polished floor of the hall) and this box provided the ideal seat from which to watch the movie. It was a real perk to be able to lean against the wall; just about everybody else sat on benches with their backs unsupported. We reserved a place for one of the cooks in return for him providing tea (but it was always so sickly sweet) - even the morally scrupulous delved in little trade-offs like these. One could quickly become anarch-schlenterer in that place! The movies were usually not too bad - "Reds", "The Best Little Whorehouse in Texas", "Mad Max" are some that I remember. But the sound was so appalling one could hardly hear. Supper took place shortly after the movie, then it was showers and lock-up.

On Sundays church services conducted by chaplains of many different denominations ran throughout the morning and afternoon. One of the most popular was the Pentecostal service. Many prisoners took solace in religion of the "Come ye unto me all ye who labour and are burdened, and I will give you rest" type. Some even went as far as saying that it was a fortuitous part of God's plan that they had landed in prison so that here they would find God, be saved from their wicked ways and henceforth live an exemplary life.

The opportunity to do your washing was on Sundays, and lock-up was early - at about 4.00 pm.

Visitors came on week-ends. Your visiting rights were determined by your grouping. Only A group prisoners had contact visits. "Short-tiraers" had one half hour visit per month. You saw your visitors (maximum of two) through a glass panel.

I was moved to a job cleaning the offices of prison staff, including that of the Head of the Prison. One day he called me in and accused me of going through his drawers and files in his absence and then passing on the information I'd collected to prisoners inside. I knew I'd done nothing of the sort so of course I denied it. He told me his office was equipped with closed circuit television and ordered a warder to point it out to roe. He said they had footage of roe rifling his office, but he didn't take up my challenge to show it to roe. He knew what I was in for and interrogated me in Afrikaans about which university I had attended and which organisations I belonged to. He summarily dismissed me from this cleaning job.

I was approached by the prisoners who ran the library (it was a branch library of the Pretoria municipal system) to be their library cleaner (someone I knew who had been around for a long time recommended me to them). I was delighted - this was quite the plumb cleaning job to land. The prospect of having access to books and newspapers and magazines was thrilling. There was only one cleaner, so I would not have to bother with "hoofskoonmakers". But the next morning during the counting in

the hall, when "Blomroetjies" (the Head of the Prison) saw me formed up with the library people he instantly removed roe from their midst - so conscientious objectors were victimised in this place.

Whenever there was an excess of cleaners, some were channelled off to the workshops, and in turn this happened to roe. I was placed in the woodwork workshop and worked at a bench making dressing table for the black wardresses' quarters in the new Diepkloof prison. The bench was headed by a pleasant, short, stocky Austrian who had held up a building society in Port Elizabeth. At fir3t all I did was sandpapering but went on to do slightly more demanding tasks, like screwing in screws.

There was an elaborate searching process of all prisoners before they entered and after they left the workshops - four times a day in all. You were frisked all over, then had to take off your shoes and socks, turn the socks inside out and put them over your shoulders, hold up the shoes for inspection, then unbutton you trousers and perform a little ritual that always struck roe as making what was tantamount to an obscene gesture to the warder searching you. I remember the warder saying to me on my fir3t search, "Man, moenie so bang wees n i e !”

The atmosphere in the workshops contrasted with the atmosphere of solemn silence in the prison - it was far more relaxed and the workshop "boere" were known to be rather more human than the others.

It was quite a long walk to get to the workshop (you walked briskly in two lines) and I remember vividly a day when a delivery vehicle was off-loading timber at the woodwork shop. The black delivery men stood with enormous grins on their faces watching the long lines of white prisoners entering the workshops. They were no doubt intrigued at the sight of whites controlling and oppressing other whites - here whites were being treated as blacks are usually treated.

One evening as the next day's "vrylatings were being announced I sat bolt upright when I heard my name among them. I was not expecting it and only thought it might be possible when Billy (this was the time when Billy, Ettienne and I were sharing a cell) pointed out to me that six months exactly had gone by since the day I was sentenced. It was incredible to think that thi3 was my last night in prison when I wa3 quite geared up for another two months in the place.

