B21-2019

            REPUBLIC OF SOUTH AFRICA

MILITARY DISCIPLINE BILL

(As introduced in the National Assembly (proposed section 75); explanatory summary of
Bill and prior notice of its introduction published in Government Gazette No. 42346

of 28 March 2019)
(The English text is the offıcial text of the Bill)

(MINISTER OF DEFENCE AND MILITARY VETERANS)

[B 21—2019] ISBN 978-1-4850-0621-3

No. of copies printed .........................................500



BILL
To provide for an effective administration of military justice system and
maintenance of discipline in the Defence Force; to establish and regulate military
courts and appointment of judicial officers and court officials; to provide for the
appointment of the Judge Advocate General and Provost Marshal General of the
Defence Force; to provide for administrative processes; to repeal the Military
Discipline Supplementary Measures Act, 1999; and to provide for matters
connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, asfollows:—
ARRANGEMENT OF SECTIONS

Sections

1. Definitions

CHAPTER 1

OBJECT AND APPLICATION

2. Object of Act
3. Application of Act
4. Extra-territorial application of Act
5. Conflict with other Acts

CHAPTER 2

ESTABLISHMENT AND JURISDICTION OF MILITARY COURTS

6. Establishment of military court system
7. Limitation of jurisdiction of military courts
8. Territorial jurisdiction of military courts
9. Offences of concurrent jurisdiction with civilian courts
10. Civilian offences under Act
11. Composition and jurisdiction of Court of Military Appeals
12. Powers of Court of Military Appeals
13. Powers of Court of Military Appeals to require argument or evidence
14. Appointment of Registrar of Court of Military Appeals
15. Functions of Registrar of Court of Military Appeals
16. Composition and jurisdiction of Court of Senior Military Judicial Reviews
17. Powers of Court of Senior Military Judicial Reviews
18. Composition and jurisdiction of Court of Military Judicial Reviews
19. Powers of Court of Military Judicial Reviews
20. Composition and jurisdiction of Court of Senior Military Judge

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21. Composition and jurisdiction of Court of Military Judge
22. Military assessors
23. Members under instruction
24. Prescription of offences
25. Trial when accused no longer in employ or service of Defence Force
26. Computation of specified period
27. Prohibition of double jeopardy

CHAPTER 3

APPOINTMENTS, ASSIGNMENTS, FUNCTIONS AND RELATED MATTERS

28. Appointment of Judge Advocate General
29. Functions of Judge Advocate General
30. Powers of Judge Advocate General in respect of assignment
31. Powers of Minister in respect of assignment of functions
32. Period of appointment or assignment of Director, Senior Staff Officer Military

Defence Counsel and Military Law Practitioners
33. General provisions with regard to assignments
34. Termination of appointment and assignment
35. Oaths and affirmations
36. Assignment and functions of local representative of Judge Advocate General
37. Functions, direction and control of Military Prosecution Counsels
38. Prosecution Counsel
39. Functions, direction and control of Military Defence Counsels
40. General duties of Prosecution Counsels and Military Defence Counsels
41. General duties of Military Judges and Senior Military Judges
42. Duties of Military Judicial Review Judges and Senior Military Judicial Review

Judges
43. Interpretation of Chapter

CHAPTER 4

CIVILIAN COURTS

44. Jurisdiction of civilian courts
45. Furnishing of particulars of trial by civilian court

CHAPTER 5

ARREST, WARNING AND CONFINEMENT

46. Persons authorised to arrest without warrant
47. Warrant of arrest
48. Manner and effect of arrest
49. Personal non-liability for wrongful arrest
50. Saving of constitutional rights and liability
51. Saving of other powers of arrest
52. Breaking open premises for purpose of arrest
53. Warning
54. Handing over of arrested person
55. Confinement of arrested person
56. Persons arrested for desertion or absence without leave
57. Rights in respect of custody
58. Warrant of committal or release

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CHAPTER 6

INVESTIGATIONS AND PRE-TRIAL PROCEDURES

Part 1

Search and seizure

59. Search of arrested person
60. Search with or without search warrant
61. Personal non-liability for wrongful search
62. Entering of premises for purposes of obtaining evidence
63. Transfer of seized property or item to military court for purposes of trial

Part 2

Forfeiture and disposal of property or item

64. Disposal of property or item after seizure
65. Disposal of property or item where no prosecution is instituted or where

property or item is not required for purposes of prosecution
66. Disposal of property or item after conclusion of military trial proceedings
67. Forfeiture of property or item to State on conviction

Part 3

General provisions

68. Powers in respect of prints, photographs and samples of accused without
warrant

Part 4

Pre-trial investigations

69. Duty of Officers Commanding and commanding officers
70. Accounts of arrest or warning
71. Obtaining and completion of account of arrest or warning
72. Procedure after warning of person
73. Function of Disciplinary Adjutant regarding pre-trial investigation
74. Duty to refer case following investigation by military police or civilian police
75. Notification of referral to Officer Commanding or commanding officer
76. Investigation and process following receipt of military police dockets
77. Receipt of findings of board of inquiry by Judge Advocate General
78. Receipt of findings of board of inquiry by local representative of Judge

Advocate General
79. Collation of evidence during pre-trial investigation phase

CHAPTER 7

ARREST AND APPEARANCE BEFORE COURT

80. Arraignment of arrestees
81. Non-arraignment of arrestee
82. Remand in custody

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CHAPTER 8

LEGAL REPRESENTATION AND ASSISTANCE TO ACCUSED

Part 1

Legal representation

83. Right to legal representation

Part 2

Penalties

84. Sentences
85. Alternative punishments
86. Certain provisions to apply in case of particular punishments
87. Right of offender to benefit by least of prescribed punishments
88. Prohibition of corporal punishment
89. Temporary inability to serve sentence or sanction
90. Effect of sentence of reduction or reversion in rank
91. Suspension of sentence
92. Adjustment of fines
93. Declaratory orders
94. Payment whilst awaiting appeal or review

CHAPTER 9

PROMULGATION, EXECUTION OF SENTENCES AND ORDERS AND
MATTERS RELATED TO CORRECTIONAL CONFINEMENT

95. Execution and promulgation
96. Commencement of sentence
97. Sentenced offender not immediately transferred
98. Correctional centre, military prison, military correctional facility, military

police cell, military police detachment or military lock-up
99. Sentences of imprisonment and correctional confinement imposed outside

Republic
100. Detention of person charged under Act by head of correctional centre or person

in charge of military prison, military correctional facility, military police cell,
military police detachment or military lock-up

101. Segregation of accused and convicted persons
102. Transfer of offenders

CHAPTER 10

APPEALS AND REVIEWS

103. Right to review of trial or declaration
104. Acquittal not subject to review
105. Review
106. Waiver
107. Review Authority may call for reasons
108. Application to Court of Military Appeals
109. Right of prosecution to appeal to Court of Military Appeals
110. Saving with regard to convictions set aside
111. Recusal by member of Court of Military Appeals
112. Prerogative of mercy

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CHAPTER 11

MILITARY DISCIPLINARY HEARING

113. Establishment of military disciplinary hearing
114. Composition, jurisdiction of military disciplinary hearing and prescription
115. Duty of Officer Commanding, commanding officer or superior officer with

regard to allegations of misconduct
116. Duty of Disciplinary Adjutant when case referred to military disciplinary

hearing
117. Duties of military police officials with regard to allegations of misconduct
118. Rights of implicated member
119. Limitation on legal representation
120. Failure to comply with summons
121. Competent but not compellable witness giving evidence outside Republic
122. Witness to make use of approved accommodation and transport
123. Language
124. Sanctions of military disciplinary hearing
125. Specific sanction for member serving correctional confinement
126. Specific sanctions for prisoner of war
127. Orders by military disciplinary hearing
128. Deduction of fine
129. Forfeiture of salary
130. Compensation for loss of or damage to public property
131. Orders relating to compulsory rehabilitation
132. Orders relating to suspension of driving licence, pilot’s licence or vessel

steering competency certificate
133. Scrutiny and appeal process of military disciplinary hearing
134. Publication and announcement of finding, sanction and order
135. Notification by Officer Commanding or commanding officer upon completion

of military disciplinary hearing

CHAPTER 12

MILITARY POLICE

Part 1

Chief of Defence Force and Provost Marshal General

136. Military policing, powers and duties of Chief of Defence Force
137. Appointment of Provost Marshal General
138. Term of office of Provost Marshal General
139. Powers and duties of Provost Marshal General
140. Powers conferred by statutory provisions

Part 2

Military police general provisions

141. Handing over of arrested person
142. Self-defence and use of force
143. Hindering or obstructing of military police official
144. Traffic control powers and duties of military police officials
145. Confessions
146. Oaths and affirmations of military police officials
147. Oath of appointment as Provost Marshal General
148. Oath of appointment as military police official
149. Military order policing capability
150. Military special crime investigation capability

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CHAPTER 13

GENERAL PROVISIONS, REGULATIONS, RULES, TRANSITIONAL
PROVISIONS AND REPEAL OF LAWS

Part 1

General provisions

151. Suspension of privileges
152. Accused entitled to verdict after pleading
153. Privilege
154. Corrective training
155. Delegation of powers by Judge Advocate General
156. Administration
157. Appointment or enlistment in Defence Force
158. Database of members
159. Responsibility of military command group in relation to discipline
160. Independent performance of functions
161. Functions of Clerk of Court of Senior Military Judicial Reviews and Clerk of

Court of Military Judicial Reviews

Part 2

General regulations and rules

162. Regulations and rules

Part 3

Transitional provisions

163. Transitional provisions

Part 4

Repeal of laws, short title and commencement

164. Repeal of laws
165. Short title and commencement

SCHEDULE 1

DISCIPLINARY AND OTHER MILITARY OFFENCES

SCHEDULE 2

MILITARY DISCIPLINARY HEARING

ACTS OF MISCONDUCT

SCHEDULE 3

REPEAL OF ACTS

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Definitions

1. In this Act, unless the context otherwise indicates—
‘‘appeal authority’’ means the authority authorised to consider any appeal against
any sanction, order, discharge or dismissal in terms of this Act or any regulations;
‘‘appropriately qualified’’ means the successful completion of the official
departmental military qualification course in military law presented by the School
of Military Justice and other military courses which are required for his or her
current rank;
‘‘board of inquiry’’ means the board of inquiry contemplated in Chapter 16 of the
Defence Act;
‘‘camp’’ includes a ship of the South African Navy;
‘‘cashiering’’ means the dishonourable dismissal of an officer, which includes the
withdrawal and cancellation of that officer’s commission, the withdrawal of
military post-nominal letters and the return of military insignia, rank epaulets,
qualification badges, proficiency badges, military medals and decorations, as well
as commendation certificates and citations and is executed according to military
policy on parade with due regard to human dignity;
‘‘Chaplain’’ means an officer who fulfils the function of minister of religion in the
Defence Force;
‘‘Chief of the Defence Force’’ means the Military Commander appointed by the
President as Chief of the Defence Force in terms of the Defence Act;
‘‘child’’ means a person under the age of 18 years;
‘‘civilian authority’’ means—
(a) a civilian court; or
(b) the National Director of Public Prosecutions, a Deputy National Director of

Public Prosecutions or a Director of Public Prosecutions appointed in terms of
the National Prosecuting Authority Act;

‘‘civilian court’’ means a court contemplated in section 166(b), (c) or (d) of the
Constitution having jurisdiction in criminal matters in the Republic;
‘‘civilian offence’’ means any—
(a) offence not being an offence under Schedule 1; and
(b) crime in terms of international law, including customary international law,

which is punishable under South African law, in respect of which a penalty
may be imposed by a civilian court;

‘‘commanding officer’’means an officer who is assigned or appointed to command
a military force structure element that is below that of a unit or ship;
‘‘Constitution’’ means the Constitution of the Republic of South Africa, 1996;
‘‘correctional centre’’ means such place as established under the Correctional
Services Act;
‘‘correctional confinement’’ means custody in a correctional facility in execution
of a sentence contemplated in section 84;
‘‘correctional facility’’ means a military facility established or deemed to have
been established under section 98;
‘‘Correctional Services Act’’ means the Correctional Services Act, 1998 (Act
No. 111 of 1998);
‘‘corrective punishment’’ means supervised training, work, instruction or
forfeiture of privileges as contemplated in sections 84(2), 84(3)(c), 84(3)(e) to (h),
125 and 126;
‘‘court official’’ means a Senior Military Judge or Military Judge, Military
Prosecution Counsel, assessor, legal representative, interpreter, court orderly,
escorts, recording officer or member under instruction, including any other person
required for the proper functioning of a military court;
‘‘Criminal Law (Sexual Offences and Related Matters) Amendment Act’’
means the Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007 (Act No. 32 of 2007);
‘‘Criminal Procedure Act’’ means the Criminal Procedure Act, 1977 (Act No. 51
of 1977);
‘‘custody’’ includes any confinement in military facilities or civilian facilities;
‘‘Defence Act’’ means the Defence Act, 2002 (Act No. 42 of 2002);
‘‘Defence Force’’ means the South African National Defence Force contemplated
in section 11 of the Defence Act;

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‘‘degree in law’’ means a degree of Bachelor of Laws, conferred by any university
in the Republic, or any law degree recognised to be equivalent to such degree;
‘‘Department’’ means the Department of Defence and Military Veterans;
‘‘deploying authority’’ means the Chief Joint Operations of the Defence Force or
a General or Flag Officer designated for such purpose;
‘‘Disciplinary Adjutant’’ means an appropriately qualified Warrant Officer or
officer appointed or designated by an Officer Commanding or commanding officer
to perform the functions of a Disciplinary Adjutant as provided in this Act, or a
Military Law Practitioner contemplated in section 119;
‘‘enemy’’ includes any armed rebels, mutineers or members of a belligerent force;
‘‘extra labour’’ means supervised additional physical work intended to clean,
repair or maintain military property or premises and contribute towards the
advancement of military discipline with due regard to human dignity;
‘‘fatigue duties’’ for purposes of this Act, includes, but is not limited to, cleaning,
digging or other laborious tasks;
‘‘field rank’’ means any rank not lower than that of Major or any equivalent rank;
‘‘Firearms Control Act’’ means the Firearms Control Act, 2000 (Act No. 60 of
2000);
‘‘Geneva Convention’’ means the Geneva Convention Relative to the Treatment
of Prisoners of War, 75 U.N.T.S. 135, 1949;
‘‘implicated member’’ means any person who is the subject of an official
investigation or military disciplinary hearing;
‘‘inmate’’ means any person serving a penalty of correctional confinement in a
correctional facility;
‘‘institution’’ includes a club, mess, trading institution or other institution
established or conducted under the Defence Act, and includes any fund established
and controlled under that Act, including those institutions referred to in regulations;
‘‘Judge Advocate General’’ means the Judge Advocate General of the Defence
Force appointed in terms of section 28;
‘‘legal representative’’ means any person who is admitted to practice as an
advocate, an attorney or candidate attorney with the right of appearance in the High
Court or a Magistrate’s Court of the Republic, and includes any Military Law
Practitioner who has been assigned as a Military Defence Counsel;
‘‘member’’ means any officer or any other rank appointed in the Defence Force;
‘‘member of a visiting force’’ means any person who is—
(a) subject to the military law of the country of that visiting force;
(b) a member of another force but who is attached to such visiting force; or
(c) a civilian who entered into employment in connection with such visiting force

outside the Republic;
‘‘military disciplinary offence’’ means any offence in terms of Schedule 1, for
which the maximum prescribed punishment does not exceed imprisonment for a
period of one year;
‘‘Military Discipline Supplementary Measures Act’’ means the Military
Discipline Supplementary Measures Act, 1999 (Act No. 16 of 1999);
‘‘Military Law Practitioner’’ means an appropriately qualified officer holding a
degree in law, who is admitted to practice as an advocate or an attorney with right
of appearance in the High Court or a Magistrate’s Court of the Republic;
‘‘military offences’’ means an offence referred to in Schedule 1 for which the
maximum punishment prescribed exceeds imprisonment of one year;
‘‘military police official’’ means a person contemplated in terms of Chapter 5 of
the Defence Act;
‘‘military property or premises’’ means any property or premises, or any land or
area of water, including any facility used or intended for residential purposes,
camp, cantonment, barracks, wharf, landing place, dockyard, bridge, ferry, toll-bar,
gate or point of entry or exit, installation or road either inside or outside the borders
of the Republic managed by or under the control or custody of the Defence Force
or utilised either temporarily or permanently in support or pursuance of military
security and the Defence Force’s constitutional mandate to defend and protect the
Republic, its territorial integrity and its people;
‘‘Minister’’ means the Minister of Defence and Military Veterans;
‘‘motor vehicle’’ means any motorised or mechanised vehicle that is a self
propelled wheeled or tracked vehicle, motorcycles, motorised bicycles, electric

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motor, hybrid electric vehicles and plug-in-hybrids, including any towed vehicle
motioned or propelled by any of the aforementioned;
‘‘National Prosecuting Authority’’ means the National Prosecuting Authority
established in terms of the National Prosecuting Authority Act;
‘‘National Prosecuting Authority Act’’ means the National Prosecuting Authority
Act, 1998 (Act No. 32 of 1998);
‘‘National Road Traffic Act’’ means the National Road Traffic Act, 1996 (Act
No. 93 of 1996);
‘‘national security’’ means an all-encompassing condition in which all South
Africans—
(a) live in freedom, peace and safety;
(b) participate fully in the process of democratic governance;
(c) enjoy the protection of fundamental rights;
(d) have access to resources and the basic necessities of life; and
(e) inhabit an environment which is not detrimental to their health, well-being

and bodily integrity;
‘‘National Strategic Intelligence Act’’ means the National Strategic Intelligence
Act, 1994 (Act No. 39 of 1994);
‘‘offender’’ means any person who has been convicted by any court;
‘‘officer’’ means an officer defined in section 1 of the Defence Act;
‘‘Officer Commanding’’ includes the Chief of the Defence Force and any General
Officer, Flag Officer or officer who has been appointed to command any Service,
Division, Formation or Fleet, Brigade, Contingent, Unit or equivalent Force
Structure in the Defence Force, including—
(a) a local representative of the Judge Advocate General and a uniformed member

who is a director in the Defence Legal Services Division of the Defence Force;
(b) an officer or person in charge or superintendent of a military correctional

facility or military prison;
(c) an officer in command or in charge of any camp or facility in which prisoners

of war are held;
(d) for purposes of conducting a military disciplinary hearing—

(i) an appropriately qualified officer with a rank not lower than Captain or its
equivalent, or a subordinate in rank, authorised by any person contem-
plated in this definition, to conduct a military disciplinary hearing;

(ii) the Officer Commanding within the next level of command where the
Officer Commanding of first instance is not available or is prohibited to
conduct such military disciplinary hearing in the interest of a fair
hearing, or any other practical circumstances;

(iii) in the case of General Officers or Flag Officers, the Service Chief
determined by the Service affiliation of the implicated member or a
Divisional Chief; or

(iv) Chief of the Defence Force in the case of Chiefs of Services or Divisional
Chiefs;

(e) a commandant of any military training institution, school or facility; and
(f) any officer in charge of a semi-autonomous section of a unit or Force Structure

Element of the Defence Force;
‘‘operational deployment’’ includes military service in fulfilment of an interna-
tional obligation or in cooperation with the South African Police Service and other
organs of state or in cooperation with multi-national military organisations or any
force cooperating with the Defence Force or against an enemy or against acts
threatening the national security of the Republic;
‘‘other rank’’ means a member of the Defence Force other than an officer;
‘‘peace officer’’ means any person as defined in section 1 of the Criminal
Procedure Act;
‘‘person who is mentally disabled’’ means a person affected by any mental
disability, including any disorder or disability of the mind, to the extent that he or
she, at the time of the alleged commission of the offence in question, was—
(a) unable to appreciate the nature and reasonably foreseeable consequences of a

sexual act;
(b) able to appreciate the nature and reasonably foreseeable consequences of such

an act, but unable to act in accordance with that appreciation;
(c) unable to resist the commission of any such act; or
(d) unable to communicate his or her unwillingness to participate in any such act;

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‘‘person who is subject to this Act’’ means any person referred to in section 3;
‘‘police official’’ includes any member of the South African Police Service or of
any statutory police force or service or of any recognised statutory body of persons
exercising police powers;
‘‘prescribed’’ means prescribed by regulation or rules;
‘‘Promotion of Access to Information Act’’ means the Promotion of Access to
Information Act, 2000 (Act No. 2 of 2000);
‘‘Prosecution Counsel’’ means any Military Law Practitioner assigned as a
Prosecution Counsel under section 30(a);
‘‘Public Finance Management Act’’ means the Public Finance Management Act,
1999 (Act No. 1 of 1999);
‘‘public property’’ means any property belonging to, in the possession of, or under
the control of, the State or under the control of any security force acting in
cooperation with the Defence Force;
‘‘Regular Force’’ means the component of the Defence Force referred to section
11(a) of the Defence Act;
‘‘rehabilitative labour’’ means supervised work, service, labour or regimental
tasks commensurate to the offence or misconduct the member was convicted of or
was pronounced to have committed and which is the most suitable form of
punishment or sanction to rehabilitate such member and correct any performance
deficiency or offending behaviour or to improve military discipline standards or to
change the deficient or recalcitrant attitude, disposition, behaviour or military
orientation, with due regard to human dignity;
‘‘Reserve Force’’ means the component of the Defence Force referred to in section
11(b) of the Defence Act;
‘‘Review Authority’’ means the Court of Military Appeals, Court of Senior
Military Judicial Reviews or Court of Military Judicial Reviews established in
terms of this Act;
‘‘Road Traffic Management Corporation Act’’ means Road Traffic Management
Corporation Act, 1999 (Act No. 20 of 1999);
‘‘safeguard’’ means a party of military personnel, or member thereof, detached for
the protection of any person, place, aircraft, military installation or military
property or premises or the protection of or watch of a vessel, including any officer
on duty, officer of the day, officer of the guard or officer of the watch or Warrant
Officer or Non-Commissioned Officer or ratings on duty;
‘‘Service Chief’’ means the Chief of each individual Service as contemplated in
section 12 of the Defence Act;
‘‘Services’’ means the Services as contemplated in section 12 of the Defence Act;
‘‘sexual act’’ has the same meaning as defined in section 1 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act;
‘‘sexual offence’’ has the same meaning as defined in section 1 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act;
‘‘Shareholders Committee’’ means the body established in terms of section 6(1)
of the Road Traffic Management Corporation Act;
‘‘superior officer’’, in relation to a person who is subject to this Act, means any
officer, Warrant Officer or Non-Commissioned Officer who holds a higher rank
than that person, or who holds the same or an equivalent rank but is in a position of
authority over that person: Provided that for the purpose of—
(a) enforcing this Act, a Chaplain bearing a Chaplain’s rank insignia is an officer

of a military rank below Second Lieutenant; and
(b) a trial or disciplinary hearing in respect of a person bearing a Chaplain’s rank

insignia, such a Chaplain is of a military rank of a Colonel;
‘‘this Act’’ includes the Schedules to this Act and any regulations or rules made
under this Act;
‘‘unit’’ includes Services, Divisions at Level 2, Formations or Fleet at Level 3,
Command Structures, Brigades, Contingents, Bases, Ships, Submarines,
Squadrons or other Force Structure Elements at Level 4, in the Defence Force, as
well as any entity under the command of the Judge Advocate General or a local
representative of the Judge Advocate General; and
‘‘vessel’’ refers to any craft designed for transportation on water, and includes a
submarine.

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CHAPTER 1

OBJECT AND APPLICATION

Object of Act

2. The object of this Act is to ensure and maintain proper order and discipline in the
Defence Force as required by the Constitution by—

(a) empowering commanders to effect military discipline in the Defence Force;
(b) providing for the proper administration of military justice;
(c) establishing military courts and procedures;
(d) providing for access to the High Court of South Africa by an accused;
(e) establishing military disciplinary hearings and procedures;
(f) establishing processes and procedures for the suspension of members;
(g) establishing processes and procedures for an administrative discharge or

dismissal;
(h) providing for the appointment, functions, powers and duties of the Provost

Marshal General as well as military police officials and related matters; and
(i) empowering the Minister and Officers Commanding or commanding officers

to provide for the—
(i) prohibition of access of any person to;

(ii) the removal or exiting of any person from; and
(iii) control over any person on,
military property or premises.

Application of Act

3. (1) This Act applies to the following persons:
(a) Every member of the Regular Force;
(b) every member of the Reserve Force—

(i) while rendering any service, undergoing any training or carrying out any
duty in terms of the Defence Act; or

(ii) when liable or called up therefor, and fails to render that service or to
undergo that training or carry out that duty;

(c) every person, other than members of a visiting force, lawfully detained by
virtue of, or serving sentences of, correctional confinement or imprisonment,
if served in a military prison or facility, imposed under this Act;

(d) every member of an auxiliary service established in terms of the Defence Act;
(e) every member of the Military Skills Development System or similar

developmental system established in terms of the Defence Act;
(f) every person attached to the Defence Force in terms of the Defence Act,

including any military or civilian member of a force of any other State or
international body who is attached temporarily to the Defence Force;

(g) every learner under instruction or training at a Defence Force training
institution or unit;

(h) every person not otherwise subject to this Act, who with the consent of the
Officer Commanding or commanding officer, as the case may be, of any
portion of the Defence Force is with, or accompanies, or performs duty with,
that portion of the Defence Force;

(i) every prisoner of war contemplated in—
(i) the Implementation of the Geneva Conventions Act, 2012 (Act No. 8 of

2012); or
(ii) customary international law,
and who is under the power of the Republic and detained by the Defence
Force;

(j) every person, not otherwise subject to this Act, who is a member of a
voluntary medical, nursing or relief organisation registered with, or attached
to, the Defence Force or the Department and who, outside the borders of the
Republic, accompanies or otherwise renders services to, or with, the Defence
Force;

(k) in relation to a visiting force—
(i) a deserter or absentee without leave;

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(ii) a member of a reserve force or auxiliary service who, having failed to
obey a notice calling upon that member to appear at any place for service
or duty, is by the law of the State of that force or service, liable to
punishment for a military offence;

(iii) any other person who is subject to the military law of the State of that
visiting force;

(iv) a member of another force but who is attached to such visiting force; or
(v) a civilian who entered into employment in connection with such visiting

force outside the Republic;
(l) any civilian who, with the written consent of any Officer Commanding or

commanding officer or in terms of an agreement, operates or uses military
vehicles, vessels or equipment or operates specialised military equipment or
machinery whether inside or outside the borders of the Republic;

(m) any employee or member of the South African Police Service, or an employee
of another organ of state, who, with the written consent of the Chief of the
Defence Force, or relevant Service Chief or Operational Formation Authority
or the designated Officer Commanding or commanding officer, accompanies
or participates in a military exercise or military operation on land, in the air or
at sea, whether inside or outside the borders of the Republic;

(n) any person who has been seconded by another organ of state or organisation
to the Defence Force; and

(o) any person not otherwise subject to this Act but who is contemplated in item
34 of Schedule 1.

(2) Despite subsection (1), a person referred to in subsection (1)(f), (g), (h), (j) or (k)
may be subject to an international agreement between the Defence Force and other
forces, which may determine the measures to be taken against such a person in the case
of an offence committed in terms of South African law.

(3) A person referred to in subsection (1)(k) may only be apprehended in compliance
with a written request from the applicable government or the officer who is in command
of the visiting force and such person must be handed over to the authorities of that State
at a place in the Republic agreed upon with the particular government or officer.

(4) Every person who is subject to this Act, other than a member, is deemed to bear
the rank of a Private or its equivalent: Provided that—

(a) every rank bearing member in another service or force, is deemed to bear a
Defence Force rank equivalent to that held by him or her in the force or service
of which he or she is a member;

(b) where there is uncertainty as to which Defence Force rank the person
contemplated in paragraph (a) should be deemed to bear, the Director of
Military Prosecutions must make a ruling in this regard; and

(c) where paragraph (a) does not apply and an agreement in terms of subsection
(2) provides for the rank that such person should be deemed to bear, such
person is deemed to bear that rank.

(5) Subject to section 84(9), a person other than a member or a rank bearing member
of a visiting force referred to in subsection (1), must, if convicted, be sentenced to either
imprisonment, a fine or orders related to such sentences.

(6) Any civilian or disciplinary proceedings that may be instituted against the person
contemplated in subsection (5) must be considered in the alternative only.

(7) A prisoner of war may not be tried by a military court for a contravention of item
39(e) of Schedule 1: Provided that a prisoner of war may be brought before a military
disciplinary hearing for the misconduct contemplated in item 21 of Schedule 2.

Extra-territorial application of Act

4. (1) This Act applies inside and outside the borders of the Republic to members of
the Defence Force and all persons attached to the Defence Force.

(2) Whenever this Act is enforced outside the borders of the Republic, each trial or
hearing held, including any finding, penalty, sanction, order or declaration made,
pronounced or imposed in terms of its provisions, must be as valid and effective, as if it
had been made, pronounced or imposed in the Republic.

(3) For the purposes of ensuring access to a High Court of the Republic, anything
done outside the borders of the Republic in pursuance or purported pursuance of this
Act, is deemed to have been done within the jurisdictional area of the North Gauteng
High Court in Pretoria.

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Conflict with other Acts

5. If any conflict relating to any matter dealt with in this Act arises between this Act
and the provisions of any other law, except the Constitution or any Act expressly
amending this Act, the provisions of this Act prevail.

CHAPTER 2

ESTABLISHMENT AND JURISDICTION OF MILITARY COURTS

Establishment of military court system

6. (1) The military court system is hereby established and consists of the—
(a) Court of Military Appeals;
(b) Court of Senior Military Judicial Reviews;
(c) Court of Military Judicial Reviews;
(d) Court of Senior Military Judge; and
(e) Court of Military Judge.

(2) Every military court referred to in subsection (1) must exercise the jurisdiction and
powers conferred on it by this Act and must do so in accordance with the spirit of the
Constitution.

(3) The Court of Military Appeals is the highest military court and a judgment thereof
binds all other military courts.

Limitation of jurisdiction of military courts

7. No military court is competent to pronounce on the validity of any—
(a) act of the President; or
(b) law, including the common law, regulation or rule.

Territorial jurisdiction of military courts

8. Any person, charged with an offence in respect of which a military court has
jurisdiction, may be tried and sentenced for that offence at any place by that court having
jurisdiction in respect of that person at the time of the commencement of the trial.

Offences of concurrent jurisdiction with civilian courts

9. (1) When a person who is subject to this Act is suspected of having committed
treason, espionage, public violence, terrorism, sedition, murder, culpable homicide,
robbery, kidnapping, arson, torture or a sexual offence, or an attempt to commit any of
these offences or crimes, within the Republic, the matter must be dealt with in
accordance with the provisions of the National Prosecuting Authority Act, and any
ensuing trial must take place in a civilian court.

(2) Despite the provisions of subsection (1), when a person who is subject to this Act
is suspected of having committed outside the Republic—

(a) any crime under international law or an offence punishable under South
African law;

(b) any offence contemplated in subsection (1) against any other member; or
(c) an offence against the property of another member, or property or premises

under control of the Defence Force,
such offences or crimes may be tried before an appropriate military court as
contemplated in section 20(1).

(3) Subject to subsection (2), when called upon by the appropriate civilian authority
to do so, a person who is subject to this Act must deliver to that civilian authority a
person under his or her control who is accused of an offence punishable by a civilian
court.

Civilian offences under Act

10. (1) Subject to sections 9 and 21(2), a person who is subject to this Act, excluding
a civilian subject to this Act, may be tried by a military court for a civilian offence and

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may in respect of such offence be sentenced to any penalty within the jurisdiction of the
court convicting him or her.

(2) A military court may try any person who is subject to this Act for any offence
under the Defence Act or this Act as if the offence was an offence under Schedule 1:
Provided that such court may not, in respect of any such offence, impose a penalty which
is beyond the jurisdiction of such a court in terms of this Act or exceeds the penalty
prescribed for that offence by the Defence Act or this Act.

Composition and jurisdiction of Court of Military Appeals

11. (1) The Minister may appoint the following persons as members of a Court of
Military Appeals:

(a) Three judges of any Division of the High Court of the Republic in consultation
with the Judge President concerned, of whom one must be appointed by the
Minister as Chairperson;

(b) the Director Military Judges or one appropriately qualified officer, holding a
degree in law, who holds a rank not below that of Colonel or its equivalent and
who has not less than nine years’ experience in the administration of military
justice; and

(c) one person who has experience in exercising command in the field in the
conducting of operations.

(2) The Court of Military Appeals must hear matters concerning the commission,
outside the Republic, of the offence of treason, espionage, public violence, terrorism,
sedition, murder, culpable homicide, robbery, kidnapping, arson, torture or a sexual
offence, or an attempt to commit any of these offences or crimes, or where any
contravention of items 4, 5 or 79 of Schedule 1 is involved.

(3) In respect of matters other than those referred to in subsection (2), the Court of
Military Appeals must hear the related appeals or reviews of such other matters, and be
composed of three members, being—

(a) a Chairperson who must be a judge of any Division of the High Court of the
Republic;

(b) the Director Military Judges or one appropriately qualified officer holding a
degree in law, who holds a rank not below that of Colonel or its equivalent and
who has not less than nine years’ experience in the administration of military
justice; and

(c) one person who has experience in exercising command in the field in the
conducting of operations.

(4) For purposes of considering conflicting judgments of the Court of Military
Appeals or for the purpose of obtaining clarity on any point of law, the Minister may, in
consultation with the Chief Justice, appoint—

(a) three Judges of any Division of the High Court in consultation with the Judge
President concerned or any three judges of the Supreme Court of Appeal of the
Republic, who have not been appointed in terms of subsection (1)(a) or (3)(a),
of whom one must be appointed by the Minister as Chairperson and two as
alternate chairpersons; and

(b) two appropriately qualified officers as Military Assessors, each—
(i) holding a degree in law;

(ii) holding a rank not below that of Colonel or its equivalent; and
(iii) not having less than nine years’ legal experience in the application of

military law.
(5) The Registrar of the Court of Military Appeals must advise the Judge Advocate

General on the judges and members appointed in terms of subsection (4) who are
available at any given time, when requested to do so.

(6) The Judge Advocate General may upon receipt of an application contemplated in
section 12(9), schedule and convene the Court of Military Appeals consisting of—

(a) any three of the judges of any Division of the High Court, with one as
Chairperson, who must be appointed by the Minister;

(b) the Director Military Judges;
(c) two appropriately qualified officers each holding a degree in law, who hold a

rank not below that of Colonel or its equivalent and who have not less than
nine years’ experience in the administration of military justice;

(d) the Director Military Judges and one appropriately qualified officer holding a
degree in law and who holds a rank not below that of Colonel or its equivalent,

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and who has not less than nine years’ experience in the administration of
military justice; and

(e) two appropriately qualified officers, each holding a degree in law, and holding
a rank not below that of Colonel or its equivalent and each of whom has not
less than nine years’ experience in the administration of military justice.

(7) In the event of any one of the members of the Court of Military Appeals becoming
unavailable for whatever reason during the course of the proceedings of the Court of
Military Appeals, the Chairperson must, if deemed appropriate at that stage, determine
whether a decision by means of voting as contemplated in section 12 is possible, and if
not, approach the Judge Advocate General, who must nominate a suitable substitute for
such member or schedule the Court of Military Appeals to start afresh after considering
any recommendation of the Chairperson in this regard.

(8) The Minister may appoint one or more additional members, who meet the criteria
referred to in subsection (1) or (3), to alternate for any member, including the
chairperson, of a Court of Military Appeals.

(9) The Court of Military Appeals may sit at any place inside or outside the borders
of the Republic.

(10) A member of the Court of Military Appeals may be employed on a part-time or
full-time basis.

(11) A member of the Court of Military Appeals who is not in the full-time
employment of the State or an organ of state must receive remuneration at the prescribed
rate and may be paid the determined travelling, accommodation and subsistence
allowances in connection with the execution of his or her duties as a member of that
Court.

(12) The Minister, with the concurrence of the Minister of Finance, may determine the
terms and conditions, remuneration and allowances contemplated in subsection (11).

(13) A judge of any Division of the High Court of the Republic appointed to the Court
of Military Appeals and the other members of the Court of Military Appeals must be
appointed for a fixed period that is determined by the Minister.

Powers of Court of Military Appeals

12. (1) The Court of Military Appeals contemplated in section 11(1) or (3)—
(a) must exercise review and appeal competencies in respect of the proceedings

of any case conducted before any military court and has appeal powers upon
application for appeal; and

(b) may, after due consideration of the record of the proceedings of any case,
hearing or of any representations submitted to it, or argument heard by it in
terms of this Act—
(i) uphold the finding or the finding and the sentence;

(ii) set the finding and sentence aside;
(iii) substitute for the finding any finding which the evidence on record

supports beyond a reasonable doubt and which was put at the trial as an
alternative charge or could have been brought on the charge as a
competent alternative verdict by the military court under any other law;
or

(iv) if it has upheld the finding, or substituted a finding, vary the sentence:
Provided that in the case of an appeal it may not increase any sentence
unless the offender and the Prosecution Counsel have been given the
opportunity to address the Court to make submissions to it on the
appropriateness or otherwise of the sentence imposed by the court which
convicted the offender.

