Letters from the President, Memorandums of Understanding: Consideration, Committee programme

Defence

12 June 2013
Chairperson: Mr S Montsitsi (ANC), Mr J Maake (ANC)
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Meeting Summary

The Committee commenced by discussing the procedure for and content of the Committee’s programmes, after a query had been raised by a DA Member that although there was a large volume of work to be dealt with at the Committee, there had not, to date, been a set programme which made it difficult to deal with the work consistently. The Chairperson countered that he believed that although there was merit in having a draft programme, it was still necessary to have some flexibility. Members noted that the items of particular importance for the Committee were amendments proposed to the Special Pensions Act, the National Conventional Arms Control Committee (NCACC), and the Defence Review. However, one DA Member had made a special request that investigations were needed into deployment into the Central African Republic, and to the Democratic Republic of Congo. The request had previously been made to Members that they should notify the Chairperson directly of any issues that they wanted discussed, so that there could be dates allocated. The COPE and DA Members suggested that the draft programme not be adopted now, but that it be re-worked, but other Members felt that, particularly since there was a quorum present, it made sense to adopt the programme, with the proviso that it could still be amended. This was done, with the DA noting its objection to the process. Another Member made suggestions that the Committee Secretaries must meet on the future programmes, to block out times when each of the Houses was to meet, and try to find mutually-acceptable dates. He also cautioned that it was necessary to plan, well in advance, for study and oversight tours, which would need the Speaker’s sign-off.

Members next noted a number of letters received from the President, advising of employment of South African National Defence Force personnel in various other territories, in order to meet international obligations. A Member raised his concern that the President did not appear to be following the protocol set for notification, since in most cases the letters had been received well after deployment of the troops. Whilst the Committee was not disputing the right of the President to make the decision, Members had a right to be notified, and it was suggested that this be pointed out to the President. The Chairperson, however, noted that the problem was twofold. Firstly, the letters followed a chain from President to Department to Speaker to Parliament, which caused delays, and secondly, the provisions of the Constitution and the Defence Act were conflicting, for the Constitution, which was the supreme law, required mere conveying of information, whereas the Defence Act required information and explanations. The President was acting under the Constitution and his procedures were compliant. Another DA Member still expressed concern and asked for a special briefing by the Chief of the Defence Force and the Military Command Council. The majority agreed that Parliament needed to be informed timeously, agreed it would be useful to get a briefing from the State Law Advisers, and that a request would be made to set out the route that the letters took.

The final issue related to Memorandums of Agreement with various other states. Members felt that they had the right to know whether, with which states, and the subject matters of such memorandums and a request had been made to the Ministry of Defence, who had simply submitted copies of all MOUs to the Chairperson. It was agreed that any Member wishing to have sight of any MOU should request this from the Chairperson.
 

Meeting report

Second Term Committee Programme
Mr D Maynier (DA) tabled an apology for Mr S Esau (DA) who was going to join the Committee at a later stage.

Mr Maynier noted that there was a systemic problem in the committee, because the Members had a large quantity of business to take care of, but the Committee was continuously operating on a temporary rather than fixed programme. He asked how that would be solved, and said that he believed that the Committee needed to compile a detailed programme taking the Committee through to at least the third quarter, in September

The Chairperson said he was not quite sure which specific areas Mr Maynier was referring to. It was clear that in today’s meeting, the Committee needed to deal with the Letters from the President and Memorandums of Association referred to the Committee. At a later stage this Committee would need to deal with the presentation and proposed amendments for the Special Pension Act. It was necessary to get those drafted and interact with the State Law Advisers.

Further points that needed to be considered were the issue of the National Conventional Arms Control Committee (NCACC), and the Defence Review. He suggested that if Mr Maynier was referring to the report on the Central African Republic (CAR), he agreed that this report had to be made ready. If he was talking about the Waterkloof saga, he assured him that this particular issue would be tackled as soon as the report was handed to Parliament. However, he cautioned that the Committee should not be jumping to conclusions, and said that this was why, at this stage, the programme was more flexible than fixed.

Mr A Maziya (ANC) said that the matter of a programme had been raised before. The Chairperson himself had motivated the drafting of a programme, and he said it was necessary for the Chairperson to take due regard of whether Members had any responses or reaction to the matters that had been raised. In the last meeting, where the programme was being discussed, it was agreed that if Members did not necessarily want the programme circulated, or wanted certain items to be discussed despite the fact that they were not on the programme, this should be raised to the Office of the Chairperson, and due regard would be given to including them, or an explanation as to why they should not.

