Members discussed clause 4 (section 55 of Act 42 of 2002) where they had proposed the drafting of a third sub-clause, 55(3), to provide that the Minister, taking into account recommendations from the Defence Force Service Commission and with the Minister of Finance’s approval, could determine salaries and entitlements of Defence Force members. The Committee had felt the wording of the draft seemed incorrect. The Department acknowledged some minor mistakes and the necessary changes were made. The Parliamentary Legal Adviser expressed concern about the processes contained in clause 4 for determining salaries and entitlements. He did not think the Constitutional Court would take kindly to amendments of this nature. Some Members then proposed that the clause not be amended and that the third sub-clause be deleted. After a short break to caucus, the ANC felt that 55(3) should remain.
During deliberations on clause 5, concerns were raised about the fiscal implications of the large number of Defence Force Service Commissioners, whether the Commission should consult with the Reserve Force Council on salaries and conditions of service, the degree of independence of the Commission, whether the Commission should provide quarterly reports on the grievance system in the Defence Force to establish morale, and whether there was duplication of responsibility about the Commission’s consultations with the Minister of Finance and the National Treasury. A DA Member was concerned that the Commission’s power to extract information from the Defence Department was limited and proposed that it had to be strengthened. The majority of the Committee disagreed with this proposal, saying they did not want to compromise national security. Due to his appeal that the method of selection of commissioners gave the Minister enormous powers, which could compromise the independence of the Commission, the legal advisers were requested to look at his proposal to ensure the appointment process was independent.
In clause 5, no changes were made to new sections 62A, 62B, 62D, 62E, 62F, 62G, 62H, 62I, 62J, 62K, and 62L. However section 62C of clause 5 was amended to state that five members should be appointed to the nomination committee making recommendations to the Minister.
A DA Member felt that new section 62H(2) had to be strengthened and amended to ensure that Defence Force Service Commission reports would be made available to the public. Some reports tabled in Parliament were discussed in committee meetings that were closed to the public. He wanted to avoid this happening to the Commission’s reports. The Member was reminded that a committee such as the Joint Standing Committee on Defence closed their meetings due to the importance of certain issues that could affect national security. The Committee clarified that any report that was tabled had to go through the Speaker’s Office. It was the Speaker’s prerogative whether reports should be made public. If the Member had a problem with this process, he had to take the matter up with the Speaker.
The Department wanted to delete clause 6 as it was no longer necessary. The Committee agreed to this. The Chairperson noted that the Department had not proposed any amendments to clauses 7, 8 and 9. Members asked the Department to reconsider the use of the word “fails” in clause 7(a), as there could be a good reason why a person would be unable to render a service in the Defence Force. It seemed as if people would be criminalised even if they had a good reason for not fulfilling a service.
Deliberations on the Bill
Clause 4 amending Section 55 of Act 42 of 2002 – Pay, Salaries and Entitlements
The Chairperson stated that the Committee was supposed to have finalised this clause yesterday. He wanted to finalise discussions on the clause so the Committee could move forward with clause 5. As discussed previously, section 55(1) would state, “Members of the Regular Force and Reserve Force must receive such pay, salaries and entitlements including allowances, disbursements and other benefits in respect of their services, training or duty in terms of this Act as may from time to time be agreed upon in the Military Bargaining Council”.
Section 55(2) would state, “if no agreement contemplated in subsection (1) can be reached in the Military Bargaining Council, the Minister may, after consideration of any advisory report by the Military Arbitration Board and with the approval of the Minister of Finance, determine the pay, salaries and entitlements contemplated in that subsection”.
If this did not work, then section 55(3) had to be looked at. This subsection would read that “if the process contemplated in subsection (1) and (2) do not materialise, the Minister may, on the recommendation of the Commission determine pay, salaries and entitlements without approval of the Minister of Finance”.
The Chairperson asked if this would take care of all the concerns raised by Members at the previous meeting. He wondered why 55(3) said that the decision could be made “without approval” of the Minister of Finance, instead of saying that the decision could be made without consultation with the Minister of Finance. He asked if this was the correct wording.
