The Revision of South African Defence Legislation - A Personal View

CIVILIAN CONTROL OF THE MILITARY

The Roman maxim arma togae cedunt is a reminder that the issue of civilian control of the military is ages old. The following historical examples of political measures in this regard are still relevant today:

Great Britain's 1689 Bill of Rights1 which, vis-à-vis the constitutional head of state, provided that '... raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against the law'';

Virginia's 1776 Bill of Rights2 which provided that '... in all cases the military should be under strict subordination to and governed by the civil power'; and

the United States of America's 1776 Declaration of Independence which, in its preamble of complaints against Great Britain's monarch, listed the charges that:

'He has affected to render the military independent of, and superior to, the civil power', and he protected them '... by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states'.3

The new South African Constitution recognises the lessons of these precedents, that is, clear, balanced constitutional, parliamentary and civilian control of the military is necessary. The points made below are based on the premises that:

the Constitution, further Act(s) of Parliament and mutatis mutandis the existing Defence Act, 1957 (Act No 44 of 1957) will govern the National Defence Force4; and

the new Constitution as the Republic's supreme law, if not expressly, then at least by implication, provides for the continuance of the Defence Act, 1957 - and hence the Military Discipline Code (MDC) - even if it is inconsistent with the Constitution, unless the former deals directly, specifically and unambiguously with matters thusfar regulated by the Defence Act, 19575.

When the new Constitution is read together with the Defence Act, 1957, a number of practical means of constitutional control become evident. These are outlined below:

Whilst executive command of the military will be vested in the officers of the National Defence Force, the chief executive officer will be appointed by the State President;6 and other subordinate military commanders will be appointed by the Minister responsible for defence.7

An officer is an individual commissioned as such by the State President or the Minister and holding an officer's appointment8.

The State President may confer and cancel permanent commissions whilst the Minister of Defence has like competence with regard to temporary commissions9. As a general rule, the audi alteram partem rule is statutorily required to be met in respect of cancellations.

Section 85 of the Defence Act empowers the Minister to dismiss defence force members. He is, however, obliged to do so should the State President so direct.

Both the new Constitution10 and the Defence Act, 195711 empower the State President to employ the defence force on service. A welcome innovation, however, is that wherever the defence force is employed for service in defence of the Republic, or in compliance with international obligations, or in the upholding of domestic law and order, Parliament will be empowered to terminate that service12.

The entire structure for the enforcement of discipline is - and will remain - the empowerment (by means of the State President's warrant) of the Chief of the National Defence Force to convene general courts martial and to further empower subordinate commanders to exercise like or lesser competences. The withdrawal of those powers would deprive commanders of lawful means of maintaining discipline.13

Parliament's role in the control of the military is extremely important. Money provides the sinews of war. Parliament will continue to budget annually for defence and, consequently, hold the reins of military capability in accordance with section 228(2) of the new Constitution and the precedent set in Great Britain's 1689 Bill of Rights. Public expression, scrutiny, accountability and debate in Parliament are of singular importance in the retention of a constitutionally-controlled and reliable defence force.

The Superior Courts of the Republic retain their usual powers to prohibit illegal action, to direct lawful conduct and to review decisions, as well as balance the interests of individuals and the military.

The military courts have no jurisdiction to try persons for the offences of murder, treason, culpable homicide or rape committed within the Republic. The limitation of section 56 MDC in this regard has its origin in the principle underlying the second quote from the USA's 1776 Declaration of Independence. All unnatural deaths which actually or are deemed to have occurred within the Republic must receive the scrutiny of the civil courts in terms of the Inquests Act, 1959.

Whilst the employment of the military will be part of the immediate tasking of the Chief of the National Defence Force by the State President or, at times, the Minister on the latter's behalf, the role of the mooted Defence Secretariate as a civilian body will have constitutional significance. It will function primarily to ensure that the military budget is spent and accounted for in accordance with the purposes for which it was granted by Parliament. The money thus administered will determine the number of men, as well as the suitability and availability of the means at the disposal of the defence force. Were the defence force a hound, it would be expected to respond to its master's call. In such an analogy, the Secretariat would be a leash available to assist in bringing the hound to heel.

UPHOLDING THE CONSTITUTION

Section 227(2) of the new Constitution prescribes that the National Defence Force is to function, inter alia, by upholding the Constitution in accordance with the law. This principle is not new. It reflects the tradition of the South African Defence Force's corps of regular officers. They believe in loyalty to the constitutional government of the day because it is constitutional. They believe in compliance with the law because it is the law. For eighty-four years they have not only acted accordingly but have remain party-politically aloof.

