IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

NOT REPORTABLE					Date:  2008-10-27

Case Number:  35674/06
& Case Number:  36618/07 

In the matter between:

LETSATSI SUN MOSIANE

and

THE MINISTER OF DEFENCE                                               First Respondent

THE CHIEF OF THE SOUTH AFRICAN NATIONAL 
DEFENCE FORCE                                                             Second Respondent

THE CHIEF OF THE SOUTH AFRICAN AIR FORCE	         Third Respondent

JUDGMENT

SOUTHWOOD J

	Case Number 35674/06

[1]	In this application the applicant seeks an order that the decision by the 	third respondent of the 9th of September 2005 to terminate the services 	of the applicant as a member of its staff be reviewed and set aside and 	that the respondents be ordered to reinstate the applicant to his 	position with the third respondent on the same terms and conditions 	with immediate effect.

[2]	Until July 2005 the applicant was a major in the South African Air 	Force.  On 16 or 17 August 2005 at a meeting with Brig Genl. Masters 	at Air Command (Air Force HQ) the applicant was informed that he had 	been dismissed with effect from 12 August 2005.  The applicant 	unsuccessfully attempted to obtain the reasons for his dismissal and 	then instructed an attorney, Jake Maseka, to assist him.  On 6 	September 2005 Jake Maseka addressed a letter to the Chief of the 	South African Air Force, the third respondent, in which the attorney 	pointed out that the applicant had been informed of his dismissal;  that 	his salary had been stopped and that he, the attorney, was not in 	possession of any documents that show that the applicant has been 	dismissed or that any disciplinary proceedings had taken place.  

[3]	On 9 September 2005 the third respondent addressed the following 	letter to Jake Maseka:

	‘TERMINATION OF SERVICE:  MR. L.S. MOSIANE

	Your facsimiles dated 31 August, 06 and 07 September 05, as well as our facsimile to your office dated 06 September 2005, refer.  

	This letter confirms that in terms of the provisions of Section 59(3) of the Defence Act, Act No 42 of 2002, your client, Mr S.L. Mosiane, has been dismissed by the Department of Defence (SA Air Force) with effect from 23 June 2005.  The reason for your client’s dismissal was on account of misconduct as a result of his absence from official duty at the Air Command for a continuous period exceeding 30 days, calculated from 23 June 2005.

	In terms of Section 59(3) of the Act, your client has the right to submit reasons to Chief of the National Defence Force why he should be re-instated.  The dismissal of your client therefore remains valid until Chief of the National Defence Force instructs otherwise.  Your client will therefore not be allowed to report for duty at the Air Command, or any other Department of Defence Unit as contemplated in your letter.

	Due to the fact that your client has been dismissed, the decision has been taken not to pursue your client’s grievances any further.  

	Regarding your request for information as per 31 August and 07 September 2005, you are referred to our facsimile of 06 September 2005.

	On 16 August 2005, your client visited the Air Force Headquarters building for an unknown reason.  As part of the entrance control measures, your client handed in his personal driver’s licence.  During this time your client was informed that he should wait for the arrival of the Military Police, but he refrained to do so.  Instead, your client left and intentionally drove through one of the security booms situated on SANDF property and drove away.  At no stage was any shot fired at either your client, or his vehicle.  The Military Police arrived after your client’s departure and took possession of your client’s personal drivers licence.  Any further queries regarding his drivers licence must be directed to Staff Sergeant Cloete at (012) 674-4280.

	In view of the abovementioned, it is emphasised that your client has been formally dismissed from the Department of Defence (SA Air Force).  You are therefore advised that in view thereof, and the fact that your client has also threatened some Air Force personnel at the Air Command in the past, your client has been declared persona non grata at the Air Command and is not allowed to enter the Air Command’s security area.  Should he do so, the necessary action will be taken against him.’

[4]	The third respondent’s letter accurately conveys the gist of section 	59(3) of the Defence Act, 42 of 2002 (‘the Act’) which reads as follows:

‘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.’

