In the matter between:
LEGAL SOLDIER (PTY) LIMITED First Applicant SOUTH AFRICAN SECURITY FORCES UNION Second Applicant MOSUWA SAMUAL HLONGWANE Third Applicant
NORMAN YENGENI Fourth Applicant
LINDILE WELCOME MATI Fifth Applicant JOHANNES SOMDENI MAHLANGU Sixth Applicant
and
THE MINISTER OF DEFENCE First Respondent THE CHIEF OF THE SOUTH AFRICAN NATIONAL
DEFENCE FORCE Second Respondent THE DIRECTOR: MILITARY PROSECUTIONS Third Respondent THE MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Fourth Respondent THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Fifth Respondent
SUPPLEMENTARY AFFIDAVIT FILED ON BEHALF OF THE RESPONDENTS
I, the undersigned,
CHARLES HENRY DUNSTAN SMART do hereby make oath and state as follows:
Introduction
1. I am an officer of the South African National Defence Force (“SANDF”) and have been appointed as Adjutant-General in terms of Section 27 of the Military Discipline Supplementary Measures Act, No. 16 of 1999 (the “MDSM Act”).
2. I am duly authorised to depose to this affidavit on behalf of the respondents in this matter (hereinafter referred to as the “Legal Soldier application”). The statistics and information relating to status of forces agreements and other international agreements such as the Troop Contributing Agreements, agreements touching defence co- operation and the like to which South Africa is a signatory (hereinafter referred to as “international agreements”) contained in this affidavit were obtained from the Department of Defence personnel responsible for recording such statistics as well as from official documents in my possession and are to the best of my knowledge and belief both true and correct.
3. This affidavit is structured as follows. Firstly, I briefly set out the background to this affidavit. Secondly, I deal with the reasons why the evidence which the respondents now seek to place before this Court is
not part of the papers filed in the Transvaal Provisional Division and finally, I set out the evidence sought to be placed before this Court.
4. The applicants seek an order, inter alia, -
4.1 declaring sections 4(1), 13(1)(b) and 2(d) read with section 14(1)(a) and (3)(a) and section 22 of the MDSM Act to be inconsistent with section 179 of the Constitution and therefore unconstitutional, invalid and of no force and effect;
4.2 declaring all military prosecutions, including those in which the third to sixth applicants were accused and/or convicted and/or sentenced of, and which have been instituted and/or continued and/or prosecuted to finality, purportedly pursuant to or under the authority of the impugned provisions against members of the SANDF, unconstitutional, invalid and of no force or effect.
5. The respondent in The Minister of Defence v Potsane (CCT 18/2001) challenged the constitutionality of sections 13(1)(b), 14(1)(a) and 22 of the MDSM Act, without refinement. The court a quo, however, held the impugned provisions to be unconstitutional to the extent that they referred to prosecutions relating to what it termed
“public offences” committed by members of the SANDF inside the territory of South Africa (Potsane Judgment vol 2 para 16, 184-185).
6. The court a quo’s reasons for restricting its order firstly, to “public offences” and, secondly, to offences committed in South Africa were not explained. There was no cross-appeal to the appeal against the judgment of the court a quo launched in this Court. The drawing of the distinction between the constitutionality of military prosecutions instituted within South Africa and those which occur extra-territorially, alerted the respondents in the Legal Soldier application (the first respondent in the Legal Soldier matter is the appellant in the Potsane matter) to the possible consequences which an order, in the terms sought in the Legal Soldier application, would have - not only on military courts operating extra-territorially, but also on the existing international agreements. These agreements invariably contain criminal (immunity) jurisdictional provisions and are relevant to the prosecution of members of the SANDF outside the borders of South Africa.
7. Accordingly, the substance of this affidavit - dealing with the number of SANDF members deployed extra-territorially and the evidence pertaining to the international agreements, usually concluded between South Africa and foreign states where members of the SANDF are
stationed,- was not required (and therefore not part of the record) for purposes of the appeal in the Potsane matter.
8. However, the relief sought in the Legal Soldier application is not restricted to the order granted by the court a quo in the Potsane matter. (This was acknowledged by the applicants in the affidavit of Mr Raseroka filed on 30 July 2001 in support of the application for direct access (at paragraph 16.5)).
9. Prosecutions of members of the SANDF who are deployed outside South Africa – whether on military operations, manoeuvres with other forces, peace-keeping operations, as attachés or liaison officers in other countries, at foreign training institutions or being inducted in the use of new equipment - raise different considerations in the context of military prosecutions, to those prosecutions which taken place within the borders of South Africa.
