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DEFENCE PORTFOLIO COMMITTEE; FOREIGN AFFAIRS PORTFOLIO COMMITTEE: JOINT MEETING Relevant Document:
12 September 2000
CONVENTIONAL ARMS CONTROL BILL: BRIEFING
DEFENCE PORTFOLIO COMMITTEE; FOREIGN AFFAIRS PORTFOLIO COMMITTEE: JOINT MEETING
Conventional Arms Control Bill
Â· An armaments development and manufacturing permit permits companies to operate in manufacturing and development conventional arms.
Â· A marketing permit regulates companies' products and lets them market internationally.
Â· A contracting permit, unique to South African arms control, lets companies apply for a pre-authorisation to engage in contractual negotiations so that they may then commit themselves without further authorisation.
Â· An export permit allows for the physical movement of material, either in a permanent transfer when sold or in a non-permanent transfer for demonstration, testing, or evaluation purposes. Although it can cover several kinds of movements, it is not a season ticket insofar as each individual movement requires an export permit.
Â· An import permit can be a temporary permit for demonstration purposes.
Â· A transit permit is designed for arms to move across South African territory and be re-exported.
The present Bill implements the same basic structure in a permanent body.
Clause 1 - Definitions
Mr Marais noted the six categories of conventional arms covered by the Bill:
Â· A (Sensitive Major Equipment: fighter planes, tanks, ammunition over 7 mm);
Â· B (Sensitive Significant Equipment such as infantry equipment);
Â· C (Non-Sensitive Equipment such as optical pieces);
Â· D (Non-Lethal Equipment such as riot control equipment and demining equipment);
Â· E (Not for Sale, consisting mainly of anti-personnel land mines); and
Â· G (General Services: technical services accompanying items from the former categories).
Mr Marais noted that there was no category "F". This was a classification system comparable to other classification systems on an international basis.
Mr Marais emphasised the definition of "conventional arms" as relating to arms with a military purpose. Commercial components can be handled separately outside the classification system so long as they are not joined to military components.
Mr Ntuli (ANC) asked if imports are subject to safety standards. Mr Marais stated that the NCACC is purely a body for the regulation of the movement of armaments and that it is not concerned with the standards of equipment. He stated that the body exists for political oversight and to control the movement of arms across borders.
A member asked why there needs to be a category for anti-personnel land mines when their manufacture is no longer permitted. Mr Marais stated that the desire was to have a complete classification.
Mr Smit (NNP) asked the presenter to compare the South African system to the system in the United Kingdom. Mr Marais stated that he did not know the specifics of the UK system but that most systems have a lengthy application for any export, whereas South African arms manufacturers have the useful system of a contract authorisation that allows them to go ahead earlier and plan more effectively. This also avoids wasting the large quantities of money that can be spent in the marketing process.
Ms Mahomed (ANC) asked if we presently have sufficient and effective mechanisms to monitor and regulate arms. Mr Marais replied that the permit is processed along with other customs documentation and that the border police thus monitors it.
Ms Mahomed (ANC) asked if our systems are internationally compatible. Mr Marais replied that they are, that their crux is in the gatekeeping function, and that their effectiveness depends on the effectiveness of the border police.
In reply to a question from a member, Mr Marais stated that the Committee of the NCACC meets monthly to analyse the preceding month's activities and that it reports to Cabinet on a quarterly basis on such matters as export permits issued. He also stated that the NCACC reports to Cabinet twice a year on more complex issues such as embargoes. Further, as per the requirements of the United Nations, the NCACC reports on Category I items to the UN each year. He also explained that the NCACC produces an annual report for Parliament and the public, which is also available on the NCACC's website.
Mr Smit (NNP) asked if Cabinet had ever objected to a transaction that the NCACC had authorised. Mr Marais stated that it had not.
Mr Lockey (ANC) stated that the Committee must be satisfied with the Bill's wording and asked as to the meaning of the term "international practice" in cl. 15(a). The Chair suggested leaving discussion of this point until when the presentation reached that clause and asked the presenter to continue.