The significance of this is important. The law by itself protects no one. Compliance with the law is what protects. The success of the new Constitution will rest in part on this tradition of the South African Defence Force's regular officer corps being retained and expanded to accommodate new officers. My view in this regard is sanguine because none of the other future components of the National Defence Force has an officer corps which has maintained this tradition in practice.

This particular tradition aside, the often maligned values of the officer corps have underlying constitutional importance. Voet, in De Jure Militari,14 indicates that there is little advantage in having a commander capable of winning battles but unable to keep his hands and thoughts off his comrades' wives, money or property. Integrity, honour and the capacity for earning respect are not only of importance to the corps of officers. If an officer does not have these attributes or betrays them in small things, how can he be trusted with the safeguarding of a principle, namely the upholding of the Constitution? Military offences such as scandalous behaviour15 not only deserve retention but ultimately have practical constitutional significance.

Discipline too, has constitutional significance. A heap of building material is to a house as a mob is to an army. Structured order and discipline elevate the army above the mob. Discipline denotes control and order exercised over personnel. Furthermore, discipline denotes the system of rules, training and punishment used to maintain control. Discipline also denotes the standard of conduct attained by those subjected to that system. The significance of discipline lies in the fact that it is the practical touchstone which determines whether or not a defence force will be reliable in its conduct, be it in the field of war or vis-à-vis the Constitution of the day.

My view, therefore, is that, without the values and traditions of the South African Defence Force's corps of regular officers, and without effective and unbending enforcement of military discipline:

no reliable armed force can exist; and
the new Constitution could ultimately have less worth than the paper on which it is printed.

The continuance of those values and traditions must be assured as must effective discipline. Yet a healthy balance ought to be struck between these elements and the protection of the fundamental rights of the individual soldiers. If this can be promoted when defence legislation is reviewed, then constitutional, parliamentary and civilian control of an effective new defence force can be attained.

THE NEW CONSTITUTION AND THE NEW DEFENCE FORCE

Save in a single respect, the new Constitution's provisions touching the control and employment of the South African National Defence Force do not materially differ from those of the Defence Act 1957. The material difference lies in the unambiguous and categorical statement of the requirement that the Constitution, other national law and international law be complied with. Where section 227 of the new Constitution provides specifically for service for the purpose of socio-economic upliftment, it too expresses a pre-existing competence.

Armed forces are destructive forces which, in the field of foreign relations, may be characterised as the cutting edge of diplomacy or the final arbiters of a nation's status. The international law of armed conflict imposes norms as to when, where, how and to what end these destructive forces may be employed. It likewise limits the means which armed forces may employ and, in its consideration of humanitarian aspects, requires compliance with norms designed to lessen its destructive impact on those who are non-combatant, hors de combat or otherwise defenceless victims. Without absolute discipline and control over the personnel of armed forces, it is impossible to ensure compliance with the laws of armed conflict.

The Republic is bound, by a multitude of treaties relating to the use of the armed forces. No direct statutory means are contained in the Defence Act 1957 or the MDC for the enforcement of these obligations. For example, the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949 (article 82) prescribes that a prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power. The MDC, however, does not provide for the trial of prisoners of war, nor directly for the limitations on penalties provided for in, inter alia, article 87 of that Convention. Any review of the MDC should have regard to Chapter III of this Convention, especially.

The Republic also has no Geneva Convention Act, nor has it any tribunal empowered to try either our own defence force members or prisoners of war for conduct proscribed by international law16. Not only should such provision be made, but no reason exists for not giving the Geneva and similar Conventions the status of law, for example, by incorporating these as further Schedules to the Defence Act 1957.

The impact of international law does not end there17. This view coincides with that of the South African Defence Force, which has developed the concept of operations law advisers. A magnificent historical example was the promulgation of General Order, No 100 of 1863, being Instructions for the Governance of the Armies of the United States of America in the Field, the so-called Lieber Code. This the Republic has yet to emulate. Conclusions in this regard are that:

there is a real need for specialist military (as opposed to civilian) law advisers which must be met and recognised in the organisational structure of the new National Defence Force;

unless the law is accessible and statutorily enforceable, its dissemination will not ensure compliance; and

the revision of defence legislation must take international law into account.

