Mönnig and Others v Council of Review and Others

• Jurisdiction: South Africa
• Judge: Friedman J, Howie J and Conradie J
• Judgment Date: 16 August 1989
• Citation: 1989 (4) SA 866 (C)
• Hearing Date: 01 June 1989
• Court: Cape Provincial Division

C Conradie J:

This application was, by virtue of an order made earlier pursuant to an application through the Chamber Book, heard in camera. First applicant (as accused No 2) was charged together with second and third applicants (as accused Nos 1 and 3) before an ordinary court martial presided over by the third respondent in terms of s 104(5)(b) of D the Defence Act 44 of 1957 ('the Act') read with ss 59(1)(b) and 71 of the Military Disciplinary Code (the 'MDC') comprising the First Schedule to that Act. Each accused was on 4 February 1988 convicted on the first alternative to the main count, of having contravened s 18(2) of the Riotous Assemblies Act 17 of 1956, read with s 4(1)(b) of the Protection E of Information Act 84 of 1982, namely of having conspired to disclose information of the kind protected by s 4(1)(b) to persons other than persons to whom they were authorised to disclose such information or to whom it might lawfully have been disclosed.

Each applicant was, on the same date as his conviction, sentenced to a period of detention of 18 months and third applicant was also reduced to F the ranks.

In terms of s 96 of the MDC a sentence of a court martial is not to be enforced or executed until the finding and the sentence have been confirmed; this is in terms of s 98 of the MDC to be done by the convening authority who, in the present case, was the second respondent. The confirmation, the legality of which is challenged by the applicants, G was given on 4 March 1988. The applicants then brought proceedings before the first respondent in terms of s 112 of the MDC.

The first respondent, acting under powers conferred upon it by s 115 of the MDC, endorsed the finding of guilty by the third respondent, but varied the sentences by substituting therefor detention for a period of eight months in respect of the first and second applicants and detention H for a period of six months as well as reduction to the ranks in the case of the third applicant.

The three applicants were national servicemen stationed at the castle, employed in clerical capacities. Second applicant was a storeman, first applicant was a journalist employed to write articles for a SADF I magazine, Kontak, and the third applicant was attached to the section of the public liaison officer. It became the habit of all three applicants and a Corporal Swart to gather at tea-time almost every day and engage in intellectual discussions and debate of a theological and political nature. Because the applicants displayed an interest in extra-parliamentary politics, Swart felt it his duty to report the J discussions to his colonel. Swart was told by the

Conradie J

A colonel to keep him informed. The applicants and Swart thereafter proceeded (in a discussion clandestinely tape-recorded by Swart) to discuss what information could be collected by them for disclosure to persons outside the military establishment. Swart then helped to entrap the applicants. It was arranged that all four would proceed out of the castle on 14 December 1987 to meet in a motor vehicle in an adjacent B parking area. Swart was again fitted with a recording apparatus to monitor their conversation. Armed with documents provided by his superiors, Swart met the three applicants and distributed documents to each once they had entered the motor vehicle. Upon the uttering of the password by Swart, the vehicle was encircled and the applicants were placed under arrest.

C The applicants argued before this Court that the findings and sentences of the third respondent as confirmed and varied by the first respondent and the confirmation by the second respondent of the proceedings before the third respondent were vitiated by reason of one or more of the following:

(1)

D That first respondent failed to apply its mind in finding on the evidence that the guilt of each of the applicants had been proved beyond a reasonable doubt. This submission, in the case of the first applicant, was amplified by contending that his version that he had all along intended, when the time came, to disclose the wrongful actions of the other applicants (and what E he believed to be the wrongful actions of Swart) to his superiors, that he was a counter-spy and therefore not really part of the alleged conspiracy at all, had been rejected by the third respondent as being improbable. This was not the proper test to apply and the third respondent had in that respect misdirected itself.

(2)

F That it had not on the evidence been established beyond reasonable doubt that the three applicants had proceeded beyond the stage of negotiation with each other to the stage of agreement required to constitute a conspiracy.

(3)

That the first respondent failed properly to apply its mind to the fact that the second respondent had neglected to properly G act as a confirming authority.

(4)

That the first respondent failed to apply its mind to the fact that the information to which the conspiracy related pertained substantially to the disclosure to outsiders of unauthorised and unlawful activities within the SADF, which information did not H constitute information protected by s 4(1)(b) of the Protection of Information Act 84 of 1982.

(5)

That first respondent failed to apply its mind to certain relevant factors with regard to the sentences imposed.

(6)

That the members of the court martial should have acceded to an I application by the second applicant to recuse themselves on the ground of partiality.

In terms of s 107 of the Act:

'There shall be no appeal from the finding or sentence of a military court, but nothing in this Act shall be construed as derogating from the right of any Division of the Supreme Court of South Africa to review the J proceedings of a military court.'

Conradie J

A The relevant principles relating to a review such as the one in the present case (which the applicants accept is a review 'in the ordinary sense') were restated as follows by Corbett JA (as he then was) in Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA 132 (A) at 152A - E:

B 'Broadly, in order to establish review grounds it must be shown that the president failed to apply his mind to the relevant issues in accordance with the "behests of the statute and the tenets of natural justice" (see National Transport Commission and Another v Chetty's Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735F - G; Johannesburg Local Road Transportation Board and Others v David Morton Transport (Pty) Ltd 1976 (1) SA 887 (A) at 895B - C; Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en Andere 1976 (2) SA 1 (A) C at 14F - G). Such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose; or that the president misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or that the decision of the president was so grossly unreasonable as to warrant D the inference that he had failed to apply his mind to the matter in the manner aforestated. (See cases cited above; and Northwest Townships (Pty) Ltd v Administrator, Transvaal, and Another 1975 (4) SA 1 (T) at 8D - G; Goldberg and Others v Minister of Prisons and Others (supra at 48D - H); Suliman and Others v Minister of Community Development 1981 (1) SA 1108 (A) at 1123A.) Some of these grounds tend to overlap.'

E The applicants' first contention is that the first respondent failed properly to apply its mind in holding that, on the evidence, the first applicant's guilt was established beyond reasonable doubt. The first applicant raised the defence that he embarked upon the compilation of the information with a view to disclosing to the authorities the ease with which the security of the SADF could be breached. The first F respondent rejected this defence.

It was submitted that the first respondent had lost sight of the true nature of the criminal burden of proof, and of the legal principle expressed as follows by Davis AJA in R v M 1946 AD 1023 at 1027:

G '... (T)he Court does not have to believe the defence story; still less does it have to believe it in all its details; it is sufficient if it thinks that there is a reasonable possibility that it may be substantially true',

or earlier by Greenberg J in R v Difford 1937 AD 370 at 373:

'... (N)o onus rests on the accused to convince the Court of the truth H of any explanation which he gives. If he gives an explanation, even if that explanation is improbable, the Court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal....'

I It was further submitted that the first respondent failed duly to apply its mind to the facts and to the correct legal principles in relation to the question whether the three applicants had proceeded beyond the stage of negotiations with each other to the stage of agreement, which is a required element of a conspiracy.

It is correct that agreement between alleged conspirators is a J requirement for a criminal conspiracy to exist:

Conradie J

A 'The agreement between the parties constitutes the actus reus of conspiracy. It is not necessary that they should have agreed upon the ways and means of carrying out their plan, but the parties must not be still negotiating towards agreement. Independent intention on the part of X and Y is insufficient; there must be a concurrence of their minds in an agreement to commit the crime in question, for "conspiracy is not merely a concurrence of...