The next day I went through the motions of release as quickly as possible just in case it was all a terrible mistake. I'd assumed my six months only began from the day I arrived at the prison, not from the date of sentence. When I changed into my civilian clothes I discovered I'd lost masses of weight. I was let out

through the elaborate double gate and walked away as fast as possible, expecting all the time to hear a "boer" call out behind me, "Haai, jy moat terugkom, daar's 'n fout!"

PKTB HATHORN

Pete Hathorn is a conscientious objector who wa3 sentenced to two years imprisonment in 1982. This was reduced to one year on review.

Preparation

The most important factor in the time before the court-martial was that my decision to object was the outcome of the consistent development of my thought over the previous 5 or 6 years The fact that the decision was rooted a long way back was largely responsible for the absence of last minute doubts about what I was doing and also for ray being able to remain in high spirits through the year inside.

I decided to object in June 1980. I had just finished hitch­hiking through newly-independent Zimbabwe were I had 3poken to people who had fought on both sides in the war. The whites were bitter and bewildered at having fought in vain; for the freedom fighters independence was the inevitable outcome of the long and heroic freedom struggle. The parallels with South Africa were so obvious that they hardly need pointing out. On returning to South Africa and hearing that Charles Yeat3 was going to refuse to do military service, I finally decided to object.

The court martial itself was not as traumatic as I had expected I realised very quickly that the President (who I heard was well-known in Pretoria for defending Wit Kommando people) was going to put me away for as long as he could. Yet the maximum sentence was two years and I felt capable of sitting quite a lot longer than that.

Detention Barracks

I felt particularly vulnerable during the first few days in D B never knowing quite what was coming next and feeling ready to jump every time a corporal shouted. However, once I had settled down, the time in DB was not that unpleasant. Conditions are pretty spartan, but not having to work during the day. I was able to do a lot of reading.

There was always a lot happening : fights (I came across more violence in two months in DB than ten months in prison); escapes

attempts Hardlv » H 3m“*«lins; thefts and suicideHardly a day would go by without the DB being set

abuzz by some "event". Not wearing a uniform. I was set fcart from the mainstream and the whole DB structure. The MP's apart

authortt°r ha^ linS. never really attempted to i m p o ^ their

most of L e ninmates mana*ed t0 ffiaintain cordial relations with

There were ups and downs. I wa3 charged for refusing to wear a

‘-fcs “ “I sboard had reduced my sentence to a year. I felt as if a year of

DB quickly d a m p e n e d " m ^ t c s t a s y °- V ^ o t ' T ^ °f the

laterrathatSnite wa 1^ *1 th3t ab°Ut exP ^ ® d 3^ U ^ f o u n d out Vi K against the rules) and had me - protesting

two weeks in DB ° 3olitary confinement for my remaining

Pretoria Central

* had heard horrendous stories about civilian prison and T

III Jhf * th“ * i° “fd conditions better t £ f

tn h» f 1? someone made a considerable difference AI30s a s s a . ssande ooTHtheu / ‘!“raedi!teoa330ciati0n3 Ce"tral brings are of hunger

°* - 1* 11* ' * - spoon U l T r .

" 1?dle °* meat. two or three ladles of vegetables

It isn t a lot°Ur t i °f bread- 3P°0n of “hite margarine.' pap I d be aettins I "ould go to sleep at night with the plate of pap be getting the next morning uppermost in my mind.

was "the MaL t0fal^y mindle33- I started as a hall-cleaner (this ii 4-0 heaviest work going and objectors are invariahlv

allocated to it) and was later transferred to Ihe carpentry shJp where I spent most of my time sanding wood.

Pollaaoor

f a c i l i t l L 1* °nS °f !"°3t IDodern Prisons in the country so

overcrowded andC°th!»r "hiV " g°°d - The Hhite 3e<=tion i s ’not

less unpleasant t S n t ^ s T i n tit S K £ a l ° V ^ - L V r ^ as a high grade prison, only taking " s o ? t c a s I s " i3 Over wefkendsprisoners are allowed to play sport. The prison is s e t ^ n very

attractive surroundings in the Tokai forest. It also holds Mandela, Sisulu and other prominent South Africans. For all these reasons, plus the proximity of friends in Cape Town, I was excited at my change of prison.

