Retired Major-General Ashton Mlindeni Sibango deserves the praise and gratitude of the people of South Africa. He has stepped forward to blow the whistle on the decisions and actions that led to death and injury of soldiers from South Africa sent to the faraway Central African Republic on a mission that allegedly had more to do with protecting the business interests and assets of the Zuma crony network than anything else, including the security of South Africa.

If our soldiers did not fall or sustain injuries in the line of duty, consequences should follow, and accountability should be exacted from those responsible.

A good starting point of any discussion about accountability for the unfortunate fate of the casualties of the battle is the Constitution, our supreme law. Section 200(2) reads:

“The primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.”

The Constitution insists that only the president, as head of the national executive, may authorise the employment of the defence force:

“(a) in cooperation with the police service;

(b) in defence of the Republic; or

(c) in fulfilment of an international obligation”.

No provision is made for the use of the defence force to protect the foreign-based business interests and assets of any elite group of cronies, whoever they may be and no matter how well connected they think they are.

The good general has, as reported by Peter Fabricius in Daily Maverick on 27 June 2021 (“Former general calls for thorough investigation into Battle of Bangui, in which 15 South African soldiers died”), taken umbrage at what actually occurred and has called for a full multidisciplinary investigation of several different government departments and parliamentary oversight committees, headed by a state advocate or judge, to re-examine the incident. The call has been made to the Joint Standing Committee on Defence in Parliament. It might have been better to ask the president himself to appoint a commission of inquiry into the matter, as he is empowered to do under the Constitution. The spectre of Parliament investigating itself does not point toward the proper exacting of accountability.

Former general calls for thorough investigation into Battle of Bangui, in which 15 South African soldiers died

The possibilities of reporting human rights abuses that occurred during the “mission too far”, as the general calls it, to the South African Human Rights Commission or of complaining of maladministration to the Office of the Public Protector have, probably correctly, been ignored or spurned by the general.

If, as seems likely, he is met with an unresponsive attitude in the joint defence committee, it is possible to redirect his plea to the president himself by relying on the invocation of the powers the president has under Section 84(2)(f) of the Constitution. Any irrational or unreasonable failure to appoint a commission of inquiry into the circumstances of the battle could lead to litigation compelling the appointment of such a commission. This strategy was pursued with success, at least initially, by Terry Crawford-Browne in his still ongoing quest for accountability in respect of the Arms Deal concluded in 1999.

It is by no means certain that an investigation at the behest of the parliamentary committee will have the desired effect. The abuse of power of which the general complains was allegedly an abuse by an ANC president and that party still holds a majority on the committee and in Parliament.

The workings of Luthuli House are such that despite the supremacy of the Constitution, it is regarded as the centre of power in South Africa and that it deploys loyal cadres of its National Democratic Revolution in Parliament and Cabinet. This feature of the ANC’s striving for hegemonic control of all levers of power in society creates problems for those seeking to exact accountability.

The more senior political deployees are in Cabinet, their juniors are deployed in Parliament. The discipline of the ANC is such that the deployees are all required to show loyalty to the revolution ahead of any other duties, obligations or functions that they may have, whether under the Constitution or in law. The desire of juniors to succeed seniors naturally inclines them to protect and excuse the actions of the seniors, and no one is more senior than the president himself, who also happens to be the president of the ANC.

That the president at the time of the battle was Jacob Zuma, who has been found guilty, and sentenced to 15 months’ in prison by the justices of the Constitutional Court for his contempt of their order that he cooperate with the Zondo Commission, complicates matters, as does the state of factionalism within the ANC. President Cyril Ramaphosa is sure to be placed under pressure from within the ANC not to do so if he is asked to appoint a commission of inquiry into the deaths and injuries at the Battle of Bangui.

It is possible that all who were involved in the battle are its victims, not just those killed and those physically injured. The possibilities of post-traumatic stress disorder, a most debilitating condition, in those who survived — whether or not they were physically injured — need to be explored and canvassed with those responsible for tending to the psychological wellbeing of those who survived. The Bill of Rights creates a justiciable right to bodily and psychological integrity. These rights are infringed on pain of paying damages to those who suffer, both bodily and psychologically. There are also possible dependents’ claims in respect of the surviving families of those who died and happened also to be breadwinners.

Civil actions for damages are a possibility. The unlawfulness of the deployment of troops of South Africa in Bangui may play a role in these actions. Those responsible for the unlawful deployment in breach of what the Constitution allows, as quoted above, may be possible co-defendants with the state in the civil actions for damages. It may even be possible to persuade a court to certify a class action or class actions for the victims of the battle, those killed and injured, those who survived with PTSD and those whose breadwinners fell in battle.

A general class action is a possibility in South African law since the bread cartel case. The circumstances in which those affected by the fallout of the battle find themselves may be well served by a class action following the findings of a properly constituted and independent commission of inquiry into the justification for deploying our soldiers so far from home for reasons that may not stand up to proper scrutiny. Those who were union members at the time of the battle might wish to consider harnessing the resources of their union to exact accountability for the goings-on at the time.

It is not too late to proceed with litigation. The secrecy that has shrouded the true reasons for the deployment of our troops to Bangui and the difficulty in finding out why the deployment was put in place at all will excuse plaintiffs in class actions for their tardiness in bringing claims. The claims of minor dependents do not prescribe until a year after their 18th birthdays and there are likely to be children who fall within this category given the youthfulness of those who fell in battle.

It remains a mystery as to why no air cover was afforded to those involved in the ground battle. South Africa spent an untold fortune on fighter jets which, as far as is known, remained idle throughout the fighting. This aspect is also one that could profitably be canvassed by the commission of inquiry.

The brave stance adopted by the retired general needs to be followed up on with a strategy that exacts accountability on the political, military, administrative and civil law levels. It seems that an independent commission of inquiry into the entire debacle that was the Battle of Bangui is long overdue. DM