IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 11012 /2022
In the matter between:

CHARLES HENRI EMILE MACHARD Applicant

and

MINISTER OF DEFENCE AND MILITARY VETERANS First Respondent
CHIEF OF THE SANDF Second Respondent
SECRETARY OF DEFENCE Third Respondent
ADJUDANT -GENERAL: LEGAL SERVICES
DIVISION OF THE SANDF Fourth Respondent
THE SURGEON GENERAL OF THE SOUTH
AFRICAN NATIONAL DEFENCE FORCE Fifth Respondent
THE COURT OF MILITAR Y APPEALS Sixth Respondent
HONOURABLE MADAM JUSTICE E.M. KUBUSHI Seventh Respondent
COL (RET) E.O. STEP Eighth Respondent
COL R.E. COMBRINK Ninth Respondent
THE COURT OF THE MILITARY JUDGE Tenth Respondent
COMMANDER W.P. VENTER Eleventh Respondent



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Coram: Justice VC Saldanha
Heard: 31 October 2024
Delivered electronically: 30 January 2025


JUDGMENT

SALDANHA J :
[1] The applicant , a commission ed officer in the South African National Defence Force
(the SANDF) and professional nurse with the rank of Captain in the South African Military
Health Services Unit at the South African Naval College , Beach Road, Gordons Bay , was
during February 2021 , charged for having committed various sexual offences and
misconduct and convicted before a Court of a Military Judge in terms of the Military
Discipline Supplementary Measures Act No. 1 6 of 1999 (the Ac t).

[2] The applicant was sentenced to a reduction in rank to that of Lieutenant , a period
of imprisonment of 12 months and cashiering from the SANDF . The period of
imprisonment and cashiering were wholly suspended for a period of 3 years on condition
that the applicant was not convicted of sexual assault committed within the period of
suspension .

[3] In these proceedings , the applicant initially sought to have his conviction s and
sentenc es declared unlawfu l, alternative ly , reviewed and set aside on various grounds
including , amongst others , that the Court o f the Military Judge was not properly
constituted in as much as he contend ed that the Act prescribe d that a Court of a Military
Judge must sit with assessor (s) in the trial proceedings. The trial court did not sit with
any asses sors. Nonetheless , the parties agreed that the sole issue for determination in
the application was the contested interpretation of various provisions of the Act relating
to whether it is peremptory for military assessor (s) to be appointed in terms of various
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provisions of the Act or whether the Act provides for no more than an election by an
accused person to have two assessors appointed one of which , may on a further
election be of the military rank of Warrant Officer .

[4] At the commencement of proceedings before this court, counsel for both the
applicant and the respondents accepted that the issue for interpretation before the court
was whether the Act made provision for the election of military ass essor (s) to be
appointed as opposed to what the applicant repeatedly contended for in his affidavit s,
in the various iterations of the Practice Notes prepared by his counsel and in the heads
of argument filed on his behalf , that the issue relate d to whether the applicant was entitled
to waive the appointment of military assessors in terms of the provisions of the Act.
Moreover, t he app licant expressly abandoned all of the other relief that he initially sought
in his notice of motion.

[5] In light of the issue being no more than that of the inter pretation of the provisions
of the Act I give no more than a brief background to the proceedings and the nature of
the charges preferred against the applicant as part of the overall context and purpose in
which the interpretation of the relevant provisions of the Act are to be considered .

[6] The applicant was subject to the Military Disciplin e Code by virtue of Sections
104(5)(a)1 of the Defen ce Act 44 of 1957 as amended and S ections 3 (1)(a)2 of the
Defen ce Act 42 of 2002 and Sections 3.2 (a)3 of the Act. The applicant participated in the
extensive pre -trail investigative proceedings provided for in the Act.

1 (5) The Military Discipline Code shall to the extent and subject to the conditions prescribed therein, apply –
(a) to all members of the Permanent Force.
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(1) Unless the context indicates otherwise, this Act applies to
a) all members of the Defence Force and any auxiliary service, and all employees, whether they are posted or
employed inside or outside the Republic;
3 2) For the purposes of the application of this Act and the Code, 'person subject to the Code' includes, to the extent
and subject to the conditions prescribed in this section and in the Code :
a) all members of the Permanent Force;
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[7] The first charge of sexual assault preferred against the applicant related to the
contravention of Section 5 (1)4 of the Sexual Offences Act 32 of 2007 , in that he was
alleged on 16 January 2018, at or near Gordon s Bay to have unlawfully and intentionally
sexually violated Seaman (sic) Ms. M.M.M an adult female5 in that he hugged and or
stroked the head of the complainant without her consent, . The alternative to the charge
was the contravention of Sections 45A6 of the Military Disciplin e Code (MDC ) of riotous
or unseemly behavio ur in respect of the allegations relating to the first charge .

[8] The second charge likewise related to the contravention of Sections 5(1) of the
Sexual Offences Act , where on 19 January 2018 at Gordons Bay , the applicant was
alleged to have unlawfully and intentionally sexually violated Seaman(sic,) Ms. M.I.K an

(b) every member of the Reserve Force
i) while rendering any service, undergoing any training or doing any duty in terms of the Defence Act, 1957; or
(ii) when liable or called up therefor, fails to render that service or to undergo that training or to do that duty;
(c) all persons, other than members of a visiting force, lawfully detained by virtue of or serving sentences of detention
or imprisonment
imposed under the Code or this Act;
(d) every member of the auxiliary services established in terms of sec tion 80 of the Defence Act, 1957, being on service
as defined in
the Code;
(e) every person attached to the South African National Defence Force in terms of section 131 of the Defence Act,
1957;
(f) all students under instruction at a military training institution, in accordance with section 77 (3) of the Defence Act,
1957;
(g) every person not otherwise subject to the Code who, with the consent of the commanding officer of any portion of
the South
African National Defence Force, is with or accompanies o r performs duty with that portion of the Defence Force which
is (
i) outside the borders of the Republic; or
(ii) on service:
Provided that any person who is subject to the Code by virtue of any consent given under this paragraph shall be so
subject (
aa) where that consent has been given in writing, on the basis indicated in that consent; or
(bb) where consent has not been given in writing, on the basis on which he or she has been accepted and treated for
living and
messing facilities; and
(h) every prison er of war as contemplated in Articles 4 and 33 of the Geneva Convention Relative to the Treatment of
Prisoners of War
of August 12, 1949, or by customary international law, and who is in the power of the Republic and detained by the
South African
National Defence Force.
4 . (1) A person ('A') who unlawfully and intentionally sexually violates a complainant ('B'), without the consent of B,
is guilty of the offence of sexual assault.

5 Despite the complainants b eing female , they were in my view, anachronistically referred to as “Seaman ” in the charge
sheet .
6 At any time behaves in a riotous or an unseemly manner.

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adult female, in that he rubbed the breast of the complainant without her consent . As with
the first charge , the alternative likewise related to the contravention of Section 45A of the
MDC.

[9] So too, did the third c harge relate to the contraven tion of Section 5(1) of the Sexual
Offences Act in that the applicant on the 24 January 2018 at or near Gordons Bay
allegedly sexually assaulted Seaman (sic,) Ms. M.M.M. in that he un lawfully and
intentionally violated her , by having touched her buttocks and /or her thighs and/or kissed
her on the neck and /or had taken h er hand and rubbed it against his penis and /or hugged
her without her consent. The alternative to the third charge was likewise the contravention
of Sections 45 A of the M DC. The offences were competent due to the provision of Section
56 of the Military Disciplinary Code which provides ;
“A person subject to this Code may be tried by a military court having jurisdiction for any
civil offence (other than treason, murder, rape or culpable homicide committed by him
within the Republic ), and may in respect of such offence be sentenced to any penalty
within the jurisdiction of the court convicting him. ”

[10] The applicant wa s represented in the trial by a Major in the SANDF and pleaded
not guilty to all of the charges. The transcribed record of the proceedings before the
military court a quo formed part of the record in the application.

[11] The c onviction and the sentence imposed on the applicant were subject to
automatic review by a Court of Military Appeal s in terms of S ection 34 (2)7. On 17
September 2020 , the Court of Military Appeals presided over by Justice EM Kubushi and
two others upheld the conviction s of the applicant and by a majority of two to three , set
aside the sentence s of the court a quo and substituted it with one of cashiering .

7 (2) Every sentence of imprisonment, including a suspended sentence of imprisonment, cashiering, discharge with
ignominy, dismissal or discharge shall be reviewed by a Court of Military Appeals and shall not be executed until that
review has been completed.
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[12] On 28 July 2021 , the applicant instituted proceedings in which he sought an interim
interdict to prevent the first respondent from giving effect to the cashiering pending the
outcome of an application to challenge the lawfulness of the trial proceedings and
convictions. On 29 July 2021 an order was taken by agreement between the parties
suspending the implementation of the sentence of cashiering pending the finalisation of
the application for an interim interdict . The applicant successful ly obtained interim relief
in that the first respondent was interdicted from implementing the sentence handed down
by the Court of Military Appeals pending the challenges and the review of the decision s
of both the Court of the Military Judge and the Court of Military Appeals .

[13] In an endeavour to provide the context to these proceedings and the relief now
sought, the initial relief sought by the applicant in the notice of motion dated 30 June 2021
provides :
1. 1.1 Declaring that the Court of the Senior Military Judge (the court a quo ) was
irregularly constituted when it sat on 19 March 2019 in that it was n ot
constituted in the manner prescribed in Section 9 or Section 10 of the Military
Discipline Supplementary Measures Act 16 of 1999 (“the A ct”) in that there was
no military assessor ;
1.2 Declaring t hat the sentence purporte dly handed down by the court a quo ( “the
Sentence ”) does not comply with the principles of legality and is void
alternatively unlawful ;
1.3 Remitting the matter to the Court of the Military Judge so that the trial may be
commenced de novo .