I was also fortunate in getting a single cell within a couple of days, with a magnificent view over Ou Kaapseweg. The cell was a considerable improvement over Central - flushing toilet, basin with hot and cold water plu3 a radio speaker in the cell. In Pretoria we had to make do with bucket toilets and without running water. I was initially employed as an electrician but was fired after engaging in political debates with the warders over the referendum. So I spent my last 5 months in the "rock 'n roll" span - the prisons's‘unskilled labour force. While I was there, the rock 'n roll team was building a rugby field. Our role was to level the field by bringing sand across in wheelbarrows from a nearby rugby field.

We would start at 7.00 each morning and work straight through to 10.00. After a ten minute "smoke break", we would work until lunch-time at 11.30. The afternoon session would begin at 12.45 and go through to 3.30. Whilst working we would have to keep moving the whole time and if we worked too slowly we would be punished be being made to carry heavier loads or having our "smoke-break" withdrawn. Some day3, if it was really hot or if we were made to carry full wheelbarrows, it would be very unpleasant; most days it was Ju3t a grind - hour after hour plodding through the soft sand and finishing the day filthy with grime.

The highlight of each day was the shower after work. I could start to relax - all that lay ahead was to collect my bread and the relief of being locked alone in my cell, drink my illegal flask of tea, read the paper bought with precious cigarettes and doze for an hour or so and then start my ONISA work at 7.00pm. I would work until 10.00 pm and then sleep until 5.00 the next morning when the radio and lights came on and start cleaning mycell for inspection. And so on and on and on ........

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Reading through this account again, I am struck by how little it tells of life in prison. I am struck by how little it says of how "normal" prison life is, how a prisoner is still able to experience the Joys and the warmth of friendship - a chat over coffee, even a good game of tennis. It says nothing about smuggling; the "bomb" (the starvation diet used to discipline prisoners); "bandiet lore"; the prisoners themselves or the "boere". It Bays nothing about the experience of being without rights and of being at the mercy of the warders; or of being a "bandiet”, a sub-human, a nothing.

BPRIAL AND VICTORY - Victor Serge

< <Intro to written by D> >

The unreality of time is palpable. Each second falls slowly. What a measureless gap from one hour to the next. When you tell yourself in advance that six months - or six years - are to pass like this, you feel the terror of facing an abyss. At the bottom, mists in the darkness.

So as not to lose track of the date, you have to count the days attentively, mark each one with a cross. One morning you discover that there are forty-seven days - or one hundred and twenty, or three hundred and forty-seven! - and that it is a straight path leading backwards without the slightest break: colorless, insipid, senseless. Not a single landmark is visible. Months have passed like so many days; entire days pass by like minutes. Future time is terrifying. The present is heavy with torpor. Each minute may be marvelously- or horribly - profound. That depends to a certain extent on yourself. There are swift hours and very long seconds. Past time is void. There is no chronology of events to mark it; external duration no longer exists.

You know that the days are piling up. You can feel the creeping numbness, the memory of life growing weak. Burial. Each hour is like a shovelful of earth falling noiselessly, softly, on this grave.

The first day in a cell contains, in miniature, the months, years, decades which will follow till death, which may wait for you at the end. and whose terrors you live through more than once. The effects of living in a cell develop according to a constant curve; I tend to think that only their rhythm may vary among individuals.

In the main they are characterised by three phenomena. First, exaltation, whose causes may be frivolous to the point of total insignificance. I have known inmates to live twenty-four hours or several days of radiant inner joy in expectation of an exchange of glances, during fatigue duty. A fifteen-minute visit is enough to fill long days with expectation and long days with memory afterwards. A word, a gesture, a detail can feed the inner flame indefinitely. What extraordinary events letters are! War veterans probably remember what these little paper rectangles covered with familiar writing coming from the other world - the strange, storybook world of the living - meant to them in the trenches, which are in many respects like prisons...... They know

how some brows used to darken after mail call and how other radiant or tragic faces poured over their letters. . The exaltations of a man confined in prison take on the most varied forms. An exacerbation of emotional attachments, sex drives, the instinct for survival, religious faith, or political convictions is its most frequent manifestation. The periods of exaltation are followed, as a reaction, by periods of apathy. Dejection: dull torpor, indifference. I believe that this exaltation belongs to the period of struggle - which varies in length, and ends, once a man is freed from a decisive mental aberration and no longer puts up much resistance, in a state of vegetative, slow-motion existence in which sharp sufferings and sharp joys no longer play a part. I have met convicts like that who were astonishingly placid in their sixth, seventh, or tenth year of confinement.

