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MILITARY LEGAL SERVICES

MILITARY LEGAL SERVICES. AIM. TO REPORT ON THE MILITARY JUSTICE SYSTEM AND OUTPUTS FOR PERIOD 01 APRIL 2003 TO 31 MARCH 2004. SCOPE. INTRODUCTION MANDATE MLS MISSION MLS VISION MLS AIM WHAT THE MLS DOES MLS POSITION IN THE DOD MLS STRUCTURE LEGSATO BOUNDARIES / DISPERSION

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MILITARY LEGAL SERVICES

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  1. MILITARY LEGAL SERVICES

  2. AIM TO REPORT ON THE MILITARY JUSTICE SYSTEM AND OUTPUTS FOR PERIOD 01 APRIL 2003 TO 31 MARCH 2004

  3. SCOPE • INTRODUCTION • MANDATE • MLS MISSION • MLS VISION • MLS AIM • WHAT THE MLS DOES • MLS POSITION IN THE DOD • MLS STRUCTURE • LEGSATO BOUNDARIES / DISPERSION • MOST COMMON OFFENCES

  4. SCOPE (Cont’d) • COURT OF MILITARY APPEALS • COURTS OF (SENIOR) MILITARY JUDGE • DISCIPLINARY HEARINGS • DECISIONS NOT TO PROSECUTE • MILITARY JUDICIAL REVIEWS • CHARGES OUTSTANDING • PERSONNEL • REGULAR FORCE • RESERVE FORCE • LITIGATION • CHALLENGES

  5. INTRODUCTION

  6. INTRODUCTION • 18 DECEMBER 1998 - CPD JUDGEMENT • SOME PROVISIONS OF DEFENCE ACT, 1957, UNCONSTITUTIONAL • MDSMA CAME INTO OPERATION ON 28 MAY 1999, NEW MILITARY RULES OF PROCEDURE PROMULGATED ON 11 JUNE 1999 • FIRST SCHEDULE TO THE DEFENCE ACT, 1957 (MDC) RETAINED

  7. INTRODUCTION (Cont’d) • DRAFT MILITARY DISCIPLINE BILL (MDB) NEEDED TO CONSOLIDATE AND REFINE THE ABOVE • PROPOSALS SUBMITTED TO PLENARY DEFENCE STAFF COUNCIL (PDSC) NOVEMBER 2000, MAY 2002 AND APRIL 2003, AND COUNCIL OF DEFENCE (COD)

  8. MANDATE • AUTHORITY IS DERIVED FROM SECTIONS 200 (1) AND 198 (C), CONSTITUTION ACT 108 OF 1996 • TO CONTRIBUTE TO AN EFFECTIVE DEFENCE CAPABILITY WHICH IS DISCIPLINED AND FUNCTIONS IN COMPLIANCE WITH NATIONAL AND INTERNATIONAL LAW

  9. MLSMISSION TO ENSURE EFFECTIVE AND COMPREHENSIVE MILITARY LEGAL SERVICE AND SUPPORT THROUGH APPLICATION OF LAW AND THE PRINCIPLES OF JUSTICE

  10. MLS VISION TO BE THE HIGHLY PROFESSIONAL, LEGITIMATE, DEPLOYABLE AND SOLE PROVIDER OF MILITARY LEGAL SERVICES AND SUPPORT TO THE DOD

  11. MLS AIM TO PROVIDE PROFESSIONAL, LEGITIMATE AND DEPLOYABLE MILITARY LEGAL SERVICES AND SUPPORT COMMENSURATE WITH THE NEEDS OF THE DOD

  12. WHAT THE MILITARY LEGAL SERVICE DOES • Core Objective 1 • To provide professional, legitimate and deployable military legal advice and support services, excluding operational legal advice and support. • Output • An affordable, fully integrated, credible and acceptable, as well as deployable, military legal advice and support service.

  13. WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) • Core Objective 2 • To provide adequate military legal education, training and development, personnel, logistic, finance, systems management and general staff duties services to the MLS and to ensure military law training in the DOD. • Output • An affordable, deployable, fully integrated, effective and efficient services support to the MLS.

  14. WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 3 To ensure the availability of military judges and promote the professional and legitimate conduct of presiding officers at military trials wherever held. Output An affordable, deployable, credible, independent, impartial, efficient and fully integrated military judges service.

  15. WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 4 To provide a professional and legitimate military judicial review service to establish the validity of completed military trials and to monitor the implementation of review results wherever required. Output A credible, deployable, fully integrated, independent, impartial, effective and affordable military judicial review service.