PUNISHMENT

War is not a game. It will be waged wherever constitutional service in defence of the Republic must be rendered. Both the nature of warfare and the attendant geographical vagaries dictate that the choice of punishments available to the military must be sufficient to the challenge of retaining men in the field, as well as under discipline and control. The horrors of the trench warfare of World War I; the difficulties peculiar to unconventional interludes in the midst of conventional struggles (Chindits in Burma, Lanyon's Raiders in the South Pacific; the Narvick campaign); and the circumstances of low-intensity conflicts (SWA/Namibia; Angola; erstwhile Rhodesia) need to be borne in mind. A balance must be struck between the constitutional and military needs for discipline and the human rights of participants in conflict.

The European human rights instruments allow the retention of the death penalty for members of the military when public emergency or similar service is to be rendered. The Geneva Convention, too, recognises the need for this sanction18. The problem which remains is this: what effective penalties (relative to discipline on service) are there beyond capital punishment? W. Moore, in The Thin Yellow Line, details the history of this punishment in the British Army. Queen Victoria's objection to the abolition of corporal punishment19 was that it would unfairly expose her soldiers to the death penalty. She was not far off the mark. Amongst the Chindits, discipline was maintained by General Orde Wingate's 'authorisation' of corporal punishment in the stead of the 'ordinary' disciplinary punishments, such as fines, confinement and the like. Lanyon's Raiders opted for the threat of extrajudicial summary capital punishment. Be that as it may, the point is this: the range and effectiveness of punishments must be adequate to all the exigencies on which the members of the new defence force may be employed.

Preconceptions must be avoided. Foremost amongst these is the unwarranted view that because a volunteer defence force will be created, fewer disciplinary difficulties will arise. This will not necessarily be the case. The USA's armed forces went all-volunteer in 1972. This led to an increase in military trials by 1975. When the advantages of those armed forces, of unilingualism, high educational standards and relative mono-culturalism are compared to our disparate manpower sources, any such increase here is likely to be more marked. As things stood in 1992, the SA Army's trial figures would have had to have increased by 80% to have reached those of the US Army or the US Marines in proportionate terms.20

Amongst other preconceptions to be avoided is that foreseen by the 1789 Constitution of the United States of America, as amended in 1791. Its Article V enjoined that 'no one answers for a capital or infamous crime... unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.' A more expeditious administration of justice is acceptable - and essential - for the military. The effective maintenance of absolute discipline in, and over the armed forces constitutes the first and most practical requirement for the very existence of the Constitution. The rights contained in its Section 25 (Detained, arrested and accused persons) may therefore, reasonably and justifiably (in relation to an open and democratic society based on freedom and equality - to use the words of section 33), be curtailed or adapted without, however, negating the essential content of those rights. As already indicated, the prescription with regard to the continued validity of the Defence Act 1957, contained in section 236(8), at the very least constitutes implied recognition of the machinery and processes of military law for the purposes of section 4 of the new Constitution.

A final preconception to be avoided is that, within the Republic, the civil courts will always be open and available. This is a dangerous presupposition for which many historical precedents to the contrary exist. The 1780 Gordon Riots led to the rapid decamping out of London of the whole of the magistracy and the bulk of the judiciary. Likewise, the British Constitution does not recognise that civil war can exist. Historically, however, more than one has taken place within the kingdom. Any review of defence legislation must, therefore, take cognisance of the realities and contingencies of life. Consider section 56 MDC and the offences thereby reserved for the cognisance of the civil courts (murder, treason, rape and culpable homicide committed within the Republic). The other side of the coin is that, should those courts, for any reason, not function, then no court having jurisdiction will be available to deal with the contingency.

CONFORMING THE MILITARY DISCIPLINE CODE (MDC) TO THE FUNDAMENTAL RIGHTS OF DETAINED, ARRESTED AND ACCUSED PERSONS

Military customs may provide some of the solutions which will be sought. The military summary trial is a misnomer for non-judicial or disciplinary punishment. On the other hand, a court martial is in substance a court of law21. It is also a court before which no accused appears without representation which, by and large, is provided by the military and at its expense.

