---

IN THE COURT OF MILITARY APPEALS

HELD AT PRETORIA ON 2 JULY 2015, 12 JANUARY AND 17 MARCH 2016

AND CONSTITUTED AS FOLLOWS:

 

Chairperson:	The Honourable Justice M.L. Mailula
Members:	Col G.J. Barnard
	Col R.E. Combrink

REVIEW IN TERMS OF SECTION 34(2) OF THE MILITARY DISCIPLINE SUPPLEMENTARY MEASURES ACT, 1999, ACT NO 16 OF 1999

Accused:	970023728V Cpl Goodwill Siyabonga Bhengu,
	SAIC, DLI
Military Judge:	Lt Col S.E. Sithole
Prosecution:	Maj G.W. Koornhof
Defence Counsel:	Lt M.N. Ntshangase
Date of Trial:	7 March 2014
Charges convicted of:	Charge 1: Common Law Assault
Sentence:	'A fine of R 1 500.00 coupled with 6 months imprisonment and discharge with ignominy from the SANDF of which 6 months imprisonment and discharge with ignominy from the SANDF is suspended in whole for 3 years on condition accused is not convicted of assault during the suspension period ie 3 years'
Court Orders:	Sec 103 FCA - accused is fit to possess a firearm Sec 130 MDC - the accused is placed under deduction of pay for a fine amounting to R 1 500.00

IN THE COURT OF MILITARY APPEALS

HELD AT PRETORIA ON 2 JULY 2015, ,

AND CONSTITUTED AS FOLLOWS:

 

Chairperson :	The Honourable Justice M.L. Mailula
Members:	Col G.J. Barnard
	Col R.E. Combrink

REVIEW IN TERMS OF SECTION 34(2) OF THE MILITARY DISCIPLINE SUPPLEMENTARY MEASURES ACT, 1999, ACT NO 16 OF 1999

Accused:	970023728V Cpl Goodwill Siyabonga Bhengu,
	SAIC, DLI
Military Judge:	Lt Col S.E. Sithole
Prosecution:	Maj G.W. Koornhof
Defence Counsel:	Lt M.N. Ntshangase
Date of Trial:	7 March 2014
Charges convicted of:	Charge 1: Common Law Assault
Sentence:	'A fine of R 1 500.00 coupled with 6 months imprisonment and discharge with ignominy from the SANDF of which 6 months imprisonment and discharge with ignominy from the SANDF is suspended in whole for 3 years on condition accused is not convicted of assault during the suspension period ie 3 years'
Court Orders:	Sec 103 FCA - accused is fit to possess a firearm Sec 130 MDC - the accused is placed under deduction of pay for a fine amounting to R 1 500.00
Previous convictions:	None

JUDGEMENT

 

(Prepared By Col RE. Combrink)

 

15 SEPTEMBER 2015 ON REVIEW

[1]   The matter came before this Court by way of an automatic review in terms of Sec 34(2) of the Military Discipline Supplementary Measures Act, No 16 of 1999 (MDSMA) as a result of the sentence imposed. Neither party appeared before this Court when it considered the matter on 2 July 2015 (both having confirmed in writing prior to the scheduled hearing that they did not intend submitting any written representations and would abide the decision of this Court on automatic review).

 

[2] Having considered the matter on 2 July 2015, this Court issued the following order:

 

[2] Having considered the Record of Proceedings, this Court is of the view that the record contains insufficient information upon which to properly consider the findings and sentence on review.

 

[3] This Court thus orders that the Prosecution and Defence are to file Heads of Argument by no later than 15:00 on 22 August 2015 and to appear before this Court on 15 September 2015 to present argument on the following issues:

 

a. Whether the court a quo had jurisdiction over the accused, bearing in mind that he was at trial a member of the Reserve Force and the charge sheet alleged that he was subject to the MDC by virtue of the provisions of sec 3(1)(a) of the Defence Act, 2002 and sec 3(2)(a) MDSMA.

 

b. Whether the provisions of sec 30(2) MDSMA were applicable to the replacement of Maj Dlamini as Recording Officer by Capt Bodutu on 20 October 2010 and, if so, whether this constituted a pre-trial irregularity. The parties are also to address the impact of any such irregularity (if one occurred) on the fairness of the trial.

 

[4] Judgment is reserved pending argument before this Court.

 

[3] Having considered the matter (including the Heads of Argument filed by the parties and oral arguments heard on 15 September 2015), this Court is of the view that the court a quo's finding is in accordance with real and substantial justice. The finding is upheld.

 

[4] The sentence imposed by the court a quo ('A fine of R 1 500.00 coupled with 6 months imprisonment and discharge with ignominy from the SANDF of which 6 months imprisonment and discharge with ignominy from the SANDF is suspended in whole for 3 years on condition accused is not convicted of assault during the suspension period ie 3 years' is also regarded as being proportionate and reasonably imposed having regard to the totality of the mitigating and aggravating circumstances (see S v Bogaards 2013 (1) SACR 1 (CC) at par 41). It is, however, incorrectly worded with regard to the suspended component of the sentence. It refers to the South African National Defence Force by its acronym 'SANDP (see the OD27 and par 81 of the record of proceedings pro forma). This Court has previously held that (Senior) Military Judges are to formulate the imposed sentence with strict reference to its description as promulgated in Sec 12 MDSMA (see S v Sea Fredericks (CMA Case No 2312014) and S v Rfn Vapi (CMA Case No 2212014)). The condition of suspension is further framed too wide in its scope of application in that it purports to include any conviction irrespective of when such offence was committed. The sentence is thus corrected to read as follows:

 

A fine of R 1 500.00. The accused is also sentenced to imprisonment for a period of 6 months and discharge w11h ignominy from the South African National Defence Force, of which both the period of imprisonment and coupled discharge with ignominy from the South African National Defence Force are wholly suspended for a period of 3 years on condition that the accused is not convicted of assault, committed within the period of suspension.

 

[5]   The court orders made ito sec 130 of the Military Discipline Code (MDC) and sec 103(2)(a) of the Firearms Control Act, No 6 of 2000 (FCA) are both confirmed. The latter order is, however, incorrectly phrased, and is rephrased as follows:

 

After conducting an enquiry in terms of sec 103(2)(a) FCA, the Court determines that the accused need not be declared unfit to possess a firearm.

 

 

[6] This Court's reasons follow below. References to the Record of Proceedings in this judgment are to the typed transcript, and indicated as (transcript page number I record page number: from line - to line).

 

BACKGROUND

 

The proceedings in the court a quo

 

[7] The accused was charged with one count of Common Law Assault, alleging that he assaulted Pte Mkhumbuzi (the complainant) on 12 October 201O by 'punching him with a clenched fist several times on his left eye and his face'. The accused pleaded guilty to the charge and tendered formal admissions admitting the elements of the alleged offence as described on the charge sheet. The State led no viva voce evidence.

 

[8] The presiding Military Judge, after considering the contents of a Preliminary Investigation ('PI) conducted in respect of the alleged offence, convicted the accused of Common Law Assault. Upon conviction the accused was sentenced to a fine of R 1 500.00, and also to imprisonment for a period of six months (with the mandatory coupled sentence of Discharge with Ignominy from the South African National Defence Force), of which both the period of imprisonment and the mandatory coupled sentence of Discharge with Ignominy from the South African National Defence were wholly suspended for a period of 3 years on condition that the accused is not convicted of assault, committed within the period of suspension. The accused was ordered in terms of sec 130 MDC to be placed under deduction of pay in the amount of the fine and, after an enquiry in terms of sec 103(2) FCA, not declared unfit to possess a firearm.

 

The facts

 

[9]   The evidence in the Pl indicates that the complainant and accused were both part of a group of Reserve Force members of Durban Light Infantry attending a Driving and Maintenance Course at 5 SAl Bn at the time of the incident. The accused, as the highest ranking member of this group of students on course, was appointed to act as liaison between the students and the unit personnel presenting the training course. On 12 October 2010 the complainant enquired from the accused whether their bus tickets had arrived and were available (the learners on course approaching a course break which would entitle them to travel home at state expense). From the Pl evidence this appears to have been a follow up enquiry, the accused having on a previous occasion indicated to the students that the tickets were not yet available. It appears as if the complainant had after this previous enquiry ascertained from Capt Ngcobo (the 5 SAl Bn course leader) that the tickets had indeed arrived at the unit and were available to the students) - hence the follow up enquiry on 12 October 2010.

[1OJ The Pl contains a number of statements by eye witnesses to the incident. It appears from the evidence of the complainant and eye witnesses that the follow up enquiry quickly degenerated into an argument between the complainant and the accused, the accused maintaining that the tickets were not yet at the unit and the complainant having been advised by Capt Ngcobo that the tickets had been given to the accused (as student liaison member). During the course of the argument the accused punched the complainant with a closed fist, the first blow landing on the complainant's chin and the second on his left eye. The area above the complainant's eye started bleeding and he was taken to the sick bay after the eye witnesses intervened to put a stop to the assault. The complainant suffered a 2 cm laceration above his left eye which required three stitches, but appears to have suffered no permanent injuries.