  16. WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 5 To ensure the provision of a professional effective and legitimate military defence-counsel service wherever required. Output A credible, deployable, fully integrated, effective and affordable military defence-counsel service.

  17. WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 6 To provide professional, legitimate and deployable operational legal advice and support services wherever required. Output An affordable, fully integrated, sustainable and deployable operational military legal advice and support service.

  18. WHAT THE MILITARY LEGAL SERVICE DOES (Cont’d) Core Objective 7 To ensure the provision of a professional, effective and legitimate military prosecution service wherever required. Output An affordable, legitimate, credible, effective, deployable, fully integrated and acceptable military prosecution service.

  19. MLS POSITION IN THE DOD

  20. POSITION OF LEGAL CAPACITIES IN DOD ORG STRUCT MINISTER OF DEFENCE CHIEF OF THE NATIONAL DEFENCE FORCE SECRETARY FOR DEFENCE POLICY AND PLANNING ACQUISITION DIVISION DEFENCE INSPECTORATE SA ARMY SA AIR FORCE SA NAVY SAMHS FINANCE DIVISION D LEG S DAF JOINT OPERATIONS DIVISION DEFENCE INTELLIGENCE CD FS Sub-Dir Losses and Claims Mngmnt Section Contract Admin Sub-Dir Compliance Mngmnt JOINT SUPPORT DIVISION CORPORATE STAFF DIVISION EQUAL OPPORTUNITIES DIVISION MPA HRSC (D LABOUR & SERVICE RELATIONS) MILITARY LEGAL SERVICES DIVISION

  21. WHERE THE MLS FIT INTO THE SANDF C SANDF ETC CCS CDI CJ SUP CHIEFS OF SERVICES CJ OPS CDCC CMLS CDSP CFR CDR

  22. MLS STRUCTURE

  23. THE MILITARY LEGAL SERVICE’S • SYSTEM AND STRUCTURE FRAMEWORK • The MLS system has a head office (HO) component and regional satellite offices (Legsatos). • The HO component includes– • the Adjutant General (AG) responsible for the overall management, promotion, facilitation and co-ordination; • support staff responsible for planning, evaluating, directing and co-directing, • of all military legal services activities in accordance with • the provisions of the Military Discipline Supplementary Measures Act, 1999 (MDSMA).

  24. HO component (Cont’d) • A sub-system dedicated to the provision of legal advice and support to the military command on both a dedicated and deployable basis to ensure– • the presence of legal advisors to commanders in the field in accordance with the requirements of international law; • the continuous availability of legal advisors to Chiefs of the Services and military divisions for the provision of appropriate legal advice and support including assistance in respect of Service unique fields of law (eg Air Law; Maritime Law; and Medical Law); and • the continuous general rendering of those services to the South African National Defence Force (SANDF).

  25. HO component (Cont’d) • A sub-system providing– • prosecution decisions, policy and direction; and • the support required to ensure that all departmental investigations are facilitated and adequately completed. • This sub-system is independent as it is shielded from executive, command or other interference by the provisions of the MDSMA in consonance with the spirit of section 179 of the Constitution.

  26. HO component (Cont’d) • A sub-system responsible for the– • review of all trials and disciplinary hearings for validity, • regularity and fairness; and • facilitation of access to and the functioning of the Court • of Military Appeals (CMA). • This sub-system is independent as it is shielded • from executive, command or other interference by • the provisions of the MDSMA in consonance with the • spirit of section 165 of the Constitution.

  27. HO component (Cont’d) • A sub-system providing defence-counsel support, policy and direction which is independent as it is shielded from executive, command or other interference by the provisions of the MDSMA. • A sub-system responsible for ensuring that senior military judges and military judges are enabled to exercise their judicial functions with the requisite independence, impartiality, dignity, accessibility, effectiveness and competence. This sub-system is independent as it is shielded from executive, command or other interference by section 165 of the Constitution and the provisions of the MDSMA.

  28. HO component (Cont’d) • A sub-system responsible for– • the overall management of satellite offices; • co-ordinating all military legal services’ activities; • the development of the military legal services’ business, expenditure and related plans; • ensuring the obtaining and provision of law personnel to specification and the determining of their education, training and development needs; • the management and career planning of all law personnel in conjunction with the Service Chiefs;

  29. HO component (Cont’d) • the management of support staff; • the preparation, monitoring and control of the military legal service’s budget; • the administration of the Regular Force and Reserve Force components of the military legal services; • planning the provision of all services to be rendered by the military legal services; • ensuring the obtaining of all infra-structural, personnel, logistics, facilities, systems and other support including command and management information support;

  30. HO component (Cont’d) • the monitoring and evaluation of all services rendered, and the monitoring and evaluation of instruction in law within the DOD; • the provision of instruction in law as well as the training and education of law professionals and their support personnel in law offices; • the identification of law research needs and opportunities; and • the promotion and maintenance of professional standards amongst that personnel.