An old military tradition, often still observed, is to allow an accused before a summary trial the right to legal representation by acceding to his request to be tried by court martial. In relation to the charge on which he was arraigned before a trial officer, the practice has been that - in the event of conviction - the court martial would impose a sentence within its jurisdiction but not exceeding that within a trial officer's competence. If this usage were to be incorporated in the military rules of procedure, a far more satisfactory situation would exist - whether or not the last-mentioned practice were to be retained - than that brought about by the judgment in Smith v Beleggende Outoriteit, kommandement Noord-Transvaal.22 This, in essence, held that an accused before a trial officer is entitled to ask to be allowed representation and to have his request considered, but has no right in law to representation.

Existing safeguards in military law must be retained. The administration of military justice is far more expeditious than that of civilian courts. Part of the reason for this is that delays in arraignment may lead to non-prescribed offences being rendered non-justiciable by otherwise competent military courts. Consider though, Rule 118 MDC, which is designed to preclude oppressive behaviour towards individual soldiers. The principle is sound and worthy of retention although the provision deserves improved and wider formulation.

A second salutary principle is that, not less than a clear two days before a trial is due to commence, every accused to be tried by court martial (and hence his legal representative) must receive a copy of the convening order, the charge sheet and the record of the preliminary investigation23. Time allowed for preparation and its quality is usually adequate, especially in view of the practice of convening courts martial to begin on Tuesdays, thereby obliging delivery of the prescribed documents by or on the last ordinary working day of the preceding week. In R v Davids,24 principles of military law advantageous to an accused were applied by the civil court. In like vein, all military trials are ordinarily subject to two automatic reviews notwithstanding every accused's right nonetheless to approach the Council of Review and the Supreme Court for the further review of the proceedings.

Some improvements require only the improved implementation of existing law. A drawback is the non-existence of accessible military-law precedents or research material. The older 'classic' works, such as Winthrop's Military Law and Precedents or Hough's works, startle in their wealth of example and detail culled from the General Orders of the armed forces in which they served. The non-publication of charges, findings, comments by confirming and reviewing authorities25 prevents the fuller development of military law as well as the realisation of its potential for education and deterrence.

Some criticisms of the military justice system are based more on the apparent than the real. It was recently stated, for example, that Council of Review members are not necessarily well-schooled in law. The Council of Review for Capital Offences comprises three judges or retired judges (Mr Justice Melamet, Mr Justice Margo and Mr Justice Solomon), a senior retired officer with experience in the field (Lt Gen Dutton) and a senior military law officer. The (lesser) Council of Review comprises one judge or retired judge (Mr Justice Melamet) and the last-mentioned officers.

The value of practical military knowledge and experience ought not to be sold short. The composition of the Councils of Review is statutorily prescribed so as to ensure that at least one member has had not only extensive military experience but also experience in the field. This is a sound approach as the assessment of peculiarly military decisions26, values and conduct may arise. It is also true that a court martial is not only a court of law but also a court of honour and the ultimate professional tribunal of those subscribing to the profession of arms. In fact, the current factual composition of the Councils (as outlined above) is a happy one: all the judges have had wartime experience as commissioned officers. Perhaps the best comparison is to be made with the British Admiralty Courts, in which the judges may take the advice of the Elder Brethren who know from experience what 'happeneth upon the seas'.

The rectification of some past ill-considered tampering with military legislation could bring into proper perspective some problem areas. In a recent paper,27 Christo Botha referred to the problems which could arise from the statutory references to summary trials, military courts and the like. These cloud the status of summary trials as non-judicial or administrative proceedings. This obfuscation has been encouraged by the legislature proposing to take the whole of the magistrates' courts trial procedures and place them in the laps of lay trial officers who have limited jurisdiction and no hope of attaining a semblance of the knowledge required of a magistrate. A little military experience on the part of the responsible departmental legislative draftsman would have avoided this fiasco. After all, the procedure should have been a simple one, in which an NCO could bring Seaman Jack before his divisional officer with the complaint that Jack ought to have come on duty at 07h00 but only arrived at 11h00. The officer would ask Jack for his response, which might be that he overslept. If this were the case, the officer would inform Jack that he had been absent from his place of duty in contravention of section 14(b) MDC and that, therefore, he was convicting Jack accordingly. On hearing mitigation, Jack would be sentenced, perhaps to a fine of R75-00.

Much the same difficulty arises with regard to preliminary investigations (PIs) which, originally, were either a summary of evidence (akin to the present PI) held only when the charge was a capital one or if the accused requested it, or an abstract (outline) of the evidence designed to apprise the accused, the convening authority and, in the event of a plea of guilty, the court martial of the factual circumstances which gave rise to the charge.

