The Constitutional Court ruled that a sergeant remains a member of the South African National Defence Force (SANDF) after being unfairly dismissed for failing to report to work for over a month.
Molefi Jonas Mamasedi was dismissed in 2012 after claiming he was kidnapped and kept at an initiation school.
He was absent without leave from his unit from November 29, 2011 until December 31, 2011. He only returned to work on January 3, 2012.
The chief of army set up a board of inquiry to investigate the circumstances surrounding Mamasedi’s absence from work.
During the inquiry, his father disputed his version and said he had gone to the initiation school voluntarily. Mamasedi was subsequently dismissed from work.
Unhappy with the outcome, Mamasedi approached the High Court to have the recommendations set aside and be reinstated. However, his application was unsuccessful.
He went to Supreme Court of Appeal (SCA) where it was found that the High Court had erred in its decision.
The judgment of the Supreme Court of Appeal meant that the chief of the army had to consider the matter afresh and hold new inquiry proceedings.
A new board of inquiry was held on February 13, 2018 and it also concluded that Mamasedi should be dismissed.
Aggrieved by the outcome of the second inquiry, he went back to the high court and argued that his absence from the given dates did not trigger Section 59(3) of the Defence Act, 2002.
According to the section, if a member is absent for more than 30 days, he or she has to be dismissed.
He submitted that he did not work weekends and public holidays and therefore, those days should not be included.
He further pointed out that, if weekends and public holidays were not counted, his absence from work without permission did not exceed 30 days.
He said the SANDF’s interpretation was flawed because if the 30 days include days a member is not obliged to work, it will lead to a member being dismissed for not coming to work on a day he’s not supposed to be at work.
However, his application failed and he went back to the SCA and was still unsuccessful and he approached the Constitutional Court on appeal.
The apex court concluded that both the high court and the SCA were wrong to have concluded that section 59(3) had been triggered by Mamasedi’s absence from work.
“This Court cannot comment on whether the applicant had a valid reason for his absence from official duty for the days when he was not at work. However, what can be said is that he did the right thing by fighting for his rights the way he did... Accordingly, his appeal should be upheld,” said the ConCourt.
The SANDF was ordered to pay Mamasedi his remuneration from January 2012 until August 2024.
“In my view, he is entitled to an appropriate declaration that he has not been dismissed or discharged and is entitled to be paid all his arrear remuneration from January 2012...Since he was not dismissed and was not to be regarded as dismissed or discharged, an order that he be reinstated would be incompetent ,” said Chief Justice Raymond Zondo
Zondo said Mamasedi must report for duty within seven days from the date of the handing down of this judgment or at the latest within seven days after receiving his payment.
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