MILITARY LEGAL SERVICES AIM TO REPORT ON

MILITARY LEGAL SERVICES

AIM TO REPORT ON THE MILITARY JUSTICE SYSTEM AND OUTPUTS FOR PERIOD 01 APRIL 2003 TO 31 MARCH 2004

SCOPE • INTRODUCTION • MANDATE • MLS MISSION • MLS VISION • MLS AIM • WHAT THE MLS DOES • MLS POSITION IN THE DOD • MLS STRUCTURE • LEGSATO BOUNDARIES / DISPERSION • MOST COMMON OFFENCES

SCOPE (Cont’d) • COURT OF MILITARY APPEALS • COURTS OF (SENIOR) MILITARY JUDGE • DISCIPLINARY HEARINGS • DECISIONS NOT TO PROSECUTE • MILITARY JUDICIAL REVIEWS • CHARGES OUTSTANDING • PERSONNEL – REGULAR FORCE – RESERVE FORCE • LITIGATION • CHALLENGES

INTRODUCTION

INTRODUCTION • 18 DECEMBER 1998 - CPD JUDGEMENT • SOME PROVISIONS OF DEFENCE ACT, 1957, UNCONSTITUTIONAL • MDSMA CAME INTO OPERATION ON 28 MAY 1999, NEW MILITARY RULES OF PROCEDURE PROMULGATED ON 11 JUNE 1999 • FIRST SCHEDULE TO THE DEFENCE ACT, 1957 (MDC) RETAINED

INTRODUCTION (Cont’d) • DRAFT MILITARY DISCIPLINE BILL (MDB) NEEDED TO CONSOLIDATE AND REFINE THE ABOVE • PROPOSALS SUBMITTED TO PLENARY DEFENCE STAFF COUNCIL (PDSC) NOVEMBER 2000, MAY 2002 AND APRIL 2003, AND COUNCIL OF DEFENCE (COD)

MANDATE • AUTHORITY IS DERIVED FROM SECTIONS 200 (1) AND 198 (C), CONSTITUTION ACT 108 OF 1996 • TO CONTRIBUTE TO AN EFFECTIVE DEFENCE CAPABILITY WHICH IS DISCIPLINED AND FUNCTIONS IN COMPLIANCE WITH NATIONAL AND INTERNATIONAL LAW

MLS MISSION TO ENSURE EFFECTIVE AND COMPREHENSIVE MILITARY LEGAL SERVICE AND SUPPORT THROUGH APPLICATION OF LAW AND THE PRINCIPLES OF JUSTICE

MLS VISION TO BE THE HIGHLY PROFESSIONAL, LEGITIMATE, DEPLOYABLE AND SOLE PROVIDER OF MILITARY LEGAL SERVICES AND SUPPORT TO THE DOD

MLS AIM TO PROVIDE PROFESSIONAL, LEGITIMATE AND DEPLOYABLE MILITARY LEGAL SERVICES AND SUPPORT COMMENSURATE WITH THE NEEDS OF THE DOD

WHAT THE MILITARY LEGAL SERVICE DOES Core Objective 1 To provide professional, legitimate and deployable military legal advice and support services, excluding operational legal advice and support. Output An affordable, fully integrated, credible and acceptable, as well as deployable, military legal advice and support service.

WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 2 To provide adequate military legal education, training and development, personnel, logistic, finance, systems management and general staff duties services to the MLS and to ensure military law training in the DOD. Output An affordable, deployable, fully integrated, effective and efficient services support to the MLS.

WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 3 To ensure the availability of military judges and promote the professional and legitimate conduct of presiding officers at military trials wherever held. Output An affordable, deployable, credible, independent, impartial, efficient and fully integrated military judges service.

WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 4 To provide a professional and legitimate military judicial review service to establish the validity of completed military trials and to monitor the implementation of review results wherever required. Output A credible, deployable, fully integrated, independent, impartial, effective and affordable military judicial review service.

WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 5 To ensure the provision of a professional effective and legitimate military defence-counsel service wherever required. Output A credible, deployable, fully integrated, effective and affordable military defence-counsel service.

WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 6 To provide professional, legitimate and deployable operational legal advice and support services wherever required. Output An affordable, fully integrated, sustainable and deployable operational military legal advice and support service.

WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 7 To ensure the provision of a professional, effective and legitimate military prosecution service wherever required. Output An affordable, legitimate, credible, effective, deployable, fully integrated and acceptable military prosecution service.