2. In the event that the relief sought in paragraph 1 above is not granted, an order :

2.1. Declaring that the Court of Military Appeal (the court ad quem) was irregularly
constituted when it s at on 17 September 2020 ;

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2.2 Declaring that the sentence purportedly handed down by the Court of Military
Appeals on 17 September 2020 (“the Sentence ”) therefore did not comply with
the principles of legality and is void alternatively unlawful;

3. In the event that the relief sought in paragraphs 1 and 2 on page 2 is not granted, an
order :

3.1. Reviewing and setting aside and /or otherwise correcting:
3.1.1 The decision taken by the Court ad quem to interfere with the sentence
handed down by the Court of a Senior Military Judge (the court a quo)
on 19 March 2019.
3.1.2 The sentence handed down by the Court ad quem on 17 September
2020;

3.2 Reinstating the sentence imposed by the Court of a Senior Military Judge
presided over by Commander W .P. Venter namely:

“Reduction to the lower commissioned rank of Lieutenant and imprisonment
for a period of twelve ( 12) months and C ashiering from the South African
National Defence Force (SANDF) . The whole period of imprisonment and
Cashiering from the SANDF is suspended in whole for a period of three (3)
years on condition the accused is not convicted of Sexual Assault committed
within the period of suspension ”.

4. Granting the Applicant leave to subpoena Regimental Sergeant Major Alexander so
that he may testify viva voce ;

5. Exercising its discretion in terms of Uniform Rule 35 (13) so as to make the rules
relating to the discovery and production of documents applicable to these proceedings
insofar as the arrangements for the cashiering parade which was to have been held
on or about 29 July 2021 are concerned.

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6. 6.1 Declaring that Section 12 (1)(b)(i) of the Military Discipline Supplementary
Measures Act 16 of 1999 is unconstitutional and invalid;

6.2. The declaration of invalidity is suspended for 24 months from the date of this
order to allow Parliament to rectify the defects as identified in this judgment.

6.3. During the period of suspension of the operation of the order of invalidity Section
12(1)(b)(i) of the Military Discipline Supplementary Measures Act 16 of 1999 sha ll
read as follows :

Cashiering, the execution of which is to take place in an office.

7. Directing the First Respondent to pay the cost s of this application.

8. Further and /or alternative relief.

It should be noted that the applicant was in fact tried be fore a Court of a Military Judge in terms
of the Act and not as erroneously referred to in the notice of motion by a Court of a Senior Military
Judge.

[14] The matter initially came before this court on 31 January 2024 . It was apparent to
the court that the relief sought in the heads of argument on behalf of the applicant was
inconsistent with that provided for in the Practice Note filed with the court. The applicant
abandoned the challenge in respect of the relief under paragraph 2 of the notice of motion
relating to the Court of Military Appeals . The applicant sought a postponement of the
matter in order for the parties to f ile a proper Practice Note that align ed with the revised
relief sought . The applicant tendered the wasted costs o ccasioned by the postponement
of the hearing .
[15] In a Joint Practice Note subsequently drafted by counsel for the applicant, the
applicant indicated that “…the only constitutional issue, namely whether the cashiering is
unconstitutional is not being proceeded with ”. The Practice Note indicated that the issues
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for determination remained that in paragraph 1 (1.1, 1.2 and 1.3 of the Notice of Motion ).
The Joint P ractice Note also provided for the determination as to whether the provisions
of the Act “visited the aforesaid non-compliance with invalidity ”. It also required for
determination by the court “…whether the decision and the judgment of the court a quo
was reasonable and in accordance with the law , if not, whether this court should exercise
its inherent wide review powers and substitute the court a quo ’s decision with another
decision .” It was apparent to the court that the parties had not properly applied their mind s
to what exactly had to be determin ed as set out in the Joint P ractice Note vis-à-vis the
notice of motion and the various contentions made in the affidavits filed by the parties . By
agreement between the parties the matter was postponed to 31 October 2024 for hearing.
The respondents also indicated that they would seek to institute a conditional counter -
claim and tende red the wasted cost s occasioned by the postponement of the application.

[16] On 24 October 2024 counsel for the applicant filed a revised P ractice Note in which
he described the central issue in dispute as the validity of the proceedings before the
Court of the Military Judge , in particular as to what he regarded as the mandatory prescript
of the presence of an assessor (s) in the proceedings in terms of the Act. The applicant
contended that the failure to comply with that requirement invalidated the proceedings
before the Court of the Military Judge . The applicant contended that the right to an
assessor “cannot be waived ” and that the statutory requirement was a mandatory
safeguard mean t to ensure the integrity and the fairness of military justice . The applicant
recorded the respondents ’ position as being that the appointment of an assessor was
discretionary u nder the Act and that the applicant h ad been informed of his right to be
tried by assessors and that he expressly elected to proceed without any. The applicant ’s
counsel contended that the respondents ’ position on the interpretation of the Act made
the appointment of assessors discretionary and could be waived by an accused person .
He recorded his disagreement with the position adopted by the respondents.

[17] The applicant nonetheless contended that the parties had identified that the central
and only issue for determination was that of the statutory interpretation of the provisions
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of the Act relating to the composition of a Court of a Military judge as provided for in the
Act.

[18] The Practice Note also referred to the question as to whether the right to have an
assessor could be waived . It set out in general terms, the approach by the applicant to
the interpretation of the provisions of the Act as that of a literal interpretation of the various
provisions of the Act together with both the contex tual and the purp osive approach to the
interpretation of the relevant provisions of the Act . The applicant contended that any
deviation from the mandated structure of the composition of the Court of a Military Judge
was both impermissible and unlawful. Counsel for the applicant also recorded that the
respondent, on the other hand, favo ured a more c ontextual and purposeful approach and
that the structure of the military court system allow ed for flexibility, in particular with
regard to the presence of assess ors.

[19] Counsel for applicant further stated in the Practice Note that “…there w ere no
constitutional issues that required adjudication by the court. ”

[20] Counsel for the respondent s filed their heads of argument on 11 October 2024,
while counsel for the applicant filed his heads of argument on 18 October 2024 and in
doing so also took the opportunity of specifically addressing and refuting the submissions
made by counsel for the respondents in their heads of argument.

The Scheme of Military Justice as Provided for in the Act.
[21] Importantly and not withstanding the position adopted by counsel for the applicant
in the final Practice Note, this court is enjoined by the Constitution of the Republic of
South Africa Act of 108 of 1996 (the Constitution ) that, when interpreting the provisions of
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legislation it must promote the spirit , purport and objects of the Bill of R ights8. Central to
this injunction is that every accused person before a military court enjoys the right s,
amongst others, to a fair public hearing in accordance with the provisions of Sections 34
and 35 of the Constitution .
Section 34 provides :
“Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent
and impartial tribunal or forum. ”
So too, Section 35 (3) provide as follows;
(3) Every accused person has a right to a fair trial, which includes the right —
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be informed of this right
promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at state
expense, if substantial injustice would otherwise result, and to be informed of this right
promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self -incriminating evidence;
(k) to be tried in a lang uage that the accused person understands or, if that is not
practicable, to have the proceedings interpreted in that language;

8 When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or
forum must promote the spirit, purport and objects of the Bill of Rights.
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(l) not to be convicted for an act or omission that was not an offence under either national
or international law at the time it was committed or omitted;
(m) not to be tried for an offence in respect of an act or omission for which that person has
previously been either acquitted or convicted; Chapter 2: Bill of Rights 16 ;
(n) to the benefit of the least severe of the prescribed p unishments if the prescribed
punishment for the offence has been changed between the time that the offence was
committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court. ”

[22] By way of no more than a brief background to th e institution of military justice and
discipline in the South African military the following is no more than a truncated
background9. Prior to 1932, military justice and discipline was dealt with in accordance
with the provisions of the British Imperial Army Act of 1881. Discipline was thereafter dealt
with in the Union Military Discipline Code which came into being as a result of the 19 32
amendments to the Defense Act and Dominion Forces Act. The Defence Act 44 of 1957
was to a large extent repealed by the Defence Act 42 of 2002 that consolidated the various
defense laws and introduced the Military Disciplinary Code (the MDC) . Captain Aifheli
Enos Tshivase in the SANDF and a law lecturer at the University of Cape Town, in a well-
researched and motivated paper titled “Military Courts in a Democratic South Africa: An
Assessment of Their Independence ” published in 2006, HeinOnline, express es the view
that the MDC introduced a fairly comprehensive system of military justice that closely
resembled that of the British military justice system. The Code provided for numerous
military offences which were also supplemented by offences under the So uth African
criminal law.


9 The background to the South African system of military courts are dealt with by Captain Aifheli Enos Tshivhase a
lecturer in law at the University of Cape Town in an a paper titled MILITARY COURTS IN A DEMOCRATIC SOUTH
AFRICA; AN ASSESMENT OF THEIR INDEPENDENCE, 2006 downloaded HEINONLINE .
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[23] The provisions of the new Act which are the subject of these proceedings provided
for a new military court structure . Prior to its enactment there existed six types of courts -
martial which included a general court martial, an ordinary court martial, the summary trial
courts of a Chief of Staff, a convening authority , a commanding officer deriving powers
from a convening authority and a commanding officer with delegated powers . These
courts were convene d on an ad hoc basis and the presiding officers were appointed by
the convening authority on such bas is. Various provisions of the 1957 Defence Act were
challenged for its constitutionality , and particularly the independence of the judges
appointed under the Defence Act. In Freedom of Expression Institute and Others v
President, Ordinary Court Martial and Others 1999 (2) SA 471 (C) the constitutionality of
the composition of the ordinary court -martial provided by Section 73 of the Military
Disciplinary Code was challenge d. The court -martial consist ed of no less than three
members all of who had to be officers of the SANDF that held a commissioned rank other
than a temporary commissioned rank and for no less than three years, provided that the
president of an ordinary court martial was not below the rank of Captain or its equivalent .
There was no statutory requirement that the members of the court martial be legally
trained and qualified persons . Hlophe , ADJP (as he th en was) writing on behalf of the full
court of Traverso J (as she then was) and Gihwala AJ , found that to the extent that neither
the Defence Act nor the Code required that members of the ordinary court -martial be
legally qualified was unconstitutional . Sections 174 (1) of t he Constitution provided that a
judicial officer must be “appropriately qualified women or men who is a fit and proper
person .” Reliance was placed on the dicta of Conrad ie J in De Lange v Smuts and Another
1998 (1) SA 736 (C) . In as much as the ordinary court martial enabled lay mem bers to
convict and imprison accused persons, it was unconstitutional . The court also found , on
other grounds , the unconstitutionality of the composition of the ordinary court -martial . It
held that “…a court -martial was so lacking in the basic essentials of an o rdinary court that
it could never be properly described as an ordinary court as provided for in the
Constitution .” At best , it was to be regarded as no more than a military court which the
court found could not have been cons tituted within the meaning of Sections 35 (3)(c) and
Section 34 of the Constitution . The court also found that the ordinary court martial did not
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comply with the requirements of Sections 16510, 17411, 17612 and 17713 of the Constitution
all of which were provisions that had their main aim as the promotion of the independence
of judicial officers . In its findings that the ordinary court martial lacked the essentials of
independence of a judicial officer , the court referred to the plethora of oft-quoted cases
relating to the independence of the judiciary and with reference to comparative
international law. Extensive reference was also made to Ackerman J ’s erudite discussion
of the Canadian case law dealing with the independence of ordinary courts and that of
judicial officers with reference to the international standards on the independence of the
judiciary to which South Africa is bound .