 

[11]   The evidence in the Pl indicates that the accused apparently refused to provide the complainant with his bus ticket as the complainant had brought a civilian motor vehicle to 5 SAi Bn. It appears as if the accused was of the view that the complainant intended to sell the bus ticket and travel home in his own vehicle (which, the complainant denied in his Pl statement but, surprisingly appears to have been conceded by his Defence Counsel during her Address on Sentence). Although the accused elected to remain silent at the Pl, it may be noted that he, having been duly warned of his rights, elected voluntarily to make a warning statement to the Military Police on the same day of the incident.  In this statement he alleged that the complainant had assaulted him first by punching him in the face, where after he struck the complainant in self-defence. This assertion, which is wholly inconsistent with the evidence of the independent eye witnesses, was not proceeded with at trial.

 

AD FINDING

 

The court a quo 's finding on Charge 1

 

[12] As indicated in paragraphs 8 to 10 above, the evidence contained in the Pl clearly established that the accused intentionally assaulted the complainant in circumstances where there can be no reasonable doubt as to the unlawfulness of his conduct. The court a quo correctly convicted the accused on his plea of guilty (as supported by the evidence in the Pl). The finding is upheld.

 

Comment: failure by court a quo to properly consider the issue of personal jurisdiction (Reserve Force members)

 

[13] It should, however, be noted that the record clearly indicates that the presiding Military Judge and both prosecution- and defence counsels failed to apply their minds to the fact that the accused was (at the time of the offence and at trial) a member of the SANDF's Reserve Force. The charge sheet alleged that the accused was subject to the MDC by virtue of the provisions of sec 3(1)(a) of the Defence Act, 2002 and sec 3(2)(a) MDSMA. The latter statutory provision regulates the subjectivity to the MDC of Regular Force members. The former provision appears to be both superfluous and inapplicable. The charge sheet should have alleged the accused's subjectivity in terms of sec 3(2)(b)(i) MDSMA and sec 104(5)(b) MDC (which both regulate the subjectivity to the MDC of Reserve Force members).

 

[14] The allegation that an accused is subject to the MDC is an essential averment that establishes a military court's personal jurisdiction over the accused.  An incorrect ·averment regarding personal jurisdiction, and a failure by the court to resolve the allegation and positively assert its personal jurisdiction, may result in the proceedings being ultra vires due to a lack of jurisdiction. The allegation regarding personal jurisdiction is seldom contentious in military courts as the overwhelming majority of accused are subject to the MDC (as Regular Force members) by virtue of sec 3(2)(a) MDSMA and sec 104(5)(a) MDC. It is, however, essential in respect of Reserve Force members (and the other seldom encountered categories personal jurisdiction) that military courts apply their minds to the relevant statutory provisions (and related jurisprudence) in order to ascertain whether the court has personal jurisdiction or not. The relevant provisions regulating the subjectivity of Reserve Force members establish a personal jurisdiction regime that is fundamentally different from the one applicable to Regular Force members (see sec 104(5)(b) MDC, read with sec 59(1)(b) MDC, sec 29(9) MDSMA and S v Cpl Se/eke and another, CMA Case No 5712004) and requires careful consideration on a case by case basis.

 

[15]   As indicated, this Court directed the parties to submit argument as to whether the court a quo had personal jurisdiction over the accused. Counsel for the accused submitted that the prosecution at trial had indeed erred by alleging the accused's subjectivity to the MDC by virtue of the provisions of sec 3(2)(a) MDSMA, whilst the reference on the charge sheet to sec 3(1)(a) of the Defence Act, 2002 was apposite (as it includes both members of the Regular- and Reserve Forces). He, however, submitted that the incorrect reference to the former provision was 'an irregularity of a lesser nature' (the accused indeed being subject by virtue of sec 3(2)(b) MDSMA) which did not affect the court's jurisdiction.

 

[16] Counsel for the State submitted that the reference in the charge sheet to sec 3(1)(a) of the Defence Act, 2002 was appropriate, but concedes that the reference to sec 3(2)(a) MDSMA was incorrect (the accused being subject in terms of sec 3(2)(b) MDSMA). He argued that the court a quo indeed had jurisdiction due to the correct allegation on the charge sheet that the accused was subject in terms of sec 3(1)(a) of the Defence Act, 2002. In the alternative he argued that the accused's subjectivity in terms of sec 3(2)(b) MDSMA is established by law (and not affected by the erroneous reference to the wrong sub-section in the charge sheet). Even if found to be an irregularity it would not be of one that would (by virtue of its nature and degree) affect the fairness of the trial. He also drew attention to the provisions of sec 110 of the Criminal Procedure Act, No 51 of 1977 (CPA) which provides that even a court with no jurisdiction is deemed to have jurisdiction if the accused does not object to its jurisdiction when brought before it.

 

[17] Jurisdiction is objectively verifiable at the commencement of a trial, and thus also ex post facto after the trial on review. The common cause facts indicate that the accused committed the offence on 10 October 2010 whist called up to render service as a member of the Reserve Force. He was arraigned (and thus formally charged) on 14 October 2010 (when he was still rendering service in terms of that call-up). He was thus subject to the MDC both when he committed the offence and when he was charged, and any possible prescription of the charge was interrupted by the arraignment on 14 October 2010 (see sec 104(5)(b) MDC, sec 3(2)(b) MDSMA, sec 59(1)(b) MDC, Rule 109(3), sec 29(9) MDSMA and S v Cpl Se/eke and another, CMA Case No 57/2004). The court a quo thus (objectively viewed) had personal jurisdiction over the accused at the time of trial.

 

[18] The only remaining issue is thus whether this objectively established jurisdictional nexus was disturbed by the patently incorrect jurisdiction allegation on the charge sheet. In this respect this Court is compelled to remark that both counsels for the accused and the State were of the incorrect view that sec 3(1)(a) of the Defence Act, No 42 of 2002 appropriately alleged that the accused was subject to the MDC. This section is almost entirely unrelated to the jurisdiction of military courts (and has no bearing on the subjectivity of Regular- and Reserve Force members to the MDC). Sec 3(1)(a) of the Defence Act, 2002 results in the provisions of that Act being applicable to all SANDF members (whether Regular- or Reserve Force). But the Defence Act, No 42 of 2002 has no provisions relating to the MDC subjectivity (or indeed the military justice system) in so far as it relates to Regular and Reserve Force Members (it only having provisions that confirm and supplement those already in the MDC and MDSMA relating to members who are under instruction and training at any defence training institution and deserters or absentees without leave of a visiting force - see secs 64 and 99(1)(a) of the Act). The Defence Act, No 42 of 2002 did not repeal sec 104 of the Defence Act, No 44 of 1957 (which operationalizes the MDC as the 1957 Act's First Schedule). Any reference to sec 3(1)(a) of the Defence Act, No 42 of 2002 on a charge sheet is thus added ex abundanti cautela but has no practical significance to the issue of the Court's jurisdiction. Members of the Reserve Force are subject to the MDC by virtue of secs 3(2)(b) MDSMA and 104(5)(b) MDC, which read as follows:

 

3. Application of Act. (2) For the purposes of the application of this Act and the Code, ''person subject to the Code" includes to the extent and subiect to the conditions prescribed in this section and in the Code (b) every member of the Reserve Force (emphasis added).

 

104. Military Discipline Code. (5) The Military Discipline Code shall to the extent and subject to the conditions prescribed therein, apply (b) to members of the Citizen Force, commandos and the Reserve, while they are rendering any service. undergoing any training or doing any duty in pursuance of this Act or, when liable or called up therefor, fail to render such service or to undergo such training or to do such duty (emphasis added).

 

[19] The qualification 'to the extent and subject to the conditions prescribed in ... the Code' in sec 3(2)(b) MDSMA refers to the conditional subjectivity of Reserve Force members (set out in sec 104(5)(b) MDC) who (unlike Regular Force members) are not continuously subject to the MDC but only 'while they are rendering any service, undergoing any training or doing any duty in pursuance of this Act. An appropriate personal jurisdiction allegation in a charge sheet relating to a Reserve Force member should thus contain reference to both these sections (and requires no reference to sec 3(1)(a) of the Defence Act, No 42 of 2002).