MLS POSITION IN THE DOD

POSITION OF LEGAL CAPACITIES IN DOD ORG STRUCT MINISTER OF DEFENCE CHIEF OF THE NATIONAL DEFENCE FORCE SECRETARY FOR DEFENCE POLICY AND PLANNING ACQUISITION DIVISION DEFENCE INSPECTORATE FINANCE DIVISION D LEG S SA ARMY SA AIR FORCE SA NAVY SAMHS DAF JOINT OPERATIONS DIVISION DEFENCE INTELLIGENCE CD FS EQUAL OPPORTUNITIES DIVISION Sub-Dir Losses and Claims Mngmnt Section Contract Admin Sub-Dir Compliance Mngmnt MPA JOINT SUPPORT DIVISION HRSC (D LABOUR & SERVICE RELATIONS) CORPORATE STAFF DIVISION MILITARY LEGAL SERVICES DIVISION

WHERE THE MLS FIT INTO THE SANDF C SANDF ETC CJ OPS CHIEFS OF SERVICES CDI CJ SUP CCS CDCC CMLS CDSP CFR CDR

MLS STRUCTURE

THE MILITARY LEGAL SERVICE’S SYSTEM AND STRUCTURE FRAMEWORK The MLS system has a head office (HO) component and regional satellite offices (Legsatos). The HO component includes– • the Adjutant General (AG) responsible for the overall management, promotion, facilitation and co-ordination; • support staff responsible for planning, evaluating, directing and co-directing, of all military legal services activities in accordance with the provisions of the Military Discipline Supplementary Measures Act, 1999 (MDSMA).

HO component (Cont’d) A sub-system dedicated to the provision of legal advice and support to the military command on both a dedicated and deployable basis to ensure– • the presence of legal advisors to commanders in the field in accordance with the requirements of international law; • the continuous availability of legal advisors to Chiefs of the Services and military divisions for the provision of appropriate legal advice and support including assistance in respect of Service unique fields of law (eg Air Law; Maritime Law; and Medical Law); and • the continuous general rendering of those services to the South African National Defence Force (SANDF).

HO component (Cont’d) A sub-system providing– • prosecution decisions, policy and direction; and • the support required to ensure that all departmental investigations are facilitated and adequately completed. This sub-system is independent as it is shielded from executive, command or other interference by the provisions of the MDSMA in consonance with the spirit of section 179 of the Constitution.

HO component (Cont’d) A sub-system responsible for the– • review of all trials and disciplinary hearings for validity, regularity and fairness; and • facilitation of access to and the functioning of the Court of Military Appeals (CMA). This sub-system is independent as it is shielded from executive, command or other interference by the provisions of the MDSMA in consonance with the spirit of section 165 of the Constitution.

HO component (Cont’d) • A sub-system providing defence-counsel support, policy and direction which is independent as it is shielded from executive, command or other interference by the provisions of the MDSMA. • A sub-system responsible for ensuring that senior military judges and military judges are enabled to exercise their judicial functions with the requisite independence, impartiality, dignity, accessibility, effectiveness and competence. This sub-system is independent as it is shielded from executive, command or other interference by section 165 of the Constitution and the provisions of the MDSMA.

HO component (Cont’d) A sub-system responsible for– • the overall management of satellite offices; • co-ordinating all military legal services’ activities; • the development of the military legal services’ business, expenditure and related plans; • ensuring the obtaining and provision of law personnel to specification and the determining of their education, training and development needs; • the management and career planning of all law personnel in conjunction with the Service Chiefs;

HO component (Cont’d) • the management of support staff; • the preparation, monitoring and control of the military legal service’s budget; • the administration of the Regular Force and Reserve Force components of the military legal services; • planning the provision of all services to be rendered by the military legal services; • ensuring the obtaining of all infra-structural, personnel, logistics, facilities, systems and other support including command management information support;

HO component (Cont’d) • the monitoring and evaluation of all services rendered, and the monitoring and evaluation of instruction in law within the DOD; • the provision of instruction in law as well as the training and education of law professionals and their support personnel in law offices; • the identification of law research needs and opportunities; and • the promotion and maintenance of professional standards amongst that personnel.

MILITARY LEGAL SERVICES STRUCTURE

LEGSATOS Legsatos are structured to • meet specific needs of places, areas, forces, deployments or situations where or wherein they are to function • ensure that staff assigned to military judicial, defence- counsel, judicial-review and prosecution functions retain their functional independence under direction of heads of independent sub-systems reflected above

