The Joint Standing Committee on Defence met for a strategic session to discuss its mandate, powers and function. It derived its existence, power and functions from the Interim Constitution of 1993. The White Paper on Defence, adopted by Parliament in 1996, mentioned the Committee. The Committee has powers of investigation and recommendation. It was retained as one of the transitional arrangements and was no longer part of the main body of the final Constitution. A constitutional amendment was not necessary to change this transitional arrangement all that was needed was a 75% majority vote. There was no legislation that provided for the Committee to hold closed meetings. However, despite the Committee not ordinarily dealing with confidential information, just like any other parliamentary committee it could hold a particular meeting as a closed session. The Committee is the largest Committee in Parliament and this lies at the heart of its practical functionality. The Committee had to have 37 Members present for a quorum - it could not have less than that. There was a huge overlap in the functions of the Committee and those of the Select and Portfolio Defence Committees.
The functions of the Committee included investigating and making recommendations on the South African National Defence Force budget, functioning, organization, armaments, policy, morale and state of preparedness.
The Committee spent most of the discussion on the issue of holding closed meetings. There was unanimous agreement that there were no specific rules or legislation that provided for the Committee to hold closed meetings. However there were differences of opinion on how the Committee could go about deciding that a meeting should be closed. There was the opinion that the Department of Defence had to provide evidence justifying to the Committee why a meeting would have to be closed, a further requirement was that the only justification would be if an open meeting would compromise military operations or the lives of military personnel. There was a request from a Committee Member for the immediate circulation of the National Conventional Arms Control Convention quarterly reports. Looking at the way forward, the Committee was told that the chief whips of the National Assembly and National Council of Provinces were looking at the challenge of the requirement for a 37 Member quorum for this Committee and there would be proposals.
Presentation: Role and Mandate of the Joint Standing Committee on Defence
The Committee is the largest Committee in Parliament and this lies at the heart of its problematic practical functionality. All parties in the National Assembly (NA) that have more than ten Members were entitled to membership. The Committee had to have 37 Members for a quorum - it could not have less than that. This made it hard for the Committee to function, as its Members were also part of other parliamentary committees. The functions of the Committee include investigating and making recommendations on the South African National Defence Force (SANDF) budget, functioning, organization, armaments, policy, morale and state of preparedness. In terms of the National Conventional Arms Control Convention Act (NCACC), Parliament had to consider quarterly and annual reports submitted by the NCACC. The Committee had to report to both Houses on any matter referred to it. There was a huge overlap in the functions of the Committee and those of the Select and Portfolio Committees.
Draft Discussion Paper: Defence Joint Standing & Portfolio Committees Proposed Mandates
Ms Nel explained that this was a working document and “no political input” had been solicited in this Draft Discussion Paper. The suggestion in the document was that the functions of the parliamentary committees on defence had to be broken down. The Joint Standing Committee on Defence could possibly conduct a strategic overview of the SANDF with reference to transformation, integration and equity etc. Part of the Committee’s function could be to liaise and report on civil-military relations. The Committee could exercise oversight over veterans and make recommendations.
The Portfolio Committee on Defence could have the following functions: it could exercise oversight over the Department of Defence; process all defence related legislation; exercise oversight over the budget, strategic plan and annual report.
Ms Sue Rabkin, Special Advisor to the Minister on Defence, asked what was the intent behind setting up a Joint Standing Committee on Defence.
Ms Nel replied that the Interim Constitution was drawn up during the Convention for a Democratic South Africa (CODESA) Talks and it was difficult to obtain records. The negotiators of CODESA wanted public scrutiny and oversight of the army hence the Joint Standing Committee of Defence. Things had evolved since then and there was not really a need for the continued existence of the Joint Standing Committee on Defence. However this was a political decision.
Mr D Maynier (DA) commented that there was some merit in considering the oversight mechanism of the Committee. A division of powers amongst the committees that oversee the defence force would certainly limit the powers of the Portfolio Committee on Defence. The reason would be that if the Minister of Defence were to colonize the Committee than it would not be ideal for its functions to be warehoused in the Joint Standing Committee on Defence. The Portfolio Committee on Defence had wide powers and functions and could look into any matter. Could it be confirmed by the presenter that there was nothing in the rules or legislation that required the Joint Standing Committee on Defence to hold meetings behind closed doors? The quarterly reports of the NCACC had been lodged with the Joint Standing Committee on Defence and they should be made available to all Members with immediate effect. The non-circulation of these reports to Members was a huge indictment on Parliament.
Mr J Lorimer (DA) commented that during the CODESA Talks, seven different defence forces were being integrated in
The Chairperson added that it became pertinent to figure out how integration and monitoring would be achieved within the South African National Defence Force (SANDF).
