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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

.CASE NO 05/07

IN THE COURT OF MILITARY APPEALS

HELD AT PRETORIA ON 05 JULY 2007

AND CONSTITUTED AS FOLLOWS:

Chairperson:             The Honourable Judge President B.M. Ngoepe

Members:                   Maj Gen A.C. Hurribunce, MMM

                                    Col A.M. Kolbé

REVIEW IN TERMS OF SECTION 34(2) OF THE MILITARY DISCIPLINE SUPPLEMENTARY MEASURES ACT, 1999, ACT NO 16 OF 1999:

Accused:                                            94068574PE Capt L.P. Hola AMH Unit EC

Military Judge:                                  Maj M.K. Mandela

Prosecution:                                      Lt Q. Swanepoel

Defence Counsel:                             Capt S.E. Sitole

Date of Trial:                                      13 February 2002

Charges convicted of:                     2 x C/s 19(1) MDC: Disobeying a lawful command

                                                                  in willful defiance of authority.

Sentence:                                         “R3000-00 fine”

Previous convictions:                     None

7 September 2007

This matter came before this Court as an application for review on 5 July 2007. BACKGROUND

Accused was convicted on 13 February 2002 for two contraventions of Section 19 (1) MDC in that she disobeyed lawful commands of her superior officers.

The first charge related to disobeying a lawful command on 7 March 2001 given to her by her superior Lt Col A.J. Nel and/or Lt Col Z. Van Niekerk to supply written information regarding her treatment of a patient to Lt Col Van Niekerk.

The second charge related to disobeying a lawful command on 28 May 2001 given to her by Lt Col A. J. Nel to hand in her signed duty sheet by 16h00 on 28 May 2001 to said Lt Col Nel or to Maj Venter.

After pleading not guilty to both charges she was convicted by a court of a military judge on both charges and sentenced to a fine of Three Thousand Rand (R 3000,00).

The sentence was imposed on 13 February 2002.

ACCUSED TO BE INFORMED OF RIGHTS TO REVIEW AFTER SENTENCE

Before the accused is excused by the trial court, the court has to inform the accused of the right of review and that representations, if any, must be lodged to the review authority.

In the present matter paragraphs 89-91 of the pro forma trial proceedings indicate that the presiding military judge informed the accused of her rights to submit written representations within 14 days to the relevant review counsel at Legal Satellite Office Wynberg (Major Botes) or Director Military Review concerning the facts or law of the case, or the validity or justice of any finding, sentence or order.

Accused was also informed of her right to approach the High Court for relief at her own cost.

REVIEW PROCEDURE

The sentence, a fine, that was imposed on the accused is not one of the serious sentences mentioned in Rule 71 MDSMA that this Court has to automatically review before it can be executed. It follows that the record had to be reviewed by the review counsel at Legal Satellite Office level and/or by the Director Military Judicial Reviews in terms of Section 34(3) MDSMA.

REPRESENTATIONS TO FIRST LEVEL REVIEW COUNSEL

Time limits are prescribed in Section 34 MDSMA within which accused may make representations to the relevant review authority.

In accordance with Rule 34 (7) MDSMA an accused, who is of opinion that the trial court did not try the matter justly, needs to act with speed to make representations. This is because the sentences that are reviewed by review counsel are to be executed immediately after imposition of sentence. See Section 118 MDC.

Section 34 (7) MDSMA stipulates: “A convicted person may as soon as possible, but not later than 14 days after the announcement of sentence, furnish the relevant review counsel or the Director: Military Judicial Reviews with the representations in writing concerning the facts or law of the case, or the validity or justice of any finding, sentence or order, that he or she may wish to make, and those representations shall together with the record of proceedings be duly considered by every review authority to which the record of proceedings is subsequently submitted for review.

Section 34 (8) MDSMA stipulates: “Where the period specified in subsection (7) appears to him or her to be impractical, the local representative of the Adjutant General may on application authorise an extension of the period of up to 28 days, and on granting any such extension shall ensure that every affected party is notified of the extension.”

After expiry of the extended period of 28 days by the local representative of the Adjutant General, accused will be barred from furnishing written representations to the review authority.