(2) The Court of Military Appeals contemplated in section 11(1) or (3) may correct
any error in any finding, sentence, order or declaration recorded in any case considered
by that Court.

(3) Where any finding, sentence, order or declaration was not clearly or correctly
recorded or where an invalid sentence, order or declaration was imposed, made or
pronounced, the Court of Military Appeals contemplated in section 11(1) or (3) may—

(a) refer the matter back to the military court or Senior Military Judge to—
(i) impose a valid sentence or to make a valid order or valid declaration; or

(ii) be clearly and correctly recorded;

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(b) on its own accord—
(i) impose a valid sentence or make a valid order or valid declaration that the

military court or Senior Military Judge could or should have made; or
(ii) record a clear and correct finding, sentence, order or declaration, and, in

doing so, it must apply the interpretation which is most favourable to the
accused; or

(c) make or alter declaratory orders on—
(i) habitual offenders;

(ii) fitness to possess a firearm;
(iii) forfeiture or retention of military driving licence or pilot’s licence or

vessel steering competency certificate;
(iv) forfeiture of pay and allowances; or
(v) any other court orders referred to in section 93.

(4) When the Court of Military Appeals contemplated in section 11(1) or (3),
considers a case involving more than one offender in circumstances in which not all the
offenders or such persons have applied for the record of proceedings to be referred to a
Court of Military Appeals in terms of section 108, such court may of its own accord
exercise a competence contemplated in subsection (1) to the benefit of an offender or
such person who has not so applied.

(5) The Court of Military Appeals contemplated in section 11(1) or (3) may, in respect
of a case being considered by the said court, if it considers that the interests of justice and
the convicted offender may be served thereby, of its own accord, order the execution of
a sentence to be temporarily stayed until the conclusion of the appeal process.

(6) For the purposes of subsection (1), ‘‘sentence’’ includes any order which may or
must be made by a military court in terms of this Act.

(7) Whenever it considers cases brought to it, the Court of Military Appeals,
contemplated in section 11(1) or (3), must consider the record of evidence, and
determine, in each case, whether the proceedings were in accordance with justice.

(8) A written judgment, containing the majority decision as well as any minority
judgment and reasons therefor, must be appended to the original record of proceedings.

(9) Any officer assigned in terms of section 31(1)(a) may apply to the Judge Advocate
General to schedule and convene the Court of Military Appeals contemplated in section
11(4) to make a declaratory order as contemplated in subsection (13).

(10) The Judge Advocate General must consider an application contemplated in
subsection (9) and may schedule and convene the Court of Military Appeals consisting
of the members as contemplated in section 11(6).

(11) The members of the Court of Military Appeals convened in terms of section 11(6)
must deliberate and consider the matter before it and may call for any addresses,
consultations or evidence as may be required in reaching its decision.

(12) The decision of the Court of Military Appeals must be determined by the vote of
the majority of the members: Provided that no vote may be conducted unless at least one
of the members contemplated in section 11(6)(b) to (e) votes.

(13) The Court of Military Appeals scheduled and convened in terms of section 11(6)
must issue a judgment and declaratory order on conflicting judgments or points of law,
which declaratory order is binding on the Court of Military Appeals and other military
courts.

Powers of Court of Military Appeals to require argument or evidence

13. (1) When adjudicating an appeal or review, a Court of Military Appeals may
direct—

(a) that any case submitted to it be argued; and
(b) the presentation before it of such evidence on affidavit or orally as the Court

of Military Appeals considers relevant to the just resolution of the case.
(2) When oral evidence is led in terms of subsection (1)(b), the Chairperson of a Court

of Military Appeals must administer the oath or affirmation to a witness.

Appointment of Registrar of Court of Military Appeals

14. The Judge Advocate General may designate an appropriately qualified officer of
a rank not less than field rank as Registrar to the office of Registrar of Court of Military
Appeals and as many other support personnel as may be prescribed.

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Functions of Registrar of Court of Military Appeals

15. (1) The Registrar of the Court of Military Appeals must—
(a) ensure the rendering of a full administrative service to the Court of Military

Appeals under the direction of the Director Military Judges;
(b) compile, publish and distribute judgments of the Court of Military Appeals;
(c) draft legal references or notes upon judgments of the Court of Military

Appeals;
(d) research and conduct comparative legal studies; and
(e) collate, compile, publish and distribute legal opinions.

(2) Where the Court of Military Appeals makes any ruling which affects any
declaratory order made under section 93, including the confirmation thereof, the
Registrar of the Court of Military Appeals must—

(a) notify the clerk of the relevant court a quo; and
(b) if such declaratory order was made or altered by a Court of Senior Military

Judicial Reviews or Military Judicial Reviews, notify the clerk of such court
of the outcome of such ruling in writing,

who must deal with the matter in accordance with section 93(14), if applicable.

Composition and jurisdiction of Court of Senior Military Judicial Reviews

16. (1) A Court of Senior Military Judicial Reviews must review matters where a
sentence of imprisonment, including a suspended sentence of imprisonment, cashiering,
discharge with ignominy, dismissal or discharge, were imposed by a court contemplated
in section 6(1)(d) and (e), and in such cases be composed of three members, being—

(a) any Senior Military Judicial Reviews Judge as Chairperson; and
(b) two Military Judicial Review Judges,

appointed by the Minister upon the recommendation of the Judge Advocate General.
(2) A Court of Senior Military Judicial Reviews must review matters tried by Courts

of Senior Military Judges, where a sentence other than those referred to in subsection (1)
was imposed, and in such cases be composed of one Senior Military Judicial Review
Judge.

Powers of Court of Senior Military Judicial Reviews

17. (1) A Court of Senior Military Judicial Reviews may, after due consideration of
the record of the proceedings of any case—

(a) uphold the finding or uphold the finding and the sentence;
(b) set the finding and sentence aside;
(c) substitute for the finding, any finding which the evidence on record supports

beyond a reasonable doubt and which—
(i) was put at the trial as an alternative charge; or

(ii) could have been brought on the charge as a competent alternative verdict
by the military court; or

(d) if it has upheld the finding, or substituted a finding, vary the sentence.
(2) A Court of Senior Military Judicial Reviews may correct any patent error in any

finding, sentence or order recorded in any case considered by that Court.
(3) Where any finding, sentence or order was not clearly or correctly recorded or

where an invalid sentence was imposed or no order was made where it was required to
be made, a Court of Senior Military Judicial Reviews may—

(a) refer the matter back to the military court to—
(i) impose a valid sentence or to make a valid order; or

(ii) be clearly and correctly recorded; or
(b) on its own accord—

(i) impose a valid sentence or make a valid order that the military court
could or should have made;

(ii) record a clear and correct finding, sentence or order, and, in doing so,
apply the interpretation which is most favourable to the accused; or

(iii) make or alter any declaratory order contemplated in this Act.
(4) Whenever it considers any case brought before it, a Court of Senior Military

Judicial Reviews must consider the record of evidence and determine, in each case,
whether the proceedings were in accordance with justice, or whether the conviction and
sentence were justifiable in relation to the evidence appearing on the record.

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(5) In the event of a Court of Senior Military Judicial Reviews comprising one
member, a written judgment containing the decision and reasons for such decision must
be appended to the record of proceedings.

(6) In the event of a Court of Senior Military Judicial Reviews comprising three
members—

(a) the majority decision constitutes the decision of the court; and
(b) a written judgment, containing the majority decision as well as any minority

judgment and reasons, must be appended to the original record of
proceedings.

Composition and jurisdiction of Court of Military Judicial Reviews

18. (1) A Court of Military Judicial Reviews must consist of one Military Judicial
Review Judge.

(2) A Court of Military Judicial Reviews must review every finding of guilty, any
sentence imposed and every order made by a Court of Military Judge, excluding appeals
lodged in terms of section 11(3) and sentences referred to in section 16(1).

Powers of Court of Military Judicial Reviews

19. (1) A Court of Military Judicial Reviews may, after due consideration of the
record of the proceedings of any case—

(a) uphold the finding or the finding and the sentence;
(b) set the finding and sentence aside;
(c) substitute for the finding any finding which the evidence on record supports

beyond a reasonable doubt and which—
(i) was put at the trial as an alternative charge; or

(ii) could have been brought on the charge as a competent alternative verdict
by the military court; or

(d) if it has upheld the finding, or substituted a finding, vary the sentence:
Provided that the effect of the varied sentence may not be more severe.

(2) A Court of Military Judicial Reviews may correct any patent error in any finding,
sentence or order recorded in any case considered by that Court.

(3) Where any finding, sentence or order was not clearly or correctly recorded or
where an invalid sentence was imposed or no order was made where it was required to
be made, a Court of Military Judicial Reviews may—

(a) refer the matter back to the military court to—
(i) impose a valid sentence or to make a valid order; or

(ii) be clearly and correctly recorded; or
(b) itself—

(i) impose a valid sentence or make a valid order that the military court
could or should have made;

(ii) record a clear and correct finding, sentence or order, and in doing so,
apply the interpretation which is most favourable to the accused; or

(iii) make or alter any declaratory orders contemplated in this Act.
(4) Whenever it considers cases brought to it, a Court of Military Judicial Reviews

must consider the record of evidence and determine, in each case, whether the
proceedings were in accordance with justice, or whether the conviction and sentence
were justifiable in relation to the evidence appearing on the record.

(5) A written judgment containing the decision and reasons must be appended to the
record of proceedings.

Composition and jurisdiction of Court of Senior Military Judge

20. (1) The Minister may, upon the recommendation of the Judge Advocate General,
where one of the charges brought or to be brought against an accused is—

(a) treason, espionage, public violence, terrorism, sedition, murder, culpable
homicide, robbery, kidnapping, arson, or a sexual offence, committed outside
the Republic, or an attempt to commit any of these offences;

(b) a crime under international law or international customary law punishable in
terms of item 48(1) of Schedule 1 or otherwise punishable under South
African law; or

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(c) a contravention of items 4, 5 or 79 of Schedule 1, appoint three Senior
Military Judges as members of a Court of Senior Military Judge.

(2) The senior in rank of the judges referred to in subsection (1) must be the
Chairperson and exercise the powers conferred by this section in any case.

(3) Subject to subsection (1) and sections 3(5) and 10, a Court of a Senior Military
Judge may try any person who is subject to this Act for any offence cognisable by a
military court in terms of this Act and may, on conviction, sentence the offender to any
punishment referred to in section 84.

(4) All offences where the prescribed sentence in terms of this Act or any other Act of
Parliament exceeds imprisonment for a period of 10 years or more, must be tried before
a Court of Senior Military Judge.

Composition and jurisdiction of Court of Military Judge

21. (1) Subject to section 22(1), a Court of Military Judge consists of a Military Judge.
(2) Subject to section 10, a Court of Military Judge may try any person who is subject

to this Act, other than an officer of field or higher rank or a Chaplain bearing a Chaplain’s
rank insignia, for any offence cognisable by a military court in terms of this Act, other
than treason, espionage, public violence, terrorism, sedition, murder, culpable homicide,
robbery, kidnapping, arson or a sexual offence, or an attempt to commit any of these
offences, or an offence under items 4, 5 or 79 of Schedule 1, and may on conviction
sentence the offender to any sentence referred to in section 84, subject to a maximum
sentence of imprisonment for a period of 10 years.

Military assessors

22. (1) The presiding Senior Military Judge or Military Judge, as the case may be,
may elect to appoint not more than two military assessors who, in his or her opinion,
have the necessary experience in the administration of justice or skills in any matter
which may be considered at the trial.

(2) A military assessor must in the performance of his or her duties in terms of this
Act—

(a) be independent and subject only to the Constitution and this Act;
(b) be impartial and without fear, favour or prejudice;
(c) participate in trial proceedings in a manner befitting a member of a court of

law; and
(d) not express any opinion whatsoever on any matter relating to any trial or on

the finding or any sentence except in the prescribed course of the proceedings
or as may otherwise be required by law.

(3) A military assessor must only commence his or her functions at a trial after—
(a) the accused’s plea has been recorded; and
(b) that assessor has, in open court before the presiding Senior Military Judge or

Military Judge, as the case may be, taken an oath or made an affirmation as
referred to in section 35.

(4) Any question of law arising for decision at the proceedings and any question
during such proceedings as to whether a matter for decision is a matter of fact or law,
must be decided by the presiding Senior Military Judge or Military Judge, as the case
may be.

(5) The presiding Senior Military Judge or Military Judge must adjourn the
proceedings regarding any matter or question referred to in subsection (4) and must sit
alone for the hearing of such proceedings and the decision of such matter or question.

(6) In respect of all matters of fact, the decisions or findings of the military court must
be announced after consultation with the military assessors.

(7) The presiding Senior Military Judge or Military Judge must, after conclusion of
the arguments, but before judgment, explain to any military assessor assisting him or her
any specific rule of evidence or any other matter that is relevant in respect of the
evidence tendered to the court.

(8) The record of any proceedings where a presiding Senior Military Judge or Military
Judge has been assisted by military assessors, must—

(a) in respect of the evidence adduced at the proceedings, include any explanation
or instruction given to the assessors by the presiding Senior Military Judge or
Military Judge in respect of an applicable rule of evidence or any other matter;
and

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(b) in respect of the judgment, indicate clearly whether the findings in respect of
each material aspect of the evidence—
(i) are the unanimous findings of the members of the court; and

(ii) in the event of any member of the court making a finding of fact different
to that of the other members, set out the reasons for that different finding.

(9) A presiding Senior Military Judge or Military Judge may, of his or her own accord
or on application by the Prosecution Counsel or the accused, order the recusal of a
military assessor from the proceedings if that judge is satisfied that—

(a) the assessor has a personal interest in the proceedings;
(b) there are reasonable grounds for believing that there is—

(i) likely to be a conflict of interest as a result of the assessor’s participation
in the proceedings; or

(ii) a likelihood of bias on the part of the assessor; or
(c) the assessor is disqualified from serving as such for the reason that he or she—

(i) investigated the charge or any of the charges concerned;
(ii) is the Officer Commanding or commanding officer of the accused, or is in

the chain of command between the accused and his or her Officer
Commanding or commanding officer;

(iii) is a Prosecution Counsel, Military Defence Counsel or witness in the
case; or

(iv) has personal knowledge of any material fact or evidence relating to the
charge or any of the charges.

(10) Before the powers provided for in subsection (9) are exercised, the Prosecution
Counsel and the accused must be afforded the opportunity to apply for, and to present
arguments to the presiding Senior Military Judge or Military Judge on the desirability
and recusal of the assessor.

(11) An application and the arguments provided for in subsections (9) and (10),
respectively, must be heard by the presiding Senior Military Judge or Military Judge in
the absence of the relevant assessor.

(12) The presiding Senior Military Judge or Military Judge must make an order in
respect of the recusal or otherwise of the assessor in his or her presence.

(13) The presiding Senior Military Judge or Military Judge must give reasons for an
order made in respect of a recusal.

(14) A military assessor must, on the direction of the presiding Senior Military Judge
or Military Judge, recuse himself or herself from the proceedings.

(15) If an assessor dies, becomes unable to act, is absent for any reason, has been
ordered to recuse himself or herself, or has recused himself or herself at any stage after
swearing-in but before the completion of the proceedings, those proceedings must
continue before the remaining members of the military court.

(16) Local representatives of the Judge Advocate General must compile a list of
officers who comply with the requirements for appointment as military assessors
including their relevant skills and fields of expertise within each local representative’s
area of responsibility.

(17) When a presiding Senior Military Judge or Military Judge identifies a need for
the appointment of one or more military assessors, he or she must request the local
representatives of the Judge Advocate General for the appointment of a military assessor
and include in such request the particulars pertaining to the technical issues or
specialised field of expertise required.

(18) Upon receipt of the request contemplated in subsection (17), the relevant local
representatives of the Judge Advocate General must identify a military assessor that is
to be appointed from the list contemplated in subsection (16).

(19) In the event that a military assessor, who complies with the requirements with
regard to skills or technical expertise, cannot be identified from the list contemplated in
subsection (16), the relevant local representatives of the Judge Advocate General must
request any Officer Commanding or commanding officer to provide relevant details of
officers who may comply with such requirements and identify a suitable officer to be
appointed as a military assessor.

(20) When the relevant local representatives of the Judge Advocate General requires
an Officer Commanding or commanding officer to ensure the attendance of an officer to
serve as a military assessor, the Officer Commanding or commanding officer of that
identified officer must instruct such officer to attend the relevant military court as a
military assessor.

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(21) The list contemplated in subsection (16) as well as the relevant details
contemplated in subsection (19) must in respect of each officer, at least contain the
following:

(a) Force number;
(b) rank;
(c) full names and surname;
(d) service affiliation, corps, division and unit; and
(e) occupational qualifications, experience and expertise.

Members under instruction

23. (1) Any officer may be appointed in a military court as a member under instruction
at a trial before a military court for him or her to observe the proceedings of the military
court in order to acquire experience.

(2) Any officer appointed in terms of subsection (1) must attend all the proceedings of
the relevant court unless excused therefrom by the presiding Senior Military Judge or
Military Judge and may not partake in the proceedings, deliberations or decisions of the
military court.

Prescription of offences

24. (1) Subject to section 26, no person is liable to be tried by a military court for any
offence committed outside the Republic, which is not a military disciplinary offence, in
respect of which that court has jurisdiction, unless that person is brought or arraigned
before a military court within 30 years after the date of the commission of the offence:
Provided that a person charged with—

(a) treason, espionage, public violence, terrorism, sedition, murder, culpable
homicide, robbery, kidnapping, arson or a sexual offence, or an attempt to
commit any of these offences;

(b) an offence under any law giving effect to an international agreement;
(c) the possession or distribution of child pornography as contemplated in section

24B of the Films and Publications Act, 1996 (Act No. 65 of 1996);
(d) commercial sexual exploitation of children as contemplated in section

141(1)(b), read with section 305(1)(c), of the Children’s Act, 2005 (Act No.
38 of 2005);

(e) an offence under section 4, 5, 7 or 10 of the Prevention and Combating of
Trafficking in Persons Act, 2013 (Act No. 7 of 2013); or

(f) torture as contemplated in section 4(1) and (2) of the Prevention and
Combating of Torture of Persons Act, 2013 (Act No. 13 of 2013),

may be charged by a military court, with jurisdiction, at any time after the commission
of the offence.

(2) Subject to section 26, no person is liable to be tried by a military court for military
disciplinary offences in respect of which that court has jurisdiction, unless the accused
is brought or arraigned before that court within five years after the commission of the
offence: Provided that an offence under items 4, 10, 13, 29, 48 or 79 of Schedule 1 may
be tried by a military court at any time after the commission of the offence.

Trial when accused no longer in employ or service of Defence Force

25. (1) Any person who, while he or she is subject to this Act, commits an offence in
respect of which a military court has jurisdiction, may, in the case of—

(a) an offence referred to in the proviso to section 24(1) and (2), be tried and
punished for that offence by that military court at any time after he or she
ceased to be in the employ or service of the Defence Force;

(b) an offence other than one provided for in paragraph (a), excluding military
disciplinary offences, be tried and punished for that offence by that military
court at any time after he or she ceased to be in the employ or service of the
Defence Force, provided that the trial commences before the expiration of the
prescription periods determined in section 24; or

(c) a military disciplinary offence, other than an offence referred to in the proviso
to section 24(2), be tried and punished for that offence by that military court
at any time after he or she ceased to be in the employ or service of the Defence
Force: Provided that the trial commences within one year from the date upon

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which such a person ceased to be in the employ or service of the Defence
Force.

(2) For the purpose of a warning, effecting an arrest, bringing or arraigning before a
military court, bringing him or her to trial, imposing punishment and executing any
sentence or order, a person referred to in subsection (1) is deemed to be subject to this
Act in the rank and status he or she had at the time he or she ceased to be in the employ
or service of the Defence Force.

Computation of specified period

26. (1) When a person who is subject to this Act is brought before a military court or
a civilian court in terms of this Act, that person’s first appearance interrupts and
absolutely bars the passing of time in respect of any period determined in section 24.

(2) Where a person cannot as a result of—
(a) his or her default or any act performed by him or her; or
(b) his or her non-availability or incapacity or illness or other reason precluding

the exercise of any competence conferred by this Act in respect of him or her,
be brought or arraigned before a military court within any period determined in section
24 or 25, that period must be extended by a period equal to the period taken up by such
default, act, non-availability, incapacity, illness, other reason or application of an
agreement.

Prohibition of double jeopardy

27. No person—
(a) who has been convicted or acquitted of an offence by a military court; or
(b) who has been convicted or acquitted of an offence by any other court,

including any foreign civilian or military court or the International Criminal
Court,

is liable to be tried again by any civilian or military court in respect of that offence or any
other offence of which he or she could have been convicted in terms of the provisions of
any law on a charge of the same offence.

CHAPTER 3

APPOINTMENTS, ASSIGNMENTS, FUNCTIONS AND RELATED MATTERS

Appointment of Judge Advocate General

28. (1) The Minister may, on recommendation of the Chief of the Defence Force,
appoint an appropriately qualified serving officer of the Defence Force who has been
admitted as an advocate or attorney of the High Court of South Africa and with not less
than nine years’ experience in military law, or in the administration of criminal or
military justice, as Judge Advocate General.

(2) The Judge Advocate General referred to in subsection (1) must—
(a) have served for not less than nine years as a Military Law Practitioner;
(b) have completed other prescribed military courses which are required for the

military rank coupled to the post of Judge Advocate General; and
(c) hold a degree in law.

(3) The Judge Advocate General holds office for a term not exceeding seven years.
(4) The term of office referred to in subsection (3) may not be extended.
(5) The salary and other terms and conditions of service of the Judge Advocate

General must be determined by the Minister in concurrence with the Minister of
Finance: Provided that—

(a) the salary of the Judge Advocate General must not be less than the salary of a
judge of the High Court, as determined by the President in terms of the
Judges’ Remuneration and Conditions of Employment Act, 2001 (Act No. 47
of 2001); and

(b) such salary may not be reduced and such terms and conditions may not be
adversely altered during the term of office of the Judge Advocate General.

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Functions of Judge Advocate General

29. (1) The Judge Advocate General—
(a) must be responsible for the overall management, promotion, facilitation and

coordination of activities in order to ensure the effective administration of
military justice and legal services in the Department;

(b) must annually, not later than three months after the end of the preceding
financial year, submit to the Minister a written report on the execution of all
his or her functions during that year;

(c) must advise the Minister, the Secretary for Defence and the Chief of the
Defence Force in matters relating to military law and any other legal matter in
the Department;

(d) must conduct, or cause to be conducted, regular reviews of systemic efficiency
of the responsibilities referred to in paragraph (a);

(e) must exercise command function and supervision over the Directors and the
Senior Staff Officer referred to in section 31(1) and other persons placed under
his or her command;

(f) must determine the suitability of a Military Law Practitioner to be
recommended for assignment in terms of section 31(5) and advise the Chief of
the Defence Force accordingly;

(g) may exercise the powers provided for in section 30;
(h) may exercise the power provided for in section 36; and
(i) may designate persons as—

(i) Registrar of the Court of Military Appeals;
(ii) clerks of a court;

(iii) court orderlies;
(iv) interpreters; and
(v) other support personnel.

(2) Any power or duty that a local representative of the Judge Advocate General may
exercise or perform in terms of this Act—

(a) must be exercised or performed under the control of the Judge Advocate
General; and

(b) may be exercised or performed by the Judge Advocate General.
(3) The Judge Advocate General must, when it is required, conduct any inquiry into,

and advise the Chief of the Defence Force on—
(a) the fitness, competence and character of any person who is to be or may be

considered for appointment or assignment by the Minister or the Chief of the
Defence Force to a post or a function in terms of this Act or to continue to
serve in that capacity or assignment;

(b) the appropriateness or otherwise of a person to be considered for appointment
or re-appointment or assignment or re-assignment to a post or a function in
terms of this Act; and

(c) the need or desirability of removing a person from his or her appointment or
assignment.

(4) For purposes of any inquiry provided for in subsection (3), the Judge Advocate
General must request the consent of the person contemplated in subsection (3) in order
to obtain or cause to be obtained information pertaining to that person’s financial status,
educational qualification and competency from any organ of state, financial institution,
educational institution or any other source which the person may indicate and to enquire
therein.

(5) A refusal to give the consent contemplated in subsection (4) disqualifies that
person from being considered for appointment or assignment.

(6) The Judge Advocate General may exercise the powers necessary for, or
appropriate to, the conducting of an inquiry referred to in subsection (3), including the
power to subpoena and question witnesses and any person contemplated in subsection
(3).

(7) In the interest of justice, the Judge Advocate General may initiate or cause to be
initiated any investigation or inquiry regarding any legal matter in the Department.

Powers of Judge Advocate General in respect of assignment

30. The Judge Advocate General may—
(a) assign a Military Law Practitioner to the—

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(i) function of Senior Prosecution Counsel or Prosecution Counsel; or
(ii) function of Senior Military Defence Counsel or Military Defence

Counsel;
(b) assign a Military Law Practitioner to any function attached to a Defence Legal

Services Division post other than a function referred to in this Act;
(c) subject to due process, terminate the assignment of the assignee referred to in

paragraph (a) or (b) in the interest of the Defence Force; or
(d) add an additional assignment to any officer already assigned to a function in

terms of paragraph (a) or (b).

Powers of Minister in respect of assignment of functions

31. (1) Only an appropriately qualified officer holding a degree in law who has served
for not less than nine years as a Military Law Practitioner within the Defence Legal
Services Division of a rank not below that of Colonel or its equivalent, with experience
in the administration of military justice, may be assigned to the post of—

(a) Director Military Judges;
(b) Director Military Prosecutions; or
(c) Senior Staff Officer Military Defence Counsel.

(2) Only an appropriately qualified officer holding a degree in law and of a rank not
below that of Colonel or its equivalent and who has nine years’ experience in the
administration of military justice as a Military Law Practitioner within the Defence
Legal Services Division, may be assigned to the function of—

(a) Senior Military Judicial Review Judge; or
(b) Senior Military Judge.

(3) Only an appropriately qualified officer holding a degree in law and of a rank not
below that of Major or its equivalent and who has six years’ experience in the
administration of military justice as a Military Law Practitioner within the Defence
Legal Services Division, may be assigned to the function of—

(a) Military Judicial Review Judge; or
(b) Military Judge.

(4) The Minister may, on the recommendation of the Chief of the Defence Force, as
advised by the Judge Advocate General, assign Military Law Practitioners to the
functions of—

(a) Directors and Senior Staff Officers referred to in subsection (1);
(b) Senior Military Judicial Review Judges and Military Judicial Review Judges;

and
(c) Senior Military Judges and Military Judges.

(5) The Chief of the Defence Force may not recommend any Military Law
Practitioner for assignment to any function referred to in subsections (1) to (3) unless it
is established, upon due and diligent enquiry, that the Military Law Practitioner is a fit
and proper person who is of sound character and who meets the minimum service
requirements contemplated in subsections (1) to (3) for such assignment.

(6) The Chief of the Defence Force must recommend the removal of any Military Law
Practitioner from his or her assignment if upon due and diligent enquiry and after being
convinced that the Military Law Practitioner is not a fit and proper person who is of
sound character and who meets the minimum service requirements contemplated in
subsections (1) to (3) for such assignments.

Period of appointment or assignment of Director, Senior Staff Officer Military
Defence Counsel and Military Law Practitioners

32. (1) An assignment as Director or Senior Staff Officer Military Defence Counsel in
terms of section 31(1)(b) or (c) may, subject to section 34, be for a period of five years
and may be extended in terms of this section.

(2) Upon expiry of the first period in office, a Director or Senior Staff Officer Military
Defence Counsel referred to in subsection (1) may be re-assigned for a period not
exceeding three years.

(3) An assignment of the Military Law Practitioners assigned as Directors other than
those assigned in terms of section 31 must, subject to section 34, be for a period of five
years or for a specific deployment, operation or exercise and may be extended in terms
of this section.

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(4) Upon expiry of the first period in office, Military Law Practitioners appointed as
Directors as contemplated in subsection (3) may be re-assigned for a period not
exceeding three years.

(5) Section 34 applies to this section with the necessary changes required by the
context.

General provisions with regard to assignments

33. (1) In the event that a Military Law Practitioner’s assignment expires, he or she
must be sworn in again at the commencement of any new assignment period.

(2) In the event that a Military Law Practitioner assigned to any function in terms of
this Act is involved in a case before a military court after plea proceedings and when
such assignment expires, is cancelled and he or she is redeployed or removed from his
or her assignment or the assignment is cancelled in terms of section 34, such assignment
is deemed to have been extended for the purpose of finalising such case only.

(3) Upon the expiry of the second term in office, the Military Law Practitioner may be
rotated or redeployed if he or she is appropriately qualified for any other assignment in
the Defence Legal Services Division or appointment in the Department.

Termination of appointment and assignment

34. (1) The Minister may terminate the Judge Advocate General’s appointment if—
(a) he or she reasonably believes that the Judge Advocate General lacks the

ability to perform his or her functions effectively and efficiently; or
(b) the Judge Advocate General ceases to be a fit and proper person of sound

character for purposes of his or her functions.
(2) The Minister, acting upon the recommendation of the Chief of the Defence Force

as advised by the Judge Advocate General, may terminate an assignment issued by the
Minister in terms of this Chapter—

(a) due to—
(i) the assignee’s conduct that brings the Military Law Practitioner’s

profession into disrepute;
(ii) the assignee’s repeated failure to perform his or her tasks effectively and

efficiently;
(iii) the assignee’s incompetence;
(iv) job necessity for reassignment;
(v) the assignee’s own written request; or

(vi) organisational requirements of the Department; or
(b) if the assignee ceases to be a fit and proper person of sound character for

purposes of his or her functioning in his or her assignment.
(3) In the case of the termination of an assignment in terms of—

(a) subsection (2)(a)(v), the Minister may assign that person to another function
in terms of section 31(5); or

(b) subsection (2)(a)(iv) to (vi), the Judge Advocate General may assign that
person in terms of section 30(a) or (b).

(4) The Judge Advocate General may terminate an assignee’s assignment issued by
the Judge Advocate General in terms of this Chapter—

(a) due to—
(i) the assignee’s conduct that brings the Military Law Practitioner’s

profession into disrepute;
(ii) the assignee’s repeated failure to perform his or her tasks effectively and

efficiently;
(iii) the assignee’s incompetence;
(iv) the assignee’s own written request; or
(v) organisational requirements of the Defence Force; or

(b) if the assignee ceases to be a fit and proper person of sound character for
purposes of his or her functioning in his or her assignment.

(5) In the case of the termination of an assignment in terms of subsection (4)(a)(iv) or
(v), the Judge Advocate General may assign that person to another function in terms of
section 30(a) or (b).

(6) Any person whose assignment is terminated in terms of subsection (4)(a)(i) to (iii)
must be administratively discharged from the Defence Force.

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(7) An appointment may only be terminated in terms of this section subject to the
Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).

Oaths and affirmations

35. (1) An officer assigned to a function in terms of this Chapter must, before
commencing to perform any duties in accordance with that assignment or appointment,
take an oath or affirmation, except where the assignment of such officer is extended in
terms of section 32.

(2) Every oath or affirmation provided for in subsection (1) must be taken or made
before a Chairperson of the Court of Military Appeals, the Judge Advocate General or
a local representative of the Judge Advocate General.

(3) The Chairperson of a Court of Military Appeals must administer the oath or
affirmation of the Judge Advocate General.

Assignment and functions of local representative of Judge Advocate General

36. (1) The Judge Advocate General may in writing assign a Military Law Practitioner
of rank not lower than Lieutenant-Colonel or its equivalent and with at least 12 years’
experience in the administration of military justice as a local representative of the Judge
Advocate General.

(2) The functions of local representatives of the Judge Advocate General are to—
(a) manage, promote, facilitate and coordinate activities in any designated area or

place or in respect of any specific deployment, operation or exercise, legal
advice or litigation support, ensuring the effective administration of military
justice and military legal services;

(b) execute the functions of the Judge Advocate General in any designated area or
place or in respect of any specific deployment, operation or exercise;

(c) exercise command function and supervision over Military Law Practitioners
and others placed under his or her command; and

(d) perform any other function.

Functions, direction and control of Military Prosecution Counsels

37. (1) The Director Military Prosecutions—
(a) institutes and conducts prosecutions in military courts on behalf of the State;
(b) carries out all necessary functions incidental to instituting, and conducts,

prosecutions in military courts, including the determination of whether or not
investigations are complete;

(c) may decline, discontinue or withdraw prosecutions; and
(d) determines the forum before which any person is to be brought or arraigned in

terms of this Act.
(2) If the available evidence against any person who is subject to this Act discloses the

commission of an offence, or in the opinion of the Director Military Prosecutions or his
delegate there is a reasonable prospect of successful prosecution, that person must be
prosecuted unless the charge has been rendered non-justiciable, or has prescribed, or any
other legal impediment renders the charge or person incapable of being tried.

(3) A Senior Prosecution Counsel must, subject to the functional control and the
directions of the Director Military Prosecutions, exercise the powers referred to in
subsection (1) in respect of the area of jurisdiction for, or field of, responsibility to which
he or she has been appointed, and in respect of any offence not excluded, either generally
or in any specific case, from his or her competence by the Director Military
Prosecutions.

(4) A Prosecution Counsel must exercise the powers referred to in subsection (1)
subject to the control and directions of the relevant Senior Prosecution Counsel.

(5) (a) The Director Military Prosecutions or the relevant Senior Prosecution Counsel
may withdraw, limit or regulate the authority referred to in subsection (4).

(b) If the authority referred to in subsection (4) is withdrawn, limited or regulated by
a Senior Prosecution Counsel, he or she must forthwith report that action, together with
the reasons thereof, to the Director Military Prosecutions.

(6) The Director Military Prosecutions may, after consultation with the Judge
Advocate General, determine prosecution policy for Military Prosecution Counsels in
relation to matters contemplated in subsection (1).

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(7) All investigations conducted by a member of the military police or any person who
is subject to this Act in respect of an alleged offence or which disclose the commission
of an offence, must be submitted to the Director Military Prosecutions or a Senior
Prosecution Counsel within whose area of jurisdiction or field of responsibility such
offence was committed, or allegedly committed, for a decision as contemplated in
subsection (1).

Prosecution Counsel

38. A Senior Prosecution Counsel or Prosecution Counsel acts as Prosecution Counsel
in all military courts.

Functions, direction and control of Military Defence Counsels

39. (1) Military Defence Counsels—
(a) may, subject to this Act, represent persons—

(i) against whom prosecutions are being instituted or conducted in a military
court; or

(ii) who have been convicted by a military court and who still have a remedy
or recourse provided for in this Act;

(b) must perform any duty incidental to the representation contemplated in
paragraph (a) or contained in a policy as directed by the Senior Staff Officer
Military Defence Counsel;

(c) may discontinue representation for sound reasons—
(i) before a trial commences and inform the Senior Staff Officer Military

Defence Counsel; and
(ii) during a trial, with the leave of the court; and

(d) may represent persons subject to this Act at boards of inquiry as contemplated
in section 102(8) of the Defence Act.

(2) A Senior Military Defence Counsel must, subject to the functional control and the
directions of the Senior Staff Officer Military Defence Counsel, exercise the powers
referred to in subsection (1) in respect of—

(a) the area of jurisdiction for, or field of, responsibility to which he or she has
been appointed; and

(b) any offence not excluded, either generally or in any specific case, from his or
her competence by the Senior Staff Officer Military Defence Counsel.

(3) A Military Defence Counsel must exercise the powers referred to in subsection (1)
subject to the control and directions of the Senior Military Defence Counsel.

(4) (a) The Senior Staff Officer Military Defence Counsel or the relevant Senior
Military Defence Counsel may withdraw, limit or regulate the authority referred to in
subsection (1).

(b) If the authority referred to in subsection (1) is withdrawn, limited or regulated by
the Senior Military Defence Counsel, he or she must forthwith report that action,
together with the reasons therefor, to the Senior Staff Officer Military Defence Counsel.

(5) The Senior Staff Officer Military Defence Counsel may—
(a) determine defence counsel policy for Military Defence Counsel in consulta-

tion with the Judge Advocate General; and
(b) issue policy directives.

General duties of Prosecution Counsels and Military Defence Counsels

40. (1) In addition to any other duty imposed by this Act, a Senior Prosecution
Counsel, Prosecution Counsel, Senior Military Defence Counsel and Military Defence
Counsel must, during a trial by a military court—

(a) assist the court in the administration of justice;
(b) treat the court and every member thereof with due respect;
(c) present their cases fairly;
(d) act in conformity with the provisions of this Act and, in relation to the

examination, cross-examination and re-examination of witnesses, the practice
of the civilian courts in the Republic;

(e) not refer to a matter which is not relevant to any charge preferred against the
accused; and

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(f) not state as a fact anything which has not been proven or which is not intended
to be proven in evidence.

(2) In addition to the duties imposed by subsection (1), a Prosecution Counsel must
bring before the court the whole of any transaction on which any charge is based and
may not take any unfair advantage of, or withhold from the court, any evidence in favour
of the accused.

