CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 14/23

In the matter between:


LIEUTENANT COLONEL K B O’BRIEN N.O. Applicant

and

MINISTER OF DEFENCE AND MILITARY VETERANS First Respondent

CHIEF OF THE SOUTH AFRICAN NATIONAL
DEFENCE FORCE Second Respondent

SECRETARY OF DEFENCE AND MILITARY
VETERANS Third Respondent

SOUTH AFRICAN NATIONAL DEFENCE FORCE Fourth Respondent

and

INTERNATIONAL COMMISSION OF JURISTS Amicus Curiae


Neutral citation: O’Brien N.O. v Minister of Defence and Military Veterans and
Others 2024 ZACC 30

Coram: Zondo CJ, Madlanga ADCJ, Kollapen J, Majiedt J, Mathopo J,
Mhlantla J, Rogers J, Theron J, Tolmay AJ and Tshiqi J


Judgment: Majiedt J (unanimous)

Heard on: 8 August 2024

Decided on: 20 December 2024

Summary: Military Discipline Supplementary Measures Act 16 of 1999 —
Defence Act 42 of 2002 — military judges —
judicial independence — boards of inquiry — renewable terms —
removal without independent oversight




ORDER



On appeal from the Supreme Court of Appeal, hearing an appeal from the High Court
of South Africa, Gauteng Division, Pretoria (High Court):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside to the extent that
that Court dismissed the applicant’s appeal against the High Court’s
refusal to grant the declarations of statutory invalidity sought by the
applicant in his counter-application in the High Court.
4. The costs orders made in the Supreme Court of Appeal in relation to costs
in that Court and in the High Court are set aside.
5. It is declared that:
(a) Sections 101 and 102 of the Defence Act 42 of 2002 are
unconstitutional and invalid to the extent that they permit members
of the Executive to convene boards of inquiry to investigate
military judges and the content and merits of their judgments and
rulings. Pending the coming into operation of remedial legislation,
the phrases “any matter”, “any member or emplo yee” and the
“affairs of any institution” in section 101 and 102 of the Defence
Act and section 136 of the Military Disciplinary Code, read with
rule 79 of the Military Discipline Supplementary Measures Act’s
Rules, must be read as excluding military judges.

(b) Section 15 of the Military Discipline Supplementary Measures Act
16 of 1999 is unconstitutional and invalid to the extent that it
empowers the Minister of Defence and Military Veterans
(Minister), acting on the recommendation of the Adjutant General,
to assign judges for renewable periods.
(c) The existing practice of assigning judges for renewable periods of
one to two years is unconstitutional and unlawful. Pending the
coming into operation of remedial legislation, the assignment of a
military judge may not be renewed until the lapse of at least two
years since that person’s last assignment.
(d) Section 17 of the Military Discipline Supplementary Measures Act
16 of 1999 is unconstitutional and invalid to the extent that it
empowers the Minister, acting on t he recommendation of the
Adjutant General, to remove a military judge and that the Minister
may do so without any independent inquiry into the fitness of the
military judge to hold office.
(e) Pending the coming into operation of remedial legislation, the
Minister may devise processes for an inquiry into the fitness of a
military judge and the composition of the inquiry body, provided
that:
(i) it is an independent inquiry; and
(ii) a military judge may not be removed except on the
recommendation of the independent inquiry.
(f) The declarations of constitutional invalidity above are suspended
for a period of 24 months to allow remedial legislation to be
enacted and brought into operation.
6. The first respondent is ordered to pay half of the costs of the applicant in
the Supreme Court of Appeal and the High Court, including the costs of
two counsel where so employed.
7. The first respondent is ordered to pay the costs of the applicant in this
Court, including the costs of two counsel where so employed.




JUDGMENT




MAJIEDT J (Zondo CJ, Madlanga ADCJ, Kollapen J, Mathopo J, Mhlantla J,
Rogers J, Theron J, Tolmay AJ and Tshiqi J concurring):


Introduction
[1] Military justice was previously dispensed in this country by way of ad hoc (for
a particular purpose ) courts martial, but that system was declared unconstitutional by
the Full Court of the Cape Provincial Division of the High Court in
Freedom of Expression Institute .1 The courts martial system was abolished when
Parliament enacted the Military Discipline Supplementary Measures Act 2 (MDSMA).
In place of that system, the MDSMA established what this Court referred to as a system
which “shifted sharply from an essentially military system with forensic trappings to a
system far closer to the ordinary criminal justice process”.3

[2] This case concerns the independence of military courts, in particular two military
courts of first instance established under the MDSMA, the Cou rt of a Military Judge
and the Court of a Senior Military Judge. The applicant, a Lieutenant -Colonel in the
South African National Defence Force (SANDF) and a former military judge,
challenged, in a counter-application before the High Court, Gauteng Division, Pretoria
(High Court), the constitutionality of sections 101 and 102 of the Defence Act4 and
sections 15 and 17 of the MDSMA (the impugned provisions). The applicant is

1 Freedom of Expression Institute v President, Ordinary Court Martial 1999 (2) SA 471 (C); 1999 (3) BCLR 261
(C) at para 19: “The law as it stands invites arbitrariness as it allows executive interference into judicial process.”
2 16 of 1999.
3 Minister of Defence v Potsane; Legal Soldier (Pty) Ltd v Minister of Defence , [2001] ZACC 12; 2002 (1) SA 1
(CC); 2001 (11) BCLR 1137 (CC) (Potsane) at para 10.
4 42 of 2002.
MAJIEDT J
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currently employed as an instructor at the School of Military Justice, Pretoria. The main
application was a review application by the first respondent, the Minister of
Defence and Military Veterans (Minister), against certain orders made by the applicant
in proceedings where he had presided as a military judge, concerning his apprehension
about the unconstitutionality of the impugned provisions. The High Court upheld the
review relief and d ismissed the applicant ’s counter -application on the basis that the
impugned provisions were constitutionally compliant. 5 The Supreme Court of Appeal
dismissed the applicant’s appeal on the basis of mootness.6

[3] The applicant now seeks leave to appeal in this Court. The application for leave
to appeal is confined to the applicant’s counter-application; the applicant has no issues
with the Supreme Court of Appeal’s judgment and order pertaining to the review
application brought by the respondents.

[4] There are three constitutional challenges against the impugned provisions:
(a) first, in respect of sections 101 and 102 of the Defence Act, whether it is
constitutionally permissible for members of the Executive to have the
power to initiate and control boards of inquiry to investigate judicial
officers’ fitness and the conduct of their cases, as occurred in the
applicant’s case;
(b) second, whether the power under section 15 of the MDSMA , permitting
the Minister and the Adjutant General to make renewable assignments of
military judges, for short periods, at their sole discretion, and without any
objective criteria, passes constitutional muster;
(c) third, relating to the constitutionality of section 17 of the MDSMA, which
empowers members of the Executive – the Minister and the
Adjutant General – to remove military judges for alleged misconduct or

5 Minister of Defence and Military Veterans v O ’Brien N.O ., unreported judgment of the High Court of
South Africa, Gauteng Division, Pretoria, Case No 76995/18 (2 August 2021) ; [2021] ZAGPPHC 520
(High Court judgment).
6 O’Brien N.O. v Minister of Defence and Military Veterans [2022] ZASCA 178; [2023] 1 All SA 341 (SCA)
(Supreme Court of Appeal judgment).
MAJIEDT J
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incapacity, without the involvement or oversight of any independent
body.

Parties
[5] The applicant and first respondent have already been described. The second
respondent is the Chief of the SANDF; the third respondent is the Secretary of
Defence and Military Veterans; and the fourth respondent is the SANDF. All four
respondents oppose the application for leave to appeal. They are represe nted by one
legal team. The International Commission of Jurists (ICJ) was admitted as an
amicus curiae and was permitted to present written and oral argument s. The ICJ was
also given leave to adduce as evidence the Ministerial Task Team Report on
Sexual Harassment, Sexual Exploitation, Sexual Abuse and Sexual Offences within the
Department of Defence (Ministerial Task Team Report). The applicant did not oppose
the ICJ’s admission. However, the respondents objected thereto on the basis that they
have dealt with foreign and international law in their submissions, and that the
introduction of information about sexual crimes in the military constitutes the
introduction of fresh evidence which is inappropriate for amicus curiae to raise.

The legislative framework
[6] It is useful, for a better understanding of the factual backdrop and the legal issues,
to set out first the relevant legislative framework. Subsections 165(2) to (4) of the
Constitution guarantee the independence of all courts:

“(2) The courts are independent and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
(4) Organs of state, through legislative and other measures, must assist and protect
the courts to ensure the independence, impartiality, dignity, accessibility and
effectiveness of the courts.”

MAJIEDT J
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[7] As will be explained late r, military courts fall within the definition of “courts”
in section 166 of the Constitution, since they are “any other court established or
recognised in terms of an Act of Parliament ” envisaged in section 166(e).
Section 174(7) of the Constitution furth er requires that all judicial officers “ must be
appointed in terms of an Act of Parliament which must ensure that the appointment,
promotion, transfer or dismissal of, or disciplinary steps against, these judicial officers
take place without favour or prejudice”.

[8] Section 175 of the Constitution , headed “Appointment of acting judges” ,
provides:

“(1) The President may appoint a woman or man to serve as an acting
Deputy Chief Justice or judge of the Constitutional Court if there is a vacancy
in any of those offices, or if the person holding such an office is absent. The
appointment must be made on the recommendation of the Cabinet member
responsible for the administration of justice acting with the concurrence of the
Chief Justice, and an appointment as acti ng Deputy Chief Justice must be
made from the ranks of the judges who had been appointed to the
Constitutional Court in terms of section 174(4).
(2) The Cabinet member responsible for the administration of justice must appoint
acting judges to other courts after consulting the senior judge of the court on
which the acting judge will serve.”

[9] The assignment of military judges occurs under sections 13 and 14 of the
MDSMA and the duration of such assignments is regulated under section 15 of that Act.
Section 13, headed “Assignment of functions”, reads:

“(1) Only an appropriately qualified officer holding a degree in law and of a rank
not below that of colonel or its equivalent, with not less than five years ’
appropriate experience as a practising advocate or attorney of the High Court
of South Africa, or five years ’ experience in the administration of criminal
justice or military justice, may be assigned to the function of—
(a) Director: Military Judges;
MAJIEDT J
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(b) Director: Military Prosecutions;
(c) Director: Military Defence Counsel; or
(d) Director: Military Judicial Reviews.
(2) Only an appropriately qualified officer holding a degree in law may be
assigned to the function of—
(a) senior military judge or military judge;
(b) review counsel;
(c) senior defence counsel or defence counsel; or
(d) senior prosecution counsel.
(3) Only an appropriately qualified officer or other member who holds a degree in
law or who has otherwise been trained in law may be assigned to the function
of prosecution counsel.”

[10] Section 14, headed “Minister’s powers in respect of assignment”, provides:

“(1) The Minister shall assign officers to the functions—
(a) at the level of Director referred to in section 13(1); and
(b) of senior military judge or military judge referred to in
section 13(2)(a), on the recommendation of the Adjutant General:
Provided that the Director: Military Judges shall be deemed to have
been assigned the function of senior military judge.
(2) The Adjutant General shall not recommend any officer for assignment to any
function referred to in subsection (1) unless, upon due and diligent enquiry, the
Adjutant General is convinced that the officer is a fit and proper person of
sound character who meets the requirements prescribed in this Act for such
assignment.
(3) Subject to section 16 and the control of the Minister, the Adjutant General may
assign any officer or member to any function—
(a) referred to in section 13(2)(b), (c) and (d) or (3); or
(b) attached to any approved military legal services post other than those
referred to in this Act.
MAJIEDT J
9
(4) Officers and members assigned to functions in terms of this section shall
perform those functions in a manner which is consistent with properly given
policy directives, but which is otherwise free from Executive or command
interference.”

[11] Section 15 of the MDSMA, headed “Period of assignment”, reads:

“An assignment in terms of this Chapter shall be for a fixed period or coupled to a
specific deployment, operation or exercise.”

[12] Section 17, with the heading “Removal from assignment”, reads:

“The Minister, acting upon the recommendation of the Adjutant General, may remove
a person from the function assigned to him or her for the reason of that assignee ’s
incapacity, incompetence or misconduct, or at his or her own written request.”

[13] Section 19 of the MDSMA is an important provision in the context of the central
question of the independence of military courts. It provides in relevant part:

“Every military judge and every senior military judge shall in the exercise of his or her
judicial authority under this Act—
(a) be independent and subject only to the Constitution and the law;
(b) apply the Constitution and the law impartially and without fear, favour
or prejudice;
(c) conduct every trial and proceedings in a manner befitting a court of
justice.”

