CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 14/23

In the matter between:


MINISTER OF DEFENCE AND MILITARY
VETERANS First Applicant

CHIEF OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE Second Applicant

SECRETARY OF DEFENCE AND
MILITARY VETERANS Third Applicant

SOUTH AFRICAN NATIONAL
DEFENCE FORCE Fourth Applicant

and

LIEUTENANT-COLONEL KEVIN
BRUCE O’BRIEN N.O. Respondent

and

INTERNATIONAL COMMISSION OF JURISTS Amicus Curiae

In re:

LIEUTENANT-COLONEL KEVIN
BRUCE O’BRIEN N.O. Applicant

and

MINISTER OF DEFENCE AND MILITARY
VETERANS First Respondent

CHIEF OF THE SOUTH AFRICAN
NATIONAL DEFENCE FORCE Second Respondent

SECRETARY OF DEFENCE AND
MILITARY VETERANS Third Respondent

SOUTH AFRICAN NATIONAL
DEFENCE FORCE Fourth Respondent



Neutral citation: Minister of Defence and Military Veterans and Others v O’Brien
N.O. [2026] ZACC 9

Coram: Mlambo DCJ, Dambuza AJ, Kollapen J, Majiedt J, Mathopo J,
Mhlantla J, Nuku AJ, Opperman AJ, Rogers J, Savage AJ and
Tshiqi J

Judgments: Majiedt J (unanimous)


Decided on: 10 March 2026

Summary: Military Discipline Supplementary Measures Act 16 of 1999 —
Variation of court order — extension granted for military judges
to complete part -heard cases — declaration of invalidity further
extended for remedial legislation to be enacted




ORDER



On application for variation of an order of this Court:
1. The order granted on 20 December 2024 is varied as follows:
(a) Paragraph 5(c) of the order is varied by substituting it with the
following: “The current 24 serving military judges whose
assignments lapse on 31 March 2026 may continue in office until
their part -heard matters are finalised, but not later than the
extended suspension period.”
2. The period of suspension of the declaration of invalidity in paragraph 5(f)
of the order is extended until 30 June 2027.

2

3. The declaration of invalidity in paragraph 5(f) of the order shall remain
suspended during the extended period on the terms of this variation order,
read together with the existing court order.



JUDGMENT




MAJIEDT J (unanimous):


[1] On 20 December 2024, this Court made an order in these terms:

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

MAJIEDT J
3
(b) Section 15 of the Military Discipline Supplementary Measures Act 16
of 1999 is unconstitutional and invalid to the extent that it empowers
the Minister of Defence and Military Veterans (Minister), acting on
the recommendation of the Adjutant General, to assign judges for
renewable periods.
(c) The existing practice of assigning judges for renewable periods of one
to two years is unconstitutional and unlawful. Pending the coming into
operation of remedial legislation, the assignment of a military judge
may not be renewed until the lapse of at least two years since that
person’s last assignment.
(d) Section 17 of the Military Discipline Supplementary Measures Act 16
of 1999 is unconstitutional and invalid to the extent that it empowers
the Minister, acting on the recommendation of the Adjutant General,
to remove a military judge and that the Minister may do so without any
independent inquiry into the fitness of the military judge to hold office.
(e) Pending the coming into operation of remedial legislation, the Minister
may devise processes for an inquiry into the fitness of a military judge
and the composition of the inquiry body, provided that—
(i) it is an independent inquiry; and
(ii) a military judge may not be removed , except on the
recommendation of the independent inquiry.
(f) The declarations of constitutional invalidity above are suspended for a
period of 24 months to allow r emedial legislation to be enacted and
brought into operation.
6. The first respondent is ordered to pay half of the costs of the applicant in the
Supreme Court of Appeal and the High Court, including the costs of two
counsel where so employed.
7. The first respondent is ordered to pay the costs of the applicant in this Court,
including the costs of two counsel where so employed.”1


1 O’Brien N.O. v Minister of Defence and Military Veterans [2024] ZACC 30; 2025 (2) SA 613 (CC); 2025 (4)
BCLR 460 (CC) (O’Brien CC).

