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[2021] ZAGPPHC 252
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Fancgoqa v Minister of Defence and Others (36254/2019) [2021] ZAGPPHC 252 (13 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISON, PRETORIA)
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED: Yes
13/4/2021
Case No.:
36254/2019
In the matter
between:
ALICIA
NTOMBIZODWA FONGOQA
Applicant
and
MINISTER
OF DEFENCE
First
Respondent
CHIEF OF
THE SOUTH AFRICAN
NATIONAL
DEFENCE FORCE
Second Respondent
CHIEF OF
MILITARY LEGAL SERVICES
Third Respondent
PRESIDING
OFFICER MILITARY COURT
Lt. Col
MOTLOGELWA
Fourth
Respondent
PROSECUTING
COUNSEL: Lt. Col KGAPHOLA
Fifth Respondent
JUDGMENT
SARDIWALLA
J:
[1]
The
applicants seek to review and set aside the decision made by the
fourth respondent concluding that a proper preliminary investigation
was conducted in terms of the
section 30
of the
Military Discipline
Supplementary Measures Act No.16 of 1999
before the applicant’s
trial commenced before the Military. The applicant seeks the
following order:
1.1
Reviewing and correcting or setting
aside the decision of the fourth respondent that a proper preliminary
investigation was conducted
in terms of provision 30 of the
Military
Discipline Supplementary Measures Act before
the trial of the
applicant commenced at the Military Court;
1.2
That
the trial proceedings held under CAS Number 03/07/2016 before the
Military Court be declared ultra vires, bull and void
ab
initio
;
1.3
Costs
on the scale as between attorney and client scale against any
respondents who oppose;
1.4
And
further and alternative relief.
Background
[2]
The applicant was charged with two
counts for an alleged incident that occurred on 2 July 2016 namely;
2.1
The
first charge is for intimidation read with
section 1
,
48
,
50
,
51
,
45
,
88
and
12
of the MDSMA; and
2.2
The
second charge is for the contravention of
section 17
using
threatening insubordinate or insulting language read with
section 1
,
48
,
50
,
51
,
56
,
88
and
12
of the MDSMA.
[3]
On 12 June 2018 Senior Military Court
Judge Lt. Col Coetzee directed that a preliminary investigation be
completed and remanded
the applicant’s trial to 20 June 2018.
In the same proceedings the Judge appointed Major Sithembele Gcule as
a recording
officer in terms of MDSMA.
[4]
On 20 June 2018 the applicant contacted
the fifth respondent to enquire about the preliminary hearing and was
informed that it could
not take place as scheduled as the complainant
was on leave. As a result, no preliminary was held and the matter was
not remanded
to another date.
[5]
On 29 October 2018 the applicant was
telephonically summoned to the office of the fifth respondent wherein
the applicant was advised
that the recording officer Major Gcule was
on sick leave and would be unable to attend the preliminary
investigation and requested
the applicant to sign documentation in
preparation for court. The applicant signed the documents and Major
Gcule signed the documents
on 4 November 2018.
[6]
On 6 December 2018 the applicant
consulted with her defence counsel Major Mokitli and informed him
that no preliminary investigation
was held and she was advised that
he would raise this in argument at the trial.
[7]
On 7 December 2018 the applicant
appeared before the Military court once again represented by Major
Mokitli wherein the fourth respondent
was the presiding officer. The
applicant terminated the mandate of Major Mokitli as she avers that
he ignored her instruction that
a preliminary investigation was not
held as directed.
[8]
The Military Court postponed the trial
for 17 January 2019 for the applicant to obtain legal representation.
[9]
On 14 January 2019 the applicant
appointed K.P Seabi and Associates as her attorneys of record was
represented by Mrs Ramakgaphola.
[10]
At the hearing of the 17 January 2019
the applicant argued that no proper preliminary investigation was
held as directed previously
by the Court, however the fourth
respondent found that,
“
..at face value a proper preliminary
investigation was conducted on the documents that I have just
mentioned and the signature of
the accused and the recording officer.
