THE TRANSFORMATION OF THE MILITARY JUSTICE SYSTEM

1. BACKGROUND

The Minister of Defence decided to set up a Ministerial Task Team to investigate the possibility of transforming the Military Justice System. This decision was informed by the numerous grievances received by both the Minister and the previous Deputy Minister of Defence with complaints of victimization of particularly black members by senior white officers using the justice system.

For example in 2002 the Defence Intelligence carried out an investigation in a case involving two members of the Military Police Unit who had been sentenced by the Military Court to imprisonment. The two members had lodged a complaint with the Minister of Defence to the effect that charges laid against them were fabricated and that most of the procedures followed in court were flawed. The findings of this investigation concluded that there were indications that the charges might have been fabricated and that there was a possibility of collusion between the senior officers to implicate and make a finding of guilty in this case.

And again, the Ministerial Task Team which was set up by the Minister of Defence to investigate the circumstances that led to the "Tempe killing" in 1999, recommended that the Military Discipline Supplementary Measures Act, 16 Of 2000 be looked into to enquire into the constitutionality of certain provisions of that Act.

And in 2003, the Minister set up a Ministerial Task Team to investigate the transformation of the Defence Secretariat with a view to building capacity and to enhance the quality of work therein. This Ministerial Task team also recommended that a separate Task Team should be set up to specifically deal with the transformation of the Military Justice System.

In December 2003 the Minister set up a Ministerial Task Team to look into the transformation of the Military Justice System.

The Minister appointed the following persons to be members of the Task Team:

• Judge Pheneas Mojapelo - Chairperson
• Adv Justice Poswa snr
• Adv Vincent Maleka snr
• Mr Koot Myburgh - State Law Adviser, Department of Justice
• Ms Lizzy Kubushi - Legal Adviser to the Minister of Defence

To provide advice to the Minister of Defence as to how the Military Justice System could be transformed in particular reference to:

• the independence of the judiciary;
• the independence of the prosecutorial authority;
• should the military legal service be staffed by the military personnel only, is there a role for civilians? If so, will there be a need for specific training?
• who should provide oversight over the administration;
• independent of the SANDF what remedial measures are to be taken where there have been breaches of the constitutional, statutory or policy prescripts;
• the constitutionality of some of the penalties imposed by the Military Courts;

• To make proposals and recommendations based on the findings;
• To submit a report to the Minister of Defence on or before the 15^th March 2004.

4. PROGRESS SO FAR

The Task Team presented the Minister with an interim report on the 25^th April 2004.

Due to the limited time at the disposal of the Task Team, because of the elections, the Task Team did not have time to meet with the Chief Military Legal Service and members of his staff to obtain their input into the process.

The Minster has now instructed the Task Team to proceed with the interview of the staff of the Military Legal Services Division in order to finalise the report.

EM Kubushi

Legal Adviser to the Minister of Defence

6^th September 2004