THE STATUS OF MILITARY COURTS: ARE THEY ORDINARY COURTS?

Get Complete Project Material File(s) Now! »

CHAPTER 3 MILITARY COURTS: THEIR JURISDICTION AND PROCEDURES Background

Looking at the historical development of the South African military justice system it is clear that the court procedures, offences and punishments have remained all but static for a number of years.1 Due to significant transformational changes in the SANDF2 and domestic legislation, especially in accordance with the Constitution, it became clear that the military justice system did not comply with certain constitutional imperatives.3
Change was long overdue when the Military Discipline Supplementary Measures Act (MDSMA)4 came into operation, creating a fundamentally different military court system.5 A clean break was made from the past in order to bring the South African military justice system in line with the Constitution.6 With the replacement of ad hoc military courts, presided over by Presidents, with permanent courts presided over by military judges, came questions on the constitutionality, impartiality and independence of the courts. However, before a determination can be made about these concerns, it is necessary to understand the composition and the procedures of the different military courts.
The new military courts7 established by the MDSMA are the Court of Military Appeal (CMA),8 the Court of a Senior Military Judge (CSMJ),9 the Court of a Military Judge (CMJ)10 and the Commanding Officer’s Disciplinary Hearing (CODH).11
Apart from establishing a new court structure in order to maintain military discipline, the object of the MDSMA is to provide for the proper administration of military justice and the maintenance of military discipline and ensuring that the accused receives a fair trial and has access to the High Court of South Africa.12 The military justice system operates in terms of a different system than that of the civilian justice system because they serve different purposes. Whereas the aim and purpose of the civilian system is to punish offenders for the crimes that they have committed, the main aim of the military justice system is to enforce discipline.
A system of military justice can be said to have two purposes:
“[T]o ensure the discipline of its members in a just manner.” In this sense military law is seen as the backbone of military discipline in the armed forces.
“[T]o provide an instrument of management.”15 It assists the military in acting against offenders, enabling prompt action. In this sense, according to Anderson, military law promotes organisational goals 16.
Although the military justice system is a separate system from the civilian environment, it should not be so different that it does not comply with acceptable standards of law as practiced in the civilian courts.17 The military justice system can, to a large extent, be seen as a merging of military traditions and the criminal procedure followed in the civilian courts.18 The procedures followed during a military trial are similar to those in civilian trials.¹⁹ However, where any other law is in conflict with the MDSMA, not including the Constitution, the MDSMA will prevail.²⁰
Military courts must act in conformity with the Constitution.²¹ Subsequently the military courts have to comply with fair trial guarantees and international standards as found in the Constitution. The military justice system was challenged inter alia on two important aspects, being (1) the constitutionality of the courts martial system²² and (2) the existence of the military prosecution counsel.²³
The Freedom of Expression Institute²⁴ and Potsane²⁵ cases compelled the courts to consider the status of the military courts within the wider judiciary. Determining the status of the military courts is important since they are authorised to sentence an accused, which may include a deprivation of freedom. The judicial authority to sentence an individual vests in the courts.²⁶ Terblanche defines “sentencing” as “the action by a formal criminal court of imposing a sentence on a convicted offender.”²⁷ Consequently, to legitimately impose a sentence on an accused, the court should be regarded as a “criminal” court which has the authority to convict an accused for an offence.²⁸
Military sentences, being unique, are discussed below according to the following framework:
The status of the military courts.
General principles regarding military punishments.
Prescribed military punishments.

Military courts
Introduction

Each military court has its own penal jurisdiction, depending on the status of the court. There are two courts of the first instance, the CSMJ and the CMJ, as well as a disciplinary forum, the CODH. Their penal jurisdiction is determined by the MDSMA.²⁹ From these courts matters are referred for appeal and review to the CMA. Therefore it is prudent to have a short overview of the various courts’ procedures before discussing their status as courts of law.³⁰

