Ex Parte Kotze [1914] ZATPD 107 (22 October 1914)

Martial law.-Necessity for.-Jurisdiction of Courts.-Martial law
'regulation.-On matter of procedure.-Retrospectivity.

The justiification of martial law must be looked for in the gravity and urgency of the circumstances which are thought to call for its application. Where a state of war actually exists and the courts of law are called upon to decide the question whether the necessity for martial law exists or not, they will probably be guided by the opinion of the ejecutive officers responsible for
the conduct of military operations. As soon as it is established that the proclamation of martial law is necessary, the courts, even though they may continue to exercise their jurisdiction, only exercise it so far as that jurisdiction is not put an end to by the act of the military authorities. A regulation issued under martial law provided that no court of law should have any jurisdiction to interfere with any . . . act, order, instruction, regulation . . . of any . . person administering martial law, or in any way to restrain the actions of such person. Held, that the regulation suspended the jurisdiction of the courts of law in matters coming within the martial law proclamation, that the regulation was only a matter of procedure, and therefore also applied to a person arrested under martial law before the issue of the said regulation.