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The status of military courts within the South African judicial system has always been uncertain. The position is no different in the new

dispensation. The difficulty is informed by the fact that military courts have always operated as a ‘judicial’ entity separate from the civilian judicial

system due to their uniqueness as will be highlighted further below. The separate existence of military courts raises questions whether these courts are really courts, and are part of the South African judicial system in the new constitutional scheme. These questions will now be the focal point. As will be seen during the course of discussion, the answers to these questions have implications regarding the applicability of the principle of judicial independence to military courts.

2.4.1 Military courts and the judicial authority of the Republic of South Africa

In the new dispensation, the actual position of military courts within the South African judicial system can only be ascertained by analysing the relevant constitutional provisions and the legislation establishing these courts. Section 165(1) of the Constitution provides that ‘[t]he judicial

81 Ibid para 40.

authority of the Republic is vested in the courts.’ Furthermore, s 165(2) stipulates that these courts are ‘independent and subject only to the Constitution and the law...’.

In the old dispensation, the question whether courts-martial (as then styled) were courts of law was answered in the affirmative by the Appellate Division (as it then was) and was also considered by two writers. This

question will therefore not be entertained in detail here save to highlight the conclusions reached by the authorities in question and to comment briefly on the status of current military courts. Botha looked at the question in the context of the following tests for judicial acts:

Is there a legal dispute 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?⁸²

Botha concluded that there was little difficulty in finding that courts martial were courts in the fullest sense of the word ‘despite the fact that the officers presiding over the proceedings [were] not professional lawyers; some of them [did] not hold formal legal qualifications at all...’.⁸³ Similarly, Anderson

carefully studied the question of legal classification of military tribunals as courts of law and concluded that courts martial were courts of law.⁸⁴ He measured these courts against the so called trademarks of courts such as their composition,⁸⁵ procedure and evidentiary rules⁸⁶ and found them to have attributes similar to those of courts of law in respect to the said trademarks. He stated that the only real stumbling blocks were ‘issues of independence from executive control, conclusiveness of their decisions and

82 C. J. Botha ‘Jungle justice and the fundamental rights – military courts in a future constitutional dispensation’ (1994) 17 African Defence Review 1, 3.

83 Ibid.

84 G.C. Anderson The legal classification of military courts as courts of law (1988) Unpublished LL M Thesis, University of Pretoria 144.

85 In this respect, the decisive issue is the independence of presiding officers from executive control.

86 With regard to this factor, the more strictly the body complies with the procedural and evidentiary rules employed by traditional courts, the more likely it will be conferred with court status (see Anderson note 84 above 139).

the lack of statutory provisions for appeal to the Supreme Court.’⁸⁷

Nevertheless, he took the view that those factors do not sufficiently negate the concept of a fully fledged military judicial system.⁸⁸

Most importantly, the Appellate Division in Council of Review, South African Defence Force, and Others v Mönnig and Others clarified the status of courts-martial.⁸⁹ In that case, Corbett CJ stated that ‘[a]lthough a court martial is composed of military officers, it is in substance a court of law and its proceedings should conform to the principles, including the rules of natural justice, which pertain to courts of law.’⁹⁰ It is worth noting that the authorities discussed above are pre-1994 (before the new era).

As a matter of logic, there should be no difficulty in concluding that the current military courts (CODH excluded) are courts of law in the full sense of the word because these courts have more attributes of courts of law than the previous courts-martial which have been found to be courts of law.

There have been some significant improvements to the stumbling blocks which Anderson referred to above. For example, although there is still a great need for improvement (as proposed in Chapters Seven and Eight), the degree of independence of military courts has been raised significantly since the dawn of democracy. Furthermore, as noted already, these courts are now presided over by professional lawyers who hold formal legal qualifications.

They clearly resemble attributes of traditional courts in many respects.

Moreover, s 19 of the Military Discipline Act requires military judges to conduct all proceedings ‘in a manner befitting a court of justice’.

However, answering the question whether military courts are courts of law is not necessarily the end of the matter because s 166 of the

87 Ibid 144.

88 Ibid.

89 1992 (3) SA 482 (A). The question in this case was whether there were any grounds for members of a court-martial to recuse themselves on account of institutional bias.

90 It can only be assumed that the Corbett CJ was only referring to courts martial and not summary trials or commanding officers’ disciplinary hearings.

Constitution makes provision for a specific structure of courts contemplated in s 165. It provides as follows:

The courts are - the Constitutional Court; the Supreme Court of Appeal; the High Courts, including any high court of appeal that may be established by an Act of Parliament to hear appeals from High Courts; the Magistrates' Courts; and any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the Magistrates' Courts (emphasis added).

Do military courts form part of the structure of courts above? A brief look at the means by which military courts were created and other constitutional provisions suggests that these courts are part of the courts contemplated in ss 165 and 166 respectively. Military courts are established in terms of an Act of Parliament.⁹¹ This means that they are part of the South Africa judicial system hence subject to the requirement of judicial independence which applies to all courts.⁹²

Furthermore, s 171 of the Constitution provides that ‘[all] courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation.’ Military courts

function in terms of national legislation and their procedures are provided for in terms of that national legislation.⁹³ Moreover, the Act which

establishes military courts provides that military courts are subject to the Constitution and the law.⁹⁴ The Act goes further to embrace some of the principles entrenched in s 165 of the Constitution which deals with the judicial authority in the Republic. For example, s 19 of that Act states, among other things, that military judges must ‘be independent and… apply

91 Military Discipline Act 16 of 1999.

92 However, the Criminal Procedure Act 51 of 1977 does not include military courts in its definitions of a lower court and a superior court. This is a legislative rather than constitutional gap. It is also a reflection of the historic separate existence of military courts in South Africa. In the light of some of the difficulties resulting from the unclear status of military courts, Botha (note 82 above) 4 argues that ‘[l]egislation should confirm and define the status of military courts within the general court structure, perhaps similar to that of the special income tax court.’ Even though Botha made this argument in the context of the old system, the discussion above shows that the argument is still valid even under the new system because the situation remains unclear.

93 Military Discipline Act: Rules of Procedure (note 54 above).

94 Military Discipline Act, s 19.

the Constitution and the law impartially and without fear, favour or prejudice.’⁹⁵ The extent to which these courts meet the requirements of judicial independence is a different question, and one which is addressed in Chapter Seven of this study.

Attention will now briefly turn to the appointment of judicial officers with a view to locating the position of military judges in the constitutional scheme. The Constitution distinguishes between ‘judges’ and ‘other judicial officers’. Judges are appointed through procedures involving the Judicial Service Commission⁹⁶ and ‘[o]ther judicial officers must be appointed in terms of an Act of Parliament...’.⁹⁷ I would argue that military judges are

‘[o]ther judicial officers’ for the purposes of the Constitution because they are not ‘judges’ for the purposes of the Constitution and are appointed in terms of the Military Discipline Act, which is an Act of Parliament as contemplated in s 174(4) of the Constitution. They are not covered by

legislation regulating magistrates as ‘other judicial officers’. Simply put, they are not part of the mainstream national legislation regulating the judiciary.

This, among other things, has arguably contributed to a huge gap between judicial officers of military courts and those of other courts of similar status with regard to conditions of service and other requirements of judicial

independence.