President, Ordinary Court Martial, and Others v Freedom of Expression Institute and Others

• Jurisdiction: South Africa

President, Ordinary Court Martial, and Others v Freedom of Expression Institute and Others
1999 (4) SA 682 (CC)

1999 (4) SA p682

Citation	1999 (4) SA 682 (CC)
Case No	CCT 5/99
Court	Constitutional Court
Judge	Chaskalson P; Langa DP; Ackermann J; Goldstone J; Kriegler J; Madala J; Mokgoro J; O' Regan J; Sachs J; Yacoob J
Heard	May 25, 1999
Judgment	August 24, 1999
Counsel	E W Dunn SC (with him T W G Bester and J Q Hadiaris) for the appellants.; D B Spitz for the respondents.

Flynote : Sleutelwoorde

Constitutional practice — Courts — Constitutional Court — Powers F of — Declaration of invalidity of statutory provision — Appeal against such declaration by High Court in terms of s 172(2)(d) of Constitution of the Republic of South Africa Act 108 of 1996 — Statutory provisions declared invalid subsequently repealed by Act of Parliament — Section 172(2) not requiring Constitutional Court in all G matters to determine matters brought to it thereunder — Constitutional Court having discretion to decide whether it should deal with matter — In exercising discretion, Court to consider whether any order it may make would have any practical effect either on parties or on others — Certain provisions of Defence Act 44 of 1957 and Military H Discipline Code in First Schedule to Act relating to courts martial declared invalid by High Court — Such provisions repealed by Military Discipline Supplementary Measures Act 16 of 1999 — Basis upon which parties approached High Court having disappeared and grant of relief claimed, as well as any confirmation of order of constitutional invalidity, serving no purpose — Constitutional Court making no order in matter. I

Headnote : Kopnota

Section 172(2) of the Constitution of the Republic of South Africa Act 108 of 1996 does not require the Constitutional Court in all circumstances to determine matters brought to it under that subsection. At least where the provision declared invalid by a High Court has subsequently been repealed by an Act of Parliament, the Constitutional Court has a discretion to decide J

1999 (4) SA p683

whether or not it should deal with the matter. In this regard, the Court A should consider whether any order it may make will have any practical effect either on the parties or on others. (Paragraph [16] at 688E/F-F/G.)

The Court accordingly held, in an appeal in terms of s 172(2)(d) of the Constitution against the judgment and certain orders of the Cape Provincial Division of the High Court made in Freedom of Expression Institute and Others v President, Ordinary Court Martial, and Others 1999 (2) SA 471 in B which certain provisions of the Defence Act 44 of 1957 and the Military Discipline Code in the First Schedule to that Act relating to courts martial were declared invalid, that the Military Discipline Supplementary Measures Act 16 of 1999 had replaced all relevant aspects of the legislative framework upon which the dispute between the parties was based. The Court held further that the basis upon which the parties C had approached the High Court had disappeared and that the grant of the relief claimed, as well as any confirmation of an order of constitutional invalidity, could serve no purpose as the court martial proceedings against the third and fourth respondents, which had still been pending prior to the commencement of Act 16 of 1999, had been terminated pursuant to the provisions of s 44(2) of that Act. The D Court accordingly held that a decision on the constitutional validity of the impugned provisions of the Defence Act would have no practical effect on the parties to the litigation and there were no considerations of public policy which required a decision on the constitutional validity of the said provisions to be made. (Paragraphs [17] and [18] at 688G-I.) Accordingly, no order was made in respect of the appeal and confirmation proceedings. (Paragraph [25] at 691A/B.) E

Cases Considered

Annotations D

Reported cases

Freedom of Expression Institute and Others v President, Ordinary Court Martial, and Others 1999 (2) SA 471 (C): no order made in appeal and confirmation proceedings F

McDonald's Corporation v Johburgers Drive-Inn Restaurant (Pty) Ltd and Another; McDonald's Corporation v Dax Prop CC and Another; McDonald's Corporation v Johburgers Drive-Inn Restaurant (Pty) Ltd and Dax Prop CC 1997 (1) SA 1 (A): dictum at 14C distinguished

Natal Rugby Union v Gould 1999 (1) SA 432 (SCA): referred to G

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517): dictum in paras [93] - [98] applied

Premier, Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad 1998 (2) SA 1136 (SCA): distinguished

S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC) (1995 (2) SACR 748; 1995 (12) BCLR 1579): applied H

S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401): applied

Simon NO v Air Operations of Europe AB and Others 1999 (1) SA 217 (SCA): distinguished

Western Cape Education Department and Another v George 1998 (3) SA 77 (SCA): distinguished. I

Statutes Considered

Statutes

The Constitution of the Republic of South Africa Act 108 of 1996, s 172(2): see Juta's Statutes of South Africa 1998 vol 5 at 1-169

The Defence Act 44 of 1957 and Schedule 1: see Juta's Statutes of South Africa 1998 vol 1 at 3-153 and 3-200 et seq J

1999 (4) SA p684

The Military Discipline Supplementary Measures Act A 16 of 1999, s 44(2): see Government Gazette 1996 of 23 April 1999 at 44.

Case Information

Adjudication of a declaration of invalidity of statutory provisions in the Cape Provincial Division and appeal from such decision (Hlophe ADJP, Traverso J and Gihwala AJ), reported at 1999 (2) B SA 471. The facts appear from the judgment of Langa DP.

E W Dunn SC (with him T W G Bester and J Q Hadiaris) for the appellants.

D B Spitz for the respondents.

Cur adv vult. C

Postea (August 24).

Judgment

Langa DP:

Factual background D

[1] Third and fourth respondents, who are members of the South African National Defence Force (SANDF), appeared before an ordinary court martial [1] which had been convened under the provisions of the Defence Act 44 of 1957 (the Defence Act) and the Military Discipline Code [2] (the Code), on E charges relating to certain military intelligence source reports. It is not necessary for present purposes to go into the details of the charges.

[2] The proceedings in that forum were adjourned to enable the F respondents to launch an application to the High Court for the review and setting aside of two orders made by first appellant, who presided over the ordinary court martial. The first order, made on 4 December 1996 against third and fourth respondents, was to the effect that the entire proceedings of the court martial should be held in camera and that the proceedings themselves as well as the whole record of the case should be classified as secret. G

[3] The second order was given on 7 April 1997 pursuant to an application by the Freedom of Expression Institute (first respondent) and M & G Media (Pty) Ltd (second respondent), both of whom had not been part of the proceedings up to that stage. They approached the court martial, seeking access to the military intelligence source H reports and the record of the proceedings, which would enable them to apply for the court martial to be open to the public, including the media. In

1999 (4) SA p685

Langa DP

refusing the application, first appellant ruled that the first and second A respondents lacked locus standi to make that application to the court martial and to advance argument in support thereof. The two respondents challenged this refusal, relying on the constitutional right to freedom of expression, which includes 'freedom of the press and other media' and 'the freedom to receive or impart information or ideas'. [3] B

[4] The matter was argued before a Full Bench of the Cape of Good Hope High Court (the High Court)...