Founding affidavit on behalf of the Minister of Defence

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)

Case no: 55001/2009

In the matter between:

THE MINISTER OF DEFENCE THE SECRETARY FOR DEFENCE THE CHIEF OF THE SANDF	First Applicant Second Applicant Third Applicant
and
SOUTH AFRICAN DEFENCE UNION MOSIMA MONAGENT PAIN FREDERIC MOSIMA	First Respondent Second Respondent

FOUNDING AFFIDAVIT

I, the undersigned

BARNABAS FANOZI XULU

do hereby make oath and state as follows:

1. I am the attorney of record for the first applicant and practice under XULU LIVERSAGE INC. I am authorised to bring this application and depose to this affidavit on behalf of the applicants. The facts deposed to are within my personal knowledge and belief and are true and correct.

Parties

1. The first applicant is the Minister of Defence of the Republic of South Africa, the Honourable Ms Lindiwe Sisulu (“the Minister”), a member of the executive appointed as such by the President of Republic of South Africa responsible for defence matters in terms of section 201(1) of the Constitution, care of the Ministry of Defence, 5^th Floor, Armscor Building, Nossob Street, Erasmuskloof, Pretoria, Gauteng.
2. The second applicant is the Secretary of Defence, Ms Nompumelelo Mpofu. She is appointed by the President of the Republic of South Africa in terms of section 7 of the Defence Act No. 42 of 2002 and conducts business from 4^th Floor, Armscor Building, Nossob Street, Erasmuskloof, Pretoria, Gauteng.
3. The third applicant is the Chief of the South African Defence Force, General GN Ngwenya, appointed in terms of section 13 of the Defence Act of 42 of 2002 and conducts business from 4^th Floor, Armscor Building, Nossob Street, Erasmuskloof, Pretoria, Gauteng.
4. The first respondent is SANDU, a military trade union, registered in terms of the provisions of Regulation 67(2) of the General Regulations for the South African Defence Force and Reserve, published in the Government Gazette R998, dated 20 August 1999.
5. The second respondent is Mosima Monageng Paine Frederick Mosima (Mosima), an adult male who holds the rank of sergeant in the SANDF. Mosima is a member of SANDU and its current President.

NATURE OF APPLICATION AND RELIEF SOUGHT

1. This is an application in terms of Rule 42(2) read with Rule 42(1)(b) of the Uniform Rules of Court for a rescission or variation of the judgement and orders. The basis for the application is that the judgement and related order is patently wrong.
2. In the event that the Court dismisses the application in its entirety or upholds it partially, we seek leave to appeal both the judgement and order to the Supreme Court of Appeal.