Apparently anachronistic provisions often have sound raisons d'être. Both Christo Botha and Hardus van der Westhuizen28 are in the good company of the Chief Justice who, in Council of Review v Mönnig, Pluddemann and Thompson supra, seemed somewhat nonplussed by section 105 of the Defence Act 1957 which authorises the civil courts to try military offences committed by persons subject to military law. This provision is a throwback to old Cape Colony legislation which contained the qualification that the particular civil court had to be authorised thereto in writing by the officer in charge of the body of troops to which the accused belonged. Small bodies of troops dispersed over great geographical areas often gave rise to the practical impossibility of convening a court martial either at all or expeditiously. Likewise, the officer in charge might have been the person who brought the charge and it would have been irregular for him to have been complainant, witness and trial officer. The need for this provision still exists although the original requirement for the authorisation of the referral ought to be reinstated. It fell away because of EDC reviews which upset district magistrates' findings when the then requisite written authority had not been before the court.

A practical difficulty which arose in the past stemmed from the fact that military jurisdiction is personal whilst those of the civil courts are territorial. Military offenders have been tried by a civil court when the offences were not committed within that court's area of jurisdiction. This difficulty appears to have resolved itself: the last reported case was that of R v Van Zijl 1915 CPD 352. As a matter of judicial policy, the civil courts prefer military offences to be dealt with by military courts.29

The amendment of section 106 of the Defence Act 1957 has returned military jurisdiction to the Roman-Dutch law position, that is, it enjoys equal status with that of the civil courts qua trial courts. The common law principle which then appertains is that the court first seised of a matter has exclusive jurisdiction. How are disputes inter se to be handled? The legislation is silent in this regard.

The various Attorneys-General have no general competences to regulate prosecutions before military courts. This is properly so, since they serve the civil courts. Yet a number of statutes provide that no prosecutions may be brought before a court save with the approval of the relevant Attorney-General. An example is the Internal Security Act 1982 (Act No 74 of 1982). As the military courts have concurrent and equal jurisdiction with the civil courts, a statutory provision ought to be incorporated to obviate this difficulty.

The transformation of defence legislation to conform with the new Constitution will impact on organisation. 'Expiry' provisions, such as section 113 of the Defence Act 1957, are likely to be struck down by the Courts as repugnant to the essential rights enshrined in the new Constitution. This being so, the volume of 'live' litigation to be handled by the new defence force is likely to be considerably larger than at present. By the same token, the more sophisticated and complex the new legislation, the greater the requirement will be for legal advisers, law instructors and the like.

INDEMNITY

The soldier's position is often an invidious one and this will not change. The working of the indemnity provision in the Defence Act, 1957 (section 103 ter), has been rightly criticised in so far as the Executive is empowered to enforce it by a process of certification. This is morally repugnant, for it allows the authority, whose conduct is directly or vicariously challenged, itself to terminate the challenge. It is no wonder that the courts sought and found means to obviate the use of this certification procedure.30

This machinery has tainted the concept of indemnity for conduct in good faith. The constitutional practice over many decades has been to follow periods of serious disturbance with a parliamentary Indemnity Act. This is not only constitutionally sound but practical as well. The legal facts of the matter have been tellingly spelt out31 that the soldier has no more competences than the ordinary citizen save that he is under discipline, armed and obliged to act. Further, when the soldier is obliged to act, it is always in an abnormal situation: the soldier would not otherwise have been called upon to act.

It is contended that the indemnity provision be retained along the lines of section 103 ter (2) of the Defence Act 1957, that is, a court must assess its applicability as well as the evidence advanced for or against it. Furthermore, the need to fix soldiers' powers and competences when employed under section 227 of the new Constitution, read with section 3(2) of the Defence Act 1957, in parliamentary legislation, as opposed to subordinate legislation, has become pressing. As the new regions commence their own legislative programmes the situation will gradually become more complex and, therefore, increasingly in need of attention.

OTHER CONSIDERATIONS

Formalism in military law can be reduced. Disciplinary powers devolve through the military hierarchy by means of warrants or other written authority in terms of sections 66 and 67 MDC. Is there any reason why such powers should not accrue to specific appointments or ranks but remain susceptible to withdrawal by higher authority?

The summary trial procedure is governed directly by some nineteen (19) rules which incorporate other rules by reference. Yet Israel's Military Justice Act 5715 - 1955 prescribes the procedure of a disciplinary trial in a single provision (section 159), containing perhaps twice as many words as we have rules(!) and there is no doubt as to the status of the procedure. Is this not food for thought?

