THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1271/2021

In the matter between:
LIEUTENANT COLONEL K B O’BRIEN N O
APPELLANT

and

THE MINISTER OF DEFENCE AND
MILITARY VETERANS
FIRST RESPONDENT
CHIEF OF SOUTH AFRICAN NATIONAL
DEFENCE FORCE
SECOND RESPONDENT
SECRETARY FOR DEFENCE
THIRD RESPONDENT
THE SOUTH AFRICAN NATIONAL
DEFENCE FORCE
FOURTH RESPONDENT
STAFF SERGEANT DT MOKOENA
FIFTH RESPONDENT
LIEUTENANT PZ MABULA
SIXTH RESPONDENT

Neutral citation:
Lieutenant Colonel KB O’Brien NO v The Minister of Defence
and Military Veterans and Others (Case no 1271/2021) [2022]
ZASCA 178 (13 December 2022)
Coram:
PONNAN, NICHOLLS, GORVEN and MABINDLA-BOQWANA JJA
and CHETTY AJA
Heard:
22 November 2022

Delivered:
13 December 2022
Summary:
Review – review of judgments and orders of Military Judge - delay and
condonation – whether applicants in review application who were not parties to the
criminal proceedings had standing – whether gross irregularity in the proceedings –
cross application – constitutional challenge to ss 101 and 102 of the Defence Act 42
of 2002 and ss 15 and 17 of the Military Discipline Supplementary Measures Act 16
of 1999 – abstract or hypothetical.

__________________________________________________________________

ORDER
__________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Van der Schyff J,
sitting as court of first instance):
Save for setting aside paragraphs 6 and 10 of the order of the high court, the appeal
is dismissed.

__________________________________________________________________

JUDGMENT
__________________________________________________________________

Ponnan JA and Chetty AJA (Nicholls, Gorven and Mabindla-Boqwana JJA
concurring)

[1] The Military Discipline Supplementary Measures Act 16 of 1999 (the MDSMA),
which came into force on 28 May 1999, established a new military court system that
replaced the military court and court martial under the repealed and amended
provisions of the Defence Act1 and the Military Discipline Code.2 The objects of the
MDSMA are to:
‘(a) provide for the continued proper administration of military justice and the maintenance of
discipline;
(b) create military courts in order to maintain military discipline; and
(c) ensure a fair military trial and an accused’s access to the High Court of South Africa’.3

1 Defence Act 44 of 1957. See Freedom of Expression Institute v President, Ordinary Court Martial
1999 (2) SA 471 (C) and President, Ordinary Court Martial v Freedom of Expression Institute 1999 (4)
SA 682 (CC).
2 First Schedule to the Defence Act 44 of 1957.
3 Section 2 of the MDSMA.

The MDSMA established a four-tier system of military courts, consisting of the Court
of Military Appeals, the Court of a Senior Military Judge, the Court of a Military Judge,
and the commanding officer’s disciplinary hearing.4

[2] For present purposes, the following provisions of the MDSMA are relevant:
’13
Assignment of functions
(1)
Only an appropriately qualified officer holding a degree in law and of a rank not below
that of colonel or its equivalent, with not less than five years appropriate experience as a
practising advocate or attorney of the High Court of South Africa, or five years experience in
the administration of criminal justice or military justice, may be assigned to the function of –
(a)
Director: Military Judges;
(b)
Director: Military Prosecutions;
(c)
Director: Military Defence Counsel; or
(d)
Director: Military Judicial Reviews.
(2)
Only an appropriately qualified officer holding a degree in law may be assigned to the
function of –
(a)
senior military judge or military judge;
(b)
review counsel;
(c)
senior defence counsel or defence counsel; or
(d)
senior prosecution counsel.
(3)
Only an appropriately qualified officer or other member who holds a degree in law or
who has otherwise been trained in law may be assigned to the function of prosecution counsel.

Minister’s powers in respect of assignment
(1)
The Minister shall assign officers to the functions –
(a)
At the level of Director referred to in section 13 (1); and
(b)
Of senior military judge or military judge referred to in section 13 (2) (a)
On the recommendation of the Adjutant General: Provided that the Director: Military Judges
shall be deemed to have been assigned the function of senior military judge.
(2)
The Adjutant General shall not recommend any officer for assignment to any function
referred to in subsection (1) unless, upon due and diligent enquiry, the Adjutant General is

4 Section 6 of the MDSMA.

convinced that the officer is a fit and proper person of sound character who meets the
requirements prescribed in this Act for such assignment.
(3)
Subject to section 16 and the control of the Minister, the Adjutant General may assign
any officer or member to any function –
(a)
Referred to in section 13 (2) (b), (c) and (d) or (3); or
(b)
Attached to any approved military legal services post other than those referred to in
this Act.
(4)
Officers and members assigned to functions in terms of this section shall perform those
functions in a manner which is consistent with properly given policy directives, but which is
otherwise free from executive or command interference.

Period of Assignment
An assignment in terms of this Chapter shall be for a fixed period or coupled to a specific
deployment, operation or exercise.
. . .
Removal from assignment
The Minister, acting upon the recommendation of the Adjutant General, may remove a person
from the function assigned to him or her for the reason of that assignee’s incapacity,
incompetence or misconduct, or at his or her own written request.’

[3] The appellant, Lieutenant Colonel O'Brien, is a former military judge. In 2014,
he took to making remarks in matters that came before him about the brief, renewable
assignments of military judges (which was usually for a year at a time) and the
implications that held for the institutional independence of military courts. He also
supplied the parties with a document headed ‘MILITARY JUDGES’ CONCERNS
REGARDING THE CONSTITUTIONALITY OF THE ASSIGNMENT AS A MILITARY
JUDGE’, which, inter alia, read:
‘8.
Court is of the view that Sec 14(1)(b) MDSMA might be unconstitutional based on the
following:
a.
Fixed term from 19 May 2014 – 31 March 2015, does not meet the requirement that
the military judge shall have security of tenure of office.

b.
There may have been Executive interference in the functioning of the Military Courts
and/or the assignment of the Military Judges for 2014/15:
i.
During February/March 2014 all Military Judges were required to provide their court
hours for the previous three years to the Adjutant General who in turn provided this information
to C SANDF, who in turn provided this information to the Minister. The amount of court hours
of each Military Judge could have played a pivotal role in the assignment of the Military Judges
for 2014/15.
ii.
This was confirmed by the Minister’s assignment in mid-April 2014 of Military Judges
with satisfactory court hours. Unfortunately, I was only assigned on 19 May 2014, after I had
had to provide an explanation for my unsatisfactory amount of court hours for 2013/14 ie. 103
court hours. My explanation being I had only sat as a Military Judge for two weeks in June
2013 and from 15 January – 28 February 2014 due to the fact that I had attended the SAMHS
Junior Command and Staff Course from July – December 2013.
9.
This court has addressed its concerns in respect of the assignment of Military Judges
to both the Director Military Judges and to the Officer in Charge Operations Support Legsato.
10.
COURT IS WELL AWARE OF THE PROVISIONS OF Sec 170 Constitution which
states that, “Court of a status lower than the High Court may not rule on the constitutionality
of any legislation.”
11.
Purposes of this trial court is bound to accept that the provisions of Sec 14(1)(b) of the
MDSMA are constitutional and that we may then proceed.
12.
Court wishes to give both Counsel an opportunity to place on record whether they are
willing to proceed and if so whether Defence Counsel has any other objections in respect of
the jurisdiction of the court or in respect of the charges that they do not disclose an offence?’

[4] This appears to have provoked some disquiet in the then Review Counsel,
Lieutenant Colonel Kriek. On 6 November 2014, he wrote for the attention of the
Director: Military Judicial Reviews:
‘1.
Upon review of various records of proceedings of cases presided over by [the
appellant], review counsel has noticed that [the appellant] . . . has raised concerns regarding
the constitutionality of his appointment as military judge.
2.
. . . Reference to the concerns regarding the constitutionality of his appointment as
military judge is made before plea where after both prosecutor and defence counsel is asked

whether they have any objection to the jurisdiction of the court. Up to date no party has
indicated any objection in this regard.’
Reference was then made to six matters, whereafter the document proceeded:
‘8.
It is submitted that the constitutional issue raised by [the appellant] does not fall within
the ambit of the procedural course of a court case constituted by the [MDSMA]. It is important
that the integrity of the military and senior military judges as well as the integrity of the military
court system be without any reproach. Where a presiding judge challenges his/her own
appointment in open court, the credibility of the military legal system is challenged. The
question must also be raised as to why a military judge who believes his appointment to
preside in a military court is unconstitutional would continue with the matters before him even
though the trial/s [will] be ultra vires and therefore null and void.
9.
It is submitted that the appointment of [the appellant] as a military judge was done in
accordance with the [MDSMA]. Regard must be had to the fact that [the appellant] implies that
he cannot be independent and beyond command influence in his administration of justice, due
to the fact that his appointment as military judge does not provide for permanent tenure.
Review Counsel is unsure as to the motivation for placing the “jurisdictional” issue on record
during every trial. Does [the appellant] feel intimidated by the administrative decision to
appoint all functional counsel for a period of one year and wants to place on record that his
judicial decisions are directed by his wish to remain a military judge until he reaches
retirement? Or may the motivation be to cause his removal from his current assignment
because, in effect, all judgments and sentences passed by him are ultra vires? It is submitted
that the correct course of action for a judge who believes his appointment as a military judge
voids his jurisdiction and is unconstitutional, would be to recuse himself from presiding in any
military judicial matter.
10.
It is submitted that this matter be administratively dealt with in order to resolve this
conflict. It is unacceptable to place the military judicial system in disrepute by criticising the
very legislation which gives effect thereto.
11.
For further action.’