	On 12 September 2005 Jake Maseka replied to the third respondent’s letter of 9 September 2005 and said with regard to reinstatement in terms of the subsection –

‘… (o)ur client has proven beyond doubt that he was not absent from official duty for more than 30 days.  Therefore there is no need to request reinstatement from the Chief of the SA National Defence Force as contemplated by the Act.’

[5]	The applicant considered that he had been unlawfully or unfairly 	dismissed and over the following months unsuccessfully attempted to 	have this dispute determined by the Safety and Security Central 	Bargaining Council, the Public Service Commissioner, and the 	Commission for Conciliation, Mediation and Arbitration, none of which 	was prepared to exercise jurisdiction.  Eventually the applicant 	consulted attorneys J.W. Wessels and Partners Inc who, on 27 	February 2006, addressed a letter to the third respondent contending 	that the applicant’s dismissal was procedurally and substantially unfair 	and demanding that the applicant be reinstated within 3 weeks failing 	which the High Court would be approached.  According to the letter, 	the applicant was dismissed on 23 June 2005 on account of 	misconduct as a result of his absence from official duty at Air 	Command for a continuous period of 30 days and despite the 	applicant’s efforts to obtain records to show that the applicant was not 	absent without leave.  On 26 June 2006 the state attorney addressed 	the following letter to J.W. Wessels and 	Partners:

	‘MAJOR L.S. MOSIANE/MINISTER OF DEFENCE

	With reference to your letter dated 27 February 2006 and my letter dated 29 March 2006, I have to inform you that my client has instructed me as follows:

	1.	In your letter, you allege, for the reasons set out 	therein, that your client’s dismissal was 	“procedurally and substantially unlawful”.  

	2.	The concepts of procedural or substantive 	unfairness or unlawfulness of dismissal are not 	applicable in the contact (sic) of a termination of 	service in terms of section 59(3) of the Defence 	Act, 42 of 2002:

2.1	Where a member of the Regular Force has 	absented himself from official duty without 	the permission of his commanding officer 	for a period exceeding 30 days, section 	59(3) provides that he must be regarded as 	having been dismissed on account of 	misconduct, with effect from the day 	immediately following his last day of 	attendance at his place of duty or the last 	day of his official leave.

2.2	The deeming provision of section 59(3) 	came into operation when your client 	absented himself from official duty without 	the permission of his commanding officer, 	for a period exceeding 30 days.  The 	coming into operation of the deeming 	provision was not dependent on any 	decision by your client’s former 	commanding officer, a military court or 	anyone else.  In other words, the dismissal 	occurred by operation of law.

2.3	Therefore, the notification to your client that 	he has been dismissed in terms of section 	59(3) was not the consequence of a 	discretionary decision, but 	merely the notifi-	cation of a result which occurred 	by opera-	tion of law.

3.	In terms of a proviso to section 59(3), the Chief of 	the Defence Force may on good cause shown, 	authorise the reinstatement of a member on such 	conditions as he may determine.  It may be seen, 	therefore, that the proviso 	affords your client an 	opportunity to be heard and to be 	reinstated, provided that he is able to show good 	cause 	as to why the Chief of the Defence Force 	should reinstate him.

4.	This letter serves, therefore, as an invitation to 	your client to place before the Chief of the Defence 	Force material or facts which may move the latter 	to reinstate him.

5.	Should it be more convenient to do so, your client 	is welcome to deliver his representations through 	you, to this office for transmission to the Chief of 	the Defence 	Force.’

It will be noted that the state attorney explained the operation of section 59(3) of the Act:  that no decision was taken by anyone in authority and that the dismissal occurred by operation of law.  At no stage did the applicant attempt to show good cause why he should be reinstated.    

[6]	In July 2006 the applicant consulted yet another attorney, Mokwana 	Inc, and further correspondence passed between Mokwana Inc and the 	respondents.  Eventually, on 1 November 2006, Mokwana Inc 	launched this application as an urgent application for hearing on 30 	November 2006.  The respondents opposed the application and on 30 	November 2006 Patel J made the following order by agreement:

	‘(1)	The applicant’s application is struck off the roll with costs, 	which costs include the costs of two counsel;

	(2)	The applicant is to file his replying affidavit by not later 	than 16 January 2007;

	(3)	The matter will be enrolled for hearing upon a date 	mutually agreeable to the parties.’