 

[20] The purpose of an explicit personal jurisdictional allegation in a charge sheet is to inform the accused that the State is of the view that he is subject to the MDC, and thus triable in a military court. If the accused is of the view that he is not so subject he may raise the issue as an objection to jurisdiction for the court's determination. The allegation in the charge sheet does not establish jurisdiction. The court either has jurisdiction or not. A court whose jurisdiction is challenged (or mero motu if it has cause to doubt same) should conduct an enquiry to determine whether the jurisdictional facts (in this case subjectivity to the MDC) exist or not. Regarding personal jurisdiction of a Reserve Force member the salient jurisdictional fact is whether he/she was 'rendering any service, undergoing any training or doing any duty in pursuance of this Act at the time the offence was allegedly committed. If so, the court has personal jurisdiction over the accused. An additional jurisdictional consideration, of particular importance with Reserve Force members, is whether the court has jurisdiction over the offence. This requires evaluation of the jurisdictional facts underpinning sec 59(1)(b) MDC to determine whether the charge has not prescribed.

 

[21] In casu personal jurisdiction was not challenged at trial. As indicated, the common cause facts indicate that the accused committed the offence whilst called up to render service and was also formally charged during that period. The court a quo thus, in this Court's finding, and objectively assessed, jurisdiction over both the person and the offence. The partly inaccurate and partly superfluous allegation of personal jurisdiction on the charge sheet did not alter the position that the court a quo, whilst conducting the trial, ex lege had personal jurisdiction over the accused due to the common cause facts establishing that he was rendering military service both at the time of the alleged offence and his arraignment.

 

[22)  This Court is thus satisfied that the accused was clearly subject to the MDC in respect of this offence (and that the statutory requirements relating to subjectivity of Reserve Force Members were in casu complied with) despite the State alleging an incorrect statutory basis for his subjectivity and the presiding Military Judge's disconcerting failure to notice this.

 

[23] This Court, however, urges Military Judges and prosecution- and defence counsels to adequately apply their minds to all issues that may impact on fair trial proceedings, particularly those relating to personal jurisdiction which is self-evidently the point of departure in both trial preparation and the conducting of a trial by these respective stake holders in the military justice system. This particular feature of the trial in the court a quo is an unfortunate reflection that in certain instances trial preparation (and the conducting of the trial itself) focuses almost exclusively on the merits of the matter despite the trite jurisprudence that a fair trial includes the pre­ trial phase and all other related preconditions (eg. jurisdiction) for a lawful trial.

 

Comment: the submission that premature 'execution of sentence and/or failure to stay the proceedings impacted on the fairness of the trial

 

[24] As indicated, this Court mero motu directed the parties (who had initially indicated they would abide the Court's decision on automatic review) to submit argument on two issues (personal jurisdiction and the replacement of the Recording Officer who conducted the Preliminary Investigation). Counsel for the accused, however, in his Heads of Argument raised an additional point which he submitted resulted in the accused's trial in the court a quo being unfair.

 

[25] This point was described by Counsel as a 'breach of the accused's fundamental rights' due to the 'execution of sentence(s) before automatic reviews were finalised and/or failure to stay the proceedings by the court. The facts submitted in support of this inaccurately described complaint indicate that the proceedings before this Court on automatic review is in fact a de novo reinstitution of proceedings that were finalised on 15 November 2010 by a Court of a Military Judge (who convicted the accused of the same charge he was convicted on in the court a quo and sentenced him to detention for a period of 180 days wholly suspended for three years on certain conditions). The 2010 conviction and sentence were set aside by the Director Military Judicial Reviews on 14 July 2011 as (according to a covering

letter by the Review Counsel at Legsato Durban) 'the incorrect procedure was used in holding the Preliminary Investigation which meant that the court had no jurisdiction' with an indication that the accused may be retried de nova (which he was by means of the proceedings before this Court for review in casu and wherein

he was convicted and sentenced on 7 March 2014).

 

[26] This Court notes that this issue was raised before the court a quo when proceedings commenced on 5 March 2014 as a 'special plea of previous conviction' despite the Defence Counsel conceding in her application that the accused's 'acquittal was not based on the merits of this case' (3/031:6-17). The application was not formally proceeded with as the Defence Counsel advised the court a quo that the Defence and Prosecution were ad idem that the matter could proceed if the State made good on their pre-trial undertaking to have the 2010 conviction (which was set aside in 2011) removed from the accused's civilian criminal record (where it was still reflected as such as at the date of trial on 5 March 2014, but that the Defence would request a 'stay of prosecution' if the entry on the accused's civilian record was not removed and the State intended to nonetheless proceed with the trial in the court a quo.

 

[27]  The presiding Military Judge postponed the trial to 7 March 2014 for the State to attend to the removal of the 2010 conviction from the accused's civilian record, and received confirmation from the prosecution counsel on that day that it had been removed (07/034:18-27). Upon the Defence Counsel indicating her satisfaction with the resolution the trial proceeded on that day.

 

[28]  As indicated, the issue relating to the premature capturing of the conviction on the accused's civilian record was dealt with in the court a quo by means of a practical intervention by the presiding Military Judge. The raising of a special plea asserting a previous conviction or a stay of prosecution was, of course, misconceived as (regarding the former) the entry on the accused's civilian record was an administrative error, did not result from a conviction on the merits and in law could not sustain a finding of autrefois convict and (regarding the latter) the proposed order could not be granted by any military court.

 

[29] It may thus at first glance appear unfortunate that the Defence Counsel (having raised the issue in the court below before abandoning same and not initially taking issue with the State in this review but indicating that the accused would abide this Court's decision) again raises the point, somewhat opportunistically (having been directed to address this Court on unrelated specified issues) in this review. The documents, annexed to Counsel for the accused's Heads of Argument, are however a cause for concern. She supplied this Court with a certificate from the SAPS Record Centre issued on 28 July 2015 still indicating the initial conviction and sentence in 2010 (purportedly resolved over the period 5 to 7 March 2014) as a previous conviction. Of greater concern is the annexed military Record of Service (DD28) issued on 20 July 2015 not only still reflecting the same 2010 conviction (set aside in 2011) but also the conviction and sentence imposed by the court a quo on 7 March 2014 (and presently before this Court on automatic review) as previous convictions.

 

[30] Counsel for the accused's submissions in respect of these admittedly disconcerting documents are, however, problematic. In pars 4.2.3 and 4.2.4 of her Heads of Argument she submits that the detention sentence imposed in 2010 'was executed before the CMA reviewed the proceedings ... in contravention of the provisions of s 34(2) and 34(6) MDSMA' and that the 'CMA did not uphold finding and sentence due to procedural irregularities'. This is, of course, factually incorrect as the detention sentence was not subject to automatic review in terms of sec 34(2) MDSMA and was (as evidenced by the very documents annexed by counsel) set aside by the Director of Military Judicial Reviews. Her submission in par 4.2.6 that the sentence imposed by the court a quo in casu 'was also executed before the review was finalised ... in contravention of s 34(2) and 34(6) MDSMA' is, however, substantially correct.

 

[31] Counsel for the accused's submissions in pars 5.1 to 5.3 of her Heads of Argument that a 'fair trial becomes impossible when fundamental rights of the accused are breached [as] s 35(3)(m) of the constitution provides that an accused person has a right not to be tried for an offence in respect of any act or omission for which that person has previously been acquitted or convicted [and] if no fair trial can be held, the object of the judicial process is frustrated and must be stopped [and that] resulted in a failure of justice as an unfair trial essentially restates the submission made in the court a quo in the special plea that was ultimately not proceeded with. It similarly cannot be sustained for the same reason.

 

[32] Neither the (continued) appearance of the 2010 conviction on the accused's SAP 69 and DO28 nor the current entry on the OD28 indicating the premature promulgation of the 2014 conviction prior to this Court's review thereof constitute convictions that can sustain a plea of autrefois convict. They do represent egregious administrative errors in the records of the SAPS and SANDF (and should be corrected to prevent non-trial related prejudice to the accused; e.g. barring of deployment, delayed promotion, impact on contract renewal, etc). But they neither constitute valid previous convictions for the same offence that would preclude a de nova trial on the merits nor represent trial-related prejudice that resulted in actual and substantive prejudice to the accused of a nature and degree that resulted in his trial on 7 March 2014 being unfair (see this Court's judgment in S v Sgt Smith and Amother, CMA Case No 35/2013).

 

[33] This Court, however, records its serious concern regarding the chain of events over the period 2011 to date that has resulted in the post-trial administration regarding the accused's trials in 2010 and 2014 being mismanaged to a degree that beggars belief. The 2010 conviction was not subject to automatic review by this Court and would have been promulgated immediately. Subsequent to the proceedings being set aside by the Director Military Judicial Reviews on 14 July 2011 it should, of course, have been repromulgated to reflect the changed circumstances. Whether this did not occur due to the absence of such instruction from the local Review Counsel or because the accused's unit failed to execute such instruction is unknown. The implications if the sentence had been; e.g. a fine and not a wholly suspended period of detention, are self-evident. Of far greater concern is the promulgation of the conviction and sentence by the court a quo in 2014 despite this Court being still being seized of the matter on automatic review. If the premature updating of the accused's conduct sheet was accompanied by the requisite computer action to (prematurely) deduct the fine the prejudice to the accused is self­ evident. It is of some concern that the very fact that the exact sentence imposed by the court a quo was in fact so promulgated. On the assumption that in the ordinary course the accused's unit would not be able to update his conduct sheet without a source document (ordinarily a promulgation certificate), the circumstances indicate the real possibility of an instruction to promulgate a sentence still subject to automatic review.

