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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

CASE N0:62298/11

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

VAN DEN BERG SAMUEL JACOBS                                                             1^st PLAINTIFF

GLAS GERHARD                                                                                          2^nd PLAINTIFF

and

MINISTER OF DEFENCE AND MILITARY VETERANS                                 DEFENDANT

JUDGMENT

LUKHAIMANE AJ:

[1] This is a defended action for damages. The plaintiffs are claiming the following amounts:

1.1 Damages to the.right to dignity - R30 000 for being discharged from their respective positions of authority at the Macademia deployment with intention to damage their said right to dignity.

1.2 An amount of R50 000 each as damages to their right to freedom and dignity for being wrongfully and with the intention to damage such rights, being placed under armed guard of three military policeman in Macademia base and being transported in a military vehicle under guard on 15 June 2010.

1.3 An amount of R20 000 each for damages to their right to dignity in that on 15 June 2010, one Sergeant Duma wrongfully and with the intention to damage their dignity drove the military vehicle so recklessly that the plaintiffs feared for their lives.

1.4 An amount of R44 222 for First Plaintiff and R42 869 for Second Plaintiff being for loss of allowances and leave payments which they would have received from the SANDF up to 1 September 2010 when the Charlie Company left Macadamia base had they not have been discharged and removed from the Macademia base on 15 June 2010 for which Defendant is vicariously liable.

1.5 Interest on the amounts at the legally prescribed rate of 10.25% per annum a tempore morae to date of full payment.

1.6 Cost of suit.

1.7 Further or alternative relief.

[2] Although the said acts were committed by the late Colonel Bobelo, an employee of the Defendant and one in charge of the Macademia base as one of three bases under his command in Mpumalanga during 2010 and several other members of the Defendant, the Plaintiffs seek to hold the Defendant vicariously liable in that, the actions of the late Colonel Bobelo in removing them, damaged their dignity and were not effected in terms of the military guidance on removal of an officer/member

BACKGROUND FACTS-:

[3] First Plaintiff was deployed as Company Commander (CC) of Macademia base sometime in May 2010. Second Plaintiff was deployed as Company Sergeant Major (CSM). Both plaintiffs have been members of the SANDF for at least over ten years. Their deployment to Macademia was in support of border control efforts on the Nelspruit/Mozambique border in support of the 2010 Fifa World Cup security measures. Their members at Macademia were to replace the South African Police Services (SAPS).  As a CC, First Plaintiff had three infantry platoons and several support staff under his command. He was in charge of the Macademia base.

[4] Military bases and operations are run in terms of operational orders which are compiled by J-Tech members at Head Quarters (HQ) indicating what is required from the CC. The operational orders for Macademia were provided to the Court and indicated that operations were to commence from April 2010.

[5] Upon arrival at Macademia, Plaintiffs found that SAPS members had not yet left the base. The facilities were in less than ideal state (bathrooms, living quarters etc). HQ did not want to get involved in who was in charge between SAPS and SANDF. 180 SANDF members had to share living space suitable for 90-100 members. Plaintiffs shared living quarters.

[6] Sometime later, an investigation was ordered by late Colonel Bobelo into unhappiness of members at Macademia. The allegations were levelled against Plaintiffs (mostly First Plaintiff). Although there were many allegations, for purposes of this judgement I will only repeat those where testimony was presented to the Court by Defendant's witnesses without pronouncing on the truthfulness thereof:

6.1 members of the reserve force were abused and/or threatened with being returned to their base unit ("RTU");

6.2 members were denied the right to consult with and/or use social workers at the Macademia base and/or were threatened with being given RTU's if they requested the use of a social work;

6.3 senior official/s would raw weapons and keep them contrary to Standing Orders;

6.4 there was a misuse of power by senior official/s;

6.5 the members were forced to buy tracksuits, failing which they do not deploy;

6.6 senior officials including the first and/or Second Plaintiffs used the motto against the members of FIFO which meant and was understood by members to mean "Fit in or Fuck off '. This motto was intended to and did pose a threat to members;

6.7 members were ill-treated;

6.8 There were reasonable and/or justifiable and/or serious allegations that the Second Plaintiff had ill-treated and/or disrespected Lt TJ Ntshail.

