* Mr Christo Botha has, to my mind, correctly pointed out that the constitution will hold the central and pivotal position in the new dispensation. As the supreme law of the land, all legislative, executive and judicial acts will be tested against it. In legal terms, this concept is referred to as the Rechsstaat or the Rechsstaatprinzip. In a dispensation where the constitution (and not parliament or the executive) reigns supreme, the courts who are called upon to interpret and apply the bill of rights, must take due cognisance of the values imminent to the constitution itself, and to the legal system as a whole. This means that the courts cannot simply adhere to the wording of the constitution itself; they must also, when interpreting the bill of rights, take cognisance of the 'spirit and tenor' of the constitution (as was amply illustrated by Mahomed AJ in S v Acheson, referred to by Botha).

Although the point of departure (or the 'point of entry') still remains the text itself, the complete context of the constitution is just as relevant for the purposes of interpreting the latter (cf Du Plessis and De Ville (1993) 366-78; Kruger 1991/92 290 and 320).

Courts martial will be part of the larger body of courts that will be called upon to apply the above-mentioned principles. As was rightly pointed out by Botha, the constitution compels a court of law to 'promote the values which underlie an open and democratic society based on freedom and equality' and furthermore to 'have regard to public international law' where applicable. Also, the constitution obliges a court, when interpreting any law, to have due regard to the spirit, purport and objects of the bill of rights.

Courts martial, falling squarely within the definition of a court in the fullest sense of the word, will have to bear those principles in mind. Consequently, there can be no doubt that the provisions of Chapter 3 will fully apply to courts martial, their procedures and sentences imposed by them. I therefore endorse the proposals made by Botha regarding the future structuring of these courts. I do, however, prefer a statutory right of appeal against decisions of a court martial to lie with the Supreme Court rather than a military Appeal Court.

Having to apply the bill of rights in a similar vein as all other courts, it is preferable that courts martial shall also be guided and, where necessary, corrected in their application of the bill of rights by, in the final instance, the Constitutional Court. Apart from considerations of a procedural and structural nature, courts martial will then, of necessity, have to become courts of record.

As has been pointed out by Botha, the real problem lies with summary trials: the hearing is informal; the presiding official need not possess legal qualifications; the hearing is held in camera; and legal representation is not permitted. Botha then submitted that summary trials represent quasi-judicial rather than judicial acts. He also pointed out that South African legal theory does not need the distinction between quasi-judicial and judicial acts but that the fact remains that it has taken root in our law and that it would serve no purpose to ignore it.

In Administrator Transvaal v Traub 1989 4 SA 731, at 762F-H, Corbett CJ questioned the distinction which is made between judicial acts and quasi-judicial acts on the one hand, and administrative acts or decisions on the other:

It is true that our courts have used the classification of acts or decisions into judicial or quasi-judicial on the one hand and purely administrative on the other hand in order to determine whether the actor or decision-maker was obliged, when exercising his powers, to observe the rules of natural justice, and more particularly the audi principle. As has been pointed out by, amongst others, Prof M Wiechers Administratiefreg 2nd ed at 141, this classification and its application in administrative law to questions such as the justiciability of acts or decisions on the ground of failure to observe the dictates of natural justice appear to have derived from English law. English law has now, as I have indicated, discarded it. Furthermore, there have been warnings in the past by our courts against a too-ready adoption of this classification as a solution for a particular legal problem.

And at 763J, after having considered some examples of the distinction in South African law, the honourable Chief Justice proceeded:

As I have shown, traditionally the enquiry has been limited to prejudicial effect upon the individual's liberty, property and existing rights, but under modern circumstances it is appropriate to include also his legitimate expectations. In short, I do not think that the quasi - judicial / purely administrative classification... is of any material assistance in solving the problem presently before the Court.

