A service member of the Regular Force ought to be treated as having never been convicted nor sentenced once the charges on which he was initially convicted and sentenced are set aside on appeal
Mozamane Teapson Maswangayi v Minister of Defence and Military Veterans and Others ZACC 4
Constitutional Court of South Africa
Khampepe ADCJ; Froneman, Jafta, Madlanga, Theron, Tshiqi JJ and Mathopo, Victor AJJ
March 20, 2020
Reported by Faith Wanjiku
Constitutional Law – Bill of Rights – rights to dignity, fair labour practices and right to appeal or review by a higher court – where a member of the Regular Force had his employment terminated despite electing to lodge an appeal against the decision of the trial court – whether failure to reinstate to service of a member of the Regular Force after there was no longer any lawful conviction nor sentence against him violated his constitutional rights to dignity, fair labour practices and right to appeal or review by a higher court – Constitution of the Republic of South Africa, 1996, sections 10, 23 (1) and 35 (3) (o); Defence Act 42 of 2002, section 59(1)(d)
Statutes – interpretation of statutory provisions – section 59 (1)(d) of the Defence Act – termination of the service of a member of the Regular Force –where a member of the Regular Force had a criminal conviction against him – where the decision of a trial court was set aside and there was no longer any lawful conviction nor sentence – when were convictions and sentences termed valid and final in case of an appeal against the decision of a trial court – whether, under section 59(1)(d) of the Defence Act, service of a member of the Regular Force was terminated ex lege (by operation of law) once he was sentenced by the trial court, irrespective of his election to lodge an appeal against the conviction and sentence –Defence Act 42 of 2002, section 59(1)(d)
Jurisdiction –Constitutional Court – constitutional matters – what comprised constitutional matters to engage the Constitutional Court – where a matter concerned interpretation of provisions which raised an arguable point of law of general public importance – whether the instant matter engaged the jurisdiction of the Constitutional Court and whether the application for leave to appeal should be granted – Constitution of the Republic of South Africa, 1996, section 167(3)(b)(ii)
The applicant was charged with rape and on appeal, the criminal conviction and sentence were set aside. The applicant was, at the time of arrest, conviction and sentence an employee of the South African National Defence Force (SANDF). Once convicted, the SANDF, relying on section 59(1)(d) of the Defence Act 42 of 2002 (Defence Act), terminated his employment. After the criminal charges against the applicant were set aside, the SANDF refused to reinstate him.
The applicant launched an application in the High Court alleging that the SANDF, when terminating his services, relied on section 59(1)(d) of the Defence Act, when in fact it should have relied on section 42(1) the Military Discipline Supplementary Measures Act 16 of 1999 (MDSMA), which provided for suspension of a convicted person from duty until the conclusion of an appeal or review. The High Court held that after the SANDF was informed of the conviction and sentence of the applicant, it ought to have invoked the provisions of section 42(1) of the MDSMA. It further held that the provisions of section 59(3) of the Defence Act could also have been invoked. The High Court ordered the reinstatement of the applicant and payment of his salary and benefits with effect from the date of his arrest.
On appeal, the Supreme Court of Appeal overturned the order of the High Court. The applicant then applied to the Constitutional Court for leave to appeal relying on his section 10 constitutional right to dignity, section 23(1) right to fair labour practices and section 35(3)(o) right to appeal or review by a higher court.
- Whether under section 59(1)(d) of the Defence Act, service of a member of the Regular Force was terminated ex lege (by operation of law) once he was sentenced by the trial court, irrespective of his election to lodge an appeal against the conviction and sentence.
- Whether failure to reinstate to service of a member of the Regular Force after there was no longer any lawful conviction nor sentence against him violated his constitutional rights to dignity, fair labour practices and right to appeal or review by a higher court.
- Whether the instant matter engaged the jurisdiction of the Constitutional Court and whether the application for leave to appeal should be granted.
Relevant provisions of the law
Defence Act 42 of 2002
(1) The service of a member of the Regular Force is terminated
. . .
