THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 161/11
Not reportable

In the matter between:

THE MINISTER OF DEFENCE
First Appellant
THE SECRETARY OF DEFENCE
Second Appellant
THE CHIEF OF THE NATIONAL
DEFENCE FORCE
Third Appellant

and

SOUTH AFRICAN NATIONAL DEFENCE
UNION
First Respondent
MOSIMA MONAGENG PAINE FREDERIC
MOSIMA
Second Respondent

Neutral citation: The Minister of Defence v SA National Defence Force
(161/11) [2012] ZASCA 110 (30 August 2012)

Coram:
NUGENT, LEWIS, PONNAN, CACHALIA and
MHLANTLA JJA

Heard:
20 AUGUST 2012

Delivered:
30 AUGUST 2012

Summary:
Interdict – whether right established – peremption
of appeal – desirability of leaving intact order that
ought not to have been granted – costs – duties of
government in litigation.

___________________________________________________________

ORDER
___________________________________________________________

Application for leave to appeal from orders of North Gauteng High Court
(Pretorius J) sitting as court of first instance):

The application for leave to appeal against paragraph 2 of the order of the
court below is granted. The appeal against that order is upheld and the
order is set aside. The applicants for leave to appeal are to pay the costs
of the application and of the appeal.

___________________________________________________________

JUDGMENT
___________________________________________________________

NUGENT JA (LEWIS, PONNAN, CACHALIA and MHLANTLA JJA
CONCURRING)

[1] On 26 August 2009 many members of the South African National
Defence Force gathered at the precincts of the Union Buildings in
Pretoria to demonstrate their grievances. In doing so they contravened
military orders and a court order that had been issued that morning. Some
amongst them were armed with pistols, pangas, knobkerries and petrol
bombs. The conduct of at least some of them provoked a confrontation
with the police, who found themselves compelled to use a water cannon,
and to fire rubber bullets, in an attempt to bring things under control, and
police and military vehicles were damaged.

[2] The military authorities were rightly disturbed at what had
occurred. On 30 August 2009 they issued notices to about 1 200 members
who had been identified as having participated in the events advising
them, amongst other things, that their services were ‘provisionally
terminated’, and calling upon them to show cause within ten days why
the ‘provisional termination’ should not be confirmed.

[3] The South African Defence Union and its President (the
respondents in the proceedings before us), acting on behalf of its
members who had received such notices, launched an urgent application
in the North Gauteng High Court, citing as respondents the Minister of
Defence, the Secretary for Defence, and the Chief of the SANDF (I will
refer to them as the appellants). The respondents sought, and were
granted, two orders in the following terms:
‘Declaring that the procedure adopted by the [military authorities] as reflected in the
[notices] dated 30 August 2009 is unlawful and/or unconstitutional’
and
‘Interdicting and restraining the [military authorities], pending the finalization of a
dispute to be referred to the Military Bargaining Council (and, should the matter not
be resolved in the Military Bargaining Council, to the Military Arbitration Board) by
the [Union], from terminating and/or administratively discharging members of the
[Union] pursuant to the [notices], and/or any other similar order, bulletin or
memorandum’.

[4] The learned judge refused leave to appeal against her orders and
the appellants thereupon applied for leave to the President of this court.
The judges who considered the application directed, under s 21(3)(c)(ii)
of the Supreme Court Act 59 of 1959, that the application be heard by the
court, and that the parties be prepared to argue the merits of the appeal
should leave be granted. That application is now before us.

[5] The appellants have since abandoned their application for leave to
appeal the declaratory order, in circumstances that I come to presently,
and persist in their application only in relation to the interdict. Apart from
supporting the grant of the interdict the respondents contend that the
appellant’s right to appeal the order has been perempted. Before turning
to that issue I deal first with whether the interdict was rightly granted.

[6] The Military Bargaining Council and the Military Arbitration
Board referred to in the order that is sought to be appealed are the bodies
established under regulations 62 and 75 respectively of Chapter XX of
the General Regulations for the South African National Defence Force
and Reserve, made under the Defence Act 44 of 1957, and kept in force
by s 106(2) of the Defence Act 42 of 2002. That chapter of the
regulations deals with ‘labour rights’.

