---

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Dates heard: 30- 31 May 2005

Date of judgment: 1/8/2005

Case no: 27513/2000

REPORTABLE

In the matter between:

KHOMISENARE PETRUS TSOAELI

AND FIVE OTHERS …............................................................................................APPLICANTS

and

THE MINISTER OF DEFENCE.............................................................FIRST RESPONDENT

CHAIRPERSON OF THE COUNCIL

OF REVIEW.........................................................................................SECOND RESPONDENT

PRESIDENT OF THE ORDINARY

COURT MARTIAL …...........................................................................THIRD RESPONDENT

In the matter between:.......................................................................................Case No: 27512/2000

KHEDAMILE JACOB KHOLOMBA......................................................................APPLICANT

and

THE MINISTER OF DEFENCE

CHAIRPERSON OF THE COURT..........................................................FIRST RESPONDENT

OF MILITARY APPEALS

PRESIDENT OF THE...........................................................................SECOND RESPONDENT

ORDINARY COURTNARTIAL...............................................................THIRD RESPONDENT

JUDGMENT

DU PLESSIS J:

In Steyn v The Minister of Defence (Transvaal Provincial Division case no. A643/2003) Maluleke J held that the Military Discipline Supplementary Measures Act, 16 of 1999 "creates a complete separate military court system and no appeal or review lies against the decisions of the Court of Military Appeals" established under section 6(1)( a) of that Act. In Zulu v Minister of Defence and others (Transvaal Provincial Division case no. 28410/2004) the reviewability of judgments of the Court of Military Appeals by the High Court arose in the course of an application for an interim interdict. Mojapelo J (as he then was) held that the applicants have established, at least prima facie, that the High Court has the power to review decisions of the Court of Military Appeals.

In the two applications before us the question of reviewability of decisions of the Court of Military Appeals also arose. In view of the conflicting decisions referred to above, Legodi J referred both the applications to this court.

In the first application before us, the Tsoaeli-matter, the applicants, soldiers of the South African National Defence Force (SANDF), appeared before an Ordinary Court Martial on a number of charges and alternatives thereto. The Ordinary Court Martial was constituted under the Defence Act, 44 of 1957. The applicants were convicted on various charges and sentenced. The matter then came before a Council of Review constituted in tern1S of section 145(b) of the First Schedule to the Defence Act (the Military Discipline Code, also referred to as the MDC or the Code). It is important in the context of this judgment that the Council of Review was presided over by ajudge of the High Court. On 25 May 1999 the Council of Review handed down its judgment. It set aside certain convictions and substituted them with others. It also interfered with the sentences that the Ordinary Court Martial had imposed. It is also important in the present context that the Military Discipline Supplementary Measures Act ("the Act") came into operation on 29 May 1999, four days after the Council of Review gave its judgment.

The Act repealed part of the MDC, including section 145(b) under which the Council of Review was constituted. It introduced an entirely new military justice system which included the establishment of the Court of Military Appeals. Section 44(1) of the Act provides: "Every Council of Review established and constituted by the Minister of Defence under s 145 of the Code prior to the commencement of this Act, shall be deemed to have been constituted and established as a Court of Military Appeals under this Act".

In the Tsoali matter the applicants ask the court to review the decision of the Council of Review. In terms of section 44(1) of the Act referred to above, the application must be deemed to be one seeking the review of a decision of the Court of Military Appeals.

In the second matter before us, that of Kholomba, the applicants were tried by an Ordinary Court Martial, were convicted on several charges and sentenced. After the commencement of the Act the Court of Military Appeals reconsidered the convictions and the sentences. It confirmed the convictions but changed the sentences. The applicants applied to the High Court for the review of the decision of the Court of Military Appeals. It is again important to note that a High Court judge presided over the Court of Military Appeals.

In the Steyn-case referred to in the first paragraph above, the court had to decide whether a convicted person has a right of appeal to the High Court against the decision of the Court of Military Appeals. Maluleke J held that a convicted person has no such right. This finding accords with that of the full bench of this division in Mbambo v Minister of Defence 2005 (2) SA 226 (T) where is was held, albeit for different reasons, that there is no right of appeal to the High Court from decisions of the Court of Military Appeals. In the passage that I have quoted above Maluleke J went further however and said that no review lies against the decisions of the Court of Military Appeals. The finding is obiter but nevertheless requires serious consideration. One of Maluleke J's reasons for holding that the High Court cannot review decisions of the Court of Military Appeals was that a High Court judge may be the one presiding over the relevant Court of Military Appeals.

(I shall return to the composition of the Court of Military Appeals in due course.) The learned judge reasoned that one (or more) High Court judges cannot review the decision of another High Court judge.

In the Zulu-case it was submitted on behalf of the respondents that "it is trite law that ajudge (of the High Court) cannot be taken on review, whether he sits as ajudge of the High Court or otherwise". As authority for the proposition counsel relied on the judgment of the Supreme Court of Appeal in Pretoria Portland Cement Co Ltd and another v Competition Commission and others 2003 (2) SA 385 (SCA). Mojapelo J held in the Zulu-case that, while the decision of a judge of the High Court sitting as such may not be subject to review, it does not follow that the decision of a judge of the High Court acting in a different capacity cannot be reviewed (see paragraphs 30 to 37 of the Zulu-judgment).

In view of this difference of opinion, Legodi J in the two applications now before us referred the following question to the full bench for decision: "Can a judge of the High Court sitting as a chairperson of the Court of Military Appeals be taken on review to the High Court of South Africa?" (There are typing errors in the order itself. I have taken the liberty of correcting them in the quotation.)

