military legal services. aim to report on the military justice system and outputs for period 01...

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

• 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)

INTRODUCTION (Cont’d)

• 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

MANDATE

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 2To 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.


Core Objective 3To ensure the availability of military judges and promote the professional and legitimate conduct of presiding officers at military trials wherever held.

OutputAn affordable, deployable, credible, independent, impartial, efficient and fully integrated military judges service.


Core Objective 4To 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.

OutputA credible, deployable, fully integrated, independent, impartial, effective and affordable military judicial review service.


Core Objective 5To ensure the provision of a professional effective and legitimate military defence-counsel service wherever required.

OutputA credible, deployable, fully integrated, effective and affordable military defence-counsel service.


Core Objective 6To 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 7To 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

MILITARY LEGAL SERVICES DIVISION

CHIEF OF THE NATIONAL DEFENCE FORCE

POLICY AND PLANNING

EQUAL OPPORTUNITIESDIVISION

ACQUISITIONDIVISION

DEFENCE INSPECTORATE

FINANCE DIVISION

SECRETARY FOR DEFENCE

DEFENCE INTELLIGENCE

MINISTER OF DEFENCE

SAMHS

JOINT OPERATIONSDIVISION

SA NAVYSA AIR FORCESA ARMY

JOINT SUPPORTDIVISION

CORPORATE STAFFDIVISION

CD FS

Sub-Dir Losses and Claims MngmntSection Contract AdminSub-Dir Compliance Mngmnt

D LEG S

HRSC (D LABOUR &SERVICE RELATIONS)

DAF

MPA

ETC

CJ SUP CCS

CDCC

CDI

C SANDF

WHERE THE MLS FIT INTO THE SANDF

CJ OPSCHIEFS OF SERVICES

CDSP

CMLS

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 withthe 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).


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.


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.


• 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.


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;


• 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 and management information support;


• 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

D IR E C T O R A TEM IL IT AR Y J UD G E S

D IR E C T O R A TEM IL IT AR Y D E F E N C E C O U NS E L /O P S UP P O RT

D IR E C T O R A TEL E G AL S E RV IC E S U P P O RT

D IR E C T O R A TES A N DF L E G A L S U P P O RT

D IR E C T O R A TEM IL IT AR Y JU D IC IAL R E V IE W S

D IR E C T O R A TEM IL IT AR Y P RO S E C UT IO NS

L E G S A TOT H A BA T S HW A NE

L E G S A TOP O L O KW A NE

L E G S A TOB L O E M FO N T E IN

L E G S A TOW Y N B E RG

L E G S A TOD U R B A N

ADJUTANT GENERAL

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

PolokwanePolokwane

KWA-ZULUKWA-ZULU

LEGSATO BOUNDARIES

LIMPOPOLIMPOPO

LEGSATO STRUCTURETHABA TSHWANE

B A S E M LPM A F IK E NG

S U B -O F F ICEP O T C H E F S T R O O M

B A S E M LPH E ID E L B E R G /D U N N O T AR

S U B -O F F ICEJO H A NN E S BU R G (L E N Z)