The result is that the matter will still be reviewed, but without the benefit of such representations.

RIGHT TO APPROACH COURT OF MILITARY APPEALS FOR RELIEF

After a review at first level had taken place, accused can still apply for review/appeal to this Court to intervene in the finding or sentence or court order in terms of Section 34 MDSMA read with Rule 72 MDSMA.

Section 34 (5) MDSMA stipulates: “An offender may within the time limits and in the manner prescribed in a rule of the Code, apply for the review of the proceedings of his or her case by a Court of Military Appeals.”

TIME LIMITS FOR APPLICATION FOR REVIEW/APPEAL TO CMA

Rule 72 (1) MDSMA stipulates: “An offender may at any time within six months after the date of his or her conviction apply for the review of the proceedings of his or her case by the Court of Military Appeals and shall in such application specify the grounds on which the review is sought.”

Accordingly, if any accused desires the Court of Military Appeals to review a matter, a proper application for appeal need to be lodged to this Court within six months after the date of her sentence.

In casu, an appeal was lodged in 2007. As the sentence was imposed in 2002, the application clearly did not comply with the six month period prescribed above.

TIME LIMIT FOR APPLICATION FOR CONDONATION AND LEAVE TO APPEAL

Rule 72 (2) stipulates: A Court of Military Appeals may after the expiration of a period of six months from the date of conviction of any offender but not later than two years after that date, on good cause shown by the offender, grant the offender leave to apply for the review of the proceedings of his or her case by the Court of Military Appeals and any such authorised application shall specify the grounds on which the review is sought.

If due to some event the six month period cannot be complied with, an accused have to apply for condonation to this Court requesting it to grant leave to appeal. The application for condonation needs to show good cause (facts or law) why the accused could not comply with the time limit.

The application for appeal/review also needs to indicate grounds based on fact or law or both as to why the Court should interfere with the findings/sentence of the trial court. Successful grounds for review will indicate that such a gross irregularity existed during the trial proceedings that it cannot be said that justice was done or that accused received a fair trial. Successful grounds of appeal will result in interfering with a finding or sentence or both.

Thus, if the grounds for appeal indicate a reasonable prospect for success, the Court will be moved to grant the application for condonation and grant leave to appeal to offender.

EFFECT OF NON-COMPLIANCE WITH TIME LIMITS IN APPLICATIONS

It is clear from Rule 72 (2) that the Court does not have unlimited powers to extend the period within which condonation and appeal should be applied for.

This Court will only be in a position to grant condonation and leave to appeal before expiry of two years after sentence date.

After expiry of two years from date of sentence, even this Court will not have jurisdiction to hear any matter.

The accused will then have to make application for review to the High Court of South Africa and comply with the prescribed rules of procedure of that Court.

Compliance with Rule 72(1) or (2) is not subject to obtaining the record of proceedings. In fact, when an offender complies with Rule 72(1) or (2) he/she shall be furnished with a copy of the record of proceedings free of charge. See Rule 72(5). Nothing prohibits the offender then to supplement his/her grounds on which review is sought.

REVIEW PROCEEDINGS IN PRESENT MATTER

From a letter dated 7 November 2002 it appears that the case of Captain Hola was reviewed at Legsato Wynberg by the review counsel (Lt Cdr Masutha) on 7 November 2002. Both findings and sentence were upheld by the review authority at that level.

The representations and record of proceedings was sent to the Director Military Reviews in a letter dated 7 November 2002 together with the review decision. The reason for forwarding the record is not known to this Court but seems to be that accused requested the matter to be reviewed by this Court.

The record was received at the Registrar of Court of Military Appeals on 18 November 2002.

REPRESENTATIONS TO FIRST LEVEL OF REVIEW

In casu, the previous defence counsel of accused lodged undated representations to the review counsel at first level.

Ex facie the fax details printed on the document containing the representations, it was sent from Legal Satellite Office Port Elizabeth on 23 October 2002 at 15h22 from telephone number 0[...]. This was already eight months after date of conviction and sentence. At that stage, the accused was already exceeding the time limit prescribed in Sections 34 (7) and she also did not lodge any application for extension of the time limit to the review authority as prescribed in Section 34 (8) MDSMA.

