Minister on National Defence Force Service Commission; Deputy Minister on emergency landing of his aircraft in DRC; Amendments to International Hydrographic Organisation Convention

Meeting report

Minister of Defence and Military Veterans on proposed National Defence Force Service Commission
The Chairperson welcomed the Minister, Ms Lindiwe Sisulu, the Deputy Minister, Mr Thabang Makwetla, and a delegation from the Department led by Mr Tsepe Motumi, Secretary of Defence.

The Minister said that she had conferred with the Commander-in-Chief, and other parties concerned, before coming to brief the Committee on the legalities and technicalities regarding the creation of an alternative to the present dispensation. Cabinet had agreed to the first step in the process on Wednesday, 09 September 2009, namely the appointment of a commission. It was important to be responsive to the environment in which South Africa's soldiers, sailors, and airmen served. The human resource base was the soft underbelly of defence, and there was a shortage of skills. It was necessary to maintain morale.

The Minister said that her aim in meeting the Committee was first of all to inform Members of progress. Secondly, her aim was to inform the Committee about the commission that was about to be established almost immediately after consultation with the President. Thirdly, her aim was to seek the Committee's support in making any necessary amendments to legislation, in particular the Defence Act. She gave details.

In 1994 the Public Service Act had given the Minister of Public Service and Administration considerable powers to establish norms and standards for the public service relating to various matters. These were set out in Section 3 of the Act, which defined the functions of the Minister and the executive authority. She sought the ability to replicate the functions of the Minister for Public Service and Administration with regard to the public service in the functions of the Minister of Defence in so far as they dealt with defence. It was intended that the Defence Act would be amended to ensure that it regulated all matters concerning defence.

The commission would assist the Minister to obtain a thorough understanding of conditions of service and other matters that formed 'the underbelly of the defence force'. It was hoped that the commission might be established as early as Monday, 21 September 2009. The commission would consist of ten persons. It was within the powers of the Minister to appoint such a commission. She was hoping to secure the President's involvement in the process in order to give sufficient status to the commission. In the first instance the commission would assume the format with which most Members of Parliament were familiar. When the commission had reported to her, she would return to the Committee.

The second step would be the administrative step to establish the commission as a permanent part of the defence establishment. The Department of Defence had been involved in extensive research and the Minister suggested a workshop with the Committee to discuss its findings. The intelligence services environment provided a precedent. Establishment of the commission on a permanent basis would require an amendment to the Defence Act. She sought the Committee's support in persuading Parliament to bring forward the matter of amendments.

Discussion
Mr V Ndlovu (IFP) thanked the Minister for briefing the Committee. He asked if the Minister could elaborate on the respective portfolios of the Minister of Public Service and Administration and the Minister of Defence; why the Minister had decided on a commission membership of ten; and who would serve on the commission, if it were possible to indicate that at present, while respecting the President's prerogative.
 
The Minister repeated her assurance given in her budget vote speech that she wanted to assure the defence force staff that their conditions were a matter of concern, and she wanted to engage each one of them through the proper management structures. The only way to achieve this was, in the view of the Ministry, to appoint such a commission. The reason why a commission appointed to examine the conditions of service of Members of Parliament had taken so long was that 'you and I are so argumentative'. It was not because that commission had procrastinated, but because Members of Parliament had engaged that commission thoroughly. The Minister hoped that the terms of reference of the commission would be so defined that it would report no later than December 2009. It was felt that ten persons would be suitable to deal with the matter. The commission's members would be drawn from academic, religious, labour and military circles, and would be representative in terms of gender and demographics. 'The prerogative is mine', as accorded the Minister by legislation, but she wanted to 'escalate' it to the Presidency. It was thought that a membership of ten would enable these groups to be represented adequately. She referred again to her idea of a workshop with the Committee and to the importance of following precedent. All that the Minister of Public Service and Administration did for the public service, the Minister of Defence and Military Veterans would have to do for defence force personnel.

Mr Maynier said that the he was committed to working with the Minister to establish an alternative dispensation and putting in extra effort to draft and deliberate on necessary amendments to legislation. He asked about the process of appointing the commission and if the Minister had taken legal advice on military unions. He asked if the precedent in the intelligence services had ever been challenged in the courts or in the Constitutional Court.

