Now retired chief justice Raymond Zondo, best remembered nationally and internationally for his unflagging work exposing State capture, will also be fondly thought of by a soldier on the right side of his final Constitutional Court judgement on 21 August.
Molefi Jonas Mamasedi, identified only in court papers as a member of the Regular Force with the rank of sergeant, was absent without leave (AWOL) from 29 November 2011 to 2 January the following year. His AWOL time exceeded 30 calendar days, including public holidays and weekends.
Section 59(3) of the Defence Act reads: “A member of the Regular Force who absents himself or herself from official duty without the permission of his or her commanding officer for a period exceeding 30 days must be regarded as having been dismissed if he or she is an officer, or discharged if he or she is of another rank, on account of misconduct with effect from the day immediately following his or her last day of attendance at his or her place of duty or the last day of his or her official leave, but the Chief of the Defence Force may on good cause shown, authorise the reinstatement of such a member on such conditions as he or she may determine.”
The South African National Defence Force (SANDF) argued that the 30 days in the Act referred to calendar days, while Mamasedi contended that they referred to the days he was required to be on official duty.
Reports have it a board of inquiry (BoI) was established when he returned to work to investigate the absenteeism with allegations. He told the BoI that he had been kidnapped and forced to attend an initiation school, but his father claimed he had voluntarily attended. His reasons for going AWOL were deemed irrelevant with the BoI finding against him and recommending dismissal from the SA National Defence Force.
Mamasedi – no longer in uniform, Johannesburg daily The Citizen reports – appealed to what is said to be the “Gauteng Division of the High Court” without specifying Johannesburg or Pretoria and then to the Court of Appeal with no success. A second Board of Inquiry in 2018 was established but also supported the decision against him. This prompted second applications to the High Court and Supreme Court of Appeal.
Final stop was the Constitutional Court which heard his case on 6 February this year.
In a unanimous judgment, the Constitutional Court ruled against the SANDF, finding in Mamasedi’s case, the 30 days referred to in Section 59(3) of the Defence Act did not include days when he was not required to work.
It further declared that from 3 January 2012 to date, Mamasedi was and continues to be an SANDF Regular Force member.
The SANDF refusal or failure to pay Mamasedi’s remuneration and other benefits from January 2012 to date was declared unlawful with him entitled to remuneration payment from 3 January 2012 to date.
The SANDF was ordered to pay Mamasedi’s costs.
Mamasedi must report for duty within seven calendar days from Friday (23 August) or, at the latest within seven days after payment of his overdue remuneration.
