Mail & Guardian reporter
The Mail & Guardian and the Freedom of Expression Institute have won a landmark legal battle in the Cape High Court which could see changes made to the Defence Act, particularly the way the army conducts its courts martial.
“The present case is a perfect example of why the provisions [of the Military Discipline Code] do not accord with the norms of a civilised and democratic society,” Judge AD Hlophe ruled.
Until now, the vast majority of courts martial convened by the South African National Defence Force (SANDF)- there are hundreds every year with accused soldiers often facing terms of imprisonment – have been closed to the public.
The case was brought against the Ministry of Defence after the M&G published an article in 1996 detailing allegations of racism in the SANDF. Two soldiers based in the Western Cape, Staff Sergeant Gordon Pheiffer and Corporal Dawid Booysen, were charged with, among other offences, claiming that their commanding officer was racist.
Both had clean service records prior to the charges and, if convicted, faced the possibility of two years’ imprisonment.
The charges arose from a military intelligence report compiled by Lieutenant Colonel Patrick Ricketts, who had been instructed to gather counter-intelligence at Pheiffer and Booysen’s unit. His report detailed the discovery of a drugs and weapons syndicate operating in the Western Cape and suspicions that army intelligence officers were involved.
But the document, labelled “secret”, also contained information from Pheiffer and Booyen concerning assaults on black troops by three lieutenants and racist behaviour by SANDF officers. It was shown to their commanding officer who decided they would be charged and court martialled.
The presiding officer at the court martial, Lieutenant Colonel Mardon, declared the proceedings would be held in camera, that the entire proceedings be classified as secret and that the record of the court martial be classified secret.
The Freedom of Expression Institute and the M&G applied to the Cape High Court to declare the Defence Act of 1957 and provisions of the Military Discipline Code unconstitutional and to interdict the minister of defence from reconvening the court martial. The court was also asked to direct that the court martial be held in public.
During argument, the Ministry of Defence conceded that the intelligence document should not have been classified “secret” and that the court martial should not have been held in camera.
Judge Hlophe said the convening authority of the court martial could not have applied his mind before declaring the proceedings should be held in camera because he had not yet seen the military intelligence report.
“Thus … it is unconstitutional. It flies in the face of constitutionally guaranteed rights of any accused person … I have no doubt that it is unconstitutional and should be struck down,” he said.
`The ordinary courts are statutorily competent to try offences under the Military Discipline Code. They enjoy added constitutional safeguards of independence essential to protect fundamental human rights and civil liberties.
“By contrast, the court martial, as presently constituted, goes far beyond what is reasonably necessary to achieve the object of military discipline.”
Judge Hlophe ordered that sections 104 to 112 of the Defence Act and related articles of the Military Discipline Code were unconstitutional, invalid and of no force or effect. The Ministry of Defence was interdicted from reconvening the proceedings against Pheiffer and Booysen pending final determination on the issue by the Constitutional Court.
He also directed that the court martial be opened to the public, including the media, to remove the classification of secrecy from the entire proceedings and its record. The SANDF was instructed to make all documents referred to at the court martial available to the public and the media.
The Ministry of Defence was ordered to pay the costs of the application.
Advocate Derek Spitz, instructed by Karien Norval of David Dison, Norval, Ameer and Ndlovu, appeared for the M&G and the Freedom of Expression Institute.