Response of Interim National Defence Force Service Commission to Public Hearings on Defence Amendment Bill [B11-2010]

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Defence and Military Veterans

16 August 2010
Chairperson: Mr M Booi (ANC)
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Meeting Summary

The Committee had invited the Interim National Defence Force Service Commission to respond to the issues raised during the public hearings held on the Defence Amendment Bill.

Prior to hearing the prepared presentation, the Members of the Committee asked for comment on the processes followed by the Interim Commission before the Bill was tabled in Parliament; the fears that the permanent Commission would undermine the military unions and the Military Bargaining Council; whether or not adequate consultation with affected stakeholders had taken place; when the final report of the Interim Commission was expected; whether the statement of the President that the SANDF would be de-unionised was taken into account; the relationship between the Minister of Defence and Military Veterans and the members of the Defence Force; the powers of the Minister over the proposed Commission; the role of Parliament in conducting oversight over the Commission and the need for the vetting of Commissioners for security purposes.

The presentation by the Interim Commission included the background to the establishment of the Commission, the role of the proposed permanent Commission, the relationship between the Commission and the Military Bargaining Council and the role of the Ministry of Defence and Military Veterans in respect of the Commission.  The Interim Commission tabled an amendment to Section 55 of the Bill to reinstate reference to the Military Bargaining Council.

The Interim Commission had noted the concerns raised by participants in the public hearings on the Bill, in particular the issue of representation of Commissioners raised by the Khoisan Kingdom and All People.  Commissioners gave details of the extent of consultations with members of the Defence Force and other Ministerial Commissions.  Commissioners had visited the United Kingdom and the United States of America to obtain perspective on the experience of other countries.  The amended terms of reference of the Interim Commission prevented any consultation with the military and other unions.  Commissioners emphasised the need for a unique dispensation applicable to the Defence Force and their families.

Members of the Committee asked questions on the involvement of the proposed Commission in the Military Bargaining Council; the future role envisaged for military unions; the changes recommended to the provisions of Section 55 and if the Commission had discussed the amended version with the Minister; the provision made to allow for a collective bargaining process; the omission of items considered to be detrimental to national security from Commission reports and the relationship between the Committee and the Commission.  The Committee expressed appreciation for the work done by the Interim Commission.

Meeting report

In his opening remarks, the Chairperson requested the Members of the Committee to limit their questions to issues arising from the public hearings held on the Defence Amendment Bill and to avoid questioning the Commissioners on the contents of the reports issued by the Interim National Defence Force Service Commission (INDFSC), which had not been released to the Committee.  Members were afforded the opportunity to table questions before the presentation prepared by the Commission was heard.

Mr D Maynier (DA) noted that the Committee had submitted a request to the Speaker to release the reports of the Committee and asked the Chairperson when a response was expected.

The Chairperson declined to reply and reiterated that discussions on the reports would not be held during the proceedings.

Mr B Holomisa (UDM) and Commissioner, INDFSC suggested that the Committee schedule a separate briefing on the findings and recommendations of the Commission once the reports were made available.

Mr Maynier understood that the INDFSC had recommended the establishment of a permanent National Defence Force Service Commission (NDFSC).  He asked what processes were followed by the INDFSC.

Mr A Maziya (ANC) requested comment on the assertion made during the public hearings that the NDFSC would undermine the role played by the Military Bargaining Council (MBC) and the military unions.

The Chairperson said that the issues concerning the MBC were serious.  It would appear that the rulings of the Constitutional Court concerning the need to issue regulations to govern the functioning of the MBC had been overlooked in the drafting of the Bill.  The Committee was given the assurance that there had been consultation with the relevant stakeholders on the Bill but the unions had stated that no consultation had taken place.

Mr P Groenewald (FF+) asked when the final report of the INDFSC was expected.

Mr Maziya noted that Members should refrain from asking questions about any of the reports issued by the INDFSC.