(d) if he or she is sentenced to a term of imprisonment by a competent civilian court without the option of a fine or if a sentence involving discharge or dismissal is imposed upon him or her under the Code. . .”
- The applicant and respondents both filed applications for condonation and had not opposed each other’s condonation applications. The application for leave to appeal was filed six court days late. The first respondent’s answering affidavit was filed approximately twenty days late. In view of the adequate explanations for the respective delays and the fact that there had been no prejudice caused by the late filing of both the application and the answering affidavit, condonation was granted in both applications.
- The Constitutional Court’s jurisdiction was engaged when a matter raised a constitutional issue or an arguable point of law of general public importance which ought to be considered by the court. Once the instant court’s jurisdiction was engaged, the court had to be satisfied that it was in the interests of justice to grant leave to appeal. The manner in which the provisions of section 59(1)(d) were applied by the SANDF, which was rejected by the High Court but subsequently endorsed by the Supreme Court of Appeal had an impact on the right to appeal to a higher court in section 35(3)(o) of the Constitution. The application raised an arguable point of law of general public importance which ought to be considered by the instant court.
- The instant court found that its jurisdiction on the basis of section 167(3)(b)(ii) of the Constitution of the Republic of South Africa (Constitution) was established where the matter raised a point of law
(a) which axiomatically, had to not be one of fact;
(b) which was arguable, in that there was some degree of merit in the argument and had a measure of plausibility. . . in the sense that there was substance in the argument advance;
(c) which was of general public importance, in that the point had to transcend the narrow interests of the litigants and implicate the interests of a significant part of the general public; and
(d) which ought to be considered by the court, and that in effect overlapped with the factors that were of relevance to the interests of justice factor.
The decision of the Supreme Court of Appeal, which endorsed the approach adopted by the SANDF, concerned an interpretation of the provisions of section 59(1)(d) of the Defence Act. The point of law was arguable, given the starkly different interpretations proffered by the High Court and the Supreme Court of Appeal. It would, if left unchallenged, be applicable to all the other members of the SANDF, and would be interpreted as such by all the lower courts. In that respect the application raised an arguable point of law of general public importance which ought to be considered by the Court. The interpretation adopted by the Supreme Court of Appeal was inconsistent with the injunction in section 39(2) of the Constitution. The instant court was clothed with jurisdiction. It would also be in the interests of justice to grant leave to appeal, as the applicant had reasonable prospects of success. The rights involved were fundamental and a decision by the instant court would provide helpful clarity on an undecided legal question.
The words “conviction” and “sentence” in section 59(1)(d) of the Defence Act had to thus be interpreted to refer to valid and final convictions and sentences, where there was an appeal. Once the decision of the trial court was set aside, there was no longer any lawful conviction nor sentence and the jurisdictional factors set out in section 59(1)(d) of the Defence Act fell away or were, as a result, absent. The member would no longer have a criminal record and no purpose would be served by continuing to subject such a member to the penal provisions of the section.
The effect of a conviction and sentence being overturned was distinguishable from a pardon, in that once the conviction and sentence had been set aside, the fact of the conviction and sentence were wiped out. They were treated as never having occurred. On the other hand, a pardon did not confer on the perpetrator immunity from untrammelled discussion of the deeds that led to his/her conviction and from the moral opprobrium that some continued to attach to those deeds. Importantly, a pardon did not render untrue the fact that the perpetrator was convicted, or expunged the deed that led to his or her conviction. Those remained historically true.
Once the applicant’s appeal was successful, there was no longer any connection between the purpose for which section 59(1)(d) of the Defence Act was enacted and the application of the provision to him. When the jurisdictional factors of section 59(1)(d) of the Defence Act fell away, the termination of employment was reversed by operation of law. That was because, properly understood, in the absence of a valid conviction and sentence, in the form of a final order confirming the order of the trial court, there was no valid termination of his employment. As the jurisdictional factors for the operation of section 59(1)(d) were absent, the applicant’s employment was never validly terminated.
