South Africa: North Gauteng High Court, Pretoria

[32]       In view of the above, the applicants' prospect of success in the review application overshadows the undue delay that preceded the institution of the application. The delay in instituting the review application is condoned. The proceedings of 24, 25, and 29 August 2016, related to the judgment and orders granted in terms of s 342A(3) of the CPA, were irregular. With the exclusion of the first respondent's recusal on 14 October 2016, the proceedings were irregular. The orders referred to in the applicants' amended notice of motion accordingly fall to be reviewed and set aside.   

Counter application

[33]       In the counter application, the first respondent challenges the applicants' power to convene boards of inquiry to investigate military judges and the content and merits of their judgments and rulings. The first respondent subsequently seeks a declaration that the board of inquiry convened to investigate him under convening order CDLS 1/C/106/29 is unlawful and unconstitutional. The second challenge is directed at the Minister's power to assign military judges for renewable periods, and the third challenge is aimed at the Minister's power to remove a military judge on the recommendation of the Adjutant General without any independent inquiry into the fitness of the military judge to hold office.

Points in limine

[34]       The applicants raised several points in limine to the counterclaim. In view of the extent of the aspects that need to be addressed in the counter application, and because I am of the view that the points in limine do not require in depth discussion it is only briefly dealt with.

                      i.        The applicants aver that the non-joinder of the Minister of Justice and Constitutional Development, and non-compliance with the State Liability Act, 20 of 1957, are fatal for the counter application. I find no merit in this point in limine. The Minister of Justice and Constitutional Development is not the national executive authority responsible for administering either the Defence Act or the MDSMA. The first applicant is the national executive authority responsible for the administration of the respective statutes. Rule 10A of the Uniform Rules of Court has been adhered to. There was no need to serve the counter-application on the state attorney as the state attorney was already representing the applicants in these proceedings;

                    ii.        The applicants submit that the first respondent founded the orders granted on 25 and 29 August 2016 on s 342(3)(e) of the CPA instead of granting it in terms of s 342(3)(f). The applicants submitted that the first respondent was functus officio to remedy the error after indicating that this reference to the wrong subsection was a typographical error. This point in limine is not relevant for the counter application. However, it is submitted in the answering affidavit that the point is to be upheld, and the counter application should be dismissed on this ground. The point is devoid of merit. It is a clerical error, and even if it was not, it is an inconsequential technical mistake.

                   iii.        The third point in limine has no merit as a point in limine. The applicants essentially submit that the counter application should be dismissed because the first respondent did not adhere to the audi et alteram principle before granting the orders they seek to set aside. This is, as the first respondent correctly submitted, a 'disguised ground of review', and not a point in limine,

                   iv.        The fourth point in limine, lis pendens, concerns the first respondent's challenge to the applicants' power to convene a Board of Inquiry and the relief sought. The applicants submit that the Board of Inquiry is still pending. The applicants state that the first respondent had an opportunity to state his defence at the Board of Inquiry. They submit that the first respondent should have used the legal remedies available to him to challenge the legality of the Board of Inquiry and not have waited for the review application to institute a counter application. The doctrine of lis pendens does not apply. The first respondent correctly submits that the relief sought in the counter-application cannot be granted by a Board of Inquiry.

                    v.        The fifth point in limine speaks to the separation of powers that limits the convening of a Board of Inquiry to the discretion and power of the Executive and requires the judiciary to refrain from being 'unnecessarily prescriptive to both the Executive and Parliament.' To grant the relief sought by the first respondent, the applicants submit, would violate the principle of trias politica. This point goes to the merit of the counter-application, and it is difficult to conceive how it can be considered to be a point in limine;

                   vi.        The sixth point in limine is that the counter application should have been instituted as a class action and the first respondent failed to apply for the certification of the class action. The applicants aver that the first respondent lacks locus standi. The first respondent denies that he intended to institute a class action. As a member of the SANDF, the first respondent has a direct and substantial interest in the independence of military courts and the constitutionality of the governing legislation. He is also subjected to a pending Board of Inquiry which he seeks to be declared unlawful and unconstitutionally convened. This point is devoid of merit.