All our courts martial are ad hoc courts and must be preceded by a preliminary investigation.32 Is there not room for standing, summary and specialist (e.g., traffic) courts martial? Again, Israel's Military Justice Act 5715 - 1955 provides for all of these.

The basis of the judicial policy of the civil courts ought always to the borne in mind. Fohar 33commences as follows:

To a great many lawyers..., the text of laws dealing with military criminal law, the procedure of courts martial, and the system of courts martial generally, represent a 'closed book' which they have never opened, whose contents they have never been interested in, and whose institutions and concepts are unfamiliar to them. Moreover, despite this lack of familiarity (or, perhaps, because of it), there is a tendency to assume towards that system of laws an attitude not free from disdain, and the view is occasionally expressed among lawyers that 'military justice ought not to be considered justice at all'

On the other hand, our civilian courts - as already alluded to - hold as a matter of judicial policy that military offences ought to be dealt with by military courts.

Should the Council of Review not become a permanent military Court of Appeal? Is there not room for the establishment of the concept of military judges with judicial independence and fixed tenures? Again, the Israelis embarked upon this path some four decades ago and, consequently, the idea deserves at least study if not emulation.

Convening authorities are laymen. Although they have the advice of military lawyers, they are usually not in a position to assess the value of the advice given and cannot be obliged to follow advice. My view is that, in every situation in which the information available prima facie reveals the commission of an offence, a formal prosecution must predictably follow as soon as possible. Given the position of the convening authorities, however, the requisite consistency cannot exist. An independent military prosecuting authority charged with ensuring that prosecutions take place on the basis outlined above and with responsibility for the competent, expeditious pursuit of those prosecutions, ought to exist. Some offences, varying from complicated fraud to basic traffic offences, for example, are not really the stuff for either ad hoc courts martial or summary trials. This merely emphasises that the fora available bear closer scrutiny.

Personal jurisdiction must be retained. The very nature of the military and the ends to which it may constitutionally be employed demand that the personal jurisdiction of military courts be retained. Coupled to this, however, are the privileges accorded the soldier. Upon examination of section 47 MDC, it will be noted that, when a soldier transgresses the general law of our country (e.g., commits murder) outside our country's borders, he commits a military offence. The privilege lies therein that the known and general criminal law of our country follows the soldier wherever he may find himself. But how does he maintain his civil and other personal rights when outside the borders of our country and in its service? This matter also warrants attention.

Blanket criticisms of the military justice system must be carefully weighed. It has been suggested that preliminary investigations be done away with. This sort of blanket suggestion requires close scrutiny. The preliminary investigation (PI) was originally a summary of evidence (taken when the charge was a capital one or if the accused requested it) or an abstract of evidence (a precis). The original objects of these were:

to assist a CO in a complicated case to determine whether a case should be referred for trial by court martial;

to enable a convening authority to determine both the charges and the type of court martial to be convened;

to provide the prosecutor's brief;

to inform the defence of the evidence to be led by the prosecution;

to enable the president or the judge-advocate, as the case may be to appreciate the nature of the case before the commencement of the trial; and

in the event of a plea of guilty, to inform the members of the court and the confirming authority of the facts of the case.

Fortunately or unfortunately, Rule 62(1) MDC requires the court, on a plea of guilty, to study the record of the preliminary investigation, essentially with the view to ascertaining whether or not a plea of guilty was warranted. This was not one of the original objects of the procedure. Nonetheless, it is clear that, even in its original form, the preliminary investigation played a salutary role: it ought therefore not be discarded on grounds of expediency and decidedly not without equivalent safeguards being provided in its absence.

Current developments must also be taken into account. For example, consideration is apparently being given to the creation of the office of military ombudsman. This is in line with the general constitutional trend. Should the ombudsman not function as part of the military justice organisation? Should a permanent Council of Review not be given functions such as the review of decisions by the ombudsman, or a 'civil' jurisdiction to adjudicate disputes between soldiers and the Service, as well as disputes between soldiers?

FUTURE ORGANISATION

The proposal that the civilian Defence Secretariat have a Chief Directorate Legal Services responsible for defence legislation, including amendments, and legal processes involving the Department of Defence is a good one. A Chief Directorate is necessary and, with the addition of responsibility for general legal matters (advice to the Secretariat) is adequately defined in terms of functions.