Mr Ramgobin (ANC) asked if there are adequate mechanisms to prohibit illegal illicit trade in arms when there are always allegations of South African arms in conflicts throughout the sub-Saharan region. Mr Marais stated that the NCACC depends on industry to volunteer information and that there is also a mechanism in the Bill for an inspectorate. He stated that he cannot comment on irregular businesses and that, for example, it may well not be possible to control everything at South African ports.
Introduction - Memorandum of Objects
Mr Marais referred to the memorandum of objectives at the back of the Bill and stated that the object of the NCACC that the Bill would establish is to give effect to government policies on conventional arms control. He stated that the key proposal in the Bill was to establish the NCACC and that another significant change was the establishment of the inspectorate. Although no expenses were expected to arise, any extra expenses cropping up would come from the defence budget.
Clauses 1 and 2 - Definitions and Establishment of Committee
Mr Marais explained that cl. 2 would establish the Committee. Although the definition of "Minister" in cl. 1(x) is the Minister of Defence, he stated that the expectation was that the Minister would make decisions only in consultation with the Committee. He referred again to the definition of "conventional arms" in cl. 1(iii) and stated that the categories to which he had referred earlier were all contained in the regulations. He noted that there was a categories approach rather than an items approach because there were too many possible items to list. He also noted that the Bill does not cover weapons of mass destruction because there are international agreements on them that South Africa implements through a non-proliferation division in the Department of Trade and Industry. He referred to cl. 1(iii) and noted that it also excluded weapons covered under the Arms and Ammunition Act, 1969, which was to become the Firearms Act, but that because of the drafting, there were no gaps in between.
Ms Hajaij (ANC) asked about the meaning of the word "person" in the Bill and whether it was to refer to private individuals. Mr Marais responded that it was a piece of legalese and he did not understand the Bill to deal with private individuals. Ms Hajaij (ANC) asked why the Bill did not then say "juristic persons". Mr Marais agreed that there might be a tighter definition of what persons the Bill referred to, even if the word could usually cover both natural and juristic persons. He stated that the Bill could not deal with private individuals because the reality was that arms transfers were often government-to-government and sometimes involved private organisations but never private individuals. Mr Ramgobin (ANC) suggested that this was qualified by the preamble and that based on the preamble, he understood the Bill to cover private individuals. Several members shouted negative comments on this conclusion. Mr Marais stated that the companies involved in arms sales are private companies and that when he deals with exports, the proportion of situations where the government buys directly are seldom and that it is almost invariably through a purchasing agency.
Mr Eglin (DP) asked if there is any law about supplying arms to a person outside the Republic of South Africa. Mr Marais stated that he had already answered this question. Mr Marais mentioned the definitions of "import" (cl. 1(vii)) and "manufacture" (cl. 1(viii)) and explained that there would be a screening process on these.
Mr Eglin (DP) stated that the point of conventional arms control seemed to be mainly about transfers of arms but that cl. 13(1) controlled manufacture and marketing within South Africa. He thus asked if the Bill had the effect of changing the function of the NCACC. Mr Marais stated that part of regulating the industry is knowing about manufacturers and knowing the activities in which they are involved. He stated that a marketing permit allowed for the registration of a product, which could also protect company A from company B's attempt to steal its technology. He stated that the NCACC needs to know who is marketing conventional arms.
Mr Marais referred to cl. 1(xiii) and explained that it defines "re-export" and that the Bill requires re-exporting to be with the original manufacturer's approval. He stated that this is part of appropriate international process.
Mr Marais referred to cl. 1(xiv) and its reference to the Secretariat.
Mr Marais stated that the Bill in cl. 1(xvi) contemplated an expansion of the meaning of "services" from the 1995 concept to include clearing services, brokering, financial services, and so on. He stated that it is important to see clearing services regulated as a professional service in order to raise standards.
Mr Marais mentioned the definition of "trade" in cl. 1(xx) and stated that it included "selling".
Ms Mahomed (ANC) asked why cl. 1(xvi) excluded contractual and warranty services. Mr Marais stated that the industry looks at a sale in different phases and that free support in the warranty period is part of the delivery phase. He stated that this is different from support two or three years down the line, which might be concerned with altering the product.