10 Judicial authority
(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially
and without fear, favo ur 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 protec t the courts to ensure the
independence, impartiality, dignity, accessibility and effectiveness of the courts
(5) An order or decision issued by a court binds all persons to whom and organs of state to which it applies.

11 Appointment of judicial office rs –
(1) Any appropriately qualified woman or man who is fit and proper person may be appointed as a judicial officer.
Any person to be appointed to the Constitutional Court must also be a South African citizen.
(2) The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered
when judicial officers are appointed.
(3) The President as head of the national executive, after consulting the Judicial Service Commission and the leaders
of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and,
after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme
Court of Appeal.
(4) The o ther judges of the Constitutional Court are appointed by the President, as head of the national executive,
after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance
with the following procedure :
(a) The Judicial Service Commission must pre pare a list of nominees with three names more than the number
of appointments to be made and submit the list to the President.
(b) The President may make appointments from the list, and must advise the Judicial Service Commission, with
the reasons, if any of t he nominees are unacceptable and any appointment remains to be made.
(c) The Judicial Service Commission must supplement the list with further nominees and the President must
make the remaining appointments from the supplemented list.
(5) At all times , at least four members of the Constitutional Court must be persons who were judges at the time they
were appointed to the Constitutional Court.
(6) The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.
(7) Other 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 favo ur
or prejudice.
(8) Before judicial officers begin to perform their functions, they must take an oath or affirm, in accordance with
Scheduled 2, that they will uphold and protect the Constitution.

12 Section 176 – deals with the term of office and remuneration.
13 Section 177 – deals with the removal of judicial officers.
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[24] Prior to the confirmation of the invalidity of the various provisions of t he 1957
Defence Act and the various provisions of the C ode, a whole new system of military justice
was being considered and enacted by parliament in order to harmoni se the country's
military justice system with the new culture of constitutionalism . Kriegle r J, in Legal Soldier
(Pty) Ltd v Minister of Defense 2002 (1) SA 1 (CC) held that parliament in its consideration
of the new legislation would have been mindful of the str ictures of the judgment in
Freedom of Expression Institute and Others and sought to make a clean break with the
past by which it established a radically different military court system to provide for the
continued and proper ad ministration of military justice and the maintenance of discipline .
The Constitutional Court was there fore of the view that it was not necessary to confirm
the order of unconstitut ionality by the High Court. The preamble to the new Act provided
for a new system of military courts with a view to the improved enforcement of military
discipline and incidental matters . In this regard , the emphasis had shifted sharply from
an essential military system with forensic expertise to a system far closer to an ordinary
criminal justice process under civilian law . Whereas, the judicial and prosecutorial rol es
in mil itary prosecutions and reviews had been fulfilled by military officers without
necessarily having any legal training and acting as soldiers within their lines of command ,
the new Act introduced a hierarchical system of courts staffed by legally trained military
officers and at the highest level was presided over by a fully-fledged judge of the High
Court. I n, Legal Soldier , the court dealt with the constitutionality of the prosecutorial
system under the new Act and importantly found that the new Act, in introduc ing a
hierarchical system staffed by legally trained military officers support ed its
constitutionality . Admittedly , the court in that matter was not seized with the question as
to whether the appointment of assessors in military courts w ere mandato ry as contended
for by the applicant in this matter . Nonetheless , the court was satisfied that the
composition of a military court of legally trained officers and /or experienced lawyers
under girded its constitutionality .
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[25] The hierarchy of the new military courts provided for the jurisdiction of a
commanding officer as dealt with in section 1114 which provides that every officer
subordinate in rank to such commanding officer and of a rank not less than f ield rank,
authorised in writing by the commanding officer shall have jurisdiction conferred upon
her/him. T he commanding officer has limited penal jurisdiction . The composition and
jurisdiction of the Court of a Military Judge relevant to the determination of this m atter
provides as follows :
“10. (1) A court of a Military Judge shall consist of -
(a) An officer of not less than field rank and with not less than three years
experience as a practicing advocate or attorney of the High Court of South
Africa or three years experience in the administration of criminal justice or
military justice, assigned in terms of section 14(1)(b) to act as a military judge;
and
(b) Subject to sections 20 and 30(24), a military assessor.
(2) A Court of a Military Judge may try any person subj ect to the Code, other than
an officer or field or higher rank, for any offence, other than murder, treason, rape
or culpable homicide, or an offence under Section 4 or 5 of the Code, and may
on conviction sentence the offender to any punishment referred t o in section 12,
subject to a maximum sentence of imprisonment for a period of two years. ”

[26] Section 9 of the Act deals with the composition and jurisdiction of the Court of a
Senior Military Judge wh ich unlike a Court of a M ilitary Judge in Section 10 is comprised
of an officer of a higher ranking and with a higher penal jurisdiction . The fourth and last
category in the structure of the military courts is that of a Court of M ilitary Appeals (CMA)
which is the highest court, and its decisions are binding on all the other lower courts .


14 Every commanding officer and every officer subordinate in rank to such commanding officer and of a rank not
less than filed rank, who is authorised thereto in writing by such commanding officer, shall have the
jurisdiction conferred by this section.
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[27] The approach and discipline to the interpretation of the provisions of legislation
and contracts by courts have developed over several decades and have been the subject
of rigorous applica tion a nd more so in th e dynamism of a modern democracy founded on
a transformative Constitution. I n the of t-quoted decision of Wallis, JA in Natal Joint
Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), he stated;
“[18]. Interpretation is a process of attributing meaning to the words used in a document,
be it legislation, some other statutory instrument, or contract, having regard to the context
provided by reading the particular provision or provisions in the light of the document as a
whole and the circumstances attended upon its coming into existence...
The process is objective, not subjective. A sensible meaning is to be preferred to one that
leads to insensible or unbusinesslike result s or undermines the apparent purpo se of the
document. Judges must be alerted to, and guard against, the temptation to substitute what
they regard as reasonable, sensible or businesslike for the words actually used. To do so
in regard to statute or statutory instruments is to cross the divi de between interpretation
and legislation; ...
The inevitable point of departure is the language of the provision itself, read in context and
having regard to the purpose of the provisions and the background to the preparation and
production of the documen t.”
The profound and forceful tenet of that decision was elabora ted on by Majiedt, AJ in the
Constitutional Court in Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC)
where he stated as follows:
“[28]. A fundamental tenet of statutory interpret ation is that the words in a statute must be
given their ordinary grammatical meaning, unless to do so would result in an absurdity.
There are three important interrelated riders to this general principle, namely:
(a) that statutory provision should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought to be interpreted to preser ve their
constitutional validity. This proviso to the general principle is closely related to the
purposive approach referred to in (a). ”
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That, with respect, in my view, encompasses the simple yet complex exercise of modern
constitutional interpretation .
So too, did the Constitutional Court in Chisuse and others v Director -General, Department
of Home Affairs and another 2020 (6) SA 14 (CC) restate :
“[47]. In interpreting statutory provisions, recourse is first had to the plain, ordinary,
grammatical meani ng of words in question...in legal interpretation, the ordinary
understanding of words should serve as a vital constraint on the interpretive exercise
unless this interpretation would result in an absurdity. As this Court has previously noted
in Cool Ideas , this principle has three broad riders:
(a) the statutory provision should always be interpreted purposively,
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is whe re
reasonably possible, legislative provisions ought to be interpreted to preserve their
constitutional validity …”.
The Court stated further:
“Thus statutory interpretation is a unitary exercise to be approached holistically -
simultaneously considering the text, context and purpose. Consideration of the entire
constitutional architecture is necessary in this interpretive exercise. ”
In my view , the injunction could not have stated any clearer , grounded in the transformative
imperative of the Constitution and in ever evolving legislative objective s and purpose.

[28] Counsel for the applicant appropriately cautioned that the decision in Endumeni
and its progeny does not give the court license to rewrite legislat ion nor to substitute its
own preferences for that of the legislature. He pointed to the caution stated in Capitec v
Coral Lagoon 2022 (1) SA 100 (SCA) where at paragraph 49 the following is stated :
“[49] Third, Endumeni has become a ritualised incantation in many submissions before
the courts. It is often used as an open -ended permission to pursue undisciplined and self -
serving interpretations. Neither Endumeni , nor its reception in the Constitutiona l Court,
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most recently in University of Johannesburg, evince skepticism that the words and terms
used in a contract have meaning. ”

[29] In the context of these judgments it is clear that this court is enjoined by high
authorit y, that when interpreting leg islation and contract s, a purposive approach and t he
context of the provisions in the legislation and contract must be considered and in doing
so must take into account the entire legislative scheme and contract , its import and
crucially the actual and literal words used by the legislature in the statute or the parties
to the contract.

