Military Ombudsman Bill [B9-2011]: Clause by clause deliberations continued

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Defence and Military Veterans

11 September 2011
Chairperson: Mr M Motimele (ANC)
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Meeting Summary

The Committee continued to debate the clauses in the Bill, starting from clause 7. They noted the proposals made by the DA Member, and also noted that they must check and agree upon the proposed amendments contained in a separate document, at the following meeting. Clauses 7(1)(a) and (c), 7(2)(a), (b) and (d) and 8(1) to 8(5), 10, 12 and 13 were accepted in their current form, with only minor discussion. In clause 14(2), a small technical amendment was made to the time period, but the remainder of clause 14, and clauses 15(b) to (e) were also accepted. Members also noted that the correct term to use would be “Ombud” (not “Ombuds” as agreed at the previous meeting) and the references throughout the Bill would be changed to reflect this.

In respect of clause 7(1)(b), the word “civil” was changed to “civilian”, and the content of 7(1)(d) was moved to become 7(2)(e). The DA suggested that the whole clause should be deleted and replaced with a new clause specifically setting out the mandate of the Ombud, and this was flagged for further debate.
A DA Member enquired about the meaning of clause 8(2), which seemed to suggest that the Ombud would be dependent on the Minister for Defence, but the legal advisors said that this was in line with the wording of the Constitution and merely placed an obligation on the Minister to render assistance to the Ombud. The wording of clause 8(4) was added to clause 8(2). The DA’s proposal for insertion of a new subclause stating that no information could be withheld from the Ombud, and setting out the principles of transparency in regard to the office, was flagged for further debate.

In clause 9, Members debated whether the references to consultation with the Minister should remain, in light of the independence of this office, but the point was also made that in certain respects, the Minister had a role to play. Members also discussed the security clearance requirements, and one Member cautioned against the Committee attempting to micro-manage and place too many constricts on the Ombud’s work in the Bill. Members decided that references to the Deputy Ombud also had to be inserted into clause 9(3).

Members discussed the reporting requirements in clause 11 and the legal advisors were asked to advise on the correct wording, as well as reasonable time periods, assuming the report would also have to go to Cabinet. The DA proposed that this report should go to the President and Joint Standing Committee on Defence. Members agreed to delete clause 11(3), whose content was already included under clause 11(2). The majority did not agree with the insertion of new clauses requiring transparency, pointing out that this was an environment in which there was a need for confidentiality.

In respect of clause 14(2), the period of 12 months was raised to 24 months. A suggestion to insert “intentionally” into clause 14(1) was not acceded to by the majority of Members. In clause 15, the references to “may” were replaced with “must”, and Members agreed that the forms should be written in plain language. The Short Title was corrected to reflect “Ombud” instead of “Ombuds”. It was suggested that the word “Object” be replaced with “Mandate” in the heading of clause 3, and that Members would discuss the possible insertion of more subclauses to deal with the mandate.

Meeting report

Military Ombudsman Bill [B9-2011]: Continuation of clause by clause deliberations
The Chairperson suggested that the Committee should continue with deliberations on the Military Ombudsman Bill (the Bill). The Committee had noted the DA’s proposed amendments.   

The Chairperson read the bill clause by clause.

Clauses 7(1)(a) and (c), 7(2)(a), (b) and (d), 8(1) and (5), and clauses 10, 12, 13,14, and 15(b) to (e) were accepted as they were, with no discussion, or with only technical issues raised.

There was more substantive discussion on the following clauses:

Clause 7: Limitation on jurisdiction
Mr E Mlambo (ANC) suggested that the word “civil” in sub clause 7(1)(b) and the word “civilian” be inserted. The Committee accepted the amendment, without any further discussion.

Mr Mlambo then proposed that sub clause 7(1)(d) be deleted from its current position, as it made more sense to move it to become clause 7(2)(e).

Mr J Maake (ANC) suggested that the words “as proposed” be inserted before the words “or where the matter…” and the Committee agreed.

Mr Maake then proposed that the wording of sub clause 7(2)(c) be reconstructed.

Mr D Maynier (DA) proposed that the whole clause be deleted and be replaced with a clause that specifically set out the mandate of the Ombuds.