Therefore, the court take it that there was preliminary investigation
conducted on the day
in question.”
[11] The fourth respondent
in his judgment concluded that Major Mokitli’s mandate
was
terminated for other reasons and not the issue of the preliminary
investigation.
[12] The conduct of the respondents at
the hearing of 19 January 2019 initiated the current application
to
review and set aside the decision of the fourth respondent.
The
submissions
[13] The applicant submits that no
preliminary investigation took place in terms of
section 30
of the
MDSMA on 29 October 2018 and that the documents that were filed were
fraudulent as they present that a preliminary investigation
took
place in the presence of all the parties. Further that due to the
irregularity her right to a fair trial was infringed upon
and the
trial proceedings should be declared null and void
ab initio
.
[14] The applicant also relies on the
affidavit by Major Gcule who testified that he was approached
on 4
November 2018 in his office by Lt. Col Kgapula requested him to sign
preliminary documents that were already pre-prepared
for him to sign.
He further indicated that he signed the documents on the basis that
an agreement was reached between the complainant
and the accused
wherein the complainant the matter was to be withdrawn and confirms
that he had sight of the statement of withdrawal
and is therefore
surprised that the matter was not withdrawn.
[15] The respondents contend that this
court does not have jurisdiction to adjudicate the matter
as the
proceedings before the Military Court have not been finalised i.e
sentencing. The respondents referred to several cases
that it is
trite law that an incorrect preliminary investigation procedure
constituted a pre-trial irregularity and that such pre-trial
irregularity does not vitiate the subsequent trial where it does not
result in actual or substantial prejudice to an accused. It
therefore
submits that the applicant’s right to cross-examine witnesses,
be legally represented and place her version before
the Court at the
trial was not prejudiced. Lastly that
section 30(8)
and
30
(10) of the
MDSMA affords the prosecuting authority a discretion whether to call
witnesses to testify viva voce in order to record
their evidence or
read over to witness statements of such witnesses and therefore the
applicant’s inability to cross-examine
witnesses results in a
gross irregularity is without merit.
Grounds of Review
[16]
The Applicant’s grounds of review:
6.1
The alleged preliminary investigation commenced without her legal
representative; and
6.2
The applicant was not afforded an opportunity to cross-examine
witnesses.
The
Jurisdictional Challenge
[17] In
Kwemaya v National
Commissioner, Correctional Services and another
[1]
,
Olsen J referred to the case
Makhanya v University of Zululand
2010 (1) SA 62
(SCA)
at paragraphs 71 and 72, where it
was held that the proper approach for a court confronted with a
claim, and an objection that
the court lacks jurisdiction to
entertain the claim, is to accept that the claim before the court is
“a matter of fact”.
If a claimant says that the claim
arises from the infringement of a right to enforce a contract, then
the court must deal with
it accordingly. When the claimant says
the claim is to enforce a right created by the Labour Relations Act
then that is the
one before the court, as a matter of fact.
When the claim is said to be for the enforcement of a right derived
from the Constitution
then that as a fact is the claim. The
question as to whether the claim is bad is beside the point.
The court went on
to say that a claim which exists as a fact is not
capable of being converted into a claim of a different kind by the
mere use of
language; and a court cannot under the guise of
“characterising” a claim purport to convert the claim
placed before
the court into a claim of another kind.
[18] He went on to say that approaching the matter
in the light of what was said in
Makhanya supra
,
would mean that one should reach an understanding about what a claim
is by having regard only to the label attached to it by the
claimant;
and not by looking to the elements of the cause of action pleaded by
the claimant in order correctly to label the claim
where the claimant
might have done so incorrectly. His view was that
Gcaba v
Minister for Safety and Security
[2]
illustrates that
Makhanya
should not be read
that way and he went on to state the following:
“[
29] Gcaba concerned a policeman who had
applied for a position unsuccessfully. He approached the High
Court
with an application to review the decision not to appoint him.