This exaltation gives birth to obsession. The brain, at once anemic and feverish, is overcome by an idea, an image. In the absence of contact with outside reality, in the unreality of this deathlike existence. in the ruins of one's former mental equilibrium, an idea fixe can move in and take over. There are those, usually males, who are haunted by a hallucinating carnal memory. Some are led to morbid lewdness by persistent sexual obsessions. Some are tormented by jealousy day and night, night and day. When you speak to them, they don't understand at first, "return from somewhere" blushing all at once, and are delighted by an unexpected diversion. There are al3o those, hardly les3 numerous, who are obsessed by their "case”, who never stop weighing, trying, analysing, and examining the details of their imaginary briefs. These are the ones who are really "guilty," drowning men clutching at straws. Tireless, they write out long memoranda, underlining their "essential" arguments two or three times, arguing over the legal Code, which they learned by heart,piling defense upon defense to the point of absurdity.....Someare devoured by the obsession of death, and these will die in prison. For the fear of earth is already death's lure, the weakening of the organism, death itself.... S o m e , desperate with anxiety, yearn for someone who is absent, beyond these walls. Obsessed by the thought of an accident, by the absolute,unreasoning certainty that the other person will die.....Some,obsessed by hate, bear a grudge against a Judge, a cop on the vice squad....

The manias and superstitions, common in varying degrees among all prisoners, are phenomena related to obsession. The connections between these various aspects of mental imbalance, unreason, and failure of the will are sometimes quite apparent. Many prisoners awaiting trial, obsessed by anxiety over their defense, become afflicted (quite rapidly, within a few months) by a kind of procedure mania. They know the Code thoroughly. They quote paragraphs, articles, interpretations, and Jurisprudence. They find new defenses in it. They are incapable of carrying on a few

moments' conversation without dragging in their case and quoting such and such a paragraph of the law. The authors of memoranda have the writing mania. Long after they are convicted, sometimes in the sixth or tenth year of a sentence, they are writing, still writing - petitioning for a new trial - and thi3 gives their lives a meaning. They can always recite their irresistible arguments by heart, and they do so with voluble passion. Failure doesn't discourage them. But if their application for permission to write i3 refused, this plunges them into fury or despair......

In the long run, an inmate's life is regulated by a quantity of less important little manias produced by the lack of any normal object over which he can exercise his will power. The few personal objects he own3 are arranged and put away in an invariable order: Any disturbance of this housekeeping arrangement will throw him into a frenzy. (The warders, fully aware of this weakness, deliberately exasperate it through unnecessary searches in the cells and workshops.) He puts on hi3 clothes in a certain manner, he ha3 his own special way of doing up his buttons. In his cell, he has his own way of walking: 30 many steps in 3uch and such a direction. Never in another.....

Personal superstitions are harder to get to know, for they are only revealed through confidences. My impression is that theyare very common........... Rare i3 the roan who i3 notsuperstitious about lucky and unlucky dates. meetings, dreams, numbers, mental incantations. "If I count up to eleven three times before the next time a door slams. that will be a good omen. “

The only healthy reaction of the organism against the incessant, multiple, insidious, and harassing pressure of madness is Joy.

We all have great powers of vitality. We are filled with such a deep love of life that sometimes it takes only the slightest outside impulse to make the flame of joy suddenly rise up in us. And we are elevated above ourselves, the present, despair, prison. I once asked a comrade - whose life, I knew well, had been hopeless, full of suffering, a savage struggle in city slums and in jail - what had been the happiest hour of his pa3t existence. He answered me:

"It was in V***** Prison, one Christmas night. I was alone. Itwas warm. I had a good book and some wine..... All at once Ifelt so well, so calm, so glad to be able to think, so glad to be alive...

