The Committee heard submissions from the University of South Africa, College of Law, the South African Security Forces Union and Ms Lebo Monyatsi on the Military Veterans Bill [B9-2011].
The submission of the UNISA College of Law included a presentation on the establishment of a South African military ombudsman and specific comment on the provisions of the Military Ombudsman Bill. UNISA had undertaken a comparative analysis of military ombudsmen in Poland, Norway, Canada, Germany, Finland, the Netherlands, Ireland and the United Kingdom. The presentation outlined the general functioning of a military ombudsman; the rationale for establishing a South African military ombudsman; the requirement for military oversight; who were considered to be complainants; the types of complaints that would be referred to the ombudsman; the risks associated with the absence of a military ombudsman and a summary of the establishment, reporting structure and functions of military ombudsmen in other countries.
UNISA commented on specific provisions in the Bill concerning the definition of ‘complaint’; the limitation placed on complainants; the dispossession of the Public Protector in the Memorandum on the Objects of the Bill; the Object of Office; the term of office of the Military Ombudsman and Deputy Military Ombudsman; the qualification and experience of the Ombudsman and Deputy Ombudsman; the powers and functions of the Ombudsman; unreasonable or undue delay in exercising power; units deployed on international operations; limitations on the jurisdiction of the Ombudsman; the accountability of the Ombudsman and security clearance of the Ombudsman, Deputy Ombudsman and all personnel employed in the office of the Ombudsman.
Members asked questions about the legal test for independence; whether the Bill made adequate provision to ensure the independence of the military ombudsman; if adequate provision was made to ensure that recommendations were implemented; the provisions for the speedy resolution of complaints; how the issue of intimidation would be dealt with; the term of office of the ombudsman; the entity responsible for the establishment of the ombudsman; who the ombudsman should report to; the suggestion made that the President established an independent Parliamentary Committee that the ombudsman would be accountable to and who should be responsible for appointing the ombudsman.
The submission from the South African Security Forces Union focused on the resolution of labour issues within the South African National Defence Force. The Union suggested that consideration was given to the current military justice system, the military labour relations regime, issues concerning discrimination and victimisation, the application of administrative justice by the military and the access to information by soldiers and military trade unions.
The Union supported the establishment of a military ombudsman but felt that the entity would not be regarded as independent if it reported to the Minister. The powers and jurisdiction of the ombudsman should be extended to include labour matters and the legislation should compel the Minister and the Department of Defence to implement recommendations. The current grievance and mediation and arbitration mechanisms within the Defence Force had to become fully functional in order to limit the number of complaints referred to the military ombudsman.
Members clarified a reference in the submission to the Interim National Defence Force Service Commission and noted the suggestions and criticisms of the Union.
Ms Lebo Monyatsi made a submission in her capacity as a private citizen, although she had prior experience in serving as a military law officer in the South African Air Force. Her submission focused on the shortcomings in the Bill, with particular emphasis on the failure to provide for immunity from prosecution for the ombudsman and his personnel; the need to extend jurisdiction to extraterritorial areas where members of the SANDF were deployed; the wide interpretation of the definition of ‘complaint’; the exclusion of the power to undertake independent investigations; the power to make policy recommendations and the limitation on the investigation of complaints before another dispute resolution mechanism. She suggested that the experience and qualifications of the ombudsman were investigated further.
Members asked Ms Monyatsi for her opinion concerning the independence of the ombudsman and the proposed term of office. The Member from the Democratic Alliance suggested that the Committee obtained an opinion from the Parliamentary Law Adviser on the matter of the legal test of the independence of the military ombudsman, which was considered to be a crucial aspect of the Bill.
Submission from the University of South Africa (UNISA) College of Law
Advocate Boitumelo Mmusinyane, Lecturer in the Department of Private Law of the UNISA College of Law presented the submission prepared in conjunction with Professor Moses Montesh of the UNISA College of Law Department of Police Practice (see attached documents).
