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

The appellants were 35 officers of the South African Military Health Service selected to study military medicine in Cuba under a memorandum of understanding between South Africa and Cuba. They were enrolled at the Inter Arms School in Santiago, which formed part of the Cuban military medical training system. From 11 February to 20 March 2019, the appellants refused to attend classes at the Inter Arms School, alleging lack of accreditation and concerns about registration with the HPCSA. Despite repeated lawful orders by their commanding officers and interventions by senior SANDF officials, they persisted in their refusal. After being absent from official duty for more than 30 days without permission, they were informed on 26 March 2019 that they were deemed dismissed in terms of s 59(3) of the Defence Act 42 of 2002. They challenged the lawfulness of their dismissal in the High Court.

The appeal succeeded only in respect of the costs orders of the court a quo, which were set aside. The remainder of the appeal was dismissed, confirming the lawfulness of the appellants’ dismissal.

The case clarifies the operation of deemed dismissal provisions under s 59(3) of the Defence Act and confirms that such dismissals occur by operation of law rather than administrative decision. It reinforces established principles that audi alteram partem does not apply where dismissal follows automatically upon satisfaction of statutory jurisdictional facts, and it provides authoritative guidance on what constitutes absence from official duty in the military context.