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COURT OF MILITARY APPEALS

CASE NO 03/2017

 

IN THE COURT OF MILITARY APPEALS

HELD AT PRETORIA ON 04 APRIL 2018

AND CONSTITUTED AS FOLLOWS:

Chairperson:	The Honourable Judge A.J. Barn
Members:	Col G.J. Barnard
	Col P.V. Nomoyi

 

AUTOMATIC REVIEW IN TERMS OF SECTION 34(2) OF THE MILITARY DISCIPLINE SUPPLEMENTARY MEASURES ACT 16 OF 1999

 

Accused:	95094348PE Sgt Lenoria Nonkululeko Selemogo,
	1 Tactical Intelligence Regiment
Military Judge:	Lt Col E.T. Phatse
Prosecution:	Lt Col S.A. Loots
Defence Counsel:	Lt Col M. Annandale
Date of Trial:	30 June 2016
Charge convicted of:	Charge: Common Law Theft read with section 264(1)(a) of the Criminal Procedure Act, Act 51 of 1977 and read with section 36 and 37 of the General Law Amendment Act, Act 62 of 1955 and read with section 1 of the General Law Amendment Act, Act 50 of 1956 and read with section 56 MDC.
Sentence:	Fine of R4000-00 and imprisonment for a period of 6 months and discharge with ignominy from the South African National Defence Force. Both period of imprisonment and discharge with ignominy from the SANDF are suspended for a period of 3 years on condition that the accused is not convicted of theft during the period of suspension.
Court Orders:	Section 130 MDC-the accused is placed under deduction of pay for a fine amounting to R4000-00.
Previous convictions:	None

IN THE COURT OF MILITARY APPEALS THABA TSWANE, PRETORIA

 

REVIEW IN TERMS OF SECTION 34(2) OF THE MILITARY DISCIPLINE SUPPLEMENTARY MEASURES ACT NO 16 OF 1999 MATTER OF 95094348PE SGT LENORIA NONKULULEKO SELEMOGO

 

Chairman: Judge A.J. Barn Member: Colonel G.J. Barnard Member: Colonel P.V. Nomoyi

JUDGMENT

BAM  J

 

1. The accused, after a plea of guilty, was convicted in a court of a Senior Military Judge on two counts, count 1- a charge of theft of batteries belonging to the SANDF, and count 2 - contravention of section 19(5) of the Code, in that she failed to report a motor vehicle accident to the Military Police. The accused was sentenced to a fine of R4000, 00 and imprisonment for a period of 6 months and discharge with ignominy from the South African National Defence Force. Both the period of imprisonment and discharge with ignominy from the SANDF were conditionally suspended for 3 years. The matter came before us on review in terms of Section 34(2) of the Military Discipline Supplementary Measures Act "MDSMA".

 

2. The pre-trial procedure certificates reflect that the two charges investigated against the accused were:

 

(i) Contravention of Section 20 of the Code (theft); and

 

(ii) Contravention of section 19(5) of the Code (a person who neglects to obey any unit, formation or force of which it is his duty to have knowledge). The certificate further reflected that it was directed that preliminary investigations had to be held.

 

3. The pre-trial procedures included a preliminary investigation held in terms of Section 30(11) of MDSMA, the so called "short procedure", during which the State furnished the witness statements to the accused. No viva voce evidence was adduced.

 

4. The accused was eventually charged in the Court of a Senior Military Judge as follows:

 

Count 1: Common law theft of 9 unserviceable Ratel batteries to the value of R1550; and in the alternative contravention of section 19(5) of the Code (theft of state property);

 

Count 2: Contravention of Section 19(5) of the Code, in that the accused failed or refused to report a vehicle accident.

 

5. The accused, represented by counsel, after the pleas of guilty on both counts, as alluded to above, duly convicted and sentenced.

 

6. The convictions and sentences are in accordance with the demands of justice.

 

7. However, during deliberations by the members of this court, the issue of lack of jurisdiction was, again like several other reviews, raised by the members, Colonel Nomoyi, and was again discussed. Due to recurring contentions made by the said member it was decided that the issue should be fully and finally dealt with.

