Practice Relating to Rule 100. Fair Trial Guarantees
Section M. Right to appeal
South Africa’s LOAC Teaching Manual (2008) states:
1.2 Reasons for compliance with LOAC [law of armed conflict] and basic principles thereof.
Fundamental Norms and Values (rules)
The fundamental norms/val[u]es which underlie the LOAC are:
- All persons who are captured or under the authority of an adverse party are entitled to, as a minimum, the protection and guarantees bestowed upon prisoners of war (POW).
South Africa’s Constitution (1996), as amended to 2003, states:
35. Arrested, detained and accused persons
(3) Every accused person has a right to a fair trial, which includes the right –
(o) of appeal to, or review by, a higher court.
37. States of emergency.
(1) A state of emergency may be declared only in terms of an Act of Parliament and only when–
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; …
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration may permit or authorise –
(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.
In the “Table of Non-Derogable Rights”, the Constitution includes section 35, entitled “Arrested, detained and accused persons”, and states that the right is protected “[w]ith respect to … the rights in paragraphs (a) to (o) of subsection (3), excluding paragraph (d)”.
South Africa’s Military Discipline Supplementary Measures Act (1999) provides:
3. (1) This Act shall, subject to subsection (2), apply to any person subject to the [Military Discipline] Code irrespective whether such person is within or outside the Republic.
(2) For the purposes of the application of this Act and the Code, “person subject to the Code” includes, to the extent and subject to the conditions prescribed in this section and in the Code –
(h) every prisoner of war as contemplated in Articles 4 and 33 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, or by customary international law, and who is in the power of the Republic and detained by the South African National Defence Force.
Right to review of trial
25. Every person subject to the Code who is convicted and sentenced by a military court has the right to the automatic, speedy and competent review of the proceedings of his or her trial to ensure that any proceedings, finding, sentence or order is either valid, regular, fair and appropriate, or remedied.
South Africa’s Implementation of the Geneva Conventions Act (2012) states:
11. Appeals by protected prisoners of war and protected internees
(1) (a) Notwithstanding anything to the contrary in any other law contained, a protected prisoner of war or a protected internee who has been convicted and sentenced to imprisonment for a period of two years or more, may give notice of appeal or notice of application for leave to appeal against such conviction or sentence up to a date 10 days after the date on which the protected prisoner of war or protected internee concerned receives notice that the protecting power has been notified of his or her conviction and sentence.
(b) The notice referred to in paragraph (a) must be given –
(i) in the case of a protected prisoner of war, by an officer of the South African National Defence Force; or
(ii) in the case of a protected internee, by or on behalf of the head of the correctional centre in which the protected internee is detained.
(2) Notwithstanding anything to the contrary in any other law contained, where, after an appeal against the conviction or sentence by a court of a protected prisoner of war or a protected internee has been determined, the sentence remains or has become a sentence of imprisonment for a period of two years or more, the time allowed within which the protected prisoner of war or protected internee concerned must apply to the court for a certificate authorising an appeal in respect of the conviction or sentence as confirmed or varied upon the appeal contemplated in subsection (1) must be regarded as continuing to run until a date seven days after the date on which the protected prisoner of war or protected internee concerned receives a notice given by a person contemplated in subsection (1)(b)(i) or (ii), as the case may be, that the protecting power has been notified of the outcome of the decision on appeal.
(3) Where subsection (1) or (2) applies in relation to a convicted protected prisoner of war or protected internee, then, unless the court orders otherwise, an order of the court relating to the restitution of property or the payment of compensation to an aggrieved person may not take effect, and a provision of a law relating to the re-vesting of property on conviction may not take effect in relation to the conviction, while an appeal by the convicted protected prisoner of war or protected internee against his or her conviction or sentence is possible.
(4) Subsections (1) and (2) do not apply in relation to an appeal against a conviction or sentence, or against the decision of a court upon a previous appeal, if, at the time of the conviction or sentence, or of the decision of the court upon the previous appeal, as the case may be, there is no protecting power.
The Act (2012) also states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the  Third [Geneva] Convention or the  Fourth [Geneva] Convention, as the case may be.”
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”.