In general terms, in this paper I ought to have indicated the real need for a military legal department separate from the civilian legal section with responsibility for:

prosecutions under a military prosecutor-general or attorney-general;
the functioning of military fora under a military judge-advocate-general;
legal representation (defence) at military trials under a military advocate-general;
the military ombudsman services; and
law-of-war and other legal advice as well as legal training under a director.

REFERENCES

Section 6.

Section 13.

The principle that this is a danger to be avoided is accepted, although the incident which gave rise to the formulation of the complaint, namely, the trial of soldiers in an American civil court and their successful defence by an original signatory to the Declaration of Independence, gives the lie to it as a purported statement of fact.

Section 236(8)(a) of the Constitution of the Republic of South Africa Act, 1993 [Act No 200 of 1993].

See section 4 of the new Constitution.

See section 225 of the new Constitution.

See section 8 of the Defence Act, 1957.

See section 1(1) sv 'officer' of the Defence Act, 1957.

See section 82(4)(b)(iii) of the new Constitution and section 83 of the Defence Act, 1957.

In its sections 82(4)(b)(ii), 227 and 228.

In its section 3(2).

See section 228(4) of the new Constitution.

See section 82(4)(a) of the new Constitution and sections 66 and 67 of the First Schedule to the Defence Act 1957.

3.38

Conduct unbecoming the character of an officer and a gentleman: section 32 MDC.

As in article 99 of the Geneva Convention.

Wm Hays Parks, The Law of War Adviser: 1979 Military Law and Law of War Review 357), L C Green, The Role of Legal Advisers in the Armed Forces in his 1985 Essays on the Modern Law of War 73 et seq) and, of course, article 82 of the first 1977 Protocol Additional to the Geneva Conventions of 12 August 1949 all support the principle that States, at all times, must ensure that legal advisers are available to advise military commanders at the appropriate level on the application of the Conventions and on the appropriate instruction to be given to the armed forces on this subject.

See its Chapter III.

This history is given in The Strange Death of Trooper White.

The latter forces' figures for 1975 are given in Warriors at Work 166.

See Council of Review, v Mönnig, Pluddemann and Thompson 1992(3) SA 482 (AD).

1980(3) SA 519 (T).

See Rule 48(1) MDC.

1953(2) SA 807 (AD).

Despite the empowerment to do so contained in Rule 79 MDC.

Note sections 4 to 8, 32 and 46 MDC.

Botha C, Jungle Justice and the Fundamental Rights - Military Courts in a Future Constitutional Dispensation, in African Defence Review, Issue No 17, July 1994.

Van der Westhuizen, H, An Introduction to Military Courts in South Africa and some Recommended Changes, African Defence Review, Issue No 14, January 1994.

See, for example, R v Grobler 1960(1) SA 63(C).

See Mweuhanga v Cabinet of Interim Government for South West Africa and Others 1989(1) SA 976 (SWA) and Shifidi v Administrator General, South West Africa and Others 1989(4) SA 631 (SWA).

In, for example, the Opinion of the Law Officers of the Crown of 1911 and in cases such as the Attorney General of Northern Ireland's Reference No 5 (1975).

See section 60 MDC and the Rules 17-24 MDC.

Fohar M, Modern Trends in Military Law and their Influence on Israel's Military Justice Law, in Studies in Law, Scripton Hierosolymitana, Vol V, Hebrew University, Jerusalem, 1958.

The Revision of South African Defence Legislation - A Personal View

CIVILIAN CONTROL OF THE MILITARY

The Roman maxim arma togae cedunt is a reminder that the issue of civilian control of the military is ages old. The following historical examples of political measures in this regard are still relevant today:

When the new Constitution is read together with the Defence Act, 1957, a number of practical means of constitutional control become evident. These are outlined below:

UPHOLDING THE CONSTITUTION

no reliable armed force can exist; and the new Constitution could ultimately have less worth than the paper on which it is printed.

THE NEW CONSTITUTION AND THE NEW DEFENCE FORCE

PUNISHMENT

CONFORMING THE MILITARY DISCIPLINE CODE (MDC) TO THE FUNDAMENTAL RIGHTS OF DETAINED, ARRESTED AND ACCUSED PERSONS

INDEMNITY

OTHER CONSIDERATIONS

FUTURE ORGANISATION

REFERENCES

The Revision of South African Defence Legislation -

A Personal View

no reliable armed force can exist; and
the new Constitution could ultimately have less worth than the paper on which it is printed.