Briefs in South African judicial independence case

The briefs in O'Brien v. Minister of Defence & Veterans Affairs, No. CCT 14/23, can be found here. Lt.-Col. K.B. O'Brien's application seeks an order in the following terms:

First challenge: Boards of inquiry

3.1 It is declared that, on a proper interpretation of sections 101 and · 102 of the Defence Act 42 of 2002, members of the executive are not permitted to convene boards of inquiry to investigate military judges and senior military judges ("military judges") and the content and merits of their judgments and rulings.

3.2 In the alternative to paragraph 3.1, sections 101 and 102 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.

Second challenge: Renewable assignments of military judges

3.3 It is declared that on a proper interpretation of section 15 of the MDSMA, the Minister, acting on the recommendation of the Adjutant General, is not empowered·to assign military judges for renewable periods.

3.4 In the alternative to paragraph 3.3, section 15 of the MDSMA is unconstitutional and invalid to the extent that it empowers the Minister, acting on the recommendation of the Adjutant General, to assign military judges for renewable periods. 

3.5 It is declared that the existing practice of assigning military judges for renewable periods of one to two years is unconstitutional and unlawful.

Third challenge: Removal of military judges

3.6 Section 17 of the Military Discipline Supplementary Measures Act 16 of 1999 {"the MDSMA") 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.

General

3. 7 The declarations of constitutional invalidity sought in paragraphs 3.1, 3.4 and 3.6 above are suspended for a period of 24 months to allow Parliament to correct the defects.