[14] In summary, sections 101 and 102 of the Defence Act are concerned with the
convening of boards of inquiry and the attendance of persons at boards of enquiry and
witnesses respectively. Subsections 101(1) and (2) provide:

“(1) The Minister, the Secretary for the Defence or the Chief of the Defence Force
may, at any time or place, convene a board of inquiry to inquire into any matter
concerning the Department, an y employee thereof or any member of the
MAJIEDT J
10
Defence Force or any auxiliary service, any public property or the property or
affairs of any institution or any regimental or sports funds of the said Force,
and to report thereon or to make a recommendation.
(2) Despite subsection (1), a Chief of a Service or Division may at any time and
place convene a board of inquiry to investigate any matter concerning the
Service or Division . . . . or any member or employee . . . . and the affairs of
any institution of the sai d Service or Division , and to report or to make a
recommendation thereon.”

[15] Importantly, section 102 sets out the procedure before a board of inquiry which
is similar to that of a civilian criminal court.7 Section 104(21) makes non-compliance

7 Section 102 of the Defence Act headed “Attendance of persons at board of enquiry, and witnesses” reads:
“(1) The pres ident of any board of inquiry may summon any person in the Republic to
attend such board of inquiry and to give evidence thereat.
(2) The president of any board of inquiry may administer the prescribed oath or affirmation
to witnesses, interpreters and stenographers at such inquiry.
(3) (a) Any person giving evidence before a board of inquiry may be compelled to
answer any question or to produce any article if the president of the board of
inquiry so orders.
(b) No incriminating answer or information obtain ed or incriminating evidence
directly or indirectly derived from a question in terms of paragraph (a) is
admissible as evidence against the person concerned in criminal proceedings
in a court of law or before any body or institution established by or under any
law, except in criminal proceedings where the person is arraigned on a charge
of perjury or a charge contemplated in section 104(21).
(4) Subject to sub section (5), the evidence of every witness called by a board of inquiry
must be given orally and on oath or affirmation and must be recorded by or under the
supervision of the president.
(5) A board of enquiry may admit a sworn statement by a witness as evidence where, with
due regard to the exigencies of the service—
(a) by reason of his or her illness, the witness cannot attend;
(b) undue expense would be incurred by the attendance of the witness; or
(c) the evidence of the witness is of a purely formal nature.
(6) Where the evidence is of such a nature that it is likely that the findings or
recommendations would seriously affect the professional reputation of a person who
is subject to the Code or a person who is in the employ of the Department, or that any
disciplinary or other legal steps might be taken against such a person—
(a) the witness concerned must, despite subsection (5), be called to give evidence
orally if the person who is likely to be affected, so requests;
(b) the person who is likely to be affected may be present at every meeting of the
board where such evidence is led, to cross -examine any witness giving such
MAJIEDT J
11
with a summons or warning to appear in terms of section 102(1) an offence, punishable
with the sanction of a fine or imprisonment.8

Factual matrix
[16] I confine the factual narrative to the bare minimum, that is , the facts necessary
to understand how the cent ral issues arose. The applicant was assigned as a
military judge for fixed periods during 2013, 2014, and 2016. During his time of
service, the applicant started to reflect on the constitutionality of consecutive fixed-term
appointments of military judges. He formed the view that consecutive fixed

evidence, to give evidence himself or herself, even if otherwise called as a
witness by the board, and to call witnesses.
(7) The president of the board must timeously notify a person contemplated in
subsection (6) of the t ime and place of every such meeting and advise that person of
the rights conferred upon him or her by that subsection.
(8) Any person contemplated in sub section (6) may at any stage of the proceedings
determined by the board, address the board on the evide nce referred to in that
subsection and may—
(a) in the exercise of his or her rights under that sub section be represented by a
legal representative of his or her own choice at his or her own expense; or
(b) if the person so requests, be assigned military d efence counsel at State
expense.
(9) Before the record of proceedings is submitted to the person who convened the board,
the relevant findings and recommendations of a board of inquiry must be
communicated to each person who is adversely affected by such f indings and
recommendations and that person has the right to make written representations to the
person who convened the board of inquiry within 14 days of receipt of the relevant
findings and recommendations.
(10) Subsections (6) and (7) do not apply in relation to any board of inquiry convened under
section 103.”
8 Section 104(21) of the Defence Act reads:
“(a) A person is guilty of an offence if he or she—
(i) having been duly summoned or warned to attend as a witness before a board
of inquiry, fails to attend or to remain in attendance until authorised to leave;
(ii) being present at a board of inquiry after having been duly summoned or
warned to attend as a witness, fails or refuses to be sworn or to affirm;
(iii) uses threatening or insulting language at a board of inquiry or wilfully causes
a disturbance or interruption thereat or wilfully commits any other act likely
to bring the board of inquiry into contempt, ridicule or disrepute; or
(iv) having been duly notified of his or her call-up for service by way of a call-up
order issued in terms of section 53(3A), fails to present himself or herself at
the time and place specified in the call-up order.
(b) Any person convicted of an offence contemplated in paragraph (a) is liable to a fine or
imprisonment for a period not exceeding three months.”
MAJIEDT J
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appointments might impact on the independence of the Judiciary. The applicant
subsequently, of his own accord, began placing on record , at the commencement of
matters in which he presided , his concerns regardi ng the constitutionality of the
appointment of military judges. He also ma de brief obiter (in passing) remarks,
expressing concerns about renewable terms and their impact on the structural
independence of the military courts. The applicant claimed that h is views were based
on this Court’s case law, and he stated thus in these obiter remarks.

[17] In 2014, the applicant ’s superiors requested that he cease this practice, on the
basis that he was bringing the credibility of the military legal system into disrepute. The
applicant relented and undertook not to raise his views in this manner in future cases
before him.

[18] In 2015, the Minister did not assign military judges, except for one or two reserve
force military judges. In 2016, after he was again assigned to the Bench, the applicant
presided in the two matters that ultimately resulted in the current litigation (the
Mokoena and Mabula cases). The applicant once again reiterated his view regarding
the constitutionality of the appointment of military judges and enquired from the parties
whether they accepted the Military Court’s jurisdiction. The applicant was concerned
in both matters that the accused ’s trials were unduly delayed to the point that it might
have impacted their right to a fair trial. He requested the legal representatives to address
him on whether he could conduct an investigation as provided for in section 342A of
the Criminal Procedure Act9. That section deals with unreasonable delays in criminal
trials. Both legal representatives argued that he (the military judge) was entitled to have
regard to and implement the provisions of section 342A of the Criminal Procedure Act.

[19] Without the knowledge of and participation in the proceedings by the Minister,
the applicant, relying on what he considered to be “public knowledge” and information
in the public domain, concluded that the undue delay in prosecuting the re spective

9 51 of 1977.
MAJIEDT J
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matters was in part attribut able to the Minister’s failure to appoint military judges for
the period 2015–2016, and in part to the prosecuting authority. He subsequently ordered
that “a copy of the written court ruling, a copy of the ‘Military Ju dges Concerns in
respect of the Constitutionality of the Assignment of Military Judges ’,10 and a copy of
Prosecution Counsel ’s and Defence Counsel ’s Heads of Argument” be served
respectively on the Director, Military Prosecutions (Director) and the President of the
Republic of South Africa (President) in his capacity as Commander -in-Chief of the
SANDF. The applicant regarded the Director and the President as the appropriate
authorities to conduct an administrative investigation and consider possible disciplinary

10 In relevant part, that document reads:
“8. Court is of the view that section 14(1)(b) MDSMA might be unconstitutional based on
the following:
a. Fixed term from 19 May 2014 – 31 March 2015, does not meet the
requirement that the military judge shall have security of tenure of office.
b. There may have been Executive interference in the functioning of the Military
Courts and/or the assignment of the Military Judges for 2014/15:
i. During February/March 2014, all Military Judges were required to
provide their court hours for the previous three years to the
Adjutant General who in turn provided this information to
C SANDF, who in turn provided this information to the Minister.
The amount of court hours of each Military Judge could have played
a pivotal role in the assignment of the Military Judges for 2014/15.
ii. This was confirmed by the Minister’s assignment in mid-April 2014
of Military Judges with satisfactory court hours. Unfortunately, I
was only assigned on 19 May 2014, after I had had to provide an
explanation for my unsatisfactory amount of court hours for 2013/14
i.e. 103 court hours. My explanation being I had only sat as a
Military Judge for two weeks in June 2013 and from
15 January – 28 February 2014 due to the fact that I had attended the
SAMHS Junior Command and Staff Course from
July – December 2013.
9. This court has addressed its concerns in respect of the assignment of Military Judges
to both the Director Military Judges and to the Officer in Charge Operations Support
Legsato.
10. Court is well aware of the provisions of section 170 [of the] Constitution which states
that: ‘Court of a status lower than the High Court may not rule on the constitutionality
of any legislation.’
11. Purposes of this trial court is bound to accept that the provisions of section 14(1)(b) of
the MDSMA are constitutional and that we may then proceed.
12. Court wishes to give both Counsel an opportunity to place on record whether they are
willing to proceed and if so , whether Defence Counsel has any other objections in
respect of the jurisdiction of the court or in respect of the charges that they do not
disclose an offence?”
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action against the prosecutorial staff and the Minister, respectively, for their part in
causing the delay.

[20] The applicant postponed the finalisation of the Mokoena and Mabula cases after
holding that the delays incurred were more prejudicial to the prosecution than to the
defence. Both the Director and the President were ordered by the applicant to provide
written reports to the Military Court, by 31 October 2016, setting out what actions, if
any, had been taken against any of their staff members and the Minister, respectively.

[21] The applicant’s superiors were, to put it mildly, startled by this development.
The concerns were expressed in a letter by then Review Counsel,
Lieutenant Colonel Kriek, on 6 November 2014 to the Director: Military Judicial
Reviews. Those concerns were that the constitutional issue raised by the applicant
“does not fall within the ambit of the procedural course of a court case constituted under
the [MDSMA]”. The upshot of the concerns w as that the applicant as a pre siding
military judge was in effect challenging his appointment in open court, thus challenging
the credibility of the military legal system. In that letter the question was also raised as
to why a military judge who believes his appointment to preside in a military court is
unconstitutional would continue with the matters before him even though the trials
would then be invalid and null and void.

[22] On 5 December 2015, the then Director: Military Judges, Brigadier General Slabbert,
held a meeting with the applicant to express his concern that, in having once again raised
the constitutionality of assignments of military judges in open court, the applicant had
breached a previous undertaking. In the course of that meeting, the applic ant was
instructed not to use his Military Court as a forum for his “awareness campaigns and
constructive criticism”. He was advised to use the proper channels of command and
that, if he were to persist in his conduct , it may impact on his future assignme nt as a
military judge.

MAJIEDT J
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[23] A board of inquiry (Board) was then constituted (presumably in terms of
sections 101 and 102 of the Defence Act) to investigate whether his conduct brought
the military legal system into disrepute. The applicant was informed that no new cases
would be assigned to him pending the finalisation of the matter by the Board. The
applicant objected to not being assigned new cases, and he was again assigned matters
within the borders of South Africa pending the investigation by the Board.

[24] Subsequent to the commencement of that investigation, the applicant was
informed that the mandate of the Board was extended to investigate all matters
previously heard by him. The applicant convened a court in October 2016 and
summoned the accused, the prosecutor, and defence counsel in the Mokoena and
Mabula matters to appear before him. After explaining what had transpired since the
matters were postponed, he recused himself from hearing both matters because, in his
view, the interference in his judicial functions gave rise to a reasonable apprehension of
bias. Without any of his superiors or the officers involved in the Board having been
notified of the proc edure, he ordered that a copy of the record of the proceedings be
served on the Minister to consider whether the officers named in the order had complied
with the provisions of section 54(2)(g) of the Defence Act,11 and to make
recommendations to the Commander-in-Chief, the President, in this regard.

[25] The Mokoena and Mabula cases were assigned to new military judges, and both
matters have since been finalised. The applicant was not subsequently assigned as a
military judge after his fixed-term appointment lapsed. He was the only military judge
who did not receive a consecutive assignment as a military judge. Litigation ensued,
culminating in this application.


11 Section 54(2)(g) of the Defence Act, headed “Commissioned officers in Defence Force”, provides:
“(2) In order to qualify for a permanent commissioned appointment in the Defence Force,
a person must—
. . .
(g) be a fit and proper person to serve and must have a trustworthy and exemplary
character.”
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Litigation history
High Court
[26] In 2018, the present respondents instituted review proceedings in the High Court
to review and set aside the judgments and orders handed down by the applicant in his
capacity as a military judge on 25 and 29 August 2016 and 14 October 2016. The
applicant, in turn, instituted a counter -application challenging the constitu tionality of
sections 101 and 102 of the Defence Act, and sections 15 and 17 of the MDSMA. The
respondents decided to suspend the Board pending the finalisation of the review
proceedings and counter-application.