Mr Maziya said he had no problem with the concerns expressed by Mr Maynier, but wondered if Mr Maynier had in fact made any submissions that had not been considered for inclusion.

The Chairperson confirmed that Mr Maziya was correct, and that he was still seeking submissions from Members. That stance had not changed.

Co-Chairperson Mr J Maake (ANC) said that the two submissions from Mr Maynier would definitely be considered.

The Chairperson said that he would look at the submissions and report back to the Committee. However, what was before the Committee at the moment was the Committee Programme, Letters from the President and Memorandums of Understanding.

Mr D Bloem (COPE) asked whether was it possible for other Members to be told what the submissions of Mr Maynier were, so that they could be considered in the deliberations on the programme.

The Chairperson responded that the only problem with this was that the issues would not be able to be discussed at this meeting. He could give information on what Mr Maynier had raised in principle, but there was already a set agenda. It was for precisely this reason that all Members were asked to make submissions, so that dates for consideration of those submissions could be allocated.

He noted that Mr Maynier had requested was an investigation on the deployment of the South African National Defence Force (SANDF) to CAR. He noted that a report had been received from the Minister, but Mr Maynier was still calling for an investigation. The second issue from Mr Maynier was a request for a special hearing on the deployment of SANDF to the Democratic Republic of Congo (DRC).

The Chairperson asked if Members felt that they could adopt the Second Term Programme now, and the Third Quarter programme, subject to possible changes later.

Mr Bloem was not in favour of this, and in fact proposed that Members should not adopt the programme, stating that in his view it had not been well-worked. He suggested that it be re-worked and a special meeting called to adopt it.

Mr Maynier said that all Members wanted to find a way to compile and agree to a programme for the forthcoming quarters. He would, therefore, support the proposal from Mr Bloem that the programme for the two quarters not be accepted now, but instead that the documents be circulated and that every party be given a reasonable opportunity to comment on the programme and make inputs, then hold a short meeting to adopt the final programme.

Mr Maake said that all Members surely accepted that the programme to date was a draft one, which enabled the Committee to make the necessary logistical arrangements, but to leave it flexible enough for change. Even if it was not formally adopted, it would remain as a draft that the Committee Secretary could use as a basis to make arrangements. He pointed out that the National Assembly (NA) and the National Council of Provinces (NCOP) programmes were different, and a way had to be found to merge them.

Mr Maziya suggested that the Committee adopt the programme as a draft, on the understanding that there would be flexibility for additional matters or changes, and that the Committee give the administrative section permission to make amendments, where necessary. He pointed out that it was not easy to get a quorum for a joint committee, and he said it was a blessing that so many Members were present today.

Mr S Esau (DA) pointed out that there were two items on the programme that seemed exactly the same, namely the provision for Special Pensions to be dealt with, on both 20 June 2013 and Thursday 15 August 2013. He added that he felt that there was a need for more certainty. Unless the two secretaries from the NA and NCOP met to block out the times and dates when each of the Houses was meeting, there would continue to be disjuncture, and he felt that they must clearly identify dates and times that both parties were available. He further pointed out that under the current system, it was likely that applications for oversight visits could be left until too late, and reminded Members it was necessary to get the Speaker’s sign-off. Finally, he made the point that as well as needing more certainty around the programme, the Committee needed to meet more regularly and actively engage in oversight. He appealed to the Committee Secretaries to do the necessary preparatory work, set possible dates, and then allocate to them the important issues that needed to be discussed.

Ms N Daniels (ANC) concurred with points made by Mr Maziya and Mr Esau. She agreed with the importance of this Committee going out to do oversight. She would, for these reasons, support the consideration of the programme on this day. However, she wanted to make a point in relation to departmental briefings. The Special Pensions matters would require briefings from both National Treasury and the Department of Defence (DoD), but the latter was yet to brief the Committee as there were various issues that needed more clarity. She wondered if National Treasury had been invited to the meeting of 20 June. Both departments played a role in relation to the Special Pensions Act and its implications.

Mr E Mlambo (ANC) formally proposed for the adoption of the programme to date.

Prince M Zulu (IFP) seconded this, and the majority of the Committee adopted the programme.

Mr Maynier asked that the DA’s objection to both the programme and the process be noted, and the Chairperson told him this would be done.

