The Supreme Court of Appeal (SCA) heard argument in an appeal by the defence department against a decision that its disciplining of the soldiers did not meet the requirements of justice and fairness.
The soldiers are members of the SA National Defence Union (Sandu).
The union members were accused of disobeying a command to return to base after participating in an illegal march to the Union Buildings in 2009.
The present appeal involves notices to the soldiers by the department, including media statements, published in two newspapers on November 14, 2012 and November 15, 2012.
A full Bench of the SCA questioned aspects of the department’s notices, such as whether the soldiers had enough time to react to them.
Judge Malcolm Wallis further wanted to know how the department expected a soldier to react if he would have received his letter, and seen a newspaper article on it on the same day.
The soldier would have had before him different charges, different allegations, and different time periods on record.
Julian Dreyer, for the department, conceded there were disparities in the notices to the soldiers.
He submitted that this fact did not give soldiers the right to do nothing.
Gilbert Marcus, for Sandu, contended it would be unfair to expect a soldier to look at the notices “through the microscope of a lawyer” in a short space of time.
To put the onus on the soldier alone would be unfair, he submitted.
He contended the department’s disciplinary steps regarding the notices were vague and inadequate, and therefore unlawful and unfair.
It was further argued in papers that the department had a duty to ensure the soldiers facing dismissal were treated lawfully and fairly.