Wednesday, November 5, 2014

South African Law Revision Commission discussion paper

Prof. Aifheli E. Tshivhase has kindly provided this link to a 2011 discussion paper prepared under the auspices of the South African Law Revision Commission. Pages 14-27 survey areas in which South African military justice legislation might wisely be changed. An example is post-trial review:
2.33 While the value of automatic reviews must be acknowledged, the objective should not be achieved through means that blatantly compromise the dignity of military courts. The changing of court decisions by a non-judicial body amounts to interference with the functioning of the courts as proscribed by section 165(3) of the Constitution. Furthermore, by existence of statutory provisions allowing the changing of courts’ decisions by non-judicial officials, is contrary to the constitutional obligation in section 165(4) of the Constitution which requires the adoption of legislative and other measures that assist and protect the courts to ensure, among other things, their independence, impartiality and dignity. A possible solution could be to statutorily convert the review authority into a standing court of military judicial reviews which focuses squarely on the reviews. This will strengthen the dignity and credibility of military courts as courts of law and will also achieve the desired result.
2.34 It is recommended that the current provisions (sections 8 and 107) relating to the powers of the military review authority be revised given their blatant violation of the Constitution.

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