Defence Amendment Bill [B11-2010]: Further Deliberations

Meeting report

Deliberations on the Defence Amendment Bill
The Chairperson noted that the majority of the Members of the Committee had agreed to the provision in the Bill that omitted the Chief of the Reserve Force from the Military Command during the deliberations held on 7 October 2010.

Mr P Groenewald (FF+) requested clarity on the composition of the Military Command and asked what criteria were applied to determine who should be included.  The proposed amendment to Section 13 of the Act to the effect that the members of the Military Command were appointed by the President “on the recommendation of the Minister” might be unconstitutional as the Constitution required that the Military Command was appointed by the President as the Commander-in-Chief of the Defence Force.  He queried whether the Committee had the power to pass legislation that effectively amended the Constitution.

The Chairperson noted that the Committee had not agreed to the provision concerning the involvement of the Minister in the appointment process.

Mr D Maynier (DA) was opposed to the amendment.  The Department of Defence and Military Veterans had not responded to his question on what had motivated the insertion of the provision in the Bill.  He wanted to know what problem the provision seeked to address, what the international best practice was and what criteria were applied in compiling the list of members of the Military Command.

The Chairperson said that the Committee had not yet agreed the composition of the Military Command and asked the Department to provide an explanation.

Ms Mamoloko Kubishi, Chief Director: Legal Services, Department of Defence and Military Veterans, explained that the Constitution provided for the President to appoint the Military Command but was silent on who would be the members of the Military Command.  The issue arose during the appointment of the Chief of the Intelligence Services.  The proposed amendment was an attempt to remedy the legal lacuna.  The issue was discussed at length.  It was important to differentiate between the Military Command and the Military Command Council.  The Military Command Council was an entity used by the Chief of the Defence Force to discuss matters of strategy and the Chief decided who served on the Council.  With regard to the composition of the Military Command, the Chiefs of the Defence services were automatically included.  In addition, the three-star generals were included.  The President confirmed the appointment of three-star generals and instructed the respective Chiefs to go to war.  The inclusion of the Chiefs of Human Resources, Logistics and the Intelligence Services was based on the preceding criteria.  The Chief of the Reserve Force did not command any forces as the members of the Reserve Force who were called up served in the other services.  The Chief of the Reserves acted as a coordinator, facilitator and an adviser.  Members of the Reserve Force reported to the Chiefs of the respective services, the Chief of Joint Operations or the Chief of Human Resources when undergoing training.

Mr Mongameli Kweta, Senior State Law Adviser, Office of the State Law Adviser, commented on the constitutionality of defining the composition of the Military Command in the Defence Amendment Bill.  He pointed out that Section 202 of the Constitution did not define the membership of the Military Command.  The provisions of the Bill assisted the Minister in carrying out her duties and would only be in conflict if the legislation differed from the provisions in the Constitution.  In this respect, the situation was similar to the Labour Relations Act and the Constitution.  In his opinion, there was no danger for a violation of the Constitution as the Bill merely complemented the constitutional provisions.

The Chairperson commented that the proposed legislation therefore reflected standard practice in dealing with similar situations.

Mr Ntuthuzelo Vanara, Parliamentary Legal Adviser, Legal Services Office, Parliament, responded to the question on whether or not it was proper to clarify the composition of the Military Command in the Constitution or in legislation.  He agreed with Mr Kweta that similar definitions were included in legislation but in such cases, the Constitution provided a specific mandate.  In the case of the Military Command, the Constitution did not provide for a mandate.  He felt that the Committee had raised a valid concern and requested time to consider the issue.

The Chairperson was unsure whether a constitutional mandate was required for the Committee to pass the relevant legislation.  The Committee dealt with the legislation in terms of the broader constitutional provision that legislation was passed by Parliament.  He requested clarity on the matter as it was important that the Members of the Committee had a clear understanding of the issue.

Mr A Mlangeni (ANC) disagreed that it was necessary to obtain further clarity as the proposed amendment was not inconsistent with the Constitution.

The Chairperson consulted the relevant section of the Constitution setting out the role and powers of the legislative authority.  He concluded that the Committee derived the mandate to pass legislation from the Constitution and wondered what the problem was.

Mr Vanara would not commit himself to an opinion until he had an opportunity to apply his mind.

