Military Ombud Bill [B9B-2011]: NCOP amendments, Report on Presidential Review

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Defence and Military Veterans

13 March 2012
Chairperson: Mr M Motimele (ANC)
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Meeting Summary

The Committee firstly considered the amendments that the NCOP Committee had proposed to the Military Ombud Bill (the Bill). The amendments were set out in the Report sent through by the NCOP, but the DA members raised objections that there was no motivation or explanation for the amendments. The Committee considered Rules 270(1)(a) and (b) and Rule 270(2). These stated that this Committee may call for a Report or consult with the NCOP Committee Chairperson. The Parliamentary Law Adviser gave an interpretation that this meant that there should be some consultation process with the NCOP committee suggesting the amendments. The DA’s point was that without a further explanation or consultation, it was not possible to assess whether the amendments would result in an independent ombud. The ANC Members objected to this point, saying that the DA had asked that questions numerous times, and the fact that it was again being raised was seen as a delaying tactic. ANC Members thought that the amendments were self-explanatory and showed that the NCOP had considered the issues previously considered by the NA Committee. They regarded the consultation process as optional, not mandatory, and that this Committee had the power to decide whether to adopt the Bill with the NCOP amendments. An ANC member believed that no amount of legal opinion would sway the opinions of Members, and said that this was a political issue on which the Members must simply vote. The Committee then voted on each of the amendments proposed by the NCOP, and the majority of the Committee voted in favour of each, with the DA specifically recording its objections, as also a protest that the Chairperson had not allowed the Parliamentary Law Advisers to explain the legal implications of the amendments to the Committee.

The Committee then turned to consideration of the draft Committee Report on the Presidential Review of State Owned Enterprises, which it had considered at previous meetings. An ANC member suggested that the wording in point 4.1 had to be tightened to record a specific recommendation from this Committee that legislation be amended, to reposition Denel into the Department of Defence and Military Veterans, rather than being a state owned entity. A DA Member proposed, firstly, that the function of Armscor be subsumed within the Department, so that Armscor would no longer be a state owned entity (largely for reasons of cost-saving), and, secondly, that Denel be privatised. The DA was asked to motivate this further and Members debated the issues, with some making the point that incorporation of Armscor would not necessarily lead to cost-savings, that South Africa had to move to developing its own manufacturing capabilities, that international provision of arms had led to other problems. They were of the view that Denel should not be privatised as it should not end up in foreign hands. The majority of Members decided to adopt the Report, with the amendment proposed to point 4.1, but rejected the amendments proposed by the DA. The DA objected to the adoption of the Report and its proposed amendment.

Meeting report

The Chairperson noted that the Military Ombud Bill [B9B-2011] (the Bill) had now been returned from the NCOP, with amendments, and there was nothing that compelled the NCOP to give motivations for the amendments it made.

Mr D Maynier (DA) said that it was the first time that this Committee had discussed amendments to a Bill it had received back from the NCOP, which meant it was pioneering new ground. He said that he had checked the Rules of the National Assembly, and noted that this was set out in Rule 270(1)(a) and (b).

He read out the wording:
“270.     Referral of bill to Assembly committee

(1) If the Council (the NCOP) rejects a section 75 bill referred to it in terms of Joint Rule 1 81, or passes the bill subject to amendments, the Speaker must refer the bill and any amendments proposed by the Council to the portfolio committee concerned or any other appropriate Assembly committee, for a report on the Council’s rejection of the bill or on the amendments proposed by the Council; and recommendations on whether the bill should be passed again with or without any amendments, or whether it should not be proceeded with.”

He said that although this Committee had a report of the amendments, it did not have a report on those amendments and, in his view, could make no recommendation whether it had to be passed with or without amendments. He asked whether the process followed by the Committee complied with the Parliamentary Rules.

The Chairperson asked whether the Parliamentary Law Advisers could give guidance on the matter.

Mr Maynier said that he thought it might be procedurally incorrect that the NCOP did not give any motivation or explanation for the amendments it was proposing to the Bill.

The Parliamentary Law Advisor quoted rule 270(1)(a) and (b), and pointed the Committee to Rule 270(2)(a) which stated that:

“ 270 (2)The committee to which the bill is referred-
(a) may consult with the appropriate Council committee or the Chairperson of that committee;”

She said that there should be a report by the Council committee for this Portfolio Committee to consider, or there should be consultation with the Chairperson of the NCOP committee.

Ms P Daniels (ANC) said even though the Rules gave the Committee the option of a getting a report or holding consultation, the Portfolio Committee had deliberated on the matter that the Ombud was not a Chapter 9 institution, and therefore it was not necessary that Parliament resolve, vote, go through nominations or appeal on this position. It seemed that the NCOP also had focussed on the same issues the portfolio committee discussed.