Clause 3 - Objects of the Committee
Mr Marais stated that the goal of the NCACC was to implement government policy. He referred to cl. 3(a)(i)'s requirement that it also comply with "international law" and suggested that this should really read "international practice", as there is really no such thing as "international law" in this area.
Mr Ramgobin (ANC) asked if it is possible to legislate based on norms when these differ substantially from one country to the next. He suggested that the legal advisers look at this more carefully.
Mr Stemmet, the state law adviser present, stated that the term "law" is out because there are no binding treaties on the matter. He stated that the broad international norms are not binding but that they are identifiable in the practice of states and can give some guidance.
Mr Marais stated that under cl. 3(b), the NCACC would promote South Africa's economic and national security interests. He noted that the nature of regulation was to control and not to block production. He stated that cl. 3(c), which requires the NCACC to foster national and international confidence in its control procedures, is about South Africa acting with integrity on conventional arms control.
Clause 4 - Functions
Mr Marais emphasised that the NCACC itself would determine necessary structures and processes. He stated that these would be in regulations in the future rather than merely in the NCACC's Guide. He explained cl. 4(1)(c) about liasing with the police service as being in the Bill because the police use the Firearms Act to regulate commercial arms and that if there is an embargo on a particular country, it is important that the police find this out from the NCACC before they allow an export. He also noted that the NCACC must impose conditions on permits and keep a registry of authorisations under the Act. He stated that the present system is that every transaction gets a number that is controlled by computer and cannot be changed. Mr Marais noted that the NCACC is subject to a requirement under cl. 4(1)(g) to submit regular reports. He referred the Committee to cl. 4(2) on the NCACC's powers.
Mr Ramgobin asked about cl. 4(2)(a) and whether the NCACC would do any investigation into an illicit trade. Mr Marais stated that the NCACC could initiate an investigation and respond.
The Chair asked if the NCACC is or is not presently doing this. Mr Marais stated that it is but that because it does not have an inspectorate, it must task it out to the law enforcement community.
Mr Ramgobin asked if there is a distinct possibility of South African arms continuing to go to Angola and the DRC given that the NCACC does not exercise real control. Mr Marais responded that these will not occur and that the intelligence community makes regular reports to the NCACC on suspected activities.
Ms Mahomed (ANC) asked for more detail on the requirement of regular reports. Mr Marais stated that the intent in the legislation was for this requirement to remain flexible. He stated that there will be reports and that Cabinet must specify what is in them and how frequent they should be.
The Chair asked if excessive flexibility could lead to a situation where there would be a report only once every two years. Mr Marais stated that the Committee should express itself and that it is up to the Committee if it wants to see frequent reports.
Ms Mahomed (ANC) asked if a quarterly report is sufficient oversight given the nature of the activities in which the NCACC is engaged. Mr Marais stated that this depends on what Cabinet wishes to draw from the reports. He stated that the United States, with 50 000 transactions annually (compared to 2000 annually in South Africa), has quarterly reporting. He stated that the frequency of reporting is not about quantities but about what kinds of things the readers want to oversee. He stated that if the Committee wants to know about transactions to particular countries or regions, it is best for it to ask.
The Chair expressed that the concern arises from the fact that Parliament has not seen any reports from the NCACC as it has been functioning and, as a result, it wants it written somewhere that the NCACC is indeed to make reports.
Mr Ramgobin (ANC) added that there are competing considerations between accountability and issues of state security. He noted that what kind of report the Committee would expect should depend on its assessment of these competing considerations.
Mr Eglin (DP) suggested that a detailed report might be more a concern for Cabinet. However, he was concerned that the NCACC should report on its activities to Parliament at certain intervals.
Mr Marais reiterated that the NCACC would be continuing with its annual reports and that specific requests to report would be answered without hesitation.
Mr Gogotya (ANC) noted his concern that reports are often released to the media before they are released to Committee members and asked if there is a way to address this. Mr Marais suggested that standing committees need to give an indication as to when the report should be submitted to them.
Prof Mabeta (UDM) stated that Parliament is trying to get to a situation where it can get information. He sternly stated that this matter should not be taken lightly, as it is about the fundamental issue of accountability.