MAJIEDT J
4
[2] The applicants seek the variation of the order and also an extension of the period
of suspension (variation application). This variation application is being decided on the
parties’ papers, and without any written or oral argument. The matter originally entailed
the convening of military boards of enquiry and the assignment of military judges . As
can be gleaned from the ord er, this Court declared certain legislative provisions
unconstitutional, namely sections 101 and 102 of the Defence Act2 and sections 15 and
17 of the Military Discipline Supplementary Measures Act 3 (MDSMA). Our order
contained various interim provisions pending the coming into operation of corrective
legislation, including a provision precluding the renewal of assignment of military
judges until a period of two years has lapsed since the last assignment. The first
respondent has filed an answering affidavit. While he does not oppose the relief sought,
he highlights certain unsatisfactory aspects in the application for variation.

[3] A synopsis of the backdrop to the order is necessary. The case concerned the
independence of military c ourts, in particular two military c ourts of first instance
established under the MDSMA, the Court of a Military Judge and the Court of a
Senior Military Judge. The applica tion was brought by Lieutenant-Colonel Kevin
Bruce O’Brien of the South African National Defence Force (SANDF) , a former
military judge employed as an instructor at the School of Military Justice, Pretoria. In
a counter-application before the High Court of South Africa, Gauteng Division, Pretoria
(High Court), he challenged the constitutionality of the said sections. That counter-
application was in response to the main application, a review application by the present
first applicant, the Minister of Defence and Military Veterans (Minister), against certain
orders made by the applicant in proceedings where he had presided as a military judge,

orders made by the applicant in proceedings where he had presided as a military judge,
concerning his apprehension about the unconst itutionality of the impugned provisions.
The High Court upheld the review relief and dismissed the applicant’s counter -
application on the basis that the impugned provisions were constitutionally compliant.4

2 42 of 2002.
3 16 of 1999.
4 Minister of Defence and Military Veterans v O’Brien N.O. , unreported judgment of the High Court of
South Africa, Gauteng Division, Pretoria, Case No 76995/18 (2 August 2021).

MAJIEDT J
5
The Supreme Court of Appeal dismissed Lieutenant-Colonel O’Brien’s appeal on the
basis of mootness.5

[4] In declaring sections 101 and 102 of the Defence Act unconstitutional, this Court
held that executive control over the convening and conduct of military c ourts is
constitutionally offensive for a variety of reasons. 6 This Court further found the
renewable term of military judges constitutionally deficient, struck section 15 of the
MDSMA down and made an interim order that, pending the coming into operation of
remedial legislation, the assignment of a military judge may not be renewed until the
lapse of at least two years since that person’s last assignment.7

[5] Lastly, section 17 of the MDSMA was declared unconstitutional and invalid to
the extent that it empowers the Minister, acting on the recommendation of the
Adjutant General, to remove a military judge and that the Minister may do so without
any independent inquiry into the fitness of the military judge to hold office. This Court
ordered that, pending the com ing into operation of remedial legislation, the Minister
may devise processes for an inquiry into the fitness of a military judge and the
composition of the inquiry body, provided that (a) it is an independent inquiry; and (b)
a military judge may not be removed except on the recommendation of the independent
inquiry.8

[6] In their notice of motion in the variation application, the applicants seek—
(a) variation of paragraph 5(b) of the order by adding: “ [T]he Minister may
assign military judges on the recommendation of an independent inquiry
body that is constituted in terms of Court order 5(e)”;
(b) variation of paragraph 5(c) of the order by substituting it with the
following:

5 O’Brien N.O. v Minister of Defence and Military Veterans [2022] ZASCA 178; [2023] 1 All SA 341(SCA).
6 O’Brien CC above n 1 at para 108.
7 Id at paras 110-12 and 119.
8 Id at paras 121 and 123.

MAJIEDT J
6
“The existing practice of assigning military judges for
renewable periods o f one to two years is declared
unconstitutional and unlawful. However, pending the coming
into operation of remedial legislation, and in order to ensure
the continued functioning of the [M]ilitary Courts , the
suspension of invalidity is extended beyond 31 March 2026
for a further period of 24 months (or such period as this Court
finds just and equitable).”;
(c) in the alternative to (b) above, that “ [t]he current 24 serving [m]ilitary
[j]udges whose assignments lapse on 31 March 2026 may continue in
office until their part -heard matters are finalised, but not later than the
extended suspension period”;
(d) that “the period of suspension of the declaration of invalidity . . . of Court
order 5(f) of the judgment and orders . . . be extended for a further period
of . . . 24 months from the date of this order”; and
(e) that “the declaration of invalidity . . . shall remain suspended during the
extended period on the varied Court orders and to be read together with
the [existing] court orders”.

