Military Ombud Bill [B9-2011]: Proposed Committee amendments (A list of amendments)

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Defence and Military Veterans

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

The Committee considered its A-list of proposed amendments to the Military Ombud Bill. The proposed amendments related to the Long Title, Clause 2, a new Clause 4, Clause 5, Clause 6, Clause 7, Clause 8, Clause 9, Clause 10, Clause 11, Clause 13, Clause 14, Clause 15 and Clause 16. Most of the amendments were of a technical nature, but some substantive changes had also been proposed. The Chairperson guided the Committee through the proposed amendments. The proposed amendments to the Long Title and Clauses 2,5,7,8,9,10,13,14,15 and 16 were approved by members without much discussion.

The new clause 4 set out the mandate of the new Military Ombud, and the legal drafters confirmed that this was distinct from the objectives. Queries were raised whether it should cover members of auxiliary services. When it was pointed out that the last of the auxiliary services had been incorporated into the South African National Defence Force (SANDF) in 1995, a Member still raised concerns that a retired Member, or any future auxiliary forces that may be appointed, should be covered. However, the majority of Members agreed that it was not necessary to cater for this, and possibly the Public Service Commission provisions would apply. The same Member asked if a Member of Parliament could request an investigation, and it was agreed that any person could assist a complainant, but that the Committee, which had oversight over the Military Ombud, could not also ask it to investigate. The legal advisors were asked to comment further on this point.

In respect of clause 6, Members discussed whether the Ombud could “recommend” or “order” appropriate relief, and a suggestion was made that the words “for implementation” must be added in subclause (8). Members agreed that “recommend” was appropriate, and noted that if the Minister or the chain of command did not implement, they would be accountable to Parliament. Members discussed the reporting requirements in clause 11, and the legal advisors were asked to revert with advice on whether the Public Finance Management Act requirements, which meant that the Annual Report would reach Parliament six months after closure of the financial year, would apply, or if the activity report must be made within one month. An alternative might be to include a provision stating that the Committee could call the Military Ombud to report whenever it deemed this necessary.

The legal advisors and drafters were asked to incorporate the amendments approved into a final version, which would be considered by the Committee on 21 September.

Meeting report

Military Ombud  Bill: Proposed Portfolio Committee Amendments (‘A’ list)
The Chairperson tabled the ‘A’ list of proposed amendments by the Portfolio Committee to the Military Ombud  Bill (the Bill). The Committee then went through the clauses to which those amendments applied.

Long Title
Proposed amendments were approved. The office was now termed “Ombud”.

Clause 2: Office of the Military Ombud
The proposed amendments were approved.

Clause 3: Objects and clause 4: Mandate of new Office of Military Ombud
The Committee had suggested a new clause dealing with the mandate of the Office of the Military Ombud. Clause 4 would hence have the heading “Mandate of the Office”.

Mr A Maziya (ANC) suggested that Clause 3: Object of the Office in the Bill be deleted and that the “Mandate of the Office” be inserted in the Bill in its place.

Ms Bongiwe Lufundo, State Law Adviser, Office of the Chief State Law Advisor, stated that a substitution would not be advisable. The object of the Office of the Military Ombud  was different from the mandate of the Office of the Military Ombud .

Mr D Maynier (DA) stated that the new Clause 4 was to set out the mandate of the Office of the Military Ombud . He wanted clarity on what the mandate meant, asking if it was different to the functions of the Office of the Military Ombud ?

The Chairperson asked whether it was best to leave Clause 3 as it was in the Bill.

Ms Lufundo advised that it was best to leave Clause 3 as it was.

Members went along with the advice of Ms Lufundo, in regard to clause 3.

Members then considered the proposed amendments to the new clause 4.

Ms P Daniels (ANC) responded that the new clause was welcomed. She asked whether the clause should categorically explain that the mandate must first start in the Department of Defence and then come to the Office of the Ombud.

The Chairperson asked whether the clause sufficiently covered the position, or whether anything needed to be more expressly stated.

Ms Lufundo stated that the mandate was more linked to the functions but was not an objective. She felt the clause to be sufficient as it was. More elaboration was to be found in Clause 7.