Clause 5 - Composition of Committee
Mr Marais explained that the members of the interim committee constituted in 1995 had been appointed by name. He stated that there was a need for more flexibility. He stated that cl. 5(1)(b), allowing the President to appoint people other than Ministers and Deputy Ministers, would allow needed flexibility. He also noted that, thus far, appointments had been people dedicated to arms control, as their involvement in the NCACC was often not in line with their portfolio responsibilities. He also joked that it was often not a political career-enhancing appointment.
Mr Lockey (ANC) commented that the wording here was weak. Mr Marais said that the state law advisers had guided the wording. The Chair suggested dealing with formulation issues at a later stage.
Clause 6 - Meetings
Mr Marais stated that the NCACC Committee currently meets monthly and that it would continue to do so even though the Bill provides for meetings at the discretion of the Chair. He stated that the Bill was designed this way to avoid rigidity that would make it impossible for there to be a quorum.
Clause 8 - Secretariat
Mr Marais stated that the Secretariat is and will remain essentially the executive branch of the NCACC in terms of actually processing permits.
Clause 9 - Inspectorate
Mr Marais explained that the original idea had been to have the inspectorate as an independent body or as a part of another department. After many opportunities and attempts to establish such an inspectorate, it has become clear that no other department wants it. Thus, the proposal is now to make an inspectorate part of the NCACC with the functions as envisaged.
Mr Marais also explained that the Americans do inspections at one percent of arms dealers in a given year. In South Africa, the equivalent would be inspecting one company. Thus, he suggested that South Africa's inspection rate would be more like five or ten percent per year. Even this will not require a full-time inspector, as audit and compliance functions are separate and the inspector goes out simply to check the books.
A member asked about cls. 9(5) and 9(3), which refer to the "expertise" and "equipment" of an inspector, and just what the inspector does that requires expertise and equipment. Mr Marais later explained that he did not know what equipment an inspector would need, as there was no authorisation to, for example, break open a safe.
Ms Mahomed asked about cl. 9(4)(b) and why an inspector had to show his or her documentation to any member of the public who asked to see them. Mr Marais suggested that the clause implied that this was for people who asked to see them while the inspector was in the course of inspectorate functions and did not mean that the media would have the right to look at the documentation. The Chair suggested that there was a problem in the clause's language. Mr Marais stated that it had been guided by the state law advisers.
The Chair stated that there was a requirement for language in a Bill to be people-friendly and that this Bill failed this requirement and was actually very confusing. She also stated that the language about "any person" was not clear and needed to be cleaned up. She also asked what the intent was with respect to the inspectorate and why Mr Marais did not know what the inspectors would do. Mr Marais stated that there had originally been an intention to allow intrusive inspections if necessary but that there were constitutional issues with this.
A member commented that the Bill needed a complete rewrite.
Ms Hajaij (ANC) stated that the language in the Bill was very wide and open to a lot of interpretation. She wanted to know what kind of inspector the inspector was, what work he or she would do, and how this complied with the constitution. Mr Marais did not explain further at this point.
Clause 10 - Secondment
Mr Marais explained that this clause deals with an administrative manner.
Clause 11 - Delegation
Mr Marais explained that this clause was necessary to allow the NCACC to delegate its powers.
Mr Lockey (ANC) noted that cl. 10 and cl. 11 had the same words in a different order ("The Minister may, with the concurrence of the Committeeâ€¦" versus "With the concurrence of the Committee the Minister mayâ€¦"). He suggested that this was sloppy and that the Bill should surely have some consistency in its language.
Mr Eglin (DP) noted that the concurrence of the Committee is a requirement on only some aspects in the Bill. He also noted that inspections under the Bill are only done in the Ministry of Defence. He remarked that it would be strange to set up an inspectorate entirely separate from the Committee it was meant to serve. Several members nodded in agreement.
Mr Marais did not have any response.
Clause 12 - Costs and Expenses of Committee
Mr Marais repeated that any additional costs would be picked up by the Ministry of Defence.
In response to a question from a member, he stated that the reference in cl. 12(2) to "the Department" was meant to refer to the Department of Defence.
