out on racism
Marianne Merten
A Cape soldier is being court-martialled this week on charges dating back to events three years ago when he and a colleague spoke out about racism in the South African National Defence Force (SANDF).
Staff Sergeant Herman Pheiffer is charged with four counts of being absent without leave (Awol) between April 1997 and January 1998 and one of disobeying a lawful order after he refused to accept detached duty, a military punishment.
Pheiffer, his lawyer and Minister of Defence Mosiuoa Lekota met in Cape Town last Friday. According to attorney Lloyd Fortuin, the minister undertook to ensure Pheiffer would not suffer financial hardship because of the disciplinary action against him.
But Lekota said the court martial would have to run its course before he could intervene. Lekota assured them he would instruct the chief of the army to look into the matter.
Pheiffer and Corporal Dawid Booysen are considering a civil suit against Lekota and the SANDF for unlawful arrest and harassment and being passed over for promotion.
Asked recently about the court martial, Lekota said just because there has been a grievance, it is not acceptable to stay away from work. He said for as long as the charge is unresolved, it remains a blot on the soldier’s record.
On Monday Pheiffer’s court martial was postponed at the request of the SANDF’s Pretoria headquarters.
The punishment if found guilty is a maximum one-year jail term. If the Awol period is particularly long, the sanction could lead to dismissal and the loss of all benefits.
Fortuin said his clients are being harassed for speaking up. Pheiffer has repeatedly been passed over for promotion despite two decades in the army. Booysen, who was sent on a military course recently, has also been passed over for promotion over the past three years.
In 1996 Pheiffer and Booysen were charged with falsely accusing their commanding officer of being racist and failing to support the integration of the armed forces.
Other charges against them related to assisting a military intelligence (MI) investigation into arms smuggling, discussing a sensitive military operation with SANDF members outside their unit, and attempting to make copies of classified documents.
Their commanding officer at the time, Colonel George McLoughlin, told the court martial in 1996 he charged them after receiving a classified document detailing their complaints about him. In contravention of military rules, McLoughlin received the document from the head of MI in the Western Cape, Lieutenant Colonel Gouws. Both McLoughlin and Gouws have been transferred from their posts.
The state has spent well over R1-million on this matter. Booysen and Pheiffer’s 1997 court martial was suspended after 25 days when the Mail & Guardian and the Freedom of Expression Institute brought a legal application to gain access to the hearing which had been held in camera.
Last December the Cape High Court ruled in favour of the M&G, struck down several provisions of the military discipline code and ordered the SANDF to pay costs. A team of SANDF lawyers took the ruling on appeal to the Constitutional Court.
Days before the matter was heard at the Constitutional Court, new legislation on court martials, the Military Discipline Supplementary Measures Act, was enacted and the charges against Pheiffer and Booysen had to be dropped. But the battle over the payment of costs as well as a settlement for the two soldiers is still on.
Pheiffer’s current charges of Awol and disobeying a lawful conduct stem from his refusal to accept detached duty during the1996/97 court martial. The order was given to the men with only a few hours’ notice because they had allegedly intimidated witnesses.
Both maintained the intimidation claims were trumped up, ignored the instruction and remained in Paarl waiting to be formally charged. Booysen took unpaid leave and Pheiffer challenged military police to pick him up at his home. This never happened.
Both men returned to work at Cape Town’s 9 SA Infantry base towards the end of 1997 and have been based there ever since.
The intimidation claims against them were proven false at an SANDF disciplinary hearing of the MI officer to whom Pheiffer and Booysen reported the racism, Colonel Pat Ricketts. One of the witnesses against him testified that a senior officer forced him to make the false intimidation claims.