Public Hearings on the Defence Amendment Bill [B11-2010]

Meeting report

Submission by South African National Defence Union (SANDU 1)
Mr Dumisani Peter, National Secretary, SANDU 1, presented the Union’s submission to the Committee (see attached document).

Comment from SANDU 1 on the Bill was restricted to the establishment of a permanent National Defence Force Service Commission (NDFSC).  The Union maintained that the Interim National Defence Force Service Commission (INDFSC) was established after members of the Defence Force staged a widely reported march on the Union Buildings in Pretoria on 26 August 2009.  The protest action occurred after the military labour unions had failed to address the issues concerning the conditions of service and remuneration of members of the Defence Force with the Department of Defence and Military Veterans (DDMV).  Subsequent to the march, the Minister of Defence and Military Veterans had announced her intention to ban the military unions in the media.

SANDU 1 felt that the establishment of the NDFSC would further undermine the Constitutional rights of the military unions.  The Union proposed that the existing mechanisms allowing collective bargaining should rather be addressed.

The other concerns raised by SANDU 1 related to the process followed to appoint Commissioners.  The Union felt that the Commissioners would be compelled to act in accordance with the instructions of the Minister.  Commissioners would serve on a part-time basis and would not be able to devote the necessary time and commitment to the work of the NDFSC.  No provision was made for military unions to be represented on the NDFSC.  The role of the Military Bargaining Council (MBC) was not clearly defined.

Discussion
The Chairperson remarked that Members of Parliament who were appointed Commissioners had the dedication and experience required to serve on the NDFSC.

Mr P Groenewald (FF+) referred to the concerns raised by the Union that collective bargaining would not take place if a permanent NDFSC was established.  He understood that the remuneration of members of the South African National Defence Force (SANDF) was currently determined by the Public Service Commission (PSC).  He asked to what extent collective bargaining was currently taking place.

Mr D Maynier (DA) requested clarity on the difference between the two SANDU unions.  The issue of a crisis in the SANDF was currently the subject of public debate.  The Minister had denied that there was a crisis but it was apparent that the military unions disagreed.  He asked if SANDU 1 was opposed to or supported the establishment of the NDFSC.

Mr Peter conceded that collective bargaining was currently not taking place.  The MBC had not been function over the previous three years.  Unions had challenged the amendments to the regulations issued by the previous Minister, which effectively disbanded the MBC, in the Courts.  The DDMV had developed bilateral relationships with certain entities, which made input into the determination of SANDF salaries but the PSC and the Public Service Association (PSA) played no role.  Recently, the PSA demanded an 8.5% salary increase but the military unions have not been advised that such an increase would apply to the Defence Force as well.  He felt that the public hearings were not the correct forum for a discussion on the differences between the military unions.

Responding to the question on a crisis in the Defence Force, Mr Peter said that there were major concerns over the state of the living conditions of members of the SANDF, the provision of health services and the implementation of the promotion policy.  There was currently no forum where military unions could represent their members and the unions had to rely on costly and time-consuming challenges in the Courts.  The SANDF had cited budget constraints as the reason for reducing the number of officer positions created.  Military equipment and vehicles were not repaired and maintained.  Certain units could practice at shooting ranges only once a year.

Mr Peter declined to answer the question on whether or not SANDU 1 supported the establishment of the NDFSC.  The Union required clarity on the future status on military unions but would not support the NDFSC if the establishment of the Commission resulted in the demise of the unions.

Mr Maynier asked if the differences between the military unions were based on egos or ideology.

The Chairperson agreed with Mr Peter that the public hearings on the Bill were not the correct forum for discussing the differences between the unions.  He asked for specific details of the provisions contained in the Bill that resulted in the Union’s suspicion that the Commission would not be allowed to act independently and would result in the demise of the unions.

Mr E Mlambo (ANC) asked for clarity on the Union’s fear that the Minister would dictate to the NDFSC.

The Chairperson urged Mr Peter to be frank and honest with the Committee.  The Members required a clear understanding of the issues in order to ensure that the legislation before the Committee was dealt with properly.

Ms N Mabedla (ANC) asked how many members of the SANDF belonged to SANDU 1.

