Military Ombud Bill [B9-2011]: Formal clause by clause Deliberations and Adoption
Defence and Military Veterans
20 September 2011
Chairperson: Mr M Motimele (ANC)
Meeting Summary
The Committee considered the B-version of the Military Ombud Bill, and a separate document that set out the Committee’s amendments. They went through the Bill clause by clause, noting the amendments in each clause. The substantial changes were to the title “Military Ombud Bill”, to clause 4, which was replaced, and now dealt with “Mandate of Office”, new clauses 5(2), 5(3), 5(4), 5(9) and 5(10), that set out the appointments process for the Ombud, the requirements for appointment and removal. There were also changes to clause 6, in relation to the procedure for complaints. The DA Member lodged an objection to this clause, which was noted. A new subclause 7(2)(e) was now included. The DA also raised an objection to clause 8, which was noted. Clause 9(3) made provision for the Deputy Ombud as well. It was noted, in respect of clause 11(2), that the Committee had an automatic right to call in the Ombud whenever it needed clarity, so there was no need to specify the reporting to the Committee as well as to the Minister. Clause 11(3) required the Minister to table the report within one month of receiving it from the Ombud. The DA noted its objection to clause 11. In clause 15, the word “may” was substituted with “must”, placing an obligation on the Minister.
The majority of Members agreed to adopt the Bill, with the objections from the DA being noted both in respect of the Bill, and it was also agreed that these would be specifically noted in the Committee’s draft Report, which was also adopted.
Meeting report
Formal clause by clause Deliberations on the Military Ombud Bill [B9-2011]
The Chairperson asked the Committee to now go through the B version of the Military Ombud Bill (the Bill), clause by clause, and to note the amendments of the Committee.
Short Title
The Committee noted that the word “Ombudsman” was changed to” Ombud”.
The title of the bill was agreed to by the Committee as “Military Ombud Bill”.
Long title under the word “BILL”
The words “the Office of the Military Ombudsman” were omitted and substituted with the phrase “an Independent Office of the Military Ombud.
The Committee accepted the amendment, without further discussion.
Clause 1: Definitions
The definition of “complainant” was deleted.
Members noted that there was consistency in the use of the word “Ombud”.
Members accepted this clause, as amended.
Clause 2: Office of Military Ombud
Members noted that in this clause there was again consistency in the use of the word “Ombud”.
The Committee accepted the clause without any further discussion.
Clause 3: Objective of Office
The Committee agreed to the clause with no amendments.
Clause 4: Complaints
It was noted that the original wording of clause 4 had been rejected and a new clause was inserted.
The heading of the new clause 4 was “Mandate of Office”. The new clause consisted of sub-clauses 4(1)(a) to (d) and 4(2).
These were read out as follows:
“4(1) The mandate office is to investigate complaints lodged in writing by-
(a) a member regarding his or her conditions of service;
(b) a former member regarding his or her conditions of service;
(c) a member of the public regarding the official conduct of a member of the Defence Force; or
(d) a person acting on behalf of a member.
4(2) For the purposes of this section, “conditions of service” bears the same meaning assigned to it in section 1 of the Defence Act, 2002 (Act No 42 of 2002), as amended.”
The Committee agreed to the amendments and to the clause.
Clause 5: Appointment of Military Ombudsman and Deputy Military Ombudsman
Members noted that there was continuity with the word “Ombud”.
In sub clause 5(1) new words “on recommendation of the National Assembly” were inserted after the words “President may” and sub clauses 5(1)(a) and (b) were deleted.
New sub clauses were inserted in clause 5 as follows:
“5(2) The National Assembly must recommend persons nominated by the Portfolio Committee on Defence and Military Veterans and approved by the National Assembly by a resolution adopted with a supporting vote of a majority of its members.
”5(3) Due regard must be given to-
(a) participation by the public in the nomination process;
(b) transparency and openness; and
(c) the publication of a shortlist of candidates for appointment.
5(4) The Ombud must-
(a) possess adequate knowledge of the Constitution, and must have legal knowledge; and
(b) have knowledge of or experience in military and public administration that was gained over a period of 10 years.”.
The wording of the original sub clause 5(4)(b) was deleted and was substituted by “such remuneration may not be reduced and such terms and conditions may not be adversely altered during the term of office of the Ombud and Deputy Ombud.”
New sub clauses 5(9) and (10) were inserted, which read as follows:
”5(9) The Ombud may be removed from office on-
(a) the ground of misconduct, incapacity or incompetence;
(b) a finding to that effect by the Portfolio Committee on Defence and Military Veterans; and
(c) the adoption by the National Assembly of a resolution calling for the removal of the Ombud from office.