[35]       Litigation is not a game of chess where one opponent inexorably capitalises on another's mistakes or technical oversights. Although the law of civil procedure plays an integral part in ensuring that the rule of law is upheld, an overly technical approach has been denounced on more than one occasion. Where a party to litigation raises numerous, meritless points in limine, it should be frowned upon. Such an approach blurs the issues that need to be decided, and if anything, merely tends to escalate costs.

Constitutional challenge

[36]       The constitutional standard of judicial independence is central to the counter application. In adjudicating the counter application, three questions need to be answered:

                      i.        Is it consistent with the principle of judicial independence that the Minister may reassign military judges for consecutive fixed periods?

                    ii.        Is it consistent with the principle of judicial independence that the Minister may remove a military judge on the recommendation of the Adjutant General without any independent inquiry into the fitness of the military judge to hold office, and does the MDSMA, on a proper interpretation of the statute provide for such a process?

                   iii.        Is it consistent with the principle of judicial independence that a Board of Inquiry was convened to investigate whether the administration of military justice was brought into disrepute by the judgments and orders handed down on 25 and 29 August 2016?

[37]       To determine the necessary context against which these questions are to be considered, it is necessary to have regard to the system of military justice as it exists in South Africa, and the constitutional standard of judicial independence.

(i)            The system of military justice[12]

[38]       The Constitution provides for a defence force that is structured and managed as a disciplined military force.[13] A distinct system of Military Law developed. The Military Discipline Supplementary Measures Act, 16 of 1999 (MDSMA), read with its Rules of Procedure, established a new military court system that replaced the erstwhile military court and court martial system.[14] The MDSMA provides for the creation of military courts to maintain military discipline and ensure a fair military trial and an accused's access to the High Court. The MDSMA contains provisions on the composition and jurisdiction of the military courts and provisions intended to insulate military courts from undue executive interference protecting the independence of judicial officers.[15] Kriegler J in a unanimous judgment of the Constitutional Court in Minister of Defence v Potsane and Another; Legal Soldier (Pty) Ltd and Another v Minister of Defence and Others,[16] stated that the MDSMA was enacted to harmonise the country's military system with the new principles of constitutionalism.

[39]       The term' military court' is defined in the MDSMA as either a Court of Military Appeals, the Court of a Senior Military Judge, the Court of a Military Judge, and the Commanding Officer's Disciplinary Hearing. The Adjutant General, generally referred to as Legsatos,[17] is responsible for the overall management, promotion, facilitation, and coordination of activities to ensure the effective administration of the military justice and the military legal services.[18] Military judges fall under the Director: Military Judges, a function distinct from the Director: Military Prosecutions, Director: Military Defence Counsel, and Director: Military Judicial Reviews. The Minister assigns officers to the function of senior military judge or military judge on the recommendation of the Adjutant General.[19] Officers assigned as military judges (the term as used herein refers to a military judge and senior military judge) shall perform their functions 'in a manner which is consistent with properly given policy directives, but which is otherwise free from executive and or command interference.'[20] A military judge is assigned for a fixed period, or the assignment is coupled to a specific deployment, operation, or exercise.[21] The Minister, acting on the recommendation of the Adjutant General, may remove a person from the function assigned to them 'for the reason of that assignee's incapacity, incompetence or misconduct, or at his or her own written request.'

[40]       The jurisdiction of a court of a military judge and a court of a senior military judge is circumscribed in ss 9 and 10 of the MDSMA, respectively. The statutorily prescribed jurisdiction prevents military courts from adjudicating civil disputes. Section 9(2) provides:

'A Court of a Senior Military Judge may, subject to subsection (3), try any person subject to the Code for any offence, other than murder, treason, rape or compelled rape as contemplated in section 3 or 3>4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, or culpable homicide committed within the Republic, and may on conviction sentence the offender to any punishment referred to in section 12.'

Section 10(2) provides that:

'A Court of a Military Judge may try any person subject to the Code, other than an officer of field or higher rank, for any offence, other than murder, treason, rape or culpable homicide, or an offence under section 4 or 5 of the Code and may on conviction sentence the offender to any punishment referred to in section 12, subject to a maximum sentence of imprisonment for a period of two years.'

