‘Since September 1992 I have been subjected to a board of inquiry, a procrastinated investigation carried out arbitrarily and with
ignorance of my rights, as well as two courts-martial. After all these events, I have a clean disciplinary record as an employee
of the SANDF. However, I have been removed from my post and placed in a position where, since March 1995 to date, I have been literally
without a desk and have not received a single responsibility, task or function commensurate with my rank, experience, skills and
expertise. I have been deprived of any prospect of aspiring to higher goals, of achieving any promotion or of furthering my career
in the SA navy … For this I have not received any reasonable explanation.’
4]
His resignation took effect on 31 December 1997. Six months later, he issued summons claiming R2.97 million in lost income as a result
of constructive dismissal. The matter came to trial more than six years later. Evidence and argument were heard over twenty five
court days in October and November 2004. After a further delay of sixteen months, Yekiso J delivered judgment in March 2006. He found
that the employment relationship had not broken down irretrievably. Weighing each individual complaint the plaintiff advanced, he
held that none of them rendered the plaintiff’s position intolerable, or caused him to resign. He therefore dismissed the action
with costs, including the costs of two counsel. This appeal is with his leave (which he granted subject to conditions; though these
contained no effective restriction on the issues or evidence before us).
The applicable legal framework
5]
In arguing the appeal, the parties agreed on the legal framework. There is no directly applicable statute. The Labour Relations Act
66 of 1995 (the LRA) expressly excludes members of the South African National Defence Force from its operation. Its expansive protections therefore did not cover the plaintiff in his employment with the defendant. However, section 23 (1) of
the Bill of Rights (of which the LRA is the principal legislative off-shoot) provides that ‘Everyone has the right to fair
labour practices’. This includes members of the defence force. The parties agreed in argument that the plaintiff was entitled to rely directly on this right, as also on the right to dignity, which is a close associate of the right to fair labour practices. However, it is in my view best to understand the impact of these rights on this case through the constitutional development of the
common law contract of employment. This contract has always imposed mutual obligations of confidence and trust between employer and
employee. Developed as it must be to promote the spirit, purport and objects of the Bill of Rights, the common law of employment must be held to impose on all employers a duty of fair dealing at all times with their employees –
even those the LRA does not cover.
6]
This case involves the particular application of that duty where the employee terminates the contract of service. For formally the
plaintiff was not dismissed: he resigned. He did so, he said in his resignation letter of 11 June 1997, because the navy’s
‘continual unfair and ill-treatment’ of him over the preceding two and a half years left him ‘with no alternative’.
The form in which the termination of service was clad cannot deprive him of his cause of action. That is the position under the LRA,
and for the reasons that follow the position under the common law as constitutionally developed can be no different.
7]
The LRA, which confers ‘the right not to be unfairly dismissed’ (s 185), defines ‘dismissal’ to include the
situation where ‘an employee terminated a contract of employment with or without notice because the employer made continued
employment intolerable for the employee’ (s 186). This provision made statutorily explicit what the jurisprudence of the industrial court and the labour appeal court had already achieved
under the unfair labour practice dispensation, which Parliament introduced in 1979: that unjustified conduct on the part of an employer that drives an employee to leave should be treated as a dismissal, even where,
in form, it is the employee who resigns.
8]
The term used in English law, ‘constructive dismissal’ (where ‘constructive’ signifies something the law deems to exist for reasons of fairness and justice, such as notice, knowledge, trust, desertion), has
become well-established in our law. In employment law, constructive dismissal represents a victory for substance over form. Its essence
is that although the employee resigns, the causal responsibility for the termination of service is recognised as the employer’s
unacceptable conduct, and the latter therefore remains responsible for the consequences. When the labour courts imported the concept
into South African law from English law in the 1980s, they adopted the English approach, which implied into the contract of employment
a general term that the employer would not without reasonable and proper cause conduct itself in a manner calculated and likely to
destroy or seriously damage the relationship of confidence and trust with the employee: breach of the term would amount to a contractual
repudiation justifying the employee in resigning and claiming compensation for dismissal.