  31. MILITARY LEGAL SERVICES STRUCTURE

  32. LEGSATOS • Legsatos are structured to- • meet specific needs of places, areas, forces, deployments or situations where or wherein they are to function • ensure that staff assigned to military judicial, defence- counsel, judicial-review and prosecution functions retain their functional independence under direction of heads of independent sub-systems reflected above

  33. LEGSATO BOUNDARIES LIMPOPO Polokwane KWA-ZULU

  34. LEGSATO STRUCTURETHABA TSHWANE

  35. LEGSATO STRUCTUREBLOEMFONTEIN

  36. LEGSATO STRUCTUREWYNBERG

  37. LEGSATO STRUCTUREPOLOKWANE

  38. LEGSATO STRUCTUREDURBAN

  39. MOST COMMON OFFENCES

  40. MOST COMMON OFFENCES (01 APR 03 TO 31 MAR 04) • AWOL {SEC 14 (a) and (b) MDC} • USING THREATENING, INSUBORDINATE OR INSULTING LANGUAGE {SEC 17} • DISOBEYING LAWFUL COMMANDS OR ORDERS {SEC 19 (2) AND (5) MDC} • IMPROPER OR UNAUTHORISED USE OF PROPERTY {SEC 27 (b) MDC} • DRUNKENNESS {SEC 33 (a) and (b) MDC} • CONDUCT TO THE PREJUDICE OF MILITARY DISCIPLINE {SEC 46} • FRAUD

  41. MOST COMMON OFFENCES CASES REVIEWED (S/MJ AND DH) OVER PERIOD 01 APR 2003 - 31 MAR 2004 657 N/A 112 1 593 142 N/A N/A 00 - 01 4 231 5 007 2 727 01 - 02 02 - 03 2 162 1 021 992 247 N/A N/A N/A 163 435 121 N/A N/A 89 N/A

  42. EXISTING MILITARY COURTS • Court of Military Appeals • Courts of Senior Military Judge • Courts of Military Judge • Commanding Officer’s Disciplinary Hearings

  43. COURT OF MILITARY APPEALS

  44. COURT OF MILITARY APPEALS • Composition : An independent judicial body appointed by the Minister of Defence (Sec 7 MDSMA) • Present Structure: • Serving High Court Judge (Chairperson) • Appropriately qualified Regular Force Officer (Holds a degree in law) • Regular Force General or Flag Officer (Experienced in the conduct of operations)

  45. COURT OF MILITARY APPEALS • When sitting to consider matters involving either treason, murder, rape or culpable homicide committed outside the RSA or a contravention of section 4 or 5 of the MDC, a CMA will sit with a total of five (5) members, three (3) of whom will be High Court judges.

  46. COURT OF MILITARY APPEALS • Considers cases in the following circumstances: • Imprisonment (effective or suspended); • Cashiering or discharge with ignominy; • Dismissal or discharge; or • Any combination of the above punishments. • Must be reviewed by CMA and may not be executed before such review has been completed (Sec 34 MDSMA).

  47. COURT OF MILITARY APPEALS • In cases not covered by the previous circumstances, a convicted offender may apply, within prescribed time limits, for the review of his/her case. • Director Military Judicial Reviews (DMJR), if in doubt as to whether a finding or sentence should be upheld, may refer the case to the CMA.

  48. COURT OF MILITARY APPEALS • Competencies: Every person convicted and sentenced by a Military Court has a right to the speedy, automatic and competent review of its proceedings to ensure that those proceedings (including every finding, sentence or order) are either valid, regular, fair and appropriate, or remedied. • To this end, the CMA exercises powers akin to the High Court competencies on appeal and review. (Sec 8 MDSMA)

  49. COURT OF MILITARY APPEALS • Appointments. The active participants (who were appointed by the Minister of Defence on the recommendation of the AG)are at present as follows: • Chairperson and Alternate Chairpersons • Honourable Justice (Ms) L. Mailula; • Honourable Mr Justice I. Hussain; and • Honourable Judge President Mr Justice B. Ngoepe.

  50. COURT OF MILITARY APPEALS • Regular Force Members (qualified in law) • Brigadier General J.L. Larney, SA Army (Advocate) • Brigadier General S.B. Mmono, SA Army (Advocate) • Colonel (Ms) A.M. Kolbé, SAMHS and • Colonel C.J. Taljaard, SA Army (Attorney)

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