[41]       The general duties of a military judge are prescribed in s 19 of the MDSMA. The section reads as follows:

'General duties of military judges and senior military judges. —Every military judge and every senior military judge shall in the exercise of his or her judicial authority under this Act—

(a) be independent and subject only to the Constitution and the law.

(b) apply the Constitution and the law impartially and without fear, favour or prejudice.

(c) conduct every trial and proceedings in a manner befitting a court of justice.

(d) ensure that the accused, whether represented or unrepresented, does not suffer any disadvantage because of his or her position as such, or because of ignorance or incapacity to examine or cross examine witnesses, or to make his or her defence clear and intelligible, or otherwise.

(e) not express any opinion whatsoever on any matter relating to any trial or on the finding or any sentence except in the prescribed course of the proceedings or as may otherwise be required by law; and

( f ) be responsible for the safe custody of the record of proceedings and of every exhibit produced at the trial.'

[42]       Section 14(4) of the MDSMA provides that officers and members assigned as a military judge 'shall perform those functions in a manner which is consistent with properly given policy directives, but which is otherwise free from executive or command interference.'

[43]       Kriegler J held in Potsane (supra)[22] that in interpreting provisions of the MDSMA, 'the realities of military service, military life, and military discipline' should not be overlooked and continued:[23]

'The prosecution of crime on behalf of the State and the development and maintenance of military discipline and its enforcement by means of the MDC may have features in common, but they serve to fundamentally different public objectives. Military discipline is not about punishing crime or maintaining and promoting law, order and tranquillity in society. Military discipline, as chap 11 of the Constitution emphasises, is about having an effective armed force capable and ready to protect the territorial integrity of the country and the freedom of its people.'

            The MDSMA highlights the unique distinction between a civilian justice system and a military justice system. Amongst others, the Act provides for the assignment of military judges coupled to a specific deployment, operation, or exercise, and for preliminary investigations where recorded evidence may be admissible against an accused.

(ii)          Judicial independence

[44]       Judicial independence is not only inherent to an accused's right to a fair trial, it is a 'constitutional principle and norm that goes beyond and lies outside the Bill of Rights'.[24] The Constitutional Court has scrutinised the constitutional standard of judicial independence on more than one occasion. In De Lange v Smuts NO and Others,[25] Ackermann J referred with approval to the leading Canadian authority R v Valente.[26] In Valente, Ackerman J identified the three essential conditions of independence as follows:

'The first was security of tenure, which embodies as an essential element the requirement that the decision-maker be removable only for just cause, "secure against interference by the executive or other appointing authority." The second was a basic degree of financial security free from "arbitrary interference by the executive in a manner that could affect judicial independence." The third was "institutional independence with respect to matters that relate directly to the exercise of the tribunal's judicial function . . . judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.' (Footnotes omitted)

[45]       In a subsequent judgment of the Constitutional Court in Van Rooyen & Others v The State & Others (General Council of the Bar of South Africa Intervening), Chaskalson CJ explained that the constitutional protection of the core values of judicial independence accorded to all courts by the South African Constitution means that all courts are entitled to and have the basic protection that is required:

'22         Section 165(2) of the Constitution pointedly states that "[t]he courts are independent".  Implicit in this is recognition of the fact that the courts and their structure, with the hierarchical differences between higher courts and lower courts which then existed, are considered by the Constitution to be independent. This does not mean that particular provisions of legislation governing the structure and functioning of the courts are immune from constitutional scrutiny. Nor does it mean that lower courts have, or are entitled to have their independence protected in the same way as the higher courts. The Constitution and the existing legislation kept in force by the Constitution treat higher courts differently to lower courts. Whilst particular provisions of existing legislation dealing with magistrates' courts can be examined for consistency with the Constitution, the mere fact that they are different to the provisions of the Constitution that protect the independence of judges is not in itself a reason for holding them to be unconstitutional.

23          In deciding whether a particular court lacks the institutional protection that it requires to function independently and impartially, it is relevant to have regard to the core protection given to all courts by our Constitution, to the particular functions that such court performs and to its place in the court hierarchy. Lower courts are, for instance, entitled to protection by the higher courts should any threat be made to their independence. The greater the protection given to the higher courts, the greater is the protection that all courts have.' (Footnotes omitted).

