Military Discipline Supplementary Measures Bill

DEFENCE PORTFOLIO COMMITTEE
16 MARCH 1999
MILITARY DISCIPLINE SUPPLEMENTARY MEASURES BILL

Documents distributed:
Military Discipline Supplementary Measures Bill [B31-99]

SUMMARY
The Military Discipline Supplementary Measures Bill was discussed and passed, with three key changes.

Section 8 will be amended as per a proposal from the ANC. Section 8(1)(d) will be truncated to "if it has upheld the finding or substituted a finding, vary the sentence." This eliminates the previously existing condition in Section 8(1)(d) that prevented the varied sentence from being more severe than the original sentence. In Section 8(2) the words "but subject thereto that the consequences shall not be more unfavourable to the offender" will be deleted. Section 8(4) will be deleted in its entirety, and Section 8(5) will be renamed Section 8(4).

Section 39 will be changed to read, "Any accused in a military trial is entitled to have the proceedings translated into a language preferred by the accused."

Section 44 will be amended as per a proposal from the ANC. Sections 44(2)(a) and (b) will be eliminated. A new Section 44(2) will say that any proceedings or trials pending or currently underway will be terminated and started afresh under the guidelines of this Act. A new Section 44(3) will say that all reviews and appeals either pending or currently underway will be terminated and started afresh under the guidelines of this Act.

MINUTES
The Chair opened the meeting and asked the ANC to present their proposed changes to Section 8 of the Bill.

Ms Modise (ANC) said the ANC proposes the following changes to Section 8. Section 8(1)(d) should be truncated to read "if it has upheld the finding or substituted a finding, vary the sentence." The rest of 8(1)(d), which currently reads "subject to subsection (4) and subject thereto that the varied sentence is not either in itself or in its consequences more unfavourable to the offender than the sentence of the military court," should be deleted.

Ms Modise said Section 8(2) should read "A Court of Military Appeals may correct any patent error in any finding, sentence or order as recorded in respect of any case referred to that Court," deleting the remainder of the Section, which currently reads, "but subject thereto that the consequences shall not be more unfavourable to the offender."

Ms Modise said Section 8(3) will remain as is. Section 8(4) will be deleted in its entirety. Section 8(4) currently reads, "A Court of Military Appeals may in its discretion increase any sentence of imprisonment, detention, field punishment, fine, reprimand or reduction in rank, when the review is held on the application of the offender." Section 8(5) will be renamed Section 8(4).

The Admiral said he wanted to point out that all military trials are subject to automatic review. This ANC proposal now says that the soldier has no choice of the case going on review. He asked the State Law Adviser to comment on the constitutionality of this.

The State Law Adviser said that the Bill as it currently stands is not in conflict with existing criminal procedure. If the Bill is changed, as per the ANC amendments, it will be in conflict with existing laws. The proposed changes allow for the possibility that an accused could get a stiffer sentence without even having known a review was taking place or being able to make representations. This is certainly unfair, and probably unconstitutional. For an accused’s sentence to be increased on review, without having had the chance to make representations, would be unconstitutional.

Mr Nathan, of the Centre for Conflict Resolution, pointed out Section 33(7) of the Bill, under which the accused is informed of any review and given the right to make representations. Therefore, the changes the ANC has proposed are probably not unconstitutional in the sense that the State Law Adviser says they are. They would create a different procedure from existing civil procedure, so the Committee needs to decide if it wants to do that.

Ms Botha (ANC) asked the Committee to accept the ANC’s proposed amendments. The Committee discussed these points yesterday, and ANC members have applied their minds to it, so it serves no purpose to continue discussing.

An MP (NNP) said that the NNP members had no problem with the proposed changes to the Bill, especially in the context of Section 33(7), as pointed out by Mr Nathan.

The State Law Adviser said he would present his concerns in writing at a later date.

The Chair then moved on to a discussion of Section 44.

Ms Botha said the ANC proposes eliminating Section 44(2)(a) and (b), and replacing them with a new 44(2) that says, in effect, that any proceedings or trials pending or currently underway be terminated and started afresh under the guidelines of this Act.

Ms Botha also proposed that a new Section 44(3) be added, saying that all reviews and appeals either pending or currently underway be terminated and started afresh under the guidelines of this Act.

Mr Nathan said the import of these changes is to make sure that this Act does not retroactively legitimise any summary trials pending or underway that are currently not legitimate. In other words, summary trials begun under existing rules are illegitimate; the changes to Section 44 would prevent them from being continued and considered legitimate under the new legislation. The legislation should not reclassify previously illegitimate trials as now legitimate.

The Chair then asked the Committee to enter into formal discussion. He went through the Bill clause by clause, asking the Committee to accept each clause.

It was agreed that Section 8(1)(d) would be truncated to "if it has upheld the finding or substituted a finding, vary the sentence." In Section 8(2), the phrase "but subject thereto that the consequences shall not be more unfavourable to the offender" will be deleted. Section 8(4) will be deleted, and Section 8(5) will be renamed Section 8(4).

In Section 29(3)(d)(ii), the second incidence of the words "shall be" will be deleted. The Section would then read, "in every case where a person is remanded in custody, the court shall give full reasons, which shall be recorded, for that decision to that person."

In Section 30(8), on page 32, line 3, the word "be" will be deleted. The phrase would then read "… and may at any stage of the proceedings be recalled by the presiding judge."

In Section 32(5), on page 36, line 17, the word "or" will be changed to "and." The phrase would now read, "No notice of enrolment is necessary to authorise a military court contemplated in section 6(1)(b) and (c) …"

In Section 34(7), the word "director" will be changed to "Military Judicial Review." The phrase would now read, "A convicted person may as soon as possible, but not later than 14 days after the announcement of sentence, furnish the relevant review counsel or Military Judicial Review …"

Section 39 will be changed to read, "Any accused in a military trial is entitled to have the proceedings translated into a language preferred by the accused."

In Section 40(1), the words "ensuring the" will be omitted. The section would now read, "The Adjutant General may determine longer working hours or additional working days with a view to ensuring the efficient completion of cases by military courts."

Section 42(1)(a) will be changed to read "appearing as an accused before any civil court or military court."

Section 44 will be amended as per the ANC proposal. Sections 44(2)(a) and (b) will be eliminated. A new Section 44(2) will say that any proceedings or trials pending or currently underway will be terminated and started afresh under the guidelines of this Act. A new Section 44(3) will say that all reviews and appeals either pending or currently underway will be terminated and started afresh under the guidelines of this Act.

The remaining clauses were accepted unchanged.

The Chair thanked the Committee members for their hard work. He noted that this would be the last meeting of the Committee in this Parliamentary session. The meeting was adjourned.