B A S E M LPA F B W A T E RK L O O F

B A S E M LPW O N D E R B O O M

B A S E M LPM ID D E L B U RG

B A S E M LP1 M IL H O S P IT AL

S U B -O F F ICED O D L O G S UP P F M N

LEG SATOTH AB A TSH W AN E HO

S U B -O F F ICEL O H AT L HA

S U B -O F F ICEK IM B E R L E Y

S U B -O F F ICEK R O O N S T AD

LEG SATOB LO EM FO N TEIN H O

LEGSATO STRUCTUREBLOEMFONTEIN

S U B -O F F ICES IM O NS T O W N

S U B -O F F ICEP O R T E L IZ AB E TH

S U B -O F ICEO U D T S H O O R N

S U B -O F F ICEA F S L A NG E BA A NW E G

LEGSATOW YNBERG HO

LEGSATO STRUCTUREWYNBERG

S U B -O F F ICEN E L S P R U IT

B A S E M LPT H O H O Y A N D O U

B A S E M LPA F S M A KH A DO

B A S E M LPP H A LA B O R W A

LEGSATOPOLOKW ANE HO

LEGSATO STRUCTUREPOLOKWANE

S U B -O F F ICEL A D Y S M ITH

B A S E M LPU M T A TA

B A S E M LPM T U B A T U BA

LEGSATODURBAN HO

LEGSATO STRUCTUREDURBAN

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

151 107 91219190353

1016

2677

0

500

1000

1500

2000

2500

3000

14 (a)MDC

14 (b)MDC

19 (2)MDC

19 (5)MDC

17 MDC 33 (a) +(b) MDC

46 MDC FRAUD

CASES REVIEWED (S/MJ AND DH) OVER PERIOD

01 APR 2003 - 31 MAR 2004

00 - 01 4 231 1 593 657 112

01 - 02

02 - 03

5 007

2 727

2 162

1 021

992

247

N/A

163

N/A

N/A

N/A

435

121

N/A

N/A

89

N/A

142 N/A 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)


• 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).


• 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.


• 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.


• 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 and Management

Information Systems)

- Major General M.A. Ntshinga, SA Army (Joint Support

Division – Chief Joint Training)

COURT OF MILITARY APPEALSMembers 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.


6

1211

13

0

2

4

6

8

10

12

14

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

TOTAL CMA SESSIONS OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 42


270

153 152 154

0

50

100

150

200

250

300

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

TOTAL CASES CONSIDERED BY CMA OVER

PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 729


142148148

267

0

50

100

150

200

250

300

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

AUTOMATIC REVIEWS OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 705


11

3

12

0

2

4

6

8

10

12

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

REVIEWS ON APPLICATION OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 17


1

4

1 1

0

0.5

1

1.5

2

2.5

3

3.5

4

4.5

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

REFERRALS BY DMJR OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 7


122139138

260

0

50

100

150

200

250

300

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

NO REPRESENTATIONS MADE BY CONVICTED PERSONS

OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 659


18

578

02468

101214161820

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

REPRESENTATIONS MADE BY CONVICTED PERSONS

OVER PERIOD 01 APR 2000 - 31 MAR 2004: TOTAL: 38

14

88

2

0

2

4

6

8

10

12

14

16

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

ARGUMENT HEARD FROM COUNSEL OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 32



2

9

5

3

0123456789

10

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

FINDINGS NOT UPHELD AND SENTENCES SET ASIDE OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 19


2

45

9

0123456789

10

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

SOME FINDING(S) NOT UPHELD/VARIED AND SENTENCES REDUCED OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 20


32

17

32

91

0102030405060708090

100

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03- 31 MAR 04

FINDINGS UPHELD AND SENTENCES REDUCED OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 172


11311799

158

0

20

40

60

80

100

120

140

160

180

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

FINDINGS AND SENTENCES UPHELD OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 487


6

9

11

4

0

2

4

6

8

10

12

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

EFFECTIVE IMPRISONMENT OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 30


111118112

182

020406080

100120140160180200

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

EFFECTIVE TERMINATION OF SERVICES OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 517