LEGSATO BOUNDARIES LIMPOPO Polokwane KWA-ZULU

LEGSATO STRUCTURE THABA TSHWANE

LEGSATO STRUCTURE BLOEMFONTEIN

LEGSATO STRUCTURE WYNBERG

LEGSATO STRUCTURE POLOKWANE

LEGSATO STRUCTURE DURBAN

MOST COMMON OFFENCES

MOST COMMON OFFENCES (01 APR 03 TO 31 MAR 04) • AWOL {SEC 14 (a) and (b) MDC} • USING THREATENING, INSUBORDINATE OR INSULTING LANGUAGE {SEC 17} • DISOBEYING LAWFUL COMMANDS OR ORDERS {SEC 19 (2) AND (5) MDC} • IMPROPER OR UNAUTHORISED USE OF PROPERTY {SEC 27 (b) MDC} • DRUNKENNESS {SEC 33 (a) and (b) MDC} • CONDUCT TO THE PREJUDICE OF MILITARY DISCIPLINE {SEC 46} • FRAUD

MOST COMMON OFFENCES CASES REVIEWED (S/MJ AND DH) OVER PERIOD 01 APR 2003 - 31 MAR 2004 00 - 01 4 231 1 593 657 N/A 112 142 N/A 01 - 02 5 007 2 162 992 N/A 435 N/A 89 02 - 03 2 727 1 021 247 N/A 163 121 N/A

EXISTING MILITARY COURTS • Court of Military Appeals • Courts of Senior Military Judge • Courts of Military Judge • Commanding Officer’s Disciplinary Hearings

COURT OF MILITARY APPEALS

COURT OF MILITARY APPEALS • Composition : An independent judicial body appointed by the Minister of Defence (Sec 7 MDSMA) • Present Structure: – Serving High Court Judge (Chairperson) – Appropriately qualified Regular Force Officer (Holds a degree in law) – Regular Force General or Flag Officer (Experienced in the conduct of operations)

COURT OF MILITARY APPEALS • When sitting to consider matters involving either treason, murder, rape or culpable homicide committed outside the RSA or a contravention of section 4 or 5 of the MDC, a CMA will sit with a total of five (5) members, three (3) of whom will be High Court judges.

COURT OF MILITARY APPEALS • Considers cases in the following circumstances: – – Imprisonment (effective or suspended); Cashiering or discharge with ignominy; Dismissal or discharge; or Any combination of the above punishments. • Must be reviewed by CMA and may not be executed before such review has been completed (Sec 34 MDSMA).

COURT OF MILITARY APPEALS • In cases not covered by the previous circumstances, a convicted offender may apply, within prescribed time limits, for the review of his/her case. • Director Military Judicial Reviews (DMJR), if in doubt as to whether a finding or sentence should be upheld, may refer the case to the CMA.

COURT OF MILITARY APPEALS • Competencies: Every person convicted and sentenced by a Military Court has a right to the speedy, automatic and competent review of its proceedings to ensure that those proceedings (including every finding, sentence or order) are either valid, regular, fair and appropriate, or remedied. • To this end, the CMA exercises powers akin to the High Court competencies on appeal and review. (Sec 8 MDSMA)

COURT OF MILITARY APPEALS • Appointments. The active participants (who were appointed by the Minister of Defence on the recommendation of the AG) are at present as follows: • Chairperson and Alternate Chairpersons – Honourable Justice (Ms) L. Mailula; – Honourable Mr Justice I. Hussain; and – Honourable Judge President Mr Justice B. Ngoepe.

COURT OF MILITARY APPEALS • Regular Force Members (qualified in law) – Brigadier General J. L. Larney, SA Army (Advocate) – Brigadier General S. B. Mmono, SA Army (Advocate) – Colonel (Ms) A. M. Kolbé, SAMHS and – Colonel C. J. Taljaard, SA Army (Attorney)

COURT OF MILITARY APPEALS • Members with command experience - Lieutenant General A. M. L. Masondo, SA Army (Retired) - Major General (Ms) P. R. F. Mdluli-Sedibe, SA Army (Defence Secretariat – Chief Director Equal Opportunities and Affirmative Action) - Major General A. C. Hurribunce, SAMHS (Joint Support Division – Chief of Command Management Information Systems) - Major General M. A. Ntshinga, SA Army (Joint Support Division – Chief Joint Training)

COURT OF MILITARY APPEALS Members with command experience (Continued) - Brigadier General S. Mollo, SA Army (Corporate Staff Division – Director Planning in Strategy and Planning Office) and - Brigadier General D. M. De Lange, SA Army (Corporate Staff Division – Chief of Defence Foreign Relations) - Brigadier General V. L. Sindane, SA Army (Formerly Defence Intelligence Division’s Director Operational Intelligence) is unable to assist because of his new appointment as Military Attaché to the People’s Republic of China (PRC) with effect from 01 Mar 04 - Brigadier General B. M. N. Hlatswayo, SA Army (Joint Operations Division) has indicated that, due to his workload, he is unable to assist.