Ms S Ndabeni (ANC) asked if the statement made by the President concerning the military unions was taken into account in the drafting of the Bill.  The INDFSC was established in the aftermath of the events of 26 August 2009, when members of the South African National Defence Force (SANDF) staged a protest and marched on the Union Buildings in Pretoria.  She wanted to know if the Bill included provisions to prevent similar labour protests in the future.

The Chairperson remarked that the relationship with the Minister of Defence and Military Veterans was fraught and the military unions had accused the Minister of being dictatorial.  He asked if the INDFSC had found this to be the case.  The proposed amendments to the legislation awarded the Minister considerable powers and she would be appointing the Commissioners.  He asked that the role of Parliament was clarified vis a vis the responsibility for oversight and the position of the NDFSC.  He asked if the Bill included any provision in this regard and how the process was expected to work.  The Committee had raised concerns over the provisions that allowed matters considered as detrimental to national security to be omitted from the reports of the Commission.  The Minister had stated that Commissioners would be subjected to a vetting process.  He asked if the experience of the INDFSC had found that such measures would be necessary.

Presentation by the Interim National Defence Force Service Commission (INDFSC)
Bishop Malusi Mpumlwana extended the apologies of the Chairperson and Deputy Chairperson of the INDFSC, who were unable to attend the meeting.  He presented the briefing document prepared by the Commission to the Committee (see attached document).

The presentation included an overview of the background to the establishment of the INDFSC, he role of the Interim Commission, the relationship between the proposed permanent Commission and the MBC and the envisaged role of the NDFSC with the Ministry of Defence and Military Veterans.

The INDFSC had originally recommended that the President appointed the NDFSC but had since conceded that the Commission should be a Ministerial Commission.  The suggestion made in the submission by the Khoisan Kingdom and All People during the public hearings concerning representation on the Commission was noted.  The INDFSC expressed the hope that the process of establishing the permanent Commission would be open to the public and that members of the public would be allowed to nominate Commissioners.  Commissioners would be exposed to all aspects of the Defence Force (including matters affecting the national security) and would visit other countries in the course of carrying out their duties.  It was therefore imperative that Commissioners were vetted for security purposes.

The INDFSC had held discussions with all levels of personnel in the SANDF in order to ascertain the prevailing conditions of service.  The INDFSC was acutely aware that a comprehensive system to deal with the conditions of service of members of the SANDF was necessary.  Soldiers were expected to sacrifice their lives in the service of the country and Government was responsible or ensuring that the conditions of service were satisfactory.  The INDFSC appealed to the Committee not to disappoint the members of the SANDF by delaying the establishment of the permanent Commission.

Dr Anna Mokgokong, Commissioner, INDFSC, advised that the consultation process followed had been as comprehensive as possible within the limited timeframe allowed.  The INDFSC had visited military installations in the United Kingdom and in the United States of America in order to gain insight into the experience of other countries.  The Commission had engaged with members of the Defence Force of all ranks and in all the service forces.  The INDFSC had consulted with other Commissions on matters pertaining to the structure and terms of reference, such as the Public Service Commission, the South African Police Service Commission and the National Intelligence Service Commission.  The INDFSC had concluded that the SANDF was unique and the position of soldiers could not be compared to other public servants.  The families of soldiers had to be taken into account as well.  The SANDF required a unique service dispensation.  The Commission had consulted with the Minister and with the legal advisers and had made changes to the recommendations when necessary.

Mr Holomisa referred to the statements made by the President (who was the Commander-in-Chief of the Defence Force) and the Minister, which did not support the continued unionisation of the SANDF.  The submissions made by the unions during the public hearings had all referred to the President’s remarks and had expressed suspicion that the NDFSC would undermine the role played by the unions in the collective bargaining process.  He suggested that the issue of a unionised SANDF was subjected to a separate review process.

Ms H Mgabadeli (ANC) and Commissioner, INDFSC thanked the Committee for the patience displayed in ensuring that all stakeholders were given an opportunity to comment on the Bill.  She urged the Committee to ensure that the NDFSC was fully operational and to conduct oversight to ensure that the Commission carried out its mandate to improve the conditions of service of soldiers and their families.