9]
In 1995 the LRA expressly codified unfair employer-instigated resignation as a dismissal. Even though that does not apply here, the
constitutional guarantee of fair labour practices continues to cover a non-LRA employee who resigns because of intolerable conduct
by the employer, and to offer protection through the constitutionally developed common law. If it is thus found that unfair conduct
by the navy forced the plaintiff to resign, he would be entitled to damages for dismissal. This follows from the fact that all contracts
are subject to constitutional scrutiny: this includes employment contracts outside the LRA. Whether an employer dismisses such an employee in violation of the right to fair
labour practices, or unfairly precipitates a resignation, is a matter of form, not constitutional substance.
10]
And it is no longer necessary under either the constitutionally developed common law or under the LRA to continue to invoke concepts
such as repudiation (as was previously necessary) to unmask the true substance of the parties’ dealings.
11]
That substance, as was pointed out before the 1995 LRA, is that the law and the Constitution impose ‘a continuing obligation
of fairness towards the employee on … the employer when he makes decisions affecting the employee in his work’. The obligation has both a formal-procedural and substantive dimension; it is now encapsulated in the constitutional right to fair treatment in the workplace.
12]
In detailing this right, the parties freely invoked the carefully-considered jurisprudence the labour courts have evolved in dealing
with unfair employer-instigated resignations under the labour relations legislation of the past three decades. These cases have established
that the onus rests on the employee to prove that the resignation constituted a constructive dismissal: in other words, the employee
must prove that the resignation was not voluntary, and that it was not intended to terminate the employment relationship. Once this is established, the inquiry is whether the employer (irrespective of any intention to repudiate the contract of employment)
had without reasonable and proper cause conducted itself in a manner calculated or likely to destroy or seriously damage the relationship
of confidence and trust with the employee. Looking at the employer’s conduct as a whole and in its cumulative impact, the courts
have asked in such cases whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to
put up with it.
13]
It deserves emphasis that the mere fact that an employee resigns because work has become intolerable does not by itself make for constructive
dismissal. For one thing, the employer may not have control over what makes conditions intolerable. So the critical circumstances
‘must have been of the employer’s making’. But even if the employer is responsible, it may not be to blame. There are many things an employer may fairly and reasonably do that
may make an employee’s position intolerable. More is needed: the employer must be culpably responsible in some way for the intolerable conditions: the conduct must (in the formulation
the courts have adopted) have lacked ‘reasonable and proper cause’. Culpability does not mean that the employer must have wanted or intended to get rid of the employee, though in many instances of
constructive dismissal that is the case.
14]
As will emerge (and here I differ respectfully from the trial court’s findings), there can in my view be little doubt that at
the time he resigned the plaintiff’s position at work was intolerable,. There was equally little doubt that this was because
of the navy’s conduct. But behind this lies a more difficult question – did the navy have reasonable and proper cause
for what it did in making the plaintiff’s position intolerable? Viewed through the constitutional standard, did the navy, even
though it made the plaintiff’s position intolerable, act fairly in doing so? On the answer to that question this case turns.
The plaintiff’s case
15]
The plaintiff was appointed commander of the military police station at Simonstown naval base in September 1989. His grief started
three years later, when a petty officer under his command, Boois, alleged irregularities in the management of the station. The officer
commanding (OC) the naval base, commodore De Vos, convened a two-officer board of inquiry to investigate. The board’s findings
vindicated the plaintiff, and castigated Boois, who, it found, ‘committed misdemeanours in the witness box’: ‘None
of the allegations made by petty officer Boois could be substantiated’, the board found, other than ‘some minor incidents’.
The board recommended a formal verbal reprimand to the plaintiff for swearing and other transgressions, but said that Boois should
not only be transferred, but served with a formal written reprimand for the ‘offence of unproven allegations’.