The Chairperson suggested that Mr Maynier’s proposal be flagged for further debate, and the Committee agreed.

Clause 8: Independence and impartiality
Ms P Daniels (ANC) proposed that in sub clause 8(2) the words “Secretary for Defence” and “Chief” be deleted.

Mr Maynier wanted clarity from the legal advisers on the meaning of sub clause 8(2). The current wording seemed to suggest that the Ombuds was dependent on the Minister of Defence.

Mr Maake thought that all it meant was that the Minister should give assistance to the Ombuds.

The Chairperson explained that sub clause 8(2) did put that obligation on the Minister.

Ms Sueann Isaac, Parliamentary Legal Advisor, informed the Committee that sub clause 8(2) was in line with section 181(2) of the South African Constitution.

Mr Maynier was still not happy with this clause, as he was not quite sure how it would translate into practice.

The Committee then discussed clause 8(3).

Ms N Mabedla (ANC) proposed that the word “interfere” be replaced with something such as “hinder” or “obstruct”.

Ms Daniels proposed that the wording of sub clause 8(4) should be added rather to sub clause 8(2).

The Committee agreed.

Mr Maynier proposed the insertion of a new sub clause reading that no information could be withheld from the Ombuds, and setting out the principle that the office had to operate in a transparent way.  He also suggested that the Committee should look at the Public Protector Act for guidance.

The Chairperson suggested that the Committee should flag Mr Maynier’s proposal for further debate.

Clause 9: Staff
Ms Daniels proposed that the words “after consultation with the Minister” be deleted.

Mr Maynier agreed with Ms Daniels’ proposal, stating that to require the Ombuds to consult, while that office was also supposed to be independent, would be inconsistent.

Mr Maynier further suggested that the reference to “the Minister” be deleted from sub clause 9(2).

Mr P Groenewald (FF) questioned whether this whole subclause should be deleted.

Mr Mlambo tended to agree with Mr Groenewald. He thought that it would not be fair for the Ombuds to interact with the Minister of Finance without also including the Minister of Defence.

Mr A Maziya (ANC) explained to the Members that the Military Ombuds was not a completely independent office but was a Military Ombuds Office, and therefore it was set up to serve the Military.

Mr Groenewald said that he was sure that elsewhere in the Bill, other clauses were drawn that indicated impartiality. However, in respect of the remuneration and conditions of the Ombuds, he did feel that the Minister had to play a role.

Mr Maake asked for clarity wanted clarity on who must get security clearance, in relation to clause 9(3).

Mr Maynier proposed that sub clause 9(3) should be deleted, and he suggested that the Committee had to look for guidance from the Public Service Act in relation to the security clearance.

Ms Daniels stressed to the Committee that the Department was unique and complicated, and had serious concerns with confidentiality. For this reason, requiring security clearance was absolutely necessary.

Mr Groenewald stated that it was possible that the obtaining of a certificate of clearance could be manipulated, especially if an Ombuds was not reporting to or working with the Minister.

Mr Maake said that the Military Intelligence knew who to scrutinise and how to hire. He urged that the reference to consultation with the Minister should not be deleted.

Mr Maziya noted that Mr Maynier had, on several occasions, indicated that he had problems with the concept that the Ombuds and Minister must work together. However, in certain matters, and within certain parameters, the Ombuds could and should consult with the Minister”

Mr Maynier stated that he would not be comfortable with requiring the Ombuds to subject him / herself for security clearance in this way. He reminded Members that the Public Protector was currently investigating a member of the Defence Force who had apparently obtained a clearance certificate from Intelligence Unit, despite the fact that at that time he was a fugitive from justice in the United States of America.

Mr Maake wanted clarity as to who had to be given security clearances, and what standards would be applied in giving security clearances.

Mr C Kekane (ANC) thought that the Committee was attempting to micro-manage the situation too much. The Committee should not be attempting to tell the Ombuds who had to attend to the clearance certificates. She felt that if too much was prescribed in the Bill, then this could undermine the Ombuds’s ability to perform his/her duties. 