The Chairperson said that the Committee was concerned that the conditions within the SANDF and the effect on the lives of soldiers had not received the attention it deserved.  The matters raised by serving members of the SANDF during the public hearings arose from their personal experiences.  He thanked the INDFSC and the Members of the Committee who had served as Commissioners for the valuable work that was done.

Mr Maziya asked if the countries visited by the INDFSC had a unionised military.  He asked for further clarity of the role played by the NDFSC in the MBC or if the Commission would only act in an advisory capacity to the Minister.  He asked what the relationship between the NDFSC and the military unions would be.

Mr Groenewald noted that the INDFSC had suggested that the provisions of Section 55 of the Bill were amended.  Currently, the proposed amendment of Section 55 (1) removed the mention of the MBC and omitted Section 55 (2).  The amendment to the provisions of Section 55 required careful consideration and he asked the INDFSC to provide further clarity on the recommendation made.

Mr Maynier agreed with the INDFSC that the prevailing conditions of service within the SANDF had to be understood.  He understood that the INDFSC had submitted the Bill to the Minister and he asked if the Commission had discussed the changes recommended to Section 55 with the Minister and if she had given her approval.

Mr L Mphahlele (PAC) expressed concern over the statement that soldiers were expected to give their lives to the State, thereby giving up their fundamental Constitutional right to life.  He pointed out that soldiers were required to do service outside the borders of the country and did not have adequate protection if the State made unreasonable demands.  He felt that it was unfair to blame the events of 26 August 2009 on the military unions.

Ms C Mohale (ANC) wanted further clarity on how soldiers’ dissatisfaction with salaries would be dealt with.

Ms Ndabeni referred to the proposed amendments to Section 62 (H) and asked who would decide if the report issued by the NDFSC should omit mention of an item that was detrimental to national security.  She asked what the reasons were for the INDFSC changing the recommendation that the permanent Commission should be appointed by the President rather than the Minister.  She felt that the Bill should have reflected the President’s statement concerning the military unions.  She asked for further clarity on the provisions of Section 62 (D), which allowed for the subsequent removal of Commissioners.

Mr L Tolo (COPE) referred to the oversight visit of the Committee to the border post at Beit Bridge.  The Committee had observed that the conditions of the soldiers manning the border post were very bad.  A senior officer of the SANDF had said that better conditions would result in soldiers becoming “soft”.  He felt that the Committee did not have sufficient understanding of the situation in other countries.

Mr D Smiley (DA) referred to the proposed amendment to Section 55 and asked which entity other than the NDFSC would be involved in the conditions of service.

The Chairperson recalled that the military unions had stated that the Bill would be challenged in the Constitutional Court.  The issue concerning military unions and the Commander-in-Chief was a constitutional matter.  The prevailing conditions of service had contributed to the unionisation of the military.  Other matters requiring attention were the provision of resources for and the capacity of the NDFSC.  He asked if the NDFSC would be effective in bringing about change in the conditions of service of soldiers.  He noted that the NDFSC would be an advisory body to the Minister.  He asked how Parliament would hold the NDFSC accountable as the experience of the Committee had shown that this was difficult to achieve with Ministerial Commissions.  He requested clarity on the relationship between the Committee and the Cabinet.  The Commission was required to submit one annual report to Parliament.  He was concerned that the Committee would only have the opportunity to hold the NDFSC accountable when the Budget Vote for the Department was discussed.  The Committee required a degree of reassurance that the relationship between the Committee and the NDFSC would be functional and could be strengthened beyond merely approving the legislation to establish the Commission.  He asked how the issues raised by Members of Parliament would be addressed.  He noted that there were many senior members of the SANDF and the Department of Defence and Military Veterans (for example the Chief of the Defence Force, the service Chiefs, the Director-General of the Department and the Secretary for Defence) affected by the proposed legislation.