8. The issue entails the following:

 

(i) Whether non-compliance with pre-trial procedures, in this case the Preliminary Investigation procedure generally referred to as the "long procedure", in circumstances where that procedure is prescribed and required by Section 30(8) of MDSMA, should be held to be a fundamental requirement to establish jurisdiction, and, accordingly, lacking compliance with that pre-trial requirement, or for that matter any pre-trial requirement, whether the trial court had jurisdiction to try the matter; and

 

(ii) Whether non-compliance with the "long procedure", if indeed required, on the other hand constituted only a pre-trial irregularity, and, depending on the circumstances, whether the irregularity caused prejudice to the accused and affected the constitutional right to a fair trial provided for in Section 35(5) of the Constitution.

 

 

9. In respect of preliminary investigations: Subsection 30(8) of MDSMA provides:

 

"When a preliminary investigation is held in respect of treason, murder, rape or culpable homicide, committed outside the Republic, or a contravention of section 4 or 5 of the Code (offences endangering safety of forces and offences by a person in command of troops, vessels or aircraft) or any offence punishable by imprisonment exceeding a period of 10 years ... " that viva voce evidence shall be led by the prosecuting counsel, which includes the right of cross-examination by the accused, as well as the right to testify and adduce evidence.

Subsection 30(11) provides:

 

"When a preliminary investigation is held in respect of any offence other than an offence referred to in subsection (8), the prosecution counsel shall -

 

(a)   read over to the accused the particulars of each witness, and-

(i)   a summary of the available evidence, from which ever sources which each such witness will give; or

(ii)  a signed statement of a witness; or

 

(b) call witnesses to give evidence viva voce and under oath, in which event subsections (80, (9) and (10) shall apply, subject to the necessary changes.

 

10. It does not require any debate, and it is not an issue that non-compliance with any pre-trial provision, including provisions of Section 30 of MDSMA, is a pre-trial irregularity.

 

11. Since 2013 it was decided in several CMA decisions that pre-trial irregularities do not affect the jurisdiction of the trial court, but, that in any given situation it may be regarded as a procedural irregularity which, depending on the circumstances, may or may not have affected the fairness of the trial.

I refer to some of those decisions:

 

(i) In CMA 35/2013 - S v Smith and Another, the Court found as follows:

''The Court has noted the judgment in S v Sgt Maluleke and Another (CMA Case No 31/2009) wherein the Court held that an unlawful arrest resulted in any arraignment following thereon, any Preliminary Investigation ordered thereat and indeed any subsequent trial being ultra vires the MDSMA. The compelling policy and jurisprudential considerations mitigating and making a trial court's jurisdiction dependant on a preceding lawful arrest were persuasively set out in Isaacs v Minister of Wet en Orde 1996(1) SACR 314 (A) at 322 to 323- a decision this Court is in agreement with (see also Greenberg v Gouws and Another 2011(2) SACR 389(GSJ) at par 24). It is clear from both Isaacs and Greenberg that, should a person who was unlawfully arrested be arraigned before a military court or Commanding Officer and remanded into further custody in terms of sec 29(3)(d) or 29(4)(a) MDSMA, such further custody would be lawful despite the unlawfulness of the original arrest and also not deprive a properly constituted military court of eventual trial jurisdiction over the accused and charge"

(ii) In CMA 42/2013 -- S v Mabuza, the Court stated the following (p6): "Judging by the provisions of section 30 in particular, and despite mandatory provision in section 29(3)(f), the objective, in my view, remains the same as articulated in Mabaso supra (S v Mabaso 1990(3) SA185(A)). Put differently, non-compliance with the provisions of section 29(3)(f), cannot vitiate subsequent trial if such proceedings are ... In other words, a trial that was conducted fairly and in accordance with the Constitution cannot be said to be invalid simply for non-compliance with pre-trial procedures. Whether or not non-compliance with pre-trial procedures, amount to irregularity vitiating trial proceedings, will be determined upon consideration of the peculiar facts of the case."

 

(iii) In CMA 45/13 -- S v Ledwaba, the Court ruled, consistent with the finding in CMA 42/13 S v Mabuza supra, followed CMA 35/13 S v Smith, supra, and approved the principle laid down in the latter case appearing in the third paragraph;

 

"The CMA in case no 35/2013 (S v Sgt A D D Smith) held that a pre-trial held irregularity does not necessarily deprive the court of jurisdiction to proceed with the case or vitiate the subsequent proceedings. In this regard, and with reference to S v Jaipal 2005(1) SACR 459 (SCA) at 465, the CMA enquired into the following question as a standard in determining the effect of the pre-trial irregularity on the subsequent trial: whether irregularity violated the accused's right to a fair trial? To this end and citing the case of S v Nabolisa 2013(2) SACR 221 (CC), at par 24, as authority, the CMA pointed out that the purpose of pre-trial procedures is to ensure that the accused receives a fair trial, and irregularities are regarded as 'wrongful or irregular deviation(s) from the formalities and rules of procedure aimed at ensuring a fair trial'."