COURT OF MILITARY APPEALS TOTAL CMA SESSIONS OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 42

COURT OF MILITARY APPEALS TOTAL CASES CONSIDERED BY CMA OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 729

COURT OF MILITARY APPEALS AUTOMATIC REVIEWS OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 705

COURT OF MILITARY APPEALS REVIEWS ON APPLICATION OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 17

COURT OF MILITARY APPEALS REFERRALS BY DMJR OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 7

COURT OF MILITARY APPEALS NO REPRESENTATIONS MADE BY CONVICTED PERSONS OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 659

COURT OF MILITARY APPEALS REPRESENTATIONS MADE BY CONVICTED PERSONS OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 38

COURT OF MILITARY APPEALS ARGUMENT HEARD FROM COUNSEL OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 32

COURT OF MILITARY APPEALS FINDINGS NOT UPHELD AND SENTENCES SET ASIDE OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 19

COURT OF MILITARY APPEALS SOME FINDING(S) NOT UPHELD/VARIED AND SENTENCES REDUCED OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 20

COURT OF MILITARY APPEALS FINDINGS UPHELD AND SENTENCES REDUCED OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 172

COURT OF MILITARY APPEALS FINDINGS AND SENTENCES UPHELD OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 487

COURT OF MILITARY APPEALS EFFECTIVE IMPRISONMENT OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 30

COURT OF MILITARY APPEALS EFFECTIVE TERMINATION OF SERVICES OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 517

COURT OF MILITARY APPEALS MATTERS FINALISED BY CMA: OFFICERS 01 APR 2003 - 31 MAR 2004: TOTAL: 10

COURT OF MILITARY APPEALS MATTERS FINALISED BY CMA: OTHER RANKS 01 APR 2003 - 31 MAR 2004: TOTAL: 101

COURT OF MILITARY APPEALS NUMBER OF CHARGES (0 FFICERS) FINALISED BY CMA OVER PERIOD 01 APR 2003 - 31 MAR 2004 SEC 14 (a) MDC (ABSENCE WITHOUT LEAVE) - TOTAL : 56

COURT OF MILITARY APPEALS NUMBER OF CHARGES (0 FFICERS) FINALISED BY CMA OVER PERIOD 01 APR 2003 - 31 MAR 2004 SEC 14 (b) MDC (NON-ATTENDANCE WHERE REQUIRED) - TOTAL : 20

COURT OF MILITARY APPEALS NUMBER OF CHARGES (0 FFICERS) FINALISED BY CMA OVER PERIOD 01 APR 2003 - 31 MAR 2004 CIVIL OFFENCE (COMMON LAW FRAUD) - TOTAL : 25

COURT OF MILITARY APPEALS NUMBER OF CHARGES (OTHER RANKS) FINALISED BY CMA OVER PERIOD 01 APR 2003 - 31 MAR 2004 SEC 14 (a) MDC (ABSENCE WITHOUT LEAVE) - TOTAL : 371

COURT OF MILITARY APPEALS NUMBER OF CHARGES (0 THER RANKS) FINALISED BY CMA OVER PERIOD 01 APR 2003 - 31 MAR 2004 SEC 14 (b) MDC (NON-ATTENDANCE WHERE REQUIRED) - TOTAL : 56

COURT OF MILITARY APPEALS NUMBER OF CHARGES (OTHER RANKS) FINALISED BY CMA OVER PERIOD 01 APR 2003 - 31 MAR 2004 SEC 33 (b) MDC (DRUNKENNESS) - TOTAL : 11

COURT OF MILITARY APPEALS NUMBER OF CHARGES (OTHER RANKS) FINALISED BY CMA OVER PERIOD 01 APR 2003 - 31 MAR 2004 CIVIL OFFENCES (COMMON LAW ASSAULT) - TOTAL : 6

COURT OF MILITARY APPEALS NUMBER OF CHARGES (OTHER RANKS) FINALISED BY CMA OVER PERIOD 01 APR 2003 - 31 MAR 2004 CIVIL OFFENCES (COMMON LAW THEFT) - TOTAL : 4

COURT OF MILITARY APPEALS NUMBER OF CHARGES (OTHER RANKS) FINALISED BY CMA OVER PERIOD 01 APR 2003 - 31 MAR 2004 CIVIL OFFENCES (COMMON LAW FRAUD) - TOTAL : 3

COURT OF MILITARY APPEALS NUMBER OF CHARGES (OTHER RANKS) FINALISED BY CMA OVER PERIOD 01 APR 2003 - 31 MAR 2004 CIVIL OFFENCES (INDECENT ASSAULT) - TOTAL : 3

COURTS OF (SENIOR) MILITARY JUDGE

COURTS OF SENIOR MILITARY JUDGE • The Minister of Defence assigns officers to the function of SMJ on recommendation of the AG (Sec 14 MDSMA). • Appropriately qualified officers (with law degree) of rank of Colonel or higher, with not less than 5 years experience as a practising advocate or attorney of the High Court, or 5 years experience in the administration of justice.