 

[34]  As indicated, these post-trial procedures are administrative in nature and do not affect the fairness of the trial conducted on 7 March 2014. This Court has thus not investigated the circumstances that resulted in this state of affairs with sufficient detail to ascribe responsibility for this situation. This Court would, however, be remiss in its duty as the highest military court to not direct that these circumstances be properly investigated and appropriate remedial action be taken to correct the errors on the accused's DD28 and SAP 59. This Court thus directs that a copy of this judgment be delivered to the Director Military Judicial Reviews, and requests the Director to assist in any manner she is able to in order to coordinate the requisite actions by the relevant personnel.

 

AD SENTENCE

 

[35] The accused did not tender any evidence in mitigation of sentence. The Defence in its ex parte address placed certain facts before the court a quo which, read with the accused's Record of Service, established the following personal circumstances. The accused at the time of trial was a 32 years' old single male, married by customary law with no other dependants. He had served in the SANDF for ten years and had been awarded the General Service Medal. His medical classification was G1K1. He earns R 480.00 per day as Reserve Force member. He had no previous convictions.

 

[36] The Defence Counsel in her address on sentence recommended that the court impose a reprimand. The Prosecution Counsel requested the court to impose a period of effective Detention.

 

[37]  The court a quo in its reasons for sentence correctly balanced the mitigating and aggravating circumstances. The court took the abovementioned personal circumstances into account as mitigating, and also that the accused, as a first offender, had pleaded guilty and shown remorse by apologising to the complainant prior to the trial commencing. The court correctly identified the serious nature of assault as a criminal offence, the fact that the assault occurred in full view of other unit members and that the accused had assaulted a subordinate into account as significant aggravating factors.

 

[38] The judgments of this Court are replete with precedents expressing concern regarding the prevalence of assault in the SANDF, and also indicating the particularly serious nature of assaults in the military environment in terms of its impact on morale and operational effectiveness. The assault in casu was further based on a disagreement of a trivial nature, and indicates a significant lack of self­ discipline on the part of the accused. This Court is, however, of the view that the court a quo correctly balanced these serious aggravating factors with the mitigating factors present in casu, and is regarded as being proportionate and reasonably imposed in the circumstances (see S v Bogaards 2013 (1) SACR 1 (CC) at par 41). It is, however, incorrectly phrased (see paragraph 3 above). The sentence is thus confirmed, but rephrased as follows:

 

A fine of R 1 500.00. The accused is also sentenced to imprisonment for a

period of 6 months and discharge with ignominy from the South African National Defence Force, of which both the period of imprisonment and coupled discharge with ignominy from the South African National Defence Force are wholly suspended for a period of 3 years on condition that the accused is not convicted of assault, committed within the period of suspension.

 

[39] The court orders made ito sec 130 of the Military Discipline Code (MDC) and sec 103(2)(a) of the Firearms Control Act, No 6 of 2000 (FCA) are both confirmed. The latter order is, however, also incorrectly phrased (see par 55 below), and is rephrased as follows:

 

After conducting an enquiry in terms of sec 103(2)(a) FCA, the Court determines that the accused need not be declared unfit to possess a firearm.

 

COMMENT: THE RE-APPOINTMENT OF THE RECORDING   OFFICER TO CONDUCT A Pl IN TERMS OF SEC 30(2) MOSMA

 

[40] This Court, upon consideration of the Record Proceedings, noted an aspect relating to the pre-trial phase of the proceedings that it mero motu deems apposite to make certain observations about in order to clarify whether a pre-trial irregularity occurred relating to the ordering of the Pl in this matter. Courts of first instance have an independent duty to satisfy themselves that no pre-trial irregularity occurred despite the absence of a formal objection to jurisdiction (see S v W01 Dippenaar, CMA Case No 3812004). Similarly, this Court on automatic review has a similar duty to satisfy itself that no pre-trial irregularities occurred that were not noted and resolved by the court a quo, hence the content of par 3(b) of this Court's order issued on 2 July 2015.

 

[41] The first arraignment in terms of sec 29 MDSMA was conducted by a Commanding Officer (Maj Dlamini) at 5 SAI Bn on 14 October 2010, at which time Maj Dlamini ordered that a Pl be conducted (as the charged offence was not cognisable by a Disciplinary Hearing) and appointed himself as the Recording Officer (RO) to conduct such Pl. The pre-trial certificates indicate that Maj Dlamini did not, however, conduct the Pl - it being conducted by Capt Bodutu on 2 September 2013. Capt Bodutu was appointed as RO at an arraignment conducted by a Military Judge (Cdr Venter) on 20 October 2010 (six days after Maj Dlamini appointed himself as RO). It is unclear from the Record of Proceedings why Capt Bodutu was appointed to conduct the Pl at the second arraignment (as a RO had already been appointed).

 

[42] The replacement of the initially appointed RO (Maj Dlamini) by a different RO (Capt Bodutu) is the issue that drew this Court's attention, as the replacement of a duly appointed RO is governed by the provisions of sec 30(2) MDSMA, which reads as follows:

 

'If a recording officer cannot for any reason complete a preliminary investigation, the presiding judge or commanding officer who appointed that recording officer. may appoint another recording officer to continue with the recording of the evidence' (emphasis added).

 

[43] A cursory reading of sec 30(2) MDSMA may well suggest that the replacement of the initially appointed RO constitutes prima facie non-compliance with the provisions of sec 30(2) MDSMA (as the new RO was not appointed by the same Commanding Officer or Military Judge who appointed the first RO). In order for this Court to satisfy itself that no pre-trial irregularity occurred in casu it is thus necessary to determine whether the replacement of the initially appointed RO on 20 October 2010 complied with the provisions of sec 30(2} MDSMA.

 

[44] In his argument before this Court Counsel for the accused indeed submitted that the replacement of the RO 'without any reasons' constituted a pre-trial irregularity due to non-compliance with sec 30(2} MDSMA. He did not, however, indicate in what manner this irregularity (if it were one) impacted on the fairness of the subsequent trial. Counsel for the State provided the factual context, indicating that Maj Dlamini (who appointed himself as the RO at the first arraignment) fell seriously ill and was admitted to hospital soon after this arraignment. As a result of Maj Dlamini's 'incapacity' the accused was again arraigned six days later before Cdr Venter who appointed Maj Bodutu as RO 'in the interest of the proper administration of justice' (as Maj Dlamini was unable to proceed with the Pl due to serious ill­ health). As both the Commanding Officer who had made the initial appointment and the initially appointed RO (the same person) were unavailable and incapacitated due to illness, Counsel for the State was of the view that no irregularity occurred. He also submitted that if the appointment of Maj Bodutu by Cdr Venter (who had not appointed the original RO) was regarded as an irregularity, the accused had suffered no substantive prejudice and such appointment neither resulted in a failure of justice or an unfair trial.

 

[45] This Court is of the view that the issue stands to be decided on a far narrower basis (which was not alluded to by either counsel). As indicated, the basis of the potential irregularity lies in the appointment of the second RO by a different person than the one who had appointed his predecessor. That would result in the replacement of Maj Dlamini, and reappointment of Maj Bodutu, as RO by Cdr Venter (who had not appointed Maj Dlamini) as prima facie contravening the provisions of sec 30(2) MDSMA. That would, however, only be the result if sec 30(2) MDSMA was applicable to any and all replacements of ROs. This Court is, however, of the view that sec 30(2} MDSMA is not a general provision intended to regulate all circumstances under which replacement of a RO may be required, but is a specific provision intended only to regulate replacement of a RO in a limited and clearly defined set of circumstances (which does not, in this Court's view, find application in casu). Simply put, sec 30(2) MDSMA did not apply as a matter of law to the replacement of the RO by Cdr Venter.

 

[46] An interpretation that sec 30(2) MDSMA was promulgated to regulate every instance requiring the replacement of any RO already appointed by a competent forum (irrespective of whether the Pl has in fact already commenced or not) is simply inconsistent with the plain language of the section and the ordinary meaning of the words used therein. As indicated above, the section provides as follows:

 

'If a recording officer cannot for any reason complete a preliminary investigation, the presiding judge or commanding officer who appointed that recording officer, may appoint another recording officer to continue with the recording of the evidence' (emphasis added).

