Minister of Defence and Military Veterans and Others v O'Brien N.O and Others (76995/18) [2021] ZAGPPHC 520 (2 August 2021)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

Date: 2 August 2021

CASE NO: 76995/18

In the matter between:

THE MINISTER OF DEFENCE AND

FIRST APPLICANT

AND MILITARY VETERANS

CHIEF OF THE SOUTH AFRICAN

SECOND APPLICANT

NATIONAL DEFENCE FORCE

SECRETARY OF DEFENCE AND

THIRD APPLICANT

MILITARY VETERANS

THE SOUTH AFRICAN NATIONAL

FOURTH APPLICANT

DEFENCE FORCE

and

LIEUTENANT COLONEL K.B O'BRIEN N.O.

FIRST RESPONDENT

STAFF SARGEANT D.T. MOKOENA

SECOND RESPONDENT

LIEUTENANT P.Z. MABULA

THIRD RESPONDENT

JUDGMENT

Van der Schyff J

Introduction

[1] The application concerns the review of judgments and orders granted by a military court presided over by Lt. Colonel O'Brien, the first respondent. The applicants seek the review and setting aside of the judgments and orders handed down by the first respondent in his capacity as a military judge, on 25 and 29 August 2016 and 14 October 2016.[1] The first respondent, in turn, instituted a counter-application. He challenges the power of members of the Executive to convene boards of inquiry to investigate military judges and senior military judges and the content and merits of their judgments and rulings, alternatively the constitutionality of sections 101 and 102 of the Defence Act, 42 of 2002. The first respondent, in addition, seeks a declaration that the Board of Inquiry convened to investigate him under convening order no CDLS 1/C/106/29, and the proceedings instituted in the main application in this court, are unlawful and unconstitutional. The first respondent seeks an order declaring that on a proper interpretation of s 15 of the MDSMA, the Minister, acting on the recommendation of the Adjutant General, is not empowered to assign military judges for renewable periods, alternatively he challenges the constitutionality of s 15 of the MDSMA. He challenges the constitutionality and validity of s 17 of the Military Discipline Supplementary Measures Act, 16 of 1999 (MDSMA) to the extent that it empowers the Minister of Defence and Military Veterans (the Minister), acting on the recommendation of the Adjutant General, to remove a military judge without any provision having been made for an independent inquiry into the fitness of the military judge to hold office. Both parties raised points in limine. None of these, except for the application to strike-out, can be adjudicated independently of the context created by the factual

background of this case. Conveniently, the parties are referred to as they are cited in the main application.

Application to strike-out

[2] The applicants seek the striking out of paragraphs 9 and 93-222 of the first respondent's replying affidavit, together with the annexures thereto. They take issue, inter alia, with the fact that the annexures that were initially appended to the first respondent's answering affidavit but not initialled by the deponent and commissioner of oaths were again annexed to the replying affidavit. The first respondent explained that it was a mere oversight that led to the annexures not being initialled when the affidavit was commissioned. The same annexures, duly initialled by the first respondent and a commissioner of oaths, were then annexed to the replying affidavit. The applicants state that they were 'not warned why these annexures are attached to the replying affidavit and what the relevance of them is’. Having considered that the bulk of these annexures contain the record of the proceedings and the judgments of the first respondent that constitute the subject matter of the review application, I find no substance in this objection, and it is accordingly rejected.

[3] The applicants seek the striking out of 'scandalous, vexatious and irrelevant' portions of the first respondent's replying affidavit but failed to identify the portions they regard as falling within this category. The grounds on which the application is based reveals that the applicants are of the view that the first respondent makes out the counter-application only in reply, and not in the founding affidavit to the counter-application, by introducing new matter in the replying affidavit. The applicants' concerns include that the first respondent answered to submissions made in the applicants' replying affidavit, in his replying affidavit in the counter-application, and the fact that the first respondent attached the judgment by Basson J handed down in an interlocutory application, under the same case number, to the replying affidavit. Applicants' counsel submitted that the applicants were not afforded the opportunity to answer the new allegations and were thus prejudiced. Significantly, all these submissions were made in broad general terms without properly identifying the specific new issues raised.