COURTS OF SENIOR MILITARY JUDGE • Courts of SMJ may try and sentence, any person subject to military law for any offence other than treason, murder, rape or culpable homicide, committed within the borders of the RSA (Sec 9 MDSMA). • Subject to any statutorily prescribed maximum sentence for a particular offence, a CSMJ may sentence a person convicted by it to a punishment permitted by Sec 12 MDSMA.

COURTS OF (SENIOR) MILITARY JUDGE PENALTIES (TABLE OF PUNISHMENTS) • Military courts may impose on officers, convicted by them, a sentence consisting of one or more of– – – – imprisonment; cashiering or dismissal; reduction to lower commissioned rank or reversion from acting / temporary rank to substantive rank; reduction in seniority in rank; a fine not exceeding R 6 000, 00; or a reprimand.

COURT OF (SENIOR) MILITARY JUDGE PENALTIES (TABLE OF PUNISHMENTS) • Military courts may impose on other ranks (non-officers), convicted by them, a sentence consisting of one or more of– – imprisonment; – discharge or discharge with ignominy; – detention for maximum period of two years; – field punishment not exceeding three months (private); – reduction in rank, or reversion to substantive rank; – reduction in seniority in rank; – a fine not exceeding R 6 000, 00; – confinement to barracks (private); – corrective punishment (private); – extra duties; or – a reprimand.

COURTS OF MILITARY JUDGE • The Minister of Defence assigns officers to the function of MJ on recommendation of the AG (Sec 14 MDSMA). • Appropriately qualified officers (with law degree) of rank of major or higher with not less than 3 years experience as a practising advocate or attorney of the High Court, or 3 years experience in the administration of justice.

COURTS OF MILITARY JUDGE • Courts of MJ may try and sentence, any person subject to military law, other than an officer of field rank (major or SA Navy equivalent) or higher rank for any offence other than treason, murder, rape or culpable homicide, or an offence under Section 4 or 5 of the MDC (Sec 10 MDSMA).

COURTS OF (SENIOR) MILITARY JUDGE CASES PROSECUTED IN MILITARY COURTS OVER PERIOD 01 AUG 1999 - 31 MAR 2004: TOTAL: 8 383

COURTS OF (SENIOR) MILITARY JUDGE CASES COMPLETED OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 7 312

COURTS OF SENIOR/ MILITARY JUDGE NUMBER OF MAIN CHARGES COMPLETED BY S/MJ OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 18 851

COURTS OF (SENIOR) MILITARY JUDGE NUMBER OF ACQUITTALS OVER PERIOD 01 APR 2000 - 31 MAR 2004

COURTS OF (SENIOR) MILITARY JUDGE COURT HOURS SCHEDULED OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 61 798

COURTS OF (SENIOR) MILITARY JUDGE COURT HOURS UTILISED OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 31 726

COURTS OF (SENIOR) MILITARY JUDGE AVERAGE OF COURT HOURS PER SCHEDULED DAY OVER PERIOD 01 APR 2000 - 31 MAR 2004: AVERAGE: 3. 7

SENIOR MILITARY JUDGES Brig Gen (Ms) A. Myburgh BLC, LLB, (Advocate) Col C. J. Taljaard B Iuris, LLB (Attorney) Col (Ms) Col LLM F. J. Botha M. A. Venter B Iuris, B Proc, LLB,

MILITARY JUDGES Lt Col (Ms) Lt Col (Advocate) Lt Col Lt Col (Ms) LLM Lt Col (Attorney) Lt Col Cdr (Ms) Lt Col (Ms) R. A. Bezuidenhout B Iuris, LLB, LLM M. Botha B Proc M. I. Halley BA, LLB, (Attorney) L. Smit BA, LLB, A. S. Vorster K. C. Libazi M. K. Mandela M. J. Maungwa P. V. Y. Nomoyi B Iuris, LLB, LLM B Proc B Iuris BA (Law), LLB, B. B. Plaatjies BA (Law), LLB, M. Sehlapelo B. Tlagadi P. J. Wassermann S. Balakrishna B Iuris, LLB BLC, LLB BA (Law), LLB

PART-TIME SENIOR MILITARY JUDGES Brig Gen B. S. Mmono B Iuris, LLB, LLM (Advocate) Capt (SAN) L. H. Dunn B Iuris, BA, LLB, LLM, (Attorney) Col R. A. Kobedi B Iuris, LLB PART-TIME MILITARY JUDGES Col Lt Col P. F. Brits T. S. Matjila B Iuris, LLB, LLM

