Visit from Namibian Delegation; Defence Amendment Bill [B11B – 2010]: Department of Defence and Military Veterans briefing

NCOP Security and Justice

02 November 2010
Chairperson: Mr T Mofokeng (ANC, Free State)
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Meeting Summary

A delegation from the National Council, the upper house of the Parliament of the Republic of Namibia, asked questions and exchanged ideas on the security forces, the mobilisation of police, accommodation for soldiers and police personnel, unions in the security services, and how the Select Committee consulted its constituency on bills and other matters.

The legal branch of the South African National Defence Force briefed the Committee on the Defence Amendment Bill [B11 – 2010]. Currently members of the reserve force had a contract with the Defence Force stating during which part of the year they were available for service. Service was always voluntary and the Defence Force had no legal basis on which to call up a member of the reserve force. They could be commandeered only in a time of war.

The Defence Bill sought to change the Defence Act, so that the Defence Force could call up members of the reserve force when the Defence Force needed them, for example during natural disasters like floods and earthquakes to search and rescue work, to quell riots, xenophobic attacks, or to do border patrols.

Secondly it dealt with the establishment of a Defence Force Service Commission. To date the conditions of service of members of the South African National Defence Force were determined by the Department of Public Service and Administration or negotiated in the Public Service Co-ordinating Bargaining Council.

This arrangement over years had proven to be inadequate as it applied to the military, because it did not take into account that the military service was unique. To address this vacuum, the Ministry of Defence and Military Veterans had appointed an Interim National Defence Force Service Commission to advise and make recommendations for a unique service dispensation, outside the ambit of the Public Service, for general service conditions in the military. It also advised on the regulatory framework for a unique service dispensation and investigated and advised on remuneration and conditions of service.

The Bill proposed the establishment of an independent Defence Force Service Commission to advise the Minister on general conditions of service.  The Bill empowered the Minister to appoint Commissioners to serve in the Defence Force Service Commission and to designate the Chairperson and the Deputy Chairperson. The method of appointment of the commissioners was also prescribed and the Minister could intervene if the Commission failed to perform its functions.

Thirdly, the Bill dealt with the Military Command. Section 202(1) of the Constitution stated that the President had to appoint the Military Command of the Defence Force. The Constitution did not stipulate who that “Military Command” had to be or what its composition had to be, neither did the Defence Act.

The Bill proposed that a new provision had to be inserted to describe the composition of the Military Command and how it had to be appointed. The Command as proposed had to include the Chief of the South African National Defence Force, the Chiefs of Services, in other words, the Chiefs of the Army, Navy, and Air Force and the Medical arm, the Chief of Joint Operations, the Chief of Intelligence, the chief of Human Resources and the Chief of Logistics. The criterion used to get to this composition was the command responsibility that each officer had in terms of commanding forces on the ground.

The inclusion of a provision on Military Command would create clarity regarding the people, the functions, the chain of command and the powers defining it. This provision would also clearly stipulate which appointments had to be done by the President and which by the Minister and the criteria for each appointment.

Members asked whether obliging reserve force members to serve did not infringe on their constitutional rights, or contravene any labour laws. An African National Congress Member was concerned that a large reserve force could form a rogue army and become an internal security threat to the country. Members wanted to know the exact conditions under which the reserve force would be deployed as well as the limitations of that deployment. Members were also concerned about whether reserve force members enjoyed the same protection as permanent force members in the event of injury or death on duty.


Meeting report

Namibian delegation
A delegation from the National Council, the upper house of the Parliament of the Republic of Namibia, visited the Committee. The delegation consisted of the Hon. Jhonny Haikella Hakaye, the Hon. Henok Tangeni Kankoshi, the Hon. Aram Martin, the Hon. Barakias Namwandi, the Hon. Bernard Songa Sibalatani, the Hon. Bartholomeus Shangheta, as well as Ms Mara Eva Bessinger and Ms Amalia Ndeyavulwa Lita, clerks to the delegation.

