Borman v Minister of Defence (A555/02) [2006] ZAWCHC 17; 2007 (2) SA 388 (C) (24 April 2006)

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[2006] ZAWCHC 17
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Borman v Minister of Defence (A555/02) [2006] ZAWCHC 17; 2007 (2) SA 388 (C) (24 April 2006)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: A555/02
In the matter between:
CLIVE JAMES
BORMAN
Appellant
And
MINISTER OF
DEFENCE
Respondent
JUDGMENT:
24/04/006
VAN
REENEN, J:
1] The
appellant was convicted of theft by the court of the Senior Military
Judge on 19 September 2001 and sentenced to 9 months imprisonment
and
ignominious discharge from the South African National Defence Force
(SANDF).
2] After
the appellant’s conviction and sentence, the matter was in terms of
section 34(2) of the Military Discipline Supplementary
Measures Act,
Act 16 of 1999 (the Act) referred to the Court of Military Appeals
on automatic review and the execution of the sentence
automatically
suspended. Written representations made to the Court of Military
Appeals on behalf of and by the appellant personally,
formed part of
the record placed before such court but the right to make oral
representations to it was not exercised.
3] On
11 April 2002 the Court of Military Appeals, chaired by Mailula J,
found that –
“
After perusal of the record of
proceedings the court is satisfied that the findings and sentence are
in accordance with real and substantial
justice and they are
accordingly upheld.”
4] The
appellant surrendered himself to the commanding officer of the
Goodwood Prison on 29 April 2002, in order to commence serving
his
sentence and on 2 May 2002 i.e. three days later, launched an
application out of this Court in which he, inter alia, sought leave
to appeal against the sentence imposed upon him by the court of the
Senior Military Judge and also to be released on bail pending
the
finalization of the appeal on such terms as the court wished to
impose.
5] On
3 May 2002, the date on which the matter had been set down for
hearing, agreement was reached between the legal representatives
of
the appellant and the respondent in terms whereof the former was
granted leave to appeal and/or review the order of the court
of the
Senior Military Judge within 30 days of the granting of the order and
released on warning pending finalization of the “appeal
and/or
review”. At the request of the parties such agreement was on that
date made an order of Court.
6] The
appellant, as an annexure to that application, filed a notice of
appeal dated 17 April 2002 - accompanied by a Power of Attorney
-
in which he lodged an appeal to this court
“against the
sentence imposed by Mr President, Colonel Hendrik Johannes Luus on
the 19
th
of September 2001”.
The appellant also delivered and filed an amended Notice of Appeal,
dated 12 June 2002 accompanied by a Special Power of Attorney,
dated
3 June 2002, in which he in the alternative lodged an appeal against
“the decision of the Honourable M.L. Mailula, Brigadier
General S.L. Mollo and Colonel C.J. Taljaard in the Court of Military
Appeals
on 11 April 2002, confirming the sentence of the Senior
Military Judge, Colonel Hendrik Johannes Luus”.
There is an obvious discrepancy between the amended Notice of Appeal
and the Special Power of Attorney which accompanied it in that
the
latter is limited to an appeal against the sentence imposed by the
Court of the Senior Military Judge and not also the decision
of the
Military Court of Appeals. The appellant also delivered, and on 18
June 2002 filed, a notice in terms of Rule 50(4)(a) in
terms whereof
he gave notification of his intention to prosecute the appeal and
simultaneously applied for the assignment of a date
for the hearing
thereof.
7] The
respondent on 19 September 2002 and after the Registrar had allocated
a date for the hearing of the appeal - but prior to
the hearing
thereof - launched an application in this court in which it, inter
alia, sought an order: -
that
the order granted by this court on 3 May 2002 in terms whereof the
appellant was granted leave to appeal against the sentence
imposed
by the Court of the Senior Military Judge on 19 September 2001 be
set aside; and
that
the appellant’s notice of appeal dated 17 April 2002 as well as
the notice in terms of Rule 50(4)(a) dated 12 June 2002
be set
aside as constituting irregular steps.