A comparative analysis of military ombudsman institutions in other countries was undertaken with the objective of ensuring that the South African military ombudsman effectively served the needs of all military personnel. In general, an ombudsman exercised oversight over the public administration and helped to ensure that the principles of good governance were observed. Recognition of the special nature of the military employment relationship and the extension of the relationship to the families of military personnel was required.
The institution of the military ombudsman had to be independent of the military command. It exercised oversight over the defence sector and addressed complaints over improper and abusive behavior and shortcomings in military procedures. The ombudsman made recommendations on corrective action but did not make policy or decisions on operational matters.
The rationale for the establishment of a South African military ombudsman included the recognition that the existing internal complaints resolution mechanism within the Defence Force was inadequate to effectively address the challenges. The ombudsman would assist in addressing shortcomings in policy and procedure through its recommendations. The value of an independent military ombudsman to the military sector was outlined.
The need for oversight over the military was summarised. The command structure exercised extensive power over members of the Defence Force. Examples of the impact of policies and practices on members and their families were provided. The imposition of certain rules and regulations had a negative impact on the morale of personnel.
There were three components to the proper functioning of the military ombudsman, i.e. effectiveness, fairness and independence. The recommendations made by the ombudsman had to be implemented, the procedures followed by the ombudsman had to be transparent and the entity had to be independent of anybody (including the Minister). The independence of the ombudsman would be achieved through statutory authority, operational independence and adequate financial and human resources. The credibility of the ombudsman would be compromised if the entity was perceived to be a mouthpiece of the Minister.
Complainants to the military ombudsman would include current and former members of the armed forces, members of the reserve forces, applicants and members of the families of members of the military forces. There should be no prohibition against a third party acting on behalf of a complainant. Parliament could also refer complaints to the ombudsman. The risk associated with referring military matters to the Public Protector was acknowledged.
The briefing included an overview of the establishment, functioning and reporting structure of military ombudsmen in Poland, Norway, Canada, Germany, Finland, the Netherlands, Ireland and the United Kingdom. UNISA was of the opinion that South Africa could draw on the international experience to ensure the establishment of an effective and independent military ombudsman that would not be regarded as merely a ‘toothless paper tiger’.
The written submission on the Military Ombudsman Bill included specific comment on the definition of ‘complaint’; the limitation placed on who must submit complaints; the dispossession of the Public Protector in the Memorandum on the Objects of the Bill; the Object of Office; the term of office of the Military Ombudsman and Deputy Military Ombudsman; the qualification and experience of the Ombudsman and Deputy Ombudsman; the powers and functions of the Ombudsman; unreasonable or undue delay in exercising power; units deployed on international operations; limitations on the jurisdiction of the Ombudsman; the accountability of the Ombudsman and security clearance of the Ombudsman, Deputy Ombudsman and all personnel employed in the office of the Ombudsman.
Mr D Maynier (DA) thanked UNISA for the comprehensive submission. It was apparent that a great deal of effort had been made in preparing the submission. The independence of the ombudsman was of crucial importance. He asked what the legal test was for the independence of the military ombudsman. He wanted to know if UNISA considered the provisions in the Bill to be adequate to ensure the independence of the military ombudsman.
Mr J Masango (DA) asked how adequate provision could be made in the proposed legislation to ensure that the recommendations made by the Military Ombudsman would be taken seriously and implemented. The speedy resolution of complaints was essential. He wanted to know how the issue of intimidation of members of the Defence Force would be dealt with.
Mr A Maziya (ANC) asked for further clarity on the recommendation concerning the independence of the ombudsman. It was unclear if UNISA recommended that the military ombudsman reported to the President or to the Portfolio Committee on Defence and Military Veterans. The entity was not considered to be independent if it reported to the Minister. He asked if the entity should operate outside the Department of Defence. He asked for clarity on the comment concerning the term of office of the Military Ombudsman and the Deputy Military Ombudsman. It was not clear if the recommended term of office should be five or seven years, whether an ombudsman or deputy would serve for a second term and how continuity could be achieved.