Clause 13 - Control of Conventional Arms
Mr Marais stated that this clause meant that permits were required to undertake the specified activities with respect to conventional arms. He stated that every aspect was brought under the control of the NCACC so that it could regulate effectively.
Dr Mulder (FF) asked if the control on conveying would prevent him from conveying his arms. There was much laughter. Mr Marais emphasised that the arms that the Bill covered were all defined and that the Bill dealt with tanks and military assault rifles. There were some jokes about Dr Mulder's supply of armaments.
A member asked if the terms would ever cover the transit of arms around the country and whether it would cover the army's weapons. Mr Marais explained that it was not meant to cover government arms outside South Africa, as they would be there by presidential decree, and that it was not meant to cover any arms in South Africa. He stated that movements within the country, such as from the point of manufacture to the port of departure, were not covered. The member asked about if the arms were from Mozambique. Mr Marais explained that this would then become an international matter and be subject to the Bill.
The Chair asked why the Bill does not cover movements within the country. Mr Marais stated that such matters were the responsibility of the industry. The Chair asked if any other Act would help control them. Mr Marais stated that the responsibility for an armament is with its manufacturer until such time as the NCACC can properly be involved, and that it does not get involved until there is an ownership change or a move across an international border.
The Chair offered a hypothetical example of a company that makes arms in Mpumalanga and moves them to Natal. She asked if Mr Marais was saying that there would be no controls on this and that the manufacturer would be entirely in charge of this operation. Mr Marais stated that the NCACC does not regulate arms internally, that thefts are the responsibility of manufacturers, and that issuing permits would not do any good anyway. He also added that he thought other legislation might require reports to the police on such movements, although he said that this would require research.
Mr Maphoto (ANC) asked about South African arms going to dictators elsewhere in Africa. Mr Marais stated that there had not been one case with actual serial numbers that the NCACC could follow up on and that it happily would if there were any data. On further reflection, he recalled one incident where a human rights group in Sudan had found a grenade with a serial number traceable to South Africa. He indicated that this matter had been brought up with the country involved through diplomatic channels. However, he said that otherwise, there was nothing but allegations, and that the NCACC could deal only with facts.
Mr Maphoto (ANC) asked how there could be control of arms going to and from other countries through the Gateway Airport in the Northern Province. Mr Marais responded that the industry registers items going out through there and that in matters of re-exporting, these are under the ambit of the police and customs to investigate.
A member asked if the transit of arms within South Africa is not subject to hijacking. Mr Marais responded that this is a valid concern but that the member should talk to police officials about it. He added that applications for the movement of arms are forwarded to the Department of Transport.
Mr Lockey (ANC) asked if there is any legal prohibition on a South African citizen having conventional arms, such as a G6 cannon, without a license. Mr Marais replied that there was and that the Minister had to approve the transfer or trade of such goods through the permit system.
Clause 14 - Authorisation
Mr Marais stated that the NCACC would be able to prescribe various parameters in the permit. He also emphasised cl. 14(5), which requires an end user certificate to prevent arms from going just anywhere once they are out of one person's hands. He added that permits are not commodities and cannot be traded, noting that cl. 14(6) makes sure they expire in the case of major changes.
The Chair asked why the word "expedient" was used in cl. 13(3)(c) and (d). Mr Marais stated that the word meant "in the interest of" and that it had been selected based on advice from the state legal advisers. Mr Stemmet stated that he was not sure why this word was there but that he assumed that it was to provide for some kind of discretion. The Chair asked that the people who drafted the Bill be brought before the Committee so the Committee could get some answers. A member suggested that a better word would be "in the interest of" and that the Afrikaans translation matched this; he jested that a straightforward English expression will sometimes work in the place of a Greek or Latin expression.
Ms Hajaij (ANC) asked why cl. 14(6)(c) referred to the death of a person if the Bill was supposed to be exclusively about juristic persons. She suggested that there are major problems in the language of the Bill.