Mr Peter replied that the arguments against the Bill were being raised in the public domain.  The major concern of SANDU 1 related to the process followed by the Minister with regard to the Bill.  SANDU 1 maintained that the Bill would ensure that military unions would not exist in future.  The audited membership number at the end of the 2009/2010 fiscal year was 5,126.  SANDU 1 had structures in the Gauteng, Eastern Cape and North West provinces.

Mr Mlambo remarked that the five concerns raised in the SANDU 1 submission did not aid the legislative process that had to be followed by the Committee.  The submission made no specific reference to the provisions contained in the Bill.

Mr Maynier noted that Mr Peter had conceded that the MBC was dysfunctional and that the unions were not currently involved in collective bargaining.  However, the salaries of members of the Defence Force had never been better, which beggared the question whether military unions were actually necessary to improve the conditions of service of the military.

Mr A Maziya (ANC) felt that the Committee needed to hold separate hearings on the issue of military unions and that the matter should not be discussed during the hearings on the Bill.

The Chairperson said that SANDU 1 had made a serious allegation that the Minister would dictate to the NDFSC.  The Union had not indicated to the Committee which specific provisions in the Bill allowed the Minister the power to influence the Commission.

Mr Peter advised that SANDU 1 had prepared two submissions to the Committee.  The second submission dealt with the legal opinion on the Bill and was not presented.  He undertook to forward the second written submission to the Committee in the near future.

The Chairperson remarked that SANDU 1’s argument would have been strengthened if the legal opinion obtained had been submitted to the Committee as well.

Submission by the South African Defence Union (SANDU 2)
Advocate Pikkie Greeff, National Secretary, SANDU 2 informed the Committee that the Union had instructed Griesel Breytenbach Attorneys to comment on the Defence Amendment Bill.  The submission from SANDU 1 focused on the constitutionality of the proposed amendments to the Defence Act (see attached document).

Advocate Adrian Friedman, Counsel, SANDU 2 presented an overview of the detailed opinion document submitted to the Committee.  Pages 3 to 15 of the opinion document detailed the effects of the proposed amendments to the existing legislation.  A summary of the effects was provided on pages 15 and 16.  The effects were categorised as the disbanding of the MBC; the establishment of the NDFSC; the power of the Minister to make regulations; the calling up of members of the SANDF Reserves and the creation of two new crimes.

Pages 17 to 22 dealt with the Chapter XX General Regulations.  Pages 23 to 31 detailed the relevant decisions of the Constitutional Court.  Page 32 commented on the memorandum on the objects of the Defence Amendment Bill.  An analysis was provided on pages 34 to 49.

The conclusion on page 50 stated that the proposed amendments were not to be supported as they would end the entitlement of military trade unions to engage in collective bargaining, curtail collective bargaining and rendered members of the Defence Force criminally liable for failing to render military service and for failing to report for duty after being called up, regardless of any reasonable excuse.  SANDU 2 felt that the existing mechanisms for collective bargaining should be fixed, rather than introducing the proposed legislative amendments.

Annexure A to the Opinion provided further detailed comment on the specific clauses of the Bill (pages 51 to 74).

Discussion
The Chairperson commented that the Committee took the proposed legislation very seriously.  The Bill was intended to improve the conditions of service of members of the SANDF.  The detailed opinion document submitted by SANDU 2 was very important to the Members of the Committee, who was responsible for ensuring that the legislative amendments were done properly.

Mr Greeff informed the Committee that MBC meetings did in fact take place.  The last meeting of the MBC was held in July 2010.  The problem with the MBC was that the Minister had not appointed the Chairperson of the Council.  The Union had written to the Minister regarding the matter and had requested a meeting to discuss the issues concerning the MBC and the appointment of the Arbitration Boards.  The position of SANDU 2 was that the collective bargaining process was dysfunctional and should be fixed in the first instance.  The Union was not opposed to the establishment of the NDFSC but the rights of the unions had to be respected.

