Masinga and Others v Chief of the South African National Defence Force and Others

The appellants were 35 officers in the South African Military Health Service (SAMHS) selected to study military medicine in Cuba under a Memorandum of Understanding. They were enrolled at the Inter Arms School in Cuba. After raising concerns about accreditation and registration with the HPCSA, they refused to attend classes from 11 February 2019 to 20 March 2019, despite repeated orders from their commanding officer and numerous interventions by senior officers. They had signed agreements to attend classes during official duty hours and abide by institutional rules. On 26 March 2019, they were informed by letter dated 25 February 2019 that they had been dismissed from the SANDF in terms of s 59(3) of the Defence Act 42 of 2002 for absenting themselves from official duty for more than 30 days without permission. They were sent back to South Africa. The appellants launched an urgent application in the High Court challenging the lawfulness of their dismissal.

• Whether the appellants were dismissed pursuant to an administrative decision or by operation of law under s 59(3) of the Defence Act 42 of 2002
• Whether the jurisdictional requirements of s 59(3) of the Defence Act were satisfied, namely: (i) absenting themselves from official duty; (ii) without permission of commanding officer; and (iii) for a period exceeding 30 days
• Whether the appellants 'absented themselves from official duty' when they remained physically present at the base but refused to attend classes
• Whether a board of inquiry under s 103(1) of the Defence Act was a prerequisite to dismissal under s 59(3)
• Whether the appellants were entitled to a hearing before dismissal under s 59(3)
• Whether costs should have been awarded against the appellants in constitutional litigation

1. The appeal against the costs orders in paragraphs 1 and 2 of the full court order dated 19 June 2020 succeeds, and the costs orders are set aside. 2. Save as aforesaid, the appeal is dismissed.

Section 59(3) of the Defence Act 42 of 2002 operates by force of law, not administrative decision, once its jurisdictional requirements are satisfied: (i) a member absents himself/herself from official duty; (ii) without permission of commanding officer; and (iii) for a period exceeding 30 days. 'Absenting from official duty' is a volitional act requiring the member to leave or not attend the appointed place of duty when required to be there - it includes refusing to perform assigned duties even when physically present at the base. Section 59(3) is a self-standing provision not subject to s 103(1) board of inquiry requirements, and must be interpreted to promote s 200(1) of the Constitution requiring the SANDF to be structured and managed as a disciplined military force. As dismissal under s 59(3) occurs by operation of law when the jurisdictional requirements are met, there is no right to a hearing beforehand. The Biowatch costs principle applies to prevent costs orders against parties seeking to enforce fundamental constitutional rights in non-frivolous litigation.

The Court observed that military discipline constitutes the difference between an army and a mob, and that obedience and order are the backbone of any military force. The SANDF cannot function properly when members absent themselves from duty without permission contrary to duties they agreed to perform. The Court noted that the appellants' concerns about accreditation were unfounded - evidence showed the Inter Arms School and UCIMED Santiago were properly accredited institutions, and that the SANDF had made numerous genuine attempts to address concerns and persuade appellants to return to classes. The Court commented that accepting the appellants' interpretation would mean members who report for roll call but refuse to attend classes or engage in combat would nonetheless be considered on official duty - a manifest absurdity. The Court also observed that the appellants' argument that their Cuban commanding officer was not validly appointed was opportunistic and contrived.

This case provides authoritative guidance on the interpretation and application of s 59(3) of the Defence Act 42 of 2002 concerning deemed dismissal of SANDF members. It clarifies that: (1) deemed dismissal provisions operate by force of law without administrative decision-making; (2) 'absenting from official duty' encompasses refusing to perform assigned duties even when physically present at the base; (3) s 59(3) is a self-standing provision not subject to s 103(1) board of inquiry requirements; (4) no hearing is required before dismissal under s 59(3) as it operates automatically; (5) such provisions must be interpreted to promote the constitutional imperative in s 200(1) that the SANDF be structured and managed as a disciplined military force; and (6) the Biowatch costs principle applies in constitutional litigation even when unsuccessful. The judgment reinforces military discipline as essential to the proper functioning of the SANDF and interprets deemed dismissal provisions purposively to give effect to this objective.