In August 2009 members of the South African National Defence Force (SANDF) unlawfully demonstrated at the Union Buildings, contravening military orders and a court order, with some members armed and violent incidents ensuing. The military authorities issued notices to approximately 1 200 identified members stating that their services were "provisionally terminated" and calling on them to show cause why termination should not be confirmed. The South African National Defence Union (SANDU) launched an urgent application in the North Gauteng High Court, challenging the lawfulness of the procedure adopted and obtained (a) a declaratory order that the procedure was unlawful and/or unconstitutional, and (b) an interdict restraining the military authorities, pending referral of a dispute to the Military Bargaining Council or Military Arbitration Board, from terminating or administratively discharging members pursuant to the notices. The Minister of Defence and other authorities sought leave to appeal. They abandoned the appeal against the declaratory order but persisted in appealing the interdict. SANDU argued that the right to appeal had been perempted due to the appellants’ conduct suggesting abandonment of the appeal.
Leave to appeal against paragraph 2 (the interdict) of the High Court order was granted; the appeal was upheld and the interdict was set aside. The appellants were ordered to pay the costs of the application for leave to appeal and the appeal.
The case clarifies the strict requirements for granting interdictory relief, particularly in the context of labour disputes within the SANDF. It affirms that referral of a dispute to bargaining or arbitration bodies does not, without more, entitle a union to halt disciplinary processes. The judgment is also significant for its treatment of peremption, confirming that apparent acquiescence may be overlooked where the interests of justice and public duties of the state require appellate scrutiny. It underscores the constitutional obligation of government, especially the military, to act responsibly and in the public interest when conducting litigation.