Military Ombudsman Bill [B9-2011]: deliberations

Meeting report

Deliberations on the Military Ombudsman Bill [B9-2011]
The Chairperson informed members that asked the Members to submit their amendments not later than the end of the day. Democratic Alliance (DA) had proposals for amendments to the Military Ombudsman Bill and The Committee accepted some of those proposed amendments by the DA.

The Chairperson read the bill clause by clause and Clauses 1 paragraph 10 to 20, 2, 4, 5(2), 5(5), 5(7-11), 6(2-4) (a-c) and 6(7-11) were accepted without or with minor discussion.

The following clauses are the ones which were accepted by the Committee for amendment after  discussion.

Short Tittle
The Chairperson suggested the word “Ombuds” instead of Ombudsman.

Mr D Maynier (DA) suggested that the word should not be changed as the word was recommended by the Public Protector. He also mentioned that in Sweden the word “Ombuds” was not allowed to be changed.

Mr E Mlambo (ANC) expressed that South Africa is not Sweden so he disagreed with Mr Maynier.

The Chairperson asked the legal team to give an advice.

Ms Bongiwe Lufundo State law adviser from Office of the Chief State Law Advisor (OCSLA) stated that the word “Ombuds” had been used before so it was acceptable to be used.

The word “Ombudsman” was Changed to” Ombuds”

Long tittle under the word “BILL”
Mr Maynier proposed that the word “provide” be deleted and be replaced by the word “Independent”.

The Committee accepted the amendment, without further discussion.

Clause 1: Definitions
Mr Maynier proposed that the wording “service benefits” of the definition of complainant in subsection (ss) 1(a) be changed to “services of condition” as stated in the Defence amendment Act No 22, 2011.

The wording was changed.

Mr Maynier proposed that ss 1(c) should include civilian employees. He also proposed that new 5 ss should be incorporated which would include the definition of auxiliary.

Ms P Daniels reminded Mr Maynier that the bill was only for military in uniform so his proposal was to wide, unacceptable and the Veteran bill dealt with civilian employees.

Mr Siviwe Njikelana Director Legal Adviser of the Department of Defence (DoD) explained that according to the Military Act of 2002 Auxiliary services no longer exists in the military so there could be no grievances from former Auxiliary Services. He also clarified that there was Public Service Commission as an existing Department Dispensary.

Ms H Mgabadeli (ANC) suggested that the ss should include complainant acting on behalf of a member and the Committee agreed.

The Committee accepted the amendment, without further discussion.

 The definition of Constitution, Dfefence Force, Department, Deputy Ombudsman, member, Minister, Office, Prescribed were accepted the amendment, without any discussion.

There was continuity on the word “Ombuds”.

Clause 2: Office Of Military Ombuds
The Committee accepted the amendment, without any discussion.

Clause 3: Objective of Office
Mr Maynier proposed that the heading of clause 3 be deleted and be replaced by “Objectives of the Act”.

Ms Daniels stated that the objectives of the Act were already captured in the memorandum of the act.

Ms Lufundo explained that what was stated in the short tittle was also included in the long tittle.

Ms Daniels suggested that the Committee sleeps on it and the Committee agreed.

Clause 4: Complaints   
Mr Maynier proposed clause 4 to be deleted, all the words be put in another section and clause 4 had to deal with the mandate of the Ombus.

Ms Daniels differ ed to Mr Maynier as she believed that if the Committee included the mandate of the Ombuds the Committee would telling the Ombuds what s/he should do which meant that the Committee might as well lodge complaints on behalf of the members.

Mr Mlambo reminded Mr Maynier that the mandates of the Ombuds are dealt with the section of the powers and functions of the Ombuds.

The Committee did not accept the proposed amendment by Mr Mayner.

Clause 5: Appointment of Military Ombudsman and Deputy Military Ombudsman
Mr Mlambo proposed Parliament instead of President in ss 5 (1)

Mr Maziya believed that Mr Mlambo was questioning the role of Parliament in the appointment of the Ombuds and his or her Deputy and He then explained that it was common practice for Parliament to play role in the appointments of these institutions.

Mr M Nhanha (COPE) voiced out that the legal advisers did not do their job properly because the Committee was not sure if they had to play a role or not in the appointment of an Ombuds and his/her Deputy.

The Chairperson suggested that the Committee had to choose whether the Committee or parliament must play a role or not in the appointment of the Ombuds.
Mr Maziya suggested that the Committee must look at the common practice like the Public Protector and the legal advisers ought to help the Committee.

Ms Lufundo wanted clarity as whether the Committee wanted the Ombuds to have same powers as the Public Protector and if yes the Committee had to use Chapter 9 of the Constitution. She also informed the Committee that the Ombuds bill did not include Parliament but the bill could be redrawn so it could include Parliament playing a role in in appointments of the Ombuds and his/her Deputy.

Ms Sueanne Isaac read Section193 (4) and (5) of Chapter 9 of the Constitution which stated who had to appoint these institutions.

The Committee agreed to go with the procedures stated in Section 9.

Ss 5(1)(b) Mr Maynier suggested that a retired judge would be the best candidate to be an Ombuds as the judge had a legal knowledge but not a former military as the test of independency Ombuds from chain of command would fail. He also stated that the appointment of the Deputy Ombuds could be different from the appointment of the Ombuds.