GROUNDS FOR APPLICATION UNDER RULE 42

1. In page 7 of the Judgement the Court found that it “was never at any stage, communicated to the applicants in any way whatsoever how the march organised by SANDU posed a risk to national security to such an extent that it caused the respondent to adopt the novel approach to address the problem. There is no explanation to justify the procedure that had been adopted by the respondents or reasons set out why the principles of natural justice and procedural fairness could not be applied in the particular circumstances. This approach is even strange if it taken into consideration that the letter/notice was given to the members 5 days after they had allegedly threatened national security.”
2. 10. In page 13 of the judgement, the Honourable Judge held that “The Court could not find any reference in the respondents’ papers as to how national security was threatened by the conduct of the members.” We respectfully submit that the Court itself suggest that it was oblivious of the pleadings filed by Respondents and the key affidavits from Ngoma, Shilubane, Mmutle and Ngwenya.  These persons are recognized security and military experts and their affidavits clearly buttressed SANDF’s case that national security was imperilled by the actions of SANDU members. It cannot be thought by an independent observer that the judge has applied an objective mind to the issues in the case.   Since the court erroneously asserts that affidavits by security experts that were actually filed in court constitute no “reference” as to how national security was threatened, the applicants are left with a firm conviction that the judge simply did not read these affidavits and never applied her mind to this aspect of the case at all.  It is not clear how the Judge weighed and evaluated the record evidence concerning Respondents’ national security claims for purposes of deciding this case.  This is not a situation where the court is merely asserting that the evidence is unconvincing or paper-thin-  it is one where a judge erroneously deny the very existence of the evidence submitted. In this case, the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence of risk to state security by the court.  This court’s own statement that it could not find “any reference in the respondents’ papers as to how national security was threatened” by the conduct of SANDU members gives the unfortunate impression of the Court having selectively denied the existence of evidence, discounted the said evidence or systematically refused to read and evaluate the affidavits presented.  We respectfully submit that the proceedings indicate a lack of appreciation of relevant evidence, it becomes a reviewable question of law as to whether this lack precluded the trial judge from effectively interpreting and applying the law. 
3. 11. This Court committed a patent error by ignoring explicit threats of violence by SANDU and statements, which indicated that it expected its members to be armed and to fight back in future confrontations with the police. General Ngwenya’s   supplementary affidavit on page 168 of the record in paragraphs 5.1 and 5.2 deals with this aspect.  Specifically 5.2.states: “Further, SANDU which claims “the union cannot be held responsible for what the soldiers might do” is clearly admitting that it lost control of its members, it regards them as unruly and has communicated a chilling threat and ultimatum to the police about future violence.” This was an effort to focus the Court’s attention on SANDU’s actions and irresponsible and inflammatory utterances in the aftermath of the violent clashes between the soldiers and the police on August 26, 2009.   Instead of condemning the violence perpetrated by its members and other soldiers, SANDU has actually issued further threats of violence against the police and military authorities.  See, SANDF provisionally sack soldiers; Written by defence Web TUESDAY, 01 SEPTEMBER 2009.  Newspapers have reported that the soldiers have vowed to embark on “furious” and violent marches to protest against their axing.  The Times and other papers have reported that the summary dismissal letters did little to deter the unruly behaviour of the soldiers and “their representatives immediately threatened that a violent national strike was on the cards.” Id. SANDU national coordinator Charlton Boere said future protests will not be peaceful. “Last Wednesday was the first and the last time police shoot at us. This is a warning to the [police] to never do this again. Soldiers were professionally trained, but they can’t be pushed to the edge. .Last Wednesday they were pushed to the edge and the union cannot be held responsible for what the soldiers might do.” “We’ d like our commander-in- chief, [President] Jacob Zuma to get involved in this dispute because it is a national crisis and it must be solved before it gets out of hand,” he said. Clearly the SANDF’s was entitled to rely on such statements and SANDU’s own admission about the future conduct of its members. No responsible SANDF official can ignore such statements when assessing the risk to state security presented by such persons.  This Court cannot countenance or ignore the clear and unambiguous threat of further violent actions to police emanating from SANDU.  By its own admission, SANDU is determined to call soldiers to embark on violent protests en masse and uses threats of violence to intimidate the police and to deter them from enforcing the law.  SANDU cannot invoke the authority of this Court to hamstring the SANDF from protecting national security.   SANDU which claims “the union cannot be held responsible for what the soldiers might do” is clearly admitting that it has lost control of its soldiers, it regards them as unruly and has communicated a chilling threat and ultimatum to the police about future violent clashes.
4. 12. The court’s finding on the risk to state security was irrational and clearly erroneous on several grounds:

12.1.         On page 4 of the judgment, this Court asserts “it is common cause that the members of the SANDF marched to the Union Buildings and that they stormed the Union Buildings, thereby committing a number of acts of misconduct and/or violence at or close to the Union Buildings. This conduct was contrary to the agreement that had been reached between the first applicant, the SANDF and the Tshwane Metro Police.” And yet the Court claims it could not find “any reference in the respondents’ papers as to how national security was threatened” by the conduct of SANDU members.

12.2.         The Court failed to take notice of the provisions of the National Key Points of 1980 and the status of the Union Buildings under the law. This Act gives the Minister of Defence extensive authority to declare any premises a National Key Point.  Thus “any place or area (that) is so important that its loss, damage, disruption or immobilization may prejudice the Republic” may be so designated.  It is unquestionable that the Union Buildings qualify as a National Key Point and has been so designated.  It is beyond peradventure that the “storming” of the Union Buildings and acts of violence including running battles between the SANDU members and those responsible for security of the premises constituted disruption in the normal activity of those charged with the safety of the Union Buildings.  It is clearly erroneous for Judge Pretorius to discuss risk to national security presented by acts of “storming” the administrative nerve center of the country and the seat of the Presidency and a number of acts of misconduct and/or violence at or close to the Union Buildings without even analyzing the provisions of the National Key Point.  The Affidavits of Chief Ngwenya and Shiluvhane explicitly dealt with these issues including references to the National Key Points Act.

