Defence Amendment Bill [B11-2010] Public Hearings Day 3

Meeting report

Death of Ms Louise Zama in Parliament
Ms Louise Zama, a member of the Reserve Force from KwaZulu Natal, collapsed and died during the public hearings on the Defence Amendment Bill held on 4 August 2010.  Ms Zama was making an oral submission to the Committee at the time.  The Chairperson asked the attendees of the meeting to observe a minute’s silence as a token of respect to Ms Zama.

Mr T Lamani, Chief Operations Officer, Parliamentary Services, gave feedback on the action taken by Parliament following the death of Ms Zama.  The South African Police Services (SAPS) was informed and the body was taken to the Salt River Mortuary.  The post-mortem examination was delayed until Ms Zama’s medical records could be obtained.  The family was contacted and informed of her death.  Arrangements were made for Ms Zama’s brother to travel to Cape Town, where he identified the deceased and performed a traditional ceremony at the place where she had died.  The post-mortem examination was completed and arrangements were made to return the body to KwaZulu Natal.  The funeral would be held on Sunday, 15 August 2010.  The military authorities in Durban arranged for the chaplain and a social worker to visit the family and offer counsel.  Parliament and the Ministry of Defence and Military Veterans had undertaken to make a financial contribution to the cost of the funeral.  Counselling was made available to the Members and other persons who were present at the briefing.  Assistance with travel and accommodation arrangements was available for Members of Parliament who wished to attend the funeral.

Mr Siphiwe Dlamini, Head of Communications, Department of Defence and Military Veterans advised that he had not yet had the opportunity to discuss the incident with the Minister since her return from the State visit to Russia.  Ms Zama had not been called up at the time of her death.  The applicable prescripts stated that the Department was not responsible for the funeral of a member of the Reserve Force who was not on active duty at the time.  However, discussions with the Reserve Force were underway.  The Department could provide the contact details and address of the family to Members.  He expected a resolution by mid day.

The Chairperson advised that he had referred the matter to the Speaker as Ms Zama had died in Parliament.  The Speaker would obtain clarity on the role of Parliament and the Department.

Mr L Diale (ANC) and Mr A Mlangeni (ANC) agreed that the Chairperson had taken the correct action in referring the matter to the Speaker.  Mr Mlangeni commended Mr David Maynier (DA) for his prompt action in giving first aid to Ms Zama when she collapsed.

Mr P Groenewald (FF+) thanked Mr Maynier as well.  He said that the unfortunate incident had raised the question of how adequate the medical services provided in Parliament were.  Although the Parliamentary medical officer tried her best, the ambulance took a long time to arrive.

Mr Maynier thanked the Members for their commendation and expressed regret that he had not been able to save Ms Zama’s life.

Mr L Tolo (COPE) remarked that it was a painful experience, especially if a young person died.  He lauded the action taken by Mr Maynier and agreed that further investigation was required.

Ms S Ndabeni (ANC) suggested that Parliament be represented at the funeral.  Ms Zama was about to relate her personal experiences as a member of the Reserve Force, which she gathered, had not been positive.  She said that the Members of the Committee needed to talk to the soldiers themselves and not only interact with the higher levels of the Defence Force.  Many concerns over the conditions of service of the members of the Defence Force had been raised.

Mr A Maziya (ANC) remarked that the Department had a dilemma – Ms Zama had not been called up but she was making her submission as a member of the Defence Force at the time of her death.  He suggested that the Department make a contribution to the cost of the funeral, regardless of the prescript.  The incident was a wake-up call for the Committee, which would be guilty of neglecting its duties if it failed to talk to soldiers who were prepared to die for their country.

Ms N Mabedla (ANC) was disturbed by the manner in which the Department was handling the death of Ms Zama.  During the briefing, she had observed that Ms Zama was becoming agitated because the other presenters from the KwaZulu Natal Reserves were not mentioning the problems she had.  Parliament had to show its support and she had seen Parliament as her last resort in helping her to improve the lot of her family.  She said that she would never forget Ms Zama’s death.

Mr E Mlambo (ANC) recalled the Minister’s statement to the Committee that there were no problems in the South African National Defence Force (SANDF).  He suggested that the Reserve Force Council (RFC) investigate the problems experienced by reservists.

