The Minister of Defence v South African National Defence Union

On 26 August 2009, approximately 1,200 members of the South African National Defence Force (SANDF) gathered at the Union Buildings in Pretoria to demonstrate their grievances, contravening military orders and a court order. Some demonstrators were armed with weapons. The conduct provoked a confrontation with police, and vehicles were damaged. On 30 August 2009, the military authorities issued notices to about 1,200 identified participants advising them that their services were 'provisionally terminated' and calling upon them to show cause within ten days why the provisional termination should not be confirmed. The South African National Defence Union and its President, acting on behalf of affected members, launched an urgent application in the North Gauteng High Court against the Minister of Defence, the Secretary for Defence, and the Chief of the SANDF, challenging the procedure adopted and seeking an interdict to prevent termination pending resolution of the dispute through the Military Bargaining Council and Military Arbitration Board. The court granted both a declaratory order (that the procedure was unlawful/unconstitutional) and an interdict restraining termination pending resolution of the dispute.

• Whether the respondents established a clear right to justify the grant of an interdict
• Whether the interdict was properly granted given that the declaratory order resolved the underlying dispute
• Whether the appellants' right to appeal had been perempted by acquiescence
• Whether costs should be awarded on an attorney and client scale

The application for leave to appeal against paragraph 2 of the order (the interdict) was granted. The appeal against that order was upheld and the interdict was set aside. The appellants were ordered to pay the costs of the application and of the appeal on the ordinary scale.

For an interdict to be granted, an applicant must establish a clear right (not merely a prima facie right) where the relief sought is to restrain conduct until the occurrence of an extraneous event rather than pending the outcome of legal proceedings. Where a declaratory order resolves the underlying dispute between parties, there is no remaining dispute to refer to a bargaining council or arbitration board, and an interdict restraining action pending such referral cannot be sustained. While a party who acquiesces in a judgment will generally be taken to have waived the right to appeal, a court may overlook acquiescence where the broader interests of justice would not be served by holding the party to the acquiescence, particularly where: (1) no material prejudice resulted from the brief period of acquiescence, and (2) leaving a wrongly granted order in place would impede the discharge of constitutional duties.

The court made important observations about the conduct of litigation by government and public bodies: Unlike private litigants, government must conduct litigation in the public interest, which calls for mature judgment and reflection before commencing or persisting in litigation. The court expressed concern that the appellants' response to the judgment was a 'knee-jerk reaction' without proper reflection on the considered views of the court. The court criticized the fact that over 1,000 SANDF members remained in 'provisional dismissal' status for 19 months at a cost of millions of rand to taxpayers when alternatives were available. The court noted there is no such thing as 'provisional dismissal' – a person is either in employment or not. The court also observed that broadly and vaguely worded interdicts capable of restraining action beyond their intended purpose are capable of abuse and should not be left in place, even if no such abuse is currently envisaged.

This case is significant for several reasons in South African jurisprudence: (1) it clarifies the requirements for granting interdicts, particularly distinguishing between interdicts pending legal proceedings and those pending extraneous events; (2) it addresses the doctrine of peremption of appeals through acquiescence and when courts may overlook acquiescence in the interests of justice; (3) it provides guidance on the proper conduct of litigation by government and public bodies, emphasizing their duty to act in the public interest with mature judgment and reflection; (4) it illustrates the proper application of labour dispute resolution mechanisms under military regulations; and (5) it demonstrates judicial concern for avoiding leaving in place broadly worded interdicts that are capable of abuse beyond their intended purpose, particularly where they may impede constitutional duties.