[46]       The Constitutional Court in Glenister v President of the Republic of South Africa,[27] likewise highlighted that independence is an elastic concept that requires the –

'careful examination of a range of factors, amongst these the method of appointment, the method of reporting, disciplinary proceedings, and the method of removal from office.’

[47]       The Constitutional Court's exposition of the constitutional standard of judicial independence highlights that judicial independence is not a linear, static concept but multidimensional. Different attributes of a legal system contribute to ensuring judicial independence. Decisions from both the African Commission on Human rights (the ACHR) and the European Court of Human Rights (ECHR) indicate that when the question as to what it takes for military courts to be independent is to be answered, it is likewise not possible to identify a single or singular feature that underlies military judicial independence. In Marcel Wetsh'okonda Koso & Others v Democratic Republic of the Congo (Koso case),[28] the ACHR observed that in determining the independence of a military court, consideration should be given to 'the mode of designation of its members, the duration of their mandate, the existence of protection against external pressures and the issue of real or perceived independence'. The ACHR explained that legally qualified members of military courts are less likely to be influenced by external factors and are more likely to adjudicate cases based on the facts and the law. In Morris v The United Kingdom,[29] the ECHR noted that a military court's composition and appointment period of judges are some of the aspects to consider in deciding whether the court is independent. The court stated that the ‘irremovability’ of judges during their term of office must, in general, be considered as a corollary of their independence.   Here the court held that the ad hoc nature of the presiding officer's appointment was not in itself sufficient to render the make-up of the court-martial incompatible with the independence requirement. It, however, made the need for the presence of safeguards against outside pressures all the more important. In this matter, the courts recognised inter alia the oath of office taken and rules about the eligibility for selection to a court-martial as safeguards.

Discussion

[48]       The first respondent submits that courts have held that a non-renewable term of office is a central feature of judicial independence under the Constitution. I am of the view that the first respondent's depicting of consecutive or successive fixed assignment as a 'renewable term of office' is flawed. When a military judge's assignment comes to an end, the period of validity of the assignment is not extended. It is more appropriate to refer to the practice implemented by the Minister as the reassignment of officers as military judges.

[49]       The first respondent's challenge to the Minister's power to reassign members to the military Bench must be considered having regard to the context created by taking into account the functioning of the military justice system and the constitutional standard of judicial independence, as I have dealt with above. By empowering the Minister to assign military judges for a fixed period, the legislature addressed tenure. Considering the unique needs that might arise in the military context, the legislature also provided for military judges' assignment to be coupled to a specific deployment, operation, or exercise. However, determining the duration of the fixed period for which military judges are assigned has been left to the Executive. The duration of a military judge's term of assignment is ultimately a policy decision of the Minister. The duration of a military judges' assignment is one of the factors that will, in conjunction with other factors, be considered in the determination of the judicial independence of military courts. Security of tenure can, however, vary on a continuum between permanent tenure, tenure for a fixed period, and tenure for the duration of an exercise. Security of tenure, in whichever form, is safeguarded by prohibiting the arbitrary removal of presiding officers. Section 17 of the MDSMA provides that a person may be removed from the function assigned to them on limited grounds - for reasons of incapacity, incompetence, misconduct, or on request. The practice of reassigning military judges compares to a limited extent to re-appointing acting judges, an accepted practice in all the superior courts in our country. The Constitutional Court explained in Justice Alliance,[30] that 'non-renewability is the bedrock of security of tenure and a dyke against judicial favour in passing judgment.' The practice of reassigning officers as military judges must, however, be considered in a military context. The assignment as a military judge does not affect a person's employment in the SANDF. A military judge's security of tenure as a military officer of a specific rank and their financial position are thus not dependent on their reassignment as a military judge. To be assigned a military judge is a specific assignment to fulfil a specific function for a specific period.

[50]       The first respondent submits that an 'elevated status' is the sole benefit acquired by a person assigned as a military judge. In view of the 'status and esteem attached to an assignment' and the subsequent loss of status that comes when an officer is not reassigned, the first respondent avers that it is 'reasonable to anticipate that military judges may be inclined to temper their views or adjust their judgments to secure further assignments.'

