Response of Department of Defence and Military Veterans, Office of the Chief State Law Adviser & Parliamentary Legal Adviser to Public Hearings on Defence Amendment Bill [B11-2010]

Meeting report

Presentation by the Department of Defence and Military Veterans (DDMV)
Ms Mpumi Mpofu, Secretary for Defence, DDMV, thanked the Committee for the opportunity to present the Department’s response to the submissions made during the public hearings on the Bill.  She advised that the Department had taken note of the concerns in the submissions made during the hearings as well as the issues that were raised by the Members of the Committee.  In addition, the Department had noted the areas of concern and other views expressed during the hearings that did not have a direct bearing on the proposed legislation.

Mr Siviwe Njikela, Director: Legal Division, DDMV, presented the Department’s detailed response to the Committee (see attached document).

There was general support for the provisions in Section 53 of the Bill.  The Reserve Force Council had suggested that there was consistency in the terminology used with regard to the contract of service.  Amendments would be made to consistently refer to “contract of service”, in line with the terminology used in the Defence Act.

The objections to Section 55 centered on the omission of the reference to the Military Bargaining Council (MBC).  The Department acknowledged the concerns raised by the military unions that the omission negated the provision for collective bargaining and proposed an amendment to Section 55 to reinstate the reference to the MBC.

The provisions in Section 62 resulted in concerns being raised over the powers of the Minister and the role of Parliament with regard to the National Defence Force Service Commission (NDFSC).  The provisions concerning the powers of the Minister and the proposed Commission were similar to the powers accorded to Ministers and comparable Ministerial Commissions.  The State Law Adviser would provide further details on the advice given to the Department on this aspect to the Committee.

Section 82 was consequential to Section 55 and was withdrawn in line with the amendments made to Section 55.

The objections to Section 104 were that the mere failure to honour the call-up of members of the Reserve Force was criminalised without taking cognisance that there could be valid reasons for the failure to report for duty.  The provisions of Section 104 were amended to remove the phrase “or fails”.

The Department withdrew the proposal that the Commissioners who would serve on the NDFSC were appointed by the President (see Section 62 (C) of the Bill) as the status of the Commission was confirmed to be a Ministerial Commission.  The Department proposed that the number of Commissioners was increased from eight to twelve.

Opinion of the Office of the Chief State Law Advisor (SLA), Department of Justice and Constitutional Development (DOJ&CD)
Mr Mongameli Kweta, Senior State Law Adviser presented the opinion of the Office of the Chief State Law Adviser to the Committee (see attached document).

The opinion was in response to the submission made by the South African National Defence Union (SANDU) that Section 55 removed or limited the constitutional right of members of the Defence Force to collective bargaining.

The SLA was of the opinion that the proposed legislation did not compromise the constitutional right to collective bargaining and did not seek to remove the MBC and the Military Arbitration Board (MAB).  The establishment of the NDFSC would enhance the collective bargaining process and did not seek the removal of the military unions.  The Regulations promulgated in 1999 provided for the establishment of the MBC, the MAB, military unions and collective bargaining.

The SLA was of the opinion that the proposed Amendment Bill would pass muster in the Constitutional Court.

Ms Ayesha Johaar, Deputy Chief State Law Adviser commented on the matter concerning the appointment of Commissioners by the Minister rather than the President.  The NDFSC would be a statutory Commission, established in terms of the Defence Act.  As such, the NDFSC was not established in terms of the Constitution.  The NDFSC would be a Ministerial Commission rather than a Presidential Commission of Enquiry.  The SLA was of the opinion that it would be appropriate that the Commissioners were appointed by the Minister to serve on a ministerial advisory Commission.  However, the Committee could propose that Commissioners were appointed by the President if the Members felt that such a provision was more appropriate.

Opinion of the Parliamentary Legal Adviser
Mr Mukesh Vassen, Parliamentary Legal Adviser presented the legal opinion to the Committee (see attached document).

The legal opinion was in response to the request to advise the Committee on whether the Bill would pass constitutional muster in its current form.

The opinion included an analysis of the provisions of the Act and the proposed amendments that could pose a constitutional challenge.  The removal of the MBC from determining the pay of members of the Defence Force and the replacement of the current system with a new system whereby the Minister ultimately determined the levels of pay would have the effect of removing the provisions allowing collective bargaining in the South African National Defence Force (SANDF) (see paragraph 18 of the attached document).

The opinion included an analysis of the provisions of the Constitution (paragraphs 19 to 23) and the judgments of the Constitutional Court (paragraphs 24 to 29).  The effects of the proposed legislation on collective bargaining were given in paragraphs 29 to 40.