Ms Mpofu said that two errors had been made by the Department in amending this clause. The first error was that “approval” was used in 55(3) instead of “acting in consultation with the Minister of Finance”. The principle remained that the Minister of Finance had to be consulted throughout the process. The second error was that the words “and approved by the Minister acting in consultation with the Minister of Finance” had to be included at the end of 55(1). The sentence had been deleted by mistake.
The Chairperson noted that the Committee was satisfied with these corrections proposed by the Department. He asked the Parliamentary Legal Adviser if there were any constitutional challenges with the proposed amended clause.
Mr Ntuthuzelo Vanara, Parliamentary Legal Adviser, said that the process prescribed in section 55 was a little strange. If Members thought back to discussions held the previous day, it was agreed that both the employer and organised labour had to be represented in the Military Bargaining Council. The Council’s recommendations still had to be given to the Minister for consultation with the Minister of Finance. They would discuss whether the agreement given by the Military Bargaining Council was feasible to implement. There was a second provision that said the matter would go to the Military Arbitration Board if no agreement was reached.
He pointed out that the Act did not deal with the composition of the Military Arbitration Board. This matter was dealt with in the regulations. The regulations gave the Minister the power to appoint the members of the Military Arbitration Board. The Constitutional Court had found the composition of this Board to be unconstitutional because of the perceived bias of the members appointed to the Board. This was another factor that had to be looked at. The Military Arbitration Board also did not make final decisions. It issued advisory reports to the Minister. The Minister then had to agree or disagree with the recommendations proposed by the Board. The Committee should also look at 55(3). The “mischief” that the Committee wanted to address was the “dysfunctionality” of the Military Bargaining Council. It was suggested that the legislation had to empower the Minister in the event that the Military Bargaining Council could not function. The Minister should then effectively and unilaterally determine the salaries and other conditions of services. The legal question was whether this would make the Bill subject to constitutional challenge. He did not think that the Constitutional Court would take kindly to proposed amendments of this nature.
Mr A Mlangeni (ANC) said that section 55(3) did meet constitutional requirements. The provisions in section 55 were the procedures that had to be followed by unions and everyone else before improvements to salaries could be made. The Committee’s concern was to improve the conditions of the people.
Mr P Groenewald (FF+) commented that he understood what the legal adviser was saying. He suggested that the Committee leave 55(1) and (2) as they were in the Act. The Committee wanted to use the Commission as a tool to solve labour disputes. He felt that the Committee was actually compromising the Commission. He recommended that the proposed subsection 55(3) be removed in its entirety, and that 55(1) and (2) be left as they were in the Act.
Mr L Mphahlele (PAC) stated that after listening to the legal adviser, he thought the Committee should retain the section as it was in the Act without any amendments. He supported Mr Groenewald’s proposal. The Bill did not need subsection (3).
Mr D Maynier (DA) added that the previous discussion concerning clause 4 (section 55) concluded with the Committee deciding that the clause would not be amended. This would certainly pass constitutional muster. However, he wondered if 55(2) should be amended to state that if there was no agreement, then the Minister consider any advisory reports from the Military Arbitration Board and the National Defence Force Service Commission, and then with the approval of the Minister, contemplate pay or salaries.
The Chairperson stated that the Committee was supposed to focus on the poor service conditions of soldiers. The Committee recognised constitutional matters and respected the Constitutional Court, but the SANDF had been unionised. This was a challenge that the Committee had to face head on. The Committee wanted to improve the soldiers’ situation through amending the legislation. This was the challenge the Committee was faced with. The Committee also had to look at the relationship that existed between Parliament, the Judiciary and the Executive. At this moment, Parliament was being called upon to apply its mind to certain matters such as the unionisation of the SANDF. This was the biggest challenge that the Committee was faced with at the moment. Members had to take this into account when they decided on what would happen with the clause the following day. When making the decision, the Committee had to consider the life of the ordinary soldier. The democratic practices in the country said that the Committee had a responsibility not to undermine the Constitutional Court, but the Committee also had to think of ways to strengthen democratic processes and make it possible for the country’s soldiers to feel that they were protected and guarded by these processes.
Ms S Ndabeni (ANC) spoke on behalf of all ANC members present at the meeting. She asked for a ten-minute break in which the ANC could discuss the matter further.
The Chairperson called for a short break in the meeting.