There are passages in the Pretoria Portland Cement-judgment ("the PPC – ¬judgment") that could be understood to mean that judges of the High Court are never subject to review (see paragraphs 35 and 36 of the judgment). I respectfully agree with Mojapelo J however that the PPC-judgment is not authority for the general proposition that the decision of a High Court judge can never be the subject of review regardless of the capacity wherein he or she acted. Firstly, the point that the SCA dealt with in the PPC-judgment was whether a High Court judge must be joined as a party in proceedings where a decision he/she made as such is under attack. The SCA held that the old debate as to whether the judge was acting judicially or administratively is "essentially sterile" (para. 39) as there are sound policy reasons why a judge must not be joined. Secondly, it is clear from the PPC-judgment itself that the remarks were made regarding a judge of the High Court acting as such (see para. 39 and 41). Counsel did not refer us to any authority for the general proposition that a decision of a person who is a judge of the High Court can never be the subject of review. I have also not found such authority.

I conclude therefore that, while the decisions of the High Court and of High Court judges acting as such may not be subject to review, there is no general rule that the decision of a judge of the High Court, regardless of the capacity in which he or she acted, cannot be reviewed.

Before I leave this aspect of the case, I deem two remarks appropriate. In the course of our research we have come across a number of cases wherein judges of the High Court acting as such were cited in proceedings in which their decisions were attacked. The PPC-judgment is clear authority that such joinder is unnecessary and inappropriate. Practitioners and litigants should take note thereof. It also appeared from our research that judges are increasingly used to perform functions such as to authorise search and seizure warrants (see for instances the Competition Act, 89 of 1998 that was in issue in the PPC-case and also the Prevention of Organised Crime Act, 121 of 1998). Practitioners do not always seem to approach the High Court in accordance with the court rules. Practitioners and litigants should note that, apart from by way of action, the correct way to approach the High Court, including a judge in chambers, is by way of "notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief' (see rule 6(1) of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa (the Uniform Rules of Court); see also Delport N.O. v Robinson en andere 1993 (3) SA 552 (T)) at 5561 to 5570).

The conclusion¹ that I have reached1 does not dispose of the issue before us however. The essential question is whether decisions of the Court of Military Appeals are subject to review by the High Court. In terms of section 19(1)( a)(ii) of the Supreme Court Act, 59 of 1959 the High Court has the power to review the proceedings of all inferior courts within its jurisdiction (but see section 19(2)(a); see also section 24(1) as to the ambit of the review power).

The Supreme Court Act defines an inferior court as "any court (other than the court of a division) which is required to keep a record of its proceedings, and includes a magistrate or other officer holding a preparatory examination into an alleged offence" (see section 1 of the Supreme Court Act). Unless the Court of Military Appeals can be regarded as "the court of a Division" of the High Court, it certainly falls within the definition. I proceed to consider whether the Court of Military Appeals can be regarded as a division of the High Court.

A Court of Military Appeals may be composed of three judges or retired judges of the High Court plus two further members (section 7(1)(a) of the Act). It may also be composed of a judge or retired judge of the High Court plus two further members (section 7(1)(b) of the Act). Finally, the Court of Military Appeals may be composed of a magistrate or retired magistrate who has held office for at least ten years plus two further members (section 7(1)(b) of the Act). Apart from instances where a magistrate presides, the Court of Military Appeals is always presided over by a judge or retired judge of the High Court. It is not the composition of a court or the identity of the presiding officer that determines the status of a court however. The status is determined by the Constitution of the Republic of South Africa, 1996 from which courts ultimately derive their power and their status.

Section 166 of the Constitution establishes the South African court system. The Constitutional Court, the Supreme Court of Appeal, the High Courts and the Magistrates Courts are respectively provided for in sections 1 66(a) to (d) of the Constitution. In terms of section 166(e} other courts may be established or recognised in terms of an Act of Parliament. Section 166(e) further provides that such an Act of Parliament may establish or recognise courts "of a status similar to ... the High Courts". There is nothing in the Act or in any other Act of Parliament to the effect that the Court of Military Appeals has a status similar to the High Courts. It follows that for purposes of the Supreme Court Act, the Court of Military Appeals is an inferior court howsoever it may be composed. In the result the decisions of the Court of Military Appeals are subject to review by the High Court in terms of section 19(1)(a)(ii) of the Supreme Court Act.

The question posed by Legodi J when he referred these applications to the full bench must therefore be answered affirmatively. As this result does not dispose of the review applications, both the applications must be referred back to Legodi J, or if he is not seized of the matter, to another judge of this division to deal with the actual review applications.

On this leg of the proceedings the applicants were successful and the costs must follow the result. The second and third respondents have been cited in their official capacities and did not participate in the proceedings. The first respondent must pay the applicants' costs.

The following order is made:

1. It is declared that the High Court has the power to review the proceedings of the Court of Military Appeals, also when a judge of the High Court presides over the latter court ..

2. The first respondent is ordered to pay the applicants' costs occasioned by the determination of the question answered in paragraph one of this order.

3. The applications are referred back to the court a quo.

B.R. du Plessis

Judge of the High Court

I agree.

A. de Vos

Judge of the High Court

I agree.

G. Webster

Judge of the High Court

CASE NO: 27512/2000 & 27513/2000

HEARD ON: 30 - 31 MAY 2005

FOR THE APPLICANT(S): ADV S MLONZI

INSTRUCTED BY: RAMMUTLA-AT-LAW INC, PRETORIA

FOR THE RESPONDENT(S): ADV P J J DE JAGER SC WITH ADV B NEUKIRCHER

INSTRUCTED BY: STATE ATTORNEY, PRETORIA

DATE OF JUDGMENT: 1 August 2005

---