Thirty-six South African soldiers who went AWOL while studying military medicine in Cuba, have been given their marching orders for a second time.
The soldiers were discharged early last year after refusing to attend lectures as a result of concerns they had about the accreditation of the institution they were at. They then approached the North Gauteng High Court, though, where Judge Annali Basson found in the soldiers’ favour and ordered they be reinstated.
But the South African National Defence Force (SANDF) took Basson’s ruling on appeal to a full bench and on Tuesday was successful.
Judge Wendy Hughes – with Judge President Dunstan Mlambo and Judge Ellem Jacob Francis concurring – overturned Basson’s ruling and found the soldiers’ dismissal could, in fact, not be reviewed.
“Once a member absents himself or herself from official duty without permission for more than 30 days, the operation of law kicks in and it is deemed that the member is dismissed. There is no decision taken whatsoever,” Hughes said in handing down judgment.
“Now if there is in fact no decision taken and the dismissal is purely by operation of law, there will most certainly be no decision or administrative act to review … Hence, in these circumstances the dismissal ‘decision’ was not susceptible to review.”
She said by the time the soldiers returned to South Africa, they had already “absented themselves from their classes for more than 30 days, without permission”.
“Critically one needs to acknowledge that attending medical classes was the very purpose for which they had been sent to Cuba and contracted with the SANDF,” she said.
“It must be stressed that in these circumstances … there is no decision per se to dismiss, but merely one is deemed to be dismissed by operation of law in that the requisite time having lapsed.”
Hughes pointed out that the soldiers were given opportunities to make submissions as to why they should not be discharged, “but were dogmatic and dug in their heels”.
She also found Basson had misdirected herself in dealing with whether or not all the requirements for a dismissal had been met and that she had added an “additional jurisdictional fact”.
“This fact being, that a board of enquiry … must have been established where a member is absent for more than 30 days to determine whether a member is absent and the reason for that member’s absenteeism,” Hughes said.
“The Supreme Court of Appeal highlighted that the establishment of the board … was solely to verify that indeed the member was still absent and was to establish the whereabouts of that absent member’s kit.”
When Basson initially reinstated the soldiers, she did so retrospectively and also granted them a special order putting their relief into immediate effect, regardless of whether or not her decision was going to be appealed.
On Tuesday, Hughes also overturned this special order.
The SANDF did not respond to a request for comment.