[27] As stated, the applicant ’s counter -application raised three principal issues
concerning the constitutionality of sections 15 and 17 of the MDSMSA and
sections 101 and 102 of the Defence Act. The High Court considered the three
challenges in the following sequence. The first issue was the section 15 of the MDSMA
challenge: whether the Minister ’s power to reassign military judges for consecutive
fixed periods of service is consistent with the principle of judicial independence.

[28] The second issue the High Court had to determine was whether section 17 of the
MDSMA, to the extent that the provision empowers the Minister, on the
recommendation of the Adjutant General, without any independent inquiry into the
fitness of the military judge to hold office, to remove military judges for alleged
misconduct, is consistent with the principle of judicial independence and thus
constitutional. Lastly, the third issue for determination was whether
sections 101 and 102 of the Defence Act empower the Executive (Minister and
Adjutant General) to appoint boards of inquiry, staffed with non -judicial officers, to
investigate military judges, their judgments, and the conduct of their cases. If they do,
the High Court had to enquire into whether the provisions are consistent with the
principle of judicial independence and thus into whether they are constitutional.

MAJIEDT J
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[29] In respect of the first issue, the section 15 challenge, the High Court pointed out
that a military judge’s term of office and reassignment relates to security of tenure. The
High Court held that an assi gnment as a military judge does not affect a person ’s
employment in the SANDF. A military judge’s security of tenure as a military officer
of a specific rank, and their financial position, are not dependent on their assignment as
a military judge. The Court held further that military courts enjoy limited jurisdiction
and their decisions are subject to appeal and review. In light of all of th ese findings,
the Court held that there are sufficient safeguards in the MDSMA, and related statutes,
to render the risk posed to judicial independence, by the power to make reassignments,
negligible. Consequently, the Court dismissed this constitutional challenge.

[30] On the second issue, the power to remove a military judge upon the
recommendation of the Adjutant General found in section 17 of the MDSMA, the
High Court accepted that the MDSMA does not explicitly provide for a procedure in
terms of which a preliminary, or any, investigation must be conducted or that a charge
be brought against the military judge concerned. But, said the High Court, a proper
interpretation of section 17 in the context of the MDSMA , read with the
Military Discipline Code (Code), the MDSMA Rules and the rules of natural justice,
implies that the Adjutant General has an obligation to co nvene a board of inquiry to
investigate alleged misconduct, incapacity or incompetence before recommending a
military judge’s removal from the function assigned to them. The investigation by a
board of inquiry serves to ensure that the Adjutant General’s recommendation is an
informed recommendation as opposed to one based on their own whim. The High Court
thus held that , if section 17 is read within the legal matrix created by the MDSMA,
MDSMA Rules and the Code, this constitutional challenge must fail.

[31] On the third and last issue, that is the issue of whether, properly interpreted,
sections 101 and 102 of the Defence Act empower the Minister and/or the
Adjutant General to appoint boards of inquiry to investigate military judges and the
related issue of whether such a power is consistent with the principle of
judicial independence, the Court held thus : The substance of sections 101 and 102 of
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the Defence Act are repeated in the Code and the MDSMA Rules. A board of inquiry
can thus be convened without rel iance on the Defence Act. According to the Court,
military judges should not be removed from their assignment unless their incapacity,
misconduct, or incompetence has objectively been determined. Such a determination
cannot be made without an investigati on, and a board of inquiry is the appropriate
mechanism to conduct such an inquiry.

[32] The High Court held that to grant the order sought by the applicant would be to
incapacitate the Minister from removing a military judge in accordance with section 17.
To prevent a board of inquiry from convening before a military judge’s fixed
appointment lapses will defeat the purpose of section 17. In the premises, the Court
held that sections 101 and 102, properly interpreted, empower the Minister and/or the
Adjutant General to appoint boards of inquiry to investigate military judges and that
this power is consistent with the principles of judicial independence and is therefore
constitutional.

[33] In light of the above, the High Court dismissed the applicant ’s
counter-application with costs. With the leave of that Court, the applicant appealed to
the Supreme Court of Appeal.

Supreme Court of Appeal
[34] The Supreme Court of Appeal dismissed all three constitutional challenges on
the basis of mootness. The first challenge – directed at section 15 of the MDSMA, (the
power to renew term of office) – was moot, according to that Court, on account of the
absence of a real and live dispute. The Court held that “the case advanced in support
of the section 15 challenge is a purely conjectural one”. The Court held further that the
applicant sought to—

“have [it] express a view on legal issues that he hope[d] to have decided, which would
not in any way affect his position relative to the Defence Force. . . . . [and that the
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applicant, in effect, was seeking] legal advice from [the Court] in respect of legal
disputes that may or may not arise in the future”.12

[35] The second challenge aimed at section 17 of the MDSMA, the power to remove
military judges, had become moot, according to the Supreme Court of Appeal, because
the applicant was not facing, nor had he ever faced, removal from the position of
military judge. The Court held that there was not the faintest hint that the
Adjutant General had ever contemplated a recommendation to the Minister that the
applicant be removed from office, nor was there a hint that the Minister herself had ever
contemplated doing so.

[36] And lastly, the Supreme Court of Appeal held that the third challenge
concerning sections 101 and 102 of the Defence Act, the power to appoint boards of
inquiry, had become moot by reason that the SANDF had decided to collapse the Board
established to investigate the applicant ’s conduct, which had been held in abeyance
pending the finalisation of the review application in the High Court. The
Supreme Court of Appeal held further that, given the reservations expressed by the new
Adjutant General as to the appropriateness of invoking those provisions in a case
involving a military judge, and the unlikelihood of a recurrence of th e question in the
future, there was no live issue between the present parties that the Court needed to
resolve.

[37] In light of the above, the Supreme Court of Appeal dismissed the applicant ’s
appeal against the dismissal of his counter -application in the High Court. As stated,
this application for leave to appeal is directed at that order.


12 Supreme Court of Appeal judgment above n 6 at paras 58-9.
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In this Court
Applicant’s submissions
[38] With regard to jurisdiction, the applicant submits that the matter is a
constitutional issue as it concerns the constitutionality of national legislation and the
judicial independence of military courts and military judges. The applicant submits that
the matter is not moot and it is in the interests of justice to grant leave to appeal. That
is so because, according to the applicant, “a constitutional challenge to legislation that
is in operation is a live issue and the orders of this Court would have practical effect ”.
In the event that the Court finds that the matter is moot, the applicant submits that it is
nevertheless in the i nterests of justice to hear the appeal, because this case raises
important, complex legal questions about the independence of military courts and
military judges. The applicant further submits that it would be in the interests of justice
to hear the matter notwithstanding it being moot because of the broader practical impact
that the order of invalidity would have. In addition, the applicant submits that this Court
has the benefit of the High Court judgment on these issues.

[39] In respect of the merits, on the first issue, the power to renew terms of office in
terms of section 15 of the MDSMA, the applicant submits that this power is inconsistent
with the principle of judicial independence for two main reasons. First, because
“non-renewable terms are a core requirement of structur[al] independence” and
renewable terms of office are inconsistent with the core guarantee of security of tenure.
Second, renewable terms leave judges open to threats and inducements or, at the very
least, a reasonable apprehension of that. In further support of his argument, the
applicant submits that section 15 is out of step with the trend observed in foreign
jurisdictions such as Canada, New Zealand and the United Kingdom.

[40] On the second issue, the p ower to remove a military judge upon the
recommendation of the Adjutant General according to section 17 of the MDSMA, the
crux of the applicant ’s submissions is this: it is impermissible for members of the
Executive to hold the power to exercise discipline over judicial officers without any
MAJIEDT J
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independent assessment of cause. According to the applicant, this includes the
unfettered power to remove judicial officers for misconduct or incapacity.

[41] As to the third and last challenge, the power to appoint boards of inquiry in terms
of sections 101 and 102 of the Defence Act, the applicant submits that this power
interferes with a military judge’s freedom to hear and decide cases without interference
from government, pressure groups, or individuals. The applicant submits that this
power compromises military judges and judicial independence as it places judicial
officers in a subordinate position in relation to the Executive.

[42] The applicant further submits that the composition of boards of inquiry is also
inconsistent with the principle of judicial independence. According to the applicant,
the boards are often composed of individuals who are not judicial officers , and this is
inconsistent with the principle of judicial independence. Lastly, the applicant submits
that the members of boards obey the Adjutant General and Minister’s orders and are not
independent. Consequently, they cannot be considered to be an independent check on
the exercise of the powers of the Minister and Adjutant General.

Respondents’ submissions
[43] The respondents submit, without motivation, that this Court does not have
jurisdiction to entertain the matter. They submit that the matter is moot and it is not in
the interests of justice to entertain the application. That submission is primarily based
on the Supreme Court of Appeal’s reasoning. On the merits, the crux of their case is
that this Court should not declare the impugned provisions unconstitutional, because
those provisions apply to a number of groups in the SANDF and not just military judges
and, as a result, a declaration of constitutional invalidity will affect the “entire
[SANDF]” and “the Country”.

[44] The respondents argue that military judges do not fall within the definition of
“judicial officers” as outlined in section 174(7) of the Constitution. They point out that
the MDSMA does not categorise military judges as “judicial officers”. While military
MAJIEDT J
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courts hold jurisdiction over criminal matters, this jurisdiction does not extend to
civilians. The respondents make the point that only a Senior Military Judge can preside
over cases involving serious offenses such as murder, treason, rape, or culpable
homicide, and , even then, only if such crimes occur outside the country ’s borders.
Moreover, the respondents assert that military courts already possess sufficient judicial
independence. They refer to Potsane,13 which, they contend, suggests that the MDSMA
was established to align the country ’s military justice system with the principles of
constitutionalism.

[45] Regarding the first challenge, the respondents contend that the legislation does
not explicitly state that a board of inquiry is authorised to investigate military judges,
their rulings, or the handling of their cases. They assert that no constitutional
arrangement can achieve a total separation of powers. They cite Van Rooyen,14 where
the inclusion of members of Parliament and the Executive on the Magistrates’ Commission
was held to be acceptable.

[46] In respect of the second challenge, the respondents argue that section 15 does
not solely pertain to the assignment of military judges but applies to various categories
of military personnel. They assert that if section 15 were deemed unconstitutional, it
would impact the deployment of all types of military per sonnel. With reference to
Van Rooyen the respondents cite this Court’s decision in the First Certification judgment,15
that the appointment of Judges by the Executive, or in collaboration with Parliament,
does not undermine the impartiality and independence of the Judiciary. They emphasise
that military judges already have security of tenure. Additionally, they point out that
there are relatively few cases for military judges to handle, and permanent appointments
might hinder efforts towards transformation.

13 Potsane above n 3.
14 Van Rooyen v S (General Council of the Bar of South Africa intervening) [2002] ZACC 8; 2002 (5) SA 246
(CC); 2002 (8) BCLR 810 (CC) (Van Rooyen).
15Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of
South Africa [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC).

MAJIEDT J
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[47] Regarding the third challenge, the respondents assert that section 17 does not
specifically address the removal of “a military judge” but rather the removal of
“a person”, indicating that military judges are not strictly categorised as judicial officers
but as members of the SANDF. They point out that countries like New Zealand,
Australia, and Canada have removal provisions involving both the Legislature and
Executive. In contrast, in South Africa it is ultimately the President and the
National Assembly who remove a Judge upon the recommendation of the
Judicial Service Commission, which is a composite body.

ICJ’s submissions
[48] The ICJ makes submissions on our country’s obligations under international law
to ensure that courts and tribunals, including military courts, are competent,
independent, impartial, and afford litigants a fair and public hearing. Concerning the
importance of the country ’s international o bligations, the ICJ refers to
sections 39(1) and 233 of the Constitution.

[49] In addition, with reference to the Ministerial Task Team Report, the ICJ
emphasises the necessity for military courts to exhibit independence and impartiality in
handling cases involving sexual offences committed by members of the SANDF. The
ICJ points out that military courts have jurisdiction over all domestic sexual offences ,
except rape, and also have jurisdiction over cases of rape committed extraterritorially.
According to th e ICJ, given that SANDF members are engaged in peacekeeping
operations outside South Africa, notably in the Democratic Republic of Congo and
Mozambique, this underscores the significance of ensuring the independence and
impartiality of military courts.

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Analysis
The Ministerial Task Team Report
[50] It is convenient to commence with brief reasons why the ICJ was permitted to
introduce the Ministerial Task Team Report. In directions issued by this Court, the ICJ
was authorised to adduce that report in the following terms:

“The ICJ is granted leave to file the [Ministerial Task Team Report] of December 2020
. . . . as evidence, provided that, in regard to complaints of sexual offences or other
sexual misconduct recorded in the report, the report is admissible n ot as evidence of
the truth of the complaints but only as evidence that such complaints were made and
that they were investigated, addressed and resolved (where applicable) in the way
summarised in the report.”