[4] There is no merit in the objection levelled against Basson J's judgment. The applicants failed to indicate the prejudice they would suffer if regard is had to the Basson J judgment. The judgment has in any event, been filed of record after delivery thereof, and the court is entitled to take note of it.

[5] Counsel for the first respondent contended that the striking-out application was served almost five months after the respondent's replying affidavit and almost three months after the applicants' heads of argument were filed. Counsel submitted that the application is without merit and that the applicants have failed to prove any conceivable prejudice. As for the ad seriatim section of the replying affidavit (paras 93 to 222), counsel submitted that the applicants sought to introduce new grounds of review in their replying affidavit. These grounds warranted a brief response, and it is to these grounds that the first respondent had to reply. Having considered paragraphs 93 to 222 of the first respondent's replying affidavit in the context of the documents as a whole, I am of the view that the applicants failed to show any prejudice. The application to strike out is an example of an overly technical approach to litigation, which inevitably results in clouding the issues. The application to strike out is dismissed, and the applicants, jointly and severally the one to pay the other to be absolved, are to pay the costs occasioned by it.

Factual background

[6] The facts of this matter are common cause. The first respondent was assigned as a military judge in 2013, 2014, and 2016, for fixed periods from May to March in those years. The first respondent started to ponder the constitutionality of consecutive fixed-term appointments of military judges. He formed the view that consecutive fixed appointments might impact on the independence of the judiciary. The first respondent subsequently proceeded to place on record his concerns regarding the constitutionality of the appointment of military judges at the commencement of the matters in which he presided. Having done that, he would ask both the prosecutor and defence counsel whether they objected to the court's jurisdiction. In none of the matters heard by him, an objection was raised to the court's jurisdiction, and the trials continued. In 2014, the first respondent's superiors requested him to cease this modus operandi, on the basis that the credibility of the military legal system was brought into disrepute. The first respondent undertook not to raise his views in this manner in future cases before him.

[7] In 2015 the Minister did not assign military judges, except for one or two reserve force military judges. In 2016, after he was again assigned to the Bench, the first respondent presided in the two matters that ultimately resulted in the current litigation. The same prosecutor and defence counsel appeared in both cases. The first respondent once again reiterated his view regarding the constitutionality of the appointment of military judges and enquired from the parties whether they accepted the court's jurisdiction. The first respondent was concerned in both matters that the accused’s trials were unduly delayed to the point that it might have impacted their right to a fair trial. He requested the legal representatives to address him on whether he could conduct an investigation as provided for in s 342A of the Criminal Procedure Act, 51 of 1977 (the CPA). Both legal representatives argued that the military judge was entitled to have regard to and implement the provisions of s 342A of the CPA. Without securing the knowledge of and participation in the proceedings of the Minister of Defence, the first respondent, relying on what he considered to be 'public knowledge' and information in the public domain, concluded that the undue delay in prosecuting the respective matters was in part to be attributed to the Minister of Defence's failure to appoint military judges for the period 2015-2016, and in part to the prosecuting authority. He subsequently ordered that 'a copy of the written court ruling, a copy of the 'Military Judges Concerns in respect of the Constitutionality of the Assignment of Military Judges', and a copy of Prosecution Counsel and Defence

Counsel's Heads of Argument' be served respectively on the Director Military Prosecutions and the President of the Republic of South Africa (the President) in his capacity as Commander-in-Chief of the South African National Defence Force. He regarded the Director Military Prosecutions and the President as the appropriate authority to conduct an administrative investigation and consider possible disciplinary action against the prosecutorial staff and the Minister, respectively, for their part in causing the delay. He postponed the finalisation of the trials (the Mokoena and Mabula cases) after holding that the delays incurred were more prejudicial to the prosecution than to the defence. Both the Director Military Prosecutions and the President were ordered to provide written

reports to the court, by 31 October 2016, setting out what actions, if any, had been taken against any of their staff members and the Minister, respectively.

[8] The first respondent's superiors were, to say the least, startled by this development. A Board of Inquiry was constituted to investigate whether his conduct brought the military legal system in disrepute. The first respondent was informed that no new cases would be assigned to him pending the finalisation of the matter by the Board of Inquiry. The first respondent objected to not being assigned new cases, and he was again assigned matters within the borders of South Africa while the Board of Inquiry commenced their investigation.