6.9 There were reasonable and/or justifiable and/or serious allegations that the First Plaintiff had assaulted and/or ill-treated a member Sergeant Jobeta, for which he inevitably face disciplinary charges.

[7] Before the investigation was carried out, the late Colonel Bobelo visited Macademia base to talk to the members there, often in the absence of the First Plaintiff. At one stage a meeting was held with all members of Macadamia in a hall so that they can voice their concerns in respect of 'Redress of Wrongs; again in the absence of First Plaintiff. Sometimes, late Colonel Bobelo would come to Macademia without informing First Plaintiff, find that the latter is out of the base and summon him back - only to be leaving when he returns. First Plaintiff first met late Colonel Bobelo at a pre­ deployment conference and expected to have a good working relationship with him.

[8] Two members came and investigated the complaints at Macademia base as instructed by late Colonel  Bobelo and submitted a report by 4 June 2010. Statements were taken and members interviewed including the plaintiffs. A report with the following recommendations was handed to late Colonel Bobelo:

8.1 The Investigating Team recommended that:

(a) A board of inquiry should be convened based on management and safety of members,·

(b) It is advisable that the Coy Cmdr be removed temporarily, pending the proposed board of inquiry and the finalisation thereof. Having interviewed him and his denial of obvious facts, it is evident that he can destruct the proceedings of the Board of Inquiry,·

(c) It would be for a good cause to consider representatively in the deployed company,·

(d) It is recommended that the social workers should not wait to be invited to the deployment area. It must be in the program.

8.2 Late Colonel Bobelo made the following note on the report:

''I concur with the recommendations of the investigation, the members ie Maj Van den Berg and Woz Gas be immediately be withdrawn as they are both implicated in this whole investigation. Main problems surround them and currently situation is tense."

[9] On 14 June 2010, First Plaintiff was out of his office, at a high level meeting. When he got back, he found late Colonel Bobelo in his office.  First Plaintiff was told that there are serious allegations against him by late Colonel Bobelo and given a document to sign. It turned out to be a DD1 form alleging that he assaulted Sergeant Jobela. He signed the document which was not read out to him nor was he provided with a copy and was told that a car will collect him the next day, being 15 June 201Oat 11hOO. Second plaintiff was also told the same i.e a car will come and fetch him the next day, however he was not given any document to sign.

[10] On 15 June 2010, the car collected them, escorted by a military police vehicle to Potchefstroom, back to their mother base. The time the car arrived is in dispute between Plaintiffs and Defendant's witnesses. Defendant with its controls could have provided documentary evidence of the time, however failed to do so -· in any case, nothing turns on this.

[11] No board of enquiry was ever held on the Macademia allegations or report submitted to late Colonel Bobelo. First Plaintiff was charged by a Senior Military Judge, Colonel B Tlagadi at Potchefstroom for the assault on Sergeant Jobeta almost a year later and found not guilty on 13 April 2011.

[12] The following evidence was led on each one of the claims. I must however, hasten to add that given that Colonel Bobelo is now late, the Court had to rely on documentary evidence to the extent that this was forthcoming.

CLAIM 1 - UNLAWFUL DISCHARGE

[13] Warrant Officer Ntsali gave evidence pertaining to the complaint letter that he wrote to late Colonel Bobelo. He stated that members in a subsequent meeting that was held in the hall at Macadamia indicated that they were denied access to Social Workers, the language used by First Plaintiff when they complained or there was a misunderstanding was to reiterate FIFO (Fit in or Fuck off) and that members of SANDF were told not to visit with SAPS members. He also stated that once you get DD1 form, you are supposed to return to your mother unit. First Plaintiff denied that he never used the motto FIFO. First Plaintiff further stated that these allegations were ever raised with him. Warrant Officer Ntsali had stated that as far as procedure is concerned, a complaint about First Plaintiff should be directed to late Colonel Bobelo and not First Plaintiff. Counsel for First Plaintiff submitted a copy of the Military Discipline Code (MDC) as provided for in the Defence Act 44 of 1957 (the section applicable to the MDC has not been repealed by Section 106 of the Defence Act).

