Jungle Justice and the Fundamental Rights - Military Courts in a Future Constitutional Dispensation

Christo Botha Senior Lecturer in Constitutional and Public Law, University of South Africa

* Funding for the larger projet of which this article is part was kindly proided by the United States Institute for Peace, the Canadian Embassy Dialogue Fund in South Africa, the Royal Netherlands Embassy in South Africa and the Hanns Seidel Foundation. An earlier version of this paper was presented at a conference on Defence Legislation in a New South Africa, 25 March 1994.

Published in African Defence Review Issue No 17, 1994

INTRODUCTION

This paper is not concerned with the structure and composition of a future South African Defence Force, nor shall I even attempt to touch on questions like threat levels, funding and manpower requirements. However, I would like to examine some of the legal problems most likely to be posed by fundamental right clauses in the Constitution. These include military justice in general, and the structure and composition of military courts in particular.

Since 2 February 1990, South Africa has been in transition: a bewildering and ever-increasing numbers of forums, committees and think-tanks have negotiated and discussed the various political and constitutional options, culminating in several agreements and transitional arrangements. Arguably, the two most important of these are the "interim" Constitution of South Africa (Act 200 of 1993), and the general election of 27 April 1994. The negotiations and the resulting agreements to a large extent dealt with the "hard" political issues: human rights, constitutional principles, proportional representation, the so-called "levelling of the playing field", affirmative action, land issues, regional and local government structures, built-in checks and balances-in other words, all the respective fears and aspirations of the various role players in the political arena. Apart from issues such as the integration of other armed forces, the future defence force received very little attention (e.g., until recently the status quo with regard to national service was maintained long after the old order started to crumble (see Botha (1992) 117); see also Anderson (1988) 132) Sections 224-228 of the new Constitution deal with the functions of the National Defence Force. In terms of section 229 the current Defence Act 44 of 1957 will remain in force until its repeal or amendment by a competent authority.

THE ARMED FORCES UNDER THE NEW DISPENSATION

Section 227(1) provides that the National Defence Force may be employed for a number of tasks subject to the Constitution, and section 227 (2)(a)(i) provides that the National Defence Force shall perform its functions exercise its duties solely in the national interest by upholding the Constitution. Section 4 (1) of the Constitution states that the Constitution shall be the supreme law of the land, against which all legislative, executive and judicial acts will be tested. Instead of an omnipotent legislature, the constitution will reign supreme. The Constitution is now the frame of reference within which everything should function, and against which all actions should be tested. The following dictum by Mohamed AJ in S v Acheson 1991 2 SA 805 (Nm) 813A-C sums this up:

The Constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed. It is a "mirror reflecting the national soul", the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and tenor of the Constitution must therefore preside and permeate the processes of judicial interpretation and judicial discretion.

The supremacy of the Constitution, including a bill of fundamental rights, now means that the rights of the individual will, for the first time in South Africa, prevail over the interests of the State, and may be limited only in those instances provided for in section 33 (for an overview of the doctrine of parliamentary sovereignty, as well as the South African judiciary and human right in the past, see Kruger (1990) 168-187).

Section 35(1) of the Constitution, provides the following with regard to Chapter 3 (fundamental rights):

In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law.

Section 35 (3), which deals with the interpretation of legislation in general, provides that:

In the interpretation of any law and the application and development of the common law and customary law, a court of law shall have due regard to the spirit, purport and objects of this Chapter.

The basic question is one of law: if the particular legislation is consistent with the Constitution, it is valid and in force. If not, the court which exercises a "judicial check in terms of the Constitution", will declare it ultra vires the Constitution and strike it down (Nyamakazi v President of Bophuthatswana 1992 4 SA 540 (BGD)).

You might well ask what the fuss is all about: surely the interpretation and the application of the Constitution in general and Chapter 3 in particular will be left to the future Constitutional Court, and the other courts of law will only have to deal with ordinary legislation? Not so, I am afraid. Section 103 of the Constitution provides that if a party before a court of law alleges that the legislation in question is in conflict with the Constitution, and the presiding officer is of the opinion that it is in the interest of justice, the case may be postponed to enable the matter to be referred to either the provincial or local division of the Supreme Court or the Constitutional Court for a decision regarding the validity of the legislation in question. Read with section 35(3), this means that all judicial officers, including at least courts martial, could be called upon to interpret not only the Constitution, but to interpret other legislation with due regard to the spirit and objects of Chapter 3. It also has to be borne in mind that section 7(4)(b) creates an actio popularis: when an infringement or threat to any of the fundamental rights in Chapter 3 is alleged, virtually anybody can approach a court of law for appropriate relief, including a declaration of rights.

