Minister of Defence and Others v South African National Defence Union and Another (514/2013) [2014] ZASCA 102; 2014 (6) SA 269 (SCA); [2014] 4 All SA 441 (SCA) (28 August 2014)

Minister of Defence and Others v South African National Defence Union and Another (514/2013) [2014] ZASCA 102; 2014 (6) SA 269 (SCA); [2014] 4 All SA 441 (SCA) (28 August 2014)

The Supreme Court of Appeal held that s59(2)(e) of the Defence Act does not require the promulgation of regulations as a jurisdictional fact for the exercise of the power to terminate service; the phrase 'any applicable regulations' means that if regulations exist, they must be followed, but their absence does not preclude action. However, the procedure adopted by the SANDF for the administrative discharge of the soldiers was found to be unfair and unlawful. The charges were unclear and contradictory, the reasons for the alleged security risk were not disclosed, and the time afforded for representations was manifestly inadequate, especially considering the soldiers' right to union...

Citation
[2014] ZASCA 102
Parties
Appellant: Minister of Defence; Appellant: Secretary for Defence; Appellant: Chief of the South African National Defence Force; Respondent: South African National Defence Union; Respondent: Lyndon Eric Fredericks
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 August 2014
Case Number
514/2013
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Brand, Maya, Wallis, Saldulker, Schoeman
Legal Topics
Disciplinary Procedure, Fair Labour Practices, Administrative Action, Security Risk Termination, Statutory Interpretation
Labour Law Administrative Law Disciplinary Procedure Fair Labour Practices Administrative Action Security Risk Termination Statutory Interpretation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 14 Party arguments 2
Sign in to unlock

Parties

Minister of Defence

Appellant

Secretary for Defence

Appellant

Chief of the South African National Defence Force

Appellant

South African National Defence Union

Respondent

Lyndon Eric Fredericks

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Whether the absence of regulations under s59(2)(e) of the Defence Act precludes disciplinary proceedings against soldiers.
  2. 2 Whether the procedure adopted by the SANDF for administrative discharge was fair and lawful.
  3. 3 Whether the conduct of the soldiers constituted a security risk to the State justifying termination under s59(2)(e).

Ratio Decidendi

The Supreme Court of Appeal held that s59(2)(e) of the Defence Act does not require the promulgation of regulations as a jurisdictional fact for the exercise of the power to terminate service; the phrase 'any applicable regulations' means that if regulations exist, they must be followed, but their absence does not preclude action. However, the procedure adopted by the SANDF for the administrative discharge of the soldiers was found to be unfair and unlawful. The charges were unclear and contradictory, the reasons for the alleged security risk were not disclosed, and the time afforded for representations was manifestly inadequate, especially considering the soldiers' right to union...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, such costs to include those consequent upon the employment of two counsel.