Mr Groenewald pointed out that the RFC was appointed by the Minister.  He agreed that the Committee had to talk to the soldiers about their conditions of service.

Mr Maynier said that Ms Zama was about to tell the Committee about what was not right in the SANDF Reserves.  He supported the suggestion that the Committee spoke to the soldiers on the ground.  He said that it was clear that the Minister’s statement that there were no problems in the SANDF was not true.

The Chairperson added his thanks to Mr Maynier for his attempt to save Ms Zama’s life.  It was apparent that her attempts to bring the plight of reservists to the notice of the authorities were being ignored and it was clear that there were problems that had to be addressed.  He said that the Department was expected to make a contribution to the funeral, regardless of the prescript.  Parliament was prepared to provide assistance and the Department should follow suit.  He asked Mr Lamani to extend the thanks of the Committee to the Parliamentary Medical Officer who had provided assistance.  He suggested that the death of Ms Zama was debated in Parliament, as a token of respect.  The Committee was responsible for ensuring that the Department carried out its duty.

Discussion on the Defence Amendment Bill
The Chairperson advised that the public hearings on the Defence Amendment Bill would be concluded.  The Committee would be briefed by the legal representatives of the Department on 17 and 18 August 2010.  The issues concerning the Constitutional Court rulings and Chapter XX of the regulations were important. The Committee needed absolute clarity on the submission from the South African National Defence Union (SANDU 2) on the unconstitutionality of the proposed amendments.  The input from the Parliamentary researchers had bee circulated to the Members.  The Committee would commence deliberations on the Bill during the following week.  He suggested that the Members make use of the services of the Parliamentary Legal Adviser, Mr Mukesh Vassen.  Three Members of Parliament served as Commissioners on the Interim National Defence Force Service Commission (INDFSC).  The Committee needed to hold discussions with ordinary soldiers before the Bill was approved.  It was essential that the Committee understood the prevailing conditions of service and the current situation in the SANDF. The Committee had held discussions with the Minister and had heard her opinion.  The Committee awaited the advice of the Speaker on the issue of the Committee obtaining the reports issued by the INDFSC.

Ms Ndabeni understood that the INDFSC reports were submitted to the Minister in November 2009.  It was now August 2010.  She accepted the Minister’s insistence that the proper process had to be followed but the Committee needed to know what the conditions were.

Mr Mlambo suggested that the Committee was briefed on the Bill by the INDFSC.  The Commission had investigated the conditions prevailing in the SANDF.

Mr Tolo recalled that the Committee was briefed by the INDFSC on 21 July 2010.

The Chairperson advised that a meeting with the INDFSC was scheduled for 17 August 2010 to discuss matters arising from the public hearings.  The Commission should not be put in a position where it would be seen to be acting in defiance of the Minister.

Mr Maynier agreed that the Committee should meet with the INDFSC again.  He said that it was essential that the Committee obtained the reports issued by the INDFSC before the meeting.  He understood that the first report covered the actual conditions of service and the second report dealt with the establishment of a permanent Commission.

The Chairperson was aware that the reports had been leaked to certain interested parties but the fact was that the Committee had not had sight of the reports.  The Committee had no choice but to wait for the Minister to release the reports.  The unavailability of the reports should not be a precondition for meeting with the INDFSC.  The Committee was awaiting the Speaker’s guidance and an indication of when the reports would be made available.  The work of Parliament in proceeding with the Bill had to continue.

Mr Maynier asked when the response of the Speaker could be expected.

Mr Vassen advised that he had briefed the Speaker but had received no indication on when a response would be made.  Alternatively, the Committee could pass a resolution to request the Speaker to authorise the release of the reports.

The Chairperson advised that copies of the correspondence between the Committee and the Ministry had been circulated to the Members.  He needed a mandate from the Committee on how to proceed and asked the Members to consider the available options.

Mr Maynier conceded that the advice of the Speaker should be obtained.  He referred to a report in the Cape Times of 11 August 2010 that the entire attack helicopter fleet had been grounded.  He was most concerned that information on the SANDF was available in the media but was not provided to the Committee.

The Chairperson remarked that the Minister had her own way of handling such matters.  The Committee awaited the advice of the Speaker and would hold discussions with soldiers on the ground as part of its oversight responsibilities.