[51] Thus, at a procedural level, we cannot now reject that report as inadmissible. In
any event, it is of significant relevance and assistance in determining the central issue :
the independence of military courts. In essence, the ICJ is placing reliance on the report
to show that complaints of sexual offences are widespread in the SANDF and that the
scourge of gender -based violence in the SANDF makes it all the more important that
military courts should be truly independent. Plainly, the ICJ ’s contentions pr ovide
important context in the sense of the urgent and crucial need for military courts to be
truly independent, against the backdrop of sexual offences and sexual misconduct that
are said to go largely unreported in the military out of fear of retaliation of not being
promoted to the next rank in their military career. It must also be said that t he ICJ
effectively relates the report to the impugned sections.

[52] Furthermore, the ICJ makes useful submissions on international law and
jurisprudence. The ICJ co rrectly makes the important point that international law and
standards – both binding and non -binding – are important interpretative tools in
constitutional South Africa.16 It is well -established that, when interpreting the

16 Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR
651 (CC) (Glenister II) at para 96.
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constitutional guarantee of judicial independence and the impugned provisions in this
matter, interpretation must happen within the context of the Constitution and its values
as a whole, to which international law is relevant.17 The ICJ submissions in relation to
international law and ju risprudence were based on what appeared in the report.
For these reasons, that report was allowed as evidence.

Jurisdiction and leave to appeal
[53] This matter engages both this Court ’s constitutional and general jurisdiction.
The first constitutional issue is the challenge to the constitutionality of the impugned
provisions. The second constitutional issue concerns the judicial independence of
military courts , which is constitutionally guaranteed under section 165(2) to (4) and
section 174(7), read with se ctions 1(c) and 35(3) of the Constitution. The matter also
engages this Court’s general jurisdiction, raising, as it does, arguable points of law (the
role of military courts and military judges ) of general public importance which affect
not only all SAND F members, specifically military judges who must exercise their
authority independently and subject only to the Constitution and the law, but also the
general public whom the SANDF is constitutionally enjoined to protect.

[54] Regarding the interests of justic e, it is plainly desir able that this Court should
hear this case to resolve the complex, important legal questions raised here. The issues
are novel, since this Court has not as yet considered and decided the question of the
independence of military court s and military judges. Lastly, and importantly, we are
dealing here with questions of law only and, inasmuch as factual considerations may
arise, they are mostly common cause on material aspects. There is also the mootness
aspect which loomed large in th e Supreme Court of Appeal, to the extent that it was
central to that Court’s dismissal of all three constitutional challenges.


17 Justice Alliance of South Africa v President of the Republic of South Africa [2011] ZACC 23; 2011 (5) SA 388
(CC); 2011 (10) BCLR 1017 (CC) (Justice Alliance) at para 37.
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[55] Leave to appeal must therefore be granted. It is convenient to deal first with
mootness.

Mootness
[56] The Supreme Court of Appeal was plainly wrong in its mootness findings. I
agree with the applicant that a constitutional challenge to existing and fully operational
statutory provisions can never be considered moot. Constitutional validity enquiries are
always objective.18 Here, moreover, the specific facts relating to the case fortify the
applicant’s constitutional challenge in the sense that they bear out his constitutional
invalidity complaints. The challenges brought by the applicant plainly raise an existing
or live controvers y between the parties over the constitutionality of the impugned
provisions and their proper interpretation. Any orders declaring the legislation to be
constitutionally invalid would also have an immediate practical effect or result not only
for the applicant, but also for all members of the SANDF and the broader public.

Military courts and judicial independence
[57] This discussion commences with a consideration of the question whether
military courts are “courts” within the meaning of section 166(e) of the C onstitution.
At the outset it must be said that the respondents’ submissions are, regrettably, not very
helpful. The respondents seek to persuade us that military courts are not “courts”. I
disagree – there can be little doubt that military courts fall within section 166(e).19 First,
regard must be had to what these courts do – they deal with criminal matters, follow the
procedures for criminal matters in Magistrates’ Courts and High Courts, impose
sentence after conviction, and they operate under their own rules of court.20

18 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the
Public Sector including Organs of State v Zuma [2021] ZACC 18; 2021 (5) SA 327 (CC) ; 2021 (9) BCLR 992
(CC) at para 156 and Gory v Kolver N.O. [2006] ZACC 20; 2007 (3) BCLR 249 (CC ); 2007 (4) SA 97 (CC ) at
para 39.
19 In Mbambo v Minister of Defence 2005 (2) SA 226 (T) at 230A-C the Court held that military courts are inferior
courts with a similar status as Magistrate Courts.
20 Although the United States of America has a constitution and court system that differs from ours in several
important respects, it is noteworthy that there, in Ortiz v United States 585 US 427 (Ortiz), the majority in the
Supreme Court opined that the courts-martial system “closely resembles civilian structures of justice” and that
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[58] Secondly, and importantly, one must consider section 19 of the MDSMA, read
with section 165(2) to (4) of the Constitution, which afford these courts independence
guaranteed by the Constitution and the statute. Thirdly, when persons appear in these
courts charged with offences under the Defence Act, the Code , or the MDSMA, they
must plainly fall within the category of “accused persons” with all the rights and
protections afforded to them in section 35(3) of the Constitution. Lastly, it is of some
significance that even in pre -constitutional times a court martial, the predecessor of a
military court, was regarded as a court. 21 All these factors and considerations lead to
the ineluctable conclusion that military courts are courts as envisaged by
section 166(e).22

[59] The respondents contend that military judges are not “judicial officers” within
the meaning of section 174(7) of the Constitution. They are wrong – military judges
deal with criminal matters with wide territorial jurisdiction (even beyond our borders)
and substantial sentencing competence: up to two years’ imprisonment in the case of a
court of a military judge, and anything up to life imprisonment in the case of the court
of the senior military judge.23 When one e xamines how the military courts operate,

“the judicial character and constitutional pedigree of the court -martial system enable that Court, in exercising
appellate jurisdiction, to review the decisions of the court sitting at its apex” (referring to the CAAF, the United
States Court of Appeals for the Armed Forces). The majority opinion defended the judicial nature of the military
courts by citing examples where the military system is similar to civilian justice, that is, due process protections,
an appellate review system, a stable body of case law and the res judicata (a matter judged) effects of its decisions.
Ortiz is useful insofar as it acknowledges that even in the U nited States, there is a recent tendency to wards
harmonization between the standards that apply to military and civilian courts rather than an attempt to preserve
their sui generis (of their own kind) nature.
21 Council of Review South African Defence Force v Monnig [1992] ZASCA 64; [1992] 4 All SA 691 (A). See
also Freedom of Expression Institute above n 1.
22 Recently, at their meeting during November 2022, Commonwealth Law Ministers mandated the
Commonwealth Secretariat to produce Commonwealth Military Justice Principles. These principles record,
amongst others, that there is a need to “ensure that military courts, when they exist, are part of a state’s general
judicial system under the authority of the constitution or statute, respecting the principle of separation of powers
and reflecting the rule of law and the obligations of international law” (Article 1(a)).
23 The court of a senior military judge may try a member of the SANDF for any offence committed in South Africa
other than murder, treason, rape or compelled rape (as contemplated in section 3 or 4 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007) or culpable homicide. Such a court may try a member
for the latter serious crimes if they were committed extraterritorially. The effect of section 12(1) of the MDSMA
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28
their rules and powers, and the ultimate effect of their orders, the inescapable conclusion
is that military judges are indeed judicial officers. Furthermore, as required by
section 174(7) of the Constitution, mili tary judges are appointed in terms of an Act of
Parliament, namely, the MDSMA. There can therefore be little doubt that
military judges qualify as “judicial officers” under section 174(7).

[60] Flowing from these conclusions that military courts fall within t he ambit of
section 166(e), and that military judges are judicial officers, the requirement of
independence is stark. It bears repetition that the court of a military judge and the court
of a senior military judge have wide criminal jurisdiction to try members of the SANDF
for serious offences committed under the Code, the common law , and statute.24 They
also have the power to impose substantial sentences of imprisonment for these
offences.25 They wield exceptional, extraterritorial powers that are not available to
ordinary criminal courts. Military courts are the only criminal courts in South Africa
that have jurisdiction over serious crimes – including murder, rape, and other sexual
offences – committed by members of the SANDF beyond South Africa’s borders. They
may also sit anywhere in the world.26

[61] Reference has already been made to sections 166(e), 165(2) to (4), and 174(7) of
the Constitution. 27 These provisions guarantee the independence of military courts.
Furthermore, judicial independence is a n essential component of the right to a f air
trial.28 Members of the SANDF who are on trial in military courts are accused persons
under section 35(3) of the Constitution with all the rights that flow from that, including

is that the court of a senior military judge may impose any competent sentence that an ordinary court could impose
for the same crime.
24 Sections 9 and 10 of the MDSMA.
25 Sections 9 and 10 of the MDSMA. The Court of a Senior Military Judge may impose any unlimited sentence
of imprisonment. The Court of a Military Judge may impose imprisonment for up to two years.
26 Id read with section 5 of the MDSMA.
27 Above, in [6] and [7].
28 Van Rooyen above n 14 at para 35.
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29
the right to a fair, public trial in an ordinary court. 29 This Court held in Potsane that
without essential safeguards of independence, military courts canno t qualify as
“ordinary courts”.30 Judicial independence is foundational to, and indispensable for ,
the rule of law as guaranteed under section 1(c) of the Constitution.31 The principle of
judicial independence is fundamental to the ethos of the Constitution , and it is not
subject to any limitation.32

[62] The principle of the independence of military courts enunciated in section 19 of
the MDSMA has been highlighted.33 All military judges are required to swear an oath
or affirmation in terms of section 18 of the MDSMA, read with rule 83 of the
MDSMA Rules.34 There are thus intended to be guarantees of the independence of
military courts, b oth in the Constitution and statute. What bears consideration is
whether these guarantees in the legislation do in fact exist in relation to military courts.

[63] Notionally, independence consists of both subjective and institutional (or
structural) independence. As was pointed out in Sonke, “this distinction has been most
clearly expressed in relation to the independence of individual judges and the

29 Section 35(3)(c) of the Constitution.
30 Potsane above n 3 at para 10.
31 De Lange v Smuts N.O. [1998] ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) ( De Lange) at
para 59.
32 Van Rooyen above n 14 at para 10:
“[I]t must be kept in mind that judicial impartiality and the application without fear, favour or
prejudice by the courts of the Constitution and all law, as postulated by section 165(2) of the
Constitution, are inherent in an accused ’s right to a fair trial under section 35(3) of the
Constitution. One of the main goals of inst itutional judicial independence is to safeguard such
rights. However, institutional judicial independence itself is a constitutional principle and norm
that goes beyond and lies outside the Bill of Rights. The provisions of section 36 of the
Constitution dealing with the limitation to rights entrenched in the Bill of Rights are accordingly
not applicable to it. Judicial independence is not subject to limitation.”
33 Above in [13].
34 The oath or affirmation reads:
“I will be faithful to the Republic of South Africa, will uphold and protect the Constitution and
the human rights entrenched in it, and will administer justice to all persons alike without fear,
favour or prejudice, in accordance with the Constitution and the law of the Republic of
South Africa, and will perform my duties to the best of my ability. So help me God .”
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independence o f the courts as institutions ”.35 In that regard, this Court cited
Van Rooyen, where it had highlighted the distinction between individual and
institutional independence. 36 It was described thus in Van Rooyen:

“This requires judicial officers to act indep endently and impartially in dealing with
cases that come before them, and at an institutional level it requires structures to protect
courts and judicial officers against external interference.”37

[64] In Van Rooyen this Court relied on the minority judgment of O’Regan J in
De Lange, who cited the following passage from Valente38 with approval:

“It is generally agreed that judicial independence involves both individual and
institutional relationships: the individual independence of a judge, as reflected in such
matters as security of tenure, and the institutional independence of the court or tribunal
over which he or she presides, as reflected in its institutional or administrative
relationships to the Executive and Legislative branches of government. . . . . Th e
relationship between these two aspects of judicial independence is that an individual
judge may enjoy the essential conditions of judicial independence but if the court or
tribunal over which he or she presides is not independent of the other branches of
government, in what is essential to its function, he or she cannot be said to be an
independent tribunal.”39

[65] This Court in McBride acknowledged the challenge of “ attempt[ing] to define
the precise contours of a concept as elastic as [independence]”. 40 Subjective
independence is generally understood to entail an impartial state of mind. 41 In this

