Case  CCT 359/22
[2024] ZACC 17

Hearing Date: 06 February 2024 

Judgement Date: 21 August 2024

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tomorrow, the 21st of August 2024 the Constitutional Court will hand down its judgment in an application for leave to appeal that relates to a dispute that has been dragging on for over ten years between Mr Molefi Jonas Mamasedi and the South African National Defence Force. Mr Molefi Jonas Mamasedi applied to the Constitutional Court for leave to appeal against a judgment and order of the Gauteng Division of the High Court in terms of which the High Court refused to order his reinstatement in the Regular Force of the South African National Defence Force. After the SANDF regarded him as having been dismissed or discharged as contemplated in section 59(3) of the Defence Act, 2002 under the circumstances set out below.

Mr Mamasedi was a member of the Regular Force of the SANDF in 2011. Section 59(3) of the National Defence Act, 2002, which applied to all members of the Regular Force including Mr Mamasedi, provided that, if a member of the Regular Force absented himself from official duty without his or her commanding officer’s permission for a period exceeding 30 days he or she must be regarded as having been dismissed if he or she is an officer, or, discharged if he or she is of any other rank. Such a dismissal or discharge would be with effect from the date immediately following the member’s last day of attendance at his or her place of duty or the last day of his or her official leave.

On 29 November 2011 Mr Mamasedi did not turn up for duty. He did not have the permission of his commanding officer to absent himself from duty. He never returned to duty until 3 January 2012. That was a period of more than 30 calendar days. A Board of Inquiry was established in terms of the Defence Act to establish the circumstances surrounding Mr Mamasedi’s absence from work. This was the first Board of Inquiry. The applicant’s explanation for his absence from duty was that he was kidnapped and taken to initiation school and kept there against his will. However, his father’s version did not support or corroborate the applicant’s version that he had been taken to the initiation school against his will.

The first Board of Inquiry supported the discharge of Mr Mamasedi and said that the discharge should remain in place with effect from 29 November 2011. It recommended that Mr Mamasedi was to be paid all his pension contributions plus investment growth due to him.

The Chief of Defence Force and, the Chief of Army accepted the recommendations of the first Board of Inquiry. That meant that they maintained that Mr Mamasedi had to be regarded as discharged in terms of section 59(3). Mr Mamasedi challenged the findings and recommendations of the first Board in a review application in the Gauteng Division of the High Court. That review application was successful. Wenzel AJ found that the Board had failed to afford Mr Mamasedi procedural fairness and ordered his reinstatement. The SANDF appealed to the Supreme Court of Appeal which upheld the appeal against the order of reinstatement but dismissed the appeal in respect of the finding that the first Board of Inquiry had failed to afford Mr Mamasedi procedural fairness.

Subsequent to the Supreme Court of Appeal’s judgment, the SANDF set up a second Board of Inquiry in 2018. That Board made certain findings against Mr Mamasedi including that he had been absent from official duty without leave. The second Board of Inquiry made the same recommendations that the first Board had made. Effectively those were that the discharge from duty in terms of section 59(3) should continue and he should be paid all his pension contributions.

After the second Board of Inquiry, Mr Mamasedi approached the High Court again to challenge his being regarded as having been dismissed or discharged and to seek his reinstatement. In his application Mr Mamasedi pointed out that he only worked five days in a week, namely, Monday to Friday and did not work on Saturdays, Sundays and on public holidays. He said that, if those days on which he was not obliged to work were excluded from the 30 days contemplated by section 59(3) of the Defence Act, he had not absented himself from official duty for more than 30 days. If this contention was correct, then section 59(3) had not been triggered and, therefore, Mr Mamasedi should not have been regarded as discharged.

The High Court once again found that the second Board had treated Mr Mamasedi procedurally unfairly but the High Court, per Kollapen J, refused to order his reinstatement. Mr Mamasedi applied to the Supreme Court of Appeal for leave to appeal against the judgment and order of the High Court. The Supreme Court of Appeal refused leave. He applied to the President of the Supreme Court of Appeal for the reconsideration of the matter but that application, too, was refused.

After the adverse outcome in the Supreme Court of Appeal, Mr Mamasedi applied to the Constitutional Court for leave to appeal against effectively the decision of the High Court not to order his reinstatement.

In the Constitutional Court the issue between the parties was simply whether the 30 days referred to in section 59(3) refers to calendar days irrespective of whether Mr Mamasedi was obliged to work on all those days or whether the 30 days referred only to working days. SANDF maintained that the 30 days was a reference to 30 calendar days irrespective of whether the member was or was not obliged to be on official duty. Mr Mamasedi contends that the 30 days can only refer to 30 days on which a member was obliged to work. If the contention advanced by Mr Mamasedi is upheld, it will probably mean that he was never discharged in the first place and the Court may require that he be paid backpay for the period 3 January 2012 to date. If the SANDF’s contention is upheld, it will mean that Mr Mamasedi was correctly regarded as having been dismissed or discharged. In that case the Court may have to consider whether the decision of the SANDF not to reinstate Mr Mamasedi is reviewable.

The Full judgment  here