Mr Maynier asked whether the mandate should cover, firstly, employees of the South African National Defence Force (SANDF or the Defence Force) and, secondly, members of auxiliary services in the defence force. He also asked about the issue of the Public Protector initiating investigations. It was additionally felt that provision should be made for the Military Ombud to initiate investigations. A further question was whether a Member of Parliament could submit complaints to the Military Ombud.

Ms Daniels responded to some issues raised by Mr Maynier. She stated that there were no longer “auxiliary members” in the Defence Force. Civilians in the defence force were catered for elsewhere. A Member of Parliament (MPs) could launch a complaint on behalf of a member of the Defence Force, but this would be done not in a personal capacity, but through MPs using their clout as politicians to influence the Military Ombud .  
 
Mr Maynier responded that his question had been misunderstood. He had asked for confirmation whether an MP could lodge a complaint with the Military Ombud.

The Chairperson stated that the Bill made provision for all citizens of South Africa to complain to the Military Ombud.

Mr Siviwe Njikela, Deputy Director: Legal Support, Department of Defence, stated that the present SANDF Act referred to auxiliary services. The Minister of Defence also had the discretion to establish auxiliary services, if the need arose. At present, however, the Defence Force did not have auxiliary services any longer in practice. The only issue that could come up was if a retired auxiliary services member wished to lodge a complaint.

Mr Maynier thanked Mr Njikela for the explanation. He asked if it was correct that employees of the Defence Force could also complain via the channels of the Public Service  Commission.

Mr Maynier was still concerned about the position of retired auxiliary services personnel, as well as those auxiliary services personnel that the Minister might appoint in the future. He suggested that perhaps a clause should be included in the Bill to cover this category.

The Chairperson reiterated that at present there were no auxiliary services. The Committee could not legislate for what the Minister might want to do in the future. It would only legislate on what was currently before members.

Mr P Groenewald (FF+) stated that the Minister had the power to appoint auxiliary services, and he did not think it was necessary for the Committee not to legislate for this category until it had arisen. He suggested that a reference to auxiliary services simply be included in clause 1, which provided for a definition of members of the Defence Force.

Ms Daniels agreed that inasmuch as the Minister had the prerogative to appoint auxiliary services, the Defence Force already had a reserve force or a part-time force that could perform the services of an auxiliary service.

Mr Maziya suggested that the issue of an auxiliary service be left out of the Bill for now.

Mr Maynier commented that it did not seem that the Committee would reach agreement on the issue.

The Chairperson stated that there were no auxiliary services in the defence force. He again made the point that the Committee could not provide for what might happen in the future.

Mr Njikela confirmed that the last group of auxiliary services members were incorporated into the Defence Force in 2005.

Mr Groenewald stated that if all auxiliary services members had in fact become part of the Defence Force then there was no need to provide for them in the Bill.

Mr Maynier asked about the position of an auxiliary services member who had retired in 1985, and asked if this person was also considered as being part of the regular Defence Force.

Mr E Mlambo (ANC) stated that the Committee was repeating the same issue.

Mr Maziya stated that the rest of the Committee did not seem to agree with Mr Maynier on the issue.

Mr Maynier responded that he would be happy if claims of auxiliary services members could be lodged with the Office of the Public Protector. He reminded the legal advisors that he was still awaiting a response as to whether a Member of Parliament could lodge a complaint.  

Mr Njikela stated that Members of Parliament would be covered by Clause 4(1)(d), which stated that “any person” may file a complaint on behalf of someone else.

Mr Groenewald agreed that Members of Parliament were also members of the public. He asked if there would not be overlaps if complaints by members of the defence force could be handled by both the Public Service Commission (PSC) and the Military Ombud.

Mr Maynier confirmed that there were two options, to complain via the Public Service Commission or via the Military Ombud. The issue was whether a military Ombud could initiate an investigation. International best practice supported this, as was to be seen in Germany. Another issue related to the independence of the military Ombud in the event that there was a systemic problem in the military section.

Mr Groenewald would be happy with the clause being left as it was, but he thought that it was possible to have overlaps and tension between the two entities.

The Chairperson felt it was time to close the issue.

