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DEFENCE PORTFOLIO COMMITTEE
15 MARCH 1999
MILITARY DISCIPLINE SUPPLEMENTARY MEASURES BILL: DISCUSSION
Military Discipline Supplementary Measures Bill [B31-99]
The Committee discussed the Military Discipline Supplementary Measures Bill in general, and then reviewed the Bill clause-by-clause. MPs proposed changes to Section 39, to allow for judicial proceedings to be translated into a language that the accused "prefers," as opposed to one that the accused "understands." There was also discussion around Section 8(4), specifically regarding the ability of the Court of Military Appeals to increase a sentence on appeal. It was agreed that Section 8(4) would be discussed further, and the Bill would be finalised, at the next Committee meeting (scheduled for 16 March at 10h00).
The Chair, Mr Groenewald (FF), opened the meeting. He said that he is concerned that there are no NCOP members present, as this Bill will go to the NCOP after being tabled in Parliament on 18 March. He proposed that the meeting be paused for 15 to 20 minutes to allow the clerk to find some of the NCOP Committee members.
As no NCOP members had arrived 20 minutes later, the Chair continued the meeting. There was still not a quorum of MPs, so the meeting could only take the form of informal discussion for now. The Chair introduced Admiral Smart.
The Admiral gave a brief background to the Bill. On 18 December the Cape High Court passed a judgement on the constitutionality of military judicial structures. The applicants in that case had questioned the constitutionality of courts-martial as such, and the Cape High Court found that there were problems with the existing structure. This Bill was designed to address the concerns of the Court regarding military judicial procedures.
An MP asked about the difference between review and appeal.
The Admiral replied that whenever a prisoner is tried he is entitled to an appeal. Where a sentence has been imposed that includes a termination of service, or any more severe punishment, the case is automatically referred to the Military Council of Review. The Council of Review can alter the sentence to a less severe one if the sentence is deemed inappropriate.
An MP said the Bill appears to preclude a sentence from being increased upon review.
The Admiral replied that if the sentence is less severe than termination of service, it can be adjusted to a more severe one on review.
A State Law Advisor said the whole concept of the law in South Africa is that where a sentence goes on review it can be revised down, but on appeal a sentence can be made more severe. That is the basic principle of the South African criminal code, and the military code in this Bill was designed to emulate that.
An MP said that this possibility is very intimidating to junior officers or military servicemen, because if they appeal their case they can receive a heavier sentence. So they are encouraged to quiet down and accept their sentence.
The Chair said that the MP has made a valid point, but that is the way the system works in the South African criminal code.
The MP said the Committee’s challenge is to make this a better system, not simply to include problematic precedents simply because they are already part of the criminal code.
The Chair said the Committee was getting off track – he would prefer if they could do a general overview first and then go through the Bill clause by clause. He noted that this is still an informal discussion as there is not yet a quorum.
An MP asked about Section 1(ix) which defines "Court of Military Appeals" to include the Court of Military Appeals, the Court of a Senior Military Judge, the Court of a Military Judge, and the commanding officer’s disciplinary hearing. Is it appropriate to include disciplinary hearings in this definition?
The State Legal Adviser replied that from a drafting perspective, it is easier to include disciplinary hearings in the definition of a military court; otherwise ‘disciplinary hearing’ needs to be repeated every time ‘military court’ is mentioned. In substance, it is correct that a ‘disciplinary hearing’ is not a ‘court,’ but this is really a semantic issue. It was done to make the Bill easier to draft and to understand.
On Section 7, the Chair asked if the Court of Military Appeals would be a full-time court, and where its seat would be.
The Admiral said that in practice it would be seated in Pretoria. The Bill allows for it to be a full-time court. It could be possible to establish appeals courts to sit in Cape Town, with the co-operation of the Judge President here. So there is room to decentralise this to a certain extent.
An MP asked about Section 7(1)(a)(ii), which sets a requirement of ten years of experience for an officer to sit on the Court of Military Appeals – this seems to exclude previously disadvantaged people.