 

[47] On its plain meaning, the section applies to any RO who 'cannot ... complete' a Pl and provides a mechanism for the replacement of the unavailable RO by another 'to continue with the recording of the evidence'. It is self-evident that a Pl that has not yet commenced cannot require completion. If the legislature had intended the section to apply as soon as a RO has been appointed it would have referred to any RO who cannot for any reason 'conduct a Pl. Similarly, if the legislature intended the section to apply as soon as a RO has been appointed it would have provided that a competent forum may appoint another RO 'to conduct the Pl' or 'record the evidence at such a Pl, and not to 'continue with the recording of evidence'. A plain reading of the section makes it clear that its provisions only apply to a RO that has commenced with a Pl, and who subsequently becomes unavailable to continue with the Pl for whatever reason during the course of those proceedings. It therefore does not apply to Pls which have not yet commenced at the time it becomes necessary to replace the initially appointed RO, and the subsequent replacement of that RO with another RO is valid as long as the replacement RO is appointed by any competent forum (i.e. any duly appointed Commanding Officer or Military Judge).

 

[48] Such a situation is indeed akin to a (Senior) Military Judge becoming unavailable or disqualified for whatever reason during the course of a trial after the accused has pleaded and evidence has been led. There are compelling public policy considerations underlying the requirement that a court, once duly constituted and having heard evidence, continues with such trial to completion and, if this is not possible, a statutory mechanism provides for a manner in which such eventuality may be addressed with due regard to the interests of justice. Such considerations would be equally applicable to a Pl which has commenced with recording the viva voce evidence of witnesses, such Pl being duly constituted and seized of its subject matter.

 

[49] This Court can, however, not conceive of any policy consideration that would adversely affect the interests of justice should an appointed RO become unavailable before any evidence is led and a duly appointed replacement RO commences with, and concludes such Pl in accordance with the procedural requirements of sec 30 MDSMA. To the contrary, there appears to be compelling policy considerations that indicate that the administration of military justice may be significantly and adversely hampered should sec 30(2) MDSMA be interpreted to require that a Pl may only be conducted by the RO first appointed and that such RO may only be replaced in accordance with the provisions of Sec 30(2) even if the Pl has not yet commenced.

 

[50] It may be accepted that a significant number (if not the majority) of Pls are ordered at unit level by Commanding Officers (the majority of which are officers holding the rank of at least Major and authorised in writing by their Officers Commanding to conduct arraignments and cons13quently also order Pls and appoint ROs). The availability of these Commanding Officers at their units are subject to the unique demands of military service, with long deployments, attendance of courses and the like being constant contingencies that may result in an Commanding Officer who has appointed a RO being unavailable to order his replacement should such RO become unavailable to conduct the Pl. The sudden and serious illness that befell Maj Dlamini and necessitated the appointment of a new RO in casu is an obvious example of such a situation.

 

[51] Interpreting sec 30(2) MDSMA (even if it were ambiguous and not as clear as this Court has found it to be) in a manner that would require an accused who, e.g., had been arraigned before a Commanding Officer in an external deployment area and repatriated to the RSA to have to be returned to the operational area - or have the Commanding Officer returned to the RSA to appoint a replacement RO if the one he had originally appointed subsequently became unavailable to commence with the Pl - would not only place a significant operational and financial burden on the SANDF but inevitably result in unnecessary delays in bringing the matter to trial. This would be contrary to both one of the legislative objects stated in sec 2(a) MDSMA 'to provide for the continued proper administration of military justice' and to the broader objective of the MDSMA stated in its heading 'to provide for a new system of military courts with a view to improved enforcement of military discipline'.

 

[52] In finding that sec 30(2) MDSMA does not apply to Pls that have not yet commenced, this Court is satisfied that in casu no pre-trial irregularity occurred irrespective of the reasons necessitating Cdr Venter to appoint Capt Bodutu as RO despite Maj Dlamini's earlier appointment as RO. As no pre-trial irregularity occurred, it thus becomes unnecessary to consider whether the replacement of the RO had any impact on the fairness of the subsequent trial. In making such finding this Court expresses no view on the effect of non-compliance with the provisions of sec 30(2) MDSMA in those instances where it ought to be complied with; i.e. unavailability of ROs after the recording of evidence has already commenced. This Court will, however, indicate that in such cases it would be incumbent on the presiding (senior) military judge to properly establish the circumstances that led to the non-compliance in order to gauge and determine (on a case by case basis) whether an unfair trial would result applying the principles set out in this Court's judgment in S v Smith and another(CMA Case No 35/2013).

 

COMMENT: THE ENQUIRY CONDUCTED, AND ORDER MADE, IN TERMS OF SEC 103 FCA

 

The inaccuracies encountered with FCA orders in military courts

 

[53] The order made by the court is indicated on the 0027 as 's 103 FCA -

accused is fit to possess a firearm' and on record transcribed as 'in terms of section

103 of the Firearms Control Act I declare that you are fit to possess a firearm' (14/041:20-23). This Court agrees that a consideration of the facts of the matter did not require that the accused become unfit to possess a firearm. The order is, however, incorrectly worded.

 

[54] Prior to discussing the inaccuracies most often encountered with such court orders in matters referred to this Court for review, it is noted that the Firearms Control Act, No 60 of 2000 is referred to by the acronym 'FACA' in most matters serving before this Court.  This acronym is not encountered in any reported judgments of the Courts, the designation 'FCA' being used whenever this Act is not described by its full name and number (see S v Maake 2007 (1) SACR 403 (TJ and S v Zumani and Others 2015 (1) SACR 84 (GJ)). Military courts of first instance are thus discouraged from further embedding this peculiar acronym in the judgments of military courts and to refer to this Act by either its full description or the acronym 'FCA'.

 

[55] Despite the common misconception that orders in terms of the Firearms Control Act, No 60 of 2000 (FCA) only become relevant when a firearm was used in the commission of an offence, there are a number of other offences that trigger the application of sec 103 FCA (see S v Modise 1992 (1) SACR 358 (0) at 359). This Court thus on a regular basis considers matters wherein FCA orders were made (or not made when required). The making of a FCA order involves the exercise of a reviewable discretion which must be exercised judicially to avoid the proceedings being adjudged to not have been in accordance with real and substantial justice (see S v Hans 1998 (2) SACR 406 (E) at 413 and S v Lukwe 2005 (2) SACR 578 (W) at 580). The widely disparate manner in which these orders are phrased (often incorrectly reflecting or obfuscating the applicable legal provisions) necessitates this Court in casu to address the issue of the making (and formulation) of FCA orders in a somewhat more comprehensive manner than it ordinarily would in order to provide clarity to military courts of first instance to address this widespread misapplication of the provisions of Chapter 12 of FCA.

 

The two distinct procedures required by sec 103(1) and (2) FCA respectively

 

[56] The primary shortcoming of the FCA order in casu is its reference to 's 103 FCA'. Sec 103 FCA contains within its ambit two fundamentally different provisions with distinct legal consequences and procedures to be followed by courts in applying this sub-section. Sec 103(1) regulates what may be described as ex lege or automatic unfitness to possess a firearm (with a discretionary component) whereas sec 103(2) embodies an entirely discretionary procedure (see S v Smith 2006 (1) SACR 307 (W) at pars 3 to 4 and Maake at par 18). Any order that thus refers to sec 103 FCA generically is both conceptually and legally flawed.

 

[57] The ex lege unfitness contemplated by sec 103(1) is triggered by a conviction for any of the offences listed in that section, whereas sec 103(2) deals with cases where the conviction does not fall into any the categories listed in sec 103(1), but falls into the categories listed in Schedule 2 of FCA (see Smith at pars 3 to 4). The offences that most often trigger the operation of sec 103(1) in military courts fall within the category defined as 'any offence involving violence, sexual abuse or dishonesty, for which the accused is sentenced to a period of imprisonment without the option of a fine' (sec 103(1)(g)) and 'any conspiracy, incitement or attempt to commit any such offence (sec 103(1)(0)). The offences listed in Schedule 2 (and thus triggering the application of sec 103(2) FCA) most often encountered in military courts are malicious damage to property (par 2), entering any premises with the intent to commit an offence under the common law or a statutory provision (par 4) and 'any crime or offence involving violence, sexual abuse or dishonesty, in respect of which an accused was not sentenced to a period of imprisonment without the option of a fine' (par 4(c)) or 'any conspiracy, incitement or attempt to commit any offence referred to' in Schedule 2 (par 8).