35 Sonke Gender Justice NPC v President of the Republic of South Africa [2020] ZACC 26; 2021 (3) BCLR 269
(CC) (Sonke) at para 72.
36 Van Rooyen above n 14.
37 Id at para 19.
38 Valente v The Queen [1985] 2 SCR 673; (1986) 24 DLR (4th) 161 (SCC) (Valente).
39 Id at para 171 as cited in the minority judgment of O’Regan J in De Lange above n 31 at para 159.
40 McBride v Minister of Police (Helen Suzman Foundation as amicus curiae) [2016] ZACC 30; 2016 (2) SACR
585 (CC); 2016 (11) BCLR 1398 (CC) (McBride) at para 31.
41 De Lange above n 31 at para 71 citing Le Dain J in Valente above n 38 at 169-170.685(g).
MAJIEDT J
31
matter, we are primarily concerned with institutional independence. The test for
institutional independence is objective – whether a court “from the objective standpoint
of a reasonable and informed person, will be perceived as enjoying the essential
conditions of independence”.42

[66] Institutional independence has to do with the way in which the institution is
structured. This Court has pointed out that institutional and operational independence
are often discussed alongside each other as they are closely linked. 43 In Glenister II,
this Court noted that the question is not whether an institution has “absolute or complete
independence”, but whether it enjo ys “sufficient structural and operational autonomy
so as to shield it from undue political influence”. 44 Testing the independence of a
structure does not require actual evidence of violations or undue influence – the real
possibility of it occurring is sufficient.45

[67] There are core requirements (referred to in Van Rooyen as “essential conditions”46) for
institutional independence. These include: freedom from any outside interference
(especially from the Executive), security of tenure, and non -renewable terms .47 In
De Lange, this Court cited three seminal Canadian cases – Beauregard,48 Valente,49 and
Généreux50 – regarding what constitutes an independent and impartial court. Reliance
was placed in particular on Beauregard, where Dickson CJ stated:


42 Van Rooyen above n 14 at para 32 citing R v Généreux [1992] 1 SCR 259 ; (1992) 88 DLR (4th) 110 (SCC )
(Généreux) at 433E–G.
43 Sonke above n 35 at para 76.
44 Glenister II above n 16 at paras 121 and 125. See also McBride above n 42 at paras 32-3.
45 Sonke above n 35 at para 76.
46 Van Rooyen above n 14 at paras 32-5.
47 Id at para 29 and Justice Alliance above n 17 at para 73.
48 The Queen in Right of Canada v Beauregard [1986] 2 SCR 56; (1986) 30 DLR (4th) 481 (SCC) (Beauregard).
49 Valente above n 38.
50 Généreux above n 42.
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32
“Historically, the generally accepted core of the principle of judicial independence has
been the complete liberty of individual judges to hear and decide the cases that come
before them; no outsider, be it government, pressure group, individual or even another
judge: should interfere in fact, or attempt to interfere, with the way in which a judge
conducts his or her case and makes his or her decision. This core continues to be central
to the principle of judicial independence.”51

[68] In Généreux the Canadian S upreme Court held that the military status of
military judges does not violate the provisions of section 11(d) of the Canadian Charter
of Rights and Freedoms (Canadian Charter).52 It was acknowledged in Généreux that
the place of military judges in the mil itary hierarchy detracts from absolute judicial
independence, but it also confirmed that section 11(d) does not require absolute
judicial independence, or a sort of truly independent military judiciary that could only
be assured by civilian judges. Absolute independence is not the constitutional standard
endorsed in the Canadian Supreme Court’s jurisprudence. Généreux is authority for the
proposition that, whatever concerns might arise as a result of Parliament’s choice to
require that military judges be military officers, that model is not inherently
unconstitutional under section 11(d).

[69] An assessment of whether a particular court has the institutional protection that
it requires to function independently and impartially will consider the core protection
given to all courts by our Constitution, to the particular functions that such court
performs, and to its place in the court hierarchy. 53 Recently in Makana this Court
confirmed that “[e]ven within the judicial hierarchy, there are degrees of
independence”.54


51 Beauregard above n 48 at 491.
52 Canadian Charter of Rights and Freedoms , section 11, Part I of the Constitution Act 1982, being Schedule B
to the Canada Act 1982.
53 Van Rooyen above n 14 at para 23.
54 Makana People’s Centre v Minister of Health [2023] ZACC 15; 2023 (5) SA 1 (CC); 2023 (8) BCLR 963 (CC)
at para 169.
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[70] Crucially important in an assessment whether independence in fact exists is the
perception of independence as adumbrated by this Court in Van Rooyen where reliance
was placed on the following dictum (pronouncement) of Le Dain J in Valente:

“Both independence and impartiality are fundamental not only to the capacity to do
justice in a particular case but also to individual and public confidence in the
administration of justice. Without that confidence the system cannot command the
respect and acceptan ce that are essential to its effective operation. It is, therefore,
important that a tribunal should be perceived as independent, as well as impartial, and
that the test for independence should include that perception.”55

[71] In Glenister II, this Court said:

“[I]f Parliament fails to create an institution that appears from the reasonable
standpoint of the public to be independent , it has failed to meet one of the objective
benchmarks for independence. This is because public confidence that an institution is
independent is a component of, or is constitutive of, its independence . . . . Whether a
reasonably informed and reasonable member of the public will have confidence in an
entity’s autonomy-protecting features is important to determining whether it has the
requisite degree of independence.”56 (Emphasis added).

[72] Before considering South Africa’s international obligations, it is instructive to
have regard to the position in Canada, New Zealand and the United Kingdom. In 2011,
following Leblanc,57 the Canadian Parliament amended Canada’s National Defence
Act58 to provide that military judges are now appointed until a maximum retirement age
of 60, or until their release from the Canadian Forces, and may only be removed for
cause. These amendments were introduced by the Security of Tenure of
Military Judges Act 2011.


55 Van Rooyen above n 14 at para 32 citing Valente above n 38 at 172.
56 Glenister II above n 16 at para 207.
57 Leblanc v The Queen 2011 CMAC 2 (Le Blanc).
58 R.S.C. 1985.
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[73] In Leblanc, the appellant had been tried and convicted of having ne gligently
performed a military duty. The appellant then challenged the legality of the guilty
verdict and the constitutionality of the relevant statutory provisions. The
Canadian Military Appeal Court upheld the challenge to the renewable appointment of
military judges. That Court held that the appointment of military judges on five -year
renewable terms was in breach of section 11(d) of the Canadian Charter, which gives
an accused the right to a hearing before an independent and impartial tribunal.

[74] The following passages in Leblanc bear directly on the central issues in this case
as far as renewable terms of military judges are concerned:

“It seems inconceivable to me, and I say this with all due respect for the contrary view,
that military judges, who exercise the same functions and have essentially the same
powers as superior and provincial courts of criminal jurisdiction, should be subject to
the whims, the unknowns, the uncertainty and anxiety of having their positions come
up for renewal every five years. In fact, they are the only judges with such jurisdiction
to be subject to short, renewable terms of employment.
. . .
Judicial independence is ‘for the benefit of the judged’: . . . . It is important for the
accused person that the judge not be, a nd not appear to be, beholden to these five
members of the chain of command, that his or her security of tenure is not subject to
reappointment and that his or her institutional independence provides the accused with
the assurance of a fair and equitable trial.”59 (Emphasis added).

[75] Recently, the Canadian Supreme Court in Edwards60 had to consider an appeal
from the Court Martial Appeal Court of Canada. The central issue in the case was
whether the military status of military judges violates the constitutio nal guarantee of
judicial independence and impartiality to which persons tried before courts martial are
entitled. The nine accused were members of the Canadian Armed Forces who were
charged with service offences under Canada’s Code of Service Discipline (CSD),

59 Id at paras 47 and 52.
60 R v Edwards 2024 SCC 15 (Edwards).
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which forms Part III of their National Defence Act, and were brought before courts
martial. Under the CSD, members of the Canadian Armed Forces may be charged with
service offences, which are serious and encompass offences specific to military
personnel, and offences under Canada’s Criminal Code or other Acts of Parliament.
Service offences are tried before a court martial, which is a military court that has the
same powers, rights, and privileges as a superior court of criminal jurisdiction.
Courts martial are presided over by military judges.

[76] The nine accused challenged the statutory requirement that the military judges
presiding over their courts martial be military officers, alleging that it violates their right
to a hearing by an independent and impartial tribunal under section 11(d) of the
Canadian Charter. In the courts martial, which were held separately, some of the
military judges held that they lacked judicial independence by reason of their dual status
of judge and officer, and therefo re that the respective accused’s section 11(d) rights
were infringed. On appeal to it, the Court Martial Appeal Court held that an informed
person, viewing the matter realistically and practically and having thought the matter
through, would conclude that military judges meet the minimum constitutional norms
of impartiality and independence even though they are military officers, and therefore
that the accused’s section 11(d) rights were not infringed.

[77] The majority in the Canadian Supreme Court upheld the decision of the
Court Martial Appeal Court. The Supreme Court held that the status of military judges
as officers under the National Defence Act is not incompatible with their judicial
functions for the purposes of section 11(d) of the Canadian Charter. Accused members
of the Canadian Armed Forces who appear before military judges are entitled to the
same guarantee of judicial independence and impartiality under section 11(d) as
accused persons who appear before civilian criminal courts, but this does no t require
that the two systems be identical in every respect.

[78] The Court held further that, as presently configured in the National Defence Act,
Canada’s system of military justice fully ensures judicial independence for
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military judges in a way that takes account of the military context, and specifically of
the legislative policies of maintaining discipline, efficiency and morale in the
Armed Forces and public trust in a disciplined military. Accordingly, the requirement
that military judges be officers p ursuant to sections 165.21 and 165.24(2) of the
National Defence Act does not infringe section 11(d) of the Canadian Charter.

[79] The majority in the Supreme Court confirmed its earlier decision in Généreux
where the Court had held that the military status of military judges does not violate the
provisions of section 11(d). The Court held that there was no reason to depart from the
settled precedent enunciated in Généreux. The Court also referred to the three essential
requirements for judicial independence enunciated in the leading decision of Valente.61
It held that those “three essential conditions of judicial independence for military judges
are met through the provisions of the [National Defence Act]”.62 In respect of security
of tenure, the Court held that the National Defence Act provides that military judges are
appointed by the Governor in Council and that, unless they are removed for cause, they
hold office until they are voluntarily released from the military or resign from the
position of military judge, or until they reach the age of 60. Military judges can only
be removed from office by the Governor in Council, for cause, upon a recommendation
of their judicial peers properly convened as the Military Judges Inquiry Committee
(MJIC).

[80] Regarding th e second requirement of financial security, the
Canadian Supreme Court held that it is amply met, as military judges have their own
remuneration scheme and their compensation is fixed through a process that centres on
an independent committee. In respect of the third requirement, military judges,
including the Chief Military Judge, are responsible for the decisions that must be left to
military judges in order for there to be sufficient administrative independence, such as
assigning military judges to preside at courts martial and establishing procedural rules.

61 Edwards above n 60 at paras 27, 40 and 47 citing Valente above n 38 at 673.
62 Edwards above n 60 citing Généreux above n 42 at 259.
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These matters are insulated from non -judicial interference by the chain of command.
The majority thus concluded that the Court Martial Appeal Court was correct in holding
that the appellants’ section 11(d) rights were not infringed.

[81] In New Zealand, the Court Martial Act of 2007, particularly sections 16 and 19,
introduced sweeping reforms, abolishing ad hoc courts and creating a permanent court
martial, comprising judges with secure, non -renewable tenure. Judges are now
appointed until reaching the age of 70 and may only be removed for cause or by
resignation. Renewable terms have been abolished.

[82] Under the United Kingdom Armed Forces Act, both the Judge Advocate General and
judge advocates are appointed on non -renewable terms, until retirement. That Act
provides that judge advocates (the equivalent of military judges) including the
Judge Advocate General, temporary assistants to the Judge Advocate General, and
puisne judges (ordinary or lower ranking judges) of the High Court in England and
Wales, following a request by the Judge Advocate General, are nominated by or on
behalf of the Lord Chief Justice of England and Wales to sit as judge advocates.63 Both
the Judge Advocate General and judge advocates are drawn from the general Judiciary.
They have security of tenure and are appointed on non -renewable terms, until
retirement.