The applicants did not seek costs.

[7] The applicants’ founding affidavit in th e variation application is deposed to by
Major-General Mnisi, appointed as Adjutant -General in the SANDF in terms of
section 27 of the MDSMA. In that capacity he is responsible for the overall
management, promotion, facilitation and coordination of activities in order to ensure
the effective administration of military justice and the military legal services.
Major-General Mnisi explains that there are currently assigned 28 military judges, 24
of whom have terms of assignment expiring on 31 March 2026. In a letter to this Court
dated 15 April 2025 ( incorrectly dated 2024) it was erroneously stated that there are
three new SANDF members who have completed the training and processes to be
assigned as military judges. Major-General Mnisi says this was a bona fide mistake

assigned as military judges. Major-General Mnisi says this was a bona fide mistake
caused by a misapprehension and an incorrect understanding and interpretation of

MAJIEDT J
7
information provided internally during consultation with the SANDF legal team. The
correct position is that there are no new trained military judges who can replace those
whose terms of assignment expire on 31 March 2026. This makes it practically
impossible to implement this Court’s order.

[8] In amplification of this averment of practical im possibility of implementation,
Major-General Mnisi states that the current status of the Defence Legal Services
Division (DLSD) only having 28 serving military judges, of whom 24 will reach the
end of their assignments on 31 March 2026, presents a number o f challenges. These
Judges preside over Military Court cases on a daily bas is. The majority of them have
part-heard matters that will not be finalised by 31 March 2026. According to
Major-General Mnisi, absent any remedial legislation, the Department will be unable to
renew these assignments without acting in contempt of this Court’s order. Conversely,
if their terms are not renewed, no military judges will remain in office. Numerous part-
heard matters a nd pending prosecutions before military c ourts will thus collapse, and
that might be in violation of the accused persons’ constitutional rights.

[9] Major-General Mnisi states further that this situation creates an impossible
conflict of obligations: compliance with paragraph 5(c) renders the military justice
system non -functional, while non -compliance exposes the Department to potential
contempt proceedings. He says that this is a cir cumstance that was not reasonably
foreseeable at the time this Court granted the order. The applicants consequently seek
a narrow variation of paragraph 5(c) of the order, not to alter the substance of this
Court’s finding of unconstitutionality, but to e nsure continuity in the administration of
military justice pending the enactment of remedial legislation by Parliament.

[10] According to Major-General Mnisi, this proposed variation preserves the spirit

[10] According to Major-General Mnisi, this proposed variation preserves the spirit
and intent of the original order, while preventing insti tutional paralysis and ensuring
that the rights of accused persons, the interests of justice and the rule of law are
maintained. The relief sought is thus necessary to give effect to the constitutional
purpose of the order, rather than to subvert or delay its implementation. If the

MAJIEDT J
8
assignments are not renewed, failure to finalise these matters within the required
timeframe will result in some cases having to commence afresh before newly-appointed
military judges. This is procedurally undesirable, not in the interests of justice and will
result in unnecessary delays. Major-General Mnisi avers that once military judges
vacate office, they lose jurisdiction and cannot complete part -heard matters. This will
cause systemic collapse in the military justice system.

[11] Relating to the process to have remedial legislation enacted, Major-General
Mnisi attaches a copy of the Bill to amend the MDSMA and explains that it has not yet
been published for public comment. The Bill is expected to be released during the first
term of 2026, after which it will undergo a full public participation process before being
submitted to the Parliamentary Portfolio Committee. He says the Bill had been drafted
and completed within the Departmen t during July 2025, pursuant to this Court’s order
of 20 December 2024. He also attaches the Bill to amend the Defence Act, which had
also been finalised in the course of July 2025, pursuant to this Court’s order.

