Give soldiers fair hearing, court told

2010-11-08 22:22

Pretoria - The military could not fire soldiers who took part in an illegal protest in Pretoria last year before giving them a fair hearing, the North Gauteng High Court has heard on Monday.

This was argued by lawyers for the SA National Defence Union (Sandu) in an application to have the soldiers' dismissal notices declared unconstitutional.

About 1 200 soldiers in August last year were issued with notices, giving them ten days to provide reasons why their services should not be terminated.

The SA National Defence Force thereafter undertook not to dismiss them, pending the outcome of the court application by Sandu.

Sandu also asked the court on Monday to refer the matter to the Military Bargaining Council and to interdict the SANDF from firing the soldiers involved while the process was pending.

Paul Kennedy SC, for Sandu, conceded the SANDF had a right and the power to dismiss the union's members, but said the issue before court was if the procedure for their provisional dismissal was lawful and fair.

He said the letters of dismissal, which were approved by the Chief of the Defence Force, General Godfrey Ngwenya, had made "adverse and devastating findings" against the soldiers.

These included that they had acted disobediently, attended an illegal march and posed a threat to national security.

It also made findings that the protesters had been armed, became violent, disobeyed police orders, were guilty of mutiny and had scandalised the nation and the SANDF.

He said these were not allegations, but findings and were made without giving any of the soldiers involved a chance to state their case first.

Though the soldiers were given ten days to respond, Ngwenya "jumped the gun" and repeated the findings in an emotional article in a Sunday newspaper, he said.

Sandu maintained that dismissal notices had been sent out indiscriminately, even to soldiers who were overseas or on duty at the Pretoria show grounds at the time.

National security

Kennedy argued it was a hugely significant to find someone guilty of mutiny without even giving them a hearing.

"One cannot wish away the events at the Union Buildings, but it needs to be properly investigated," he said.

"That is precisely why one has to have a disciplinary enquiry. They were not even suspended. They were dismissed forthwith."

The SANDF contended national security would be harmed if it had to wait for the Military Bargaining Council process to run its course and that Sandu's conduct justified the approach it had adopted.

The SANDF has accused the union of taking advantage of public protests and strikes by calling on its members to embark on illegal strikes under the guise of protest.

Sandu said it was clear that Defence Minister Lindiwe Sisulu and Ngwenya believed military unionism was a threat to the defence force and ought to be scrapped.

Tim Bruinders, SC, for the minister, argued that the soldiers were given an opportunity to make representations, but that Sandu had tried to stop and threaten soldiers who attempted to make representations.

"The conduct of the soldiers at the Union Buildings constituted a clear security risk," he said.

"Even Sandu concedes that the conduct of members may have constituted a threat to national security. The SANDF had the power to dismiss them because they were a security risk."

The application continues.