 

[58] Regarding the categories of offences that most often trigger the application of sec 103 FCA the factor that determines whether the court will apply the provisions of sec 103(1) or (2) is whether the accused was sentenced to a period of imprisonment with or without the option of a fine (the former triggering sec 103(2) and the latter sec 103(1) FCA). In the context of the sentencing regime created for military courts by sec 12 MDSMA (which does not provide for imprisonment with the option of a fine) this distinction must be regarded to be whether the accused was sentenced to direct or suspended imprisonment (the former triggering sec 103(1) and the latter sec 103(2) FCA) -see S v Makolane 2006 (1) SACR 589 (T) at 591 where Legodi J held as follows:

 

Section 103(1)(g) of the Firearms Control Act, in my view, clearly is intended to refer to an offence in respect of which a sentence is imposed without an option of a fine; in other words, direct imprisonment without an option of a fine. Whilst an offence of theft involves an element of dishonesty, in the instant case the offence did not fall under s 103(1)(g) by virtue of the absence of direct imprisonment.

 

[59] Although it is clear that the conducting of a sec 103(2) FCA enquiry is compulsory whenever an accused is convicted of any offence listed in Schedule 2 (see Smith at pars 8 and 10 and Maake at pars 18 and 21) it is often overlooked (due to the fact that sec 103(1) results in an automatic declaration of unfitness) that the court has a similar peremptory duty in applying the provisions of sec 103(1). Sec 103(1) provides that such automatic unfitness results 'unless the court determines otherwise'. This results in the court having to expressly engage the parties and apply its mind to whether it should 'determine otherwise' (i.e. prevent the ex lege unfitness from arising by ordering that it should not occur) in every case where sec 103(1) is applicable (see Maake at par 19 where the Court held '[w]hen a matter falls within the ambit of s 103(1), and the accused person is unrepresented, the court should draw the accused's attention to the provision of s 103(1) and invite him or her, if he or she so chooses, to place facts before the court to enable it to determine that he or she is indeed fit to possess a firearm ... [as] the automatic deprivation of the right to possess a firearm may have serious consequences for an accused if the provisions of s 103(1) are simply ignored and not brought to his or her attention'.

 

[60) The importance of correctly applying the provisions of sec 103 FCA when applicable cannot be overstated. In addition to it constituting a peremptory trial procedure which (if not complied with) will result in remittal of the matter back to the trial court to avoid a failure of justice, it serves an important societal function which was described in Maake at par 13 as follows:

 

The avowed purpose of the FCA is to establish a comprehensive and effective system of firearms control and in this regard ss (2)(a) and (b) categorically state that it is to enhance the constitutional right to life and bodily integrity and thereby to prevent the proliferation of illegally possessed firearms and, by providing for the removal of such firearms from society as well as by improving control over legally possessed firearms, to prevent crime involving the use of firearms.

 

[61] Military courts below may thus expect that this Court will in the exercise of its review function ensure the correct application of sec 103 FCA when applicable, hence the comments regarding the proper application of this section that follow below.

 

The making (and phrasing) of an order i.t.o. sec 103(1) FCA

 

[62] As indicated in par 58 above, courts often do not actively engage the parties in situations governed by sec 103(1) FCA due to the accused's unfitness following automatically on conviction of an offence falling within the section's ambit (leading to an assumption that the court does not have any active duty in sec 103(1) FCA situations). Such approach, of course, disregards the provision in sec 103(1) FCA that such automatic unfitness only arises 'unless the court determines otherwise'.

 

[63]   The dictum in Maake referred to above (that the court '[w]hen a matter falls within the ambit of s 103(1), and the accused person is unrepresented…should draw the accused's attention to the provision of s 103(1) and invite him or her, if he or she so chooses, to place facts before the court to enable it to determine that he or she is indeed fit to possess a firearm') may be (incorrectly) interpreted to apply only when the accused is in fact unrepresented. It is, however, (from a consideration of the relevant jurisprudence) trite that a court has such a duty in all cases irrespective of whether the accused is represented or not. The Court in S v Mkhonza 2010 (1) SACR 602 (KZP) urged against exactly this misconception when it remarked (at par 14) as follows:

 

The manner in which s 103(1) operates is that the disqualification of the accused is automatic, unless the court orders otherwise. The source of the disqualification may therefore be seen as the statute, rather than an affirmative decision of the court. The implication seems to be that, if the question is not raised before the court, then the convicted person ipso facto is unfit to possess a firearm because s 103(1) says much.

 

[64] In analysing the duty on a court in situations governed by sec 103(1) FCA, Wallis J in Mkhonza held (at par 19) that case law decided under the Arms and Ammunition Act, No 75 of 1969 (AAA) is relevant as there is no 'material difference in meaning between [sec 12(1) of the 1969 Act] and the present wording of s 103(1)... under both sections, unless the court determines otherwise, the accused person becomes unfit to possess a firearm'. He analysed the approach adopted by the Courts in Lukwe, Maake, Smith, S v Phuroe en Agt Ander Soortgelyke Sake 1991 (2) SACR 384 (NC), S v Van Dyk 1991 (2) SACR 48 (W) and S v Wakefield 1996 (1)SACR 546 (CJ in coming to the conclusion that a court in respect of sec 103(1) FCA has an active duty to determine whether the accused should be unfit that is similar to that required by sec 103(2) FCA in all material respects.

 

[65] In Phuroe the Court (in considering the equivalent provision in sec 12(1) AAA) concluded (at 386) that far more than simply informing the accused of his/her right to address the court regarding his fitness to possess a firearm is required despite the ex lege unfitness result. The Court held that, as the automatic unfitness only arises if the court does not determine otherwise, it requires the court in every case (even if the accused makes no submissions regarding his/her fitness) to consciously determine whether it should order otherwise ('[d]ie onbevoegdheidsverklaring wat die onderwerp van art 12(1) is, volg net "tensy die hot anders gelas': en dit beteken na ons mening dat die hot in elke saak moet oorweeg of hy anders gaan bepaaf).

 

[66] Lukwe is significant as it sets out the rationale for this active duty on a court in a sec 103(1) FCA situation at 580 to 581 as follows:

 

It is clear from the wide reach of s 103(1) that the legislation intended that unfitness to possess a firearm should automatically follow on a conviction of most serious offences. However, s 103(1) also encompasses offences which may not be very serious. A petty theft which is sentenced by imprisonment without the option of a fine springs to mind; so, too, a minor contravention of the laws relating to the driving of a vehicle whilst under the influence of alcohol (s 103(1)(j)).

 

The legislation has recognised that such cases may exist and has thus left it open to a court to determine that a particular accused is fit to possess a firearm, despite the fact that he has been convicted of an offence falling within the provisions of s 103(1). The automatic forfeiture of the right to possess a firearm may have serious repercussions for an accused and, as a layman, he cannot be expected to know of the existence of the provisions of s 103(1). For this reason, these provisions should be brought to his attention (emphasis added).

 

In this regard see also Van Dyk at 51.

 

[67]  The Court in Lukwe then described the duty on a court in terms of sec 103(1) FCA  at 581 as requiring it 'if it contemplates overriding the automatic forfeiture of the right to possess a firearm ... to adjudicate upon the accused's fitness to possess such arm' (emphasis added).

 

[68] The importance of a court actively 'adjudicating' whether automatic unfitness should follow upon conviction of an offence listed in sec 103(1) FCA stems from appreciation of the true nature of the provision. In Van Dyk the court observed (at 49) that the sub-section 'does not deem a convicted person "to be" unfit ... [i]t deems him "to be declared" unfit (emphasis added). This subtle (yet crucial) distinction points to the fundamental nature of the legal consequences flowing from conviction on a sec 103(1) FCA offence -there is no automatic unfitness until such time as (and only if) the court decides that the accused should not be declared unfit (by 'determining otherwise'). This is what the Court meant when it declared (at 547) in Wakefield that 'strictly speaking, one cannot say that the magistrate declared the appellant unfit to possess a firearm ... [w]hat she did was refrain from making a contrary determination under s 12(1) of the Act, as a result of which the appellant was deemed to be declared unfit to possess a firearm' (emphasis added) - see also Van Dyk at 49 where the Court held '[t]he mere conviction causes [a declaration of unfitness] unless the court which convicts the accused "determines otherwise" [but] fitness to possess is on that basis not the issue but ... an important sub-issue in considering whether or not to "determine otherwise"'.

 

[69] The implication of this analysis was succinctly summarised by Wallis J at par 24 in Mkhonza when he held as follows:

 

Once [the meaning of 'determining otherwise1 is recognised it will also be recognised that the decision not to determine otherwise is as much a decision by the court as is the decision under s 103(2), determining that an accused person is unfit to possess a firearm. Whether there is a determination under s 103(2) or a decision not to determine otherwise under s 103(1), the consequences are the same.

 

See also par 25 of the judgment for additional considerations supporting this finding and further par 23 where Wallis J summarised the duty on a court in sec 103(1) FCA situations as follows:

 

Accordingly, whilst the formal enquiry mandated by s 103(2) is not a requirement in relation to a statutory disqualification under s 103(1), where the trial court convicts the accused of an offence falling under s 103(1) it is nonetheless seized with the question whether it ought to determine otherwise, that is, whether it ought to depart from the statutory disqualification and permit the accused to possess a firearm. That determination should not take place

in a vacuum or proceed on the assumption that it is only if the accused raises something that the court must take positive steps to consider the question.