Mr C Kekana (ANC) thought the Rules to mean that the Portfolio Committee had an option to consult with the NCOP Committee or chairperson. It could choose whether or not to do this.

Mr Maynier reiterated that the Rules said that the Portfolio Committee could require a report or a consultation. The Committee had an option, and could consult with the NCOP Committee or Chairperson. This Committee did not have a report, although the Rules said that the NCOP should provide a brief motivation. He noted that although the amendments were set out, there was no motivation for them.

Ms Daniels (said that the Portfolio Committee had deliberated on the amendments, and that the NCOP had done the same.

The Chairperson said that there was a report from the Select Committee in the NCOP. He was not sure whether it would answer this Committee’s questions on the procedure to be followed.

Sheik S Esau (DA) agreed that this Committee had to get a report, because Members did not know of the NCOP motivation for omitting some points from the Bill. If the NCOP sent through its motivation, then this Committee would understand the reasons behind the changes. That was why this Committee had a choice whether it could consult or not consult with them. If this Committee had to consider recommendations that potentially changed the fundamental nature of the Bill, this Committee had to be appraised of the reasons. He added that this Committee had had to report to the NCOP Committee on the reasons for the amendments proposed, to enable the NCOP to consider them in full, and surely the reverse position applied. It was at this Committee where the final decisions and recommendations would be made for Parliament to adopt the bill. 

The Chairperson asked to which Rule Members were referring.

The State Law Advisor quoted Rule 270 1(a) and said that the “report” referred to was a report of this committee.

The Chairperson said that this Committee had to decide to accept the amendments or not.

Ms N Mabedla (ANC) said that issues had been debated in the NCOP. She moved for the adoption of the amendments.

The Chairperson said, before moving for adoption, he wanted to go through them to make sure everybody understood them. (See attached document for Amendments 1-4)  

Sheik Esau asked whether the Parliamentary Law Adviser could advise the Committee about any other embeds, and the criteria for them.

The Chairperson said this had been debated and general consensus had been reached that the Military Ombud was not a Chapter 9 institution.

Sheik Esau pointed out that he was a new member, and thus would like to receive the explanation.

Ms H Mgabadeli (ANC) replied that it was his party’s responsibility to brief him. It would be unfair on other Committee Members to repeat it.

Mr Maynier said he still wanted to understand the implications of the amendments. On 30 August 2011, the Parliamentary Law Adviser defined the Ombud as: “… an office provided for by the Constitution or by action of the legislature or Parliament, headed by an independent high level public official, who is responsible to the legislature or Parliament, and who received complaints from aggrieved persons against government agencies, officials and employees or who acted on his own initiative/promotion and had the power to investigate and recommend corrective action and issue a report.”

He now wanted to ask the Parliamentary Law Adviser what the implications of the NCOP amendments would be for the independence of the Military Ombud. He wondered if the Military Ombud, as contemplated by this Bill, was actually an Ombud at all.

The Chairperson said that this was not the first time that Mr Maynier had posed that question.

The Chairperson asked that Members proceed to consider the amendments set out in the attached document.

The Committee discussed and agreed that amendment number four was ambiguous.

Members agreed that line 43 on page 3 of the Bill had to read:” (11) The President may remove the Ombud and the Deputy Ombud from office …..”

Ms Mabedla moved for the adoption of the amendments.

Mr Maynier said that he was still waiting for the Parliamentary Law Adviser to answer his earlier question.

Mr E Mlambo (ANC) believed that Mr Maynier was not being fair to the Committee. He had asked the same question at a previous meeting, and it seemed that he was simply repeating the question in a different way. He suggested that if the DA did not like the amendments, it must simply reject them.

The Chairperson said that the procedure set out prescribed that all amendments needed to be agreed to. The Committee had not been consistent. He proposed that Members must go through the amendments one by one.

Mr Maynier said that there had to be opportunities to deliberate, in order to understand the legal implications of the amendments. He suggested that there must first be the opportunity to deliberate, after which the Committee could deal with the Bill clause by clause.

The Chairperson said that the Parliamentary Law Adviser had explained this before and could do it again.

Mr A Mlangeni (ANC) believed that Mr Maynier was wasting time and using delaying tactics, and that the DA would never be satisfied with anything the ANC proposed.

Mr C Kekana (ANC) asked for ‘autonomous’ to be defined. If the parties held differing views of what this meant, then legal advice would not resolve what was essentially a political issue, and in this case the Members must simply hold a vote.

The Chairperson asked whether Mr Maynier agreed that the question he asked had been asked and explained in the Committee meeting before.

