THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 622/2017
In the matter between:
MINISTER OF DEFENCE AND
MILITARY VETERANS

FIRST APPELLANT

CHIEF OF THE SANDF

SECOND APPELLANT
and

JONAS MOLEFI MAMASEDI

RESPONDENT

Neutral citation: Minister of Defence v Mamasedi (622/2017) [2017] ZASCA 157 (24
November 2017)
Coram:
Ponnan and Majiedt JJA and Plasket, Mbatha and Schippers AJJA
Heard:
15 November 2017
Delivered:  24 November 2017
Summary:
Defence Act 42 of 2002 – Section 59(3) – deemed dismissal of member
after absence of 30 days – re-instatement of member on good cause shown – board
of enquiry making recommendation to Chief of SANDF not to re-instate member –
member not given opportunity to participate in proceedings of board of enquiry,
contrary to s 102 of Act – decision of Chief of SANDF not to re-instate member
correctly set aside by court below on account of procedural unfairness – order of re-
instatement of member incorrectly made and set aside.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Wentzel AJ sitting as
court of first instance):
(a) The appeal succeeds to the extent that paragraph 2 of the order of the court
below is set aside.
(b) The order of the court below is accordingly amended to read as follows:
‘1 The decision of the second respondent not to re-instate the applicant made on 4
June 2013 is reviewed and set aside.
2 The respondents are ordered to pay the applicant’s party and party costs.’
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Plasket AJA (Ponnan and Majiedt JJA AND Mbatha and Schippers AJJA
concurring)
[1] The respondent, Mr Jonas Molefi Mamasedi, held the rank of sergeant in 1
South African Tank Regiment in the South African National Defence Force (SANDF)
before his dismissal. He challenged by way of a review application a decision taken
by the second appellant, the Chief of the SANDF, not to re-instate him. Wentzel AJ,
sitting in the Gauteng Division of the High Court, Pretoria, made an order setting (1)
aside the Chief of the SANDF’s decision not to re-instate Mamasedi; (2) directed that
he be re-instated ‘as a member of the South African National Defence Force with full
benefits including his salary from 15 December 2011’; and (3) directing the appellants
to pay Mamasedi’s costs. When the appellants applied for leave to appeal against
her order, she granted leave to appeal to this court.

The facts

[2] On 29 November 2011, Mamasedi failed to report for duty as he was required
to do. He remained absent without leave until 18 January 2012, when he returned to

his unit. By that time, however, he was, in terms of s 59(3) of the Defence Act 42 of
2002 (the Act), deemed to have been dismissed for misconduct. Section 59(3)
provides:
‘A member of the Regular Force who absents himself or herself from official duty without the
permission of his or her commanding officer for a period exceeding 30 days must be
regarded as having been dismissed if he or she is an officer, or discharged if he or she is of
another rank, on account of misconduct with effect from the day immediately following his or
her last day of attendance at his or her place of duty or the last day of his or her official leave,
but the Chief of the Defence Force may on good cause shown, authorise the reinstatement
of such member on such conditions as he or she may determine.’

[3] It has been held by this court, dealing with similar provisions in other
employment-related legislation, that dismissal follows absence in excess of the
prescribed period by operation of law, consequently no decision is taken to dismiss
the employee that is susceptible to review, but that thereafter a decision may be
taken to reverse a dismissal if good cause for so doing is shown.1

[4] According to Mamasedi, after his return to his unit, and on discovering that he
had been dismissed, he travelled to the SANDF’s Headquarters in Pretoria to lodge a
grievance about his discharge. He was advised to return to his unit in Bloemfontein,
which he did, and to lodge his grievance with his commanding officer.

[5] His commanding officer, Lieutenant-Colonel Jansen, informed him that she
would ‘only deal with [the] grievance as soon as she receives a confirmation from
SANDF, Pretoria’. In the meantime, she said, Mamasedi should remain in the
barracks. He left the barracks on 9 March 2012 when he was, he claimed,
‘unceremoniously locked out of the barracks’.

[6] In the meantime, a board of enquiry had been convened on 18 January 2012
– the day of Mamasedi’s return to his unit – to investigate the reasons for
Mamasedi’s absence without leave and to make recommendations to the Chief of the
SANDF in that regard. The board of enquiry had yet to make a recommendation by 7

1 Minister van Onderwys en Kultuur en andere v Louw 1995 (4) SA 383 (A) at 388G-I; Phenithi v
Minister of Education & others 2008 (1) SA 420 (SCA) paras 9-11.