The Chairperson explained the role and mandate of the Select Committee and asked Members to share their views and insights.

The delegation asked questions and made comments about the pros and cons of unions in the security  services, how to mobilise the military or police within a short space of time, how the police and military were accommodated, and how the Select Committee interacted with society to get its input on matters that affected it.

Members responded by explaining the history of the South African National Defence Force (SANDF) and how it came about. They shared how the Select Committee functioned, what it did to consult with communities, and how the South African Police Service (SAPS) was integrated in South African society and communities to avoid an us-versus-them situation.

The Committee thanked the delegation and indicated that at some point in the future it would wish to visit Namibia.

The Hon. Hakaye said that whatever affected South Africa affected Namibia as well, and by exchanging and communicating both would be better off. He thanked South Africa for successfully hosting the 2010 FIFA Soccer World Cup Tournament and providing top quality security. South Africa did not only raise the flag, it proved that Africa could provide leadership.

Defence Amendment Bill[ B11B-2010]. Department of Defence briefing
Mr Siviwe Njikela, Director: Legal Services, Department of Defence (DoD) said that the briefing would deal with three aspects of the Bill.

Firstly the Bill dealt with the creation of an obligation to serve for members of the reserve force. Secondly, it dealt with the establishment of the Defence Force Service Commission, and thirdly it attempted to define what was meant by military command.

Currently reserve force members served only on a volunteer basis, and they rendered service in terms of a contract, which would normally stipulate the period that the person was available to serve within a given year. The members of the reserve force currently had no obligation to report for training, exercise or any deployment for peace-keeping purposes. They could be compelled to serve only in a time of war, state of emergency, or state of national defence. This made it extremely difficult for defence planners to plan and to allocate resources as the availability of the reserve force members was not guaranteed

The current analysis of the Defence Act as it stood, was such that there was no legal leverage to compel a member of the reserve force to report for service. He could not be called up for border patrol or for rendering support to other departments. There was no legal basis on which to compel him.

It was felt that the matter of service to the South African National Defence Force (SANDF) was too important to leave to the whims of an individual, but had to be decided by legislation. This approach would eliminate any contractual disputes at a later stage. The individual served when it suited him, not when it suited the Department.

It was the view of the DoD that reserve force members had to be obliged to serve during peace time where life, health or property was in imminent danger, to ensure the provision of essential services, to support any department of state, including support for socio economic upliftment, and for national border control.

Against the background of an ever shrinking defence budget, it became crucial to have a reserve force which could be maintained at a cheaper rate than a full time force. It would constitute an offence for a reserve force member to not respond to a call up. This did not detract from the right that members of the SANDF had in terms of Section 66 of the Defence Act which stated that a soldier had the right to apply to the Exemption Board for exemption or deferment of his service, if his personal circumstances prevented him from serving at that particular time.

To date the conditions of service of members of the SANDF had been determined by the Department of Public Service and Administration (DPSA) or negotiated in the Public Service Co-ordinating Bargaining Council (PSCBC).

This arrangement over the years had proven to be inadequate as it applied to the military, because it did not take into account the uniqueness of the military service. During August 2009 there was an unruly march in Pretoria. The Ministry of Defence and Military Veterans had appointed an Interim National Defence Force Service Commission (INDFSC) to address the issues building up to the crisis to advise and make recommendations for a unique service dispensation outside the ambit of the Public Service for general service conditions in the military. It also advised on the regulatory framework for unique service dispensation, and investigated and advised on remuneration and conditions of service. During that process the need emerged for a standing commission. The INDFSC would serve until the Bill has become law at which stage the Defence Force Service commission (DFSC) would be established to take over.

The Bill proposed the establishment of an independent DFSC to advise the Minister on general conditions of service. The Bill empowered the Minister to appoint Commissioners to serve in the DFSC and to designate the Chairperson and the Deputy Chairperson.

