Implementation of Military Justice System: briefing

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Defence and Military Veterans

20 August 2002
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DEFENCE PORTFOLIO COMMITTEE
20 AUGUST 2002
IMPLEMENTATION OF MILITARY JUSTICE SYSTEM: BRIEFING

Chairperson: Ms T R Modise (ANC)

Documents handed out:
Presentation on Disciplinary Reviews and the Implementation of the Military Justice System
Report on the Military Legal Services: 01 April 2000 to 31 March 2001 and 01 April 2001 to 31 March 2002 (RESTRICTED)

SUMMARY
The Committee was briefed on Disciplinary Reviews in the South African National Defence Force and on the implementation of the Military Justice System. The Military Legal Services came into operation in 1999. Its mission is to ensure effective and comprehensive military legal service and support the Department of Defence (DoD) through the application of law and the principles of justice.

The MLS structure requires the presence of legal capacities which are accessible to units, bases and formations, and which are sufficient to ensure that all commanders responsible for the maintenance of discipline have access to both legal advice and the support necessary to initiate prosecutions at all times.

In response to questions, the SANDF staff explained that cases that are most common before the military courts are largely disciplinary matters such as absence without leave. In addition, the MLS is operating under financial constraints.

MINUTES
Briefing on Disciplinary Reviews
Rear Admiral C H D Smart (Military Legal Services) briefed the Committee on Disciplinary Reviews in the South African National Defence Force (SANDF) and the Implementation of the Military Justice System. He was accompanied by Vice Admiral Mr Trainer.

According to Adm Smart the most common offences in the SANDF are offences such as disobeying lawful commands, drunkenness and using threatening, insulting or insubordinating language. Such cases are tried by the Courts of Military Appeals (CMA). As currently structured, the CMA sits with three members, being a serving High Court judge, an appropriately qualified Regular Force Officer and a Regular Force General. When sitting to consider matters involving treason, murder, rape or culpable homicide outside the RSA, the CMA will sit with a total of five members, three of whom will be High Court judges.

The CMA has full powers akin to the High Court competencies on appeal and review. Over a period 1 April 2000 to 31 March 2002, the CMA dealt with 423 cases. A further 38 were dealt with between 1 April 2002 and 30 April 2002. All military court cases resulting in convictions and sentences which do not automatically go to a CMA review, are reviewed by the Review Counsel under the functional control of the Director of Military Judicial Reviews (DMJR). Over the period 1 April 2000 to 31 March 2002 the Review Counsel reviewed 1407 cases completed by military judges and also reviewed 3453 disciplinary hearing records.

The Senior Military judge and the Military judge may try any person subject to military law. However, the military judicial system is always subject to the supervision of the High Court. This is a constitutional necessity. Over the period 1 April 2001 to 31 March 2002, 1803 cases were prosecuted before the Senior Military judges and Military judges. 3490 were prosecuted before Commanding Officers' Disciplinary Hearings. As at 31 March 2002 there were 5428 outstanding charges.

Implementation of the Military Justice System
The Military Legal Services (MLS) has been created specifically for this purpose and it came into operation in 1999. Its mission is to ensure effective and comprehensive military legal service and support the Department of Defence (DoD) through the application of law and the principles of justice.

The MLS structure requires the presence of legal capacities which are accessible to units, bases and formations, and which are sufficient to ensure that all commanders responsible for the maintenance of discipline have access to both legal advice and the support necessary to initiate prosecutions at all times.

Discussion
The Chairperson commented that she hoped that by the end of the meeting, there would be a re-assurance that laws are being implemented correctly and that rights of members of the SANDF are not being violated. She also expressed her disappointment that the documents to be used in this meeting were only made available to her the previous day and that she could not adequately read such documents.

Mr Diale (ANC) suggested that a follow-up meeting be arranged once the Members of the Committee have adequately read such documents.

Mr Jankielsohn (DP) supported Mr Diale's view.

Mr Morwamoche (ANC) suggested that in such a follow-up meeting, all military presiding officers must be invited, not only a selected few.

Mr Morwamoche asked why the normal court process is not applicable to the military justice system. He also wanted to know if the labour laws are applicable to the military personnel. Mr Morwamoche commented on the fact that one of the most common offences in the SANDF is disobeying lawful commands. He asked what happened when the command was in the language that the soldier did not understand, such as Afrikaans.

Adm Smart replied that military courts have been established in accordance with the Constitution and that they have the right of existence, but that they are subject to the Constitution. In instances where Magistrates or High Courts deal with military officers, they do not apply the labour laws because the military is specifically excluded from the ambit of labour laws. Most members of the SANDF are multi-lingual and in any event the primary language is English.

Mr Morwamoche asked why the Military Courts do not use retired judges and magistrates.

Adm Smart replied that they prefer to use serving judges instead of retired ones. These judges include Judge Mailula, Judge Ngoepe and Judge Hussain.

Adv Madasa was concerned that the outstanding charges are much more than incomplete trials. He asked whether the problem is capacity or whether the problem is the law itself. He asked whether there is judicial training for military judges as most are from the previous dispensation and may not have any knowledge of constitutional law.

Adm Smart agreed that the problem is that of capacity. He added that the MLS is operating under financial constraints. The law itself is partly to blame for the problems of backlog. Adm Smart agreed that the DOD gives military officers the opportunity to study provided that what they study is relevant to the SANDF.

Adv Madasa asked if the acquittals in the military courts are technical or whether they are on merit.

Adm Smart replied that the acquittals are largely on merit for trials, but largely technical for reviews.

The Chairperson asked who decides whether a soldier should serve a sentence either in detention barracks or in civilian prisons.

Adm Smart replied that it is the judicial officer who decides whether the delinquent soldier should be detained or imprisoned. The military courts have powers to sentence a person to imprisonment as well.

Mr Schalkwyk (DP) commented about the South African soldiers in Burundi and the DRC. He asked with whose permission such soldiers are there.

Adm Smart replied that such soldiers are in Burundi and DRC by permission of Burundi and DRC governments as well as permission from the United Nations. He added, however, that SA takes full responsibility for those soldiers, and if they commit crimes there, they would be charged under SA rules, failing which, international law requires SA to hand them over to be tried by the relevant authorities.

Mr Ntuli (ANC) commented about a situation where two soldiers committed the same crime. One of the soldiers was demoted and the other was only warned and no action taken against him. He asked whether this is fair.

Adm Smart replied that in such a case one might find that the one who was demoted had a previous conviction and the other was a first offender. In such cases circumstances are different and sentences will also be different even if they committed the same crime.

Mr Goqotya (ANC) asked whether racism plays a role in sentencing. He also asked why there is a concentration of military bases in certain places while other places have dispersed military bases.

Adm Smart replied that the concentration of military bases is based on the military population of the area. If the military population were high, there would be a concentration of military bases. He added that the DoD and MLS works hard to ensure that race is not a factor in sentencing.

The Chairperson asked whether the military courts are representative. What were the ratios in terms of black/white, male/female? She said she expected the Department to bring figures in this regard during the next Committee meeting.

Bishop Mokgoba (PAC) asked what cases are common before the military courts.

Adm Smart replied that cases that are most common before the military courts are largely disciplinary matters such as absence without leave.

Mr Schalkwyk commented that the military legal officers need to be adequately trained.

Mr Trainer concluded by saying that the MLS is working hard to ensure that military officers are aware of relevant legal procedures designed to protect them. He mentioned that the MLS is losing experienced staff because they are underpaid compared to other staff in similar government Departments.

The Chairperson noted that another meeting has to be arranged before the end of November 2002.

The meeting was adjourned.

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