South Africa--Judicial Independence

Petronella Mukaindo and Timothy Fish Hodgson, Constitutional Court of South Africa Affirms Judicial Independence of Military Courts and Judges. OpinioJuris, 18 August 2025.

On 20 December 2024, the South African Constitutional Court handed down its judgment in O’Brien N.O. v Minister of Defence and Military Veterans and Others 2024 ZACC 30, affirming that military courts and judges established in the country must operate independently without interference from political or other quarters. Drawing on international law and standards at length, the Court ruled that the fundamental principle of judicial independence applies to military courts in the same manner as “ordinary” courts. More specifically, the judgment addressed: (1) the constitutionality of legislative provisions that empowered the executive to appoint and remove military judges; and (2) the judicial independence of military courts.

Of interest to U.S. practitioners is this discussion of the holdings.

The Court rejected the government’s arguments that military courts were not courts and that military judges were not judges within the meaning of sections 166(e) and section 174(7) of the Constitution, respectively. The Court considered, first, that the military courts in South Africa were given wide criminal jurisdiction to try members of the SANDF for serious offences committed under the Code, the common law, and statute and the power to impose substantial sentences of imprisonment. The Court observed:

When one examines how the military courts operate, their rules and powers, and the ultimate effect of their orders, the inescapable conclusion is that military judges are indeed judicial officers (para 59).  

The Court observed that military courts fall within the definition of “courts” in section 166(e) of the Constitution, as “any other court established or recognised in terms of an Act of Parliament”. Hence, the Court concluded that military judges were “judicial officers” appointed in terms of an Act of Parliament, in this case, the Military Discipline Supplementary Measures Act. Therefore, similarly to other courts, the principle of judicial independence applied.

Furthermore, the Court found that the regime of temporary short-term appointments of military judges impeded judicial independence finding that: 

Military judges are the only full-time judicial officers who are appointed for short, renewable terms, notwithstanding their significant geographical and penal jurisdiction. This is constitutionally unpalatable.