Mr Vassen commented on the concerns raised with regard to the independence of the NDFSC.  He referred to three recent examples of cases before the Constitutional Court.  The concept of independence involved both financial and administrative independence.  Independent Commissions had to operate outside Government, the criteria for the appointment and removal of Commissioners had to be included in legislation and the Commission had to be provided with adequate funding to operate.  In this respect, the NDFSC would be similar to the Public Service Commission.  Section 10 of the Constitution made provision for such Commissions.  A Commission established in terms of the Constitution would be more appropriate.  The provisions in Section 62 of the Bill had to be considered in more depth.  The NDFSC would not be an additional mechanism to determine conditions of service in the SANDF but would effectively remove the mechanisms providing for collective bargaining.

The Parliamentary Legal Adviser concluded that the Bill would not pass muster in the Constitutional Court.  The response of the SLA on 17 August 2010 was taken into account (see paragraphs 6 and 7).

Discussion
The Chairperson thanked the presenters for their input.  The issue concerning the statement made by the President, as the Commander-in-Chief, concerning the military unions remained unanswered.  He explained the role of the Committee in considering legislation.

Mr A Maziya (ANC) requested further clarity on Mr Vassen’s comments concerning the independence of the NDFSC and the difference between a Ministerial Commission and other types of commissions.

Mr D Maynier (DA) asked Mr Njikela if the Department was satisfied that the changes proposed to the provisions of Section 55 would result in the Bill passing muster in the Constitutional Court.  He asked if the provision that the Minister would consult with the Minister of Finance on salaries would still apply.  He was under the impression that it was Government policy to de-unionise the Defence Force.  However, it had not been made clear how and when this would be achieved.  He had asked the question on numerous occasions but had never received a clear answer.  He asked Ms Mpofu for her comments.  Although the Bill made no specific provisions to remove the military unions, it would have the same effect.

Mr B Holomisa (UDM) and Commissioner, INDFSC said that the Committee had to take the statement of the President into account when deliberating on the Bill.

The Chairperson said that the issue of the de-unionisation of the SANDF was the subject of a separate discussion by the Committee.

Mr P Groenewald (FF+) said that the changes made to Section 55 would address most of the fears expressed by the military unions.  The observed that the proposal made by the Department could be interpreted that there had to be agreement on pay levels in the MBC before recommendations were submitted to the Minister.

Mr A Mlangeni (ANC) remarked that the Committee would like to be able to pass a Bill that pleased all the stakeholders.  However, the legal advisers had drawn differing conclusions in the opinions submitted to the Committee.  The Bill did not specifically remove the MBC but the military unions had disagreed that the collective bargaining mechanism would not be adversely affected.  The Bill made provision for the NDFSC to recommend salaries and for the Minister to have the final say.  He wondered who the MBC would be bargaining with and asked if the MBC would be bargaining with the NDFSC, the Minister or another party.

The Chairperson explained the role of Parliament and in particular, the requirement that the Committee had to implement the Money Bills.  The Committee would be unable to assist the Department with obtaining funding to implement the Bill if the Committee was left out of the process.  He warned that the Parliamentary Committees would exercise their powers in approving Departmental budgets.  The role of Parliament with regard to the NDFSC remained unclear and unacknowledged.  The burden placed on the Office of the President had to be taken into account when considering whether the Commissioners should be appointed by the President.  The Committee had to carry out oversight over the Ministry, which included the NDFSC.  He asked that the role of the Executive and Parliament with regard to the NDFSC was clarified.  The Committee could not monitor the performance of a Ministerial Commission and the matter of accountability remained unclear.  The work done by the NDFSC would have implications for the Department’s budget.  He was concerned that the powers accorded to the Executive would usurp the responsibility of Parliament to oversee the Commission.  He was wary of the provisions in the Bill that gave the Minister, as a member of the Executive, enormous powers over the Commission.  The Committee played no role in the Cabinet and had no access to Cabinet decisions, for example the appointment of Commissioners.  The Minister had the privilege of being a member of the Cabinet and was in a position to withhold information from the Committee.  Members of Parliament were in constant touch with the public, unlike the Cabinet.  He asked for the guidance and advice of the Department and the SLA in addressing the concerns of the Committee.

The Chairperson said that the President had stated that the Defence Force would be de-unionised.  Despite the existence of the military unions, the conditions of service within the SANDF had not improved.  The MBC was considered to be dysfunctional but no attempt was made to address the problems in the current collective bargaining structure and the grievance system was not working.  He asked if the Department was sure that the proposed legislation would solve the problem.

Mr Holomisa said that the Minister would be ultimately responsible for the NDFSC.  The Commission was intended to aid the Department and the SANDF in determining conditions of service.  The stakeholders included the military unions.  There was a need to ensure that no undue prejudice took place and the Commission had to interact with all the stakeholders.  He asked for clarity on the interaction with the NDFSC required by the Committee, for example, the process that had to be followed for the release of the Commission reports.