Mr Maynier said that the amendments of the NCOP were new, and could have different implications.

Mr Mlambo said that although it was true that the amendments were new, the question was old. He felt that Mr Maynier was being unfair.

Ms Daniels said that the amendments were new, but what the NCOP was suggesting was not new. It had been discussed already in this Committee. This Committee had concluded that the Military Ombud would not be the same as another type of Ombud in another capacity. The matter had been fully debated.

The Chairperson said that there seemed to be consensus that the issue had to be dealt with.

Mr Maynier said that the ANC members’ argument was illogical and repeated that this Committee, in the light of the new amendments, had to ask whether this Bill, with those new amendments, would allow for the appointment of an independent Military Ombud. In his opinion, they would not.

Ms Mgabadeli asked Mr Maynier not to try to influence the Parliamentary Law Advisers to adopt the DA interpretation of the Rules.

Mr Maynier countered that this was an unfair statement. The Parliamentary Law Adviser would make her own determination, as he was not influencing her at all. He believed that she deserved to have an apology from Ms Mgabadeli.

Mr J Maake (ANC) concurred with Mr Kekana’s view, and proposed a vote.

The Chairperson said that questions needed to be answered, but he would not allow delaying tactics.  The Committee could go through the amendments one by one, and see whether consensus could be reached in this manner.

Mr Maake suggested if there was no agreement that each amendment had to be put to a vote.

The Chair said that the amendments had been read by everybody. He would name them one by one. He named the first amendment.

Mr Maynier said that his question still stood as to why the NCOP proposed the amendment and what the implication of the amendment would be.

The Chairperson said that this Committee had the power to agree or disagree with the amendments proposed by the NCOP, and it had to use its power to do so.

He called out Amendments 2, 3, and 4, and most individual members voiced their agreement.

The Chairperson said that the procedure prescribed that the Committee Report had to be read after the adoption of the amendments.

Mr Maynier asked whether the Committee was not required to vote on every amendment. He wished to record his objection to all four.

The Chairperson said that procedurally, every amendment had to be read, moved, seconded and any objections must be recorded. He had not heard any objections.

The Chairperson then read through the Committee Report (see attached document)

The majority of Members indicated their acceptance of the Bill and Report.

Mr Maynier recorded his objection to all four amendments and the Report read at the end. He strongly objected to the fact that the Chairperson did not allow an opportunity for the Parliamentary Law Adviser to answer his questions. He wanted to place this on record, saying that this was becoming a trend. There were previous occasions when no legal opinion from the Parliamentary Law Adviser was allowed.

Mr Maake said that nobody refused anything. Mr Maynier should have stated his disagreement with the individual amendments on particular points. He only objected to the amendments because he disagreed with the ANC. He suggested that the Committee could vote again.

Ms Daniels asked whether it could go on record that what Mr Maynier was saying was not a true reflection of what happened.

The Chairperson said that nobody refused Mr Maynier an answer from the Parliamentary Law Adviser, but that Members felt that question asked by Mr Maynier had been answered many times over before by the same Parliamentary Law Advisers.

The Chairperson said that this matter had been dealt with sufficiently and that everything that needed to be recorded had been recorded.

Draft Committee Report of the Portfolio Committee on Defence and Military Veterans for submission to the Presidential Review of State Owned Enterprises
The Chairperson asked whether all members had the opportunity to look at the Committee’s draft Report on the Presidential Review Commission report on the State Owned Enterprises. It was not the first time this draft Report had been discussed in this Committee and he asked whether any member wanted to suggest any amendments. 

Mr Maake referred to point number 4.1, in the second paragraph, which dealt with the refocusing of Denel. He said that the wording was not strong enough and suggested that it had to read as follows: “Following the above, the Committee is of the view that the current listing of Denel as a private company, in terms of the South African Companies Act (No 61 of 1973), should be reviewed in order for the entity to report to the Minister of Defence and Military Veterans.” He suggested that the following addition be made: “It is therefore the recommendation of the Committee that the legislation be amended in order to reposition Denel into the Department of Defence and Military Veterans.” He suggested this addition because he had felt that the existing wording was not strong enough, because it only suggested what the view might be, whereas he wanted the Committee to take it further and legislate the amendment.

The Chairperson asked whether the current statement was not strong enough.

Mr Maynier said that the DA had considered, firstly, whether the function of Armscor could not be subsumed within the Department, so that Armscor then ceased to exist as a State Owned Enterprise (SOE), and, secondly, whether Denel should not be privatised.

Mr Mlangeni asked where these suggested amendments had to be fitted into the document.

Mr Maynier replied that they could fall under Programme One: Defence Acquisition. He wanted to make these suggestions under point 2.3 of the report as an additional bullet point 4.

