Department of Defence on the Employment of the South African National Defence on the Employment of the South African National Defence Force for service in-cooperation with the South African Police Services

Meeting report

Nomination of Acting Chairperson
Mr Gurshwyn Dixon, Committee Secretary, said that since the Chairperson was absent the Members of the Select Committee should nominate an Acting Chairperson for that meeting.

Mr A Matila (ANC, Gauteng) nominated Mr M Mokgobi (ANC, Limpopo) as Chairperson, seconded by Mr V Manzini (DA, Mpumalanga), and Mr Mokgobi duly took the Chair.

Employment of the South African National Defence Force (SANDF) for service and cooperation with the South African Police Service (SAPS) during the visit of US President Barack Obama, June 2013: Department of Defence briefing
Major-General Mbulelo Phalo, Operations: South African National Defence Force (SANDF), noted that the Select Committee had asked the Minister of Minister of Defence and Military Veterans, Ms Noluthando Maphisa-Nqakula, to brief this Committee on the employment of the South African National Defence Force (SANDF) for service and cooperation with the South African Police Service (SAPS), specifically during the visit of the American President Barack Obama, in the period 28 June 2013 to 01July 2013.

He outlined that the Department of International Relations and Co-operation (DIRCO) was the leading department for international visits, and the Department of Defence (DOD) did therefore not lead on issues around the visits of heads of states.

Mr A Matila (ANC, Gauteng) suggested that the Committee needed to check who was representing the Department of Defence, their rank, and asked who was the accounting officer in the Department of Defence.

Mr L Nzimande (ANC, KwaZulu Natal) said that the delegation from SANDF was attending in its capacity as representatives of the department who could explain the joint operations assisting the South African Police Service (SAPS) during the visit of the American President. He agreed in principle with Mr Matila, that at some stage the Secretary for Defence should be asked to come to the Committee to explain the structure and related matters of the Department of Defence, but in view of the specific nature of this request, perhaps the delegation could continue with its presentation.

Colonel Pieter Harmse, Joint Operations: SANDF, said that the aim of the briefing was to give an overview from the Defence Staff Council on the involvement of the SANDF in co-operation with SAPS, and support given to the other state departments during the visit by President Obama to South Africa from 28 June till 01 July 2013. His presentation would focus on the background, planning process, SANDF tasking, resources allocated, command and control, airspace management, and financial estimate.

Colonel Harmse outlined the background. US President Obama arrived in South Africa on 28 June 2013, at the AFB Waterkloof Military Base. He stayed in Gauteng from 28 to 30 June 2013, having Presidential meetings with President Jacob Zuma. President Obama also visited the Johannesburg University (Soweto Campus), and was also treated to a state banquet.  Between 30 June and 01 July 2013, he visited Robben Island and the Desmond Tutu Foundation in the Western Cape. President Obama had travelled throughout by air, using resources based at AFB Waterkloof. However, there was a backup plan also for road travel if air travel had been unable to be used.

Colonel Harmse said that the first meeting of the planning process took place on the 15 June 2013, at the OR Tambo Facility of DIRCO in Pretoria, and was chaired by the Director-General of DIRCO. From there, a joint instruction was sent out. On 19 June the Aviation Sub-Committee was formed, to ensure smooth running between departments. Everything was done under the lead of DIRCO. The SANDF later put up Natjoints Instruction and departmental directions, on the 21 of June, which had also requested Presidential Authority, as provided by the Constitution, for working jointly with SAPS. The final co-ordination meeting was on 25 June 2013 and the final Natjoints meeting was on 27 June 2013.

Col. Harmse said that the SANDF tasking consisted of ground forces support from the Western Cape, who assisted the SAPS by manning the high grounds to check that there were no suspicious movements, specifically around Robben Island and the harbour area. Air operations involved airspace management, and trooping of high risk forces, run from Air Force Base Waterkloof. The rest of the airspace was run by Airports Company South Africa (ACSA). Maritime security in Cape Town was also established, mainly around the harbour and Robben Island. The Presidential Medical Unit was responsible for looking after the heads of states visiting South Africa, to make sure that all necessary medical support was available. Command and control at provincial and national level were involved.

