The International Commission of Jurists (ICJ) welcomes the judgement of the Constitutional Court of South Africa (the Court) in the recent case of O’Brien N.O. v Minister of Defence and Military Veterans in which the Constitutional Court affirmed that the military courts of South Africa must be held to same standards of judicial independence as ordinary courts.
The ICJ intervened in the matter as an amicus curiae (friend of the court).
The context of the case was especially critical, given that the case involved allegations of serious human rights violations involving sexual and gender- based violations, in response to which the adjudication by independent courts is indispensable.
“Not only does the judgment affirm the functional and structural independence of the military courts, but the Court also explicitly accepts the direct connection between such independence and the need to ensure access to justice and accountability for survivors of sexual violence at the hands of military staff and officials,” said ICJ Africa Programme Director Kaajal Ramjathan-Keogh
While under international law and standards, cases of sexual violence should be addressed by ordinary courts, it is critical that where jurisdiction should be assumed by military courts, they must behave in form and functions identical to competent, independent ordinary Courts.
The ICJ calls on the government and military authorities to fully implement this progressive judgement of the Constitutional Court.
Summary of the Court’s Judgement
The Constitutional Court’s judgement, handed down on 20 December 2024, 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 applicant, a Lieutenant-Colonel in the South African National Defence Force (SANDF) and a former military judge, challenged the constitutionality of the provisions of the Military Discipline Supplementary Measures Act No. 16 of 1999, which allows the Minister of Defence and Military Veterans to appoint or remove military judges without the involvement or oversight of any independent body.
The applicant also challenged section 15 of the Military Discipline Supplementary Measures Act as it permits the Minister and the Adjutant General to make renewal assignments of military judges, for short periods, at their sole discretion, and without any objective criteria. Additionally, the applicant requested the Court to assess the constitutionality of sections 101 and 102 of the Defence Act No. 42 of 2002 in as much as it empowers members of the executive to appoint boards of inquiry, staffed by non-judicial officers, to investigate military judges, their judgements, and the conduct of their cases.
Government authorities (Minister of Defence and Military Veterans, the South African National Defence Force and Secretary of Defence and Military Veterans) argued before the Constitutional Court that military courts are not “courts” and military judges are therefore not “judicial officers” entitled to the guarantees for judicial independence provided by the Constitution. The Court rejected this argument, asserting that given their significant jurisdiction over criminal matter “the inescapable conclusion is that military judges are indeed judicial officers” entitled to constitutional protection of their independence. The Court stressed that such independence is critical to protecting the right to a fair trial of individuals before such courts.
Drawing on its jurisprudence on judicial independence, the Court emphasized what it indicated were “core requirements” or “essential conditions” for institutional independence of judges, including: “freedom from any outside interference (especially from the executive), security of tenure, and non-renewable terms”. The Court, in line with submissions made to it by the ICJ, also drew substantially on South Africa’s international law obligations in respect of judicial independence, including under the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights (African Charter). The Court also made reference to the leading universal standards on judicial independence, the United Nations’ Basic Principles on the Independence of the Judiciary. According to the Court:
“The inescapable conclusions to be drawn from international law and jurisprudence are these: the guarantee of judicial independence ought also to be afforded to military courts. This is particularly so where the military courts have jurisdiction over criminal cases, including cases such as rape and sexual assault. These courts must be given the same independence guarantees as ordinary courts determining such matters…”
In this light, the Court examined the impugned provisions of the Defence Act, finding sections that empowered the executive to initiate boards of inquiry to investigate military judges’ “fitness and the conduct of their cases” to impinge on their independence. Similarly, the Court also found provisions of the Military Discipline Supplementary Act to be constitutionally deficient because they provided for brief and renewable terms of military judges, compromising their security of tenure, and allowed the executive to remove judges “without independent oversight or control”.
In addition to focusing on the applicable international law and standards relating to the independence of judges, 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. In allowing for the report to be adduced as evidence by the ICJ, the Court reasoned that:
“In essence, the ICJ is placing reliance on the report to show that complaints of sexual offences are widespread in the SANDF and that the scourge of gender-based violence in the SANDF makes it all the more important that military courts should be truly independent. 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.”
Military judges are judicial officers
The Court rejected the respondents’ argument that the term ‘court’ did not include military courts in terms of section 166(e) of the Constitution. In so doing, the Court considered that the court of a military judge has 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. Taking into account the way military courts operate, their rules and implication of their orders, the Court concluded that military judges were “judicial officers” under section 174(7) of the Constitution. Therefore, similar to other courts, the principle of judicial independence applied.
The Court further disapproved the temporary short-term appointments of military judges noting as follows:
“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 ICJ was represented by the Legal Resources Centre and Advocates Emma Webber and Emily van Heerden in this case.
Resources
- ICJ, South Africa: Military Courts should be allowed to operate independently and without undue influence from political authorities
- South Africa: Constitutional Court of South Africa, O’Brien N.O. v Minister of Defence and Military Veterans and Others (CCT 14/23) [2024] ZACC 30; 2025 (2) SA 613 (CC); 2025 (4) BCLR 460 (CC) (20 December 2024)
- South Africa: High Court, Gauteng Division, Pretoria, Minister of Defense and Military Veterans and Others v O’Brien N.O and Others.
- South Africa: Supreme Court of Appeal, Lieutenant Colonel KB O’Brien NO v The Minister of Defense and Military Veterans and Others.
- South Africa, Military Discipline Supplementary Measures Act 16 of 1999.
- South Africa, Defence Act No. 42 of 2002.
- The Constitution of South Africa.
- ICJ, International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors, Practitioners’ Guide No. 1.
- Military jurisdiction and international law, volume 1 Military courts and gross human rights violations.
- Ministerial Task Team Report on Sexual Harassment, Sexual Exploitation, Sexual Abuse and Sexual Offences within the Department of Defence
Contacts
Kaajal Ramjathan-Keogh, ICJ Africa Director, e: Kaajal.Keogh@icj.org
Jean-Andre Deenik, Communications & Marketing Officer at LRC, e: jeanandre@lrc.org.za
Cecile van Schalkwyk, Attorney at the LRC, e: cecile@lrc.org.za