 

(iv) In CMA 37/17- S v Kekana (Conviction on common law theft after plea of guilty). This court, as presently constituted considered non­ compliance with the "long procedure", and remarked thus: (Par 26.) "Lastly, it has to be noted, in matters where the possibility of an irregularity comes into play, an important consideration is always the issue of prejudice, and whether the accused has experienced a fair trial in accordance with Section 35 of the Constitution. The correct approach is that a conviction and sentence are not to be set aside by reason of irregularity in the proceedings, unless it appears that a failure of justice has in fact resulted from such irregularity. See S v Felthun 1999(1) SACR 481 SCA at 485 h-j, and S v Botha 2006(1) SACR 110 SCA at 105 f-g."

 

12. However, in conflict with the gist of the rulings in the matters referred to in par 11, that pre-trial irregularities may only affect the issue of a fair trial, there are several other CMA older and more recent decisions on the point. These decisions include the following:

 

(i) CMA 117/2003 - S v Prins, a case where the accused was charged with a common law crime and where there was no compliance with section 29(3) providing for preliminary investigations. The Court held that the trial court had no jurisdiction and therefore acted ultra vires.

 

(ii) CMA 38/2004 -- S v WO1 Dippenaar, a matter where no preliminary investigation was held. The Court found that the failure to conduct a preliminary investigation when required, resulted in the trial court not having jurisdiction. The basis for that finding was recorded as follows:

"It is a fundamental principle in the South African Law that a body, which owes its legal existence to, and derives its powers from a statute, can do no valid act unless authorised thereto by that statute, which is the source of its powers. Stated differently, a body may only exercise an act if it is authorized by law to do so and must then do it in the manner, and within the limits of its powers, as described by the law.

Thus, any limitations upon the exercise of power which are prescribed by the statute, in this case the Act, must be observed and jurisdiction may thus be described as the extent of a military court's power or the confines within which that military court may exercise a power.

The term jurisdiction, with reference to a military court, refers to the authority of a military court to make a particular decision (eg a finding) or to perform a particular act (eg to conduct a trial). Jurisdiction consists of, or arises from, the essential or fundamental facts, which must exist, or the preliminary procedures, which must be observed, before a military court has the power to make a particular decision or order (eg a sentence). Jurisdiction or the validity of a claim to power, is determinable at the commencement of the proceedings and can be tested by ascertaining whether the essential facts exist or

whether the preliminary procedures have been observed."

 

(iii) CMA 28/2010 -- S v Khomo. In this case the Court relied on the dicta in CMA 117/2003 - S v Prins, supra, CMA 38/2004 - S v Dippenaar, supra, and several other CMA decisions, and concluded that non-compliance with the correct pre-trial procedure is a material defect concerning jurisdiction, which "cannot be cured by way of a guilty plea or even by an admission of the accused."

 

(iv) CMA 20/2011 -- S v Ngomane. The conviction on a charge of theft was set aside although the Court was satisfied that the trial court's finding on the merits was correct: "the accused was correctly convicted on evidence before the court". The conviction was set aside due to the irregularity that the "correct" pre-trial procedure, the preliminary investigation, in terms of section 30(8) of MDSMA was not held.

 

(v) In CMA 19/2015 S v Simango 0udgement delivered in January 2016), although the main issue was prescription, the Court also dealt with pre-trial irregularities and, relying on, amongst others, CMA 117/2003 - S v Prins, supra, and CMA 38/2004 S v Dippenaar (supra), held that pre-trial irregularities "had the effect of depriving the court of jurisdiction."

 

(vi) In several CMA decisions decided since CMA 19/2015 S v Simango, namely CMA 1/2016 S v Jacobs, CMA 13/2016 S v Leonard, CMA 9/2017 S V Sealetsa, and CMA 31/2017 S v Damana, the respective CMA panels, without overruling CMA 35/2013 S v Smith as wrongly decided, found that pre-trial irregularities resulted in ultra vires trials.