[51]       Following Chaskalson J's lead,[31] the following attributes of the military justice system need to be taken into consideration in determining whether the reassignment of military judges impugns the independence of the military judiciary:

                      i.        Courts of a Military Judge and Courts of a Senior Military Judge are courts of first instance, and their judgments and rulings are subject to appeal and review in terms of the MDSMA. In addition, the High Court has the inherent jurisdiction to review proceedings from lower courts. Appeal and review to the Court of Military Appeals, Military Review Counsel, and the High Court respectively, are objective control mechanisms that safeguards the institutional independence of military courts.

                    ii.        Military courts are, in essence, criminal courts, and the main purpose of military courts, as explained by Kriegler J in Potsane (supra), is to enforce military discipline. Military courts do not have jurisdiction to deal with administrative reviews or constitutional matters where legislation or government conduct is disputed. Chaskalson J stated:

'In deciding whether a particular court lacks the institutional protection that it requires to function independently and impartially, it is relevant to have regard to the core protection given to all courts by our Constitution, to the particular functions that such court performs and to its place in the court hierarchy. Lower courts are, for instance, entitled to protection by the higher courts should any threat be made to their independence. The greater the protection given to the higher courts, the greater is the protection that all courts have.'

                   iii.        The jurisdiction of the military courts in question is restricted. Not only are military courts criminal courts, the jurisdiction to hear criminal matters are restricted as to the nature of the offence and in the case of a Court of a Military Judge, also the rank of the accused.

                   iv.        Only appropriately qualified officers holding a degree in law, with the requisite practical experience, may be assigned to the function of a military judge.

                    v.        Military judges must fulfil their duties in accordance with the provisions of s 19, be impartial and independent and swear an oath or affirmation in terms of s 18 of the MDSMA before commencing with their function.

[52]       Cognisance must be taken of the decision of Murphy J in Timakwe (supra). As in the present application, the applicant challenged the constitutionality of Chapter 3 of the MDSMA because the Minister and the Adjutant General represent the Executive, yet military judges are appointed by the Minister on the recommendation of the Adjutant General. This challenge has already been decided by Murphy J in Timakwe. The first respondent contends that the decision is not binding on this court since Murphy J did not consider the impact of renewable appointments. Murphy J's finding is still very relevant. He held:

'34. While it is undoubtedly true that military judges do not enjoy the protection afforded to ordinary judges, the Constitutional Court has recognised that judicial independence can be achieved in a variety of ways that the most rigorous and elaborate conditions of judicial independence need not be applied to all courts. It is permissible for the essential conditions for independence to bear some relationship to the variety of courts that exist within the judicial system. The fact that the Minister and the Adjutant General, members of the Executive, have a strong influence in the appointment of military judges does not mean that the military courts lack institutional independence. As indicated above, all military judges are required to exercise impartiality and independence in the discharge of their duties and take an oath of office in terms of section 18 of the MDSMA requiring them to do so. It is relevant, as intimated earlier, to keep in mind the core protection given to all courts by the Constitution, to the particular function that the military courts perform and to their place in the hierarchy. The greater the protection given to the higher courts, the greater is the protection enjoyed by the military courts.

35. The provisions of the MDSMA therefore ensure sufficiently that the military courts are independent and the constitutional challenge on that ground is without merit.'

[53]       Sufficient safeguards are statutorily incorporated through the provisions of the MDSMA to render the risk that the reassignment of officers as military judges holds for the independence of the military judiciary, negligible. The constitutional challenge of s 15 is without merit.

[54]       The second challenge relates to the Minister's power to remove a military judge upon recommendation of the Adjutant General.  Sight must not be lost that the military justice system is exclusively crafted for the military with the overriding aim not to punish crime or maintain and promote law, order, and tranquillity in society, but to attribute to an effective, disciplined armed force. In the military context, there can hardly be a truly independent military judiciary when military judges are appointed from within the ranks of military officers. There is sufficient merit in this approach, however. It ensures that military judges understand the nature, necessity, and requirements of military discipline, the nature of certain offences, and the context within which they may be committed. The Adjutant General is the assigned officer responsible for the overall management, promotion, facilitation, and coordination of activities to ensure the effective administration of military justice and the military legal services. Murphy J held in Timakwe that the Adjutant General's involvement in the assignment of military judges is not untoward. The question for determination is whether it is constitutional if the Executive decides on the removal of military judges.