Consideration of Letters from the President
The Chairperson said that there were several letters that had been distributed to the Committee, as follows:

- Letter dated 28 March 2013, which dealt with Extension of Employment of SANDF for Service Fulfilment of International Obligations of the Republic of South Africa (RSA) towards Southern African Development Community (SADC).
- Letter dated 8 April 2013, which dealt with the termination of Employment of Members of the SANDF in fulfilment of International Obligations of the RSA towards the CAR.
- Letter dated 17 April 2013, which dealt with Extension of Employment of SANDF for Service Fulfilment of International Obligations of RSA towards United Nations.
- Letter dated 17 April 2013, which dealt with Extension of Employment of SANDF for Service Fulfilment of International Obligations of RSA towards the DRC.
- Letter dated 17 April 2013, which dealt with Extension of Employment of SANDF for Service in Fulfilment of International Obligations of RSA towards African Union (AU) and United Nations (UN).

Mr Maake added that there was also a letter dated 4 January 2013, which dealt with Extension of Employment of SANDF for Service in Fulfilment of International Obligations of RSA towards CAR.

The Chairperson said that Members should have the reports on these letters from the President.

Mr Esau said that the Committee needed to raise an objection, because it was not the first time that the President was not following the protocol set out in terms of regulations, as to when the forces were deployed. This should be reported to the Committee and Parliament timeously. In most cases, the letters received by the Committee was received at the time of the meeting, instead of when the forces were actually employed or deployed to the different countries. There were timeframes and there should be compliance with them, but this had not happened. Whilst it was the right of the President to make the decisions, Members also had a right to receive the notices and both rights must be fully respected and complied with. He further added that, in terms of the Constitution, there were various items on which reports were needed. He reiterated that the Committee should report on that, and raise the issues until the President complied with and fulfilled the duty.

Mr Maake said that the Committee had deliberated on the point for some time. Firstly, the letters were not sent to the Committee, but were sent to the Speaker, and the Speaker sent the letters to the Committee. Secondly, the Constitution, which was the supreme law, simply said the President should inform the Committee. The Defence Act also said the President should inform the Committee, and even explain the expenses and so on, and the two Acts were seemingly in contradiction with each other. The letters from the President were based upon the Constitutional imperatives, not those set out in the Defence Act. Therefore the President acted correctly in merely informing the Committee, and the Committee could take that matter no further, for it could not insist that the Defence Act take precedence over the Constitution, without making a constitutional amendment to that effect.

Mr Bloem wondered what this Committee was supposed to do with that information. It made little sense to sit with letters that were essentially outdated, with the decisions having been taken some time previously.

The Chairperson said that it was true that the issues that Members were raising had been raised before. The spirit of the President writing to the Committee and Parliament was to inform the people of South Africa, through Parliament, that the country was engaged in those particular countries outside South African borders, for the purpose of peacekeeping. That was in sharp contrast with the manner in which the defence forces had been deployed in the past, to destabilise the countries. There was a long history and eventually both the Defence Act and the Constitution wanted to ensure that the deployment of military personnel outside the borders of South Africa should be reported to Parliament. It was in that context that the Constitution had captured the responsibility of the Head of State to report to Parliament. If the letters had arrived much earlier, they could have been raised in the House for a report by this Committee, either merely to report to the people, or for a debate on the presence of South African troops in the country, for peacekeeping purposes.

The Chairperson said that the problem was that it was a long chain, starting with the international relations sector, moving to defence, then to the President and finally to Parliament. At times, no fault could attach to the President, because of the long bureaucratic route the letters had to follow in order for them to finally arrive to the Committee. However, he agreed that once the Committee was able to look at the letters, the Committee could call for debate on certain issues reflected in the letters. That was not a problem. However, he pointed out that in terms of the Constitution, the power to deploy resided with the President, and that deployment came in terms of bilateral agreements, AU requests, or UN requests for the deployment of military personnel. Currently, there were talks about an African Permanent Standing Unit to be deployed to Africa, and all African countries would contribute to that African military peacekeeping force.

Mr Maake said that from a practical viewpoint, it should be accepted that this Committee could do absolutely nothing to control whether the letters came in early or late. He agreed that it would be of advantage if they were received earlier. However, Parliament could not change what was in those letters. The President was the Commander in Chief of the armed forces and did not have to ask anyone’s permission before deploying.

