Man acquitted of rape should still be in SANDF's employ, rules ConCourt

A man who was discharged from the SA National Defence Force (SANDF) in 2014 after being convicted of rape – only for his conviction and life sentence to be set aside a year later – is effectively back in the army after a ruling by the Constitutional Court on Friday.

The court declared that Mozamane Maswanganyi’s service with the SANDF did not terminate in 2014 and he continues to be a member of the regular force in the same capacity as he was in 2014.

Friday's ruling set aside a Supreme Court of Appeal (SCA) judgment last year, which held that Maswanganyi's dismissal from the SANDF was done in accordance with the Defence Act.

The SCA also said the same law did not provide for automatic reinstatement if someone's appeal (against a conviction and sentence) was upheld.

Maswanganyi was discharged from service after being found guilty of rape and sentenced to life in 2014.

However, his appeal succeeded and both conviction and sentence were set aside in February 2015.

He applied for reinstatement after being released from prison, but the SANDF refused. It cited part of the Defence Act, which states that the service of a member was terminated if they were sentenced by a competent court to imprisonment without the option of a fine.

Maswanganyi turned to the high court, which ordered his reinstatement to the SANDF with salary and benefits.

The SANDF was unhappy with the outcome and approached the SCA.

Judge of appeal Stevan Majiedt said last year that once Maswanganyi was sentenced to life imprisonment, his service in the SANDF was terminated by operation of law in terms of the Defence Act.

Maswanganyi then approached the ConCourt, which on Friday upheld his appeal.

In a unanimous judgment, justice Zukisa Tshiqi said the words “conviction” and “sentence” in the act must be interpreted to refer to valid and final convictions where there is no appeal.

Tshiqi said once the decision of the trial court was set aside, there was no longer any lawful conviction nor sentence against Maswanganyi.

“The member would no longer have a criminal record and no purpose would be served by continuing to subject such a member to the penal provisions of the section,” said Tshiqi.

The court ordered the minister of defence, the chief of the SANDF and secretary of defence to pay the costs of appeal, including that of two counsel. The court also ordered them to pay Maswanganyi’s costs in the high court and the SCA.