The High Court decided that it lacked jurisdiction to entertain
the
application because it was an employment matter. Before the
Constitutional Court the applicant contended that his claim
was from
inception one which fell under PAJA, as he sought to vindicate his
right to just administrative action. The respondents
contended
that the applicant’s claim was a labour matter which had to be
adjudicated through the “finely tuned mechanisms
provided for
in the LRA”. The court in Gcaba held that before
addressing the issue of jurisdiction, and indeed in order
to address
that question, the court had to decide whether the conduct complained
of by Mr Gcaba was administrative action.
(See paragraph 63 of
the judgment.) Having found that it was not, the court held (in
paragraph 75 of the judgment) that where
the court’s
jurisdiction is challenged in limine at the outset, the pleadings
and, in motion proceedings, also the contents
of the supporting
affidavits, must be interpreted “to establish what the legal
basis of the applicant’s claim is”.
If, “properly
interpreted”, that enquiry establishes that the applicant is
asserting a claim within the exclusive jurisdiction
of the Labour
Court, the High Court would lack jurisdiction. On that basis the
decision of the High Court in Gcaba was found to
have been correct.
[30] It seems to me that I must follow the
same approach as was followed in Gcaba. There (in paragraph
64
of the judgment) it was held that where a grievance is raised by an
employee relating to the conduct of the State as employer,
and there
are “few or no direct implications or consequences for other
citizens”, then the conduct complained of is
not administrative
action. Here, perhaps even more than in the case of Mr Gcaba,
the conduct of the department in which the
applicant was employed
carried no implications and generated no consequences for anyone
outside the particular relationship between
the applicant (as
employee) and her employer, the State. The applicant wrongly
pleads in her papers that what happened is
governed by PAJA.
She erroneously attaches the label “administrative action”
to the conduct she complains of.
For that reason, following
Gcaba, the conclusion must be that this court lacks jurisdiction if
the characterisation of the conduct
of the State as administrative
action is the only basis upon which the applicant asks the court to
decide her claim
[3]
.”
[19] It is therefore important to consider
the applicants’ interest in this matter. In
Giant
Concerts CC v Rinaldo Investments (Pty) Limited
[4]
Cameron J dealt with the requirements to establish own interest
standing in a legality challenge. The following appears in
paragraph 35 of the judgment.
“
Hence, where a
litigant acts solely in his or her own interest, there is no broad or
unqualified capacity to litigate against illegalities.
Something more must be shown.”
[20] The requirement to be established
is whether the illegality directly affects his or her rights
or
interests, or potential rights or interests. The applicants’
standing is that she was not afforded the right to be legally
represented and cross-examine witnesses at the preliminary
investigation by virtue of the fact that she was merely called in to
sign the documents and therefore no preliminary hearing was in fact
concluded. The denial of her right to legal representation
at the
alleged preliminary investigation hearing, she claims extinguished
her rights and violated her right to a fair trial. The
current rights
applicant seeks to enforce are directly related to the preliminary
hearing and the trial at the Military Court.
Ultimately the applicant
has come before this court to vindicate her constitutional rights
which are protected by the provisions
of section 38 (a) of the
Constitution, whose task it is to protect those rights.
[21] In the circumstances I conclude
that this court has jurisdiction to determine the present
application.
The South African Military Court system
[22] The Constitution of the
Republic of South Africa makes
provision for a defence force that is structured and
managed as a disciplined military force.
[5]
Even prior to the Constitution, to
ensure discipline in the military,
the
South African Military Law had been developed and the military
court system has been recognised by the Constitutional
Court.
[6]
This military criminal justice system has been created with a
separate system of courts hearing matters pertaining to the
usual,
as well as other special statutory offences;
and with a similar, but
separate,
investigative procedure, prosecuting authority, and court
procedure.