Mr L Diale (ANC) asked for more information on who should establish the office of the military ombudsman and where the office should be located.
Ms N Mabedla (ANC) referred to the comment on the accountability of the ombudsman (see point 10.3 (a) on page 10 of the written submission document). She asked for clarity on the suggestion that the President established an independent Parliamentary Committee that the ombudsman would be accountable to.
Advocate Mmusinyane replied that the legal test applied to determine the independence of an entity took into consideration whether the statutory authority was established, the operational independence of the entity (whether the entity could operate without influence, interference or being informed by anybody else on what it should do) and if the entity had adequate resources, which included sufficient numbers of competent personnel. The recommendations made by the ombudsman had to be followed, else the independence of the institution would be compromised. The entity had to issue regular reports on its activities. Such reports should be submitted to the Minister as well as to the Public Protector. It was not inconceivable that the ombudsman would need to report on investigations that involved the Minister.
Advocate Mmusinyane said that UNISA had concluded that the Bill did not make adequate provision to ensure the independence of the military ombudsman. The restrictive provisions made it unlikely that the ombudsman would be able to address the existing problems within the Defence Force. It was necessary to broaden the investigative powers of the ombudsman. South Africans tended to respect entities that functioned independently. If the military ombudsman reported to the Committee on Defence and Military Veterans, the Committee would apply pressure on the Department of Defence to take the office of the ombudsman seriously and to implement the ombudsman’s recommendations.
Advocate Mmusinyane suggested that the Bill made provision for turnaround times for the resolution of complaints to be included in regulations. The office of the ombudsman should have sufficient, suitably qualified personnel to manage the workflow efficiently and productively. The establishment of the office of the military ombudsman would be a costly exercise. The office of the ombudsman had to have access to sufficient financial and human resources to ensure its independence.
Advocate Mmusinyane said that the risk of intimidation had to be assessed. Protocol had to be followed and the military ombudsman should be in a position to ensure that cases involving intimidation were dealt with without fear. The purpose of the military ombudsman was to conduct oversight over the operation of the military. The ombudsman should function independently of the Department of Defence and should not be a part of it. The military ombudsman would be established in terms of legislation introduced by the Department of Defence. In the case of the United Kingdom, the British Department of Defence had refused to have a military ombudsman and a Service Complainants Commissioner, who reported to the Minister of Defence, was established instead. UNISA suggested that the South African military ombudsman reported to a Parliamentary Portfolio Committee rather than to the Minister. It was understood that the establishment of a separate Committee to oversee the military ombudsman would be a duplication and the responsibility could be given to the Portfolio Committee on Defence and Military Veterans. The length of term of office of the ombudsman would be decided by the Committee but consideration should be given that five years might not be enough for a first term as a certain length of time would be necessary for a newly established organisation to become fully operational.
Mr Maynier asked if the contention of UNISA was that the Bill failed to ensure the independence of the military ombudsman and that the ombudsman would therefore be a ‘toothless paper tiger’. The Bill made provision for the military ombudsman to be appointed by the President. He asked if UNISA recommended that the ombudsman was appointed by the legislature rather than the executive. He asked what the best practice would be with regard to the experience of the ombudsman.
Advocate Mmusinyane replied that UNISA considered the current provisions of the Bill to be inadequate to ensure the independence of the ombudsman. As it stood, the military ombudsman would indeed be a ‘toothless paper tiger’. The ombudsman could not initiate investigations and could not be regarded as independent. It was immaterial who established the ombudsman as what mattered was the operation of the organisation. There was currently a pool of persons with the necessary legal background available within the South African Defence Force (SANDF) that could be considered for the position but other suitably experienced and qualified persons outside the military sector should not be disregarded.