12.3.         Further this Court makes a finding that the “applicants concede that the conduct of the members at the Union Buildings may have constituted a threat to national security a hearing…may result in the termination of some or all of the participating members’ employment.” (Judgment at Page 20 ). Given that both parties are in agreement on the pivotal issue of whether the conduct of the SANDU members “constituted a threat to national security” it is erroneous for the court to look for additional evidence of the “risk” to the security of the state as defined in Section 59 of the Defence Act. This Section only requires that the impugned conduct be such that a person’s “…continued employment constitutes a security risk to the State …” The Merriam-Webster dictionary definition of “risk” is as follows: 1: possibility of loss or injury: peril; 2: someone or something that creates or suggests a hazard.  By any definition, the SANDU members’ acts of ignoring SANDF’s orders placing the country on high security alert, ignoring the orders denying leave en masse, “storming” the Union Buildings (which are the administrative nerve centre of the country and the seat of the Presidency), “thereby committing a number of acts of misconduct and/or violence at or close to the Union Buildings” went beyond a mere “possibility” of injury or suggestion of a hazard to the national executive’s security interests.  Even the act of trained soldiers engaging the police in running battles while armed with an assortment of weapons and committing arson on military vehicles would, without more constitute a ‘risk” to the security of the State.  The minimal evidentiary showing required of the Respondents under Section 59 of the Defence Act is merely proof that the impugned conduct constitutes a “risk” and not that the actor has actually succeeded in undermining national security.

12.4.         This Court misconstrued its authority under the Constitution in matters relating to national security.  Section 198(d) unambiguously states that, “National Security is subject to the authority of parliament and the national executive.”  In a similar vein, section 166(1) of the same constitution states “ judicial authority of the Republic is vested in the courts.”  Section 199 governing the “Establishment, structuring and conduct of security services” states that the “security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.” (Subsection 1).  It also states that the “defence force is the only lawful military force in the Republic.” Section 202 of the Constitution dealing with the “Command of defence force” states as follows:  “1.  The President as head of the national executive is Commander-in- Chief of the defence force, and must appoint the Military Command of the defence force.  2.  Command of the defence force must be exercised in accordance with the directions of the Cabinet member responsible for defence, under the authority of the President.” We also emphasize that national security is inextricably interwoven with the provisions of Section 200 which require that the “defence force must be structured and managed as a disciplined military force.” It is abundantly clear that the Courts are not granted roving missions or the unbridled power to define national security for the Presidency or the Ministers responsible for the defence of this country.  Those powers are reserved exclusively for parliament and the national executive.  It is just plainly wrong for the Court to purport to tell the political branches of government how to define national security and what measures would be deemed appropriate to deal with grave threats to national security and mutiny.  In this case, Judge Pretorius not only belittled the Chief of the SANDF’s legitimate fears about risks to the security of the state but she went further to tell the executive how risks to national security must be handled. The Court even went so far as to suggest that the “harm to national security could have been addressed by suspending the members pending an investigation.” (Judgment at Page 23).