The Chairperson asked for the views of other Members on the DA recommendation.

Ms Mgabadeli asked why Mr Maynier had suggested this.

Ms Daniels disagreed with both suggestions. She said that Armscor’s current positioning was good.

Mr Mlambo supported Ms Daniels.

Mr Maake suggested that Mr Maynier be granted an opportunity to explain his suggestions.

Mr Maynier said that Armscor’s core function was defence acquisition. The board travelled all over the world to arms shows, costing the state millions of rands. This function could be incorporated into the Department, as a cost saving exercise.

Mr Mlangeni proposed an amendment to Mr Maynier’s amendment. He suggested that, instead of phrasing this as a question “whether the functions of Armscor should not be…”, there could be an additional bullet point 4, reading “We recommend that the functions of Armscor be subsumed into the Department of Defence.” He thought this would strengthen bullet point 2 under Recommendations, which read: “The Conceptual framework for the repositioning……”

The Chairperson asked whether other members were in agreement.

Mr Maynier said Mr Mlangeni’s proposal was not feasible, because bullet point 2, to which he had referred, sought to “improve the relationship between Armscor and the Department of Defence (DOD).” His was that Armscor should cease to exist as an entity.  The Committee had to consider whether it found merit in this proposal or not.

Mr Kekana asked what the international trend was with developing countries. Even if the Department of Defence were to incorporate the functions of Armscor, officials may still have to travel around to arms shows. He was more inclined to an Armscor that would beneficiate smaller manufacturers, producing items like rifles and bullets. He urged that the country should be trying to do things for itself, instead of always importing from overseas. The Arms Deal was a case in point, where the sellers gave gifts as incentives, but when South Africans accepted the gifts it was tagged as corruption. South Africa should manufacture products and create jobs and compete with other international manufacturers. The raw materials had to stay here instead of being shipped overseas and used to create jobs in manufacturing overseas. He urged that problems had to be dealt with. He wanted to see a paradigm shift where Africa developed like all other countries as an equal partner. Africa had received hand-outs for a very long time. The international arms industry also used South Africa as a “dumping ground” for equipment and technology which had become outdated and unwanted and this had caused other problems such as corruption.

The Chairperson said that all question could not be answered immediately, research would have to be commissioned and benchmarks set. He was not sure whether the Members had experience of this process.

Mr Mlambo said that the meeting had not reached a conclusion on the first point.

Ms Mgabadeli said she was happy that Mr Maynier had been asked to explain his suggestion, because the issue had been examined. She believed that Mr Kekana had explained matters well and that incorporation of Armscor into the DoD might amount to merely moving a problem around, without actually addressing it.

Mr Maake said that the Department of Defence had specific functions. It had no functions that spoke to the production of arms, but rather to defending the territory.  Although he had heard suggestions around international benchmarking, he pointed out that no army in the world was making bullets. He rejected the addition by Mr Maynier and the amendment by Mr Mlangeni. He also proposed that the Committee reject the suggestion that Armscor cease to exist as an SOE.

Mr M Mncwango (IFP) said that exercise described in bullet point 2, which dealt with finalising the conceptual framework for the repositioning of Armscor, had to be finalised. Some of the recommendations could also address or include Mr Maynier’s proposal, that Armscor functions be incorporated into the Department, and that Armscor ceased to exist as an entity. In the meantime, however, he agreed that this could be added as bullet point 4, until the process of the conceptual framework had been completed.

Mr Esau said that the input about Armscor producing arms was not correct. Armscor acquired arms, and Denel manufactured arms. Mr Maake’s statement implied that the nature of Armscor would change to include the function currently performed by Denel. He agreed with Mr Mncwango that the process of adjusting the conceptual framework could also touch on this issue of incorporating Armscor’s functions into the Department.

Mr Maake withdrew his statement.

Mr Mlambo referred to the second issue of privatisation. He did not agree that Denel had to be privatised, stating that whilst most local companies would not have sufficient funding to purchase Denel, there were many foreigners who could, and he believed that it should not be foreign-owned; Denel was part of the security framework of the democratic South Africa, and could not belong to a foreign individual or entity.

Mr Maake said that if a private entity owned Denel, it was possible that this entity may decide to start a war in another state in order to sell arms and ammunition. He pointed out that South Africa should never allow a private individual to own weapons and he rejected the suggestion to privatise Denel.

The Chairperson noted that the majority of the Committee had rejected the amendments proposed by Mr Maynier.

The Chairperson also noted that the majority of the Committee were in favour of the other amendments proposed by Mr Maake.

The majority of the Committee voted in favour of adopting the Committee Report. Mr Maynier recorded the DA’s objection to that Report.

The meeting was adjourned.

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