8] Although
the appellant on 14 October 2002 delivered and filed a notice of
opposition to the said application he failed to file
any answering
affidavits.
9] It
is clear that the amended notice of appeal - to the extent that it
embodies an appeal against the confirmation by the Court
of Military
Appeals on automatic review of the sentence imposed by the court of
the Senior Military Judge - not only exceeded the
ambit of the
order of this court in terms whereof it granted leave to appeal but
also the power bestowed by the Special Power of
Attorney dated 3 June
2002, and clearly is irregular
pro tanto
. That however is not
the basis upon which the respondent contended that the appellant’s
notice of appeal and the notice in terms
of Rule 50(4)(a) constituted
irregular steps. That contention is based thereon that there is no
right of appeal to this Court against
a sentence imposed by a Court
of the Senior Military Judge, especially after a Court of Military
Appeals has disposed thereof in
accordance with the provisions of
section 8(1) of the Act and that accordingly this court lacked
jurisdiction to have entertained
the application and granted the
order on which the appellant’s appeal to this court has been based.
10] Despite
the fact that it has been found in two full bench decisions of the
Transvaal Provincial Division of the High Court of
South Africa that
all courts in the hierarchy of military courts are inferior courts
for the purposes of the Supreme Court Act, No
59 of 1959 (See:
Mbambo v Minister of Defence
2005(2) 225 (T) at 233 A;
Tsoaeli and Five Others v The Minister of Defence and Others:
Kholomba v Minister of Defence and Others
2005 JDR 0912 (T)
at 8) and the provisions of Section 19(1)(a)(i) of that act would
appear to provide the statutory power required
by High Courts to
entertain appeals from such courts (See:
S v Pennington and
Another
1997(4) SA 1076 (CC); 1999(2) SACR 329; 1997(10) BCLR
1413 at par 20), the court in
Mbambo’s
case, at 233 J, held
that no right of appeal lies from the court of a military judge to
the High Court. Although Du Plessis J (with
whom De Vos and Bosiela
JJ concurred) failed to pertinently elucidate why the power of a High
Court to entertain appeals from military
courts as inferior courts is
trumped by the appeal competency provided for in section 8(1) of the
Act, it on a holistic reading of
the judgment appears that the court
was actuated by the following considerations.
It
in the first place, considered the competency of the Court of
Military Appeals to entertain appeals against the judgments and
orders
of all other courts in the hierarchy of Military Courts as
constituting adequate compliance with the right of appeal to a higher
court which is entrenched in section 35(3)(o) of the Constitution.
And, in the second place, considered that military courts are
better
able than civil courts, such as High Courts, to ensure that the
SANDF’s constitutional obligation to maintain military discipline
in accordance with the imperative provisions of section 200(1) of the
Constitution which gave rise to the promulgation of the Act
and the
objects whereof are to: -
“
a) provide for the continued proper
administration of military justice and the maintenance of discipline;
create military courts in order to
maintain military discipline”
In
my view, the essence of the court’s reasoning in that regard, is
lucidly encapsulated in the following passage at 233 H – I
of the
judgment of Du Plessis, J:
“
In particular, Military Courts are
better suited to judge the seriousness of offences in military
context. Accordingly, a military
court system that ensures military
discipline with the High Court ensuring that it is done regularly and
constitutionally better
fits into the constitutional scheme of the
Defence Force than one whereby the civil courts have full power to
interfere on appeal
with decisions of the military courts. This even
more so if regard is had thereto that the Court of Military Appeals
has full review
and appeal powers and may be approached by any person
convicted in a military court. There is no need for soldiers to have
the choice
of an appeal forum, a choice which other citizens do not
ordinarily have.”
