Minister of Defence v Xulu

Mr Bongani Xulu was a member of the South African National Defence Force (SANDF) serving on successive fixed-term contracts from 1996. His contract was renewed several times despite two relatively minor disciplinary offences committed in 1997 and 2001. His final contract was due to expire on 31 July 2011. In late 2010 he was informed that the SANDF did not intend to renew his contract, allegedly based on these historic offences. Despite strong recommendations from his commanding officer supporting renewal and evidence of good service and rehabilitation, a Review Board chaired by Major General Nkabinde decided in January 2011 not to renew the contract. The SANDF failed to follow its own internal policy governing non-renewal of fixed-term contracts, including notice requirements, the role of the commanding officer, and procedural fairness. Mr Xulu unsuccessfully challenged the decision in the High Court at first instance but succeeded before the full court, which set aside the decision and ordered his reappointment. The Minister of Defence and the Chief of the SANDF appealed to the Supreme Court of Appeal.

Special leave to appeal was granted. The appeal was partially upheld by amending the full court’s order to set aside parts of the High Court’s relief. The decision not to renew Mr Xulu’s contract was set aside, but the order compelling reappointment was replaced with an order that the appellants compensate Mr Xulu for losses suffered due to the unlawful non-renewal, with the amount to be agreed or determined by arbitration.

The case clarifies that decisions by the SANDF concerning the non-renewal of fixed-term contracts of Regular Force members can constitute administrative action and must comply with PAJA and the principle of legality. It affirms that internal military policies regulating employment decisions must be followed and that members of the SANDF are entitled to fair labour practices despite the unique nature of military service. The judgment provides guidance on appropriate remedies where unlawful non-renewal occurs.