Mr Jeff Dubazana, National Organiser, SANDU 2 expressed concern that the reports of the INDFSC had not been made available to the Committee.  He said that the Union had received portions of the INDFSC reports from an anonymous source.  He said that the terms of reference of the INDFSC were suddenly changed after the second report was submitted by the INDFSC to the Minister.  The Union was concerned that the decision to get rid of the military unions had already been taken.  The Minister had apparently instructed the INDFSC not to hold any discussions with the military unions.  The unions and their members had a right to know what the Government’s intentions were concerning the military unions.  The spokesperson for the Minister had stated that the matter was still under discussion.  The Bill reflected the Minister’s intention to disband the unions as well as the contents of the third report issued by the INDFSC.  The Minister was aware that the MBC was dysfunctional.  SANDU 2 had prepared another submission to the Committee, which dealt with the legal action taken by the Union against the Minister concerning the MBC.  A settlement was reached and the Minister had agreed to ensure that the MBC became fully functional but no steps had been taken to implement the agreement.  The Union was aware that its members were subtly encouraged to resign their union membership and threatened that continued membership would compromise their chances of promotion.  SANDU 2 disagreed with the Minister’s statement that there was no crisis in the SANDF.  The problem was a lack of leadership.

Mr Dubazana cited some of the problems experienced by members of the SANDF.  Members of the Defence Force received a smaller amount than the allowance paid to the South African Police Services (SAPS) during the 2010 FIFA Soccer World Cup.  The housing allowance paid to certain members was stopped without warning or explanation.  This was indicative of a growing autocratic trend in the SANDF observed by the Union.  The new regulations paraded since 2009 were finally issued in July 2010.  The issuing of regulations should have resulted from a collective bargaining process but the Minister had issued the regulations without any consultation with the military unions.  The INDFSC had recommended parity of the remuneration of members of the SANDF and SAPS.  In certain cases, members with lower ranks were paid larger salaries than officers with higher ranks.  Certain members were denied medical benefits as they were no longer considered to be regular soldiers.  There was much dissatisfaction with the conditions of service amongst both the officers and the lower ranks of the Defence Force.

The Chairperson reiterated that the purpose of the Bill was to improve the conditions of service of the members of the SANDF.

Mr Dubazana expressed further concern over the Minister’s tendency to act in an autocratic manner.

Mr L Diale (ANC) remarked that the allegations made by SANDU 2 were serious.  He requested further details of attempts to coerce soldiers to resign their membership of the union.  He said that the legal opinion forming part of the SANDU 2 submission was a very detailed and important document that warranted further discussions with the Committee.

Mr L Tolo (COPE) noted that South Africa had been requested to intervene in trouble spots in other African countries.  South Africa was in the international spotlight and the problems with the SANDF and the DDMV had to be resolved.  He felt that the Committee should not allow legislation that would effectively ban military unions.

Mr Maziya agreed that the submission made by SANDU 2 was useful to the Committee as the legislative entity.  He was of the opinion that the provision in the proposed legislation to establish a structure to carry out the work on conditions of service necessarily resulted in other mechanisms for collective bargaining being compromised.  He was perturbed that the unions had managed to obtain copies of the INDFSC reports whilst the Members of the Committee had not.

Mr Maynier asked if the proposed amendments to Section 55 of the Defence Act were unconstitutional.

Mr D Smiles (DA) commented that SANDU 2 were in a position to make a good submission because the Union had access to information that was not available to the Committee.  SANDU 2’s position was that the Bill was unnecessary and that the existing bargaining system should rather be fixed.

Mr A Mlangeni (ANC) reflected on the requirement of good government to provide for the needs of the people.  The events of 26 August 2009 had raised concerns over soldiers being allowed to go on strike and refuse to fight unless their demands were met.  A structure representing soldiers had to be in place and he asked if the NDFSC would be sufficient for this purpose.  He wondered why the NDFSC could not perform the functions of the unions in improving the conditions of service without the power to ask the members of the Defence Force to go on strike.  The Committee had a responsibility to ensure that legislation was in accordance with the Constitution.

Mr Groenewald noted that the intention was that the NDFSC would recognise the unique requirements of the members of the Defence Force, who would otherwise be treated as ordinary public servants.  He agreed that the current system to deal with grievances was currently not working, which was a major problem.  Recognition had to be given to the fact that different conditions of service applied to soldiers.