[7] The regulations allow for representation of members of the
SANDF by registered military trade unions for purposes of collective
bargaining and the resolution of labour disputes. Regulation 36 allows for
a military trade union to engage in collective bargaining and to negotiate
on behalf of its members on selected matters that include ‘labour
practices’. An ‘unfair labour practice’, which naturally falls within that
category, includes ‘the unfair suspension or dismissal of a member or
other disciplinary action short of dismissal’.

[8] Collective bargaining and the resolution of labour disputes take
place through the medium of the Bargaining Council. The Bargaining
Council comprises representatives of the SANDF and representatives of
recognized military trade unions. Its powers and duties include ‘the

prevention and resolution of labour disputes’ (reg 63). Regulation 71(2)
requires it to ‘attempt to resolve a dispute between the parties through
conciliation’. Disputes that cannot be resolved through conciliation may
be resolved by arbitration before the Military Arbitration Board.

[9] The application that was brought before the court below was
directed at the validity or otherwise of the disciplinary procedure that had
been embarked upon by the military authorities as reflected in the notices
that had been issued to members. That procedure was said by the
respondents to be unlawful for various reasons that need not now concern
us. Once the court below declared the procedure to be unlawful that was
the end of the dispute that was the subject of the application.

[10] The court nonetheless granted the interdict in addition. The reasons
for doing so do not emerge from the judgment of the learned judge, which
are directed only to why the procedure was unlawful.

[11] It is trite that for an interdict to be granted the applicant must
establish (1) that he or she has a clear right and (2) that the right has been
or is expected to be infringed and (3) the absence of similar protection by
any other ordinary remedy.1 Where the existence or otherwise of the right
has yet to be judicially determined, whether in those proceedings, or in a
related action, a court has a discretion meanwhile to grant an interdict
maintaining the status quo pending the outcome of that determination, if
the right relied upon is demonstrated prima facie.

[12] In this case the Union intimated in its founding affidavit that it
intended referring the dispute that then existed between the parties to the

1‘Interdict’ by LTC Harms in The Law of South Africa ed WA Joubert 2 ed Vol 11 paras 396-399.

Bargaining Council. The ‘right’ that it relied upon in the founding
affidavit for the grant of the interdict was expressed as follows:
‘It is submitted that [the Union] has a prima facie, if not clear, right to have the
disputes described immediately above resolved in its favour [by the Bargaining
Council or, if necessary, by the Military Arbitration Board].
What were referred to in that passage as ‘disputes’ that existed between
the parties, when seen in the context of the earlier passages, were really
no more than various facets of what was in reality a single dispute – the
dispute being whether the military authorities were entitled to adopt the
procedure that they had embarked upon.

[13] The Union’s reliance upon what was said to be a ‘prima facie’ right
was misplaced. The interdict was not directed to restraining the military
from acting pending the outcome of pending legal proceedings. It was
directed to restraining them from acting until the occurrence of an
extraneous event, which is something different. For that relief to be
granted it was incumbent upon the Union to establish that it (or the
members it represented) had a clear right that would be infringed if the
interdict was not granted.

[14] But I say that only in passing. The ‘right’ relied upon (whether
‘clear’ or ‘prima facie established’) did not support the granting of the
interdict. No doubt the Union was entitled to refer the dispute to the
Bargaining Council, but there is no suggestion that the Union or its
members were entitled to halt the proceedings that had been embarked
upon until the dispute was resolved. It might have been prudent for the
military to await the resolution of the dispute, lest they later be found to
have unfairly dismissed the members, but no basis was laid for

contending that it was not entitled to proceed until the dispute had been
resolved.

[15] On that ground alone the interdict ought not to have been granted,
but there is a further difficulty in the way of the Union. Even assuming
that a resolution of the dispute was a prerequisite to discharging the
members, that dispute was resolved by the grant of the declaratory order.
Once that order was made there was simply no dispute to refer to the
Bargaining Council.

[16] In argument before us counsel for the Union submitted that what
was yet to be resolved was the procedure to be adopted by the military,
and that the military was not entitled to proceed until agreement had been
reached on a fair procedure, or it had been determined by arbitration. That
was never the case sought to be made out in the court below and there is
nothing in the founding affidavit to support it. Indeed, it would be
extraordinary if the military was precluded from embarking upon
disciplinary proceedings without first having the agreement of the Union
or the Board’s determination of how it should do so.