[5] That letter elicited, inter alia, the following response from the appellant on 28
November 2014:

’13.
It has never been the member’s intention to doubt the validity of the provisions of the
MDSMA. The member accepts that he was lawfully assigned to the function of a Military Judge
on 19 May 2014 and that this assignment is valid until 31 March 2015.
. . .
17.
The contents of, “‘Military Judges’ concerns regarding the constitutionality of the
assignment of a military judge”, should be seen in the light of being obiter dicta comments and
an effort to raise awareness amongst the military legal fraternity of similar situations in foreign
military judicial systems.’

[6] On 5 December 2015, the then Director: Military Judges (the DMJ), Brigadier
General Slabbert, held a meeting with the appellant to express his concern that in
having once again raised the constitutionality of assignments of military judges in open
court, the appellant had breached a previous undertaking. In the course of that
meeting, the appellant was instructed not to use the military court as a forum for his
‘awareness campaigns and constructive criticism’. He was advised to use the proper
channels of command and that if he were to persist in his conduct it may impact on
his future assignment as a military judge. Following that meeting, the appellant wrote
to the DMJ that he:
‘. . . appreciates that the discussion was conducted in an open and honest fashion that the
[appellant] was given an opportunity to address concerns raised by the DMJ and [Lieutenant
Colonel Kriek].
The [appellant] once again wishes to re-iterate, that it was never [his] intention to do any harm
or embarrassment to any member . . . and if any member had perceived [his] response in a
way that could have caused them any harm or embarrassment, [the appellant] wishes to
apologise unreservedly.’

[7] During August 2016, two matters came before the appellant in which there had
been substantial delays caused in large measure, so he suggests, by the failure of the
Minister of Defence and Military Veterans (the Minister) to assign military judges. In
the first, involving Staff Sergeant Mokoena (the Mokoena matter), there had been a
three-and-a-half-year delay. In the second, involving then Candidate Officer (later
Lieutenant) Mabula (the Mabula matter), there had been a delay of some 14 months.

Counsel for the defence contended in each that the matter fell to be struck from the
roll on account of the unreasonable delay. In his ex tempore ruling on that question
on 25 August 2016, which was followed by a written judgment delivered four days later
on 29 August 2016, the appellant repeated his concerns about the constitutionality of
appointing military judges on brief renewable terms and the implications that held for
the independence of military courts.

[8] In that regard, the appellant’s judgment reads:
‘12.
An aspect that the Court raised in respect of its concerns regarding the constitutionality
of the assignment of military judges was the delay in the assignment of Military Judges in
general (including that of the Military Judge) in these particular cases. The fact that for a period
of 15 months (01 April 2015 – 30 May 2016), the Military Judge was not assigned could have
a bearing on the outcome of whether there had been an unreasonable delay in the
proceedings in terms of sec 342A CPA. This 15 month, non-assignment is the longest period
since the enactment of the MDSMA, that Military Judges have not been assigned. This Court,
in passing, wishes to emphasise that as a Military Judge, I have taken an oath of Office, to
uphold the Constitution and I will do this to the best of my ability. It may, however, become
more difficult to perform this function independently as required by the Constitution when one
is not aware of the objective criteria required for an assignment as a Military Judge. It would
seem that different criteria may be used to determine who is assigned or not assigned as a
Military Judge. One year, it is court hours, another year, it is that you must be in possession
of a secret security clearance and unfortunately there appears to be no semblance of
transparency in respect of the recommendation and / or appointment process to be considered
as a fit and proper person to serve as a Military Judge. The Court also in Trial Annexure E to
the court proceedings, highlighted some of its concerns in respect of the lack of tenure of
Office of a Military Judge and referred in particular to the case of Justice Alliance v President
of Republic of South Africa (2011) ZACC 23 at par 38 and 73.’

[9] The appellant then proceeded to consider whether ‘the Military Court [has]
jurisdiction to conduct an investigation in terms of sec 342A of the Criminal Procedure
Act (the CPA)’. On that score, he concluded that ‘the provisions of sec 342A CPA may
be considered as best calculated to do justice and shall be utilized in respect of
handling of unreasonable delays in military courts.’ The appellant then stated:

‘In respect of the period 01 Apr 2015 – 30 May 2016, the court finds that there was an
unreasonable delay and the authority responsible is the [Minister] who for reasons unknown
to the Court did not assign the Military Judge. The Court wishes to indicate that in this case
the Court did not consider it necessary to subpoena the Honourable Minister to give evidence
to explain her actions, however, in future cases, it may be necessary for the Court to subpoena
the Honourable Minister to explain her actions should the circumstances of the case require
the Court to subpoena the Honourable Minister.’

[10] Notably, the appellant acknowledged that in terms of s 170 of the Constitution,
he had no power to rule on the constitutionality of legislation or conduct and although
he recognised that he ‘may be venturing into uncharted waters’, he nonetheless
considered that he was ‘constitutionally bound’ to make the following orders:
‘a.
In terms sec 342A(3)(e) CPA, it is ordered that the Acting Officer – in – Charge
Operations Support Legsato shall serve a copy of the written court ruling, a copy of the Military
Judges Concerns in respect of the Constitutionality of the Assignment of Military Judges, a
copy of Prosecution Counsel and Defence Counsel’s Heads of Argument, on the Director
Military Prosecutions by 05 September 2016 to investigate any possible disciplinary action
that may be taken against members of his staff and / or any person who performed the function
of Prosecution Counsel at the sec 29 arraignment of the Accused (MOKOENA) on 23
November 2012.
b.
In terms of Sec 342A(3)(e) CPA it is ordered that the Acting Officer – in – Charge
Operations Support Legsato shall serve a copy of the written court ruling, a copy of the Military
Judges Concerns in respect of the Constitutionality of the Assignment of Military Judges, a
copy of Prosecution Counsel and Defence Counsel’s Heads of Argument on the Acting Chief
Defence Legal Services by 05 September 2016 for his information.
c.
In terms sec 342A(3)(e) CPA, it is ordered that the Acting Officer – in – Charge
Operations Support Legsato shall serve a copy of the written court ruling, a copy of the Military
Judges Concerns in respect of the Constitutionality of the Assignment of Military Judges, a
copy of Prosecution Counsel and Defence Counsel’s Heads of Argument on the
Commander  – in – Chief of the South African National Defence Force, the Honourable
President of the Republic of South Africa by 05 September 2016 to investigate any possible
disciplinary action that may be taken against the Honourable Minister of Defence and Military
Veterans in respect of her failure to assign the Military Judge over the period of 01 April
2015   – 30 May 2016.

d.
The Acting Officer – Charge Operations Support Legsato must provide written
confirmation to this Court by 12 September 2016 that the written court ruling, copy of the
Military Judges Concerns in respect of the Constitutionality of the Assignment of Military
Judges, a copy of Prosecution Counsel and Defence Counsel’s Heads of Argument has been
served on the abovementioned persons.
e.
The Director Military Prosecutions and the Honourable President must provide written
confirmation to this Court by 31 October 2016 confirming what actions, if any, have been taken
against any of their staff members or against the Honourable Minister of Defence and Military
Veterans respectively.
f.
The Court declines to strike these cases from the roll and the cases will proceed to
trial.'

[11] After delivery of the judgment, and whilst both matters were still pending, the
appellant was once again called to a meeting with the DMJ, which took place on 5
September 2016. During the course of the meeting, the DMJ expressed his
dissatisfaction that the appellant had repeated his concerns in open court and in his
rulings. According to the appellant, the DMJ reiterated that his assignment as a military
court judge was at risk, if he continued making those statements and he was asked to
furnish a written undertaking that he would not to do so in the future. The appellant’s
response was that he was uncomfortable discussing the matter as the trials were still
ongoing and that he considered the demand for a written undertaking to be unlawful
and unconstitutional. In a letter written by the appellant to the DMJ after that meeting,
he asserted that if the latter or any other member was of the view that he was
incompetent or had committed misconduct then an independent person (preferably a
judge of the high court) should be appointed to investigate those claims and make a
recommendation. The appellant concluded the letter by reserving his rights to institute
contempt proceedings should he be obstructed from carrying out his functions as a
judge. The next day the DMJ replied to the appellant; he suggested that if the appellant
continued to be concerned with the constitutionality of the assignment of military
judges, then he should simply recuse himself from all matters.