[55]       As stated above, military judges serve the military justice system. This creates a unique context within which the constitutional challenges raised by the first respondent need to be considered. The irremovability of military judges during the fixed period of their assignment, unless through due process in accordance with the grounds set out in s 17 of the MDSMA, is a prerequisite to judicial independence. A distinction is to be made between a soldier who must without second thought obey the orders of his superiors unless such orders are manifestly illegal because an immediate action and reaction are required on the battlefield, and the military judge who must execute its function consistent with 'properly given policy directives' and otherwise free from Executive or command interference.  The Constitutional Court affirmed in Minister of Defence and Military Veterans v Motau and Others[32] that

 'It suffices to note that our law has a long tradition – which was endorsed by this Court in Mohamed – of strongly entrenching audi alteram partem ("hear the other side"), which attains particular force when prejudicial allegations are levelled against an individual.  And it is for this reason that dismissal from service has been recognised as a decision that attracts the requirements of procedural fairness.' (Footnotes omitted).

[56]       Murphy J explained in Timakwe[33] that while military judges are assigned for fixed periods or a specific deployment, s 17 of the MDSMA protects them from arbitrary removal. They remain in established posts where they enjoy the ordinary legal protections against their unlawful or unfair dismissals. No military commander may remove a military judge from assignment. Section 17 provides that military judges may only be removed from office on the grounds of incapacity, incompetence, or misconduct. It cannot be defined with any precision as what would constitute misconduct or incompetence. The determination would depend on the nature of the conduct complained of and the particular circumstances in which it was committed.[34] Incompetence and misconduct, and incapacity to a lesser extent, are grounds that require the exercise of a value judgment to be established, and the evaluator's subjective perspective may influence the decision as to whether the grounds are established.

[57]       Chaskalson CJ held in Van Rooyen[35] that protection against removal from office lies at the heart of judicial independence. The MDSMA does not in any one section prescribes the procedure that has to be followed when a military judge is to be removed from office. That is, however, not the end of the matter. Section 3 of the MDSMA provides as follows:

‘(1)         The Act shall, subject to subsection (2), apply to any person subject to the Code irrespective whether such person is within or outside the Republic.

(2)         For purposes of the application of this Act and the Code, ‘persons subject to the Code’ includes, to the extent and subject to the conditions prescribed in this section and the Code-

                          (a) all members of the Permanent Force …’

Section 136 of the Code provides that the General Officer Commanding, South African National Defence Force, or any prescribed officer, may at any time or place convene a board of enquiry to inquire in any matter concerning the SANDF, and to report thereon or to make a recommendation as may be directed. Rule 79 of the MDSMA Rules provides that a board of inquiry referred to in s 136 of the Code may be convened, inter alia, by any head of a division. The Adjutant General is responsible for the overall management, promotion, facilitation, and co-ordination of activities to ensure the effective administration of military justice and military legal services. The Adjutant General is thus authorised to convene a board of inquiry. The Adjutant General is also required to make a recommendation to the Minister regarding the removal of a military judge. Although the MDSMA does not explicitly provide for a procedure in terms of which a preliminary, or any, investigation must be conducted or that a charge be brought against the military judge concerned, a proper interpretation of s 17 in the context of the MDSMA read with the Code and the MDSMA Rules and the rules of natural justice, imply the Adjutant General’s obligation to convene a board of inquiry to investigate alleged misconduct, incapacity or incompetence before recommending a military judge’s removal from the function assigned to him or her. If s 17 is read within the legal matrix created by the MDSMA, MDSMA Rules and the Code, the constitutional challenge raised has no merit. This conclusion corresponds with Murhpy J’s conclusion in Timakwe that the MDSMA protects military judges against arbitrary removal.

