Council of Review, South African Defence Force, and Others v Mönnig and Others

• Jurisdiction: South Africa
• Judge: Corbett CJ, Van Heerden JA, F H Grosskopf JA, Nienaber JA and Preiss AJA
• Judgment Date: 15 May 1992
• Citation: 1992 (3) SA 482 (A)
• Hearing Date: 15 November 1991
• Court: Appellate Division

Corbett CJ:

In terms of s 4(1)(b) of the Protection of Information Act 84 of 1982 it is an offence to disclose certain types of documents or F information relating to military matters and of a secret or confidential nature to an unauthorised person. And s 18(2) of the Riotous Assemblies Act 17 of 1956 makes it an offence for any person to conspire with any other person to aid or procure the commission of or to commit an offence, statutory or common law.

On 4 February 1988 the three respondents, who were then rendering G national service in the Citizen Force in terms of the Defence Act 44 of 1957 ('the Act'), were convicted by an ordinary court martial of having contravened s 4(1)(b) of Act 84 of 1982, read with s 18(2) of Act 17 of 1956; and each was sentenced to 18 months' detention. In addition, the third respondent, who then held the rank of corporal, was reduced to the H ranks. The respondents were tried in terms of the Military Discipline Code (which is to be found in the First Schedule to the Act). For this I shall use the abbreviation 'MDC'. A power to try members of the Defence Force for 'civil offences' (ie offences in respect of which a penalty may be imposed by a court of law, not being offences created by the MDC itself) is, with certain exceptions, conferred on a military court by s 56 of the I MDC. The trial was held in camera. The court martial was presided over by the third appellant who held the rank of Colonel. The other two members of the court held the ranks of Lieutenant-Commander and Major respectively. A Judge Advocate was not appointed to the court.

In terms of ss 96 and 98 of the MDC the sentence of a court martial may J not be enforced or executed unless and until the finding and sentence of

Corbett CJ

A the court have been confirmed by the convening authority. In this case the convening authority, second appellant, confirmed the convictions and sentences on 4 March 1988.

The respondents thereupon made application under s 112 of the MDC for the review of their case by a council of review, originally the first appellant. The council of review, constituted as provided for in s B 145(1)(b)(i) of the MDC, heard the review application and decided on 9 June 1988 to confirm the convictions. However, it varied the sentences by reducing those imposed on first and second respondents to eight months' detention and that of third respondent to six months' detention (and reduction to the ranks).

C Section 107 of the Act provides that there shall be no appeal from the finding or sentence of a military court, but that nothing in the Act shall be construed as derogating from the right of any Division of the Supreme Court to review the proceedings of a military court. Such a right of review exists at common law (see Union Government and Fisher v West 1918 D AD 556 at 572-3; Mocke v Minister of Defence and Others 1944 CPD 280 at 284-5). Soon after the announcement of the decision of the council of review the respondents brought such review proceedings in the Cape of Good Hope Provincial Division, claiming orders setting aside the decisions of the court martial, the convening authority and the council of review. The E review was opposed by second and third appellants, but first appellant (the council of review) did not formally oppose and abided the judgment of the Court.

The application was heard by a Full Bench consisting of Friedman, Howie and Conradie JJ. The Court allowed the review and ordered that the proceedings and decisions of the court martial, the convening authority F and the council of review be set aside and that second and third appellants pay the costs. The judgment of the Court, delivered by Conradie J, has been reported: see Mönnig and Others v Council of Review and Others 1989 (4) SA 866 (C). I shall refer to this as 'the reported judgment'. With the leave of the Full Bench, the appellants appealed to this Court G against the whole of the judgment and order of the Full Bench. Shortly after the appeal was noted first appellant withdrew its appeal and indicated that it abided the decision of this Court.

In the Court a quo a number of review grounds were advanced, but of these only one was successful. It was to the effect that the court martial H ought to have recused itself. In order to appreciate the basis for this finding it is necessary to make some reference to the substance of the charges preferred against the respondents, to the evidence adduced in substantiation thereof and to a defence raised by second respondent (who figured as accused No 1 before the court martial). I

At the time of the events which formed the basis of the charges against them, respondents were stationed at the Castle, in Cape Town. The first respondent, a trained teacher, was employed there in the Communication Operations Department ('Komops') and his duties entailed writing articles for a magazine published by the Defence Force. (He figured as accused No 2 J before the court martial.) The second respondent, also a trained teacher,

Corbett CJ

A was employed at the Castle as a storeman in Komops; and the third respondent (accused No 3 before the court martial) was employed there, in Komops, in a clerical capacity.

It appears that the three respondents, together with a fellow national serviceman at the Castle, corporal Swart, were in the habit of meeting B during tea breaks and indulging in what were described as 'intellectual' discussions about a range of topics, including politics and current affairs. At a certain stage Swart, who worked in the intelligence section, came to the conclusion that the respondents were radically inclined to the left and he reported the position to the colonel in charge of his section. The colonel instructed Swart to keep his ear close to the ground and to C report to him anything of importance.

It appears that about this time Komops, acting with the sanction of higher authority, was conducting a covert campaign (including the dissemination of pamphlets, stickers and T-shirts and the spray-painting of graffiti on walls) designed to vilify and discredit an organisation D known as End Conscription Campaign ('ECC'), whose proclaimed objectives were to achieve an end to conscription into the South African Defence Force and to oppose militarisation (see End Conscription Campaign and Another v Minister of Defence and Another 1989 (2) SA 180 (C) at 184H). The Defence Force regarded ECC as being a hostile organisation and a threat to it: hence the covert campaign. E

The various actions taken in the implementation of this campaign and the involvement of the Defence Force therein came to the knowledge of the respondents. According to the second respondent, his reaction was one of 'moral outrage' because these acts were aimed at a legitimate organisation F and the means employed seemed to him to be both illegal and immoral. He

and the other respondents and Swart decided to expose the Defence Force's involvement in this campaign to the ECC and to this end to draw up a document setting out the relevant information and describing the Defence Force's intelligence system. Swart was asked to furnish documentary and G other Defence Force information to which the others did not have access.

Swart reported all of this to his colonel. A trap was set in the form of an arrangement whereby at a given time and place Swart would hand over to the respondents certain secret Army documents. This was done. The trap was sprung; and the respondents were arrested with the documents in their H possession. This all occurred on 14 December 1987. It was upon this basis that the respondents were charged with having conspired to disclose Defence Force documents and information, classified as secret or confidential, to unauthorised persons.

At the inception of the trial before the court martial counsel representing the second respondent objected to his client being tried by I the court on grounds which may be summarised...