[30] As already alluded to , the new A ct heralded a new military system of justice and
discipline from a past in which military justice failed to maintain the most basic of
constitutional protections of fairness . The issue before this court relates very specifically
to whether the scheme of legislation , the new Act , provides in its crudest , that an accused
person must to be tried by a Military Judge sitting with assess or(s) or whether an accused
under the Act may be tried by a Military Judge sitting alone and that the accused
enjoys the right to elect that the court be further constituted of two assessor s of which
one may, on further election , be of the rank of Warrant Officer. In this regard it is
necessary to consider the relevant provisions of the Act in order to accord a proper
interpretation to them . The Act must a lso be r ead together with the Rules of procedure
which were promulgated in terms of the Act. I should at this stage record that counsel for
the applicant in argument vacillated, as was also evident in his heads of argument , as to
whether the Act mandated the appointment of one or two asses sors. He contended
though , that a proper reading of Sections 20 and 30(24) indicated that two assessors
were intended to be appointed as opposed to the reference in Section 10 where reference
is made to “…an assessor .” I have therefore used the reference to assessor in both the
singular and plural “assessor(s) ” purely to reflect the position of the applicant.

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[31] Section 1 of the Act deals with definition s and provides under 1(x)(v)(ii) that a
“military assessor ” means a person referred to in Sections 20(1) of the Act.
Sections 20 (1) of the A ct provides :
“20. (1) When military assessors have to be appointed in terms of this Act, the Director:
Military Judges, or an officer referred to in section 13(2)(a) appointed by him or her
for that purpose, shall appoint, subject to section 30(24)(a)(ii), two assessors fro m
the register of military assessors maintained by the local representative of the
Adjudant General.
The definition section also provides that a Court of a Military Judge means a person
referred to in Section 10(1)(a) of the Act.

[32] Section 2 under C hapter 1 sets out the objects of the Act and provides :
“(2) The objects of this Act are to –
(a) provide for the continued proper administration of military justice and the
maintenance of the discipline;
(b) create a military courts in order to maintain military discipline; and
(c) ensure a fair military trial and an accused ’s access to the High Court of South
Africa. ”

[33] Section 3 , 4 and 5 deal elaborately with the application of the Act, conflict with
other acts and extra -territorial applicati on, respectively.

[34] Section 6(1) of Chapter 2 deals with military courts and disciplinary structures. A s
indicated this Chapter provides for a four-tiered system of military courts of the
commanding officer as the disciplinary forum , a Court of a Military Judge, a Court of a
Senior Military Judge and the Military Appeal Court as the military courts as set out above.

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[35] Sections 6 (2) provides that “every military court contemplated in subsection (1)
shall exercise the jurisdiction and powers conferred on it by this Act”. Section 6 (3)
provides that a “court of appeals shall be the highest military court and a judgment the reof
shall bind all other military courts ”. Section 7 deals with the composition and jurisdiction
of the court of military appeals and Section 8 deals with the powers of the C ourt of Military
Appeals .

[36] Section 9 deals with the composition and the jurisdiction of the Court of the Senior
Military Judge. As already stated , notwithstanding the relief sought by the applicant in
paragraph 1.1 of its notice of motion Section 9 does not apply to this matter . The applicant
appeared before a Court of a Military Judge as provided for in Section 10 of the Act.
Section 10 appears to be at the heart of the applicant ’s claim that the Court of a Military
Judge had not been properly constituted as provided for in the Act . As already stated, the
Section provides :
“10. (1) A court of Military Judge shall consist of –
(a) an officer of not less than field rank and with not less than three years experience
as a practicing advocate or attorney of the High Court of South Africa or three
years experience in the administration of criminal justice or military justice,
assigned in terms of section 14(1) (b) to act as a military judge; and
(b) subject to sections 20 and 30(24) a military assessor ”.

[37] Sections 10 (1)(a) provides for the provision of a military judge and importantly
Sections 10 (1)(b) provides that the composition of the court is subject to the provisions of
Sections 20 and 30( 24) of the Act which deal with the appointment of military assessors.
Counsel for the applicant contended that the reference to “a military assessor ” in Section
10(1)(b) mean t that a military assessor was mandated in the composition of the court by
the Act and for which the appointment of assessor (s) were dealt with subject to the
provisions of Sections 20 and 30( 24). This construction was challenged by coun sel for
the respondent who pointed out that paragra ph (b) of Section 10 (1) subordinated the
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requirement for the appointment of a military assessor to Sections 20 and importantly
Sections 30(24) which amongst others provided for an election by an accused person for
the appointment of two military asse ssors by the Military Judge. Counsel for the
respondents contended that Section 1 0(1) cannot be read in isolation of Sections 20
and S ections 30 (24.) As already alluded to , coun sel for the applicant in his heads of
argument and in his oral submissions con tended that the provisions under S ections 20
and 30(24) i n fact provided for the appointment of two military assessors as opposed to
one. In an attempt to reconcile the contradictory position adopted by the applicant he
contended that the election by an accused was for no more than two asse ssors of which
one assessor may on election be a warrant officer and that the appointment of only one
assessor was what he referred to as “the default position .” Needles s to say, in my view
the contention of a so called “default position of one assessor ” is not borne out by a literal
reading of the actual words and construction of the relevant provisions ,

[38] Inasmuch as Section 10(1)(b) s ubordinates the requirements for the appointment
of a military ass essor to not only Sections 3 0(24) but also the entire provisions of Section
20 it is necessary to consider those provisions in their proper context and the reading of
Section 20 together and with that of Section 30 (24).

[39] Section 20 of the Act is heade d Military Assessors and deals elaborat ively with the
appointment and what should be taken into account in the appointment of assessors in
the regist rar o f military a ssessors . Importantly , the section also deals with the role and
function s of assessors. I t further deals with the stage at which the assessors are
appointed in the proceedings, which in the scheme of the Act is at the conclusion of the
pre-trial investigative process. Section 20 also sets out in detail the manner of
participation by asse ssors in the proceedings and also with the r ecusal of an assessor (s)
and the consequences to the proceedings where an assessor has recused him/herself ,
becomes unavailable or is disqualified from sitting as an assessor.
Sections 20 (1) to (4) provides as follows :
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“(1) When military assessors have to be appointed in terms of this Act, the Director:
Military Judges, or an officer referred to in section 13(2)(a) appointed by him or her
for that purpose, shall appoint, subject to section 30(24)( a)(ii) two assessors from
the register of military assessors maintained by the local representative of the
Adjudant General.
(2) When the assessors contemplated in subsection (1) are appointed, the person who
does the appointment shall take into account -
(a) military, cultural and social environment of the accused;
(b) the educational background of the accused; and
(c) The nature and seriousness of the offence in respect of which the accused is
to stand trial.
(3) Each register of military assessors contemplated in subsection (1) shall consist of
the names and parties of –
(a) appropriately qualified officers: and
(b) warrant officers who can be made available for such duty.
(4) A military assessor shall in the performance of his or her duties in terms of the Act -
(a) be independent and subject only to the Constitution and the law;
(b) be impartial and without fear, favour or prejudice;
(c) participate in a trial or proceedings in a manner befitting a member of a court
of justice: and
(d) not express any opinion whatsoever on any matter relating to any trial or on
the finding or any sentence except in the prescribed course of the proceedings
as may otherwise be required by law. ”

[40] Crucially, Section 20 (1) provides that; “When military ass essors have to be
appointed in terms of this Act... “in my view is a clear indication that there is no obligation
to appoint assessor (s) when a Court of a Military Judge sits as the section provides in the
clearest of language that only “when ” assess ors “have to be appointed …”.
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Again, it is important to note that the plural of assessor is used a s a clear refer ence to
the two assessors referred to in Section 30(24) where the election s by the accused are
provided for . What is even more clear is the reference to Section 30(24)(a)(ii) which
provides for the appointment of two ass essors from a register of military assessors. Once
again, reference is made very specifically to two assessors being appointed from a
register that is maintained by the local representative of the Adjudant Genera l.

[41] So too , Section 20 (2) provides “When the assessors contemplated in subsection
1 are appoint ed…,” which , in my view again reinforces that the appointment of assessors
is subject to Section 30 (24) where an election is made by the accused . Importantly, the
Director : Military Judge or the officer referred to in Section 13 (2)(a)15 shall take the various
criteria set out in 20(2)(a)(b) and (c) into account when making the choice of ass essors.

[42] Section 20(8) provides as follows:
“The record of any proceedings where a presiding judge has been assisted by military
assessors shall –
(a) in respect of the evidence adduced at the proceedings, include any explanation or
instruction given to the assessors by the presiding judge in respect of any applicable
rule of evidence or any other matter; and
(b) in respect of the judgment, indicate clearly whether the findings in the respect of each
material aspect of the evidence –
(i) are the unanimo us findings of the members of the court; and
(ii) in the event of any member of the court making a finding of fact different to that
of the other members, set out the reasons for that different finding. ”


15 Only an appropriately qualified officer holding a degree in law may be assigned to a function of a senior military judge
or military judge.
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[43] Once again the se provisions are in my view indicative that, “where a presiding
judge has been assist ed by military assessor s”, the very appointment of assessors are
not mandatory.

[44] Subsections 9, 10, 11 and 12 deals with the recusal of assessors or w here an
assessor becomes unavailable or is disqualified to act.

[45] Sections 20 (12) provides :
“If an assessor dies, becomes unable to act, is absent or for any reason , has been ordered
to recuse himself or herself, or has recused himself or herself at any stage before the
completion of the proce edings, those proceedings shall continue before the remaining
members of the military court and if the finding or decision of the presiding judge differs
from that of the remaining assessor, the finding of that judge shall be the finding of that
court. ”

[46] Once again, the indication that where one or more assessor (s) are unable to
continue then the proceedings continue with the remaining members of the military court .
If the finding or decision of the presiding judge differs from that of the “remaining assess or”
the findings of the judge prevails. The s ignificance of this provision is that if any or both
of the ass essors becomes incapacitated the proceedings continues to finality before the
presiding judge without having to begin de novo , despite what th e applicant maintained
are the mandatory participation of assess ors in the trial proceedings . Curiously, no
challenge was brought by the applicant against these provisions. Further , it is apparent
from th e subsection that it is contemplated that if assessors are to be appointed , it must
be two. Nowhere in S ection 20 is the re provision for the appointment of merely one
assessor. Moreover , the appointment of only one assessor would in my view be
meaningless as the views of the presiding Military Judge on all matters of fact w ould
prevail where there is no consensus with the only appointed assessor , as with the
“remaining assessor ” in the event of a recusal or disqualification.
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[47] Section 30 relates to proceedings in a preliminary investigation and culminates
with the crucial section 30 (24) that provides that upon the c ompletion of a preliminary
investigation, the presiding commanding officer must inform the accused of her /his right
of election and importantly must explain the provisions of Section 20(1)(2)(3) and (4) to
the accused.