After the break:
Mr Maynier asked the Chairperson to enlighten the rest of the Committee as to what the ANC had discussed. Just before the rest of the Committee was asked to leave the room, the Committee was discussing the question of unions. His understanding was that the primary thrust of the Defence Amendment Bill was to set up a National Defence Force Service Commission. There could be no greater advocate of de-unionising the military than himself, but he understood that this was separate process. He hoped that this would be fast-tracked. If the Committee was going to conflate this, they might get into some trouble and not succeed in getting the Commission set up timeously.
Mr A Maziya (ANC) said that the aim of section 55 was to ensure that the Minister would be able to make a decision when there were challenges during negotiations. If there was an absence of structures at certain levels of negotiations, it was the Minister’s responsibility to ensure that the soldiers were happy. He suggested that the Committee accept that they had exhausted discussion on the section and move forward.
The Chairperson asked if the ANC was suggesting that section 55 (1), (2) and (3) should stand as it was.
Mr Maziya answered in the affirmative.
The Chairperson noted that the members had exhausted discussions on the section. The relevant parties would correct and address the Committee’s concerns. He hoped that Members would apply their minds to the clause the following day when the clause was going to be finalised.
Mr Maynier said that it would be useful if Members could get a final draft of the proposed amendments to section 55 from the Department.
The Chairperson replied that he would leave it to the Department and the drafters to bring everything together.
The following discussions arose about new sections 62A to 62L:
Section 62A: Establishment and Composition of Defence Force Service Commission
Mr D Maynier (DA) proposed that 62A(2) be amended to say that there should be six commissioners.
The Chairperson said that the Committee would make a decision about the number of commissioners the following day. However, he thought the current number of commissioners was substantial.
Mr P Groenewald (FF+) said that when they made a decision about the number of commissioners, they had to take into account that many of the commissioners would be full-time. Therefore, the Committee had to look at fiscal implications when deciding on the number of commissioners.
The Chairperson noted this concern.
Section 62B: Functions of Commission
Mr Groenewald said that he hoped 62B(d)(iv) would be amended to include the Reserve Force Council. There had to be consultation with the Reserve Force Council.
Mr Maynier noted the Committee had spoken about the division of functions of the Commission at the previous meeting. There was a concern that the Commission had to be independent and make recommendations. He wondered if the Secretary of Defence would consider amending 62B(c) where the Commission had to ensure the effective and efficient implementation of policies. He wondered if there was a risk that the Commission could deviate into becoming involved in what the Parliamentary Legal Adviser once called “operations”. Did the Department not think it a good idea if part of the Commission’s functions was to carry out a quarterly quantitative and qualitative review of the grievance system, and to make this report available to the public?
The Chairperson addressed the first proposal. He said that the Committee would have to see if this proposal would affect the organogram of the South African National Defence Force (SANDF). He asked if the Department (DoDMV) to comment on the suggestion.
Ms Mpumi Mpofu, Secretary of Defence, replied that the Committee should reconsider “ensure” in 62B(c), as it was probably inappropriate. The word could be substituted with “monitor”. Once specific recommendations were made, the entity had a responsibility to monitor the implementation of the recommendations.
The Chairperson asked if all Members agreed with the proposed amendment.
Mr Groenewald answered that he was unsure. As worded now, it meant that the Commission was actively involved in promoting measures and setting standards to ensure effective implementation of policies.
Mr L Mphahlele (PAC) added that standards were being ensured, not the Commission itself. So, the Committee could retain the current terminology. He did not think it was in conflict with the spirit of the Act.
Ms Mpofu said the clause was fine. The question was whether it was deemed adequate that the balance of the clause would cater for certain circumstances. If the Committee felt that the balance of the clause enabled the Commission to exercise its monitoring duties, then the clause could stay as it was. She added that 62B(3) and (4) looked at monitoring and evaluation policies recommended by the Commission. The issues of monitoring policies were catered for in those two clauses.
Mr Mphahlele addressed 62B(d)(vi). Somewhere in the Bill, it stated that the Minister of Defence had to consult with the Minister of Finance. He asked if this was not a duplication of responsibility. It seemed that the Minister and the Commission would be consulting on the same matters with different entities.
