A major judicial independence decision from South Africa

The Constitutional Court of South Africa today handed down its landmark unanimous decision in O'Brien v. Minister of Defence & Military Veterans, CCT 14/23. (per Majiedt, J.). The helpful official media summary explains the decision as follows:

On 20 December 2024 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and orders of the Supreme Court of Appeal.

This case concerns the independence of military courts, in particular two military courts of first instance established under the Military Discipline Supplementary Measures Act 16 of 1999 (MDSMA), the Court of a Military Judge and the Court of a Senior Military Judge.

The applicant is Lieutenant Colonel Kevin Bruce O’Brien of the South African National Defence Force (SANDF), currently staffed as an Instructor at the School of Military Justice, Thaba Tshwane City Hall, Thaba Tshwane. The first to fourth respondents are the Minister of Defence and Military Veterans (the Minister), the Chief of the SANDF, the Secretary of Defence and Military Veterans, and the SANDF respectively. The International Commission of Jurists (ICJ) was admitted as amicus curiae.

The applicant, a former military judge, challenged, in a counter-application before the High Court, Gauteng Provincial Division, Pretoria (High Court), the constitutionality of sections 101 and 102 of the Defence Act 42 of 2002 (Defence Act) and sections 15 and 17 of the MDSMA (the impugned provisions). The main application was a review application by the first respondent, the Minister, against certain orders made by the applicant in proceedings where he had presided as a military judge, concerning his apprehension about the unconstitutionality of the impugned provisions. The High Court upheld the review relief and dismissed the applicant’s counter-application on the basis that the impugned provisions were constitutionally compliant. The Supreme Court of Appeal dismissed the applicant’s appeal on the basis of mootness. The applicant now seeks leave to appeal in this Court.

Before this Court, the applicant submitted that the matter was a constitutional issue as it concerned the constitutionality of national legislation and the judicial independence of military courts and military judges. The applicant submitted further that a constitutional challenge to legislation that is in operation is a live issue and that therefore the matter was not moot and it was in the interests of justice to grant leave to appeal. In the event that this Court found that the matter was moot, the applicant submitted that it was nevertheless in the interests of justice to hear the appeal, because this case raised important, complex legal questions about the independence of military courts and military judges and because of the broader practical impact that an order of invalidity would have. In respect of the merits, on the power to renew terms of office in terms of section 15 of the MDSMA, the applicant submitted that this power is inconsistent with the principle of judicial independence and is out of step with trends observed in foreign jurisdictions. On the power to remove a military judge upon the recommendation of the Adjutant General according to section 17 of the MDSMA, the crux of the applicant’s submissions were that it is impermissible for members of the Executive to hold the power to exercise discipline over judicial officers without any independent assessment of cause. Lastly, on the power to appoint boards of inquiry in terms of sections 101 and 102 of the Defence Act, the applicant submitted that this power interferes with a military judge’s freedom to hear and decide cases without interference from government, pressure groups, or individuals.

The respondents submitted that this Court does not have jurisdiction to entertain the matter. They submitted that the matter was moot and it was not in the interests of justice to entertain the application. The respondents contended that the legislation does not explicitly state that a board of inquiry is authorised to investigate military judges, their rulings, or the handling of their cases. The respondents argued that section 15 does not solely pertain to the assignment of military judges but applies to various categories of military personnel. They asserted that if section 15 were deemed unconstitutional, it would impact the deployment of all types of military personnel. The respondents emphasised that military judges already have security of tenure. Lastly, the respondents asserted that section 17 does not specifically address the removal of “a military judge” but rather the removal of “a person”, indicating that military judges are not strictly categorised as judicial officers but as members of the SANDF.