[17] No grounds were made out for the grant of the interdict and in the
ordinary course it falls to be set aside. But, it was submitted on behalf of
the Union, the appellants have foregone any right they might have had to
appeal the order. For that submission they rely upon the conduct of the
appellants shortly before the matter was heard.

[18] On 26 July 2012, some three weeks before the matter was to be
heard, a spokesman for the Minister issued a media release. The release
summarised the history of the case, recording that the Union ‘took the

matter to the High Court and challenged the manner in which the
Department attempted to terminate the soldiers’ employment, and that
‘the High Court ruled in favour of the [the Union] based on the fact that
the procedure in dismissing the soldiers was not fair’. It went on to
announce that the Minister ‘has decided based on legal advice, and in
consultation with the Chief of the [SANDF] to withdraw the case from
the SCA and to charge the soldiers under the military court system.’

[19] The military court system referred to in the media release is the
system established by the Military Discipline Supplementary Measures
Act 16 of 1999. In short, that system allows for members of the SANDF
to be tried for military offences by a military court. If convicted the
military court is empowered to impose various penalties that include
dismissal from the SANDF.

[20] On 31 July 2012 the appellants’ attorney wrote to the respondents’
attorney advising, amongst other things, that ‘we are drafting our notice
of withdrawal of the appeal to be served tomorrow’. Curiously, on 2
August 2012, in response to a query by the Registrar of this court, the
appellants’ attorney wrote to the Registrar advising, without explanation,
that ‘the appellants are not withdrawing the appeal and as such the matter
is proceeding on the 20th August 2012 as set down’.

[21] On 5 August 2012 the Beeld newspaper reported that it appeared
that confusion on whether the appeal would be withdrawn had been
cleared up: the political adviser to the Minister had said the previous day
that the defence force stood by its decision to withdraw the appeal. Yet
the confusion continued. Upon enquiring on 6 August whether the
statement was correct, the appellants’ attorney informed the Union’s

attorney that he would take instructions from his client, but that ‘to date
our instructions are that we are proceeding with the Appeal on the 20th
August 2012’. Meanwhile the Union became aware that its members
were being recalled to their units. On 8 August 2012 the appellants
eventually settled into their present stance. On that day, in response to
further enquiry by the Union, the appellants’ attorney advised that ‘our
client is proceeding with its appeal’ but that ‘our client has instructed us
to advise you that the appeal will proceed only in respect of order number
2 and it conceded order number 1 of the judgment’.

[22] A party who acquiesces in a judgment will be taken to have waived
his or her right to appeal. As with all cases of the abandonment of rights,
acquiescence will not lightly be inferred. What is required to be shown is
unequivocal conduct on the part of the litigant that is inconsistent with
any intention to appeal, such as to point ‘indubitably and necessarily’ to
the conclusion that he or she intended to abandon the right.2

[23] The general rule that a litigant who has deliberately abandoned a
right to appeal will not be permitted to revive it is but one aspect of a
broader policy that there must at some time be finality in litigation in the
interests both of the parties and of the proper administration of justice.
Bearing in mind the policy underlying the rule it must necessarily be open
to a court to overlook the acquiescence where the broader interests of
justice would otherwise not be served. As this court said recently in
Government of the Republic of South Africa v Von Abo3, in response to a
similar contention that the appeal had been perempted:

2Dabner v South African Railways and Harbours 1920 AD 583 at 594 recently reaffirmed in Natal
Rugby Union v Gould 1999 (1) SA 432 (SCA) at 443 E-G.
3Government of the Republic of South Africa v Von Abo 2011 (5) SA 262 (SCA) para 19.

‘It would be intolerable if, in the current situation, this court would be precluded from
investigating the legal soundness of the first order, as a result of the incorrect advice
followed by the appellants or an incorrect concession made by them’.