It needs to be remarked that any formal document pertaining to legal review processes have to be dated, to establish whether or not time limits were complied with. It is not indicative of professionalism to lodge applications or representations without dating such documents. Unnecessary uncertainty is created. It is not clear to this Court if the document was intentionally undated to mislead or if a bona fide mistake was made.

CONTENTS OF WRITTEN REPRESENTATIONS

An extract from the written representations supplied on her behalf by Capt Sithole, her defence counsel at the time, reads as follows:

“I am not satisfied with the finding (sic) and sentence of R 3000 that I was sentenced to by the CMJ.

My version was disregarded by the court and I want my case to be referred to a Court of Military Appeals.

I have a previous conviction of Sec 19 (2) MDC, crimen iniuria and assault and I was sentenced to a fine of R1500 on 25 January 2001 and I appealed but a year has passed without me receiving any response.

I was charged for a similar offence of Sec 19 (1) MDC when I told my superiors I am waiting a Court Appeal I was charged again. I was ordered to supply the details about the treatment of a patient and I replied by a memo in the language I was comfortable with. I was then charged.

I strongly believe that the sentence of R3000 was harsh under the circumstances.

She is aware that the CMA can increase the sentence”

Vague allegations made in written representations will not assist any review authority in ascertaining whether or not any irregularity occurred during the trial proceedings. The required contents of the written representations are thus prescribed in Rule 34(7).

Written representations must set out the facts that the accused rely upon to enable review counsel to interfere with the finding, sentence or court order. For example, it should state which facts were disregarded by the court a quo or were considered but should not have been considered.

Representations can also refer to the any issue in law that was not complied with by the trial court during the trial proceedings.

In casu, this was not properly done.

APPLICATION BY OFFENDER FOR REVIEW BY COURT OF MILITARY APPEALS

In the present matter, no application for condonation to this Court was ever made within the time limits prescribed in Rule 72. An application for appeal was lodged in July 2007, which application was opposed by the prosecution counsel.

APPEARANCE ON 5 JULY 2007

Prosecution Counsel, Major Swanepoel and Defence Counsel, Lieutenant Colonel Annandale appeared before this Court to argue the matter.

Prosecution counsel argued that the sentence was imposed on 2002. The representations to the review counsel was lodged after six months had already expired. Thus Section 34 (7) and (8) MDSMA were not complied with.

Secondly, Rules 72 (1) and (2) were not complied with as no application for condonation was made after expiry of the six month period and two years already lapsed before the current application for review was lodged.

It was argued on behalf of the State that the matter be struck from the roll as this Court has no jurisdiction to hear the matter.

Defence counsel conceded that no application for condonation was made, and that time limits were not complied with.

DECISION

After hearing argument by both counsel this Court is of opinion that, due to non–compliance with the prescribed time limits mentioned in Rule 72 (1) and (2) this Court has no jurisdiction to hear the matter. Accordingly, the matter is struck from the roll.

REMARKS

The Military rules of procedure on appeal or review does not provide that a mere notice of intention to make application for appeal or review to this Court (as was made in the representations to the review counsel) will bar prescription in Section 34 MDSMA and Rule 72.

Applications for condonation and appeal do not only have to be lodged in time, but also have to contain proper grounds for appeal/review indicating where and why in the record of proceedings the trial court misdirected itself or ignored facts. The grounds must thus state why this Court should be moved to interfere in either the finding or sentence of the court a quo.

Frivolous applications and applications unsupported by facts to this Court are to be avoided. They waste the time of this Court and unnecessarily increase the flow of reviews to this Court. To prevent frivolous applications to this Court, a caveat was installed.

This Court can in the interest of justice, increase a sentence of a lower military court if the Court of Military Appeals is of opinion that the sentence of the court a quo was too light.

Cases where serious sentences were imposed (such as effective imprisonment and discharge or dismissal etc) are to be given preference on the court roll of the Court of Military Appeals.

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