The ICJ was admitted as amicus curiae and was permitted to present written and oral arguments. The ICJ was also given leave to adduce as evidence the Ministerial Task Team Report on Sexual Harassment, Sexual Exploitation, Sexual Abuse and Sexual Offences within the Department of Defence (Ministerial Task Team Report). The applicant did not oppose the ICJ’s admission. However, the respondents objected thereto on the basis that they had dealt with foreign and international law in their submissions, and that the introduction of information about sexual crimes in the military constituted the introduction of fresh evidence which is inappropriate for an amicus to raise. The ICJ made submissions on South Africa’s obligations under international law to ensure that courts and tribunals, including military courts, are competent, independent, impartial, and afford litigants a fair and public hearing. In addition, with reference to the Ministerial Task Team Report, the ICJ emphasised the necessity for military courts to exhibit independence and impartiality in handling cases involving sexual offences committed by members of the SANDF.

In a unanimous judgment penned by Majiedt J (Zondo CJ, Madlanga ADCJ, Kollapen J, Mathopo J, Mhlantla J, Rogers J, Theron J, Tolmay AJ and Tshiqi J concurring) the Court first dealt with brief reasons why the ICJ was permitted to introduce the Ministerial Task Team Report. First, at a procedural level the report could not be rejected as inadmissible, as the ICJ was authorised to adduce the report under specific terms in directions issued by the Court. Secondly, the Court found that the ICJ’s submissions and reliance on the Ministerial Task Team Report was of significant relevance and assistance in determining the central issue of the independence of military courts. The Court held that the ICJ’s contentions provided 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; that the ICJ effectively related the report to the impugned sections; and that the ICJ made useful submissions on international law and jurisprudence.

The Court held that the matter engages both the constitutional and general jurisdiction of this Court as:

(a) it concerned a challenge to the constitutionality of the impugned provisions;

(b) concerned the constitutionally guaranteed judicial independence of military courts under the Constitution; and

(c) raised arguable points of law on the role of military courts and military judges which is of general public importance which affect not only all SANDF members, but also the general public whom the SANDF is constitutionally enjoined to protect.

Regarding the interests of justice, the Court held that it was desirable for this Court to hear this case to resolve the complex, important legal questions raised. On the mootness aspect the Court found that the Supreme Court of Appeal was plainly wrong in its findings and agreed with the applicant that a constitutional challenge to existing and fully operational statutory provisions can never be considered moot. Moreover, the challenges brought raised a live controversy between the parties over the constitutionality of the impugned provisions and their proper interpretation, and any orders declaring the legislation to be constitutionally invalid would also have an immediate practical effect on the parties concerned, as well as all members of the SANDF and the broader public.

Before making its findings on the merits, the Court first considered the legal status and independence of military courts in South Africa and found that military courts undoubtedly qualify as courts under section 166(e) of the Constitution by virtue of their criminal jurisdiction. The jurisprudence on judicial independence, from this Court and abroad,5 underscore the need for structural and operational protections to ensure military courts are perceived to be, and function as independent tribunals, capable of delivering fair trials for accused individuals. The Court thus found that constitutionally entrenched guarantees of judicial independence which includes both individual independence and institutional independence, extend to military courts.

The Court further considered South Africa’s obligations under international law, and held that, in addition to domestic obligations, South Africa had committed to international standards for judicial independence, as set out in regional and international frameworks. The Court held that:

(a) the obligations in the international instruments affirm that competence, independence, and impartiality are foundational principles of the right to a fair trial under international law;

(b) military courts must be granted the same level of judicial independence as civilian courts;

(c) security of tenure, particularly in the military context, is vital to preventing undue interference; and

(d) disciplinary safeguards and fair trial rights extend to the removal of judges and ensure that judges are held to account in a manner free from external influence and consistent with the rule of law.

In respect of the first constitutional challenge that pertains to Executive-initiated and Executive-driven boards under sections 101 and 102 of the Defence Act, the Court held that the involvement of members of the Executive in making decisions relating to boards of inquiry, insofar as they pertain to military courts and military judges, plainly offends the principle of separation of powers and subverts the independence of military courts. The Court thus upheld the constitutional challenge and agreed with the applicant’s suggested approach to remedy the constitutional defect through a reading down of the impugned provisions. That entails a reading of the phrases “any matter”, “any member or employee” and the “affairs of any institution” as excluding military judges, and the same should be done in respect of section 136 of the Code, read with rule 79 of the MDSMA Rules.

