Krohn v the Minister for Defence of the Union of South Africa and the Special Court under Martial Law Regulations Pretoria

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and De Villiers AJA
• Judgment Date: 02 March 1915
• Citation: 1915 AD 191
• Hearing Date: 13 February 1915
• Court: Appellate Division

Innes, C.J.:

By Proclamation dated 12th October, 1914, under the hand and seal of His Excellency the Governor-General and Commander-in-Chief, Martial Law was proclaimed throughout the Union. The document recited the existence of a state of war between the British and German Empires; the fact that by means of a widespread secret propaganda the Government of German South-West Africa had endeavoured to seduce the citizens of the Union from their allegiance; and the partial success of such efforts as shown by the circumstance that a portion of the Union Forces were in rebellion and had invaded the Northern portion of the Cape Province. It further recited that there was reason to think that the, said Government had corrupted other citizens of the Union under the pretext of favouring the establishment of a Republic in South Africa, and that it was considered necessary to take effective measures to protect and defend the interests of the Union from these treacherous attacks from within and without, and to that end to declare Martial Law. Then followed a declaration that all magisterial districts within the Union were, until further notice placed under Martial Law as understood and administered in time of war.

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The Proclamation ended by calling upon all persons to obey regulations issued in pursuance thereof by the Minister of Defence and orders of military commanding officers, not being in conflict with such regulations. On the 17th October a number of regulations were promulgated by the Minister of Defence by virtue of the authority thus conferred. Certain offences were constituted; the use of seditious language (as therein defined); the unauthorised carrying of fire-arms, and any unlawful communication with the enemy or with any person in armed rebellion. Powers of arrest and march were provided for and also penalties for contravention. Jurisdiction to try and to punish under the regulations was expressly conferred upon military courts. In the Union Gazette of 1st December the Minister of Defence notified the constitution of a special court of three members (being either advocates or magistrates of 10 years' standing) for the trial of offences under Martial law; among the offences specified, was the contraventions of any regulations made by virtue of Martial Law.

The appellant Krohn, who is a builder and contractor residing at Pretoria, was thereafter arrested under Martial Law and detained in the local gaol; and he was in due course served with an indictment charging him on four counts with having used seditious language in contravention of the regulations. The words imputed were of an aggravated character, having reference directly to the war and to the local rebellion which had in the meantime ensued. Krohn applied to the Transvaal Provincial Division for an interdict restraining any form of trial proceedings by the special court, on the ground that that body had no authority to exercise judicial functions, or to try him or any other person. The matter came before WESSELS, J., who dismissed the application. We are now asked to say that he was wrong, and to grant the relief which he refused. In arriving at a decision on that point, we must of course have regard to the facts which were before him. But before discussing these facts it will be convenient to deal with the question which lies at the root of the whole enquiry; and that is the position occupied by courts of justice upon the proclamation of Martial Law.

One of the features of the English constitution, a feature reproduced in the self-governing dominions is the absolute

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supremacy of the law. Every subject, high or low, is amenable to the law, but none can be punished save by a properly constituted legal tribunal. If any man's rights or personal liberty or property are threatened, whether by the Government or by a private individual, the Courts are open for his protection. And behind the Courts is ranged the full power of the State to ensure the enforcement of their decrees. But there is an inherent right in every State, as in every individual to use all means at its disposal to defend itself when its existence is at stake; when the force upon which the Courts depend and upon which the constitution is based is itself challenged. Under such circumstances the State may be compelled by necessity to disregard for a time the ordinary safeguards of liberty in defence of liberty itself, and to substitute for the careful and deliberate procedure of the law a machinery more drastic and speedy in order to cope with an urgent danger. Such a condition of things may be brought about by war, rebellion or civil commotion; and the determination of the State to defend itself is announced by the proclamation of Martial Law. But, in the absence of statutory provision upon the subject - and none exists here - such a proclamation clothes the Government with no authority, and invests it with no power which it did not possess before. The right to use all force necessary to protect itself, whether against external or internal attack, is an inherent right. The proclamation is merely a notification to all concerned that the right in question is about to be exercised and upon certain lines.

Under English constitutional practice the responsibility for resorting to force in self-defence, and the responsibility for individual acts done in the exercise of that right, rests upon the shoulders of those who authorise and execute the measures taken. The Parliaments both of England, and (so far as I am aware) of the self-governing dominions, while they have refrained from tying the hands of those in authority, have refused to regularise in advance any departure from the ordinary law, or to endow the Government with exceptional powers for exceptional emergencies. The result has been to compel those responsible for the safety of the State to act upon their own judgment in the first instance, and to apply to Parliament for an Act of Indemnity afterwards. Such a measure

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is manifestly required after every exercise of Martial Law powers. For though there are many acts which when done in defence of the State, would be protected by the common law - as when a General in the field kills those in arms against the Government, seizes property or restricts liberty in furtherance of his actual operations - still there are many other which though performed reasonably, and in good faith, fall outside the protection of the law. And for all such acts to a special indemnification is necessary to safeguard the doer against subsequent legal proceedings. Now one of the results of this attitude on the part of Parliament has been to raise difficult questions with regard to the position of Courts of Law, both during and after the operation of a proclamation of Martial Law. Regarded from a constitutional standpoint it would seem that so long as the ordinary tribunals were open, and were not prevented from exercising their functions by civil disturbance or by war, the mere issue of such a proclamation could in no way release them from the duty of investigating grievances due to the special measures taken, and of granting relief in appropriate cases. But the consideration of such matters would inevitably raise the question whether the acts complained of were justified as having been necessarily done in defence of the State, and might involve an enquiry not easy to undertake with the ordinary machinery and material at the disposal of the Courts. The point, however, of the extent to which the investigation of the necessity for irregular acts done under Martial Law could be considered to be limited by the fact that a state of war was actually in existence at the time, never arose for practical decision in England until a recent date. But the views of eminent Judges and constitutional lawyers upon the general question of Martial Law had been embodied in charges to Grand Juries in recorded opinions and in well-known text books. And the weight of authority was certainly in favour of the view that the exercise of exceptional powers by the Government and its officers in defence of the State was strictly limited by the necessities of the situation, and that as concerned the treatment of offenders they should be dealt with by the ordinary courts, save when necessity arising from actual resistance compelled a different course. In 1902, however, the petition of D. F. Marais (1902, A.C., p. 109) came before the Privy Council; and the decision is one

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of such for-reaching importance in regard to the question under consideration that a brief statement of the facts and the conclusion arrived at is desirable. A state of war existed between England and the two South African Republics, and Martial Law had been proclaimed over large areas of the Cape Colony including the district of the Paarl, about 35 miles from Cape Town, and the district of Beaufort West, more than 300 miles distant from that place. There were no actual hostilities proceeding in either district, and the ordinary courts of law were open. Marais, a resident of the Paarl, was apprehended without warrant by the military authorities, and three days later was removed to the town of Beaufort West and lodged in the local gaol. He petitioned the Supreme Court to release him...