Mr Maynier said that there were two issues that needed to be taken into consideration, i.e. the constitutionality of the proposed amendment and the composition of the Military Command.  He suggested that Mr Vanara provided a legal opinion on the issue of constitutionality so that a possible constitutional challenge could be avoided.  He noted that the members of the Military Command included the senior command as well as other three-star generals.  He thought that the matter had not been properly thought out.  He wondered what would happen if the structure of the Defence Force changed after the White Paper on Defence was finalised.  The Constitution enshrined the principle of civilian oversight over the Defence Force and provided for the elected President to appoint the Military Command.  He felt that the composition of the Military Command should be limited to the Chiefs specified in the Defence Act.

Mr Groenewald referred to Chapter 11 of the Constitution, which referred to the composition of the security services that included Defence (Section 200), the Police (Section 205) and Intelligence (Section 209).  In the case of the Police and Intelligence services, provision was made for legislation to regulate appointments but no similar provision was made for the Defence services.

The Chairperson referred to Section 44 (2) of the Constitution, which dealt with the role of Parliament in passing legislation concerning the national security.

Mr Vanara explained the role of the National Council of Provinces (NCOP) and the National Assembly in terms of Section 44 and the procedures that had to be followed by both Houses.  He said that the issue was the correct procedure that had to be followed rather than whether or not legislation was passed.  It was within the jurisdiction of the Committee to amend the Defence Act.  The Constitution made provision for the appointment of the Military Command and the question was whether or not the Committee could pass legislation that affected the Constitution.

Mr Groenewald referred to the proposal that the Military Command was appointed by the President in consultation with the Minister.  The Committee had rejected the proposal on the advice of the State Law Adviser that the provision effectively changed the Constitution.  He asked if the Committee had the authority to pass legislation that defined the composition of the Military Command.  He wondered why the issue had not been dealt with during the preceding 16 years.  He reiterated his disagreement with the proposed composition of the Military Command.  He referred to Section 199 (4) of the Constitution, which dealt with the Security services and asked if the same argument was applicable.

After some debate on what constituted the security services, the Chairperson suggested that all the relevant provisions in the Constitution were taken into account to clarify the matter.

Mr A Maziya (ANC) and Mr Groenewald suggested that Mr Vanara was allowed the time to consider the matter.

Mr Mlangeni reiterated that the Constitution was not being changed.  The Constitution allowed for the Military Command to be appointed by the President but did not specify the membership.  Parliament had to power to pass legislation that included provisions specifying the membership of the Military Command.

The Chairperson remarked that the people were represented in the National Assembly, which was tasked with passing the necessary legislation.  The Constitution was vague on many points, which was subsequently clarified during the implementation process.  He referred to the legal opinion document submitted by the Parliamentary Legal Adviser (see attached document).  Paragraph 41 reflected the opinion that the proposed amendment to Section 55 of the Defence Act might expose the Act to constitutional challenges and that the provisions could be inconsistent with the Constitution.

Mr L Mphahlele (PAC) and Mr Maynier supported the suggestion that the Parliamentary Legal Adviser was allowed time to consider his opinion further.

Mr Maynier noted that the document containing the proposed amendments (the “A-list”) to the Bill excluded the concerns raised by the Committee on Section 62H that dealt with the omission of matters deemed detrimental to national security from the reports of the National Defence Force Service Commission (NDFSC).

Mr Siviwe Njikela, Director: Legal Advice, Department of Defence and Military Veterans, asked for time to confer with his principal on the issues that were raised by the Committee.

The Chairperson said that the issues under discussion had been debated for some time.  He asked the legal representatives to assess whether any new matters had arisen and agreed to a short break in the proceedings.

When the meeting resumed, Mr Njikela said that there were two issues that had to be considered, i.e. the definition of the membership of the Military Command and the process to appoint the members.  The Committee had already rejected the proposal that the appointments were done in consultation with the Minister as unconstitutional.  Although the Constitution allowed for the appointment of the Military Command by the President, the membership of the structure was not defined.  The Constitution required Parliament to pass legislation.  The structure of the Defence Force was defined in the Defence Act.  There was a similarity to the situation concerning the civilian secretariat, which was dealt with in the Defence Act.  There was a risk that the definition concerning the Military Command could be either too restricted or too broad but he was of the opinion that there would not be a problem.

