Minister of Defence & Military Veterans on release of Interim National Defence Force Service Commission reports and Defence Amendment Bill [B11-2010]

Meeting report

The Chairperson welcomed the Honourable Lindiwe Sisulu, Minister of Defence and Military Veterans and Thabang Makwetla, Deputy Minister. The Minister was invited to provide clarity to the Committee on issues that had arisen in earlier deliberations on the proposed Defence Amendment Bill, specifically concerning the reports issued by the Interim National Defence Force Service Commission (INDFSC).

Minister Sisulu informed the Committee that she would comment on the Defence Amendment Bill as well as the matter concerning the INDFSC report. She had not received any letter requesting the report from the Chairperson of the Committee. She wished to voice her objections to what had transpired during the Committee meeting held on 21 July 2010 concerning the report from the INDFSC. She had written a letter to the Chairperson of the Committee and proceeded to read the letter to the Committee. She had noted with dismay that the Committee had again raised the matter concerning the report after it had been discussed extensively during meetings with her on 18 November 2009, 16 March 2010 and 1 April 2010. Copies of the minutes of the meetings were attached to her letter. She understood that the matter had been dealt with and laid to rest. The report of the INDFSC was considered to be a work in progress and had been referred to the Chief of the Defence Force for comment. The report would only be released once it was finalised and had been presented to the Cabinet. She expected the Committee to adhere to the procedures and good governance practices laid down for the release of the report. She expressed dismay that the Committee sought to discuss the report before the process had been completed. The INDFSC was a ministerial commission rather than a statutory commission. Although not compelled to do so, she had introduced the Commission to the Committee. She requested clarity on the status of meetings with the Committee as she felt that the matter had been discussed and resolved during previous meetings yet was raised again during subsequent meetings of the Committee.

The Chairperson advised that the discussions held by the Committee were recorded in the minutes of the meeting. He invited comment from the Members of the Committee.

Ms S Ndabeni (ANC) and Mr L Mphahlele (PAC) requested clarity on the issue concerning the letter from the Chairperson of the Committee that the Minister had not received.

Mr D Maynier (DA) said that the Committee faced a much bigger problem than whether or not letters had been received. The problem was a “crisis of accountability”. The Chief of the Defence Force and the other Service Chiefs had not appeared before the Committee.

Minister Sisulu interrupted Mr Maynier and called a point of order. The matter raised by Mr Maynier was not related to the matter under discussion. The Chairperson requested that Mr Maynier confine his comments to the matters raised by the Minister.

Mr Maynier said that the “Mexican Standoff” between the Committee and the Ministry was symptomatic of a bigger problem that must be resolved in the interests of the South African National Defence Force (SANDF) and the country.

The Chairperson advised that he had sent a letter to the Minister on 15 June 2010 to request the Commission’s reports if the reports were relevant to the Defence Amendment Bill currently before the Committee. The letter was signed by his secretary on his behalf. The letter was following up the requests from the Committee for the reports, submitted on several previous occasions. He would provide copies of the correspondence to the Members of the Committee.

Mr Maynier referred to media reports over the previous weekend that indicated serious problems within the SANDF, which could threaten national security. The letter from the Chairperson clearly set out the Committee’s intentions but the Minister was using a technical argument to avoid releasing the reports. He said that the Committee wanted to see the reports and he asked the Minister whether or not she intended to release the reports.

Minister Sisulu again asked what the status was of the meetings held with the Committee. The meetings were minuted and formed part of the parliamentary procedures. During the last meeting, she had raised her concern over the Committee discussing the reports before they were finalised and submitted to her, the defence establishment or the Cabinet. She reiterated that the reports were not finalised and therefore had no standing. She insisted that there was no crisis within the SANDF and stated that the Defence Force was in a better position than at any time during the previous fifteen years. She accused Mr Maynier of posturing and using populist politics to draw media attention.

The Chairperson confirmed that the records of Committee proceedings were included in the parliamentary records. He asked the Minister to state for the record when the Commission’s reports would be made available to the Committee.

Minister Sisulu quoted from the minutes of the Committee meeting held on 30 April 2010. It was minuted that David Maynier had asked if the reports would be released before the Committee deliberated on the Defence Budget Vote. In her reply, she had stated that the reports from the INDFSC had not been finalised and she was unable to provide a date by when the reports would be released. The report would be released to the Committee only after the final report and recommendations were submitted to and endorsed by the Cabinet. Alternatively, the Chairperson of the Committee could approach the Speaker and request an exemption in order to obtain a copy of the interim report.

