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An Introduction to the Military
Courts in South Africa and some Recommended Changes
BACKGROUND
The South African Military Law is essentially statutory criminal law contained in the Defence Act (Number 44 of 1957), the first schedule thereto and the rules promulgated in terms thereof. In short the Rules and the first schedule to the Act are called the Military Discipline Code (MDC).
During the years 1912 to 1957 British military law was applied in the Union of South Africa. The Zuid Afrika Verdedigingswet (Number 13 of 1912) made the British Army Act of 1881 in principle applicable to the maintenance of discipline in the defence force of the Union. Consequently the British Military Discipline Codes, as prescribed by the Army Act and the King's Regulations were applicable in the Union.
The Defence Act of 1912, as amended, was in force up to 1957 when the existing, completely new Defence Act, was passed by parliament as Act 44 of 1957.
OWN COURTS
Soldiers, in terms of the South African Military Law, have their own courts. Military courts may exist in six forms: a general court martial; an ordinary court martial; a chief of staff; a convening authority; an officer commanding deriving powers from the convening authority; and an officer commanding with delegated powers. Trials in military courts of the last four forms (a chief or staff; convening authority; commanding officer deriving powers from the convening authority; and a commander with delegated authority) are called summary trials. All these courts are regarded as military courts but only courts martial are regarded as Courts of Law. Summary courts have a local and permanent character and consist of a single trial officer. Courts martial are composed of at least three members and are only convened on an ad hoc basis.
JURISDICTION
To qualify for the jurisdiction in the above mentioned military courts, the accused must firstly be subject to the MDC. The specific categories of persons upon whom the MDC is applicable, are the following:
- members of the permanent force at all times;
- members of the citizen force, commandos, and the reserve while they are rendering service, undergoing any training or performing any duty in pursuance of the Defence Act or, when liable, or called up therefore, fail to render such service or undergo such training or to do such duty;
- persons lawfully detained by virtue of serving sentences of detention or imprisonment imposed under the military discipline code;
- members of the auxiliary services;
- members of organisations as determined by the Minister of Defence;
- students under instruction at military training institutions;
- personnel attached to the armed forces; and
- persons accompanying or performing duty with a unit of the Defence Force.
Persons who are subject to the MDC may be tried by one of the six types of military courts depending on the type of offence committed, the rank of the accused and the possible penalty which can be imposed.
Although all of the offences covered in the Defence Act and in the first schedule thereto, can be heard by a military court, military courts do not have jurisdiction for treason, murder, rape or culpable homicide committed within the Republic of South Africa. However, should such an offence be committed by a person subject to the MDC outside the Republic of South Africa, a military court does have jurisdiction. Since jurisdiction of civil courts over soldiers is not excluded, military and civil courts have concurrent jurisdiction. The concurrent jurisdiction is confirmed by the Defence Act.
Any person who has been convicted or acquitted of an offence by any military court, is not liable to be tried again in respect of that offence by any other court.
APPEAL
Although no right of appeal against the finding or sentence of military courts exists, the Supreme Court of South Africa has the power to review the proceedings of a military court and checks and balances are built into the Defence Act to ensure a fair trial. A finding and sentence of a court martial can, for instance, not be enforced or executed unless and until the finding and the sentence have been confirmed by the convening authority. Besides this confirmation, the findings of courts martial are also subject to automatic review. Further review by the Review Council, being the highest review authority in the South African Defence Force, can also take place on request.
Checks and balances are also built into the Defence Act to ensure a fair summary trial. The review channels for commanders who received their authority from the confirming authority or with delegated powers are the same. Automatic review by the confirming authority and by the chief of staff take place in both instances. Findings of the convening authorities are automatically reviewed by the chief of staff and the adjutant-general. Findings of chiefs of staff are automatically reviewed by the adjutant-general and the Chief of the South African Defence Force. An accused can also request that the proceedings be reviewed by the Review Council.