16]
Events intensified some months later, when the plaintiff charged another junior ranking under his command, Alben, with theft. The
charge resulted in Alben’s conviction in a civilian court and his discharge from the navy. But he returned to haunt the plaintiff
when in September 1993 he ‘confessed’ to having been part of an alleged scheme, instigated by the plaintiff, to plant
dagga in Boois’s car the previous November, supposedly to avenge Boois’s abortive complaints. Both Boois and Alben made
their claims under oath. Their affidavits in hand, the navy within days convened a preliminary investigation. The plaintiff and two
alleged co-planters were arrested and, while the investigation was under way, briefly barred from the naval work environment and
ordered not to contact named witnesses.
17]
The investigation was held almost immediately. Its report cleared the three: their accusers, it found, had a motive to falsely incriminate
them; there were contradictions in their evidence; and the accused’s questions to them revealed a reasonably possibly true
defence. Given these considerations, the legal advisor at naval headquarters (HQ), commander Dunn, advised that charges be dropped
because there was no prima facie case. Before the month’s end, the chief of the navy, vice-admiral Simpson-Anderson, accepted
this advice – and the plaintiff’s commanding officer, De Vos, was formally told there would be no prosecution.
18]
But the descent into recrimination had already begun. Before even the preliminary investigation cleared him, the plaintiff had complained
to lieutenant commander Curry, the senior staff officer for military policing in Pretoria (who was to become his friend and staunchest
defender), that he was ‘upset, humiliated and hurt’ by the instruction to refrain from contacting witnesses. These complaints
he repeated and elaborated in a memorandum to his OC De Vos, expressing the prescient fear that ‘In spite of being cleared
by both the board of inquiry and the preliminary investigation, … damage has been done to my credibility and to my reputation
as a police officer and in my private life … [and] that there will always be doubt about me in the minds of my superiors in
Pretoria, which is sure to affect my future career and promotion in the SA navy’. He warned that he intended to seek legal
advice (though at that stage he did not).
19]
But that was by no means the end of the dagga-planting claims: Boois retained attorneys, who challenged the decision to drop the investigation.
They demanded to see the preliminary investigation record. Boois also invoked the support of an African National Congress-aligned
member of Parliament, Mr Jan Van Eck. Almost certainly in response to this pressure, and notwithstanding Simpson-Anderson’s
already-announced decision not to prosecute, the navy sent a copy of the preliminary investigation to the adjutant-general (the defence
force’s most senior legal officer, who was the legal advisor to the chief of the defence force and the officer overseeing the
legal sections in the various arms of the service). Contrary to the decision already taken, his office advised in December 1993 that
there was indeed a prima facie case against the plaintiff and his fellow accused, and that they should be prosecuted. The three were
again arrested. Navy HQ informed Boois’s attorneys that while the navy refused to supply the preliminary investigation record,
the plaintiff would after all be prosecuted.
20]
The court-martial took place in a blaze of media attention at the end of January 1994. Boois and Alben and two other witnesses testified.
At the end of their evidence, Curry, representing the accused, applied for their discharge. When this was refused, they closed their
cases without tendering evidence. This decision was vindicated when the presiding officer acquitted them all. So poorly did Alben
fare in testimony that he was refused indemnity from prosecution.
21]
Despite being acquitted, the plaintiff felt deeply aggrieved. He recorded later that he experienced the media coverage as ‘very
psychologically damaging’, because it ‘portrayed me as a criminal’. The navy’s written instruction to refrain
from contacting witnesses treated him, he said, ‘as a dangerous and criminal suspect’. Most crucially, however, in the
light of later events, the plaintiff recorded that he felt aggrieved that navy HQ had failed to support him. As he explained in evidence,
‘I felt that some sort of action should be taken in order to help restore my credibility’.