[7]	The applicant did not attempt to enrol the application and in March 	2008 the matter was enrolled at the instance of the respondents.

[8]	Despite seeking an order that the decision by the third respondent to 	terminate the services of the applicant be reviewed and set aside 	Mokwana Inc did not use the provisions of Rule 53.  Neither the third 	respondent nor any other officer in the South African Air Force was 	called upon to despatch to the registrar a record of the proceedings 	together with his or her reasons for the decision.  The thrust of the 	applicant’s affidavit is that he was not absent without leave during the 	relevant period and he sets out where he was on a number of days 	during that period.  In summary, the applicant alleges that he was not 	formally transferred from the Directorate of Air Force Acquisitions 	(DAFA) to the Directorate of Technical Support Services (DTSS) and 	that he had no office to work in, no superior to report to and no duties 	to perform.  While agreeing that there was no formal signal to effect the 	applicant’s transfer from DAFA to DTSS the respondents have 	comprehensively answered the applicant’s allegations.  According to 	their evidence the applicant was temporarily transferred from DAFA to 	DTSS by arrangement between the directors;  he was given a Colonel 	Greebe’s office at DTSS to work in;  he was assigned the drafting of a 	manual and he was to perform this work under the supervision of 	Colonel Luden.  The applicant was required to attend the roll call every 	day in the tearoom at DTSS and the roll call records reflecting the 	applicant’s presence from 9 June 2005 to 22 June 2006 and absence 	from 23 June 2005 to 19 August 2005 are confirmed by the responsible 	warrant officer and sergeant.  It is common cause that on 23 June 2005 	Colonel Classen laid two charges against the applicant, one for 	being absent without leave and non-attendance where required to 	attend (a contravention of section 14(b) of the Military Discipline Code 	(MDC)) because the applicant left his place of duty on 21 June 2005 	without good and sufficient cause, the other for using threatening, 	insubordinate or insulting language (a contravention of section 17 of 	the MDC) because of the way the applicant spoke to Colonel Classen 	on 22 June 2005 and refused to comply with an order.  It is also not in 	dispute that members of the Military Police arrested the applicant on 	these charges on 11 July 2005 and took him to the detention barracks 	where he was detained incommunicado until 13 July 2005 when he 	was released by the military court at approximately 15h00.  The order 	contained the following conditions relating to the applicant’s work at 	DTSS:

‘9.	Major Mosiane must report at Col J.J. Visser (office D207) of Directorate Technical Support Services every working day at 07h45 for roll call.  The Major will then be handed specific tasks to complete and feedback must be given to Col. J.J. Visser.

10.	Major Mosiane must report at Col J.J. Visser (office D207) at 12h30 again.

11.	Major Mosiane must report at J.J. Visser (office D207) in 	the afternoon 16h15 before going from duty.

12.	Major Mosiane must be present at his place of 			work as determined by the task given to him for 		the duration of the day.’