Mr Tolo asked which other countries had unionised military structures.

The Chairperson said that the Committee was not in a position to dispute the statements made by SANDU 2 as the Members had not had sight of the INDFSC reports.  The rulings made by the Constitutional Court included in the submission were important and had to be taken into account when considering the Bill.  Historically, the SANDF was not unionised but there had to be a balance between maintaining military discipline and union action.  He requested further information on the current situation and the recommendations concerning the MBC.  The Committee would study the submission from SANDU 2 and would invite the Union to appear before the Committee again to provide further input.

Mr Greeff advised that SANDU 2 would definitely challenge the legislation in the Constitutional Court if the Bill in its current format became law.  The Bill removed the Constitutional rights of the military unions.  He gave the assurance that SANDU 2 would be happy to appear before the Committee at any time.  He stated that the Union did not support strikes by members of the Defence Force, which was illegal.  The Union took disciplinary action against any members who participated in strikes.  However, the SANDF needed good leadership.  Most Eastern Bloc countries had military unions and the British military allowed associations to represent soldiers.  The pressure applied to encourage members to resign from the unions was subtle and the future career prospects of union members were threatened.  The Union could furnish the Committee with a copy of the pro forma document refusing the right to join a military union.  SANDU 2 agreed that a functional system to deal with grievances was necessary and suggested that the current collective bargaining process was fixed before further legislation was put in place.

Mr Friedman explained that solders had worker’s rights in terms of Section 23 of the Constitution.  These rights were limited in terms of Section 36.  Previous Constitutional Court rulings and possible alternatives were included in the opinion document submitted.  The Bill did away with much collective bargaining for no good reason.  If challenged in Court, the Government was required to provide justification for removing the Constitutional rights of soldiers.  The memorandum attached to the Bill seeked to provide the justification for the proposed amendments.  He doubted that the reasons provided in the memorandum would stand up in Court and could not conceive of a possible valid reason that could be provided.  Not liking the military unions was not an adequate reason for removing the right of soldiers to belong to a union.  The Constitutional Court had accepted that the right of soldiers to strike was limited.  The right to collective bargaining can not be removed.  A Commission appointed by the Minister cannot be compared with a labour union.  The Bill made no allowance for the unions to be represented on the Commission.  Bargaining implied the use of the collective power of the members of the union to obtain better salaries and benefits from the employer.  Unions negotiated with the employer and reached a settlement.  A Commission could only investigate issues and make recommendations but cannot enter into a collective bargaining like a union.

Mr Mongameli Kweta, Senior State Law Adviser, Office of the State Law Adviser commented that the Regulations included the MBC and the unions but was not currently before the Committee.  Whether or not the Minister intended to get rid of the unions was a subject for separate debate.  He was of the opinion that the Bill did not do away with collective bargaining.  Section 55 provided for a mechanism on reaching consensus on pay and allowed the Minister to make a final ruling.  He was of the opinion that the Bill did not prevent the continued existence of military unions and would pass muster in the Constitutional Court.

Mr Groenewald referred to item 2.5 of the Memorandum on the Objects of the Defence Amendment Bill.  The point was that the NDFSC was established “to relieve the Defence Force from depending solely on the largely dysfunctional bargaining process”.  The intention was to make provision for an additional, alternative mechanism to determine conditions of service and did not exclude labour unions in the Defence Force.

The Chairperson suggested that the Members of the Committee studied the opinion and that an opportunity to discuss it in greater depth was scheduled.

Mr Maynier said that the Members of the Committee agreed that they lacked a clear understanding of the context of the Bill.  The Committee also lacked a clear understanding of the ministerial policy on military unions.  The Committee had requested clarity on these issues from the Minister and from the Secretary of Defence on many occasions but had received no satisfactory response.  There was currently a policy void on the matter of military unions and he urged the Chairperson to obtain clarity from the Minister before the Bill was finalised.

The Chairperson noted the concerns raised by Mr Maynier and agreed that it was vital that the Committee was in possession of all the information relevant to the proposed legislation.

Submission by the South African Security Forces Union (SASFU)
Mr Bhekinkosi Mvovo, President, SASFU, presented the submission of the union to the Committee (see attached document).

