Instead of making good on a two yearlong promise to take on review the Public Protector’s report that an unlawfully dismissed army commander be reinstated, Defence Minister Nosiviwe Mapisa-Nqakula backtracked last month and had the matter removed from the court roll.
The case involves the SA National Defence Force’s non-compliance with a 2012 recommendation of the military ombuds to reinstate Lieutenant Colonel Bushy Mvithi to the air force – a finding confirmed by Public Protector Busisiwe Mkhwebane in 2017.
Mvithi told City Press he had not been served with the notice that the review hearing of Mkhwebane was sitting on September 9, and it was Parliament – following his complaint to them – which alerted him.
But a day after he filed his opposing papers at the Pretoria High Court the matter was removed from the roll.
On September 4 the minister’s attorneys served a notice of removal of the case from the court roll, but this was not a withdrawal of the application for a review.
Judiciary spokesperson Nathi Mncube said “the status of the matter stays as is between parties until the matter is re-enrolled for a final court order. If the respondent views the removal as prejudicial, they may enrol the matter to seek an order in respect of the removal”.
In terms of Rule 41 of the court, the applicant “may at any time before the matter has been set down and thereafter by consent of the parties or leave of the court withdraw such proceedings”.
The other parties may apply to court for an order for costs.
In August, a desperate Mvithi took his case to the Constitutional Court but his application fell through.
Without income since 2012 and unable to afford lawyers, he filed the papers on his own before the apex court, which ruled that “the applicant has not placed before the court exceptional circumstances for direct access”.
The judges suggested that Mvithi should consider the lower courts, where for two years Mapisa-Nqakula, claiming she intended to lodge a court review, had refused to implement the Public Protector’s remedial action that Mvithi should return to work.
“Accordingly, if he is so minded, the applicant may approach another court that has jurisdiction to entertain the matter as a court of first instance,” read the order dated August 14 that was only sent to Mvithi on September 10 by the court registrar, Kgwadi Makgakga.
Although Makgakga said the court “will not engage in any further correspondence regarding this matter,” Mvithi wrote later to Chief Justice Mogoeng Mogoeng’s complaints desk, including the update that the high court hearing scheduled for September 9 was removed from the roll at the minister’s behest and without his consent.
In February, Mkhwebane named and shamed Mapisa-Nqakula as being among those who defied her remedial action, mentioning specifically Mvithi’s case, which she concluded in July 2017.
She said Mvithi and his family were without a source of income due to maladministration by the defence department and “now and again, Mvithi writes to me, complaining that my office is doing nothing about this plight when in fact we have done all that we could”.
“In one of his correspondences, he recounted how he can’t even afford sanitary towels for his teenage daughters as a result of what he sees as a failure to assist from my office,” Mkhwebane said then.
Mkhwebane, who also had powers to lodge a contempt application against members of the executive and officials who disregard her reports, had previously threatened to report Mapisa-Nqakula to the Speaker of the National Assembly.
In another twist, Mvithi received summons dated September 9 to appear before a senior military judge on September 30 “concerning common law assault, intimidation and [other charges] preferred against you”.
This despite the fact that he was fired seven years ago, and military courts generally do not prosecute civilians.
“You are required to attend as heretofore commanded and to remain in attendance until the conclusion of the proceedings unless the military judge sooner excuses you. Failure to comply with the commands and requirements of this summons will render you liable to a fine or imprisonment for a period not exceeding one month,” read the letter signed by a Colonel T Dengwa.
Mvithi told City Press last week that no military judge was prepared to preside over the case.
He said a senior military judge passed the matter to a junior judge, who also refused to preside because he was of a junior rank to Mvithi and that was not allowed in terms of the Military Disciplinary Measures Act.
South African National Defence Union’s Pikkie Greeff said: “Military courts only have jurisdiction over persons who are subject to the military discipline code.”
If Mvithi was indeed discharged in 2012, then the military court does not have jurisdiction, Greeff said.
Mvithi said his “quest for swift justice has been hell for my family, my sickly elderly mother, only left to survive on the pension grants of equally sickly elderly mother-in-law”.
He said his children have not been getting their school reports due to unpaid fees and his 14-year-old daughter “is already showing signs of depression”.
“These are just a few of the day-to-day hardships and misery that my family is going through with. I cannot afford swift equitable justice which on its own is prohibitively expensive”.
Defence spokesperson Siphiwe Dlamini said “the matter is sub judice.”