 

Concerning conflicting CMA decisions, the principle of stare decisis is of importance. In respect of the application of the principle it suffices to remark, with due respect, that it seems that the principle was unfortunately not applied after the ruling in CMA 35/2013 - S v Smith and Another in CMA 19/2015 S v Samango and the decisions referred to in par 12(vi) above. This, evidently, caused uncertainty and confusion in military courts, with what appears to have devastating consequences to the administration of military justice. The application of stare decisis simply means that one panel of the CMA should not overrule a decision of another panel of the CMA unless it is found that the first decision was patently wrong, and on condition that the subsequent decision is properly motivated. If that is the case the latest decision has to be followed.

 

14. In this regard it is of importance to note the Constitutional Court's sentiments reflected in Gcaba v Minister for Safety and Security 2010(1) SA 238 (CC) par{61]:

[61] "In Van Der Merwe v Metcash the merit of legal certainty and the like treatment of similarly situated litigants was also emphasize Furthermore in

 

Daniels v Campbell NO an Others, Moseneke J in a minority judgment the dicta in Van der Walt, reasoned that the doctrine of precedent, an incident of the rule of law, advances justice by ensuring certainty of Jaw, equality, equal treatment and fairness before the law. He stated further that to that end, the doctrine imposes a general obligation on a court to follow legal rulings in previous decisions. Moseneke J acknowledged the recognised exceptions of the stare decisis principle, namely 'where the court is satisfied that its previous decision was wrong or where the point was not argued or where the issue is in some legitimate manner distinguishable'.

 

[62] Therefore, precedents must be respected in order to ensure legal certainty and equality before the law. This is essential for the rule of law. A highest court of appeal - and this court in particular- has to be especially cautious as far as adherence to or deviation from its own previous decisions is concerned."

 

14. It therefore follows that, if the principle of stare decisis were to be respected as ruled by the Constitutional Court in Gcaba supra, all military Courts, as well as the respective panels of the CMA (including every member of the panel,) are bound by the latest decision of the CMA on a pint of law.

15. In respect of the issue at hand, this Court is in respectful agreement with the finding In CMA 35/2013 S v Smith. However, we deemed it expedient to state the reasons of this Court for following that decision. In doing that the issue is addressed on the basis that the issue of jurisdiction should be distinguished from the issue of a fair trial.

 

14.

16.1 Ad Jurisdiction:

 

(i) Military courts derive their jurisdiction from Section 9 of MDSMA to adjudicate matters involving members of the SANDF who allegedly committed offences specified in the said Act and the MDC. Supplementary to the issue of the offence is the provision in section 58 MDC in regards to a prescription period of 3 years in respect of certain offences. Neither MDSMA nor the Code provides for conditional jurisdiction.

 

(ii) It is a common law principle that once the court's jurisdiction has been established, it continues until the end of the proceedings. See Coin Security Group (Pty) Ltd v Smit No and Others 1992(3) SA 333(A) at 344A-D:

 

(iii)  

"The Transvaal Provincial Division clearly had jurisdiction to grant the rule when the proceedings commenced and, as a general proposition, in our law such jurisdiction continues until the end of the proceedings."

See also Transnamib v Voorsitter, Nasionale Vervoerkommissie en 'n Ander 1993(1) SA 457 AD at 475G.

16.2 Ad Pre-Trial irregularities, possibly affecting a fair trial.

 

(i) In S v Nabolisa 2013(2) SACR 221 CC, par [24], the Court stated the following:

"An irregularity is a wrongful or irregular deviation from the formalities and rules of procedure aimed at ensuring a fair trial. In S v Jaipal 2005(1) SACR 215 CC - par 44) irregularities were described as deviations from 'what one would regularly expect in a properly conducted criminal trial'."

2. The emphasis was clearly on the nature, extent and effect of the possible pre-trial irregularity. In each case the material question to be addressed is whether the particular irregularity caused the accused to suffer prejudice to the extent that he/she did not have a fair trial. This means, whether the irregularity (if any) resulted in actual and substantial prejudice to the accused, resulting in a violation of the rights to a fair trial in terms of Section 35 of the Constitution. In Jaipal supra, the Court remarked as follows concerning the irregularity in that case:

[50] "The contact between the assessors and others was undesirable, unfortunate and irregular. . .. "

"[51] It cannot be said that a failure of justice occurred and that the applicant did not have a fair trial in accordance with notions of basic and substantive fairness and justice. There is no need to set the proceedings in the High Court aside   "

"[52] This conclusion follows from the specific facts of this case. Similar irregular proceedings may under other circumstances well result in a different finding and setting aside of a conviction or sentence  “

 

17. In CMA 19/2015 S v Simango, supra, the Court found that "the numerous pre-trial irregularities" . . . "had the effect of depriving the court of jurisdiction" ultra vires may be a generalization which is inconsistent with the Constitutional Court's decision in Nabolisa , supra, and contradictory to the finding in CMA 35/ 2013 S v Smith .

