Cape Town - The Supreme Court of Appeal has reprimanded a former military judge whose remarks ordering the president to take action against the defence minister caused disquiet within the SANDF.
The SCA said Lieutenant-Colonel Kevin O'Brien had made 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.
“His remarks caused disquiet within the SANDF, with the independence of the military courts being called into question.”
O’Brien 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.
O’Brien 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.
He issued orders in terms 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 then-Defence and Military Veterans Minister Nosiviwe Mapisa-Nqakula in respect of her failure to assign military judges for a specific period.
He further directed that his ruling be served on then-president Jacob Zuma, and for the president to indicate what steps he intended taking against the minister of defence.
In the aftermath of that ruling and orders, O’Brien 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 him that he should recuse himself from the pending trials before him, in light of his views.
A ruling by a full SCA bench of five judges found that O’Brien, as a judicial officer, sought to give expression to his personal views of the military courts, and the extent to which he considered them lacking in independence.
In doing so, the SCA found that he breached several canons of good judicial behaviour. “His preoccupation 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.”
O’Brien had approached the SCA after the Pretoria High Court granted the defence minister’s application to set aside several court orders he made on “issues that had become all-consuming” for him.
His challenges, directed at various statutory provisions such as providing for the establishment of a board of inquiry to investigate military judges, as well as the powers of the defence minister to remove a military judge or assign them to brief, renewable periods, were dismissed by the SCA on grounds of being either “abstract or hypothetical”.