RESERVE FORCE SENIOR MILITARY JUDGES Col (Ms) Col V. Sibeko S. L. Govender M. D. Legodi BA (Law), LLB B Proc, LLB, LLM RESERVE FORCE MILITARY JUDGES Lt Col (Ms)) Lt Col Maj A. B. A. Ebrahim D. J. Lekhuleni V. Rajoo L. G. Matshaka B Proc B Com, LLB BA, LLB

DISCIPLINARY HEARINGS

DISCIPLINARY HEARINGS • Jurisdiction of Commanding Officer: A Commanding Officer may conduct a Disciplinary Hearing of any person subject to the MDC, other than an officer or warrant officer, who has elected to be heard by him or her, for any military disciplinary offence (Sec 11 MDSMA).

DISCIPLINARY HEARINGS • Punishments: – fine not exceeding R 600, 00; – confinement to barracks for period not exceeding 21 days (private or equivalent rank); – corrective punishment for period not exceeding 21 days (private or equivalent rank); – extra non-consecutive duties for a period not exceeding 21 days; or – reprimand (Sec 11 and 12 MDSMA).

DISCIPLINARY HEARINGS DH COMPLETED OVER PERIOD 01 AUG 1999 - 31 Mar 2004 TOTAL : 15 998

DECISIONS NOT TO PROSECUTE

DECISIONS NOT TO PROSECUTE OVER PERIOD 01 APR 03 - 31 MAR 04

MILITARY JUDICIAL REVIEWS

MILITARY JUDICIAL REVIEWS DH REVIEWED: CASE FLOW OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 10 553

MILITARY JUDICIAL REVIEWS S/MJ REVIEWED: CASE FLOW OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 7 436

MILITARY JUDICIAL REVIEWS CASES REVIEWED BY DMJR OVER PERIOD S/MJ 01 APR 2000 - 31 MAR 2004: TOTAL: 330 DH 01 APR 2000 - 31 MAR 2004: TOTAL: 1 117

MILITARY JUDICIAL REVIEWS RESULT OF REVIEW BY DMJR OVER PERIOD 01 APR 2000 - 31 MAR 2004: FINDINGS NOT UPHELD AND SENTENCES SET ASIDE: TOTAL: 380 TOTAL SMJ: 7 TOTAL MJ: 20 TOTAL DH: 353

MILITARY JUDICIAL REVIEWS RESULT OF REVIEW BY DMJR OVER PERIOD 01 APR 2000 - 31 MAR 2004: SOME FINDING(S) NOT UPHELD/VARIED AND SENTENCES REDUCED: TOTAL: 55 TOTAL SMJ: 2 TOTAL MJ: 14 TOTAL DH: 39

MILITARY JUDICIAL REVIEWS RESULT OF REVIEW BY DMJR OVER PERIOD 01 APR 2000 - 31 MAR 2004: FINDINGS UPHELD AND SENTENCES REDUCED: TOTAL: 164 TOTAL SMJ: 13 TOTAL MJ: 66 TOTAL DH: 85

MILITARY JUDICIAL REVIEWS RESULT OF REVIEW BY DMJR OVER PERIOD 01 APR 2000 - 31 MAR 2004: SOME FINDING(S) NOT UPHELD/VARIED WITHOUT REDUCTION IN SENTENCES: TOTAL: 223 TOTAL SMJ: 0 TOTAL MJ: 20 TOTAL DH: 203

MILITARY JUDICIAL REVIEWS RESULT OF REVIEW BY DMJR OVER PERIOD 01 APR 2000 - 31 MAR 2004: FINDINGS AND SENTENCES UPHELD : TOTAL: 421 TOTAL SMJ: 14 TOTAL MJ: 78 TOTAL DH: 329

CHARGES OUTSTANDING

CHARGES OUTSTANDING TOTAL OUTSTANDING MILITARY DISCIPLINARY OFFENCES (MDO) & CRIMINAL OFFENCES (CO) JAN 99 JAN 00 MAR 02 MAR 03 MAR 04

PERSONNEL

PERSONNEL REGULAR FORCE

PERSONNEL REGULAR FORCE 31 MAR 2004

PERSONNEL REGULAR FORCE MLS REPRESENTIVITY PROGRESS: 31 MAR 2004

PERSONNEL PERMANENT FORCE ATTRITION: MLS PERSONNEL: OVER PERIOD 01 APR 01 - 31 MAR 04

PERSONNEL RESERVE FORCE

PERSONNEL RESERVE FORCE RANK, RACE AND GENDER BREAKDOWN: 01 APR 2004

PERSONNEL RESERVE FORCE RACIAL BREAKDOWN: 31 MAR 2004

PERSONNEL RESERVE FORCE PROGRESS: TRAINING - PREPARATION AND AVAILABILITY FOR CALL-UP 31 MAR 2004

LITIGATION

INVOLVEMENT IN LITIGATION (FIGURES PROVIDED BY CFO)

