Defence Amendment Bill [B11-2010] Public Hearings Day 2

Meeting report

The Chairperson advised the Committee that the public hearings on the Defence Amendment Bill were expected to be concluded that day and that deliberations would commence the following week. 

Members held a general discussion on the future progress of the Bill and whether or not certain organisations that had made submissions on 3 August 2010 would be invited to appear before the Committee again.  The South African National Defence Union (SANDU 2) had submitted a detailed opinion on the Bill, which Members felt required further discussion.  Clarity on the defence policy was required from the Minister of Defence and Military Veterans.

Mr Dumisani Peter, General Secretary, SANDU 1 advised that the legal opinion prepared by the Union had been forwarded to the Committee, as agreed during the previous day’s proceedings.

Submission from the Reserve Force Council (RFC)
Mr Teddington Nqapayi, National Vice Chairperson, RFC, introduced the delegates from the Council.  Rear-Admiral (JG) Lukas Bakkes, Legal Adviser, RFC, presented the submission to the Committee.

The first part of the submission dealt with the inclusion of an expanded definition of “Military Command” in the Bill (see attached document).  Section 202 (1) of the Constitution required the President to appoint the Military Command of the Defence Force.  However, the Defence Act of 2002 did not define the Military Command and only made provision for the appointment of the Chief of the SANDF and the Secretary for Defence by the President.  The proposed amendment specified that the Chiefs of the Army, Navy, Air Force, Medical Health Services, Defence Intelligence and Joint Operations were included in the Military Command in addition to the Chief of the SANDF.  The Secretary for Defence had to be a civilian and should not be considered to be a member of the Military Command.

The RFC suggested that the Chief of the SANDF Reserves, who would be a serving officer of the Reserve Force, be included in any legislative definition of “Military Command”.  The submission included three alternatives to address the current legal lacuna.

The second part of the submission dealt with the provision requiring the Minister to sign the contracts entered into with reservists.  The issue was extensively dealt with in the briefing of the SANDF Reserves to the Committee on 20 July 2010.  The RFC recommended that the provisions allowed for the Minister to delegate this onerous duty.  The proposed amendments also made provision for following up if the contract was not signed by the reservist within 18 months.  The RFC recommended that a period of 18 months was adequate and that membership of the SANDF Reserves should be automatically terminated if not renewed in time.  The additional administrative function was onerous and of little benefit and Reservists could always apply to re-join the Reserve Force.

Discussion
Mr D Maynier (DA) asked if there were any precedents concerning the appointment of the Military Command.

Admiral Bakkes explained that the RFC submission responded to the invitation to make submission published in the media on 27 June 2010.  The Council included three possible alternative options to the proposed amendments concerning the Military Command (see pages 12 -14 of Annexure A).

The Chairperson remarked that the Policy Commissioner was appointed by the President.  The Committee conducted oversight over the South African Police Services (SAPS) and had found that the lower ranks showed little respect for an appointed Commissioner who had not risen through the ranks.  He wondered what the intention of the proposed legislation to have the Defence Force Chiefs appointed by the President was.  The Committee was aware that there were problems if the Minister interfered in the appointment of officers and was wary of creating unintended consequences.  The Committee understood that the Defence environment differed during times of peace and of war.

Mr E Mlambo (ANC) understood that the President was the Commander-in-Chief of the SANDF and could call on the service Chiefs to serve on the Military Council.  He requested further clarity on the RFC recommendation that the Secretary for Defence, who conducted civilian oversight over the SANDF, was excluded from the Military Command.

Mr Maynier noted that the Constitution made provision for the President to appoint the Secretary for Defence as well as the Military Command.  He was not clear on why it was a problem if the Secretary was included in the Military Command.  He understood that the Defence Force Chiefs were appointed in accordance with the Public Service Regulations.  He suggested that the problem that the proposed suggestion was intended to address was clearly identified to allow for specific solutions to be found.

Mr Mukesh Vassen, Parliamentary Legal Adviser, advised that the Constitution did not make specific mention of the Reserve Force.

