Minister of Defence v South African National Defence Union and Another

Following an unlawful and violent demonstration by members of the South African National Defence Force (SANDF) at the Union Buildings on 26 August 2009, the SANDF made several attempts to discipline participating soldiers. Earlier disciplinary processes were set aside as unlawful. In 2012 the SANDF issued notices and newspaper advertisements to soldiers who had not returned to their units, indicating an intention to administratively discharge or dismiss them under s 59(2)(e) of the Defence Act 42 of 2002 on the basis that their continued employment posed a security risk to the State. The South African National Defence Union (SANDU) challenged this third attempt, arguing that the absence of regulations under s 59(2), and the procedure followed, rendered the process unlawful and unconstitutional.

The appeal was dismissed with costs, including the costs of two counsel, and the High Court’s declaratory orders declaring the procedure unlawful and unconstitutional were upheld.

The case clarifies that the absence of regulations does not necessarily prevent the exercise of statutory powers under the Defence Act, but affirms that members of the SANDF are entitled to procedurally fair disciplinary processes. It reinforces the applicability of constitutional labour protections and trade union representation within the military context and sets limits on the use of administrative discharge procedures.