[7]
[23] This system of
criminal justice is based mainly on
the Military Discipline Supplementary Measures
Act 16 of 1999 (MDSMA) as
read
with its Rules of Procedure
[8]
and the Military Discipline
Code (MDC)
[9]
,
and is aimed at the
maintenance of discipline essential for a fighting
force that is
necessary in peacetime as it is in wartime.
[10]
[24] The MDSMA defines a “military
court” as one of the following: a Court of Military
Appeals (CMA), the Court of a Senior
Military Judge, the Court of a Military Judge and
the Commanding Officer’s
Disciplinary Hearing.
[11]
The finding of a military court is final and subject only to the
appeal and review procedures provided for in the legislation
to the
CMA.
[12]
[25] Internal military review and appeal
procedures Court of Military Appeal (CMA). The CMA exercises full
appeal and review competencies in respect of the proceedings of any
case or hearing conducted before a military court. This
court may, after due consideration of
the record of the proceedings
and
representations submitted to it or argument heard by it (a) uphold
the finding or the finding and the sentence; (b) refuse
to uphold the
finding and set the sentence aside; (c) substitute for the
finding any finding which
the evidence
on record supports beyond a reasonable doubt
and which could have been brought
on the charge as a competent
alternative verdict by the military court, or any other law; or (d)
if it has upheld the finding,
or substituted a finding, vary the
sentence.
[13]
[26] This competency of the CMA is in line
with section 35(3)(o) of the Constitution which states that
every
accused person has the right to appeal to, or to be reviewed by a
higher court. There is a distinct difference between an
appeal and a
review as they serve different purposes. A review is
generally about an irregularity
and
based on one of four grounds:
absence of jurisdiction of the court; interest
in the cause,
bias, malice or corruption on the part of the presiding
officer; gross irregularity
in the
proceedings; or an admission of inadmissible
or incompetent evidence
or the
rejection of admissible or competent
evidence.
[14]
An appeal is generally applied for where the person is dissatisfied
with his/her conviction and/or sentence.
[27] Chapter 6 of the Military Discipline
Measures Act (MDSMA), dealing with post-trial procedures, prima
facie
makes provision for both review and appeal procedures with the
heading “Appeal and Review”. In terms of section
33(7), when a military court has convicted and sentenced an accused,
it must inform him of (a) the review authority to whom the
record of
proceedings will be submitted for review and of the accused’s
right to submit written representations to that authority
within the
time limits prescribed in this Act or in a rule of the Code; and (b)
his or her right to approach a Court of Military
Appeals for relief.
[28] Every person who is convicted and
sentenced by a military court has the right to the automatic, speedy
and competent review of the proceedings of his or her trial to ensure
that any proceedings, finding, sentence or order is either
valid,
regular, fair and appropriate; or remedied. An offender may also
apply for the review of the proceedings of his or her case
by a
CMA.
[15]
A
convicted person may furnish the reviewing body with written
representations, which together with the
record of proceedings, must be considered by
such review authority.
[16]
[29] In the case of
Mbambo v Minister of
Defence
[17]
the court found that the CMA has review powers that are wider
than that of the High Court when it sits on appeal. The CMA does not
only reconsider cases before it on the record of the proceedings, but
has a wider power to allow further evidence. The court
found
that the offender has a right, in terms of the Constitution, to the
meaningful reconsideration of his conviction and his
sentence by a
higher court than the one that convicted and sentenced him in the
first place. This was provided for in the
procedures contained
in the Act.
[18]
The conclusion was thus that the MDSMA is constitutional in that it
allows for both appeal and review procedures
as required by the
Constitution.
[30] It should be noted from the outset that
the court in
Mbambo
refrained from expressing any view
as to whether the High Court has the jurisdiction to review the
proceedings of the court of
first instance or the CMA.
[19]
It is submitted that there should be a possibility
that the High Court may
be
approached with a review application.
[20]
This submission seems to be supported by the
S v Tsotsi
[21]
case where the High Court granted bail to a person pending his review
application to the High Court of the decision of the military
court.