The Court of Military Appeal

The CMA is the highest military court and its judgments are binding on all lower military courts.³¹ Unlike the High Courts of South Africa the CMA does not have inherent jurisdiction and its jurisdiction is set out in the legislation.³²
 The members of the court are appointed by the Minister³³ and consist of three to five members, depending on the offence.³⁴ The Minister may establish more than one CMA³⁵ and the court can sit any place inside or outside the borders of the RSA.³⁶ This court therefore only operates on an ad hoc basis. This creates two potential constitutional concerns regarding the independence of the court:
Being appointed on an ad hoc basis may have implications regarding the requirement that judges must have security of tenure to be seen as independent.³⁷
The appointment of the judges by the Minister of Defence is possibly contrary to the procedure that should be followed in the appointment of judges in terms of the Constitution.³⁸
In the case of serious offences such as treason, murder, rape or culpable homicide committed outside the borders of the RSA, or a contravention of sections 4 or 5 of the MDC, the CMA is composed of five judges, an appropriately qualified officer of the permanent force with a law degree and a person qualified with experience as a commander in the field.³⁹ In all other instances the court consists of three members.⁴⁰ A five-member military appeal court is chaired by an incumbent or retired High Court judge and a three-member military appeal court by an incumbent or retired High Court judge or magistrate with at least ten years’ continuous experience.⁴¹
Cases heard by the CSMJ and CMJ will serve before the CMA in one of three instances:
Where the accused was sentenced to imprisonment, suspended imprisonment, cashiering, discharge with ignominy and dismissal or discharge from the SANDF.⁴²
When the Director: Military Judicial Reviews refers a case to the Court of Military Appeal.⁴³
When the offender applies for review to the CMA.⁴⁴
The CMA has full appeal and review competencies regarding any case tried by a military court.⁴⁵

The Court of a Senior Military Judge

The CSMJ is the highest military court of first instance and consists of an officer of at least the rank of Colonel,46 with a minimum of five years experience as a practicing advocate or attorney or five years experience in the administration of criminal or military justice.47
The CSMJ has the jurisdiction to try any person, irrespective of their rank, who is subject to the MDC for any offence, except murder, rape, treason or culpable homicide committed within the borders of the RSA. Upon conviction the court may impose any sentence referred to in section 12 of the MDSMA.48 Where serious offences are tried, the CSMJ will consist of three judges under the presidency of the most senior of the judges.49
The court also consists of two military assessors.50 Assessors are appointed by the Director: Military Judges or a military judge authorised by the Director.51 Where military assessors are appointed, they will start their duty after the plea of the accused.⁵² If a question of law arises, the judge will decide the matter without the assistance of the assessors,⁵³ and a finding by the court will be by a majority of the court.⁵⁴
When conducting a trial, the military judge must exercise his authority,⁵⁵ inter alia:
independently and only subject to the Constitution and the law;
by applying the Constitution and the law impartially and without fear, favour or prejudice;
the court must ensure that the accused does not suffer any disadvantage due to his position as an accused, irrespective of whether the accused is represented or not.⁵⁶
In exercising their authority all judges must perform their duties in a manner that is consistent with the policy directives issued by the Director: Military Judges, but otherwise free of any command or executive interference.⁵⁷

CONTENTS
CHAPTER 1 SENTENCING PRACTICE IN THE MILITARY COURTS
1.1 Introduction
1.2 Research problem and purpose of the study
1.3 Assumptions
1.4 Literature and methodology
1.5 The value of the study
1.6 Definition of terms
1.7 Framework and outline
Addendum A to Chapter 1
CHAPTER 2 A BRIEF HISTORICAL OVERVIEW OF MILITARY LAW
2.1 Introduction
2.2 Roman Military Law
2.3 European military law in the Middle Ages
2.4 British Military Law
2.5 South African Military Law History
Addendum A to Chapter 2
CHAPTER 3 MILITARY COURTS: THEIR JURISDICTION AND PROCEDURES
3.1 Background
3.2 Military Courts
3.3 Conclusion
CHAPTER 4 THE STATUS OF MILITARY COURTS: ARE THEY ORDINARY COURTS?
4.1 Introduction
4.2 The status of the military courts
4.3 An evaluation of a selection of fair trial rights, as applied by the court of a senior military judge and a court of a military judge
4.4 Conclusion
CHAPTER 5 PROCEDURAL ASPECTS REGARDING SENTENCING IN THE MILTIARY COURTS
5.1 Introduction
5.2 Legal framework for military sentences
5.3 Sentencing discretion
5.4 Finding an appropriate sentence
5.5 Penalty clauses
5.6 Pre-sentencing procedures
5.7 Forms of punishment
5.8 Suspension of sentences
5.9 Post-sentence procedures
Addendum A to Chapter 5
CHAPTER 6 MILITARY SENTENCES
6.1 Introduction
6.2 Punishments
6.3 Court orders
CHAPTER 7 MILITARY APPEAL AND REVIEW – A FINAL SAY ON SENTENCING
7.1 Introduction
7.2 Review and appeal: the general principles
7.3 Administrative review and appeal
7.4 Appeal and review in terms of military law
7.5 The current application of military appeal and review: Some concerns
7.6 The right to review and appeal to the High Court of South Africa
7.7 Appeal and review procedures in military law: A brief comparative study
7.8 Conclusion
CHAPTER 8 SUMMARY AND RECOMMENDATIONS
8.1 Introduction
8.2 The status of the military courts
8.3 Military sentences
8.4 Military appeal and review
BIBLIOGRAPHY
GET THE COMPLETE PROJECT
SENTENCING PRACTICE IN MILITARY COURTS