10. These considerations relate to the nature of the operation being undertaken, the type of offence committed, the availability of witnesses, the existence of international agreements, the possibility of concurrent jurisdiction with a foreign state and the availability of prosecutors to institute prosecutions extra-territorially.
11. As a result, the respondents seek to place additional factual material contained in this affidavit before the above Honourable Court in terms of the Rules of the Constitutional Court.
12. Rule 30 of the Constitutional Court Rules provides that:
“(1) Any party to any proceedings before the Court and an amicus curiae properly admitted by the Court in any proceedings shall be entitled, in documents lodged with the registrar in terms of these rules, to canvass factual material which is relevant to the determination of the issues before the Court and which do not specifically appear on the record: Provided that such facts -
(a) are common cause or otherwise incontrovertible;
(b) or are of an official, scientific, technical or statistical nature capable of easy verification.
(2) All other parties shall be entitled, within the time allowed by these rules for responding to such document, to admit, deny, controvert or elaborate upon such facts to the extent necessary and appropriate for a proper decision by the Court.”
13. This affidavit deals with factual material relevant to the determination of the issues before the above Honourable Court and falls within the parameters contemplated in Rule 30 of the Constitutional Court Rules.
14. In addition, I am advised that this Court has the power under Rule 29 of the Constitutional Court Rules, which incorporates by reference the
provisions of section 22 of the Supreme Court Act, No. 59 of 1959, to admit the evidence contained in this affidavit.
The filing of this affidavit
15. The answering affidavit in the Legal Soldier application was filed on 15 March 2001.
16. The judgment in the Potsane matter, which drew the distinction between military prosecutions instituted in South African and those instituted extra-territorially, was handed down on 20 March 2001. As already stated, this alerted the respondents to the problems likely to arise extra-territorially should this Court declare the impugned provisions unconstitutional.
17. Subsequent to the Potsane judgment a quo, the parties agreed to postpone sine die the Legal Soldier application which had been set down for hearing on 12 June 2001 in the Transvaal Provincial Division.
The respondents were of the view that an order by this Court in the Potsane appeal could potentially dispense with the matter in the Transvaal Provincial Division, in which event, the filing of a further affidavit (or an application seeking leave to do so) would have been of no consequence. Moreover, at the time the parties agreed to
postpone the Legal Soldier application, the applicants had not yet filed a replying affidavit, even though the dies for doing so had lapsed.
18. Furthermore, although we were advised by the applicants’ attorney of record in a letter dated 15 May 2001, a copy of which is annexed hereto marked “DS 1”, that they had instructed counsel to approach this Court for direct access in order that the issues raised in the Legal Soldier application could be dispensed with together with the Potsane matter at the hearing on 23 August 2001, this application was only served on the State Attorney, Pretoria, on 27 July 2001, approximately eleven weeks thereafter.
19. This is despite applicants’ attorney of record having advised Ms Caroline Dreyer, the respondents’ attorney of record (whose confirmatory affidavit is filed herewith), in a telephone conversation on 7 May 2001 that the application for direct access would be launched before 6 June 2001. This would have given the respondents time to supplement their papers. It is further pointed out that the letter dated 27 June 2001, addressed to the Registrar of the Constitutional Court and annexed to the supplementary affidavit deposed to by the applicants’ instructing attorney in the application for direct access, marked Annexure “RK 1”, alerting the Registrar to the launching of an application for direct access was not sent to the respondents.
20. On 27 July 2001 the applicants simultaneously served on the respondents their replying affidavit in the Legal Soldier application and the application for direct access to this Court. In the affidavit of Mr Raseroka, filed in support of the application for direct access, the applicants advised this Court that they had served their replying affidavits in the Legal Soldier application and that the pleadings in the Transvaal Provincial Division had been closed (Raseroka affidavit, p. 5 at para 10).
21. Accordingly, and in light of the directions received from the Constitutional Court on 6 August 2001, the respondents have been unable to supplement timeously the record in the Legal Soldier application to include the evidence contained hereunder.
22. I now turn to canvass the factual material which the respondents seek to place before this Court.
The evidence
(i) The number of members of the SANDF based extra-territorially
23. Since 1993 the SANDF has progressively become more involved in
military, humanitarian, peacekeeping, training, goodwill and liaison matters as well as other missions outside the borders of South Africa.
24. As a direct result an increasing number of members of the SANDF have been invited, and are being invited, on official visits abroad. They also have been, and are, attending a number of foreign training courses.
