SA court opens court martial proceedings to public

THE High Court of South Africa sitting in Cape Town, Hlope ADJP presiding, declared sections of the Defence Act (Act No. 4 of 1957) unconstitutional and ordered the presiding officer of a court martial to open the entire proceedings of the court martial to the public, including the media, and to remove an earlier classification of secrecy from the record of the proceedings of the court martial.

Facts

On 4 December 1996 the court martial president ordered that the entire proceedings of the ordinary court martial be held in camera, that the entire proceedings of the ordinary court martial be classified as secret and that the entire record of the proceedings of the ordinary court martial be classified as secret. On 7 April 1997 the Freedom of Expression Institute (FXI) and M & G Media (Pty) Limited instructed their attorneys to appear before the ordinary court martial to seek to have its proceedings open to the public, including members of the media. The court martial president ruled that FXI and the Mail & Guardian lacked locus standi to bring such an application and to advance argument in support thereof.

FXI, M & G Media (Pty) Limited, Staff Sergeant Herman Gordon Pheiffer and Corporal Dawid Desmond Booysen then launched an application to the High Court in Cape Town. FXI and M & G Media (Pty) Limited sought an order to review and set aside the order made by the president of the ordinary court martial referred to above, namely that the Applicants lacked locus standi to bring this application to court and that the order that the court martial be held in camera be set aside.

They also sought a declarator directing that certain sections of the Military Discipline Code be declared unconstitutional. The remaining two Applicants namely Pheiffer and Booysen sought a declaration that certain sections of the Defence Act as well as articles of the Military Discipline Code be declared unconstitutional. This attack was directed at the constitutionality of the existence and functioning of an ordinary court martial in terms of the relevant sections of the Defence Act.

Decision

Also conceded prior to argument was the issue dealing with the locus standi of the FXI and M & G Media (Pty) Limited. The court found that Section 38 of the Constitution was violated. It provides that anyone has the right to approach a competent court, alleging that a right contained in the Bill of Rights is being infringed or threatened. The court also found that it could not be denied that FXI and M & G Media acted in the public interest in this regard. It therefore found that the order made by the court martial president on 7 April 1997, denying the above-mentioned Applicants locus standi, was unconstitutional.

What remained to be argued were mainly issues relating to the constitutionality of courts martial in respect of which the court declared a number of sections of the Defence Act and articles of the Military Discipline Code, which in the main deals with the constitution of courts martial, to be unconstitutional. The court also held that the in camera order of the court martial of 4 December 1996 be set aside. It ordered the presiding officer to open the entire proceedings of the ordinary court martial, to remove the classification of secrecy from the entire proceedings, and to remove the classification of secrecy from the entire record of the proceedings of the ordinary court martial. In this regard the court directed the First and Second Respondents to make available to the public, including members of the media, the entire record of the proceedings and all documents referred to in the record of the ordinary court martial proceedings.

A victory for transparency

FXI and the Mail & 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) conflicted with constitutional provisions governing the independence of the judiciary and that it expressly authorized the intrusion of the convening authority, a member of the executive branch of government, into the domain of the court martial and empowered the authority to make in-camera orders.

Despite prior arguments to the contrary, the SANDF actually conceded before 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 & Guardian) and the press in general have the right to appear at an ordinary court martial and that they therefore had 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 impugned 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 signaled its willingness to settle given that the amendments to the code had made the matter moot. 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.

Karen Norval
FXI