Ms Ndabeni pointed out that Mr Maynier as a Member of Parliament should be addressed as “the Honourable Maynier” and not as “David Maynier”. She asked if the INDFSC report had any implications for the proposed Defence Amendment Bill.

Mr Mphahlele asked if the availability of the report to the Committee was a right or a privilege. The INDFSC was a ministerial rather than a statutory Commission and the Members of the Committee might not be entitled to have sight of the report.

Mr L Diale (ANC) requested clarity on the Minister’s comments regarding the status of the meetings with the Committee.

The Chairperson explained that the meetings of the Committee were minuted. The Committee had to respond to the letter from the Minister. Copies of the relevant correspondence would be circulated to the Members and an opportunity provided for reflection and further discussion. In her letter, the Minister had referred to the relationship between Parliament and the Executive. He had referred his letter to the Minister to the parliamentary legal advisers with the request to submit an opinion on whether or not the Committee had transgressed and compromised the relationship between Parliament and the Executive. Copies of the legal opinion on the matter would be circulated to the Members as well. The Committee would communicate the response to the Minister’s letter to her in the formal manner.

Mr Maynier said that the Minister had given a clear indication to the Committee that the reports of the INDFSC were not released because they had not been finalised and submitted to the Cabinet. He asked if the reason for refusing to release the reports because they were considered to be a work in progress, was valid. He wondered what was in the reports that the Minister was so anxious to keep from the public domain.

Ms Ndabeni called a point of order. The Committee was concerned about whether or not the reports would be made available and the content of the reports could not be discussed before the reports were released.

The Chairperson ruled that the discussion should be limited to the availability of the reports and not the content.

Responding to Mr Mphahlele’s question, Minister Sisulu explained that the INDFSC was a ministerial Commission, which reported to the Minister. Although not a requirement, she had decided to introduce the Commission to the Committee to facilitate the legislative amendment process. The appointment of the INDFSC was approved by the Cabinet. The submission of the Commission’s report had to be done in accordance with the laid-down procedure and the Committee had to follow the legal guidelines. She stated that the interim reports submitted by the INDFSC did not contain anything that had to be hidden from the public. She again berated Mr Maynier for “posturing in the media” in an attempt to gain media attention. If the interim reports contained any threat to the national security, she would have dealt with the matter without any delay. She was committed to serving the SANDF and deplored the lack of reporting on the positive achievements of the Defence Force.

Responding to Ms Ndabeni’s question, Minister Sisulu denied that the reports issued by the INDFSC contained any implications for the Defence Amendment Bill. She read out the terms of reference of the Interim Commission, which was the establishment of a permanent SANDF Service Commission and a special dispensation for the members of the Defence Force. She said that this had nothing to do with the media hype that had been created and again took Mr Maynier to task for exploiting the media hype to raise his own political profile. She pointed out that the report issued by the Military Veterans Task Team took six months to be finalised before it was submitted to the Cabinet. The report from the INDFSC would follow the same process.

Mr D Smiles (DA) felt that the Minister’s sarcasm directed at Mr Maynier was inappropriate. He pointed out that the Committee was responsible for ensuring that the legislative amendments were done properly and relied on the Minister’s advice regarding the Defence Amendment Bill. The Minister had stated that the report from the INDFSC had no implications for the Bill but that was her personal point of view. The Members should be allowed to have sight of the reports in order to satisfy themselves that all the necessary amendments to the Defence Act were incorporated and that the need for further amendments were avoided.

The Chairperson said that the Minister was better informed with regard to the contents of the reports from the INDFSC. The Committee was reliant on the Minister to provide adequate guidance and had to trust her to inform the committee if there was anything pertinent in the report that affected the Defence Amendment Bill.

Mr Smiles agreed with the Chairperson’s comment but felt that the Members of the Committee had to see the reports and had to satisfy themselves without relying on the interpretation of the Minister.

The Chairperson replied that the Minister had outlined the process that had to be followed before the report could be released. If the Committee did not object to the process, it had to be respected and allowed to follow its course. The Minister was not able to indicate when the process would be completed.

Mr Maynier said that the Committee would have liked to have been in a position to compliment the SANDF on the good performance during the 2010 FIFA Soccer World Cup but had not been briefed by the Defence Force.

