Defence Amendment Bill [B11-2010] – briefing by South African National Defence Force Service Commission

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Defence and Military Veterans

20 July 2010
Chairperson: Mr M Booi (ANC)
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Meeting Summary

The Interim National Defence Force Service Commission had recently submitted two reports to the Minister of Defence and Military Veterans.  Despite several requests, the reports had not been released by the Minister to the Members of the Committee.  The Members of the Committee felt that the proposed amendments to the Defence Act could not be deliberated on as the Members did not have an opportunity to study the Commission’s reports on its findings.

The Committee decided to request an explanation from the Minister on her failure to release the reports at a meeting scheduled for Tuesday, 27 July 2010.  The Committee allowed the Commission to proceed with the briefing but questions from Members were limited to obtain clarity.

The Chairperson of the Interim National Defence Force Service Commission presented a detailed briefing to the Committee on the background and the proposed provisions of the Defence Amendment Bill.  The main purpose of the proposed legislation was the establishment of a permanent National Defence Force Service Commission to effect a special dispensation for the conditions of service of the South African National Defence Force.

Members asked questions about the proposal to allow omissions from the Commission’s annual report if deemed to be in the interests of national security and the role of Parliament in the approval of the budget, oversight over the Commission and the appointment of Commissioners.  Members suggested that the provisions concerning the relationship with trade unions and the compulsory consultation with the Reserve Force Council were described in more detail.

Meeting report

The Chairperson informed the Committee that two reports issued by the Interim National Defence Force Service Commission (INDFSC) had not been received.  The reports were submitted to the Minister of Defence and Military Veterans but the Minister had not released the reports to the Committee.

Ms S Ndabeni (ANC) said that the fact that the Members of the Committee had not received the reports was a critical issue.  As the Members did not have sight of the reports, the Committee was not in a position to discuss the findings of the INDFSC.

Mr D Maynier (DA) recalled that the Chairperson had advised the Committee during the previous meeting that was held eight weeks earlier that the reports were essential to the Committee’s deliberations.  He asked when the Chairperson had requested the reports and from whom.  He informed the Committee that he had submitted an application to receive the reports in terms of the Access to Information Act on 14 April 2010.  To date, he had not even received an acknowledgement of receipt of his application from the Department of Communications.  He felt that the lack of acknowledgement of the application was unacceptable and demanded an explanation from the Department and the Minister of Communications.

Mr Maynier pointed out that the INDFSC was not mandated to release the report and he requested an explanation from the Minister of Defence and Military Veterans on the reasons why she refused to release the reports.

Mr P Groenewald (FF+) noted that a meeting between the Committee and the Minister had been scheduled for Tuesday, 27 July 2010.  He suggested that the Members asked the Minister during the meeting for the reasons why the reports had not been released.  It was important that the Committee had sight of the reports but he proposed that the matter was proceeded with.  The presentation by the INDFSC formed one part of the terms of reference of the Commission and it would be a waste of taxpayers’ money if the Commissioners attending the briefing were not allowed to submit the presentation.

The Chairperson remarked that the reports issued by the INDFSC gave context to the need to establish the Commission.  The Minister had established the Interim Commission, which was required to submit reports and be accountable to Parliament.  The Minister was responsible for ensuring that the reports issued by the INDFSC were released.  He had written to the Minister on the matter but had not received a response.  Formal confirmation that the Minister would attend the meeting on 27 July 2010 had not been received.  As a member of the Executive, the Minister had an obligation to respect Parliament. He felt that it was important that the Members of the Committee were given an opportunity to express their views on how the briefing should proceed.  He suggested that the Committee heard the presentation from the INDFSC but refrained from deliberating on the submission.

Ms Ndabeni stood by her earlier proposal that the Committee should hear the presentation without further deliberation.

Mr Maynier agreed that members of the Executive should demonstrate respect for the Legislature.  However, the actions of the Minister provided evidence that the Minister held Parliament in complete contempt.  He asked if the Chairperson had received a reply to his letter to the Minister.

The Chairperson confirmed that no response had been received.

Mr Maynier said that the failure of the Minister to reply was a major problem and the matter should be taken up with her.  He supported the proposal that the INDFSC proceeded with the briefing to the Committee.

Mr D Smiles (DA) concurred with Mr Maynier’s comments.  He believed that it would be appropriate for the Committee to change the polite invitation to the Minister to meet with the Committee to a summons to appear.  The matter was of a serious nature and had to be dealt with.

Mr Groenewald urged that the meeting with the Minister on 27 July 2010 was finalised before Friday, 23 July 2010.  He said that it was a pity that the Minister appeared to be on a collision course with the Members of Parliament and with the Committee as this was not in the interests of the Defence Force.  There were serious problems in the Defence Force that had to be dealt with and it was regrettable if the Minister was perceived to be exacerbating the situation.

The Chairperson observed that most of the Members of the Committee were present at the briefing, which was an indication of how seriously the Members took their responsibilities.  It was imperative that the Members were fully aware of the problems in the Defence Force and were informed of the direction followed by the SANDF.  The Members of the Committee respected the taxpayers and the INDFSC and the Minister had to understand her obligation to respect Parliament as well.  He undertook to explain the Minister’s obligations to her and to obtain her commitment to meet with the Committee.

The Chairperson said that the Committee was aware that the INDFSC had done a good job and was not responsible for the reports not being received by the Members.  He ruled that the Committee would hear the presentation from the Commission but that the questions from the Members would be limited to obtaining clarity.  Once the Committee had received the reports, the matter could be further deliberated.