Although the National Defence Force will be bound by the whole of Chapter 3, the following fundamental rights specifically come to mind: equality before the law and equal protection by the law, as well as the prohibition of discrimination (sect 8); the right to respect for and protection of dignity (sect 10); the right to freedom and security of the person, which includes the prohibition of detention without trial, as well as prohibiting torture and cruel, inhuman or degrading treatment or punishment (sect 11); the right to assembly, demonstration and petition (sec 16), which has to be read with sect 27, dealing with labour relations; the right to access to a court (sect 22), which has to be read with section 25, dealing with the rights of detained, arrested and accused persons. In the light of the provisions of Chapter 3 in particular, and international human rights law in general, a number of provisions in the current Defence Act will not pass the test, for example the notorious section 103ter, section 121A, which deals very tamely with the issue of recruitment of mercenaries (see Botha (1993) 79-86), and section 72, dealing with conscientious objectors (see Major (1992) 349-378, where it is argued that conscientious objection to military service is a basic human right). As far as public international law in general is concerned, section 227(2)(d) and (e) of the new Constitution provides that the National Defence Force shall:

not breach customary international law binding on the Republic relating to aggression;



in armed conflict comply with its obligations under international customary law and treaties binding on the Republic;

It can safely be assumed that a future South African government will accede to the various treaties and protocols relating to armed conflict and international human rights. Whether they like it or not, members of the military will have to take note of this development. The courts (and the military) will not only have to get acquainted with international human rights laws in terms of section 35, but will have to reacquaint themselves with public international law in general, since it will become part of South African law in terms of section 231. It was recently said that:

(a) way must be found to reach the lost generations of international lawyers - judges, advocates, magistrates, attorneys, students and law teachers. We will all be called upon not only to reconceptualise our notions of international law as such, but also to reassess the very basis from which our legal system operates. It is only to be hoped that we will be sufficiently open to meet these challenges. (Botha (1992/3)63)

THE NATURE OF MILITARY COURTS

According to section 1 of the Military Discipline Code, a military court

means any court or officer deriving jurisdiction from this Code or from an officer, to try persons subject to this Code who are charged under this Code with offences and to impose punishment.

The trial takes place by way of summary hearing at various levels in an ordinary court martial or a general court martial.

Military courts do not fit into the ordinary hierarchy of South African courts, and the question may well be asked whether military courts may be classified as courts in the fullest sense, or whether they are purely quasi-judicial bodies.

The practical significance of the distinction between quasi-judicial acts lies in the sphere of functus officio; the author of a judicial act is functus officio as soon as the act has been performed, but the author of a quasi-judicial act is not necessarily functus officio. In other words, the author of a judicial act cannot reconsider his own act and revoke or later his decision himself. The author of a quasi-judicial act may do so in certain circumstances (Wiechers (1985: 165-170)).

What are the criteria for a judicial as opposed to quasi-judicial act? Wiechers (1985: 95-104) discusses a number of the criteria which have been put forward to identify judicial acts:

The decision of the administrative organ performing the action must be final and binding.



There must be a lis inter partes or dispute.



The official takes a decision involving the application of existing legal rule(s) or of an established objective standard to the facts.



The official or organ performs an action or takes a decision which imposes obligations and/or affects the rights of individuals.

It is immediately evident that each of these criteria has to be qualified in some way. The first is questionable because many acknowledged judicial acts are subject to appeal or review (sometimes automatic review). The requirement of a lis inter partes, likewise, does not solve the problem; there is no lis in ex parte applications, for example, and moreover, disputes may certainly arise in the course of administrative activity, although not all of these will be judicable. Furthermore, as Wiechers (1985: 98) points out, the application of objectively binding legal rules and objective standards is not the sole prerogative of judicial organs. A quasi-judicial body such as the Medical and Dental Council certainly has to apply such rules and standards when conducting a disciplinary hearing. Finally, the test which characterises such acts as imposing obligations or affecting existing rights is not decisive at all; one of the characteristic features of quasi-judicial acts is that existing rights or privileges are affected (see Wiechers (1985: 131)).