Mr Groenewald asked the Chairperson to obtain clarity on whether or not INDFSC Commissioners were allowed to hold discussions with the Committee.  He had to take an oath of secrecy as one of the Commissioners.  The reports of the INDFSC included details of the conditions investigated by the Commission.  It was important that a good relationship between the Committee, the Minister and the SANDF structures existed.  Since 1994, that relationship had been good.  He agreed that the Committee should not hear what was going on in the SANDF from the media.  He suggested that the Committee considered holding closed meetings to discuss issues of a sensitive nature in order to give reassurance to the SANDF.  Mutual trust had to be established but the Members of the Committee required information as well.

The Chairperson said that the Committee had agreed that closed sessions would be justified if sensitive issues were discussed.  He suggested that the Committee discussed the passing of a resolution as suggested by Mr Vassen during the following week.  Concerning the relationship between the Committee and the Minister, the role and the responsibilities of both parties had to be clearly understood.  He encouraged engagement and felt that a free expression of views resulted in a vibrant Parliament.  He undertook to write to the Minister to request that Commissioners were given permission to hold discussions with the Committee.  He noted that the Minister had taken actions as a result of the INDFSC reports, the reports had been leaked but the Committee had not seen the reports and was not in a position to comment.

Mr Groenewald advised that the reports issued by the INDFSC dealt with important issues, most of which arose during the tenure of the previous Minister Lekota.  The reports reflected the prevailing conditions.  He understood that the response from the Military Command Council was due the previous day.  He did not understand what the Minister’s problem was with releasing the reports to the Committee and felt that her stance on the matter was wrong.

Submission from members of the Reserve Force, KwaZulu Natal
Mr Ngokuphiwayinkosi Fihlela remarked that the death of a member of the Reserve Force was by no means unique but most died quietly.  He said that most of the members of the Reserve Force were unemployed and relied on being called up in order to earn an income.  The reservists felt that they could not approach their Commanding Officer with their complaints as such action would result in their not being called up again.  He said that there was no uniformity in the manner in which Reserve Force units were being run.  He believed that Ms Zama’s death was caused by the stress she had been under as a mother of two children who was unable to provide for them because she had not been called up for more than a year.

Mr Thokozan Shezi thought that he would not be called up again after speaking to the Committee.  He said that Ms Zama had joined the Reserve Force in 2008.  The last time she was called up was in March 2009 to attend a training course.  He advised that many reservists experienced problems with reporting for duty.  They had to fund their own transport to attend training courses and found in one instance that no provision had been made for food or accommodation when they arrived.  The training course was cancelled and the reservists were sent home without pay.  The Colonel responsible for the Reserve Force unit allowed the reservists to express their dissatisfaction but the problems were not resolved to their satisfaction.  The reservists in KwaZulu Natal decided to form a committee to represent them and raise concerns with the Commanding Officer.  The committee had held meetings with the Adjutant but none of the problems had been resolved.

Mr Francis Ngwenya said that race and gender transformation was not taking place in the SANDF Reserves.  The concerns of the reservists had been discussed with the Colonel and the General.  The General had remarked that the white reservists at the Field Engineering School had not made any complaints.  The Commanding Officer and his deputy and most of the senior ranks were white.  Black reservists only occupied junior officer positions, i.e. not at the decision-making level.  In one instance a white officer had made a derogatory remark concerning the President.

The reservists were concerned by instances of fraud and corruption.  For example, the unit’s tent was hired out to a private individual, which they felt was not allowed.  In certain instances, reservists were called up and paid but the individuals concerned did not carry out any duties.  Another problem was inconsistency in the number of days reservists were called up in a year.  Certain reservists were called up only five days per annum but others served for 280 days a year.

Discussion
The Chairperson asked how the Reserve Force was constituted.

Ms Maggie Smit, Committee Assistant, advised that Section 53 of the Defence Act dealt with the Reserve Force.

The Chairperson said that the Committee needed to obtain clarity on the Ministerial policy on the Reserve Force.

Mr Maziya asked if the reservists from KwaZulu Natal had made a written submission.

Ms C Mohale (ANC) asked what role the Reserve Force Council played in dealing with the complaints of reservists.