[12] On 8 September 2016, the appellant wrote to both the prosecution and defence
counsel in the Mokoena and Mabula matters. He set out details of his meeting with
the DMJ and the correspondence exchanged thereafter. The appellant requested a
pre-trial conference with counsel. On 15 September 2016, the appellant received a
letter from the then Adjutant General, Major General Mmono (the AG) headed
‘withdrawal of authority to sit as a military judge’, which proceeded to inform the
appellant that a Board of Inquiry (the BOI) had been convened in terms of ss 101 and
102 of the Defence Act 42 of 2002 (the Defence Act), and requested him to fully co-
operate with the investigation. On 22 September 2016, the appellant responded to the
AG’s letter; he undertook to co-operate fully with the BOI and requested a copy of the
convening order.

[13] On 4 October 2016, the appellant sent an email to the prosecutor and defence
counsel in the Mokoena and Mabula matters, as he put it ‘to inform both parties of
recent developments’. The email continued:
‘On 15 Sep 16, I received a letter from the [AG] informing me that as a result of my letter dated
06 Sep 16, he had convened a [BOI]. I was informed that I would not be able to proceed to
the DRC, but that I could still conduct cases in SA and I was to make myself available for the
Board.
. . .
I have still not received a copy of the Convening Order as I had requested on 22 Sep 16. At
this stage, I have no idea as to the terms of reference of the Board and I am sure that questions
will be asked regarding decisions and comments that I have made in these cases as well as
other cases.
I wish to advise Counsel that I may be in a predicament in that I am obligated to answer
questions at the Board in respect of matters that are sub judice. Failure to answer questions
at a Board can constitute an offence. I do not wish to pre-empt the Board, but I thought it wise
to inform both Counsel of the latest developments. This correspondence will also form part of
the Court record of both cases.’

[14] On 10 October 2016, the appellant was told to present himself the following
day for the commencement of the BOI. The next day he attended the first sitting of the

BOI, comprising Brigadier General Myburgh (Director, Military Judicial Reviews), as
the President and the late Rear Admiral Masutha (Director, Military Defence Counsel).
The appellant was furnished with a copy of the AG’s convening order, dated 15
September 2016 ‘to investigate and report on the circumstances and factual issues
surrounding the constitutional exclamations made by [the appellant] presiding as a
military judge in military court cases in August 2016. Paragraph 3 of the Order
provided:
‘a.
To investigate whether [the appellant] acted within the letter and spirit of the
Constitution, the [MDSMA], [the Code], the Rule of Procedure and any other relevant
legislation whilst presiding in the two cases of S v Cpl P.Z. Mabula and S v S Sgt D.T.
Mokoena (August 2016)
b.
Did his conduct bring the administration of military justice into disrepute.
c.
Whether the member is to be considered a fit and proper person to continue serving
as a military judge.
d.
The seriousness and implications of recent events, and consequences that it may have
for the DLSD / SANDF.
e.
The action required to prevent a re-occurrence, as well as to ease the results.
f.
Any related matters which may be brought to the board’s attention during the inquiry.
g.
Rectification action and corrective measures including disciplinary steps to be taken.’

[15] On 12 October 2016, the appellant contacted both prosecution and defence
counsel in the Mokoena and Mabula matters to confirm that they and the accused in
those matters would be available at 3pm on 14 October 2016 for a ruling that he
intended delivering in open court. It was a lengthy ruling, in course of which the
appellant referred to his previous order, proceeded to read into the record the
correspondence and recount in detail the events since then. Thereafter, the appellant
noted:
‘60.
I am giving notice to the Honourable Minister of Defence, Chief SANDF, Secretary of
Defence, Mmono, Slabbert, Myburgh, Masutha and Mbangatha that amongst other things, I
will be requesting the following relief from the High Court on an urgent basis:

a.
An interdict from the High Court to prevent any further “attacks” on me in my capacity
as a Military Judge,
b.
To interdict Slabbert from continuing with his instruction to me on 05 September 2016,
c.
To interdict Mmono instructing me that I may not proceed with any new cases,
d.
To interdict Mmono, Myburgh and Masutha from continuing with the DLSD Board of
Inquiry under Convening Order no 03/2016,
e.
To interdict Mmono, Slabbert, Myburgh, Mbangatha and Masutha from performing any
activities towards myself as a Military Judge which could interfere with the institutional
independence of the Court of Military Judge.
f.
Further and / or alternative relief.
61.
I am giving notice to the Honourable Minister of Defence, Chief SANDF, Secretary of
Defence, Mmono, Slabbert, Myburgh, Masutha and Mbangatha that amongst other things, I
will be requesting the following relief from the High Court on the normal Motion Court roll:
a.
To review the Court Orders that in my capacity as a Military Judge, I made on 29
August 2016,
b.
To review the Court Orders that in my capacity as a Military Judge, I will be making
today.
c.
To provide guidance to me as a Military Judge as to whether I may make obiter dicta
comments in respect of the issue of the constitutionality of sections of the MDSMA relating to
the assignment of Military Judges during open court.
d.
To provide guidance to the DLSD as to whether any of the provisions in the MDSMA
relating to the assignment of Military Judges are constitutional,
e.
To provide guidance to me as a Military Judge as to whether the actions of Mmono,
Slabbert, Myburgh, Masutha and Mbangatha prima facie constitute contempt of court and
furthermore what actions, if any, should be taken against them in respect of possibly having
the members charged for contempt of court ex facie.’

[16] The appellant then proceeded to issue the following orders:
‘a.
The Adjudant, Operations Support Legsato (who is also the Acting Court Manager)
shall serve a copy of the record of proceedings of these cases at the offices of the General
Bar Council of South Africa as well as on the Law Society of South Africa for those bodies to
take the necessary steps they deem fit, against Maj General S.B. Mmono, Brigadier General
G.I. Slabbert, Brigadier General A. Myburgh, Brigadier General R.M. Mbangata and Rear

Admiral (Junior Grade) R.P. Masutha should any of these members be subject to the ethical
codes of these organisations.
b.
The Adjudant, Operations Support Legsato shall serve a copy of the record of
proceedings on the Judicial Service Commission as well as on the Magistrates’ Commission
for these institutions to take note of the conduct of the aforementioned DLSD members. It
should be noted that the Honourable Judge Legodi, who is the Chairperson of the Court of
Military Appeals is also the Chairperson of the Magistrate’s Commission.
c.
The Adjudant, Operations Support Legsato shall serve a copy of the record of
proceedings on the honourable Minister of Defence for her to consider whether Maj General
S.B. Mmono, Brigadier General G.I. Slabbert, Brigadier General A. Myburgh, Brigadier
General R.M. Mbangata and Rear Admiral (Junior Grade) R.P. Masutha still comply with the
provisions of sec 54(2)(g) Defence Act, and to make recommendations to the Commander –
in – Chief, the Honourable President of the Republic of South Africa in this regard.
d.
Although I, as a Military Judge, wish to reassure all Counsel involved in these cases
and the accused that I take my Oath of Office extremely seriously and that to the best of my
ability I am impartial, and act without fear, favour or prejudice, I cannot guarantee that the
accused will receive a fair trial as contemplated in sec 35 of the Constitution due to the fact
that objectively the institutional independence of this Court has been targeted, tarnished and
severely prejudiced to such an extent that I have no option but to recuse myself as the Military
Judge in these cases.’

[17] Following upon the judgment of 14 October 2016, so states the appellant, save
for finalising two part-heard matters, he was ‘allocated no new matters and was
effectively placed on suspension’, until his appointment came to an end on 31 March
2017. After the appellant’s recusal, both the Mokoena and Mabula matters proceeded
to trial before a different military judge. In the former, the accused was acquitted on 1
February 2017 and, in the latter, the accused was found guilty and sentenced to
dismissal from the South African National Defence Force (the SANDF) on 12
December 2017.

[18] The hearing before the BOI resumed on 18 October 2016. On 31 October 2016,
the appellant was handed an amendment to the convening order, which expanded the
scope of the BOI to investigate his ‘constitutional exclamations in all matters, not just

his rulings in August 2016’. He was also handed an order requiring his attendance
before the BOI on 8 November 2016. The appellant thereafter consulted with his
present attorney, who, on 2 November 2016, despatched a letter to the AG. In that
letter it was asserted that the convening of the BOI ‘to investigate the conduct of a
military judge, particularly where those investigations relate to the content and
methods of a military judge’s judgments and orders was unlawful and
unconstitutional’. The letter demanded that the BOI be dissolved with immediate
effect. In his response on 7 November 2016, the AG indicated that he ‘had convened
the BOI in terms of s 101(2) of the Defence Act 42 of 2002 and that he believed this
was necessary in the execution of his responsibilities’.

[19] When the BOI resumed on 12 December 2016, the appellant sought a ruling
that ‘it was not empowered under section 101 and 102 of the Defence Act 2002 to
investigate the conduct of a sitting military judge, particularly where that investigation
relates to the merits of a judge’s judgments and orders’. After hearing detailed
argument, the BOI was postponed until January 2017 for a ruling. On 24 January
2017, the appellant and his attorney were informed that the AG had intimated that he
needed more time to make a decision on the appellant’s submissions. The matter was
then postponed to February 2017, when the appellant was informed that the BOI had
received an instruction from the AG to continue with the hearing. The BOI concluded
hearing evidence on 13 April 2017.

