| (1) | Any person liable to render service in terms of section 22 or 44 who when called up to do so— |
| (a) | refuses to render such service in the South African Defence Force, shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding the prescribed period of community service as contemplated in this Act to which he would have been liable if he had been classified as a conscientious objector in terms of section 72D(1)(a)(iii) at the time when he so refused to render service; or |
| (b) | fails to report therefor, shall be guilty of an offence and liable on conviction only to imprisonment for a period not exceeding four months or, irrespective of his rank, detention for a period not exceeding four months or such a fine as may be imposed upon him, according to his rank, by a court martial in terms of the provisions of the First Schedule. |
[Subsection (1) substituted by section 31(a) of Act No. 132 of 1992]
| (2) | Any person liable in terms of any other provision of this Act to render service or undergo training in the South African Defence Force or the Reserve, other than a liability to render service in terms of Chapter X, and who when called up— |
| (a) | refuses to render such service or to undergo such training, shall be guilty of an offence and liable on conviction to imprisonment for a period not exceeding 18 months; |
| (b) | fails to report therefor, shall be guilty of an offence and liable on conviction only to imprisonment for a period not exceeding four months or, irrespective of his rank, to detention for a period not exceeding four months or such fine as may be imposed upon him, according to his rank, by a court martial in terms of the provisions of the First Schedule. |
[Subsection (2) substituted by section 31(b) of Act No. 132 of 1992]
| (2A) | Any person liable in terms of this Act to render service in terms of Chapter X and who, on account of his refusal to render such service or to report therefor, is convicted of desertion as contemplated in section 92bis (3), shall be liable to imprisonment for a period not exceeding six months or such longer period as the Minister may by notice in the Gazette determine. |
[Subsection (2A) inserted by section 31(c) of Act No. 132 of 1992]
| (3) | Notwithstanding anything to the contrary contained in any law— |
| (a) | a magistrate's court shall, if it otherwise has jurisdiction, have jurisdiction to impose the sentences and determine conditions provided for in this section; |
| (b) | at the imposition in terms of this section of— |
| (i) | any sentence of imprisonment or detention which, if permissible, has not been suspended in full; or |
| (ii) | a sentence in terms of this section of a fine by a magistrate's court at the non-payment of which imprisonment is served, where, due to such non-payment, imprisonment is served, |
the commission of an officer shall be deemed to have been cancelled and a warrant officer or a non-commissioned officer shall be deemed to have been sentenced to reduction to the ranks.
[Subsection (3) substituted by section 31(d) of Act No. 132 of 1992]
| (4) | If in any prosecution for a contravention of subsection (1)(a) or (2)(a) or an offence referred to in subsection (2A), it is proved that the accused failed to report for the service referred to therein or, having reported for service, failed to render military service or undergo military training, it shall be presumed, unless the contrary is proved, that he refused to render service or undergo training, as the case may be, in the South African Defence Force or the Reserve, as the case may be. |
[Subsection (4) substituted by section 31(e) of Act No. 132 of 1992]
| (5) | If in any prosecution for a contravention of— |
| (a) | subsection (1)(a) the evidence does not prove a contravention of that subsection, but a contravention of subsection (1)(b); |
| (b) | subsection (2)(a) the evidence does not prove a contravention of that subsection, but a contravention of subsection (2)(b), |
the accused may be convicted of a contravention of subsection (1)(b) or (2) (b), as the case may be.
| (6) | Any person who has served the full period of imprisonment imposed upon him in terms of subsection (1)(a) or (2)(a), shall be exempt from his liability to render service in terms of this Act. |
| (7) | Any person convicted in terms of subsection (1)(a) or (2)(a) or of an offence referred to in subsection (2A) who, before the expiry of any term of imprisonment which he is serving in consequence thereof, in a notice signed by him and directed to the Chief of the South African Defence Force, states that he is willing to render service or to undergo training in terms of this Act, shall be exempted from serving the remaining portion of his sentence of imprisonment provided he renders the service or undergoes the training which in terms of this Act he is obliged and has been called up, and may be called up over a period of 60 months as from the date of his notice, to render or undergo: Provided that if that person should at any time during the said period of 60 months refuse to render the last-mentioned service or undergo the last-mentioned training he shall, notwithstanding anything to the contrary contained in any law, serve the said remaining portion of his term of imprisonment: Provided further that the Minister may determine that any part of the period of imprisonment which that person has served as contemplated in this subsection, shall be regarded as service or training which he is liable to render or to undergo and has rendered or undergone. |
[Subsection (7) substituted by section 31(f) of Act No. 132 of 1992]
| (8) | If at the trial of any person for a contravention in terms of this Act it is necessary to— |
| (a) | determine the duration of any period or periods of service which such person who is in terms of this Act liable to render service or to undergo training in the South African Defence Force or the Reserve, |
| (i) | has been called up; or |
| (ii) | may still be called up, whether for one or more periods of service as contemplated in this Act, |
to render service or undergo training in that Force or Reserve;
| (b) | determine, in accordance with the provisions of this Act, the period of community service as contemplated in this Act to which he is liable, and with reference thereto, to determine the facts and factors referred to in section 72E(3)(a) which are necessary to determine the said period; |
| (c) | determine the period of any imprisonment or detention which, upon conviction, may be or has to be imposed upon him in accordance with or by taking into consideration the formula mentioned in section 72E(3)(a) and, with reference thereto, to determine the facts and factors which are necessary to apply the said formula, |
a certificate purporting to be signed by the Chief of the South African Defence Force or by any person authorized by him for the purpose in general or in particular and in which—
| (i) | any period contemplated in paragraph (a); |
| (ii) | the period of community service referred to in paragraph (b) and any fact or factor referred to in that paragraph which is necessary to determine such period; |
| (iii) | any period of punishment referred to in paragraph (c) and any fact or factor referred to in that paragraph which is necessary to determine such period in accordance with or by taking into consideration the formula referred to in section 72E(3)(a), |
are mentioned and, where necessary or useful, explained in detail in respect of any person whose name is mentioned in the certificate and corresponds to the name of the accused shall, on its mere production to the court be prima facie evidence (as the case may be) of—
| (aa) | any period referred to in paragraph (a); |
| (bb) | the period of community service referred to in paragraph (b) and of any fact or factor mentioned in the certificate which is necessary to determine such period; |
| (cc) | any period of punishment referred to in paragraph (c) and of any fact or factor mentioned in the certificate which is necessary to determine such period in accordance with or by taking into consideration the formula mentioned in section 72E(3)(a), |
and of any explanatory detail thereanent mentioned in the certificate.
[Subsection (8) substituted by section 31(g) of Act No. 132 of 1992]
| (9) | In the determination or calculation in terms of any provision of this Act of— |
| (a) | any period of community service; |
| (b) | any period of punishment, |
in which any period of service mentioned in section 22(3)(b) is to be determined or to be taken into consideration, it shall be deemed that the maximum period of service which any person may, in terms of subsection 22(1), be called up to render during a cycle referred to in the first-mentioned section, shall be such part of 120 days as stands to 120 days in the same proportion as the unexpired portion of such cycle stands to two years.
[Subsection (9) added by section 31(h) of Act No. 132 of 1992]
[Section 126A substituted by section 16 of Act No. 34 of 1983]