[9] The first respondent was subsequently informed that the mandate of the Board of Inquiry was extended to investigate all matters previously heard by him. He then convened a court in October 2016 and summoned the accused, the prosecutor, and defence counsel in the Mokoena and Mabula matters, to appear before him. He explained in detail what had transpired since the matters were postponed. He recused himself from hearing both matters because in his view, the interference in his judicial functions gave rise to a reasonable apprehension of bias. He informed them that he was affronted by his superiors and the officers involved who instituted the Board of Inquiry, which he regarded as an infringement of his judicial independence. Without any of his superiors or the officers involved in the Board of Inquiry having been notified of the procedure, he ordered that a copy of the record of the proceedings be served on the Minister to consider whether the officers named in the order, still complied with the provisions of s 54(2)(g) Defence Act, and to make recommendations to the Commander-in-Chief, the President, in this regard.

[10] The Mokoena and Mabula cases were assigned to new judges, and both matters have since been finalised. The first respondent was not subsequently assigned as a military judge after his fixed-term appointment lapsed. He was the only military judge who did not receive a consecutive assignment as a military judge. In 2018, the Board of Inquiry was suspended pending the finalisation of review proceedings instituted in this court.

Grounds of review

[11] The grounds of review raised by the applicants are that:

i. The first respondent did not act within the letter and spirit of the Constitution, the MDSMA, the Military Discipline Code (the 'MDC' or ‘the Code’), the Rules of Procedure of the MDSMA, and other relevant legislation while he presided as a military judge. By expressing an opinion on the matters at hand, he was in breach of s 19 of the MDSMA; the first respondent's conduct and utterances did not comply with s 14(4) and 19 of the MDSMA.

ii. The first respondent was obliged to rely on military legislation only. However, he erroneously relied on and based his decisions on s 342A of the CPA. Since the prosecution and defence were ready to proceed with trial, s 342A of the CPA could not find application, even if reference could be made thereto.

iii. The first respondent attacked and questioned the constitutionality of certain sections of the MDSMA, and in doing so, he acted in breach of s 170 of the Constitution.

iv. In his judgments, the first respondent made remarks of a personal nature that were in some instances very emotive.

v. The judgment handed down on 14 October 2016 contains a misrepresentation of facts.

vi. The judgments are contradictory and not executable in that the first respondent recommends disciplinary action against the Minister but at the same time asks the Minister's assistance in disciplining other officials.

vii. The first respondent failed to afford the first applicant an opportunity to put her side to the court, and as a result, the audi et alteram rule was infringed. In the applicants' replying affidavit, this ground was extended to apply to all the parties mentioned in the

court orders.

viii. The first respondent allowed himself to become involved in the matter. 'It was no more about the case he was supposed to preside, but it was about himself'.

ix. The first respondent acted ultra vires when he gave the orders against senior members and the first applicant.

Point in limine: lack of standing

[12] The applicants only seek the setting aside of certain paragraphs of the orders made by the first respondent, on 24 and 25 August 2016 and 29 August 2016. It is common cause that the orders relating to the second and third respondent's cases being postponed, and the first respondent's subsequent recusal from the matters are excluded from the relief sought. The applicants challenge the first respondent's reliance on and implementation of s 342A of the CPA, and the ensuing orders granted in August 2016, and with the order granted in October 2016 as far as it exceeded the first respondent's recusal as presiding officer in the cases of the second and third respondents. The applicants moreover deplore what they consider as an attack on the constitutionality of the appointment of military judges. They are of the view that the remarks and orders of the first respondent have brought the system of military justice in disrepute.

[13] I do not agree with the first respondent's submission that the applicants have no interest in the matter and that they lack locus standi to bring this application. It is trite that an order of a court of law stands until it is set aside by a court of competent jurisdiction. 'Until that is done, the court order must be obeyed even if it may be wrong' - Byliefeldt v Redpath.[2] This principle was recently restated by the Supreme Court of Appeal in Whitehead and Another v Trustees of the Insolvent Estate of Dennis Charles Riekert and Others.[3] If a military judge's conduct is irregular and ultra vires and the irregular conduct results in a court order that would otherwise not have been granted or exceeds the jurisdiction of such a military court, applicants with the necessary standing will have recourse to this court to have those orders reviewed and set aside.