Ms Mpofu replied that the Department did not consider this function to be a duplication of responsibility. National Treasury (NT) processes were very intricate and complicated, and interventions were sometimes required at levels other than at ministerial level in relation to issues such as budget allocations, negotiation of salaries and deviations from NT prescripts. The inclusion of the sub-clause was to ensure that the Commission was not excluded or barred from the ability to consult the NT on certain matters.
Ms Mpofu addressed concerns about 62B(d)(iv). There was a concern about how the Reserve Force Council was different from the Defence Force Service Commission. The Department thought that this could be problematic. The Reserve Force Council was a structure that fell under the Reserve Force and conducted its business in the context of and under the control of the Chief of the Defence Force in its entirety. She proposed that it would be superfluous to list the Reserve Force Council specifically when the Chief of the Defence Force was already listed.
Mr Siviwe Njikela, Director: Legal Services, DoDMV, said the Committee had to be careful about including the Reserve Force Council. The right of the Reserve Force Council to be consulted was limited to matters that affected the Reserve Force. This was stipulated in Section 48 of the Principal Act. There was no need for it to be included in this particular clause.
Mr Groenewald responded that Section 48 of the Principal Act said that the Reserve Force Council was an integral part of the Defence Force and it had to be consulted on any legislation, policy or administrative measures affecting the Reserve Force. Many of the submissions had asked for the Reserve Force Council to be included in 62B(d)(iv). The Committee had discussed this matter previously and a decision had already been made to include the Reserve Force Council in the sub-clause.
The Chairperson said that the Committee had to think about these matters, as he wanted to finalise the amendments to the Bill at the meeting on the following day. He wanted to move on to another matter.
Mr Maynier said section 62B(3) seemed to give the Commission powers to request assistance from the Department. It seemed to him that the Commission might, from time to time, require information from the Department of Defence. He also felt that, from time to time, the Department might refuse to provide the Commission with certain information or they might refuse to provide it timeously. This raised a question about the powers that the Commission should have to access certain information. Given the Defence Amendment Bill, it seemed the powers that the Commission had were fairly limited. He thought the Commission should have similar powers to an Inspector-General where they could compel the Department to provide information.
Mr Mphahlele commented that he understood what the member was saying. However, he felt that it defeated the purpose of having a Commission. He thought that the Commission’s powers and its relationship with the Minister should suffice. He suggested that the Committee should retain 62B(3) as it was.
The Chairperson noted that the Committee in general would rather retain the subsection as it was. There were areas of confidentiality within the Department and the SANDF that had to be maintained. The Committee did not want to compromise the security of the country.
Ms Mpofu responded that the subsection was appropriately worded and that it actually did place an obligation on the Department to provide the necessary information to the Commission.
Mr Maynier wondered what the sanction would be if the Department decided not to oblige.
The Chairperson noted that this was a separate issue to deal with.
Mr Maziya added that it was going to be problem if the Committee started to be “predictive”.
Mr Maynier answered that he was not being predictive. He was dealing with the reality of the situation, which was that the Department had a very strong reputation for not being transparent and for resisting providing certain information. He expected that this behavior would continue.
The Chairperson said that Mr Maynier’s point had been made. However, he was closing the matter.
Section 62C: Appointment of Members of Commission and Conditions of Service
Mr Groenewald noted that the section did not stipulate how many members there had to be in the nomination committee.
Mr E Mlambo (ANC) said that he also noted the same problem and suggested that the nomination committee should consist of five members and that the gender of the members should be considered.
The Chairperson noted that Members agreed with this proposal.
Mr Maynier added that the objective of the Bill was to set up an independent National Defence Force Service Commission. He wanted to emphasise that the Commission had to be independent. There were independence tests that arose out of Constitutional Court judgments and one of the tests looked at how members of a commission were appointed. He urged the Chairperson to ask the legal advisers to brief Members on how they could test the independence of the Commission. If Members looked at the proposal for the selection of commissioners, it showed that the Minister was given enormous powers, which he believed could compromise the independence of the Commission. He suggested that the Committee take some time to look at how members of other commissioners were appointed. The Committee had to ensure that the appointment process was independent.
The Chairperson asked the legal advisers to look into this proposal. The Committee would receive feedback at the next meeting before the Committee had to finalise the Bill.