[12] Both Bills were submitted by the Departm ent to the Office of the Chief State
Law Advisor and certified in August 2025. In the course of September and
October 2025, the relevant Cabinet Committees and the Cabinet itself approved the
Bills for processing in Parliament and they were introduced in Parliament on
20 November 2025. Major-General Mnisi states that the Department has acted
diligently and without delay ; that correcting the constitutional flaws in the existing
legislation is not possible within the period of extension ; and that it will ca use
irreparable prejudice to the administration of military justice should the requested
extension and variations not be granted. According to Major-General Mnisi, the
extension is essential for the proper administration and assignment of military judges,

extension is essential for the proper administration and assignment of military judges,
and it will benefit accused persons whose military discipline and criminal cases are still
pending before the military c ourts. This would further assist the ad ministration of
justice at the military c ourts within the SANDF a s military judges will be assi gned
without any delay.

MAJIEDT J
9
[13] As stated, the first respondent, Lieutenant-Colonel O’Brien, does not oppose the
application and will abide this Court's decision on jurisdiction and the merits. His
affidavit is filed to be of assistance to the Court, by making relevant submissions on the
law and the facts. He explicates the law relating to extensions and variations of court
orders by pointing out that variations of court orders must be done sparingly and only
in instances where it is just and equitable.

[14] Lieutenant-Colonel O’Brien contends that the applicants have furnished an
inadequate explanation as to why amending legislation cannot be finalised and brought
into effect within the next 11 months, before the 20 December 2026 deadline.
According to him, there is no supporting affidavit from a representative of Parliament
to suggest that Parliament will be unable to complete its legislative work in this period.
He suggests that a more detailed explanation is required.

[15] Regarding the tenure of military judges, Lieutenant-Colonel O’Brien does not
dispute the need to safeguard the proper administration of military courts during the
period of suspension and until amending legislation is in force . He supports any
reasonable proposals to prevent unintended disr uptions or delays in ongoing cases .
However, he submits that the applicants’ explanation for the proposed variation lacks
essential information necessary to assist the Court. He says there is no explanation why
there are no other suitable candidates for appointment as military judges.

[16] Lieutenant-Colonel O’Brien explains that military judges are assigned from the
ranks of senior military legal practitioners (MLPs), who are qualified lawyers.
According to Lieutenant-Colonel O’Brien, in 2022 there were 197 MLPs, of which
about 149 had the rank of major or higher, who would ordinarily be eligible for
assignment as military judges. He suggests that the applicants will be able to provide

assignment as military judges. He suggests that the applicants will be able to provide
this Court with accurate and up-to-date numbers of the MLPs available for assignment
as military judges.

MAJIEDT J
10
[17] Lieutenant-Colonel O’Brien makes the point that the applicants fail to explain
what further training of MLPs is deemed necessary before they can be appointed as
military judges. T here is no explanation , he says, as to why the applicants failed to
provide this training over the last 12 months, since this Court’s order. He says that, in
his experience as a military judge, no specific training is required before an MLP is
assigned as a military judge. There is also no detail of the current caseloads of existing
military judges, which would be necessary to allow the Court to assess the need for any
further relief to address part -heard matters. According to him, that information ought
to be readily available to the SANDF on the military c ourts’ electronic case
management system.

[18] Lastly, relating to the need for an independent body to advise on appointments,
Lieutenant-Colonel O’Brien contends that the applicants do not explain why this
variation of the order is necessary. He says there is nothing in this Court’s judgment or
order that requires an independent body to advise on appointments, nor does it preclude
the creation of such a body. His application challenged the constitutionality of
section 15 of the MDSMA and not the constitutionality of the procedures or criteria for
the assignment of military judges, which is regulated under sections 13 and 14 of the
MDSMA.9

9 Those sections read:
“13. Assignment of functions
(1) Only an appropriately qualified officer holding a degree in law and of a rank
not below that of colonel or its equiva lent, with not less than five years
appropriate experience as a practising advocate or attorney of the High Court
of South Africa, or five years ’ experience in the administration of criminal
justice or military justice, may be assigned to the function of—
(a) Director: Military Judges;
(b) Director: Military Prosecutions;
(c) Director: Military Defence Counsel; or

(b) Director: Military Prosecutions;
(c) Director: Military Defence Counsel; or
(d) Director: Military Judicial Reviews.
(2) Only an appropriately qualified officer holding a degree in law may be
assigned to the function of—
(a) senior military judge or military judge;
(b) review counsel;
(c) senior defence counsel or defence counsel; or