Among those who succeed in resisting raadnes3, their intense inner life brings them to a higher conception of life, to a deeper consciousness of the self, it3 value. its strength. A victory over jail is a great victory. At certain moments you feel astonishingly free. You sense that if this torture has not

broken you, nothing will ever be able to break you. In silence you struggle against the huge prison machine with the firmness and stoic intelligence of a man who is stronger than the suffering of his flesh and stronger than madness... And, when a broad ray of sunlight inundates the barred window, when good news come3 in from the outside, when you have succeeded in filling the dismal day with useful work, an inexpressible Joy may ascend within you like a hymn.

The warders, peering through the peephole, are astonished to discover a radiant brow and oddly silent lips: for all the joy of living is poised on them in one unuttered cry.

(From: Victor Serge : Hen in prison, Writers and Readers Publishing Cooperative, London, 1977 - first published in 1931.)

AHHEXORK B CQPRT AMD APPEAL PROCEDURE

1. WHAT IS THK PROCKDPRR IH COaRT?

1.1. Legal representation

CQPRT MARTIAL

In terms of the Military Disciplinary Code the arrested person may be represented by a legal officer (usuallyarbitrarily appointed by the legal officer who convenes courts martial). He may also be represented by his own attorney or an advocate appointed by him through his attorney.

Military law and courts martial require a legal representative familiar with the system and experienced in criminal law procedure. The person best qualified for the task will be an attorney or advocate with a few years' experience in private prac­tice. It would be helpful if the representative is an ex- legal officer as well.

MAGISTRATE'S CQPRT

As indicated above, an arrested person is entitled to the assistance of a lawyer from the time of his arrest. He may also request that a lawyer is present during questioning.

When you are arrested, insist on seeing your lawyer and do not say anything or do anything without firstconsulting your lawyer. If you plan to give yourself up, arrange for your lawyer to accompany you.

If an objector is unable to pay for a lawyer, he could apply for legal aid, either personally at a Magistrates Court or through his lawyer. If you need assistance, the Conscription Advice Service may be able to help.

1.2. Preparatory mialnttlon

CQOBT MARTIAL MAGISTRATE'S CQORT

In order to be able to complete the trial of an accused at one session of the court martial the preparatory (or "preliminary") investiga­tion is undertaken before the matter is put on the roll. The result of this preparation is also made available to the arrested person's legal representative.

The system of preparatory examination can be used in Magistrate's Courts, but is rarely, if ever, used.

1 . 3 . Beaand

To remand a court case means postponement.

CQDRT MARTIAL

A remand is very seldomgranted and a Court Martialis usually completed on the first day of a hearing.

This is so firstly because the prosecution normally has to stand or fall by the preparatory investigation (See paragraph 1.2). The arrested person's representative cannot reasonably ask for a post­ponement after the prosecu­tion's case is closed, because he would have had ample warning of what the prosecutor's case will be.

to postpone it. A remand is a

MAGISTRATE~S CQDRT

If an accused would like to have time to consult a lawyer or to prepare his defence, he may ask the court for a remand.

The state can also ask for a remand. It is possible for the case to be remanded (postponed) many times before charges are put to the objector, or to be remanded during the various stages of the prosecution.

Secondly, court martialmembers are appointed on a roster basis. If the matter is postponed, the same members of the court martial must be convened at a later stage. As this has proved practically impossible in the past, if the presiding officer is convinced that a remand is necessary, he will probably order the court martial to proceed on the following day.

1.4. Ball

CQDRT MARTIAL

See the discussion of "bail" under paragraph 3.2.3.

MAGISTRATE'S CQDRT

An accused has the right to ask for bail when he appears in Court, if the case is postponed.

As is described in paragraph 1.3, the preparation for the court martial is aimed at arriving at one final day where the actual trial can be held and be completed. Since a remand is very unlikely, there is no possibility of being freed on bail until the remand date.

He has t'he right to ask for bail at any time during the proceedings, although his chances to get bail are les3 if he ha3 applied before and his application has failed. The Court may refuse to grant bail for the following reasons:

* if it believes that the accused is unlikely to stand trial (i.e. will not come back to court); and

* if it believes that the accused poses a danger to society (in a physical sense). This is only a consideration where the person i3 accused of a violent crime.

It i3 likely that bail would be granted to an objector who has given himself up to the police, because this would indicate a willingness to stand trial. Nevertheless his chances would 3till be good for bail, even if he was arrested by the police without giving himself up.

