Army legal professionals struggle their boss

Military lawyers fight their boss

Personal clashes at the Legal Department of the South African National Defense Force (SANDF) have resulted in a series of legal proceedings involving senior military law officers.

Half a dozen of them have each taken separate legal action against Defense Minister Nosiviwe Mapisa-Nqakula and SANDF chief General Solly Shoke.

These military law officers (MLOs) average up to 20 years of service and experience or more. The loss of one of them and a number of juniors could add to the backlog on military court matters.

According to the Department of Defense’s annual report for 2018-2019, more than 2,000 new cases were registered by military courts this year, and there was a backlog of more than 1,600 cases.

These cases include internal disciplinary violations such as theft, absenteeism without official leave, and abuse of military property. This also includes crimes abroad during peacekeeping tasks as well as rape and sexual harassment by fellow soldiers. As the Mail & Guardian reported last year, there was so common sexual abuse by troops during peacekeeping missions in the Democratic Republic of the Congo that the United Nations threatened to expel SANDF personnel. The Legal Department denied the backlog was severe and said his performance had improved.

Mass emigration

Lt. Gen. Eric Mnisi, the adjutant general in charge of the Legal Department, has been featured in most of the complaints from the judiciary as his subordinates are either struggling to keep their appointments or to reverse their dismissals.

Written complaints to the Mapisa-Nqakula office have so far brought no relief to judicial officials’ frustrations.

According to some of the injured lawyers, they are among the highest paid soldiers in the SANDF. Her salary increases were implemented as a retention strategy due to the great exodus of seasoned military lawyers.

Lieutenant General Eric Mnisi (Lizette Lombard)

But since Mnisi’s appointment in 2016, even those generous salaries have not stemmed the tide of resignations, and the lives of many who remain have become unbearable, some said.

The latest papers were filed with the Pretoria Supreme Court in December, but the court has yet to hear the matter. The South African National Defense Force Union is working on the case in which Naval Commander Eddie Mokoena, who is based at the legal satellite office in Port Elizabeth, is fighting against his termination of service in late December.

Mokoena’s case dates back to 2019 when he filed to resign from the SANDF. He never got Shoke’s approval on his first application. When he inquired, his seniors told him that his resignation could not be recommended because an internal investigation was ongoing against him. The investigation concerned Mokoena’s sick leave and an application for study and vacation leave. At the time of his resignation, he had no disciplinary charges against him.

According to his court records, he was later informed that he would be charged with fraud if he was booked sick by a psychiatrist. The military judge who tried the case found that the court did not have jurisdiction to indict him. However, the Legal Department continued an investigation into his alleged crimes. That board found him guilty of being absent without a vacation.

Meanwhile, Mokoena withdrew and continued his work until, in October 2020 – a year later – he received notice from Mnisi that his resignation was approved, despite being withdrawn a year earlier.

Mokoena’s service and salary ended abruptly in December. He has now filed an application with the court, arguing that the SANDF acted unlawfully by terminating his employment relationship.

In response to M & G’s questions, the SANDF said it was unable to comment on cases pending before a military or civil court, but stated that the investigation’s guilty verdict against Mokoena was a negligible criminal offense.

According to some Mokoena colleagues, it has become the norm for officials who disagree with Mnisi’s thinking to make life as unbearable as possible.

Five other cases were filed in civil courts.

“Lawyers must be fighters”

The dissatisfaction began when, according to sources speaking to M&G, Mnisi demanded that his military lawyers fight soldiers before they became lawyers.

In the Drakensberg a common combat course for all legal practitioners was designed and implemented. During this phase of training, reading and navigating maps were among the skills of Mnisi and other instructors, as well as live firing of weapons, even though this area is a national park.

Parliamentarians questioned last year’s excursion because it took place during the Covid-19 lockdown.

It turned into a nightmare when one of the law enforcement officers, Major Boipelo Seokotsa, had to be flown 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 15th squadron helicopter was dispatched in Durban. Two days later there was another call for a search and rescue mission when law enforcement officials got lost in the mountain.

Mnisi later informed Parliament that the two helicopter rescue operations cost the SANDF nearly R500,000.

The cases are increasing

According to multiple sources, Seokotsa is now one of Mnisi’s officials embroiled in legal battles over accusations of absent vacation, disobeying orders and using threatening or offensive language to her immediate manager, Colonel Yvonne Marape.

When the case was heard in a military tribunal last September, the judge found that Seokotsa had been absent for more than 30 days without leave and should have been dismissed before the trial.

Mnisi then opened an investigation into why Seokotsa was charged, said Seokotsa’s lawyer Theo Rakale.

The board found that Seokotsa had a reason for being absent without leave and recommended that Marape be charged with bringing charges against Seokotsa.

Marape, in turn, faces administrative dismissal if the court finds her guilty. SANDF spokesman Brigadier General Mafi Mgobozi said the matter is currently before the military court prosecutors.

Meanwhile, Mnisi has also accused his senior executive at SANDF headquarters, Col. Morgan Jacobs, of violating a lawful order. It is alleged that Jacobs refused to appoint certain candidates to positions for which they were not qualified.

Jacobs has since been transferred to the army law firm.

Other cases involve executives who have been banned by the Legal Department for being transferred even though they have two years before retirement age.

Another military law officer appointed two years ago had abruptly terminated her 10-year contract. With the support of the Defense Forces Union, her case is pending trial in the Supreme Court.

Rakale, a former military law officer who now works as a civil attorney, says frustration in the military legal service is nothing new. He was charged twice while still on duty and acquitted twice.

“You tend to get charged for giving your opinion,” he said. “And some cases just conveniently disappear. Victimization is nothing new either. I had just enough and then left. “