Defence union wins court battle

2010-12-01 09:54

The SA National Defence Union (Sandu) today won its court battle to stop the SA National Defence Force (SANDF) from firing more than 1 000 soldiers who took part in a violent protest march on the Union Buildings in Pretoria last year.

Judge Cynthia Pretorius granted an order in the Pretoria High Court, declaring the procedure adopted by Defence Force, in terms of which the soldiers were issued with provisional termination notices in August last year, unlawful and unconstitutional.

She interdicted the SANDF from terminating or administratively discharging Sandu members, pending the finalisation of a dispute to be referred to the Military Bargaining Council. Should the matter not be resolved there, the dispute must be referred to the Military Arbitration Board.

Sandu called on of its members who had been placed on special leave to report back to their units tomorrow.

“From tomorrow it’s back to normal. If the employer is not happy with the ruling, they will have to come back to court,” Sandu president Mosima Mosima said outside the court, where jubilant union members danced and sang in celebration of their legal victory.

“We have started to win the battle. If they appeal and it goes to the Constitutional Court, we are confident that we will win again.”

Judge Pretorius found the notice issued to the soldiers constituted a decision to terminate their employment, albeit provisionally.

“The letter refers to the Constitution, and therefore the deduction can be made that the respondents were of the opinion that Section 23 and 33 of the Constitutional apply.

“None of the defence counsel dealt with the Sunday Times article at all where the first respondent (Defence Minister Lindiwe Sisulu) made it clear that she had advised the second respondent (secretary for defence) to dismiss the members.

“This court can come to no other conclusion but that the respondents prejudged the issue without adhering to the audi alteram partem (the right to be heard) rule.

“Therefore the court finds that the procedure adopted by the respondents as set out in the notice dated 30 August 2009, and served on the members on 31 August 2009, was unlawful. It is, however, not this court’s duty to decide which process should be followed. It is the employer who has to hold a disciplinary enquiry, who has to determine which form and procedure to adopt.”

During the application the minister and chief of the SANDF insisted what the soldiers did during their protest – attempting to scale the perimeter fence of the Union Buildings – almost amounted to a coup. They maintained it required extraordinary measures to maintain discipline and protect national security.

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