Admiral Bakkes conceded that no specific mention was made but the SANDF Reserves was a “Constitutional Imperative”.  He again explained Section 202 (1) of the Constitution and the legal lacuna created by the omission of a definition in the Defence Act that clarified exactly which parties were included in the Military Command.

Mr Maynier recalled that the dilemma arose only when the President recently appointed the Chief of Defence Intelligence.

The Chairperson asked the representatives of the Department of Defence and Military Veterans present at the hearings to take note of Members’ concerns.  He said that the Committee required answers and that there could be unknown circumstances that resulted in the proposed legislation of which the Committee was unaware.

Mr Maynier asked if the Reserve Force was currently excluded from the Military Command.

Admiral Bakkes explained that the Military Command Council (also known as the Staff Council) included the Chiefs for the Reserves as well as those responsible for Logistics, Human Resources and other staff structures.  The SANDF Reserves were currently a part of the Military Command but the Chief was not a Presidential appointee.  The RFC suggestion was that the Chief of the SANDF Reserves was included in any change to the legislation that specified the posts included in the Military Command.

Mr A Maziya (ANC) remarked that all members of the Reserve Force were volunteers and served on a temporary basis.  He was not sure that the President should appoint a Reserve Force Chief, who was serving on a voluntary and temporary basis.

Mr P Groenewald (FF+) understood that the inclusion of the definition of Military Command in the proposed amendments was a technical issue and that the RFC proposed that the Chief of the SANDF Reserves was specifically included in the definition.

The Chairperson said that Mr Maziya was querying if the Reserve Force should be included as reservists were volunteers who served on a temporary basis.  He suggested that the Committee meet with the Chief of the Defence Force and obtained clarity on the issue.

Mr Nqapayi pointed out that it should not be a problem to include the Chief of the SANDF Reserves as the Reserve Force was part of the SANDF.  He added that many officers in the Reserve Force served on a more or less full-time basis.

Mr Maynier asked if the RFC had investigated international practice or done a benchmarking exercise on military councils or military command structures.

Admiral Bakkes replied in the negative.  He explained that the SANDF included both the regular and reserve forces.  Responding to Mr Groenewald’s question, he said that the Committee would determine what the definition of the Military Command should include.  He had asked Brigadier-General Del Monte to conduct an informal survey on the matters of military unions, reserves and military command structures during his forthcoming visit to Norway.

The Chairperson referred to the point raised in the submission from the South African National Defence Union (SANDU 2) that the Bill introduced two additional crimes.  He asked what the RFC’s position was on the matter.

Admiral Bakkes replied that the Council supported the view of SANDU 2 and suggested that the inclusion of the phrase “failure without a valid excuse” would remedy the problem.  It was not fair that a soldier who failed to report for duty or respond to call-up would be guilty of a crime as there could be a valid reason for such failure.

Mr A Mlangeni (ANC) considered that the period of 18 months allowed for a reservist to retain membership of the Reserve Force by signing a contract was an adequate and reasonable time allowance.

Mr L Diale (ANC) asked what the age limit was for joining the Reserve Force and if anyone could join.

Mr Maynier noted that the legislation included protection for members of the Reserve Force but there was no recourse for employers, who may suffer detrimental consequences if employees were called up to serve in the SANDF Reserves.

Admiral Bakkes advised that the age limit for joining the Reserve Force was 18 to 65.  Under certain circumstances, the age limit may be extended to 75 if the reservist had special skills and was fit and able to serve.  In such cases, the Chief had to justify the extension.  The legislation made provision for Exemptions Boards and reservists may apply for exemption or deferment if service would result in a problem for the business.

Mr Nqapayi said that good relationships between the employers, employees and the Reserve Force need to be developed.

Mr D Smiles (DA) said that the matter concerning the members of the previous Ciskei Defence Force had to be resolved as a matter of urgency.  It was still not clear whether or not the affected persons were regarded as military veterans or not.

Mr Groenewald noted that the Bill made no provision for the financial compensations of employers if reservist employees were called up.

Mr L Tolo (COPE) observed that there were few females amongst the members of the Reserve Force and the military unions.

Mr Maynier said that the issue of adequate protection of employers required further discussion.