Col. Harmse said that the resources allocated were land forces in the Western Cape, with 1 Platoon; air forces consisted of 2 ORYX Helicopters in Gauteng and 2 ORYX Helicopters in the Western Cape; and maritime forces of 1 FSG, 2 Harbour Patrol Boats, and 1 Operational Diving Team. The Surgeon General was placed for the Presidential Medical Unit in Gauteng and Western Cape, and the CBR Detection Team. In total 308 personnel were utilised for that mission.

Mr Harmse concluded that the SANDF personnel cost for the mission amounted to R54 870, Goods and Services amounted to R173 992, and the total expenditure was R228 862.

Discussion
Mr Matila welcomed the presentation from the Department of Defence. He asked why there appeared to be such as difference in resources allocated to the visit by the US President and those allocated for other visiting presidents, citing a recent example of the visit by the Nigerian President. He also asked why President Obama chose to use his own security resources and why it was assumed that South African resources were not sufficient

The Chairperson interjected that the presenters should not answer that question if there were any political implications; only technical issues should be expanded upon.

Maj-Gen Phalo said that he would not attempt to answer that question. He reiterated that the lead department for this and other similar operations was the Department of International Relations and Corporation (DIRCO), and the lead on security issues was the SAPS. Of course, there were processes that would go on, because there were many other departments that were involved, including the National Intelligence Agency (NIA) which did the threat assessment.

Colonel Harmse said that all the requests regarding President Obama’s visit to South Africa were done by the United States’ Embassy, in terms of the diplomatic notes to DIRCO. DIRCO sent all the diplomatic notes to all the relevant departments. The operations simply followed the joint decision by the Natjoints, as well as the Justice, Crime Prevention and Security (JCPS) Cluster to run the operations in a certain way.

Mr Matila said he was partly covered by that answer. His worry was the cost of the entire operations, for using 380 people.

Mr Nzimande said that some of those issues would be referred directly to the Joint Defence Committee, and questions had been raised in that committee. The DOD officials had merely outlined the normal procedures for these operations. He reminded the Committee that security provided was not only benefiting the US President but the general population of South Africa. It Had an undercover operation wanted to attack the US President at a place like the Waterfront, it was likely that innocent lives could also have been lost.

Mr Nzimande proposed that the Committee note the report.

Mr Matila said that, in light of Mr Nzimande’s remarks, he would propose the adoption of the report,

The report was seconded and then adopted by the remainder of the Committee. The Report outlined that the Committee was satisfied, after receiving the  briefing, on the employment and cost implications for this operation.

Rules Board briefing on draft Rules relating to International Criminal Court appeals
Mr Raj Daya, Secretary: Rules Board, Department of Justice and Constitutional Development, said the briefing would give the Committee some background on what the Rules Board did, the implications of the draft Appeal Rules, the Rome State and the International Criminal Court (ICC).

Mr J Balkenshine, State Law Adviser, Department of Justice and Constitutional Development, said that the International Criminal Court was brought into law on 01 July 2002, by the Rome Statute. A number of states were parties to the International Convention, and the International Court was formed when 66 states had signed. The Rome Statute basically set out the obligations of the signatory states,  and required them to assist the International Criminal Court in the punishment of certain crimes against human rights. These crimes included genocide, war crimes, and crimes against humanity. There was also a fourth crime, that was not defined in terms, which was simply a broad category of crimes against human rights.

Mr Balkenshine said that South Africa had localised the requirement to assist the assistance to the International Criminal Court by implementation of the South African Rome Statute of the International Criminal Court Act, No 27 of 2002, which came into force on 18 July 2002. This was referred to, for clarity, as the “Implementation Act” whilst the principal international Act that set up the International Criminal Court could be referred as the “Rome Statute”.

Mr Balkenshine noted that the ICC had its seat at the Hague. Both the Rome Statute and local laws however provide that the ICC could also establish seats in other countries. The purpose of the ICC was to prosecute perpetrators who had committed the crimes mentioned, after 01 July 2002. Member states, as already indicated, were expected to assist the International Criminal Court. It was important to note the concept of complementarity. The concept entailed that individual party states were entitled to exercise their own jurisdiction and could try alleged perpetrators in their own local courts. The ICC would prosecute persons where the individual state was not in a position to investigate and prosecute, or where it,  for international reasons, did not wish to do so, or where it was not practicably viable.

Discussion
Mr Matila asked which member states had subscribed to the International Criminal Court, and said that there was an international outcry that African countries were mostly affected when it came to criminal prosecution in the ICC. South Africa was following international law. However, there were countries like Israel who seemingly did as they wished internationally, but would not be brought before the ICC. The same applied to Americans who claimed to be wanting to protect their country. Other countries in Africa would be subjected to the ICC when they attempted to protect their own states, and this seemed to be singling out African countries. He asked if South Africa was obliged to follow the international law.