[83] The resp ondents’ reliance on the renewability of terms of military judges in
Australia and the United States of America is misplaced. In Australia, courts martial
are not considered to be “courts” and are excluded from constitutional guarantees of
judicial indepe ndence.64 This peculiarity of Australian constitutional law led to
legislative reforms to the Australian military justice system, introduced in 2006,65 being

63 Section 362 of the United Kingdom’s Armed Forces Act of 2006.
64 Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518.
65 Defence Legislation Amendment Act 2006 (Cth).
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struck down by the High Court of Australia on the grounds that military courts could
not be given “judicial powers of the Commonwealth”.66

[84] In the United States, the Supreme Court in Weiss67 upheld the renewable
appointment of military judges due to historical peculiarities of the constitutional text
and context. Article 1, Section 8, Clause 14 of the US Constitution grants to Congress
the power to “ make rules for the Government and Regulation of the land and naval
Forces.” Exercising this authority, Congress enacted the Uniform Code of
Military Justice (Uniform Code). In Weiss, the US Supreme Court rea soned that
because of these wide constitutional powers, judicial deference is “at its apogee when
reviewing congressional decision making in this area” 68 and that only “extraordinarily
weighty”69 considerations would overcome the balance struck by Congress, which, in
enacting the Uniform Code, had not specified fixed terms. It would be fallacious to
apply this sort of reasoning to the South African context. Here, we have strong
constitutionally entrenched guarantees of judicial independence for all courts, without
exception. The United States is therefore an improper comparator.

International obligations
[85] International law imposes obligations on South Africa in the international
sphere.70 This Court stated in Law Society that international law “ enjoy[s]
well-deserved prominence in the architecture of [ South Africa’s] constitutional
order”.71 Our Constitution requires that we must have regard to international law.
Section 39(1)(b) enjoins a Court when interpreting the Bill of Rights to consider

66 Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230.
67 Weiss v United States 510 US 163 (1994).
68 Id at 177 citing Rostker v Goldberg 453 US 57, 67 (1981) at 70.
69 Id at 179.
70 Glenister II above n 16 paras 90-1.
71 Law Society of South Africa v President of the Republic of South Africa [2018] ZACC 51; 2019 (3) SA 30 (CC);
2019 (3) BCLR 329 (CC) at para 4.
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international law.72 Section 231 sets out the status of international agreements. 73 And
section 233 states that, when interpreting legislation, a Court must prefer any reasonable
interpretation of legislation that is consistent with international law over an alternative,
inconsistent, interpretation.74

[86] The interpretation of the constitutional guarantee of independence and the
impugned provisions in this matter must be considered within the context of the
Constitution and its values as a whole, to which “ international law is relevant”. 75 In
Justice Alliance, this Court recognised the importance of international law in relation to
judicial independence, noting that judicial independence in democracies is recognised
internationally and that “ the international c ommunity [including South Africa] has
subscribed to basic principles of judicial independence through a number of
international legal instruments”.76


72 Section 39(1)(b) provides:
“(1) When interpreting the Bill of Rights, a court, tribunal or forum—
. . .
(b) must consider international law.”
73 Section 231 headed “International agreements” reads:
“(1) The negotiating and signing of all international agreements is the responsibility of the
national executive.
(2) An international agreement binds the Republic only after it has been approved by
resolution in both the National Assembly and the National Council of Provinces,
unless it is an agreement referred to in subsection (3).
(3) An international agreement of a technical, administrative or executive nature, or an
agreement which does not require either ratification or accession, entered into by the
national executive, binds the Republic without approval by the National Assembly and
the National Council of Provinces, but must be tabled in the Assembly and the Council
within a reasonable time.
(4) Any international agreement becomes law in the Republic when it is enacted into law
by national legislation; but a self -executing provision of an agre ement that has been
approved by Parliament is law in the Republic unless it is inconsistent with the
Constitution or an Act of Parliament.
(5) The Republic is bound by international agreements which were binding on the
Republic when this Constitution took effect.”
74 Glenister II above n 16 at para 179.
75 Justice Alliance above n 17 at para 37.
76 Id at para 38.
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[87] Our international law obligations inform the internationally accepted standard of
judicial independence. That is the standard by which we ought to assess the guarantee
of judicial independence provided for in the Constitution, which includes that such a
guarantee must be afforded to military courts. Judicial independence in section 165 of
the Constitution mu st be contextually interpreted in light of the rights in the
Bill of Rights, including the fair trial rights under section 35(3), of which judicial
independence is an essential component; the rule of law in section 1(c) of
the Constitution; and the obligat ion on the State in section 7(2) to promote, protect,
fulfil and respect the rights in the Bill of Rights, which obliges the State to ensure that
the military courts which hear, amongst others, cases of sexual violence, including
assault and rape, are adeq uately independent. 77 Furthermore, our international law
obligations must inform this Court’s interpretation of the impugned provisions.78

[88] International and regional instruments recognise that these core protections for
independence must extend to all cour ts, including military courts. 79 According to the
African Commission on Human and People’s Rights (African Commission), “military
tribunals must be subject to the same requirements of fairness, openness, and justice,
independence, and due process as any ot her process ”.80 This is echoed in the
“Decaux Principles”81 on the administration of justice in military courts, which have
been cited with approval by the European Court of Human Rights. Principle 13, headed
“Right to a competent, independent and impartial tribunal”, specifically emphasises that
the “independence of judges vis-à-vis the military hierarchy must be strictly protected,

77 In this regard, the Ministerial Task Team Report provides useful insight. See [50] above.
78 Section 233 of the Constitution requires a court to prefer an interpretation that aligns with international law
standards, rather than that which is inconsistent with such standards. See also Glenister II above n 16 at para 179.
79 See, among others, Tshivhase “Military Courts in a Democratic South Africa: In Search of their Judicial
Independence” (PhD Thesis, UCT 2012) chapter 5.
80 Civil Liberties Organisation v Nigeria (Communication 218/98) [2001] ACHPR 30; (2001) AHRLR 75
(ACHPR 2001) at para 44.
81 Draft Principles Governing the Administration of Justice Through Military Tribunals (2006)
(Decaux Principles), UN Doc. E/CN.4/2006/58 at 4.
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avoiding any direct or indirect subordination, whether in the organization and operation
of the system of justice itself or in terms of career development for military judges”.

[89] South Africa’s binding primary international treaty obligations pertaining to
judicial independence are set out in the International Covenant on Civil and
Political Rights82 (ICCPR) and the African Charter on Human and People’s Rights83
(African Charter), both of which contain guarantees of judicial independence and
impartiality. Furthermore, there are the UN Basic Principles84 and the
Bangalore Principles of Judicial Conduct (Bangalore Principles) that be ar
consideration.85

The ICCPR
[90] Article 26 of the ICCPR guarantees equality before the law and equal protection
of the law. Article 14(1) requires that, in the determination of any criminal charge or
of rights and obligations in a suit of law, every person shall “be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established by law”.
That Article has been interpreted by the UN Human Rights Committee in

82 International Covenant on Civil and Political Rights , 16 December 1966. South Africa signed the ICCPR on
3 October 1994 and ratified it on 10 December 1998.
83 African Charter on Human and Peoples’ Rights, 27 June 1981. South Africa acceded to the African Charter on
9 July 1996.
84 Basic Principles on the Independence of the Judiciary (1985) (UN Basic Principles), endorsed by United
Nations General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
85 Bangalore Principles of Judicial Conduct (2002) (Bangalore Principles), endorsed by the Economic and Social
Council in resolution ECOSOC 2006/23. Although non -binding, it bears reference that the Commonwealth
Military Justice Principles (see above n 23) in Article 2 seek to—
“[e]nsure that proceedings in military courts are presided over by independent, impartial and
legally qualified judges who have security of tenure and are free from:
(a) command interference;
(b) executive or political influence or interference;
(c) improper career consequences;
(d) perceived or actual bias; and
(e) personal interest in the proceeding.”
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General Comment No.32.86 The Committee’s conclusions were: first, the provisions of
Article 14 apply to all courts and tribunals within the scope of the article, whether
ordinary or specialised, civilian or military. Trials conducted in military courts must be
“in full conformity with the requirements of Article 14 and its guarantees cannot be
limited or modified because of the military or special character of the court
concerned.”87

[91] Second, the requirement of competence, independence and impartiality of a
tribunal is absolute and not subject to any exception. 88 Independence refers, amongst
others, to “ guarantees relating to security of tenure ” and “ the actual independence of
the judiciary from political interference by the Executive branch and Legislature ”.89
States should take specific measures to guarantee independence, including the adoption
of laws establishing clear and objective criteria for the “ appointment, remuneration,
tenure, promotion, suspension and dismissal of the members of the judiciary and
disciplinary sanctions taken against them.”90 A situation where the Executive is able to
control or direct judicial functions is not compatible with the notion of an independent
tribunal.91

[92] Third, Article 14(1) in relation to a fair hearing by a tribunal refers to a hearing
by a “body, regardless of its denomination, that is established by law, is independent of
the Executive and legislative branches of government or enjoys in specific cases judicial
independence in deciding legal matters in proceedings that are judicial in nature”.92


86 United Nations Human Rights Committee, General Comment No.32 on Article 14: Right to equalit y before
courts and tribunals and to fair trial, UN Doc CCPR/C/GC/32, 23 August 2007 (General Comment No.32).
87 Id at para 22.
88 Id at para 19.
89 Id.
90 Id.
91 Id.
92 Id at para 18.
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[93] Fourth, to ensure independence, jud ges may only be dismissed on serious
grounds of misconduct or incompetence. The “dismissal of judges by the Executive,
without any specific reasons given to them and without effective judicial protection
being available to contest the dismissal, is incomp atible with the independence of the
judiciary”.93 Finally, the requirement of impartiality is twofold: the first is subjective –
the judges themselves must not allow their judgements to be influenced – and the second
is objective – “the tribunal must appear to a reasonable observer to be impartial”.94 This
requirement is the individual (subjective) and institutional (or structural) independence
alluded to earlier.

The African Charter
[94] Article 7 of the African Charter provides that every person shall have th e right
to have his cause heard. This consists, amongst others, of the right to be tried “ by an
impartial court or tribunal ”,95 which encompasses the principle of independence. The
requirement of an independent and impartial tribunal in Article 7 extends to military
tribunals.96

[95] Article 26 of the African Charter provides that State parties shall have the duty
to guarantee the independence of the Courts. This requires states to guarantee the

93 Id at para 20. See Pastukhov v Belarus (Communication 814/1998) UN Doc CCPR/C/78/D/814/1998
(UN Human Rights Committee 2003) at para 7.3, where the dismissal of a judge prior to the expiry of the term
for which he had been appointed, and in circumstances where no effective judicial protections were available to
him to contes t his dismissal by the executive, was said to constitute “an attack on the independence of the
judiciary”.
94 General Comment No.32 above n 86 at para 21.
95 Article 7(1)(d) of the African Charter above n 83.
96 See Civil Liberties Organisation v Nigeria above n 80 at para 44 where the African Commission emphasised
that “a military tribunal per se is not offensive to the rights in the Charter. We make the point that military
tribunals must be subject to the same requirements of fairness, openness, justice , independence, and due process
as any other process”. See also: Wetsh’Okonda Koso v Democratic Republic of the Congo [2008] ACHPR 94 ;
(2008) AHRLR 93 (ACHPR 2008) (Koso) at para 77.
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independence of the courts and national institutions established for the promotion of
African Charter rights.97

[96] In Constitutional Rights Project v Nigeria ,98 the African Commission held that
where a military tribunal is composed of persons belonging largely to the Executive
branch of government, it cannot be said to be impartial. Regardless of the character of
the individual members, “its composition alone creates the appearance, if not actual, of
lack of impartiality. It thus violates Article 7(1)(d).”99 The right to an impartial
tribunal, therefore, requires the absence of bias, actual or perceived.100

[97] The African Commission has, in the Principles and Guidelines on the Right to a
Fair Trial and Legal Assistance in Africa 101 (African Principles), set out relevant
principles to give content to Articles 7 and 26 of the African Charter. Principle 1 of the
African Principles reiterates that “[i]n the determination of any criminal charge against
a person, or of a person’s rights and obligations, everyone shall be entitled to a fair and
public hearing by a legally constituted competent, independent and impartial judicial
body”. Principle 4 gives content to the concept of an independent tribunal.102

97 Civil Liberties Organization v Nigeria (Communication 129/94) (2000) AHRLR 188 (ACHPR 1995) where the
Commission held that this provision “speaks of the institutions which are essential to give meaning and content
to the right”. It held further that this “clearly envisions the protection of the courts”.
98 Constitutional Rights Project in re: Lekwot and Others v Nigeria (Communication 87/93) [1995] ACHPR 6 (22
March 1995); (2000) AHRLR 183 (ACHPR 1995) (Lekwot).
99 Id at para 14.
100 Naluwairo “Improving the administration of justice by military courts in Africa: An appraisal of the
jurisprudence of the African Commission on Human and Peoples’ Rights” (2019) 19 African Human Rights Law
Journal 43-61.
101 African Commission on Human and People’s Rights, Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa (2003) (African Principles).
102 In this regard the African Principles above n 101 recommends:
“(a) The independence of judicial bodies and judicial officers must be guaranteed in a
country’s constitution and laws.
(b) A military tribunal that does not use the duly established procedure of the legal process
may not displace the jurisdiction of ordinary judicial bodies.
(c) Decisions by judicial bodies should not be subject to revision except through judicial
review.
(d) All judicial bodies shall be independent from the executive branch and any method of
judicial selection shall safeguard the independence and impartiality of the judiciary.
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[98] Principle 5 addresses the concept of an impartial tri bunal and emphasises that
judicial officers “shall decide matters before them without any restrictions, improper
influence, inducements, pressure, threats or interference, direct or indirect, from any
quarter or for any reason”.

