The passing of the Military Discipline Supplementary Measures Act No 16 has confirmed a ruling made in the Cape High Court in December. The High Court ruling gave the Freedom of Expression Institute and its co-litigants the Mail and Guardian a victory for transparency, freedom of expression and the right to a fair trial.

The new legislation addresses the issues the litigants challenged in their original application and which the High Court ruled were unconstitutional. The amendments repeal section 78 (3) of the previous code which authorised a convening authority who was an executive officer to order in camera proceedings in addition to the power of the court martial itself to do so. FXI and the Mail and Guardian argued that this section infringed both institutions' rights to freedom of expression and access to information and the rights of the accused to the same as well as their right to a free and public trial. It was further argued that section 78 (3) conflicts with constitutional provisions governing the independence of the judiciary and that it expressly authorises the intrusion of the convening authority, a member of the executive branch of government, into the domain of the court martial and empowers the authority to make in camera orders.

Despite prior arguments to the contrary, the SANDF actually conceded before even arguing the matter in the court in December that section 78 (3) of the Military Discipline Code was unconstitutional and that the respondents (FXI and the Mail and Guardian) and the press in general have the right to appear at an ordinary court martial and that they therefore have locus standi. Notwithstanding these concessions, the court still had to rule on the issue of the constitutionality of the court martial as an institution and in particular the power and competence of the ordinary court martial to hear and determine charges against accused persons.

The court's decision in this regard was also favourable with Justice Hlope ruling that courts martial as convened under the then code went far beyond what was reasonably necessary to achieve the object of military discipline.

Although all that remained was for the Constitutional Court to confirm the High Court's ruling, the SANDF was not satisfied and decided to take the matter on appeal. However, at the last moment when the parties were about to argue the matter before the Constitutional Court, the SANDF signalled its willingness to settle given that the amendments to the code had made the matter moot.

It is clear that the amendments are as a result of FXI's application which served to highlight the unconstitutionality of the code and the desirability for change given the openness and transparency of the new dispensation. What with the Cape High Court ruling and the fact that large numbers of courts martial are in the pipeline, it was obviously in the interests of the smooth running of the military that these issues be addressed as a matter of urgency. Hence the expediting of the new legislation became a priority.

All those accused facing courts martial at the time of the passing of the new Act will have the benefit of the new legislation. Furthermore, those people who still have reviews and appeals pending are still able to challenge the constitutional validity of the ordinary court martial because the old legislation is not moot as far as they are concerned.

Today the Constitutional Court did not rule on the validity of the Cape High Court ruling, but chose instead to agree that the new legislation made the matter moot. It will not, however, make this an order of the court until the new legislation is promulgated. This is expected to happen on Friday.

The agreement also sees FXI and the Mail and Guardian receiving costs - something the Cape Court had awarded but which was in jeopardy given that the ruling was not confirmed by the Constitutional Court.

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