Section 62D: Disqualification from Membership and removal from Office
Mr Maynier focused on section 62D(3). It seemed that the Minister’s powers were quite “draconian”. He asked if it was the Minister’s duty to decide who was inefficient, who was unable to perform, and to remove such a person from office. It was his understanding that an independent body had to make these decisions. He asked the Parliamentary Legal Adviser to look at this subsection, as it seemed that there was something wrong with it.
Mr Groenewald replied that in any removal of members, there was common law that had to be followed before anyone could be removed.
Mr Mlangeni agreed with Mr Groenewald.
The Chairperson noted that the issue raised by Mr Maynier had been clarified.
Section 62E: Vacation of Office
Mr Mphahlele suggested that the Committee keep the section as it was in the Bill.
The Chairperson noted that Members agreed that the section should not be amended.
Section 62F: Meetings of Commission
Mr Maynier suggested that section 62F be amended to say that the Commission should meet at least four times a year.
The Chairperson replied that section 62F(1) stated that the Commission had to meet a minimum of twice a year. This meant that they could meet more than twice a year if they needed to. Therefore, the section as it was in the Bill would not be amended.
Section 62G: Committees of Commission
The Chairperson asked why this clause had to be included in the Bill.
Ms Mpofu replied that the Department thought that the establishment of committees within the Commission would be an important matter to legislate. For example, a “pay review” committee could be established within the Commission, but it had to be established legally.
Mr Maynier accepted that the Commission would have to set up sub-committees from time to time. But, he was concerned that the sub-committees would be able to perform any duty or exercise any power. He asked if this meant the Commission could delegate the function of recommendations on salaries to a sub-committee. If this was the case, then the Committee had to look at limiting the functions given to sub-committees. There were certain functions that could not be delegated to sub-committees.
Mr Njikela replied that subsection 62G(5) dealt with this matter.
The Chairperson noted that the subsection would be kept as it was in the Bill.
Section 62H: Reporting
Mr Maynier said that his understanding of 62H(2) was that the Commission’s report would be tabled in Parliament. He felt that the subsection had to be strengthened and amended to ensure that the report would be made available to the public.
Mr Mlangeni replied that 62H(4) ensured that the report would be made public.
Mr Groenewald added that the moment a report was tabled in Parliament, it became a public document.
Mr Maynier responded that reports that were tabled in Parliament were not always made public. For example, some reports were given to closed committees. He wanted to avoid a situation where the Commission’s report could be given to a closed committee.
Ms Ndabeni reminded Members that a committee such as the Joint Standing Committee on Defence closed their meetings to the public due to the importance of certain issues that could affect national security. Some issues were of national importance and could not be presented in an open meeting in Parliament.
Mr Groenewald wondered which reports these were that were tabled in Parliament and not made public. His understanding was that when a report was tabled, it was supposed to be made public.
The Chairperson clarified that any report that was tabled had to go through the Speaker’s Office. It was the Speaker’s prerogative as to whether reports should be made public or not. If Mr Maynier had a problem with this process, he should take the matter up with the Speaker.
The Chairperson noted that subsection would not be amended.
Mr Maynier replied that it seemed that section 62H provided loopholes that allowed for the report not to be made public. He was concerned about this.
The Chairperson said that Mr Maynier could not put pressure on the Department to publish the report. He had to challenge the Speaker on the matter.
Mr Groenewald asked the Parliamentary Legal Adviser to explain what it meant to “table” a document in Parliament.
Mr Vanara answered that the tabling of a document in Parliament meant that the Minister or the Accounting Officer responsible in terms of legislation had to submit documents to the documentation section of Parliament. The documents were submitted to the House where it would receive the appropriate direction. The mere tabling of documents in Parliament made it a public document. If certain information in the report should not be made available to the public, legislation provided that this information could be withheld from the public.
Mr Maynier said that he was satisfied with the legal adviser’s answer that tabled documents had to be made available to the public. He wanted to propose an additional reporting requirement that would include the insertion of another subsection. He proposed that the Commission produce a quarterly report to be tabled in Parliament that would look at the grievance system in the Defence Force. The reports would provide a statistical breakdown and a qualitative review of the grievance system each quarter.
Mr Maziya replied that the Commission was only expected to meet twice a year so the Committee could not expect to receive quarterly reports from them, that looked at functional matters of the Department. These were problems pertaining to human resources; they were not parliamentary problems.
