Edgar Davids v The Minister of Defence and Military Veterans and Others and Zilta Miles v The Minister of Defence and Military Veterans and Others

Warrant Officer Davids complained to the Military Ombud on 6 March 2018 that he was unfairly denied promotion and not compensated for acting in a higher position. Major Miles, a registered pharmacist in the South African Military Health Service, complained on 3 June 2019 that she was incorrectly classified and remunerated as a normal dispensing pharmacist rather than a pharmacist supervisor. The Ombud upheld WO Davids' complaint on 9 March 2020 and recommended appropriate relief under s 6(8) of the Military Ombud Act 4 of 2012, including compensation for the period he acted in a higher position. The Ombud upheld Major Miles' complaint on 12 March 2021 and recommended implementation of the occupational specific dispensation (OSD) for pharmacists and salary adjustments from 1 April 2010. The Minister of Defence failed to implement these recommendations. Both WO Davids and Major Miles applied to the high court to compel implementation. The high court (Vivian AJ) dismissed both applications, holding that the Ombud's recommendations were advisory and not binding on the Minister.

• Whether the recommendations of the Military Ombud under s 6(8) of the Military Ombud Act 4 of 2012 are final and binding on the Minister of Defence or merely advisory
• The correct interpretation of s 6(8) of the Military Ombud Act 4 of 2012, particularly the meaning of 'recommend the appropriate relief for implementation to the Minister'
• The powers and duties of the Minister of Defence following an upheld complaint and recommendation by the Military Ombud
• The relationship between the Military Ombud's powers and the constitutional chain of military command under s 202 of the Constitution
• The reviewability of the Ombud's recommendations under s 13 of the Military Ombud Act

The appeals were dismissed save for modified relief. The order of the high court was set aside and replaced with an order directing the Minister of Defence to decide, within 60 days, what appropriate relief should be implemented in favour of the applicants following the recommendations made under s 6(8) of the Military Ombud Act 4 of 2012. No costs order was made against the appellants.

The binding legal principles established are: (1) The recommendations of the Military Ombud under s 6(8) of the Military Ombud Act 4 of 2012 are advisory and not final and binding on the Minister of Defence. (2) The statutory formulation requiring the Ombud to 'recommend the appropriate relief for implementation to the Minister' (rather than 'by the Minister') indicates that it is for the Minister to make the final decision on what relief should be implemented. (3) Once the Ombud has upheld a complaint (which decision is final and binding), the Minister has a mandatory duty to decide what appropriate relief must be implemented. (4) The Minister is not bound to follow the Ombud's recommendations and may decide on different relief on a reasoned basis, but the Minister may not simply reject the recommendations without more, nor may the Minister ignore them. (5) The Minister's decision on appropriate relief is subject to judicial review under PAJA.

The Court made observations on several matters without finally deciding them: (1) Whether s 13 of the Act (providing for review of Ombud decisions) applies only to final decisions or to all decisions including procedural ones - the Court noted this question did not need to be resolved as the Minister's final decision would in any event be reviewable under PAJA. (2) The constitutional relationship between the Minister's powers to give directions to the Defence Force under s 202(2) of the Constitution and the Ombud's recommendations was acknowledged as raising 'distinctive, substantive issues that it would be unwise to venture upon' in this case. (3) The Court noted that the analogy to the Public Protector's powers in Economic Freedom Fighters v Speaker of the National Assembly had 'modest analogical linkages' because the Military Ombud, while important, does not play the same structural constitutional role as chapter 9 institutions. (4) The Court observed that the purpose of the Act - to provide redress for Defence Force members excluded from ordinary labour law protections - is not frustrated by interpreting the Ombud's recommendations as advisory, since the Minister still has a duty to provide appropriate relief.

This judgment provides authoritative guidance on the interpretation of the Military Ombud Act 4 of 2012, particularly the nature and effect of the Ombud's recommendations under s 6(8). It establishes that while the Ombud's recommendations are not binding, the Minister has a mandatory duty to make a decision on appropriate relief once a complaint is upheld. The judgment demonstrates the application of modern statutory interpretation principles, emphasizing textual analysis within the broader statutory scheme. It clarifies the limits of the Ombud's powers while ensuring that members of the Defence Force, who are excluded from ordinary labour law protections, have meaningful recourse when their complaints are upheld. The decision balances the need for independent oversight of Defence Force conditions of service with ministerial responsibility and decision-making authority. It also clarifies that ministerial decisions following Ombud recommendations are subject to judicial review under PAJA, providing an additional safeguard for complainants.