[O]nce it is accepted that the Minister can assign officers to the function of a military judge and can do so for a fixed period of whatever duration, it is difficult to see why the Minister cannot renew such an appointment. It must be said that there can be little to choose between a series of successive appointments for a fixed period and the renewal of an appointment after it has run its term. Here as well, the case advanced in support of the s 15 challenge is a purely conjectural one. It rests on the assertion that it may be ‘reasonable to anticipate that military judges may be inclined to temper their reviews or adjust their judgments to secure further assignments’. But, once again there is nothing to suggest that any military judge has been put to such a choice. To suggest that a judge may be conscripted to one or other end is a most serious allegation. It ill behoves the appellant to raise an allegation such as this, in this vague and unsubstantiated fashion. The insinuation that a judge may ‘adjust a judgment’ to ‘secure further assignments’ is nothing short of scandalous. Absent a proper factual foundation (of which there is none) any apprehension of such possibility can hardly be reasonable.
Was Judge O'Brien out of line in questioning the Minister's administration of the South African military judiciary or suggesting that the arrangements for judicial terms of office might be unconstitutional, even if he lacked power to rule on the matter? After studying the opinion, is a reader left in doubt about the independence of the country's military courts? Will this case go to the Constitutional Court?
Background on the litigation can be found here.