Mr Maynier asked whether the Public Service Commission could initiate investigations and serve subpoenas. He also asked if the Military Ombud could request the Public Service Commission to undertake an investigation on a systemic problem. He pointed out that Parliament appointed the Military Ombud . However under the mandate of the Office of the Military Ombud, the Committee had not made provision for MPs to request the Military Ombud to investigate something. The Public Protector had been in favour of the Committee being able to ask the Military Ombud to investigate a matter.
 
Ms Daniels thought that the Committee had concluded discussions on this matter. The Committee had to perform oversight over the Office of the Military Ombud. For this reason, it would not make sense for the Military Ombud  to investigate matters prescribed by the Committee.

The Chairperson stated that a constituency office could lodge a complaint on behalf of a Member of Parliament.

Mr Groenewald cautioned members not to over regulate. He understood that Mr Maynier wished to close loopholes. He suggested that perhaps the Committee could consider looking at the powers and functions of the Public Service Commission, which was able to investigate anything. Members of Parliament could even ask the Minister for the Public Service Commission to investigate a certain matter. The Bill was not cast in stone, and if changes were needed, this could be done.

Mr Maynier stated that Mr Groenewald seemed to assume that the Public Service Commission could investigate conditions of service of members and had powers of service. He asked the Department to comment.

The Chairperson stated that the Committee would come back to the issue. There seemed to be disagreement on the issue at the moment, but after the legal team had commented, this clause would be revisited.

Clause 5: Appointment of Military Ombud  and Deputy Military Ombud
The Proposed amendments were approved.

Clause 6: Powers and functions of Ombud  and Deputy Ombud
The Chairperson noted that on page 3, in line 52, subclause(6) was to be omitted, and substituted with the following:

“(8) If the Ombud upholds the complaint, the Ombud must recommend appropriate relief to the Minister”

Mr Groenewald asked if this was what the Committee really wanted.

The Chairperson stated that the understanding of the Committee was that the Minister must implement. The issue had been whether the Ombud should “recommend” or “order” appropriate relief to the Minister.

Mr Groenewald understood why “recommend” had been chosen. He suggested that “for implementation’ be added at the end of the subclause after “Minister”. The subclause would then read:

 “(8) If the Ombud upholds the complaint, the Ombud must recommend appropriate relief to the Minister for implementation.

Mr Maynier asked if the recommendations were binding on the Minister, and what would happen if the Minister chose not to implement the recommendations, or if the chain of command refused to implement them.

The Chairperson stated that the only issue with the subclause had been whether to use “recommend” or “order”.

Mr Njikela stated that queries were raised during public hearings as to whether a structure could make orders to the Minister. It was accepted that recommendations were made to government.

Ms Sueanne Isaac, Parliamentary Legal Adviser, stated that the Public Protector made recommendations, and so too would the Military Ombud. Only a court could make an order. 

Mr Groenewald felt that the recommendation would be more binding if “for implementation” was added at the end of the subclause.

Ms Lufundo stated that the Minister was accountable to parliament. If the Minister did not implement, then Parliament could hold the Minister accountable.

Mr Groenewald said that he was satisfied with these responses. If the Minister did not implement then the member of the Defence Force could also still seek relief from a Military Court.

Mr Maynier understood the difference between the use of “order” and “recommend”. However, he was unconvinced that the Military Ombud  had sufficient teeth. He still thought that there could be a problem if the Minister did not implement, or did not implement timeously. Even if the Minister agreed to implement, the chain of command might stop this happening. He suggested that perhaps the solution would lie with the powers of the Public Protector, and asked what powers the Public Protector would have in this instance.

Ms Daniels stated that there were other provisions in the Bill that covered the instance where the Minister did not implement.

Mr Groenewald stated that even if the chain of command refused to implement, Parliament could ask for an explanation why it had not implemented.

The rest of the proposed amendments to the clause were approved.

Clause 7: Limitation on jurisdiction
The proposed amendments were approved.

Clause 8: Independence and impartiality
The proposed amendments were approved.

Clause 9: Staff
The proposed amendments were approved.

Clause 10: Finances
The proposed amendments were approved.

Clause 11: Reporting
Ms Isaac stated that the Ombud could submit an Annual Report to Parliament. The Speaker of the House could table it, or the Minister could table it. This was in line with the Public Finance Management Act (PFMA). According to the PFMA, the Ombud had 5 months and the Minister had 1 month to submit the Annual Report to Parliament.