[48] The proviso in Section 10 (1)(b) with regard to the composition of the military court
besides that of Section 20 , is crucially that of Sections 30 (24) which provides :
“Upon the completion of the preliminary investi gation, the presiding judge, commanding
officer, or recording officer shall -
(a) inform the accused of the accused right to elect –
(i) to be tried by a military court consisting of a presiding judge and two assessors;
and
(ii) that one of the assessors shall be a warrant officer; and
(b) explain section 20(1), (2), (3) and (4) to the accused.

[49] Counsel for the applicant contended that Section 30(24) provided no more than
that an accused is to be tried by two assessors of which the election is no more than to
elect that one shall be of the rank of Warrant Officer.
Section 30(24) must in my view be read in the context of the entire Section 10 and its
proviso in particular subsection (1)(b) where reference is made to the appointment of “an
assessor ” subject to the pr ovisions of Section 20 and Section 30(24) as part of a military
court. In doing so, the legislature would , in my view, have been mindful of the provisions
of Section 20 where provision is made for the recusal, or disqualification of any one of the
two assessors provided for in the s ection . Section 10(1)(b) therefore in my view accords
with an election by an accused to have two assessors of which one could very well be
recused or disquali fied in terms of Section 20 as a result of which one may remain (see
Section 20(12) ). In my view the reference to “an assessor ” is entirely consistent with the
provisions of section s 20 and 30(24) in the context of an election having to be made by
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an accused for the appointment of two assessors (one of which could be a Warrant
Officer ). Contrary to the s ubmissions by counsel for the applicant reference to “an
assessor ” in Section 10(1)(b) need not be “ignored ” nor s imply be constru ed as two
assessors other than with reference to section 30(24) and the various subsections of
section 20 that refers to assessors in the plural as opposed to a singular assessor .

[50] In my view, the provisions of Sections 30 (24) with regard to the election afforded
to an accused person is manifestly clear and without any ambiguity . It p rovides clearly
that upon the completion of a preliminary investigation, the presiding judge or the
commanding officer or the recording officer “shall” (or “moet ” if Afrikaans is to be
preferred,) peremptorily inform the a ccused of his right to an elect ion – the first of which
is to be made under 30(24)(1,) the right is to be tried by a Military Court consisting of a
presiding judge and two assessors. In my view , the provision is crystal clear as that is
where the first election arises as opposed to the imposition of two mandatory assessors
into the trial proceedings. If the election is made by an accused person to be tried before
a court with two assessors, the accused enjoys a further election as to whether one of the
assessors should be of the rank of Warrant Officer. Moreover , sections 30(24)(2)
peremptorily require of the military judge to explain the provisions of Sections 20 (1), 20(2),
20(3) and 20 (4) to the accused.

[51] The Rules of Procedure insofar as they relate to assessors as contemplated in
Section 20 (1) of the Act are found in Rule 15 . Significantly Rule 15(3) provide s:
“When the Director: Military Judges, or a Senior Military Judge or Military Judge appointed
for that purpose by such Di rector appoints assessors in any particular case under section
20(1) of the Act, that Director or judge shall supply the local representative of the Adju dant
General with a certificate containing the particulars of the appointed assessors. ”

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[52] The signi ficance of the rule relates to the reference to the appointment of
assessors in any particular case under Section 20 (1) of the Act. Importantly , the rule does
not provide for the appointment of assessors in all cases as the applicant contends for.

[53] Chapter 5 of the Rules provides for pre -trial procedure s before a presiding judge .
Rule 30 provides for proceedings of a military court in closed court. Rule 30(1) p rovides :
“A military court shall at the time and place specified in the notice of enrolment assemble
in closed court and the presiding judge shall satisfy himself or herself that the assessors
and other senior military judges, if any, are present and qualified to serve. ”

[54] Counsel for the respondent contended, and correctly so in my view , that the rule
makes it clear that the presiding judge shall satisfy him or herself that the assessors and
other senior military judges , if any , are present and qualified to serve. Counsel for the
respondent sought to contend that the qualification “if any ” related only to the a ppointment
of other senior military judges . That contention , in my view , was untenable as “if any ”
referred to both the assessors and the other senior military judges and the punctuated
structure of the sentence makes that cl ear.

[55] Rule 36 (3) provides :
“Where the accused objects to be tried by a particular judge or assessor, the judge or
assessor in question shall withdraw while the objection concerned is being determined
and the remaining judges shall thereupon hear the objection and any argument or
evidence that may be advanced or tendered in support of or against the objection:
Provided that in a case in which only one military judge is presiding, that military judge
shall determine the objection. ”

[56] This rule deals with where objections are raised by an accused to be tried by a
particular judge or assess or and the consequences thereof.
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[57] Rule 36 (6) provides:
“If the objection against an assessor is upheld, the assessor shall withdraw. ”

[58] Counsel for the respondent correctly submitted that Rule 36(6) accords with the
provisions of Rule 30 (24) where if an objection to any one of the ass essors is upheld the
assessor withdraws and the trial continues with “the remaining assessor ” which in my
view also accords to the provisions of Section 10(1)(b) where reference is made to “an
assessor. ”

[59] In oral argument , coun sel for the applicant repeatedly contended that an accused
person under the Act had no more than what he referred to as a “narrow election ” as to
whether or not one of the two assessors that had to be appointed should be of the rank
of Warrant Officer. In support of the contention that the appointment of assessor(s) were
mandatory coun sel for the applicant by analogy sought to rely on the provisions of
Sections 168 of the Constitution read together with that of the Superior Court s Act, 10 of
2013 relating to the composition of the bench in the Supreme Court of Appeal . Sections
168 of the Constitution provides :

(1) The Supreme Cour t of Appeal consists of a President, a Deputy President and the
number of judges of appeal determined in terms of an Act of Parliament.
(2) A matter before the Supreme Court of Appeal must be decided by the number of
judges determined in terms of an Act of Parliament.
The relevant provisions of the Superior Courts act provides;
“Section 5(1)(a) :
(1) (a) The Supreme Court of Appeal consists of -
(i) the President of the Supreme Court of Appeal;
(ii) the Deputy President of the Supreme Court of Appeal; and
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(iii) so many other judges as may be determined in accordance with the prescribed
criteria, and approved by the President.

and Section 13(1) :
(1) Proceedings of the Supreme Court of Appeal must ordinarily be presided over by five
judges, bu t the President of the Supreme Court of Appeal may -
(a) direct that an appeal in a criminal or civil matter be heard before a court consisting
of three judges; or
(b) whenever it appears to him or her that any matter should in view of its importance
be heard before a court consisting of a larger number of judges, direct that the
matter be heard before a court consisting of so many judges as he or she may
determine.

Counsel for the applicant contended that the parties to an appeal in the SCA cannot
choose to have their case determined by a single judge as that would be in direct violation
of the constitutional and statutory mandates governing the composition of the court . He
contended that in the same vein, the Act prescribed the composition of the military courts
which he contended prescribed the requirement for the appointment of assessors. H e
submitted that it would be impermissible for parties before the Supreme Court of Appeal
to waive the requirement of a panel of multiple judges and so too w as it impermissible for
an accused in the military court to waive the statutory requirement of the presence of
assessors. H e contended that safeguard ensured military justice was administered in
accordance with the law rather t han at the convenience of the parties concerned .
Moreover he contended that the composition of a panel in the Supreme Court of Appeal
was not shaped by the “whims of preferences ” of the part ies to an appeal and so too was
the composition of a court o f a military judge not a matter that could be left to the
discretion of either the accused or the prosecution save in one very limited respect in that
an accused could elect to have a Warrant Officer as one of the military ass essor s. He
submitted that adherence to the statu tory prescri pt was vital for “the integrity of the court ”
to be preserved and ensure d that the trial process was not only fair but also perceived as
such by all concerned . In that vein he contended that the presence of military a ssessors
31 | P a g e
like the presence of multiple judges in the Supreme Court of Appeal served what he
referred to as the crucial purposes of:
1. “It ensures a diversity of perspectives and expertise in decision -making.
2. It safeguards the integrity and fairness of the judicial process.
3. It upholds the structural r equirements of the justice system as envisioned by the
legislature .”

[60] In effect , coun sel for the applicant sought to contend that to allow the accused the
election of a trial without ass essors would be what he referred to “as tantamount to be
permitting appellants to select a single judge of the Supreme Court of Appeal to hear its
case ”. He added that such a departure will strike at the very heart of the judicial process
and would fundamentally alter the character of the court. In rather strange terms he
contended that would “not merely bend but break the legislative intent that lay behind the
prescribed composition of the court as the composition was not a mere procedural nicety
but the safeguard of justice itself .” He added that the presence of ass essors was not a
mere convenience or choice insofar as it was a mandatory struct ural requirement laid
down by the legislature and not open to waiver by an accused person or left to the
discreti on of the court . He contended that interpretation was entirely consistent with a
principle d approach to “court composition ” seen throughout our constitutional framework
and the legislation governing Superior Courts .