Mr Kweta was of the opinion that it would be in order if the membership of the Military Command was defined in the Bill.

Mr Vanara agreed with the opinion of Messrs Kweta and Njikela.  He said that Section 199 (4) of the Constitution allowed for the Committee to pass the amendment, which would amplify what was meant by the Constitution.

Mr Groenewald accepted the opinions expressed by the legal advisers.

Discussion on the Legal Opinion prepared by the Parliamentary Legal Adviser
The Chairperson asked for comment on the legal opinion document issued by the Parliamentary Legal Adviser.

Mr Vanara explained the structure of the legal opinion, which covered the current bargaining regime (paragraphs 6 to 19) and the proposed amendments to Section 55 of the Act.  Paragraphs 20 to 27 dealt with Clause 4 of the Bill and the implications for the Military Bargaining Council (MBC).  He was of the opinion that if the Bill was passed, the decisions taken in the MBC would no longer be binding and that there would be no prevention of interference by the Minister in matters decided by the MBC.  The proposed amendment could be considered to be unfair labour practice.  Paragraphs 28 to 32 dealt with the amendments to Section 55 (2) of the Act.  He suggested that the Committee took into account the affect of the Bill on the Military Bargaining Council (MAB) even though the Bill did not propose amendments specifically related to the MAB.  Paragraphs 33 to 41 dealt with the implications for the military labour unions.  The Bill made provision for the Minister to make unilateral decisions on the benefits of members of the Defence Force and she was not obliged to consult with the unions.  In his opinion, the proposed amendments to Section 55 (3) of the Act could be challenged in the Constitutional Court.  He suggested that Section 55 (3) was not amended and that the Bill made provision for the Minister to consult with the military unions.

Mr Philip Dhlamini, Director: Labour Relations, Department of Defence and Military Veterans, explained that the proposed amendment was intended to close the gap currently in existence in cases where the MBC and MAB were unable to deal with matters.  The provisions allowed the Minister to decide on benefits, in the interest of the SANDF.  The military unions had failed to meet the minimum membership criteria and were not represented on the MBC.

Mr Mlangeni was reluctant to devote more time in discussions on the position of the unions as the matter had been extensively debated.

Ms Kubushi explained that the amendment to Section 55 (3) was necessary to cover the event that the provisions in Sections 55 (1) and (2) had failed to deliver a result.  It was a perception that the Minister would act in a unilateral measure but she would only act in terms of Section 55 (3) if the processes under (1) and (2) had failed.  The Minister could not be held responsible for the failure of the unions to achieve the required membership levels and were excluded from the MBC.  The MAB operated when a dispute was declared in the MBC.  The MAB advised the Minister on the resolution of the dispute but did not make the final decision.  She quoted paragraph 18 of the opinion document.

Mr Vanara pointed out that the issue was that the MBC was not functional and asked what the problem was that needed to be resolved.  He understood that the MBC was not working because the unions were not represented as they had failed to meet the membership threshold criteria.  The current situation was not desirable and he wondered what the Committee could to to resolve the issue.

Mr Njikela advised that the amendments to Section 55 (3) made provision for the Minister to determine service conditions on advice from the NDFSC.  The process of consultation with the Commission was defined and the impression that the Minister would be acting in a unilateral manner was not correct.  The issues concerning Chapter XX of the regulations were not before the Committee.  If the recommendations of the MAB on benefits had financial implications, the Board could only advise the Minister.  The limitations in terms of Chapter XX were not in the Bill.

The Chairperson observed that the military unions appeared to be deeply divided on ideological principles.  The Committee had urged the unions to present a united front but the unions had not agreed to consider amalgamation.  He doubted that the unions would manage to achieve the membership threshold requirements.  Legally, the Committee cannot instruct the Minister to deal with the issue of the military unions and the matter had been under debate for some time.

Mr Groenewald remarked that the amendments to Section 55 of the Act were important as the unions had indicated that the proposed provisions would be challenged in the Constitutional Court.  The Committee had agreed that Sections 55 (1) and (2) would not be amended.  He agreed that the proposed Section 55 (3) allowed the Minister “another bite at the cherry” and could be challenged.