The Minister replied that she had the right at any time to appoint a commission, in which regard she had consulted state law advisers. There was an urgency in the matter, and thus she sought to consult the President. If one pursued the regulatory process, there might be delay. In terms of the Public Service Act, 1994, the Minister of Public Service and Administration may by regulation establish one or two bodies consisting of employees or other persons to serve as a consultative body or as an advisory body to the Minister. She said that she was inclined to follow the route of appointing people following the necessary consultations Cabinet. She had hoped for a closed meeting, rather than a meeting with the media present because it was a consultative discussion rather than an announcement. The precedent of the intelligence services had never been challenged. However, with regard to the intelligence services, there had never been 'a grey area' such as existed with the defence services, where there was uncertainty as to whether to follow the Defence Act or the Public Service Act. She said that Members of the committee would have the benefit of hearing from the intelligence services in the proposed workshop.

Mr Maynier asked the Minister if it was her intention that if the commission became permanent it would replace military unions. Given that the decision to establish the commission would almost certainly be challenged by the military unions in court, he asked what would happen in the interim while that process went ahead.

The Minister said that the establishment of a commission would be in two phases. She did not envisage that the commission would take the place of unions. Trade unions by their very nature were political. When politics was introduced into the defence force it became a serious problem. Very clearly in terms of both the Constitution and the law, before the Commander-in-Chief could deploy the defence force, it was necessary to obtain approval from Parliament. The unions were a different structure that could deploy the Minister's soldiers without approval from anyone. The unions in the defence forces had not met basic requirements; the Ministry had accepted them 'from the goodness of our hearts'. There was no other country that allowed military unions the way South Africa did. Various countries, however, did allow professional associations.

Mr P Groenewald (FF+) said that the success of the commission would be determined by the choice of chairperson for the commission. One of the problems with the commission that had been established to examine the conditions of service of Members of Parliament was that the chairperson was reported to have asserted that Members did not work very hard. Whosoever would be appointed as chairperson must understand the military environment and how the SANDF worked.

The Minister said that she was open to advice from the Committee about the choice of members of the commission.

Mr L Diale (ANC) welcomed the proposed commission. He hoped that it would meet not only the top management. The Committee was sitting here theorising. It was important for the Committee, without prejudice to the work of the proposed commission, to examine the conditions of the armed forces and see how they lived, in order to boost their morale. Experience was a teacher. The Committee had in the past visited the Democratic Republic of Congo, Rwanda and Burundi, and the members of the defence forces were happy with such visits.

Mr Maynier asked if the Minister could provide to the Committee for prompt comment her shortlist of nominees to the commission, without infringing on her prerogative. Secondly, he asked about the 'thorny issue' of how to manage resources and finances when the commission reported. He asked if the Minister had considered increasing the defence budget to cover these contingencies.

The Chairperson said that the Committee must consider any comments that it might make on the Minister's short list as strictly confidential to avoid speculation and controversy in the media. It was a consultative process. He commented on the area of lack of skills. He said that the Minister had been very positive to engage with the Committee.

The Minister said after consulting with her Deputy and her legal adviser that a meeting would be held on Monday, 21 September, or on a date as near as possible to that, after which she would confer with the Committee about her list of nominees. The commission would have R2.3 million and would have a secretariat. By the end of the year it was hoped to amend the Defence Act, but mostly the regulations. There was no guarantee 'of a penny more' for the defence budget.

Mr A Mlangeni (ANC) congratulated the Minister. He said that the union that had been established for the soldiers was incorrect. It was necessary to find a way of removing it – he did not wish to use the word 'banned', but replace it with a structure within the army to allow soldiers to raise their issues. He did not know of any country with military trade unions.

The Minister appreciated the compliment, but asked the Member not to associate the military unions with her. They had nothing to do with her. What she sought to achieve ultimately in a forming a different dispensation might be achieved by a number of options, including amending the Defence Act; or drafting standalone legislation; or asking for the Public Service Act to be amended to include this; or amendments to the Constitution. Options would be presented to the Committee at the proposed workshop. 

Bishop L Tolo (COPE) said that the Committee supported the Minister. He referred to the Book of Judges, chapter 7, which he interpreted to imply that the army was a structure of God. He said that he did not support unions in the army. Recent events had a negative effect on South Africa's reputation as a leader in conflict resolution in Africa.