SASFU stated that the military unions were not consulted during the drafting of the Defence Amendment Bill.  The Union submitted that the proposed amendment to Section 55 of the current Act was unconstitutional as it negated the role of the MBC and compromised soldier’s Constitutional rights to join labour unions.  The Union acknowledged the need for a regulatory framework but the Minister had failed to issue regulations and implement the required structures provided for in the existing legislation.  The proposed amendments were intended to replace the MBC with the NDFSC.  SASFU was of the opinion that the concept of a Service Commission arose from the events of 26 August 2009.  The Minister had demonstrated a negative attitude to the military unions and SASFU considered that it was wrong to implement legislation on the basis of the attitude of one particular Minister.

Mr Mvovo was highly critical of the Minister and questioned the motivation behind the Bill.

Mr Maynier interrupted and called a point of order.  He understood that Mr Mvovo was a serving officer in the SANDF and should not be expressing negative remarks concerning the Minister.

Mr Mvovo responded that he was not in uniform and represented SASFU in his private capacity.  He proceeded with the submission from the Union.

SASFU was concerned that the Bill allowed the Minister to control and manipulate the NDFSC.  SAFU suggested that the duties of the Chief of the Defence Force and the Secretary for Defence were revised in order to be more effective instead of establishing a Commission.  The Union also suggested that the Defence Act was amended to make the Chief of Defence the accounting officer instead of the Secretary for Defence.

In conclusion, the Union considered the Bill to have been rushed through without first giving due consideration to consider making changes to the existing mechanisms already provided for in the current legislation.  The Bill was indicative of a lack of respect for the Constitution and undermined the role of Parliament and the military unions.

Mr Mvovo agreed with recent reports in the media concerning problems in the Defence Force.  The Commanders were not dealing with instances of ill discipline and relied on the Courts to decide on labour and discipline issues.

Discussion
The Chairperson pointed out that the written submission from SASFU differed from the oral presentation.

Mr Maynier asked for clarity on SASFU’s statement that the proposed amendment to Section 55 of the Act was unconstitutional.  He said that if the Chief of the Defence Force was the accounting officer, the civilian oversight responsibility of the Secretary for Defence would be removed.

Mr Groenewald requested clarity on the statement in the submission that the NDFSC would interfere with the duties of the Chief of the SANDF and the Secretary for Defence.  He wanted to know which provisions of the Bill undermined Parliament and did away with the military unions.

Mr Mvovo replied that the rights of unions to bargain with the employer on service conditions, pay and benefits were established.  The amendment of Section 55 implied that the military unions would have no right to collective bargaining.  As the current accounting officer, the Secretary of Defence exercised financial control.  However, financial control did not necessarily allow the Secretary to exercise adequate civilian oversight over the SANDF.  In terms of the current Defence Act, the Chief of the Defence Force was the principal adviser to the Minister on all matters concerning the SANDF.  The proposed amendments concerning the NDFSC made provision for the Commission to act as the principal adviser to the Minister on the same issues as the Chief.  The union was not against the Commission acting as an adviser to the Minister but suggested that the Commission assisted the Chief of the Defence Force in the first instance rather than the Minister.  The same problem applied to the duties of the Secretary for Defence.  He conceded that the Amendment Bill made no specific mention of the military unions but the provisions would have the effect of negating any role played by the unions in engaging in collective bargaining.  SASFU felt that the military unions were being undermined because they had not been consulted as a primary stakeholder in the drafting of the Bill.  Parliament was undermined because the Members of the Committee were not provided with the reports issued by the INDFSC.

The Chairperson remarked that the problems in the SANDF were not new issues.  The Defence Force did not have a long history of military unions.  He asked if SASFU agreed that the Defence Force was unique and required special conditions of service.  He noted that there were currently four military unions in existence, which was an indication that the unions were divided on how best to serve the interests of their members.  He asked how the unions expected the Committee to approve legislation on military unions as such an attempt could have very undesirable consequences.

Mr Mlambo requested clarity on whether or not SASFU supported the establishment of the NDFSC.