[22]
The court noted that the High Court exercised a supervisory
jurisdiction over the military courts similar to the supervisory
power it exercised over the magistrates’ courts.
[23]
The
Audi Alteram Partem
Rule
[31] It is prevalent in a number of court
decisions in South Africa, such as
South African Football
Union v President of South Africa (SARFU)
[24]
and the
South African Roads Board v Johannesburg City
Council
[25]
the view was expressed that the
audi alteram partem
rule
should not necessarily depend on whether proceedings were
administrative, quasi-judicial or judicial.
[32] In
Du Preez and another v Truth and
Reconciliation Commission
[26]
(
Du Preez
)
, the court held that the
Commission was under a duty to act fairly towards those implicated by
the information received during
the course of its investigations or
hearings. It further indicated that it was instructive that the
Committee’s findings
in this regard and its report to the
Commission could accuse or condemn persons in the position of the
appellants. The court also
noted that, subject to the granting of
amnesty, the ultimate result could be criminal or civil proceedings
against such persons.
The court noted that the whole process
was potentially prejudicial to them and their rights of personality.
They had to be treated
fairly. Procedural fairness meant they had to
be informed of the substance of the allegations against them, with
sufficient detail
to know what the case was all about.
[33] In the case of
SARFU
,
supra
,
the question was whether the President, in appointing the Commission,
acted in accordance with the principles and procedures which
in that
particular situation or set of circumstances were right and just and
fair. Accordingly, the principle of natural justice
should have been
enforced by the court as a matter of policy irrespective of the
merits of the case. The Commission emphasized
that the fact that a
Commission is an advisory body does not, detract from the fact that
it is likely in the ordinary course of
events, to make findings which
would cause prejudice to
SARFU
, and its officials.
[34] A basic rule of fairness
is that a person who will be adversely affected by an act or a
decision of the
administration or authority shall be granted a
hearing before he suffers detriment
[27]
.
Peach sums up the
audi
rule as follows:
[28]
“
The
audi alteram partem rule implies that a person must be given the
opportunity to argue his case. This applies not only to formal
administrative enquiries or hearings, but also to any prior
proceedings that could lead to an infringement of existing rights,
privileges and freedoms, and implies that potentially prejudicial
facts and considerations must be communicated to the person who
may
be affected by the administrative decision, to enable him to rebut
the allegations. This condition will be satisfied if the
material
content of the prejudicial facts, information or considerations has
been revealed to the interested party.
”
[35] The requirement that in certain circumstances
decision-makers must act in accordance with the principles
of natural
justice or procedural fairness has ancient origins. In general
terms, the principles of natural justice consist
of two component
parts,
to wit
; the first is the hearing rule, which requires
decision-makers to hear a person before adverse decisions against
them are taken.
The second and equally important component is the
principle which provides for the disqualification of a decision-maker
where circumstances
give rise to a reasonable apprehension that he or
she may not bring an impartial mind to the determination of the
question before
them. The latter aspect is not relevant in this
matter.
[36] The principles of natural justice are founded
upon fundamental ideas of fairness and the inter-related
concept of
good administration. Natural justice contributes to the
accuracy of the decision on the substance of the case.
The
rules of natural justice help to ensure objectivity and impartiality,
and facilitate the treatment of like cases alike.
Natural
justice broadly defined can also be seen as protecting human dignity
by ensuring that the affected individual is made aware
of the basis
upon which he or she is being treated unfavourably, and by enabling
the individual to participate in the decision-making
process.
The application of the principle of natural justice has proved
problematic.
[37] The challenge is always how to strike the
right balance between public and private interest. Whilst
this
court, in the circumstances of this matter seems compelled to respond
to the vulnerability of the applicant facing the pervasive
power of
the Military Court, I am at the same time aware that the court has to
avoid a situation where the unconstrained expansion
of the duty to
act fairly threatens to paralyse its effective administration.