[14] Sergeant Jobeta testified that he was manhandled by First Plaintiff and reported this to the military police. He was also insulted by First Plaintiff. He testified that he was not present in the meeting in the hall, however some of the complaints he heard about were that the whole company was denied access to Social Workers and that other members were woken up to do 'press ups' while on guard duty by the First Plaintiff. Again the First Plaintiff denied these allegations. Sergeant Jobeta admitted that he was aware that on the assault charge, First Plaintiff was found not guilty because other witnesses contradicted Sergeant Jobeta's version, in his own words, "some witnesses that spoke against me".

[15] These allegations are similar to the ones made during the investigation ordered by late Colonel Bobelo at Macademia.  It is not necessary for this Court to decide on the truthfulness or otherwise of the allegations in order to make a finding as to whether the actions taken by late Colonel Bobelo were wrongful or not and whether they had the effect of infringing the dignity of the Plaintiffs. This is so because Defendant had the opportunity to fully investigate these issues as part of its processes and procedures after removing the Plaintiffs from Macademia and failed to do so.

[16] At the outset, it is not clear why the Second Plaintiff was removed by late Colonel Bobelo from Macademia as he was not implicated in any of these allegations. The only reference to him is that of "sharing of room" with First Plaintiff.

[17] The recommendation to late Colonel Bobelo was that the First Plaintiff be removed from Macademia, pending a board of enquiry. First Plaintiff was removed, however a board of enquiry was never held to test the veracity of the allegations against him.

[18] The process followed by late Colonel Bobelo to relieve First Plaintiff of his command at Macademia was incorrect and therefore wrongful. The actions of late Colonel Bobelo, ie excluding First Plaintiff from interactions on complaints against him, encouraging members to raise complaints against First Plaintiff with late Colonel Bobelo instead of with First Plaintiff, as first in line with the MDC and granting troops passes to town without consulting First Plaintiff had the effect of undermining the authority of the First Plaintiff. There is no other process that says that in raising concerns a member can bypass his commanding officer. Whilst it might be so that on the basis of the report, the late Colonel Bobelo was justified to temporarily relieve First Plaintiff of his command, he was still bound to follow proper procedures as per MDC.  His failure to follow proper procedures, coupled with his 'practice' (for lack of a better word) of excluding First Plaintiff in interactions with troops at Macademia and his failure to follow through with a board of enquiry had the effect of damaging First Plaintiff's dignity.

[19] The Defendant sought to indicate that since there were many complaints against the First Plaintiff, so many that morale was low at Macademia, the members could not be expected to lodge individual complaints, hence it was a group effort, which is not provided for in the MDC. This line of reasoning is with respect, without merit.  The issues being complained about were numerous and different. For example, if a member were to request the services of a Social Worker, presumably this will have to be discussed with a senior to assess whether that is necessary and/or appropriate. In the event of such request being denied, reasons would be provided.  Given that this is a service request, some sort of written request would be required - yet the Defendant offered no proof of a single request in that regard.

[20] Both Plaintiffs testified to their feelings of shock, humiliation and confusion when informed that they were relieved of the Macademia deployment not only because they were unaware of the extent of the allegations against them but also in the manner in which this was done.  This Court will not go  into much detail on this, safe to state that a defence force environment is one where the chain of command is extremely important as it reinforces discipline at all levels - a trait that is indispensible in any defence force.

(a) The manner in which the withdrawal of the Plaintiffs from deployment at Macademia took place, resulted in them suffering injury to feelings and therefore, c1n infringement of their right to dignity. (Ntsabo v Real Security CC 2003 4 ILJ 2341 (LC)).

(b) An employer, in this case the Defendant will be held vicariously liable for a delict committed by an employee, the late Colonel Bobelo in this instance if it is committed by the employee in the course and scope of his employment. It is not necessary to interpret the concept "in the course and scope of employment" in this matter as there is no dispute in that regard.

(c) The Plaintiffs have without doubt suffered an injury to their dignity which is gathered from their evidence of feeling that they let themselves and a lot of people down. They question themselves as to what they did wrong, they were left feeling confused because the allegations against them were never put to them and tested in terms of proper procedure. First Plaintiff testified that years later other members refer to the incident when they meet him.