Mr Groenewald said that the purpose of the Bill was the establishment of the NDFSC.  The issue of the military unions served to muddy the waters but had nothing to do with the underlying purpose of the proposed legislation.  He said that the impression created that the Bill seeked to do away with the military unions was not correct.  The unions were undisputable stakeholders in the collective bargaining process and the opinion expressed by the President was another matter, requiring a separate debate.  The focus had to remain on the establishment of the NDFSC and had to be distinguished from the peripheral issues.  The role of the military unions was accepted.

Mr Vassen explained the different types of Commissions and quoted the Constitutional Court rulings relevant to the matter of the independence of Commissions.  He was of the opinion that the NDFSC would not be considered to be independent as the Commissioners would be appointed by the Minister and the Commission would report directly to her.  The legislation made provision for the military unions to bargain with the MBC and allowed the unions to engage with the NDFSC.  The MAB came into play if there was a failure in the collective bargaining process.  The MBC and/or the MAB made recommendations to the Minister on pay.  A parallel NDFSC process would have a detrimental effect on the collective bargaining processes and the role of the military unions.  He quoted the Parliamentary rules applicable to the oversight responsibility of the Committee.

Mr Mlangeni observed that the Committee required assistance to ensure that the legislation that was passed would not be challenged in the Constitutional Court by the military unions, which would be an enormous waste of time, effort and money for all concerned.

Ms Mpofu responded that the policy issue was discussed with the Committee when he Bill was introduced to Parliament.  The intention of the Bill was not intended to de-unionise the Defence Force and the Department had made the necessary changes to the Bill to accommodate the military unions.  The omission of the MBC in Section 55 was an unintended error.  The NDFSC had the right to consult with all stakeholders, including the military unions.  Likewise, the omission of the requirement that the Minister of Defence consult with the Minister of Finance was not intentional.  The role played by the MBC and the MAB in the collective bargaining process would continue and it was not the intention of the Bill that these structures were undermined by the NDFSC.  The Commission would advise the Minister on the conditions of service in the SANDF.  The Department had considered the international experience and had noted that other countries had specialist structures to deal with particular issues, such as human resources.  The NDFSC would make recommendations to the Minister for consideration and the proposed legislation made provision for the establishment of the necessary structure to deal with matters concerning conditions of service.

Concerning the role of Parliament, Ms Mpofu advised that the Department had obtained the advice of the Office of the State Law Adviser on the nature of the proposed Commission.  She acknowledged that further clarity on the interaction between the Committee and the NDFSC was required.  The Commission would advise and support the Minister, who was already accountable for the Defence Force.  She conceded that all levels of Government were affected but overall responsibility for the Commission rested with the Minister.  As a member of the Cabinet, the Minister participated in Cabinet decisions but did not have unlimited powers.  Section 62 (H) of the Bill dealt with the oversight responsibility and specified that the NDFSC had to submit an annual report, which was tabled in Parliament and gazetted.  In this respect, the NDFSC was similar to other Ministerial Commissions and could be held accountable by Parliament.

Referring to the responsibility of the Committee in terms of the Money Bill, Ms Mpofu said that the budget for the NDFSC would be included in the budget of the Department.  She gave the assurance that the Department would ensure that the budget was thoroughly prepared.  In addition, the Department had legal obligations in terms of the Public Finance Management Act (PFMA) that required the submission of a strategic plan, a budget and annual reports by the accounting officer.  The Department was prepared to appear before the Committee whenever required.

Ms Mpofu said that the oversight and administrative functions with regard to the NDFSC had to be clarified and agreed with the suggestion made by Mr Holomisa that these functions were specified.  The NDFSC would not be a constitutional Commission.  The processes to be followed could be included in the Regulations.  The NDFSC could not exclude stakeholders from participating in the recommendation process.

With regard to the concerns raised over Section 104, Ms Mpofu explained that different regimes were applicable during times of war and peace.  The provisions in Section 104 dealt with the call-up of the Reserve force during times of war.  Members of the SANDF Reserves could not be compelled to serve during times of peace but the Department had no intention to criminalise the failure to report for duty.  Different criteria applied during times of war, when all members of the SANDF had an obligation to serve.

In conclusion, Ms Mpofu said that the Department had adopted a pragmatic approach in the drafting of the Bill.  Due consideration was given to the matters raised in the submissions.  There might have been certain misapprehensions but she hoped that the changes made to the provisions of the Bill had addressed the problems.

The Chairperson asked the Members of the Committee to consider the input received on the Bill, discuss it with their respective parties and to make use of the legal services available.

Mr Maynier said that the applicable policy was not clear and he urged the Department to provide the Committee with Government’s latest policy on the Defence Force.

The meeting was adjourned.