December 2012 when Mamasedi made representations to the Chief of the SANDF.
Receipt of the representations was confirmed on behalf of the Chief of the SANDF on
22 January 2013. In his representations, Mamasedi stated that he had been absent
without leave because he had been ‘abducted and taken to an initiation school for the
period from 29 November 2011 to 31 December 2011’.

[7] The letter acknowledging receipt of the representations informed Mamasedi
that ‘the matter is currently being investigated and a response will be made available
in due course’.

[8] On 11 July 2013, Mamasedi received ‘final feedback from SA Army
Headquarters regarding the Ministerial Enquiry’ into his absence without leave. The
report of the board of enquiry, including its recommendation, dated 21 February
2013, was attached. The board of enquiry recommended to the Chief of the SANDF
that Mamasedi not be re-instated. The Chief of the SANDF accepted the
recommendation and decided not to re-instate Mamasedi.

[9] The board of enquiry appears to have been convened in terms of s 101 of the
Act. Section 101(1) provides:
‘The Minister, the Secretary for Defence or the Chief of the Defence Force may, at any time
or place, convene a board of inquiry to inquire into any matter concerning the Department,
any employee thereof or any member of the Defence Force or any auxiliary service, any
public property or the property or affairs of any institution or any regimental or sports funds of
the said Force, and to report thereon or to make a recommendation.’

[10] I have said that the board of enquiry appeared to have been convened in
terms of s 101(1) of the Act because the answering affidavit of the Chief of the
SANDF is unhelpful in this respect. He does not say whether he or someone else
convened the board of enquiry and nor is the convening order disclosed. Because
the board of enquiry was referred to in its report as a ‘ministerial enquiry’ it
presumably was convened by the Minister of Defence and Military Veterans in terms
of s 101(1) of the Act.

[11] Both counsel for the appellants and for Mamasedi assumed that the board of
enquiry was one contemplated by s 103 but that assumption is incorrect, and both
conceded as much in argument. A board of enquiry contemplated by s 103 is
convened by the absentee soldier’s commanding officer while the soldier is still
absent without leave and its purpose is to establish the fact that the soldier is absent
without leave and whether any of his or her kit is missing. It has no power to
determine the reasons for the absence without leave.2

The issues

[12] Two issues arise for decision. They are, first, whether the decision not to re-
instate Mamasedi was vitiated by a failure of procedural fairness in that he was not
given an oral hearing before the board of enquiry made its recommendation to the
Chief of the SANDF and to comment on the recommendation; and secondly, if that
point succeeds, whether re-instatement was relief that was competent in the
circumstances. The implications of our findings, insofar as the question of costs are
concerned, will also have to be considered.

Procedural fairness

[13] The procedure that was followed in this case was a two-stage process. The
board of enquiry investigated the facts relevant to the reason for Mamasedi’s
absence without leave, and made a recommendation to the Chief of the SANDF, who
then took a decision in terms of s 59(3) of the Act. This appears to have been a
sensible approach because a factual dispute existed as to whether or not Mamasedi
had been abducted and taken to an initiation school, or had gone there of his own
free will.

2 Section 103 provides:
‘(1) When any member of the Defence Force has been absent without leave for more than 30 days
and is still absent, a board of inquiry must be convened by the commanding officer of the absent
member to inquire into such absence.
(2) If a routine inspection reveals any deficiency in the kit, arms and equipment or any public property
issued to the person contemplated in subsection (1), the board of enquiry may also inquire into such
deficiency.
(3) If the board of inquiry finds that such member has been so absent for more than 30 days and is still
so absent, it must record such finding, including the date of the commencement of the absence
without leave, and also its finding on any deficiencies of the kit, arms and equipment and any public
property issued to him or her and the estimated value thereof.’

[14] In my view, the two-stage process in this case must be viewed holistically and
be seen as affecting rights at each stage, as was held to be the case in Minister of
Health & another NO v New Clicks South Africa (Pty) Ltd & others (Treatment Action
Campaign & another as amici curiae),3 rather than as a bifurcated process involving,
first, an investigation with no effect on rights and, secondly, a decision that affects
rights, as was the approach in such cases as Cassem en ‘n ander v Oos-Kaapse
Komitee van die Groepsgebiederaad en andere4 and South African Defence and Aid
Fund & another v Minister of Justice.5 The latter two cases, based as they were on
the discredited ‘classification of functions’ approach to procedural fairness and the
idea that a right to be heard only applied if it was impliedly incorporated into the
empowering provision, are not compatible with s 33 of the Constitution.