0

9

1

0123456789

10

EFFECTIVE IMPRISONMENTAND CASHIERING

EFFECTIVE TERMINATION OFSERVICES

CASHIERING ALONE

MATTERS FINALISED BY CMA: OFFICERS

01 APR 2003 - 31 MAR 2004: TOTAL: 10


2

94

50

102030405060708090

100

EFFECTIVE IMPRISONMENTAND DISCHARGE WITH

IGNOMINY

DISCHARGE FROM THESANDF

DISCHARGE WITH IGNOMINY

MATTERS FINALISED BY CMA: OTHER RANKS

01 APR 2003 - 31 MAR 2004: TOTAL: 101


0 0 0

11

1

44

0

10

20

30

40

50

BRIGGEN

COL LT COL MAJ CAPT LT

NUMBER OF CHARGES (0FFICERS) FINALISED BY CMA OVER PERIOD

01 APR 2003 - 31 MAR 2004

SEC 14 (a) MDC (ABSENCE WITHOUT LEAVE) - TOTAL : 56


17

2100002468

1012141618

BRIGGEN

COL LT COL MAJ CAPT LT

NUMBER OF CHARGES (0FFICERS) FINALISED BY CMA OVER PERIOD

01 APR 2003 - 31 MAR 2004

SEC 14 (b) MDC (NON-ATTENDANCE WHERE REQUIRED) - TOTAL : 20

COURT OF MILITARY APPEALSNUMBER OF CHARGES (0FFICERS) FINALISED BY CMA OVER PERIOD

01 APR 2003 - 31 MAR 2004

CIVIL OFFENCE (COMMON LAW FRAUD) - TOTAL : 25

2

0

7

1

4

2

9

0123456789

10

BRIGGEN

COL LTCOL

MAJ CAPT LT CO

COURT OF MILITARY APPEALSNUMBER OF CHARGES (OTHER RANKS) FINALISED BY CMA OVER PERIOD

01 APR 2003 - 31 MAR 2004

SEC 14 (a) MDC (ABSENCE WITHOUT LEAVE) - TOTAL :371

214

624946

000

50

100

150

200

250

WO2 S SGT SGT CPL L CPL PTE


43

733000

5101520253035404550


NUMBER OF CHARGES (0THER RANKS) FINALISED BY CMA OVER PERIOD

01 APR 2003 - 31 MAR 2004

SEC 14 (b) MDC (NON-ATTENDANCE WHERE REQUIRED) - TOTAL :56


01 APR 2003 - 31 MAR 2004

SEC 33 (b) MDC (DRUNKENNESS) - TOTAL : 11

0 0 0 0

8

3

0123456789



01 APR 2003 - 31 MAR 2004

CIVIL OFFENCES (COMMON LAW ASSAULT) - TOTAL : 6

0 0 0 0

2

4

00.5

11.5

22.5

33.5

44.5



01 APR 2003 - 31 MAR 2004

CIVIL OFFENCES (COMMON LAW THEFT) - TOTAL : 4

0 0

1

0

2

1

0

0.5

1

1.5

2

2.5



01 APR 2003 - 31 MAR 2004

CIVIL OFFENCES (COMMON LAW FRAUD) - TOTAL : 3

1

0 0 0 0

2

0

0.5

1

1.5

2

2.5



01 APR 2003 - 31 MAR 2004

CIVIL OFFENCES (INDECENT ASSAULT) - TOTAL : 3

2

0 0 0 0

1

0

0.5

1

1.5

2

2.5


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 R6 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 R6 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

460

15071803

2559

2054

0

500

1000

1500

2000

2500

3000

01 AUG 99 - 31 MAR 00

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

CASES PROSECUTED IN MILITARY COURTS OVER PERIOD

01 AUG 1999 - 31 MAR 2004: TOTAL: 8 383


1431

21222136

1623

0

500

1000

1500

2000

2500

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

CASES COMPLETED OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 7 312

COURTS OF SENIOR/MILITARY JUDGE

5956

5113

40793703

0

1000

2000

3000

4000

5000

6000

7000

01 APR 00 - 31 MAR 01

01 APR 01 - 31 MAR 02

01 APR 02 - 31 MAR 03

01 APR 03 - 31 MAR 04

NUMBER OF MAIN CHARGES COMPLETED BY S/MJ OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 18 851


702 758

1592

1322

0

200

400

600

800

1000

1200

1400

1600

1800

00 - 01 01 - 02 01 - 02 01 - 02

NUMBER OF ACQUITTALS OVER PERIOD

01 APR 2000 - 31 MAR 2004


1127013181

17150

20197

0

5000

10000

15000

20000

25000

01 APR 00 - 31 MAR 01 01 APR 01 - 31 MAR 02 01 APR 02 - 31 MAR 03 01 APR 03 - 31 MAR 04

COURT HOURS SCHEDULED OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 61 798


63046999

86939730

0

2000

4000

6000

8000

10000

12000


COURT HOURS UTILISED OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 31 726


3.9

3.7

3.5

3.8

3.3

3.4

3.5

3.6

3.7

3.8

3.9

4


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) F.J. Botha B IurisCol M.A. Venter B Iuris, B Proc, LLB, LLM