While the findings of courts martial are subject to confirmation and review, summary trials are subject only to review and not to confirmation. The finding of a summary trial may, therefore, be enforced or executed immediately.
The Law of Procedure in military courts has much in common with the procedure in civil courts. As is the case in civil criminal courts, the proceedings in the case of a court martial also take place in public, in the presence of the accused, the prosecutor and the legal representative. The accused may be legally represented. Provision is also made for the recusal of members of a court martial. A charge is read to the accused and he may plea to the charge. Notwithstanding this, it was decided in Burger versus Roos N.O. and others 1959 (4) SA 398E-H that:
'In fact the military code and rules, though in many respects they run parallel to practice of civil courts, in a number of respects diverge from the practice and no safe inference can be drawn from one to the other.'
The proceedings in summary trials are also very similar to the proceedings of courts martial except for a few exceptions such as that the proceedings are not held in public and that the accused is not explicitly empowered by the act to be legally represented.
The Defence Act also creates several presumptions, for example, in articles 118(5), 121A(3) 125(2), 126A(4) and 150.
With regard to the Law of Evidence in military courts, article 84 of the first schedule determines that the rules of evidence as applied by the civil courts of the Republic should be followed in and by military courts.
RECOMMENDATIONS
It would appear that South African Military Law has fallen behind developments in the Republic itself, as well as developments in other military law systems. Anderson mentions that the South African Military Law is based on the British system of military law as it was at the end of the previous century. That writer (Anderson 1988: 113) continues: 'English Military Law has received considerable legislative attention, something which has not happened in South Africa.'
Should the Defence Act, the first schedule thereto and the rules be studied, it would appear that the Act itself was intended to be administrative. For the organisation of the Defence Forces, it would seem logical that the first schedule contains specific offences and penalties and that the rules are procedural. With patchwork however, this categorical division has faded away with time. Nowadays the act itself contains specific offences and penalties in, sections 88(2), 89(3), 99A(4), 101(3), 103(quat)(10), 115-119 and 121-127, inter alia. While rule 21 determines which penalties a military court may impose, other penalties are contained in section 61 of the first schedule. The same is applicable for rule 15 and for article 62 of the first schedule. The time may have arrived to re-establish these original distinctions and to make the act or acts more 'user friendly'.
In contrast to article 72(C)(4) which explicitly makes provision that an applicant to the boards for religious objection shall not be entitled to legal representation before the board, as well as other articles which expressly make provision for legal representation at courts martial, the act itself remains silent on legal representation at summary trials. This does not necessarily mean that an accused has no right to legal representation at summary trials, but one could argue that the act should make specific provision that the accused at summary trials may also make use of legal representation. Legal representation can contribute to a fair trial.
The question arises whether persons, who are subject to military courts, must also be subject to civil courts. The fact that military people are subject to civil courts, is a remainder of prior English legislation. This legislation has however, been repealed. In this regard South African military law should also be put in step with English military law. In the United States policy dictates that members of the armed forces be tried by military courts for offences under military law.
Perhaps military law would be put on a more stable footing if courts martial were constituted on a permanent basis instead of an ad hoc basis. A permanent court martial which in essence hears trials at certain centres (and which can also hear trials at other places) may have more credibility than a court martial which is constituted on an ad hoc basis by the convening authority. Such a permanent court martial may comprise members whose knowledge of military affairs as well as the law is beyond reproach.
Although article 72(1)(c) of the first schedule and rule 39(1)(f) make provision for the appointment of a judge advocate on a court martial; and although section 72(2) of the first schedule mentions that a judge or a retired judge or a practising advocate with at least ten years standing may be appointed on a court martial; and although section 73 of the first schedule makes provision for the appointment of an officer with certain prescribed law qualifications on a court martial in certain circumstances; and although members of the court martial are normally officers who had to complete courses in military law at military institutions, Chief Judge Corbitt on 495A in Council of Review, SADF and others versus Mönnich versus others 1992(3) SA482 refers to a court martial as 'a court which admittedly is composed of laymen'. Such a reference does no credit to courts martial. The appointment of permanent courts martial, with members whose knowledge of the military and the law is proven, will eliminate such criticism.