[14] The Minister is implicated in the first respondent’s judgment and order of 25 and 29 August 2016. The first respondent held that the Minister's failure to appoint military judges contributed to the delay in finalising the trials of the second and third respondents. The first respondent directed the President to investigate any possible disciplinary action that may be taken against the Minister and report back to the court before a stipulated period confirming what actions, if any, have been taken against the Minister. In view of the finding made against the Minister, that her failure to appoint military judges contributed to the undue delay, the necessary nexus was established for the Minister to approach this court for the review of the order. The Minister has a direct and substantial interest in the order granted. The same can be said regarding the order granted on 14 October 2016. In this instance, the Minister was ordered to investigate whether certain officers complied with the provisions of s 54(2)(g) of the Defence Act and to make recommendations to the President. These orders were made without providing any of the affected persons an opportunity to present their respective cases to the court. The Minister has a direct and substantial interest in the order that obliges her to conduct an investigation. She therefore has the necessary standing in this court to challenge the validity of the order. There is no merit in this point in limine.

Point in limine: Undue delay and condonation

[15] The applicants state that although Rule 53 does not specify the period within which a review application may be lodged with the High Court, condonation is sought should the court be of the view that the application is out of time. They request the court to grant condonation because the matter is of importance to the Department of Defence. It raises an issue of importance to military courts that will affect future matters. The jurisprudence that will ensue should urge the court to grant condonation. The applicants contend that their default lies in the fact that, initially, the first respondent expressly undertook not to question the constitutionality of the MDSMA when presiding over matters. It took some time to set up the Board of Inquiry. The deponent to the founding affidavit was only appointed as Adjutant General on 1 June 2017 and had to familiarise himself with the new department, which took its time. He realised that a Board of Inquiry might not be the correct mechanism to address the problem, and after wide consultation, a decision was made for the matter to be taken on review to the High Court. He is, however, required to travel a lot and is often out of the office and the country. 'Around' January 2018, a decision was taken to take the judgments and orders on review. It was challenging to get a date to consult with the legal representatives, but the first consultation with the legal team occurred on 12 April 2018. As the deponent was out of the country, he could not attend the consultation. Documents were exchanged, and another consultation was scheduled for 14 July 2018. There was no wilful delay. The deponent submitted that the first respondent did not suffer and will not suffer any prejudice due to the delay in instituting the review application. He is still in the employment of the department and receiving his salary. The fact that the review application was instituted at a late stage should be weighed against the importance of the issues that need to be dealt with.

[16] The first respondent's counsel submitted that the application falls to be dismissed due to the applicants' unreasonable delay in bringing the review application. The application was instituted more than two years after the first respondent handed down the impugned judgments and more than 18 months after the end of his last assignment as a military judge. The delay is manifestly unreasonable. In addition, the applicants have failed to offer an adequate explanation for their delay. The first respondent points out that it is incorrect to aver that the Board of Inquiry took some time to set up. The Board was convened on 15 September 2016, shortly after the written judgment was handed down on 29 August 2016. The first respondent contested the lawfulness of the Board of Inquiry from the outset. Except for the Adjutant General's busy work schedule, no explanation was provided for the efflux of

time between January 2018 and July 2018. No explanation is provided as to why the application was only issued and served in November

2018. If the matter was of such importance, the first respondent submits, the applicants would have acted promptly. The first

respondent denies that the nature of the rulings made by him has profound implications or caused conceivable prejudice to the applicants. The first respondent was, however, substantially prejudiced by the delay in finalising the matter. He was effectively

suspended as a military judge, and his career was put on hold. He also questioned the logic of the application to set aside his

rulings. The first respondent regards the review application as an ongoing breach of the military courts' independence and as further punishment for the rulings made by him, as the applicants seek a costs order against him. The first respondent denies that the review application has any prospect of success.