22]
Despite this controversy, the plaintiff in mid-1994 received a glowing performance appraisal from De Vos, and was awarded a merit
bonus: he was ‘an exceptionally trustworthy officer who is performing outstanding work’. The appraisal reported that he had decided not to take civil action against his accusers ‘because of the further adverse publicity
this will generate for the navy’.
23]
But trouble continued brewing amongst the staff under his command. The ink on the appraisal was barely dry when more controversy flared.
It involved a sponsored golf day the plaintiff organised; the disposal by staff under the plaintiff of a set of lead diving weights
that had been an exhibit in a theft case; and a weekend get-away that Curry booked at a resort to which he invited the plaintiff.
Certain of the plaintiff’s staff claimed that serious irregularities tainted all three events – and they expressed their
misgivings and resentments to warrant officer McGrath. The plaintiff had had what he described as ‘a particularly heavy clash’
with McGrath, who was a military police warrant officer working under Curry at naval HQ, at about the time McGrath inspected the
Simonstown station in November 1994 (which he gave a poor rating).
24]
McGrath returned to Simonstown in late November 1994, and collected affidavits containing complaints and allegations from disaffected
members of the plaintiff’s staff. In mid-December, navy HQ informed the plaintiff that a board of inquiry would be convened
into the allegations against him. The officer appointed to investigate, colonel Van Den Raad, was a retired military policeman from
the army, and the navy chose him (Simpson-Anderson testified) precisely to ensure a measure of outside objectivity.
25]
Shortly before Van Den Raad started his investigation, the plaintiff was informed that he was to be promoted from lieutenant commander
to full commander with effect from 1 January 1995. Although this was publicly announced, the navy moved to suspend the promotion
pending Van Den Raad’s investigation; but under pressure from the plaintiff’s lawyers (and on counsel’s advice)
it relented in February 1995. Even though the plaintiff’s OC, De Vos, who testified on his behalf, conceded that this step
was normal and involved neither irregularity nor victimisation, the incident added significantly to the plaintiff’s sense of
grievance.
26]
The Van Den Raad investigation itself proved acrimonious and combative. It started with a confrontation in which the plaintiff claimed
Van Den Raad expressed a determination to remove him from his post (De Vos testified that Van Den Raad said the same to him); the
plaintiff himself walked out of their second meeting. In the last days of 1994, Van Den Raad filed an interim report that contained
a damning assessment of procedures at the Simonstown military police station, and the plaintiff’s lack of leadership and proper
management, with (Van Den Raad claimed) no crime prevention plan, no training, no standing orders and disregard of elementary procedures
in relation to exhibits and the occurrence register. The plaintiff regarded Van Den Raad as not only ill-equipped to make these judgments,
but biased against him.
27]
De Vos objected to navy HQ in January 1995 that as the plaintiff’s OC he was not being kept informed of the investigation, and
expressed concern that Van Den Raad was ‘over-stepping his mandate’. Soon after, seven members of the plaintiff’s
unit made statements complaining about Van Den Raad’s methods. The plaintiff himself handed to Van Den Raad a complaint he
directed to navy HQ about Van Den Raad’s manner of investigation, asserting that ‘my rights as an officer and according
to the Constitution have been violated’ because Van Den Raad refused to give him a full description and itemisation of the
proposed charges, offering instead only the provisions of the military discipline code (MDC) against which he said the plaintiff
had offended. De Vos followed up these complaints in a letter to the chief of staff of navy personnel, commodore Du Toit, in March
1995, expressing his concern ‘about the manner in which col Van Den Raad has conducted his investigation’, and detailing
the statements of complaint from the plaintiff’s staff members.
28]
Du Toit had in the meantime decided that the plaintiff should be temporarily relieved of his command and placed on compulsory vacation
leave pending the outcome of the investigation. (Of this step, too, the plaintiff later complained, ‘I was yet again being
portrayed as a dangerous criminal suspect who would interfere with the investigation’.)
29]
Stripped of his command, the plaintiff was appointed temporarily to a super-numerary position at the naval staff college at Muizenberg.