[9]	It is not in dispute that the applicant failed to comply with these 	conditions.  He does not pertinently allege that he did and Col Visser 	states 	unambiguously that he did not.  Col Visser states that on 14 July 	2005 Brig Genl Emhke instructed him, Col Visser, that the applicant 	had to report to him instead of Col Classen.  He confirms that on 14 	July 2005 the applicant did not report to him and was absent without 	leave.  Col Visser states further that on 15 July 2005 quite by chance, 	he saw the applicant and his legal advisor at DTSS and he had a 	meeting with 	them at 10h00.  At the meeting he informed the applicant, 	in the 	presence of his legal representative, as well as Lt Col Le Roux 	and Lt Col Ramchuran, what the applicant’s tasks would be and the 	rules relating to the roll call and absence without leave.  Col Visser told 	the applicant that he must report for roll call at 07h45 each morning 	and he ordered the applicant not to leave the building without his 	permission and, if he, Col Visser, was not available, the permission of 	Lt Col Le Roux or Lt Col Ramchuran.  At the meeting the applicant 	requested leave of absence for the afternoon of 15 July 2005 and Col 	Visser told him he could have leave if he submitted the necessary 	application.  The applicant did not report for duty on 15 July 2005 at 	07h45, he did not apply for leave as suggested by Col Visser and he 	absented himself without leave during the afternoon of 15 July 2005.  	On 18 July 2005 after the applicant failed to attend roll call, Col Visser 	unsuccessfully attempted to communicate with the applicant to 	ascertain why.  The applicant did not provide an answer.  Col Visser 	states that the last time he saw the applicant was at the meeting of 15 	July 2005.  Lt Cols Le Roux and Ramchuran confirmed what happened 	at the meeting between the applicant and Col Visser on 15 July 2005 	and that from 15 July 2005 to the end of August 2005 the applicant did 	not approach them to arrange for absence from official duty.  Warrant 	Officer Williams and Sergeant Mokwena who called the roll at DTSS 	confirmed with reference to the roll call register that the applicant failed 	to attend roll call from 22 June 2005 to 31 August 2005.

[10]	Against this background the court must decide whether the applicant is 	entitled to the relief sought bearing in mind that the applicant seeks 	final relief on notice of motion and that such relief may be granted only 	in the circumstances outlined in Plascon-Evans Paints Ltd v Van 	Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C.  	Generally, final relief may be granted only when the facts alleged by 	the respondent together with the facts alleged by the applicant and 	admitted by the respondent justify the grant of such relief.  

	Review

[11]	Despite not having used the correct procedure the applicant seeks an 	order reviewing and setting aside the decision to dismiss him 	(allegedly) taken by the third respondent on 9 September 2005.  It was 	essential for the applicant to establish that the third respondent (or 	some other officer) took a decision on 9 September 2005 to dismiss the 	applicant.  In the absence of an administrative action, in this case, a 	decision taken by a natural or juristic person, when exercising a public 	power or performing a public function in terms of an empowering 	provision, there was nothing to review.  See section 6 read with the 	definition of ‘administrative action’ in section 1 of the Promotion of 	Administrative Justice Act 3 of 2000 (PAJA).  This was also the case 	before PAJA – see Minister van Onderwys en Kultuur en Andere v 	Louw 1995 (4) SA 383 (A) at 388G-J.  Notwithstanding the fact that 	the state attorney pertinently addressed the issue in his letter on 22 	June 2006 and told the applicant’s attorney that the applicant had been 	dismissed by operation of law in terms of section 59(3) of the Act, the 	applicant persisted in seeking to review a decision.  The respondents’ 	evidence is clear.  Neither the third respondent nor any other officer 	under his command, took a decision to dismiss the applicant.  His 	dismissal took place by operation of law in terms of section 59(3) of the 	Act.  See Minister van Onderwys en Kultuur en Andere v Louw 	supra at 388E-399I;  Phenithi v Minister of Education and Others 	2008 (1) SA 420 (SCA) para 10.  The same conclusion has been 	reached in a number of cases involving provisions, which although not 	identically worded to section 59(3) of the Act, have the same effect – 	see Mkhwanazi v Minister of Agriculture and Forestry 1990 (4) SA 	763 (D & CLD) at 768C-G;  Yanta and Others v Minister of 	Education and Culture, KwaZulu, and Another 1992 (3) SA 54 (N) 	at 55H-56B;  Dyani v Director-General for Foreign Affairs and 	Others [1998] 7 BLLR 735 (Tk) at 740-741.  The application could 	therefore be dismissed on this ground alone.