In respect of section 15 of the MDSMA, the Court held that non-renewable terms for judges is an essential prerequisite of structural independence, and that it is constitutionally unpalatable that military judges are the only full-time judicial officers who are appointed for short, renewable terms, notwithstanding their significant geographical and penal jurisdiction. It was consequently necessary for the Court to declare section 15 constitutionally invalid to the extent that it does not provide adequate security of tenure for military judges, to suspend the declaration for two years, and to have a temporary reading-in.

In respect of section 17 of the MDSMA, the Court held that it is unconstitutional for the Executive to have the power to remove military judges without independent oversight or control. The Court held that it was also not possible to remedy the constitutional defect through a reading down of the impugned provision, and the appropriate remedy was to declare section 17 unconstitutional, to suspend the declaration for two years for Parliament to attend to the constitutional deficiency, and to include a temporary reading down of the section until Parliament cures the invalidity through remedial legislation.

The Constitutional Court in conclusion thus held that leave to appeal must be granted and the appeal against the order of the Supreme Court of Appeal must be upheld. In respect of costs, an important consideration was that the applicant has only attained partial success. The applicant was unsuccessful in his opposition to the state parties’ review application, and he did not appeal that order in this Court. In respect of his counter-application, the applicant had not persisted with some of the relief which was dismissed in the courts below. Thus, the applicant was awarded 50% of his costs in the High Court and the Supreme Court of Appeal. Based on the trite Biowatch principle, in respect of the other 50% of the costs he should bear no liability. The applicant is entitled to all his costs in this Court.

The Court made the following order:

1. Leave to appeal is granted.

2. The appeal is upheld.

3. The order of the Supreme Court of Appeal is set aside to the extent that that Court dismissed the applicant’s appeal against the High Court’s refusal to grant the declarations of statutory invalidity sought by the applicant in his counter-application in the High Court.

4. The costs orders made in the Supreme Court of Appeal in relation to costs in that Court and in the High Court are set aside.

5. It is declared that:

(a) Sections 101 and 102 of the Defence Act 42 of 2002 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. Pending the coming into operation of remedial legislation, the phrases “any matter”, “any member or employee” and the “affairs of any institution” in section 101 and 102 of the Defence Act and section 136 of the Military Disciplinary Code, read with rule 79 of the Military Discipline Supplementary Measures Act’s Rules, must be read as excluding military judges.

(b) Section 15 of the Military Discipline Supplementary Measures Act 16 of 1999 is unconstitutional and invalid to the extent that it empowers the Minister of Defence and Military Veterans (Minister), acting on the recommendation of the Adjutant General, to assign judges for renewable periods.

(c) The existing practice of assigning judges for renewable periods of one to two years is unconstitutional and unlawful. Pending the coming into operation of remedial legislation, the8 assignment of a military judge may not be renewed until the lapse of at least two years since that person’s last assignment.

(d) Section 17 of the Military Discipline Supplementary Measures Act 16 of 1999 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.

(e) Pending the coming into operation of remedial legislation, the Minister may devise processes for an inquiry into the fitness of a military judge and the composition of the inquiry body, provided that:

(i) it is an independent inquiry; and

(ii) a military judge may not be removed except on the recommendation of the independent inquiry.

(f) The declarations of constitutional invalidity above are suspended for a period of 24 months to allow remedial legislation to be enacted and brought into operation.

6. The first respondent is ordered to pay half of the costs of the applicant in the Supreme Court of Appeal and the High Court, including the costs of two counsel where so employed.

7. The first respondent is ordered to pay the costs of the applicant in this Court, including the costs of two counsel where so employed.