Mr Maynier urged the Committee to retain the main focus of the Bill, which was to provide for the establishment of the NDFSC.  The matter was urgent.  He suggested that Section 55 of the Act remained unchanged and that the Department developed changes to the legislation to deal with the unions at a later stage.  He wondered how decisions were made on service benefits if the MBC was currently dysfunctional.  He suggested that the amendments were limited to the NDFSC and that the Department dealt with the unions.

Mr Maziya remarked that the Minister was ultimately responsible for the service conditions in the Defence Force in any event.  The amendment to Section 55 (3) would allow her to intervene if the processes under sub-sections (1) and (2) had failed.

The Chairperson remarked that the Members were expressing their original points of view and that there did not appear to be any new issues being raised.

Mr L Tolo (COPE) was extremely concerned by the affiliation of certain military unions to the Congress of South African Trades Unions (COSATU).  COSATU had strong political affiliations and he was very worried over the military unions’ association with a political institution.  There was a risk of divided political loyalties, as experienced in SAPS and Correctional Services.  These institutions were not politically neutral, which was a matter for concern.  He recalled that the South African National Defence Union (SANDU) had indicated during the public hearings that the union would challenge the Bill in the Constitutional Court, if it was passed into law.

The Chairperson said that the legislation provided for the powers afforded to the Minister.  The Committee had to ensure that the Minister could meet her responsibilities.  He asked the Department to explain why the proposed Section 62 H (3) was not included in the A-list.  The matter had to be resolved before the Committee could proceed with the Bill.

Mr Maynier said that the opinion of the Parliamentary Law Adviser that the Bill could be challenged in the Constitutional Court was a serious matter that could not be ignored by the Committee.

The Chairperson replied that the matter had been extensively debated and it was clear that the Members had not altered their positions on the amendments to Section 55.  The Committee decided to retain the provisions under sub-sections (1) and (2) unchanged and to insert the proposed sub-section (3).  The amendments to the Bill would be subjected to scrutiny by the legal advisers.

Mr Njikela explained that the provisions under Section 62 H (3) were intended to protect certain information that could be detrimental to national security from public disclosure.  The issue was the protection of the information rather than the threat to national security.  The problem was that “national security” had not yet been defined.  The responsibility for the definition was with the security cluster, rather than the Defence Act and it would be inappropriate for the Department to interfere in the matter.  The White Paper on Intelligence and the Protection of Information Bill were the subject of much controversy and public debate.  He quoted the lengthy and rather broad definition contained in the White Paper.  He suggested that the phrase “the defence of the Republic” could replace “national security” in the clause.

Mr Maynier said that the issue was not the definition of national security but rather about what would be excluded from the reports of the NDFSC.  He felt that there needed to be clear guidelines on what should be omitted from the reports.  Section 41 of the Promotion of Access to Information Act (PAIA) included detailed provisions on what was considered to be items of national security and he suggested that similar provisions were included in the Bill.  At the request of the Chairperson, he read out the relevant section in PAIA to the Committee.

The Chairperson agreed that the provisions in PAIA were extensive but doubted if it was appropriate to repeat the provisions in the Defence Act.  He agreed that “national security” had to be defined by the security cluster but the proposed provision was a problem for the Committee.

Mr Groenewald disagreed with the suggestion made by Mr Njikela.  He felt that the phrasing of the clause was acceptable.  He remarked that it might be necessary to have a ruling in a court case to determine what the definition of national security should be.

Mr Maynier was concerned that the clause would be used to withhold information.  If the provisions as in PAIA were not acceptable, then the clause in the Bill needed to be tightened.

The Chairperson said that the matter should be dealt with on the basis of law rather than suspicion of individuals.  There should be an element of trust.

Mr Groenewald said that it was unacceptable to base legislation on trust.  If the proposed provision was challenged, the implications would extend beyond the area of responsibility of the Committee.

The Chairperson suggested that the proposed clause remained unaltered.

Mr Maynier wished to propose an alternative clause but the Chairperson felt that adequate opportunity for debate had been allowed.

Mr Groenewald called a point of order.  If Mr Maynier wished to propose an amendment, he should be allowed to do so and have his proposal placed on record.

The Chairperson said that a proposal placed before the Committee would not necessarily be debated.

