The Concourt, the military and arson

The Constitutional Court has again — for the third time in little more than a decade — become the deciding arena for matters concerning the military, its unions and the extent of its judicial authority. In 1999 the court ruled that unions had the right to exist in the armed forces; in 2001, that military courts had the authority to prosecute and sentence military personnel guilty of wrongdoing.

Last month, case number CCT 36/11 was registered with the Concourt. It signals the final chapter in a 12-year-old legal wrangle that first brought the contentious topic of trade unions in the military to prominence.

That was 1998 at a court martial convened at the Simonstown naval base. Two leading seamen, Donovan Leibrandt and Leotoane Rantai faced charges of arson and appeared before a tribunal presided over by air force lieutenant colonel Sarel Venter.

The proceedings began with the prosecutor withdrawing the charge against Leibrandt, a member of the fledgling South African National Defence Union (Sandu). The charge against Rantai, a former Umkhonto we Sizwe (MK) soldier and member of the also then unrecognised South African Security Forces Union (Sasfu) remained.

Neither of the men was asked to plead. Rantai’s attorney, Cecil Burgess, argued that the military did not, in terms of the constitution, have authority to try them.

Leibrandt’s attorney, Vincent Botto, also noted at the time: “If we win this argument, I suppose it would open the way for trade unions in the military, and I see no problem with that.”

Looking back on the case last year, Burgess, an ANC MP since 2004 and now the chair of parliament’s joint standing committee on intelligence, felt that the trial highlighted the problems of discipline and integration at the base.

In any event, Burgess pointed out, the charges relied on common purpose. Nobody alleged that Leibrandt or Rantai had set fire to an office at naval headquarters in February of that year.

However, both admitted that they had taken a badly burned leading seaman and former MK soldier, Donald Ramalahla to hospital, where he subsequently died. They maintained that Ramalahla had arrived at a mutual friend’s house, that they had wrapped him in a wet duvet, and driven him to hospital.

Controversially, the naval prosecution produced a confession — subsequently ruled inadmissable by the supreme court — and signed by Rantai after three-day’s of interrogation in the detention barracks. According to Burgess, the interrogation amounted to torture and Rantai admits to this day: “I would have signed anything at that stage.”

In September 1998 the case was adjourned for the military court to decide if it had the authority to conduct the trial. This was when Sandu was preparing a case for union recognition that was presented to the Concourt. In 1999 Sandu won and unions in the military became legal.

In the meantime, the military decided to approach the Concourt about the the authority of courts martial. That decision was handed down in 2001: military courts have the right to prosecute and sentence wrongdoers in the services.

Leibrandt and Rantai, members then of legally recognised trade unions, were not immediately affected. They continued to work in Simonstown, but the problems in the navy — and the military in general — did not disappear.

According to union members in both the army and navy, tensions between former guerilla fighters — with their tendency to question officers and orders — and former permanent force members remain. Several maintain that this is summed up by the treatment meted out to Leibrandt and Rantai.

Both men feel that their constitutional rights have been violated in what one of the attorneys who has dealt with their case describes as “a travesty”. This is sourced to October 2002 when, more than three years after the first “arson court martial” and a year after the Concourt ruling on military justice, both men again faced a court martial, charged with the same offence.

The military court admitted that it was responsible for the “rather long delay” in bringing the case. However, this delay meant that the matter had been delayed too long. Leibrandt and Rantai were acquitted.

“That should have been the end of the matter,” says Burgess. “Despite our demands to the contrary, the military elected to try them by court martial and failed to secure a prosecution.”

Relieved, Leibrandt and Rantai continued to work and both received recommendations in 2001 for promotion to the rank of Petty Officer. However, the recommendations were turned down in 2003 on the grounds that they still faced “an outstanding charge of arson”.

“There was no outstanding charge,” says Leibrandt who also faced a battle at the time over a refusal to renew his contract with the navy. Both his divisional and section heads had recommended the extension, but the officer commanding vetoed this, with one reported note from a rear admiral stating that Leibrandt “generated a fair amount of noise into the system”.

Then, in 2004, both Leibrandt and Rantai were summoned to appear in the Wynberg magistrates’ court to again face the original charge of arson. Controversially, the “confession” by Rantai was admitted by the magistrate, the alibis of the two men were rejected and, in 2008, they were sentenced to eight years in prison.

So began more years in a legal limbo that included what several lawyers have described as a “deeply flawed” rejection of an appeal. In the process, the Rantai “confession” was ruled invalid and the jail sentence was reduced to four years with four suspended.

A number of lawyers, including constitutional law expert and former cabinet minister Kader Asmal expressed concern about what had happened. The issues of both double jeopardy — being tried twice for the same offence — and delayed justice being justice denied featuring prominently.

By this year, desperate and broke, Donovan Leibrandt and Leotoane Rantai became perhaps the first individuals, without legal assistance, to take their case to the Concourt. Whatever the merits, the outcome is likely to have considerable impact — and not only within the military.