It was an employee whose dismissal was unfair that required an order of reinstatement. An employee whose dismissal was invalid did not need an order of reinstatement. If an employee whose dismissal had been declared invalid was prevented by the employer from entering the workplace to perform his or her duties, in an appropriate case a court could interdict the employer from preventing the employee from reporting for duty or from performing his or her duties. The court could also make an order that the employer had to allow the employee into the workplace for purposes of performing his or her duties. However, it could not order the reinstatement of the employee.Once the charges on which the applicant was initially convicted and sentenced were set aside on appeal, the applicant should have been treated as never having been convicted nor sentenced.
Appeal upheld with costs, including the costs of two counsel, where so employed;respondents to bear applicant’s costs in the High Court, and Supreme Court of Appeal, jointly and severally.
- Leave to appeal was granted.
- The order of the Supreme Court of Appeal was set aside and substituted with the following:
(a) It was declared that the applicant’s service with the South African National Defence Force did not terminate as contemplated in section 59(1)(d) of the Defence Act 42 of 2002 and that he continued to be in the employ of the South African National Defence Force in the same position and capacity he was on July 18, 2014.
Relevance to the Kenyan legal system
The Kenya Defence Forces Act, N0 25 of 2012 is the main legislation that governs the defence forces of Kenya which under Article 241 of the Constitution of Kenya, 2010 include the Kenya Army, the Kenya Air Force and the Kenya Navy. It is an Act enacted pursuant to Articles 232, 239 (6) and 241 of the Constitution of Kenya, 2010.
Section 181 of the Kenya Defence Forces Act provides for the punishments that may be imposed on a service member by sentence of a court-martial which under sub-section (1) (c) include dismissal from the Defence Forces. Sub-section (4) further provides that If a service member is sentenced by a court-martial to imprisonment, the member shall also be sentenced to dismissal from the Defence Forces and, if the court-martial fails to sentence the member to such dismissal, the sentence of imprisonment shall not be invalid but shall be deemed to include a sentence of such dismissal.
Section 189 provides that the High Court shall allow an appeal against conviction and quash the conviction if it considers that the conviction was unreasonable; cannot be supported, having regard to the evidence; involves a wrong decision on a question of law; or there was a miscarriage of justice. Section 243 provides that Regular force consists of persons not younger than eighteen years of age and not older than sixty-four years and must be a citizen of Kenya. Section 247 also provides that the service of a member of the regular force is terminated upon among others dismissal from service.
In Charles Maina Ngare v Republic  eKLR, the appellant was charged with 8 counts of civil offences i.e. stealing by a person in the public service. Upon conviction and sentence, he was reduced to the rank of senior private, imprisoned and dismissed from the Armed Forces. He appealed to the High Court which held that the prosecution did not tender sufficient evidence to prove their case beyond a reasonable doubt. His conviction was quashed and all the sentences were set aside. The appellant would forthwith be set free unless otherwise lawfully held, be reinstated back to service on the previous rank of Warrant Officer II before the demotion and his terms of service including decorations be restored.
However, in George Onyango Makokha v Republic  eKLR, the appellant was unlawfully found in possession of ammunition, conducting himself in a manner prejudicial to the good order and service discipline and disobeying standing orders. He was sentenced to imprisonment by the Court Martial. He appealed to the High Court which held that he was indeed found with military items and in disobedience of the standing orders of the Kenya Defence Forces. The appellant had been in prison for one (1) year before his arraignment before the Court Martial. The High Court found him to have been sufficiently punished but he would however remain dismissed from the Kenya Defence Forces as provided under Section 181(4) of the Kenya Defence Forces Act 2012.
The above Kenyan cases show that the Kenyan courts just like the Constitutional Court agree that once the conviction and sentence of a service member are set aside, a service member ought to be treated as never having been convicted nor sentenced and any punishments so imposed upon him/her should be overturned.