Personal clashes in the legal services division of the South African National Defence Force (SANDF) has led to a string of court actions involving senior military legal officers.
Half a dozen of them have each instituted separate legal steps against the minister of defence, Nosiviwe Mapisa-Nqakula, and the chief of the SANDF, General Solly Shoke.
These military legal officers (MLOs) have, on average, up to 20 years’ service and experience or more. Losing any of them, and a string of juniors, could result in an increase in the backlog of military court matters.
According to the department of defence’s annual report for 2018-2019, more than 2 000 new military court cases were registered during that year, and there was a backlog of more than 1 600 cases.
These cases include internal disciplinary offences such as theft, absence without official leave and misuse of military property. It also includes crimes committed abroad while on peacekeeping duties, and rape and sexual harassment by fellow soldiers. As the Mail & Guardian reported last year, sexual abuse by troops on peacekeeping missions in the Democratic Republic of the Congo occurred so often that the United Nations threatened to expel SANDF personnel. The legal division denied that the backlog was serious and said its performance was improving.
Lieutenant General Eric Mnisi, the adjutant-general in charge of the legal division, has been named in most of the complaints by the legal officers as his subordinates either battle to keep their appointments or reverse their dismissals.
Written complaints to Mapisa-Nqakula’s office have, as yet, yielded no relief for the legal officers’ frustrations.
According to some of the aggrieved lawyers, they are among the highest-paid soldiers in the SANDF. Their pay increases were implemented as a retention strategy because of the large exodus of experienced military legal officers.
But, since Mnisi’s appointment in 2016, not even these generous salaries have been able to stem the tide of resignations, and life for many of those who remain has become unbearable, some have said.
The latest papers were filed in the high court in Pretoria in December, but the court still has to hear the matter. The South African National Defence Force Union is handling the case in which navy Commander Eddie Mokoena, based at the legal satellite office in Port Elizabeth, is fighting his service’s termination at the end of December.
Mokoena’s case dates back to 2019 when he applied to resign from the SANDF. He never received Shoke’s approval on his initial application. When he inquired, his seniors told him that his resignation could not be recommended because there was an internal investigation underway against him. The investigation concerned Mokoena’s sick leave and a request for study and vacation leave. At the time of his application to resign, he had no disciplinary charges against him.
According to his court documents, he was subsequently informed that he would be charged with fraud when he was booked off sick by a psychiatrist. The military judge who heard the case determined that the court had no jurisdiction to charge him. But the legal department continued to institute an inquiry into his alleged offences. This board found him guilty of being absent without leave.
Meanwhile, Mokoena withdrew his resignation and continued his work until he received a notification from Mnisi in October 2020 — a year later — that his resignation was approved even though it was withdrawn a year prior.
Mokoena’s service and salary were abruptly ended in December. He has now applied to the court, arguing that the SANDF acted unlawfully by terminating his employment.
In reply to the M&G’s questions the SANDF said it could not comment on cases pending before a military or civilian court but stated that the inquiry’s guilty verdict against Mokoena is a dismissable offence.
According to some of Mokoena’s colleagues, it has become the norm to make life as unbearable as possible for officers who disagree with Mnisi’s thinking.
Five more cases have been filed in civilian courts.
‘Lawyers must be fighters’
Discontent started when Mnisi demanded that his military legal officers needed to be fighting soldiers before they were lawyers, according to sources who spoke to the M&G.
A joint battle-handling course for all legal practitioners was designed and took place in the Drakensberg. During this phase of the training, map reading and navigation formed part of the skills presented by Mnisi and other instructors , as well as the live firing of weapons even though this area is a national park.
Parliamentarians questioned last year’s field trip because it took place during the Covid-19 lockdown.
It turned into a nightmare when one of the legal officers, Major Boipelo Seokotsa, had to be airlifted after injuring her ribs and shoulder. The Mountain Club of South Africa had to call in the South African Air Force to evacuate Seokotsa. A helicopter from 15 Squadron in Durban was dispatched. Two days later there was another call for a search and rescue mission when legal officers got lost in the mountain.
Mnisi later told Parliament that the two helicopter rescues cost the SANDF almost R500 000.
The cases pile up
According to several sources, Seokotsa is now one of Mnisi’s officers embroiled in legal wrangling when she was charged for being absent without leave, disobeying commands and using threatening or insulting language towards her immediate superior officer, Colonel Yvonne Marape.
When the case was heard in a military court in September last year, the judge found that Seokotsa already had more than 30 days of absence without leave and should have been dismissed before the court case.
Mnisi then instituted an inquiry into why Seokotsa was charged, said Seokotsa’s lawyer, Theo Rakale.
The board found Seokotsa had a reason for being absent without leave and recommended that Marape be charged for instituting charges against Seokotsa.
Marape, in turn, faces administrative dismissal should the court find her guilty. SANDF spokesperson Brigadier General Mafi Mgobozi said this matter is currently before the military court’s prosecutors.
Meanwhile, Mnisi has also charged his senior staff officer of personnel at SANDF HQ, Colonel Morgan Jacobs, for disobeying a lawful order. It is alleged that Jacobs refused to appoint specific candidates for posts they were not qualified for.
Jacobs has since been transferred to the army’s legal office.
Other cases include senior officers who have interdicted the legal division for transferring them even though they have two years to go before retirement age.
Another military legal officer appointed two years ago had her 10-year contract abruptly terminated. Aided by the defence force union, her case in the high court is awaiting a trial date.
Rakale, a former military legal officer who is now working as a civilian lawyer, says frustration in the military legal services is nothing new. He was charged twice while he was still in service and was acquitted twice.
“You tend to be charged when you speak your mind,” he said. “And some cases just ‘disappear’ conveniently. Victimisation is also nothing new. I just had enough, and then I left.”