MILITARY JUDGESLt Col (Ms) R.A. Bezuidenhout B Iuris, LLB, LLMLt Col M. Botha B ProcLt Col M.I. Halley BA, LLB, (Attorney)Lt Col L. Smit BA, LLB, (Advocate)Lt Col A.S. Vorster B Iuris, LLB, LLMLt Col K.C. Libazi B ProcLt Col M.K. Mandela B IurisLt Col M.J. Maungwa B IurisLt Col (Ms) P.V.Y. Nomoyi BA (Law), LLB, LLM Lt Col B.B. Plaatjies BA (Law), LLB, (Attorney)Lt Col M. Sehlapelo B Iuris, LLBLt Col B. Tlagadi B Iuris, LLBCdr (Ms) P.J. Wassermann BLC, LLBLt Col (Ms) S. Balakrishna BA (Law), LLB (Ex Res F

Currently on Formative Course)Maj V. Jonas B Iuris, 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 P.F. Brits B Iuris, LLBLt Col T.S. Matjila B Iuris, LLB, LLM

RESERVE FORCE SENIOR MILITARY JUDGES

Col V. Sibeko BA (Law), LLBCol (Ms) S.L. Govender B ProcCol M.D. Legodi B Proc, LLB, LLM

RESERVE FORCE MILITARY JUDGES

Lt Col (Ms)) A.B.A. Ebrahim B ProcLt Col D.J. Lekhuleni B ProcMaj V. Rajoo B Com, LLBMaj L.G. Matshaka BA, LLB

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 R600,00;– 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).


2296

4914

3490 3314

1984

0

1000

2000

3000

4000

5000

6000

1999/00 2000/01 2001/02 2002/03 2003/04

DH COMPLETED OVER PERIOD

01 AUG 1999 - 31 Mar 2004

TOTAL : 15 998

DECISIONS NOT TO PROSECUTE

S/NO LEGSATO RECEIVED GRANTED DENIED APPLICATIONSNOT FINALISED

1 THABA TSHWANE 504 437 66 1

2 BLOEMFONTEIN 487 439 48 0

3 WYNBERG 191 148 43 0

4 POLOKWANE 167 146 21 0

5 DURBAN 55 48 4 3

TOTAL 1 404 1 218 182 4

DECISIONS NOT TO PROSECUTEOVER PERIOD 01 APR 03 - 31 MAR 04

MILITARY JUDICIAL REVIEWS


1759

2306

3035

3453

0

500

1000

1500

2000

2500

3000

3500

4000


DH REVIEWED: CASE FLOW OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 10 553

MILITARY JUDICIAL REVIEWSS/MJ REVIEWED: CASE FLOW OVER PERIOD

01 APR 2000 - 31 MAR 2004: TOTAL: 7 436

1866

2327

1836

1407

0

500

1000

1500

2000

2500



267

94

513

79 9558

98

243

0

100

200

300

400

500

600

S/MJ 01 APR 00 -31 MAR 01

S/MJ 01 APR 01 -31 MAR 02

S/MJ 01 APR 02 -31 MAR 03

S/MJ 01 APR 03 -31 MAR 04

DH 01 APR 00 -31 MAR 01

DH 01 APR 01 -31 MAR 02

DH 01 APR 02 -31 MAR 03

DH 01 APR 03 -31 MAR 04

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


86

48

219

26061 4 6 10

76

0

50

100

150

200

250

SMJ 00 - 01

SMJ 01 - 02

SMJ 02 - 03

SMJ 03 - 04

MJ 00 - 01

MJ 01 - 02

MJ 02 - 03

MJ 03 - 04

DH 00 - 01

DH 01 - 02

DH 02 - 03

DH 03 - 04

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 REVIEWSRESULT OF REVIEW BY DMJR OVER PERIOD 01 APR 2000 - 31 MAR 2004:

SOME FINDING(S) NOT UPHELD/VARIED AND SENTENCES REDUCED: TOTAL: 55

15

4

15

3

0

2

00

4

1

65

0

2

4

6

8

10

12

14

16

SMJ 00 - 01

SMJ 01 - 02

SMJ 02 - 03

SMJ 03 - 04

MJ 00 - 01

MJ 01 - 02

MJ 02 - 03

MJ 03 - 04

DH 00 - 01

DH 01 - 02

DH 02 - 03

DH 03 - 04


MILITARY JUDICIAL REVIEWSRESULT OF REVIEW BY DMJR OVER PERIOD 01 APR 2000- 31 MAR 2004:

