As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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
|SOUTH AFRICAN DEFENCE UNION
MOSIMA MONAGENT PAIN FREDERIC MOSIMA
I, the undersigned
BARNABAS FANOZI XULU
do hereby make oath and state as follows:
NATURE OF APPLICATION AND RELIEF SOUGHT
GROUNDS FOR APPLICATION UNDER RULE 42
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.
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.
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.
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.
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
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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