Submission from the South African Security Forces Union (SASFU)
Mr Bhekinkosi Mvovo, President, SASFU presented the submission of the Union to the Committee (see attached document).
The introduction to the submission acknowledged the changes in the defence and security environment since the publication of the White Paper on Defence in 1996. Reference was made to the subsequent Constitutional Court rulings concerning the rights of soldiers. It was the experience of the Union that complaints from members of the Defence Force arose out of labour disputes. Currently, labour disputes were dealt with by the military courts.
The current military justice system was considered to be rigid, inflexible and unfair and lacked credibility. There was no clear distinction between labour-related and disciplinary cases. Oversight by the civilian justice system was lacking. The limitations placed on the military ombudsman to deal with matters before the military courts were not considered to be conducive to improving the current situation.
The military labour relations regime had failed to clarify the rights and obligations of soldiers and was regarded as hostile to military trade unions. The processes to resolve concerns over promotions, proper staffing, service transfers and administrative discharge as well as the grievance procedure were considered to be inadequate.
The distinction between instances of ill discipline and insubordination and legitimate grievances were unclear. The lack of clarity resulted in discrimination and victimisation of soldiers. SASFU suggested that the Bill included provisions to clarify, streamline or repeal ineffective processes.
SASFU advocated access to information by soldiers and military trade unions to allow the effective exercising of the rights and obligations of soldiers. Attention should be given to certain administrative issues, including the freezing of salaries if a soldier went absent without leave (AWOL), the administrative discharge of soldiers, inter-service transfers, selection for military and non-military courses and equal opportunities in foreign appointments and overseas training courses.
The submission explored the historical origins of the proposed Bill. The 1996 White Paper had referred to the establishment of a military ombudsperson rather than an ombudsman. The use of the word ‘ombudsman’ was considered to be chauvinistic. The White Paper had stressed the independence of the office of the ombudsman and had stated that the entity would report to Parliament. In terms of the Bill, the military ombudsman reported to the Minister. The Bill appeared to favour complaints from members of the public rather than from members of the SANDF.
The powers and jurisdiction of the military ombudsman should be expanded to include individual labour issues. Public interest groups (such as Unions and Associations) should be allowed to lodge complaints and allegations for investigation. The ombudsman should have the power to direct punitive measures against officers and compel the Department of Defence to comply with recommendations. SASFU suggested that the office of the ombudsman was given jurisdiction over the Department of Defence.
SASFU suggested that the office of the military ombudsman was established in accordance with the criteria applicable to Chapter 9 institutions, as included in section 181 (2) to (5) of the Constitution.
SAFU concluded that the military ombudsman as envisaged in the Bill would be ‘another feel good structure’, without any real powers. It was unclear why the Minister was excluded from the requirement to comply with the determination of the ombudsman. The entity should report to parliament and not to the Minister in order to be considered to be independent. There was no guarantee that the Minister or the Department would implement the recommendations of the ombudsman. The Union advocated the establishment of a functional mediation and arbitration system to deal with grievances and to limit the number of unresolved complaints referred to the ombudsman. It was unclear if the office of the ombudsman would be accessible to all soldiers.
Mr Maynier said that the suggestions and criticisms of SASFU had been noted by the Committee. Reference was made in the submission to a Commission that had investigated the incident in August 2009 when SANDF soldiers had stormed the Union Buildings in Pretoria. He asked if the Union referred to the Interim National Defence Force Service Commission (INDFSC) as he had no knowledge of any other Commission that was appointed to investigate the matter.
Mr Mvovu confirmed that the reference was to the INDFSC.
Submission from Ms Lebo Monyatsi
Ms Lebo Monyatsi explained her legal background and past experience as a military law officer in the South African Air Force to the Committee. Her submission was however given in her capacity as a private citizen and focused on the shortcomings of the Bill (see attached document).
The Bill omitted to provide the ombudsman and his personnel with immunity from prosecution. Such a provision would prevent malicious legal action from being taken against the ombudsman by disgruntled complainants.
