Brief Summary

Constitutional Law — Court Martial — Constitutionality of military court proceedings — Respondents, members of the SANDF, challenged the constitutionality of court martial proceedings under the Defence Act and Military Discipline Code, claiming violations of their rights to a fair trial and freedom of expression — High Court declared certain provisions unconstitutional — Appeal to the Constitutional Court rendered moot by the enactment of the Military Discipline Supplementary Measures Act, which established a new military court system — Court declined to determine the appeal as the matter had been overtaken by new legislation, allowing for the possibility of fresh proceedings under the new Act.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal and related constitutional invalidity confirmation matter before the Constitutional Court, arising from a judgment of a Full Bench of the Cape of Good Hope High Court. The proceedings were brought under section 172(2) of the Constitution, which regulates the effect and confirmation of High Court orders declaring legislation invalid.

The appellants were the President of the Ordinary Court Martial (Lieutenant-Colonel Mardon N.O.), the Prosecuting Authority in the Ordinary Court Martial (Lieutenant-Colonel Genis N.O.), and the Minister of Defence. The respondents were the Freedom of Expression Institute, M & G Media (Pty) Limited t/a The Mail & Guardian, and two members of the South African National Defence Force, Staff-Sergeant Herman Gordon Pheiffer and Corporal Dawid Desmond Booysen.

The matter originated in an ordinary court martial convened under the Defence Act 44 of 1957 and the Military Discipline Code. During those proceedings, the presiding officer made orders closing the proceedings to the public and classifying the record and proceedings as secret. The respondents then approached the High Court for review and for constitutional relief directed at the legislative framework governing ordinary courts martial.

On 18 December 1998, the High Court declared impugned provisions of the Defence Act and the Code unconstitutional, invalid, and of no force or effect. Because the order concerned the constitutional invalidity of national legislation, it required confirmation by the Constitutional Court in terms of section 172(2)(a) to have force. The appellants appealed to the Constitutional Court under section 172(2)(d).

Before the Constitutional Court heard the merits, Parliament enacted the Military Discipline Supplementary Measures Act 16 of 1999, which repealed and amended relevant parts of the prior framework and introduced a new military court system. The Constitutional Court was therefore required, in the circumstances of the case, to decide whether the dispute had become moot, and whether it should nonetheless determine the appeal and confirmation proceedings.

2. Material Facts

The third and fourth respondents, both SANDF members, were charged before an ordinary court martial in relation to certain military intelligence source reports. The Constitutional Court noted that the details of those charges were not necessary for its determination.

During the court martial proceedings, the presiding officer (the first appellant) made an order on 4 December 1996 directing that the entire proceedings be held in camera and that the proceedings and the complete record be classified as secret.

A subsequent order was made on 7 April 1997 when the Freedom of Expression Institute and M & G Media (who had not previously been parties to the court martial proceedings) sought access to the intelligence source reports and to the record so as to enable an application for the proceedings to be open to the public, including the media. The presiding officer refused the application, ruling that these applicants lacked locus standi to seek such relief before the court martial. The refusal was challenged with reference to freedom of expression, including freedom of the press and the freedom to receive or impart information or ideas.

In the High Court, the respondents mounted a broad constitutional challenge to the legislative framework under the Defence Act and the Code for ordinary courts martial. The High Court declared the challenged provisions unconstitutional and invalid on 18 December 1998, and its order was referred to the Constitutional Court for confirmation and appeal purposes under section 172(2).

After the appeal was launched, new legislation was enacted: the Military Discipline Supplementary Measures Act 16 of 1999 was published on 23 April 1999 and came into operation on 28 May 1999. The Act created a new system of military courts and contained transitional provisions. Of particular importance was section 44(2), which provided that all trials and disciplinary proceedings that were underway or pending immediately before commencement of the Act “shall be terminated” and “may start afresh” under the new Act.

At the time the new Act commenced, the court martial proceedings against the third and fourth respondents had not been completed and were still pending. The Constitutional Court accepted that, by operation of the new legislation, those pending court martial proceedings were terminated.

The parties indicated before the Constitutional Court that no dispute existed regarding costs in that Court. The Court was also informed that, by agreement, the costs in the High Court would be paid by the third appellant.