[20] On 11 December 2017, the appellant was called to a meeting, scheduled for
the next day, with the new Adjutant General, Major General Mnisi (the new AG). By
that stage, the BOI had still not made a recommendation to the AG. The appellant was
informed that the BOI would be held in abeyance until he (the new AG) had decided
on an appropriate course. On the 23 February 2018, the appellant’s attorney
complained in a letter to the new AG that there had been an unreasonable delay in
the finalisation of the BOI. The letter demanded that the BOI either be finalised or
withdrawn within 21 days. That letter elicited the following response on 6 March 2018:

‘The AG is concerned as to whether some of the orders made by [the appellant] can be
subjected to administrative review in the form of a [BOI]. The [AG] is of the view that the order
in question should be subjected to a judicial review process.
The Office has instructed the Office of the State Attorney (Pretoria) to brief counsel to take
some points of [the appellant’s] orders under review.
Until the review process is finalised, the BOI is placed in abeyance without any prejudice to
the member. For this reason, this Office cannot withdraw as requested in your letter.’

[21] The review application was launched in the Gauteng Division of the High Court,
Pretoria (the high court) by the Minister, the Chief of the SANDF, the Secretary of the
Defence and Military Veterans and the SANDF, as the first to fourth applicants,
(collectively referred to as the Defence Force) in October 2018. The appellant, Staff
Sergeant Mokoena and Lieutenant Mabula were cited as the first to third respondents
respectively. The latter two did not participate in the proceedings, either in this Court
or the one below. The Defence Force, inter alia, sought to review and set aside the
majority of the orders handed down by the appellant in the Mokoena and Mabula
matters.

[22] The response of the appellant to the review application was, to say the least,
curious. In his answering affidavit the appellant stated:
‘5.
The rulings speak for themselves. I do not intend to defend the substance of those
rulings in detail in these proceedings, beyond providing further explanation and context to
assist this court.
6.
The central issue is not the rulings. Instead, the true issue is the applicants’ conduct
in response to my rulings. Their conduct reflects disregard for the constitutionally guaranteed
independence of the military courts, which is further evident from the views expressed in the
applicants’ founding affidavit.’
Despite stating that he did ‘not intend to defend the substance of [his] rulings’, the
appellant proceeded to oppose the application on three grounds: first, that there had
been an unreasonable delay in bringing the application, which should not be
condoned; second, that the Defence Force had no standing to review his rulings; and,

third, the review lacked merit. In addition, the appellant brought a counter application
for ‘constitutional relief aimed at supporting the institutional independence of the
military courts under the existing statutory framework’. As he put it: ‘[my] core concern
is to ensure that the military judges are not subjected to the type of treatment that I
have experienced and to ensure that military judges are able to perform their functions
in a constitutionally secure environment’.

[23] The notice of motion in the counter application provided:
‘First challenge: Boards of inquiry
It is declared that, on a proper interpretation of sections 101 and 102 of the Defence
Act 42 of 2002, members of the executive are not permitted to convene boards of inquiry to
investigate military judges and senior military judges (“military judges”) and the content and
merits of their judgments and rulings.
In the alternative to paragraph 1, sections 101 and 102 are unconstitutional and invalid
to the extent that they permit members of the executive to convene boards of inquiry to
investigate military judges and the content and merits of their judgments and rulings.
It is declared that the board of inquiry convened to investigate Lt Col K.B. O’Brien
under convening order no CDLS 1/C/106/29 is unlawful and unconstitutional.
It is declared that the proceedings instituted by the Applicants in this Court under case
number 76995/18 are unlawful and unconstitutional
Second challenge: Removal of military judges
Section 17 of the Military Discipline Supplementary Measures Act 16 of 1999 (“the
MDSMA”) is unconstitutional and invalid to the extent that it empowers the Minister, acting on
the recommendation of the Adjutant General, to remove a military judge and that the Minister
may do so without any independent inquiry into the fitness of the military judge to hold office.
Third challenge: Renewable assignments of military judges
It is declared that on a proper interpretation of section 15 of the MDSMA, the Minister,
acting on the recommendation of the Adjutant General, is not empowered to assign military
judges for renewable periods.
In the alternative to paragraph 3, section 15 of the MDSMA is unconstitutional and
invalid to the extent that it empowers the Minister, acting on the recommendation of the
Adjutant General, to assign military judges for renewable periods.

It is declared that the existing practice of assigning military judges for renewable
periods of one to two years is unconstitutional and unlawful.
General
The declarations of constitutional invalidity sought in paragraphs 2, 5 and 7 above are
suspended for a period of 12 months to allow Parliament to correct the defects.’

[24] The review application succeeded and the cross application failed before Van
der Schyff J in the high court. Save for paragraph f declining to strike the Mokoena
and Mabula matters from the roll, the high court set aside the remaining orders issued
by the appellant on 25 and 29 August 2016, and in that regard, ordered each party to
pay its own costs. And, save for paragraph d, pursuant to which the appellant recused
himself from hearing both matters, the remaining orders that issued on 14 October
2016 were set aside with costs. Each of the constitutional challenges failed,
consequently the cross application was dismissed with costs. In each instance, the
costs were to include those consequent upon the employment of two counsel. The
appellant appeals, with the leave of the high court, against the upholding of the
Defence Force’s review application, the dismissal of his cross application and the
costs orders that issued against him.

[25] Preliminarily, it is perhaps necessary to record that whilst the Defence Force
(notionally at least) is not, so to speak, ‘an indigent and bewildered litigant, adrift in a
sea of litigious uncertainty, to whom the courts must extend a procedure-
circumventing lifeline’,5 the unavoidable conclusion in this case is that it may have
been poorly advised. The papers filed both in the review application, as also, in
opposition to the counter application, were superficial and generally unconvincing;
failing, as they did, to meaningfully rise to a host of challenges or to properly engage
with many of the issues that called for adjudication. The same holds true for the heads
of argument filed on appeal and the oral submissions from the bar in this Court.

5 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [2014] ZACC 6; 2014 (3)
SA 481 (CC) para 82.

The review application
[26] As before the high court the appellant persists on appeal, with the same three
grounds raised in opposition to the review application, namely that: (i) there had been
an unreasonable delay on the part of the Defence Force in bringing the review
application; (ii) the Defence Force lacked standing; and, (iii) the review lacked merit
inasmuch as the Defence Force had failed to show a gross irregularity in the
proceedings.

As to the first:
[27] It is contended on behalf of the appellant that the delay in launching the review
application is so manifestly unreasonable that it should not have been overlooked or
condoned by the high court. The delay rule is a principle that flows directly from the
rule of law and its requirement for certainty.6 The Constitutional Court has held that
there is a strong public interest in both certainty and finality.7 As it was put by this
Court in Valor IT v Premier, North West Province and Others:
‘Whether a delay is unreasonable is a factual issue that involves the making of a value
judgment. Whether, in the event of the delay being found to be unreasonable, condonation
should be granted involves a ‘factual, multi-factor and context-sensitive’ enquiry in which a
range of factors – the length of the delay, the reasons for it, the prejudice to the parties that it
may cause, the fullness of the explanation, the prospects of success on the merits – are all
considered and weighed before a discretion is exercised one way or the other.’8

[28] It was incumbent on the Defence Force to provide a full explanation covering
the entire period of the delay. The explanation, such as it is, for the most part fell far
short of that yardstick, consequently the high court took the view that the explanation
for the delay is ‘less than satisfactory’. It did, however, weigh that against, amongst

6 Altech Radio Holdings (Pty) Limited and Others v City of Tshwane Metropolitan Municipality [2020]
ZASCA 122; 2021 (3) SA 25 (SCA) para 16.
7 Khumalo and Another v Member of Executive Council for Education: KwaZulu-Natal [2013] ZACC 49;
2014 (5) SA 579 (CC) para 47.
8 Valor IT v Premier, North West Province and Others [2020] ZASCA 62; [2020] 3 All SA 397 (SCA)
para 30; See also Aurecon South Africa (Pty) Ltd v City of Cape Town [2015] ZASCA 209; 2016 (2) SA
199 (SCA) para 17; City of Cape Town v Aurecon South Africa (Pty) Ltd [2017] ZACC 5; 2017 (4) SA
223 (CC) para 46.

other things, the ‘importance of the matter’, ‘the prospects of success’, ‘the
administration of justice’ and ‘the absence of prejudice’. Weighing those
considerations, the one against the other, the high court arrived at the conclusion that
condonation should be granted.