Wiechers (1985: 102-104) eventually sets out a number of material and formal tests for judicial acts:

Is there a legal despute or uncertainty as regards rights, duties et cetera?



Is there a finding and application of the law to existing facts and duties - in other words, an adjudication in the formal sense?



Does the organ performing the act possess the formal qualities usually attributed to judicial organs, such as independence and legally qualified members who are part of the judicial organisation in the state?



Is the act final and binding? does the prohibition of res iudicata apply?

If we measure military courts against these criteria, we find little difficulty in concluding that courts martial are courts in the fullest sense of the word (see also Anderson (1988) 144), despite the fact that the officers presiding over the proceedings are not professional lawyers; some of them do not hold formal legal qualifications at all (see Botha and Carpenter (1990: 423-433)). Even the requirement that the findings of courts martial must be confirmed and are still subject to review thereafter, does not detract from their essential nature.

There are a few problems in regard to summary trials, however: the hearing is informal; the presiding official need not possess legal qualifications; the hearing is held in camera and legal representation is not permitted. This inclines one towards the view that summary trials are quasi-judicial rather than judicial acts, a view which is confirmed (by implication) by Wiechers (1985:211); in his discussion of the rules of natural justice he cites the case of Smith v Beleggende Outoriteit van Kommandement Noord-Transvaal van die SA Weermag 1980 3 SA 519 (T), in which it was held that an accused in a summary trial is not entitled to legal representations as of right; as you know, the observance of these rules is essential to quasi-judicial acts. On the other and, the person involved in a summary trial is called "the accused"; he may be found guilty of an offence, and punished; while many quasi-judicial bodies may impose punishments such as fines and suspensions, a sentence of imprisonment ("detention" in military parlance) may be imposed by a military court. Perhaps this single factor should weigh more heavily than any other in the decision whether to categorise the findings of a summary trial as judicial rather than quasi-judicial. The fact that military courts do not form part of the normal judicial hierarchy is not decisive, since there is no rule that only those bodies which do form part of that hierarchy can be classified as courts. However, the status of military courts has been clarified in Council of Review, South African Defence Force v Mönning 1992 3 SA 482 (A). The Appellate Division upheld the decision in the court a quo. In this regard the views of Corbett CJ are important (my emphasis):

What must be remembered is that in the present case we are concerned with the proceedings of what is in substance a court of law. It is a court which admittedly is composed of laymen, but one which in all other respects has the characteristics of a court of law and which enjoys a wide criminal jurisdiction. And, as I have already observed, the propriety of its proceedings should be judged by the normal standards pertaining to a court of law.

This seems to suggest strongly that military courts are regarded as judicial bodies. However, it can only be assumed that the Chief Justice referred only to courts martial. This decision places an enormous responsibility not only on the courts, but the confirming and reviewing authorities as well.

THE RELATIONSHIP BETWEEN MILITARY COURTS AND THE CIVIL COURTS

It is difficult to define precisely the relationship between the ordinary courts and military courts. First, a military court is not an inferior court as defined in section 1 of the Criminal Procedure Act. Furthermore, there is no provision in the Act and the Code indicating what the civil equivalents of any particular military court are. Section 105 of the Act provides that the civil courts and the military courts have concurrent jurisdiction. This means that any division of the Supreme Court or (provided it has jurisdiction) a magistrate's court, may try a person for any offence under the Military Discipline Code. However, purely military offences are, as a matter of policy, tried by military courts, unless otherwise decided, on the advice of the Judge Advocate General. In this regard, see S v Grobler 1961 1 SA 63 (C) in which the sentence imposed by a magistrate was reduced because the magistrate had failed to take into account that the accused's commanding officer could have heard the matter. Also see R v Davids 1963 2 SA 807 (SR), in which the court held that where the principles of military law are to the advantage of the accused, the civil court should apply them.

Difficulties could arise in regard to the exact limits of the jurisdiction of a military court. For example, a general court martial may, in respect of "civil" offences, impose the same sentence which a competent civil court may impose, but not a more severe sentence. In certain offences, such as theft, for example, a "competent civil court" may be a magistrate's court, a regional court or the Supreme Court, depending on the circumstances. There is no clarity on the question of which of these civil courts must be regarded as the equivalent of the military court when the jurisdiction of the latter stands to be determined. Military courts are not courts of records, which makes matters even more complicated. The only indication one has is that even general courts martial are bound by the judgments of a magistrate's court. On the other hand, it must be remembered that general courts martial may impose the death sentence, which magistrate's courts cannot do.