Mr D Smiles (DA) noted that the reservists had presented their grievances but had not commented on the Bill.  He asked if the reservists supported the Bill.  He had asked many questions about the SANDF, the Reserve Force and military veterans in Parliament.  He recalled two instances where members of the Defence Force had expressed dissatisfaction with the racism and lack of clarity on recruitment policies.  His letters to the Department was acknowledged but no action was taken.  He noted that the Committee had received other written submissions from reservists that described their plight.  One unsigned letter received revealed that reservists and their families were literally starving.

Mr Tolo said that the slur on the President was unacceptable.  He noted that Mr Shezi had said that he would be victimised because he had spoken to the Committee.  It was essential that the Committee visited KwaZulu Natal province to meet with soldiers.  He recalled the recent suicide of a young man because the Department of Home Affairs in KwaZulu Natal had refused to issue him an identity document.

The Chairperson suggested to the reservists that they document their complaints in an affidavit that can be investigated by the Committee.  He offered the assistance of the Committee Secretary.  The Bill was one issue but the Committee will take the experiences of reservists and their conditions of service into account as these would have a bearing on the legislation.

Mr Mlangeni understood that the Reserve Force was only called up as a matter of necessity and for good reason.  The Reserve Force must not be seen as a permanent job and reservists cannot expect to be called up if there was no necessity.  Reservists were wrong to think that they had a full-time job.  He asked if the Act specified a minimum number of days per year that reservists had to be called up.

Mr Diale said that racism in the SANDF was a major problem.  Although the Committee undertook oversight visits both locally and to South African peace-keeping missions on the African continent, the Committee was too reactive.  The Department dictated to the Committee which installations should be visited.  He felt that the Committee needed to develop a plan to become more proactive.  The Committee should be able to monitor the conditions in the SANDF and not merely talk about it.

Ms Mabedla asked if the reservists were part of a recognised unit and if they were provided with copies of the rules and regulations applicable in terms of the Defence Act.  She asked if the reservists had been paid for reporting for the training course that was subsequently cancelled.  She wanted to know if the provisions of the Defence Act were being complied with.

Mr Fihlela replied that reservists understood that the members of the Reserve Force were only called up if there was a necessity.  The problem was that certain members were called up almost continuously while others were hardly ever called up.  He believed that there was a great necessity for calling up the Reserve Force to assist communities with many projects.  Reservists were trained and had many skills, for example the engineers could help with community building projects.  Currently, the Reserve Force was not allowed to help because of protocols.  The reservists from KwaZulu Natal had responded to the Committee’s invitation published in the press to make submissions.  The reservists were not provided with a copy of the regulations and it was difficult to get an explanation of the rules.  The only source of information on the regulations was to approach the Commanding Officer.  He that that Ms Zama had had a disagreement with the Commanding Officer and as a result, was not called up again.

The Chairperson thanked the reservists for their submission.  He looked forward to receiving the written submission and gave the assurance that the Committee would take up their complaints with the Chief of the Reserve Force.

Submission from the Khoisan Kingdom and All People
Mr Stanley Matthee presented the submission from the Khoisan Kingdom and All People (see attached document).

The Khoisan had been consulting with the Department of Defence and Military Veterans since 2001 to resolve the failure to implement Section 200 of the Interim Constitution, with no success.  The constitutional rights of the Khoisan had been violated and the problems experienced with the Termination of Integration Intake Bill and the Demobilisation Amendment Bill had to be resolved before further legislation was introduced.

The Khoisan supported the establishment of a permanent National Defence Force Service Commission but the formation of the Commission required further investigation.  It was essential that Commissioners had a military background, understood the conditions under which soldiers functioned and that all the different races and cultural groups in the country were represented on the Commission.

Discussion
Mr Tolo requested further clarity on the representative requirement for the Commission.

Mr Matthee explained that the Khoisan was erroneously regarded as Coloured.  The Khoisan had a unique culture that should be taken into consideration.  Commissioners should represent the different cultures of the population and members of the SANDF should have documents explained to them in their own language.  The Khoisan felt that the INDFSC was not adequately representative.

The Chairperson thanked the Khoisan for the submission and apologised for any inconvenience that might have been caused by the postponement of their appearance before the Committee on 4 August 2010.