[24] In this case, as pointed out by counsel for the Union, the Minister’s
spokesman said, without qualification, that the appellants, after taking
legal advice (the legal adviser has not been identified but it was none of
her legal representatives in this appeal), was abandoning the appeal. It
may be inferred from its present stance that the appellants, upon
reflection and perhaps on sounder advice, have since changed their
minds.

[25] There are two reasons why I think it would not serve the ends of
justice if the appellants were to be held to their earlier decision. The first
is that this is not a case in which the acquiescence by the respondents has
had any material consequences. It was for barely a week that the Union
was left under the impression that the application was to be abandoned.
Confusion remained for another week but by 8 August the appellants’
position had become clear. There is no suggestion that the Union or its
members acted in any way during that fortnight such that the change of
mind caused it prejudice.

[26] The second reason is perhaps more important. The appellants are
charged with a constitutional duty to maintain a disciplined defence force.
It would be intolerable if an interdict wrongly granted were to impede the
discharge of that duty. We were told that the Union accepts that the
interdict is not a barrier to proceeding in the military courts, which is the
present intention of the appellants, but that is beside the point. The
interdict was granted in the context of a specific dispute that has now

been resolved. The broad and vague language in which it was framed is
capable of restraining the military beyond the purpose for which it was
granted, which would be an abuse. That it is capable of doing so is reason
enough not to leave it in place, albeit that no such circumstances are
envisaged at present.

[27] There remains the matter of costs. The manner in which this
litigation has been conducted is disturbing. The orders were made on 1
December 2010. On 20 December 2010 the appellants applied to the
court below for leave to appeal. That application was heard on 3 March
2011 and dismissed two weeks later. This application was launched the
following day. It was referred for hearing by the court on 7 July 2011.

[28] The present stance taken by the appellants is sufficient to
demonstrate that the response to the judgment of the court below was no
more than a knee-jerk reaction. Whatever the merits of the orders granted,
the appellants had before them the considered and impartial views of a
court as to the fairness of the action they had embarked upon, and they
might be expected to have reflected upon the wisdom of pursuing their
chosen course, leaving public confidence in the discipline of the SANDF
unrestored while the litigation continued.

[29] Meanwhile for 19 months more than a thousand members of the
SANDF remained ‘provisionally dismissed’. There is no such thing as
‘provisional dismissal’ – a person is either in employment or he or she is
not. It seems that what was meant by the military was only that the
members should not present themselves for duty but would continue
being paid. The cost to the taxpayer while the matter remained in that
state must have been millions and millions of rand when, as its present

stance has shown, alternatives that would have avoided that cost were
available to the appellants. Eventually there was a scurry only weeks
before the matter was to be heard, and even then there was a fortnight of
confusion.

[30] I do not think that is how litigation should be conducted by the
government or by public bodies. Unlike private litigants they must
conduct their affairs in the public interest, which calls for mature
judgment and reflection before commencing or persisting in litigation. I
think it proper to record that we are aware that the incumbent of the
ministerial office changed only recently, which might account for the
commendable change of stance.

[31] It is true, as pointed out by counsel for the appellants, that the
Union’s continued defence of the interdict, even after the partial
abandonment, demonstrates that the appellants were always obliged to
bring these proceedings, if only to set aside the interdict, which they have
succeeded in doing. Yet it is by no means certain that the Union would
have continued its defence had the appellants not sought to appeal the
substantive order in the first place.

[32] The Union has asked for costs on the attorney and client scale but I
do not think we should accede to that. The Union might itself have
abandoned the interdict once the appellants acquiesced in the principal
order, but chose to persist for reasons that are not apparent. In my view it
should bear part of the blame for an appeal that was unnecessary, albeit
that their fault was slight in comparison to that of the appellants.

[33] The application for leave to appeal against paragraph 2 of the order
of the court below is granted. The appeal against that order is upheld and
the order is set aside. The applicants for leave to appeal are to pay the
costs of the application and of the appeal.

__________________
R W NUGENT
JUDGE OF APPEAL

APPEARANCES:

For appellant:
A Schippers SC

T Masuku

Instructed by:

Xulu Liversage Incorporated, Cape Town

Lovius-Block, Bloemfontein

For respondents:
G J Marcus SC

A Friedman

Instructed by:

Griesel Breytenbach Attorneys, Pretoria

Naudés, Bloemfontein