[17] This court has the power to review and set aside any decision of an inferior court that is tainted with an irregularity,[4] and has inherent common law power to review the proceedings of military tribunals.[5] However, such review proceedings must be brought within a reasonable time. Murphy J held in Timakwe (supra):[6]

‘A determination of whether they were so instituted involves a factual inquiry and a judicial value judgment which depend on the

circumstances of the case and the delay. The question is what constitutes a reasonable time after the applicant became aware of the decision for the taking of all steps reasonably required prior to and in order to institute the proceedings. If there is an unreasonable delay, the court must consider whether the delay should be condoned, taking into account relevant circumstances including: (i) the length of the delay; (ii) the degree of non-compliance; (iii) the adequacy of the explanation for the failure; (iv) the prospects of success; (v) the importance of the case; (vi) the avoidance of delays in the administration of justice; (vii) the absence of prejudice to the respondents; and (viii) the convenience of the court.' (Footnotes excluded)’

[18] The applicants' explanation for the delay in instituting these proceedings is less than satisfactory. The fact that the deponent to the founding affidavit's predecessor instituted a Board of Inquiry instead of proceeding with review proceedings is of no concern. The acts and omissions of their functionaries are attributed to the applicants. Still, if that is discounted, the delay that occurred since Adjutant General Mnisi's appointment in June 2017 and the issuing of the application in October 2018 is not explained satisfactorily, even if the Adjutant General's hectic work schedule and the fact that he could not take decisions unilaterally are considered. No explanation is provided for why the drafting process took so long after the decision was taken in January 2018 to proceed with review proceedings. This, however, does not end the enquiry. It is necessary to have regard to the importance of the matter, the

prospects of success, the avoidance of delays in the administration of justice, and the absence of prejudice to the respondents, to determine if they are sufficiently strong to outweigh the lack of a sufficient explanation for the delay.

[19] The applicants submit that the matter is important because it will provide guidance to judges of the military court. Since an accused's right to a fair trial and judicial independence lie at the heart of the orders that the applicants seek to set aside, I am of the view that the matters are sufficiently important to hold that the applicants crossed one of the hurdles in convincing the court to condone the delay in bringing the application. In my view, neither party will be prejudiced if the review application is considered. The prejudice suffered by the first respondent after the Board of Inquiry commenced and the fact that he was not subsequently assigned as a military judge, do not constitute prejudice such as would negatively impact on the decision as to whether the review application should be heard. To the contrary, if it is found that he did not act irregular or ultra vires, he will be vindicated. Since the rights of the second and third respondents do not come into play, the criteria to avoid delays in the administration of justice do not carry much weight. That essentially leaves the consideration regarding the applicants' prospect of success on review as the determining factor for whether condonation should be granted for the two-year delay in bringing the review application.

Prospects of success

[20] In considering the applicants' prospects of success, the orders and judgments of 25 and 29 August 2016 and the order and judgment of 14 October 2016 will be considered separately to determine whether the respective orders under consideration were tainted with an irregularity rendering it reviewable. The question is whether any established irregularity is indeed gross enough to justify the review or whether irregularities viewed cumulatively are sufficient to establish an unfair outcome. In the absence of such irregularity, this court will not be able to exercise its inherent jurisdiction to review the military court orders.

(i) Orders and judgment: 25 and 29 August 2016

[21] It would be wrong to consider the orders and judgments handed down on 25 and 29 August 2016 as distinct. The first respondent clearly stated in the written judgment handed down on 29 August 2016 that the judgment supplements the ex tempore judgment handed down on 25 August 2016. There is, in essence, only one August 2016 judgment and order.

[22] I am of the view that the first respondent did not contravene s 170 of the Constitution by articulating his reservation regarding the constitutionality of the appointment of military judges. He holds a preconceived personal opinion regarding the constitutionality of the appointment of military judges, which was unrelated and irrelevant to the legal issues he was required to adjudicate, and his remarks in this regard were clearly obiter. The first respondent did not inquire into or rule on the constitutionality of any legislation. He merely stated his views. His

remarks in this regard are effectively irrelevant and did not culminate in any order being made. Although the first respondent's

superiors were not impressed by his remarks and regarded them to be offensive, it does not constitute an irregularity that affected the outcome of the cases heard by him. This ground of review has no merit.