[38] In my respectful view, however the public
interest necessarily comprehends an element of justice to the
individual. The competing values of fairness and individual justice
on the one hand and administrative efficiency on the other
hand,
constitute the public and the private aspects of public interest. It
seems plain to me that the principles of natural justice
are intended
to promote individual trust and confidence in the administration.
They encourage certainty, predictability and
reliability in
government interactions with members of the public, irrespective of
their stations in life and this is a fundamental
aspect of the rule
of law.
[39] In a delicate balancing act, it is the duty
of the courts to uphold and vindicate the constitutional rights
of
the applicant to her good name but this cannot have the effect of
precluding the Military Court or the CMA from discharging
duties and
responsibilities exclusively assigned to it by the Constitution.
However, such an inquiry may only proceed in a manner
which strictly
recognises the right of the applicant to have the inquiry conducted
in accordance with natural justice and fair
procedures.
Analysis and findings
[40] The respondents have correctly averred that
the material question to be addressed is whether the pre-trial
irregularity caused the accused to suffer prejudice to the extent
that he or she will not have a fair trial. It is trite that the
internal military review and appeal procedures are only applicable
once an accused has been convicted and sentenced as indicated
above.
It is on this basis that the applicant has approached this Court for
an appropriate remedy as indicated in the preceding
cases that this
Court in terms of its supervisory capacity has the authority to
oversee the matters of the Military Court and therefore
has
jurisdiction to intervene.
[41] It is common cause between the parties
that the applicant has not been sentenced as only the trial
has
proceedings have been completed and therefore this prevents the
applicant from bringing any review for gross irregularity in
the
Military Court until sentence is handed down. The applicant is
challenging the procedural fairness of the proceedings of the
preliminary investigation in that she was not afforded an opportunity
to state her case which has impacted on the evidence before
the
Military Court which she alleges has prejudiced her.
[42] It is also common cause that the
presiding officer Lt. Col Coetzee directed that preliminary
investigations
in terms of section 29(3)(b) of the MDSMA be held. In
such hearing it is prudent in a fact finding investigation to inform
and
interact with a person whose rights may be adversely affected.
[43] In the present matter the applicant
alleges that when she enquired about her preliminary hearing she
was
informed that her hearing could not proceed as the recording officer
Major Gcule was on sick leave and as such was summoned
to sign
documents on 29 October 2018 by Lt. Col Kgaphola in his office.
However, Lt. Col Kgaphola’s version differs from
the
applicant’s but confirm’s the applicant’s version
that there was a telephonic conversation and meeting between
them on
29 October 2018. What remains then to be determined is if this Court
accepts that such interaction on face value can be
considered a
preliminary hearing as envisaged in section 29(3)(b) of the MDSMA. A
preliminary hearing purpose is to establish whether
there is
sufficient probable for the trial to continue.
[44] The respondents in their answering
affidavit submit that this process was done in accordance with
section 3(10) of the MDSMA wherein the witness statements are read to
the accused and therefore even though the applicant was unable
to
cross-examine them she had the opportunity at the trial. They contend
that the full record was not provided to the trial court
as the
applicant pleaded not guilty and therefore it was not necessary. The
fifth respondent alleges that he completed this process
in the
presence of the applicant (the accused in the trial) together with
Major Gcule in his office on 29 October 2018. Major Gcule
denies this
and avers that the documents were pre-prepared for him to sign and
that he signed it in his office on 4 November 2018.
Upon inspection
of the preliminary documents before this Court the documents are
dated 29 October 2018. The respondents allege
that Major Gcule and
the applicant are friends and therefore due to their close
relationship he is assisting the applicant. Whilst
this Court
recognises the respondent’s averment there is insufficient
evidence before this Court to prove that allegation
by the
respondents. It is significant to note that if Major Gcule’s
version were not true, no doubt the Military Court would
have
instituted disciplinary proceedings against him for perjury. The
respondents have not indicated that this is the case. Major
Gcule’s
testimony is more probable more so because as a Major in the Military
I am sure he is well aware of the implications
of lying under oath
and the consequences it may have legally as well as the bearing it
may have on his employment. I am satisfied
that Major Gcule
reconciled these factors before agreeing to testify to this on
affidavit and therefore this Court accepts his
version.