(3) Where, in a trial preceded by a pre-trial investigation, a Prosecution Counsel
closes the case for the prosecution without having called all the witnesses for the
prosecution that Prosecution Counsel must advise the court that any witness not called
by him or her is available to be called either by the court or the defence.

General duties of Military Judges and Senior Military Judges

41. Every Military Judge and Senior Military Judge, in the exercise of his or her
judicial or other authority under this Act, must—

(a) be independent and subject only to the Constitution and the law;
(b) apply the Constitution and the law impartially and without fear, favour or

prejudice;
(c) conduct every trial, inquiry and all proceedings in a manner befitting a court

of justice;
(d) ensure that the accused, whether represented or unrepresented, does not suffer

any disadvantage—
(i) because of his or her position as such;

(ii) because of ignorance or incapacity to examine or cross-examine
witnesses; or

(iii) for any other reason;
(e) not express any opinion whatsoever on a matter relating to a trial or inquiry or

on the finding or a sentence except in the course of the proceedings or as may
otherwise be required by law;

(f) be responsible for the safekeeping of the record of proceedings and of every
exhibit produced at the trial or inquiry until the record of proceedings is
handed over at the conclusion of the trial or inquiry to the relevant authority;
and

(g) endeavour to assist the Chief of the Defence Force and Service Chiefs to
manage the Defence Force as a disciplined military force.

Duties of Military Judicial Review Judges and Senior Military Judicial Review
Judges

42. (1) Military Judicial Review Judges and Senior Military Judicial Review Judges
must—

(a) review proceedings in accordance with this Act;
(b) perform any duty incidental to such review;
(c) provide review judgments and reasons therefor;
(d) recommend to the appropriate authority the taking of any remedial action

required; and
(e) draw attention to any matter requiring comment.

(2) Military Judicial Review Judges and Senior Military Judicial Review Judges must
exercise the review powers provided for in sections 17 and 19, and perform their duties
in respect of any offence or sentence not excluded, either generally or in any specific
case.

(3) The Director Military Judges—
(a) has the responsibility and authority to ensure that Military Judicial Review

Judges and Senior Military Judicial Review Judges exercise review powers
and perform their duties in accordance with the law;

(b) may, after consultation with a Chairperson of the Court of Military Appeals,
determine review policy on procedure and issue functional guidelines which
may be applied by Courts of Military Judicial Reviews and Courts of Senior
Military Judicial Reviews during the review process; and

(c) must exercise the powers referred to in sections 17 and 19 and perform the
duties that may be determined in this Act or any other law.

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Interpretation of Chapter

43. This Chapter may not be interpreted to exclude members of the Reserve Force
from being assigned to functions.

CHAPTER 4

CIVILIAN COURTS

Jurisdiction of civilian courts

44. (1) Nothing in this Act affects the jurisdiction of any civilian court in the Republic
to try a person for any offence within its jurisdiction.

(2) Any High Court or Magistrate’s Court of the Republic, subject to any other law
prescribing its jurisdiction, may try any person for any offence under Schedule 1 and
may impose any punishment and make any orders which may be imposed or made for
that offence under this Act and which is within the jurisdiction of that court, including
a sentence of correctional confinement.

(3) In imposing any punishment for an offence under Schedule 1, the civilian court
must take cognisance of the gravity of the offence in relation to its military bearing and
have due regard to the necessity for the maintenance of the required standard of military
discipline in the Defence Force, in accordance with section 200(1) of the Constitution.

Furnishing of particulars of trial by civilian court

45. (1) Whenever a person who is subject to this Act has been tried by a civilian court,
the registrar or clerk of that court must transmit to the Director Military Prosecutions a
certificate setting out the offence for which that person was tried including—

(a) the judgment, sentence and any order of the court; or
(b) if he or she was acquitted, a statement to that effect.

(2) Whenever a person who is subject to this Act has been tried by a civilian court, the
member must report the outcome of such case to his or her Officer Commanding or
commanding officer.

(3) The certificate contemplated in subsection (1) is for all purposes proof of the
conviction, sentence and order of the court, or acquittal of the relevant person.

CHAPTER 5

ARREST, WARNING AND CONFINEMENT

Persons authorised to arrest without warrant

46. (1) A superior officer or any military police official may arrest or, by his or her
order or instruction, cause the arrest of any person who is subject to this Act who—

(a) commits any offence in the presence of that superior officer or such military
police official; or

(b) in operational circumstances, is on reasonable grounds suspected of having
committed an offence,

and may cause the arrested person to be detained in terms of this Act: Provided that an
officer is not subject to arrest in terms of this subsection by any person other than an
officer.

(2) A military police official or any person who is subject to this Act in whose presence
any person who is subject to this Act—

(a) engages in any mutiny or riotous behaviour;
(b) commits any offence under item 4 or 79 of Schedule 1; or
(c) who has been declared an habitual offender, commits the same offence for

which he or she has been declared an habitual offender,
must arrest and detain such person in accordance with the provisions of this Act:
Provided that an officer is not subject to arrest in terms of this subsection by any person
other than an officer or a military police official and where the arrest of an officer is
effected by a military police official, who is not an officer, such military police official
must hand the arrested officer over to an officer without delay, who must deal with such
officer as if he or she had personally effected the arrest.

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(3) A peace officer or Non-Commissioned Officer, as the case may be, may arrest
without a warrant or, by his or her order or instruction, cause the arrest of any person
who is subject to this Act who in his or her presence—

(a) commits or attempts to commit any offence listed in section 104 of the
Defence Act;

(b) escapes or who attempts to escape from lawful custody;
(c) has in his or her possession any implement of housebreaking or car-breaking

as contemplated in section 82 of the General Law Third Amendment Act,
1993 (Act No. 129 of 1993), and who is unable to account for such possession
to the satisfaction of the peace officer or Non-Commissioned Officer;

(d) is found in possession of anything which the peace officer or Non-
Commissioned Officer reasonably suspects to be stolen property or property
dishonestly obtained, and whom the peace officer or Non-Commissioned
Officer reasonably suspects of having committed an offence in respect of such
property;

(e) is found in any place at night in circumstances which afford reasonable
grounds for believing that such person has committed or is about to commit an
offence;

(f) contravenes any law relating to the prevention or suppression of gambling or
games of chance or installs or uses gambling devices or games;

(g) commits or attempts to commit any other offence that involves military
property or premises or that relates to military security; or

(h) conducts himself or herself in a manner that may inflict or cause—
(i) bodily injury to any person; or

(ii) damage to any person’s property,
while being on military property or premises, or relating to military property
or premises: Provided that such an arrest may be effected anywhere if the
conditions provided for in subsection (9) have been complied with and it is
effected without delay.

(4) A peace officer or Non-Commissioned Officer may arrest without a warrant or, by
his or her order or instruction, cause the arrest of any person who is reasonably
suspected of—

(a) committing or of having committed an offence under any law governing the
making of, supply of, possession of, or the conveyance of alcohol or
intoxicating liquor or of dependence-producing drugs or drugs having a
narcotic effect or the possession or disposal of arms or ammunition; or

(b) having committed any act outside the Republic which, if committed in the
Republic, would have been punishable as an offence, and for which he or she
is, under any law relating to extradition or fugitive offenders, liable to be
arrested or detained in custody in the Republic,

where such act or offence or suspected act or offence was committed on military
property or premises.

(5) A peace officer or Non-Commissioned Officer may arrest without a warrant or, by
his or her order or instruction, cause the arrest of any person who is reasonably
suspected of—

(a) being a prohibited, undesirable or illegal foreigner in the Republic in
contravention of any law regulating entry into or residence in the Republic; or

(b) having failed to surrender himself or herself in order that he or she may
undergo periodical imprisonment when and where he or she is required to do
so under an order of court or any law relating to prisons or correctional
facilities or correctional centres,

irrespective of where such status originated or conduct occurred: Provided that any such
arrest may only be effected on military property or premises, unless he or she attempts
to escape such arrest, in which case he or she may be pursued in order to effect such
arrest.

(6) A peace officer or Non-Commissioned Officer may, whilst deployed or employed
for service inside the Republic and its territorial waters or in international waters, in
order to preserve the internal security of the Republic, and where it is reasonably
necessary for the purposes of control over the unlawful movement of people or goods
across the borders of the Republic, arrest without a warrant or, by his or her order or
instruction, cause the arrest of any person who is not subject to this Act, who is
reasonably suspected of—

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(a) having committed or attempting to commit any offence listed in section 104 of
the Defence Act;

(b) having escaped or who attempts to escape from lawful custody;
(c) having in his or her possession any implement of housebreaking or

car-breaking as contemplated in section 82 of the General Law Third
Amendment Act, 1993 (Act No. 129 of 1993), and who is unable to account
for such possession to the satisfaction of the peace officer or Non-
Commissioned Officer;

(d) being in possession of anything which the peace officer or Non-Commis-
sioned Officer reasonably suspects to be stolen property or suspects to be
property dishonestly obtained, and whom the peace officer or Non-
Commissioned Officer reasonably suspects of having committed an offence in
respect to such property;

(e) having committed or attempts to commit any offence that involves military
property or premises or relates to military security;

(f) having committed or attempts to commit any offence that involves any
physical barrier on, or at any of, the borders of the Republic;

(g) having conducted himself or herself in a manner that may inflict or cause—
(i) bodily injury to any person; or

(ii) damage to any person’s property;
(h) having entered an area of deployment with the intent to steal or lure an animal,

including game, or to disperse such animal or game from that area;
(i) having stolen an animal, including game, or has unlawfully hunted, caught or

taken into possession such animal or game or the meat, skin, carcass, organ or
any portion thereof;

(j) entering or departing from the Republic at a place other than an official port of
entry; or

(k) having committed or is about to commit any offence under this Act,
while being in the area of borderline protection or deployment: Provided that such an
arrest may be effected anywhere, irrespective of where such an offence or attempt
originated or conduct occurred, if the conditions provided for in subsection (9) have
been complied with and it is effected without delay.

(7) If the person to be arrested as contemplated in subsection (6) attempts to escape
such arrest, such person may be pursued in order to effect such arrest at any place in the
Republic within 10 kilometers or any reasonable distance from any border between the
Republic and any foreign State, or in the territorial waters of the Republic, or inside the
Republic within 10 kilometers or any reasonable distance from such territorial waters, or
at any airport as defined in section 1 of the Airports Company Act, 1993 (Act No. 44 of
1993), or within any reasonable distance from such airport.

(8) A member who arrests a person in terms of subsection (6) may seize and retain any
firearm or other dangerous weapon or illegal goods in possession of, or under the control
of, the arrestee.

(9) Any arrest in terms of subsections (3) to (6) may be effected only if—
(a) a member of the South African Police Service is unavailable to effect such an

arrest to secure the suspect for purposes of the lodging of a charge or for
investigation purposes or for the securing of the suspect for appearance at a
trial; and

(b) the exigencies of the circumstances require that an arrest be effected without
delay.

(10) A peace officer and Non-Commissioned Officer must hand over any other person
arrested in terms of this section without delay to the military police or the South African
Police Service for further handling or administration.

Warrant of arrest

47. (1) A Senior Military Judge or Military Judge who, by reason of information given
under oath or affirmation, has reasonable grounds to suspect a person who is subject to
this Act of having committed an offence under Schedule 1, or any other offence
cognisable by a military court, may issue a warrant for the arrest of that person.

(2) A presiding Military Judge may, on his or her own accord, issue a warrant for the
arrest of any person who is subject to this Act, who is suspected by him or her to have
committed an offence provided for in item 34(3) of Schedule 1 in relation to any
proceedings or trial being conducted before that Military Judge.

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(3) A warrant issued under subsection (1)—
(a) authorises the arrest of the person identified in the warrant of arrest;
(b) may be executed by any police official, military police official or any person

specified in the warrant in accordance with the terms of the warrant; and
(c) is authority for the arrestee to be detained in accordance with this Act.

(4) A Senior Military Judge or Military Judge who issued a warrant in terms of
subsection (1) may communicate the existence of that warrant by means of a telephonic,
telegraphic, facsimile or similar written or printed communication stating that a warrant
has been issued for the arrest of a person and that communication is sufficient authority
to any person referred to in subsection (3) for the arrest and detention of the person
specified in the communication.

Manner and effect of arrest

48. (1) When a person authorised by this Act to arrest a person, is about to arrest a
person, he or she must—

(a) identify himself or herself to the person to be arrested; and
(b) inform that person that he or she is being taken into custody.

(2) Unless a person to be arrested submits to arrest custody, the arrest must be effected
by actually touching the body of the person being arrested.

(3) Subject to subsection (1), any person effecting an arrest must promptly inform the
arrested person of—

(a) the cause of the arrest and in the case of an arrest effected by virtue of a
warrant or a communication referred to in section 47, display a copy of the
warrant or communication, as the case may be, to that person if such warrant
or communication is available or when it becomes available;

(b) his or her right to remain silent and that any statement which he or she may
voluntarily make, may be admissible as evidence against him or her at his or
her trial;

(c) his or her right to be brought before a court within 48 hours; and
(d) his or her right to legal representation and consultation as set out in section 83.

(4) If any person who may arrest a person under this Act attempts to arrest such person
and that person resists the attempt, or flees, or resists the attempt and flees, when it is
clear that an attempt to arrest him or her is being made, and such person cannot be
arrested without the use of force, the person seeking to arrest may, in order to effect the
arrest, use such force as may be reasonably necessary and proportional in the
circumstances to—

(a) take sufficient physical control of the person being arrested in order to ensure
that the arrest and detention of that person is effective; and

(b) overcome the resistance or to prevent such person from fleeing, and, in
addition, the person effecting the arrest may use deadly force only if such
person—
(i) poses a threat of serious violence or death to the person seeking to effect

the arrest or any other person; or
(ii) is suspected on reasonable grounds of having committed a crime

involving the infliction or threatened infliction of serious bodily harm
and there are no other reasonable means of effecting the arrest, whether
at that time or later.

(5) The effect of an arrest is that the person arrested is in lawful custody and that he
or she must be detained in custody until he or she is lawfully discharged or released from
custody.

Personal non-liability for wrongful arrest

49. Any person who, with or without a warrant, is authorised under this Act to arrest
another person and who—

(a) in the reasonable belief that he or she is arresting the right person, arrests the
wrong person, is exempt from personal liability in respect of that wrongful
arrest; or

(b) acts under a warrant which is defective in substance or form, is exempt from
personal liability in respect of that act, if he or she had no knowledge that the
warrant was defective and regardless of whether or not that defect is apparent
on the face of the warrant.

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Saving of constitutional rights and liability

50. No provision of this Chapter relating to arrest may be construed as removing or
diminishing any constitutional right or liability of any person who is subject to this Act
in respect of a wrongful or malicious arrest.

Saving of other powers of arrest

51. No provision of this Chapter relating to arrest may be construed as removing or
diminishing any authority expressly conferred by any other law to arrest, detain or put
any restraint upon any person.

Breaking open premises for purpose of arrest

52. (1) Any person who is authorised under this Act to arrest—
(a) a person and who knows or reasonably suspects that such person as identified

in the warrant of arrest to be on military premises; or
(b) another person and who knows or reasonably suspects that such person as

identified in the warrant of arrest to be on any military property or premises,
may, after audibly demanding entry into that premises and audibly notifying
the purpose for which entry is sought and then failing to be granted entry,
break open, enter and search those premises for the purpose of effecting the
arrest.

(2) If the person contemplated in subsection (1)(b) attempts to escape such arrest, then
he or she may be pursued in order to effect such arrest, including the entry into, breaking
open and searching of private premises.

Warning

53. Any person who may lawfully arrest any person for an offence and who has reason
to believe that such person—

(a) may fail to attend his or her trial;
(b) may interfere with any witness;
(c) may conceal, destroy, do away with, or in any manner interfere with, any

article or item which may be used in evidence at his or her trial;
(d) may persist in or continue the commission of the offence in question;
(e) is likely to injure himself or herself or others; or
(f) having regard to the nature or prevalence of the alleged offence which is under

investigation, should, in the interest of discipline, not be at large or allowed to
consort with his or her comrades,

must, instead of arresting or causing the arrest of that person, warn that person or cause
that person to be warned that a charge specified by him or her may be preferred against
that person.

Handing over of arrested person

54. (1) Subject to section 80, any person arrested or ordered into arrest by a person
who is subject to this Act must, as soon as reasonably possible, be handed over to—

(a) the Disciplinary Adjutant of his or her unit; or
(b) a military police official at the nearest—

(i) military police client service centre;
(ii) military police cell;

(iii) military police lock-up; or
(iv) military police detachment.

(2) If it is not possible to hand the arrested person over as contemplated in subsection
(1), such person must be handed over to the South African Police Service.

(3) Where the arrested person was in his or her unit at the time of his or her arrest, that
person must immediately be confined in accordance with section 55, pending handing
over in terms of subsection (1).

(4) Subject to section 80, where an arrested person is handed over as contemplated in
subsection (1)(b) or caused to be taken over from the South African Police Service in
terms of subsection (5), the person in charge of the—

(a) military police client service centre;

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(b) military police cell;
(c) military police lock-up; or
(d) military police detachment,

must as soon as possible thereafter, transport and present the arrested person to the
Disciplinary Adjutant of his or her unit together with a written account of the arrest.

(5) Subject to section 80, where an arrested person is handed over to the South African
Police Service in terms of subsection (2), the person in charge of the police station to
which the arrested person is taken, must as soon as possible thereafter notify the
Disciplinary Adjutant of the arrested person’s unit or the person in charge of the
nearest—

(a) military police client service centre;
(b) military police cell;
(c) military police lock-up; or
(d) military police detachment,

of the presence of the arrested person and that Disciplinary Adjutant or such person in
charge must, as soon as possible, cause the arrested person to be taken over from the
South African Police Service, together with the written account of the arrest.

(6) Subject to section 80, where a person who is subject to the Act is arrested by a
member of the South African Police Service or other police force established by any
other Act under a warrant or communication referred to in section 47 or surrenders
himself or herself to the said member on any charge of desertion or absence without
leave under Schedule 1, the person in charge of the police station to which the arrested
person is taken must—

(a) as soon as possible after the arrest or surrender, notify the Disciplinary
Adjutant of the arrested person’s unit or the person in charge of the nearest
military police detachment, of the presence of the arrested person, and that
Disciplinary Adjutant or the person in charge of that detachment must as soon
as possible thereafter cause the arrested person to be taken over from the
South African Police Service or other police force established by any other
Act, together with any relevant documentation; and

(b) if that person cannot be handed over within 48 hours to the Disciplinary
Adjutant of his or her unit or the person in charge of the nearest military police
detachment, without delay, cause the arrested or surrendered person to be
brought before any military court or, if that is not possible, a magistrate of the
relevant district.

(7) When a magistrate referred to in subsection (6)(b) is satisfied, after due inquiry,
that the person arraigned before him or her—

(a) is the person described in the relevant warrant or communication; or
(b) is on reasonable grounds suspected to be a deserter or to be absent without

leave, that magistrate may order that—
(i) the person be handed over to the Disciplinary Adjutant of his or her unit

or to the person in charge of the nearest military police client service
centre or military police detachment;

(ii) the person be committed to custody in a military prison, military
correctional facility, military police cell, military lock-up or a correc-
tional centre or any other place of confinement until the delivery
provided for in subparagraph (i) can be effected; or

(iii) if the person is not handed over as provided for in subparagraph (i) within
seven days of his or her committal to custody by the magistrate, subject
to a warrant of committal, in the prescribed form, issued by the
magistrate, that person again be brought before a magistrate who may
then order his or her committal for a further period not exceeding seven
days.

(8) Any person to whom this section applies may, within the period determined in
section 80, be brought before any military court if it is not possible to hand such person
over or present him or her to the Disciplinary Adjutant of his or her unit within 48 hours
after the arrest.

Confinement of arrested person

55. (1) Subject to subsections (2) and (4), every person arrested and not released must,
after he or she has been handed over or presented to the Disciplinary Adjutant of his or
her unit or arraigned before a military court, be kept in confinement and—

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(a) in the case of an officer or Warrant Officer, in his or her living quarters under
the charge of an officer or Warrant Officer of, where possible, equal or higher
rank;

(b) in the case of a Non-Commissioned Officer, in his or her living quarters or a
guardroom under the charge of a Non-Commissioned Officer of, where
possible, equal or higher rank; or

(c) in the case of a Private, in a guardroom, correctional facility, military police
cell, military police lock-up or military police detachment.

(2) Where local conditions or other circumstances render compliance with subsection
(1) not possible, the arrested person may be confined in any other place which his or her
Officer Commanding or commanding officer, or any other authorised officer who is
empowered to issue a remand warrant or a warrant of committal, deems suitable.

(3) Every person who has been confined in terms of this section, must be deprived of
every article or instrument including any weapon, fire-arm and ammunition, which may
be used to effect his or her escape or which may endanger that person’s, or any other
person’s, health or safety.

(4) Every person arrested for the commission, outside the Republic, of the offence of
treason, espionage, public violence, terrorism, sedition, murder, culpable homicide,
robbery, kidnapping, arson, a sexual offence or for an offence under item 4 or 79 of
Schedule 1 or who is arrested for an attempt to commit any of these offences, must be
confined in a military prison, military correctional facility, military police cell, military
police lock-up, military police detachment during deployments or a correctional centre
in terms of the Correctional Services Act.

(5) For the purposes of subsection (1), the expression ‘‘living quarters’’ does not
include quarters which have not been provided by the State or quarters occupied by the
arrested person together with that person’s spouse and children, if any.

Persons arrested for desertion or absence without leave

56. (1) Whenever a person who is subject to this Act surrenders to, or is arrested by,
a superior officer, a military police official, or a police official on a charge under this Act
or the Defence Act, of desertion or absence without leave, the person to whom he or she
surrenders, or who arrests him or her, must prepare and sign a certificate stating the fact
of, as well as the time, date and place of such surrender or arrest.

(2) A certificate prepared and signed in terms of subsection (1) must, at the trial of that
person on that charge by a civilian or military court, on its mere production, be
admissible in evidence.

Rights in respect of custody

57. A person who is in custody in terms of this Act must be—
(a) detained in conditions that are consistent with human dignity;
(b) accommodated adequately at State expense;
(c) afforded necessary medical treatment at State expense;
(d) afforded the opportunity, at his or her own cost, to communicate with, and to

be visited by, his or her—
(i) spouse or partner;

(ii) next of kin;
(iii) chosen religious counsellor; or
(iv) chosen medical practitioner;

(e) entitled—
(i) at his or her own cost, to choose and to consult with a legal practitioner;

or
(ii) if he or she is without the means to exercise the right as provided in

subparagraph (i), to have a Military Defence Counsel assigned to assist
him or her; and

(f) entitled to challenge the lawfulness of the custody or detention in person
before a competent court.

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Warrant of committal or release

58. (1) The warrant of committal to custody of any person charged with an offence
and subsequently convicted and sentenced under this Act may be signed by a Senior
Military Judge, Military Judge or magistrate within the relevant area of jurisdiction.

(2) Any warrant for the release from custody of any person charged with an offence
and subsequently convicted and sentenced under this Act, may be signed by a Senior
Military Judge or Military Judge, a magistrate within the relevant area of jurisdiction or
Chairperson of the Court of Military Appeals or a judge of the Court of Military Judicial
Reviews which set aside, varied or suspended the sentence.

(3) Any property or item found or seized as a result of a search contemplated in
subsection (5) must be delivered safely to—

(a) the Disciplinary Adjutant of the person—
(i) on whom that property or item was found; or

(ii) suspected of having committed an offence under this Act in respect of
which that property or item was seized,

unless a military police official seized the property or item; or
(b) a military police official in any case in which a suspect has not been identified.

(4) The Disciplinary Adjutant receiving any property or item seized in terms of
subsection (3)(a) must submit such property or item at the first opportunity thereafter to
a military police official.

(5) A Senior Military Judge or Military Judge who is presiding at military court
proceedings to whom it appears that there are reasonable grounds for believing that there
is, in the possession of, or under the control of, or upon any person or at any premises,
place, vehicle, vessel, aircraft, container, data storage device, receptacle of whatever
nature or in any thing whatsoever, any property or item referred to in section 60(1)(a),
(b) or (c) and that, such property or item is required in evidence at those military court
proceedings, may, in writing issue a search warrant authorising any person referred to in
section 60(1)(i) to (iv) to search that person, place, vehicle, vessel, aircraft, container,
receptacle or any thing, and to seize any such property or item, if found, and to deliver
it safely to any person referred to in subsection (3).

(6) (a) An officer of not lower than field rank who has the consent of the person to be
searched or of the person who may consent to the search of the premises, place, vehicle,
vessel, aircraft, container, data storage device or receptacle concerned or in any thing
whatsoever, may authorise the search without a search warrant, the seizure of any
property or item found as well as its safe delivery to—

(i) the Disciplinary Adjutant of the person—
(aa) on whom that property or item was found; or
(bb) suspected of having committed an offence under this Act in respect of

which that property or item was seized; or
(ii) a military police official, in any case where a suspect has not been identified.
(b) The Disciplinary Adjutant receiving any property or item seized in paragraph

(a)(i) must submit such property or item at the first opportunity thereafter to a military
police official.

(7) An officer of not less than field rank who, on reasonable grounds believes that the
delay in obtaining written authority in terms of subsection (5) would defeat or prejudice
the object of a search may, if he or she is—

(a) the superior officer of the person upon whom that property or item is suspected
to be;

(b) the person in charge or control of the military premises, place, vehicle, vessel,
aircraft, container, data storage device or receptacle upon, or at which that
property or item is suspected to be; or

(c) a military police official,
without such authority, authorise the search and seizure of any property or item found as
well as its safe delivery to—

(i) the Disciplinary Adjutant of the person—
(aa) on whom that property or item was found; or
(bb) suspected of having committed an offence under this Act in respect of

which that property or item was seized,
unless a military police official seized the property or item; or

(ii) a military police official, in any case in which a suspect has not been identified.

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(8) The Disciplinary Adjutant receiving any property seized in terms of subsection
(7)(a) or (b), must submit such property or item at the first opportunity thereafter to a
military police official.

(9) Subject to subsection (10), any search in terms of this section must be
conducted—

(a) in the case of property or an item found upon, belonging to, or suspected to
belong to a person, in the presence of such person;

(b) in the presence of the person in charge or control of the premises, place,
vehicle, vessel, aircraft, container, data storage device or receptacle or
anything whatsoever at which that property or item in question is suspected to
be;

(c) in the presence of any person found on or at the premises upon which the
property or item in question is suspected to be;

(d) with strict regard to decency and good order;
(e) by a person of the same gender as the person searched and, to this end, every

person authorised by this Act to effect that search may designate any person
who is subject to this Act, which is of the same gender as the person to be
searched to effect that search; and

(f) in strict compliance with the instructions and conditions contained in the
search warrant.

(10) A search may be conducted in the absence of a person referred to in
subsection (9)(a) or (b) if—

(a) the delay in securing the presence of that person is likely to prejudice the
object of the search; or

(b) his or her presence cannot, despite diligent efforts, be readily secured,
and such search must be conducted by the person authorised thereto under this Act in the
presence of not less than one person who is subject to this Act.

(11) A warrant issued under this section is of force until it is—
(a) executed;
(b) cancelled by the person who issued it; or
(c) if the person who issued it is not available, cancelled by a person with the

same authority.
(12) A warrant issued under this section—

(a) must authorise the search of any person identified in it, premises, property or
item identified in it or any person found on or at such premises;

(b) must be executed only by the person specified in the warrant; and
(c) is authority for the seizure of any property or item specified in the warrant or

referred to in section 59.
(13) Any person executing a search in accordance with a warrant issued in terms of

this section or a communication contemplated in subsection (14) must display that
warrant or communication to the person whose rights may be affected by the search or
seizure of any property or item in consequence of that search.

(14) Any person who issued a warrant in terms of this section may communicate the
existence of that warrant by means of a telephonic, telegraphic, facsimile or similar
written or printed communication stating that a warrant has been issued for the search of
a specified person, premises, property or item and that communication is sufficient
authority to any person referred to in subsection (12) to effect the search and seizure
contemplated in this section, subject to such warrant or communication being later
shown to the affected person.

(15) Where any vehicle, property or item under the control of the Department was
seized as a result of a search contemplated in this section, it must be reported to the
Officer Commanding or commanding officer in charge of the relevant military property
or premises as well as the Officer Commanding or commanding officer of the relevant
military police official together with any details incidental to such seizure.

(16) The provisions of this Chapter do not derogate from or limit any, power
conferred by this Act or any other law to enter or search any premises, place, vehicle,
vessel, aircraft, container, data storage device, or receptacle of whatever nature or
anything whatsoever, or to search any person or to seize, dispose of, or declare forfeited,
any property or item.

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CHAPTER 6

INVESTIGATIONS AND PRE-TRIAL PROCEDURES

Part 1

Search and seizure

Search of arrested person

59. Subject to section 48, any person effecting an arrest in terms of this Act must
search the arrested person or cause that person to be searched and—

(a) seize any item or instrument including any weapon, fire-arm or ammunition
which may be used to effect his or her escape or which may be used to
endanger that person’s or any other person’s life, health or safety or is
intended to be used in the commission of an offence; and

(b) may seize any item then found, which may afford evidence of the commission
of an offence, including any item contemplated in section 60(1).

Search with or without search warrant

60. (1) A Senior Military Judge or a Military Judge, to whom it appears from
information contained in at least one sworn statement that there are reasonable grounds
for believing that there is in the possession of, or under the control of, or upon any
person, or at any premises, place, vehicle, vessel, aircraft, container, data storage device,
receptacle of whatever nature or in any thing whatsoever—

(a) stolen property or any other item with respect to which an offence has been
committed or is suspected on reasonable grounds to have been committed by
a person;

(b) any item as to which there are reasonable grounds for believing that it may
afford evidence of the commission of any offence under this Act by a person;
or

(c) any item as to which there are reasonable grounds for believing that it is
intended to be used or was used for the purpose of committing any offence by
a person,

that Senior Military Judge or Military Judge may, in writing, issue a search warrant
authorising—

(i) any superior officer of the person on whom such property or item is believed to
be;

(ii) any person who is subject to this Act and who is in charge or control of the
military premises, place, vehicle, vessel, aircraft, container, data storage device
or receptacle upon, or at which, that property or item is believed to be;

(iii) any military police official; or
(iv) any person or class of persons subject to this Act,

specified in the warrant, to search that person, place, vehicle, vessel, aircraft, container,
data storage device or receptacle, or any person found therein or thereupon, and seize
any such property or item identified in the search warrant, if found.

(2) Any property or item found or seized as a result of a search contemplated in
subsection (1) must be delivered safely to—

(a) the Disciplinary Adjutant of the person—
(i) on whom that property or item was found; or

(ii) suspected of having committed an offence under this Act in respect of
which that property or item was seized,

unless a military police official seized the property or item; or
(b) a military police official in any case in which a suspect has not been identified.

(3) The Disciplinary Adjutant receiving any property or item seized in terms of
subsection (2)(a) must submit such property or item at the first opportunity thereafter to
a military police official.

(4) A Senior Military Judge or Military Judge who is presiding at military court
proceedings to whom it appears that there are reasonable grounds for believing that there
is, in the possession of, or under the control of, or upon any person or at any premises,
place, vehicle, vessel, aircraft, container, data storage device, receptacle of whatever
nature or in any thing whatsoever, any property or item referred to in subsection (1)(a),

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(b) or (c) and that, such property or item is required in evidence at those military court
proceedings may, in writing, issue a search warrant authorising any person referred to in
subsection (1)(c)(i) to (iv) to search that person, place, vehicle, vessel, aircraft,
container, receptacle or anything, to seize any such property or item, if found, and to
deliver it safely to any person referred to in subsection (2).

(5) (a) An officer of not less than field rank who has the consent of the person to be
searched or of the person who may consent to the search of the premises, place, vehicle,
vessel, aircraft, container, data storage device or receptacle concerned or in any thing
whatsoever, may authorise the search without a search warrant, the seizure of any
property or item found as well as its safe delivery to—

(i) the Disciplinary Adjutant of the person—
(aa) on whom that property or item was found; or
(bb) suspected of having committed an offence under this Act in respect of

which that property or item was seized; or
(ii) a military police official, in any case where a suspect has not been identified.
(b) The Disciplinary Adjutant receiving any property or item seized in paragraph

(a)(i) must submit such property or item at the first opportunity thereafter to a military
police official.

(6) An officer of not less than field rank who on reasonable grounds believes that the
delay in obtaining written authority in terms of subsection (1) would defeat or prejudice
the object of a search may, if he or she is—

(a) the superior officer of the person upon whom that property or item is suspected
to be;

(b) the person in charge or control of the military premises, place, vehicle, vessel,
aircraft, container, data storage device or receptacle upon or at which that
property or item is suspected to be; or

(c) a military police official,
without such authority, authorise the search and seizure of any property or item found as
well as its safe delivery to—

(i) the Disciplinary Adjutant of the person—
(aa) on whom that property or item was found; or
(bb) suspected of having committed an offence under this Act in respect of

which that property or item was seized,
unless a military police official seized the property or item; or

(ii) a military police official, in any case in which a suspect has not been identified.
(7) The Disciplinary Adjutant receiving any property seized in terms of subsection

(6)(a) or (b), must submit such property or item at the first opportunity thereafter to a
military police official.

(8) Subject to subsection (9), any search in terms of this section must be conducted—
(a) in the case of property or an item found upon, belonging to, or suspected to

belong to, a person, in the presence of such person;
(b) in the presence of the person in charge or control of the premises, place,

vehicle, vessel, aircraft, container, data storage device or receptacle or
anything whatsoever at which that property or item in question is suspected to
be;

(c) in the presence of any person found on or at the premises upon which the
property or item in question is suspected to be;

(d) with strict regard to decency and good order;
(e) by a person of the same gender as the person searched and, to this end, every

person authorised by this Act to effect that search may designate any person
who is subject to this Act, which is of the same gender as the person to be
searched to effect that search; and

(f) in strict compliance with the instructions and conditions contained in the
search warrant.

(9) A search may be conducted in the absence of a person referred to in subsection
(8)(a) and (b) if—

(a) the delay in securing the presence of that person is likely to prejudice the
object of the search; or

(b) his or her presence cannot, despite diligent efforts, be readily secured,
and such search must be conducted by the person authorised thereto under this Act in the
presence of not less than one person who is subject to this Act.

(10) A warrant issued under subsection (1) is of force until it is—
(a) executed;

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60



(b) cancelled by the person who issued it; or
(c) if the person who issued it is not available, cancelled by a person with the

same authority.
(11) A warrant issued under subsection (1)—

(a) must authorise the search of any person identified in it, premises, property or
item identified in it or any person found on or at such premises;

(b) must be executed only by the person specified in the warrant; and
(c) is authority for the seizure of any property or item specified in the warrant or

referred to in section 59.
(12) Any person executing a search in accordance with a warrant issued in terms of

subsection (1) or a communication contemplated in subsection (13) must display that
warrant or communication to the person whose rights may be affected by the search or
seizure of any property or item in consequence of that search.

(13) Any person who issued a warrant in terms of subsection (1) may communicate
the existence of that warrant by means of a telephonic, telegraphic, facsimile or similar
written or printed communication stating that a warrant has been issued for the search of
a specified person, premises, property or item and that communication is sufficient
authority to any person referred to in subsection (11) to effect the search and seizure
contemplated in this section, subject to such warrant or communication being later
shown to the affected person.

(14) Where any vehicle, property or item under control of the Department was seized
as a result of a search contemplated in subsection (1), it must be reported to the Officer
Commanding or commanding officer in charge of the relevant military property or
premises as well as the Officer Commanding or commanding officer of the relevant
military police official together with any details incidental to such seizure.

(15) The provisions of this Chapter do not derogate from, or limit any, power
conferred by this Act or any other law to enter or search any premises, place, vehicle,
vessel, aircraft, container, data storage device, or receptacle of whatever nature or
anything whatsoever, or to search any person or to seize, dispose of or declare forfeited,
any property or item.

Personal non-liability for wrongful search

61. Any person who is authorised under this Act to search any person, premises, place,
vehicle, vessel, aircraft, container, receptacle or anything whatsoever under a search
warrant and who—

(a) in the reasonable belief that he or she is searching the right person, premises,
place, vehicle, vessel, aircraft, container or receptacle, but searches the wrong
person, premises, place, vehicle, vessel, aircraft, container, receptacle or
anything whatsoever, is exempt from personal liability in respect of that
wrongful search; or

(b) acts under a warrant which is defective in substance or form,
is exempt from personal liability in respect of that act if he or she had no knowledge that
the warrant was defective and regardless of whether or not that defect is apparent on the
face of the warrant.

Entering of premises for purposes of obtaining evidence

62. (1) A person who may lawfully search a person or any military premises or
property under the control of the Department or who may lawfully enter any military
premises or property under the control of the Department, may use the force that may be
reasonably necessary to overcome any resistance against that search or against entry of
the military or State-controlled premises, including the breaking of any door or window
of those premises or property: Provided that the person who intends to search or gain
admission to the premises or property must first audibly demand admission to the
premises or property and notify the purpose for which he or she seeks to enter those
premises or property.

