Judicial independence in South Africa's military justice system

The following is an excerpt from the decision of the High Court of South Africa, North Gauteng Division, Pretoria, per J.R. Murphy, J., in Timakwe v. President of Court of Senior Military Judge and Others (69441/11) [2018] ZAGPPHC 246 (19 April 2018) (footnotes omitted):

The constitutionality of Chapter 3 of the MDSMA [Military Discipline Supplementary Measures Act, 1999] 

30. The applicant seeks several declarations of constitutional validity. He firstly contends that the MDSMA fails to secure an adequate degree of independence for the Adjutant General and military judges (including senior military judges) in that such officers are in the same position of other military officers regarding their terms and conditions of employment including: remuneration, promotion, assessment of performance, discipline, transfer etc. In addition, military judges enjoy inadequate security of tenure. For these reasons, the applicant submits that Chapter 3 of the MDSMA dealing with the appointment of military judges and the Adjutant General is inconsistent with the Constitution and invalid; and the exercise by senior military judges of the jurisdiction conferred by section 9 of the MDSMA to try the applicant for murder and other offences is consequently also unconstitutional and invalid.

31. The applicant misconstrues the role of the Adjutant General. In terms of section 28 of the MDSMA he or she is responsible for the overall management, promotion, facilitation and co-ordination of activities in order to ensure the effective administration of military justice and legal services. The role of the Adjutant General is therefore one of management and administration of the military legal system. The Adjutant General does not perform a judicial function and there is accordingly no requirement for him or her to observe the strictures of judicial independence and impartiality.

32. The requirements of judicial independence vary depending on the nature and function of the particular institution. The respondents maintain that the military courts established in terms of the MDSMA are sufficiently independent for the functions assigned to them. The Minister appoints military judges for a fixed period or specific deployment on the recommendation of the Adjutant General who must be convinced upon due and diligent enquiry that the officer is a fit and proper person of sound character. In terms of section 13(2) of the MDSMA only an appropriately qualified officer holding a degree in law may be assigned to the function of a senior military judge or military judge. Section 14(4) of the MDSMA requires that officers assigned as military judges perform their functions "in a manner which is consistent with properly given policy directives, but which is free from executive or command interference." The Minister, acting on the recommendation of the Adjutant General, may remove a military judge on the grounds of incapacity, incompetence or misconduct.

33. Section 19 of the MDSMA includes a number of provisions aimed at ensuring the independence of military judges. They are required in the exercise of their authority under the MDSMA, inter alia, to: i) be independent and subject only to the Constitution and the law; ii) apply the Constitution and the law impartially and without fear, favour or prejudice; iii) conduct every trial and proceedings in a manner befitting a court of justice; and iv) ensure fairness to an accused by affording appropriate assistance. Moreover, military courts are courts of first instance subject to appeal and review before the CMA and the High Court, which will protect them from undue interference with their independence and supervise the manner in which they discharge their functions. While military judges are assigned for a fixed period or for a specific deployment, section 17 of the MDSMA protects them from arbitrary removal and they remain in establishment posts where they enjoy the ordinary legal protections against unlawful or unfair dismissal. No military commander may remove a military judge from assignment.

34. While it is undoubtedly true that military judges do not enjoy the protection afforded to ordinary judges, the Constitutional Court has recognised that judicial independence can be achieved in a variety of ways and that the most rigorous and elaborate conditions of judicial independence need not be applied to all courts. It is permissible for the essential conditions for independence to bear some relationship to the variety of courts that exist within the judicial system. The fact that the Minister and the Adjutant General, members of the Executive, have a strong influence in the appointment of the military judges does not mean that the military courts lack institutional independence. As indicated above, all military judges are required to exercise impartiality and independence in the discharge of their duties and take an oath of office in terms of section 18 of MDSMA requiring them to do so. It is relevant, as intimated earlier, to keep in mind the core protection given to all courts by the Constitution, to the particular function that the military courts perform and to their place in the court hierarchy. The greater the protection given to the higher courts, the greater is the protection enjoyed by the military courts.

35. The provisions of the MDSMA therefore ensure sufficiently that the military courts are independent and the constitutional challenge on that ground is without merit.

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