[45] The respondents also aver that the
preliminary investigation was in compliance with section 3(10)
of the
MDSMA even though this provision clearly states that the inability of
the accused to exercise its rights in terms of section
30(8) must not
be construed in any proceedings that will cause prejudice to the
accused. More over the respondent’s allegation
that they were
in compliance with section 30(8) and 30(10) of the MDSMA by reason
that these sections afford the prosecution with
a discretion either
to call a witness
vive voce
or read over the witness
statements to record their evidence and the latter does not afford
the applicant to cross-examine at the
preliminary stage is
incorrect. Section 30(4) clearly affords the accused this right
and sets out the procedure that must
be followed when conducting a
preliminary hearing and specifically section 30(4) (e) provides the
accused with a right to cross-examine
or re-examine any witness
called by the state, give evidence or remain silence. Section 30(5)
states that the evidence of every
witness must be
vive voce
subject to a situation in terms of section 30(10) and (11) where in
the event that a witness is unavailable that the statements
of the
witnesses must be read over to the accused. The respondent’s
whilst alleging compliance with section 30(10) Lt. Col
Kgaphola in
his answering affidavit did not set out what witnesses were called,
if any, and whether he read those statements to
the applicant when he
alleges that the preliminary documents were signed in his office on
29 October 2018 which is a requirement
in terms of section 30(10).
Lt. Col Kgaphola makes no mention in his affidavit of a statement of
withdrawal by the complainant.
In fact, his affidavit confirms the
Major Gcule’s version that the documents were pre-prepared as
he states at paragraph
15.2 of his answering affidavit that;
“
I
interpose to mention that it is common practice for prosecution
counsels to either fill in the detail of the recording officer
and
the accused prior to the commencement of the PI.”
[46] I am satisfied that the preliminary
investigation procedure is not merely an insignificant process
that
has no effect on the fairness on the trial. The fact that the
investigation was also completed without the applicant’s
legal
representative poses a grave challenge to the fairness of those
proceedings. It cannot be disputed that the fifth respondent’s
failure to read over statements of witnesses that were recorded to
the applicant an opportunity and afford her an opportunity to
respond
to those statements that may advisedly affect her threatens the
applicant’s aforesaid right to natural justice and
fair
procedures. The respondents are correct in averring that that if the
applicant is granted the relief that she seeks that this
does not
prevent the respondents from instituting the charges
de novo
against her, however the applicant has not challenged the outcome of
the trial in these proceedings but rather that the failure
to conduct
a proper hearing caused her severe prejudicial harm and if she is not
afforded a fair hearing before such determination
is made. I am
satisfied that the balance of convenience favours the applicant and
that the applicant will suffer prejudice
in that the conduct of the
fifth respondent clearly prevented the applicant from having her case
fully and fairly determined and
thus falls under the purview of gross
irregularity. On the other hand, the respondents will suffer a mere
delay.
[47] There are prospects of succeeding in the
trial wherein the applicant will be granted the opportunity to
respond in the preliminary hearing and cross-examine witnesses whilst
legally presented. However, should this Court not set aside
the
decision of the fourth respondent the damage to the applicant’s
reputation would be irreversible. The applicant in these
circumstances has no other remedy except the relief that she seeks. I
see no reason why the costs should not follow the result.
[48]
In
the result I grant the following order:
1.
The decision of the
fourth respondent that a proper preliminary investigation was
conducted in terms of
section 30
of the
Military Discipline
Supplementary Measures Act before
the trial of the applicant before
the Military Court is set aside;
2.