Mr Mpumlwana responded that the Bill made provision for the omission of items that would be detrimental to national security from the reports issued by the NDFSC because the reports would be in the public domain.  The reports would be gazetted before being submitted to the Cabinet in accordance with the prescribed procedure.  The Minister could brief the Committee in a closed session if necessary.  The legislation had to include protective measures for matters of national security.

Mr Mpumlwana advised that the interim reports issued by the INDFSC were internal reports that the Minister alone was entitled to.  He was unable to advise when the final report would be released.  He pointed out that the environment of the permanent Commission would be different as the NDFSC would have to comply with the legislative requirements governing its reports.

With regard to the suggested amendment to Section 55, Mr Mpumlwana said that the Committee would decide what the legislation would encompass.  The INDFSC had made the initial recommendations and the Bill introduced to the Cabinet reflected these recommendations.  The public hearings would have been meaningless if the submissions made by interested parties were not taken into account.  The INDFSC had discussed the changes suggested to Section 55 with the Minister.

Ms Mgabadeli was touched by the incident reported by Mr Tolo.  She said that the conditions within the SANDF had been poor for a number of years and the reality of the situation was that change would not occur unless more effective structures were put in place to address the challenges.

Mr L Moloi, Commissioner, INDFSC informed the Committee that the terms of reference of the INDFSC was amended to eliminate any contact with the military unions.  The INDFSC had not discussed the issue of military unions with the military structures of the other countries that were visited either.  He felt that the Committee had to address the issue of a unionised military, which fell outside the scope of the NDFSC.  The Commission did not address the matter of the MBC, which was largely dysfunctional.  The INDFSC had realised that there would have been a gap in the collective bargaining process and had suggested the amendment to Section 55 to reinstate the provisions relating to the MBC.

Mr Holomisa referred to the intention of the unions to challenge the Bill in the Constitutional Court.  He said that the intention of the Bill was not to abolish the MBC or to replace the BMC with the NDFSC.  The Bill did not compromise the collective bargaining system in place.  He said that the Constitution would have to be changed if the Government wanted to do away with the military unions as the right of soldiers to join a union was enshrined in the Constitution.

Mr Zolile Ngcakani, Commissioner, INDFSC said that the NDFSC had to engage all the stakeholders when submitting recommendations to the Minister on conditions of service.  The position of soldiers was unique and the Commission had to have a clear understanding of what was involved in conditions of service and what had to be provided by the State.  Soldiers were prepared to sacrifice their lives to defend the country and the State was obliged to ensure that lives were not wasted and that the families of soldiers were adequately taken care of.

Prof Renfrew Christie, Commissioner, INDFSC said that the removal of the reference to the MBC in the initial provisions of Section 55 was an unintentional error.  The intention of the Bill was to establish a separate, respected, independent Commission to advise the Minister on all aspects of conditions of service and there was no intention to replace the MBC with the NDFSC.  In any event, the Regulations made provision for the MBC and the Military Arbitration Board (MAB).  The INDFSC had realised that the Regulations were secondary to the Act and that the legislative provisions in Section 55 had to be retained.  The NDFSC would play no role in the collective bargaining process.  There were many examples of Ministerial Commissions that retained their independence and that were not intimidated by the Minister concerned (for example, the Jali Commission).  The legislation to establish a Commission had to include provisions that made allowance for the removal of Commissioners at a later stage.

The Chairperson commended the INDFSC for carrying out its mandate and for providing answers to the concerns raised by the Committee.

Mr Maynier said that his question on the process followed by the INDFSC was not replied to.  However, the Committee would take the responsibility for ensuring that the Bill followed its due course.

Mr Groenewald said that the INDFSC had initiated the Bill, which was first presented to the Minister before it was submitted to the Cabinet and tabled in Parliament.  The Bill was currently before the Committee.

The Chairperson expressed the appreciation of the Committee for the work done by the INDFSC and the significant contribution made to improving the conditions of service of the members of the SANDF.

The meeting was adjourned.


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