Here, in a kind of living purgatory, he was to spend his time until he left the navy in December 1997. He was first appointed an
assistant staff officer for research and development under commander Smith, but explained in evidence that the job lacked discernible
content. (Du Toit countered that this was partly to assist the plaintiff to prepare for his second court-martial.) In March 1996,
midway through the court-martial, the post was changed to logistician, with more defined and elaborated responsibilities (control
over stores, budget and repairs, and responsibility for maintenance and new works by outside contractors). But the defendant conceded
in written argument that the entire staff college posting was in various respects ‘unsatisfactory’.
30]
And undoubtedly the whole period at staff college was dismal for the plaintiff, who was assigned no office (having to squat perforce
in that of a secretary), was assigned no duties, tasks or challenges he felt he could undertake, and felt snubbed and slighted by
his fellow officers. In May 1995, the college’s OC, captain Kok, registered his concern that the plaintiff was then already
‘becoming more and more demoralised while no meaningful tasks can be given to him to carry out’. The plaintiff testified
that in April 1996 he was medically diagnosed with depression and put on anti-depressant treatment. This condition eventually led
to a period in hospital in July 1997.
31]
Van Den Raad’s probe led to a second preliminary investigation against the plaintiff, which commander Scheepers conducted in
June 1995. Over his protests, the plaintiff was refused legal representation, as well as access to witness statements, whereupon
he refused to cross-examine (although, when Van Den Raad testified, setting out a damning catalogue of maladministration and misjudgments,
the plaintiff ventured to ask him whether he was sure that he was a military policeman, and whether he was acquainted with the rules
of policing). The plaintiff’s complaints about the conduct of the preliminary investigation elicited support from both Smith (who voiced
concern about ‘the apparent disregard of commander Murray’s rights’) and Kok (who suggested that ‘correct
procedures’ were not being followed).
32]
The record of Scheepers’s preliminary investigation was sent to Simpson-Anderson in June 1995, but the plaintiff’s objections
to the process triggered an offer by the navy to re-open the proceedings, which the plaintiff through his attorneys refused. Simpson-Anderson
decided in August 1995 that the evidence was sufficient to justify the plaintiff being arraigned before a court of law; but, fearing
that the navy would be blamed for acting ‘as a judge in a matter where its own interests were at stake’, he referred
the matter to the attorney-general of the Cape to consider a civilian prosecution. This proved abortive when the attorney-general
replied that it would ‘not be desirable’ for the plaintiff to be prosecuted in a civilian court.
33]
The navy now convened a court-martial – the plaintiff’s second in two years – but refused Curry permission to defend
the plaintiff, on the ground that he might be implicated in certain of the charges (including the away weekend) and might be called
as a witness. This became another enduring source of grievance to the plaintiff, even though he was ably defended by two other legally
qualified officers. The plaintiff also complained that the navy’s decision to appoint non-navy officers to preside at his trial
was ‘unusual and irregular’, even though the navy explained that it used them precisely to ensure fairness and impartiality
in the trial of a senior officer within its ranks.
34]
At the court-martial, which took place in January and May 1996, the plaintiff faced eight charges. He was convicted on two (fraud
arising from a statement he made justifying the use of false civilian number plates on a military vehicle; and failure to issue written
delegations to his staff). He was fined R1 000. But he immediately appealed, and in August 1996 two independent review officers,
Venter and Meyer, recommended he be acquitted (absence of proof of misrepresentation in regard to the use of the false number plates;
and no lawful order, but only a ‘guideline’, that written delegations were required).
35]
One of the reviewers, Venter (an air force military justice officer), added a scathing assessment of what he clearly considered a
fundamentally misdirected prosecution: it grasped, he said, at straws and revealed no criminal conduct – the criminal law should
target criminals: it should not be used as a means to address administrative mismanagement, or to ensure that force members do their
work properly.