Ms Lufundo reminded Members that in this instance, the normal 5 month period did not apply, because the Military Ombud  was not a separate public entity. It obtained its budget from the Department. The 30-day period therefore applied.

Ms Daniels asked what room there was for the Minister to report to Parliament.

Ms Isaac responded to Ms Lufundo that if the report was on activities, then the 30 day period would apply. If the report had to do with finances then the PFMA rules would apply.

The Chairperson stated that the Military Ombud would be governed by the PFMA.

Ms Lufundo stated that the Military Ombud must, within 30 days, file a report to the Minister. The Minister must submit it to Parliament within 1 month of receipt of it.

The Chairperson stated that the Committee expected the legal team to provide the Committee with guidance.

Mr Maynier asked if the Committee was willing to wait six months for a report from the Military Ombud  about complaints that had been received. His party would definitely not agree with this. He suggested that the Committee must ensure that what it had agreed to was provided for in the Bill; namely, that within 30 days the Military Ombud must submit a report to the Minister.

The Chairperson asked whether, when the Military Ombud submitted a report to the Minister, it must be simultaneously submitted to parliament.

Ms Daniels stated that there could be no simultaneous submission. When a report was submitted to the Minister, it must first be dealt with by the Ministry before it could be tabled in Parliament.

Ms N Mabedla (ANC) agreed that a simultaneous submission was not fair. The Minister needed time to deal with the report.

The Chairperson stated that the Committee had put obligations on the Minister in the Bill in order to strengthen the Committee’s oversight role. Members must be careful not to weaken the Committee’s oversight function.

Mr Maynier argued that the reason why he believed that the Military Ombud had to submit its Annual Report simultaneously to the Minister and to Parliament was that the Military Ombud was independent. If the Annual Report was not submitted simultaneously to Parliament, the Minister could change that Annual Report. He stated that the opposition parties believed that the Military Ombud should be independent and have teeth, but apparently the majority party did not feel the same way.

The Chairperson suggested that the Committee move on as it was obvious that Members were not in agreement.

Ms Isaac stated that there were two reports from the Military Ombud . The first was an activities report and the second was an annual report.

Ms Lufundo asked if the legal team could get back to the Committee on the issue. She agreed that there were indeed two reports. The Annual Report of the Military Ombud had to be submitted to the Minister.

Mr Maziya asked if it was normal to have an operations report and financial report.

The Chairperson stated that the issue was whether Parliament wanted a separate activity report and a separate financial report. The alternative would be a single report combining both reports, and that would follow the PFMA processes, and take six months to reach Parliament.

Mr Maynier reiterated that the Committee could not wait 6 months for an activities report. It would weaken the Committee’s oversight role.

The Chairperson stated that the Committee would have to decide what it wanted.

Mr M Nhanha (COPE) thought that six months was not long to wait for an activities report. He noted that the Committee had perhaps erred by not including in the Bill a provision that allowed the Committee to call the Military Ombud to account to Parliament when the Committee deemed it necessary. Perhaps the Committee should reconsider its decision on that point.

Mr Maziya agreed that perhaps the Committee should reconsider including a provision in the Bill that allowed the Committee to call the Military Ombud to Parliament when it deemed this necessary. Otherwise, the rules of the PFMA should be adhered to.

The Chairperson noted the Committee’s agreement to take that option.

Ms H Mgabadeli (ANC) stated that the decision taken by the Committee should be put in writing.

Clause 13: Review
The proposed amendments were approved.

Clause 14: Offences and penalties
The proposed amendments were approved.

Clause 15: Regulations
The proposed amendments were approved.

Clause 16: Short title
The proposed amendments were approved.

The Chairperson stated that now that the Committee had dealt with the A-list of proposed amendments it expected the legal team to incorporate these amendments into a final version of the Bill, to be considered on Wednesday, 21 September 2011.

Mr Maynier asked if the debate on the Bill, which was to have taken place on Tuesday, 20 September 2011, would now fall away, and asked for confirmation that the Committee would therefore only consider the B-version on Wednesday 21 September 2011.

The Chairperson confirmed that the Committee would consider the final version of the Bill in the following week. The Bill could be debated thereafter.

The meeting was adjourned.


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