11] Such
reasoning echoes the views expressed by Kriegler J in
The
Minister of Defence v Potsane and Another; Legal Soldier (Pty)
Ltd and Ohters v Minister of Defence and Others
2002(1) SA 1
(CC);
2000 (11) BCLR 1137
, and in my view, applies with equal force
to judgments and decisions of the Court of Military Appeals. As I am
in full agreement
with the conclusion arrived at in
Mbambo’s
case I incline to the view that the appellant did not have the right
to appeal to this court against his conviction and the sentence
imposed on him by the Court of the Senior Military Judge on 19
September 2001 or the confirmation thereof, on automatic review by
the Court of Military Appeals on 11 April 2002.
12] Is
the absence of such a right in any way supplemented by the settlement
agreement which was subsequently made an order of Court?
If,
as I have already found, the appellant does not have a right of
appeal to this court from courts in the hierarchy of military
courts,
the agreement of the parties could not have conferred appeal
jurisdiction in respect of such counts on this Court. Hiemstra
J in
Goldschmidt and Another v Folb and Another
1974(1) SA 576
(T) at 577 A said the following in that regard:
“
Private individuals cannot confer
jurisdiction on the courts which they do not possess in terms of the
common law or of statute;
nor can they impose tasks upon the courts
which they are not legally obliged to perform”
Furthermore,
as in terms of the provisions of section 19(1)(a)(i) of the Supreme
Court Act, this court’s power to entertain appeals
against
judgments and orders made by inferior courts is limited to only such
courts as are within its area of jurisdiction and the
Court of
Military Appeals does not have its seat within this court’s area of
jurisdiction, the appellant’s attempt in his amended
notice of
appeal to have expanded the appeal to also the confirmation by the
Court of Military Appeals of his conviction and sentence,
was
completely misconceived and ineffectual.
12] As
in terms of this court’s order the appellant was not only granted
leave to appeal but also to institute
review
proceedings, what must be considered next is whether the appellant
possessed the right of having the conviction and sentence
imposed by
the Court of the Senior Military Judge and the subsequent
confirmation of the sentence by the Court of Military Appeals,
reviewed by this court, and if so, whether the proceedings before
this court amount to such a review.
13] In
terms of the provisions of section 25 of the Act every member of the
SANDF who has been convicted and sentenced by a military
court has a
right of automatic, speedy and competent review of the proceedings.
The review authority in the case of a conviction
on the more serious
offences is the Court of Military Appeals whilst in other cases it is
by a review counsel.
Apart
from the right of automatic review, such a convicted and sentenced
member has a right to apply to a court of Military Appeals
in terms
of section 34(5) of the Act to have the proceedings of a military
court reviewed. Rules of procedure for the prosecution
of a review
of that kind as well as automatic reviews have been promulgated in
Government Notice R747 in Government Gazette
No 20165
of 11 June 1999. In terms of Rule 72(1) thereof the grounds of
review must be fully set out. Such a review is not limited to the
record of the proceedings as further evidence may be allowed and
accordingly, such powers of review amount to the third kind of review
referred to in
Johannesburg Consolidated Investment Co v
Johannesburg Town Council
1903 TS 111.
It does not appear to be
in issue that the appellant has not availed himself of the right of
review of the kind provided for in
section 34(5) of the Act.
14] As
it has been held that military courts of first instance and Courts of
Military Appeals are inferior courts for the purposes
of the Supreme
Court Act, it follows logically that in terms of section 19(1)(a)(ii)
of the Supreme Court Act, their proceedings
are subject to review by
High Courts (See:
Mmbambo v Minister of Defence
(supra)
at 223 A and
Tsoaeli and Five Others v The Minister of Defence
and Others: Kolomba v The Minister of Defence and Others
(supra) at page 8). In the circumstances I incline to the view that
this court possessed the power and jurisdiction to have granted
an
order authorising the appellant to have his conviction and sentence
by the Court of the Senior Military Judge reviewed by this
court.