(2) The proviso to subsection (1) does not apply where the relevant person is on
reasonable grounds of the opinion that any property or item which is the subject of the
search may be destroyed or disposed of if the provisions of the said proviso are first
complied with.

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Transfer of seized property or item to military court for purposes of trial

63. (1) If any property or item seized in terms of this Part or otherwise obtained is
required at a trial before a military court for the purposes of evidence or for the purposes
of an order of court, the person who has such property or item in his or her control must,
at the request of the court or the Prosecution Counsel, deliver that property or item to
that court at the commencement of the trial or when required by the court or the
Prosecution Counsel, as the case may be.

(2) If it is impossible or undesirable, by reason of the nature, bulk or value of the
property or item in question that it should be delivered to the court, the court may require
the person who has such property or item to retain it in his or her control.

(3) Any person who is required to retain any property or item in accordance with
subsection (2) must place that property or item in safe custody and may, in the case of
money, deposit that money in an official banking account as directed by the Chief
Financial Officer of the Department if it is not required at the trial for the purpose of
evidence.

Part 2

Forfeiture and disposal of property or item

Disposal of property or item after seizure

64. A person who in terms of section 59 or 60 received any property or item seized—
(a) may, if the property or item is perishable, with due regard to the interests of the

persons concerned, record and catalogue such with full identifying features
and distinguishing information such as weight, length, value, photograph, and
may also take samples for forensic analysis, and if necessary, seal such item in
the presence of the person from whom it had been seized, and thereafter, if
possible, retain or dispose of the property or item in the manner that the
circumstances may require;

(b) may, if the property or item is stolen property or property suspected to have
been stolen, with the consent of the person from whom it was seized, record
and catalogue such with full identifying features and distinguishing informa-
tion such as weight, length, value, photograph and may also take samples for
forensic analysis, in the presence of the person from whom it had been seized,
and thereafter deliver the property or item to the person from whom that
property or item was stolen or believed to have been stolen, and must warn
that person to hold that property or item available for production at any
resultant court proceedings, if required to do so; or

(c) must, if the property or item is not disposed of or delivered in terms of
paragraph (a) or (b), give it a distinctive identification mark and retain it in
custody or make other arrangements with regard to its custody that the
circumstances may require.

Disposal of property or item where no prosecution is instituted or where property
or item is not required for purposes of prosecution

65. (1) If any property or item provided for in section 64 is not required at a trial for
purposes of evidence or for purposes of an order of court, that property or item must be
returned to the person from whom it was seized if that person may lawfully possess that
property or item or, if that person may not lawfully possess that property or item, to the
person who may lawfully possess it.

(2) If no person may lawfully possess the property or item contemplated in subsection
(1) or if the military police official or the Prosecution Counsel cannot identify any person
who may lawfully possess that property or item, the property or item is forfeited to the
State.

(3) The person who may lawfully possess the property or item provided for in
subsection (1) must be notified at his or her last-known address that he or she may take
possession of the property or item and if that person fails to take delivery of the property
or item within 30 days from the date of the notification, the property or item is forfeited
to the State.

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(4) Property or an item forfeited to the State in terms of this section, section 66 or
section 67, is public property for the account of the Department: Provided that any such
property or item which may not ordinarily be lawfully possessed, must be destroyed.

Disposal of property or item after conclusion of military trial proceedings

66. (1) Subject to this Act or any other law under which any property or item may be
forfeited, a military court must, at the conclusion of a trial, make an order that any
property or item provided for in section 63—

(a) be returned to the person from whom it was seized, if that person is entitled to
it and may lawfully possess it;

(b) if the person from whom it was seized is not entitled to it or may not lawfully
possess it, be returned to any person or institution entitled to it, if that person
or institution may lawfully possess it; or

(c) if no person is entitled to it or may lawfully possess it or if the person who is
entitled to it cannot be traced or is unknown, be forfeited to the State.

(2) The military court may, for the purposes of an order under subsection (1), consider
any additional evidence, either by affidavit or orally, that it may deem fit.

(3) If no order under subsection (1) is made by the relevant court, any military court
may at any time after the conclusion of the proceedings make any such order, and for
that purpose consider any additional evidence, either by affidavit or orally, that it may
deem fit: Provided that this subsection does not derogate from the competence of the
Court of Military Judicial Reviews, Court of Senior Military Judicial Reviews, Director
Military Judges or any Court of Military Appeals.

(4) Any order made under subsection (1) or (3) may be suspended pending any appeal
or review.

(5) Where a military court makes an order under subsection (1)(a) or (b), section
65(3) must, with the necessary changes required by the context, apply with reference to
the person in favour of whom that order is made.

(6) If the circumstances so require or if the military trial proceedings in question
cannot for any reason be completed or otherwise disposed of, the relevant military court
may make an order referred to in subsection (1) at any stage of the proceedings.

Forfeiture of property or item to State on conviction

67. (1) A military court which convicts an accused of any offence may declare—
(a) any weapon, instrument or other property or item which was used for the

purpose of, or in connection with, the commission of, that offence; or
(b) any vehicle, container, receptacle, data storage device or other property or

item or anything whatsoever, which was used for the purpose of, or in
connection with the commission of, the offence in question or for the
conveyance or removal of stolen property,

and which was seized under this Act, forfeited to the State.
(2) The forfeiture contemplated in subsection (1) must not affect any right of any

person who—
(a) did not know that such weapon, instrument, vehicle, container, receptacle,

data storage device or other property or item or anything whatsoever, was
being used or would be used for the purpose of, or in connection with, the
commission of the offence in question, or for the conveyance or removal of
the stolen property in question, or could not prevent such use; and

(b) may lawfully possess that weapon, instrument, vehicle, container, receptacle,
data storage device or other property or item or anything whatsoever.

(3) A military court which convicts or acquits an accused of any offence, may declare
forfeited to the State any property or item seized under this Act which is forged or
counterfeit or which cannot lawfully be possessed by any person.

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Part 3

General provisions

Powers in respect of prints, photographs and samples of accused without warrant

68. (1) A military police official, when executing investigative duties, may, without a
warrant, and, if directed to do so by a Prosecution Counsel, must, without a warrant—

(a) take the finger prints, palm prints, foot prints, body prints or a photograph of
any person—
(i) warned or arrested in terms of this Act upon any charge; or

(ii) convicted by a military court;
(b) take the steps that are reasonably necessary to ascertain whether the body of

any person referred to in paragraph (a)(i) has any mark, characteristic,
distinguishing feature or tattoo or shows any distinct condition or appearance.

(2) No such military police official may—
(a) if not a registered medical practitioner or nurse in the service of the

Department, take any blood sample of the person concerned; or
(b) make any examination of the body of a person, provided that person and the

military police official concerned are of the same gender.
(3) The Officer Commanding or commanding officer of the person referred to in

subsection (1)(a)(i) must make such person available or cause that person to be made
available for identification in the condition, position or apparel that the said military
police official may determine.

(4) If requested by the Officer Commanding or commanding officer of the person
referred to in subsection (1)(a)(i), the Prosecution Counsel or the military police official,
any registered medical practitioner or nurse, whether in the service of the Department or
not, may take the steps, including the taking of a blood sample, that may be reasonably
necessary to ascertain whether the body of any person referred to in subsection (1)(a)(i),
has any mark, characteristic, distinguishing feature or tattoo or shows any distinct
condition or appearance.

(5) A military court before which proceedings in terms of this Act are pending or are
being conducted, may order that—

(a) the finger prints, palm prints, foot prints, body prints or a photograph of an
accused be taken; or

(b) steps are taken, including the taking of a blood sample, to ascertain—
(i) whether the body of any person has any mark, characteristic, distinguish-

ing feature or tattoo or shows any distinct condition or appearance; or
(ii) the state of health of an accused, which the court may deem necessary for

the purposes of the proceedings.
(6) The presiding Senior Military Judge or Military Judge, as the case may be, must,

upon convicting the accused, direct the Prosecution Counsel to cause the accused’s
finger prints, palm prints, foot prints, body prints or photographs to be taken and
submitted to the Criminal Record Centre of the South African Police Service or any
official responsible to administer a national register of convicted offenders, including the
Registrar of the National Register for Sex Offenders as established by the Criminal Law
(Sexual Offences and Related Matters) Amendment Act and to the Child Protection
Register established in terms of the Children’s Act, 2005 (Act No. 38 of 2005).

Part 4

Pre-trial investigations

Duty of Officers Commanding and commanding officers

69. An Officer Commanding or commanding officer must, if he or she becomes aware
of an allegation or circumstances that indicate that a Schedule 1 offence with a
prescribed sentence of imprisonment exceeding one year has or may have been
committed by any member under the command of such Officer Commanding or
commanding officer, as soon as is reasonably possible, ensure that the matter is reported
to a military police official, irrespective of whether a board of inquiry has been
convened.

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Accounts of arrest or warning

70. (1) Any person who arrests a person under this Act or orders a person into arrest
for an offence, must, within 24 hours after the arrest or order, lodge a written account of
the arrest with the person in whose charge the arrested person is delivered and the
account of the arrest must certify that the arrested person was informed of his or her
rights: Provided that the account of arrest must be completed prior to any subsequent
appearance before a military court or civilian court.

(2) Any person who warns a person or causes such person to be warned that an
investigation may be conducted into his or her conduct must, within 48 hours after such
warning, lodge with the Disciplinary Adjutant of such person’s unit or a Prosecution
Counsel, a written account of the warning, signed by himself or herself, of the conduct
for which such person was warned: Provided that where the account of warning together
with any supporting statements, documents or other evidence is handed to a Prosecution
Counsel, a copy must be handed to the Disciplinary Adjutant without delay.

(3) If either the 24-hour or 48-hour time periods expire on a weekend or public
holiday or before four o’clock in the afternoon on the next day not being a weekend or
public holiday, it is deemed to expire at four o’clock in the afternoon of the day
following that weekend or public holiday.

Obtaining and completion of account of arrest or warning

71. (1) Whenever a person warns or intends to warn another person, he or she must—
(a) against signature, obtain from the relevant Disciplinary Adjutant an account

of warning;
(b) upon receipt, complete or cause the warning to be completed as prescribed;

and
(c) submit such completed account of warning together with any supporting

statements, documents or other evidence to the relevant Disciplinary Adjutant
or a Prosecution Counsel, who must record it in the register determined by
policy: Provided that where the account of warning together with any
supporting statements, documents or other evidence is handed to a Prosecu-
tion Counsel, a copy must be submitted to the Disciplinary Adjutant without
delay.

(2) Whenever a person arrests a person in terms of this Act, he or she must—
(a) against signature, obtain from the relevant Disciplinary Adjutant an account

of arrest;
(b) upon receipt, complete or cause it to be completed as prescribed; and
(c) submit such completed account of arrest to the person in whose charge the

arrestee is delivered and submit a copy thereof to the relevant Disciplinary
Adjutant who must record it in the register determined in the policy.

Procedure after warning of person

72. (1) The Disciplinary Adjutant must ensure that the account of warning and
supporting statements, documents and other evidence is submitted within 48 hours of
receipt thereof to the office of the local representative of the Judge Advocate General for
evaluation and decision by the relevant Prosecution Counsel.

(2) The Prosecution Counsel must, upon receipt of the account of the warning,
conduct such evaluation and—

(a) if satisfied that sufficient evidence exists to proceed with the matter before a
Court of a Senior Military Judge or a Military Judge, draft the charge sheet
and submit it to the Senior Prosecution Counsel together with a summary of
evidence for evaluation and a prosecution decision;

(b) if satisfied that sufficient evidence exists to proceed with the matter before a
military disciplinary hearing, the Prosecution Counsel on instruction from the
local Senior Prosecution Counsel must submit the record to the Disciplinary
Adjutant who must further deal with the matter in accordance with the
provisions of Chapter 11;

(c) if not satisfied that sufficient evidence has been gathered to proceed with the
matter before a Court of a Senior Military Judge, a Court of a Military Judge
or a military disciplinary hearing, the Prosecution Counsel must refer the
matter to the Disciplinary Adjutant for further investigation and collation of

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the required evidence, within a period specified by the Director Military
Prosecutions, until all investigative requirements are met and when so
satisfied and sufficient evidence has been gathered, the Prosecution Counsel
must comply with paragraph (a), (b) or (d); and

(d) if satisfied that all available evidence has been gathered and that there is no
reasonable prospect—
(i) of a successful prosecution; or

(ii) to proceed successfully with the matter before a military disciplinary
hearing,

the Prosecution Counsel must refer the matter to the local Senior Prosecution
Counsel with a recommendation to decline prosecution.

(3) Upon receipt of a recommendation to decline prosecution in terms of subsection
(2)(d), the local Senior Prosecution Counsel must consider such recommendation and—

(a) if he or she declines prosecution, inform the Officer Commanding or
commanding officer of the person affected about such a decision as soon as
reasonably possible, who must inform the relevant member as soon as
reasonably possible; or

(b) if he or she refuses to decline prosecution, refer the matter to the relevant
Prosecution Counsel with such instructions as he or she deems appropriate.

(4) If the Senior Prosecution Counsel is satisfied with the charge sheet, he or she
must sign and submit it to the relevant Prosecution Counsel to deal with in terms of
subsection (5).

(5) The relevant Prosecution Counsel must, after receipt of the signed charge sheet,
record the case in a register and forward the notice to appear as well as copies of the
charge sheet and the pre-trial investigation to the Officer Commanding or commanding
officer of the accused, who must hand such notice and copies to the Disciplinary
Adjutant.

(6) The Disciplinary Adjutant must explain the contents of the notice to appear and the
charge sheet to the accused and hand him or her copies thereof as well as a copy of the
pre-trial investigation.

Function of Disciplinary Adjutant regarding pre-trial investigation

73. (1) A Disciplinary Adjutant who receives an account of warning or an account of
arrest or upon instruction from the relevant Prosecution Counsel to conduct further
investigation, must investigate the matter and during the course of such investigation—

(a) interview a person other than a suspect who may be able to furnish
information in connection with the case;

(b) take sworn statements, where necessary, from a person interviewed;
(c) trace the whereabouts of a person who may furnish information in connection

with the case; and
(d) seize or take charge of any document, property or item which may be used in

evidence at the trial, excluding military police dockets, and submit any
relevant document, property or item collated in terms of this section with the
account of warning or arrest and submit any supplementary investigation
material to the relevant Prosecution Counsel.

(2) Upon receipt of the completed account of warning or arrest and the finalised
investigation material, the relevant Prosecution Counsel must record in a register the
account of the warning or arrest and investigation material as a case within the
functional responsibility of the prosecution environment.

Duty to refer case following investigation by military police or civilian police

74. (1) A military police official who investigated an allegation which indicates, or
circumstances which indicate, that a Schedule 1 offence has or may have been
committed or who has been informed of such allegations or circumstances by a South
African Police Service official or a recognised local or foreign statutory or established
police force or police service official, must refer the case to the local Senior Prosecution
Counsel as soon as reasonably possible.

(2) A military police official who considers that there is sufficient evidence to justify
the appearance of an implicated member before a military disciplinary hearing for
misconduct under Schedule 2, must refer the case to the Officer Commanding or
commanding officer, as the case may be, of such member.

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(3) Subject to section 76, when a military police official does not refer the case to the
Officer Commanding or commanding officer under subsection (2), he or she must
consult the local Senior Prosecution Counsel as soon as is reasonably possible.

(4) Where the gathered evidence discloses—
(a) the commission of an offence and is of such a nature that a reasonable prospect

of success at prosecution exists, that person must be prosecuted unless the
charge has been rendered non-justiciable, has prescribed or there is any other
legal impediment which renders the charge or person incapable of being tried
by a military court; and

(b) misconduct of such a nature that upon evaluation of probabilities, a reasonable
prospect of success at establishing the commission of such misconduct could
be pronounced, that person must be brought before a military disciplinary
hearing, unless the act of misconduct has prescribed or any other legal
impediment renders the case of misconduct incapable of being heard by a
military disciplinary hearing.

Notification of referral to Officer Commanding or commanding officer

75. (1) The military police official must as soon as reasonably possible after referral
of the case in terms of section 74(1), notify the relevant Officer Commanding or
commanding officer of the referral or submission.

(2) In circumstances provided for in section 74(2), the military police official must as
soon as reasonably possible provide the investigation documents to the relevant Officer
Commanding or commanding officer and specify the circumstances which the relevant
military police official regards as qualifying the conduct as a Schedule 2 misconduct.

Investigation and process following receipt of military police dockets

76. (1) During the investigation process, a military police official may approach a
Prosecution Counsel for guidance and assistance and such Prosecution Counsel may
direct the military police official to conduct further investigation and return such at
instructed target dates until the Prosecution Counsel is satisfied.

(2) All military police dockets, including the account of arrest or warning, if any, must
upon completion of the investigation be presented to the relevant Prosecution Counsel
for a prosecution decision and if such Prosecution Counsel is satisfied that sufficient
evidence exists to proceed with the matter before a Court of a Senior Military Judge or
Military Judge, he or she must draft the charge sheet and submit it to the Senior
Prosecution Counsel together with a summary of evidence for evaluation and a
prosecution decision.

(3) If the Senior Prosecution Counsel is satisfied that a reasonable prospect of success
at prosecution exists, he or she must sign the charge sheet and instruct the relevant
Prosecution Counsel to issue a notice to appear to the accused: Provided that if the
Senior Prosecution Counsel is not satisfied either—

(a) refer the matter back for further investigation and upon receipt of the required
additional evidence sign the amended charge sheet; or

(b) in person, effect any changes or amendments to the charge sheet in accordance
with the provided evidence before the signing thereof.

Receipt of findings of board of inquiry by Judge Advocate General

77. (1) When the convening authority of a board of inquiry confirms the findings and
recommendations of a board of inquiry, such board of inquiry convened at the level of
the Secretary for Defence, the Chief of the Defence Force or the Chiefs of Services and
Divisions, its findings and recommendations must be forwarded to the office of the
Judge Advocate General to be reviewed for technical and legal compliance.

(2) In the case of boards of inquiry relating to maritime or aviation safety matters or
other specialist fields, the findings and recommendations of such boards must be
considered by the Maritime Safety Board of the South African Navy, Vessel
Certification Authority Board of the South African Navy or Aviation Safety Board of the
South African Air Force or other specialist advisory or statutory boards, before being
forwarded to the office of the Judge Advocate General.

(3) If it appears to a Military Law Practitioner, during the review, that evidence
contained in the board of inquiry suggests that an offence in terms of this Act may have

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been committed by a person, the matter must be forwarded to the Director Military
Prosecutions for a prosecution decision or recommendation.

(4) The Director Military Prosecutions must—
(a) if satisfied that there is a reasonable prospect of success at prosecution,

forward the evidence from the board of inquiry to the office of the local
representative of the Judge Advocate General who must then inform the
relevant Officer Commanding or commanding officer of the implicated
member of the decision to prosecute;

(b) if not satisfied that all relevant evidence was gathered in order to proceed with
the matter before a Court of a Senior Military Judge or a Court of a Military
Judge, submit the evidence to the office of the local representative of the Judge
Advocate General to instruct the military police to obtain any additional
evidence as required; or

(c) if satisfied that all available evidence has been gathered and that there is no
reasonable prospect of success at prosecution, decline to prosecute,

and notify the convening authority of the decision taken with regard to the institution of
prosecution or otherwise.

(5) The local representative of the Judge Advocate General must—
(a) upon receipt of any additional evidence referred to in subsection (4)(b),

forward such evidence to the office of the Director Military Prosecutions for
a prosecution decision or recommendation, whereafter the Director Military
Prosecutions may execute actions as referred to in subsection (4)(a); or

(b) upon receipt of the evidence from the board of inquiry as referred to in
subsection (4)(a), notify the relevant Officer Commanding or commanding
officer of the implicated person of the prosecution decision, who must instruct
the Disciplinary Adjutant to warn the implicated person and submit the signed
account of warning within 48 hours to the Senior Prosecution Counsel at the
office of the relevant local representative of the Judge Advocate General.

(6) The Senior Prosecution Counsel at the office of the relevant local representative of
the Judge Advocate General must, upon receipt of the arrest or warning, instruct a
Prosecution Counsel to proceed in accordance with subsection (7) and to issue a notice
to appear to the accused.

(7) The relevant Prosecution Counsel must sign the charge sheet, record the case in a
prescribed register and forward the notice to appear as well as a copy of the charge sheet
over to the Officer Commanding or commanding officer of the accused, who must hand
such notice and charge sheet over to the Disciplinary Adjutant.

(8) The Disciplinary Adjutant must explain the contents of the notice to appear and the
charge sheet to the accused and hand him or her copies thereof.

Receipt of findings of board of inquiry by local representative of Judge Advocate
General

78. (1) When the convening authority of a board of inquiry confirms the findings and
recommendations of a board of inquiry, other than a board of inquiry referred to in
section 77(1), the findings and recommendations must be forwarded to the office of the
local representative of the Judge Advocate General to be reviewed for technical and
legal compliance.

(2) In the case of a board of inquiry relating to maritime or aviation safety matters or
other specialist fields, the findings and recommendations of such boards must be
considered by the Maritime Safety Board of the South African Navy, Vessel
Certification Authority Board of the South African Navy or Aviation Safety Board of the
South African Air Force or other specialist advisory or statutory boards, before being
forwarded to the office of the local representative of the Judge Advocate General.

(3) If it appears to a Military Law Practitioner, during the review, that evidence
contained in the board of inquiry suggests that an offence in terms of this Act may have
been committed by a person, the matter must be forwarded to the Senior Prosecution
Counsel for a prosecution decision or recommendation.

(4) Subject to section 37, the Senior Prosecution Counsel must—
(a) if satisfied that there is a reasonable prospect of success at prosecution, inform

the relevant Officer Commanding or commanding officer of the implicated
member of the decision to prosecute, who must, in turn, instruct the
Disciplinary Adjutant to warn the implicated person and submit the signed

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account of warning within 48 hours to the office of that Senior Prosecution
Counsel;

(b) if not satisfied that all relevant evidence was gathered in order to proceed with
the matter before a Court of Senior Military Judge or a Court of Military
Judge, instruct the military police to obtain any additional evidence as
required; or

(c) if satisfied that all available evidence has been gathered and that there is no
reasonable prospect of success at prosecution, decline to prosecute.

(5) The Senior Prosecution Counsel must—
(a) upon receipt of the account of warning referred to in subsection (4)(a), instruct

a Prosecution Counsel to proceed in accordance with subsection (6) and to
issue a notice to appear to the accused; or

(b) upon receipt of the evidence from the board of inquiry referred to in
subsection (3), notify the Officer Commanding or commanding officer of the
implicated person of the prosecution decision.

(6) The relevant Prosecution Counsel must sign the charge sheet, record the case in a
prescribed register and forward the notice to appear as well as a copy of the charge sheet
to the Officer Commanding or commanding officer of the accused, who must hand such
notice and charge sheet over to the Disciplinary Adjutant.

(7) The Disciplinary Adjutant must explain the contents of the notice to appear and the
charge sheet to the accused and hand him or her copies thereof.

Collation of evidence during pre-trial investigation phase

79. (1) The Prosecution Counsel, Disciplinary Adjutant or military police investigat-
ing official must obtain any required statement or evidence, including visiting any
person for such purpose, from any person whether subject to this Act or not.

(2) A Disciplinary Adjutant or Prosecution Counsel conducting a pre-trial investiga-
tion may—

(a) procure the attendance of witnesses;
(b) have witnesses summoned to give evidence or to produce a document or item

thereat;
(c) administer oaths or affirmations;
(d) admit sworn and unsworn statements into evidence; and
(e) collate evidence into the pre-trial investigation in accordance with subsection

(3).
(3) A pre-trial investigation must comprise of, if applicable—

(a) a cover sheet reflecting the reference of the pre-trial investigation;
(b) an index with page numbering;
(c) a certified copy of the account of warning or account of arrest;
(d) a certified copy of the certificate of surrender or arrest, in the prescribed form,

if applicable;
(e) original statements or certified copies of original statements; and
(f) documentary evidence.

(4) Where an incident leads to a report of misconduct and an account of warning or
account of arrest, such incident must be investigated under this Part.

CHAPTER 7

ARREST AND APPEARANCE BEFORE COURT

Arraignment of arrestees

80. Any person arrested in terms of this Act must be brought before a military court
that has jurisdiction to try the accused, and if a court with jurisdiction to try the accused
is not available, he or she may appear before a Court of a Military Judge for purposes of
this section, within 48 hours after such arrest for purposes of—

(a) arraignment; or
(b) considering the release of that accused in terms of section 81 or the remand in

custody in terms of section 82: Provided that if the period of 48 hours expires
on a weekend or public holiday or before four o’clock in the afternoon on the
next day not being a weekend or public holiday, it is deemed to expire at four

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o’clock in the afternoon of the next day following that weekend or public
holiday.

Non-arraignment of arrestee

81. Where an arrestee has not been brought before a military court within 48 hours
after arrest, such person must be released from custody without a release warrant,
subject to the right to re-arrest, and the Disciplinary Adjutant must record a notification
hereof on the account of arrest.

Remand in custody

82. (1) A military court may only remand a person in custody after giving both the
accused and the Prosecution Counsel an opportunity to present arguments to the court
and, if necessary, to lead evidence in support of, or in opposition to, the remand in
custody.

(2) When a military court considers the remand of an accused in terms of subsection
(1) and there is reason to believe that the accused—

(a) may abscond;
(b) may interfere with the investigation or any witness;
(c) may conceal, destroy, do away with, or in any manner interfere with, any

article or item which may be used in evidence at his or her trial;
(d) may persist in, or continue, the commission of the offence in question;
(e) is likely to injure himself or herself or others; or
(f) having regard to the nature or prevalence of the alleged offence which is under

investigation, should, in the interest of discipline, not be at large or allowed to
consort with his or her comrades,

that military court must remand the accused in custody.

CHAPTER 8

LEGAL REPRESENTATION AND ASSISTANCE TO ACCUSED

Part 1

Legal representation

Right to legal representation

83. (1) (a) In respect of legal proceedings in terms of this Act, excluding Chapter 11,
every accused has the right to be represented by—

(i) a legal representative of his or her own choice at his or her own expense, other
than a Military Defence Counsel contemplated in section 30(a)(ii); or

(ii) an allocated Military Defence Counsel at State expense.
(b) During external operational deployments or circumstances, an accused may be

compelled to be represented by a Military Defence Counsel, unless he or she waives the
right to legal representation.

(2) Whenever an accused appears before a military court or a Military Judge or a
Senior Military Judge without legal representation, the presiding Military Judge or
Senior Military Judge—

(a) must ensure that the accused does not suffer any prejudice because of—
(i) the accused’s position as such;

(ii) the accused’s ignorance or incapacity to examine or cross-examine
witnesses; or

(iii) the accused’s ignorance or incapacity to make his or her defence or
opposition, clear and intelligible;

(b) must advise the accused of—
(i) his or her right to legal representation;

(ii) his or her rights at the various stages of the proceedings;
(iii) any onus which may be placed on him or her; and
(iv) any possible verdict, alternative verdict or declaration; and

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(c) may, if the accused indicates a wish to be represented by a legal
representative, postpone the matter to afford the accused reasonable opportu-
nity to obtain the representation of his or her choice.

(3) Whenever any accused appears before a military court, a Military Judge or a
Senior Military Judge without legal representation after the lapse of the reasonable time
afforded in terms of subsection (2)(c) by the presiding Military Judge or Senior Military
Judge, the accused must be directed to the relevant Senior Military Defence Counsel for
the appointment of a Military Defence Counsel and a date must be set by the presiding
Military Judge or Senior Military Judge for the case to continue.

Part 2

Penalties

Sentences

84. (1) Subject to subsections (2) to (9), a military court may, whenever it convicts an
accused of any offence and subject to the maximum penalty provided for by law for that
offence, impose upon the offender a sentence consisting of one or more of the following:

(a) Imprisonment for a maximum of 30 years in the case of a Court of Senior
Military Judge and a maximum of 10 years in a case of a Court of Military
Judge;

(b) in the case of an officer, cashiering or dismissal from the Defence Force;
(c) in the case of another rank—

(i) discharge with ignominy from the Defence Force; or
(ii) discharge from the Defence Force;

(d) in the case of another rank, military correctional confinement for a period not
exceeding two years: Provided that the rank of a person must be suspended
with retention of pay for the duration of the confinement;

(e) in the case of an officer, reduction to any lower commissioned rank;
(f) in the case of another rank—

(i) reduction to any lower class of rank, to any lower rank, to any
non-commissioned rank or to the ranks;

(ii) fatigue duties not exceeding two hours per day for a non-consecutive
period not exceeding 60 days under supervision of any person appointed
by the Officer Commanding or commanding officer, as the case may be,
for that purpose;

(iii) rehabilitative labour not exceeding two hours per day for a non-
consecutive period not exceeding 60 days under supervision of any
person appointed by the Officer Commanding or commanding officer, as
the case may be, for that purpose; or

(iv) extra drills not exceeding two hours per day for a non-consecutive period
not exceeding 14 days under supervision of any person appointed by the
Officer Commanding or commanding officer, as the case may be, for that
purpose;

(g) reversion from any acting or temporary rank to his or her substantive rank;
(h) compulsory rehabilitation including after-care process for alcohol, narcotic or

substance addiction or abuse;
(i) military community service of a non-remunerative nature, as ordered by the

court, of four hours per weekday to commence one hour after normal working
hours and eight hours per day over weekends and public holidays, for a period
not exceeding 90 days;

(j) suspension of a military driving or pilot’s licence or vessel steering
competency certificate for a specified period not exceeding 12 months or
cancellation of a military driving or pilot’s licence or vessel steering
competency certificate;

(k) reduction in seniority in rank;
(l) in the case of another rank, confinement to barracks or unit lines for a period

not exceeding 60 days with or without corrective behaviour drills during
training, operations or deployments: Provided that in the case of Warrant
Officers, such sentence must be without corrective behaviour drills;

(m) extra non-consecutive duties for a period not exceeding 60 days;

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(n) a fine not exceeding R200 000.00 in the case of a Court of Senior Military
Judge and R150 000.00 in the case of a Court of Military Judge; or

(o) a reprimand.
(2) A military court may, when it convicts another rank for an offence committed

while serving a sentence of correctional confinement, irrespective of the number of
offences upon which he or she has been found guilty, impose upon the inmate any
sentence provided for in this Act, including an additional sentence of corrective
punishment consisting of any one of the following:

(a) Forfeiture of any remission or discount on account of good behaviour with
regard to that sentence of correctional confinement;

(b) solitary confinement for a period not exceeding 14 consecutive days under the
supervision of any person appointed by the superintendent of the correctional
facility for that purpose, at the termination of which he or she may not be
required to serve any further sentence of solitary confinement within seven
days thereafter;

(c) rehabilitative labour not exceeding two hours per day for a period not
exceeding seven days under the supervision of any person appointed by the
superintendent of the correctional facility for that purpose;

(d) fatigue duties not exceeding two hours per day for a period not exceeding
seven days under supervision of any person appointed by the superintendent
of the correctional facility for that purpose;

(e) extra military instruction not exceeding one hour per day for a period not
exceeding 21 days under the supervision of any person appointed by the
superintendent of the correctional facility for that purpose; or

(f) partial or complete forfeiture of privileges or facilities for a period not
exceeding seven days.

(3) A military court may, when it convicts an accused who is a prisoner of war of any
offence, impose upon the accused a sentence of—

(a) imprisonment;
(b) correctional confinement for a period not exceeding two years;
(c) forfeiture of any remission or discount on account of good behaviour with

regard to that sentence of correctional confinement;
(d) a fine of not more than 50 percent of the advances of pay and working pay

which the prisoner of war would otherwise receive under the provisions of
Articles 60 and 62 of the Geneva Convention, during a period of 180 days;

(e) solitary confinement for a period not exceeding 14 consecutive days under the
supervision of any person appointed by the camp commander for that purpose,
at the termination of which he or she may not be required to serve any further
sentence of solitary confinement within seven days thereafter;

(f) fatigue duties not exceeding two hours per day for a period not exceeding
seven days under the supervision of any person appointed by the camp
commander for that purpose;

(g) extra labour not exceeding two hours per day for a period not exceeding seven
days under the supervision of any person appointed by the camp commander
for that purpose;

(h) discontinuance of privileges granted over and above the treatment provided
for by the Geneva Convention; or

(i) a reprimand.
(4) The competence of a military court to impose a sentence in terms of subsections

(1), (2), or (3) or the proviso in subsection (9), is limited by—
(a) the maximum penalty provided by law for that offence;
(b) its own penal or disciplinary jurisdiction; and
(c) the provisions of this Act.

(5) For the purposes of this Act, each penalty provided for in subsections (1), (2) and
(3) is deemed to be less severe and less serious than the preceding penalty for the
relevant rank.

(6) A sentence of correctional confinement—
(a) subjects, as its primary purpose, the offender to military training while in

custody in a correctional facility with the view to returning that offender to his
or her unit as a better trained and better disciplined member after the
completion of the sentence;

(b) is subject to an automatic remission or discount for good behaviour of one
quarter of the period of correctional confinement imposed as a sentence:

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Provided that such remission or discount may be forfeited by means of the
imposition of a sentence contemplated in subsection (2)(a) or (3)(c); and

(c) must be served in a facility which allows the ingression of natural light.
(7) A sentence—

(a) referred to in subsections (2)(a) and (3)(c) may not be imposed or enforced
after the expiration of the sentence of correctional confinement which that
person was serving at the time of the offence; and

(b) of solitary confinement referred to in subsections (2)(b) and (3)(e) must—
(i) be served in a facility which allows the ingression of natural light; and

(ii) not commence within three days of the expiration of a prior sentence of
solitary confinement, if the duration of that prior sentence was 10 or more
days.

(8) A military court which has convicted an accused may, if the accused is serving
outside the Republic or on a ship which is at sea, and that court is of the opinion that it
is impractical to impose the punishment of correctional confinement or confinement to
barracks, instead of that punishment, sentence the accused to be deprived of his or her
salary in an amount calculated at the rate of one half-day’s salary for every day’s
correctional confinement not exceeding a period of 10 days or one quarter-day’s salary
for every day’s confinement to barracks not exceeding a period of 20 days which, but for
this provision, the military court would have imposed on the accused.

(9) Subject to section 86(5), when a military court convicts a civilian who is subject
to this Act in terms of an offence contained in Schedule 1, such court may only impose
a sentence of a fine to the maximum of R50 000.00: Provided that, if the offence was
committed outside the borders of the Republic, the court may also impose a sentence of
imprisonment limited by the maximum penalty provided for by law for that offence and
the jurisdiction of the court.

Alternative punishments

85. A military court which has convicted an accused of any offence may, instead of
imposing upon that person the maximum penalty prescribed in this Act in respect of that
offence, impose upon him or her any other penalty within the court’s jurisdiction, which
is not a more severe penalty than the maximum penalty so prescribed.

Certain provisions to apply in case of particular punishments

86. (1) Save as provided in item 19(2) of Schedule 1, no sentence of imprisonment
may be for a period shorter than 30 days.

(2) The punishment of imprisonment may not be combined with the punishment of
correctional confinement.

(3) An officer sentenced to imprisonment must also be sentenced to cashiering, and
the latter sentence must be executed before the officer concerned is lodged in any
military prison or correctional centre to serve the sentence of imprisonment.

(4) In the event of a Warrant Officer, Non-Commissioned Officer or Private who is
sentenced to imprisonment, he or she must also be sentenced to discharge with
ignominy.

(5) Any person whose trial commences or is concluded after he or she would, but for
the provisions of sections 25 and 26(2), have ceased to be subject to this Act, may on
conviction, if a sentence of a fine is imposed, be sentenced to a period of imprisonment
not exceeding six months in default of the payment of the fine or the court may order him
or her to remain in custody until the payment of the fine into an approved Treasury
account, but in any event not longer than six months.

(6) Every sentence of imprisonment or correctional confinement imposed under this
Act must continue to run even if the offender would, but for the provisions of section
3(1)(c), otherwise have ceased to be subject to this Act during the currency of the
sentence.

(7) An officer sentenced to cashiering or dismissal from the Defence Force in terms of
this Act must, within 48 hours of announcement of the sentence, surrender his or her
Deed of Commission, citations and commendations to his or her Officer Commanding or
commanding officer.

(8) At the cashiering, the officer must hand in his or her rank insignia and all medals
received to the relevant Service Chief during the parade.

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(9) The punishments of fines in terms of section 84(1)(n) and (o) may be combined.
(10) When a military court sentences a civilian who is subject to this Act to a fine,

such court must order him or her to remain in custody until the payment of the fine into
an approved Treasury account, but in any event not for longer than six months.

Right of offender to benefit by least of prescribed punishments

87. An offender has the right to the benefit of the least severe of the prescribed
punishments if the prescribed punishment for the offence has been changed between the
time that the offence was committed and the time of sentencing.

Prohibition of corporal punishment

88. Despite anything to the contrary in any other law, no civilian court, military court
or military disciplinary hearing may in respect of any offence or act of misconduct under
this Act, sentence or sanction an offender or implicated member to any form of corporal
punishment.