12.5.         By the same erroneous reasoning, the Court claims that the fact that the Respondents took five days to engage in painstaking investigation and proper identification of the culprits is evidence that the Respondents’ claims of risks presented to national security are unfounded.  The Court seems to suggest it would only have regarded the national executive’s claims legitimate if the Minister, CSANDF and the military authorities had embarked on a rush to terminate all soldiers without the painstaking investigation as to the identity of the culprits. In fact, the five-day period that elapsed between the violent march and the date the CSANDF acted was not unduly long – it properly reflects that the military authorities did not seek a vengeful and blind termination of all soldiers without proper investigation as to identities of those involved.  Instead, they went about utilizing a painstaking investigation process and at all times sought some assurance that that the right culprits had been identified.   This laudable approach is further buttressed by the subsequent actions the SANDF took in reinstating those soldiers who had been wrongly identified as culprits or those who made submissions accounting for their whereabouts on the fateful day of the violent march.   It is erroneous for the judge to suggest that the expiry of the five days during which an active investigation was being conducted renders the SANDF’s claims about risk to national security not worthy of belief.  It is also unclear by what judicial yardstick and over what period does the national executive’s assessment of risk have to be judged.  In this context, an assessment of risk cannot be viewed as a static event or an episode – it is an ongoing dynamic process which requires evaluation of evidence, interviews with relevant persons and constant re-evaluation of pieces of voluminous evidentiary materials which included videotapes, examination of attendance registers and reports form commanding officers etc.

12.6.         It is plainly wrong to suggest that the assessment of risk was flawed simply because it took place over a few days as opposed to one day. It is even more erroneous for the Court to infer that subsequent conduct of the SANDF in reinstating some of the affected soldiers renders the Chief of the SANDF’s claims of risk to national security somehow less credible or “extremely strange argument” as the Court puts it on page 23.  The court clearly misconstrued the scope of its own authority and transgressed the appropriate limits imposed by the separation of powers principle.  It not only deemed the dismissal notices deficient but also regarded the alleged procedural infirmities sufficient to invalidate the dismissal decision which was based on national security grounds.  To the extent that the Court actually purports to instruct the executive about which measures are best suited for dealing with violent soldiers who pose a risk to state security, the Court committed a reversible error.  The court’s lack of appreciation of the relationship between Parliament and the national executive in respect to national security is not consonant with the scheme of separation of powers established by the Constitution. This Court has no expertise to advise the military commanders on what the proper procedure for handling threats to national security should be. The relevant commanders should know what constitutes a threat to national security and should know how what the appropriate responses to them should be.

12.7.         The Court’s judgment evidences a failure to comply with Section 39 of the Constitution stipulating that “[w]hen interpreting the Bill of Rights, a court … must consider international law.” (See para. 99 discussing Sections 39 and 232). Reference to international law in constitutional decision-making in South Africa is not only recommended, it is textually required. The international and foreign authorities are of value and do show how courts of other jurisdictions have dealt with vexed issues of national security. Courts in mature democracies around the world have been especially reluctant to intervene in any matter which “goes directly to the ‘management’ of the military and calls into question basic choices about the discipline, supervision, and control of a serviceman.” United States v. Shearer,473 U.S. 52, 58 (1985).  The “complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (emphasis added).  On such matters, it is not appropriate for a “civilian court to second-guess military decisions.” United States v. Shearer, 473 U.S. at 58.  Indeed, “it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Gilligan v. Morgan, 413 U.S. at 10.  This Court’s judgment overlooks these admonitions and essentially allows the judiciary to usurp from the executive the duty and responsibility to determine when indiscipline by soldiers warrants dismissal or mere suspension. Moreover, this Court’s decision requires the national executive to bargain with a military union over national security and military discipline all of which are matters exclusively reserved for the executive.  Moreover, it is plainly inappropriate for courts, when asked to pass upon military discipline actions to employ the same presumption in favour of judicial review that applies to decisions of civilian regulatory agencies.  The courts are neither authorized nor equipped to oversee the national executive and military to that extent.   Ill-disciplined soldiers have no place in the SANDF and failure to act firmly may itself be a breach of the constitutional provisions requiring that the “defence force must be structured and managed as a disciplined military force.“

12.8.         Throughout the process the court should have heeded the admonitions of the US Supreme Court and the Court of Appeals which have repeatedly noted, “the judiciary is in an extremely poor position to second-guess the executive’s judgment in [the] area of national security.” Center for Nat’l Security Studies v. U.S. Dept. of Justice, 331 F.3d 918, 928 (D.C. Cir. 2003), cert. denied, 540 U.S. 1104 (2004); see also Cent. Intelligence Agency v. Sims, 471 U.S. 159, 180 (1985) (“[I]t is the responsibility of [Executive Branch officials], not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency’s intelligence-gathering process.”). On a practical level, it is the Executive Branch, and only the Executive Branch, to which the responsibility of ensuring the security of the state is constitutionally committed. The authority to make a risk assessment and to employ appropriate means commensurate with the risk flows primarily from the constitutional investment of power in the President by the “Commander in Chief” clause.  Nothing in the constitution permits the judicial second-guessing displayed by Court in this matter.