The fact of the matter remains that hitherto our courts have relied on their inherent powers of review whenever necessary, in order to review matters of a strict administrative nature or quasi-judicial acts. In the event of the review of administrative powers, the court will interfere on one or more of the following grounds:

if the administrative authority acted ultra vires;



if there has been no decision at all as required by the statute, in that the administrative body failed to consider the matter entrusted to it by the statute for decision, or failed to apply its mind to the matter, or failed to exercise its discretion;



if the administrative body or official disregarded the direct provisions of the statute;



if there was fraud, bad faith or corruption; and



if the body or official acted for improper or ulterior purposes or motives.

In the case of a quasi-judicial function a review will depend upon these grounds as well as on the question of whether the tribunal or official failed to observe the principles commonly referred to as the rules of natural justice which lay down a right to be heard and to be heard without bias in one's case (South African Law Commission, 419).

It must furthermore be borne in mind that the new constitution provides as follows in section 7(2):

This Chapter shall apply to all law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution.

Accordingly, should summary trials be regarded as no more than administrative actions (and not even quasi-judicial acts) it is evident that the constitution and in particular Chapter 3 thereof, will still in principle apply.

Should summary trials be removed from the sphere of military courts, as has been suggested by Botha, and should they have the status of internal disciplinary hearings, the question then arises as to what extent Chapter 3 (or at least certain parts thereof) will still find application.

In some other jurisdictions where bills of rights apply, similar problems have arisen. In Canada, for instance, the courts were faced with the question of whether the Canadian Charter of Rights and Freedoms was applicable to certain disciplinary procedures. In R v Wigglesworth (1988) 45 DLR (4th) 235 (SCC) the Supreme Court was called upon to decide whether section 11 of the Charter applied (section 11 deals, inter alia, with procedural aspects pertaining to the right to be informed of the charge against one, to be tried within a reasonable time, to remain silent and also the principles of autrefois acquit and autrefois convict). Wigglesworth, who had been convicted of assault by a disciplinary board, had been sentenced to payment of a fine of $300. The maximum sentence that could have been imposed by the board, was imprisonment of one year. After having been so convicted and sentenced, the policeman was charged before a provincial court on a charge of common assault in terms of the Criminal Code. As part of his defence he relied on section 11 viz. the defence of autrefois convict, that is not to be charged and sentenced on a charge on which he had already been convicted and sentenced.

Wilson J held that the application of section 11 of the Charter was limited to proceedings of a criminal or quasi-criminal nature, as well as to instances where a verdict of guilty may lead to 'a true penal consequence'. The term 'a true penal consequence' refers to a position where 'imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity', will arise.

Because the policeman had been potentially exposed to a jail sentence of one year, he was entitled to the protection of section 11, his sentence being a sentence of 'a true penal consequence.' Also (and in terms of the judgment), a fine could in itself be regarded as 'a truce penal consequence' if it is imposed in order to redress an injustice against society rather than to retain internal discipline.

This judgment was followed in various other Canadian decisions.

Consequently, only where disciplinary proceedings and conviction and sentence flowing therefrom would result in 'true penal consequences', would section 11 apply. A true penal consequence will be present where, for instance, the extent of the fine imposed would be aimed at 'compensating society', rather than maintaining internal discipline.

In terms of the European Convention for the Protection of Human and Fundamental Rights and Freedoms, the test that applies is somewhat less stringent. Section 6(1), being the relevant section, provides for a fair and public hearing inter alia in the event of any criminal charges. The European Human Rights Court has held that disciplinary proceedings should also comply with the general principles laid down in section 6(1). Should a conviction result in an extended jail sentence, the accused should be entitled to the protection of section 6(1) (see in general De Ville 293-298). It follows that disciplinary punishment of an offence that could be criminal cannot be imposed without a 'fair hearing' and the European Commission has said that it must in its essentials be granted (Kiss v United Kingdom, Collection of decisions 46, p 136).