Ms Monyatsi suggested that more international cooperation took place, for example the sharing of best practice principles could be valuable. Namibia had a military ombudsman in place and lessons could be learned from recent Canadian and German experience of operations in other countries.
The Bill did not specify whether the jurisdiction of the military ombudsman included complaints that emanated from other countries where members of the SANDF served on operations. The Bill should include specific mechanisms for the lodging of complaints. The definition of ‘complaint’ was open to wide interpretation, for example it could include complaints lodged by a member of the family of a member of the SANDF that fell within the ambit of domestic issues. The military ombudsman did not have the discretion to launch suo moto investigations but such provision should be included. The ombudsman was limited to dismissing the complaint, recommending an alternative resolution or referring the complaint to an appropriate public institution. However, international experience included discretionary powers to make policy recommendations. The power to make policy recommendations served as a preventative function. Recommendations were designed to encourage reforms to practices, thereby preventing the recurrence of wrongdoing. The military ombudsman should function as an independent quality control mechanism to oversee the procedures, practices and policies of the military.
The jurisdiction of the military ombudsman excluded the investigation of complaints that had been referred to another dispute resolution mechanism within the Defence Force. Current dispute resolution mechanisms tended to take a long time to address complaints and were subjected to a degree of distrust on behalf of complainants and of the person being charged with wrongdoing. She agreed that the issue of the qualification and experience of the military ombudsman required further investigation and should not exclude persons with extensive military law knowledge or experience.
Mr Masango asked for Ms Monyatsi’s opinion on the provisions in the Bill concerning the independence of the ombudsman and the term of office.
Mr Maynier requested clarity on the points concerning territorial jurisdiction, for example by expanding on precedents in Canada or Germany.
Ms Monyatsi explained that the jurisdiction of the Canadian military ombudsman was extended after an international furore over an incident where a Somali citizen was killed by the Canadian Air Force. She suggested that the jurisdiction of the ombudsman should extend to all territories where members of the SANDF were deployed. In addition, the ombudsman should be empowered to conduct unannounced visits to areas where military operations took place in order to ascertain the nature of the prevailing conditions.
Regarding the issue of independence, Ms Monyatsi remarked that the relationship between the Minister and the military ombudsman would be one of ‘constructive tension’. She was unsure if the ombudsman should report to the Presidency and was not averse to the ombudsman reporting to the Minister. It was immaterial whether the term of office of the ombudsman was five or seven years. She agreed that an initial term of seven years would be more conducive to establishing the office. She failed to understand the rationale behind limiting the term of office to a single term and felt that the Minister should have the discretion to extend the contract of an ombudsman who had made a positive contribution.
The Chairperson advised that the Committee awaited the response of the Department of Defence on the submissions received during the public hearings on the Bill.
Mr Maynier remarked that the issue of the independence of the military ombudsman was a crucial aspect of the proposed legislation. There was a well-established legal test of independence, which was referred to in the Kader Asmal report on the Chapter 9 institutions. He suggested that the Committee requested the Parliamentary law advisers to submit a legal opinion on the issue.
Chairperson advised that such request would emanate from the process followed by the Committee in considering the Bill.
The meeting was adjourned.
- William simelane submission
- UNISA submission 2
- UNISA presentation
- UNISA submission 1
- Solomon Tshibiso Nyaphudi submission
- SASFU presentation
- Falithenjwa William Mashotana submission
- S/SGTL Makhubalo: (Chairman SASFU Branch Wonderboom) submission
- Lebo Monyatsi presentation
- Lebo Monyatsi submission
- Mr Letsholo Edward Mohlabya submission
- Erica Cungwa submission
- Henrietta Bwalya submission
- B.M.Bunseedhur: Member: Apla submission
- Analysis of the Military Ombudsman Bill [B9 – 2011]
- We don't have attendance info for this committee meeting
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