36]
On 15 August 1996, Simpson-Anderson accepted the recommendation that the convictions and sentence be set aside. Now, apart from the
verbal reprimand of 1992, the plaintiff had been cleared of all charges. Even though the review officers had stated that he should
as far as possible now be put in the position ‘as though he had never stood trial on any charges’ (and even though Kok
started pressing for re-appointment instructions as soon as the court-martial concluded, and later urged that he be returned to his
posting as officer commanding the Simonstown military police), the navy was chary of this. This was intimated to the plaintiff in
a post-acquittal meeting with Du Toit on 13 September 1996. Riven with suspicion of the navy’s intentions, the plaintiff (who
had asked for a meeting with Simpson-Anderson, and appeared to feel slighted that he had to meet with Du Toit instead) secretly recorded
the conversation. Even though the hostile statements by subordinates had not secured any conviction against the plaintiff, Du Toit
told him that to return him to the military police would be ‘very awkward’: ‘how can you have credibility and people’s
loyalty’, he asked, ‘if those are the statements made about you?’ The awkwardness arose, Du Toit emphasised, ‘not
because of what the court is saying, but [from] what your subordinates perceive to have transpired and what they have put in statements’.
In a later confidential memorandum, Du Toit explained to the head of defence force personnel that although the plaintiff was ultimately
acquitted, the preliminary investigation had showed a prima facie case: in the result, the plaintiff ‘was no longer suitable
to act as head of naval police, since his credibility and competence to act as a police officer had been impaired, despite his acquittal’.
37]
The plaintiff was guarded when Du Toit probed him about his availability for alternative postings, saying only ‘I leave it up
to you in the sense that I’m not prepared to commit myself at the moment’. In evidence, the plaintiff explained that
he ‘refused to make any input because of the way that the conversation went.’
38]
In the meanwhile, as De Vos conceded in evidence, the defence force underwent a major restructuring between 1994 and 1996, with the
loss of large numbers of posts (Du Toit testified that naval personnel were cut from 10 000 in 1992 to 8 500 when he left in April
1999), while at the same time the former liberation movements’ soldiers had to be integrated. The defence force budget was
also being cut severely – by 14% in 1997 alone, Simpson-Anderson testified. In the period of the plaintiff’s conviction,
the military police were also subjected to a restructuring review (by Van Den Raad). The new structure took effect on 15 July 1996,
while the plaintiff was still at staff college, and shortly before his acquittal. The result was that the Simonstown post the plaintiff
had held was down-graded to a lieutenant commander’s post (or more accurately returned to its former rightful grading, since
the navy’s evidence showed that the plaintiff’s promotion to the rank of full commander while in that post had been an
error). This was done without consultation with the plaintiff.
39]
Ignorant of the fate of his post, the plaintiff persisted in his request for a meeting with the chief of the navy, but Du Toit was
again assigned to meet with him on 1 October 1996. Dunn and Curry also attended this meeting. The plaintiff was informed that in
the eyes of his superiors he had no further career as a military policeman in the navy. Instead, he was offered a senior staff officer’s
(SSO) position in Pretoria as head of ‘protection services’. The alternative would be for him to accept a voluntary severance
package. The SSO position in charge of military police was out of the question (it later went to Van Den Raad). Without inquiring
further as to what the SSO protection services offer would entail, the plaintiff abruptly left the meeting. The offer was confirmed
in writing just over a week later, but rejected in a letter from the plaintiff’s attorneys on 1 November 1996.
40]
In evidence, the plaintiff explained that he consulted Smith, to whom he reported at staff college, but made no other inquiries about
the job. Smith advised him that the navy was setting him up for failure and that accepting the post would ‘be a career suicide
move’. Cross-examination established that the plaintiff took no steps to follow up, investigate, explore or consider the details
of the post offered: but the evidence also showed that neither Du Toit nor any other naval management officer made any effort to
explain the post to the plaintiff, or to allay any apprehension on his part and thereby persuade him to take it.