The consideration of this issue and the court's reasons for its conclusions should be as much a part of the record of proceedings as the decision on questions of guilt or sentence. Whilst some cases will be obvious, the more remote the offence from any use or misuse of firearms, the more comprehensive should be the trial court's consideration of the question whether it should determine otherwise.

 

[70] Regarding the factors to be taken into account in arriving at a decision to 'determine otherwise' or not, see Phuroe at 387 for a list of considerations that would be equally relevant in the context of a sec 103(2) FCA enquiry.

 

[71] Regarding the appropriate phrasing or formulation of an order in terms of sec 103(1) FCA, it was held in In S v Flatela 1991 (2) SACR 395 (NC) at 396 that, as a declaration of unfitness, by virtue of sec 12(1) AAA (and consequently also sec 103(1) FCA), follows automatically on conviction of a prescribed offence 'unless the court determines otherwise', it is unnecessary to enter on the record that a declaration of unfitness followed on the conviction (as it follows automatically in the absence of a contrary determination). According to Kriek JP, where the court does not order othwerwise, it should simply record that no order is made in terms of the relevant section: 'Geen bevel word gemaak ingevolge art 12(1)(a) van Wet 75 van 1969 nie' ('No order is made in terms of sec 12(1)(a) of Act 75 of 1969').

 

 

[72] Flatela's formulation in cases where no contrary determination is made was followed in S v Jam; S v Erasmus 1992 (2) SACR 452 (E) at 454. In Jam the Court further held (at 454) that where a court does in fact determine otherwise (and thus precludes the automatic declaration of unfitness from following on the conviction) the order should be formulated as follows:

 

Indien 'n hof sou besluit om by die statutere gevolg in te gryp behoort 'n bevel in die volgende terme gemaak te word:

'Die Hof bepaal dat die beskuldigde nie ingevolge art 12(1)(a) van Wet 75 van 1969 geag onbevoeg verklaar te wees om 'n wapen te besit nie.'

 

('The Court determines that the accused is not in terms of sec 12(1)(a) of Act

75 of 1969 deemed to be declared unfit to possess a firearm').

 

See also Van Dyk at 51 where the Court varied the court a quo's order to read as follows:

 

The proceedings are confirmed subject thereto that the words 'accused is deemed unfit to possess an arm' are replaced by the words:

'The court determines that the accused is not deemed to be declared unfit to possess a firearm.'

 

The making (and phrasing) of an order i.t.o. sec 103(2) FCA

 

[73] The widely disparate, and often conceptually flawed, formulations of orders in terms of sec 103(2) FCA results from a failure to properly consider the provisions of the sub-section, which reads as follows (emphasis added):

 

(a)   A court which convicts a person of a crime or offence referred to in Schedule 2 and which is not a crime or offence contemplated in subsection (1), must enquire and determine whether that person is unfit to possess a firearm.

 

(b) If a court, acting in terms of paragraph (a), determines that a person is unfit to possess a firearm, it must make a declaration to that effect.

 

[74] A plain reading of the sub-section indicates that the enquiry is peremptory. The court is under an obligation to conduct same if the accused was convicted of any offence listed in Schedule 2 FCA. What the court is required to 'determine' is equally clear (but often misunderstood). The aim of the enquiry is to determine whether the accused 'is unfit to possess a firearm' and, if so, 'make a declaration to that effect. A court is not required to declare that the accused is fit to possess a firearm (a misconception regrettably visible in the majority of such cases serving before this Court on review). An order declaring a person fit to possess a firearm is (in addition to being ultra vires the provisions of sec 103(2) FCA) legally flawed. Unlike the situation under sec 103(1) FCA (where an automatic declaration of unfitness results from the conviction that can only be prevented from coming into effect if the court determines otherwise) an accused convicted of a Schedule 2 FCA offence is not deemed to be declared unfit. He is, like all citizens, presumed to be fit to possess a firearm (if the holder of a permit) or to apply for such permit in future (see the reference to an accused's 'right to possess a firearm' referred to in par 7 of Smith - quoted in par 74 below). An order declaring him fit subsequent to a sec 103(2) FCA enquiry is both superfluous and of no legal effect. The only legally relevant order a court can make under this sub-section is one declaring the accused unfit to possess a firearm.

 

[75] Regarding the duty on a court in conducting such enquiry, the meaning of the phrase 'enquiry in sec 103(2) FCA was analysed in Smith. The Court relied on the dictionary meaning of the word as 'the act of seeking information', and described (at par 7) the duty resting on the judicial officer in conducting such enquiry as follows:

 

What is required of a judicial officer ... is for him to ask relevant questions to establish whether the conduct of the accused and/or the circumstances surrounding the commission of the offence merits taking away the accused's right to possess a firearm. This is esoeciallv so where the offence committed bears little or no relation to the use or abuse of firearms (emphasis added).

 

[76] In matters governed by sec 103(2) FCA a court is thus required to elicit sufficient information from the parties to enable it to properly exercise its discretion to determine whether the circumstances require that it should determine the accused unfit to possess a firearm and make a declaration to that effect accordingly. Unlike the procedure under sec 103(1) FCA (where it was held that the accused bears an onus on a balance of probabilities to satisfy the court that it should determine otherwise) whether there is an onus (and ts incidence, if any) in sec 103(2) FCA enquiries does not appear to date to have received the attention of any court. As it is not necessary in the matter before us, this Court expresses no view in this regard.

 

[77] Regarding the formulation of an order in terms of sec 103(2) FCA, a consideration of the relevant jurisprudence indicates that such order should be phrased as follows:

 

Having conducted an enquiry in terms of sec 103(2) FCA, the court does not declare the accused unfit to possess a firearm; or

 

Having conducted an enquiry in terms of sec 103(2) FCA, the court declares the accused unfit to possess a firearm.

 

At what stage of the proceedings should a FCA enquiry be conducted?

 

[78] This Court has observed that FCA orders in military courts are usually conducted as part of the sentencing phase of the trial (with military judges inviting the parties to make whatever submissions they may have regarding the potential FCA order as part of their respective addresses on sentence). This is procedurally (and substantively) incorrect.

 

[79] There are indications in the precedents decided under sec 12(1) AAA that the Courts at regarded the sentencing stage of a trial to be the appropriate juncture at which such enquiry was to be conducted (see Jam (at 454) which held that the enquiry should at least precede the imposition of sentence so that factors submitted as relevant to sentence may also be taken into account, the similar dictum in Van Dyk at 49 that the enquiry should not be conducted before mitigating and aggravating circumstances have been canvassed and Phuroe at 387 which required the enquiry to be conducted only after the accused's previous convictions had been proven).

 

[80] Wallis J, however, seemed to express his reservations when he remarked in Mkhonza (at par 14) that in the court a quo the issue of the appellant's fitness to possess a firearm 'was raised generally as part of the submissions on the question of sentence' and that in the magistrates reasons for sentence (furnished in response to a request by the Court as none appeared from the record) 'the magistrate dealt with the question of the fine and the declaration that the appellant is unfit to possess a firearm, as if they were all part of the same enquiry'. He commented that '[w]hether that is right or wrong, the situation is plain that the magistrate was seized of the question whether she should determine otherwise in terms of s 103(1) of the Act, and decided that she should not. In finding that the accused in proceedings governed by sec 103(1) FCA had the onus to satisfy the court that it should 'determine otherwise', he observed (at par 35) [(a]s this part of the enquiry by the court is separate from the criminal trial and the decision on sentence. I think that the accused can discharge that onus on a balance of probabilities (emphasis added).

 

[81] The precedents decided under the AAA must, however, on this specific issue be considered in its appropriate historical context. Sec 12(1) AAA (before its repeal by FCA) read as follows:

 

12 Unfitness. upon conviction. to possess arm. (1) A person who is convicted by a court of a contravention of a provision of this Act relating to the unlawful possession of an arm without the required licence, permit or other authorization, or of section 39 (1) (i), (j), (k), (Q or (m), or of any other offence in the commission of which an arm was used (excluding any such conviction following upon the payment of an admission of guilt fine in terms of section 57 of the Criminal Procedure Act, 1977 (Act 51 of 1977)), is deemed to be declared unfit to possess an arm, unless the court determines otherwise.

 

[82] There are two salient differences between sec 12 AAA and sec 103 FCA that are relevant to the juncture at which a sec 103 FCA enquiry or determination should be conducted. Firstly, sec 12 AAA had no procedure equivalent to a sec 103(2) FCA enquiry (comprising only a single procedure equivalent in all material respects to sec 103(1) FCA). Secondly, and most importantly, the duty on a court to 'determine otherwise' arose only in respect of convictions for specified contraventions of the AAA and any other offence in the commission of which a firearm was used.