However,
as in terms of the provisions of section 19(1)(a)(ii) of the Supreme
Court Act a High Court’s power of review is restricted
to inferior
courts within its jurisdiction, such power and jurisdiction did not
extend to the order of the Court of Military Appeals
confirming the
conviction and sentence on automatic review to it.
15] Do
the proceedings before this court amount to a review? An application
for a review in terms of section 19(1)(a)(ii) of the
Supreme Court
Act must be brought in accordance with the provisions of Supreme
Court Rule 53 but, High Courts may, in the exercise
of their wide
discretion to regulate their own proceedings, permit a deviation
therefrom.
16] The
papers before this court consist of the appellant’s application for
leave to appeal brought on 2 May 2001; the record of
the proceedings
before the Court of the Senior Military Judge; the notice of appeal
dated 17 April 2002; the amended notice of
appeal dated 12 June
2002; the notice in terms of rule 50(4)(a); the respondent’s
application to have the order of this court
made with the consent of
the parties set aside as well as ancillary relief; and the
appellant’s notice of opposition to the last-mentioned
application.
17] Not
only is there no application to review the decision of the Court of
the Senior Military Judge convicting the appellant and
the sentence
imposed on him, but the notices of appeal that have been filed state
specifically that the appellant thereby lodged
or noted
an appeal
to the Cape Provincial Division of the High Court of South Africa.
The format of and the manner in which the notices of appeal have
been
formulated furthermore, conform with notices of that nature filed in
criminal appeals which regularly serve before this court.
In
addition, the concept “review” does not feature at all other
than in the terms of the settlement agreement, on which the
court
order was based. There further is not even an iota of evidence in
support of a factual basis for reviewing the judgment of
the Court of
the Senior Military Judge before this court. In the absence of a
properly motivated application to review the decision
of the Court of
the Senior Military Judge, there is no basis upon which this court
could apply the review jurisdiction it possesses.
18] Can
this court, in the exercise of its inherent powers, review the
decision of the Court of the Senior Military Judge and if so,
is
there a factual basis upon which it could be done?
This
court, in the exercise of its inherent jurisdiction, does have the
power to review and set aside any decision of an inferior
court which
is tainted with an irregularity (See:
Kruger v The Master and
Another NO
1982(1) SA 754 (W)). In the absence of such an
irregularity this court is not in a position to exercise its inherent
jurisdiction
to review the decision of the Senior Military Judge. As
on the papers before us no factual basis has been established showing
the
existence of an irregularity of that nature and no irregularity
of such a nature is apparent
ex facie
the papers there is
absolutely no basis upon which this court could exercise its inherent
jurisdiction to review the decision of
the Court of the Senior
Military Judge.
19] In
view of the aforegoing the following orders are made:-
19.1 prayers
1, 2 and 3 of the respondent’s application in
limine litis
,
dated 17 September 2002 are granted.
19.2 the
appellant’s appeal is struck from the role; and
19.3 the
appellant is directed to report to his commanding officer within 7
days of the granting of this order in order to undergo,
in accordance
with the law, the sentence imposed upon him by the Court of the
Senior Military Judge on 19 September 2001, failing
which the
respondent will be entitled to deal with the appellant in terms of
the provisions of Act 16 of 1999.
20] As
the appellant’s abortive appeal and the respondent’s application
to have this court’s order of 3 May 2002 set aside,
flowed from a
mutual misapprehension on the part of the parties regarding this
court’s jurisdiction over military courts, it in
my view, would be
fair to make no order as regards costs.
21] In
conclusion, counsel are thanked for their well-prepared heads of
arguments and arguments presented in court, particularly Advocate
MacWilliam SC who at the request of the court was appointed by the
Bar Council to act for the appellant on a
pro bono
basis
.
______________
D.
VAN REENEN
KNOLL,
J:
I
agree.
__________
J.V.
KNOLL
WAGLAY,
J:
I
agree.
__________
B.
WAGLAY