Mr B Radebe (ACDP) commented that he found it problematic that the Interim Constitution still bound the Committee. After 16 years of democracy, the Committee must be able to move forward and could not keep referring to the interim period. The state of preparedness of the defence force could not be discussed in an open meeting. The information of the NCACC reports could not be made public.
Mr A Maziya (ANC) said that the purpose of the workshop was not to question whether the Joint Standing Committee on Defence should continue to exist or not, it should only be about its powers and functions. The debate on the continued existence of the Committee would not take it forward and would not empower the Members.
Mr Maake (Co-Chairperson) agreed with Mr Maziya. It was important to assimilate all the requirements under the Interim Constitution to make the Committee function.
Ms Nel responded on the matter of closed meetings, saying that there was nothing in the Joint Rules that specifically required the Committee to hold closed sessions. Like all other parliamentary committees, if there was confidential information that the Committee was dealing with, it could close a meeting. Some of the circumstances under which a Committee could close a meeting was if a matter under discussion would be prejudicial to a particular individual if disclosed, or if a matter fell under parliamentary privilege or if a matter was confidential in terms of legislation. In a matter involving the potential prejudice of an individual, a Committee may close the meeting if it would be justifiable in an open and democratic society. Before a Committee decided to close a meeting, it would have to apply its mind to the issue at hand. The NCACC documents requested for circulation by Mr Maynier could not be circulated because they had not been tabled before Parliament since the start of the Fourth Parliament. The NCACC Act specified the way in which the quarterly reports should be tabled in Parliament.
Mr Maake (Co-Chairperson) asked if a Member of a Committee would be allowed to publicly divulge information from a closed meeting.
Ms Nel replied that there could be a complaint laid against that Member under parliamentary privilege and such a Member would also be in contempt of Parliament.
Mr Maziya said that a Committee had to apply for the right to have a closed meeting; it could not just close a meeting.
Mr Montsitsi said that if Members wanted to acquaint themselves with the Committee, they should read the Interim Constitution, White Paper, Defence Review and the final Constitution. The issue of open or closed meetings would only arise once or twice, meetings in Parliament were about access and as far as possible, they should be kept open.
Ms Nel said that she was not advocating for doing away with the Joint Standing Committee on Defence. This would be a political decision.
Mr Maynier thanked the Chairperson for his re-assurance that meetings would be as far as possible, kept open. A decision to close a meeting by a parliamentary committee would have to be justified on the basis of evidence. The Department of Defence would have to provide motivation with evidence as to why a meeting should be closed. The only compelling reasons that a meeting should be closed would be if an existing operation would be compromised or the life of a member of the defence force would be at risk if a meeting were held in open session. A series of open hearings should be held on the Interim National Defence Force Service Commission’s Report as soon as possible. This would provide insight into the state of the defence force.
Mr Radebe said that the suggestion that the Committee should go through the NCACC report in such a manner that it would be available to the public, was worrying.
Ms Rabkin commented that there was a Defence Portfolio Committee meeting in 2010 where members of the Department made detailed presentations on the state of the country’s borders. If one was a drug smuggler, human trafficker or arms smuggler, then the information provided at that meeting would have been useful. The fact that the Committee then went to the borders to verify the information provided in the presentations with a press contingent posed a real danger. It was such instances that were a concern for the Department where open or closed meetings were an issue. It was a question of what should be revealed when operations were being conducted and not whether information was being hidden. The need for accountability was important.
Mr Peter Daniels, Committee Researcher, said that the document provided by himself looked at the issues of confidentiality, closed meetings, the functions of the Portfolio Committee on Defence amongst others. There was nothing that specified that investigations remained in the remit of the Portfolio Committee on Defence only. The Joint Standing Committee on Defence was independent and autonomous. There should be cooperation between the two Committees and not the one dictating to the other. The Interim Constitution was still in application and there should not be any clashes if its provisions were interpreted broadly.
Mr Maynier responded to the earlier comment made by Ms Rabkin and said that she was incorrect in her assessment of the presentation by the Department of Defence on the state of the national borders. The briefing included the number of companies patrolling the borders. Nothing in the briefing compromised an operation or the life of a defence force member.
Mr Maake (Co-Chairperson) raised a point of order stating that the meeting was not about the briefing, Ms Rabkin was making an example.
Mr Maynier retorted that he was pointing out that it was a bad example.
Mr Maake (Co-Chairperson) asked for input on the way forward.
Mr Thabiso commented that one of the challenges facing the Committee was that there had to be 37 Members for there to be a quorum. This had to be addressed.
Mr Montsitsi (Co-Chairperson) replied that the chief whips of the National Assembly and National Council of Provinces were addressing the matter and there would be proposals.
Mr Maake (Co-Chairperson) commented that the way Mr Maynier was behaving was as if he was performing oversight over the Committee and not the Department and related issues.
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