1. In addition to the above, these findings are patently wrong in that they are contrary to the evidence in the following; “SANDU 6” in page 54 of the record is the special order by Major-General R.Z Mandita, MMS General Officer Commanding dated 19 August 2009. In paragraph 2(b) of the order states that the Chief of Defence has given a special instruction that “No member of the SA Army is to participate in strike action for labour unrest and severe disciplinary action will be taken against the member who does engage in a strike action or labour unrest.
2. “SANDU 9” in page 59 is a notice dated 25 August 2009 issued by Mmutle, the strategic executive director; community safety withdrawing the permission to march on the basis of information obtained from the SANDU in which all units in the SANDF had been placed on high alert to support the launch of the BRT and the exercise of GOLFANITO.
3. “SANDU 10” in page 60 is the administrative order of the Chief of SANDF dated 25 August 2009 which placed all services and divisions on high security and stand-by arrangement from 252400BAUG09 until 302400BAUG 09. It stated that “the stand-by arrangement is necessitated by the security situation created by the entry and movement of invited friendly foreign defence force including their equipment that are due to participate in a field exercise with the borders of the Republic of South Africa.” Clause 39 of Chapter XX to the Regulations states that a “military trade union shall not undertake or support any activity which may impede military operations, military exercises, training during military operations or exercises or the preparations for military operations or exercises or during military training.
4. The answering affidavit of the Chief of Defence in paragraphs 2 and 3, page 103-104 of the record; The confirmatory affidavit of Reginald Rabotapi the Brigadier General: Provost Marshal General in paragraphs 4 to 7, page 128 of the record, The supplementary affidavit of the Chief of Defence in paragraphs 4, 5, 6.4, 6.5, 6.6, 7 read together with, page 158 of the record; The supporting affidavit of Naison Ngoma a military and security expert employed by ISS in page 175, paragraphs 7, 8, 10 and 11 of the affidavit; The supporting affidavit of Abel Mxolisi Shilubane, a Major General employed as Acting Chief of Defence Intelligence in the SANDF, in page 208 paragraphs 5 to 8 of the affidavit all deal with risk presented to state security. Had the Honourable Judge considered the evidence in the above references, she would not have committed a patent error of holding that there was no evidence of threat to national security to warrant the adoption of the procedure contained in the impugned Notice.
5. In page 11 of the Judgement, the Honourable Judge held that it was common cause between the parties that the Military Bargaining Council and Military Arbitration Board are the fora, where the merits of the dismissal would be dealt with.
6. The Honourable Judge was correct that parties laboured under this common understanding, however if the Court had had regard to the following legal position, she would have rejected this common understanding as being inconsistent with the law in that;

18.1.         The law does not protect illegal protests by the soldiers and the Judge ought to have refused to come to their assistance even if she had found that the Notice suffered a defect.

18.2.         Clause 5 of Chapter XX to the Regulations states that “No member may refuse to obey a lawful command on the grounds that some matter is, or may become, the subject of collective bargaining, joint consultation or grievance proceedings.” If the Honourable Judge had had regard to clause 5, she would not have granted the order interdicting the Applicants in paragraph 2 of the judgment referring the dispute to the collective bargaining process. The members of the SANDF were not entitled to refuse a lawful command in the Notice on the basis that the dispute was subject to collective bargaining. The soldiers who received the Notices should have complied with the Notice.

18.3.         Clause 7 of Chapter XX to the Regulations provides that “no member may participate in peaceful and unarmed assembly, demonstration, picket and petition in support of a strike or secondary strike if this relates to any Defence matter.” This means that members are not entitled to exercise their rights “in respect of any matter concerning either the employment relationship with the Department of Defence or any matter related to the Department of Defence.” (Clause 8(b) of Chapter XX to the Regulations) Prior to the participation in the protest, the soldiers were specifically referred to these regulations in SANDU 20 page 154 of the record.