[58]       The final challenge to be addressed is the first respondent's challenge raised regarding ss 101 and 102 of the Defence Act. The first respondent seeks a declaratory order that on a proper interpretation of ss 101 and 102 of the Defence Act 42 of 2002, members of the Executive are not permitted to convene boards of inquiry to investigate military judges and senior military judges and the content and merits of their judgments and rulings. Considering that military judges can be removed and released from the functions assigned to them by the Minister, on the recommendation of the Adjutant General on the grounds of incapacity, incompetence, or misconduct, the necessity to conduct an independent investigation into any alleged incompetence, misconduct, or disputed incapacity, is, as I indicated above, evident. The substance of ss 101 and 102 of the Defence Act are repeated in the Code and the MDSMA Rules. A board of Inquiry can be convened without reliance of the Defence Act. Military judges should not be removed from their assignment unless their incapacity, misconduct, or incompetence has objectively been determined. Such a determination cannot be made without an investigation, and a board of inquiry is the appropriate mechanism to conduct such an inquiry. To grant the order sought by the first respondent would be to incapacitate the Minister to remove a military judge in accordance with s 17, and to prevent a Board of Inquiry to convene before a military judge's fixed appointment lapses, will defeat the purpose of s 17.

[59]       Having said that, it is implicit that s 17 does not allow for an interpretation that would negate s 14(4) of the MDSMA. It is indisputable that a military judge must fulfil its function free from executive and command interference. Rulings and orders granted should be challenged solely along the legal avenues of appeal or review and cannot be overturned through administrative review proceedings or a Board of Inquiry.

[60]       The first respondent sought a declaration that the Board of Inquiry convened to investigate his conduct is unlawful and invalid, premised on the proposition that ss 101 and 102 of the Defence Act, properly interpreted, do not permit members of the Executive to convene boards of inquiry to investigate the judicial functions of military judges. As stated above, the Code and MDSMA Rules likewise provide for a board of inquiry to be convened. The Convening Order: Board of Inquiry 03/2016 indicates that the aim of convening the Board of Inquiry was to establish not only whether the first respondent acted within the letter and spirit of the Constitution, the MDSMA, the Code and Rules of Procedure and other relevant legislation, and whether his conduct brought the administration of military justice in disrepute but also as to whether he is considered to be a fit and proper person to continue serving as a military judge, and the 'seriousness and implications of recent events, and consequences that it may have for the DLSD / SANDF. It is not for this court to determine in this application whether the Board of Inquiry’s terms of reference exceed the scope of s 17 of the MDSMA.

[61]       There is no reason to deviate from the principle that costs follow the result. The unique context of this application, however, requires a novel approach to the determination of an appropriate costs order. I am of the view that the first respondent’s reliance on s 342A of the CPA was unjustified in the circumstances of this case, but the first respondent was acting in his capacity as a military judge. Judges do err, and the prescribed appeal and review processes provide appropriate mechanisms to address these errors. This does not, however, mean that a military judge should be mulcted in costs when a decision is set aside on review. However, the first respondent’s opposition of the review of these orders escalated the costs. For this reason, I am of the view that each party should bear its own costs regarding the setting aside of the orders granted on 25 August 2016 and 29 August 2016, with the exception of the costs associated with the strike-out application. The same cannot be said for the orders granted on 14 October 2016. The first respondent descended into the arena and the orders granted cannot be justified, as they are ultra vires.

ORDER

In the result, the following order is made:

1.    The application to strike-out is dismissed and the applicants are, jointly and severally the one to pay the other to be absolved, to pay the costs of the application, such costs to include the costs of three counsel.

2.    Condonation is granted for the late filing of the review application.

3.    The following orders handed down by the first respondent on 25 August 2016, 29 August 2016 respectively, under case number OPS 83 (14/15) and case number OPS 22 (16/17), are reviewed and set aside:

‘In terms of section 342A(3)(e) CPA, it is ordered that the Acting Officer–in -Charge Operations Support Legsato shall serve a copy of the written court ruling, a copy of the Military Judge’s Concerns in respect of the Constitutionality of the Assignment of Military Judges, a copy of Prosecution Counsel and Defence Counsel’s Heads of Arguments, on the Director Military Prosecutions by 05 September 2016 to investigate any possible disciplinary action that may be taken against members of his staff and/or any person who performed the function of Prosecution Counsel at the sec 29 arraignment of the Accused (Mokoena) on 23 November 2012.

In terms of section 342A(3)(e) CPA, it is ordered that the Acting Officer–in-Charge Operations Support Legsato shall serve a copy of the written court ruling, a copy of the Military Judge’s Concerns in respect of the Constitutionality of the Assignment of Military Judges, a copy of Prosecution Counsel and Defence Counsel’s Heads of Arguments, on the Acting Chief Defence Legal Services by 5 September 2016 for his information.