(d) The approach to be followed in the determination of what is fair and adequate compensation for the injured party for the sequelae for his or her injuries has been detailed by Bosielo JA in Minister of Safety and Security v Tyulu 2009(5) SA 85 (SCA) at paragraph 26, as follows:

"the primary purpose is not to enrich the aggrieved party but to offer him or her some much needed solatium for his or her injured feelings.”

[21] Although the purpose of a contract of employment is mainly commercial, the contract of employment is not perceived as a purely commercial contract. There is an aspect which is strongly linked to an individual's sense of identity, dignity and humanity. A person's self-worth is often linked to his or her contributing meaningfully to society. This contribution is often dependent on a person's job or career. As such the employer is obliged to act in a reasonable or fair manner towards its employees, especially in light of the constitutionally protected right to dignity (S Vettori; The role of Human Dignity in the assessment of fair compensation for unfair dismissals PER 2012 Vol 15 No 4 page 103-106).

[22] In this instance we are considering release from specific deployment, which means that it is not possible for the Plaintiffs to be ''reinstated'' to that deployment. Therefore the only remedy available is to make an award for compensation. The Courts are granted a discretion to award an amount of compensation that is "just and equitable" The removal from deployment at Macademia resulted in actual determinable loss in the form of allowances linked to such deployment for the Plaintiffs. In Le Monde Luggage CC f/a Pakwells Petjie v Dunn 2007 28 /LS 2246 (LAC) para J,· Jappie AJA concluded that compensation is; "payment to offset the financial loss which has resulted from a wrongful act. The primary enquiry for a court is to determine the extent of that loss, taking into account the nature of the unfair dismissal and hence the scope of the wrongful act on the part of the employer. The Court has been careful to ensure that the purpose of the compensation is to make good the employee's loss and not to punish the employer." Therefore, compensation for dismissal is limited to compensation for financial loss and excludes punitive damages - Rawlins C Dr DC kemp t/a Centralmed C Unreported Supreme Court of Appeal Case No. 483/09, 2010 para 2.

[23] In order to succeed on a claim for dignity, the Defendant is correct that the Plaintiffs must prove that the act being complained of is wrongful. Such a test would be an objective one, meaning that the conduct of late Colonel Bobelo must be "tested against the prevailing norms of society" to determine whether it is wrongful (Delange v Costa 1989 (2) SA 857 (A) at 862 f).

[24] The appropriate test would therefore be, whether a reasonable Company Commander and CSM, of the experience of the Plaintiffs, would be hurt by the actions of the late Colonel Bobelo in redeploying them in the manner that he did. What would society demand of late Colonel Bobelo, that is the test. Society would demand that in the seemingly volatile situation that is alleged to have prevailed, late Colonel Bobelo should have acted within the bounds of the law, meaning that he should have followed due process to the letter in relieving both Plaintiffs of their command. The late Colonel Bobelo failed to follow due process in that:

24.1 He summarily ordered the removal of the Plaintiffs in a manner not justified or supported by the Military Discipline Supplementary Measures Act 16 of 1999 (MDSMA) or any other authority. Section 11(2) of the MDSMA provides that the commanding officer may conduct a disciplinary hearing of any person subject to the (disciplinary) code, other than an officer or warrant officer. Section 29(2) of the MDSMA provides that any person warned in terms of the Code (of Conduct) in respect of an offence shall be brought before a military court as soon as possible after receipt of a signed account of offence prescribed in a rule of the Code. Section 29(4) of the MDSMA in turn provides as follows:

"29(4) When a person brought before a commanding officer, that commanding officer-

(a) shall, subject to the changes required by the context, have the powers and duties referred to in subsection(3),·

(b) may hear that person, either directly or upon completion of a preliminary investigation, if that person has elected to be heard at a disciplinary hearing,· and

(c) may convict and impose a penalty on a person who has elected to be heard at a disciplinary hearing and who has tendered a plea of guilty to the charge. "

24.2 Subsection 29(3), provides the following:

"29(3) When a person is brought in terms of this section before a military court other than a disciplinary hearing, that court-