18.4.         Clause 36 of Chapter XX to the Regulations sets out the limits of the Military Bargaining Council. SANDU may only engage in collective bargaining, and may negotiate on behalf of their members, only in respect of the following:

18.4.1.     The pay, salaries and allowances of members, including the pay structure;

18.4.2.     General service benefits;

18.4.3.     General conditions of service;

18.4.4.     Labour practices; and

18.4.5.     Procedures for engaging in union activities with units and bases of the Defence Force.

18.5.         Had the Honourable Judge been aware that the jurisdiction of the MBC and MAB did not extend to matters involving discipline or falling within the duty to maintain a structured and disciplined defence force, she would not have granted interdictory relief in paragraph 2 of the order. The merits of the disciplinary action do not fall within the jurisdiction of the MBC or the MAB. The order can therefore not be implemented without breaking the law by subjecting military discipline to the collective bargaining processes of the MBC or the MAB.

18.6.         The acts of indiscipline displayed during an illegal protest do not constitute labour disputes falling within the jurisdiction of the MBC or the MAB. Discipline of soldiers lies squarely in the Defence Force. This right flows from the contract of an employer and employee. In any event, no law protects the indiscipline of the soldiers. Article 6 of the Constitution of the MBC is very clear on the power and function of the MBC as well as section 63 of Chapter XX.  Part 5 of Chapter XX does not give the MAB power and authority to consider indiscipline in the Defence Force, but right to hear and arbitrate legitimate labour disputes that are raised within the legal parameters of the law.

18.7.         The MBC and the MAB are creatures of legislation.  They find their power in Chapter XX of the Regulations and the Constitution of the MBC.  The Court cannot give a forum power that it does not have in law. If the MBC WAS given this power, effectively its action would be ultra vires ratio persona and ratio materiae.

18.8.         Apart from that the MBC is not operational pending the outcome of the urgent application brought by SANDU and Simonse to Court , to interdict the Acting Chairperson of the MBC and the Acting Secretary for the MBC from convening a meeting.  It is unclear how long will this standoff be for. What is certain is even if the Court was correct by giving the MBC the power and authority to decide the dispute, its decision cannot be implemented.  It is not an effective decision and flies in the face of the doctrine of effectiveness.