The Minister said that she agreed with Bishop Tolo that there should not be unions in the defence forces. Belgium and Sweden had trade unions in their defence forces, but these unions were of a completely different nature from South Africa's. She would not, however, close her mind to professional associations, which were found in some other countries. She agreed with Bishop Tolo that soldiers were not workers. The army was a professional service given to the country; it was the highest service that anyone could give to his or her country. She thanked the Committee for its support.

The Chairperson thanked and commended the Minister.

Deputy Minister’s report on emergency landing of his aircraft in Democratic Republic of Congo
The Deputy Minister of Defence reported that the media had, by and large, given correct information about the landing of the Deputy President's aircraft in the Democratic Republic of Congo. It was scheduled to refuel at Bangui, in the Central African Republic, on the way back from Tripoli, Libya. However, when it approached Bangui, at 03h30, it found the airport, which was close to a river, shrouded in fog. After three unsuccessful attempts to land, air traffic control at Bangui instructed the pilot to divert to the nearest alternative airport, which was an airport 30 minutes' journey away in the Democratic Republic of the Congo. However, the air traffic control at Bangui lacked accurate information about the state of the alternative airport, which was, in reality, in ruins after civil war, with no lights and no control tower. The pilot had to search for the airport and, having found it, search for the runway. Having found the runway, it was difficult to determine its length. It was only at the third attempt that he was able to land the aircraft, and, because of the broken surface of the runway, the aircraft sustained a burst tyre. Moreover, on arrival, it was discovered that there was no aviation fuel available; neither was there any to be had in the nearest town. It was an experience that one would not wish the Deputy President to have experienced. Fuel had to be brought in from elsewhere, as had been reported correctly. The Air Force had said previously that the present situation of having only one VIP aircraft available to the Presidency was untenable.

Discussion
The Chairperson said that he had no questions: he considered the Deputy Minister's briefing a report rather than a matter for discussion.

Mr Maynier asked why the President's Boeing aircraft had not been used, since the DC9 used for the Deputy President's journey to Libya was not part of the squadron used for journeys by the President and Deputy President. He noted that the President had taken a commercial flight some time previously. He asked if the alternative was not, in fact, to fly by commercial airlines.

The Deputy Minister replied that he did not have any information regarding the DC9 aircraft. It was a mandate of the South African Air force to provide transport to the Presidency. The President's sentiments on commercial aircraft were positive, but did not constitute policy, and the Department would be the first to disagree with the President on the use of commercial aircraft.

The Minister added that it was a matter of scheduling. The President's Boeing aircraft was already in use. Thus the only available aircraft was the DC9 from the reserve force. If a commercial flight were to be taken to Tripoli, it would have to be via Italy or France and would take three or four days. One would not want to have the Deputy President travelling for such a long time when he had a busy schedule. There were also concerns about the safety of commercial flights.

Mr Maynier asked why that particular airport in the Democratic Republic of Congo was chosen as an alternative when Bangui, in the Central African Republic was unavailable because of fog. The risks involved were great. Air traffic control at Bangui was seriously remiss. He asked what was being done to prevent similar misinformation being conveyed to pilots in future. He also had a problem with the way in which this matter had been handled. To have a deputy head of state endangered in this manner was dangerous.

The Minister replied that when reports first emerged, the Department had not investigated. It would have been irresponsible to meet the Committee without proper information. It was never the Government's intention to mislead the Committee but rather to be sure of all relevant information about the matter. The direct route from Tripoli to South Africa was via Bangui. Fog was a common occurrence, such as could affect the landing of any aircraft.

Bishop Tolo said that he had seen a newspaper report in which military personnel had been reported to have approached the Deputy President's aircraft. He asked what had gone wrong.

The Minster replied that she had not seen that newspaper report. The aircraft had landed unannounced in territory under the control of the United Nations; as such it was standing procedure to check aircraft on arrival.

Mr Maynier said that it seemed that an objection to the use of commercial aircraft was scheduling. However, he also detected a possible implication by the Minister that the use of commercial airlines might involve a safety risk: he hoped that was not the case.

