Paul Kirk
The military council of review – the South African National Defence Force’s (SANDF)equivalent of the appeal court – has overturned the 1997 conviction of a soldier who was court-martialled for wearing goat- skin bracelets.
Corporal Stanley Hlongwane of Five SA Infantry Battalion, based at Ladysmith, was charged and convicted of two counts of contravening the military discipline code. The first count was that, while guard commander, he failed to take his guards on parade at the correct time. The second, which he claimed infringed on his cultural rights, was that he refused to remove his isiphandla (goat-skin bracelet) when instructed to do so.
In terms of army dress regulations no cultural or religious adornments can be worn by members of the army while in uniform. Wedding rings are allowed, as are the red dots worn by married Indian women.
Iziphandla are worn by Zulu people and made of the skin of a goat that has been ritually slaughtered after a calamity has struck the person concerned. The iziphandla are meant to heal rifts between the wearer and his ancestors.
Five SA Infantry Battalion’s policy was that iziphandla could be worn if they could not be seen. If they could not be hidden, the wearer was expected to remove them, or take leave until the specified period for wearing the iziphandla had passed.
After a group of officers saw Hlongwane’s isiphandla they ordered him to remove it immediately. When he refused to do so, the group pinned him down and cut off his bracelet. He was then charged with failure to obey an instruction.
After his conviction Hlongwane approached the Durban Legal Resources Centre who assigned two attorneys, Sue Clarke and Mahendra Chetty, to appeal on the grounds that not being allowed to wear an isiphandla infringed on his cultural rights.
He had his conviction overturned – but not because his cultural rights had been infringed. The council of review found that, while Hlongwane may have been late in turning out the guard, this had no effect on security or operational effectiveness and thus set the first conviction aside. On overturning his conviction for disobeying an order, the council of review found that “reasonable doubt existed whether the instruction to remove the isiphandla can be regarded as a command in terms of Section 19(1) of the Military Discipline Code”.
The manner in which the order was given, and the subsequent assault of Hlongwane also brought into doubt the legality of the order. The military board of review lambasted the officers for pouncing on Hlongwane. The judgment read: “The council condemns the conduct of the members of the group who removed the applicant’s isiphandla by applying force. They should have called the military police. They did not behave like the officers and gentlemen they should be … Their actions toward the applicant are deplorable.”
Hlongwane’s victory comes at a time when military discipline is in a crisis in KwaZulu-Natal. Since December 18 last year no courts martial have taken place after a full bench of the Cape High Court declared the procedures followed by military courts martial to be unconstitutional.
This was after the Mail & Guardian brought an application to the court asking for the right to attend a court martial in Cape Town which had been closed to the media because a secret military document had been part of the evidence. The SANDF appealed the court’s decision at the Constitutional Court, but the matter was not heard there because the Ministry of Defence had changed the legislation governing courts martial a few days earlier.
Top officers from Natal Command will meet next week to discuss the possible impact of the Hlongwane ruling. They apparently fear it may encourage unpolished boots, sloppy haircuts and lead certain troops to completely disregard military dress regulations.