One indication of the civil authorities' changing attitude towards the status of military courts is that the problem of "double jeopardy" was eliminated in 1992. Section 106 of the Defence Act now provides that:

any person who has been convicted or acquitted by a military court, and



any person to whom the MDC applies and who has been convicted or acquitted by any other court, shall not be liable to be tried again in respect of the same offence by any court.

PROPOSALS FOR AN ALTERNATIVE MILITARY COURT STRUCTURE

In the light of the above, the following structural changes to the military court system are proposed:

In the first place, a clear legislative distinction should be made between courts martial as courts of law, and summary trials as mere administrative tribunals.



Secondly, for the courts martial to be generally accepted as courts of law (see Anderson (1988) 143-6), albeit as sui generis courts, serious consideration should be given to aspects like permanent courts martial, specialised and permanent legal officers, security of tenure for the members of military courts, the introduction of either a Military Appeal Court (see Van der Westhuizen (1994) 20-21) or at least a statutory right of appeal against decisions of a court martial. Although section 107 of the Defence Act provides that there is not the right of appeal against the decision of a military court, the right of review of a council of review (in terms of section 112 of the Act) already has the character of an appeal rather than a review, since the merits of the case may also be considered (Mönnig v Council of Review 1989 4 SA 886 (C) 873C and 875E; Botha and Carpenter (1990) 430). Legislation should confirm and define the status of military courts within the general court structure, perhaps similar to that of the special income tax court.



Summary trials should be removed from the sphere of military courts. They should preferably have the status of internal disciplinary hearings similar to those in the Police (chapter ii of the Police Act 7 of 1958 and the Correctional Services (sect 50-60 of the Correctional Services Act 8 of 1959). It follows that these summary disciplinary hearings will have to be decriminalised: only offences of a purely disciplinary nature should be heard. To ensure a fair hearing, legal representation should not be excluded per se (Baxter (1984) 555-6). In any event, the current position that no legal representation is allowed in a summary trial will not comply with section 25 of the new Constitution.



A clear distinction should be made in a future Military Discipline Code between criminal offences justiciable by the courts martial, and minor disciplinary transgressions that should be heard in internal disciplinary hearings. Another distinction that is long overdue, is that members of the defence force should be tried military courts for offences under military law and not also fall under the jurisdiction of the civil courts. As Van der Westhuizen ((1994) 20) points out, South Africa is out of step with English and United States military law in this regard. However, the peculiar disciplinary and hierarchical nature of the military system should always be borne in mind when changes and adaptations are made to the system of military justice.



Finally, all actions during arrest, detention and other pre-trial procedures should comply with the clear and peremptory requirements of Chapter 3 of the new Constitution (especially sections 10, 11, 22, 24 and 25).

The South African judiciary, police and defence force have experienced a serious legitimacy crisis during the past few decades. I am convinced that these proposed structural changes to the system of military justice, as well as an understanding of the human rights character of the new constitutional dispenation, will go a long way towards restoring the legitimacy of the defence force, as well as the national pride in it.

BIBLIOGRAPHY

G C Anderson, The legal classification of military courts as courts of law Unpublished LL M dissertation, University of Pretoria, 1988

L Baxter, Administrative Law, Juta, 1984.

C J Botha .'Boetie (en wie nog?) gaan border toe': verpligte nassionale en artikel 2 (1)(b) van die Verdedigingswet 44 van 1957 oorkant die Rubicon SA Publiekreg/Public Law 1992p117.

C J Botha, Soldiers of fortune or whores of war?: the legal position of mercenaries with specific reference to South Africa. Strategic Review for Southern Africa, no 2 (1993), p 75.

C J Botha and G Carpenter, Militêre reg: rara avis of contradictio in terminis? Mönnig v Council of Review THRHR, 1990, p 423.

N J Botha, The coming of age of public international law in South Africa, South African Yearbook of International Law, 1992/3, p 48

T J Kruger, Die wordingsproses van 'n Suid-Afrikaanse menseregtebedeling, Unpublished LL D thesis (PU for CHE), 1990.

M-F Major Conscientious objection and international law: a human right? Case Western Reserve Journal of International Law, 1992, p 349.

H Van der Westhuizen An introduction to the military courts in South Africa and some recommended changes, African Defence Review, no14 (1994), p 18.

M Wiechers Administrative Law, Juta, 1985.