Chief Justice Zondo delivers final judgment at the Constitutional Court during a special sitting, 21 August 2024. Picture: Michel Bega
Chief Justice Raymond Zondo delivered his final judgment on Wednesday, in which the Constitutional Court ruled against the South African National Defence Force (SANDF).
The case was brought by Molefi Jonas Mamasedi and revolved around the interpretation of section 59(3) of the Defence Act.
The Act reads: 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 a member on such conditions as he or she may determine.”
The SANDF argued that the 30 days in the Act referred to calendar days, while Mamasedi contended that they referred to the days he was required to be on official duty.
Mamasedi was not required to work on Saturdays, Sundays and public holidays. His working week was Monday to Friday.
In 2011, Mamasedi was a member of the Regular Force of the SANDF, holding the rank of sergeant. Section 59(3) of the Defence Act applied to him.
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According to court documents, Mamasedi was absent from work from 29 November 2011 to 2 January 2012 without permission. He returned to work on 3 January 2012.
This period exceeded 30 calendar days if weekends and public holidays were included in the 30 days referred to in section 59(3).
However, if weekends and public holidays were excluded, Mamasedi’s absence was less than 30 days.
Upon his return to work on 3 January 2012, a Board of Inquiry was established to investigate his absenteeism.
He told the Board of Inquiry that he had been kidnapped and taken to an initiation school against his will.
However, his version was disputed as his father claimed Mamasedi had voluntarily attended the initiation school.
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Despite the reasons for his absenteeism being deemed irrelevant, the Inquiry found against him and recommended his dismissal.
Mamasedi has been out of the SANDF since then, despite his appeals in the Gauteng Division of the High Court and the Supreme Court of Appeal.
He escalated the matter to the Constitutional Court, where his case was heard on 6 February 2024.
In a unanimous judgment, the Constitutional Court ruled against the SANDF.
The apex court found that in Mamasedi’s case, the 30 days referred to in Section 59(3) of the Defence Act did not include days when Mamasedi was not required to work.
It also declared that from 3 January 2012 to date, Mamasedi has been and continues to be a member of the Regular Force of the SANDF.
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The SANDF’s refusal or failure to pay Mamasedi’s remuneration and other benefits from January 2012 to date was declared unlawful.
As a result, Mamasedi is entitled to payment of his remuneration from 3 January 2012 to date.
The SANDF was ordered to pay Mamasedi’s costs.
Mamasedi must report for duty within seven calendar days from Friday, or at the latest, within seven days after the payment to him of his overdue remuneration.
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