The President of the Ordinary Court Martial, Lieutenant-Colonel Mardon N.O and Others v Freedom of Expression Institute and Others

Two members of the South African National Defence Force (SANDF) were charged before an ordinary court martial under the Defence Act 44 of 1957 and the Military Discipline Code in relation to military intelligence source reports. The presiding officer ordered that the entire proceedings be held in camera and classified as secret. Media entities and a civil society organisation sought access to the proceedings and records, relying on the constitutional right to freedom of expression and open justice, but were refused locus standi by the court martial. The respondents successfully challenged the constitutionality of the legislative framework governing ordinary courts martial in the Cape High Court, which declared several provisions unconstitutional. Before the Constitutional Court could confirm the order, new legislation—the Military Discipline Supplementary Measures Act 16 of 1999—came into force, repealing and replacing the impugned provisions and terminating pending court martial proceedings.

No order was made in respect of the appeal and confirmation proceedings, and no order as to costs was made before the Constitutional Court.

The case is significant for clarifying that the Constitutional Court has a discretion not to decide confirmation or appeal proceedings under section 172(2) of the Constitution where the matter has become moot due to legislative repeal. It affirms the principle that courts should avoid deciding abstract or academic constitutional questions where no practical effect will follow.