Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
8 July 2015

Deployment of troops in South Africa – is it lawful?

Most South Africans probably support the continued deployment of South African National Defence Force (SANDF) soldiers inside South Africa to help “combat crime”. But the ongoing deployment of troops – trained to fight and kill, not to investigate crime and arrest alleged criminals – inside the borders of South Africa alongside the South African Police Service (SAPS) is undesirable. It may also be illegal.

During the xenophobic attacks in April 2015, President Jacob Zuma announced the SANDF would operate within the country “to assist the South African Police Service (SAPS) to maintain law and order in KwaZulu-Natal, Gauteng and any other area in the Republic of South Africa as the need arises”. Reports claim this internal deployment of members of the army has been extended until 31 March 2016.

In terms of section 205(3) of the Constitution the police service (NOT the military) is tasked with preventing, combating and investigating crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. Because we are a constitutional democracy, the military should only assist the SAPS in the most exceptional circumstances and only in accordance with strict procedures set out in section 201 of the Constitution, read with section 18 and 19 of the Defence Act.

Section 201 of the Constitution states that only the President, as head of the national executive, may authorise the employment of the defence force in co-operation with the police service. When the defence force is employed with the SAPS inside South Africa, the President:

must inform Parliament, promptly and in appropriate detail, of (a) the reasons for the employment of the defence force; (b) any place where the force is being employed; (c) the number of people involved; and (d) the period for which the force is expected to be employed.

If you read these sections together – as you must – they need to be understood to prohibit the deployment of the Defence Force in South Africa in broad and general terms. When the President deploys soldiers in South Africa he or she can only do so in a specifically designated area or areas, for a specific purpose and a specific period.

To read these provisions differently would render them meaningless and would make a nonsense of the requirements set out in section 201 for the deployment of troops within South Africa. For example, it would allow the President merely to declare once-off that the SANDF is to be deployed in South Africa to help the police to maintain law and order in any area of South Africa for the next 50 or 100 years. If this were to be legally acceptable, section 201(2) would in effect be no more than flummery with no discernable purpose.

I would argue that for this reason section 201(2) of the Constitution requires the specific authorisation by the President to deploy troops in a specific area inside South Africa to ensure that the President remains accountable for his or her decision. Because a decision of this kind may be politically highly contentious – say if troops are deployed in Marikana or in an EFF stronghold – a President will have to take responsibility for the decision by saying in very specific terms where troops are being deployed, for what reason they are being deployed, how many are being deployed and for how long.

The President is elected by Parliament and is accountable to it. It is for this reason that the Constitution requires him or her to inform Parliament of the momentous decision to deploy soldiers inside South Africa and to do so in appropriate detail, stating when, where and how many soldiers will be deployed. If Parliament is unhappy with the deployment it can call the President to Parliament to account. Ultimately, the National Assembly has the power to remove the President from office if it feels the deployment of soldiers inside South Africa in a specific area for a specific purpose is politically unwise or undesirable.

But the National Assembly can only make a decision of this kind if it is provided with the detailed information of each deployment of soldiers as required by section 202(2) of the Constitution.

A general “catch-all” notice that troops may or may not be deployed anywhere in South Africa over the next 6 months, one year or 50 years as the need may arise would therefore not comply with the provisions contained in the Constitution.

Section 18 of the Defence Act states that “in addition” to the employment of the Defence Force by the President as authorised by section 201(2), the President or the Minister may authorise the employment of the Defence Force for service inside the Republic or in international waters, in order to: (a) preserve life, health or property in emergency or humanitarian relief operations; (b) ensure the provision of essential services; (c) support any department of state, including support for purposes of socio-economic upliftment; and (d) effect national border control.

I suspect this section may be unconstitutional as it grants the President powers that are specifically curtailed by the Constitution. But this is not of particular importance for present purposes as the SANDF have been deployed in co-operation with the SAPS in terms of section 201 of the Constitution, read with section 19 of the Defence Act.

Section 19(2) requires the Minister of Defence to give notice of the deployment by notice in the Government Gazette within 24 hours of the commencement of the deployment. This is an additional requirement to the notice the President needs to give to Parliament.

Section 19(3) then sets out strict procedures and criteria that must be met for such a deployment, stating that:

Service in co-operation with the South African Police Service: (a) may only be performed in such area or at such place as the President may order at the request of the Minister and the Minister of Safety and Security; … (c) must be performed in accordance with: (i) a code of conduct and operational procedures approved by the Minister; (ii)  such guidelines regarding: (aa) co-operation between the Defence Force and the South African Police Service; and (bb) co-ordination of command over and control of members of the Defence Force and the South African Police Service, as the Chief of the Defence Force and the National Commissioner of the South African Police Service may determine.

I have have not been able to determine whether President Zuma indeed informed Parliament of the deployment as required by the Constitution. It is also unclear whether the President has informed Parliament “in appropriate detail” of the reasons for the deployment and the specific places where the soldiers are being deployed. In the absence of such detailed notice to Parliament, the deployment would be invalid as it would not conform to the basic requirements for the deployment set by the Constitution.

I have not been able to determine whether the Minister had indeed given notice of the deployment in the Government Gazette. Nor have I been able to ascertain whether the deployment is being performed in accordance with a specific code of conduct and other guidelines for co-operation between the SANDF and the SAPS as required by the Defence Act.

It may be that both the President and the Minister of Defence have complies with their Constitutional and other legal duties every time troops are deployed to a specific area in South Africa for a specific purpose and for a specific period of time.

However, if the President and the Minister is relying on a general and vague “catch-all” notice about the deployment of troops “where and as the need arises”, they are almost certainly not complying with their legal obligations which, once again, would render the deployment unlawful.

Difficult question arise about the legal standing of our troops in such sitiuations. Are they acting illegally when they take part in operations inside South Africa which do not comply with the Constitution? Do they have a duty to refuse to obey an order to be deployed if that order is manifestly unlawfuyl? If they kill any civillians during such an operation, will they be criminally liable for murder?

Whatever the answers to these questions, it will be helpful if the Presidency and the Minister of Defence inform the public forthwith whether they are complying with their legal obligations and that they are not exposing our troops to unnecessary legal risks.

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