 

18. It follows that in respect of the issue of pre-trial irregularities, this Court respectfully dis-agrees with the decision in Simango, which, in our view, was wrongly decided on the point. This Court therefore confirms and follows the ratio decidendi in CMA 35/2013 S v Smith and Another, supra, to wit that a pre-trial irregularity does not affect jurisdiction.

 

19. It follows that in respect of the matter at hand where the preliminary investigation, the "long procedure", was not held, it must be decided whether the accused was prejudiced to the extent that he/she did not have a fair trial.

 

20. In considering the issue of pre-trial irregularities, more specifically non­ compliance with specifically required preliminary investigation procedures, it seems that in certain CMA decisions a literary application of the provisions in Section 30(8) of MDSMA in respect of common law crimes for which a period exceeding 10 years imprisonment is prescribed, led to findings that the accused was, without more, prejudiced. The said section, however envisages the more serious common law offences and not all common law or statutory offences. If this would have been otherwise, the fact that a Military Judge's penal jurisdiction is limited to 2 years begs the question. Accordingly, in our view, there are other issues to be considered, which may differ from case to case, before the Court should arrive at the finding that the accused was prejudiced and did not have a fair trial.

 

21. In the matter before us, the value of the batteries was R1500, clearly not a serious matter, and surely not a matter justifying a long period of imprisonment, certainly not a period exceeding 10 years imprisonment, if any. In this regard it must be remarked that the sentence of a fine of R4000, in any event, is clearly commensurate with the nature of the offence.

 

22. Even if there was non-compliance with the required Preliminary Investigation procedure, the "long procedure", in this case, and it constituted an irregularity, it should not be the end of the matter. In this regard it has to be considered what the purpose of any Preliminary Investigation is about. In this regard the Court in CMA 42/2013 -- S v Mabuza, supra, dealing with a similar situation, stated the following:

 

"There can be no doubt that the purpose of section 29 or section 30 MDSMA) is the same as sections 119 and 122A of the Criminal Procedure Act (dealing with the accused's right to make a statement in explanation of plea, as soon as possible). For example, in terms of section 29(4) of the Act when a person is brought before a commanding officer, that commanding officer may hear that person, either directly or upon completion of a preliminary hearing, if that person has elected to be heard at a disciplinary hearing and who has tendered a plea of not guilty to the charge."

 

In CMA 37/2017 S v Kekana, supra, this court remarked as follows (pars 10and 11):

 

"10. Preliminary Investigation is not defined in either the Military Disciplinary Code "MDC", or In the Defence Act of 2002, or in the MDSMA. (The procedure seems to be comparable to the Preparatory Examination procedure provided for in section 123 of the Criminal Procedure Act, No 51 of

 

1977, which procedure has, for practical reasons, fallen in disuse.)

 

11. In reflecting on the reason for the continuous existence of this procedure in military trials, it seems that it has a dual purpose. The first is to formally record the State's evidence, which at the same time serves to inform the accused what the case is, and secondly, in the event of viva voce evidence being adduced by the State, it affords the accused the opportunity, if he/she wishes to do so, even at that stage, to test and/or challenge the evidence by cross examining the witnesses, and to adduce evidence in defence."

 

23. In view thereof that the accused was properly informed, by way of the "short procedure", what the charges against her entailed, that she subsequently pleaded guilty to all the charges, and that no complaint was raised by defence counsel, this Court is satisfied that she was not prejudiced at all and that the fairness of the trial was not compromised. In this regard we are in agreement with the ratio decidendi in CMA 46/2013 S v Ledwaba, supra.

 

ORDER:

The convictions and sentence are confirmed.

 

A J BAM, JUDGE OF THE HIGH COURT, CHAIRMAN

 

I agree

 

COLONEL G J BARNARD, MEMBER

 

I agree

 

COLONEL P V NOMOYI, MEMBER

 

07 JUNE 2018

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