Mr Eglin (DP) suggested that cl. 14(2) seems to impose no qualification on the Minister's discretion with respect to issuing permits. He asked if there were to be no guidelines or policy. He asked if there are any existing rules such as not giving arms to terrorists. He noted that there had been two White Papers that had both recommended a Code of Conduct in legislation such as that before the Committee. Mr Marais stated that a decision had been taken not to include the Code in the legislation but that it was up to the Committee if it wished to add it and that there might be scope for it to do so.
The Chair stated that the Committee would be very grateful if Mr Marais would supply the existing guidelines so that it would know where he was coming from. She added that the Bill as it stands does not make a lot of sense. Mr Marais promised to locate the guidelines and file them with the Committee.
Clause 15 - Accountability when conventional arms exported
Mr Marais explained that a recipient government becomes responsible for a transfer by a signature. This means that that government is committing to take responsibility for the material.
Mr Lockey asked if there are any binding international treaties and what the term "international practice" (cl. 15(a)) is supposed to refer to. Mr Marais responded that it refers to the uniform practice among what he termed "responsible countries". He stated that there are no binding treaties like with weapons of mass destruction but that there are norms and that this is where integrity must come in.
Prof Mabeta (UDM) asked if there have been any case studies of practices elsewhere to establish these common practices. He also noted that he did not know what a so-called "responsible country" is. Mr Marais stated that there would be no export to a country where the government is not in control or where the government does not take responsibility for military equipment. He stated that this process is common with arms exporters.
Mr Lockey (ANC) noted that UNITA in Angola and forces in the DRC, Somalia, and Eritrea all get arms from foreign countries. He asked if this was not international practice. Mr Marais noted that the UN has put arms embargoes on Libya, Ethiopia/Eritrea, and other countries on a list. He stated that South Africa has endorsed all of these and that these embargoes are examples of international practice. He stated that the NCACC gets information from the intelligence and foreign affairs communities and can keep watch reliably.
From this point on, Committee members began gradually leaving the room.
Mr Lockey (ANC) suggested that the concept of "international practice" is as wide as God's mass. He said that it would make more sense to refer to UN requirements and said that "international practice" is not a meaningful guide. Mr Stemmet stated that the government is working on an Act that will allow South Africa to give domestic law effect to decisions of the Security Council.
At this point, Mr Marais found the guidelines that guide the NCACC in its decisions. He read these out: international obligations and commitments; the record of compliance of the recipient country; security interests and alliances; avoiding contributing to repression; avoiding contributing to international aggression and conflicts; regional stability; cost of the armaments versus the needs of the recipient country; not contributing to international terrorism and crime.
Dr Mulder (FF) asked why the government would not be honest and put these in the legislation. The Chair reiterated that the Committee wanted a written copy. Several members mumbled similar things.
Prof Mabeta (UDM) said that he felt throughout the day that the Committee was being asked to look for a duck in a room blindfolded. He stated that the discussion was very confusing. The Chair stated that this was a first discussion and that the Committee wanted all other relevant information. The Chair stated that the Bill would not go through if the Committee was not satisfied. She stated that there had been a problem in the last five years in the Committee being shut out of the process. She said that if members were irritable, it was their right because this was their first chance ever to interact with the NCACC. She said that the presenter should track down all other relevant information, including the case studies that Prof Mabeta had requested earlier.
Clauses 16-20 - Search and seizure powers
Mr Marais stated that these clauses provided for both routine inspections and other searches.
Dr Mulder (FF) asked why there is a need for cl. 18 on searches without warrants and whether this is unconstitutional. Mr Marais stated that these sections had been largely copied out of the current legislation, so they may well already be tested, but he said that he was not a legally trained person, so he could not answer the question.
Dr Mulder (FF) stated that the search powers seemed very broad to him. Mr Marais stated that he had no answer.
The Chair noted that the Committee wanted to be assured that Mr Marais would have some answers the following week.
A member commented that cl. 19 is poorly phrased where it refers to "self-incriminating evidence". He stated that the proper term is "self-incriminating information", which can then sometimes be used as evidence.
Clause 21 - Furnishing of information
Mr Marais said that this clause allows for getting additional information on a company and who its owners are.
Clause 22 - Duty to furnish reasons
Prof Mabeta (UDM) asked about the thirty-day requirement in this clause. The response was not clear.
