Military Discipline Supplementary Measures Draft Bill: briefing

Proposed amendments to the Military Discipline Supplementary Measures Bill (see Appendix)

There was a briefing on the draft version of the Military Discipline Supplementary Measures Bill and its proposed amendments. Due to urgency, the Committee agreed that it could go in its present form to the Cabinet on 17/2/99 and then to the state law advisor so it could be "polished up" legally. Then it will come back to the committee for formal approval.

A briefing on this Bill was given by Admiral Swart of the South African National Defence Force. This briefing merely formalised what was presented in the previous meeting when the Bill was not yet available.

Most of the amendments arise from the recent High Court Judgement and the following are additional points not covered previously:

Judges are to be assigned by Minister of Defence

Prosecutors (for specific period) - assigned by Minister of Defence

Staff for Defence Councils - assigned by Minister of Defence

Staff to handle Military Reviews - assigned by Minister of Defence

Director of Judges would be appointed by the Justice Department

Director of Prosecutors - appointed by the Justice Department

Director of Military Judicial Reviews (this person would interact with the Judge of the High Court on military appeals) - appointed by the Justice Department

Director of Defence Councils - appointed by the Justice Department.

The concept of Court Martial is to disappear completely.

There are different types of military courts:

1) Court on Military Appeal - This will cover serious offences, namely murder, rape, treason, culpable homicide. However this will only pertain if offences are committed outside the country. If offences are committed inside the country, they will be tried by the normal criminal court.

2) A Court consisting of one military judge and 2 assessors will hear all other cases, with the exception of the above offences.

3) A Court consisting of one military judge, and run along lines similar to a magistrate's court, will only be able to hand down sentences of maximum two years.

Regarding points 2 and 3, ordinary soldiers will have the right to have their peers (who will be carefully screened) as assessors. Where a serious sentence is imposed, the case will automatically go the Court of Military Appeal. Ordinary cases will go on appeal to the Director of Military Judicial Reviews.

The members then asked questions of clarity.

Q: Are there any instances where an accused can be taken to an outside court?

A: The whole military justice system is subject to the High Court, and as refereed to previously, serious offences will automatically be heard by a civilian court. However it must be noted that most judges prefer purely military cases to fall under the military justice system.

Q: Will the home language of a soldier be used in court?

A: Every accused has the right to an interpreter

Q: (The President's Legal Advisor, Professor Haysom) Will the accused be allowed to choose their own legal representative?

A: This is specified in the Rules and Duties section of the Bill. If a soldier wishes to have a legal representative of his own choice, he may do so, but at his own expense. In such cases a military lawyer will be assigned to assist in matters of military law or procedures.

Q: What is a definition of "member"?

A: In section 1 of the Bill it means any member of the South African National Defence Force

Q: Can someone who has been acquitted be retried?

A: No. This is fundamental to our law system.

Q: (Chairperson, Ms Modise) As there was the need to put this Bill through speedily - permission only given on 23 January 1999 - has there been excessive costs entailed to achieve this?

A: No, as a lot of work had already been done on transformation of the Military Disciplinary Code. The new Bill makes provision for eight addition posts and this will cost in the region of R2.2 million. We hope to make provision for this in existing budget.

Q: Does someone found guilty have recourse to appeal (other than Judicial Review)

A: Yes, if the person is unhappy with the trial, he/she may go to the High Court to appeal.

Q: (Ms Madikizela-Mandela, ANC) What will happen to partly-heard trials that were not completed because of the High Court ruling?

A: On account of the High Court ruling, such a trial will either be scrapped or start again from the very beginning.

Q: (Ms Madikizela-Mandela) How quickly will cases held over after the moratorium was declared, be dealt with?

A: Cases will only be able to go to trial when the Act is passed. The procedure will, undoubtedly, take some time for, as at 12 January 1999 - 2017 preliminary investigations were completed, 94% of which were of a disciplinary nature and the balance criminal.

Q: (Ms Kota, ANC) Will there be gender equality in the appointments to the Courts?

A: Yes, approximately 40% of military judges will be female.

Due to urgency, the Committee agreed that it could go in its present form to the Cabinet on 17/2/99 and then to the state law advisor so it could be "polished up" legally. Then it will come back to the committee for formal approval.

Appendix: Proposed amendments to the Military Discipline Supplementary Measures Bill

AMENDMENT TO THE MILITARY DISCIPLINE SUPPLEMENTARY MEASURES BILL

Insert new sub-section

1. "(xA) "military assessor" means a member of the South African National Defence Force, above the rank of staff-sergeant, whose name is registered on a roll of military assessors;"

Insert new section

"Function of a Military Assessor

10A. Every military assessor summoned to assist in the proceedings of a military court, shall be a member of that court."

Insert new section

"General Duties of Military Assessors

19A. Every military assessor shall in the exercise of his or her duties under this Act -

(a) be independent and subject only to the Constitution and the law;

(b) do so impartially and without fear, favour or prejudice;

(c) participate in every trial or proceeding in a manner befitting a member of a court of justice; and

(d) not express any opinion whatsoever on any matter relating to any trial or on the finding or any sentence except in the prescribed course of the proceedings or as may otherwise be required by law."