[61] The composition of courts under the Constitution is dealt with under C hapter 8
thereof . It specifically provides for the constitution of the Constitutional Court as consisting
of a Chief Justice , a D eputy Chief Justice and nine others . Section 2 (2) of Section 167
provides that a ma tter before a Constitutional Court must be heard by at least eight
judges . As already referred to Section 168 provides that the composition of judges of the
Supreme Court of Appeal must be decided by the number of judges determined in terms
of an act of parliament such as is provided for in the Superior Courts Act. The composition
of the High Court is likewise dealt with by the S uperior Courts Act and in criminal matters
in both the Superior Court ’s Act and the Magistrates Court s and too in the Criminal
32 | P a g e
Procedure Act. Importantly , the appointment of assessors in criminal trials in the High
Court and in the Magistrates ’ Court s are not entirely mandatory. In that r egard it is to be
noted that a Regional Court and High Court may impose the highest form of punishment
on an accused person of life imprisonment without the court having , of necessity, being
constituted also of assessors . The fairness of the outcome of convictions or sentences
are not tainted by the lack of assessors w here neither an accused person nor a court has
elected to sit without assessors .

[62] Significantly , the Act provides in Sections 20 (2) that “when the assessors
contemplated in subsection 1 are appointed , the person who does the appointment shall
take into account ” the military , cultural and social environment of the accused , the
educational background of the accused and the nature and the seriousness of the offence
in respect of which the accused is charg ed. Counsel for the applicant sought to contend
that the nature of the military court required an ass essor to bring a military background to
the proceedings . That contention simply ignored the fact that the legislature as provided
for in Section 10(1)(a) for the appointment of a military judge who is an officer of not less
than field rank and w ith not less than three years ’ experience or an practicing advocate
or attorney of the High Court or an officer of not less th an field rank and with three years ’
experience in the administration of criminal justice o r military justice assigned in terms of
Sections 14 (1)(b) to act as a military judge . Sections 14 deals with the power of the
Minister in respect of assignment and 14 (1)(b) provides “the Minister shall a ssign officers
to the function …..(b) a senior military judge , military judge referred to in Sections 13 (2)(a)
“only an appropriately qualified officer holding a degree in law may be assigned to the
functions of a senior military judge or military judge (b) ….(c) …(d) … In effect the
legislature provides for an appropriately qualified military judge as an officer with a degree
in law as its most basic requirement . More importantly , the accused enjoys an election to
have two military assessors appointed i n addition to the legally trained military judge .
There is , in my view , nothing in the election that would detract from the fairness to the
legal proceedings either in terms of section 35 or sections 34 of the Constitution . The
election in itself , in my view , enhances the fairness afforded to an accused person in a
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military court and the exercise of that election , more importantly arises only after the
accused has peremptorily been informed of the right of election under Section 30 (24)(a)
by the military judge.

[63] More importantly , in my view is the fact that it is the accused him self or herself that
enjoys the election for the appointment of asse ssors which in the words of coun sel for the
applicant would “ensure a diversity of perspectives and expertise in decision - making ” if,
in my view , the accused person so elects . In addition, the trial is presided over with the
expertise of a qualified military judge . The choice (s) given to an accuse d person in my
view enhances the integrity and the fairness of the judicial process contended for by the
applicant .

[64] In support of the applicant's contention that the appointment of assessors was
mandat ory, counsel for the applicant also sought to rely on the Afrikaans text in respect
of the relevant provisions of the Act.

[65] The English text of the Act was signed by the President and Sections 82 of the
Constitution provides that it is conclusive evidence of the provisions of the Act.

[66] Section 82 provides :
“The signed copy of an Act is conclusive evidence of the provisions of that Act and, after
publication, must be entrusted to the Constitutional Court for safekeeping. ”
In this regard , counsel for the applicant referred to the view s expressed of LM Du Plessis
in LAWSA V olume 25 (1) 2nd edition at 354 with reference to the subject of “Constitutional
Jurisprudence on Multilingualism .” The writer contend s that inasmuch as Sections 82
makes no reference to a possible inconsistency of various versions of the Act “it simply
states one version of an A ct (out of a possible of 11 ), namely the one signed by the
34 | P a g e
President will be conclusive evidence of the provisions of the Act. The explicit exclusion
of an inconsistency mechanism he argued was “an implicit recognition of the intrinsic
occurrence of the different versions of legislated t exts. It therefore opens the door to the
fullest possible development of the principles of the case law as it stands ”.

[67] In his heads of argument counsel for the applicant extensively set both the English
and Afrikaans versions of Sections 10, 20 and 30(24). In fact , he sought to rely on more
on the provisions of the English and Afrikaans text in respect of sections 10 (1) and
sections 30(24). In respect of Section 10 (1) he highlighted that the Afrikaans text in 10 (1)
refers to “’n hof van ‘n militêre regter bestaan uit ...” as opposed to the English text as “”a
court of a military judge shall consist of ...”(my emphasis) In this regard he contended that
the reference in the Afrikaans version to “bestaan uit ” directly transl ates to “consist of ”
which he submitted implied an established fact about the composition of the court. He
contended that inasmuch as the compositio n of the court was treated “as an existing and
unchangeable fact” the Afrikaans wording left no room for deviation . He contended that
the English version of “shall consist of” although typically understood as a mandat ory
directive still introduce d the “possibility that compliance is something that must be
achieved rather than something that inherently exist s”. He therefore contended that the
use of the word “shall” in English whilst prescriptive was potentially less rigid than the
Afrikaans version with reference to “an existing structure .”

[68] In my view whatever nuance counsel for the applicant sought to give to the words
“bestaan uit ” simply ignored the fact that Section 10 (1)(b) both in the English and
Afrikaans texts made the composition of the court of a Military Judge , “subject to Section
20 and Section 30 (24) and a military assessor ” which read equally in Afri kaans
“beho udens Artikel 20 en 30(24) , ‘n militêre assessor ”. Both the English and Afrikaans
versions of the Sections 10(1)(b) qualified the composition of the court as be ing subject
to Sections 20 and 20(24). On the contention of counsel for the applicant , the reference
to the proviso in Section 10(1)(b) in either of the texts would simply have to be ignored .
In my view, such an approach would be wholly impermissible and subversive of the actual
35 | P a g e
provisions of the Act. In my view the reliance on the Afrikaa ns wording “bestaan uit ” in
Sections 10 (1) does not assist the applicant in his interpretation of the Act as mandating
the appointment of military assess or(s).

[69] Moreover, the word s “consisting of ” in Sections 30(24)(a)(1) in the English text
compared to that of the Afrikaans text provides the equivalence of “bestaande uit ” which
defeats the argument of the applicant as an “existing ” composition of the court as a fait
accompli .

[70] Counsel for the applicant also soug ht to rely on the Afrikaans word of “moet ” in the
heading in Section 30(24). He contended that the Afrikaans “moet ” carried a “stronger
tone of compulsion compared to “shall” as it posited an unavoidable requirement . He
contended that “moet ” is close r to the meaning of “must ” than “shall.” and must was a
strong indication that the provision was peremptory. Counsel for the applicant failed to
appreciate that the direct translation of the English word “shall” into Afrikaans is that of
“moet ”16. In my view coun sel for the applicant ’s reliance on the Afri kaans version was
strained and a vain attempt to find a peremptory injunction to the appointment of
assessors in a military court . Moreover , other than relying on the bilingual school
dictionary -Afrikaans ( Pharo s 2016) w ith regard to the meaning of the words “bestaan ”
there was simply no linguistic expertise provided to assist him in any of his contentions .

[71] Regrettably , in my view the reliance on the Afrikaans version was no more than a
red herring to the proper interpretation of both the English and Afrikaans versions of the
provisions that the applicant sought to rely upon .

[72] A further contention that coun sel for the applicant sought to make in support of the
interpretation preferred by the applicant of a mandatory ass essor (s) was what he

16 Bilingual School Dictionary -Eng/Afr . (Pharos 2016) .
36 | P a g e
regarded as the more limited election afforded to an accused person in Section 30(24)(b)
as no more than one of the assessors may by choice be a Warrant Offi cer. That
interpretation in my view, simply ignore s the literal wording of the section and moreover
ignores the very election given to an accused person of having two assessors
participating in the proceedings .
In respect of the contention made in the heads of argument by counsel for the applicant
relating to that of “waiver ” and the provisions of section 30(24) , he sought to rely on the
maxi m “expressio unius est exclusio alterius .”17 In oral argument he sought to suggest
that the maxim was a construct of interpretation . In that regard he sought to rely on a
decision of Beadle, J in an old “Rhodesian ” judgment of Taylor v Prime Minister 1954 (3)
956 ( SM), which in my view , he incorrectly contended was “on all fours ” with th e present
matter . The core issue dealt with in that matter revolved around the proper interpretation
of statutory provisions as to whether an individual had legal authority to wai ve a
procedural safeguard established by the statute . In my view , counsel for the applicant,
hopelessly failed to appreciate that the central issue dealt with in th at matter was whether
and when the doctrine audi alteram partem applied to an administrative act with regard
to the issuing of a notice to have prohibited an immigrant from entering Rhodesia . In that
matter , the applicant who had arrived from Derbyshire , England was detained at Salisbury
on the basis of a decision taken by the Minister of Internal Affairs that refused him entry
into Rhodesia as a prohibited immigrant in terms of the Immigrants Regulations Act,
Chapter 16 . The applicant ’s contention in that matter , was that he had not been afforded
an opportunity of making representations in his defense prior to the order being made
and served on him and was therefore a violation of an elementary principle of justice .
Despite the court remarking , that it was a rule of law that was well established in the
administration of justice that a dministrativ e action should not deprive a subject of “his(sic)”
libert y without giving th e subject an opportunity of making representation s, the court in
utter deference , found that parliament had by express words or by necessary implication
deprive d the subject of that right. The court found though , that he could exercise that right
after the decision was made. Moreover , the court dealt with the application of the maxim

17 That the mention of one thing amounts to the exclusion of another.
37 | P a g e
“expression unius est exclusio alterius ” to the factual circumstances of that matter . In that
regard it stated that courts of law frequently laid down that the maxim had to be applied
with extreme caution and scope (the scope of the maxim had been dealt with by Innes,
JA (as he then was) in the case of Ponty v Cran at 965). The applicant ’s reliance on the
application of the maxim in the decision of Taylor, which decision in my respectful view
represented the pre-Constitutional South African jurisprudence and was rather restri ctive
was hopelessly misconceived and was most certainly not “on all fours ” with this matter
nor with our progressive constitutional jurisprudence .