FINDINGS UPHELD AND SENTENCES REDUCED: TOTAL: 164

15

4

31

5

01

84

18

11

3235

0

5

10

15

20

25

30

35

40

SMJ 00 - 01

SMJ 01 - 02

SMJ 02 - 03

SMJ 03 - 04

MJ 00 - 01

MJ 01 - 02

MJ 02 - 03

MJ 03 - 04

DH 00 - 01

DH 01 - 02

DH 02 - 03

DH 03 - 04


MILITARY JUDICIAL REVIEWSRESULT OF REVIEW BY DMJR OVER PERIOD 01 APR 2000 - 31 MAR 2004:

SOME FINDING(S) NOT UPHELD/VARIED WITHOUT REDUCTION IN SENTENCES: TOTAL: 223

1525

114

200009

09

49

0

20

40

60

80

100

120

SMJ 00 - 01

SMJ 01 - 02

SMJ 02 - 03

SMJ 03 - 04

MJ 00 - 01

MJ 01 - 02

MJ 02 - 03

MJ 03 - 04

DH 00 - 01

DH 01 - 02

DH 02 - 03

DH 03 - 04


MILITARY JUDICIAL REVIEWSRESULT OF REVIEW BY DMJR OVER PERIOD 01 APR 2000 - 31 MAR

2004: FINDINGS AND SENTENCES UPHELD : TOTAL: 421

136

0

134

91661

26 24 19

50

0

20

40

60

80

100

120

140

160

SMJ 00 - 01

SMJ 01 - 02

SMJ 02 - 03

SMJ 03 - 04

MJ 00 - 01

MJ 01 - 02

MJ 02 - 03

MJ 03 - 04

DH 00 - 01

DH 01 - 02

DH 02 - 03

DH 03 - 04


CHARGES OUTSTANDING

CHARGES OUTSTANDING

479

2069

638

4316

647

4781

235

5928

249

2683

0

1000

2000

3000

4000

5000

6000

7000

MDO CO MDO CO MDO CO MDO CO MDO CO

TOTAL OUTSTANDING MILITARY DISCIPLINARY OFFENCES (MDO)

& CRIMINAL OFFENCES (CO)

JAN 99 MAR 04JAN 00 MAR 03MAR 02

PERSONNEL

PERSONNELREGULAR FORCE


31 MAR 200451.60% 48.40% 69.75% 30.25%

PDC WHITE MALE FEMALE TOTALMAJ GEN 0 1 1 0 1BRIG GEN 2 6 7 1 8

COL 3 17 16 4 20LT COL 19 56 54 21 75

MAJ 16 14 23 7 30CAPT 31 12 31 12 43

LT 27 2 24 5 29NCO 41 9 38 12 50PSAP 6 19 2 23 25TOTAL 145 136 196 85 281

% Lt Col 25.33% 74.67%% Maj 53.33% 46.67%% Capt 72.90% 27.91%% Lt 93.10% 6.90%


MLS REPRESENTIVITY PROGRESS: 31 MAR 2004

MLS Representivity Progress

0

20

40

60

80

100

120

140

160

180

1999 2000 2001 2002 2003 2004

PDC OC

RANK 01 APR 00 TO 01 APR 01 TO 01 APR 02 TO 01 APR 03 TO TOTAL 31 MAR 01 31 MAR 02 31 MAR 03 31 MAR 04

BRIG GEN 1 0 1 0 2COL 3 0 4 1 8

LT COL 0 2 5 1 8MAJ 6 4 5 5 20

CAPT 3 1 3 5 12LT 1 1 0 0 2WO 0 0 1 0 1NCO 0 0 2 1 3

PSAP 0 0 1 1 2TOTAL 14 8 22 14 58

ATTRITION: MLS PERSONNELPERIOD

PERSONNELPERMANENT FORCE

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

PERSONNELRESERVE FORCE


RANK, RACE AND GENDER BREAKDOWN: 01 APR 2004

African White Indian Coloured Male FemaleCol 22 11 9 2 0 15 7Lt Col 26 6 18 1 1 22 4Maj 39 25 10 3 1 35 4Capt 44 28 8 0 8 34 10Lt 140 133 4 0 3 107 33Total 271 203 49 6 13 213 58% 75% 18% 2% 5% 79% 21%

