Constitutional Court of South Africa Affirms Judicial Independence of Military Courts and Judges

[Petronella Mukaindo is an associate legal adviser at the International Commission of Jurists (Africa).

Timothy Fish Hodgson is a senior legal adviser for ESC Rights at the International Commission of Jurists (Africa).]

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.

The case brought before the Court related to Lieutenant-Colonel Kevin O’Brien, a former military judge who served for fixed periods in 2013, 2014, and 2016. During his tenure, he expressed his concerns on record in some of the matters he presided over, about the manner of appointing judges to military courts, the constitutionality of the process, and the impact on the independence of military courts and fair trial rights. 

In 2014, and as a result of the concerns he expressed, Lt-Col O’Brien received an admonition from his superiors. Later, in 2016, the Minister of Defence and Military Veterans convened a board of inquiry to investigate all matters heard by Lt-Col O’Brien. Eventually, the Minister of Defence and others brought an application reviewing Lt-Col O’Brien’s judgments and orders. In response to this application, Lt-Col O’Brien launched a counter-application, challenging the constitutionality of the provisions of the Military Discipline Supplementary Measures Act 16 of 1999 and the Defence Act No. 42 of 2002.

South Africa’s military court system consists of the Court of Military Appeals, the Court of a Senior Military Judge, and the Court of a Military Judge. Military courts have wide jurisdiction, including criminal jurisdiction, over members of the South African National Defence Force (SANDF).

At issue in this matter were sections 15 and 17 of the Military Discipline Supplementary Measures Act 16 of 1999, which grant the Minister of Defense and Military Veterans the discretionary power to assign military judges on a temporary basis, for renewable periods, or remove them without any oversight. 

In addition, O’Brien challenged  sections 101 and 102 of the Defence Act No. 42 of 2002, which provides for the investigation of military judges and/or revision of their judicial decisions through a board of inquiry, staffed by non-judicial officers. Such  boards are even empowered to investigate the content and merits of decisions made by military judges. 

These legislative provisions, the Court was asked to evaluate for their consistency with the South African Constitution and international law and standards. 

The Constitution entrenches the independence of courts, prohibits interference with their functions and requires other organs of state to assist in safeguarding judicial independence (section 165). The Constitution also prescribes the appointment process for judges (section 174), safeguards the rule of law (section 1) and entitles accused persons to “public trial before an ordinary court” (section 35). 

The High Court of South Africa (Gauteng Division, Pretoria) and the Supreme Court of Appeal rejected Lt-Col O’Brien’s counter-application and appeal challenging the constitutionality of the Minister of Defence and Military Veterans’ authority and, therefore, the matter came before the Constitutional Court on appeal. Before the Constitutional Court, the government authorities contended that military courts are not judicial bodies within the meaning of these Constitutional provisions and therefore do not enjoy the protection of judicial independence afforded by the Constitution. On the same basis, military judges, it was argued, are not judicial officers entitled to such independence.

ICJ’s Amicus Intervention

The International Commission of Jurists (ICJ) submitted an amicus curiae in the case, detailing international law and standards on independence on judges and lawyers, which the ICJ argued were necessarily applicable courts carrying out inherently judicial functions, including military courts. 

 The ICJ also successfully applied for leave to adduce as evidence a government report which identified at least 438 alleged cases of sexual misconduct cases against military staff and officials. The ICJ asked the Court to evaluate the importance of the application of principles on judicial independence to military courts given their jurisdiction over a range of serious crimes, including murder and rape. Given the substantial evidence provided by the Ministerial Task Team Report on Sexual Harassment, Sexual Exploitation, Sexual Abuse and Sexual Offences for the period December 2019-June 2020 alone, the ICJ argued that it was critical that the military courts – and military judges – were afforded full independence at par with other judicial officers.

In light of this, the ICJ argued that as it stands, the impugned legislation, namely, the Military Discipline Supplementary Measures Act 16 of 1999 and the Defence Act No. 42 of 2002 did not provide military courts with sufficient independence. Consequently, the legislative framework failed to equip military courts – and military judges – to serve as an effective tool to protect and advance the interests of survivors of sexual assault. 

The Court’s Decision

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.

The Court also upheld O’Brien and the ICJ’s arguments that South Africa had a duty to fulfil its international, including regional, legal obligations relating to the independence of judges by realizing them in the domestic courts, including military courts. The Court noted that international law instruments recognize that such core protections for independence must extend to all courts and tribunals, including military courts. The Court stated that judicial independence must be contextually interpreted in light of the Bill of Rights including fair trial rights, which is an essential component of judicial independence.  The Court drew significantly on the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, which the Court described as the source of South Africa’s “binding primary international treaty obligations pertaining to judicial independence”. The Court invoked interpretative instruments including the African Commission Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) and the UN Human Rights Committee, General Comment No.32 on Article 14 (the Right to equality before courts and tribunals and to fair trial) 2007.  The Court also evaluated South Africa’s legal framework in light of the United Nations Basic Principles on the Independence of the Judiciary and the Bangalore Principles of Judicial Conduct. 

With respect to the evidence and argument presented by the ICJ in respect of sexual assault, the Court agreed with the ICJ, reasoning that:

Plainly, the ICJ’s contentions provide important context in the sense of the urgent and crucial need for military courts to be truly independent, against the backdrop of sexual offences and sexual misconduct that are said to go largely unreported in the military out of fear of retaliation of not being promoted to the next rank in their military career. It must also be said that the ICJ effectively relates the report to the impugned sections.

The Court therefore declared the impugned provisions of the Military Discipline Supplementary Measures Act 16 of 1999 and the Defence Act No. 42 of 2002 unconstitutional. While the Court suspended the declarations of invalidity for 24 months to give the legislature an opportunity to remedy the defects, it also provided interim remedies to cure the unconstitutionality pending such remedial legislative measures.

Significance

The Court’s decision is highly consequential in several respects.

First, it affirms that, where military courts are set up, they must enjoy full judicial independence, in terms of international law and standards. 

Secondly, the decision takes seriously the importance of addressing the scourge of violent misconduct – and especially sexual violence – perpetrated by members of armed forces. This problem is not only evident in South Africa but is of worldwide concern in the context of ongoing wars, conflicts and other situations where soldiers are posted for duty. On the other hand, it is notable that contemporary international standards militate against military courts having any jurisdiction whatsoever over instances of gross human rights violations, including sexual violence, and the judgement does not address South Africa’s failure to ascribe such jurisdiction to ordinary courts when such acts are committed by military personal.

Finally, the Court’s decision generally affirms the mandatory application of international law and standards on judicial independence in South African courts. This is important in a global context in which international legal obligations are often disregarded and matters in which international law is engaged addressed solely though domestic law. 

Photo attribution: “Constitutional Court, Johannesburg, South Africa” by Alex Southgate is licensed under CC BY-NC-SA 2.0