Insert new sub-section

29. "(18A) Election to be tried by military court with military assessors - Upon the completion of a preliminary investigation, the presiding military judge, commanding officer or recording officer shall -

(a) advise the accused of the accused's right to elect to

(i) be tried by a military court assisted by 2 military assessors; and

(ii) require I of the military assessors to be an other rank; and

(b) advise every accused who exercises the right referred to in paragraph (a),

(i) that the 2 military assessors will be chosen by the appropriate senior military judge from the register of military assessors maintained by the appropriate local representative of the Adjutant General; and

(ii) the said senior military judge shall take the following factors into account when so choosing military assessors -

(aa) the military, cultural and social environment of the accused;

(bb) the educational background of the accused; and

(cc) the nature and seriousness of the offence in respect of which the accused stands accused; and

(iii) each such register of military assessors consist of the names and particulars of

(aa) appropriately qualified officers; and

(bb) other ranks above the rank of staff-sergeant or its equivalent,

who can be made available for such service."

Amend section

31. (2) Every local representative of the Adjutant General shall, in consultation with the Director Military Judges or the military judges in question, as the case may be, plan and schedule the availability of military judges and military assessors within his or her area or field of responsibility, so as to promote the speedy effective dispensing of justice and certainty with regard to access to military courts.

Insert new paragraph

31. (4) "(d) the military assessors."

Amend section

31. (5) "Particulars" for the purposes of this section include the force

number, rank, full names, arm of service, division, corps and unit of the indicated accused, presiding military judge, military assessors, and other officers of the court.

Insert new sub-sections:

32. "(1A) Whenever a military judge is assisted at a trial by military assessors, such assessors shall only commence their functions as military assessors after the accused's plea has been recorded and after they have taken the oaths or made the affirmations required by sub-section (2A)

(2A) Every military assessor shall in open court and after the accused has pleaded, take an oath or make an affirmation before the presiding military judge in the following form:

"I (full name) do hereby swear/solemnly affirm that I will perform the functions of a military assessor to the best of my ability and administer justice to all alike without fear, favour or prejudice and that I will make a considered finding according to the evidence tendered in the case. (So help me God/I solemnly affirm)"

(3A) Every military assessor participates in the proceedings of the military court which he or she is assisting on the following bases:

(a) Any matter of law arising for decision at the proceedings, and any question during such proceedings as to whether a matter for decision is a matter of fact or a matter of law, shall be decided by the presiding military judge.

(b) The presiding military judge shall adjourn the proceedings regarding any matter or question referred to in paragraph (a) and shall sit alone for the hearing of such proceedings and the decision of such matter or question.

(c) Upon all matters of fact, the findings of the majority of the members of the military court shall be the findings of that military court.

(4A) Whenever a military judge is assisted by assessors at a trial, the military judge shall, after the conclusion of the arguments by the prosecutor and the accused, but before judgement is passed, explain to the assessors any specific rule of evidence or any other matter that is relevant in respect of the evidence tendered to the court.

(5A) The record of any proceedings where a military court has been assisted by military assessors -

(a) regarding the evidence adduced at the proceedings, shall include any explanation or instruction given to the assessors by the presiding military judge in respect of any applicable rule of evidence or any other matter; and

(b) regarding the judgement, shall indicate clearly whether the findings in respect of each material aspect of the evidence -

(i) are the unanimous findings of the members of the court; and

(ii) in the event of any member of the court making a finding different to that of the other members, set out the reasons for such different finding.

(6A) (a) A military judge who is assisted by a military assessor may, mero motu or on application by the prosecutor or the accused, order the recusal of the assessor from the proceedings if the military judge is satisfied that -

(i) the assessor has a personal interest in the proceedings;

(ii) there are reasonable grounds for believing that there is

(aa) likely to be a conflict of interest as a result of the assessor's participation in the proceedings; or

(bb) a likelihood of bias on the part of the assessor; or

(iii) the military assessor is disqualified from serving as such because he or she (aa) investigated the charge or any of the charges to be tried;

(bb) is the commanding officer of the accused, or is in the chain of command between the accused and his or her commanding officer;

(cc) is a prosecutor or defending officer or a witness; or

(dd) has personal knowledge of any material fact or evidence relating to the charge or any of the charges.

(b) A military assessor may recuse himself or herself from the proceedings for any of the reasons contemplated in paragraph (a).

(c) The prosecutor and the accused shall be given an opportunity to apply for and to address arguments to the presiding military judge on the desirability of the recusal of a military assessor.

(d) The arguments shall be heard and any decision taken in terms of paragraph (a) shall be made in the absence of the assessor.

(e) The military judge shall give reasons for any order made under paragraph (a).

(7A) If an assessor dies; or becomes unable to act; or is for any reason absent; or has been ordered to recuse himself or herself, or has recused himself or herself, at any stage before the completion of the proceedings, those proceedings shall continue before the remaining member or members of the military court:

Provided that if the finding or decision of the presiding military judge differs from that of the remaining assessor, the finding of the military judge shall be the finding of the court."