[29] Importantly, we are not simply at large to interfere with the discretion exercised
by the high court. In that regard, the distinction as to whether the discretion exercised
by the high court in granting condonation was one in the ‘true’ or ‘loose’ sense is
important. The importance of the distinction, as the Constitutional Court explained in
Trencon Construction (Pty) Limited v Industrial Development Corporation of South
Africa Limited and Another, is that it dictates the standard of interference by this court.9
However, as the Constitutional Court emphasised, ‘even where a discretion in the
loose sense is conferred on a lower court, an appellate court’s power to interfere may
be curtailed by broader policy considerations. Therefore, whenever an appellate court
interferes with a discretion in the loose sense, it must be guarded.’10

[30] In Florence, Moseneke DCJ stated:
‘Where a court is granted wide decision-making powers with a number of options or variables,
an appellate court may not interfere unless it is clear that the choice the court has preferred
is at odds with the law. If the impugned decision lies within a range of permissible decisions,
an appeal court may not interfere only because it favours a different option within the range.
This principle of appellate restraint preserves judicial comity. It fosters certainty in the
application of the law and favours finality in judicial decision-making.’11

[31] Here, not only has no warrant been shown to exist for interference with the
discretion exercised by the high court in condoning the delay, but as the high court

9 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and
Another [2015] ZACC 22; 2015 (5) SA 245 (CC) paras 82–97.
10 Ibid para 82.
11 Florence v Government of the Republic of South Africa [2014] ZACC 22; 2014 (6) SA 456 (CC) para
113.

appreciated, because this question is ineluctably bound to the prospects of success,12
it is necessary, as that court also did, to enter into the merits of the review application.
Without in any way seeking to pre-empt the discussion on the merits that follows later,
for the present, it is important to record that counsel for the appellant was constrained
to concede that paragraph e of the order of 29 August 2016 that ‘the Director Military
Prosecutions and the Honourable President must provide written confirmation to this
Court by 31 October 2016 confirming what actions, if any, they have taken against
any of their staff members or against [the Minister] respectively’, cannot stand and
thus falls to be set aside. Absent paragraph e, paragraph a, which required service on
the Director Military Prosecutions for him ‘to investigate any possible disciplinary
action that may be taken against his staff’ and, paragraph c, which required service
on the President for him to ‘investigate any possible disciplinary action that may be
taken against [the Minister]’, may well be ‘indeterminate, open ended and
irredeemably vague’.13 In that, they arguably may also be susceptible to being set
aside. To that extent, at the very least, there are cognisable prospects of success in
the review application. This must mean that the grant of condonation by the high court
cannot be disturbed.

As to the second:
[32] It is contended that, inasmuch as each of the applicants in the review
application were not parties to the criminal proceedings before the appellant, the
orders, such as they were, did not trigger any cognisable grounds of standing to bring
review proceedings. It is indeed so that a court ‘will invalidate an order only if the right
remedy is sought by the right person in the right proceedings and circumstances’.14 It
cannot however go unnoticed that on 14 October 2016 and, in the course of his
judgment, the appellant had himself given notice of his intention to bring proceedings
to, inter alia, review the court orders made on 29 August 2016, as well as the orders
that he was going to make on that day. The appellant also intimated that he would be

12 Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited [2019] ZACC 15; 2019 (6)
BCLR 661 (CC); 2019 (4) SA 331 (CC).
13 Minister of Water and Environmental Affairs v Kloof Conservancy [2015] ZASCA 177; [2016] 1 All SA
676 (SCA) para 13.
14 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others [2004] ZASCA 48; 2004 (6) SA 222
(SCA); [2004] 3 All SA 1 (SCA) quoting with approval Wade Administrative Law 7th ed (by H W R Wade
and Christopher Forsyth) at 342-4.

seeking interdictory relief on an urgent basis and guidance from the high court as to
whether he may make ‘obiter dicta comments in respect of the issue of the
constitutionality of sections of the MDSMA relating to the assignment of Military
Judges during open court’. He evidently thought it important that the high court speak
on these matters. It is thus passing strange that in the circumstances the appellant
chose to object to the Defence Force’s standing. One would have thought that a review
application, whether at his or the Defence Force’s instance, would be welcome and
put to rest the very issues that had caused him such great consternation.

[33] Be that as it may, the high court took the view that:
‘If a military judge’s conduct is irregular and ultra vires and the irregular conduct results in a
court order that would otherwise not have been granted or exceeds the jurisdiction of such a
military court, applicants with the necessary standing will have recourse to this court to have
those orders reviewed and set aside.
The Minister is implicated in the [appellant’s] judgment and order of 25 and 29 August 2016.
The [appellant] held that the Minister’s failure to appoint military judges contributed to the
delay in finalising the trials . . . The [appellant] directed the President to investigate any
possible disciplinary action that may be taken against the Minister and report back to the court
before a stipulated period confirming what actions, if any, have been taken against the
Minister. In view of the finding made against the Minister, that her failure to appoint military
judges contributed to the undue delay, the necessary nexus was established for the Minister
to approach this court for the review of the order. The Minister has a direct and substantial
interest in the order granted. The same can be said regarding the order granted on 14 October
2016. In this instance, the Minister was ordered to investigate whether certain officers
complied with the provisions of s 54(2)(g) of the Defence Act and to make recommendations
to the President. These orders were made without providing any of the affected persons an
opportunity to present their respective cases to the court. The Minister has a direct and
substantial interest in the order that obliges her to conduct an investigation. She therefore has
the necessary standing in this court to challenge the validity of the order. There is no merit in
this point in limine.’

[34]  What is more, the appellant had issued orders appertaining to a range of senior
officers in the SANDF. In each of his covering letters referring ‘the record of

proceedings and court rulings’ to the ‘Chairperson of the General Bar Council of South
Africa’ (the GCB), the ‘Chairperson of the Judicial Service Commission’ (the JSC), the
‘Chairperson of the Magistrates Commission’ (the Magistrates Commission) and the
‘Chairperson of the Law Society of the Northern Provinces’ (the Law Society), the
appellant stated:
‘The Court ruling dated 14 October 2016 provides the factual basis upon which I as a Military
Judge am of the prima facie view that [the GCB, JSC etc] should investigate whether the
conduct of the members as mentioned in paragraph 62 of the Court ruling amounts to
unethical and/or unprofessional conduct’.
The appellant identified the members as Major General SB Mmono, Brigadier General
GI Slabbert, Brigadier General A Myburgh, Brigadier General RM Mbangatha and
Rear Admiral (Junior Grade) RP Masutha and made reference to the identity and force
numbers of each. His covering letter concluded:
‘I am prima facie of the view that their conduct amounts to Contempt of Court ex facie and it
would be appreciated if any of these members are subject to your ethical code of conduct that
their conduct should be investigated.’
Whilst each of the GCB, JSC, Magistrates Commission and Law Society
acknowledged receipt of the appellant’s letter, only the last intimated that none of the
persons mentioned are registered with it and as such they were unable to investigate
their conduct.

[35] In his letter to the Minister, the appellant went further. He stated:
‘The Court ruling dated 14 October 2016 provides the factual basis upon which I as a Military
Judge was of the view that the Honourable Minister should investigate whether the conduct
of the officers as mentioned in paragraph 63(c) of the Court ruling is of sufficient grounds to
request the Commander-in-Chief to withdraw their Officer’s Deeds of Commission.’
Once again, he added ‘I am prima facie of the view that their conduct amounts to
Contempt of Court ex facie.’ It is plain from these letters that were addressed to
various professional and institutional bodies, that they were intended to be acted upon
and appear to call the lie to the assertion in his answering affidavit to the review
application that: ‘the effect of my order was simply to bring my ruling to the attention

of these individuals and bodies I did not order these parties to take disciplinary action
or to conduct further investigations’.

[36] As Froneman J observed in Bezuidenhout v Patensie Sitrus Beherend BPK
2001 (2) SA 224 (E) at 229 B-C:
'An order of a court of law stands until set aside by a court of competent jurisdiction. Until that
is done the court order must be obeyed even if it may be wrong (Culverwell v Beira 1992 (4)
SA 490 (W) at 494A-C). A person may even be barred from approaching the court until he or
she has obeyed an order of court that has not been properly set aside (Hadkinson v Hadkinson
[1952] 2 All ER 567 (CA); Bylieveldt v Redpath 1982 (1) SA 702 (A) at 714).'15

[37] To that, may be added, that litigants who are required to comply with court
orders, at the risk otherwise of being in contempt if they do not, must know with clarity
what is required of them.16 As it was put in Minister of Water and Environmental Affairs
v Kloof Conservancy:
‘An order or decision of a court binds all those to whom, and all organs of State to which, it
applies. All laws must be written in a clear and accessible manner. Impermissibly vague
provisions violate the rule of law, which is a founding principle of our Constitution. Orders of
court must comply with this standard.’17

[38] There were only two orders directly relevant to the prosecution and defence in
the Mokoena and Mabula matters. The first was the order declining to strike the
matters from the roll and the second was the order pursuant to which the appellant
mero motu recused himself. For the rest, the greater part was pure surplusage and
gratuitous. Those orders did not further impact in any meaningful or tangible manner
on the prosecution or defence. They would accordingly only have had a passing
interest in whether or not the orders withstand further judicial scrutiny. Not so the

15 Cited with approval in Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development
Company Ltd & others [2013] ZASCA 5; [2013] 2 All SA 251 (SCA) para 17.
16 Minister of Home Affairs v Scalabrini Centre & others [2013] ZASCA 134; 2013 (6) SA 421 (SCA);
[2013] 4 All SA 571 (SCA) para 77.
17 Minister of Water and Environmental Affairs v Kloof Conservancy fn 13 above para 14.

officers in the Defence Force, who, whilst not parties to the proceedings and without
having been heard, found themselves on the wrong side of the appellant’s judgments.
Those subject to the appellant’s judgments (which he has not attempted to justify) may
well have grave difficulty in discerning what steps they are required to take to comply
with them.  They would need to know with a measure of confidence what they are
obliged by the order of court to do or not do as the case may be. They have a direct
interest in the relief sought. It follows that in according standing to the Defence Force
the high court can hardly be faulted. Were it otherwise, the Defence Force would have
no machinery to cause the appellant’s judgment to be corrected or to reverse any of
the orders that are still extant and continue to operate against senior officers in the
SANDF.