The method of appointment of the commissioners was prescribed. The nomination process proposed was that the Minister had to put advertisements in two newspapers and in the Government Gazette to invite nominations. The minister would then appoint a Nomination Committee which would screen applications and nominations, after which this committee would make recommendations to the Minister for the appointment of the Commissioners. This method would give the process independence from the Department itself.

The Bill also provided for interventions by the Minister in a situation where the Commission failed to perform its function adequately. The DFSC had to get an opportunity to explain itself, before the Minister could make a decision. If the Minister was not satisfied by the explanation, she or he could appoint an administrator, who would then take over the duties of the DFSC or replace it, but it could only be done with the approval of Cabinet.

Section 202(1) of the Constitution stated that the President had to appoint the Military Command of the Defence Force. The Constitution did not stipulate who that “Military Command” had to be or what its composition had to be, neither did the Defence Act.

The Bill proposed that a new provision had to be inserted to describe the composition of the Military Command and how it had to be appointed. The Command as proposed had to include the Chief of the SANDF, the Chiefs of Services in other words the Army, Navy, and Air Force and the Medical Arm, the Chief of Joint Operations, the Chief of Intelligence, the Chief of Human Resources and the Chief of Logistics. The criteria used to determine this composition was the command responsibility that each officer had in terms of commanding forces on the ground.

In conclusion the imposition of the obligation to serve did not negate the principle of voluntarism in the SANDF. Nobody was obliged to join and there was no conscription, but once a person had joined, he was obliged to serve when he was needed, and not when he chose to do so.

The proposed amendment would not discourage people from joining the reserve force and would not be disruptive to the functioning of civil society.

The establishment of the DFSC would enhance the relationship between the SANDF and its members, facilitate timely interventions in to diffuse work related tensions and create labour peace. The impact of the INDFSC could already be felt as the morale in the SANDF had improved since its inception.

The inclusion of a provision on Military Command would create clarity regarding the people, the functions, the chain of command and the powers defining it. This provision would also clearly stipulate which appointments had to be made by the President and which by the Minister and the criterion for each appointment.


Discussion
Mr J Gunda (ID, Northern Cape) asked the Department to explain the shrinkage of the budget and the assertion that the reserve force provided a cheaper alternative to a large permanent force.

Mr Thabiso Ratsomo, Head of Ministerial Services, Ministry of Defence, said that reserve force members were not on call full-time. They were paid only when they worked, and thus were a cheaper alternative to a permanent force which had to be paid as full time employees. It was not implying cheap labour.

When referring to the shrinking budget, the Department meant that the budget did increase year by year, but it was not enough to cover everything the SANDF had to do to execute its mandate. Not having to pay salaries saved money to be applied elsewhere.

Mr A Matila (ANC, Gauteng) asked whether this proposal was not going to put the country at risk. With a shrinking military budget and more temporary than permanent staff, would it not be risking the security of the state? How fit and fight-ready was the reserve force?

With soldiers that did not train regularly and receive regular calls-up, would it not create rogue armies within the country?

The Chairperson asked how a person could be compelled to serve if he was not a permanent employee. Was this practice not in conflict with the labour law?
 
Mr L Nzimande (ANC, KwaZulu-Natal) asked for details. It had to be asked exactly when reserve force members would be called-up: when property was at risk; to guard the borders; to quell service delivery protests; or to provide security for events at the stadiums. Was this the only clause or would there be regulations spelling out the limitations of the call-up and the rights of the reserve force member?

Mr T Byleveldt (DA, DA Whip in the NCOP) said that every good defence force in the world had a reserve force. As an example he sited the American army in which more than 50% of its members were reservists. The responsibility that the Defence Force had towards its reserve force was training and maintenance. A reservist was always a volunteer. This country had a good tradition of reservists. The concept was sound. There were good models internationally. As an example, when doing the missions in Africa, reservists could be used to guard the units and as paramedical staff in the combat units. He did not see any threats to the internal security of the state.