41]
The scene was now set for the plaintiff’s departure from the navy, for neither side – senior management on the one, and
the plaintiff on the other – took further steps in relation to an alternative posting. The plaintiff remained at naval staff
college. On 28 October 1996, the plaintiff’s attorneys wrote at length to the defendant, setting out the plaintiff’s
complaints and claiming that the navy had ‘virtually destroyed his naval career and left him with no meaningful future in the
navy’. The letter stated that the circumstances ‘would justify a finding that there has been a constructive dismissal’
of the plaintiff, and demanded ‘compensation’ for what it called ‘a great injustice’.
42]
In May 1997, Kok recorded that it was becoming ‘increasingly more difficult to utilise’ him: a decision on his re-appointment
or future utilisation was ‘urgently needed’. On 11 June 1997, the plaintiff tendered his resignation from the navy. After
some final disputation, it took effect at the end of that year, leading to this litigation.
Assessment of the plaintiff’s case
43]
The plaintiff plainly endured hardship during the investigations into his conduct and the two court-martials he faced. His last years
in the navy were truly miserable. Despite all the steps taken against him, he emerged with a record formally clear of any stain,
save for the 1992 verbal reprimand. From his testimony (including a taxing cross-examination) he emerged as an honourable man who
became deeply burdened by his sense of grievance against the navy. Yet it seems to me that the navy established in most respects
that its management of the plaintiff’s employment was substantially fair. In one crucial respect, to which I shall return,
it did not.
44]
The plaintiff complained that the navy’s decision to prosecute him on the dagga-planting charges was politically tainted, and
that he was not given a chance to make representations before it reversed its initial decision. Given its timing, the reversal was
almost certainly prompted by political considerations. That does not mean that it was ‘tainted’. The navy and the defence
force of which it is part are significant national institutions, which rightly face scrutiny in how they deal with discipline and
complaints. The navy in my view had ample justification not to ignore Boois’s and Alben’s allegations, or to dismiss
them summarily because of doubts about credibility and motive. The decision to air the charges in a public trial was taken in the
interests of showing the public – and, more specifically, Boois – that the navy would deal fairly and fully with allegations
made under oath against a senior insider.
45]
The plaintiff’s own words were not far from the mark: the prosecution, he protested, was ‘a political move to show them
that all is fair and well in the navy’. Precisely so: but with justification. All organs of state – not least the defence
force, which had been the mailed fist of apartheid – were under intense scrutiny in the transitional era of 1994, and the navy
can in my view not be faulted for being responsive to that pressure in its management decisions.
46]
Nor did the proceedings rest on thin air. A prosecution must have at least ‘a minimum of evidence upon which [the accused] might
be convicted’. That minimum has for long been understood in our law to be ‘such information as would lead a reasonable man to conclude that
the [accused] had probably been guilty of the offence charged’. Prosecution may be justified if there is a prima facie case, consisting in allegations, supported by statements and real and documentary
evidence available to the prosecution, of such a nature that if proved in a court of law through admissible evidence, should result
in a conviction.
47]
That the defendant had. Two affidavits implicated the plaintiff in the dagga-planting incident; one from a witness who claimed that
the plaintiff had suborned him to falsify evidence and pervert the administration of justice. Despite the questions surrounding Boois’s
credibility, and Alben’s motive, the existence of the affidavits was a powerful pointer to the necessity for a public airing.
The bizarre nature of the conflicts and allegations emanating from the plaintiff’s unit from 1992 meant that it was neither
unfair nor unreasonable to ignore their claims. Simpson-Anderson testified without challenge that this was ‘the worst allegation
that I had heard of regarding an officer in the navy’. As he put it to Dr Eileen Murray, in a sympathetic response to an angry
letter of complaint (the first of three) she directed to him, as the plaintiff’s spouse, ‘the cold facts had to be aired
to ensure that truth and justice prevailed’. The decision to proceed, however distressful to the plaintiff, was in my view
not unfair or unreasonable.
48]