Submission from the Congress of South African Trade Unions (COSATU)
Ms Prakashnee Govender, Parliamentary Office Co-ordinator, COSATU presented the submission (see attached document).

COSATU acknowledged that the role of the SANDF extended beyond the military.  The Defence Force had a responsibility in the social arena as well.  The conditions of service within the SANDF and the living conditions of soldiers were poor.  The military unions played an essential role in the effort to address the problems experienced by the members of the Defence Force.  COSATU opposed any attempt to de-unionise the military.  The SANDF had no valid reason for removing the constitutional rights of soldiers and had failed to propose alternatives that would protect these rights.

COSATU rejected the Defence Amendment Bill as it seeked to abolish the Military Bargaining Council (MBC) and the Military Arbitration Board (MAB), which allowed for collective bargaining.  COSATU urged the Committee to reject the Bill.  The Department of Defence and Military Veterans did not consult with the unions before the Bill was drafted.  In addition, the reports issued by the INDFSC should have been released and discussed with the military unions.  COSATU acknowledged the need to follow due process before the reports were released but felt that the Bill should not be passed before the reports were made available.

The Constitutional Court judgment handed down in 2007 requiring reforms to defence legislation and regulations had not been implemented.  The Bill further eroded the constitutional rights of soldiers.  COSATU had a fundamental objection to the Bill, which would negate collective bargaining and refrained from including a detailed analysis of the clauses in the Bill in the submission to the Committee.

COSATU maintained that the Department was responsible for the dysfunctional bargaining process, cited as the reason for introducing the Bill.  The Department had consistently undermined the military unions and the bargaining process.  The culture of the SANDF was intimidating and was not conducive to supporting military unions.  The conditions of employment of the Reserve Force required further investigation.  COSATU called on the Committee to carry out its oversight responsibility by holding public hearings on the conditions of service within the SANDF.

Mr Sipho Sityoshwana, South African Security Forces Union (SASFU) said that the Bill was a “rush job” and due consideration was not given to the consequences.  Soldiers were not allowed union representation during court martial proceedings.  Certain veterans were excluded from classification as military veterans and the Bill was silent on that issue.  The command structure of the Reserve Force was composed of members of the Defence Force serving under the previous regime and the liberation forces were not represented.  The MBC was not functional and members of the Defence Force were discouraged from joining the military unions.

Mr Woody Aroun, Parliamentary Officer, National Union of Metalworkers of South Africa (NUMSA) said that the historical role of trade unions in South Africa had to be taken into consideration.  He was dismayed that the Bill seeked to remove the constitutional right of soldiers to belong to trade unions.  The proposed NDFSC was similar to the Liaison Committees introduced by the previous regime, which never worked.  He doubted whether the NDFSC would be effective. 

NUMSA maintained that the Bill would exacerbate the prevailing problems in the Defence Force.  The organisation proposed that the existing dysfunctional structures were repaired and that a relationship of trust between the employer, the employees and the unions was developed.  The military unions should be allowed garnishee rights as well.

Discussion
The Chairperson remarked that the challenge of a unionised SANDF was unique and complex.  The constitutional rights of soldiers were accepted and he disagreed with the assertion that the Minister was perpetuating the “Induna” system of Liaison Committees.  The INDFSC had identified the problems with the current conditions of service and the Committee was committed to finding solutions.  It was not fair to blame the Minister for the current situation.  The State Law Adviser had found that the MBC was not removed by the Bill and the Committee would seek assurance on this issue.  The INDFSC was established after the events of 26 August 2009, when soldiers staged a protest action and marched on the Union Buildings in Pretoria.  The Members of the Committee was extremely concerned over the conditions of service of soldiers and would take the submissions into careful consideration during the deliberations on the Bill.

Mr Tolo referred to the submissions from the military unions heard during the public hearings held the previous week.  The rights of soldiers to strike were limited.  He was concerned by the differences between the various military unions and the possibility that certain unions could be affiliated to particular political parties.  This placed South Africa at risk of becoming like other countries in Africa where factions in the military supported certain political organisations.

