Constitutional Court Affirms Military Court Independence in Landmark Case Backed by ICJ and LRC
On 20 December 2024, the Constitutional Court handed down judgment in the case of O’Brien N.O. v Minister of Defence and Military Veterans and Others 2024 ZACC 30 upholding the independence of military courts and judges. The International Commission of Jurists (ICJ) intervened in the matter as an amicus curiae (friend of the court) and was represented by the Legal Resources Centre (LRC).
Military courts have wide jurisdictional powers over criminal offences committed by members of the South African National Defence Force (SANDF), including while deployed outside South Africa. In particular, military courts can preside over matters related to domestic sexual offences, except rape, and have jurisdiction over cases of rape committed extraterritorially by members of the SANDF.
In the landmark judgment, the Court declared sections 101 and 102 of the Defence Act 42 of 2002, and sections 15 and 17 of the Military Discipline Supplementary Measures Act (MDSMA) 16 of 1999 as unconstitutional. The sections were impugned on the grounds that they violated the independence of military judges in the appointment and dismissal procedures. More specifically, the Court found Sections 101 and 102 of the Defence Act to be unconstitutional and invalid because they permitted members of the Executive to convene boards of inquiry to investigate military judges and the content and merits of their judgments and rulings.
Section 15 of the MDSMA was likewise found to be unconstitutional and invalid to the extent that it empowered the Minister of Defence and Military Veterans, acting on the recommendation of the Adjutant General, to assign judges for renewable periods. Section 17 of the MDSMA was similarly found to be unconstitutional and invalid to the extent that it empowered the Minister, acting on the recommendation of the Adjutant General, to remove a military judge; and without any independent inquiry into the fitness of the military judge to hold office. The Court suspended declarations of constitutional invalidity for 24 months to allow remedial legislation to be enacted.
The ICJ’s submissions focused on the applicable international law principles and jurisprudence relating to the independence of judges and the obligations of the state of South Africa in realising them in the domestic courts, including military courts. The ICJ successfully applied for leave of court to adduce evidence of a government inquiry report (Ministerial Task Team Report on Sexual Harassment, Sexual Exploitation, Sexual Abuse and Sexual Offences within the Department of Defence). The Report showed that sexual and gender-based violence cases were rampant in the South African National Defence Force (SANDF). According to ICJ’s Africa Director, Kaajal Ramjathan-Keogh, “It was critical to secure the functional and structural independence of the military courts to guarantee access to justice and accountability for the survivors of sexual violence.”
In ICJ’s submissions it was emphasised that to uphold the principles of independence, military judges needed to be protected against external pressures from the executive, whether real or perceived. Thus, empowering the executive, by statute to convene and direct an inquiry of a judicial officer or their cases, amounted to improper influence, pressure, or interference (direct or indirect), on the military judge’s determination of issues”. With reference to the Ministerial Task Team Report, the ICJ maintained that as it is, military courts were not sufficiently independent. Consequently, they failed to serve as an efficient tool to protect and advance the interests of survivors of sexual assault, contrary to the state’s obligations under section 7(2) of the Constitution. The ICJ advised that securing and upholding the independence of military courts was an essential step in ensuring that the constitutional rights of victims and survivors of sexual assault perpetrated by members of the Defence Force were vindicated and protected. The Court agreed with the ICJ submission noting:
“Plainly, the ICJ’s contentions provide important context in the sense of the urgent and crucial need for military courts to be truly independent, against the backdrop of sexual offences and sexual misconduct that are said to go largely unreported in the military out of fear of retaliation of not being promoted to the next rank in their military career. It must also be said that the ICJ effectively relates the report to the impugned sections.”
The Court further upheld the ICJ’s argument that South Africa had a duty to fulfil its regional and international obligations relating to judicial independence. The Court observed that international law obligations inform the internationally accepted standard of judicial independence:
“The ICJ correctly makes the important point that international law and standards – both binding and non-binding – are important interpretative tools in constitutional South Africa. It is well-established that, when interpreting the constitutional guarantee of judicial independence and the impugned provisions in this matter, interpretation must happen within the context of the Constitution and its values as a whole, to which international law is relevant.”
The Court rejected the respondents’ argument that the term ‘court’ did not include military courts in terms of section 166(e) of the Constitution. In so doing, the Court considered that the court of a military judge has wide criminal jurisdiction to try members of the SANDF for serious offences committed under the Code, the common law, and statute and the power to impose substantial sentences of imprisonment. Taking into account the way military courts operate, their rules and implication of their orders, the Court concluded that military judges were “judicial officers” under section 174(7) of the Constitution. Therefore, like other courts, the principle of judicial independence applied.
The Court further disapproved the temporary short-term appointments of military judges noting as follows:
“Military judges are the only full-time judicial officers who are appointed for short, renewable terms, notwithstanding their significant geographical and penal jurisdiction. This is constitutionally unpalatable.”
The judgment is an important step in ensuring that military courts can function independently and free of any influence of the Executive. It is also a victory for the rights of victims of sexual violence in the SANDF, or as a result of the actions of SANDF members.