Clause 23 - Disclosure
Mr Marais read out part of this clause.
Clause 24 - State bound
Mr Marais read out this clause and said that a legally trained person would have to explain it, as he had no idea what it meant. The Chair asked Mr Stemmet to explain it. Mr Stemmet stated that it meant that the state was to be considered a person as well and that a government agency would be bound. He said there might have been some reason for it. Mr Marais said that now he was not sure, but it seemed the state might have to get permits after all.
The Chair stated that she did not understand at all the additional words about criminal liability and asked what these meant. Mr Stemmet stated that these meant that the state was bound but was not subject to criminal liability. The Chair made a comment about needing to look for a legal scapegoat. Mr Stemmet explained further, stating that cl. 25 set out a number of penalties and that a prosecutor would not be able to enforce these against the state.
Ms Mahomed (ANC) said that a panel would be necessary to explain the Bill, as she considered that it was very broad and very vague.
A member asked if state agencies and directors would be liable. Mr Stemmet said that he was not sure of implications for directors. He said that cl. 24 meant that the state as such could not be liable. He said that it was the first time he had ever seen a provision like this.
Mr Lockey (ANC) noted that the state would be civilly liable even if not criminally liable. Mr Marais apologised and said he would seek more clarity. In response to a question, he said he would also investigate the liability of Cabinet ministers.
Clause 25 - Offences and penalties
Mr Marais explained that there is no authority in the Bill for the NCACC to impose penalties and that the Bill creates a number of prosecutable offences that law enforcement authorities would deal with. He said that the Committee might think about whether the NCACC should be empowered to impose penalties.
Clause 26 - Regulations
Mr Marais read out part of cl. 26.
Ms Mahomed (ANC) asked about the format of the reports referred to in cl. 26(1)(d) and whether the clause should be more specific. A member made a comment about how the regulations should incorporate other items the Committee might use. There was some heckling to the effect that the Minister makes the regulations, so putting these matters in the regulations creates government control, not parliamentary control.
Mr Eglin (DP) noted that cl. 25(1)(e) seems to contradict cl. 19 on self-incrimination, as it allows the forcing of answers to certain questions. He suggested that this should be looked at from a constitutional point of view.
Clause 27 - Repeal and savings
Mr Marais stated that there would be no gap in the authorisation process between the two Acts.
The Chair commented to the presenter that the Committee would appreciate better preparation with all relevant information at hand for the next meeting. She stated that the Committee hoped to cover more at its next meeting.
South Africa's conventional arms industry was long governed by the Arms Development and Manufacture Act of 1968. However, in 1994 a case arose over an illegal arms transaction, and the government appointed the Cameron Commission to study the issue of how best to exert control over conventional arms. In August 1995, the government decided to create an interim body, the National Conventional Arms Control Committee, until a permanent body could be established. The Bill before the Committee is designed finally to establish a permanent body.
The committee were briefed on the Bill by the Director of Conventional Arms Control in the Defence Secretariat The committee wanted more detail in the Bill on the requirement of regular reports from the NCACC. The Chairperson noted that there had been a problem in the last five years with the Committee being shut out of the NCACC process. This was their first chance ever to interact with the NCACC. The Committee found the Bill as it stands did not make a lot of sense and the discussion confusing. They hope for better progress at the next meeting on the Bill.
Fred Marais, Director of Conventional Arms Control: Defence Secretariat, brief the Committee on the Bill. Also present was Andre Stemmet, State Law Adviser on International Law for the Department of Foreign Affairs.
Background to Bill
Mr Marais explained the structure of the National Conventional Arms Control Committee (NCACC) as it has existed in an interim form since 1995. The NCACC includes thirteen members and a secretary to Cabinet and oversees government policy on conventional arms and regulates and controls armaments. The NCACC oversees a Scrutiny Committee, which in turn oversees the Directorate, which does the actual work in liaison with the intelligence community, the Department of Foreign Affairs, the Department of Defence and other bodies.
All permits that the NCACC issues are reported to the Committee of the NCACC on a monthly basis and consolidated to Cabinet on a quarterly basis. There are six kinds of permits that the NCACC issues:
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