Pretoria - A former staff sergeant in the SANDF who was axed from the force after he had been convicted of indecent assault has lost his North Gauteng High Court bid to be reinstated.
Michael Gaji was charged and convicted in September 2007 after he had intentionally and unlawfully placed his hand on the private parts of a superior female officer.
He on another occasion placed the hand of a junior officer on the private parts of the same senior officer. This was done in the presence of other junior officers.
The indecent assault occurred while he was deployed in Kinshasa in the Democratic Republic of the Congo.
Gaji was tried and convicted in South Africa by a military court as he had contravened the Military Discipline Act. Judge DS Molefe said the Defence Force Act applied to all members of the SANDF, whether they were posted inside or outside South Africa.
Gaji turned to court only to review and set aside the decision to fire him, five years after this verdict was handed down. He explained that this was because he had moved back to rural Eastern Cape and became aware that he might have a case only when he phoned his lawyer to discuss his long outstanding legal bill. His attorney told him there might have been some procedural irregularities in his case as the preliminary investigation into the charges against him was flawed.
Judge Molefe said he was not satisfied about the reason for this long delay, because the case law Gaji was relying on for his technical defence on review had been known since 2003.
The judge added he had also not proved that he was unfairly treated during his hearing before a military court. The matter in fact landed up in the Court of Military Appeals, which confirmed Gaji’s dismissal. Neither he nor his lawyer at the time challenged that outcome.
Gaji pinned his hopes on returning to the SANDF on arguments that a preliminary hearing into his indecent assault charges was handled under a wrong section of the law.
He complained that this allowed for witnesses not being able to put their versions properly before the military tribunal during the preliminary round of the hearing.
The judge said this may have been so, but Gaji was not prejudiced in his trial. He pointed out that all the witnesses who presented statements during the preliminary round were called to give evidence during the trial. Gaji thus had ample opportunity to question them.