COOHT MARTIAL & MAGISTRATE'S CODRT

The rest of the court procedure, the conducting of the case and the rules of evidence, are for all practical purposes the same for the Magistrate's Court and a Court Martial. He refer to both the magistrate and the presiding officer in a Court Martial as the "presiding officer".

1.5. The charge

At the commencement of the trial, the charge ha3 to be put to theobjector. This does not necessarily happen the first time he appears in Court - a case can be postponed and the charge put to him at a later stage.

An objector can be charged with the offences discussed in

paragraph 2.

1.6. The plea

After the charge has been put to the accused by the State Prosecutor, the presiding officer may ask the accused what his plea is. The accused has to plead guilty or not guilty. In the Magistrate's Court the case may also be postponed before the accused is asked to plead.

If the accused plead3 not guilty, the presiding officer will ask the accused what the basis of hi3 defence is. The accused may summarise the reasons why he plead3 not guilty. He can refuse to give these reasons at this stage, and only reveal it after the State has closed its case. It may, however, count against him if he does this.

It is possible for the accused to plead not guilty on grounds that are not valid in law, for example on moral grounds. He could also possibly plead not guilty on the grounds of international law.

If the accused pleads guilty, the presiding officer has to make sure that the accused understands what he is pleading guilty to. If the presiding officer feels that the accused does not plead guilty to all the aspects of the charge (for example when the accused pleads guilty saying that he did not report for duty, but says, for example, that he was never called up) the presiding officer has to change his plea from guilty to not guilty.

If the court accepts the plea of guilty, the next procedural step would be judgment (par. 1.9).

1.7. Thu at.at.ft'3 caae

If the accused has pleaded not guilty, or if the presiding officer has changed his plea from guilty to not guilty, the State Prosecutor has to lead evidence to try to prove that the accused is guilty as charged.

The onus is on the state to prove that the accused is guilty. The state has only to prove that the accused failed to report. As is explained in par. 1.9. the Court can then presume that he also refU3ed to serve. If the accused refuses to concede any point, the state has to prove that he did, in fact, fail to report. To do this the state has to prove that the accused

(a) received a call-up; and(b) did not report.

The state often has difficulty in doing so.

The accused's attorney, or if he i3 not represented, the accused himself, has the opportunity to cross-examine each of the witnesses which the State Prosecutor call3 , to question the witness' version of the facts or to put his own version to the witness.

Once the state witnesses have been called and cross-examined the state closes its case. 1

1.8. Asking for a discharge

If the state has not proved the charge, the accused does not have a case to answer, and can a3k the court for a discharge If it is granted by the court, -the accused is effectively found not guilty and is free to go. If the court refuses a discharge, the case proceeds as is discussed below.

1.9- The case for the defence

The same procedure regarding the leading of witnesses as discussed in paragraph 1.7, is followed with each of the witnesses which the accused or his attorney calls to present his case. The State Prosecutor can cross-examine each of the defence s witnesses. After all the witnesses have been called the Defence closes it3 case.

The accused does not have to give evidence, but his case generally would be much stronger if he does - unless the state has set up a case which is so weak that it does not need an answer. If he has no representation, he should repeat any statements which he has made while cross-examining the state witnesses when he gives evidence. The Court would take much more notice of what he says during his evidence, because he is now under oath.

What must the accused prove in court? (What is his onus of proof?)

On a charge of refusing to serve, it is only necessary for the State to prove that the accused failed to report. The Court may the provisionally presume that the accused in fact refused to serve. The Court can make thi3 presumption only if the accused is charged with refusing to serve. If the accused wants to refute this presumption, it is then up to him to give evidence which will prove that he did not refuse to report but just failed to do so. In other words, the accused then has to prove his innocence as far as the charge of refusing to serve is concerned if he wants to do so.

1.10. The argument

The state and the defence may each now argue for either a finding of guilty or an acquittal. If an accused wishes to make a statement of his beliefs, he may do so now, if it relates to the reason why he feels he should not be found guilty. This could include arguments based on Moral Law, Natural Law (for example that an unju3t law is no valid law) or International Law. He could do thi3 even if it is proved that he failed and refused to serve.

1.11. The Judgment

After the argument, the presiding officer decides whether to find the accused guilty or not guilty. This is called the judgment.