The United Nations’ Basic Principles on the Independence of the Judiciary
[99] The UN Basic Principles, which were endorsed by consensus by the
UN General Assembly, reiterate the established guarantees of judicial independence,
including security of tenure; appropriate safeguards for the appointment and removal of
judicial officers; dismissal only on just cause; the finality of judicial decisions (save for
further judicial review); and the ability of judicial officers to make decisions without
improper influence from any quarter.103

The establishment of an independent body for the process of judicial appointments is
encouraged.
(e) Judicial independence includes security of tenure for judges or members of judicial
bodies and judges should not be appointed under fixed-term contracts.
(f) The removal or suspension of judges should only be on account of gross misconduct
incompatible with judicial office, or for mental incapacity.
(g) Judicial officers facing disciplinary, suspension or removal proceedings shall be
entitled to guarantees of a fair hearing, including legal representation, and to an
independent review of decisions of disciplinary, suspension or removal hearings. The
procedures for the discipline of judicial officers shall be prescribed by law.”
103 Of relevance for present purposes are these principles from the UN Basic Principles above n 84:
“(a) Judicial independence shall be guaranteed by the state and enshrined in the country ’s
constitution or laws.
(b) All governmental and other institutions have the obligation to respect the independence
of the judiciary.
(c) Judicial decisions should be made without improper influences, pressures, threats or
interference and they shall not be subject to revision, save through judicial review.
(d) Everyone has the right to be tried by courts or tribunals using established procedures.
(e) Ordinary courts or judicial tribunals shall therefore not be displaced by bodies which
do not use duly established legal procedures.
(f) Any method of judicial selection shall safeguard against judicial appointments for
improper motives.
(g) The term of judges, their independence, security and conditions of service shall be
adequately secured by law.
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Bangalore Principles of Judicial Conduct
[100] The Bangalore Principles were adopted at the Round Table Meeting of
Chief Justices held in The Hague on 25 and 26 November 2002.104 Our courts have
cited these Principles and they are seen as a benchmark for judicial independence in our
law.105 The Bangalore Principles lay particular emphasis on judicial independence and
require that the exercise of the judicial function is free of any extraneous influences,
inducements, pressures, threats or interference, direct or indirec t, from any quarter or
for any reason. It also requires that judges are free from influence by the Executive and
Legislative branches of government and “must also appear to a reasonable observer to
be free therefrom”.106

[101] The Commentary on the Bangalore Principles notes the following in respect of
judicial independence. Judicial independence refers to both the individual and the
institutional independence required for decision -making. To establish whether the
Judiciary can be considered independent of the other branches of government, regard is
usually had to, among others: the manner of appointment of members, their term of
office, their conditions of service, the existence of guarantees against outside pressures,
and the question whether the court present s an appearance of independence. Judges
must not be perceived to be subject to improper external influence. Lastly, judges

(h) Judges shall have guaranteed tenure and they shall be subject to suspension or removal
only for reasons of incapacity or behaviour that renders them unfit to discharge their
duties.
(i) A charge or complaint made against a judge in their judicial and professional capacity
shall be processed expeditiously and fairly under an appropriate procedure.
(j) The judge shall have the right to a fair hearing.
(k) All disciplinary, suspension or removal proceedings shall be determined in accordance
with established standards of judicial conduct.”
104 Section 1.1 of Bangalore Principles above n 85.
105 See, among others, Hlophe v Judicial Service Commission [2022] ZAGPJHC 276; [2022] 3 All SA 87 (GJ) at
paras 125-6.
106 Bangalore Principles above n 85 at Value 1 para 1.3.
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should be answerable for their decisions regarding the merits of a case solely by way of
judicial review or appeal.107

[102] For present p urposes, the second important principle under the
Bangalore Principles is that of impartiality. Judges must perform their judicial duties
without favour, bias or prejudice. A judge who is not independent (on an institutional
basis) cannot be impartial, and impartiality must exist both in fact and perception. The
latter is measured by the standard of a reasonable observer.

Summary and conclusions on international obligations
[103] To sum up:
(a) South Africa has binding international obligations to ensure that leg al
proceedings are conducted before a competent, independent and impartial
judicial body, and—
(i) where such body is a military court, the same principles of
competence, independence, and impartiality ought to apply; and
(ii) independent and impartial tribunals require, among others:
(aa) security of tenure for judicial officers;
(bb) procedures for the appointment and removal of judges that
safeguard independence;
(cc) removal of judges only on just cause;
(dd) fair trial rights afforded to judges being disciplined or
removed;
(ee) actual independence from the Executive;
(ff) the ability of the judicial officer to make decisions without
improper influence, inducements, pressure, threats or
interference; and

107 Commentary on the Bangalore Principles of Judicial Conduct (Bangalore Commentary) (2007).
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(gg) objective impartiality.
(b) South Africa has further committed to the principle of judicia l
independence by agreeing to adhere to principles set out by international
bodies. These include the principles set out by the Africa Commission in
the African Principles and by the Human Rights Committee in
General Comment No.32, set out earlier.

[104] The i nescapable conclusions to be drawn from international law and
jurisprudence are these: the guarantee of judicial independence ought also to be afforded
to military courts. This is particularly so where the military courts have jurisdiction
over criminal cases, including cases such as rape and sexual assault. These courts must
be given the same independence guarantees as ordinary courts determining such
matters.108 The internationally accepted standard of independence that must be afforded
to these courts requires independence in relation to the Executive, 109 and in relation to
the military hierarchy. 110 There must be safeguards against actual and perceived
partiality,111 and in the appointment of military judges.112 Security of tenure is key, and
this excludes fixed-term contracts.113

[105] There must be clear protection against external pressures and an ability to decide
matters without any restrictions, improper influence, inducements, pressure, threats or

108 Article 7(d) read with Article 26 of the African Charter above n 83.
109 Article 7(d) of the African Charter above n 83, as interpreted by Principle 4(g) of the Afric an Principles
above n 101.
110 Principle 13 of the Decaux Principles above n 81 and Bangalore Commentary above n 107 at para 38.
111 Article 7(d) of the African Charter above n 83, as applied in Lekwot above n 98 and Koso above n 96; Article 14
of the ICCPR above n 82, as interpreted in General Comment No.32 above n 86 at para 21; Bangalore Principles
above n 85 Value 1 at para 1.3; Bangalore Principles above n 85 Value 2 at para 2.1; and Bangalore Commentary
above n 107 at paras 51-2.
112 Article 7(d) of the African Charter above n 83, as interpreted by Principle 4(h) of the African Principles
above n 101; Article 10 of the UN Basic Principles above n 84; and Bangalore Commentary above n 107 at
para 26.
113 Article 7(d) of the African Charter above n 83; Article 14 of the ICCPR above n 82, as interp reted in
General Comment No.32 above n 86 at para 19; Article 11 and 12 of the UN Basic Principles above n 84; and
Bangalore Commentary above n 107 at para 26(a).
MAJIEDT J
49
interference, direct or indirect, from any quarter or for any reason. 114 A further key
requirement is actual and perceived independence. 115 Judicial decisions must not be
subject to revision other than by a superior court. 116 Removal or suspension of judges
may only be on account of gross misconduct incompatible with judicial office, or for
mental incapacity. 117 Lastly, there must be appropriate suspension and disciplinary
procedures for judges, prescribed by law, which includes judicial officers being entitled
to guarantees of a fair hearing and provisions for an independent review of decisions of
disciplinary or removal hearings.

[106] Against the backdrop then of our jurisprudence and the requirement imposed on
our country to take steps to secure the independence of the Judiciary in its constitution
or laws, in fulfilment of its international legal obligations, the question is whether the
relevant provisions of the MDSMA and Defence Act have succeeded in doing so.

First challenge: sections 101 and 102 of the Defence Act
[107] This ch allenge relates to Executive -initiated and Executive -driven
boards of inquiry. These sections, as formulated, are not specifically targeted at
military courts and military judges, but their wide language on its face could be applied
to them. To that exte nt, the challenge must be upheld. It is not permissible under our
Constitution for the Executive to have the power to initiate and control boards of inquiry
to investigate judicial officers’ fitness and the conduct of their cases, as occurred in this
case. The involvement of officials of the SANDF in making decisions relating to
boards of inquiry, insofar as they pertain to military courts and military judges, plainly

114 Article 7(d) of the African Charter above n 83, as interpreted by Principle 5 of the African Principles above
n 101; Koso above n 96; Article 2 of the UN Basic Principles above n 84; and Bangalore Principles above n 85
Value 1 at para 1.1.
115 Bangalore Commentary above n 107 at 42 paras 37-8.
116 Article 7(d) of the African Charter above n 83, as interpreted by Principle 4(f) of the African Principles
above n 101; and Article 4 of the UN Basic Principles above n 84.
117 Article 7(d) of the African Charter above n 83, as interpreted by Principle 4(p) of the Afric an Principles
above n 101; Article 14 of ICCPR above n 82, as interpreted in General Comment No.32 above n 86 at para 20;
and Article 17 of the UN Basic Principles above n 84.
MAJIEDT J
50
offends the principle of separation of powers and subverts the independence of military
courts. Boards of inquiry are unquestionably Executive -initiated right from the outset
and they are Executive -driven. The boards are convened by the Minister or the
Secretary of Defence or the Chief of the Defence Force under section 101 of the
Defence Act. Section 101(2) affords the same power to the Chief of a Service or
Division. The Executive has wide -ranging powers in convening a board of inquiry
under a convening order which will designate the board’s members and their orders.118

[108] This Executive con trol over the convening and conduct of military courts is
constitutionally offensive:
(a) It is contrary to the central plank of judicial independence, that no external
influence to sway a military judge to decide a case fairly, impartially and
without fear or favour is permitted.
(b) Exclusive Executive control over the investigating of judicial officers is
inherently unconstitutional. The position here is similar to that of
Magistrates, in regard to which this Court in Van Rooyen ruled that the
initiation of an investigation into their conduct should be held under the
auspices of an independent body, not the Executive.119
(c) There is clear potential for abuse where, as here, officials who fall under
the Executive have full control over the composition of a board of inquiry,
its terms of reference and the manner in which it conducts its business.
(d) Sections 101 and 102 enable boards of inquiry to be composed in their
entirety of members who are not judicial officers – Van Rooyen held that
this is inconsistent with judicial independence.120

118 Section 101(4) of the Defence Act provides:
“A board of inquiry must be convened by means of a written convening order and must consist
of so many persons who are in the employ of the Department of Defence as the person
convening the board may determine, but where a board is convened by a military officer it must
consist of at least one officer and as many warrant officers, non-commissioned officers or
civilians who are in the employ of the Department of Defence as the officer convening the board
may determine.”
119 Van Rooyen above n 14 at para 206.
120 Id at para 195.
MAJIEDT J
51

[109] To cure this constitutional defect, reading down is preferable. This can be done
by, as the applicant suggests, reading the phrases “ any matter ”, “any member or
employee” and the “ affairs of any institution ” as excluding military judges, and the
same should be done in respect of section 137 of the Code, 121 read with rule 79 of the
MDSMA Rules.122

121 Section 137 of the Code, being First Schedule to the Defence Act 44 of 1957, headed “Attendance of witnesses
at and composition of boards of inquiry”, reads:
“(1) The president of any board of inquiry convened under section 134 or 135 may, in the
prescribed manner, subpoena any person in Namibia, whether or not otherwise subject
to this Code, to attend such board of inquiry and, subject to sub section (2), to give
evidence or to produce any document or thing in such person ’s possession or under
such person’s control.
(2) No witness is required to answer any question or to produce any document or thing at
any board of inquiry which such witness could not be compelled to answer or produce
in proceedings before a civil court.
(3) The composition of boards of inquiry, the method of convening such boards and the
procedure to be followed by such boards are as prescribed.”
122 Rule 79 of the MDSMA rules, headed “Collation of evidence during pre-trial investigation phase”, reads:
“(1) The Prosecution Counsel, Disciplinary Adjutan t or military police investigating
official must obtain any required statement or evidence, including visiting any person
for such purpose, from any person whether subject to this Act or not.
(2) A Disciplinary Adjutant or Prosecution Counsel conducting a pre-trial investigation
may—
(a) procure the attendance of witnesses;
(b) have witnesses summoned to give evidence or to produce a document or item
thereat;
(c) administer oaths or affirmations;
(d) admit sworn and unsworn statements into evidence; and
(e) collate evidence into the pre -trial investigation in accordance with
subsection (3).
(3) A pre-trial investigation must comprise of, if applicable—
(a) a cover sheet reflecting the reference of the pre-trial investigation;
(b) an index with page numbering;
(c) a certified copy of the account of warning or account of arrest;
(d) a certified copy of the certificate of surrender or arrest, in the prescribed form,
if applicable;
(e) original statements or certified copies of original statements; and
(f) documentary evidence.
(4) Where an incident leads to a report of misconduct and an account of warning or account
of arrest, such incident must be investigated under this Part.”
MAJIEDT J
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Second challenge: section 15 of the MDSMA
[110] This challenge concerns the brief, renewable terms of military judges. On their
own version, the respondents have acknowledged that military judges are appointed, at
the Minister’s prerogative, for brief, renewable terms. This is a complete answer to the
High Court’s and Supreme Court of Appeal’s quibbling about whether the
“reassignment” of military judges in fact amounts to renewable terms – the SANDF
itself calls it renewable terms and, on the objective facts, that is exactly what it is.