Mr Maynier wanted clarity why there was no reference to the Deputy in clause 9(3).

Mr Maziya explained that the office of the Ombuds and Deputy Ombuds were inseparable. The Deputy Ombuds would be expected to take over duties of the Ombuds when the Ombuds was not available. In fact there was no omission as the Deputy Ombuds was included by implication.

The Chairperson added that the Ombuds had to delegate to the Deputy Ombuds, in terms of the delegation function.

Mr Maake reminded the Committee that the law should be stated clearly and not leave too much to implication. He noted that in clause 6(6)(1) there was a reference to both the Ombuds and Deputy Ombuds.

Mr Maziya proposed that the words “the Ombuds and his/her Deputy” then should be inserted in sub clause 9(3).

Ms Bongiwe Lufundo, State Law Adviser, Office of the Chief State Law Advisor, then added that clause 9(3) also omitted a specific reference to the Deputy Ombuds.

Clause 11: Reporting
Mr Maynier proposed that the words “submit to the Minister” be deleted, so that clause 11(1) should then end with the words “tabled in Parliament”.

Mr Groenewald believed that both the phrases should remain.

Mr Maake asked who would table the financial report before Parliament. 

The Committee agreed that the Ombuds had to table the report before Parliament. Members agreed to the change proposed by Mr Maynier.

Mr Siviwe Njikela, Director: Legal Services, Department of Defence, reminded the Committee that it was only Members of Parliament who were able to “table” documents before Parliament. Because the Ombuds was not a Member of Parliament, the correct word to use would be “submit”.

Mr Maynier cautioned that these words carried different meanings in Parliament. He asked that Members be very careful that they were using the correct word.

Mr Njikela suggested that if the Committee used the word “submit”, then the Committee had to increase the 30 day period for submission, pointing out that it had to have sufficient time to go through the Minister and then to Parliament.

Mr Groenewald thought that a 30 day submission was sufficient.

Mr Mlambo asked the legal drafters to give guidance to the Committee on the question of how long it would typically take for a report to reach Parliament.

Mr Maziya agreed with Mr Njikela, saying that the report surely had to be passed by Cabinet before it reached Parliament.

Mr Maake wanted clarity as to the reasons for submitting a report and whether this also implied the concept of accounting.

The Chairperson explained that the report would be submitted to the Minister, and would then be tabled in Parliament. He also reminded the Committee that the main question was whether the period of 30 days for submission would be considered sufficient.

Mr Groenewald agreed with the previous suggestion that the legal drafters or advisors clarify the processes of tabling and submitting documents in Parliament.

Mr M Nhanha (COPE) suggested that they may need to be given some time to check on this.

The Committee agreed.

The Chairperson explained that once a document was tabled, it became a public document.

Mr Maziya raised a point of order, saying that this should not be discussed further at this point, as the legal advisors had been asked to research the matter and report back.

Mr Maynier reminded the Committee of his proposal that the Committee should oblige the Ombuds also to submit the reports to the President.

The Chairperson informed Mr Maynier that his proposals were being considered by the Committee.

Mr Maynier then proposed that sub clause 11(2) should include a reference both to the President and the Joint Standing Committee on Defence.

Mr Groenewald suggested that the Portfolio Committee on Defence and Joint Standing Committee on Defence had to be included. However, if the President did not want the report to be submitted to him/her, then s/he could always communicate with the Minister.

Mr Maziya said he could not think why any reference to the President had to be included in the clause. The President had the authority, at any time, to call upon the Ombuds to submit the report to him/her.

Mr Maynier proposed that sub clause 11(3) be deleted, as the content was covered in clause 11(2).

Mr Mlambo seconded this proposal. Members then agreed to delete clause 11(3).

Mr Maynier proposed that new sub clauses be inserted in clause 11, to deal with transparency.

Mr Mlambo reminded Mr Maynier that the Ombuds would be dealing with the highly confidential security matters, and this was a unique environment.

Mr Maake seconded Mr Maynier’s proposal.

Mr Maziya was worried that the Committee was attempting to stretch the functions of the Ombuds too far. The Ombuds had to ensure that proper disciplinary procedures were followed, as specified, but he felt that it would go too far to require the Ombuds also to investigate unreported complaints.