The Chairperson interrupted Mr Maynier and requested that the discussion be limited to the issue of the INDFSC report.

Mr Maynier advised that he had submitted an application to obtain the interim report of the INDFSC in terms of the Access to Information Act (PAIA) but had received no acknowledgement or response to his application. He could only assume that the Minister had refused the request for the release of the report and wanted to know what the reason was for the refusal.

The Chairperson replied that the Minister was not responsible for PAIA and he did not wish to create the impression that she was interfering in the implementation of that Act. He said that the Minister was not required to respond to Mr Maynier’s question and suggested that he confine his questions to matters concerning the SANDF.

Mr Maynier pointed out that the Department of Defence was not exempt from PAIA and that the Minister had an obligation to respond to his question.

Mr A Maziya (ANC) called a point of order. He said that Mr Maynier’s PAIA application was submitted in his personal capacity and was not made on behalf of the Committee. He suggested that Mr Maynier deal with the matter outside the Committee meeting.

The Chairperson said that he had already ruled that the Minister was not required to respond to the matter concerning Mr Maynier’s PAIA application.

Mr Maynier said that the Minister’s statement that the interim reports of the INDFSC had no bearing on the Defence Amendment Bill could not be true as the reports included recommendations with regard to the conditions of service within the SANDF. The Committee required sight of the reports in order to proceed with the legislation. He suggested that the Committee summon and compell the Minister to release reports and proposed that the Committee delay proceeding with the Bill or alternatively omit the amendments concerning the service conditions from the Bill.

The Chairperson invited the Members to comment on Mr Maynier’s proposal.

Mr E Mhlambo (ANC) agreed with Mr Maynier and said that Parliament could not be held to ransom. However, the Minister had clearly set out the procedures that had to be followed with regard to the release of the reports. Provided that the procedures were followed, the Committee had the responsibility to proceed with the Bill.

Ms Ndabeni disagreed with Mr Maynier’s proposal. She said that the Committee had assumed that the content of the INDFSC reports was relevant to the Bill but she took comfort from the assurance of the Minister that the reports did not contain any implications. The Committee was concerned with improving the lives and the service conditions of soldiers and delaying the Bill would not serve the SANDF or the country.

Mr Diale disagreed with Mr Maynier’s proposal. He noted that the Minister was not refusing to release the report from the Commission. The Committee had to honour the procedures that needed to be followed and should respect Government structures and processes.

Mr Maynier said that the Members of the Committee had to take into account that the Bill would be proceeded with without the Members having any understanding of the current conditions of service within the SANDF.

The Chairperson suggested that the Committee accept the Minister’s bona fides and accept her assurances that there were no implications to the Bill contained in the INDFSC report. He pointed out that the Committee had accompanied the Minister on tours to military bases and border posts and had had an opportunity to inspect the prevailing conditions. The Committee had to follow the correct processes and could visit military bases again to verify conditions if necessary. The Committee supported the INDFSC and could not stall the legislative process that would improve the conditions of service. The Committee was guided by the Minister that the proposed amendments were in order. He agreed that current service conditions were a problem but that issue would be attended to by the permanent SANDF Service Commission. None of the Members disputed the fact that the release of the INDFSC reports had to be done in accordance with procedure. He ruled that further discussion be limited to the provisions of the Defence Amendment Bill.

Minister Sisulu pointed out that the purpose of the Defence Amendment Bill was not to improve the conditions of service, which was her responsibility. The Bill made allowance for the establishment of a different dispensation for the members of the SANDF and a permanent National Defence Force Service Commission. The SANDF was unique and the Public Service Act (PSA) could not adequately deal with the Defence Force. Members of the Defence Force were not ordinary public servants. She repeated the terms of reference of the INDFSC. The Defence Amendment Bill created the regulatory framework for the establishment of a unique service dispensation for the SANDF. She described the process followed by the INDFSC. The Commission had visited military installations, met with the Public Service Commission (PSC) and determined which PSC responsibilities could be taken over. The Labour Relations Act did not apply to the Defence Force and it was necessary to formulate regulations that would ensure that the members of the SANDF were adequately represented. The INDFSC presentation to the Committee on 21 July 2010 went into a great deal of detail on the proposed amendments to the legislation. The issue concerning the separation of the two amendments was discussed during the briefing. The State Law Advisers have found that legislation was required to establish a permanent Commission and that the powers and functions of the Commission had to be included in the legislation.

