Judges lay into Sisulu

2012-08-31 00:00

A FULL bench of five appeal judges yesterday took an indirect swipe at Lindiwe Sisulu in her capacity as former minister of defence, while paying her successor, Nosiviwe Mapisa-Nqakula, a compliment.

This formed part of their judgment in a lawsuit between the minister of defence and the SA National Defence Force Union (Sandu).

The case arose from a march by hundreds of defence force members on August 26, 2009, at the Union Buildings in Pretoria. They were carrying pistols, pangas, knobkerries and petrol bombs, and acting in direct contravention of military orders.

The military authorities later handed notices to 1 200 defence force members, notifying them that their services have been “provisionally suspended”.

Sandu went to the Supreme Court of Appeal, where a declaratory order was issued, stating that the notices concerned were unlawful and/or unconstitutional.

In addition, an interdict was issued in which the defence force was prohibited from dismissing any member pending the outcome of proceedings before the Military Bargaining Council.

Just days before arguments were heard in the defence force’s appeal against these orders in the appeal court, the defence force first indicated that it was dropping its appeal, then that it was going ahead with it, and finally that it was appealing only the urgent interdict and no longer the declaratory order.

Appeal judges R. Nugent, C. Lewis, V. Ponnan, A. Cachalia and N. Mhlantla strongly condemned the handling of the appeal during Sisulu’s term of office yesterday, saying this was “not the way government departments should handle litigation”.

They pointed out that more than 1 000 members of the defence force had now been “provisionally” suspended for nearly 19 months and that it “must have cost taxpayers millions upon millions of rand” in salaries.

The judges said that unlike private litigants, the government and private bodies should conduct their affairs in the public interest — “which calls for mature judgment and reflection before commencing or persisting in litigation”.

It was only after Mapisa-Nqakula took over as minister that the ministry adopted a “commendable change of stance” on the situation.

The judges confirmed the supreme court’s declaratory order, but rejected the interdict.

They said it is the defence force’s duty to maintain discipline and that the defence force cannot be stopped through interdicts from acting against members pending mediation.

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