RANKS RACE GENDERMLPs

75%

18%2% 5%

AFRICAN WHITE INDIAN COLOURED


RACIAL BREAKDOWN: 31 MAR 2004

PROS DEF SMJ MJ REV LA TOTALAPPOINTED

130 78 22 22 8 11 271

ADVANCED MILITARY LAW COURSETo Commence 34 38 10 7 3 4 96

In Progress 38 15 4 8 3 3 71Successfully Completed 59 24 7 8 2 4 104

MILITARY ORIENTATION COURSE

To Attend 78 57 12 14 7 8 176

Completed 54 20 10 8 1 2 95

MEMBERS AVAILABLE FOR CALL-UP48 25 8 7 3 0 91


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

LITIGATION

99/00 00/01 01/02 02/03 03/04 04/05Claims Against the Department of Defence 280 198 263 162 219 74Claims by the State 25 16 33 8 10 9Legal Representation 88 78 73 55 59 19Legal Opinions 35 15 12 12 23 7Third Party Claims (Road Accident Fund) 16 19 5 5 5 0Motor Vehicle Accidents 1 347 991 1 320 494

Expenditure by Department of Defence RM12,2 RM1,5 RM13,8 RM6,8 RM8,5 RM2,8

INVOLVEMENT IN LITIGATION

(FIGURES PROVIDED BY CFO)

Claims against the DOD

Claims Finalised Claims Pending Total Amount Claimed

Number Issue Amount and Result Number Issue/ Amount35 - ± R3 998 710 ± 450 ± R 149 436 869 R153 435 579

Claims by the DOD

Claims Finalised Claims Pending Total Amount Claimed

Number Issue Amount and Result Number Issue/ AmountN/A N/A N/A 72 R9 023 346 R9 023 346

Legal representation

Number Stats Ops Not Ops ResultsFinalised Pending

329 64 265 175 154 Some partly-heard, some charges withdrawn and some pending

Legal adviceFormal / Written Informal / Oral

Number of Opinions Time Spent Number of Opinions Time Spent956 ±3624 2462 ± 2331

MLS SUPPORT TO LITIGATION : 2003/04

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).


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.



•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.



• 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.



•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

MILITARY LEGAL SERVICES DIVISION

CHIEF OF THE NATIONAL DEFENCE FORCE

POLICY AND PLANNING

EQUAL OPPORTUNITIESDIVISION

ACQUISITIONDIVISION

DEFENCE INSPECTORATE

FINANCE DIVISION

SECRETARY FOR DEFENCE

DEFENCE INTELLIGENCE

MINISTER OF DEFENCE

SAMHS

JOINT OPERATIONSDIVISION

SA NAVYSA AIR FORCESA ARMY

JOINT SUPPORTDIVISION

CORPORATE STAFFDIVISION

CD FS

Sub-Dir Losses and Claims MngmntSection Contract AdminSub-Dir Compliance Mngmnt

D LEG S

HRSC (D LABOUR &SERVICE RELATIONS)

DAF

MPA

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

• 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


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”


MLS PROVIDES SUPPORT FOR WHICH IT IS NOT STRUCTURED (Cont’d)

• 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

IN ADDITION THE MLS DESIGN DOES NOT PROVIDE FOR:

• a divisional operations structure

• a divisional planning (including business planning) structure

• personnel utilisation and maintenance staffs

• a divisional specialist prosecution / investigation-guidance 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


• a divisional command-and-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)


• 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 : LAW TRAINING

• 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 : LEGITIMACY

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 : RESTRUCTURING

• 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 “rank-and-leg” promotions which were terminated from

1 July 2001

CHALLENGE : RETENTION OF PERSONNEL

military legal services. aim to report on the military justice system and outputs for period 01...

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