[23] The next issue to be considered is whether military judges are entitled to rely on the provisions of s 342A of the CPA and, if so, whether circumstances necessitated the first respondent's reliance on s 342A of the CPA. Military courts are creatures of statute. As a result, military courts do not have inherent jurisdiction. Its jurisdiction is determined by the enabling legislation. The rules of procedure of military courts were proclaimed in GNR.747 of 11 June 1999. Rule 21 provides that subject to rule 124, the law of criminal procedure applied by civilian courts does not supplement military courts' powers or the rules. Rule 124, in turn, provides as follows -

'When in the application of the Act and the Code, including this rule, any matter arises for which no provision has been made, such course as appears to be consistent with the provisions of the Act, the Code, and Rules, and best calculated to do justice, shall be adopted.'

[24] When Rules 21 and 124 are read together, they allow scope for applying principles of criminal procedure that applies in civilian courts where the enabling legislation, Rules, and the Code are silent. Accused in military courts are afforded the same constitutional

rights to a fair trial as accused in civilian criminal courts.[7] Section 35(3)(d) of the Constitution entrenches an accused's right to a speedy trial. It provides that the right to a fair trial includes the right to have their trial begin and concluded without unreasonable delay. The Constitutional Court in Ramabele v S; Msimango v S,[8] cited with approval the view held by the authors, Currie and De Waal[9] that s 342A of the CPA is the 'vehicle for giving practical application to the section 35(3)(d) right to have a trial begin and

conclude without unreasonable delay.' Neither the MDSMA nor its Rules nor the Code provides a procedure through which a military court can address an unreasonable delay in conducting trials. Although s 29(8) of the MDSMA provides that where a delay occurred, the senior prosecution counsel must report the delay and the reasons therefore to the local representative of the Adjutant General, the section does not provide for addressing or preventing the delay. As a result, there is no conflict of law, as submitted by the applicants, that renders the provisions of the MDSMA to prevail because there are no provisions in the MDSMA that provide for addressing unreasonable delays. In view of the paramount importance of safeguarding an accused's rights to a fair trial, military courts are obliged to ensure that continued delays in concluding trials are addressed and prevented. They are thus empowered to follow a course consistent with the provisions of s 342A of the CPA in the absence of specific provisions that address the problem of undue delays in the applicable enabling statutes. When circumstances call for it, a presiding officer in the military court cannot be faulted for applying s 342A of the CPA.

[25] Mhlanthla J explained in Ramabele (supra) that a proper reading of s 342A as a whole reveals that the section requires an investigation into the reasonableness of the delay. The court referred with approval to the approach followed in S v Ndibe:[10]

'A holistic reading of the provisions of section 342A leaves me with the impression that what is intended is first the investigation into whether the delay is unreasonable, this as a matter of course necessitates an enquiry. The investigation includes taking into account the factors listed in section 2. Those factors are not limited to the prejudice suffered by an accused person and also include the impact an unreasonable delay may have in the administration of justice, the victim, and the State's case.’

[62] That Court went on to remark on the nature of the enquiry as follows:

"Even though section 342 (3) does not specifically state that a 'formal' enquiry be held, it does call at the very least for an enquiry, on the basis of which a finding must be made. Such an enquiry must have regard to the full conspectus of the factors in section 3(2). In the absence of an enquiry, a court may find it difficult to assess whether a delay is unreasonable or how much systemic delay to tolerate. That can only be determined when there has been an enquiry albeit informal, in which the conspectuses of the factors listed have been considered. This I say mindful of the fact that the bulk of the criminal cases are heard before the magistrate's court, and to insist on a formal enquiry is likely to be burdensome to the already overstretched court rolls. The finding should be followed by a remedy the court considers appropriate, depending on whether the accused person had already pleaded, or evidence led. It seems to me that, once the provisions of section 342 are invoked, the following three stages must be followed:

(1) investigation of the cause of the delay in the finalisation of the case, taking into account the listed factors.

(2) making of a finding whether the delay is reasonable or unreasonable.