[15] The investigation of the board of enquiry followed by the decision taken by the
Chief of the SANDF not to re-instate Mamasedi – to refuse to make a ‘determination’
– taken together, was an administrative action as defined in s 1 of the Promotion of
Administrative Justice Act 3 of 2000 (the PAJA): it was an exercise of a statutory
power of a public and administrative nature taken by an organ of State which
adversely affected Mamasedi’s rights and which had a direct, external legal effect.6

[16] The PAJA gives effect to the fundamental right to administrative action that is
lawful, reasonable and procedurally fair.7 Section 3, insofar as it is relevant to this
case, provides:
‘(1) Administrative action which materially and adversely affects the rights or legitimate
expectations of any person must be procedurally fair.
(2) (a) A fair administrative procedure depends on the circumstances of each case.

3 Minister of Health & another NO v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign &
another as amici curiae) 2006 (2) SA 311 (CC) paras 137 and 141 (Chaskalson CJ), 441-442 (Ngcobo
J) and 672 (Moseneke J). See too Administrator, Cape & another v Ikapa Town Council 1990 (2) SA
882 (A) at 889J-890C; Director: Mineral Development, Gauteng Region & another v Save the Vaal
Environment & others 1999 (2) SA 709 (SCA) para 19; Oosthuizen’s Transport (Pty) Ltd & others v
MEC, Road Traffic Matters, Mpumalanga & others 2008 (2) SA 570 (T) para 25.
4 Cassem en ‘n ander v Oos-Kaapse Komitee van die Groepsgebiederaad en andere 1959 (3) SA 651
(A).
5 South African Defence and Aid Fund & another v Minister of Justice 1967 (1) SA 263 (A).
6 The PAJA, s 1. See the definitions of ‘administrative action’ and ‘decision’. See too Grey’s Marine
Hout Bay (Pty) Ltd & others v Minister of Public Works & others 2005 (6) SA 313 (SCA) paras 21-24.
7 Constitution, s 33.

(b) In order to give effect to the right to procedurally fair administrative action, an
administrator, subject to subsection (4), must give a person referred to in subsection (1) -
(i)
adequate notice of the nature and purpose of the proposed administrative
action;

(ii)
a reasonable opportunity to make representations;

(iii)
a clear statement of the administrative action;
(iv)
adequate notice of any right of review or internal appeal, where applicable;
and

(v)
adequate notice of the right to request reasons in terms of section 5.
(3) In order to give effect to the right to procedurally fair administrative action, an
administrator may, in his or her or its discretion, also give a person referred to in subsection
(1) an opportunity to-
(a)
obtain assistance and, in serious or complex cases, legal representation;
(b)
present and dispute information and arguments; and
(c)
appear in person.’

[17] Section 3(5) of the PAJA provides that where an administrator ‘is empowered
by any empowering provision to follow a procedure which is fair but different from the
provisions of subsection (2), the administrator may act in accordance with that
different procedure’.

[18] Section 6(1) of the PAJA provides that any person affected by administrative
action ‘may institute proceedings in a court . . . for the judicial review of an
administrative action’. Section 6(2) catalogues the grounds upon which administrative
action may be reviewed. Section 6(2)(c) provides that administrative action may be
reviewed by a court if ‘the action was procedurally unfair’.

[19] The proceedings of the board of enquiry were regulated, procedurally, by s
102 of the Act. Section 102(4) provides that the evidence given in any hearing of a
board of enquiry must be given orally, subject to three exceptions not relevant in this
case.8 Section 102(6) provides that if a person’s reputation is likely to be affected by
evidence adduced before a board of enquiry, that evidence must be given orally even
if one of the exceptions applies, and the person affected has the right to be present,

8 Section 102(5).

to cross-examine the witness who tendered it, to testify himself or herself and to call
witnesses.

[20] Section 102(7) places an obligation on the president of the board of enquiry to
notify such an affected person timeously ‘of the time and place’ of every meeting of
the board of enquiry and of his or her rights in terms of s 102(6). That person, in
terms of s 102(7), may address the board of enquiry on the evidence that had been
tendered in favour of and against him or her and has a right to legal representation at
his or her own expense or assigned to him or her at State expense. Finally, s 102(9)
provides:
‘Before the record of proceedings is submitted to the person who convened the board, the
relevant findings and recommendations of a board of inquiry must be communicated to each
person who is adversely affected by such findings and recommendations and that person
has the right to make written representations to the person who convened the board of
inquiry within 14 days of receipt of the relevant findings and recommendations.’