	Declaratory order

[12]	During argument the question arose whether the court should not 	issue a declaratory 	order that the dismissal of the applicant in terms of 	section 59(3) of the 	Act was invalid if the affidavits reflect that he was 	not absent without the permission of his commanding officer for a 	period exceeding 30 days.  Because of the way the parties approached 	the issue of the applicant’s absence the court considered that in order 	to do justice to the parties the court should not be limited by the 	technicality (in this case) that the applicant is seeking to review and set 	aside a decision.  On the same papers he could have sought the 	declaratory order referred to.  The applicant asked for such an 	amendment to the notice of motion.  The respondents objected to this 	procedure being adopted on the ground that the respondents would 	lose the defence of prescription.  In my view prescription does not 	apply in this case.  The applicant seeks simply to have a judicial 	determination relating to the correct facts underlying the operation of 	section 59(3) of the Act.  Accordingly, if the court should find that the 	applicant was not absent without leave for a continuous period of 30 	days (it is common cause that the period must be continuous) it should 	make such a declaration and also declare that his dismissal in terms of 	section 59(3) in 2005 was invalid and of no force and effect.  It would 	then follow that the applicant is still a major in the South African Air 	Force and would be entitled to the salary and benefits accruing from 	that position as from 23 June 2005 until he is lawfully 	dismissed.  

[13]	The question arises because of the applicant’s arrest on 11 July 	2005 and detention in the detention barracks until the afternoon of 13 	July 2005.  It is not in dispute that this period could interrupt the 30 	day period relied upon by the respondents:  i.e.  23 June 2005 to 22 	July 2005.  Four issues must be considered –

(1)	Whether the applicant’s arrest on 11 July 2005 and detention until 13 July 2005 was absence without the permission of his commanding officer for the purposes of section 59(3) of the Act;  and if so –

(2)	Whether such arrest and detention interrupted the continuous period of 30 days contemplated by section 59(3) of the Act;  and if so –

(3)	Whether the applicant was, in any event, absent without the permission of his commanding officer for a continuous period of 30 days from 14 July 2005;  and if so –

(4)	Whether the respondents are entitled to rely on the second period of 30 days from 14 July 2005.

[14]	The respondents’ counsel did not dispute that if the period of 30 days 	was interrupted the dismissal would not be lawful.  It also seems clear 	that if the approach is adopted of doing justice to both parties the 	respondents must be allowed to rely on the second period of absence.  	It is clear that if the second period of absence is established the 	applicant will be dismissed by operation 	of law.

[15]	With regard to the applicant’s arrest and detention the respondents 	referred to cases which do not pertinently deal with the issue or provide 	a clear answer.  As pointed out by Hugo J in Mkhwanazi v Minister of 	Agriculture and Forestry, KwaZulu supra at 768E-F the use of the 	words ‘absents himself’ clearly import an element of volition.  That is 	clearly inconsistent with arrest and detention.  According to the learned 	Judge the section in that case contained its own built-in remedy.  He 	says (at 769A-B) that the officer can apply for his re-employment, and, 	‘if at that time he is able to show that his absence from work was not 	voluntary, then the deemed misconduct and his discharge must 	necessarily fall away.’  This reasoning applies equally to section 59(3), 	save that this cannot be the only remedy.  In terms of section 59(3) this 	would not necessarily be sufficient for his reinstatement.  There is no 	good reason why the officer could not seek a declarator that the 	dismissal was invalid – see Minister van Onderwys en Kultuur en 	Andere v Louw supra at 338D-H.  In my view the applicant’s arrest 	and detention for almost three days is not absence without leave for 	the purposes of section 59(3) of the Act and it interrupts the period of 	30 days so that the dismissal did not occur by operation of law on 22 	July 2005.  

[16]	The difficulty is the applicant’s absence after his release from detention 	barracks on 13 July 2005.  As already pointed out, there is a formidable 	body of evidence that the applicant was absent without leave from 14 	July 2005 to 24 August 2005.  At best for the applicant this creates a 	dispute of fact which cannot be decided on the affidavits.  This is 	clearly not a case where the respondents’ evidence must be rejected 	on the papers and the probabilities do not justify referring the issue for 	the hearing of oral evidence – see Kalil v Decotex (Pty) Ltd and 	Another 1988 (1) SA 943 (A) at 979E-J.  The applicant has therefore 	not established that 	he was not absent without leave from 14 July 2005 	to 24 August 2005.  

