Picture: succo/Pixabay
Picture: succo/Pixabay

Wrongfully convicted SANDF soldier wins drawn out reinstatement battle

By Zelda Venter Time of article published Mar 25, 2020

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Pretoria - It took an SANDF soldier six years and a battle all the way to the Constitutional Court to be reinstated in his job.

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

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

Between his arrest, conviction and sentence, he 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 that he was appealing his conviction, but the SANDF had made up its mind that it would not have him back.

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

He 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 once more refused.

Maswanganyi turned to the Gauteng High Court, Pretoria, to force the SANDF to reinstate him. He told the court that 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 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 prisoned criminals.

The high court, however, ordered that the SANDF was wrong and that it had to reinstate him.

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

But nine justices of the Constitutional Court now ruled in his favour and ordered that the SANDF had to 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 thus imprisoned.

The Constitutional Court said this is 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 with it.

Maswanganyi not only gets his job back, but he will have to be paid his monthly salary backdating from 2014.

Pretoria News

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