The South African National Defence Union (SANDU) on Tuesday demanded that its 509 members on special leave be returned to their bases and units‚ to start serving South Africa again.
This follows a finding by a disciplinary tribunal held in Heidelberg‚ Gauteng‚ on Monday that the South African National Defence Force (SANDF) does not have the right to attempt to hold disciplinary hearings outside of the military justice system's courts.
The tribunal‚ headed by retired Chief Justice Sandile Ngcobo‚ held on Monday that the military justice system was the exclusive process for trying members of the SANDF for breaches of the Military Discipline Code (MDC).
“In the event‚ this disciplinary enquiry has no jurisdiction to try breaches of the MDC‚” Ngcobo said on Monday.
The SANDF had attempted to dismiss‚ without any hearing‚ soldiers accused of misconduct when they marched at the Union Buildings on August 26‚ 2009.
In August 2009‚ the Chief of the SANDF‚ General Ngwenya‚ addressed letters to the members claiming that‚ by participating in the march‚ they had engaged in unlawful and criminal activities.
Ngwenya said‚ as a result‚ their service with the SANDF was provisionally terminated.
They were given 10 days to show cause why the provisional termination should not be made final.
SANDU successfully challenged the provisional termination of the services of its members in the high court on the ground that the procedure followed by the SANDF was unlawful.
In addition‚ SANDU was granted an interdict preventing the SANDF from terminating the services of the members pending the finalisation of the dispute that SANDU had referred to the Military Bargaining Council.
During this period‚ just over 500 soldiers remained on special leave.
SANDU said on Tuesday that having forfeited the 3-year period it had to trial those members in a military court‚ the SANDF decided to subject the soldiers to a disciplinary hearing similar to that in the civilian world‚ presided over by Ngcobo.
During the proceedings before Ngcobo‚ SANDU objected successfully that the SANDF had no constitutional and legal right to evade its own military court system‚ entrenched in law and designed to ensure swift military discipline.
“The fact is that‚ had the SANDF‚ from the very start in 2009‚ simply used their own military courts to trial the affected soldiers‚ the matter would long since have been put to rest.
“Instead‚ the SANDF took poor legal advice and lost twice in the (Supreme Court of Appeal)‚ both times attempting to fire soldiers without a hearing‚” SANDU national secretary Pikkie Greeff said in the statement.
He said during this period‚ over 500 soldiers had been kept on so called “special leave” at home‚ with full benefits‚ for the past 6 years and 7 months‚ at a total cost of R560m in salary.
Greeff said SANDU would not hesitate to enforce in courts the demand that its members on special leave be returned to their bases and units.