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SANDF nurse wins interim interdict against being cashiered

Charles Machard has been employed by the SANDF since 1992 as a male professional nurse and holds the rank of captain at Nine South African Infantry Battalion, Eerste River. Picture: Laille Jack/African News Agency (ANA)

Charles Machard has been employed by the SANDF since 1992 as a male professional nurse and holds the rank of captain at Nine South African Infantry Battalion, Eerste River. Picture: Laille Jack/African News Agency (ANA)

Published Jun 6, 2022

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Cape Town - A nurse with the SANDF has won an interim injunction at the Western Cape High Court preventing the armed forces from implementing a Court of Military Appeals (CMA) sentence dismissing him in disgrace.

Charles Machard had gone to court seeking a rule nisi (decree) to stop the SANDF from cashiering him following a September 2020 ruling by a military court.

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The SANDF opposed the application and raised three points in the pretrial hearing.

They argued that the Western Cape High Court had no jurisdiction to grant either an interdict or a subsequent review in the matter, that Machard had not shown his case to be urgent and finally that one of the requirements for an interim interdict is that the applicant should have no other remedy.

The court had to decide whether Machard was entitled to an interim order interdicting the SANDF from cashiering him.

In her ruling, Judge Babalwa Mantame also shot down the SANDF’s argument that the matter was not in the court’s jurisdiction

She said: “The applicant, although employed by the SANDF which is a national government department, resides in this jurisdiction; performs his services as an employee in this jurisdiction; the triable offence occurred in this jurisdiction; the military trial court was constituted in this jurisdiction and in all pragmatism, he falls within the jurisdiction of this court.”

Machard has been employed by the SANDF since 1992 as a male professional nurse and holds the rank of captain at Nine South African Infantry Battalion, Eerste River.

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On March 14, 2019, Machard appeared before the Military Court in Cape Town and was charged with three counts of sexual assault in terms of the Criminal Law Sexual Offences and Related Matters Amendment Act.

There was also an alternative charge of contravening Section 45(a) of the Military Disciplinary Code relating to unseemly behaviour.

Machard pleaded not guilty to these charges. However on March 19, 2019 a military judge convicted him of unseemly behaviour and two charges of sexual assault.

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Machard was sentenced to a lower commissioned rank of lieutenant and imprisonment for a year. This was coupled with a mandatory sentence of cashiering, suspended for three years on condition that he was not convicted of sexual assaults committed during the period of suspension.

Machard appealed neither the conviction nor the sentence. He was then informed by the Court of Military Justice and his Military defence counsel that the matter would be forwarded to the Court of Military Appeals for automatic review.

The CMA heard the automatic review and upheld the finding and Machard heard about it on July 23, 2021 when he was told that the cashiering would take place on July 30, 2021.

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It was this that prompted him to approach the High Court on an urgent basis on July 29, 2021, asking for an interim interdict pending the outcome of legal proceedings he had set in motion in a separate matter at the High Court.

Machard’s legal review is now set to happen within the next 30 days.

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