Mr Maynier said that the proposed Defence Amendment Bill effectively removed the existing Military Bargaining Council (MBC). He asked what the implications were for the members of the SANDF. He asked what the plans of the Department of Defence were with regard to the military labour unions. He referred to the statement made by the President that the Defence Force would be de-unionised.

The Chairperson requested clarity on the responsibility for the appointment of Commissioners. The proposed legislation allowed for the omission of certain matters in the interest of national security in the reports issued by the Commission. He asked why the Commission required such protection.

Minister Sisulu explained that the Commission would advise the Minister and was not a constitutional entity that required the President to appoint Commissioners. The matter was discussed with the Cabinet, which felt that it would not be appropriate for Commissioners to be appointed by the President. The usual processes in respect of the appointment of Commissioners were applicable. As the legislators, the Members of the Committee could decide on what should be included in the legislation. The issue of the military labour unions was not relevant to the proposed legislation. The Constitution made allowance for the separation of security services from the other public services but made no specific mention of the separation of the Defence Force. The members of the SANDF were not currently represented on the MBC and the proposed amendments were intended to establish a framework for the representation of soldiers. The decision on whether or not military unions would be allowed, rested with Parliament.

The Chairperson requested clarity on the proposed amendments concerning the Military Command and the SANDF Reserve Force.

Minister Sisulu explained that a definition of “conditions of service” were included in the Bill. The applicable conditions were more than remuneration. The Commission would have access to classified information, which may not be made public and the Bill made provision for the omission of classified information from the Commission’s reports.

Mr Maynier felt that his question regarding the MBC was not responded to by the Minister. He asked if the Minister intended to introduce legislation to get rid of the military unions.

Minister Sisulu replied that she intended to discuss the labour union issue but it was the prerogative of Parliament to get rid of the unions. Responding to the question from the Chairperson, she explained that the Constitution required the President to appoint the Military Command but did not specify if this was applicable to the Chief of the Defence Force or included the Service Chiefs. The proposed amendment specified that the Service Chiefs, the Chief of the SANDF Reserves as well as the Chief of the Defence Force were appointed by the President. The second INDFSC report included the legislative requirements for creating the permanent Commission. The military labour unions were not currently represented in the MBC and the proposed legislation would have no effect on the status of the unions. She was satisfied with the provisions contained in the proposed Defence Amendment Bill and requested that the Committee proceed with the Bill.

The Chairperson asked if the appointment of the Military Command would be affected by states of peace and war.

Mr Maziya asked if the Commissioners would be security-vetted as they would be privy to classified information.

The Chairperson remarked that there were a number of concerns with the proposed legislation that needed to be clarified.

Minister Sisulu said that the proposed amendments concerning the appointment of the Military Command were intended to clear up the current grey area between the Constitution and the Defence Act. The Service Chiefs sat on the Military Command Council, which operated regardless of states of war or peace. It was essential that the line of command within the SANDF was clear, especially the top structure.

Mr Thabang Makwetla, Deputy Minister of Defence and Military Veterans, provided further insight into the appointment of the Military Command.

Minister Sisulu pointed out that the Defence Amendment Bill was not about improving the conditions of service, as erroneously stated in the notice published by the Committee.

Mr Maynier requested confirmation from the Chairperson that copies of all correspondence with the Minister would be circulated to the Members of the Committee. He expressed concern that the Committee was not kept fully informed of all matters concerning the SANDF.

The Chairperson suggested that Mr Maynier submit his concerns to the Committee in writing.

Minister Sisulu recalled that she had requested that the Members of the Committee were available to attend a workshop and briefing and was saddened that her invitation was not taken up. She agreed that the Members needed to have a thorough understanding of the Defence environment and the responsibility to protect the national interest. She confirmed that she had not received the Chairperson’s letter dated 15 June 2010.

Mr Maynier asked why the Minister had replied to the Chairperson on 27 July 2010 if she had not received his letter.

Minister Sisulu explained that her letter of 27 July 2010 was in response to the “media circus” created by Mr Maynier and not in response to a letter from the Chairperson.

Ms Ndabeni suggested that all future correspondence between the Committee and the Ministry be signed for on delivery.

The Chairperson thanked the Minister, Deputy Minister and the Members of the Committee for their participation.

The meeting was adjourned.