[17]	In these circumstances, it will serve no purpose to amend the notice of 	motion as the facts do not justify the grant of a declaratory order.  The 	application will therefore be dismissed with costs.  Such costs will 	include the costs consequent upon the employment of two counsel.  In 	my view the complexity of the issues, the amount of work and the 	importance of the matter to the respondents justified the 	employment of two counsel.  

	Case Number 36618/07

[18]	While the application under case number 35674/06 was pending, the 	applicant launched this application under case number 36618/07.  After 	some preliminary skirmishing, on 23 November 2007 the respondents 	filed their answering affidavit together with an application for 	consolidation of the two applications.  On 30 November 2007 the 	applicant delivered a notice of withdrawal which reads as follows:

	‘NOTICE OF WITHDRAWAL

	TAKE NOTICE that the applicant withdraw his application under case number 36618/07 due to be heard on 14 December 2007. 

	TAKE FURTHER NOTICE that the applicant may re-instate the abovementioned application upon finalisation of pending application under case number 35674/06, should he be advised to do so.’

[19]	On 12 December 2007 the state attorney addressed the following letter 	to the applicant: 

‘YOURSELF/MINISTER OF DEFENCE AND OTHERS

I refer to your notice of withdrawal, dated 30 November 2007 under case number 36618/07 (“the document”). 

Although the document is headed “Notice of Withdrawal” its contents are unfortunately to say the least, ambiguous.  On the one hand, you purport to withdraw the application, yet, on the other hand, you state that you may reinstate the application “upon finalisation of pending application under case number 35674/06”, should you be advised to do so.

Kindly note that the withdrawal of an application has certain consequences.  These consequences include the fact that the case has come to an end.  Further, upon withdrawal of an application and in the absence of an agreement to the contrary, the respondents are entitled to costs of the application.

Kindly confirm in writing, by no later than the close of business on Friday, 14 December 2007 that you have withdrawn the application number 36618/07, as opposed to having it removed from the roll.

If your intention was, indeed, to withdraw the application, kindly indicate, further, whether you tender the costs of the application.

In the absence of any written confirmation from you to the contrary by the close of business on 14 December 2007, the respondent will proceed to make application to the court for an order for the costs of the application (number 36618/07).’

The applicant failed to clarify the notice of withdrawal.  In the circumstances the respondents were entitled to take the notice of withdrawal at face value.  If the applicant intended to merely postpone the matter he would have said so.  There was no certainty that the matter would ever proceed and it does not appear that it ever will.

[20]	The applicant did not tender costs in the notice or afterwards and the 	respondents ask for costs in terms of Rule 41(1)(c).  There is no 	reason to deviate from the general rule that the party who delivers a 	notice of withdrawal is, in effect, the unsuccessful litigant and should 	bear the costs.  There is however no justification for the costs of two 	counsel sought by the respondents.  The reserved costs of the Rule 30 	proceedings brought by the respondents will however be paid by the 	applicant.

[21]	It is recorded that the applicant who appeared in person, withdrew his 	objection to the authority of Col Gernandt to depose to the answering 	affidavits after the respondents produced the original letter from the 	Minister of Defence.  It is also recorded that the respondents’ further 	answering affidavit was not received by the court.

	Orders

[22]	I	Case Number 35674/06

The application is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel.

	II	Case Number 36618/07

The applicant is ordered to pay the respondents’ costs of the application, including the reserved costs in terms of the order made by Rabie J on 17 October 2007.

_______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT

CASE NO:  35674/06 & 36618/07

HEARD ON:  21-22 October 2008 

FOR THE APPLICANT:  In person  

FOR THE RESPONDENTS:  ADV. A.J. LOUW SC
					ADV. L.P. DICKER 

INSTRUCTED BY:  State Attorney

DATE OF JUDGMENT:  27 October 2008