Mr Groenewald asked the Committee to apply an open mind to Mr Maynier’s proposal. He thought it was a good suggestion as it would focus on the morale of Defence Force members. He would support the amendment.
The Chairperson answered that Members had to consider the prerogative of the Commission as well as the Secretary of Defence’s duty to follow up on matters. He was not convinced by Mr Maynier’s proposal. The amendment would also mean that the Committee and the Department would have to deal with disciplining soldiers. He asked Mr Maynier to draw up a proposal for Members to consider. The Committee would only be voting on the Bill on Tuesday, 12 October 2010, so there would be enough time for Members to consider the proposal.
Mr Maynier also addressed subsection 62H(3). He asked how “national security” was defined and if it was defined in the Principal Act. If it was not, it seemed that the Executive was being given arbitrary power over what had to be included in the report.
Ms Mpofu replied that the Department would look into this matter and report back to the Committee.
Section 62I: Staff of Commission
The Chairperson asked if the section was relevant or if it could be excluded from the Bill.
Ms Mpofu explained that the section enabled a difficult process where people within the entity would be assigned specific duties. If the subsection were not included, there would be issues of accountability.
The Chairperson noted that there was no contestation of the section.
Section 62J: Funding
The Chairperson noted that there was no contestation of the section.
Section 62K: Intervention by Minister
The Chairperson said that the section looked straightforward. He noted that there were no issues raised.
Section 62L: Regulations in Respect of Commission
Mr Maynier pointed out that the Minister compiled the regulations. He wondered if these regulations should be seen by Parliament at some point.
Mr Vanara explained that regulations were essentially delegated legislation. The legislature had the power to delegate regulations to the Executive. If the power was delegated and the legislature wanted to keep track of how the power was exercised, the regulations could be made subject to the Parliament’s approval. The Committee was well within its power to do so.
Mr Maynier proposed that section 62L be amended to state that the Minister may make regulations subject to the approval of Parliament.
The Chairperson replied that this was an issue of trust. He asked Mr Maynier and the rest of the Committee to trust the Minister and to let her perform her duties. The responsibility of making regulations had to be left to the Minister.
Clause 6: Amendment of Section 82 of Act 42 of 2002
The Chairperson noted that the Department proposed that the clause be deleted.
Mr Njikela explained that it should be deleted because it was linked to a proposal that was made for section 55, which was to delete the Military Bargaining Council’s role in determining salaries. The Department has since withdrawn this proposal. Since the Council was included in section 55, clause 6 was no longer necessary.
The Chairperson noted that the clause would be deleted.
The Chairperson noted that the Department had not proposed any amendments to clauses 7, 8 and 9.
Mr Njikela replied that the Department did not have any issues with the clauses.
Mr Groenewald asked the Committee to reconsider the use of the word “fails” in clause 7(a). There could be a good reason why a person was unable to render a service in the Defence Force. It seemed as if a person would be criminalised even if they had a good reason for not fulfilling a service. He suggested that the Committee delete the word “fails”.
Mr Mlangeni did not think there was any other word that could be substituted in place of “fails”. If the person had a good enough reason for being unable to perform his/her service, then they would not be subject to a fine or imprisonment.
Mr Mphahlele agreed with Mr Mlangeni, but he understood Mr Groenewald’s concern. He suggested that the word “fails” be qualified.
The Chairperson noted that this point had been made in other submissions as well. He did not understand why this clause “stood on its own”.
Mr Njikela replied that he had hoped that the Committee would review clause 3 (amending section 53 of Act 42 of 2002) of the Bill. Clause 7 reinforced what was contained in section 53. On 18 September 2010, the Department proposed that “fails” in clause 7 had to be qualified by the insertion of the words “without a reasonable cause or just cause”. It was up to the Committee to decide on whether the clause should be amended.
Mr Groenewald proposed that clause 7(a) be amended to state, “without valid reason” after “fails”.
The Chairperson replied that it seemed that the Committee would not be voting on the Bill at the meeting scheduled to take place the following day. He wanted to give the Committee a chance to refresh their memory about the amendments proposed to clause 3 (amending section 53 of Act 42 of 2002) of the Bill. He hoped the Committee would be able to finalise the Bill at the next meeting.
The meeting was adjourned.
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