[111] In Justice Alliance, this Court emphasised t hat non-renewable terms for judges
is an essential prerequisite of structural independence. 123 Absent non -renewability,
there is the risk that public confidence in military judges is undermined. The Court
observed:

“[N]on-renewability is the bedrock of se curity of tenure and a dyke against judicial
favour in passing judgment. Section 176(1) gives strong warrant to this principle in
providing that a Constitutional Court judge holds office for a non -renewable term.
Non-renewability fosters public confidenc e in the institution of the judiciary as a
whole, since its members function with neither threat that their terms will not be
renewed nor any inducement to seek to secure renewal.”124

[112] The assignment of renewable terms is furthermore opaque, without clearly
cognisable objective criteria; instead it is premised on the unconstrained discretion and
carte blanche of the Minister and Adjutant General, glibly referred to by the respondents
as their “prerogative”. This unconstrained discretion, coupled with opaque
requirements, has been held by this Court to be inconsistent with the central guarantee
of independence.125

123 Justice Alliance above n 17 at para 73 and fn 72, citing the Canadian case of Leblanc above n 57 at paras 38-9,
43-4 and 59.
124 Id.
125 AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services [2021]
ZACC 3; 2021 (3) SA 246 (CC); 2021 (4) BCLR 349 (CC) at para 92 citing Justice Alliance above n 17 at para 65
MAJIEDT J
53

[113] The Supreme Court of Appeal erred in requiring evidence substantiating the
averment by the applicant that “military judges may be inclined to temper their reviews
or adjust their judgments to secure further assignments”. 126 The applicant merely had
to show that a reasonable, well-informed person would not have confidence that military
judges are protected from these threats due to their short, renewable assignments.127
Here, the undisputed (or, at best for the SANDF, the indisputable) facts demonstrate
that the applicant was in fact subjected to a variety of threats and pressure. He was the
only military judge not to be reassigned in 2017, implementing the threats to do so that
started in 2014.

[114] Military judges are the only full -time judicial officers who are appointed for
short, renewable terms, notwithstanding their significant geographical and penal
jurisdiction. This is constitutionally unpalatable. Lastly, renewable terms for
military judges are out of step with recent developments in comparable constitutional
democracies, including Canada, New Zealand and the United Kingdom.

[115] In this instance, reading down section 15 by precluding renewable judicial terms
is not a satisfactory solution to this constitutionally impermissible arrangement. This is
because the difficulty may be that reading down will only preclude “renewable” term s
and not “short” terms as well. Conceivably, with a reading -down, a military judge
could, for example, be appointed for a non-renewable one-year period. It might be said
that, as long as the period is not renewable, it does not matter how short it is, s ince the
prospect of renewal is removed as a perverse incentive. The question is what exactly
the term “non -renewable” means. Conceivably, an officer may be appointed as a
military judge for a one-year term in year one, and then again reappointed in year three
after a lapse of one year from the expiry of their first term. Conversely,

where this Court stated: “ The designation by a member of the Executive in ill -defined circumstances or
circumstances that completely lack description does not conduce to a reasonable perception of independence”.
126 Supreme Court of Appeal judgment above n 6 at para 57. In this passage the judgment uses the word “reviews”
(as I have quoted it), though perhaps it is a typographical error and “views” was intended.
127 Sonke above n 35 at paras 78-80.
MAJIEDT J
54
“non-renewable” could mean that the officer can never be reappointed as a military
judge.

[116] A further question is whether adequate security of tenure might not also be
achieved by relatively long terms, like renewable five -, eight-, or ten -year terms. A
reading-down is not permanent, in the sense that Parliament can enact a different regime
as long as it is consistent with this judgment, but the problem relates to appointment s
made during the period of the reading -down. The SANDF might be unwilling to
appoint military judges until a specified retirement age, but likewise might be unwilling
to have short -term appointees removed permanently from the pool of future
appointments, possibly depending on how big the pool is. An interim, temporary
solution might be longer renewable appointments; or the right to reappoint after a lapse
of a certain period. Those possible solutions cannot be achieved by a reading-down.

[117] Another issue is that in terms of section 15 an assignment is for a fixed period
“or coupled to a specific deployment, operation or exercise”. If, for example, SANDF
members are deployed in a peace -keeping operation in Angola, can the authorities
appoint a military judge to preside over a military court in Angola, during the period of
that operation, whose assignment as a military judge will terminate when that operation
ends? If a military judge is so appointed, may they then not be reappointed when that
operation terminates, even if it terminates after only six months? It is conceivable that
potential candidates for military judgeships may be reluctant to accept deployment in
those circumstances.

[118] A further potential difficulty with a reading -down is that section 15 does not
apply only to military judges: it applies also to directors and prosecution, defence and
review counsel. Short renewable terms may be acceptable in respect of them and there
has been no argument to the contrary at the hearing in this Court. In l ight of all these
difficulties, the only viable solution is a reading -in, not a reading -down. It is not
enough, as would be the case with sections 101 and 102 of the Defence Act, to say that
the assignments contemplated in section 15 do not include assign ments of
MAJIEDT J
55
military judges. Plainly there is a need for a statutory provision that provides for the
term of appointment of military judges, and section 15 is that provision. It is not
objectionable that military judges are appointed “for a fixed term” – the problem is
renewability. It is consequently necessary to declare section 15 constitutionally invalid
to the extent that it does not provide adequate security of tenure for military judges, to
suspend the declaration for two years, and to have a temporary reading-in.

[119] The most appropriate way of addressing all these concerns is to allow for a
person to be assigned as a military judge for a period not exceeding one year on a
non-renewable basis. Further assignment of that person as a military judge may oc cur
only after the lapse of a period of not less than two years since their last assignment.
The rationale behind these time-related provisions is to avoid short, renewable terms of
appointment. The objection to those type of appointments bears repetitio n – first, it
undermines public confidence inasmuch as non-renewability is an essential component
of structural independence; and second, absent cognisable objective criteria it affords
the Executive (the Minister and the Adjutant -General) unconstrained di scretion in
assigning military judges.

Third challenge: section 17 of the MDSMA
[120] The applicant challenges the power of the Executive to remove military judges.
As stated, the Minister may remove a military judge for cause on the recommendation
of the Adjutant General. The latter is, like the Minister, a member of the Executive. It
is unconstitutional for the Executive to have the power to remove military judges
without independent oversight or control. Our courts have repeatedly set their face
against removal for cause where such cause is not s ubject to “independent review and
determination by a process at which the judge affected is afforded a full opportunity to
be heard”.128


128 See generally, among others, De Lange above n 31 and Van Rooyen above n 14 which both cite Valente
above n 38 at 698.
MAJIEDT J
56
[121] At present, military judges are the only judicial officers that may be removed in
this fashion. This is in stark contrast to the procedure for the removal of judgesjudges
of the superior courts and Magistrates. The position here also stands in contrast to that
in the United Kingdom, New Zealand, and Canada. It is no answer to say , as the
High Court did, that boards of inquiry provide the required independent oversight
mechanism in cases of removal. For the reasons enunciated, boards of inquiry lack
independence.

[122] It is not possible to cure the constitutional invalidity through a reading down of
the provision. The section must therefore be declared unconstitutional and the
declaration ought to be suspended for 24 months for Parliament to attend to the
constitutional deficiency. In the interim, there must be a reading down of the
section until Parliament cures the invalidity through remedial legislation.

[123] It is in my view unobjectionable, as an interim arrangement during the period of
suspension, to have the Minister devise their own processes for an inquiry into the
fitness of a military judge, on the condition that it is an independent inquiry. There is
no harm in leaving the composition of the inquiry body to the Minister, but its
independence is crucial. A further important caveat is that a military judge may not be
removed except on the recommendation of the independent inquiry.

Conclusion and costs
[124] Leave to appeal must be granted and the appeal against the order of the
Supreme Court of Appeal must be upheld. An important consideration regarding costs
is that the applicant has only attained partial success. The applicant was unsuccessful
in his opposition to the state parties’ review application, and he does not appeal that
order in this Court. In respect of his counter-application, the applicant has not persisted
with some of the relief which was dismissed in the courts below. Those are his prayers
declaring that the Board of Enquiry established in respect of him is unlawful, and
declaring the proceedings instituted by the state parties in the High Court to be unlawful
and unconstitutional. In the premises, a 50/50 allocation is a fair allocation of costs in
MAJIEDT J
57
respect of the matters where the applicant had won and lost respectively. Thus, the
applicant should be awarded 50% of his costs in the High Court and the Supreme Court
of Appeal. Based on the trite Biowatch129 principle, in respect of the other 50% of the
costs he should bear no liability. The applicant is entitled to all his costs in this Court.

Order
[125] I make the following order:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside to the extent that
that Court dismissed the applicant’s appeal against the High Court’s
refusal to grant the declarations of statutory invalidity sought by the
applicant in his counter-application in the High Court.
4. The costs orders made in the Supreme Court of Appeal in relation to costs
in that Court and in the High Court are set aside.
5. It is declared that:
(a) Sections 101 and 102 of the Defence Act 42 of 2002 are
unconstitutional and invalid to the extent that they permit members
of the Executive to convene boards of inquiry to investigate
military judges and the content and merits of their judgments and
rulings. Pending the coming into operation of remedial legislation,
the phrases “an y matter”, “any member or employee” and the
“affairs of any institution” in section 101 and 102 of the Defence
Act and section 136 of the Military Disciplinary Code, read with
rule 79 of the Military Discipline Supplementary Measures Act’s
Rules, must be read as excluding military judges.
(b) Section 15 of the Military Discipline Supplementary Measures Act
16 of 1999 is unconstitutional and invalid to the extent that it

129 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC) ; 2009 (10) BCLR
1014 (CC) at para 21.
MAJIEDT J
58
empowers the Minister of Defence and Military Veterans
(Minister), acting on the recommendation of the Adjutant General,
to assign judges for renewable periods.
(c) The existing practice of assigning judges for renewable periods of
one to two years is unconstitutional and unlawful. Pending the
coming into operation of remedial legislation, the ass ignment of a
military judge may not be renewed until the lapse of at least two
years since that person’s last assignment.
(d) Section 17 of the Military Discipline Supplementary Measures Act
16 of 1999 is unconstitutional and invalid to the extent that it
empowers the Minister, acting on the recommendation of the
Adjutant General, to remove a military judge and that the Minister
may do so without any independent inquiry into the fitness of the
military judge to hold office.
(e) Pending the coming into operation of remedial legislation, the
Minister may devise processes for an inquiry into the fitness of a
military judge and the composition of the inquiry body, provided
that:
(i) it is an independent inquiry; and
(ii) a military judge may not be removed except on the
recommendation of the independent inquiry.
(f) The declarations of constitutional invalidity above are suspended
for a period of 24 months to allow remedial legislation to be
enacted and brought into operation.
6. The first respondent is ordered to pay half of the costs of the applicant in
the Supreme Court of Appeal and the High Court, including the costs of
two counsel where so employed.
7. The first respondent is ordered to pay the costs of the applicant in this
Court, including the costs of two counsel where so employed.



For the Applicant:



For Respondents:


For the Amicus Curiae:


G Marcus SC, C McConnachie,
M Marongo and M Kritzinger
instructed by Griesel Vanzanten
Attorneys

E Tsatsi SC and C Kwinda instructed by
State Attorney

E Webber and E Van Heerden
instructed by Legal Resources Centre