 

[83] As indicated, FCA enquiries most often arise in military courts due to the provisions of secs 103(1)(9) and par 4(c) of Schedule 2 FCA relating to conviction for 'any offence involving violence, sexual abuse or dishonesty, the only criterion directing the court to follow the procedures prescribed by sec 103(1) or (2) FCA being whether the accused was sentenced to direct imprisonment or not. A court will thus not know whether it should follow the procedure in sec 103(1) or (2) FCA until it has concluded imposing its sentence. If the sentence was not one of direct imprisonment the court will then conduct a sec 103(2) FCA enquiry. If the accused was sentenced to direct imprisonment it will commence with evaluating whether it should 'determine otherwise' in terms of sec 103(1) FCA. It is only when considering the implications of this procedural reality that the reservations Wallis J appeared to express in Mkhonza about 'the magistrate deal[ing] with the question of the {sentence] and the declaration that the appellant is unfit to possess a firearm, as if they were all part of the same enquiry' may be understood.

 

[84] This Court is thus of the view that FCA proceedings should only commence after the announcement of sentence as (in the majority of cases) a court will be unable to determine whether it should conduct such proceedings in accordance with the provisions of sec 103(1) or (2) FCA. The premature FCA proceedings so often observed in all likelihood emanate from a failure to fully appreciate the distinction between proceedings under sec 103(1) and (2) FCA respectively and thus manifests in the disparately (and often flawed) orders made at the conclusion of such proceedings.

 

The duty of diligence in applying sec 103 FCA in military courts

 

[85] The principles discussed in this judgment should be diligently applied by (Senior) Military Judges with due regard to the fundamental distinction between the provisions of sec 103(1) and (2) FCA not only because judicial officers are supposed to apply the law correctly, but because of the serious implications of FCA orders that are conceptually unsound. As indicated, these orders are subject to review or appeal and when an irregularity is committed this Court will remit the matter back to the court a quo to reconsider the FCA component of the trial (with self-evident implications for the efficient administration of military justice) - see this Court's judgment in S v S/Sgt Wasa, CMA Case No 3012012.

 

[86] The number of cases that serve before this Court on review wherein incorrectly formulated FCA orders were made is cause for concern. A failure to appreciate the distinction between sec 103(1) and (2) FCA is prevalent but the failure to consider whether the court should 'determine otherwise' (and reflect the court's consideration explicitly in its order) in the relatively few cases where sec 103(1) finds application is almost uniform. Failure to appropriately consider these issues (or the more disconcerting issue of failing to understand the relevant legal principles) when considering FCA orders can all too easily manifest in incorrectly phrased FCA orders. This phenomenon is not peculiar to military courts. Even a cursory examination of the following dictum (at pars 44 and 46) from S v Kleinhans 2014 (2) SACR 575 (WCC) indicates the conceptual confusion apparent in the learned judges' discussion of the FCA order made by the court a quo in respect of an accused who was convicted of contravening the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32 of 2007 and sentenced to 15 years' direct imprisonment:

 

Finally, there is the magistrate's order declaring the appellant incompetent to possess a firearm. The offences of which the appellant was convicted rendered it necessary for the magistrate to enquire. in terms of s 103(1J of the Firearms Control Act 60 of 2000, whether the appellant was unfit to possess a firearm. The appellant's attorney ... submitted that, since no firearm had been used in the offences under consideration and that there had been no overt violence in the offences, the state had not laid a basis for the court to exercise its discretion against the appellant and declare him unfit to possess a weapon. The magistrate made such an order, however, without furnishing any reasons. Although the sexual assaults of which the appellant was convicted by definition contained an element of violence, this was minimal and no firearm was used.

 

When regard is had to these factors I can see no justification for the magistrate’s declaration of the appellant as unfit to possess a firearm and this part of the order must be set aside (emphasis added).

 

[87] This lack of clarity in application and formulation has, regrettably, also been apparent in some of the judgments of this Court. Examples (which do not purport to be a numerus clausus) are to be found in the following cases:

 

• S v Rfn Maarman, CMA Case No 63/2014 and S v Rfn Bruintjies and L/Cpl Piedt, CMA Case No 30/2014 (orders in terms of 'sec 103 FCA' confirmed without indicating relevant sub-section);

• S v Pte September, CMA Case No 4/2013 and S v AB Afrikaner, CMA Case No 5/2013 (no FCA order made by court a quo and neither made by this Court nor remitted to court a quo for FCA proceedings despite offences requiring same);

• S v Rfn Sylvester, CMA Case No 2412013 (accused correctly 'declared unfit in terms of sec 103(2) FCA by court a quo, but order 'in terms of sec 103 FCA' confirmed by this Court without reference to relevant sub-section);

• S v Pte Motlhabane, CMA Case No 5212014 (wherein this Court held that '[t]he declaration in terms of sec 103(1) FCA that the accused is not unfit to possess a firearm stands', whereas the accused was convicted of Common Law Assault and not sentenced to direct imprisonment);

• S v Rfn Nqamra, CMA Case No 50/2013 (where the accused was convicted of c/sec 120(8)(b)(ii) FCA and thus by virtue of sec 103(1)(d) FCA ex lege deemed to be unfit unless the court determined otherwise, and this Court held [I]n respect of the court order, this court is satisfied that the court order in terms of section 103(1)(d) of Act 60 of 2000, which declared the accused unfit to possess a firearm, is correct, accordingly it stands' whilst such order does not involve any determination of unfitness);

• S v Cpl Mono, CMA Case No 7212014 (wherein this Court held that 'the determination in terms of sec 103(1) FCA that the accused became automatically unfit to possess a firearm, in view of convictions on crimes involving violence, stands'; the accused was indeed sentenced to direct imprisonment and sec 103(1) applied, but the 'determination' referred to in the subsection only refers to a determination that the accused not become unfit, whilst unfitness follows ex lege upon conviction and cannot be 'determined by the court); and

• S v S/Sgt Ngqoyiya, CMA Case No 14/2015 (wherein this court corrected the court a quo's order in terms of sec 103(3) FCA that the accused was 'declared fit to possess a firearm' to read 'the accused is in terms of sec 103(3) FCA not declared unfit to possess a firearm' despite sec 103(3) only regulating the notification to the Registrar of Firearms of orders made in terms of secs 103(1) and (2) FCA and not the making of any order).

 

The comments regarding these precedents are made only to avoid such judgments in future being interpreted as contradicting the principles relative to FCA orders set out in casu (and such precedents must in future be read subject to the relevant dicta contained herein).

 

[88] The importance of, and considerations unique to, FCA orders in the military context were emphasised in this Court's judgment in Wasa where it held as follows:

 

The accused was convicted of assault with intent to commit grievous bodily harm, being an offence involving violence. This type of conviction coupled to a sentence of imprisonment without an option of a fine, requires that the accused is automatically considered to be unfit to carry a firearm. (See Section 103 (1)(g) FCA).

 

In casu, the accused was not sentenced to (effective) imprisonment without the option of a fine. Thus he did not automatically become unfit to possess a firearm in terms of Section 103 (1) (g) of the Act.

 

However, the trial court should have conducted an investigation in terms of Sec 103(2)(a) of the Firearms Control Act of 2000, Act No 60 of 2000 as amended as the accused was convicted of an offence mentioned in Schedule 2 of that Act.

 

It followed that the trial court did not make apply its mind at all in this respect.

 

The matter is referred back to the trial court to hear additional evidence and argument by both partied to establish whether or not the accused is unfit or not to possess a firearm.

 

Fitness to bear fire arms should be regarded as a crucial factor in weighing sentencing options as far as the continued employment of members in the SANDF is concerned. Military courts, being courts of first instance, are duty bound to investigate the fitness or not to possess a firearm of all SANDF members where they have convicted military members of crimes involving violence, dishonesty or sexual abuse in line with the Fire Arms Control Act.

 

Whenever they fail to do so, a matter should be referred back to the trial court to properly reconsider the imposition of sentence and to comply with the requirements of the FCA with regard to making the proper declarations.

 

Commanding Officers of units in the SANDF who become aware that military members were tried in civilian courts and were declared unfit to carry firearms by such courts, should apply to CSANDF for the administrative discharge of the affected military member from the SANDF. The SANDF should not be unnecessary burdened with military members who are not even fit to carry firearms. All military members have a Constitutional duty to defend the Republic of South Africa as a disciplined force. Unfitness to carry a firearm impacts negatively on such a duty.

 

[89] (Senior) Military Judges, Prosecution- and Defence Counsels are thus urged to familiarise themselves with both this Court's judgment in Wasa and the precedents cited in this judgment in casu in order to ensure that the application of sec 103 FCA is consistently dealt with in military courts of first instance.

Date : 17 March 2016

---