPPHC 318 (24 April 2017)

The appeal was upheld because the respondent failed to provide a satisfactory explanation for the eleven-year delay in bringing the review application, and the delay was prejudicial to the appellants and others in the SANDF. The respondent's explanations were vague, unsubstantiated, and largely based on hearsay, with documentary support lacking evidential value. On the merits, the court a quo erred in its approach to the burden of proof and in finding that no preliminary investigation was held, as sworn testimony indicated otherwise. The absence of military assessors did not render the trial unfair, and the respondent did not establish that he was deprived of any right or that the...

Citation
[2017] ZAGPPHC 318
Parties
Appellant: Minister of Defence; Appellant: Honourable Justice Mr Morne Botha; Respondent: Power Mandla Mbambo
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
24 April 2017
Case Number
A358/2015
Procedural Posture
Civil Appeal / Appeal Against Judgment and Order Granting Condonation and Upholding Review Application
Outcome
Appeal upheld; application for condonation dismissed.
Judges
Ranchod, A.A Louw, Bam
Legal Topics
Condonation for Late Review, Military Disciplinary Proceedings, Onus in Motion Proceedings, Appointment of Assessors, Fair Trial Rights
Administrative Law Civil Procedure Condonation for Late Review Military Disciplinary Proceedings Onus in Motion Proceedings Appointment of Assessors Fair Trial Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Minister of Defence

Appellant

Honourable Justice Mr Morne Botha

Appellant

Power Mandla Mbambo

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment and Order Granting Condonation and Upholding Review Application

Legal Issues

  1. 1 Whether condonation should be granted for the late institution of the review application eleven years after the internal remedy was exhausted.
  2. 2 Whether a preliminary investigation as required by the Military Disciplinary Supplementary Measures Act was held prior to the respondent's military trial.
  3. 3 Whether the absence of military assessors at the respondent's trial rendered the proceedings unfair or unlawful.

Ratio Decidendi

The appeal was upheld because the respondent failed to provide a satisfactory explanation for the eleven-year delay in bringing the review application, and the delay was prejudicial to the appellants and others in the SANDF. The respondent's explanations were vague, unsubstantiated, and largely based on hearsay, with documentary support lacking evidential value. On the merits, the court a quo erred in its approach to the burden of proof and in finding that no preliminary investigation was held, as sworn testimony indicated otherwise. The absence of military assessors did not render the trial unfair, and the respondent did not establish that he was deprived of any right or that the...

Court Disposition

Appeal upheld; application for condonation dismissed.

Orders

  • The appeal is upheld with costs, including the costs of two counsel and the costs of the application for leave to appeal.
  • The order of the court a quo is set aside and replaced with: 'The application for condonation is dismissed. There is no order as to costs.'