5(10) A resolution of the National Assembly concerning the removal of the Ombud from office must be adopted with a supporting vote of a majority of the members of the National Assembly.”
Members agreed to the clause, as amended.
Clause 6: Powers and functions of Ombudsman and Deputy Ombudsman
There was continuity on the word “Ombud”.
The words “section 4” were deleted from sub clause 6(1) and were substituted with the words “in accordance with this section”.
The wording of sub clause 6(2) was deleted and was substituted with the words “A complaint must be lodged in writing with the office in the prescribed manner”.
The wording of sub clause 6(3) was deleted and was substituted by the words “On receipt of a complaint the Ombud must register the complaint as may be prescribed”.
The word “confirm” in sub clause 6(5)(a) was deleted and was substituted with the word “uphold”.
Sub clause 6(6)(a) to (c) were added to sub clause 6(6).
Sub clause 6(8) was deleted, and was replaced by the words “If the Ombud upholds the complaint, the Ombud must recommend the appropriate relief for implementation to the Minister”.
Mr A Maziya (ANC) reminded the Committee that in sub clause 6(9) the Committee had agreed that the words “as the Minister may determine” had to be omitted.
Mr D Maynier (DA) raised his objection to this clause. His objection was noted.
The majority of other Members agreed with the clause.
Clause 7: Limitation on jurisdiction
There was continuity on the word “Ombud”.
The word “civil” was omitted and was replaced by the word “civilian” in sub clauses 7(1) (b and c)
Sub clause 7(1) (d) was deleted.
The word “prescribed” was inserted after the word “time” in sub clause 7(2) (b).
Anew sub clause 7(2) (e) was inserted which read as follows “(e) a matter has been referred for resolution through any other dispute resolution mechanism available”.
The Committee agreed to the amendments.
Clause 8: Independent and impartiality
There was continuity on the word “Ombud”.
In sub clause 8(2) the words “Secretary for Defence and Chief of the Defence Force” were deleted.
The words “hinder or obstruct the Ombud or members of his or her staff in the performance of his or her or their functions” replaced the words “interfere with the functioning of the Ombudsman” in sub clause 8(3).
Mr Maynier raised an objection on clause 8 and the objection was noted.
The Committee agreed to the amendments without further discussions.
Clause 9: Staff
There was continuity on the word “Ombud”.
In sub clause 9(1) the words “after the consultation with the Minister” were deleted.
In sub clause 9(3) after the word “Ombud” the words “and Deputy Ombud” were inserted.
Clause 10: Finances
There was continuity on the word “Ombud”.
The Committee accepted the clause without any discussion.
Clause 11: Reporting
There was continuity on the word “Ombud”.
The Chairperson read out that the words “and the Portfolio Committee” should be inserted after the word “Minister” and the words “and the Portfolio Committee on Defence and Military Veterans” were also inserted after the word “Minister” in sub clause 11(2).
Mr Maziya reminded the Committee that the amendment to sub clause 11(2) was not agreed to by the Committee, as the Committee had an automatic right/duty to call the Ombud whenever the Committee needed an explanation or clarity.
Members agreed, and the amendments that the Chairperson had just read out were not agreed to in clause 11(2).
The Chairperson noted that sub clause 11(3) had been deleted and replaced with a new sub clause reading as follows “The Minister must table the report contemplated in sub section (1), in Parliament within one month of receiving such report from the Ombud”.
Mr Maynier noted that the DA had an objection to clause 11. His objection was noted.
The remainder of the Members accepted the clause.
Clause 12: Disestablishment, judicial management and liquidation
The Committee accepted the clause without any discussion.
Clause 13: Review
There was continuity on the word “Ombud”.
The Committee accepted the clause without any discussion.
Clause 14: Offence and penalties
There was continuity on the word “Ombud”.
The words “or their” were inserted after the words “of his or her” in sub clause 14(1).
In sub clause 14(2) the reference to “12” was omitted and substituted with “24”.
Members agreed with the amendments to this clause.
Clause 15: Regulations
In clause 15, the word “may”, after the word “Minister”, was substituted with the word “must”
There was continuity on the word “Ombud”.
Ms P Daniels (ANC) wanted clarity as to whether the proposal about user friendly-forms was captured in the Committee’s amendments.
The Chairperson said that it was captured under the new clause 4.
The Committee accepted the amendments, without further discussion.
Clause 16: Short Title
There was continuity on the word “Ombud”.
The Committee accepted the amendments, without further discussion.
Adoption of Bill
The majority of Members then voted to accept the Bill. Mr Maynier requested that his objections, as noted earlier, should be stated in the Committee’s Report.
The Committee agreed to Mr Maynier’s request.
Adoption of Committee Report
The Members then adopted the draft Committee Report on the Bill.
The meeting was adjourned.
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