Briefing by Interim National Defence Force Service Commission (INDFSC)
Mr Justice Lebotsang Bosielo, Chairperson of the INDFSC, stated that the briefing was in compliance with the undertaking given to provide reports on the progress made by the INDFSC to the Committee.  He was aware of the concerns raised by the Members of the Committee over the failure of the Minister to make the Commission’s reports available to the Committee.  He informed the Committee that he had met with the Minister to discuss the matter.  The Minister informed him that it was not the task of the Commission to make its reports available but was the responsibility of the Minister.  The reports issued by the INDFSC were objective and comprehensive and the Commission had nothing to hide.

Judge Bosielo said that it had come to his attention that there were certain misunderstandings concerning the responsibility for the separate dispensation for members of the SANDF, which was the subject of the proposed amendments to the Defence Act.  The briefing was intended to clarify the matter.  The INDFSC was the only vehicle available for addressing the unique service requirements of the men and women in uniform.

Judge Bosielo proceeded with the presentation prepared by the Commission (see attached document).  The briefing included a detailed overview of the amended terms of reference and background to the Commission and the proposed provisions of the Defence Amendment Bill.

Judge Bosielo emphasised the unique requirements of the Defence Force and the need for a special dispensation for the military.  It was essential that a permanent South African National Defence Force Service Commission was established to deal with the issues concerning remuneration and conditions of service as the current Military Bargaining Council was ineffective and dysfunctional.  The failure of the Military Bargaining Council to operate effectively had created a lacuna and the members of the Defence Force had no vehicle to address problems with their conditions of service.  Current legislation was inadequate and the Minister had no powers to issue regulations.

The briefing document included a detailed outline of the proposed legislative amendments required.  The presentation was concluded with a schematic illustration of the lines of communication between the various entities concerned with Defence.

The Chairperson requested clarity on Section 62H(3) (see page 29 of the attached briefing document).  Provision was made for confidential information detrimental to national security to be omitted from the Commission’s annual report to Parliament.  The security cluster had not managed to define exactly what was meant by “national security” and he suggested that the relevant clause in the Bill was made clearer to avoid any perceptions that pertinent information could be omitted from the report.

Judge Bosielo replied that the Commission took into account that sensitive information may be revealed to the Commission in the course of its duties and that should not be made public in an annual report.

Ms Ndabeni pointed out that Members of Parliament were entitled to such information.

Mr Aboobaker Ismail, Deputy Chairperson, INDFSC explained the schematic illustration attached to the briefing document in more detail.

Judge Bosielo noted that public hearings on the Amendment Bill must still be held.  He anticipated that the establishment of the permanent Commission would elicit much public interest and debate.  He asked if deliberations on this particular part of the Bill could be separated from the hearings as the Commissioners would be conducting a benchmarking exercise in the United States of America at the time and would be unable to attend.

The Chairperson advised that the Bill was already before Parliament and must be allowed to follow due course.  The Committee did not have any powers to delay the Bill but the INDFSC could consult with the Minister and the Speaker and put forward the case to delay the process.  He gave the undertaking that the Committee would ensure that the public hearings were properly dealt with.

Mr Groenewald understood that the advertisements for the public hearings on the Bill had already appeared.

The Chairperson said that it was desirable that the Commissioners were present during the deliberations on the Bill.  It was essential that the Committee had an opportunity to study the Commission’s reports before the Bill was further deliberated on.  He said that there would be further opportunity for discussions with the Commission before the Bill was finalised.

Mr Maynier was concerned that the proposals made little provision for the oversight and monitoring role of Parliament.  Parliament played no role in the appointment of Commissioners. He felt that the omission was a weakness in the proposals submitted.

The Chairperson asked for clarity on the position of the President as the Commander-in-Chief and the role of the Constitution.  He cautioned against enacting legislation for an individual Minister as problems could be created for subsequent Ministers.  He requested that more clarity was provided on the role envisaged for Parliament concerning the Commission.  He pointed out that problems could arise if Parliament was ignored in the budgeting process.  The Commission was funded by taxpayer’s money and must therefore be held accountable by Parliament.

Mr A Maziya (ANC) suggested that the schematic illustration was revised to give a clearer indication of the responsibilities of the various entities.  For example, it would appear that the Portfolio Committee reported to the Joint Standing Committee on Defence, which was not the case.

Mr Smiles suggested that the relationship with the trade unions were described in more detail on page 10 of the briefing document.

Mr Groenewald suggested that consultation with the Reserve Force Council was specifically mentioned on page 17 of the briefing document.

The Chairperson requested more detail on the responsibilities of the various entities concerned with Defence.  The Committee had to ensure that existing responsibilities were not compromised.

Judge Bosielo thanked the Committee for the opportunity to present the briefing and the input and support received from the Members.  Certain matters concerning the establishment of the Commission needed to be finalised.  The INDFSC was of the opinion that extensive involvement by Parliament in the management of the Commission would be too onerous and it might be more effective if the Commission was overseen by the Public service Commission.

The Chairperson noted that the SANDF was unique, which was the reason for the establishment of the Commission.  The Committee was concerned that the Commission was fully functional as the work done would affect other entities and it was important that there would be no adverse effect on the other parties involved.  The Committee had to approve the budget of the Commission and the reports from the Commission were very important to provide the necessary information.  It was important that Members understood the responsibilities of all the parties that would be affected by the Commission.  Public hearings would be held, after which there will be opportunity for further discussion before the Bill was finalised.

The meeting was adjourned.


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