As to the third:
[39] The contention advanced is that although the Defence Force had alleged
numerous irregularities in the appellant’s judgments, that was insufficient, inasmuch
as it had failed to show a gross irregularity. Thus, so the contention went, even were
it to be accepted that the appellant’s judgment was incorrect - an incorrect judgment
is not an irregularity. An irregularity refers to the method of conducting the trial. And,
for an irregularity to be gross, it must be of such a serious nature that the case was
not fully and fairly determined. In this regard, reliance was sought to be placed on
what was said by Schreiner J in Goldfields Investment v City Council of
Johannesburg.18

[40] That case dealt with the review of a lower court on the ground of gross
irregularity. It held that ‘the term encompasses the case where a decision-maker
misconceives the whole nature of the inquiry or his duties in connection therewith’.19
As Harms JA pointed out in Telcordia Technologies Inc v Telcom SA Ltd:20

18 Goldfields Investment Ltd and Another v City Council of Johannesburg and Another 1938 TPD 551.
19 Telcordia Technologies Inc v Telcom SA Ltd [2006] ZASCA 112; 2007 (3) SA 266; [2007] 2 All SA
243; 2007 (5) BCLR 503 (SCA) para 71.
20 Ibid paras 72-73

‘It is useful to begin with the oft quoted statement from Ellis v Morgan21 where Mason
J laid down the basic principle in these terms:
“but an irregularity in the proceedings does not mean an incorrect judgment; it refers not to
the result, but to the methods of the trial, such as for example, some high-handed or mistaken
action which has prevented the aggrieved party from having his case fully and fairly
determined.”
The Goldfields Investment qualification to this general principle dealt with two situations. The
one is where the decision-making body misconceives its mandate, whether statutory or
consensual. By misconceiving the nature of the inquiry a hearing cannot in principle be fair
because the body fails to perform its mandate. Goldfields Investment provides a good
example. According to the applicable Rating Ordinance the aggrieved person was entitled to
appeal to the magistrates’ court against the value put on property for rating purposes by the
local authority. The appeal was not an ordinary appeal but involved, in terms of the Ordinance,
a rehearing with evidence. The magistrate refused to conduct a rehearing and limited the
inquiry to a determination of the question whether the valuation had been ‘manifestly
untenable’. This meant that the appellant did not have an appeal hearing (to which it was
entitled) at all because the magistrate had failed to consider the issue prescribed by statute.
The magistrate had asked himself the wrong question, that is, a question other than that which
the Act directed him to ask. In the sense the hearing was unfair. Against that setting the words
of Schreiner J should be understood.
‘The law, as stated in Ellis v Morgan (supra) has been accepted in subsequent cases, and the
passage which has been quoted from that case shows that it is not merely high-handed or
arbitrary conduct which is described as a gross irregularity; behaviour which is perfectly well-
intentioned and bona fide, though mistaken, may come under that description. The crucial
question is whether it prevented a fair trial of the issues. If it did prevent a fair trial of the issues
then it will amount to a gross irregularity. Many patent irregularities have this effect. And if
from the magistrate’s reasons it appears that his mind was not in a state to enable him to try
the case fairly this will amount to a latent gross irregularity. If, on the other hand, he merely
comes to a wrong decision owing to his having made a mistake on a point of law in relation to
the merits, this does not amount to gross irregularity. In matters relating to the merits the
magistrate may err by taking a wrong one of several possible views, or he may err by mistaking
or misunderstanding the point in issue. In the latter case it may be said that he is in a sense
failing to address his mind to the true point to be decided and therefore failing to afford the

21 Ellis v Morgan; Ellis v Dessai 1909 TS 576 at 581.

parties a fair trial. But that is not necessarily the case. Where the point relates only to the
merits of the case, it would be straining the language to describe it as a gross irregularity or a
denial of a fair trial. One would say that the magistrate has decided the case fairly but has
gone wrong on the law. But if the mistake leads to the Court’s not merely missing or
misunderstanding a point of law on the merits, but to its misconceiving the whole nature of the
inquiry, or of its duties in connection therewith, then it is in accordance with the ordinary use
of language to say that the losing party has not had a fair trial. I agree that in the present case
the facts fall within this latter class of case, and that the magistrate, owing to the erroneous
view which he held as to his functions, really never dealt with the matter before him in the
manner which was contemplated by the section. That being so, there was a gross irregularity,
and the proceedings should be set aside.’22

[41] The appellant sought refuge in the expression ‘obiter dicta comments’.
However, that hollow euphemism is neither an accurate nor a fair reflection of what
happened. Tellingly, orders of court can hardly attract the appellation ‘obiter’.  There
was no attempt whatsoever by the appellant to justify the orders granted by him. Nor
was there any attempt to defend them. That is hardly surprising because none of those
orders had been sought by any of the parties before him. He took it upon himself to
mero motu raise a range of issues and then to pronounce on them; thus in effect
becoming a judge in his own cause. In so doing, he allowed his personal feelings of
disquiet to intrude upon the discharge of his judicial duty. Not just that, the reach of
his orders went way beyond the strictures of the matters that served before him.

[42] Judges speak through their judgments. For a military judge to say of senior
officers in the Defence Force that ‘[his] court ruling provides the factual basis’ upon
which he is of the ‘prima facie view’ that there should be an investigation to determine
whether their conduct amounts to ‘unethical and/or unprofessional conduct’ or
‘Contempt of Court’ or that their ‘Officer’s Deeds of Commission’ be withdrawn, is a
most serious matter. There could however not be any ‘factual basis’ to speak of,
because no evidence had been placed before the appellant. The reference to ‘factual
basis’, which, in truth, is a rendition in the appellant’s judgment of his personal views,

22 Goldfields Investment Ltd fn 18 above at 560-561.

is thus inapposite and misleading. Had the orders been acted upon, the potential for
harm (which would have gone way beyond just reputational harm) to the officers
concerned was immense. It is no answer to say, as the appellant does, that his orders
were not acted upon. That was purely fortuitous. He obviously intended for them to
have force. Why else would he otherwise have issued them?

[43] A judicial officer can only perform his demanding and socially important duty
properly if he also stands guard over himself.23 It may be said that the appellant
breached several canons of good judicial behaviour. He was obliged to conduct the
trials before him in accordance with rules and principles that the law requires. He
failed. Basic tenets of judicial propriety and fairness were ignored. Language,
particularly in the context of the courtroom, is important and in this case, there are
several instances where it was been singularly unfortunate. The appellant, by his
language, tone and manner, seems to have overlooked the usual disinterested role of
a judge in a trial. His preoccupation with issues that had become all-consuming made
it difficult for him to objectively and dispassionately decide matters that came before
him from a position of relative detachment. This bent or predisposition also meant that
he deprived himself of the advantage of calm and dispassionate observation.

[44] As Harms DP pointed out in National Director of Public Prosecutions v Zuma:
‘. . . in exercising the judicial function judges are themselves constrained by the law. The
underlying theme of the court’s judgment was that the judiciary is independent; that judges
are no respecters of persons; and that they stand between the subject and any attempted
encroachments on liberties by the executive . . . This commendable approach was
unfortunately subverted by a failure to confine the judgment to the issues before the court; by
deciding matters that were not germane or relevant; by creating new factual issues; by making
gratuitous findings against persons who were not called upon to defend themselves; by failing
to distinguish between allegation, fact and suspicion; and by transgressing the proper
boundaries between judicial, executive and legislative functions.
Judges as members of civil society are entitled to hold views about issues of the day and they
may express their views provided they do not compromise their judicial office. But they are

23 S v Sallem 1987 (4) SA 772 (A).

not entitled to inject their personal views into judgments or express their political preferences.
. .24

[45] Thus, owing to his erroneous views and his preoccupation with issues that
affected him personally, which he impermissibly injected into his judgments, one
would have to say that the appellant wholly misconceived the nature of the enquiry
and his duties in connection therewith.25 Accordingly, he never truly applied his mind
to the issues before him and wrongly decided a range of issues that were not properly
before him. Those were issues justiciable on review.26

[46] It follows that the appeal in respect of the review application must fail.