MAJIEDT J
11

[19] It is self -evident that this case engages our jurisdiction. Despite Lieutenant-
Colonel O’Brien’s justified misgivings of the dearth of evidence and explanations from
the applicants regarding the various aspects broached by him, I am satisfied that, save
for para graph 5(b) of our order, a case for variation has been made out. Relevant
considerations in this regard include:

“(a) the sufficiency of the explanation provided for failing to comply with the original
period of suspension; (b) the prejudice likely to be suffered if the suspension is not
extended; (c) the prospects of correcting the defect within the extended period; and (d)
the need to promote a functional and orderly state administration for the benefit of the
general public.”10


(d) senior prosecution counsel.
(3) Only an appropriately qualified officer or other member who holds a degree
in law or who has otherwise be en trained in law may be assigned to the
function of prosecution counsel.
14. Minister’s powers in respect of assignment
(1) The Minister shall assign officers to the functions—
(a) at the level of Director referred to in section 13(1); and
(b) of senior military judge or military judge referred to in section 13(2) (a), on
the recommendation of the Adjutant General: Provided that the Director:
Military Judges shall be deemed to have been assigned the function of senior
military judge.
(2) The Adjutant General shall not recommend any officer for assignment to any function
referred to in subsection (1) unless, upon due and diligent enquiry, the Adjutant
General is convinced that the officer is a fit and proper person of sound character who
meets the requirements prescribed in this Act for such assignment.
(3) Subject to section 16 and the control of the Minister, the Adjutant General may assign
any officer or member to any function—
(a) referred to in section 13(2)(b), (c) and (d) or (3); or

(a) referred to in section 13(2)(b), (c) and (d) or (3); or
(b) attached to any approved military legal services post other than those referred
to in this Act.
(4) Officers and members assigned to functions in terms of this section shall perform those
functions in a manner which is consistent with properly given policy directives, bu t
which is otherwise free from executive or command interference.
15. Period of assignment
An assignment in terms of this Chapter shall be for a fixed period or couple d to a
specific deployment, operation or exercise.”
10 Minister of Cooperative Governance and Traditional Affairs v Speaker of the National Assembly; In re Mogale
v Speaker of the National Assembly [2025] ZACC 22; 2026 (1) BCLR 1 (CC) at para 8.

MAJIEDT J
12
[20] While there is still some time before the deadline for remedial legislation, it is in
the interests of justice that we vary the order. The problem for the applicants is the
looming expiry date of 31 March 2026 in relation to the assignment of 24 of the
28 currently-serving military judges. This appear s to be an aspect overlooked by
Lieutenant-Colonel O’Brien, who focuses solely on the expiry of the period of
suspension in our court order on 19 December 2026. However, there is no basis for a
further extension for as long as 24 months. As stated, it appears that the Bills have
already travelled some distance in the legislative process. In my view, a period of
extension until 30 June 2027 is adequate.

[21] The best solution in the circumstances is to grant an order as sought by the
applicants in the alternative, that is, that the current 24 serving military judges whose
assignments lapse on 31 March 2026 may continue in office until their part -heard
matters are finalised, but not later than the extended suspension period. That would be
in the interests of justice, in ensuring that part -heard matters are finalised a nd that
accused persons in the military courts do not suffer irremediable prejudice.

[22] But the proposed variation of para graph 5(b) of this Court’s order is different –
as Lieutenant-Colonel O’Brien correctly points ou t, it is unclear why a variation is
sought. If the applicants want to have an independent body advise on the appointment
of military judges, then they may do so – there is nothing in our order that stands in the
way of their doing so. Furthermore, the proposed addition to paragraph 5(b) is not
framed as an interim provision during the suspension period , but as a substantive and
final change to the order we made in that paragraph. It is therefore not necessary to
vary that order.

[23] I make the following order:
1. The order granted on 20 December 2024 is varied as follows:

1. The order granted on 20 December 2024 is varied as follows:
(a) Paragraph 5(c) of the order is varied by substituting it with the
following: “The current 24 serving military judges whose
assignments lapse on 31 March 2026 may co ntinue in office until

MAJIEDT J
13
their part -heard matters are finalised, but not later than the
extended suspension period.”
2. The period of suspension of the declaration of invalidity in paragraph 5(f)
of the order is extended until 30 June 2027.
3. The declaration of invalidity in paragraph 5(f) of the order shall remain
suspended during the extended period on the terms of this variation order,
read together with the existing court order.