3. Legal Issues

The central issue was whether, in light of the enactment and commencement of the Military Discipline Supplementary Measures Act 16 of 1999, the appeal and confirmation proceedings had become moot because the legislative provisions challenged in the High Court had been repealed or materially replaced, and because the relevant court martial proceedings had been terminated by transitional provisions.

Closely connected to mootness was an interpretive and remedial question about the scope of the Constitutional Court’s obligations under section 172(2) of the Constitution. The question was whether section 172(2) required the Constitutional Court, in all circumstances, to decide confirmation and appeal proceedings once a High Court has made a declaration of invalidity, or whether the Court retained a discretion to decline to determine such matters where no practical effect would follow.

The matter therefore concerned primarily a question of law, namely constitutional and statutory interpretation and the proper exercise of judicial discretion in relation to moot disputes, together with an assessment of the practical effect of any order in the changed legislative landscape.

A further issue had arisen in affidavits shortly before the hearing, relating to an allegation that one of the High Court judges (Gihwala AJ) had a connection with a firm acting as correspondent attorneys in the High Court proceedings, raising a possible apprehension of bias. However, the Constitutional Court treated this issue as having become irrelevant to the disposition of the proceedings in view of mootness.

4. Court’s Reasoning

The Court considered the effect of the new Act on the live controversy between the parties. It noted that the new legislation created a new military court system and included provisions intended to ensure fair military trials, independence of judicial officers, minimum legal qualifications for court members and prosecuting counsel, and insulation from undue executive interference. Importantly, the Court emphasised that the new Act was applicable to the present matter through its transitional provisions, in particular section 44.

Applying section 44(2), the Court reasoned that because the proceedings against the third and fourth respondents were still pending when the new Act commenced, those proceedings were required to be terminated. Any future prosecution would have to be commenced afresh under the new Act. On that basis, the Court concluded that the dispute as framed in the High Court—directed at the old legislative regime and the old court martial process—had been overtaken by legislative change.

The Court then turned to the question whether, despite mootness, it was obliged to decide the appeal and confirmation under section 172(2). It referred to section 21A of the Supreme Court Act 59 of 1959, which empowers appellate courts within that Act’s reach to dismiss appeals that would have no practical effect, and cited authorities explaining that the purpose is to reduce appellate workloads and avoid decisions without practical consequence. The Court observed, however, that section 21A did not apply to the Constitutional Court, and that there was no express equivalent provision in the Constitutional Court Complementary Act or the Court’s rules.

Nonetheless, the Court held that section 172(2) does not expressly compel the Constitutional Court to decide every confirmation or appeal matter irrespective of circumstances. While the confirmation mechanism generally serves the purpose of certainty where a High Court has declared an Act of Parliament invalid, the Court reasoned that where the impugned provision has been repealed before the Constitutional Court determines the matter, the need for certainty may fall away. The Court concluded that, at least in circumstances where the provision declared invalid has been repealed, the Constitutional Court has a discretion whether to deal with the matter, and should consider whether any order would have a practical effect on the parties or others.

On the facts, the Court found that all relevant aspects of the legislative framework underlying the dispute had been replaced, and that confirmation of the High Court’s declarations would serve no purpose because the court martial proceedings that triggered the litigation had been terminated. The Court further considered whether wider public policy considerations nonetheless required a determination, and concluded that none had been identified on the record that warranted deciding the merits.

The respondents had argued that there might be persons previously convicted under the impugned provisions to whom the new provisions did not apply, and that such persons would have an interest in having the old provisions declared unconstitutional. The Court addressed this by reference to its jurisprudence concerning the effect of constitutional invalidity on completed matters and the importance of avoiding undue dislocation. It referred to S v Zuma and Others and S v Bhulwana; S v Gwadiso, where the Court had dealt with retrospectivity and the general principle that orders of invalidity should not disturb cases finalised before the date of invalidity, unless justice and good government require otherwise. Against that background, the Court stated that there was no justification to determine the merits of the appeal in this case. It also noted that it remained open to a person convicted under an unconstitutional provision before the commencement of the new Act to approach the Court for relief.