Temporary inability to serve sentence or sanction

89. Where the circumstances of an offender, prisoner of war or sanctioned member
under this Act as a result of—

(a) his or her default or any act performed by him or her; or
(b) his or her non-availability or temporary incapacity or illness or other reason,

precludes the immediate or continued execution of any sentence or sanction or any part
thereof as imposed on him or her, the period of sentence or sanction must be extended
by a period equal to the period taken up by such default, act, non-availability, incapacity,
illness, or other lawful reason.

Effect of sentence of reduction or reversion in rank

90. (1) When an offender is sentenced to reduction to—
(a) any lower commissioned rank;
(b) any lower class of rank or any lower rank;
(c) any non-commissioned rank; or
(d) the ranks,

that offender must take the most junior position on the seniority list of the rank to which
he or she is reduced, and his or her salary and any benefit of rank must be reduced to that
which pertains to the rank to which he or she is reduced.

(2) When an offender is sentenced to reversion from any temporary or acting rank to
his or her substantive rank, his or her salary and any benefit related to rank, must be
reduced to that which pertains to his or her substantive rank.

(3) When an offender is sentenced to any reduction in rank contemplated in
subsection (1) and that offender’s salary or any benefit is not determined by his or her
military rank, his or her salary and any such benefit must be reduced, if reduced by—

(i) one rank, to the starting notch of the current level of remuneration on his or her
applicable salary dispensation; or

(ii) two or more ranks, to the starting notch of the previous level of remuneration.

Suspension of sentence

91. (1) When a military court sentences an offender, it may suspend the operation of
that sentence, partially or in the whole, for a period not exceeding three years on the
conditions that the court may determine.

(2) A military court must not suspend the operation of the sentence if the imposed
sentence is—

(a) confinement to barracks;
(b) corrective punishment;
(c) extra non-consecutive duties;
(d) compulsory rehabilitation including after-care process for alcohol, narcotic or

substance addiction or abuse;
(e) fatigue duty or extra labour;
(f) reversion from any acting or temporary rank to substantive rank;

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(g) suspension of a military driving licence permanently or for a specified period
not exceeding 12 months; or

(h) a reprimand.
(3) When a court orders a suspended sentence into operation in respect of a person on

whom a suspended sentence of correctional confinement was imposed when he or she
was a Private, and who was thereafter promoted, the temporary reduction to the ranks as
provided for in section 84(1)(d) applies.

Adjustment of fines

92. The provisions of the Adjustment of Fines Act, 1991 (Act No. 101 of 1991), are
not applicable to military courts.

Declaratory orders

93. (1) If on the information contained in an offender’s record of service it is evident
that an offender has numerous convictions for a similar offence upon which the military
court has convicted the offender, the Prosecution Counsel must apply to the court for a
declaratory order declaring the offender an habitual offender.

(2) The military court must, in the presence of the offender and his or her legal
representative, if any, hear and record evidence concerning an application to be declared
an habitual offender, including any evidence that may be tendered by the offender.

(3) Any witness called by the Prosecution Counsel may—
(a) be cross-examined by the offender or his or her legal representative; and
(b) thereafter be re-examined by the Prosecution Counsel.

(4) If the offender elects to give evidence and call any witnesses—
(a) the offender or witness may be cross-examined by the Prosecution Counsel;
(b) in the case of the offender, after giving evidence, the offender may adduce

further evidence that he or she may deem necessary; or
(c) in the case of a witness called by the offender, the witness may be re-examined

by the offender or his or her legal representative concerning any evidence
given under direct examination.

(5) After hearing all available evidence, the military court must make a determination
whether or not to declare the offender an habitual offender.

(6) In the event of a sentence of suspension or cancellation of a driving licence, pilot’s
licence or vessel steering competency certificate, being imposed on an offender and if
the court did not impose a sentence of cashiering, dismissal, discharge with ignominy or
discharge, the matter must, after the review or appeal processes, where applicable, be
referred to the Director Military Judges who must cause it to be referred to the offender’s
direct Officer Commanding or commanding officer, who may direct the offender’s—

(a) redeployment in a different capacity within the Defence Force to the relevant
Service or Divisional Chief; or

(b) administrative discharge or dismissal as prescribed.
(7) The Officer Commanding or commanding officer must, from the date of

conviction, or where an appeal has been lodged against such conviction, or pending a
decision to dismiss or discharge as prescribed, forthwith temporarily prohibit the
convicted person from using, driving, steering, piloting or handling any military
vehicles, vessels, aircrafts or specialised equipment or components thereof.

(8) Whenever the driving or pilot’s licence or vessel steering competency certificate
of a member has been suspended for any period, the court may order that the suspension
remain effective until such offender’s competence has been confirmed after being
re-tested.

(9) When a military court imposes a sentence in terms of section 84(1)(f), (g), (i), (l)
or (m), such court must, prior to making its order, require the Officer Commanding or
commanding officer to advise on the suitability of continued deployment or the option
to return the member to home base and thereafter consider an order to direct the offender
to serve such sentence within the deployment area for the duration or remainder of his
or her deployment period.

(10) The deploying authority may upon completion of the sentence by an offender,
administratively direct the offender’s return to the Republic from his or her deployment,
based on the suitability of the offender’s continued deployment.

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(11) In the event of an offender being sentenced to cashiering or dismissal, the
military court must order the termination of that offender’s commission and such court
order is the authority for the simultaneous termination of that offender’s appointment.

(12) In the event of an offender being sentenced to discharge with ignominy or
discharge, the military court must order the termination of that offender’s appointment,
and in the case of the offender being a Warrant Officer, also the termination of such
offender’s deed of warrant.

(13) In the event of an offender being sentenced to cashiering, discharge with
ignominy, dismissal or discharge, the military court must order the withdrawal of any
military post-nominal letters and the return of military insignia, rank epaulets,
qualification badges, proficiency badges, military medals and decorations, including any
commendation certificates and citations, in a military manner before either the Chief of
the Defence Force or the relevant Service Chief.

(14) When a military court convicts an accused of a sexual offence, the court must
order the clerk of the court to—

(a) enter the conviction in a register containing at least the full particulars of the
offender, the offence and the conviction; and

(b) notify the Service Chief and the Officer Commanding or commanding officer
of such convicted member in writing of such order as well as the outcome of
an appeal or review, including the correction or the making or alteration of any
declaratory order, if any,

and order that such offender be removed from any functional environment involving
children, learners at military training institutions, persons with mental disabilities, or
vulnerable persons or from any deployment: Provided that where subsection (15)
applies, this fact must also be recorded in such register.

(15) When a military court convicts an accused of a sexual offence, the court must
order, where necessary, that the offender be subjected to relevant medical and blood tests
at a local military hospital, district or provincial hospital, to ascertain the offender’s
status relating to Human Immunodeficiency Virus, sexually transmittable diseases and
other contagious diseases, and for the confidential disclosure thereof to the victim
including the receipt by the victim of post exposure prophylaxis or other medical
treatment as medical circumstances may require.

(16) Where a military court has made an order under subsection (14) and where
section 50 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act
requires inclusion in the Register contemplated in that Act, the clerk of the military court
must forthwith forward to the Registrar of the National Register for Sex Offenders as
contemplated in section 42 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act—

(a) the court order, together with all the particulars of the offender referred to in
subsection (14), as well as the particulars referred to in section 49 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act;

(b) relevant finger prints, palm prints, foot prints, body prints and photographic
images;

(c) the outcome of an appeal or review; and
(d) any correction or alteration of any declaratory order.

(17) When a military court imposes a sentence of compulsory rehabilitation including
aftercare process for alcohol, narcotic or substance addiction or abuse, the court must
order that such compulsory rehabilitation including aftercare process for alcohol,
narcotic or substance addiction or abuse, be at the first instance at the cost of the State
on condition that the offender completes the programme, and for the relevant healthcare
practitioner to submit a report to the Officer Commanding or commanding officer
stipulating the completion of the intervention programme and the success or otherwise
thereof, and if required, any subsequent treatment must be at the cost of the offender:
Provided that if the offender fails to complete the programme, he or she must reimburse
the State.

(18) Nothing contained in this Act prohibits a military court from executing the
functions and responsibilities contained in the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, and to issue any order contemplated therein.

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Payment whilst awaiting appeal or review

94. An offender sentenced to cashiering, discharge with ignominy, dismissal or
discharge does not forfeit his or her salary for any period of actual service rendered
whilst awaiting a review or appeal decision in his or her case.

CHAPTER 9

PROMULGATION, EXECUTION OF SENTENCES AND ORDERS AND
MATTERS RELATED TO CORRECTIONAL CONFINEMENT

Execution and promulgation

95. (1) Every finding, sentence and order by a military court must be promulgated and
published as contemplated in subsection (3) as soon as possible after the proceedings of
the case have been reviewed by a Review Authority.

(2) An acquittal must be promulgated and published as soon as possible after it has
been announced.

(3) The promulgation of every finding, be it a conviction or acquittal, sentence or
order by a military court must be—

(a) promulgated either on parade according to the custom of the Service or in the
manner that the offender’s Officer Commanding or commanding officer may
direct; and

(b) published in unit orders.
(4) Every sentence of cashiering or discharge with ignominy must be executed on

parade simultaneously with the promulgation thereof.
(5) Subject to section 105, the Officer Commanding or commanding officer of a

convicted person must ensure that any sentence imposed or order made by the court that
convicted that person is executed as soon as possible.

Commencement of sentence

96. (1) Subject to section 105, every sentence is enforceable and must be executed as
soon as possible after announcement in open court and must be effectively executed.

(2) If an offender is detained in custody after announcement of a sentence of
imprisonment or correctional confinement, the period spent in custody pending the
execution of his or her sentence must be taken—

(a) to have been served in execution of that sentence; and
(b) into account in determining the date of the completion of the serving of the

sentence.
(3) When a sentence is varied by a Review Authority or a High Court of the Republic

of South Africa—
(a) subsections (1) and (2) must, subject to the changes required by the context,

apply; and
(b) the varied sentence must, for purposes of record only, be deemed to have been

announced on the date on which the original sentence was announced in open
court by the court which convicted the offender.

Sentenced offender not immediately transferred

97. An offender sentenced to imprisonment under circumstances where such offender
cannot be immediately transferred to a military prison or correctional centre, may be
confined to any suitable facility as may be determined by the Officer Commanding or
commanding officer for such purpose until the transfer can be effected.

Correctional centre, military prison, military correctional facility, military police
cell, military police detachment or military lock-up

98. (1) Subject to subsections (2) and (3), the Minister may—
(a) establish one or more military prisons in the Republic to which arrestees,

accused persons or offenders—
(i) may be received, admitted and kept in custody pending, or during, their

trial; and

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(ii) who have been sentenced to imprisonment in terms of this Act, may be
committed to serve sentences; and

(b) direct that offenders sentenced to imprisonment in terms of this Act be
committed to any military prison or correctional centre established or deemed
to have been established under the Correctional Services Act.

(2) The Minister may—
(a) establish one or more military correctional facilities, military police cells,

military lock-up or detachment facilities inside or outside the borders of the
Republic to which arrestees, accused persons or offenders—
(i) may be received, admitted or kept in custody pending, or during, his or

her trial; or
(ii) sentenced to correctional confinement, may be committed to serve such

sentences; or
(b) direct that certain premises or portion of premises be deemed to be a

correctional facility to which such arrestees, accused persons or offenders,
may be so committed.

(3) Where the Minister has not established a military prison as provided for in
subsection (1), offenders sentenced to imprisonment in terms of this Act must be
committed to a correctional centre established or deemed to have been established under
the Correctional Services Act.

(4) Where the Minister has not established any military correctional facilities,
military police cells, military lock-up or detachment facilities as provided for in
subsection (2), in the case of arrestees or accused persons awaiting trial or during trial,
such arrestees or accused persons may be kept in custody at the local South African
Police Service holding facilities or the trial awaiting or holding facility of the
Department of Correctional Services, pending his or her release from custody or
finalisation of his or her trial.

(5) An offender who has been sentenced to correctional confinement must only serve
such sentence within a military correctional facility.

(6) Military correctional facilities established before the commencement of this Act
must be deemed to have been established under this Act.

(7) In ensuring that an offender referred to in subsection (1) is treated on the same
basis as, and has the same rights as, an offender who has been sentenced to
imprisonment in terms of the Criminal Procedure Act, every competence which may, in
terms of the Correctional Services Act, be exercised in respect of an offender serving a
sentence of imprisonment imposed under the Criminal Procedure Act, must be exercised
in respect of that offender.

(8) In ensuring that an arrestee or accused contemplated in subsection (4) is treated on
the same basis as, and has the same rights as, an arrestee or accused who is temporarily
kept in custody in terms of the Criminal Procedure Act, any competence which may be
exercised in terms of the Correctional Services Act or the Criminal Procedure Act in
respect of an arrestee or accused who is temporarily kept in custody pending release or
finalisation of his or her trial, must be exercised in respect of that arrestee or accused.

(9) In terms of this subsection, read with subsection (10)—
(a) members of the Defence Force;
(b) foreign military personnel of a visiting force within the borders of the

Republic or the territorial waters of the Republic;
(c) members of a force of any foreign State or international body who are placed

at the disposal of, and who are temporarily attached to, the Defence Force by
the military authorities of that State or body;

(d) deserters or absentees without leave of a visiting force; or
(e) deserters or absentees without leave of members of a force of any foreign

State or international body who are placed at the disposal of, and who are
temporarily attached to, the Defence Force by the military authorities of that
State or body,

who have been committed to the trial awaiting or holding facilities of correctional
centres or the trial awaiting or holding facilities of the South African Police Service,
pending the conclusion of an investigation or whilst awaiting trial, in matters arising
from such members having performed official duties, may be dealt with in terms of
subsection (10).

(10) Subject to subsection (9), members, arrestees or detainees referred to in
subsection (9)(a), (c) and (e), when granted bail by a South African Police official of the
rank of a Non-Commissioned Officer or higher, or the Director of Public Prosecutions,

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or a State prosecutor authorised by the Director of Public Prosecutions, in writing or a
civilian court, may with conditions be—

(a) released in the interest of the Defence Force;
(b) released into the confinement of the Defence Force or relevant visiting force,

whichever may be applicable;
(c) handed over to the appropriate authorities of the relevant visiting force; or
(d) released on cognisance into the care of the Defence Force or relevant visiting

force, whichever may be applicable, or handed over to the appropriate
authorities of the visiting force.

(11) An Officer Commanding or commanding officer of members, arrestees or
detainees provided for in subsection (9)(a), (c) and (e) may, in accordance with
regulations made in terms of section 162, pay the amount set for bail on behalf of such
members: Provided that—

(a) such payment is not in conflict with any provision of the Public Finance
Management Act or applicable Treasury Regulations; and

(b) in the case of non-compliance with any bail condition that may have been set
and the bail amount the Officer Commanding or commanding officer posted
on behalf of such member has been forfeited to the State, such Officer
Commanding or commanding officer must deduct or cause the deduction of
the relevant amount of bail posted from such member’s salary or pension fund
for the purpose of forfeiting it to the Defence Force.

(12) The Officer Commanding or commanding officer of members, arrestees or
detainees provided for in subsection (9)(a), (c) and (e), may, in the case of the
non-compliance with any bail condition—

(a) trace, apprehend and place such members or arrestees in custody; and
(b) hand over such members or arrestees to the South African Police Service to

remain in custody until the matter is finalised or otherwise dealt with by the
court or authorities.

Sentences of imprisonment and correctional confinement imposed outside
Republic

99. (1) The Chief of the Defence Force may authorise any officer in command of
troops beyond the borders of the Republic to establish a correctional facility to which
offenders sentenced to correctional confinement under this Act may be committed to
serve such sentences.

(2) Subject to subsection (3), any offender sentenced beyond the borders of the
Republic to—

(a) imprisonment under this Act; or
(b) correctional confinement under this Act,

must be removed to the Republic to serve that sentence as soon as reasonably possible.
(3) If in the opinion of an officer in command of troops beyond the borders of the

Republic, a removal provided for in subsection (2) is not reasonably practicable owing
to distance, lack of means of conveyance or other circumstances, he or she may direct
that the offender serves part of his or her sentence in—

(a) a correctional facility established under subsection (1); or
(b) a military or civilian prison, a military or civilian correctional facility or

correctional centre or like place of confinement established or controlled or
supervised by any foreign State or by the commander of any force serving in
cooperation with the Defence Force, in accordance with the spirit of any
relevant Memorandum of Understanding, Status of Forces Agreement or bi-
or multi-lateral agreement, if the Minister has given general or specific
authority therefor,

until such time that it is reasonably possible to be removed to the Republic.
(4) Any accused beyond the borders of the Republic who is charged or stands to be

charged with any offence, which offence would normally be tried by a Court of a Senior
Military Judge, may be committed to, and detained in, any prison, correctional facility
or correctional centre or like place of confinement referred to in subsection (3), while
that accused is awaiting trial, review or appeal, but may not be so committed or detained,
unless the consent of his or her Officer Commanding or commanding officer has been
obtained.

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(5) The regulations applicable to correctional facilities and the constitutional rights
of detainees in the Republic apply to a correctional facility established under
subsection (1).

(6) The Minister may, on request by the Chief of the Defence Force, provide the
officer in general command of the Defence Force in the area in which such correctional
facility is situated, written permission to authorise in writing, additional or other
measures for such correctional facility, that local or service conditions render necessary
or advisable.

Detention of person charged under Act by head of correctional centre or person in
charge of military prison, military correctional facility, military police cell,
military police detachment or military lock-up

100. Every head of a correctional centre established in terms of the Correctional
Services Act, a superintendent of any military prison, military correctional facility,
military police cell, military police detachment or military lock-up inside or outside the
borders of the Republic must receive, admit, keep in custody or release from custody
any accused, arrestee or detainee, in compliance with a warrant of committal or release
given by any court or Military Judge, Officer Commanding or commanding officer of the
accused, arrestee or detainee or by any other officer authorised thereto by this Act.

Segregation of accused and convicted persons

101. Accused persons must be segregated from offenders and must be treated in
accordance with the provisions of this Act, any regulations promulgated under this Act
and any other applicable law.

Transfer of offenders

102. Any offender who has been committed to a military prison or a military
correctional facility or correctional centre, whether inside or outside the borders of the
Republic, to serve a sentence of correctional confinement may, on the written order of
the Officer Commanding, commanding officer or the superintendent of the military
correctional facility having jurisdiction in respect of such military correctional facility
or by order of the Provost Marshal General of the Military Police Region under whom
the command of the military correctional facility resorts, be removed from such military
correctional facility to any other military correctional facility to serve the remaining
portion of his or her sentence.

CHAPTER 10

APPEALS AND REVIEWS

Right to review of trial or declaration

103. Every person who is convicted and sentenced by a military court has the right to
the automatic, speedy and competent review of the proceedings of his or her trial or
inquiry.

Acquittal not subject to review

104. An acquittal is effective when announced in open court and is not subject to
review.

Review

105. (1) Subject to section 106, the proceedings of every trial conducted by a military
court, where an offender was convicted and a sentence was imposed, must be reviewed
by a relevant Review Authority, which may execute the functions and powers as referred
to in sections 12, 17 and 19.

(2) For the purposes of subsection (1), ‘‘sentence’’ includes any order which may or
must be made by a military court in terms of any provision of this Act.

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(3) Sentences linked to a conviction upon the offences as provided for in section 11(2)
and sentences as contemplated in section 16(1), must not be executed until the review
contemplated in subsection (1) has been completed.

Waiver

106. An offender may, at the time of the announcement of sentence or within 14 days
thereafter, in writing, waive the right contemplated in section 103 to have his or her
record of proceedings reviewed, in which case the promulgation contemplated for in
section 95 may be effected without further delay.

Review Authority may call for reasons

107. (1) A Review Authority may direct a military court to give written reasons for
any ruling, finding, sentence or order of such court, which reasons must show—

(a) the facts the court found to have been proved;
(b) the grounds upon which the court arrived at the finding, sentence or order; and
(c) the reasons for any ruling of law or for the admission or rejection of any

evidence,
as may be specified in the direction.

(2) The reasons contemplated in subsection (1) must be furnished within the period
that the direction may stipulate, but not less than 30 days from the date of receipt by the
military court upon direction of the Review Authority.

(3) The reasons contemplated for in subsection (1) must be prepared and signed by the
presiding Military Judge or, in the case of a Court of a Senior Military Judge consisting
of three judges, by all the Military Judges.

(4) For purposes of subsection (3), if one or two of the three Military Judges are not
reasonably available, the Military Judge or judges who are available must prepare and
sign the reasons indicating the reason which precluded the other Military Judge or
judges from signing.

(5) An offender must, if he or she so requests and at his or her own cost, be supplied
with a copy of any reason for judgment furnished in terms of this section.

Application to Court of Military Appeals

108. (1) An offender may lodge an appeal or submit an application for review to the
Court of Military Appeals on the findings, sentences, court orders or substantial
irregularities in military court proceedings.

(2) The Registrar of the Court of Military Appeals must upon receipt of such
application and heads of argument, cause the Prosecution Counsel to receive a copy of
the application and of such heads of argument and thereafter provide the Prosecution
Counsel a period of 30 days, or the Senior Military Judge a period of 15 days, to respond
thereto before placing such matter on the roll to serve before the Court of Military
Appeals.

Right of prosecution to appeal to Court of Military Appeals

109. The Director Military Prosecutions may lodge an appeal to the Court of Military
Appeals on any finding, sentence, court order or ruling made by that court with regard
to questions of law, including the jurisdiction to try a case made by that military court.

Saving with regard to convictions set aside

110. (1) Subject to subsection (2), when a conviction is set aside by a review or appeal
authority on the ground that—

(a) the court which convicted the accused was not competent to do so;
(b) the charge on which the accused was convicted was invalid or defective in any

respect; or
(c) there has been any other technical irregularity or defect in the procedure,

proceedings in respect of the same offence to which the conviction referred, may again
be instituted either on the original charge, suitably amended where necessary, or upon
any other charge as if the accused had not previously been brought or arraigned before

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a military court or tried and convicted: Provided that no Military Judge or assessor
before whom the original trial took place may take part in such proceedings.

(2) A technical irregularity or defect in the procedure contemplated for in subsection
(1) includes, for the purposes of this section and without derogating from the generality
of its meaning, a failure to administer a required oath or affirmation or non-compliance
with the procedure prescribed in section 83(2).

Recusal by member of Court of Military Appeals

111. Any presiding judge or other member of a Court of Military Appeals who—
(a) is, or during the consideration of a case becomes, related to any accused or the

complainant by affinity or consanguinity in the first or second degree;
(b) has, or during the consideration of a case, gained knowledge concerning the

facts of the case to be considered by the court that his or her decision is likely
to be prejudiced thereby;

(c) bears any accused, or during the consideration of a case, develops towards any
accused, such animosity as is likely to prejudice his or her decision; or

(d) was contacted directly by the accused or his or her legal representative with
regard to the merits of the accused’s case,

must recuse himself or herself.

Prerogative of mercy

112. Nothing in this Act affects the power of the President under any law to extend
mercy to any person.

CHAPTER 11

MILITARY DISCIPLINARY HEARING

Establishment of military disciplinary hearing

113. Subject to this Chapter, a military disciplinary hearing may be established.

Composition, jurisdiction of military disciplinary hearing and prescription

114. (1) Every appropriately qualified Officer Commanding or commanding officer
and every officer subordinate in rank to such Officer Commanding or commanding
officer and of a rank not lower than Captain or its equivalent, who is appropriately
qualified and authorised thereto in writing by such Officer Commanding or commanding
officer, has the jurisdiction and powers conferred by this Chapter, including administer-
ing of the oath or affirmation as provided for in this Act.

(2) With due regard to the provisions of section 119, an Officer Commanding or
commanding officer may conduct a military disciplinary hearing of any member under
his or her command.

(3) The requirement for the implicated member to be under the direct command of the
Officer Commanding or commanding officer, does not apply—

(a) where an Officer Commanding or commanding officer has been authorised in
writing by another Officer Commanding or commanding officer to conduct
military disciplinary hearings;

(b) to the Chief of the Defence Force personnel with the rank of Colonel or its
equivalent or higher, who may be heard by the Service Chief as determined by
the Service affiliation of the implicated member;

(c) to the Chief of the Defence Force personnel other than those provided for in
paragraph (b), who may be heard by the Officer Commanding or commanding
officer of the Force Structure Element responsible for personnel actions
including disciplinary matters of such members; and

(d) to the Chiefs of Services personnel below the rank of Colonel or its
equivalent, who may be heard by the Officer Commanding or commanding
officer of the Force Structure Element responsible for personnel actions
including disciplinary matters of such members.

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(4) The Officer Commanding or commanding officer must be of higher rank than the
implicated member who has to appear before a military disciplinary hearing in terms of
this Act.

(5) If the Officer Commanding or commanding officer under whose direct command
the implicated member serves, or the Officers Commanding or commanding officers
referred to in subsection (3), is unavailable or prohibited to conduct such military
disciplinary hearing, the Officer Commanding or commanding officer within the next
level of command must conduct the military disciplinary hearing.

(6) The following is applicable in respect of subsection (5):
(a) Chiefs of Services personnel with the rank of Colonel or its equivalent or

higher, must be heard by any Officer Commanding or commanding officer
authorised thereto in writing by the Service Chief of the implicated member;

(b) General Officers or Flag Officers under direct command of Divisional Chiefs
must be heard by the Service Chief determined by the Service affiliation of the
implicated member; and

(c) Divisional Chief personnel, with the rank of Colonel or its equivalent, may be
heard by the relevant Service Chief as determined by the Service affiliation of
the implicated member.

(7) In the case where a Service Chief or a Divisional Chief is an implicated member,
the military disciplinary hearing for such member must be conducted by the Chief of the
Defence Force: Provided that any member bearing a rank not lower than the implicated
member and who is authorised in terms of subsection (1) by the Chief of the Defence
Force, is deemed to be of higher rank to the implicated member for the purpose of
conducting such military disciplinary hearing.

(8) A military disciplinary hearing must hear any misconduct as provided for under
Schedule 2 and may impose on the implicated member, on pronouncement that such
implicated member is guilty of such act of misconduct, one or a combination of not more
than three of the prescribed sanctions or corrective measures as provided for in this
Chapter.

(9) A military disciplinary hearing may be conducted for the alleged misconduct of
more than one implicated member at the same time in circumstances in which alleged
incidents or the misconduct or alleged misconduct by two or more members have been
investigated during the same investigation: Provided that, where the Officer Command-
ing or commanding officer anticipates that an injustice may result from the process of a
combined hearing, he or she must order that the hearings be conducted separately or be
referred to the Senior Prosecution Counsel for further handling.

(10) No person is liable to be heard by a military disciplinary hearing for any
misconduct in respect of which that military disciplinary hearing has jurisdiction, unless
that person is brought before a military disciplinary hearing within—

(a) five years after the date of the alleged commission of the misconduct; or
(b) one year from the date upon which such a person ceased to be in the employ

or service of the Defence Force.
(11) In the case where a person ceased to be in the employ or service of the Defence

Force and for the purpose of effecting an arrest, bringing such person before a military
disciplinary hearing, imposing a sanction or executing such sanction, that person is
deemed to be subject to this Act in the rank and status he or she had at the time of
termination of employment or service.

(12) When a person is brought before a military disciplinary hearing, that person’s
first appearance interrupts and absolutely bars the passing of time in respect of any
period determined in subsection (10).

(13) Where a person cannot as a result of—
(a) his or her default or any act performed by him or her; or
(b) his or her non-availability or incapacity or illness or other reason precluding

the exercise of any competence conferred by this Act in respect of him or her,
be brought before a military disciplinary hearing within any period provided for in
subsection (10), that period must be extended by a period equal to the period taken up
by such default, act, non-availability, incapacity, illness, other reason or application of
an agreement.

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Duty of Officer Commanding, commanding officer or superior officer with regard
to allegations of misconduct

115. The Officer Commanding, commanding officer or superior officer must, if he or
she becomes aware of an allegation reported by a military police official or
circumstances exist which would indicate an act of misconduct under Schedule 2 has or
may have been committed by any member, as soon as is reasonably possible, ensure that
the Disciplinary Adjutant of such member is notified and that the matter is investigated
in such a way and to such extent as is appropriate.

Duty of Disciplinary Adjutant when case referred to military disciplinary hearing

116. A Disciplinary Adjutant must, as soon as possible after an allegation of
misconduct has been referred to him or her by any military police official, Senior
Prosecution Counsel or Prosecution Counsel, Director Military Prosecutions or office of
the Judge Advocate General, deal with such a matter in terms of this Chapter.

Duties of military police officials with regard to allegations of misconduct

117. (1) A military police official, who has investigated an allegation which indicates,
or circumstances which indicate, that a Schedule 2 misconduct has or may have been
committed or who has been informed of such allegations or circumstances by a South
African Police Service official or recognised local or foreign statutory or established
police force or service official, must notify the relevant Officer Commanding or
commanding officer of the alleged misconduct or circumstances.

(2) A military police official who considers that there is sufficient evidence to justify
the appearance of a member before a military disciplinary hearing resulting from a
Schedule 2 misconduct, must, after consulting with the local Senior Prosecution
Counsel, refer the case to the relevant Disciplinary Adjutant.

(3) Whenever a military police official proposes not to refer the case to the relevant
Disciplinary Adjutant under subsection (2), he or she must refer the matter to the local
Senior Prosecution Counsel for a prosecutorial decision as soon as reasonably possible,
who must direct the military police official on the further handling of the matter and
provide him or her with copies of the investigation documents.

(4) For the purposes of subsections (2) and (3), where the available evidence
discloses—

(a) the commission of an offence and is of such nature that a reasonable prospect
of success at prosecution exists, that person must be prosecuted unless the
charge has been rendered non-justiciable, has prescribed or any other legal
impediment renders the charge or person incapable of being tried by a military
court; or

(b) a misconduct which is of such a nature that upon evaluation, a reasonable
prospect of establishing the commission of such misconduct could be
pronounced, that member must be brought before a military disciplinary
hearing, unless the act of misconduct has prescribed or any other legal
impediment renders such misconduct or member incapable of being heard by
a military disciplinary hearing.

Rights of implicated member

118. Every implicated member instructed to appear before a military disciplinary
hearing has the right to—

(a) consult with a Military Defence Counsel or legal representative of his or her
own choice within the seven day notification period, provided that a
consultation with such private legal representative must be at an implicated
member’s own expense;

(b) bring any witnesses that are reasonably available on whose evidence he or she
is going to rely upon during the military disciplinary hearing;

(c) bring any other document, instrument or evidence that he or she is going to
rely upon during the military disciplinary hearing;

(d) be accompanied by any uniformed member of his or her choice, who is
available at the time of the hearing, as an observer during the proceedings of
the military disciplinary hearing; and

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(e) the services of an interpreter during the proceedings of the military
disciplinary hearing, if required.

Limitation on legal representation

119. (1) During a military disciplinary hearing, neither the implicated member nor the
Disciplinary Adjutant may be represented by a legal representative.

(2) Where the implicated member is—
(a) a Military Law Practitioner, the Disciplinary Adjutant and presiding officer

must be Military Law Practitioners; or
(b) the Judge Advocate General, the Disciplinary Adjutant must be a Military

Law Practitioner.

Failure to comply with summons

120. (1) Any person who is not subject to this Act, who has been summoned to attend
any military disciplinary hearing to give evidence or to produce any document or thing,
and who—

(a) fails to attend or to remain in attendance until authorised to leave;
(b) refuses to be sworn in or to affirm;
(c) refuses to answer any question which in similar proceedings in a civilian court

he or she could be compelled to answer; or
(d) fails or refuses to produce any document or thing which in similar proceedings

in a civilian court he or she could be compelled to produce,
is guilty of an offence and liable on conviction by a civilian court to imprisonment for
a period not exceeding three months.

Competent but not compellable witness giving evidence outside Republic

121. If during the proceedings of a military disciplinary hearing beyond the borders
of the Republic, a competent but not compellable witness gives evidence but refuses to
answer any question to which a witness at a trial in the Republic could be bound in law
to reply, the military disciplinary hearing may, if satisfied that the answer to the question
is material, order the witness to stand down and strike the whole of his or her evidence
from the record of the proceedings.

Witness to make use of approved accommodation and transport

122. (1) Any person who is not subject to this Act and who has been summoned to
attend any military disciplinary hearing, who requires any form of accommodation and
transport to enable him or her to attend that military disciplinary hearing must for that
purpose, unless the use of suitable military accommodation or an alternative mode of
transport has been arranged and approved by the official who issued the summons, make
use of approved and reasonable private accommodation or the available public transport
services at State expense.

(2) Any person referred to in subsection (1) may, if he or she has not been furnished
with confirmation of reserved accommodation or with a railway or bus ticket or any
alternative public transport ticket, token, voucher or confirmation or undertaking to pay
the prescribed tariff for any reasonable accommodation required or for any journey to be
undertaken by him or her, request, from the Officer Commanding or commanding officer
of the implicated member to be furnished with confirmation of reserved accommodation
or with a railway or bus ticket or any alternative public transport ticket, token, voucher
or confirmation or undertaking to pay the prescribed tariff for any reasonable
accommodation required or for any journey to be undertaken by him or her.

Language

123. Every person called to give evidence before a military disciplinary hearing is
entitled to give evidence in a language preferred by him or her.

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Sanctions of military disciplinary hearing

124. (1) Subject to the provisions of sections 125 and 126, every presiding officer
must, at the conclusion of a military disciplinary hearing and upon a pronouncement that
the implicated member is guilty of an act of misconduct, pronounce an appropriate
sanction consisting of one or a combination of not more than three of the sanctions
provided in this Chapter: Provided that any combination of sanctions must consist of
different categories of suitable and compatible sanctions.

(2) When a military disciplinary hearing sanctions any member for committing more
than one act of misconduct alleged in the same notice of misconduct, the presiding
officer must at the conclusion of the military disciplinary hearing, pronounce a sanction
contemplated in subsection (1) in respect of each act of misconduct dealt with in that
hearing.

(3) One or a combination of not more than three of the following sanctions may be
pronounced for the rank of Private or its equivalent, or for the rank of Senior
Non-Commissioned Officer or its equivalent:

(a) Confinement to barracks or unit lines for a period not exceeding 21 days with
or without corrective behaviour drills during training, operations or deploy-
ment under supervision of any member appointed by the Officer Commanding
or commanding officer, as the case may be, for that purpose;

(b) extra non-consecutive duties for a period not exceeding 21 days;
(c) a fine calculated in the format of a number of days salary for a period not

exceeding 10 days;
(d) a fine calculated in the format of a percentage of daily allowances during

training, operations or deployment for a period not exceeding 14 days;
(e) compulsory rehabilitation including aftercare process for alcohol, narcotic or

substance addiction or abuse;
(f) re-training in any component of a recognised curriculum within the Defence

Force;
(g) partial or complete forfeiture of regimental privileges or facilities for a period

not exceeding three months;
(h) extra regimental duties for a period not exceeding 21 days under supervision

of any member appointed by the Officer Commanding or commanding officer,
as the case may be, for that purpose;

(i) fatigue duties not exceeding two hours per day for a non-consecutive period
not exceeding 14 days under the supervision of any member appointed by the
Officer Commanding or commanding officer, as the case may be, for that
purpose;

(j) rehabilitative labour not exceeding two hours per day for a non-consecutive
period not exceeding 14 days under supervision of any member appointed by
the Officer Commanding or commanding officer, as the case may be, for that
purpose;

(k) reversion from any acting or temporary rank to a substantive rank;
(l) military community service of a non-remunerative nature ordered by the

military disciplinary hearing of four hours per weekday to commence one
hour after normal working hours and eight hours per day over weekends and
public holidays, for a period not exceeding 90 days, under supervision of any
member appointed by the Officer Commanding or commanding officer, as the
case may be, for that purpose;

(m) suspension of a military driving or pilot’s licence or vessel steering
competency certificate for a specified period not exceeding six months;

(n) prohibition of entering specified areas or facilities for a period not exceeding
six months;

(o) compulsory physical training of one hour per day for a period not exceeding
21 days supervised by a military physical training instructor;

(p) extra drills not exceeding two hours per day for a non-consecutive period not
exceeding 14 days under supervision of any person appointed by the Officer
Commanding or commanding officer, as the case may be, for that purpose;

(q) returning him or her to his or her home unit within the borders of the Republic,
whether deployed inside or outside the borders of the Republic; or

(r) reprimand.
(4) One or a combination of not more than three of the following sanctions may be

pronounced to Warrant Officers and officers below the field rank or its equivalent:

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(a) Compulsory rehabilitation including aftercare process for alcohol, narcotic or
substance addiction or abuse;

(b) a fine calculated in the format of a number of days salary for a period not
exceeding 10 days;

(c) reversion from any acting or temporary rank to substantive rank;
(d) a fine calculated in the format of a percentage of daily allowances received

during training, operations or deployment for a period not exceeding 14 days;
(e) prohibition of entering specified areas or facilities for a period not exceeding

six months;
(f) extra non-consecutive duties for a period not exceeding 21 days;
(g) re-training in any component of a recognised curriculum within the Defence

Force;
(h) partial or complete forfeiture of regimental privileges or facilities for a period

not exceeding three months;
(i) suspension of a military driving or pilot’s licence or vessel steering

competency certificate for a specified period not exceeding six months;
(j) military community service of a non-remunerative nature ordered by the

military disciplinary hearing of four hours per weekday to commence one
hour after normal working hours and eight hours per day over weekends and
public holidays, for a period not exceeding 90 days under supervision of any
member appointed by the Officer Commanding or commanding officer, as the
case may be, for that purpose;

(k) Warrant Officers may be sanctioned to confinement to barracks or unit lines
for a period not exceeding 21 days without corrective behaviour drills during
training, operations or deployment under supervision of any member
appointed by the Officer Commanding or commanding officer, as the case may
be, for that purpose;

(l) returning any member to his or her home unit within the borders of the
Republic, whether deployed inside or outside the borders of the Republic; or

(m) a reprimand.
(5) One or a combination of not more than three of the following sanctions may be

pronounced for senior Officers up to the rank of Colonel or its equivalent:
(a) Compulsory rehabilitation for alcohol, narcotic or substance addiction or

abuse;
(b) a fine calculated in the format of a number of days salary for a period not

exceeding 10 days;
(c) return from any acting or temporary rank to substantive rank;
(d) a fine calculated in the format of a percentage of daily allowances received

during Defence Attaché service, training, operations or deployment for a
period not exceeding 14 days;

(e) prohibition of entering specified areas or facilities for a period not exceeding
six months;

(f) extra non-consecutive duties for a period not exceeding 21 days;
(g) re-training in any component of a recognised curriculum within the Defence

Force;
(h) partial or complete forfeiture of regimental privileges or facilities for a period

not exceeding three months;
(i) suspension of a military driving or pilot’s licence or vessel steering

competency certificate for a specified period not exceeding six months;
(j) returning any member to his or her home unit within the borders of the

Republic, whether deployed inside or outside the borders of the Republic; or
(k) reprimand.