[73] In his heads of argument counsel for the applicant also contended that Section
10(1)(b) of the Act “clearly stipulate d” that a Court of a Military Judge “…must include two
military assessors: two military ass essors must be appointed for trials in a court of a
military judge ”. He contended that the Act “does not say there can be one assessor . There
cannot be one a s opposed to two assessors for a trial in a military Court of Justice . The
Act is very specific and requires the appointment of two assessors .” Clearly that is not
what Section 10(1)(b) states other than with regard to it being subject to the elaborate
provisions of Section 20 and that of Section 30 (24).
He added that , “in other words the fact that reference has been made to only one assessor
and not two must be ignored ”. He contended that , based on that interpretation t he
requirement that two military assess ors had to be appointed was unambiguous and had
to be followed . In his debate with the court, he accepted that the appointment of only one
military ass essor , if provided as such in Sections 10 (1)(b), would be of little or no
consequence and would amount to no more than an absurdity . The appointment of only
one assessor would defeat the very purpose of the role of ass essor s where the Act makes
provision that the findings of the presiding military judge would prevail over a “remaining
assessor ” where one has been recused or disqualified . Moreover , in the same breath ,
coun sel for the applicant contended that the court “may not ignore any words ” in the
construction of legislation as that would defeat the intention of the legislature and
submitted that none of the authorities relied upon , such as Endumeni provided the court
with any such latitude . However , the court has not sought to ignore any of the words
38 | P a g e
preferred by the legislature in Sections 10 (1)(b) other than to read it in the proper context
of the entire sentence and with reference to the provisos in sections 20 and 30( 24).

[74] The interpretation afforded to the provisions of the Act that the appointment of
military ass essors is at the election of an accused as opposed to a mandat ory requirement
accords with that of the authors M Nell, S Els and VE Sib iya in a recently published
handbook entitled Applied Military Justice for Practitioners , Juta 2024. The authors
preface the book as a culmination of many decades of experience in the practice and
teaching of military law. Each of them occupy the rank of Lieutenant Colonel in the
SANDF , are all legally qualified with extensive experience in military justice and have
taught at various universities around the country . In setting out in detail the various
stages of the preliminary investigation, they point out that the fifth stage “…election of
assessors requires “…the recording officer must inform the accused that he will be tried
by a military court consisting of a presiding judge, and that he may elect to have two
assessors appointed, one of whom can be a warrant officer , (author` s emphasis) ”. In this
regard they make specific reference to Sections 30(24) of the Act18. They also point out
that the recording officer must explain the duties and the functions of the assessor to the
accused and that the accused will be provided with the opportunity of both reading and
acknowledg ing the election made by signing what the authors refer to as a “Section 30 (24)
Act MDSM A certificate ”19. They refer to the MDSMA certificate as an Annexure which has
arisen in practice and is similar to that which the applicant signed as evidenced and
attached to the founding affidavit (Annexure FA1);

18 Chapter 4: Pre-Trial Procedure and the Gathering of Evidence, 4.6.4.1 .
19 Applied Military Justice for Practitioners, M Nel et al, Section (v) Sta ge 5: Election of assessors . “See s 20(1) – (12)
of the MDS MA read with rule 15 of the Rules of Procedure . See the overleaf of Annexure 4 -9. The recording officer
can read from this document when explaining the right to choose assessors .”
39 | P a g e

The authors also point out that “in the event when an accused elects to have assessors
at a m ilitary trial the person who does the appointment with reference to the legislation
must consider the military, cultural and social environment of the accused, the educational
background of the accused and the natu re and the seriousness of the offences in respect
of which the accuse d is to stand trial .”20 Importantly, they also highlight that a military
assessor must perform her/his duties in an independent and impartial manner . They
further point out that the role of the military ass essor is similar to that of an assessor in
lower civilian courts with reference to the provisions of Sections 93 tier 1 (1)(a) of the

20 See above .

40 | P a g e
Magistrate ’s Co urt Act 32 of 194421 . They p oint out that a military accused may elect to
have assessors in any matter before a military court where a preliminary investigation
was held. That , they contend is very different from a civilian accused in a lower court who
will only have such a right in the event of being charged with the offence of murder22.

[75] Coun sel for the respondent s referred to the decision of Ranchod, J (writing on
behalf of the full court) in Minister of Defen ce and Others v P ower Mand la Mbambo 2017
SA Case No: A358/2015 . The matter related to an appeal against the decision in which
the court a quo granted the respondent cond onation for the late bringing of a review
application and in which the application was upheld on the merits. In that matter the
responde nt likewise held the rank of Captain in the South African National Defense Force
and had been dismissed after a hearing before a military judge on a charge of intimidation
as well as assaulting a superior officer . The proceedings were conducted in terms of the
Act.

[76] Amongst the issues to be determined in th e matter were; whether cond onation
should have been granted for bringing of the review application some eleven years out of
time, and whether a preliminary investigation as contemplated in the Act had been held
prior to the trial in the military court . Importantly , the third issue identified by the court for
determination was whether the fact that the military trial judge sat without ass essors w as
permissible under the Act , alternatively, whether the military trial without ass essors was
per se unfair.


21 See above . Magistrate may be assisted by assessors -
(1) The judicial officer presiding at any trial may, if he deems it expedient for the administration of justice -
(a) before any evidence has been led; or

22 See above. See s 93ter(1) (a) of the Magistrates ’ Courts Act 32 of 1944. However, the military accused may elect to
have assessors in any matter before a military court where a PI was held. This is very different from the civilian accused
in lower courts that will only have such a right in the event of a murder case.
41 | P a g e
[77] Of relev ance to this matter was the findings of the court at paragraph 40 where it
stated :
“In terms of s32(4)(d) of the Act military assessors are appointed only ‘where applicable ’
and not inevitably . Hence, in the military context, a different set of values inspired by the
imperative for military discipline apply and therefore trial before assessors is not a
condition or requirement for a fair or just trial ”. (footnotes omitted as it referred to
paragraphs dg 84 of the decision of the Constitutional Court Legal Soldier (Pty) Ltd v
Minister of Defence already referred to above). ”

[78] In respect of its contention with regard to the appointment of military assessors the
Court held that it was common ca use that the trial had taken place without the assistance
of military ass essors. It was also apparent from the respondent's founding papers in that
matter that it was not his case that he had been deprived of his right to have ha d
assessors preside with the judge in the trial nor was his case based on a complaint that
his trial was unfair because it took place without the assistance of military assessors.
Those were not the issues in the case that the SANDF had been called upon to meet.

[79] However, the Appeal Court pointed out :
“[49] The respondent simply alleged that his military trial took place without a military
assessor , apparently on the supposition that such a trial of an officer with the rank of
Captain was a nullity per s e. His c omplaint on the papers was not, as the court a quo
assumed, that the military judge had the legal duty but failed to inform him of his right to
elect to be tried before a court composed of a judge and assess ors. In this, the court are
quo, with respect, de parted from the wrong premise. ”

[80] Counsel for the applicant contended that the issue in that matter really relate d to
what was said by the court in paragraph 49 . To the contrary, however, it is clear in my
view that the court, albeit only having dealt with the provisions of Section 32(4)(d) o f the
42 | P a g e
Act arrived at the view that military assessors did not inevitabl y have to be appointed, but
only “where applicable. ” In this regard, Section 32(4)(d) provides ;
“A notice of enrolment contemplated in subsection ( 3) shall state the particulars -
(a) …
(b) …
(c) …
(d) Where applicable , of the military assessors. ”

[81] In my view the finding of the court e ven on that very limited basis was correct and
remains persuasive authority for this court .

[82] In the paper by Captain A.E. Tshivhase , referred to above23, he critically examines
whether the courts o f military judges meet the standards of independence. As a Captain
in the SANDF w ho was also formerly a member of the regular force w here he served as
a military defence coun sel and previously a s a part-time military coun sel, he proffered
some very interesting insights with regard to the operations of the court and his concerns
with regard to its independence and makes various suggestio n with regard to dealing with
the concerns raise d. In dealing with the Court of a Senior Military Judge and the Court of
a Military Judge i n Sections 9 and 10 respectively, he remarks in a footnote24 in respect
of Section 9 (1)(a) “military assessors are generally appointed at the instance of an
accused person. The military ass essor system is rarely used in practice .” Likewise , in
respect of the provisions of Sections 10 h e point ed out that a Court of a Military Judge is
comprised of a judge of less seniority and experience and is composed of an officer of
not less than field rank having appropriate legal experience, “in addition to a military

23 The paper by Captain A.E. Tshivhase is also referenced in the bibliography in the Handbook by Nel and Others.
24 Military Discipline Supplem entary Measures Act [No 16 of 1999] (SA) s 9(1(a). Military assessors are generally
appointed at the instance of an accused person. The military assessor system is rarely used in practice .
43 | P a g e
assessor if the accused request one ” and here specifically refer red to the provisions of
Sections 10 (1)(a), and (b) of the Act25.