Particularly as far as armed forces are concerned, the Convention organs are competent to satisfy themselves that the requirements of section 6 in respect of criminal charges have not been circumvented and that, in the words of the Court, 'the disciplinary does not encroach upon the criminal'. The criteria laid down by the Court in order to determine whether a disciplinary charge is in effect a 'criminal charge' are:

whether the provisions defining the offence belong, according to the legal system of the respondent State, to criminal law, disciplinary law, or both concurrently;



the very nature of the offence; and



the degree of severity of the penalty that the person concerned risks incurring.

Finally, as the Court has held that the Convention applies in principle to members of the armed forces and not only to civilians, it follows that a member of the armed forces has the same rights to a fair trial under section 6, where a 'criminal charge' meeting the suggested criteria is involved. Hence, administrative (disciplinary) action cannot be used as a guise for what, in effect, constitutes a criminal charge (Fawcett in Andrews, 1982, 23-4).

The list of procedural and other rights embodied in section 25 of the South African constitution (detained, arrested and accused persons) is more comprehensive than either the protection offered by the Canadian Charter or the European Convention. Section 25(1) deals with 'every person who is detained, including every sentenced prisoner', section 25(2) with 'every person arrested for the alleged commission of an offence' and section 25(3) deals with 'every accused person'. The word 'every' constitutes a broad concept in each of these instances. Section 25(3), moreover, deals explicity with the right to a fair trial. Again, an extensive catalogue of rights is included in that regard.

The crisp question is: do the provisions of section 25 in effect broaden the common law grounds for review? And also: is there any reason to believe that disciplinary proceedings would be excluded from the sphere of application of section 25? On the face of it, it appears as if the Canadian and European examples contain valuable guidelines in finding an answer to those questions. It also appears as if Botha, when suggesting that summary disciplinary hearings will have to be decriminalised in order to put them (at least in part) outside the sphere of application of, inter alia, section 25 is on the right track. The effect of 'decriminalising' summary disciplinary hearings will primarily be that 'a true penal consequence' will be avoided.

Even if section 25(1) would not per se and of necessity apply to disciplinary hearings, it does not necessarily follow that the courts will not in due course deem it desirable that certain principles of section 25 should also be made applicable to disciplinary hearings. In that regard again I agree with Botha that the principles of a fair hearing should not per se exclude legal representation. Also, all actions during arrest, detention and other pre-trial procedures should comply with the requirements of Chapter 3, even if the procedure followed at the summary hearing itself will not in all respects have to be in accordance with the guidelines laid down in section 25.

It is evident that disciplinary proceedings pose particular problems vis-à-vis the application of Chapter 3. This is true not only regarding military summary trials but also for other disciplinary proceedings, for example. those pertaining to professional bodies like the Law Society, the Bar, the Medical and Dental Council, and even universities. After all, the spirit, purport and objects of Chapter 3 are to be given due regard in the interpretation of any law and the application and development of the common law and customary law. Also, the values underlying an open and democratic society based on freedom and equality should be promoted. A balance should be struck between flocking the courts with petty issues on the one hand, and making a mockery of the spirit and tenor of the constitution on the other. In my view, we should opt for the cautious course, that is rather to lend too much protection than too little. After all, a rights culture should also be the basis on which those who have the constitutional duty to uphold the constitution (s 227(2)(a)(i)), should found their actions.

BIBLIOGRAPHY

De Ville JR, Moontlike Veranderings in die Administratiefreg na aanleiding van 'n Menseregteakte (unpublished LLD thesis, Stellenbosch 1992).

Du Plessis LM and De Ville JR, Bill of Rights interpretation in the South African context (3): future prospects, 1993 Stell LR.

Fawcett JES, Criminal Procedure and the European Convention on Human Rights in Andrews (ed) Human Rights in Criminal Procedure, 1982.

Kruger J, Value judgments versus positivism, SAPL 290, 1991.

Kruger J, Positivism: the old warhorse lives on, SAPL 312, 1992.

South African Law Commission, Interim Report on Group and Human Rights, 1991.