Minister of Defence and Military Veterans and Another v Mamasedi

Sergeant Jonas Molefi Mamasedi, a member of 1 South African Tank Regiment in the SANDF, failed to report for duty on 29 November 2011 and remained absent without leave until 18 January 2012. By that time, he was deemed dismissed for misconduct under s 59(3) of the Defence Act 42 of 2002, which provides for automatic dismissal of members absent without leave for more than 30 days. Mamasedi claimed he had been abducted and taken to an initiation school from 29 November 2011 to 31 December 2011. Upon his return, he attempted to lodge a grievance. A board of enquiry was convened on 18 January 2012 to investigate the reasons for his absence. On 7 December 2012, Mamasedi made representations to the Chief of the SANDF. The board of enquiry recommended on 21 February 2013 that Mamasedi not be re-instated, which the Chief of the SANDF accepted on 4 June 2013. Mamasedi was never afforded the opportunity to participate in the board of enquiry proceedings, nor were the findings and recommendations communicated to him before being forwarded to the Chief of the SANDF.

• Whether the decision not to re-instate Mamasedi was vitiated by a failure of procedural fairness in that he was not given an oral hearing before the board of enquiry and an opportunity to comment on the recommendation
• Whether re-instatement was competent relief in the circumstances where the decision not to re-instate was set aside
• Whether the court could substitute the administrative decision with its own decision to re-instate the respondent
• The proper interpretation and application of s 59(3) of the Defence Act 42 of 2002 regarding deemed dismissal and re-instatement
• The application of s 102 of the Defence Act regarding procedural rights before a board of enquiry
• The application of s 3 and s 8 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)

The appeal succeeded in part. Paragraph 2 of the High Court order (directing re-instatement with full benefits and salary from 15 December 2011) was set aside. The amended order provided: (1) The decision of the Chief of the SANDF not to re-instate Mamasedi made on 4 June 2013 is reviewed and set aside; and (2) The appellants are ordered to pay Mamasedi's party and party costs in the High Court. Each party bore their own costs of the appeal.

The binding legal principles established are: (1) Dismissal under s 59(3) of the Defence Act 42 of 2002 occurs automatically by operation of law after 30 days absence without leave, and no reviewable decision to dismiss exists; however, a subsequent decision whether to re-instate constitutes administrative action subject to procedural fairness requirements; (2) Multi-stage administrative processes involving investigation followed by decision-making must be viewed holistically as affecting rights at each stage, not as bifurcated processes; (3) Section 102 of the Defence Act creates a procedure that is fair but different from s 3(2) of PAJA under s 3(5) of PAJA, imposing extensive procedural rights including rights to oral hearing, calling and cross-examining witnesses, and legal representation; (4) Failure to afford a person whose reputation is likely to be affected by a board of enquiry the procedural rights under s 102 constitutes procedural unfairness justifying review under s 6(2)(c) of PAJA; (5) Setting aside a decision not to re-instate does not automatically result in re-instatement where dismissal occurred by operation of law; (6) Courts may only substitute administrative decisions in exceptional circumstances under s 8(1)(c)(ii) of PAJA, which requires the court to be in as good a position as the administrator to make the decision and that the decision be a foregone conclusion, among other factors; (7) Separation of powers precludes courts from substituting administrative decisions where factual disputes remain unresolved and the administrator is better positioned to resolve them.

The Court made several obiter observations: (1) The cases of Cassem v Oos-Kaapse Komitee van die Groepsgebiederaad and South African Defence and Aid Fund v Minister of Justice, based on the 'classification of functions' approach to procedural fairness, are not compatible with s 33 of the Constitution; (2) While the answering affidavit referred to the board as a 'ministerial enquiry' suggesting it was convened by the Minister under s 101(1) of the Defence Act, the exact nature of the convening was unclear as the convening order was not disclosed; (3) The board of enquiry was not one contemplated by s 103 of the Defence Act, which is convened while a soldier is still absent and has limited scope to establish the fact of absence and missing kit; (4) It would have been a sensible approach to use a two-stage process involving a board of enquiry to investigate factual disputes before the Chief makes a decision, though the procedure followed must still comply with procedural fairness requirements.

This case is significant in South African administrative law for several reasons: (1) It clarifies that deemed dismissal provisions operate by law without a reviewable decision, but subsequent decisions on re-instatement constitute administrative action subject to PAJA; (2) It demonstrates the application of s 3(5) of PAJA where empowering legislation provides a fair but different procedure than PAJA's minimum requirements; (3) It emphasizes that multi-stage administrative processes must be viewed holistically when determining procedural fairness requirements; (4) It reaffirms the doctrine of separation of powers and the limited circumstances under s 8(1)(c)(ii) of PAJA in which courts may substitute administrative decisions; (5) It demonstrates that courts cannot substitute their decisions for those of administrators where factual disputes remain unresolved and the court is not in as good a position as the administrator to make the decision; (6) It clarifies the interaction between sector-specific legislation (Defence Act) and PAJA in the context of military administrative proceedings.