Mr Dunga said that his only concern was the budget and the training of the reserve force members. He said that the people doing planning and budgeting for the Defence Force were not doing it justice. He said that the Bill was excellent on paper, but it needed money.  Mr Dunga, however, agreed that South Africa needed a reserve force. The world expected South Africa to lead Africa in terms of peace and stability.

Mr Matila asked what discipline there was in the force. His own knowledge of matters military was limited. Large reserve armies could be a security risk. In the post-apartheid period there were renegade military forces trying to push their agendas. The Boeremag was on trial in Pretoria currently – it was an example of such a force. Almost 80% of its members were former military people. He did not think the country was stable yet, and he did not want more internal threats to be created. He wanted the Defence Force to be aware of these threats.

Mr Byleveldt said that the time had arrived to believe in the military commanders. The time for the Afrikaner Weerstandsbeweging (AWB) had passed. The majority of white people in South Africa had pledged loyalty to the modern South Africa and they had helped to build up the post-apartheid nation. No reserve force member was sent home with weapons. They were mobilised, retrained, equipped, they went on their mission; they returned and they were demobilised and sent home. It was also better to have dissident elements within structures than outside.

Mr Ratsomo said that the defence review stated that the SANDF would consist of a ratio of 55% reservist:  45% regular soldiers. The current ratio was still far from that. Today the permanent force was 65 000. In 1994 it was 110 000. The DoD was in the process of recruiting new people as regular soldiers. The point was that the reserve force was part and parcel of how the SANDF was composed.

The reality was that there was shrinkage of the Defence budget, but it was a minor factor. The point was that a reserve force did offer an alternative method of still making sure that the manpower was available to the Defence Force, while spending less money.

The Defence Force operated according to a one force concept, although some members were permanent and some reserve. When they were on duty, there was no distinction. They committed themselves to a code of conduct. They had to pledge allegiance to the Constitution and uphold the law of the country. Reserve force members had been deployed alongside other soldiers in Burundi. They had served during the Public Service strike. It was a resource that allowed a country not to inflate the number of regular members, while it had access to a much larger pool of staff if and when needed.

The Bill would provide for reserve force members to be called in times other than war, like the Mozambican floods and natural disasters not provided for in the current Act. Reserves were part and parcel of the defence force, not an add-on.

Mr Njikela said that the DoD was not going on a recruitment drive. There was a reserve force in the SANDF. The question was only, to what degree the members were available in case of an emergency. If there was a flood, or xenophobic attacks, riot or a natural disaster, they still had no obligation to serve. If the SANDF was going to budget for and fund a reserve force, it had to be sure that force would be available when it was needed.

It was a trend internationally to have a small lean permanent force and a bigger reserve force. The reserve force was seen as a force multiplier. Constitutionally nobody would be forced to join, but once enlisted they had to be available to serve the nation. In terms of the Defence Act, if called up, it was possible to ask for exemption or deferment.

Mr Gunda was satisfied. He had gone to the military base in Upington regularly for oversight visits. He said that one must appreciate the men and women who were soldiers. He supported the Bill’s provision that obliged reserve force members to serve when they were needed. He asked whether reserve force members enjoyed the same protection, should they be hurt or killed while on duty, as regular soldiers.

Mr Matila said that it was a good Bill. It was important that its constitutionality be ensured. The researcher had to assist in making sure the Bill was constitutional.

Mr Njikela said that the constitutionality of the Bill would be certified by the Office of the State Law Advisor. He added that reserve force members enjoyed the same protection as permanent force members.

Mr Herman Smuts, Principal State Law Advisor confirmed that reserve force members enjoyed the same protection as permanent force members. He also confirmed that the Bill was constitutional.

The Chairperson thanked the delegation from the DoD.

The meeting was adjourned



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