[21] It is clear from s 102 that Mamasedi, being a person whose reputation was
likely to be affected by evidence led before the board of enquiry, had a right to
participate in its proceedings. The procedural rights he enjoyed extended beyond the
minimum core rights to procedural fairness envisaged by s 3(2) of the PAJA. He had
a right to give oral evidence, to call witnesses, to cross-examine witnesses and to be
legally represented. The procedure created by s 102 of the Act is more extensive in
its procedural protections than the PAJA and on that account, I find that it is a
procedure that is fair and different to s 3(2) of the PAJA, as contemplated by s 3(5) of
the PAJA.9

[22] It is common cause that Mamasedi was never afforded the opportunity to
participate in the proceedings of the board of enquiry and neither were its findings
and recommendation communicated to him for his comments before being forwarded
to the Chief of the SANDF. His right to procedurally fair administrative action was
violated, and the ground of review envisaged by s 6(2)(c) of the PAJA was

9 Police and Prisons Civil Rights Union & others v Minister of Correctional Services & others (No. 1)
2008 (3) SA 91 (E) para 71.

established, with the result that the Chief of the SANDF’s decision not to re-instate
him was correctly set aside by the court below.

Re-instatement

[23] After the court below had made an order setting aside the decision of the Chief
of the SANDF, a further order was made re-instating Mamasedi retrospective to 15
December 2011. That order cannot stand. I say this for two reasons.

[24] The first reason is that re-instatement does not follow from the setting aside of
the decision not to re-instate Mamasedi. He was discharged by operation of law in
terms of s 59(3) and, in the absence of a decision by the Chief of the SANDF to re-
instate him, he remains dismissed from the SANDF.

[25] The second reason is that, if Wentzel AJ purported to substitute her decision
for that of the Chief of the SANDF, she misdirected herself in doing so. Administrative
decision-making powers are vested by legislation in administrators and not judges.
When an administrative decision is set aside on review, generally speaking, it must
be taken again by the administrator concerned. As a general rule, judges are
precluded by the doctrine of the separation of powers, which allocates powers among
the branches of government, from taking such decisions themselves. They also often
do not have the expertise to do so.10

[26] It is only in limited circumstances when such a ‘usurpation’ of administrative
power is permitted. Section 8(1)(c)(ii) of the PAJA provides that ‘in exceptional
circumstances’ a court, having reviewed and set aside administrative action may
substitute or vary the administrative action. In Trencon Construction (Pty) Ltd v
Industrial Development Corporation of South Africa Ltd & another,11 the
Constitutional Court set out the way in which the exceptional circumstances
exception is to be applied:

10 Gauteng Gambling Board v Silverstar Development Ltd & others 2005 (4) SA 67 (SCA) paras 28-29.
11 Trencon Construction (Pty) Ltd v Industrial Development Corporation fo South Africa Ltd & another
2015 (5) SA 245 (CC); [2015] ZACC 22 para 47.

‘To my mind, given the doctrine of separation of powers, in conducting this enquiry there are
certain factors that should inevitably hold greater weight.  The first is whether a court is in as
good a position as the administrator to make the decision. The second is whether the
decision of an administrator is a foregone conclusion. These two factors must be considered
cumulatively. Thereafter, a court should still consider other relevant factors. These may
include delay, bias or the incompetence of an administrator. The ultimate consideration is
whether a substitution order is just and equitable. This will involve a consideration of fairness
to all implicated parties. It is prudent to emphasise that the exceptional circumstances
enquiry requires an examination of each matter on a case-by-case basis that accounts for all
relevant facts and circumstances.’

[27] In this case, if Wentzel AJ indeed intended to substitute the Chief of the
SANDF’s decision with her decision, she did not expressly consider whether
exceptional circumstances were present. If she had, she would have found
immediate difficulties in following this course because there was, on her own
showing, an irresolvable dispute of fact as to whether Mamasedi was abducted or
went to the initiation school voluntarily. She simply was not in any position, let alone
as good a position as the Chief of the SANDF, to take the decision to re-instate
Mamasedi.12 Without the factual dispute having been resolved one way or the other,
it could not be said that the decision was a foregone conclusion. There is,
furthermore, no indication that the Chief of the SANDF is biased or otherwise
precluded from taking the decision again when the facts are properly determined.

[28] In the result, the appeal must succeed to the extent that the order re-instating
Mamasedi must be set aside.

Costs

[29] Counsel for the appellants very fairly conceded that Mamasedi was entitled to
his costs in the court below. Having taken instructions, he also was prepared to
concede that, even though the appellants had achieved significant success on
appeal, the parties should each bear their own costs of the appeal.