Mr Maziya stated that Mr Maynier’s proposal was not necessary as it would lead to the point where there would be no need for candidates to submit CVs but only name of the retired judges would be needed for the President to choose from so the Committee should not be prescriptive.

Mr Nhanha wanted clarity as to whether the Committee was elevating the Ombuds to the level of the Chapter 9 Institutions. He suggested that the Committee should not be prescriptive because could lead to the exclusion of a culpable citizen. He also reminded that there was a perception by the public that judges were not neutral but were political affiliated.

Ms Daniels suggested that the Ombuds had to be independent so stating that an Ombuds must be only an ex judges would be limiting the Ombuds’s independence. She also reminded the Committee that the Ombuds had to take an oath which would make him/her more independent.

Mr Nhanha asked the Chairperson to issue a statement about the perception of the impartiality of South African Judges.

Ms Lufundo suggested that the Committee had to include that the Ombuds had to have legal qualification as one of the requirement.

Mr J Maake (ANC) said legal knowledge is a correct requirement than legal qualification.

Mr Maziya stated that he was comfortable with knowledge of the constitution and legal knowledge.

Mr Maynier wanted to know how the Committee measured legal knowledge because most of the people had legal knowledge to some degree but did not have deeper knowledge. He also explained that the candidate had to be an eminent and highly qualified person and he felt that the Committee did not raised the bar high enough.

The Chairperson suggested that the Committee should include administrative qualification than legal qualifications.

It was agreed that legal knowledge would be included as the requirement for a candidate.

Clause 5(3) was changed form 8 years to 7 nonrenewable years. The Committee accepted the amendment, without further discussion.

Mr Maziya proposed that on ss 5(4) (b) be deleted and be replaced by wording “in such terms that might be determined by the President”.

Mr Maynier mentioned that an objective test was needed. He also stated that as the Deputy Ombuds would be in office continuity the condition of appointment would be different from that of the Ombuds.

The Chairperson suggested that the remuneration of the Deputy Ombuds had to be dealt with by Minister of finance.

Mr maziya reminded the Committee that the person responsible for the appointment of the Deputy Ombuds would be aware of the terms of conditions of appointing. He suggested that the Chairperson had to make a ruling as to who would overlook the remuneration of the Deputy Ombuds.

The Chairperson suggested that the Minister of Finance and the President had to with the remuneration of the Deputy Ombuds.

Mr Nhanha wanted clarity as to the legal implications of altering an employee’s remuneration.

Mr Njikelana stated that labour law standards said remuneration could not be decreased unless there was an action of misconduct but if the employer was only displeased with the employee s/he could not decrease the employee’s salary but the employer had to follow the procedures.

Mr Maynier proposed that ss 5(6) be deleted and his clause be inserted.

The Chairperson reminded the Committee that Mr Maynier’s clause 5(6) included the role of Parliament in appointing the Ombuds.

Mr Nhanha suggested that the Committee had to use the same process in dismissing as the one in appointing the Ombuds and the Deputy Ombuds. He also mentioned that the Committee had to guard against the misuse of power by the president as he had the power to appoint the Ombuds because he could dismiss the Ombuds if he did not like the Ombuds.

Clause 6: Powers and functions of Ombudsman and Deputy Ombudsman
Mr Maynier suggested that ss 6(1) should read as follows; “The Ombuds must investigate the lodged in a prescribed manner”.

The Committee accepted the amendment, without further discussion.

Ss 6(5) the word “confirm” was deleted and the word “uphold” was inserted.

The Committee accepted the amendment, without further discussion.

Mr Mlambo suggested that the word order in ss 6(6) be deleted and the word instruct be inserted.

Mr Mayner suggested that the Ombuds must form a binding order or finding and the finding should not depend on the Ministers discretion of approval or dismissal of the Ombuds finding.

Ms Daniels said that she felt that the word “order” is too harsh like the old military days so the word “order” should be deleted and “recommend” should be inserted.

Mr Maziya wanted clarity as to whether legally it was acceptable to force a Minister to do a particular task.

Mr Maynier wanted to know the consequences to the Department if it failed to comply with the order/recommendations of the Ombuds.

Ms Isaac told the Committee that the Committee could use the word “recommend”.

Mr Maziya proposed that the ss be flagged so the Members could consult.

Mr Maake agreed with Honourable Maziya. He also proposed that ss 9 be deleted as giving the Minister an additional function could having power over the Ombuds.

Mr Masango also proposed the ss to be flagged.

The Committee proposed that ss 6(6) be flagged and the legal advisers had to do more research as to whether the Ombuds should order or recommend the Minister to comply with the determination of the Ombuds.  

Mr Maynier reminded the Committee that he had proposed clause 4 to be the mandates of the Ombuds.

Ms Daniels wanted to know the difference between mandate and function.

Mr Mjikelana informed the Committee that he was concerned that the Committee had created an ombuds as this monster that would be hard to control because The Ombuds was supposed to be less than the institutions in Chapter 9 but the Committee were using procedures that were used in Chapter 9 institution.

The Chairperson informed the Committee that the meeting had to be adjourned because of time constraint and the continuation of deliberations on the Bill would commence on Tuesday the following week.

The meeting was adjourned.