The Minister replied that South African Airways (SAA) did not fly to Tripoli, Libya; to reach such a destination by a commercial flight entailed a three or four day journey via Italy or France. There was a serious deficiency in air communications in Africa. Whilst there was no concern about SAA's safety record, there was such a concern about the safety of some African airlines.

The Chairperson thanked the Minister and Deputy Minister.

Protocol of Amendments to International Hydrographic Organisation (IHO) Convention: finalisation
The Chairperson welcomed the Department delegation led by Rear-Admiral Bernard Teuteberg, Chief Director, Maritime Strategy, South African Navy; accompanied by Mr S Mc Duly, Acting Director, Defence International Affairs, Department of Defence; and Ms S Alberts, Assistant Director, Defence International Affairs, Department of Defence.

Rear-Admiral Teuteberg said that he thought that it would perhaps be wise, as a follow-up to the presentation given at the previous meeting on the Protocol of Amendments on 09 September 2009, to exhibit to Members some samples of the products of the South African Navy's Hydrographic Office. He showed Members some charts produced in accordance with IHO standards, in particular one of the coastal waters of Durban. He also showed an example of the South African tide tables, which indicated the times of high and low water for all the major ports of South Africa, and a catalogue of all the Hydrographic Office's products. All these were examples of work done under the banner of the South African Navy, in conjunction with the IHO.

Discussion
The Chairperson thanked Rear-Admiral Teuteberg and asked about financial implications to South Africa.

Ms H Mgabedeli (ANC), with reference to pages B-1 and B-2 of Annexure B to the Explanatory Memorandum of the Protocols asked for clarity on 'These 4 additional paragraphs aim to introduce the main text of the Convention and serve to explain more accurately the background and purpose of the IHO Convention. It is merely political of nature with no implications on the Republic of South Africa, as a Member State.' She asked if there were implications for other Member States, if there were any financial implications, and for assurance that paragraph 11 of Annexure A did not contradict 'with no implications on the Republic of South Africa, as a Member State'.

Rear-Admiral Teuteberg replied that paragraph 11 of Annexure A spoke of financial implications. These were the financial implications for South Africa as at present. The changes to the Convention, the improvements to the Convention, did not have an additional financial implication. Therefore South Africa's financial implications remained exactly the same as at present and as they had been for some time. He emphasised that the financial implications could change only if South Africa's shipping register recorded more tonnage. There was no additional burden on the budget of the South African Navy on account of the proposed changes to the Convention.

The Chairperson said that Rear-Admiral Teuteberg's explanation was 'hard to understand'. He asked how changes or improvements to the Convention would not increase the South African Navy's costs if it became more involved with other countries, as indicated on page B-2 of Annexure B, referring to Article II of the Convention, since the South African Navy was dealing with SADC, and helping Mozambique, for example. The South African Navy's objective seemed to carry some cost. He was afraid that the Committee would compromise the South African Navy if it gave immediate approval of adoption of the Protocol of Amendments, only to have to begin searching for extra money for the South African Navy thereafter. It was important to be sure that SADC had the capacity to achieve its aims. He emphasised that he did not want the South African Navy to be compromised. He asked if the IHO would carry any extra costs of improving global hydrographic capability, capacity, training, science and techniques, and other matters mentioned in Article II as amended.

Rear-Admiral Teuteberg replied that in his view there were three issues. Firstly the changes to the Convention proposed by way of the Protocol of Amendments would make the IHO, of which South Africa was a Member State, more efficient, since it had become a convoluted organisation with many sub-committees, the administration of which required much finance. Adoption of the Protocol of Amendments would ease that administrative complexity. On behalf of the state, the South African Navy paid its membership fees to the IHO. These fees were based on South Africa's total shipping tonnage (merchant and Naval fleets combined): adoption of the Protocol of Amendments per se would not mean that South Africa's fees would change.

Secondly, with regard to the funding of hydrographic efforts in South Africa, Rear-Admiral Teuteberg explained that that remained unchanged. The South African Navy's Hydrographic Service had reached the level and coverage that it sought to attain, and was not seeking an increase in funding for the hydrographic budget of the South African Navy.

