SANDF ordered to reinstate sacked soldier

Payout after wrongful rape conviction

IT TOOK a SANDF soldier six years and a battle all the way to the Constitutional Court to be reinstated in his job.

Mozamane Maswanganyi had been dismissed after he was wrongfully convicted of rape and sentenced to life imprisonment.

He was arrested for rape in 2010, convicted and sentenced to life imprisonment in July 2014.

Between his arrest, conviction and sentence, Maswanganyi still served as a member of the SANDF and was even sent on a training course.

Once he had been sentenced, one of his commanders visited Maswanganyi, informing him that he had been fired.

Maswanganyi objected and said he was appealing against his conviction, but the SANDF had made up its mind that it would not have him back.

A year later, he won his appeal. It was found that he had been wrongly convicted and he was released.

Maswanganyi submitted the court order and warrant of liberation to his unit commander and requested to be reinstated. The SANDF said he had to apply to get his old job back, which he did. But his request was again refused.

Maswanganyi turned to the Gauteng High Court, Pretoria, to force the SANDF to reinstate him. He told the court he was not even suspended during his trial or after his conviction. But once he had been sentenced, he was fired.

He said he told the SANDF that his case was not over as he was appealing against his conviction, but his plea fell on deaf ears.

The SANDF said it did not fire him, but that his services were automatically ended once he was imprisoned.

It was argued that once a soldier was serving a sentence, the Defence Act automatically kicked in to ensure that the SANDF did not employ imprisoned criminals.

The high court, however, ordered that the SANDF reinstate Maswanganyi.

Unhappy with this finding, the SANDF approached the Supreme Court of Appeal, which took the side of the SANDF and ruled that his dismissal was fair.

But nine justices of the Constitutional Court have now ruled in his favour and ordered that the SANDF reinstate him, backdated to 2014.

The parties agreed that the purpose of the Defence Act is to ensure that it does not have members within its ranks who have been convicted of serious crimes and imprisoned.

The Constitutional Court said this was in line with the Constitution, which sets out that the SANDF “must be structured and managed as a disciplined military force”.

But the justices said the Defence Act referred to valid and final convictions and sentences.

Once a matter was taken on appeal, the verdict of the trial court was on ice, pending the outcome of the appeal. Once the trial court’s verdict was finally set aside on appeal, it followed that the person’s name was cleared.

Thus, the Constitutional Court concluded, this soldier no longer holds a criminal record and he must be treated by the SANDF as if he was still employed by it. Maswanganyi not only gets his job back, but will have to be paid his monthly salary – all the way back from from 2014.