South African National Defence Union v Minister of Defence and Another

Section 126B of the Defence Act 44 of 1957 prohibited members of the South African National Defence Force (SANDF) from joining trade unions and from participating in strikes or acts of public protest. The South African National Defence Union (SANDU) challenged these provisions. The High Court (Hartzenberg J) declared section 126B unconstitutional to the extent that it prohibited SANDF members from joining trade unions and engaging in public protest, and referred the order to the Constitutional Court for confirmation under section 172(2) of the Constitution. The Minister of Defence and the Chief of the SANDF opposed confirmation only in respect of the prohibition on trade union membership.

The Constitutional Court confirmed the declaration of constitutional invalidity of section 126B of the Defence Act to the extent that it prohibited members of the SANDF from participating in acts of public protest and from joining trade unions. References to 'acts of public protest' in section 126B(2) and the entire definition in section 126B(4) were severed. The prohibition on strikes remained intact. The order of invalidity was confirmed with the suspension as ordered by the High Court.

This case is a leading authority on the constitutional rights of members of the security services in South Africa. It affirmed that soldiers remain citizens and workers entitled to fundamental rights, including freedom of expression and labour rights, subject only to narrowly tailored and justifiable limitations. The judgment clarified the application of section 36 to military contexts and confirmed that blanket prohibitions on trade union membership and expression are unconstitutional. It also provides important guidance on constitutional remedies, particularly the use of severance.