The cross application
[47] The appellant did not seek to review and set aside the various decisions of
which he complained.  In the cross application, which did not squarely meet the review
application, he contented himself with a series of what may be described as ‘abstract’
or ‘hypothetical’ constitutional challenges. In that regard what was said by Kriegler J
in Ferreira v Levin NO bears repeating:
‘The essential flaw in the applicants' cases is one of timing or, as the Americans and,
occasionally the Canadians call it, "ripeness". That term has a particular connotation in the
constitutional jurisprudence of those countries which need not be analysed now. Suffice it to
say that the doctrine of ripeness serves the useful purpose of highlighting that the business
of a court is generally retrospective; it deals with situations or problems that have already
ripened or crystallised, and not with prospective or hypothetical ones. Although, as Professor
Sharpe points out and our Constitution acknowledges, the criteria for hearing a constitutional
case are more generous than for ordinary suits, even cases for relief on constitutional grounds
are not decided in the air. And the present cases seem to me, as I have tried to show in the

24 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1)
SACR 361 (SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) paras 15 and 16.
25 See also Telcordia Technologies Inc v Telcom SA Ltd fn 19 above paras 72 – 79.
26 Local Road Transportation Board v Durban City Council 1965 (1) SA 586 (A) at 598A-D.

parody above, to be pre-eminent examples of speculative cases. The time of this Court is too
valuable to be frittered away on hypothetical fears of corporate skeletons being discovered.’27

[48] In a similar vein, in Coin Security Group (Pty) Ltd v SA National Union for
Security Officers,28 Plewman JA quoted with approval from the speech of Lord Bridge
of Harwich in the case of Ainsbury v Millington [1987] 1 All ER 929 (HL), which
concluded at 930g:
‘It has always been a fundamental feature of our judicial system that the Courts decide
disputes between the parties before them; they do not pronounce on abstract questions of law
when there is no dispute to be resolved’.

[49] The constitutional challenge to ss 101 and 102 of the Defence Act 42 of 2002,
can be disposed of quite easily. Section 101 is headed ‘Convening boards of inquiry’.
Subsection 1 provides:
‘The Minister, the Secretary for Defence or the Chief of the Defence Force may, at any time
or place, convene a board of inquiry to inquire into any matter concerning the Department,
any employee thereof or any member of the Defence Force or any auxiliary service, any public
property or the property or affairs of any institution or any regimental or sports funds of the
said Force, and to report thereon or to make a recommendation.’

[50] At the bar, we were informed that the Defence Force would not be proceeding
with the BOI, which had been held in abeyance pending the review application. This
means that the issue, certainly as between the appellant and the Defence Force, has
become moot. And, given the reservations expressed by the new AG himself as to the
appropriateness of invoking those provisions for application to a military judge, as well
as the unlikelihood of a recurrence of the question in the future, there plainly is no live
issue as between the present parties upon which this Court need speak. Thus,
however the question is answered, the position of the parties will remain unaltered

27 Ferreira v Levin NO & others; Vryenhoek and Others v Powell NO & others [1995] ZACC 13; 1996
(1) SA 984 (CC); 1996 (1) BCLR 1 para 199.
28 Coin Security Group (Pty) Ltd v SA National Union for Security Officers & others [2000] ZASCA
137; 2001 (2) SA 872 (SCA) para 9.

and the outcome, certainly as far as this case is concerned, will be a matter of
complete indifference to them.

[51] The same may be said of the second constitutional challenge. No evidence
whatsoever was adduced that the appellant faced removal for whatever reason as a
military judge. It was stated by the appellant:
‘223
I further submit that section 17 of the MDSMA is unconstitutional to the extent that it
places the power to remove military judges in the hands of members of the executive.
Section 17 empowers the Minister, acting upon the recommendation of the [AG], to
remove a military judge due to incapacity, incompetence or misconduct.
As explained above, the [AG] is a member of the executive who is answerable to the
Minister and may be dismissed or suspended by the Minister. The [AG] is not an independent
actor by any measure.
. . .
As indicated above, it is constitutionally impermissible for members of the executive to
hold the power to exercise discipline over judicial officers.
This unconstitutional state of affairs is aggravated by the fact that the determination of
whether a military judge is fit for office is vested exclusively in the [AG] and the Minister. There
is no requirement that this determination be made by an independent body that is separate
from the executive.
On this basis, section 17 of the MDSMA is an unconstitutional breach of the
requirements of judicial independence.’

[52] This constituted the high water mark of the appellant’s case. In it, there is not
the faintest hint that the AG had even contemplated a recommendation to the Minister
that the appellant be removed, much less that the Minister had ever considered doing
so. There is no suggestion in the papers that the invocation of s 17 of the MDSMA
had so much as even featured in the thinking of either of them.

[53] Like the second constitutional challenge, the third, too, rested not upon a true
factual foundation, but instead an entirely speculative hypothesis. In the document,
styled ‘Military Judges’ concerns . . .’, the appellant had initially expressed the view
that: ‘Sec 14(1)(b) MDSMA might be unconstitutional’; the appointment for a ‘fixed
term . . . does not meet the requirement that the military judge shall have security of
tenure’; and, ‘there may have been Executive interference in the functioning of the
Military Courts and/or the assignment of the Military Judges for 2014/15’.
Subsequently, in his judgment, the appellant touched on aspects ‘regarding the
constitutionality of the assignment of military judges’, which included ‘the delay in the
assignment of Military Judges in general (including that of the Military Judge) in these
particular cases’; a lack of awareness of the ‘objective criteria required for an
assignment as a Military Judge’; and, the ‘lack of tenure of Office of a Military Judge’.

[54] What the quoted excerpts show is not just a manifest inability to properly
articulate the complaint, but also a constantly evolving one. It grew from the rather
vague assertion that s 14(1)(b) ‘might be unconstitutional’ or ‘there may have been
Executive interference’, to a challenge the precise contours of which still remain to be
clearly defined. Shifting targets, it goes without saying, can hardly conduce to clarity.
Thus, by the time that the counter application had come to be filed, the appellant had
set his sights on s 15, not s 14 as presaged in his earlier utterances.

[55] Despite the fact that s 15 is an extension of the Minister’s powers under s 14,
and the two sections being inextricably linked to each other, in the case, as it evolved,
the appellant no longer had any quarrel with the power afforded to the Minister by s
14 to assign an officer to the function of a military judge. Nor did he have any quarrel
with the power of the Minister under s 15 to make any assignment contemplated in ss
13 and 14 for a fixed period (whatever the duration of that period may be) or coupled
to a specific deployment, operation or exercise (such as by way of example as debated
at the bar a foreign deployment). This is hardly surprising because s 15 relates to the
assignment of officers to the whole range of functions envisaged in Chapter 3, not just
that of a military judge.

[56] Accordingly, the constitutional challenge as it eventually came to be articulated
on the papers, was a far more narrowly circumscribed one. In that regard, the
appellant stated:
‘240
I regard my time as a military judge as the highlight of my career. An appointment and
assignment as a military judge is a prestigious event that confers greater status and respect.
As a result, it is reasonable to anticipate that military judges may be inclined to temper their
reviews or adjust their judgments to secure further assignments. At the very least, it creates
a reasonable apprehension that these pressures might be brought to bear on military judges.
. . .
In these circumstances, renewable terms would lead a reasonable person, who is
aware of the context, to form the impression that military judges and senior military judges
lack sufficient institutional independence.
Therefore, I submit that on a proper interpretation of section 15 of the MDSMA, the
Minister (acting on the recommendation of the [AG]) is not empowered to assign military
judges on renewable terms.
243.1 Section 15 does not give the Minister any express power to make renewable
assignments of military judges: It provides that assignments for all officers under Chapter 3 of
the Act (included prosecutors, defence counsel and military judges) “shall be for a fixed period
or coupled to a specific deployment, operation or exercise”. No mention is made of renewable
assignments.’

[57] However, once it is accepted that the Minister can assign officers to the function
of a military judge and can do so for a fixed period of whatever duration, it is difficult
to see why the Minister cannot renew such an appointment. It must be said that there
can be little to choose between a series of successive appointments for a fixed period
and the renewal of an appointment after it has run its term. Here as well, the case
advanced in support of the s 15 challenge is a purely conjectural one. It rests on the
assertion that it may be ‘reasonable to anticipate that military judges may be inclined
to temper their reviews or adjust their judgments to secure further assignments’. But,
once again there is nothing to suggest that any military judge has been put to such a
choice. To suggest that a judge may be conscripted to one or other end is a most
serious allegation. It ill behoves the appellant to raise an allegation such as this, in this

vague and unsubstantiated fashion. The insinuation that a judge may ‘adjust a
judgment’ to ‘secure further assignments’ is nothing short of scandalous. Absent a
proper factual foundation (of which there is none) any apprehension of such possibility
can hardly be reasonable.

[58] What the appellant really seeks is to have this Court express a view on legal
issues that he hopes to have decided, which would not in any way affect his position
relative to the Defence Force. No doubt, any future matters (should there be such) will
be decided by that court, as this was, on its own peculiar facts. It must also be
accepted, as the appellant recognised, that none of the other military judges shared
his constitutional concerns. He also appreciated that whatever he said was to raise
awareness, had no precedential significance and was thus not binding on his
colleagues.