The Admiral replied that, in all honesty, it would exclude people who would not previously have had the opportunity to serve for ten years. Hopefully the military will grow into the system and soon be able to appoint members of previously disadvantaged groups.
The Chair pointed out that Section 8(4) addresses what Mr Woodington was discussing earlier. The Chair suggested that the Committee return to this point during the formal discussion, once a quorum is present, to decide if the section should be amended.
An MP asked about Section 29(7), which states: "If the commanding officer considers the proceedings to be inappropriate for any reason, including the possible existence of a valid defence, the commanding officer shall strike out the finding, and shall refer the case to be tried afresh by another military court with jurisdiction in the matter." The MP asked why a commanding officer would make such a decision – surely the commanding officer would consider in advance whether the proceedings were appropriate or inappropriate.
The Admiral answered that this clause is based on the possibility of a valid defence that comes up after the commanding officer has made a decision. This is necessary because an accused is not required to give an explanation, as part of a protection against self-incrimination. So in practice a commanding officer will make a decision of guilt or innocence, but he then has the flexibility to eliminate that finding should circumstances warrant. For example, a private is charged with being Absent Without Leave for one day. He goes before his commanding officer, who asks him whether he was Absent Without Leave, and the private answers that he was. The commanding officer finds him guilty of being Absent Without Leave. The commanding officer then asks the private why he was Absent Without Leave, and the private answers that he was in a car accident and was in the hospital for the day. At this point the commanding officer would decide to eliminate his finding of guilt.
An MP asked about Section 39, which reads: "If any accused in a military trial does not understand the official language in which the proceedings before the court are being conducted, that accused is entitled to have the proceedings interpreted into a language which he or she does understand." The MP asked if the wording here is appropriate – the accused may understand English but may prefer to communicate in another language.
The Chair said the Section could be reworded to read that the proceedings will be translated into a language which the accused "prefers," as long as it is an official language.
The Admiral said he is not sure they should restrict it to official languages – there are South Africans whose native language is Portuguese, or San, or something else. So the Bill should provide that the proceedings be translated into a language that the accused "largely understands."
The Chair suggested instead that it be amended to read that the proceedings be translated into a language the accused "prefers," as opposed to "largely understands." Especially in a legal context, it can be confusing to have a trial conducted in a language one is not totally comfortable with, even if it could be said that one "largely understands" that language.
An MP suggested that the qualifying text ("If any accused in a military trial does not understand the official language in which the proceedings before the court are being conducted") be removed from the start of the clause, and just have the clause read "Any accused is entitled to have the proceedings interpreted into a language that he or she prefers."
The Admiral replied that this creates some logistical problems – what if the accused wants the proceedings translated into a language like Russian, for which translators are not readily available? That would delay the trial.
The Chair said that should not be allowed to be a constraint on the guarantee that the accused have the proceedings translated into a language he or she prefers.
The Chair asked if there were comments on any of the remaining clauses in the Bill. There were none. The Chair suggested that the meeting break for 10 or 15 minutes, to allow the clerk to try to round up enough MPs for a quorum.
The Chair reconvened the meeting. A quorum was still not present, so the Committee could not make any formal decisions.
An MP asked that the Committee continue their informal discussion of Section 8(4). The Court of Military Appeals should be the supreme court, and the MP did not want to eliminate its ability to increase sentences on review. At the same time, the wording as it stands discourages offenders from applying for appeal, as the Bill is written to sound like they would be subjecting themselves to the possibility of an increased sentence.
The Chair asked that MPs apply their minds to the issues raised regarding Section 8(4), and be prepared to discuss those issues when the Committee reconvenes on 16 March, at 10h00. He asked political parties to see that their members attend the next meeting so that the Bill can be finalised. The Chair said that given the limitations on time, public hearings should not be held on this Bill. There were no objections.
The meeting was adjourned.
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