MLS SUPPORT TO LITIGATION : 2003/04 Claims against the DOD Claims Finalised Amount Number Issue Amount and Result Claims Pending Total Claimed Number Issue/ Amount 35 ± R 3 998 710 ± R 149 436 869 - ± 450 R 153 435 579 Claims by the DOD Claims Finalised Number Issue Amount and Result Total Amount Claimed Number Issue/ Amount N/A 346 N/A R 9 023 346 N/A Claims Pending 72 R 9 023 Legal representation Number Stats Ops Finalised Pending Not Ops 329 64 154 265 Legal advice Formal / Written 175 Results Some partly-heard, some charges withdrawn and some pending Informal / Oral

MLS SUPPORT TO LITIGATION: 2003/04 (Cont’d) Litigation pending- • Ndwandwe v Minister of Defence: Application to set aside decision of MOD to discharge applicant. Matter settled and decision set aside. • Bathobakae v Minister of Defence: Application to set aside decision of MOD to discharge applicant. Matter settled and decision set aside. • Simelane v Minister of Defence: Application to review decision of MOD to appoint and promote the incumbent D SANDF LS.

MLS SUPPORT TO LITIGATION: 2003/04 (Cont’d) Litigation pending- • Simelane v Minister of Defence. Application to compel DOD to convene an Appeal Board to deliberate on applicants’ rank dispute. • Dunn v Minister of Defence. Application for review of decision by MOD to appoint the incumbent Director Anti-Fraud (DAF).

MLS SUPPORT TO LITIGATION: 2003/04 (Cont’d) Current litigation affecting judicial reviews and pending. No comment will be made on the merits of the cases. • Moriana and 116 Others v Minister of Defence. Application to set aside or correct decisions by Court Martial on 06 Jun 97 as upheld by Council of Review on 25 May 99. Judgement given on 29 May 02 when application was dismissed in its entirety. Applicants were granted leave to appeal but the full bench (Transvaal Provincial Division) dismissed appeal with costs (2003). • Tsoaeli and 5 Others v Minister of Defence. Application arose from the same Court Martial trial and Council of Review judgement. Case will be argued on 13 Sep 04.

MLS SUPPORT TO LITIGATION: 2003/04 (Cont’d) Current litigation affecting judicial reviews and pending. No comment will be made on the merits of the cases. • Kholomba v Minister of Defence. Application to set aside or correct decisions by Court Martial on 26 Mar 98 as upheld by Court of Military Appeals on 22 Feb 02. Issue relates to alleged limitation of right to legal representation. Case will be argued on 15 Sep 04. • Temba v Minister of Defence. Application challenges the constitutionality of Military Prosecution Authority (Constitutional Court found the Military Prosecuting authority to be constitutional in Potsane case) and requests review of finding and sentence of Court of Senior Military Judge (3 Apr 00) as upheld by Court of Military Appeals (23 Feb 01) in a case where accused was convicted on two charges of fraud.

MLS SUPPORT TO LITIGATION: 2003/04 (Cont’d) Current litigation affecting judicial reviews and pending. No comment will be made on the merits of the cases. • Minister of Defence v Temba. Resulting from conviction and sentence, member was advised to vacate her military house to which she was no longer entitled. DOD lodged application (TPD) seeking her eviction from state accommodation. Two applications were heard on 23 Oct 03 by a bench of two judges. Judgement reserved and not yet handed down. • Steyn v Minister of Defence. Application for declaration of rights whether decision of Court of Military Appeals is appealable to the High Court and if so, to which court the appeal should be noted and what procedure should be followed. On 5 May 04 application was dismissed when the Court ruled that there is no right of appeal or review from the CMA to the High Court.

MLS SUPPORT TO LITIGATION: 2003/04 (Cont’d) Current litigation affecting judicial reviews and pending. No comment will be made on the merits of the cases. • Bornman v Minister of Defence. High Court granted application for leave to appeal against sentence of imprisonment imposed by military court which was upheld by CMA. Appellant appeals against sentence imposed while respondent applies for an order setting aside the order granting the appellant leave to appeal. On 26 Mar 04 the case was remanded sine die for further argument. • Fourie v Minister of Defence and others. Appeal from CMA to High Court where an invalid sentence of Court of Senior Military Judge was corrected by CMA by imposition of a valid sentence of imprisonment. The matter postponed sine die by agreement.