[83] In his heads of argument, counsel for the applicant contended under the heading
“Constitutional Values and Public Policy” that the appointment of assessors were not
merely procedural safeguards, but were critical to uphold ing the constitutional right to a
fair trial. In thi s regard, he referred to the decision of Beadica 231 CC v Trustees for the
Oregon Trust 2020 (5) SA 247 (CC) where reference was made to Barkhuizen v Napier
2007 (5) SA 323 (CC) , that courts must balance the various constitutional rights and
values to ensure th at proper procedural justice is not sacrificed for expe diency. H e
contended that the respondent ’s “flexible interpretation ” would erode these fundamental
rights by depriving military personnel of the expertise that assessors contribute to trials.
In this regard he appears to be referring to the provisions of Section 39(2) of the
Constitution which provides that when interpreting any legislation a nd when developing
the common law or customary law every court , tribunal or forum must promote the spirit,
purport and the objects of the Bill of Rights. That, notwithstanding the applicant ’s
disavow al of raising any constitutional issue w ith regard to the interpretive determination
in the matter . Nonetheless as already stated, the court is bound by the provisions of the
Constitution in section 39(2) . The applicant however made no serious contention that the
provisions of Sections 34 under the Constitution of access to the courts were violated in
that an accused person will not receive a fair public hearing before “a trial o r where
appropriate another independent and impartial tribunal or forum. ” The applicant does not
contend that a trial without the appointment of military assessors would violate his right
to a fair trial. Nor, do I think could he do so with any seriousness or merit in as much as
he enjoyed the election to the appointment of asses sors which as a matter of fact he

25 Less Seniority and experience are required for the Court of a Military Judge. It is composed of an officer of not less
than field rank having appropriate legal experience, in addition to a military ass essor if the accused requests one. As
in the case of the Court of a Senior Military Judge , the appointee must hold a degree in law, be appropriately qualified
and fit and proper. The Court of Military Judge has jurisdiction to try any person subject to the MDC other than an office r
of field or higher rank and may not try murder, treason, rape , culpable homicide, or any offence under sections 4 and 5
of the MDC. It may, on conviction, sentence the offender to any punishment referred to in Section 12 of the MDC,
subject to a maximum sentence of imprisonment f or a period of two years.
Military Discipline Supplementary Measures Act [No 16 of 1999] (SA) s 10(1)(a)(b).
44 | P a g e
exercised . Moreso, neither is there any serious contention that the trial before a military
judge sitting without asses sors is in violation of Section 35 (3) of the Const itution. There
is, in my view, nothing , per se, unconstitutional about a military judge sitting alone without
assessors that would lead to the conclusion of an unfair trial. More importantly, given the
very fact that the accused person enjoys a discretion under Section 30( 24) to make an
election as to whether she or he would want the appointment of two assessors at the trial
and also an election that one should be of the rank of Warrant Officer . in my view , fortifies
the fairness of the proceedings . The c ontention by the applicant also ignores the very
firm injunction to the Military Judge at the end of the pre -trial investigation to explain to
an accused his right of election and, importantly, the role of an assessor as set out in
Section 20(1), (2), (3) and (4) all of which would properly inform of him or her of the right
of election and the role and responsibilities of assessors in the proceedings .

[84] Coun sel for the applicant further contended that a contextual reading of the Act
and in particular Section 20 that outline d the procedures for the appointment of assessors
as to what he regarded was the emphasi s of the integral role of assessors in military trials.
He pointed out that inasmuch as the context had to be considered when interpreting the
statutory provisions he sought to rely on the views expressed by Khampepe, J in
University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (6)
SA 1 (CC) in support of the contention that the system of military justi ce confirm ed
that assessors were not merely optional, but were a critical component to ensuring a
fair trial . As already indicated no case had been made by the applicant in support of th e
interpretation that a court sitting without military assessors at the election of an accused
person amounted to an unfair trial . If anything, the option provided to an accused, fully
informed on the record by a Military Judge of his /her rights and the nature of the role of
assessors and so certified by the accused her/himself , in my vie w, enhanced the fairness
of the election to appoint , military ass essors and an affirmation of an accused `s right of
choice .

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[85] In reliance on the decisions of the Supreme Court of Appeal in KPMG Chartered
Accountants (SA) v Securefin Ltd 2009 (4) SA 399 (SCA) at [39] counsel for the applicant
contended that the interpret ive exercise of the relevant provisions required of the Court
to consider the underlying goals of the statute . He contended that the purpose of Section
10 of the Act was to ensure that military justice benefited from the expertise of military
assessors who he claimed , brought vital insight s into specific military issues. Interestingly,
in this matter, there were no specific military issue s at hand other than the fact that the
applicant had been charged with and convicted of having sexually abused young female
recruits in the South African Navy , more so, that he had conducted himself with impunity
and with the abuse of his position of authority and as a senior male nurse at that . Coun sel
for the applicant further contended that if a trial proceed ed without assessors, it would
undermine the purpose of the provisions of Section 10 which he contended safeguard ed
fairness and informed decision making in military proceedings . That, in fact, is in my view,
exactly what Sections 10 read together with the provis o`s of Section 20 and importantly
Section 30(24) provide d for in as fair a procedure as possible , through an informed
decision -making process and importantly an election by an accused person as to the
composition of the military court .

[86] Counsel for the applica nt further contended that a purposeful interpretation did not
license “judicial overreach ” and in this regard referred to the decision of the Supreme
Court of Appeal in Capitec Bank Holdings Ltd v Coral Lagoon Inv 194 (Pty) Ltd 2022 (1)
SA 100 (SCA) where at paragraph 26 the following is stated :
“Endumeni is not a charter for judicial constructs premised upon what a contract should
be taken to mean from a vantage point that is not located in the text of what the parties in
fact agreed . Nor does Endumeni license judicial interpretation that imports meanings into
a contract so as to make it a better contract, or one that is ethically preferable. ”

[87] In support of this contention, counsel for the applicant contended that a court
should not alter the clear wording of the statute under the guise of a purposive
interpretation and more importantly the court was boun d to interpret the text “as it stands
46 | P a g e
without reconstructing it to fit a perceived or desirable outcome ”. In the same breath he
contended that S ection 10(1)(b) explicitly required the presenc e of military ass essors and
the court “cannot interpret this requirement away in the interest of expediency and
perceived fairness ”. In my view counsel for the respondent again failed to appreciate the
full context of the interpretive process and the giving of expression to the election of an
accused person in a military trial, which in my view does not in any way amount to
expediency nor a reconstruction of the provisions of Section 10 to fit what he re ferred to
as a perceived or desirable outcome . In my view, the wording of the statute in Section
10(1)(b) is perfectly clear and does not allow for any ambiguity other than a reading of it
in its proper context with the very provisions referred to therein, Section 20 and Section
30(24) .

[88] Again , counsel for the applicant resorted to the claim that the respondents had
failed to adopt what he refer red t o as a “unitary exercise of interpretation ” in that an
assessor could be dispensed with by an accused and claimed that the respondent had
simply misread the interplay between text, context and purpose and again referred to the
authorities of Capitec and Endumeni , (above ). Counsel for the applicant yet again
incanted that the text “mandated two assessors ” and cont ended that the context
supported the necessity of assessors for fairness in military courts which he claimed , the
purpose was , to ensure justice within the unique framework of military discipline . In this
regard, he again contended that an interpretation that allowed for an accused to proceed
without an assessor(s) undermined the unitary approach and defeated the purpose of the
legislation where he contended that the purpose of Section 10 was to ensure that military
justice benefited from the expertise of military asse ssors. In my view, there is nothing in
the interpretation sought by the respondent that the appointment of assessors was other
than through an informed election by an accused that in any way undermined the
purpose of the legislation, nor th at the frame work of military justice, could not be
achieved whe re an accused person elected not to have military assessors preside in the
proceedings over him or her . In my view and consistent with the expressed views in both
the matters of Freedom of Expression Institute and Legal Soldier , referred to above, both
47 | P a g e
the structure and content of military justice must conform to the rigours of the Constitution
and does not create a separate system of justice. History, in my view , is replete with a
well-founded skeptic ism and experiences of many countries of unique forms of “military
justice ” and the expediency of its use. The new Act harmonizes justice in the military
context with that of justice under the Constitution.26

[89] Counsel for the applicant in his heads of argument also dealt at length with what
he contended w ere the broader implications and significance of th e court’s interpretive
ruling on military justice . The court is particularly mindful of the implications of any
interpretation a court prefers in the interpretation of statutory legislation and what its
consequences might or could be. The law makes adequate provisio n therefore . The
interpret ation of provisions of a statute is arrived at by a court after having considered the
text and in application of the relevant law, the application of the canons of interpretation
such as the text, the context and purpose of the provision (s) within the overall statute and
importantly that the interpretation must promote the spirit , purport and objects of the Bill
of Rights .

[90] In my determination of the interpretation , I am more than convinced in upholding
the preferred interpretation sought by the respondent, having considered, and regrettably,
in almost tedious detail , the provisions of the Act which in my view supports the
interpretation that an accused person in military court proceedings pre-eminentl y enjoy s
an election for the appointment of assessors .

[91] Having determine d the interpretive issue, the application to set aside the
proceedings of the military court must fail . The applicant has in such event reconcil ed
himself to his fate in the findings of the Court of Appeals, which confirm ed his conviction

26 See the useful and very insightful views expressed by the authors Nel and Els in the first chapter headed
INTRODUCTION TO SOUTH AFRICAN MILITARY JUSTICE SYSTEM of the Handbook on meaning of military justice
and military law , pages 1 -45 .
48 | P a g e
and sentence d him to cashiering27. I am acutely mindful that the challenge raised about
the constitutionally of the sentence of cashiering was abandoned by the applicant and
specifically where such sentence takes place in an open and ceremonial parade that
could lead to a violation of the d ignity of a convicted person. Moreover, the court had not
heard any substantive argument on the issue. I must, however, record that I tentatively
share the concern raised by the applicant . A public cashiering before his unit in the military
context harkens , in my view, to some of most the backward practices of medieval England
and has no place in a modern constitutional democracy. It does not, in my view, vindicate
nor bring any solace to the victims of a convicted person and most certainly does not
enhance the esteem and discipline of a modern Defence Force. In my view , the concerns
initially raised by the applicant on that score were not entirely without merit. This view
does not detract from the seriousness of the offences of which the applicant wa s
convicted of, nor from th e fact that he abused his position with impunity and more
importantly the considered censure imposed by the Court of Military Appeals .
Nonetheless, I expect that the respondent s would in caring out the sentence of cashiering ,
do so w ith due regard to the dignity of the applicant.

[92] In the result and save for the concerns raised by th e court about the sentence of a
public and ceremonial cashiering , the following order is made :
The application is dismissed wit h costs, including the costs of two counsel where so
employed , save for the costs tendered by the respondent s for the postpone ment of the
hearing of 30 May 2024 . All costs of counsel are to be recovered on scale C.

___________________________
VC SALDANHA
JUDGE OF THE HIGH COURT

27 No doubt in doing so the respondent is enjoined by the Constitution to ensure that such sentence takes place without
undermining the dignity of the accused , while at the same time ensuring that military justice and discipline is maintained.