[59] In effect what the appellant is seeking is legal advice from this Court in respect
of legal disputes that may or may not arise in the future. But, as Innes CJ observed in
Geldenhuys & Neethling v Beuthin:
‘After all, Courts of Law exist for the settlement of concrete controversies and actual
infringements of rights, not to pronounce upon abstract questions, or to advise upon differing
contentions, however important.’29
In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs, the
Constitutional Court echoed what the learned Chief Justice had stated over eight
decades earlier when it said:
‘A case is moot and therefore not justifiable if it no longer presents an existing or live
controversy which should exist if the court is to avoid giving advisory opinions on abstract
propositions of law.’ 30

29 Geldenhuys & Neethling v Beuthin 1918 AD 426 at 441.
30 National Coalition for Gay and Lesbian Equality & others v Minister of Home Affairs & others [1999]
ZACC 17; 2000 (2) SA 1; 2000 (1) BCLR 39 para 21 at footnote 18.

[60] It follows that the appeal against the dismissal of the cross application must
also fail.

[61] Costs remain: The high court ordered the appellant to pay the costs of the:
(a) ‘review of the orders granted on 14 October 2016’ (para 6); and (b) counter-
application (para 10). In arriving at that conclusion, the high court held that there was
‘no reason to deviate from the principle that costs follow the result’. However, that was
to ignore the well-established principle that ‘in general, the courts will only grant a
costs order against a judicial officer in a dispute over the performance of their judicial
functions where bad faith on their part has been proven’.31 The high court did not enter
into that enquiry and made no findings of bad faith or other serious misconduct. In
respect of the counter application, the high court had no regard to the Biowatch
principle pertaining to costs in constitutional matters.32 On this basis, those costs
orders cannot stand, irrespective of the outcome of the appeal.

[62] In the result, save for setting aside paragraphs 6 and 10 of the order of the high
court, the appeal is dismissed.

_________________
V M PONNAN
JUDGE OF APPEAL

_________________
M CHETTY
ACTING JUDGE OF APPEAL

31 Pangarker v Botha [2014] ZASCA 78; [2014] 3 All SA 538 (SCA); 2015 (1) SA 503 (SCA) para 39.
32 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC);
2009 (10) BCLR 1014 (CC) at paras 21-24.

APPEARANCES

For appellant:

G Marcus SC, C McConnachie and M Marongo
Instructed by:

Griesel & Breytenbach Attorneys

Phatshoane Henney Attorneys, Bloemfontein

For 1st to 4th respondents:
EK Tsatsi SC and TC Kwinda
Instructed by:

The State Attorney, Pretoria

State Attorney, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

13 December 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Lieutenant Colonel KB O’Brien NO v The Minister of Defence and Military Veterans and Others
(1271/2021) [2022] ZASCA 178 (13 December 2022)
Today, the Supreme Court of Appeal (SCA) handed down judgment dismissing an appeal, save for
setting aside paragraphs 6 and 10 of the order, against the decision of the Gauteng Division of the High
Court, Pretoria (the high court) which upheld an application by the Minister of Defence and other parties
associated with the South African National Defence Force (SANDF) to review and set aside certain
orders made by the appellant, Lieutenant Colonel O’Brien, a former military judge. In 2014, the appellant
took to making remarks concerning the brief renewable assignments of military judges and the
implications of this for the independence of military courts.  He expressed his views while presiding over
matters as a military judge. His remarks caused disquiet within the SANDF, with the independence of
the military courts being called into question.

On 5 December 2015, the former Director: Military Judges (the DMJ), Brigadier General Slabbert, held
a meeting with the appellant after he raised the constitutionality of assignments of military judges in
open court. In the course of that meeting, the appellant was instructed not to use the military court as a
forum for 'awareness campaigns and constructive criticism'.

In August 2016, the appellant presided in two trials where the accused encountered substantial delays
before their matters could come before the military courts. This prompted an application on behalf of
the accused for their matters to be struck from the roll on account of the unreasonable delay. The
appellant dismissed the applications but seized the opportunity to repeat his concerns about the
constitutionality of appointing military judges on brief renewable assignments, and its implications for
the independence of military courts. The appellant issued orders in terms of s342A of the Criminal
Procedure Act, directing officers in charge of the SANDF to investigate possible disciplinary action
against members of staff, as well as the Minister of Defence in respect of her failure to assign military
judges for a specific period. He further directed that his ruling be served on the President, and for the
President to indicate what steps he intended taking against the Minister of Defence.

In the aftermath of the ruling and orders, the appellant was counselled by the Director of Military Judges
that if he continued on this path, future assignments to him as a military judge, were at risk. It was

suggested to the appellant that he should recuse himself from the pending trials before him, in light of
his views. The appellant thereafter informed the parties that he would be recusing himself, but not
without first bringing to their attention that the Adjutant-General (AG) had decided to appoint a Board of
Inquiry into his conduct as a military judge – described as his ‘constitutional exclamations’. The
appellant responded by threatening court action if the SANDF proceeded with the Board of Inquiry. He
then issued various orders directing the AG and others to serve a copy of his rulings of the General
Council of the Bar (GCB), the Judicial Service Commission and the Minister of Defence to consider
what steps, if any, they would take against certain named members of the defence force. In the period
that followed, the two trials over which the appellant was due to preside were allocated to other military
judges for finalisation. The appellant was not assigned further duties as a military judge.

Once the new AG had been appointed, a view was taken that the Board of Inquiry was an inappropriate
mechanism to inquire into the appellant’s conduct. After a lengthy delay, the Minister of Defence and
other respondents brought review proceedings to set aside the orders issued by the appellant, except
for those where he recused himself. The appellant opposed the application which sought to set aside
his orders. Although he proclaimed not to defend the substance of his rulings, he proceeded to oppose
the application on grounds of undue delay, that the SANDF lacked standing to review his rulings and
that the review was without merit. He brought a counter application challenging the constitutionality of
sections 101 and 102 of the Defence Act on the basis that it allows for a member of the Executive to
convene a Board of Inquiry to investigate military judges. In addition, he challenged the provisions of
sections 17 of the Military Discipline Supplementary Measure Act 16 of 1999 to the extent that it
empowers the Minister, acting on the recommendation of the AG, to remove a military judge. The third
challenge was directed at section 15 of the MDSMA which empowers the Minister, acting on the
recommendation of the AG, to assign military judges for renewal periods.

The review application succeeded before the high court, which also dismissed the constitutional
challenges. It ordered the appellant to pay the costs occasioned by the constitutional challenge, as well
as the application to set aside orders which followed his recusal. The matter came before the SCA with
the leave of the high court.

The SCA found no grounds to interfere with the decision of the high court to condone the delay in
bringing the review proceedings, based in part on the prospects of success in setting aside the offending
orders issued by the appellant. The appellant’s orders directed a host of bodies, including the General
Council of the Bar, the Chairperson of the Magistrate’s Commission and the Chairperson of the Law
Society of the Northern Provinces to take certain measures against named members of the SANDF.
Such orders would remain binding until set aside by a court of competent jurisdiction. The SCA found
that respondents could not be faulted for bringing the review application to set aside the offending
orders, particularly where orders are issued against persons who were not parties to the litigation.

The Court also found that the appellant, as a judicial officer, sought to give expression to his personal
views of the military courts, and the extent to which he considered it lacking in independence. In doing
so, he breached several canons of good judicial behaviour. His pre-occupation with these issues blurred

his objectivity. In the result, he did not truly apply his mind to the issues before him and accordingly the
orders issued could not stand.

As to the challenges directed at various statutory provisions providing for the establishment of a Board
of Inquiry to investigate military judges; the powers of the Minister to remove a military judge and the
assignment of military judges to brief, renewable periods – all were dismissed on grounds of being
either ‘abstract’ or ‘hypothetical’. The issue pertaining to the Board of Inquiry became moot once the
new AG expressed the inappropriateness of this mechanism being applicable to a military judge. There
was therefore no live issue between the parties.

Similarly, there was no evidence of any attempt to remove the appellant from his position as a military
judge, and no basis to challenge the provisions of s17 of the MDSMA. While the appellant only sought
to challenge s15 of the MDSMA allowing the Minister to appoint military judges for fixed, renewable
periods, there was no challenge to s14 in respect of the Minister’s power to assign military judges. The
SCA found that there was nothing to support the contention that military judges may be inclined to adjust
their judgments to secure further assignments. Accordingly, the counter application could not succeed.

The SCA set aside the high court’s decision in which the appellant was ordered to pay the costs of the
failed constitutional challenge and those of the review pertaining to the decision to recuse himself in
two trials. The SCA considered that the Biowatch principles should apply. Moreover, the proceedings
in the high court were instituted against the appellant in his capacity as a judicial officer, without any
finding of bad faith on his part. The order of costs against the appellant could not stand.

Accordingly, the appeal against the decision of the high court, except for the issue of costs, was
dismissed.

~~~~ends~~~~