The matter is
remitted to Military Court to be instituted
de novo
;
and
3.
The respondents
shall bear the costs of the application.
C M
SARDIWALLA
Judge of
the High Court
APPEARANCES:
For the
Applicant: Adv.
Hlarane Legoabe
Instructed
by:
KP SEABI & ASSOCIATES
For the
Respondent: Adv. Tinus Kleyn
Instructed
by:
STATE ATTORNEY
Date of
Hearing:
24 August 2020
Date of
Judgment:
13 April 2021
[1]
(13535/2016) [2017] ZAKZDHC 33 at paragraph 27
[2]
2010 (1) SA 238 (CC)
[4]
2013 (3) BCLR 251 (CC)
[5]
Section 200(1)
of Act 108 of 1996 (here after referred to as
Constitution).
[6]
Minister of Defence v Potsane; Legal Soldier (Pty) Ltd v Minister of
Defence
2002 1 SA 1
(CC) par 31
[7]
For a general discussion on the historic background of military law,
see Oosthuizen, MM.
1990. Die geskiedkundige
agtergrond van die militêre reg. THRHR, 53:211-224.
Oosthuizen (1987:86) refers to the broad
and narrow definitions of
military law (Oosthuizen, MM. 1987. Militêre reg
en tersiêre regsopleiding.
Obiter,
82-91). This article focuses on the narrow
discipline orientated
definition, also referred to as the criminal law for persons in
uniform. See also Botha, CJ. 1994. ‘Jungle
Justice’ and
Fundamental Rights: Military Courts in a Future Constitutional
Dispensation. SA Publiekreg / Public Law, 313-321.
[8]
Government Notice R747 in Government Gazette No 20165 of 11 June
1999 (here after
referred to as the
Rules).
[9]
First Schedule to the Defence Act 44 of 1957.
[10]
The provisions of the MDC were amended and the MDSMA promulgated
after a challenge to
the constitutionality of
the previous rules, as contained in the then applicable Defence Act
44 of 1957 and MDC. See President,
Ordinary Court Martial v Freedom
of Expression Institute
1999 4 SA
682 (CC); and Freedom of
Expression Institute v
President, Ordinary Court
Martial 1999 2 SA 471
(C).
[11]
MDSMA (s 1). The Commanding Officer’s Disciplinary Hearing is
disregarded for purposes of the article, as is the Board
of
Inquiries (MDC (s 136)).
[12]
[13]
MDSMA (s 8).
[14]
Section 24(1) of the Supreme Court Act 59 of 1959.
[15]
116 Section 34(5). The request must be made within
certain time limits and in the prescribed manner (rule 72). When
an
offender has been convicted by a military court, the presiding judge
or commanding officer must as soon as possible after
the completion
of the trial submit the record of the trial's
proceedings to a review
counsel or
to the Director: Military Judicial
[16]
117 Section 34(7). These representations must be made within
14 days after the announcement of sentence. This period
may be
extended to up to 28 days where it is deemed to be impractical
[17]
2005(2) 225 (T) at 233 A
[18]
Mbambo 230A-C.
[19]
Mbambo 235E-F
[20]
Rule 59(12)(f) makes provision for an approach to the High Court. If
this does not refer to an appeal, the only other possibility
is a
review application.
[21]
2004 (2) SACR 273
[22]
2004 2 SACR 273 (E)
[23]
Tsotsi 282 B-C.
[24]
1998 (10) BCLR 1059.
[25]
1991 (4) AlI SA 722 (AD).
[26]
1997 (3) SA 204 (A).
[27]
See De Smith, SA (1955) “The right to a
hearing in English Administrative Law” 68(4) Harvard Law
Review 569-599, 569.
[28]
See Peach, VL (2003) “The application of the audi alteram
partem rule to the proceedings of commissions of inquiry”
Thesis (LL.M. (Public Law))—North-West University,
Potchefstroom Campus (Accessed at http://hdl.handle.net/10394/58),
8.