1. The judgement of the Court held in page 15 that the 10 days afforded to the soldiers to make representations did not constitute compliance with the audi alteram principle in that the Minister had already prejudged the issues and had decided to terminate the members’ employment without affording the soldiers a hearing. There is no evidence that the Minister had prejudged the outcome since SANDU had advised the members of the SANDF belonging to the union to disobey the instructions set out in the Notice. No findings of bias could reasonably be made on the mere basis of the Notice and the press statement, which articulated the correct legal position in relation to the matter. Moreover, the statement was made after the notice and not before its issuance. It is not wrong for an employer to state that it views certain conduct to be so serious as to justify a summary dismissal.  In this case, the assertion that the Minister has a constitutional duty to dismiss soldiers who threaten national security through their acts of indiscipline finds anchor in Section 202 of the Constitution. The press statement was a reasonable response at a time when the nation was in shock over the disgraceful conduct of the SANDU members.   The Court failed to have regard to the undisputed facts relating to public defiance expressed by SANDU even after the strike. In particular the Court should have held that the press release was a responsible act by the highest-ranking officer in the SANDF aimed at assuring the public that the acts of the soldiers would be dealt with firmly. General Ngwenya had a duty to assure the public that the matter would be dealt with to ensure public safety.
2. In page 17 of the judgment, the Court found that “this is not an exceptional case as the notice was only served 5 days after the march had already taken place and none of the members were suspended in the interim. The Court could not, in making this finding, determine what an appropriate timeframe is for responding to a situation that threatens national security. If the Court had accepted, as it should have, that the conduct of the soldiers amounted to a risk to national security, it would have found that exceptional circumstances existed with the consequences that the response of the Chief of Defence and the Minister was justified. It cannot lie within the knowledge and competence of the Court what the appropriate period for actions deemed to threaten national security should be. The Court should have deferred to the judgement of the relevant officials of the SANDF to determine the appropriate time frame for a reaction to national security threats. Its view of what would be an appropriate timeframe for a threat to national security is not supported by any evidence whatsoever and does not lend itself to logical deductions. In certain circumstances threats to national security could be dealt with within a year. The fact that the threats are dealt with within a year of being known by the relevant authorities does not mean that they are not serious. In any event, the court failed to make an analytical distinction between “risk” to state security presented solely by the actions of the soldiers in and around the Union Buildings on the one hand and the “risk” presented by acts of defiance of military orders before the march, violent acts during the march and other inflammatory statements in the days following the march. Continued employment of angry soldiers who had proven to be violent and were making statements about future plans to be violent would clearly be irresponsible.  It is not enough that the situation involving the soldiers in the Union Buildings had been dealt with firmly on the spot and that the actions posed no further immediate threat.  An assessment of risk to state security had to consider the entire confluence of factors.
3. The Court found in page 17 that ‘normally “members would partake in a process before a notice of provisional termination would be served on them.” The finding is patently wrong and no evidence could support the finding that it is normal for the SANDF to address acts of serious indiscipline justifying summary dismissals through audi prior to disciplinary decisions being taken. A soldier who shoots another officer, as an act of revenge cannot be given the same audi as a soldier who goes AWOL. The facts of this case were exceptional. The acts of the soldiers constituted serious misconduct and the charges that they were facing were the most serious that a soldier can be charged with. If the Court had accepted the seriousness of the charges, then it would have found that the procedure adopted by the Applicants was more than reasonable.
4. In page 18, the Court found that “nowhere did the respondents set out how and why the respondents satisfied the requirement of procedural fairness. There has been no attempt to state the lawful basis of the service of the letter on the members without adhering to the audi alteram partem principle.” The findings are patently incorrect. The Notice itself provided for the principle of audi alteram partem. It provided the soldiers with 10 days to make representations. The complaint could not be that the Notice deprived the soldiers their right to a hearing since that right was specifically given effect to in the 10 days. For the audi alteram artem principle to be satisfied, it is not a prerequisite that representation should be verbal.  Written submissions also suffice to satisfy the requirements of audi alteram partem principle.
5. The complaint of SANDU could only have been that the 10 days given to their members to make representations was insufficient or inadequate. Alternatively the argument seemed to be that the Minister had prejudged the issues by pronouncing on the matter before receiving any representations. The remedy for bias was for the members to ask to the recusal of the decision-maker. The members did not seek and have not sought the recusal of the Minister to determine the merits of this case in any representations addressed to her in terms of the Notice. There is no basis for the finding of bias on the Minister in terms of the test of bias.
6. As to the lawfulness of the procedure, the Court disregarded section 14(d) read together with section 14(l) and section 59(2)(e) of the Defence Act read within the context of section 200 of the Constitution which requires that the defence force be managed as a structured and disciplined defence force.
7. The reference by the Court to the order of 22 April 2006 issued by the Chief of Defence as a basis for the requirement of audi alteram partem in disciplinary action taken does not contextualise the facts of this case. The order referred is guidance intended to deal with situations involving termination of employment of a soldier on the basis of incapacity as opposed to indiscipline involving mutiny and threatening the security of the state. Clearly the facts of this case warrant a departure from the normal procedures.
8. Actions and conduct constituting a threat to national security cannot be subject of the collective bargaining process. [The Court committed a patent error in making the finding in page 20 that conduct of soldiers constituting a threat to national security but that such conduct could be subject of collective bargaining process in the MBC and MAB.
9. The court found in page 22 that it is “curious that due to the method used to identify members who took part in the march people were identified who were in the Democratic Republic of Congo or on duty at the show grounds at the time. It was up to the members to point out these errors out which imposed a reverse onus on the innocent members. They were thus guilty until proven innocent.”
10. The finding of the Court relating to reverse onus is incorrect. The Notice invites the soldiers to make representations and gives them specific questions that the soldiers could deal with. A soldier in the Congo only had to say that, to be exonerated from the process. Such a position is far from imposing an onus or a situation of guilt until proven innocent. It is a reasonable administrative and disciplinary decision aimed at maintaining military structure and discipline. The Chief of Defence is entitled and obliged to communicate his commands through orders, directives and instructions. When such have been given, they must be complied with.
11. The Notice contained the instructions and directives of the Chief of Defence, falling squarely within the powers set out in section 14 of the Defence Act. In that Notice the Chief of Defence informed the soldiers that;