(3) depending on the stage of the proceedings, the application of the remedies provided.' (Footnotes omitted)

[26] Section 342A(2) provides the factors that the court should consider in determining whether a delay is unreasonable. A court must ensure that an accused is provided a fair, speedy trial. Therefore, s 342A, it provides the court with the power to, amongst others, refuse the further postponement of the proceedings, strike the matter from the roll, or proceed as if the state or the defence closed its case. Section 342A(3) provides that if a court finds that the completion of the proceedings is being delayed unreasonably, the court may issue any such order as it deems fit to 'eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice'. The time-word 'is' read with the section's purpose to 'eliminate the delay' indicate that it is not past delays per se but continued delays that prevent the trial's conclusion, which are to be addressed and prevented by s 342A. That being said, past delays would provide the relevant context for the court in deciding whether a delay is unreasonable and exercising its discretion in determining the appropriate relief in terms of s 342A(3). However, the jurisdictional fact implicit in the court's power to issue orders provided for in s 342A(3) is the 'continued delay' in concluding a trial. The primary aim of an order granted in terms of s 342A(3) is to address the delay related to the matter before the court. De Villiers J remarked in S v Motsasi:[11]

‘Hoewel hierdie hof nie belas is daarmee om onredelike vertragings wat in ander strafsake in hierdie Hof mag voorkom te probeer voorkom nie, is die doel van die onderhawige artikel sekerlik dat dit wat in ‘n besondere saak beveel word ook ten goede sal kom van ander strafsake wat in daardie hof, of selfs ander strafhowe in ons land, verhoor word.’

[27] The relevant part of De Villiers's remark is that a court is concerned with the matters before it. Both the ex tempore judgment handed down by the first respondent on 25 August 2016 and the subsequent written judgment of 29 August 2016 indicate that the state witnesses were available at court and that an experienced counsel represented the accused. The applicants state in the founding affidavit that both matters were ready to proceed on trial. The first respondent did not challenge this fact in his answering affidavit. There is also no indication in the transcripts of the proceedings that either the prosecution or defence counsel indicated any reasons for the matters not to proceed on trial when the first respondent raised the aspect of undue delay. The issue of undue delay was raised in the absence of an application to postpone the hearing by any party.

[28] The first respondent attributed the backlog of cases in military courts to the fact that no military judges were appointed for the period 1 April 2015 to 7 June 2016. After finding that there has been an unreasonable delay and that the Military Prosecution Authority and Minister are to blame, he did not find that either of the accused suffered substantial trial prejudice. He continued, however, to state: 'This Court does, however, not wish to leave this matter here otherwise, this cycle will continue to repeat itself over and over again.' Other than De Villiers J in Motsasi (supra), the first respondent's concern was not related to the matters before him, but in regard to future delays which would be caused should the Minister again fail to did not assign military judges – 'This 15-month delay by the Minister of Defence and Military Veterans needs to be addressed quickly and effectively otherwise come 31 March 2017, the same cycle will repeat itself with further prejudice to the accused, state and military judges.’

[29] The jurisdictional ground empowering a military court to make any order in terms of s 342A(3) of the CPA was lacking. There is no evidence that any further delays obstructed the conclusion of the trials at the time the first respondent heard the matters. This renders the orders granted on 25 and 29 August 2016 in terms of s 342A irregular. Although these orders did not impact the accused before the court, it impacted upon the Minister, who was not a party before the court. The irregularity is sufficiently gross to

justify the orders being set aside. There is accordingly, no need to deal with the remaining grounds for the review raised by the

applicants.

(ii) Judgment and order: 14 October 2016

[30] The first respondent convened a court to recuse himself from the criminal trials of Mr. Mokoena and Mr. Mabula after a Board of Inquiry was convened to investigate, inter alia, whether the proceedings, judgments, and orders of 24, and 25 and 29 August 2016 discredited the military legal system. The decision to recuse himself in these circumstances cannot be faulted. However, this is not where matters end. The first respondent used the court as a public platform to vent his frustration with how his senior officers dealt with the matter and that a Board of Inquiry was convened. He stated that convening a Board of Inquiry constituted an attack on his dignity and had consequences for the independence of the military court. It is not necessary to address the detail of the judgment. It suffices to say that the first respondent subsequently granted the order that a copy of the record of the proceedings of the cases had to be served

at the offices of the General Bar Council of South Africa as well as the Law Society of South Africa for those bodies to take the

necessary steps they deem fit against the officers mentioned in the order. He also, inter alia, ordered that the record and order be served on the Minister to consider whether the named officers still comply with the provisions of s 54(2)(g) of the Defence Act.>