Mr Mvovo replied that the Union considered the Bill to be a rush job that was not properly thought through.  SASFU did not object if the NDFSC acted as an adviser to the Minister on matters concerning conditions of service but the Union had a problem with the Commission taking over the role of the military unions.  Decisions by the Constitutional Court allowed the existence of military unions and SASFU agreed that it was necessary to issue regulations governing the relationship of the Defence Force with the unions.

The Chairperson was under the impression that members of SANDU 2 were mostly white officers whilst members of SANDU 1 were mostly soldiers in the lower ranks.  He remarked that the divisions amongst the military unions served to entrench the very racial divisions in the SANDF that the unions were complaining about.  The military unions were not currently working together and he wondered if agreement would ever be reached and a unionised military could be trusted to deliver a stable and disciplined Defence Force.  The submissions from the unions had included examples of serious problems in the SANDF that required urgent and effective resolution.

Mr Mlangeni gave a lengthy explanation of the legislative role of Parliament.  The submissions made to the Committee during the public hearings were supposed to assist the Members with passing effective legislation but he felt that the submission received from SASFU did not aid the Committee to any large extent.

Mr Charles Jacobs, Deputy President, SASFU explained that unions bargained with the employer on matters concerning conditions of service, remuneration and benefits.  In terms of the existing legislation, the MBC was the forum where the military unions engaged with the employer.  However, the MBC was not functional and the proposed Bill effectively removed the MBC in its entirety.  The Minister’s attitude was that she did not like the military unions and that the unions should cease to exist.  Although the unionising of the SANDF was a relatively recent occurrence, he recalled several instances of labour action taken by soldiers since the early 1990’s.  Unions served as the go-betweens between the employer and the employees and union activity was appropriately regulated.  The decisions of the Constitutional Court concerning the military unions can not be ignored and the restrictions placed on the right to strike were not disputed.

Mr Peter commented that the SANDF made little attempt to make changes to accommodate the former freedom fighters when they were integrated with the Defence Force.  The rights of the military unions had to be respected.  The Constitutional Court had acknowledged the existence of multiple military unions.  All the unions were in agreement that the establishment of the NDFSC would effectively negate the role played by the military unions, that the attitude of the Minister and the DDMV were prejudiced against the unions, that the MBC was dysfunctional and that there was a lack of effective leadership in the Defence Force.  There were no differences in ideology between the military unions and all were committed to serving the interests of their members.

Mr Maynier said that the events of 26 August 2009 were extremely serious and represented a turning point for the military unions.  If any of the soldiers participating in the trashing of the Union Buildings on that day were members of the unions participating in the hearings, the unions owed the Members of the Committee an apology.

The Chairperson provided a detailed explanation of the role of the Members and the Committee and the importance of public submissions on the Bill.  He said that the South African public wanted the reassurance that the military unions would deliver a disciplined Defence Force.

Mr Bantu Holomisa, Member of Parliament (UDM) and Commissioner, INDFSC agreed that the issue of the military unions required a separate discussion on another occasion.  Clarity was required on the Defence policy.  The INDFSC was required to make recommendations on the conditions of service of members of the SANDF.  He disagreed that the Bill allowed for the banning of military unions and challenged the unions to provide evidence to the contrary.

Mr Maziya agreed that certain submissions received from the unions contained complaints and did not assist the Committee with dealing with the proposed legislation.  He said that the events of 26 August 2009 and sundry media statements would not influence the Members of the Committee in the consideration of the Bill.

Mr Mvovo was appreciative of the opportunity to make a submission to the Committee.  He conceded that there were outstanding ideological issues that had to be resolved.  He felt that the matter of the military unions should be dealt with in a democratic manner.  South Africa occupied a leadership position on the African continent in this respect and he suggested that a study was undertaken of other countries with military unions.  He repeated the concerns of SASFU over the proposed amendments.

The Chairperson remarked that the question of whether or not a Commission needed to be established had not been answered.  The major challenge for the Committee was which entity should be responsible for determining the service conditions of members of the Defence Force.  The Committee had heard concerns over the Minister’s powers in respect of the Commission.    The unions implied that the Bill was motivated by a desire to increase the power of the Minister but the Committee could not legislate on the basis of unsubstantiated assumptions and perceptions.

The meeting was adjourned.