In such permanent courts martial it would also not be necessary that a judge advocate be appointed because the other members' knowledge of the law would make that of the judge advocate superfluous. A further recommendation in addition to the appointment of permanent courts martial may be that the findings and sentences of the courts martial are circulated to other courts. Although the results of previous courts martial may not be binding on consequent cases, it will contribute to a more uniform and stable military law system. Should permanent courts martial not be constituted, thought may be given to the abolition of military courts and the appointment of persons with knowledge of the military law and the military community in civil courts, that then will hear military matters. The advantages and disadvantages of this recommendation are not discussed here, however.
Although a right of review by the supreme court does exist, there is no right of appeal. Admittedly, the internal powers of review with regard to summary trials and courts martial do go some way towards ensuring the correctness and fairness of findings. The fact, however, that there is no explicit right of appeal to the supreme court or other determined military court of appeal, is a lacuna. Article 145 of the first schedule makes provision for a Council of Review to be appointed by the minister of defence. Yet the findings of the Council of Review are not binding and the accused must bear the costs of his own representation. It should also be remembered that the Council of Review exists within the military hierarchy and that Council of Review members are not necessarily are well schooled in the law. Furthermore, the council does not have the status of a court, it is not bound by the record of the case and is not in the position to hear evidence itself.
In both the American and British military law a military court of appeal exists. The findings of these courts of appeals are binding on their respective courts martial. These courts are also independent. Is it not time for an independent military court of appeal to be established within the South African military law, or at least time that the Defence Act specifically authorise the supreme court in general (or one division of the supreme court) to hear appeals in findings of courts martial?
Although the Amendment Act on Defence (Number 132 of 1992) substituted many antiquated expressions, some still remain. For example article 124 of the Act and 138(2) and 151 of the first schedule still refer to the 'pound' as the currency, while rule 123 refers to 'six pence'. An adjustment to the current South African currency should be made.
Notwithstanding the repeal of the Population Registration Act, section 2(1) under the Defence Act still stated that, except in certain instances, the act only applies to white males. This has now been partially rectified by the Defence Second Amendment Act 1993, published in the Government Gazette of 1 October 1993 and which came into operation on 12 November 1993.
CONCLUSION
Thus far much has been said about the future organisation of a new defence force, but little about a new Defence Act. Military law is a vital component of any such new Defence Act. It too requires some attention.
BIBLIOGRAPHY
G C Anderson, The legal classification of military courts as courts of law, 1988.
E L K de Villiers, Die Suid-Afrikaanse militêre regstelsel, Codicillus 91, October 1974.
J J Henning and R G J Nieuwenhuis, Defence, in The Law of South Africa VII, 1979.
J F J Kirsten, Administratiefregtelike aspekte van die dissiplinêre kode van Suid-Afrika, 1970.
J G Morgan-Owen, Royal forces, in Hailsham (ed) Halsbury's laws of England XLI, 1983.
M M Oosthuizen, Die geskiedkundige agtergrond van die militêre reg, THTHT 211, 1990.
L V Postma, Military Courts in the Republic of South Africa, Military Law and Law of War Review 38, in 1967.
L V Postma, Militêre regbanke in die Suid-Afrikaanse reg en ook in die Regstelsels van enkele ander state, 1966.
C J Pretorius, Regspleging in die Suid-Afrikaanse Weermag, De Rebus Procuratoriis, August 1973.
C A Shanor and T P Terrell, Military law in a nutshell, 1980.
CASES
Burger v Roos N.O. and others, SA 393 AD, 1959(4).
Council of Review, SADF and others v Mönnig and others, AD 482, 1992(3).
Smith v Belleggende outoriteit, SA 519 TPD, 1980(3).
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