(6) One or a combination of not more than three of the following sanctions may be
pronounced for General Officers or Flag Officers:

(a) Prohibition of entering specified areas or facilities for a period not exceeding
six months;

(b) compulsory rehabilitation including for alcohol, narcotic or substance
addiction or abuse;

(c) a fine calculated in the format of a number of days salary for a period not
exceeding 10 days;

(d) reversion from any acting or temporary rank to substantive rank;

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(e) a fine calculated in the format of a percentage of daily allowances received
during military attaché service, training or deployment for a period not
exceeding 14 days; or

(f) reprimand.
(7) Subject to section 133(3), any sanction or combination of sanctions pronounced

by a military disciplinary hearing is of immediate effect and, in the event where more
than one sanction has been imposed, those sanctions must be executed in the sequence
in which they were pronounced: Provided that a fine must be deducted immediately as
contemplated in section 128.

Specific sanction for member serving correctional confinement

125. A superintendent of a military prison or military correctional facility who
conducts a military disciplinary hearing in respect of an inmate for any act of
misconduct committed by that inmate while serving a sentence of correctional
confinement may, on pronouncement that the implicated member is guilty of such act of
misconduct, order such member to be subjected to any one of the following sanctions:

(a) Forfeiture of the whole or part of any remission or discount on account of
good behaviour with regard to that sentence of correctional confinement;

(b) solitary confinement for a period not exceeding 14 consecutive days under
supervision of any member appointed by the superintendent of a military
prison or military correctional facility for that purpose, at the termination of
which he or she may not be required to serve any further sentence of solitary
confinement within seven days thereafter;

(c) fatigue duties not exceeding two hours per day for a period not exceeding
seven days under the supervision of any member appointed by the
superintendent of a military prison or military correctional facility for that
purpose;

(d) extra labour not exceeding two hours per day for a period not exceeding seven
days under the supervision of any member appointed by the superintendent of
a military prison or military correctional facility for that purpose;

(e) extra military instruction not exceeding one hour per day for a period not
exceeding 21 days under the supervision of any member appointed by the
superintendent of a military prison or military correctional facility for that
purpose; or

(f) partial or complete forfeiture of privileges or facilities for a period not
exceeding seven days.

Specific sanctions for prisoner of war

126. An Officer Commanding or commanding officer of a facility in which a prisoner
of war is held, or such commander’s delegate, who conducts a military disciplinary
hearing in respect of that prisoner of war for any act of misconduct, including a
contravention or attempted contravention of item 39(e) of Schedule 1, committed by that
prisoner while being a prisoner of war, may on pronouncement that the prisoner is guilty
of the act of misconduct, order that the prisoner be subjected to any one of the following
sanctions:

(a) Correctional confinement for a period not exceeding 40 days;
(b) solitary confinement for a period not exceeding 14 consecutive days under

supervision of any person appointed by the camp commander for that purpose,
at the termination of which he or she may not be required to serve any further
sentence of solitary confinement within seven days thereafter;

(c) in the case of a prisoner who is not an officer, fatigue duties not exceeding two
hours per day for a period not exceeding seven days under supervision of any
member appointed by the camp commander for that purpose;

(d) extra labour not exceeding two hours per day for a period not exceeding seven
days under supervision of any member appointed by the camp commander for
that purpose;

(e) discontinuance of privileges granted and the treatment provided for in terms
of the Geneva Convention;

(f) a fine calculated in the format of an amount not exceeding 50 per cent of the
advances of pay and working pay which the prisoner of war would otherwise

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receive under the provisions of Articles 60 and 62 of the Geneva Convention,
during a period of 30 days; or

(g) a reprimand.

Orders by military disciplinary hearing

127. (1) The salary of any member of the Defence Force must be paid without any
deductions other than such deductions as authorised by this Act or any other national
legislation.

(2) Where a member of the Defence Force is sanctioned to pay a fine, the military
disciplinary hearing may in its discretion, without prejudice to any other power under
this Act relating to the payment of a sanction, enforce payment of the whole sanction or
part thereof.

(3) The presiding officer must inform the member and the Disciplinary Adjutant of
any order that is made and afford the opportunity to present argument or evidence
relevant thereto: Provided that the presiding officer may on his or her own accord call
any witness.

(4) Subject to section 133(3), any order made by a military disciplinary hearing is of
immediate effect.

Deduction of fine

128. When a presiding officer sanctions any member to pay a fine, he or she must
order that such member be placed under deduction of salary in the amount of the fine.

Forfeiture of salary

129. (1) Any member of the Defence Force forfeits his or her full salary for every
period he or she is—

(a) absent from duty without leave;
(b) hospitalised or otherwise absent from duty in consequence of an act prohibited

by item 18(1)(a), (b) or (c) of Schedule 1;
(c) detained under arrest by, or in custody of, the South African Police Service or

of any statutory police force for an act or omission in respect of which he or
she has subsequently been sanctioned for an act of misconduct by a military
disciplinary hearing; or

(d) on bail or released on his or her own recognisance by a civilian court but failed
to return to duty.

(2) When a military disciplinary hearing announces a sanction in respect of a member,
that military disciplinary hearing must, in relation to the act of misconduct in respect of
which it has pronounced upon the member, record and explain to the member the
applicable compulsory forfeitures of salary contemplated in subsection (1).

(3) If one of the incidents contemplated in subsection (1) occurs, a member forfeits—
(a) the full salary for the period during which he or she is absent, in custody or

hospitalised or released from custody; or
(b) that portion of the salary that the Chief of the Defence Force or an officer

authorised for that purpose may determine, the amount to be withheld or
forfeited,

subject to subsection (5).
(4) The full amount withheld under subsection (3) must be paid to the member from

whom it has been withheld if the appropriate departmental authority or a military
disciplinary hearing determines that the circumstances contemplated in subsection (1)
for the forfeiture of that member’s salary did not exist.

(5) For the purpose of calculating any amount to be forfeited in terms of this section,
any period of—

(a) three working hours or less, must not be taken into account; and
(b) 24 hours is deemed to be one day.

Compensation for loss of or damage to public property

130. (1) When a military disciplinary hearing imposes upon any member any sanction
for misconduct, other than misconduct relating to the authorised driving of a motor
vehicle, and the act or omission constituting that misconduct has caused a loss of or

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damage to public property or property belonging to any institution, the military
disciplinary hearing must, subject to subsection (4), order that the member be placed
under deduction of salary to the amount of the loss or damage limited to the maximum
amount of R5 000.00 per month: Provided that where the military disciplinary hearing
is satisfied that the misconduct was committed negligently, it may order that the member
be placed under deduction of salary to a lesser amount that it may determine in its
discretion.

(2) Any amount deducted from a member’s salary in pursuance of an order made
under subsection (1) in respect of the loss of, or damage to, property belonging to any
institution or the Department, must be paid or credited by the Chief Paymaster to the
institution concerned or the Department.

(3) When making an order under subsection (1) in circumstances in which more than
one member has been sanctioned, the military disciplinary hearing must order that the
amount in question, limited to the maximum total amount of R5 000.00, be recovered
from them in equal proportions.

(4) When a military disciplinary hearing imposes upon any member any sanction for
misconduct in terms of item 2 of Schedule 2, it must order that such equipment, kit or
any public property or any property issued to him or her at public expense, excluding
controlled items, be replaced or repaired and that the costs involved in such replacement
or repair, limited to the maximum amount of R5 000.00, be recovered from the member
concerned.

Orders relating to compulsory rehabilitation

131. (1) When a military disciplinary hearing imposes a sanction upon any member
for compulsory rehabilitation for alcohol, narcotic or substance addiction or abuse, the
military disciplinary hearing must order that such compulsory rehabilitation be at the
cost of the State on condition that the offender completes the programme, and if the
offender fails to complete the programme, the treatment must be at the cost of the
offender.

(2) When a military disciplinary hearing imposes upon any member a sanction of
compulsory rehabilitation for alcohol, narcotic or substance addiction or abuse, the
relevant healthcare practitioner must submit a report to the Officer Commanding or
commanding officer stipulating the completion of the intervention programme and the
success thereof.

Orders relating to suspension of driving licence, pilot’s licence or vessel steering
competency certificate

132. Whenever a driving licence, pilot’s licence or vessel steering competency
certificate of a member is suspended for a maximum period of six months, a military
disciplinary hearing may order that the suspension remain effective until such offender’s
competence has been confirmed after being re-tested.

Scrutiny and appeal process of military disciplinary hearing

133. (1) Subject to subsection (3), any sanction or order pronounced or made by the
military disciplinary hearing must be of immediate effect.

(2) An appeal, as prescribed, must be submitted not later than seven days after the
pronouncement of the sanction.

(3) An appeal suspends the implementation of the sanction and order until such appeal
process has been concluded.

(4) The decision of the relevant appeal authority is final.

Publication and announcement of finding, sanction and order

134. (1) Every finding, sanction or order by a military disciplinary hearing must,
where no appeal has been lodged, be recorded in a register and kept in a manner
determined by the Chief of the Defence Force.

(2) The manner of access to the register must be prescribed.
(3) Every Officer Commanding and commanding officer must at the end of each

month provide his or her relevant Service Chief with the particulars of all military

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disciplinary hearings finalised in his or her area of responsibility during the previous
month.

(4) The record of proceedings of the military disciplinary hearing when returned to
the unit must be filed upon the sanctioned member’s personnel file and the particulars
thereof must form part of such member’s record of service.

Notification by Officer Commanding or commanding officer upon completion of
military disciplinary hearing

135. The Officer Commanding or commanding officer, as the case may be, upon
completion of a military disciplinary hearing subsequent to a referral in terms of section
72(2)(b) or section 117, must inform the local Senior Prosecution Counsel or
investigating military police official of the outcome of the matter.

CHAPTER 12

MILITARY POLICE

Part 1

Chief of Defence Force and Provost Marshal General

Military policing, powers and duties of Chief of Defence Force

136. (1) Military policing powers, functions and duties, including municipal policing
powers, functions and duties, vest in the Chief of the Defence Force for purposes of
enforcing this Act or any other law, including the common law, with regard to military
property or premises, and to any person who is subject to this Act or employee of the
Defence Force or the Department.

(2) Military policing powers, functions and duties must be exercised taking into
account the interests of the administration of military justice.

Appointment of Provost Marshal General

137. (1) (a) The Chief of the Defence Force must appoint as a Provost Marshal
General, any appropriately qualified and suitable serving officer of the Defence Force
who has—

(i) not less than seven years experience in the field of military policing;
(ii) no conviction of a criminal offence; and

(iii) a sound character.
(b) The Provost Marshal General must exercise military policing powers and perform

military policing functions and duties assigned to him or her by the Chief of the Defence
Force.

(2) The Provost Marshal General, or any person designated in writing by him or her,
may appoint an officer who is a military police official to exercise military policing
powers and perform military policing functions and duties, and exercise command and
control over and issue directions to military police officials under his or her command.

Term of office of Provost Marshal General

138. (1) The Provost Marshal General must hold office for a period determined by the
Chief of the Defence Force.

(2) Where a specific period has been determined as contemplated in subsection (1),
the Chief of the Defence Force must notify the Provost Marshal General in writing at
least six months before the expiry of such period or any subsequent extended period,
whether or not the term shall be extended and in the case of an extension, the period
involved.

(3) The period provided for in subsection (2) shall not expire before six months have
lapsed from the date on which the Chief of the Defence notified the Provost Marshal
General in terms of subsection (2).

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Powers and duties of Provost Marshal General

139. (1) The Provost Marshal General must exercise command, control and
supervision over military police officials and others placed under his or her command.

(2) The Provost Marshal General or any person he or she delegated to perform such
duty, must exercise control over and manage the military police in accordance with
military policy.

(3) The Provost Marshal General may delegate, in writing, a power or duty conferred
upon him or her by this Act or any other law, to any military police official who must
exercise such power or perform such duty subject to the directions determined by the
Provost Marshal General.

Powers conferred by statutory provisions

140. When exercising any military policing power or performing any military
policing function or duty provided for in this Act, every statutory provision that confers
any power, provides for any function or imposes any duty upon—

(a) the National Commissioner of the South African Police Service, must be
construed as a reference to the Chief of the Defence Force and the Provost
Marshal General;

(b) a member of the South African Police Service or a municipal police service
holding a specified rank or office, must be construed as a reference to the
military rank or office equivalent to such rank or office: Provided that a
reference to a rank or office in the South African Police Service or a municipal
police service must be deemed to be a reference to an equivalent or any higher
rank or office in the Defence Force, except where a limitation is placed on a
member of the South African Police Service or a municipal police service
holding a specified rank or office; and

(c) a member of the South African Police Service or a municipal police service,
must be construed as a reference to a military police official.

Part 2

Military police general provisions

Handing over of arrested person

141. (1) Any military police official who arrests any person not subject to this Act,
must, without delay, hand such person over to the South African Police Service.

(2) In case of deployments outside the borders of the Republic, a military police
official who arrests any person not subject to this Act, must hand the arrestee who is in
custody or under the control of such official, at a place within that State, to an
appropriate authority of that foreign State or military authorities or police authorities,
and where any agreement which may have been concluded with that State exists, in
accordance with the terms of such agreement.

Self-defence and use of force

142. When a military police official performs an official police duty, he or she may use
the force, including deadly force that is reasonably necessary and proportionate in the
circumstances to protect his or her own or any other person’s life or personal safety.

Hindering or obstructing of military police official

143. Any person who resists or wilfully hinders or obstructs a military police official
in the exercise of his or her powers, or the performance of his or her duties or functions,
or wilfully interferes with his or her uniform or equipment or any part thereof, is guilty
of an offence and liable on conviction to a fine or to imprisonment for a period not
exceeding 15 years.

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Traffic control powers and duties of military police officials

144. Subject to sections 46 and 48, and in accordance with any legislation relating to
road traffic or its management, or military prescripts or instructions with regard to the
regulating, operating or driving requirements of military vehicles, a military police
official must at any time and in any place exercise traffic control military policing
powers and perform traffic control military policing duties, which include the following
powers and duties relating to traffic policing, control and inspection of licences:

(a) In respect of any military motor vehicle, the power to demand from the
operator or driver thereof to immediately produce a licence, document or
other prescribed authorisation required for the operation or driving of such
vehicle; and

(b) in respect of any civilian vehicle found within military property or premises,
the power to demand from the operator or driver thereof to immediately
produce any licence, document or other prescribed authorisation required for
the operation or driving of such vehicle.

Confessions

145. (1) Evidence of any confession in relation to the commission of any offence
must, if such confession is proved to have been freely and voluntarily made by a person,
in his or her sound and sober senses and without having been unduly influenced thereto,
be admissible in evidence against such person at criminal proceedings relating to such
offence: Provided that—

(a) a confession made to a military police official is not admissible in evidence
unless confirmed and reduced to writing in the presence of a magistrate
or justice of the peace appointed in terms of section 2 or contemplated in
section 4 of the Justices of the Peace and Commissioners of Oaths Act, 1963
(Act No. 16 of 1963), or in the case of a person who is subject to this Act, a
magistrate, such justice of the peace, or if outside the borders of the Republic,
also any Military Law Practitioner or a military police official who is a
commissioned officer; and

(b) where the confession is made to a magistrate, a Senior Military Judge or
Military Judge and reduced to writing by him or her, or is confirmed and
reduced to writing in the presence of a magistrate, a Senior Military Judge or
Military Judge, the confession is, upon the mere production thereof at the
proceedings in question—
(i) admissible in evidence against such person if it appears from the

document in which the confession is contained that the confession was
made by a person whose name corresponds to that of such person and, in
the case of a confession made to a magistrate, a Senior Military Judge or
Military Judge or confirmed in the presence of a magistrate or a Senior
Military Judge or Military Judge through an interpreter, if a certificate by
the interpreter appears on such documents to the effect that he or she
interpreted truly and correctly and to the best of his or her ability with
regard to the contents of the confession and any question put to such
person by the magistrate, a Senior Military Judge or Military Judge; and

(ii) presumed, unless the contrary is proved, to have been freely and
voluntarily made by such person, in his or her sound and sober senses
and without having been unduly influenced thereto, if it appears from the
document in which the confession is contained that the confession was
made freely and voluntarily by such person, in his or her sound and sober
senses and without having been unduly influenced thereto.

(2) The prosecution may lead evidence in rebuttal of evidence adduced by an accused
in rebuttal of the presumption under subsection (1)(b)(ii).

(3) Any confession which is under subsection (1) inadmissible in evidence against the
person who made it, becomes admissible against him or her —

(a) if he or she adduces in the relevant proceedings any evidence, either directly
or in cross-examining any witness, of any oral or written statement made by
him or her either as part of or in connection with such confession; and

(b) if such evidence is, in the opinion of the Senior Military Judge or Military
Judge presiding at such proceedings, favourable to such person.

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Oaths and affirmations of military police officials

146. Any person may, when required to take an oath in terms of this Part, make a
solemn affirmation instead of taking the oath, and such affirmation must be made in the
form contemplated in sections 147 and 148 for the applicable oath but with the words
‘‘solemnly and sincerely affirm and declare’’ substituted for the word ‘‘swear’’ and the
words ‘‘So help me God’’ omitted.

Oath of appointment as Provost Marshal General

147. Every Provost Marshal General must, before commencing his or her duties of
office, take the following oath of office:

‘‘I (full particulars) swear that I will be faithful to the Republic of South Africa in
the Office of the Provost Marshal General, and will obey, respect and uphold the
Constitution and all other laws of the Republic; and I undertake to hold my office
as Provost Marshal General with honour and dignity; and to ensure the effective
administration of the military police function in the Defence Force; and to perform
the functions of my office conscientiously, with fairness, integrity, diligence and
impartiality and to the best of my ability. So help me God.’’.

Oath of appointment as military police official

148. Every military police official must, before commencing his or her duties of
office, take the following oath of office:

‘‘I (full particulars) swear that I will be faithful to the Republic of South Africa as
a Military Police Official, and will obey, respect and uphold the Constitution and all
other laws of the Republic, and I undertake to strive to prevent and combat crime,
maintain law and order and uphold and enforce the law with honour and dignity,
and to perform the functions of my office conscientiously, with fairness, integrity,
diligence and impartiality and to the best of my ability. So help me God.’’.

Military order policing capability

149. (1) The Chief of the Defence Force may ensue or cause a military order policing
capability in the Department.

(2) The Provost Marshall General or any person designated in writing by him or her
may deploy the military order policing capability or any part thereof.

Military special crime investigation capability

150. (1) The Chief of the Defence Force may ensue or cause a military special crime
investigation capability to prevent, combat and investigate priority offences, in
particular fraud and corruption and organised crime in the Department.

(2) The military special crime investigation capability must follow a multi-
disciplinary approach and an integrated methodology involving the cooperation of all
relevant units, government departments and institutions.

CHAPTER 13

GENERAL PROVISIONS, REGULATIONS, RULES, TRANSITIONAL
PROVISIONS AND REPEAL OF LAWS

Part 1

General provisions

Suspension of privileges

151. (1) When a member—
(a) is the subject of a criminal investigation relating to civilian or military

offences;

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(b) is the subject of any military disciplinary or criminal action, or any relevant
process, enquiry or application which could lead to his or her discharge or
dismissal;

(c) has been convicted by a civilian or military court of any offence which is
regarded to be of such gravity and seriousness as to justify suspension of
favourable personnel actions or privileges and who has not been sentenced to
discharge or dismissal from the Defence Force;

(d) after failing the prescribed physical fitness tests, fails to comply with
instructions relating to remedial action as prescribed in departmental policy;
or

(e) is suspended from the Defence Force or has been placed on compulsory leave
under instruction,

his or her Officer Commanding or commanding officer may suspend any favourable
personnel actions or privileges of such member.

(2) The suspension of favourable personnel action or privileges contemplated in
subsection (1) may include a prohibition of a member to—

(a) be promoted to any temporary or substantive rank with effect from a date
within the period of suspension;

(b) be functionally promoted with effect from a date within the period of
suspension;

(c) be awarded or to receive awards, medals, citations, decorations, commenda-
tions or honours;

(d) attend any military or academic courses at State expense;
(e) be deployed; or
(f) benefit from any other relevant personnel action or privilege that the member

may otherwise be entitled to.
(3) A favourable personnel action or privilege of a member may be suspended by his

or her Officer Commanding or commanding officer for the duration of the cause that
resulted in the suspension: Provided that such suspension may not exceed a period of
two years from the date of the incident or occurrence and may not have retrospective
effect.

(4) A record of the terms of suspension of favourable personnel actions must be filed
in a member’s military personnel file and may not be taken into account after a period
of two years for any administrative purposes: Provided that the said record must indicate
the date from which the suspension became effective and that the period of two years
commences from that date.

(5) An Officer Commanding or commanding officer suspending favourable personnel
action or privileges must notify the affected member in writing including reasons for the
intended suspension and inform the member affected of his or her right to appeal before
such intended suspension is effected against him or her.

(6) The member may, in writing, provide his or her Officer Commanding or
commanding officer with reasons why the suspension should not be effected against him
or her before the Officer Commanding or commanding officer takes the decision to
suspend him or her.

(7) The member affected by a suspension of favourable personnel action or privilege
may, at any time during such suspension or as soon as possible thereafter, through the
channel of command, apply to the Chief of the Defence Force or any person he or she
appointed to perform such function, to the relevant Service Chief, Divisional Chief,
General Commanding Officer of a Formation or equivalent force structure, who must
consider such suspension and may exercise any of the following powers:

(a) Confirm the suspension;
(b) revoke the suspension from a current date or with retrospective effect; or
(c) vary the terms of the suspension.

Accused entitled to verdict after pleading

152. Save as specifically otherwise provided in this Act, an accused who has pleaded
to any charge against him or her in the proceedings before a military court is entitled to
apply, at the appropriate stage of the proceedings, for a verdict of his or her acquittal or
on the merit of the case.

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Privilege

153. Every privilege which in law attaches to communications between any practising
advocate or attorney and the client of such practitioner, applies to communications
between any member of the Defence Legal Services Division, law personnel and the
individual or departmental client of such personnel.

Corrective training

154. (1) Nothing contained in this Act precludes an Officer Commanding or
commanding officer or superior officer from implementing corrective training as an
immediate or periodical non-punitive measure in order to correct any performance
deficiency or to improve military discipline standards.

(2) Corrective training—
(a) may not be used as a punishment or appear to be a punishment;
(b) must relate directly to and specifically address the observed deficiency or

non-conformity to minimum military standards; and
(c) must be discontinued once the deficiency or non-conformity to minimum

military standards is corrected.

Delegation of powers by Judge Advocate General

155. (1) The Judge Advocate General may, either generally or subject to conditions,
in writing, delegate to any member or suitable person any power vested in him or her in
terms of this Act and may revoke or amend such delegation at any time, subject to any
rights that may have accrued to such person.

(2) A delegation in terms of this section does not prevent the exercise of a delegated
power by the Judge Advocate General.

Administration

156. (1) The Judge Advocate General or any person delegated by him or her for this
purpose may determine longer working hours or additional working days with a view to
efficient completion of cases by military courts.

(2) Despite any other law, every determination contemplated in subsection (1) is
deemed to be a valid authorisation for the payment to the personnel affected thereby of
prescribed overtime remuneration in terms of the relevant regulations.

(3) Despite section 30, the Judge Advocate General may authorise—
(a) any appropriately qualified person to act as Prosecution Counsel for the

purposes of applying for the postponement of any case; or
(b) any person with the right of appearance in a civilian court, to act as

Prosecution Counsel before military courts.
(4) Any person authorised under subsection (3) to act as Prosecution Counsel is

deemed to have been assigned as Prosecution Counsel in terms of this Act.

Appointment or enlistment in Defence Force

157. No person may be appointed or enlisted in the Defence Force—
(a) unless—

(i) a police clearance certificate is obtained from the South African Police
Service;

(ii) where so directed, a security clearance has been issued to that person in
terms of section 2A(6) of the National Strategic Intelligence Act, 1994
(Act No. 39 of 1994), or in terms of section 37(2) of the Defence Act; and

(iii) section 45(1)(b) of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act has been complied with;

(b) if he or she has been convicted by any civilian or military court for—
(i) treason, espionage, public violence, terrorism, sedition;

(ii) murder, culpable homicide, a sexual offence or a contravention of item
62 of Schedule 1;

(iii) kidnapping;
(iv) fraud, robbery or arson;

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(v) any crime in terms of the Prevention and Combating of Corrupt
Activities Act, 2004 (Act No. 12 of 2004);

(vi) any schedule 1 offence, where his or her sentence of cashiering,
discharge with ignominy, discharge or dismissal from the Defence Force
has been confirmed; and

(vii) an attempt to commit any of these offences;
(c) if he or she has appeared before a civilian or military court on a charge of a

sexual offence and has been dealt with in terms of section 77(6) or 78(6) of the
Criminal Procedure Act or section 109 or 110 of this Act, whether committed
before or after the commencement of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act and whether committed inside or outside
the borders of the Republic or whose particulars have been included in the
Register as contemplated in that Act;

(d) if he or she has been declared unfit to possess a firearm by a civilian or military
court; or

(e) if he or she has been administratively discharged or dismissed from the
Defence Force as prescribed.

Database of members

158. The Chief of the Defence Force must cause the establishment and maintenance
of a database of all members who have been—

(a) discharged or dismissed; or
(b) discharged or dismissed by a military court subsequent to the confirmation of

a sentence.

Responsibility of military command group in relation to discipline

159. The members of the military command group are individually and jointly
entrusted with the responsibility and duty for the effective and efficient enforcement and
maintenance of military discipline within the Defence Force.

Independent performance of functions

160. (1) Military Law Practitioners assigned to functions in terms of section 31 must
perform those functions in a manner which is consistent with this Act, but free from
executive or command interference.

(2) Members assigned to functions in terms of section 30 or 156, must perform those
functions in a manner as is appropriate having regard to the nature of the specific
function and without fear, favour or prejudice.

Functions of Clerk of Court of Senior Military Judicial Reviews and Clerk of
Court of Military Judicial Reviews

161. (1) As soon as possible after the conclusion of a trial before a military court, the
presiding Military Judge must hand the record of proceedings, mechanical recordings
and documentary evidence to the Clerk of the Court of Senior Military Judicial Reviews
or the Clerk of the Court of Military Judicial Reviews at the offices of the local
representative of the Judge Advocate General, and the Clerk of such military court must
report periodically to the local representative of the Judge Advocate General on
compliance.

(2) The Clerk of the Court of Senior Military Judicial Reviews or the Clerk of the
Court of Military Judicial Reviews must register the case and forward it to the
transcription service for transcription of the record of proceedings without delay.

(3) Upon receipt of the transcription, the Clerk must submit the record of those
proceedings to the appropriate Court of Senior Military Judicial Reviews or Court of
Military Judicial Reviews without delay.

(4) Where the Court of Senior Military Judicial Reviews or the Court of Military
Judicial Reviews makes any ruling which affects any declaratory order made under
section 93(14), including the confirmation thereof, the Clerk of such court must notify
the clerk of the relevant military court a quo of the outcome of such ruling in writing,
who must deal with the matter in accordance with section 93(15).

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(5) The Clerk of the Court of Senior Military Judicial Reviews or the Clerk of the
Court of Military Judicial Reviews must be responsible for the effective and efficient
administration of the Court of Senior Military Judicial Reviews or the Court of Military
Judicial Reviews.

Part 2

General regulations and rules

Regulations and rules

162. (1) The Minister may, by notice in the Gazette, make regulations relating to—
(a) the powers of the officers in charge or commanders of military prisons,

military correctional facilities, military trial awaiting facilities, military police
cells, military lock-up or military detachment facilities established during
deployments or premises or portions thereof deemed to be military prisons,
including, but not limited to, the following:
(i) Supervision and management;

(ii) the admission, safe custody and release of offenders and inmates;
(iii) discipline of the staff, offenders and inmates;
(iv) the release of offenders on parole or the remission of sentences for good

behaviour;
(v) the rehabilitative labour that may be performed by offenders;

(vi) the punishments, not including corporal punishment, which may be
imposed for offences in such establishments and the persons by whom,
and the manner in which, such punishments may be imposed or
executed;

(vii) the restraint which may be applied to offenders;
(viii) visitors;

(ix) inspections;
(x) death of offenders and inmates;

(xi) the extent to which all or any of the regulations under the Correctional
Services Act may be applied to any establishment contemplated in this
paragraph; and

(xii) any matter which he or she considers necessary or expedient for the
purposes for which the prisons or facilities are established or such
premises or portions thereof are intended;

(b) the segregation of accused persons from convicted persons and their treatment
while in custody under this Act;

(c) the authorisation of any person to—
(i) exercise a power or jurisdiction given to the holder of any office in the

Defence Force under this Act; or
(ii) do any act or anything under this Act, in the absence of the holder of that

office;
(d) the serving of any sentence contemplated in section 84;
(e) the disclosure by any person serving in the Defence Legal Services Division,

or seeking to serve therein, of information of whatever nature which may
serve to ensure the maintenance of the integrity, non-partisanship, competence
and fitness of character appropriate to the responsibilities imposed by this Act;

(f) the powers which may be necessary for, or appropriate to, the conducting of
investigations or inquiries by the Judge Advocate General contemplated in
section 29, including the power to summons and question witnesses and any
person contemplated in section 29;

(g) any method additional to a warning or arrest or military court convening order
contemplated in this Act for obtaining the presence of any person who is
subject to this Act at a military court for the purposes of that person’s
appearance or arraignment as an accused;

(h) for the purposes of the application of section 3(1)(g), the status of non-military
persons undergoing instruction at a military training institution;

(i) for the payment of overtime remuneration for authorised longer working
hours or additional working days as determined by the Judge Advocate
General or any person delegated by him or her for this purpose with a view to
efficient completion of cases by military courts;

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(j) for the execution of traffic control duties or access or exit control measures
performed by the military police within designated military areas, property or
premises;

(k) the military traffic policing, control and inspection of licences of vehicles by
military police officials and ancillary matters related thereto, with the
concurrence of the Minister of Police and the Minister of Transport;

(l) the custodial delegations of military property or premises—
(i) and the standing at law to determine his or her competence to act as

applicant, respondent, plaintiff, defendant or party in any legal proceed-
ings; and

(ii) in matters arising or resulting from possession or custody or use of such
property or premises and the zoning, allocation, demarcation, declara-
tion, proclamation or control of an area as a military area, property or
premises, with the concurrence of the Minister of Public Works, the
Minister of Cooperative Governance and Traditional Affairs and the
Minister of Rural Development and Land Reform;

(m) procedures for random testing for the possible use or abuse of alcohol or
intoxicating liquor or of dependence producing drugs or drugs having a
narcotic effect, by persons subject to this Act who are—
(i) expected or appointed to handle or operate or assist with the handling or

operation of specialised military equipment or machinery or military
vehicles, vessels, aircraft or equipment; or

(ii) suspected, on reasonable grounds, of the abuse of alcohol or drugs;
(n) measures for integrity testing of members of the military police which may

include random entrapment, testing for the use or abuse of alcohol or drugs, or
the use of the polygraph or similar instrument to ascertain, confirm or examine
in a scientific manner the truthfulness of a statement or report made by such
member;

(o) measures for the necessary taking of bodily samples from persons subject to
this Act, required for any test referred to in this Act;

(p) the payment of bail in terms of section 98(11);
(q) the deduction of any amount of bail forfeited to the State from a member’s

salary or pension fund in terms of section 98(11)(b);
(r) additional measures for the suspension with or without pay of any person who

is subject to this Act;
(s) admonitions and non-punitive administrative measures;
(t) suspension, administrative, automatic and summary discharge or dismissal of

members of the Defence Force; and
(u) any other matter which must or may be prescribed in terms of this Act or

which is reasonably necessary or expedient to be prescribed in order to
achieve the objects of this Act.

(2) The Minister may make rules relating to the process and procedure in the
conducting of military discipline.

Part 3

Transitional Provisions

Transitional provisions

163. (1) Every establishment, appointment or assignment made, in terms of any law
repealed by this Act, is deemed to have been done under the related provisions of this
Act.

(2) Any assignment given in terms of the Military Discipline Supplementary
Measures Act is deemed to have been issued in terms of, and in compliance with, this
Act as an assignment given under sections 31 to 33 and must expire before a minimum
period of five years after the commencement of this Act.

(3) For the purposes of the application of subsection (1), any arrest, warning,
appearance, arraignment, trial or other proceedings conducted in terms of the Military
Discipline Supplementary Measures Act, must, in relation to a trial which has not been
completed at the time of the commencement of this Act, be deemed to have been
conducted in terms of the related provisions of this Act.

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(4) For the purposes of the application of subsection (1), every finding, sentence or
order pronounced, imposed or made in terms of any law repealed by this Act, before the
commencement of this Act, is as valid and effectual and must be given effect to as if it
had been pronounced, is deemed to have been imposed, or made in terms of this Act.

(5) The review of the proceedings of every trial before a military court at which a
sentence was imposed, which trial was completed immediately before the commence-
ment of this Act, must be conducted by the relevant Review Authority exercising the
competence conferred on it by, and in accordance with, the provisions of this Act.

(6) The promulgation and execution of every sentence imposed or order made by a
military court at a trial completed before the commencement of this Act must—

(a) if not yet promulgated, be promulgated on completion of the required review
contemplated in subsection (5); and

(b) if such sentence or order has not been executed, be effected in accordance with
the applicable provisions of this Act.

(7) For the purposes of finalising pending proceedings before a military court or a
matter designated for review purposes in terms of the Military Discipline Supplemen-
tary Measures Act, all such cases or proceedings that commenced before the
commencement of this Act must be dealt with and finalised in accordance with the
provisions of the Military Discipline Supplementary Measures Act, and the functionar-
ies who commenced dealing with such cases or proceedings are deemed to have the
assignments they had at the commencement of such cases or proceedings under the
Military Discipline Supplementary Measures Act until the conclusion thereof.

(8) No penalty imposed in terms of this Act in respect of an act or omission which
took place before this Act came into operation may exceed the maximum penalty which
could have been imposed on the date when the act or omission took place.

(9) Any officer who, immediately before the commencement of this Act, was
exercising a function to which such officer was assigned to in terms of section 13 of the
Military Discipline Supplementary Measures Act, must be deemed as having been so
assigned in terms of the corresponding provisions of this Act.

Part 4

Repeal of laws, short title and commencement

Repeal of laws

164. The Acts set out in Schedule 3 are hereby repealed to the extent indicated in the
third column thereof.

Short title and commencement

165. This Act is called the Military Discipline Act, 2019, and comes into operation on
a date fixed by the President by proclamation in the Gazette.

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SCHEDULE 1

DISCIPLINARY AND OTHER MILITARY OFFENCES

Definitions

1. In this Schedule, any word or expression to which a meaning has been assigned in
this Act has the meaning so assigned and, unless the context otherwise indicates—

‘‘calculated’’ includes ‘‘likely’’;
‘‘desert’’, in relation to any person who is subject to this Act, includes, without in
any way limiting its ordinary meaning—
(a) being absent without authority from that person’s unit or formation while on

service with the intention of avoiding service;
(b) missing any form of transport, by which that person has been warned to travel,

with the intention of either not accompanying his or her unit or formation on
service or not proceeding on service; and

(c) failing to report for any service under the Defence Act within seven days after
having been called up for such service;

‘‘improperly’’ includes ‘‘without reasonable cause’’;
‘‘mutiny’’ includes collective insubordination;
‘‘scandalous’’, in relation to the conduct of an officer, includes any military or
social behaviour which is so unbecoming as to ordinarily warrant the termination
of such officer’s service; and
‘‘unbecoming’’ includes inappropriate, improper or disgraceful.