The Chairperson was aware of complaints from reservists that employers were reluctant to offer them jobs if they were members of the Reserve Force.

Admiral Bakkes advised that the Defence Act made provision for the exercise of discretion in the call-up process.  He said that the relationship between the SANDF and employers was negotiated and recalled that good relationships were developed in the past when there had been conscription.  There were many women serving in the Defence Force, for example a female Naval Captain managed the Cape Town office of the SANDF Reserves.  The provision in the Defence Act that made it an offence for an employer to discriminate against reservists was repealed but he felt that the provision should have remained to cover the imposition of conscription.

On the issue of membership of military unions, Admiral Bakkes informed the Committee that the contract signed by reservists did not allow members of the Reserve Force to join a military union.  Reservists served on a temporary basis, there was no worker relationship with the employer and there may be a conflict of interest if an employed reservist was also a member of a labour union.  Garnishee orders to collect union dues could not be obtained as reservists were only paid if and when they had served.  The RFC did not participate in collective bargaining processes and the Department of Defence and Military Veterans had prohibited reservists from joining military unions until the matter had been resolved.  The Reserve Force was combat-ready and was used as a last resort.  There was no recourse if the Reserve Force was not available.

Admiral Bakkes agreed that the issue concerning clarity on the defence policy had to be resolved.  He said that the Reserve Force provided “the ultimate guarantee of the Constitution” and was ready to serve the country.

Mr Maynier pointed out that South Africa was a constitutional democracy.  The SANDF must abide by the Constitution and the ultimate guarantor of the Constitution was in fact the Constitutional Court.

Mr Groenewald said that Section 48 of the Bill had to make provision for the inclusion of the RFC in any consultation process.

Mr Tolo asked if the Reserve Force could assist with the problem of military veterans, many of whom were in dire straights.

Mr Maziya said that the Defence Review created a structure that was supposed to have dealt with the issue of the military veterans and it was not appropriate to ask the RFC to comment on the matter.

Admiral Bakkes suggested that Section 62 of the Bill was amended to make provision for consultation with the RFC.

The Chairperson requested that the RFC submitted a detailed written proposal document to the Committee on the Bill.

Admiral Bakkes agreed to provide the document.  He added that Section 55 of the Bill made no provision for the military unions to be disbanded.  The Constitution and the various Constitutional Court rulings on the matter were clear.  The Military Veterans Act included a clear definition of a military veteran.  Veterans had to be on a register and if the members of the previous Ciskei Defence Force were on the register of that force, the members would qualify.

Submission from KwaZulu Natal Reservists
Three members of the Reserve Force from KwaZulu Natal made oral and written submissions to the Committee.  They were Mr N Fihlela, Mr F Ngwenya and Ms L Zama.

Mr Fihlela presented the written submission to the Committee (see attached document).  The reservists in KwaZulu Natal supported the establishment of a permanent NDFSC.  In that province, most members of the reserve force were unemployed and relied on being called up to earn some money.  Reservists experienced victimisation if they were employed and were called up to serve in the Reserve Force.  The different units of the Reserve Force applied different operating procedures, which was a problem for reservists.  Another problem was the lack of gender and racial transformation.  The reservists were also concerned about instances of fraud and corruption that had occurred.  There were variances in the frequency of call-ups between provinces – reservists serving in Gauteng were called up more frequently than in other provinces.  In spite of having completed training courses, promotion was extremely slow.  The reservists felt that Government should invest more in providing training for the Reserve Force.  Reservists were excluded from medical services as sick bays were reserved for members of the regular forces.  Reservists did not have military identity cards and were embarrassed if asked by SAPS to justify the wearing of a SANDF uniform.  The reservists suggested that local residents should be called up, rather than importing reservists from other areas and provinces.

Ms Zama wished to relate her personal experiences as a member of the Reserve Force.  Sadly, she suffered a heart-attack soon after commencing her submission to the Committee and passed away despite the efforts of the Parliamentary medical personnel and paramedics to revive her.

The Chairperson adjourned the meeting and postponed the remainder of the scheduled submissions to Tuesday, 10 August 2010.