Mr Maziya supported the Chairperson and noted that ample opportunity to propose alternatives had been afforded.

After some debate, the Chairperson asked Mr Maynier to submit a written proposal to the Committee. 

Approval of amendments to the Defence Amendment Bill
The Chairperson asked when the Committee could expect to receive the version of the Bill that incorporated the amendments agreed to by the Committee.  Further discussion ensued on whether or not the Committee could vote on the amendments included in the A-list in the interests of saving time.

Mr Vanara cautioned against voting on the A-list before a new version of the Bill was available.  There would be a problem if the subsequent version of the Bill contained anything that the Committee had not agreed to.  He explained the process that had to be followed to pass the Bill in both the National Assembly and the NCOP.

After ascertaining that the updated version would be available later in the day, the Chairperson advised that the meeting would reconvene at a later time in order to agree on the amendments to the Bill.

After clarifying the procedure that had to be followed by the Committee, the Chairperson took the Committee through the amendments to the clauses of the Bill (see attached documents).

The amendments to clause 1 were agreed to by the Committee.

The new clause to insert section 4A into the Defence Act and to amend Section 13 of the Act was approved by the Committee.  The clause dealt with the composition and appointment of the Military Command and would follow clause 1 of the Bill.  The objections of the Freedom Front Plus and the Democratic Alliance were noted.

Clause 2 was rejected by the Committee and deleted from the Bill.

The amendment to clause 3 was agreed by the Committee.

Clause 4 was rejected by the Committee and replaced by a new clause.  The amended clause 4 was approved by the Committee.  The objection of the Democratic Alliance was noted.

The amendment to clause 5 was approved by the Committee.  The objection of the Democratic Alliance was noted.

Clause 6 was rejected by the Committee and deleted from the Bill.

The amendment to clause 7 was approved by the Committee.

The amendment to the long title of the Bill was approved by the Committee.

The Committee adopted the Defence Amendment Bill, with amendments.  The objections of the Freedom Front Plus and the Democratic Alliance were placed on record.  The Committee was advised that a motion of desirability was no longer required in accordance with Parliamentary procedure.

Mr Groenewald accepted that the Parliamentary procedures had been changed but challenged the motivation offered to the Committee that motions of desirability were outdated and served no purpose.  The Chairperson undertook to investigate why the Committee was not informed of the changed procedure.

Briefing on the Annual Reports of the Department of Defence and Military Veterans, the Castle of Good Hope and ARMSCOR
The Chairperson advised that the briefing on the annual reports of the Department, the Castle and ARMSCOR was scheduled for 13 October 2010.  However, the Department had requested a postponement of the briefing as the Minister had not yet had an opportunity to study the annual reports.  The Committee was instructed by the Speaker to consider the annual reports and was not in a position to consider the Department’s request for a postponement.  The reports have been tabled in Parliament and were before the Committee.

Members of the Committee were unsympathetic to the Department’s request.  The briefing had been scheduled for some time and the Members felt that the Department and Ministry should have been prepared.  Mr Maziya suggested that the Department submitted a formal, written motivation to the Speaker to support the request to postpone the briefing.  Mr Mlangeni felt that the matter should be brought to the attention of the Speaker.  The other Members were however adamant that the briefing scheduled for 13 October 2010 should be proceeded with and expressed their dissatisfaction with the lack of consideration for the Committee displayed by the Department.  Mr Maynier pointed out that the Secretary for Defence had called a press conference on the annual reports.

The Chairperson advised that the Minister had to approach the Speaker to resolve the matter and that it was inappropriate for the Committee to intervene.

The Office of the Minister pointed out that a previous request to coordinate the schedules of the Committee and the Ministry had not materialised.  As a result, the Department and the Ministry were subjected to short notice to appear before the Committee and did not have sufficient time to prepare for briefings.

Members of the Committee felt that the lack of a coordinated schedule was not at issue. The annual reports had been tabled in Parliament and it was not acceptable that the Minister had not yet seen the reports.  Mr Maynier proposed that the matter of a coordinated schedule between the Committee and the Ministry was considered as both parties would be better prepared to the benefit of all concerned.

The Chairperson insisted that the briefing scheduled for 13 October 2010 at 14:00 was proceeded with.

The meeting was adjourned.