(a) shall ascertain whether or not the accused is in custody,·

(b) shall ascertain what charge against that person is being brought or investigated,·

(c) shall ensure that that person understands his or her rights in respect of legal representation and a disciplinary hearing,·

(d) may, for sound reasons, including the need to complete the case or the investigation of the case, remand the case from time to time: Provided that-

(i) the court shall release an arrested person from detention if the interests of justice permit such release, and may determine reasonable conditions for such release,·

(ii) in every case where a person is remanded in custody, the court shall give full reasons, which shall be recorded, for that decision to that person; and

(iii) in every case where a person is remanded in custody, such remand shall not exceed seven days at any one time,·

(e) may direct that a preliminary investigation be held in the case,·

(f) shall in every case where the offence charged is not a military disciplinary offence cognisable by a disciplinary hearing, direct that a preliminary investigation be held,·

(g) may, subject to paragraph (f), try that person either summarily, or upon completion of a preliminary investigation, if that court has jurisdiction to do so; and

(h) may refer the case to another military court with jurisdiction in the matter."

CLAIM 2: FREEDOM AND DIGNITY

[25] The second claim relates to the escort of the Plaintiffs off Macademia by the Military Police. The Plaintiffs testified that a number of members witnessed their removal from Macademia. The Defendant on the other hand sought to lead evidence that this was standard practice, ie to escort members that had been ordered to return to unit (RTU'd) under military police. The Plaintiffs indicated that to their knowledge, members that were RTU'd were bought bus tickets and had to find their way back to the mother unit. The Defendant gave several reasons why the military police were present to escort the Plaintiffs to their 'mother unit':

25.1 they had military assets including their weapons, therefore had to be escorted

25.2 present practice where a member gets a DD1, they transport themselves commenced in 2011 due to budget cuts, however no documentary evidence was submitted in this regard. Plaintiffs denied any knowledge of this.

25.3 the military police drew rifles to Potchefstroom as this is standard practice due to danger.

25.4 in the Defendant's pleadings no reason for the military escort is provided.

25.5 to protect the two military vehicles which were state assets.

25.6 the distance to be travelled with state assets was long.

25.7 they are soldiers (the military police) therefore they must have their rifles with them at all times.

[26] Warrant Officer Madlingozi in providing evidence that it is not only the Plaintiffs that were RTU'd from Macademia, testified that two other persons that were under arrest were RTU'd the First Plaintiff s command at Macademia.

[27] The Defendant led evidence to indicate that the treatment of Plaintiffs when fetched from their quarters was that fit for senior officers in that the military police and the members driving with them in the escort vehicle carried their bags from the living quarters into both the military police vehicle and the courtesy car. The Plaintiffs on the other hand indicated that they carried their own bags outside and the members transporting them only helped them load some of the bags onto both the courtesy car and the military vehicle. The evidence by the Defendant's witnesses in that regard was that: Warrant Officer Madlingozi - helped with luggage because they were running late, time was against us.

The circumstances under which the two other persons were RTU'd from Macademia are distinctly different from those of Plaintiffs. In those instances, members were under arrest. Defendant failed to provide documentary evidence of the mode of transportation of a member who has been RTU'd, even though such documentation is reasonably expected to be in its possession. This coupled with the different reasons provided by Defendant's witnesses makes Defendant's assertions unreliable and untrue on a balance of probabilities.

CLAIM 3 - DROVE MILITARY VEHICLE RECKLESSLY

[28] The Plaintiffs testified that the courtesy car was driven so recklessly that they feared for their lives. The First Plaintiff indicated that at one stage he shouted 'what are you doing' at the driver - Sergeant Duma. In their testimony, the Plaintiffs did not refer to any roadworks on their route, yet Warrant Officer Madlingozi and Sergeant Duma were adamant that there was construction underway on a large section of the route making it impossible to drive fast or recklessly as traffic was reduced to one lane. All four witnesses gave conflicting evidence on the driving including reasons for the stop en route to Potchefstroom.

It would be unreasonable for this Court, faced with such conflicting evidence to conclude that the Plaintiffs were in a car that was driven so recklessly as to endanger their lives. This is so because by doing so, the driver, Sergeant Duma would also have endangered his own life which would be a senseless act that a reasonable person would not be expected to engage in.

