Lieutenant Colonel KB O'Brien NO v The Minister of Defence and Military Veterans and Others

Lieutenant Colonel O'Brien, a former military judge, repeatedly raised concerns in open court between 2014-2016 about the constitutionality of brief renewable assignments of military judges (usually one year at a time) and their impact on judicial independence. In August 2016, while presiding over two military criminal trials (S v Mokoena and S v Mabula), he issued extensive orders and obiter dicta comments criticizing the assignment system, finding unreasonable delays caused by the Minister's failure to assign military judges, and directing investigations into senior military officers and the Minister herself. He ordered service of his rulings on various bodies including the President, Judicial Service Commission, and Bar Council. Following meetings with the Director: Military Judges expressing dissatisfaction with his conduct, he recused himself from both matters in October 2016. A Board of Inquiry was convened to investigate his conduct in September 2016. In October 2018, the Minister and other respondents launched a review application to set aside his orders. O'Brien opposed the review on grounds of delay, lack of standing, and absence of gross irregularity, while simultaneously bringing a counter-application challenging the constitutionality of certain provisions of the Defence Act and Military Discipline Supplementary Measures Act (MDSMA).

• Whether there was unreasonable delay in bringing the review application and whether condonation should be granted
• Whether the Minister and other respondents had standing to review orders in criminal proceedings to which they were not parties
• Whether the military judge's conduct constituted a gross irregularity justifying review
• Whether sections 101 and 102 of the Defence Act 42 of 2002 (regarding Boards of Inquiry investigating military judges) are constitutional
• Whether section 17 of the MDSMA (regarding removal of military judges by the Minister) is constitutional
• Whether section 15 of the MDSMA permits renewable assignments of military judges and whether such practice is constitutional
• Whether costs should be awarded against a judicial officer in the absence of bad faith
• Application of the Biowatch principle on costs in constitutional matters

The appeal was dismissed save for setting aside paragraphs 6 and 10 of the high court's order (the costs orders against the appellant). The review of the military judge's orders of 25, 29 August 2016 and 14 October 2016 was upheld. The counter-application challenging the constitutionality of various statutory provisions was dismissed.

A military judge commits a gross irregularity justifying review when he misconceives the nature of the judicial inquiry, decides matters not properly before him, makes orders affecting persons without hearing them, and allows personal views and grievances to intrude upon judicial decision-making. Such conduct prevents a fair trial of the issues actually in dispute. Courts will not decide abstract or hypothetical constitutional questions where there is no live controversy; cases must be "ripe" with an actual dispute requiring resolution. Parties directly affected by court orders have standing to seek review even if not parties to the original proceedings, particularly where orders direct investigations or actions against them without affording them a hearing. The reviewability of judicial decisions extends to orders that exceed jurisdiction or constitute irregularities in the conduct of proceedings, not merely incorrect decisions on the merits. Costs orders against judicial officers require proof of bad faith or serious misconduct; the ordinary rule that costs follow the result does not automatically apply.

The court observed that judges speak through their judgments and must stand guard over themselves in performing their demanding social duty. Basic tenets of judicial propriety and fairness require judges to maintain the usual disinterested role and decide matters from a position of relative detachment. Language, tone, and manner in the courtroom are important. Judges as members of civil society may hold views on issues of the day but are not entitled to inject personal views into judgments or express political preferences from the bench. While the court expressed that judges should not use courts as forums for "awareness campaigns", it noted the importance of judicial independence in the military justice system. The court also noted, without deciding, that orders requiring parties to take action must be clear and accessible - impermissibly vague provisions violate the rule of law. The judgment emphasized that court orders bind all to whom they apply and must be obeyed until properly set aside, with parties entitled to know with clarity what is required of them. The court commented that insinuations that a judge may "adjust a judgment" to secure further assignments are "nothing short of scandalous" absent proper factual foundation.

This case clarifies important principles regarding: (1) the reviewability of military judges' orders and decisions; (2) the limits of judicial commentary and obiter dicta - judges must confine themselves to issues properly before them and cannot use the courtroom as a forum for personal campaigns; (3) the doctrine of gross irregularity in review proceedings - a judge who misconceives the nature of the inquiry and allows personal views to intrude commits a gross irregularity even in the absence of bad faith; (4) standing in review applications - parties directly affected by court orders have standing even if not parties to the original proceedings; (5) the restraint courts exercise in deciding abstract or hypothetical constitutional questions - courts decide concrete controversies, not advisory opinions; and (6) costs against judicial officers require proof of bad faith or serious misconduct. The judgment reinforces judicial restraint, impartiality, and the proper boundaries of judicial decision-making within the military justice system established under the Military Discipline Supplementary Measures Act 16 of 1999.