Given the conclusion that the case had become moot and should not be determined, the Court considered it unnecessary to decide the issue raised about Gihwala AJ’s alleged connection to a correspondent attorney firm. It held that this matter had been overtaken by events and had become irrelevant to the fate of the proceedings, making further enquiry unnecessary.

On costs, the Court accepted the parties’ agreement that each would pay their own costs in the Constitutional Court and made no costs order.

5. Outcome and Relief

The Constitutional Court made no order in respect of the appeal and confirmation proceedings.

The Constitutional Court made no order as to costs in that Court, in light of the parties’ agreement.

The Court recorded that it had been informed that, by agreement, the costs in the High Court proceedings would be paid by the third appellant.

Cases Cited

Premier, Mpumalanga en ’n Ander v Groblersdalse Stadsraad 1998 (2) SA 1136 (SCA).

Western Cape Education Department and Another v George 1998 (3) SA 77 (SCA).

McDonald’s Corporation v Joburgers Drive-Inn Restaurant 1997 (1) SA 1 (A).

Simon NO v Air Operations of Europe AB and Others 1999 (1) SA 217 (SCA).

Natal Rugby Union v Gould [1998] ZASCA 62; 1999 (1) SA 432 (SCA).

S v Zuma and Others 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).

S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC).

National Coalition for Gay and Lesbian Equality and Another v The Minister of Justice and Others 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 16(1)(a) and 16(1)(b); sections 172(2)(a) and 172(2)(d)).

Defence Act 44 of 1957 (including section 104 and the First Schedule constituting the Military Discipline Code).

Military Discipline Supplementary Measures Act 16 of 1999 (including sections 2 and 44).

Supreme Court Act 59 of 1959 (section 21A).

Constitutional Court Complementary Act 13 of 1995.

Constitution of the Republic of South Africa 200 of 1993 (Interim Constitution) (section 98(6)).

Rules of Court Cited

Rule 15 of the Rules of the Constitutional Court of South Africa.

Rules for Giving Effect to the Military Discipline Code (made by the Minister of Defence under section 104(3) of the Defence Act 44 of 1957).

Held

The Constitutional Court held that the enactment and commencement of the Military Discipline Supplementary Measures Act 16 of 1999 replaced the legislative framework that had been challenged, and that the transitional provisions terminated the pending court martial proceedings that formed the immediate subject matter of the dispute. In those circumstances, determining the constitutional merits of the appeal and confirming (or varying) the High Court’s invalidity orders would have no practical effect.

The Court further held that section 172(2) of the Constitution does not, in all circumstances, oblige the Constitutional Court to decide confirmation or appeal matters, and that at least where the impugned legislative provision has been repealed, the Court has a discretion whether to deal with the matter, guided by whether any order would have a practical effect on the parties or others.

The Court accordingly made no order on the appeal and confirmation proceedings and no costs order in the Constitutional Court.

LEGAL PRINCIPLES

Section 172(2) of the Constitution, while generally requiring Constitutional Court confirmation for High Court declarations of invalidity of Acts of Parliament (or conduct of the President) to have force, does not necessarily compel the Court to determine such matters in all circumstances. Where the impugned provisions have been repealed and the underlying dispute has been overtaken by subsequent legislation, the Constitutional Court may exercise a discretion not to decide the merits, particularly where any decision would have no practical effect.

In assessing whether to decide a matter that has become moot due to intervening legislative change, the Court emphasised a practical-effect inquiry: it should consider whether any order would have a practical effect on the parties or others, and whether any identified public policy considerations nonetheless warrant adjudication.

In relation to the effect of constitutional invalidity on past, finalised cases, the Court reiterated principles drawn from its prior jurisprudence, including the general approach that an order of invalidity should ordinarily have no effect on cases finalised before the date of the invalidity order, and that remedial powers affecting past matters must be exercised circumspectly to avoid dislocation and to balance individual interests against the orderly administration of justice.

President of the Ordinary Court Martial and Others v Freedom of Expression Institute and Others (CCT5/99) [1999] ZACC 10; 1999 (4) SA 682; 1999 (11) BCLR 1219 (24 August 1999)