CLAIM 4 - ALLOWANCES

[29] The Plaintiffs claim is that had they not been wrongfully RTU'd from Macademia, they had would have earned allowances as per their claims. I have already found that the removal of the Plaintiffs from Macademia was wrongful and it therefore follows that as a result they suffered loss of earnings. There is a difference between the Plaintiffs and the Defendant as to the duration of the deployment. The Plaintiffs averred that the deployment was for a period of six months, whereas the Defendant indicated that it was for a period of a few weeks. In terms of the operational order submitted, deployment was to commence on 1 April 2010, yet this only took place in May 2010. The Plaintiffs were not (and are not expected to be) in a position to submit documentation in that regard, yet except to dispute the duration of the deployment as advanced by the Plaintiffs, the Defendant failed to submit any proof that the Plaintiffs averments were incorrect, despite such information expected to be in its possession in the form of approved documents. The Court can only draw a negative inference against the Defendant for failing to provide incontrovertible evidence of the duration of the deployment. The submission to the Court is that the Charlie Company of which the Plaintiffs formed part left Macademia on 1 September 2010.

[30] Overall, the Defendant's witnesses provided contradictory evidence in terms of when a member may be RTU'd, mode of transportation following being RTU'd, procedure for redressing of wrongs, hierarchy of officers and procedural issues surrounding the issuing of DD1 's. Either the witnesses did not know the procedures and processes or they were intentionally misleading the court. Either way, the fact that the Defendant failed to provide documentary evidence on some of these issues, as reasonably expected makes the Defendant's case improbable and unreliable.

[31] The amounts being requested by the Plaintiffs are modest and not excessive.

Therefore, these amounts are viewed as compensatory towards Plaintiffs instead of punitive against Defendant.

[32] As far as costs are concerned, it is true that the amounts being claimed are within the jurisdiction of the Magistrate's Court. However, having due regard to the issues being ventilated, this Court is of the opinion that Plaintiffs should not be penalised for approaching this Court instead of the Magistrate's Court, moreover when this matter was postponed for filing of amended plea documents, the Defendant did not see it fit to raise the jurisdiction issue.

[33] The order of this Court is therefore as follows:

33.1 As regards First Plaintiff

33.1.1 R30 000 for injury to the right to dignity for wrongfully being discharged from Macademia base on 15 June 2010 by late Colonel Bobelo.

33.1.2 R50 000for Colonel Bobelo wrongfully and with the intention to damage First Plaintiffs right to freedom and dignity by having him removed under guard of military policemen, which action was witnessed subordinates

33.1.3 The claim for R20 000 for injury to First Plaintiffs dignity for being driven recklessly by Sergeant Duma is dismissed.

33.1.4 Loss of allowances and leave payments resulting in damages in the amount of R44 222.00 had First Plaintiff not been discharged and removed from Macademia base on 15 June 2010, as calculated by Plaintiffs.

33.2 As regards Second Plaintiff

33.2.1 R30 000 for injury to the right to dignity for wrongfully being discharged from Macademia base on 15 June 2010 by late Colonel Bobelo.

33.2.2 R50 000 for Colonel Bobelo wrongfully and with the intention to damage Second Plaintiff's right to freedom and dignity by having him removed under guard of military policemen, which action was witnessed subordinates.

33.2.3The claim for R20 000 for injury to Second Plaintiff's dignity for being driven recklessly by Sergeant Duma is dismissed.

33.2.4 Loss of allowances and leave payments resulting in damages in the amount of R42 869.00 had Second Plaintiff not been discharged and removed from Macademia base on 15 June 2010, as calculated by Plaintiffs.

33.3 Interest on the amounts in paragraphs 33.1 and 33.2 at a rate of 10.25% per annum from date of judgment to date of payment.

33.4 Costs on the High Court party and party scale.

M A LUKHAIMANE

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Appearances:

On behalf of the applicant :Adv JH van den Berg Lubbe

Instructed by :De Klerk & Marais Inc

On behalf of the respondent :Adv L Pillay

Instructed by :State Attorney

Date of hearing :16 October 2017

Date of judgment :17 November 2017

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