The applicability of procedural fairness to actions by members of the South African National Defence Force

Abstract

The dissertation examines the applicability of procedural fairness to actions by members of the South African National Defence Forces (SANDF). The research focuses on and uses the South African Defence Force Union v The Minister of South African National Defence Force (SANDU 2010 judgment) to illustrate how procedural fairness should find application in the SANDF, given the sui generis nature of the defence forces. This judgment presented an opportunity to investigate whether the legislative framework that is available in the SANDF is adequate to protect the right to procedural fairness of the members of the SANDF encapsulated in section 33 of the Constitution, 1996. The dissertation examines the relevant sections of the Defence Act, Military Discipline Supplementary Measures Act, Labour Relations Act (LRA), and the Promotion of Administrative Justice Act (PAJA) read with sections 23 and 33 of the Constitution to determine whether there is a gap that exists in so far as the protection of the right to procedural fairness of members of the defence forces is concerned. It also examines the Military Discipline Code and the rules and regulations of the Defence Forces. The analysis of the SANDU 2010 judgment demonstrates that PAJA could find application in dismissal or employment related disputes within the SANDF. The scenario that is evidenced from the analysis of the defence force legislative framework is that the legislative framework that is available within the SANDF is inadequate to protect and deal with disputes which arise from allegations of infringement of the right to procedural fairness. This scenario is compounded by the fact that the LRA which is the empowering legislation that was promulgated to give effect to the right to section 23 of the Constitution and to deal with dismissal and employment related disputes, does not apply to members of the SANDF.