2. For the purposes of item 42 and the concepts ‘‘higher authority’’, ‘‘other
authority’’, ‘‘appropriate higher authority’’ and ‘‘duty’’, the following applies:

(a) It is the duty of every person who is subject to this Act who is aggrieved by
any act or omission of any other person who is subject to this Act and who
wishes to have his or her complaint addressed by higher authority, to direct his
or her complaint in writing—
(i) to his or her Officer Commanding or commanding officer;

(ii) if the complaint is not resolved within a reasonable time by his or her
Officer Commanding or commanding officer and upon written notice to
that Officer Commanding or commanding officer, to the officer under
whose command that Officer Commanding or commanding officer is
serving;

(iii) if the complaint is not resolved within a reasonable time by the officer
contemplated in subparagraph (ii) and upon written notice to that officer,
to the next higher commander in the chain of command; and

(iv) if the complaint is not resolved within a reasonable time by the
commander contemplated in subparagraph (iii) and upon written notice
to that commander, to the Chief of the Defence Force;

(b) when a complaint contemplated in paragraph (a) is made to or received by a
Officer Commanding, commanding officer or an officer under whose
command that Officer Commanding or commanding officer is serving, the
complaint must be referred to—
(i) the next higher commander in the chain of command when—

(aa) that complaint is against the person to whom it has been made or by
whom it was received; or

(bb) that person to whom the complaint was made is unable to resolve
the complaint or otherwise satisfy the complainant within a
reasonable time; or

(ii) the Chief of the Defence Force or an officer authorised by the Chief of the
Defence Force for that purpose, if the complaint is not resolved within a
reasonable time by that commander; and

(c) if a complaint reaches the Chief of the Defence Force or an authorised officer
provided for in paragraph (b)(ii), he or she must deal with the complaint and
thereafter—
(i) if the complaint is still unresolved, must; or

(ii) for any other reason, may,
refer it to the Minister.

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Saving

3. (1) Item 2 does not derogate from any right, recourse or remedy which a person has
in law.

(2) No sentence provided for in this schedule is excluded from the provisions of
section 84.

Offences endangering safety of forces or threatening national security

4. Any person who is subject to this Act who, being on service—
(a) shamefully abandons or surrenders or induces or compels any member on

service shamefully to abandon or surrender any garrison, place, post, guard,
aircraft, or vessel or military equipment which it was the duty of that person,
or that other member, to defend;

(b) treacherously communicates with or gives intelligence to the enemy;
(c) treacherously makes known the parole, watchword or countersign to any

person not entitled to receive it or treacherously gives a parole, watchword or
countersign different from what he or she received;

(d) goes over or defects to the enemy;
(e) having been made a prisoner of war, voluntarily serves with or aids the enemy;
(f) gives to the enemy or assists the enemy to acquire arms or ammunition or any

material or equipment;
(g) commits any act calculated to imperil the success or safety of the Defence

Force or any force cooperating with the Defence Force or any part of any such
force; or

(h) threatens national security,
is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 30 years.

Offences by person in command of troops, vessels or aircraft

5. Any person who is subject to this Act in command of troops of the Defence Force
or of any vessel or aircraft who—

(a) when that person’s duty requires him or her to engage the enemy, fails to do
so or to do so as expeditiously or effectively as circumstances permit;

(b) being in action, without proper cause withdraws from the action or forsakes
his or her post; or

(c) improperly fails to pursue an enemy or to consolidate any position gained,
is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

Offences relating to conduct in action

6. Any person who is subject to this Act who—
(a) shamefully and in the presence of the enemy abandons or casts away any

arms, ammunition, equipment or tools;
(b) behaves before the enemy in such a manner as to show cowardice;
(c) improperly delays or discourages any action against the enemy;
(d) improperly does or omits to do anything, which act or omission—

(i) results in, or is calculated to result in, the capture by the enemy of any
member of the Defence Force or of any forces cooperating with the
Defence Force;

(ii) endangers, or is calculated to endanger, any member contemplated in
subparagraph (i); or

(iii) results in, or is calculated to result in, the capture or destruction by the
enemy of any aircraft, vessel or military equipment;

(e) in action or prior to going into action, acts in a manner or uses words likely to
create alarm or despondency;

(f) without authority communicates with the enemy or sends a flag or signal of
truce to the enemy;

(g) intentionally harbours or protects or provides supplies to an enemy, not being
a prisoner of war;

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(h) is taken as a prisoner of war through want of precaution, neglect of duty or
disobedience to orders;

(i) having been taken as a prisoner of war and fails to rejoin the Defence Force
when able to do so; or

(j) intentionally prevents or discourages any person from taking any reasonable
steps to rejoin the Defence Force after he or she has been captured by the
enemy,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

Failure to report activities likely to endanger safety of forces

7. Any person who is subject to this Act who, being aware or having reasonable
suspicion that any person—

(a) is communicating with the enemy or giving intelligence to the enemy;
(b) is giving to the enemy or is assisting the enemy to acquire arms, ammunition

or any material or other military equipment; or
(c) is about to commit any act calculated to imperil the success or safety of the

Defence Force or any part of the Defence Force or any forces cooperating with
the Defence Force or any part of those forces,

fails to report without delay to his or her superior officer the facts within his or her
knowledge concerning the activities or contemplated or suspected activities of such
person, is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

Offences relating to signals, watchwords and disclosure of information

8. Any person who is subject to this Act who—
(a) without authority or contrary to his or her duty in any way uses, alters, adjusts

or interferes with any instrument, machine or device designed or used for
signalling, directing or detecting;

(b) without authority or contrary to his or her duty alters, mutilates or delays any
signal;

(c) makes known the parole, watchword or countersign to any person not entitled
to receive it;

(d) intentionally or negligently gives or conveys to a person not entitled to receive
it, any parole, watchword or countersign different to that which he or she has
received;

(e) without proper authority discloses any information concerning the numbers,
movements, location or preparations of the Defence Force or any part thereof
or any force cooperating with it, or concerning any weapons, aircraft, vessels,
stores, machines, instruments, devices or signal codes used or intended for use
by the Defence Force or cooperating forces, to the prejudice of the Defence
Force or cooperating forces; or

(f) contrary to his or her duty or without authority, and subject to the Promotion
of Access to Information Act—
(i) discloses or publishes any record or information, or is responsible for

such disclosure or publication, whether by print, the electronic media,
verbally or by gesture or otherwise, where such information is classified
as restricted, confidential, secret or top secret or has been unclassified, or
where contents thereof are in nature of a classified character for use
within designated departmental channels or authority; or

(ii) is negligent in the performance of any duty relating to the safekeeping of
any official document or classified or unclassified information, in
consequence of which an unauthorised person becomes or might become
aware of the contents of any official document or classified or
unclassified information, to the prejudice of the Department or Defence
Force or any portions thereof or officials or members or persons,

is guilty of an offence and liable on conviction, if he or she committed the offence while
on service, to imprisonment for a period not exceeding 25 years, and in any other case,
to imprisonment for a period not exceeding 15 years.

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Interference with aircraft, vehicles, vessels, weapons, machines or instruments

9. Any person who is subject to this Act who contrary to his or her duty or without
proper authority alters, adjusts or interferes with any aircraft, motor vehicle, vessel,
weapon, machine or instrument used or intended for use by the Defence Force or any
part or accessory of any such aircraft, motor vehicle, vessel, weapon, machine or
instrument, is guilty of an offence and liable on conviction to imprisonment for a period
not exceeding 10 years.

Mutiny

10. Any person who is subject to this Act who—
(a) assumes leadership of, causes, takes part or joins in mutiny;
(b) conspires with any person to mutiny or to cause mutiny in the Defence Force

or join in any such mutiny;
(c) being present at a mutiny, fails to do his or her utmost to suppress it; or
(d) being aware or suspecting that any person is conspiring to cause any mutiny

or has joined in any mutiny, fails to report without delay to his or her superior
officer all the facts within his or her knowledge in that regard,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 30 years.

Offences relating to safeguards, guards and sentries

11. Any person who is subject to this Act who—
(a) forces or evades any safeguard;
(b) hinders or assaults a sentry, guard or watch-keeper;
(c) in any manner whatsoever prevents a sentry, guard or watch-keeper from

doing his or her duty; or
(d) occasions false alarm,

is guilty of an offence and liable on conviction, if he or she committed the offence while
on service, to imprisonment for a period not exceeding 15 years, and in any other case,
to imprisonment for a period not exceeding 10 years.

Dereliction of duty by sentry, guard or watch-keeper

12. Any person who is subject to this Act who—
(a) while on sentry or guard duty or on duty as a watch-keeper leaves his or her

post before he or she is regularly relieved or sleeps or is under the influence of
intoxicating liquor or a drug having a narcotic effect; or

(b) while on duty with his or her unit or at a post or guard leaves that unit, post or
guard without orders or good and sufficient cause,

is guilty of an offence and liable on conviction, if he or she committed the offence while
on service, to imprisonment for a period not exceeding 15 years, and in any other case,
to imprisonment for a period not exceeding 10 years.

Desertion

13. Any person who is subject to this Act who deserts from the Defence Force is guilty
of an offence and liable on conviction, if he or she committed the offence while on
service, to imprisonment for a period not exceeding 20 years, and in any other case, to
imprisonment for a period not exceeding 10 years.

Absence without leave and non-attendance where required to attend

14. Any person who is subject to this Act who—
(a) is absent without leave;
(b) fails to appear at a place of parade or duty or at any other place designated by

his or her superior officer or leaves any such place without good and sufficient
cause;

(c) without good and sufficient cause goes into any prohibited area or beyond the
fixed confines of his or her camp; or

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(d) being required to attend any school or other educational institution, whether
civilian or otherwise, fails to attend thereat or is absent there from without
leave,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

Assault and pointing of firearm

15. Any person who is subject to this Act who assaults, points a firearm at, draws any
weapon against or threatens any person, is guilty of an offence and liable on conviction
to imprisonment for a period not exceeding 10 years.

Ill-treatment of subordinate

16. Any person who is subject to this Act who ill-treats any member who is by reason
of rank or appointment subordinate to him or her, is guilty of an offence and liable on
conviction to imprisonment for a period not exceeding 10 years.

Insubordination

17. Any person who is subject to this Act who uses threatening or insulting language
to, or by word or conduct displays insubordination or behaves with contempt towards
his or her superior officer, is guilty of an offence and liable on conviction, if he or she
committed the offence while on service, to imprisonment for a period not exceeding 15
years, and in any other case, to imprisonment for a period not exceeding 10 years.

Malingering

18. (1) Any person who is subject to this Act who—
(a) malingers or feigns or produces disease or infirmity;
(b) maims or injures himself or herself with the intention of avoiding any service

or duty;
(c) intentionally commits or omits to perform an act, in consequence whereof he

or she becomes or is likely to become unable to perform any service or duty;
or

(d) intentionally maims or injures any person who is subject to this Act, whether
at the request or with the connivance of that person or otherwise, thereby
rendering that person unfit for service or duty,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

(2) The fact that a person had intended to commit suicide does not preclude his or her
conviction under sub-item (1)(a), (b) or (c).

Disobeying lawful command or order

19. (1) Any person who is subject to this Act who in wilful defiance of authority
disobeys any lawful command given personally by his or her superior officer in the
execution of a duty, whether orally, in writing or by signal, is guilty of an offence and
liable on conviction, if he or she committed the offence while on service, to
imprisonment for a period not exceeding 15 years, and in any other case, to
imprisonment for a period not exceeding 10 years.

(2) Any person who is subject to this Act who disobeys any lawful command given by
his or her superior officer, in circumstances not amounting to an offence under sub-item
(1), is guilty of an offence and liable on conviction, if he or she committed the offence
while on service, to imprisonment for a period not exceeding 10 years, and in any other
case, to imprisonment for a period not exceeding five years.

(3) Any person who is subject to this Act who disobeys any lawful direction of the
commander of any aircraft or vessel in which he or she is being conveyed, whether that
commander is a member of any armed force or a civilian, and irrespective of the rank or
status of that commander, is guilty of an offence and liable on conviction, if he or she
committed the offence while on service, to imprisonment for a period not exceeding 15
years, and in any other case, to imprisonment for a period not exceeding 10 years.

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(4) Any person who is subject to this Act who, being a patient in any hospital,
intentionally disobeys any lawful direction concerning his or her hospital or medical
treatment, given to that person by any member of the hospital staff within whose hospital
duty and authority it is to give such a direction, is guilty of an offence and liable on
conviction to imprisonment for a period not exceeding two years.

(5) Any person who is subject to this Act who neglects to obey any Unit, Formation,
Force, Division, Service or Defence Force or departmental order or instruction which is
applicable to him or her and of which it is the duty of that person to have knowledge, is
guilty of an offence and liable on conviction, if he or she committed the offence while on
service, to imprisonment for a period not exceeding 10 years, and in any other case, to
imprisonment for a period not exceeding five years.

(6) Any person who is subject to this Act upon whom a suspended sentence has been
imposed by a military court and who fails to comply with a condition of suspension in
circumstances not otherwise amounting to an offence cognisable by a military court, is
guilty of an offence and liable on conviction to imprisonment for a period not exceeding
two years: Provided that this sub-item does not derogate from the competence of a
military court to order the suspended sentence or unexpired portion of it, to be brought
into operation.

(7) Any person who is subject to this Act who fails to—
(a) comply with any condition on which he or she was released on parole from a

military prison or correctional facility; or
(b) return to a military prison or correctional facility upon expiration of the period

for which he or she was released on parole,
is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

(8) Any person who is subject to this Act who serves in the Ministry of Defence or
Defence Secretariat and who in wilful defiance of authority fails to comply with the
lawful instruction of his or her civilian supervisor, is guilty of an offence and liable on
conviction, if he or she committed the offence while on service, to imprisonment for a
period not exceeding five years, and in any other case, to imprisonment for a period not
exceeding two years.

(9) Any person who is subject to this Act who serves in the Ministry of Defence or
Defence Secretariat and who, in circumstances not amounting to an offence under
sub-item (8), fails to comply with the lawful instruction of his or her civilian supervisor,
is guilty of an offence and liable on conviction, if he or she committed the offence while
on service, to imprisonment for a period not exceeding five years, and in any other case,
to imprisonment for a period not exceeding three years.

Theft, misappropriation of property and possession of implement or object

20. (1) Any person who is subject to this Act, who—
(a) steals any public property or property belonging to any institution of the

Defence Force;
(b) steals any property belonging to a person who is subject to this Act;
(c) receives any property referred to in paragraph (a) or (b), knowing it to have

been stolen or ought reasonably to have known it to have been stolen;
(d) receives any property that was obtained dishonestly, knowing it to have been

obtained dishonestly or ought reasonably to have known it to have been
obtained dishonestly; or

(e) possesses any implement or object in respect of which there is a reasonable
suspicion that it was used or is intended to be used to commit housebreaking,
or to break open a motor vehicle, vessel or aircraft or to gain unlawful entry
into a facility, property, motor vehicle, vessel or aircraft, and who is unable to
give a satisfactory account of such possession,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

(2) Any person who is subject to this Act who, being on service—
(a) fails to secure all public property taken from the enemy for the service of the

Republic in its Defence Force;
(b) fails to give notice of or turn over to the proper authority, without delay, all

captured or abandoned public property in his or her possession, custody, or
control;

(c) engages in looting or pillaging; or

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(d) contrary to his or her duty takes, appropriates, retains, buys, sells, trades in, or
in any way deals in or disposes of captured or abandoned private or public
property,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

(3) For the purposes of sub-item (2) ‘‘public property’’ means ‘‘enemy public
property’’.

Offences relating to acquisition or disposal of public property

21. Any person who is subject to this Act who—
(a) without authority sells, barters or otherwise disposes of or lends or pledges

any public property or property belonging to any institution or, being aware or
suspecting that any person is without authority selling, bartering or in any
other way disposing of or lending or pledging such property, fails to report the
facts within his or her knowledge in that regard to his or her superior officer
without delay;

(b) when it is his or her duty to acquire by purchase or otherwise any property for
the use of the State, the Defence Force or any institution, demands, solicits or
accepts contrary to that person’s duty any commission, fee, reward or personal
advantage in respect of such acquisition;

(c) having acquired property which it was his or her duty to acquire by purchase
or otherwise for the use of the State, the Defence Force or any institution, fails
or neglects to cause such property to be delivered to an appropriate place or
store; or

(d) agrees to pay or connives at the payment of any exorbitant price for any
property purchased for the use of the State, the Defence Force or any
institution,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 15 years.

Causing or allowing vessel or aircraft to be hazarded, stranded or wrecked

22. Any person who is subject to this Act who intentionally or negligently causes or
allows a vessel or aircraft to be hazarded, stranded or wrecked, is guilty of an offence
and, where no other penalty is prescribed in this Schedule or this Act, liable on
conviction to imprisonment for a period not exceeding 20 years.

Abandoning or diverting public property or supplies

23. Any person who is subject to this Act who—
(a) without good and sufficient cause intentionally abandons, damages or

destroys any public property or property belonging to any institution; or
(b) improperly diverts or detains supplies,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

Negligently losing arms, money, vehicles, vessels, animals, ammunition kits,
equipment or public property

24. (1) Any person who is subject to this Act who fails—
(a) to produce when required, any firearm, other weapon, money, vehicle, vessel,

animal, ammunition or other controlled item issued to him or her at public
expense for use in the execution of his or her duties;

(b) to produce when required, any kit, equipment or any public property issued to
him or her at public expense for use in the execution of his or her duties; or

(c) damages or destroys any public property or any property issued to him or her
at public expense for use in the execution of his or her duties,

is guilty of an offence and liable on conviction, in the case of an offence referred to in
paragraph (a) or (b), to imprisonment for a period not exceeding 15 years, and in any
other case, to imprisonment for a period not exceeding 10 years.

(2) If in any proceedings before a military court for a contravention of sub-item (1)(a),
(b), or (c), it is proved that any article or property referred to in those paragraphs which

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is alleged in the charge to have been lost, was issued or entrusted to or held by the
accused and that on a date subsequent to such issue the accused was found not to be in
possession of such article or property, that military court may, in the absence of evidence
to the contrary, deduce or conclude that such article or property was negligently lost by
the accused.

Intentionally or negligently causing damage to or destruction of public property or
property belonging to an institution

25. Any person who is subject to this Act who intentionally or negligently—
(a) commits any act which causes or is likely to cause damage to or destruction of

public property or property belonging to any institution; or
(b) omits to take action to prevent damage to or destruction of public property or

property belonging to any institution,
is guilty of an offence and liable on conviction to, in the case of—

(i) the intentional commission of any act referred to in paragraph (a) or the
intentional omission to prevent damage or destruction referred to in paragraph
(b), imprisonment for a period not exceeding 15 years; or

(ii) the negligent commission of an act referred to in paragraph (a) or the negligent
omission to prevent damage referred to in paragraph (b), imprisonment for a
period not exceeding 10 years.

Deficiencies in stores, stocks or money

26. (1) Any person who is subject to this Act who, being responsible for stores, stocks
or money in any Defence Force store, office or institution, so negligently performs his or
her duties as to cause any deficiency in such stores, stocks or money, is guilty of an
offence and liable on conviction to imprisonment for a period not exceeding 15 years.

(2) If in any prosecution before a military court for a contravention of sub-item (1), it
is proved that the accused as alleged in the charge was responsible for stores, stocks or
money in any Defence Force store, office or institution and that while he or she was so
responsible, a deficiency in such stores, stocks or money was caused, that military court
may, in the absence of evidence to the contrary, deduce or conclude that the accused so
negligently performed his or her duties which resulted in the said deficiency.

Using, removing or taking article in possession or control of, issued to or under
control of person, an institution or public property

27. Any person who is subject to this Act who—
(a) improperly uses, takes or removes from the possession or control of any

person who is subject to this Act any article—
(i) issued to that person for use in the execution of his or her duties; or

(ii) which is the personal property of that person,
without the permission of that person;

(b) without authority takes or removes any article of public property from its
appointed place, or uses that article for any purpose other than in the public
interest; or

(c) without authority takes or removes from its appointed place, or uses, any
article belonging to any institution,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

Offences relating to driving of vehicle, flying of aircraft and controlling of vessel

28. (1) Any person who is subject to this Act who, in a reckless or negligent manner—
(a) drives any motor vehicle at an excessive speed;
(b) flies an aircraft at an unauthorised altitude or in contravention of the Aviation

Safety Manual;
(c) drives any motor vehicle while he or she has consumed liquor or an

intoxicating drug or substance having a narcotic effect;
(d) steers any vessel being public property at an unauthorised depth, or in a

manner endangering the safety of crew on board or in contravention of
policies and directives of the South African Navy Vessel Certification

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Authority Board, or any other Board established to facilitate material safety,
harbour safety, sea safety, weapons safety or combat safety in the South
African Navy; or

(e) controls or fails to ensure the control of any vessel being public property in a
manner endangering the safety of crew on board or acts in contravention with
policies and directives of the South African Navy Vessel Certification
Authority Board, or any other prescriptions of any Board established to
facilitate weapons safety or combat safety in the South African Navy,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

(2) Any person subject to this Act who drives any—
(a) unsafe motor vehicle on military property or premises; or
(b) military motor vehicle which does not comply with the requirements—

(i) for roadworthiness certification provided for in the National Road Traffic
Act or in any other law; or

(ii) of any military prescript with regard to operating or driving requirements
of such vehicle,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

Fraudulent enrolment or enlistment

29. (1) Any person who is subject to this Act who—
(a) being a member of any portion of the Defence Force and not having been

regularly discharged therefrom, enrols or enlists in any other portion of that
Force;

(b) having been discharged with disgrace from the Defence Force or from a
military organisation of any country, enrols or enlists in the Defence Force
without disclosing such discharge with disgrace at the time of his or her
application, recruitment enrolment or enlistment; or

(c) intentionally gives a false answer to any question in any application,
recruitment, enrolment or enlistment procedure,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 20 years.

(2) For the purposes of this section, the expression ‘‘discharged with disgrace’’ means
cashiered, discharged with ignominy, dismissed because of misconduct or discharged on
account of imprisonment.

(3) Any person who is subject to this Act who, having given a false answer to any
question in an application, recruitment, enrolment or enlistment paper, is thereupon
enrolled or enlisted as a member of the Defence Force, is deemed to have been subject
to this Act at the date upon which such false answer was given.

(4) Any person who is subject to this Act who appoints, enrols, re-enrols, enlists,
re-enlists or assists to appoint, enrol, re-enrol, enlist or re-enlist, any person mentioned
in sub-item (1) is guilty of an offence and liable upon conviction to imprisonment for a
period not exceeding 15 years.

False statement in official document

30. Any person who is subject to this Act who—
(a) intentionally makes a false statement or entry in a document made or signed

by him or her that is required or made for official purposes;
(b) negligently makes a false statement or entry in a document made or signed by

him or her that is required or made for official purposes;
(c) intentionally orders, requests, incites or permits any person to make or sign a

statement or entry in a document that is required or made for official purposes,
while knowing such statement or entry to be false;

(d) when signing a document that is required or made for official purposes,
intentionally leaves in blank any material part for which his or her signature is
a voucher;

(e) with the intent to deceive, alter, deface, suppress or remove any document
required, made, kept or issued for official purposes; or

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(f) forges any signature upon any document required, made, kept or issued for
official purposes or uses any document for official purposes knowing the
signature thereon to be forged,

is guilty of an offence and liable on conviction, in the case of an offence referred to in
paragraph (b), to imprisonment for a period not exceeding one year, and in any other
case, to imprisonment for a period not exceeding 10 years.

False accusation or statement

31. Any person who is subject to this Act who intentionally or negligently makes any
false accusation or statement against or concerning any person subject to this Act, is
guilty of an offence and liable on conviction to imprisonment for a period not exceeding
five years.

Scandalous behaviour

32. Any officer who behaves in a scandalous manner unbecoming the character of an
officer, is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

Drunkenness, excessive use of alcohol or drugs and driving under influence

33. Any person who is subject to this Act, who, whether on or off duty—
(a) is drunk;
(b) unfits himself or herself for the proper performance of duty by excessive use

of alcohol or drugs having a narcotic effect; or
(c) drives a military vehicle, steers a vessel or flies an aircraft whilst under the

influence of alcohol or drugs having a narcotic effect,
is guilty of an offence and liable on conviction—

(i) if the offence is committed while on service or on duty, to imprisonment for a
period not exceeding 10 years; and

(ii) in any other case, to imprisonment for a period not exceeding five years.

Offences relating to military courts

34. (1) Any person who is subject to this Act, including any assessor, accused,
witness, legal representative, appointed Prosecution Counsel and Military Defence
Counselor or any other court official who—

(a) having been duly summoned, instructed or warned to attend a military court,
fails to attend or to remain in attendance until authorised to leave, or fails to
appear on time;

(b) being present at a military court after having been duly summoned, instructed
or warned to attend, refuses to take the oath or to make an affirmation;

(c) uses threatening or insulting language or conduct at a military court or
intentionally causes a disturbance or interruption thereat or intentionally
commits any other act calculated to bring that court into contempt, ridicule or
disrepute or affects the professional decorum of the court;

(d) in any manner not contemplated in this Act and with the intention of
influencing the outcome of any trial or proceedings, communicates with any
chairperson or member of a Court of Military Appeals or any Military Judge,
assessor, Officer Commanding or commanding officer regarding the merits of
that trial or proceedings;

(e) fails to be properly attired for military court proceedings in accordance with
accepted professional dress prescripts and Service dress regulations; or

(f) brings or attempts to bring into court any unauthorised firearm or weapon,
is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

(2) Any person who is subject to this Act who, when giving evidence at a military
court—

(a) refuses to answer any question which in law he or she could be compelled to
answer; or

(b) refuses or fails to produce any document or thing in his or her possession or
under his or her control which in law he or she could be compelled to produce,

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is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

(3) When during any proceedings or trial before a military court, the Military Judge
instructs or warns any person who is subject to this Act, including any assessor, accused,
witness or necessary official, to appear at a place, on a date and at a time, specified by
that Military Judge for the continuation of those proceedings or a trial and that person
fails to—

(a) so appear; or
(b) remain in attendance at such proceedings until authorised to leave,

that person is guilty of an offence and liable on conviction to imprisonment for a period
not exceeding 10 years.

(4) A military court contemplated in sub-items (1)(c), (2) or (3) may, if reasonably
necessary, issue a warrant of arrest contemplated in section 47(2) and may in the
presence of the offender and after summary inquiry—

(a) convict the offender of contravening a provision of this section; and
(b) sentence him or her to be imprisoned for a period not exceeding 30 days, or to

undergo any less severe punishment to which that person may be sentenced
under this Act: Provided that any such sentence has the same effect and must
be executed as if it were a sentence imposed by a military court in the course
of a separate trial, and the provisions of Chapter 10, subject to the changes
required by the context, apply.

(5) The Officer Commanding or commanding officer of any person who is subject to
this Act, who is required to attend a military court to give evidence or to produce any
document or thing thereat, who fails to comply with the instructions and make the
necessary arrangements for the attendance of the accused or witness at such military
court in accordance with such instructions, is guilty of an offence and liable on
conviction to imprisonment for a period not exceeding five years.

Offences relating to evidence

35. (1) Any person who is subject to this Act who at an investigation, military court
or military disciplinary hearing, intentionally gives false evidence under oath or
affirmation, is guilty of an offence and liable on conviction to imprisonment for a period
not exceeding the maximum period of imprisonment which could in terms of this Act be
imposed in respect of any offence which formed the subject of the charge in a military
court in connection with which such evidence was given and in the case of an
investigation or a military disciplinary hearing to imprisonment for a period not
exceeding five years.

(2) Any person who is subject to this Act who has made a statement on oath or
affirmation whether orally or in writing, and thereafter on another oath or affirmation
makes another statement as aforesaid, which is in conflict with that first statement, is
guilty of an offence and may, on a charge alleging that he or she made the two conflicting
statements, and upon proof of those two conflicting statements and without proof as to
which of the said statements was false, be convicted of such offence and is liable on
conviction to imprisonment—

(a) for the maximum period which could in terms of this Act be imposed in
respect of any offence which formed the subject of a charge in connection with
which any of the statements were made; or

(b) in any other case, for a period not exceeding two years.

Offences relating to pre-trial investigation

36. Any person who is subject to this Act who—
(a) having been duly summoned or instructed to attend as a witness before a

pre-trial investigation, fails to attend or to remain in attendance until
authorised to leave;

(b) being present at a pre-trial investigation after having been duly summoned or
warned to attend as a witness, refuses to take the oath or to make an
affirmation;

(c) when giving evidence at a pre-trial investigation, refuses to answer any
questions which in law he or she could be compelled to answer, or refuses or
fails to produce any document, property or item in his or her possession or
under his or her control which in law he or she could be compelled to produce;

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(d) intentionally gives false evidence at a pre-trial investigation under this Act; or
(e) uses threatening or insulting language at a pre-trial investigation or

intentionally causes a disturbance or interruption thereat or intentionally
commits any other act calculated to bring the recording officer or Senior
Military Judge into contempt, ridicule or disrepute,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

Obstruction

37. Any person who is subject to this Act who—
(a) resists or intentionally obstructs a member of the Defence Force in the

performance of a duty or competence relating to the arrest, custody or
confinement of a person;

(b) when called upon by any member of the Defence Force, refuses or neglects to
assist that member in the performance of any duty or competence contem-
plated in paragraph (a); or

(c) when called upon by an appropriate civilian authority to hand over any person
under his or her control accused of an offence punishable by a civilian court,
unreasonably fails or neglects to do so,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

Offences relating to arrest, appearance and arraignment

38. Any person who is subject to this Act who—
(a) without being lawfully entitled to do so orders any person who is subject to

this Act into arrest or custody;
(b) unnecessarily detains a person who is subject to this Act in arrest or custody;
(c) contrary to his or her duty fails to bring the case of a person who is subject to

this Act before the proper authority within the time prescribed in section 80;
(d) having committed a person who is subject to this Act to the custody of any

authorised person, fails to deliver to that authorised person, within 24 hours of
such committal, an account in writing signed by himself or herself of the
offence with which the person so committed is charged;

(e) having warned a person who is subject to this Act on a charge, fails to deliver
to a Prosecution Counsel or the Disciplinary Adjutant of that person, within
seven days of such warning, an account in writing signed by himself or herself
of the offence with which the person so warned is charged;

(f) without due and just cause and when obliged and in a position to do so, fails
to—
(i) bring or arraign a person before a military court within a period of—

(aa) five years after the commission of any offence other than a military
disciplinary offence; or

(bb) two years after the issuing of a warning or effecting of an arrest;
(ii) bring or arraign a person before a military court within a period of—

(aa) one year after the commission of a military disciplinary offence; or
(bb) six months after the issuing of a warning or effecting of an arrest for

a military disciplinary offence;
(iii) bring or arraign a person before a military court within a period of—

(aa) five years after such person ceased to be in the employ or service of
the Defence Force; or

(bb) two years after the issuing of a warning or effecting of an arrest
where such person ceased to be in the employ or service of the
Defence Force,

where such person committed an offence other than a military
disciplinary offence;

(iv) bring or arraign a person before a military court within a period of—
(aa) one year after such person ceased to be in the employ or service of

the Defence Force; or
(bb) six months after the issuing of a warning or effecting of an arrest

where such person ceased to be in the employ or service of the
Defence Force,

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where such person committed any military disciplinary offence;
(v) bring a person before a military disciplinary hearing within a period of—

(aa) five years after the commission of a misconduct; or
(bb) two years after the report of misconduct has been submitted in

terms of Chapter 11; or
(vi) bring a person before a military disciplinary hearing within a period of—

(aa) one year after such person ceased to be in the employ or service of
the Defence Force; or

(bb) six months after the report of misconduct has been submitted in
terms of Chapter 11, where such person ceased to be in the employ
or service of the Defence Force, where such person committed any
misconduct,

is guilty of an offence and liable on conviction to imprisonment for a period
not exceeding five years.

Resisting arrest

39. Any person who is subject to this Act who—
(a) being ordered into arrest, refuses to obey that order;
(b) being arrested or ordered into arrest, assaults the person arresting or ordering

him or her into arrest;
(c) being arrested or ordered into arrest, resists the person whose duty or

competence it is to apprehend him or her, or to have him or her in charge;
(d) assaults any person in whose custody he or she has been placed;
(e) escapes from lawful custody; or
(f) hinders or obstructs any person lawfully carrying out a search of his or her

person, property, belongings, residence or living quarters,
is guilty of an offence and liable on conviction to imprisonment—

(i) in a case involving assault, for a period not exceeding 10 years; or
(ii) in any other case, for a period not exceeding five years.

Offences relating to person in custody

40. Any person who is subject to this Act who—
(a) allows any person committed to his or her custody to escape;
(b) without authority releases any person committed to his or her custody; or
(c) uses unnecessary violence on any person in custody or otherwise ill-treats

such person,
is guilty of an offence and liable on conviction to imprisonment—

(i) in a case involving assault, for a period not exceeding 10 years;
(ii) in a case involving ill-treatment, for a period not exceeding 10 years; or

(iii) in any other case, for a period not exceeding 10 years.

False or unfounded allegations

41. (1) Any person who is subject to this Act who in any complaint made or lodged by
him or her or in any document made or signed by him or her relating to the Defence
Force or any other individual in the service of the Department or affecting any interest
of the Defence Force or any such individual, intentionally makes a false or unfounded
allegation, is guilty of an offence and liable on conviction to imprisonment for a period
not exceeding five years.

(2) Any person who is subject to this Act who verbally makes a false or unfounded
allegation against the Department or any individual in the employ of the Department, is
guilty of an offence and liable on conviction to imprisonment for a period not exceeding
five years.

Offences relating to complaints or grievances

42. Any person who is subject to this Act who—
(a) when a complaint by a person has been made to, or received by, him or her

through the chain of command, unduly delays in—
(i) addressing the complaint; or

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(ii) referring it to the appropriate higher authority through the chain of
command when the complaint is against the person to whom it has been
made or by whom it was received, or when that person is unable to
resolve the complaint or otherwise to satisfy the complainant; or

(b) complains directly to a higher authority, to the Secretary for Defence or to the
Minister when it is his or her duty to direct his or her complaint to his or her
Officer Commanding or commanding officer or other authority in accordance
with item 2 of this Schedule,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

False representation concerning rank

43. Any person who is subject to this Act who, in any manner whatsoever, including
through wearing of rank badges or rank stripes or other insignia of rank or other means,
holds himself or herself out to be the holder of a rank other than his or her own rank in
the Defence Force, is guilty of an offence and liable on conviction to imprisonment for
a period not exceeding five years.

Offences relating to uniforms, decorations or medals

44. Any person who is subject to this Act who—
(a) wears any decoration, medal, clasp, medal ribbon or wound stripe to which he

or she is not entitled or which has been forfeited for a specific period;
(b) displays any unauthorised badge, emblem, colours or any other insignia of a

political or associated organisation, trade union, religious or cultural
organisation in unit lines or on any military property or premises or upon
official uniform; or

(c) possesses or wears Service uniforms, distinctive marks or crests, other than
for official purposes or controlled items to which he is not entitled,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

Unseemly behaviour

45. Any person who is subject to this Act who—
(a) behaves in an unseemly manner;
(b) when able to do so, does not suppress any unseemly behaviour by any person

who is subject to this Act; or
(c) engages in the—

(i) fraternisation with the spouse of any member;
(ii) uttering of indecent language;

(iii) sexual interaction, exploitation or participation during deployments with
sex workers or prostitutes or members of the local population;

(iv) furthering of the interests of a political or associated organisation, trade
union or cultural organisation within the work environment; or

(v) displaying of insolent or indolent behaviour in the workplace,
is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

Riotous behaviour

46. Any person who is subject to this Act who—
(a) behaves in a riotous manner;
(b) when able to do so, does not suppress any riotous behaviour by any person

who is subject to this Act;
(c) engages in an affray or fights with any person; or
(d) uses threatening, abusive, insulting or profane language,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

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Conduct to prejudice of military discipline

47. (1) Any person who is subject to this Act who by act or omission causes actual or
potential prejudice to good order and military discipline, is guilty of an offence and
liable on conviction to imprisonment for a period not exceeding five years.

(2) Without derogating from the ordinary meaning of sub-item (1), the conduct
prohibited includes any—

(a) abuse of authority;
(b) negligent or improper performance of a duty;
(c) failure to perform a duty;
(d) unauthorised communication by a person with higher or other military

authority when that communication relates to his or her or any person’s
service, status or interest in the Defence Force, and is in disregard of the chain
of command; and

(e) engaging in recurring and persistent pestering, stalking or persecution of
persons in the workplace.

Offences under customary international law, laws giving effect to international law
and offences committed outside Republic

48. (1) Any person who is subject to this Act who at any place, whether inside or
outside the borders of the Republic, commits any crime or offence under customary
international law, which is not otherwise punishable under South African law or laws
giving effect to international law, is guilty of an offence and liable on conviction to any
penalty which may under section 84 be imposed by a military court.