Thirdly, Rear-Admiral Teuteberg explained that there was the issue of assistance to countries to the north of South Africa within SADC but also within the Southern Africa and Islands Hydrographic Commission (SAIHC). The South African Navy had with the agreement of the Treasury and the Minister allocated a small proportion of its budget, 0.05%, to aid countries to the north of South Africa; this included the work done in hydrographic surveying. However, the Navy did not believe that the proportion would change as a result of adoption of the Protocol of Amendments. The South African Navy believed that the changes as a result of adoption of the Protocol of Amendments would facilitate approaches to other countries for donor funding, to assist countries such as Mozambique which currently received donor funding from Norway. Brazil assisted Namibia. However, better co-ordination was required, and it was hoped to achieve this by enhancing the status of the regional hydrographic commissions such as SAIHC. Adoption, the South African Navy believed, would enable greater availability of funding and more efficient utilisation of funding by the regional hydrographic services. Whilst South Africa made no claim to be 'big brother', it was accepted that South Africa represented the members of SAIHC internationally with a mandate to put their cause on the international agenda.

Thus, on the one hand, Rear-Admiral Teuteberg believed that the membership fees would increase; nor would the proportion of the Navy's budget used to aid countries to the north of South Africa change – adoption of the Protocol of Amendments would merely enable this existing allocation to be used more efficiently with other countries coming to the table.

Ms Mgabedeli asked for clarification on paragraph 19, page B-15 of Annexure B, regarding 'This procedural amendment broadens the membership of the Convention to include any Member State of the United Nations irrespective of the fact that such a state is not a maritime state. The membership of the Convention is also opened to any State that is not a Member State of the United Nations on the condition that it complies with Article XX (b) of the Convention. This amendment has no implication on the Republic of South Africa, as a Member State, as the Convention was signed in 1967 by a duly authorised representative thereof and deposited its Instrument of Ratification in accordance with Article XVIII of the Convention in 1968'.

Rear-Admiral Teuteberg replied that, however, in terms of the fact that one wanted countries like Mozambique, Angola, and Namibia to become Member States of the IHO, the paragraph on page B-15 of Annexure B had been added: 'A State that is not a member of the United Nations may only accede to this Convention by applying to the Depositary, and by having its application approved by two-thirds of the Member States'. This was introduced so that no country might feel excluded.

Mr Maynier asked if any analysis had been made of expenditure on hydrography in the region. According to his own analysis, expenditure had exceeded total revenue raised in the region.

Rear-Admiral Teuteberg replied that, in terms of the aid being received by those countries in SAIHC and their move towards  becoming Member States of the IHO, he did not have with him detailed information, but if one examined the aid being received through the SAIHC for countries which were not Member States of the IHO, then expenditure exceeded the membership fee by far. Mr Maynier was correct.

The Chairperson said that the Committee had an obligation to examine the morale of defence personnel, which necessitated ensuring sufficient revenue. Hydrography was a rare skill. He appreciated the questions posed by Members. Moreover, the Committee was bound by the Constitution to ask such questions and satisfy itself. He noted that much was said about Monaco. He asked Rear-Admiral Teuteberg to explain the essential significance of the Protocol of Amendments to the South African Navy and how it might help the Navy realise its ambitious plans.

Rear-Admiral Teuteberg replied that in 1995 the South African Navy realised that unless a country was a Member State of the IHO, it could not participate in the Organisation, and felt that this was a shortcoming. Tthere were very few African countries in membership of the Organisation. On its own initiative the South African Navy had formed the Southern African and Islands Hydrographic Commission (SAIHC), a regional organisation not at that time linked to the IHO. The South African Navy believed that hydrography should not stop at the boundaries of South Africa. All countries of SADC that were not members of the IHO joined SAIHC. However, one wanted countries like Mozambique and Namibia to be members. It was intended that nobody should feel excluded. Subsequently the IHO had agreed that the SAIHC could be given recognition by the IHO even though not all member countries of SAIHC belonged to the IHO. It then became an official regional hydrographic commission of the IHO.

Referring to page B-16 of Annexure B, Ms Mgabedeli said that the last paragraph created an uncertainty, and asked for reassurance. She asked further about Article XX1, on page B-15.

The Chairperson referring to the paragraph that read 'considering that the vision of the International Hydrographic Organisation is to be the authoritative worldwide hydrographic body which actively engages all coastal and interested States to advance maritime safety and efficiency and which supports the protection and sustainable use of the marine environment' on page B-1 of Annexure A, asked Rear-Admiral Teuteberg if he would 'still stick to your word that says you would have capacity to maintain this vision'

Rear-Admiral Teuteberg replied: 'Absolutely'.