Mr Maziya remarked that COSATU had access to information that was not made available to the Committee.  The Committee required specific comment on the provisions of the Bill, for example which provision removed the MBC.  The unions had to accept the right of the employer to be represented in the collective bargaining process as well.  The Committee would be failing in its responsibility if the Bill was rejected.

Mr Maynier asked if COSATU considered the Bill to be unconstitutional.  Concerning the policy on military unions, the Minister had stated that she wanted the SANDF to be de-unionised.  The President as the Commander-in Chief of the Defence Force had made a similar statement in a speech in 2009.  He asked if there had been any consultation with the military unions in the formulation of defence policy.

The Chairperson said that the issues raised by Mr Maynier were extraneous to discussions on the Bill and that COSATU was not required to respond.

Mr Mlangeni was unclear about unionised military structures in other countries and the differences between the various military unions in the SANDF.  He said that the assumption made by the unions that the Bill would result in the demise of military unions was inaccurate.  All the unions had claimed that the MBC was a failure.  The Committee condemned the action taken on 26 August 2009 and would condemn any union that had supported the attack on the Union Buildings.  The Bill made provision for the establishment of the NDFSC, which was tasked with investigating the conditions of service within the SANDF.  The unions had a right to complain about not being represented on the Commission but it was not acceptable to request the Committee to reject the Bill.

Mr Maynier asked for further clarity on the statement in the submission that the Bill limited the constitutional rights of soldiers.

Ms Ndabeni said that the interests of the public had to be taken into account as well.  The pronouncement made by the President had to be followed.  It was necessary to consider the experience and conditions prevailing in other countries.  She agreed that the conditions of service within the SANDF had to be exemplary but such conditions had to be within the terms of the military and subjected to military discipline.

The Chairperson said that the Committee had heard submissions from SANDU 1, SANDU 2, SASFU and COSATU.  The Bill had not been costed.  The functionality of the MBC had to be restored.  The Committee was considering the relationship between the NDFSC and the Minister.  The position of the Commander-in-Chief was a constitutional matter.  The orders given by the Commander-in Chief had to be obeyed and the Committee was reluctant to undermine the President.  The issue of national security had to be considered and the Committee required guidance from COSATU on ways of addressing the problems.  The Committee was attempting to improve the conditions of service of soldiers and requested COSATU to assist with finding solutions by submitting proposals and suggestions.  COSATU would have another opportunity to submit these suggestions during further deliberations on the Bill.

Mr Sityoshwana explained that SASFU was established by disaffected members of the Defence Force following the integration of the SANDF with the liberation forces.  Many problems had arisen, which were never resolved.  Members of the liberation forces were not welcomed into the SANDF and had been failed by their commanders.

The Chairperson interrupted and requested that responses were limited to the issues raised by the Members of the Committee.  The Committee acknowledged that conditions were not good but wished to focus on solutions.

Mr Sityoshwana said that soldiers’ rights to strike were restricted.  He gave the Committee the assurance and the commitment of SASFU that the union was loyal to and would not condone any action that undermined the Government.

Ms Govender said that soldiers joining a military union did not compromise national security as the constitutional rights were restricted.  The unions considered all aspects of grievances, the alternatives and options available as well as the consequences of protest action.  For example, a lunch-time picket did not necessarily compromise service delivery.  COSATU considered the Bill to be challengeable in the Constitutional Court as it effectively removed the right to collective bargaining and the MBC.  The NDFSC was merely an advisory body to the Minister.  Although the Bill made no specific mention of military unions, it would severely curtail the activities of the military unions.  Unions were not allowed garnishee orders to collect union dues.  The membership threshold of 15000 was determined when the SANDF was much larger than was currently the case.  The unions were not recognised by the Department on the basis of failing to meet the membership threshold.  The SANDF was a hostile environment for the military unions and union membership was actively discouraged.  COSATU was prepared to formulate possible solutions but would need to know which direction the Bill would take to develop specific proposals.

The Chairperson asked the Committee Secretary to make copies of the submissions received available to COSATU.  He invited COSATU to attend the briefing by the INDFSC scheduled for 17 August 2010 and to indicate any areas of conflict.  The Committee faced serious challenges with the Bill and invited all contributions that would assist the Members.  The Committee would give careful consideration to the constitutional issues raised in the submissions.

The meeting was adjourned.