(2) Any person who is subject to this Act who beyond the borders of the Republic
commits or omits to do any act in circumstances under which he or she would, if he or
she had committed or omitted to do that act in the Republic, have been guilty of a
civilian offence, is guilty of an offence and liable on conviction to any penalty which
may under section 84 be imposed by a military court in respect of such offence: Provided
that no such penalty exceeds the maximum penalty that could be imposed by a
competent civilian court if the offence in question had been committed within the
Republic.

(3) Any person who is subject to this Act, who beyond the borders of the Republic,
commits or omits to do any act which constitutes an offence under the national law of the
country in which he or she is guilty of an offence and liable on conviction to any penalty
which may under section 84 be imposed by a military court: Provided that no such
penalty exceeds the maximum penalty that could be imposed in respect of such offence
under the law of the country in which he or she committed the offence.

(4) Any person not subject to this Act who commits any crime or offence referred to
in sub-items (1) to (3) and who thereafter becomes subject to this Act, must be deemed
to have been subject to this Act at the time of the commission of the crime or offence.

Defeating the course of justice

49. Any person who is subject to this Act who—
(a) in circumstances which do not constitute any other offence under this

Schedule, obstructs or hinders any person who is subject to this Act in the
exercise of any power or the performance of any duty in terms of this Act;

(b) defeats or obstructs the course of justice; or
(c) assists or harbours any person who is subject to this Act who to his or her

knowledge has committed an offence,
is guilty of an offence and liable on conviction to—

(i) in the case of an offence under paragraph (b) or (c), imprisonment for a period
not exceeding the maximum period prescribed in law for the offence in respect
of which he or she defeated or obstructed the course of justice or for the offence
committed by the person he or she so assisted or harboured; and

(ii) in the case of an offence under paragraph (a), imprisonment for a period not
exceeding 15 years.

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Attempting, conspiring, aiding or abetting

50. (1) Any person who is subject to this Act who attempts to commit any offence is
guilty of an offence and liable on conviction to the penalties provided for in this Act for
the offence he or she so attempted to commit.

(2) Any person who is subject to this Act who conspires with another person or aids,
abets, induces, incites, instigates, instructs or commands a person to commit an offence,
or who procures the commission of an offence, is guilty of an offence and liable on
conviction to the penalties provided for in this Act for the principal offence.

(3) Any person who is subject to this Act who, knowing that a person who is subject
to this Act has committed or is planning or attempting to commit an offence—

(a) being the superior officer of such person, fails to act against him or her in
terms of this Act;

(b) fails to report without delay to his or her Officer Commanding or commanding
officer all the facts within his or her knowledge in that regard; or

(c) fails to take reasonable action to prevent its commission,
is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

Non-compliance with provision applicable to military disciplinary hearing

51. Any person who is subject to this Act who fails to comply with or implement any
provision applicable to a military disciplinary hearing is guilty of an offence and liable
on conviction to imprisonment for a period not exceeding five years.

Participation in unauthorised or illegal labour or related actions

52. Any person who is subject to this Act who participates in any strike or unlawful
or illegal labour action or picket, or who incites strike or unlawful or illegal labour
action or picket is guilty of an offence and liable on conviction, in the case of any person
who acted individually, to imprisonment for a period not exceeding five years and in any
other manner to imprisonment for a period not exceeding 10 years.

Participation in secondary strike or conduct in contemplation or furtherance of
strike

53. Any person who is subject to this Act who participates in any secondary strike, or
conduct in contemplation or furtherance of a strike, or in support of a strike or in
solidarity with a strike undertaken by persons other than such person against any
employer, is guilty of an offence and liable on conviction to imprisonment for a period
not exceeding five years.

Participation in peaceful and unarmed assembly, demonstration, picket or petition
in support of strike or secondary strike

54. Any person who is subject to this Act who participates in peaceful and unarmed
assembly, demonstration, picket or petition in support of a strike or secondary strike in
respect of any matter concerning either the employment relationship with the
Department or any matter related to the Department, is guilty of an offence and liable on
conviction to imprisonment for a period not exceeding five years.

Recruitment or attempt to recruit any member of Defence Force for membership
of trade union other than military trade union

55. Any person who is subject to this Act who recruits or attempts to recruit any
member of the Defence Force for membership of any trade union other than a military
trade union which is duly authorised to act as such, is guilty of an offence and liable on
conviction to imprisonment for a period not exceeding five years.

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Incitement or attempt to incite member of Defence Force to participate in strikes,
demonstrations or protests

56. Any person who is subject to this Act who incites or attempts to incite a member
of the Defence Force to participate in strikes, demonstrations or protests prohibited in
terms of the regulations, is guilty of an offence and liable on conviction to imprisonment
for a period not exceeding five years.

Participation by member of Defence Force in lawful, peaceful and unarmed
assembly, demonstration, picket and petition in official or private capacity

57. Any person who is subject to this Act who—
(a) participates in any lawful, peaceful and unarmed assembly, demonstration,

picket and petition in his or her official or private capacity; or
(b) incites such assembly, demonstration, picket and petition while in private

clothing or uniform or wearing any part of a uniform or displaying any
insignia linked to the Defence Force, in a manner which indicates in any other
way employment in the Defence Force or the Department, or bearing any
military rank, epaulets, qualification badges, proficiency badges, military
medals and decorations, regalia, distinct military symbol or any military
uniform item,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

Illegal actions with regard to military or State-controlled property or premises

58. Any person who is subject to this Act who, while lawfully occupying military
property or premises, or State-owned property under control of the Department, sublets
such property or any part thereof, conducts prohibited business from such property or
engages in any illegal or unauthorised trading therefrom, is guilty of an offence and
liable on conviction to imprisonment for a period not exceeding 15 years.

Unlawful use of military property or premises, or State-owned property under
control of Department

59. Any person who is subject to this Act who, while lawfully occupying or is in
control of military property or premises, or State-owned property under control of the
Department, utilises it or allows it to be utilised for purposes other than for residential
or designated official purposes or uses such property for any purpose other than
authorised occupation, is guilty of an offence and liable on conviction to imprisonment
for a period not exceeding 15 years.

Unauthorised occupation or utilisation of military property or premises, or
State-owned property under control of Department

60. Any person who is subject to this Act who without authority occupies or utilises
military property or premises, or State-owned property under control of the Department,
or allows it to be occupied or utilised, is guilty of an offence and liable on conviction to
imprisonment for a period not exceeding 15 years.

Illegall occupation or control of, or accommodation in military property or
premises, or State-owned property under control of Department

61. Any person who is subject to this Act who is found to be illegally occupying or in
control of or accommodated in military property or premises, or State-owned property
under control of the Department, sublets such property or any part thereof, or engages in
any illegal or unauthorised trading therefrom, is guilty of an offence and liable on
conviction to imprisonment for a period not exceeding 15 years.

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Failure to report civilian court conviction

62. Any person who is subject to this Act who has been tried and convicted by a
civilian court and fails to report the outcome of such case to his or her Officer
Commanding or commanding officer within 48 hours thereof, is guilty of an offence and
liable on conviction to imprisonment for a period not exceeding 15 years.

Sexual and related offences

63. (1) Any person who is subject to this Act who commits or attempts to commit or
conspires with any other person to commit or aids, abets, induces, incites, instigates,
instructs, commands, counsels or procures another person to commit a sexual offence, is
guilty of an offence and liable on conviction to imprisonment for a period not exceeding
30 years.

(2) Any person who is subject to this Act who displays, possesses, manufactures,
prints or distributes child pornography or pornography, as defined in the Criminal Law
(Sexual Offences and Related Matters) Amendment Act, within unit lines or on military
property or premises, vehicles, aircraft, vessels or property under the control of the
Defence Force, is guilty of an offence and liable on conviction to imprisonment for a
period not exceeding 30 years.

(3) For purposes of this item, ‘‘sexual offence’’ includes any consensual sexual
relations between a person who is subject to this Act and members of the local general
population, during operational deployment outside the Republic, in exchange for food,
goods, services or money, even if such exchange occurs through an intermediary.

Offences by civilian person handling or operating specialised military equipment

64. Any person who is subject to this Act who with the written consent of any Officer
Commanding or commanding officer of any unit within the Defence Force and who is
appointed to handle or operate specialised military equipment or machinery whether
inside or outside the borders of the Republic, intentionally or negligently causes
personal injury to any person or harm or damage to any property whilst handling or
operating such equipment or machinery, is guilty of an offence and liable on conviction
to a fine not exceeding R50 000.00.

Offences by Officer Commanding or commanding officer relating to failure to
report allegation

65. Any Officer Commanding or commanding officer who fails to comply with the
provisions of section 69 is guilty of an offence and liable on conviction to imprisonment
for a period not exceeding 10 years.

Offences by military police officials relating to failure to report allegation

66. Any military police official who fails to comply with the provisions of section 74
or 75 is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

Dereliction of duty imposed by law

67. Any member who without good cause fails to comply with a duty imposed by this
Act or performs the duty negligently, is guilty of an offence and liable on conviction to
imprisonment for a period not exceeding 15 years.

Endangering morale of own forces or allies

68. Any member who with the intent to instill fear, create despondency or
unnecessary alarm amongst own forces or allies, is guilty of an offence and liable on
conviction, if he or she committed the offence while on service, to imprisonment for a
period not exceeding 25 years, and in any other case to imprisonment for a period not
exceeding 10 years.

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Embarking on business while on deployment

69. Any person who is subject to this Act who, beyond the borders of the Republic,
while being deployed with the Defence Force or any force operating with the Defence
Force, embarks on, operates, opens, initiates, negotiates to open or solicits any person,
either from the host country or anywhere to open any business, enters into any
prohibited financial agreement or transaction or agreement or transaction relating to
land, minerals, animals of the host country, or territory or transports, conveys or assists
to transport or convey, couriers or assists to courier any item involved in or destined to
be used in any way in the actions prohibited above, is guilty of an offence and liable on
conviction to imprisonment for a period not exceeding 25 years.

Looting and related offences

70. (1) Any member who loots any property or searches with the intent of looting—
(a) any property which has been left exposed or unprotected in consequence of; or
(b) from a person who has been killed, injured, captured or detained in the course

of,
armed conflict or an operation of the Defence Force or of any force cooperating with the
Defence Force or in the course of the execution of a mandate from a multi-national
organisation, is guilty of an offence under this section and liable on conviction to
imprisonment for a period not exceeding 25 years.

(2) Any member who—
(a) takes, otherwise than for the public interest, any vehicle, equipment or stores

abandoned by the enemy; or
(b) contrary to his or her duty takes, appropriates, retains, buys, sells, trades in, or

in any way deals in or disposes of captured or abandoned private or public
property,

is guilty of an offence under this section and liable on conviction to imprisonment for a
period not exceeding 25 years.

(3) Any person who is subject to this Act who unloads, unpacks or otherwise
interferes with any goods on board a vehicle, vessel or aircraft that has been detained in
the exercising of a belligerent right or under any law, is guilty of an offence and liable
on conviction to imprisonment for a period not exceeding 25 years.

Removing, disclosing, copying of classified documents or materials or articles

71. (1) Any person who is subject to this Act who without lawful authority—
(a) removes, copies, releases, transfers or communicates the contents of any

classified document, material, article or related content which is in the lawful
possession of the Department or any of its components, or the Armaments
Corporation of South Africa Limited, or its subsidiaries;

(b) transfers or communicates the contents of any classified document or material
or related content which is in the lawful possession of any person, or the
Ministry of Defence or Secretary for Defence or any component of the
Defence Force or the Armaments Corporation of South Africa Limited, or its
subsidiaries to any person, institution, organisation or foreign government;

(c) removes, hides, copies, releases, transfers or communicates the contents of
any document, record or related material from the personnel file of any
member to any person, institution, organisation or foreign government or
destroys, shreds, obliterates or defaces any such document, record or related
material;

(d) discloses any medically confidential documents, record or information of any
member of the Defence Force; or

(e) discloses any classified record or information,
is guilty of an offence and liable on conviction, if he or she committed the offence while
on service, to imprisonment for a period not exceeding 25 years, and in any other case
to imprisonment for a period not exceeding 15 years.

Failure to report information received from enemy

72. Any person who is subject to this Act who—
(a) receives information from or about the enemy;

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(b) does not make the information known to the competent authority and the
information is likely to be directly or indirectly useful in operations against
the enemy; and

(c) knows or could reasonably be expected to know that the information is likely
to be directly or indirectly useful in operations against the enemy,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 25 years.

Use of force or threat of force against safeguard, guard or sentry

73. Any person who is subject to this Act who—
(a) uses force or the threat of force or intimidation against a member of the

Defence Force, or of any force cooperating with the Defence Force, who is—
(i) on guard duty, posted or ordered to patrol;

(ii) on watch or sentry duty; or
(iii) under orders to regulate traffic by land, water or air; or

(b) by the threat of force, compels such a person to derelict his or her safeguard,
guard duty, sentry duty or watch,

is guilty of an offence and liable on conviction to, if he or she committed the offence
while on service, imprisonment for a period not exceeding five years, and in any other
case to imprisonment for a period not exceeding 10 years.

Offences in relation to members of Executive and Head of Department.

74. Any member of the Defence Force who uses contemptuous or disrespectful
words, whether by print, the electronic or networking media, verbally, by gesture or
otherwise against, towards or in relation to, or undermines the authority of, the Office of
the President, the Deputy President, the Minister or the Secretary for Defence, is guilty
of an offence and liable on conviction to imprisonment for a period not exceeding five
years.

Offences in relation to military authority

75. Any member of the Defence Force who—
(a) uses contemptuous or disrespectful words, whether by print, the electronic or

networking media, verbally, by gesture or otherwise against, towards, or in
relation to, or undermines the military authority; or

(b) commits any conduct in flagrant and wilful defiance of military authority or
uses threatening or insulting language to, or by word or conduct displays
insubordination or behaves with contempt towards military authority,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

Offences relating to separation board

76. Any person who is subject to this Act who—
(a) having been duly instructed or warned to attend as a witness before separation

board proceedings, fails to attend or to remain in attendance until authorised
to leave;

(b) gives false evidence at a separation board; or
(c) uses threatening or insulting language at a separation board or intentionally

causes a disturbance or interruption thereat or intentionally commits any other
act calculated to bring the proceedings of the separation board into contempt,
ridicule or disrepute,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding five years.

Offences relating to military correctional facilities

77. (1) Any person who is subject to this Act, who—
(a) aids, abets, induces, incites, instigates, instructs or commands any inmate to

escape from any correctional facility;

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(b) gives, hands, supplies or in any other manner makes available to any inmate
any unauthorised article;

(c) brings an unauthorised article into any correctional facility or is found in
possession thereof in any correctional facility;

(d) interferes with or obstructs any staff member in the execution of any duty;
(e) fails to obey any lawful or reasonable order or instruction given by any staff

member;
(f) without authority speaks or makes contact with any inmate;
(g) contravenes or fails to comply with any provision of this section which it is his

or her duty to comply; or
(h) attempts to commit any offence provided for in this section,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

(2) Any inmate who—
(a) by any act or omission causes prejudice to the good order and military

discipline;
(b) neglects or fails to obey any order or instruction issued in terms of this Act or

disobeys any lawful command given to him or her by a staff member;
(c) neglects or fails to comply with any condition on which he was released on

parole or to return to the correctional facility after the period for which he was
released on parole has lapsed or by the time such period expires;

(d) aids, abets, induces, incites, instigates, instructs or commands any other
inmate to commit any offence provided for in this section; or

(e) attempts to commit any offence referred to in this section,
is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 10 years.

Offences relating to fingerprints and related matters

78. Any person who is subject to this Act who, with regard to any finger prints, palm
prints, foot prints, body prints or photographic images provided for in this Act—

(a) uses or allows the use of such finger prints, palm prints, foot prints, body
prints or photographic images for any purpose that is not related to the
detection of crime, the investigation of an offence, the identification of
missing persons, the identification of unidentified human remains or the
conducting of a prosecution;

(b) tampers with or manipulates such finger prints, palm prints, foot prints, body
prints, images or the relevant process; or

(c) falsely claims such finger prints, palm prints, foot prints, body prints or
images to have been taken from a specific person whilst knowing them to have
been taken from another person or source,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 15 years.

Torture

79. Any person who is subject to this Act who—
(a) commits torture;
(b) attempts to commit torture; or
(c) incites, instigates, commands or procures any person to commit torture,

is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 30 years.

Dishonesty and plagiarism

80. Any member who commits any form of dishonesty, including plagiarism, during
examinations, assessments, tests, research or assignments, is guilty of an offence and
liable on conviction to imprisonment for a period not exceeding 10 years.

Conclusion of contracts

81. Any member who concludes any contract that entails a legal obligation for, or
binds, the Department to another party to the contract without—

(a) prior authority of his or her Officer Commanding or commanding officer; or

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(b) following the prescribed processes,
is guilty of an offence and liable on conviction to imprisonment for a period not
exceeding 30 years.

SCHEDULE 2

MILITARY DISCIPLINARY HEARING ACTS
OF MISCONDUCT

Absence without leave and non-attendance where required to attend

1. Any member who—
(a) is absent without leave for a period not exceeding nine days;
(b) fails to appear at a place of parade or duty or at any other place appointed by

his or her Officer Commanding or commanding officer, or leaves any such
place without good and sufficient cause;

(c) without good and sufficient cause goes into any prohibited area or beyond the
fixed confines of his or her camp; or

(d) being required to attend any school or other educational institution, whether
civilian or otherwise, fails to attend thereat or absents himself or herself there
from without leave,

is, upon being found guilty of such misconduct, liable to one or a combination of not
more than three of the sanctions provided in section 124 of this Act.

Losing kit or equipment

2. Any member who fails to produce when required, his or her kit or equipment or any
public property or any property issued to him or her at public expense, excluding
controlled items or items exceeding the value of R5 000.00, for personal use in the
execution of his or her duties is, upon being found guilty of such misconduct, liable to
one or a combination of not more than three of the sanctions provided in section 124 of
this Act.

Causing damage to or destruction of public property

3. Any member who—
(a) commits any act which causes or is likely to cause damage to or the

destruction of public property or property belonging to any institution,
excluding property exceeding the value of R5 000.00; or

(b) omits to take action to prevent damage to or destruction of public property or
property belonging to any institution, excluding property exceeding the value
of R5 000.00,

is, upon being found guilty of such misconduct, liable to one or a combination of not
more than three of the sanctions provided in section 124 of this Act.

Deficiencies in stores

4. Any member who, being responsible for stores, stocks or monies in any Defence
Force store, office or institution, so performs his or her duties as to cause any deficiency
in such stores, stocks or monies not exceeding the value of R5 000.00 is, upon being
found guilty of such misconduct, liable to one or a combination of not more than three
of the sanctions provided in section 124 of this Act.

Acts of misconduct in relation to military disciplinary hearing

5. (1) Any member who—
(a) having been duly instructed or warned to attend as a witness before a military

disciplinary hearing, fails to attend or to remain in attendance until authorised
to leave;

(b) being present at a military disciplinary hearing after having been duly
summoned or warned to attend as a witness, refuses to be sworn or to affirm;

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(c) when giving evidence at a military disciplinary hearing, refuses to answer any
questions which in law he could be compelled to answer, or refuses or fails to
produce any document or thing in his or her possession or under his or her
control which in law he could be compelled to produce; or

(d) uses threatening or insulting language at a military disciplinary hearing or
wilfully causes a disturbance or interruption thereat or wilfully commits any
other act calculated or likely to bring such military disciplinary hearing into
contempt, ridicule or disrepute,

is, upon being found guilty of such misconduct, liable to one or a combination of not
more than three of the sanctions provided in section 124 of this Act.

False evidence before military disciplinary hearing

6. Any member who at a military disciplinary hearing gives false evidence is, upon
being found guilty of such misconduct, liable to one or a combination of not more than
three of the sanctions provided in section 124 of this Act.

Refusing to answer questions or produce documents, or giving false evidence at
military disciplinary hearings or boards of inquiry

7. (1) Any member who—
(a) having been duly summoned or warned to attend as a witness before a military

disciplinary hearing or board of inquiry, fails to attend or to remain in
attendance until authorised to leave;

(b) being present at a military disciplinary hearing or board of inquiry after
having been duly summoned or warned to attend as a witness, fails or refuses
to be sworn or to affirm;

(c) when giving evidence at a military disciplinary hearing or board of inquiry,
refuses to answer any questions which in law he or she could be compelled to
answer, or refuses or fails to produce any document or thing in his or her
possession or under his or her control which in law he or she could be
compelled to produce; or

(d) uses threatening or insulting language at a board of inquiry or military
disciplinary hearing, or wilfully causes a disturbance or interruption thereat or
wilfully commits any other act calculated or likely to bring the recording
officer, board of inquiry or officer conducting a military disciplinary hearing
into contempt, ridicule or disrepute,

is, upon being found guilty of such misconduct, liable to one or a combination of not
more than three of the sanctions provided in section 124 of this Act.

(2) Any member who at any investigation in terms of this Act wilfully gives false
evidence is, upon being found guilty of such misconduct, liable to one or a combination
of not more than three of the sanctions provided in section 124 of this Act.

Conduct to prejudice of military discipline

8. (1) Any member who causes prejudice to good order and military discipline is,
upon being found guilty of such misconduct, liable to one or a combination of not more
than three of the sanctions provided in section 124 of this Act.

(2) ‘‘Prejudice to good order and military discipline’’ includes but is not limited to the
acts of—

(a) fraternisation—
(i) with any learner or with any member under command;

(ii) between directing staff of a training institution or unit;
(iii) between students or learners attending a training institution or unit;
(iv) between superior officers and subordinates;
(v) between deployed members during deployments or exercises;

(vi) with another person during deployments or exercises; or
(vii) with the spouse of another member;

(b) gambling on or within military property or premises;
(c) the consumption of liquor or an intoxicating substance whilst on duty or

during office hours whilst on deployments, operations or training exercises;
(d) smelling of liquor whilst on duty or during office hours whilst on

deployments, operations or training exercises;

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(e) non-compliance with Defence Force dress regulations;
(f) conviction by any civilian court of offences relating to narcotic or dependence

forming substances;
(g) lending or borrowing of money from or to a subordinate member;
(h) habitual late arrival at work or places of duty;
(i) general untidiness in personal appearance and work environment;
(j) tainting the image and good name of the Defence Force or members by means

of false verbal or written accusations;
(k) unauthorised communication with media on official matters;
(l) prejudicing the administration, discipline or efficiency of a department, office

or institution of the State;
(m) non-declaration of gifts, where declaration is required;
(n) misusing his or her position in the Defence Force for personal gain or favour,

or to promote or to prejudice the interest of any political party;
(o) performs poorly or unsatisfactorily for reasons other than incapacity;
(p) without authority sleeping whilst on duty;
(q) indolent behaviour; or
(r) failure to follow channels of command.

Endangering lives or safety of self or others

9. Any member who endangers or potentially endangers the lives of himself or herself
or others by disregarding safety, fire rules or regulations, including emergency
evacuation or bomb drills is, upon being found guilty of such misconduct, liable to one
or a combination of not more than three of the sanctions provided in section 124 of this
Act.

Performing of unauthorised work

10. Any member who, without written official approval, performs work for
compensation in a private capacity for another person or organisation either during or
outside working hours is, upon being found guilty of such misconduct, liable to one or
a combination of not more than three of the sanctions provided in section 124 of this Act.

Unauthorised firearms or dangerous weapons

11. Any member who carries or keeps a private firearm, a dangerous weapon or
unauthorised ordnances on military property or premises without authority is, upon
being found guilty of such misconduct, liable to one or a combination of not more than
three of the sanctions provided in section 124 of this Act.

Refusal to obey security regulations

12. Any member who fails to obey security regulations is, upon being found guilty of
such misconduct, liable to one or a combination of not more than three of the sanctions
provided in section 124 of this Act.

Failure to obey domestic rules

13. Any member who fails to obey the domestic rules of mess or wardroom facilities,
living quarters, military sport facilities or other military institutions or units is, upon
being found guilty of such misconduct, liable to one or a combination of not more than
three of the sanctions provided in section 124 of this Act.

Acts of misconduct in relation to smoking

14. Any member who, at any time, smokes on military property or premises outside
a designated smoking area or who smokes in a military vehicle is, upon being found
guilty of such misconduct, liable to one or a combination of not more than three of the
sanctions provided in section 124 of this Act.

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Acts of misconduct relating to driving of military vehicles

15. Any member who drives a military vehicle, flies an aircraft or steers a vessel after
having consumed any amount of liquor or intoxicating substance or smelling of liquor
is, upon being found guilty of such misconduct, liable to one or a combination of not
more than three of the sanctions provided in section 124 of this Act.

Computer-related acts of misconduct

16. Any member who, without the necessary authority, gains access to or downloads
onto any official computer or electronic storage device, any software or programmes,
including computer games, pornographic material, music or other non-official material
is, upon being found guilty of such misconduct, liable to one or a combination of not
more than three of the sanctions provided in section 124 of this Act.

Failure to advise on change of address or personal particulars

17. Any member who neglects to inform the relevant authority of his or her change of
address or other particulars as may be required is, upon being found guilty of such
misconduct, liable to one or a combination of not more than three of the sanctions
provided in section 124 of this Act.

Misconduct related to firearm

18. Any member who—
(a) fails to maintain or clean a firearm issued to him or her;
(b) negligently discharges a firearm under training circumstances;
(c) discharges a firearm contrary to specific command under training circum-

stances;
(d) fails to execute safety precautions and drills applicable to a specific firearm;
(e) contrary to specific command, cocks a firearm whilst loaded with live

ammunition under training circumstances;
(f) without authority, possesses ammunition, including ball, blank, practice or

drill, detonators, explosives, gases, blinds, shrapnel, grenades or bombs under
training circumstances;

(g) without authority, discharges pyrotechnics or munitions under training
circumstances;

(h) fails to declare ammunition, detonators, explosives, gases, blinds, shrapnel,
grenades or bombs under training circumstances when required to do so;

(i) fails to properly complete an ammunition expenditure certificate or completes
such certificate contrary to actual expenditure; or

(j) fails to comply to shooting range practices, orders or instructions,
is, upon being found guilty of such misconduct, liable to one or a combination of not
more than three of the sanctions provided in section 124 of this Act.

Conclusion of contracts

19. Any member who concludes any contract that entails a legal obligation for, or
binds the member to another party to the contract, including a marriage contract, during
deployment or operation without prior authority of his or her Officer Commanding or
commanding officer is, upon being found guilty of such misconduct, liable to one or a
combination of not more than three of the sanctions provided in section 124 of this Act.

Prohibited physical relationship

20. Any member who engages in any physical or sexual relationship with any person
whilst on deployment or operation is, upon being found guilty of such misconduct, liable
to one or a combination of not more than three of the sanctions provided in section 124
of this Act.

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Escape from custody

21. Any prisoner of war who escapes from lawful custody is, upon being found guilty
of such misconduct, liable to one or a combination of not more than three of the
sanctions provided in section 124 of this Act.

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SCHEDULE 3

REPEAL OF ACTS

Number and year
of law

Short title Extent of repeal

Act No. 44 of 1957

Act No. 16 of 1999

Defence Act, 1957

Military Discipline Supplementary
Measures Act, 1999

The whole.

The whole.

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MEMORANDUM ON THE OBJECTS OF THE MILITARY
DISCIPLINE BILL

1. BACKGROUND

1.1 The Military Discipline Bill, 2019 (‘‘Bill’’), seeks to provide for effective
administration of military justice and maintenance of discipline in the
Defence Force. The military is an organisation that by its nature requires
command and control by commanders over the members in order to maintain
discipline and build a strong force. The Constitution, 1996, requires that the
Defence Force be structured and managed as a disciplined military force.

1.2 The Military Discipline Supplementary Measures Act, 1999, has to a certain
extent dealt with the discipline matters of the members of the Defence Force.
It has since emerged that the aforesaid Act does not adequately deal with all
matters of discipline, especially judicial appointment, administration of
courts, military police services and the internal disciplinary matters at the unit
level. In order to enact legislation that would attend to all matters in one
package, the Department of Defence and Military Veterans (‘‘Department’’)
has therefore embarked on the process of drafting the Bill to fill the vacuum
left by the Military Discipline Supplementary Measures Act, 1999.

2. OBJECTS OF THE BILL

The Bill addresses three crucial issues, namely the administration of the military
judicial system, the creation and appointment of the military police services and
disciplinary hearings at the unit level in the Defence Force. In this regard, the Bill
aims to provide for effective administration of the military justice system and
maintenance of discipline in the Defence Force, to establish and regulate military
courts and the appointment of judicial officers and court officials and for the
appointment of the Judge Advocate General and Provost Marshal General of the
Defence Force and administrative processes.

3. CHAPTER BY CHAPTER ANALYSIS

3.1 Chapter 1

This Chapter contains provisions dealing with the objects and application of
the Bill and with the extra-territorial jurisdiction of the Bill for all members of
the Defence Force and all persons attached to the Defence Force. In the case
of a conflict between the envisaged Military Discipline Act and the provisions
of any other law, except the Constitution or an Act expressly amending the
envisaged Act, the provisions of the envisaged Military Discipline Act must
prevail.

3.2 Chapter 2

This Chapter 2 provides for the establishment of a military court system which
comprises the following courts:

• Court of Military Appeals;

• Court for Senior Military Judicial Reviews;

• Court of Military Judicial Reviews;

• Court of Senior Military Judge; and

• Court of Military Judge.

Furthermore, this Chapter provides for the composition and jurisdiction of the
aforementioned courts. Every military court must exercise its jurisdiction and
powers in accordance with the spirit of the Constitution. The Chapter also
provides for the appointment by the presiding Senior Military Judge or

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Military Judge, of not more than two military assessors who, in his or her
opinion, have the necessary experience in the administration of justice or
skills in any matter which may be considered at the trial. A court of Military
Appeals is the highest military court and a judgment thereof binds all other
military courts.

3.3 Chapter 3

This Chapter deals with the appointment of the Judge Advocate General by
the Minister, the Minister’s powers in respect of assignment of functions,
functions of the Judge Advocate General, period of appointment of Military
Judges and Military Review Judges as well as the functions of the military
Prosecution Counsel and Defence Counsel, assignment of Director, Senior
Staff Officer Military Defence Counsel and Military Law Practitioners, local
representative of Judge Advocate General, duties of Military Judges, Senior
Military Judges, Military Judicial Review Judges and Senior Military Judicial
Review Judges.

3.4 Chapter 4

This Chapter confirms the jurisdiction of civilian courts to try a person for an
offence and impose a punishment and the furnishing of particulars of the
outcome of a trial by the registrar or clerk of such a court to the Director
Military Prosecutions or to report the outcome of such case to the relevant
commanding officer or Officer Commanding of the affected member.

3.5 Chapter 5

This Chapter deals with the arrest, warning and confinement of persons who
are subject to the envisaged Military Discipline Act. The Chapter further
provides for the arrest of members of the Defence Force with or without a
warrant. Every person arrested and not released must, after he or she has been
handed over to the Disciplinary Adjutant of his or her unit or arraigned before
a military court, be kept in confinement.

3.6 Chapter 6

This Chapter makes provision for investigations and pre-trial procedures. It
provides for the search of arrested persons, searches with or without a warrant
as well as the forfeiture and disposal of seized property after the conclusion of
the military trial proceedings. Chapter 6 further provides for the procedures
during pre-trial investigations by the military police, civilian police,
Disciplinary Adjutant or Prosecution Counsel.

3.7 Chapter 7

This Chapter deals with the arrest of accused persons and their appearance
before military courts. This includes the remand in custody of an accused and
the release of an accused due to non-arraignment.

3.8 Chapter 8

This Chapter makes provision for the right of an accused person to legal
representation of his or her own choice at his or her own expense and the right
of the accused person to be allocated a Military Defence Counsel at State
expense. The Chapter further provides for various types of sentences, fines,
declaratory orders and alternative punishments that a military court is
competent to impose.

3.9 Chapter 9

This Chapter deals with the promulgation and execution of sentences and
orders, and matters related to the correctional confinement and segregation of

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accused and convicted persons in a correctional centre, military prison,
military correctional facility, military police cell, military police detachment
or military lock-up.

3.10 Chapter 10

This Chapter provides for appeals and reviews. Every person who is convicted
and sentenced by a military court has the right to the automatic, speedy and
competent review of the proceedings of his or her trial or inquiry by a Review
Authority such as the Court of Military Appeals, Court of Senior Military
Judicial Reviews or Court of Military Judicial Reviews. An offender may
lodge an appeal or submit an application for review to the Court of Military
Appeals on the findings, sentences, court orders and substantial irregularities
in military court proceedings.

3.11 Chapter 11

This Chapter provides for the composition and jurisdiction of military
disciplinary hearings and the duties of military police officials with regard to
allegations of misconduct, the rights of implicated members, evidence,
attendance of witnesses at military disciplinary hearings, sanctions and orders
of military disciplinary hearings.

3.12 Chapter 12

This Chapter provides for general military policing. Furthermore, the Chapter
provides for the military policing powers, functions and duties, including
municipal policing powers, functions and duties vested in the Chief of the
Defence Force for purposes of enforcing the envisaged Military Discipline
Act or any other law, including the common law, regarding military property
or premises and any person who is subject to the envisaged Act or an
employee of the Defence Force or the Department, or with regard to military
property or premises. The Chapter also deals with the appointment of, and
military policing powers and duties of, the Provost Marshal General.

3.13 Chapter 13

This Chapter contains general provisions such as the suspension by a
commanding officer or Officer Commanding of favourable personnel actions
or privileges of a member who is the subject of a criminal investigation
relating to civilian or military offences or who is the subject of any military
disciplinary or criminal action, or any relevant process, enquiry or application
which could lead to his or her discharge or dismissal. The Chapter further
provides for corrective training, delegation of powers of the Judge Advocate
General to a member or suitable person, appointment or enlistment in the
Defence Force and their database, regulations, rules, transitional provisions,
repeal of laws, short title and commencement.

4. SCHEDULES

Schedule 1 to the envisaged Military Discipline Act lists the disciplinary and other
military offences in terms of which a person who is subject to the envisaged Act
may be charged and the sentences which a military court may impose for such
offences. Schedule 2 lists the acts of misconduct over which a military disciplinary
hearing has jurisdiction. Furthermore, Schedule 3 lists the laws which will be
repealed.

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5. CONSULTATION

Various consultations have been conducted within the Department and the Reserve
Force Council.

6. FINANCIAL IMPLICATIONS

None.

7. ORGANISATION AND PERSONNEL IMPLICATIONS

The Bill seeks to transform the military justice system which is already staffed and
has resources. It is therefore not envisaged that any new human or logistical
resources will be required in the execution of these functions.

8. COMMUNICATION IMPLICATIONS

The proposals contained in the Bill were sufficiently canvassed with the affected
internal stakeholders and it is envisaged that further communication will be dealt
with in accordance with the chains of command of the Department.

9. CONSTITUTIONAL IMPLICATIONS

None.

10. VULNERABLE GROUPS

The Bill will enhance the protection of members of the Defence Force and respect
for their human rights.

11. PARLIAMENTARY PROCEDURE

11.1 The Constitution prescribes procedures for the classification of Bills,
therefore a Bill must be correctly classified so that it does not become
inconsistent with the Constitution.

11.2 We have considered the Bill against the provisions of the Constitution relating
to the tagging of Bills and against the functional areas listed in Schedule 4
(functional areas of concurrent national and provincial legislative compe-
tence) and Schedule 5 (functional areas of exclusive provincial legislative
competence) to the Constitution.

11.3 The established test for classification of a Bill is that any Bill with provisions
which in substantial measure fall within a functional area listed in Schedule 4
to the Constitution must be classified in terms of that Schedule. The process is
concerned with the question of how the Bill should be considered by the
provinces and in the National Council of Provinces. Furthermore, how a Bill
must be considered by the provincial legislatures depends on whether it affects
the provinces. The more a Bill affects the interests, concerns and capacities of
the provinces, the more say the provinces should have on the contents of the
Bill.

11.4 Therefore, the issue to be determined is whether the provisions contained in
the Bill, in substantial measure, fall within a functional area listed in Schedule
4 to the Constitution.

11.5 The Bill seeks to provide for the effective administration of the military justice
system and maintenance of discipline in the Defence Force, to establish and
regulate military courts and the appointment of judicial officers and court
officials, to provide for the appointment of a Judge Advocate General and
Provost Marshal General of the Defence Force and administrative processes.

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11.6 The provisions of the Bill have been carefully examined to establish whether,
in substantial measure, they fall within any of the functional areas listed in
Schedule 4 to the Constitution.

11.7 In our view, the subject matter of the provisions of the Bill do not fall within
any of the functional areas listed in Schedule 4 to the Constitution and it does
not affect provinces whereby the procedure set out in section 76 of the
Constitution would be applicable.

11.8 We are therefore of the opinion that since the Bill does not deal with any of the
matters listed in Schedule 4 to the Constitution, it must be dealt with in
accordance with the procedure set out in section 75 of the Constitution.

11.9 We are also of the opinion that it is not necessary to refer the Bill to the
National House of Traditional Leaders in terms of section 18(1)(a) of the
Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of
2003), since it does not contain provisions pertaining to customary law or
customs of traditional communities.

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