The Chairperson explained that Mr Maynier was saying that the report had to be publicised before it was tabled in Parliament.

Mr Groenewald was not happy with this suggestion, and reminded the Committee that some portions of the report may contain information that the complainants would not like to have widely publicised.

The Chairperson noted that the majority of Members did not agree with Mr Maynier’s proposal.

Clause 14: Offence and penalties
In respect of clause 14(2), the Committee agreed to substitute the period of twelve months with a reference to “twenty four months”.

Mr Maynier suggested that the word “intentionally” be inserted after the word “who”, in sub clause 14(1).

The Chairperson did not believe that sub clause 14(1) needed to be changed. He thought that the clause should rely on the maxim that ignorance of the law is no excuse.

Mr Maziya believed that a loophole would be created if the word “intentionally” were to be inserted. The military could then plead ignorance, or, at best, negligence.

Mr Maynier then proposed that a new sub-clause (3) be inserted, stating that: “A person who fails to comply with sub clause 6(6) will be guilty of an offence”.

Mr Maake wanted to know whether the Military or a civilian court would be responsible for deciding on these matters.

Mr Njikela reminded the Committee that the word “order” in sub clause 6(6) was changed to “recommend”. In other words, it was no longer an offence if someone did not comply with a recommendation.

Mr D Kekane (ANC) suggested that the Committee should not create a very different Ombuds but should follow precedent.

Mr Maynier agreed with Mr Njikela He felt that the Committee must ensure that the Ombuds it created had the teeth to carry out its tasks.

Mr M Nhanha (ANC) stated that the Military Ombuds Bill sought to replace the Military Unions. He agreed with Mr Maynier’s remarks, and said that a dispute would have to follow the proper channels.

The Chairperson corrected Mr Nhanha, saying that the objects of the Bill were set out fully in clause 3, and this did not include an object of de-unionising.

Ms Daniels explained that the words “Ombuds must recommend” meant that Defence members who had gone through the procedures of the Department could then go to the Ombuds to resolve any outstanding disputes. She cautioned against the assumption that complaints would be ignored. She stressed that the proper procedures would have to be followed.

Other than the minor amendment in clause 14(1), the remainder of clause 14 was not amended.

Clause 15: Regulations
The Members agreed that the reference to “may” had to be deleted and replaced with “must”

Mr Maziya proposed that, in respect of clause 15(a), there should be wording inserted to qualify that the forms had to be “user-friendly”. Some forms were worded so badly, or used such complex requirements that people ended up having to seek legal assistance in order to complete them correctly.

Mr Maake wanted clarity from the legal advisers as to whether sub clauses 15(a) to (e) also covered sub clauses 7(c) and 9(3).

Ms Lufundo agreed that all the sub clauses mentioned by Mr Maake were covered by clause 15.

Ms Daniels agreed that the forms used had to be written in plain language.

Short title
The Committee noted that there had to be continuity in respect of the use of the word “Ombuds”.

The Chairperson noted that Members had agreed to this at the previous meeting, but questioned if “Ombuds” was in fact the correct word.

Ms Lufundo explained that the correct word was Ombud (without an “s”).

Members then approved the use of the word “Ombud” wherever relevant, in the Bill.

Outstanding matters
The Chairperson reminded the Committee that on the following day, the Committee would need to discuss the flagged clauses further, in particular the proposals put forward by Mr Maynier on the mandate of the Ombud.

In addition, the Committee would need to formally adopt its proposed amendments.

Mr Mlambo suggested that the legal advisers should make proposals to the Committee as to how best to deal with the mandates of the Ombud.

Mr Maake suggested that the word “Object” be deleted from the heading of clause 3, and wherever else it appeared in this context, and should then be replaced by the word “Mandate”. He agreed that there may be a necessity to add further subclauses to clause 3.

Mr Maynier agreed with Mr Maake’s proposal. He suggested that the Committee should debate the meaning and scope of the mandate.

The Chairperson reminded the Members to look carefully at the document setting out the proposed amendments and check that these were captured correctly.  

The meeting was adjourned.

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