CHALLENGES

CHALLENGE : FRAGMENTATION MINISTER OF DEFENCE CHIEF OF THE NATIONAL DEFENCE FORCE SECRETARY FOR DEFENCE POLICY AND PLANNING ACQUISITION DIVISION DEFENCE INSPECTORATE FINANCE DIVISION D LEG S SA ARMY SA AIR FORCE SA NAVY SAMHS DAF JOINT OPERATIONS DIVISION DEFENCE INTELLIGENCE CD FS EQUAL OPPORTUNITIES DIVISION Sub-Dir Losses and Claims Mngmnt Section Contract Admin Sub-Dir Compliance Mngmnt MPA JOINT SUPPORT DIVISION HRSC (D LABOUR & SERVICE RELATIONS) CORPORATE STAFF DIVISION MILITARY LEGAL SERVICES DIVISION

CHALLENGE : FRAGMENTATION - CONSEQUENCE MLS PROVIDES SUPPORT FOR WHICH IT IS NOT STRUCTURED • Facilitating or supporting litigation in all regions • Managing litigation, especially urgent applications • Drafting legislation and participating in the legislative processes • Providing legal advice support to the Secretariat on eg policy, policy instruments, MOUs, SOFAs, etc • Providing specialist advice wrt eg labour, maritime, air, LOAC / IHL, contract law, etc

CHALLENGE : FRAGMENTATION CONSEQUENCE MLS PROVIDES SUPPORT FOR WHICH IT IS NOT STRUCTURED (Cont’d) • Providing staff for UN posts • Providing staff for externally deployed SANDF contingents and external exercises • Supporting externally deployed SANDF contingents bmo (1) regular service-coordinating visits; and (2) military-justice intervention teams

CHALLENGE : FRAGMENTATION CONSEQUENCE MLS PROVIDES SUPPORT FOR WHICH IT IS NOT STRUCTURED (Cont’d) • Providing legal advice and support to internal deployments, operations and exercises in all regions • Providing expanded training opportunities • Endeavouring to provide legal advice and support to formation HOs sited in the Tshwane area where only the support to Log Fmn can be described as “adequate”

CHALLENGE : UNDERSTRUCTURING IN ADDITION THE MLS DESIGN DOES NOT PROVIDE FOR: • a court management structure • an interpreter structure • a structure to safeguard and manage the records of completed trials • a management and information structure

CHALLENGE : UNDERSTRUCTURING (Cont’d) • a divisional operations structure • a divisional planning (including business planning) structure • personnel utilisation and maintenance staffs • a divisional specialist prosecution / investigationguidance as well as a prosecution control capacity

CHALLENGE : UNDERSTRUCTURING (Cont’d) • a dysfunction (boards of inquiry, summary investigation, etc) administration, tracking and review capacity • a divisional inspectorate capability • a divisional communications capability

CHALLENGE : UNDERSTRUCTURING (Cont’d) • a divisional command-control support capability • a divisional capacity to negotiate and manage service agreements as well as to effect cost recoveries; and • a divisional capacity to provide personnel in support of internal and external deployments, operations and exercises (including relief staff)

CHALLENGE : LAW TRAINING • All matters entering the military-justice system, emanate outside that system. The extent of law training given to officers/supervisors determines the quality of matters entering that system • The current policy-framework does not require all officers/supervisors to undergo training in law • The advanced military law course as well as courses in Law of Armed Conflict (LOAC) and Legal Framework of Peace Support Operations (LFPSO) are presented

CHALLENGE : LEGITIMACY • Perceptions anent the military-justice system are coloured by a lack of understanding of that system and applicable law. • Litigation on constitutional issues is part of the growth of constitutional democracy. Perceptions of the unconstitutionality of the military-justice system continue in the absence of High-Court challenges in this regard.

CHALLENGE : RESTRUCTURING The design of an appropriate legal service will depend on decisions regarding: • • • Which staffs are to be shared by the departmental principals Whether or not there is to be a single DOD legal service If there is to be a single DOD legal service, what entities are to form it Finances Capacity to co-ordinate the activities of the military police agency, directorate anti-fraud and military-justice system

CHALLENGE : RETENTION OF PERSONNEL • From September 1996 to date, the SANDF has lost some 141 staff utilised in rendering legal services • From April 2000 to date, the SANDF has lost some 58 staff utilised in rendering legal services of whom 52 were military lawyers • Proposals have been made to the appropriate DOD authorities to have the military law practitioners’ remuneration brought into line with similar public sector entities • Effort was invested to ensure the re-institution of “rankand-leg” promotions which were terminated from 1 July 2001

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