The Chairperson pointed out that the South African National Defence Force (SANDF) had entered into memoranda of understanding that it had neither honoured nor had the capacity to honour. He asked the South African Navy for reassurance, and emphasised at length that the Committee was dealing with morale. Morale of defence force personnel went together with resources. He did not want at a future meeting to be confronted with 20 questions from Mr Maynier on the morale of defence force personnel.

Mr Maynier asked that the Chairperson please not embarrass Rear-Admiral Teuteberg with political questions, which might properly be addressed to the Minister, rather than military questions.

Rear-Admiral Teuteberg replied that he had been honoured to be able to answer Members' questions to the best of his ability. He mentioned humorously that he had a note of Mr Maynier's telephone number, with the possibility of calling him up to resume his previous career as a submariner, since there was a shortage of such personnel. Rear-Admiral Teuteberg said that the South African Navy had participated in drafting the Protocol of Amendments, and that it honestly believed that adoption of the Protocol of Amendments would improve the workings of the Convention and the SAIHC to ensure that hydrography was improved on the African continent. Captain Abri Kampfer, Hydrographer to the South African Navy, had become the fourth recipient of the Alexander Dalrymple Award for outstanding work in hydrography worldwide and along the South African coastline. This trophy was instituted in 2006 by the United Kingdom Hydrographic Office. Captain Abri Kampfer would not have achieved that award if he had not done what he had set out to do. Rear-Admiral Teuteberg said that the examples in front of him were paper charts that all vessels were legally required to carry. However, under Captain Kampfer's guidance, South Africa had become a leader in the production of electronic navigational charts. South Africa had chaired several of the subcommittees and was certainly recognised as one of the main players. Its record spoke for itself.

The Chairperson asked about a vessel that had run aground near his home in Blaauwberg.

Rear-Admiral Teuteberg replied that it was a fact of life that if you anchored in Table Bay in winter, with your engines disabled, then you were likely to drag your anchor and be blown ashore by the north-westerly wind at Blaauwberg or Milnerton. He was not convinced that the captain of the vessel had asked for assistance in good time.

Ms Mgabedeli said that it was important to be explicit. She asked about page B-10, and with reference to page B-12, paragraph 13, and page B-14, paragraph 17, of Annexure B, she asked about the Vienna Convention on the Law of Treaties, 1986.

Mr Mc Duly replied that this dealt with the constitutional jurisdiction of the country concerned. 'It's the entire geographical entity of the Member State. So it's just procedural, and it deals with the international legal personality of the International Hydrographic Organisation as one of the subjects of international law.' 

Rear-Admiral Teuteberg said, with reference to page B-10, that the Prince of Monaco had made available the premises for the International Hydrographic Bureau (IHB), the Secretariat of the IHO, in perpetuity. The IHB was staffed by a number of permanent employees, including elected directors. The possibility that the Hydrographer of the South African Navy would be seconded, within his present term of office, with a consequent financial cost to the South African Navy, was remote. The directors were usually retired hydrographers.

Rear-Admiral Teuteberg accepted, further to questions raised in the 09 September 2009 meeting, that the South African Navy might have fallen short in informing the South African people of the importance of hydrography, and had debated ways and means to remedy the deficiency.

Ms Mgabedeli asked for an assurance in writing, 'in black and white', that there would be no additional financial implications.

Rear-Admiral Teuteberg said that one could ask the IHO to include an additional clause, but he believed that this would delay the implementation. 'However, if I undertake to ensure that our business plan, the strategic business plan of the Department of Defence/South African Navy reflects what is being said here, I will personally ensure that this is captured in black and white in the Department of Defence's strategic objectives: would that suffice – would my promise suffice today?'

Ms Mgabedeli said 'Yes'.

The Chairperson replied that it would suffice. However, he asked Rear-Admiral Teuteberg to put it in writing.

The Chairperson read the motion of desirability to adopt the Protocol of Amendments. There being no objections, the motion of desirability was adopted.

The Chairperson said that Ms Mgabadeli was expected to speak in the National Assembly on Thursday, 17 September 2009, on the subject for five minutes.

The meeting was adjourned.