South Africa Case Law

Masinga and Others v Chief of the South African National Defence Force and Others (51/2021)

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)

Court

Supreme Court of Appeal

Case number

51/2021

Judges

Petse AP, Makgoka JA, Schippers JA, Nicholls JA, Mabindla-Boqwana JA

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 conseq…

Source excerpt

• Defence Act Section 59
• Deemed Dismissal
• Military Discipline
• Audi Alteram Partem
• Board Of Inquiry
• Constitutional Rights

Chief of the South African National Defence Force v Masinga and Others (A336/2019, 27234/2019)

Chief of the South African National Defence Force v Masinga and Others (A336/2019, 27234/2019) [2020] ZAGPPHC 238 (19 June 2020)

Court

North Gauteng High Court, Pretoria

Case number

A336/2019, 27234/2019

Judges

Mlambo JP, Francis J, Hughes J

The Full Court held that the termination of the respondents' services was effected by operation of law under section 59(3) of the Defence Act, not by an administrative decision, and therefore was not susceptible to review. The jurisdictional requirements for dismissal under section 59(3) were met, as the respondents were absent without permission for more than 30 days. The court found that the operative date of dismissal was 26 March 2019, when the decision was communicated to the respondents, not 25 February 2019. The requirement for a board of inquiry under section 103(1) was misapplied by…

Source excerpt

• Defence Act Section 59
• Defence Act Section 103
• Deeming Provision
• Military Dismissal
• Review Of Administrative Action

Mogapi v Minister of Defence and Others (8961/2013)

Mogapi v Minister of Defence and Others (8961/2013) [2015] ZAGPPHC 112 (9 March 2015)

Court

North Gauteng High Court, Pretoria

Case number

8961/2013

Judge

C Pretorius

The applicant was absent from duty for more than 30 days without permission, and the discharge occurred by operation of law under section 59(3) of the Defence Act. The calculation of days absent is governed by section 4 of the Interpretation Act, which does not exclude weekends unless they are public holidays. The applicant failed to provide sufficient evidence of good cause for his absence, and the affidavits supporting his explanation were only submitted in reply, diminishing their weight. There was no administrative decision to dismiss the applicant; the discharge was automatic under the s…

Source excerpt

• Administrative Discharge
• Absence Without Leave
• Defence Act Section 59
• Reinstatement
• Interpretation Of Statutes

Mosiane v Minister of Defence and Others (35674/06, 36618/07)

Mosiane v Minister of Defence and Others (35674/06, 36618/07) [2008] ZAGPHC 335 (27 October 2008)

Court

High Courts - Gauteng

Case number

35674/06, 36618/07

Judge

B.R. Southwood

The High Court held that the applicant’s dismissal occurred by operation of law under section 59(3) of the Defence Act after a continuous absence without leave.

• Dismissal By Operation Of Law
• Absence Without Leave
• Defence Act Section 59
• Review Of Administrative Action
• Declaratory Relief
• Costs On Withdrawal