In terms of section 342A(3)(e) CPA, it is ordered that the Acting Officer –in Charge Operations Support Legsato shall serve a copy of the written court ruling, a copy of the Military Judge’s Concerns in respect of the Constitutionality of the Assignment of Military Judges, a copy of Prosecution Counsel and Defence Counsel’s Heads of Arguments, on the Commander-in-Chief of the South African National Defence Force, the Honourable President of the Republic of South Africa by 05 September 2016 to investigate any possible disciplinary action that may be taken against the Honourable Minister of Defence and Military Veterans in respect of her failure to assign the Military Judges over the period of 01 April 2015 – 30 May 2016.

The Acting Officer- in charge Operations Support Legsato must provide written confirmation to this Court by 12 September 2016 that the written court ruling, a copy of the Military Judge’s Concerns in respect of the Constitutionality of the Assignment of Military Judges, a copy of Prosecution Counsel and Defence Counsel’s Heads of Arguments has been served on the abovementioned persons.

The Director Military Prosecutions and the Honourable President must provide written confirmation to this Court by 31 October 2016 confirming what actions, if any, have been taken against any of their staff members or against the Honourable Minister of Defence and Military Veterans respectively.’

4.    Each party is to pay its own costs of the review of the orders granted on 25 August 2016 and 29 August 2016.

5.    The following orders handed down by the first respondent on 14 October 2016, under case numbers OPS 83 (14/15) and OPS 22(16/17), are reviewed and set aside:

‘The Adjudant, Operations Support Legsato (who is also the Acting Court Manager) shall serve a copy of the record of the proceedings of these cases at the offices of the General Bar Council of South Africa as well as on the Law Society of South Africa for those bodies to take the necessary steps they deem fit, against Maj. General S.B. Mmono, Brigadier General G.I. Slabbert,  Brigadier General A. Myburg, Brigadier General R.P. Mbangata and Rear Admiral (Junior Grade) R.P. Masutha should any of these members be subject to the ethical codes of these organizations.

The Adjudant, Operations Support Legsato shall serve a copy of the record of proceedings on the Judicial Service Commission as well as on the Magistrate’s Commission for these institutions to take note of the conduct of the aforementioned DLSD members. It should be noted that the Honourable Judge Legodi, who is the Chairperson of the Court of Military Appeals is also the Chairperson of the Magistrate’s Commission.

The Adjudant, Operations Support Legsato shall serve a copy of the record of proceedings on the Honourable Minister of defence for her to consider whether Maj. General S.B. Mmono, Brigadier General G.I. Slabbert, Brigadier General A. Myburg, Brigadier General R.P. Mbangata and Rear Admiral (Junior Grade) R.P. Masutha still comply with the provisions of sec 54(2)(g) Defence Act and to make recommendations to the Commander-in-Chief, the Honourable President of the Republic of South Africa in this regard.’

6.    The first respondent is to pay the costs of the review of the orders granted on 14 October 2016, such costs to include the costs of two counsel.

7.    The first respondent’s constitutional challenge raised against sections 101 and 102 of the Defence Act, 42 of 2002, is dismissed.

8.    The first respondent’s constitutional challenge raised against section 15 of the Military Discipline Supplementary Measures Act, 16 of 1999, is dismissed.

9.    The first respondent’s constitutional challenge raised against section 17 of the Military Discipline Supplementary Measures Act, 16 of 1999, is dismissed.

10. The first respondent is to pay the costs of the counter-application, such costs to include the costs of two counsel.

E van der Schyff

Judge of the High Court, Gauteng, Pretoria

Delivered:  This judgement is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by e-mail. The date for hand-down is deemed to be 2 August 2021.

Counsel for the applicants:                            Adv. E K Tsatsi SC

With:                                                              Adv. T C Kwinda

Instructed by:                                                 State Attorney, Pretoria

Counsel for the first respondent:                   Adv. G Marcus SC

With:                                                              Adv. C McConnachie

And:                                                               Adv. M Marongo      

Instructed by:                                                 Griesel Breytenbach Attorneys

Date of the hearing:                                       24 May 2021

Date of judgment:                                          2 August 2021