12 Intertrade Two (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape & another 2007 (6) SA
442 (Ck) para 43.

The order

[30] The following order is made:
(a) The appeal succeeds to the extent that paragraph 2 of the order of the court
below is set aside.
(b) The order of the court below is accordingly amended to read as follows:
‘1 The decision of the second respondent not to reinstate the applicant made on 4
June 2013 is reviewed and set aside.
2 The respondents are ordered to pay the applicant’s party and party costs.’

____________________
C M Plasket
Acting Judge of Appeal

APPEARANCES
For the Appellants:
V D Mtsweni
Instructed by:
The State Attorney, Pretoria

The State Attorney, Bloemfontein

For the respondent:

D Lebethe
Instructed by:

Ditheko Lebethe Attorneys, Pretoria
Webbers, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
24 November 2017

STATUS
Immediate

Minister of Defence & another v Mamasedi (622/2017)
_____________________________________________________________________

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

The Supreme Court of Appeal (the SCA) today upheld in part an appeal against a judgment
that had reviewed and set aside the decision of the second appellant not to re-instate the
respondent, and had ordered his re-instatement.

The issue before the SCA was whether the decision not to re-instate the respondent was
vitiated by a failure of procedural fairness in that he was not given an oral hearing before a
board of enquiry made its recommendation to the Chief of the SANDF and to comment on the
recommendation; and secondly, whether re-instatement was relief that was competent in the
circumstances.

The respondent, Mr Jonas Molefi Mamasedi, held the rank of sergeant in 1 South African
Tank Regiment in the South African National Defence Force (SANDF) before his dismissal.
He challenged by way of a review application a decision taken by the second appellant, the
Chief of the SANDF, not to re-instate him. Wentzel AJ, sitting in the Gauteng Division of the
High Court, Pretoria, made an order setting aside the Chief of the SANDF’s decision not to re-
instate the respondent; and directed that he be re-instated as a member of the South African
National Defence Force with full benefits including his salary from 15 December 2011.

On 29 November 2011, the respondent failed to report for duty as he was required to do. He
remained absent without leave until 18 January 2012, when he returned to his unit. By that
time, however, he was, in terms of s 59(3) of the Defence Act 42 of 2002 (the Act), deemed to
have been dismissed for misconduct. According to the respondent, after his return to his unit,
and on discovering that he had been dismissed, he travelled to the SANDF’s Headquarters in
Pretoria to lodge a grievance about his discharge. He was advised to return to his unit in
Bloemfontein, which he did, and to lodge his grievance with his commanding officer.

In the meantime, a board of enquiry had been convened on 18 January 2012 – the day of the
respondent's return to his unit – to investigate the reasons for the respondent's absence
without leave and to make recommendations to the Chief of the SANDF in that regard. The
board of enquiry had yet to make a recommendation by 7 December 2012 when the
respondent made representations to the Chief of the SANDF. Receipt of the representations
was confirmed on behalf of the Chief of the SANDF on 22 January 2013. In his

representations, the respondent stated that he had been absent without leave because he
had been ‘abducted and taken to an initiation school for the period from 29 November 2011 to
31 December 2011’.

On 11 July 2013, the respondent received ‘final feedback from SA Army Headquarters
regarding the Ministerial Enquiry’ into his absence without leave. The board of enquiry
recommended to the Chief of the SANDF that the respondent not be re-instated. The Chief of
the SANDF accepted the recommendation and decided not to re-instate the respondent.

The SCA held that it was clear from s 102 of the Act that the respondent, being a person
whose reputation was likely to be affected by evidence led before the board of enquiry, had a
right to participate in its proceedings. The procedural rights he enjoyed extended beyond the
minimum core rights to procedural fairness envisaged by s 3(2) of the Promotion of
Administrative Justice Act 3 of 2000 (the PAJA). He had a right to give oral evidence, to call
witnesses, to cross-examine witnesses and to be legally represented.

The SCA held further that it was common cause that the respondent was never afforded the
opportunity to participate in the proceedings of the board of enquiry and neither were its
findings and recommendation communicated to him for his comments before being forwarded
to the Chief of the SANDF and therefore his right to procedurally fair administrative action
was violated.

The SCA found that after the court below had made its order setting aside the decision of the
Chief of the SANDF, a further order was made re-instating the respondent retrospective to 15
December 2011 and the latter order could not stand as re-instatement did not follow from the
setting aside of the decision not to re-instate the respondent. He was discharged by operation
of law in terms of s 59(3) and, in the absence of a decision by the Chief of the SANDF to re-
instate him; he remained dismissed from the SANDF.

~~ ends~~