29.1.         they had engaged in unlawful and criminal activity;

29.2.         threatened the security of the Republic;

29.3.         made themselves guilty of the offence of military mutiny as contained in section 10 read with section 4(h) of the Military Discipline Code;

29.4.         scandalised the South African National Defence force; and

29.5.         shamed the nation;

29.6.         their service with the SANDF was provisionally terminated in term of section 59(2)(e) of the Defence Act.[1]

1. Those members to whom the Notice was addressed, were given ten (10) days to–

30.1.         respond to the allegations in the notice;

30.2.         provide details of their whereabouts on 26 August 2009 (the day of the march);

30.3.         make representations as to why their employment should not be terminated by the SANDF.

1. The guidance on what the soldiers could make representations on clearly indicates an intention to weed out meritorious representations from unmeritorious ones.
2. It is apparent from the Order read together with the judgment that the order contained in the second paragraph is a patent error. This is apparent from the following:

32.1.         In terms of paragraph 1 of the Order, final relief is granted. The Notice that is the subject matter of the judgment is finally declared to be unlawful and unconstitutional. That means that from the date of the judgment, the Notice is invalid in law. It cannot be relied on or given effect by the applicants or anyone else. Its legal invalidity has been finally determined (i.e. it is res judicata) subject only to applicants right of appeal. Applicants do not intend appealing against the order contained in the first paragraph of the Order.

32.2.         In terms of paragraph 2 of the Order, Pretorius J interdicts applicants from pursuing with the discipline of the soldiers who were engaged in unlawful conduct during August 2009, pending the resolution by the Military Bargaining Council and the Military Arbitration Board of the dispute referred to the Council concerning the unlawfulness of the Notice.

32.3.         The dispute about the lawfulness of the Notice has been decided patently incorrectly. It has been declared to be unlawful by Pretorius J.

32.4.         Pursuit of a dispute about the unlawfulness of the Notice before the Council or Board would be incompetent in law. Neither can decide the lawfulness of the Notice. This Court has finally decided that the Notice is unlawful; i.e. the question of the lawfulness of the Notice is res judicata.  Neither the Council nor Board is competent to decide that question on appeal or review or on any other basis. It is incompetent in law for the applicants to pursue that question before the Council or Board. They are bound by the decision of this Court declaring the Notice to be unlawful.

32.5.         The order contained in the second paragraph of the Order is fundamentally inconsistent with the order in the first paragraph thereof and it is patently an error and/or ambiguous as contemplated by Rule 42(1)(b). The Order falls to be varied by deleting the second paragraph of the Order.

APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT OF APPEAL

1. In addition, and in any event, for the reasons advanced in support of the application for an order varying or rescinding the judgement and order, I pray for leave of this Honourable Court to appeal to the Supreme Court of Appeal. There are reasonable prospects that the SCA will uphold the Notice on appeal and set aside the judgment and orders of this Honourable Court. I am advised that the costs of this application for leave to appeal should be costs in the appeal.
2. I seek leave to appeal to the SCA only in the event that this Honourable Court dismisses the application in terms of rule 42 either in part or in the whole. In this regards I attach as “BF1” the notice of application for leave to appeal setting out the grounds on which the application is based on.

DATED ON 15 DECEMBER 2010 AT CAPE TOWN

_______________________

BARNABAS FANOZI XULU

Signed and sworn before me at JOHANNESBURG on 2 DECEMBER 2010 the deponent having acknowledged that he knows and understands the contents of this declaration and that he has no objection to the taking of the prescribed oath and that he considers it binding on his conscience.

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[1] Act 42 of 2002

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