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

Third and fourth respondents, members of the South African National Defence Force (SANDF), appeared before an ordinary court martial under the Defence Act 44 of 1957 and the Military Discipline Code on charges relating to military intelligence source reports. On 4 December 1996, the court martial president (first appellant) ordered that proceedings be held in camera and classified as secret. On 7 April 1997, first appellant ruled that the Freedom of Expression Institute (first respondent) and M & G Media (second respondent) lacked locus standi to seek access to records and apply for open proceedings. The respondents challenged these orders in the Cape High Court, arguing that the legislative framework governing ordinary courts martial was unconstitutional. On 18 December 1998, a Full Bench of the High Court (Hlophe ADJP, Traverso J and Gihwala AJ) declared the challenged provisions unconstitutional. Before the Constitutional Court could hear the confirmation/appeal, the Military Discipline Supplementary Measures Act 16 of 1999 came into force on 28 May 1999, repealing and replacing the impugned provisions and terminating all pending court martial proceedings.

• Whether the Constitutional Court should exercise its discretion to determine an appeal/confirmation under section 172(2) of the Constitution where the impugned legislation has been repealed and replaced before the Court's determination
• Whether the Court should decide matters that have become moot due to new legislation
• What practical effect, if any, a determination on the constitutional invalidity of repealed provisions would have on the parties and others
• The retrospective application of orders of constitutional invalidity to completed proceedings
• Whether a judge who is a partner in a firm acting as correspondent attorneys for a party is disqualified from sitting (note: this issue was not ultimately decided)

No order was made in respect of the appeal and confirmation proceedings. No order was made with regard to costs before the Constitutional Court. The parties agreed to pay their own costs in the Constitutional Court, and by agreement, the third appellant would pay costs in the High Court proceedings.

Section 172(2) of the Constitution does not oblige the Constitutional Court to determine all appeals or confirmations of orders of constitutional invalidity brought before it. At least where a provision declared invalid by a High Court has subsequently been repealed by an Act of Parliament, the Court has discretion to decide whether to deal with the matter. In exercising this discretion, the Court should consider whether any order it may make will have any practical effect either on the parties or on others. Where new legislation replaces all relevant aspects of the legislative framework upon which a dispute was based, and the basis upon which parties approached the High Court has disappeared, the grant of relief and confirmation of constitutional invalidity can serve no purpose. In such circumstances, the Court may decline to hear the matter. As a general principle, an order of invalidity should have no effect on cases which have been finalized prior to the date of the order of invalidity, in the interests of justice, good government, avoiding dislocation to the administration of justice, and ensuring a smooth transition.

Langa DP observed that it remains open to a person who has been convicted under an unconstitutional provision before the commencement of new remedial legislation to approach the Court for relief, citing National Coalition for Gay and Lesbian Equality v Minister of Justice. The Court noted that the transitional provisions of the new Act (section 44) did not expressly deal with situations where proceedings had been finalized and were not subject to appeal or review, raising issues of retrospectivity. On the issue of judicial disqualification raised regarding Gihwala AJ's connection to the correspondent attorneys, the Court noted that the General Council of the Bar contended there was absolute disqualification where a judge is a partner in a firm acting as correspondent, while the Law Society argued there was no absolute disqualification if parties consented. However, the Court did not resolve this issue as it had become irrelevant due to the matter being moot. The Court noted that where the need for certainty regarding constitutional invalidity falls away due to repeal, there may still be a need to give judgment to resolve disputes between parties or for other reasons, suggesting a contextual approach to the exercise of discretion.

This case establishes important principles regarding the Constitutional Court's discretion in dealing with matters that have become moot. It clarifies that section 172(2) of the Constitution does not create an absolute obligation for the Constitutional Court to determine all appeals or confirmations of constitutional invalidity where the legislative provision has been repealed before the Court's determination. The judgment emphasizes a practical approach, requiring the Court to consider whether its order would have any practical effect on the parties or others. The case also demonstrates the Court's approach to retrospectivity of constitutional invalidity orders, following principles from S v Zuma and S v Bhulwana that finalized cases should generally not be disturbed, balancing individual interests against avoiding dislocation to the administration of justice. The judgment reflects judicial economy and the principle that courts should not decide abstract or academic questions where the underlying dispute has been resolved by legislative intervention.