[31] By airing his frustration and attempting to vindicate himself, amongst others by informing that he intended to institute urgent court proceedings, the first respondent not only descended into the arena when he granted the orders that the officers named in the orders be investigated - he presided over his own case without inviting the other parties to the hearing. He violated the principle, Nemo iudex in sua causa est. His interests and dignity and how it may have been affected by the Board on Inquiry, rightly or wrongly, were of no concern to respective accused, Mr. Mokoena and Mr. Mabula. His actions were wholly irregular, and ultra vires.

[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

[1] Despite requests, I was not provided with a complete record of the court proceedings of all the respective dates that the Mokoena and Mabula matters were heard. The transcribed records that formed part of the papers before me are transcriptions of proceedings in the Mokoena matter from 20 July 2016, and an incomplete transcription of the proceedings conducted on 24 August 2016 in the Mabula matter. Since the crux of the application is directed at the ex tempore ruling handed down on 25 August 2016 and the subsequent written judgment handed down on 29 August 2016, as well as the written

judgment handed down on 14 October 2016, I considered the application on documents that were before me.

[2] 1982 (1) SA 702 (A) at 714.

[3] (567/2019) [2020] ZASCA 124 (7 October 2020) para [18].

[4] Kruger v The Master and Another NO 1982 (1) SA 754 (W).

[5] Timakwe v President of Court of Senior Military Judge and Others (69441/11) [2018] ZAGPPHC 246 (19 April 2018) para [5]; Council of Review, South African Defence Force, and Others v Mönnig and Others 1992 (3) SA 482 (A) 487C-E.

[6] Para [5].

[7] This principle preceded the Constitution Mönnig (supra).

[8] 2020 (2) SACR 604 (CC) para [56].

[9] Currie and De Waal Bill of Rights Handbook 6 ed JUTA, Cape Town 2018) at 798.

[10] [2012] ZAWCHC 245

[11] 1998 (2) SACR 35 (W) 40H-J.

[12] M Carnelley ‘The South African Military Court System, - Independent, Impartial and Constitutional?’ in Scientia Militaria, South African Journal of Military Studies, 33:2 (2005), 55- 77.

[13] S 200(1), Constitution of South Africa.

[14] President of the Ordinary Court Martial and Others v Freedom of Expression Institute and Others [1999] ZACC 10; 1999 (4) SA 682 (CC) para [9].

[15] Ibid.

[16] 2002 (1) SA 1 (CC) para [10].

[17] Carnelley (supra) 59. The functions of the Adjutant General are provided for in s 28 of the MDSMA. The Adjutant General is responsible for the overall management, promotion, facilitation and co-ordination of activities in order to ensure effective administration of military justice and the military legal services.

[18] S 28(1) MDSMA.

[19] S 14(1) MDSMA.

[20] S 14(4) MDSMA.

[21] S15 MDSMA.

[22] Para [31].

[23] Para [38].

[24] Van Rooyen & Others v The State & Others (General Council of the Bar of South Africa Intervening 2002 (5) SA 246 (CC) para [35].

[25] 1998 (3) SA 785.

[26] (1985) 24 DLR (4th) 161 cited by Ackerman J in De Lange v Smuts para [70]

[27] 2011 (3) SA 347 (CC) at para [125].

[28] (2008) AHRLR 93 (ACHPR 2008) para [79].

[29] (Application n 38784/97) dated 26 May 2002, legal-tools.org/doc/a53037/pdf/ accessed 5 July 2021.

[30] Justice Alliance of South Africa v President of the Republic of South Africa 2011 (5) SA 388 (CC) para [73].

[31] Van Rooyen (supra).

[32] 2014 (5) SA 69 (CC) at para [83].

[33] Para [33].

[34] Van Rooyen (supra) para [191].

[35] Van Rooyen (supra) para [161].