25. During 1995 to 1998, 4261 members of the SANDF visited 67 countries on official visits. These figures include sport as well as ships’ visits where a large number of military personnel visit a specific country for a period of time. These figures do not include operational, top secret or undercover visits or visits of ship crews and military personnel aboard presidential flights.
26. During the same period, 603 members of the SANDF attended foreign courses in 30 different countries. In addition hereto, during 1998, 42 members of the SANDF were deployed as military attachés and administration personnel in 32 countries.
27. During the period January 2000 - June 2001, 2269 members of the Department of Defence, the majority of who were uniform members, visited 71 foreign countries for official purposes. These figures include
goodwill, working, sport as well as non-operational ships’ visits.
During the same period 422 members of the SANDF were operationally deployed in 5 foreign countries. These figures, once again, do not include classified movements or visits by ships’ crews and crews of presidential or like flights.
28. Also during the period January 2000 – June 2001 -
28.1 The South African Navy visited the United States of America, Brazil, India, Mozambique and a number of Indian and Atlantic Ocean island territories.
28.2 Approximately 274 members of the SANDF attended courses in 23 foreign countries.
28.3 Furthermore 26 members of the SANDF were deployed as military attachés and administrative personnel in 22 foreign countries.
28.4 Also, when South Africa acquires specialised equipment, members of the SANDF are deployed for long periods of time to the supplying countries. For this purpose, currently, there are
altogether approximately 59 uniformed and 23 civilian members of the South African Navy and Air Force stationed in 3 countries.
29. It is anticipated that these figures will gradually increase as the need for “crew building” increases.
30. The effect hereof is that it is not always practical or feasible for an offender to be tried in South Africa or for a civilian prosecutor to be deployed to a foreign country for purposes of instituting a prosecution.
(ii) Status of forces and similar agreements
31. The agreements concluded between South Africa and other countries are essentially threefold in nature (so as to not unduly burden this supplementary affidavit, copies of models of these agreements will be made available to this Court at the hearing of this matter):
31.1 The first type of agreement is where troops are deployed in terms of a status of forces agreement negotiated between the United Nations and the host country, in which case provision is only made for the immunity of the troops from the local jurisdiction. The military command of the contributing country remains responsible for the execution of military justice and the
maintenance of discipline amongst the members of its military contingent.
31.2 The second type of agreement (be it multi- or bilateral) regulates the position of the sending State’s military force in the host country. Again, the universal practice is to grant immunity from the local criminal jurisdiction.
31.3 The third kind is where a force is in the territory of another country with mere consent (not necessarily written), in which case the principle in the Schooner “Exchange” v McFadden (1812) 7 Cranch 116, applies. (Copies will be made available with the aforesaid agreements) In terms hereof, the military force would be immune from local jurisdiction in relation to its own discipline.
32. Moreover all these agreements oblige a sending state to maintain discipline of its forces under its own (existing) military justice system.
33. It is the practice that when the SANDF deploys members extra- territorially, status of forces agreements are concluded with the receiving state. A standard provision incorporated in such an agreement is a clause dealing with criminal jurisdiction which provides
for members of the SANDF to be subject to the exclusive jurisdiction of the South African military courts in respect of any military or civilian criminal offence committed in the receiving country. Status of forces agreements exist with Lesotho, Zimbabwe and Singapore.
34. Beside status of forces agreements, other international agreements such as Troop Contributing Agreements, agreements touching defence co-operation and the like may also have similar criminal (immunity) jurisdictional provisions. At present there are approximately 66 agreements or memoranda of understanding between South African and 40 foreign countries and 10 international organizations. There are also currently 14 Defence Cooperation Agreements in existence.
35. The internationally accepted practice reflected in these agreements is to exclude the sending State’s military from the jurisdiction of a receiving State’s criminal jurisdiction. For example, recently, members of the SANDF were tried by a South African military court for offences (as described in the Military Discipline Code) committed in Lesotho (36 members), Puerto Rico (one member) and in Mozambique (one member).
_______________________________
CHARLES HENRY DUNSTAN SMART
I certify that:
1. The deponent acknowledged to me that:
1.1 He knows and understands the contents of this declaration;
1.2 He has no objection to taking the prescribed oath;
1.3 He considers the prescribed oath to be binding on his conscience.
2. The deponent thereafter uttered the words: “I swear that the contents of this declaration are true, so help me God”.
3. The deponent signed this declaration in my presence at the address set out hereunder on this day of AUGUST 2001.
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COMMISSIONER OF OATHS
