Zondo rescues soldier fighting axing for decades with final ruling

Outgoing chief justice Raymond Zondo came to the rescue of a SA National Defence Force (SANDF) member who had been fighting for reinstatement for more than a decade in his final judgment at the helm of the Constitutional Court.

Zondo on Wednesday delivered his final judgment before his retirement at the end of the month.

He has sat on the apex bench since September 2012. By law, the term of an apex court judge is limited to a non-renewable 12 years or on reaching retirement age, whichever occurs first.

A farewell dinner was held on Tuesday to honour Zondo before his retirement. The court held a special ceremonial sitting a day after. Former president Thabo Mbeki, justice minister Thembi Simelane, her deputy Andries Nel, National Assembly Speaker Thoko Didiza, members of legal bodies and jurists were present at the ConCourt for the special sitting.

This was preceded by a ruling, delivered by Zondo, in which the court was asked to determine whether the 30 days referenced in section 59(3) of the Defence Act 42 of 2002 “include days on which a member of the regular force is not obliged to be on official duty”.

The case was brought by Molefi Jonas Mamasedi after his dismissal from the SANDF after he was absent from work between November 29 2011 to January 3 2012.

Mamasedi claimed he had been kidnapped and taken to an initiation school “against his will and had been kept there” during that time. He was fired after a board of inquiry was established to look into “the circumstances under which he had absented himself”.

He challenged the decision in the high court and it ruled in his favour after finding the board had “failed to comply with procedural fairness”.

The defence force appealed the ruling in the Supreme Court of Appeal (SCA), which set aside the high court judgment but dismissed the appeal against the finding of the high court.

“Subsequent to the judgment of the Supreme Court of Appeal, the SANDF established another board of inquiry in 2018. That board came to the same conclusion as the first and made the same recommendations.

“Mamasedi was again aggrieved and took the outcome to the high court to challenge it again. The high court concluded the second board of inquiry had also treated Mamasedi in a procedurally unfair manner [similar] to the first board, but it refused to set aside the SANDF's decision not to reinstate him, and again Mamasedi was aggrieved,” Zondo summarised.

Mamasedi appealed to the SCA but his application was refused. He then applied to its president for “reconsideration of his matter”, but that was also refused. This is when he turned to the apex court. The SANDF opposed his application.

In his judgment Zondo found “there are clear indications in the provision” that the absence mentioned refers to “absence from official duty”.

“It is clear the section contemplates consequences for misconduct because it clearly says 'a member of the regular force who absents himself as contemplated in the section will be regarded as having been dismissed on account of misconduct'.

“The discharge could not have been on account of misconduct if the member was not at work on a day he was not supposed to work because that is not misconduct. This conclusion leads us to the further conclusion that section 59(3) was not triggered and therefore there was no basis for Mamasedi to be regarded as dismissed or discharged when he turned up for work on January 3.”

This meant Mamasedi was never dismissed from the force and has “throughout remained a member”.

The court ordered the SANDF to back pay Mamasedi and pay his costs as it upheld his appeal and set aside the high court's ruling for the second time. It also clarified that the 30 days referenced in the Defence Act referred to “those days on which a member of the regular force is obliged to be on official duty”.

The sitting continues with tributes from Zondo's deputy and incoming chief justice Mandisa Maya as well as legal bodies including Advocates for Transformation and the National Prosecuting Authority.

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