Mr Maynier said he wish to draw the attention of the Committee to the letter dated 17 April 2013, which dealt with the deployment of 1 267 Members of SANDF to the DRC, under the auspices of UNESCO. All Members of the Committee would be aware that it was on the basis of that authorisation letter that the SANDF participated in the New UNESCO Intervention Force. Members were also aware that this deployment was different from previous deployments because the new deployment was not a peace-keeping deployment but a peace enforcement deployment, where the SANDF might find itself conducting offensive operations in the Eastern DRC. For that reason, he noted that this Committee had a duty to ensure that the SANDF had adequate capacity to execute the mission, and that there would not be a repeat of what happened in the CAR. For that reason, he wanted to add to his previous two submissions, and ask for a special briefing by the Chief of SANDF and the Military Command Council on that deployment. As a party, the DA supported the deployment. However he believed that the Committee had a special duty to ensure that the SANDF had adequate capacity to execute that mission, and for that reason he urged that the Committee should have a special hearing.

Mr Maynier said that the point made by Mr Maake was incorrect, because if his understanding was correct, there really was no purpose in having the hearings, because Parliament could do nothing about the letters. Parliament had powers under the Interim Constitution to terminate any deployment of the SANDF by a resolution of both Houses of Parliament. In fact, if Parliament did not approve of deployment, and if it was led by a resolution, it was possible to terminate that deployment.

The Chairperson said that the Committee should note the deployments that had taken place. Due note would be taken of the comments made by Members of the Committee, as well as the problem of letters arriving late. He said the Committee had tried to address this issue in the past, but was not sure if it would win the battle, because the Speaker maintained that there was nothing he could do if the letters themselves arrived late to Parliament. This could only be verified by going through the chain and checking with the Presidency, which, it must be remembered, was not always the office initiating those letters, since the requests came initially from various bodies like the UN, AU, SADC, who had initiated discussions and asked South Africa to participate in peacekeeping. He reiterated that he was not so sure that the question of late arrival of letters was anything that this Committee could in fact address.

Ms Daniels said that it was up to the Committee to make sure that those letters came in timeously and it was also important that the matter of the letters and information that they contained must be put to rest once and for all. She noted Mr Maynier’s point that the Interim Constitution gave Parliament the power and said it was necessary to seek clarity on this point and put matters to rest. The Committee needed to deal with other important matters of the Department of Defence.

Mr Mlambo noted that the Interim Constitution’s provisions were often raised when Members wanted to use it for the purposes of making a political point. The Committee honestly did not want to take that route. Mr Maynier should have understood because this issue had been raised time and again. He suggested that it would be useful to get clarity, probably ideally from the State Law Advisers, around the matter of letters from the President, because it was clear that there was not a unified understanding of that matter.

Mr Bloem said that the current Constitution stipulated that the President should inform the Committee of deployment within seven days. Therefore, it was important for the Committee to enforce the Constitution of the country, and hold the Executive responsible to Parliament, so that the President would not be able to do what the apartheid government had done.

Mr M Manzini (ANC) said that if there were requests that South Africa should go out and help with peacekeeping, Parliament should be informed timeously because when something happened MPs were obviously going to ask questions.

Mr Maziya said it would be wrong if the Members were to close off this session leaving the perception that the President did not respect Parliament. The process of letters reaching the Committee had clearly become delayed. The President would sign letters, and these were then sent to the relevant department, and from there to the Speaker. He reiterated that the Members should request the state law advisors to help, and that a request should also be made to explain the exact route those letters took, and why the Speaker did not give letters at the time they were submitted.

Mr Maynier said that another delay was that the Constitution required the Committee to receive those letters in seven days if Parliament was not in session. If there was another deployment of the SANDF, and the Presidency did inform the Committee as required by the Constitution, those letters should immediately be distributed to the Members of the Committee.

The Chairperson said that the Committee would try to do some investigations into the protocol of the letters. The responses would be sought from the Speaker and would be made available to the Members of the Committee. Arrangements would also be made for the Committee to be addressed by a State Law Adviser on the issues around the letters. All letters would be processed and dispersed at Committee level and there shouldn't be letters flying around.

Memorandums of Understanding (MOU)
The Chairperson said that there were several Memorandums of Understanding (MOUs) with other countries, which had been requested from the Ministry of Defence. They were not to be discussed at the Committee; the question had merely been asked what MOUs existed, with which countries, but the Ministry had decided to bind them and send them to the Committee for information. Each Member would be handed the pack for two days to be able to go through them, whereafter they should be returned to the Chairperson’s office.

Mr Maynier suggested that if a Member was interested in any MOU, s/he  should write to the Committee Secretary to be provided with a copy.

Ms Daniels said that if the MOUs were not classified, Members should be able to access them.

The Chairperson said that Members could write to the Secretary to request any MOUs.

The meeting was adjourned.
 

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