1-12. Mitigation

If the accused is found guilty, he or his lawyer may lead further evidence to the Court to show why he is not, or is less, morally blameworthy. This is called "Evidence in Mitigation" and its purpose i3 to reduce the punishment of the Court or to explain why the accused did what he had done.

The court may want to prevent the leading of mitigatory evidence on the basis that the prison sentence is prescribed, and that the court has no discretion in the matter. It would be important to argue here that the sentence is not mandatory, that it may be suspended, or that the sentence mentioned in the act is a maximum sentence and not mandatory (See discussion under par. 2).

More details about possible evidence are discussed under par. 3.5 in the main document.

This stage of the court case is ended by argument by the state and the defence on sentence.

1.13. Sentence jp

After the evidence in mitigation, thef court decides which sentence to hand down. Details of Wr& options are discussed under paragraphs 2.2.2 (ii) and 2.1.3 (ii).

2. APPEAL/RRVTRH

2. 1. A p p eal

Appeal should be distinguished from review, which is discussed in

par. 2.3. Appeal is a new opportunity where the merits of the ca3e can be considered. In a review, however, the Court will only investigate whether the proceedings of the lower Court were regular.

COORT MARTIAL

No provision is made for an appeal in the Military Disciplinary Code. Someauthority to reconsider the case is possible, however - see par. 2.2.

Within 3 days of the sentencethe convicted person is entitled to make written representations to the review­ing authority concerning the facts and the law of the matter. These written repre­sentations may require oral argument before the reviewing authority.

The convicted person may further apply for a review by a body called the "Council of Re­view". If he was sentenced to more than 12 months imprison­ment, he has the right appear before the Council for argument.

If the Council considers the matter on application by the convicted person, the Council may increase the sentence.

MAGISTRATE'S CQPRT

If the objector is unhappy with the judgement or sentence of the Magistrates Court, he can appeal to the Supreme Court. There is a tine limit of 14 days on noting the appeal.

An appeal can be lodged if an objector feels that the Court was wrong in its decision about findings in regard to :

* the facts of the case;or. * the way in which the law

should be interpreted.

In practice an appeal against a decision about the facts does not succeed easily, especially when it entails a decision as to the credibility of a witness.

COORT MARTIAL MAGISTRATE'S CQPRT

Internal automatic review:.

A number of militaryauthorities have the power toreview findings and sentences to ensure that :

1. findings are not in­valid;2. findings not sup­ported by the evidence on record are not allowed to stand; and3. any patent errors are corrected.

The adjutant-general may also consider a matter on grounds of non-compliance with "real and substantive justice".

The reviewing authority cannot impose a more severe sentence on review and must give reasons for any finding. The convicted person has a right to a copy of the reasons.

Automatic review of courtmartial__decision bv SupremeCourt:.<<Find out from section 300 of Criminal Procedures Act >>

All sentences of more than 6 months imprisonment handed down in magistrates courts have to go on automatic review to the Supreme Court. This means that a judge of the Supreme Court has to read through the record of the case to see whether s/he agrees with the way in which the magistrate applied the law and that the sentence given is fair.

It is best, though, not to depend on this if you feel unhappy with the way in which the case was handled but rather to note and appeal or to take the case on review.

2.3. Review by the Supreme Court on application

CODRT MARTIAL & MAGISTRATE'S COORT

Review by the Supreme Court of the proceedings in a Court Martial as well as in a Magistrate's Court is possible. Where a person believes that the proceedings in the case were irregular, he can apply for their review by a higher court. In the case of review, the person does not ask the court to look at the merits of the judgement or sentence, but to ensure that the proceedings of the lower Court were regular. If the proceedings were irregular, the case may not have received a fair, unbiased consideration.

Here are some examples of what may be irregular proceedings :

* The presiding officer refused to allow the accused to cross-examine the state witnesses; or

* The presiding officer has a DIRECT •'interest" in the case. For example : he is a senior officer in the local command and may thus be biased.

If the Court decides that the proceedings were irregular, thi3 may have effect on the judgement. He or she may then refer the case back for a retrial. <<Look at Hiemstra re “Orders on review >> If the Judge is satisfied that the proceedingswere regular, the matter is at an end.

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Collection Number: AG1977

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