The Chairperson asked that the delegation should when answering this question, link it to the withdrawal of Kenya from the International Convention, and the consequences of this.

Mr Balkenshine responded that currently there were 136 member states who were party to the international statute. They had become party states because their respective governments agreed to do so, and the South African government was a signatory to and bound to not only the international law, but had also domesticated the international law into South African law by passing the Implementation Act.

However, there were also a number of states that were not parties to that international Convention and therefore were not obliged to assist and be part of the International Criminal Court. The United Nations had a prerogative to initiate an investigation through the ICC. It was not possible to him, offhand, to indicate how many states in Africa were in fact member states, and why some had opted not to be members.

Mr Daya added that one of the biggest nations that had not acceded to the International Convention was the USA. There was a listing of member states, which was available for the Committee, but it might be more interesting for Committee Members to consider the glaring exceptions such as the USA. Mr Matila had made the point that some negative consequences could in fact flow to the African states who had been signatories, and the fact that the ICC seemed to be busy with cases from Africa. This really spoke to a political process. All that the Department could do would be to respond on the obligations that South Africa had as a signatory to the Rome Statute, and how that obligation translated into the rules that would have to be drafted in South Africa, to give effect to the processes to which South Africa was a signatory.

He said that from the perspective of the international obligations, South Africa’s own Rules Board had to have rules around the appeal procedures to the existing Implementation Act. He could only respond on that point. He could not comment further, because this was a political terrain that needed a political answer.

Mr Matila said that politicians were very often asked to deal with legislation, and often the Department of Justice and Constitutional Development in particular noted that the matters were urgent. He thought that the appeal procedure might work for other countries but did not work for South Africa. He reiterated that he did not see the need for South Africa to be a signatory to the International Convention whilst the USA and Israel were not bound by it.

The Chairperson asked what happened or what would be the consequences when a member state to the International Convention withdrew from it, as had recently been seen in the case of Kenya.

Mr Nzimande said that Committee Members understood that the international instruments generally stood, unless they needed to be renewal or reviewed. This Committee was trying to ask a technical question on the legalities. The State had become a party to the treaty, but he did not know if there were provisions in that treaty for withdrawal.

Mr Daya said that he would send to the Committee Secretary the list of African countries who were signatories to the International Convention. He commented that the challenges of Kenya were known, but he understood the concerns from African countries whether the ICC was set up mostly to prosecute perpetrators from the African continent, as opposed to those from other international countries. From a strictly legal standpoint, South Africa was a signatory and therefore was bound by that international treaty and those obligations, and any rules that arose from that signature would enjoin the country to act in a certain way. Here, there were rules, and there were also rules around the appeal procedure and when that would apply.

Mr Balkenshine said that there were two processes to be distinguished. The first was the  international agreement process between states. However, agreements between states were not binding on the individual citizens of the state unless the international agreement had been domesticated also into the local law. The signature, or withdrawal by States from the international agreement was one matter. However, in the case of South Africa, the Rome Statute had been implemented, by the Implementation Act, which was still in force and which bound the South African citizens

Mr Matila said that recently the South African Parliament had dealt with the Protection of State Information Bill and there had been international pressure for South Africa to move in a certain direction. Immediately thereafter, in the USA, there was an arrest of an army officer. South Africa was not able to protect itself from international interference. He still had received no satisfactory answer to his earlier question as to why the Department of Justice was so determined to force the country to consider a matter related to an international law, and why South Africa should be bound by the Rome Statute, when the USA and Israel were not. He was also concerned that South Africa had been hide-bound and sitting with the Dewani case for such a long time because the British were protecting him from being extradited to South Africa to face trial.

The Chairperson said that  Members should note that question, because it was a political matter that would have to be taken to the caucus of the ruling party.

Mr Matila asked for more clarity from the Department, before the Committee adopted a report.

Mr Daya said that South Africa was a signatory to the Rome Statute which enjoined other countries to do certain things as far as the International Court was concerned. The Rules Board had drawn rules of procedure for the implementation of the Implementation Act. That was all that it was presenting. Any other debate on what should or should not happen at a political level, around why South Africa had signed, or whether it should withdraw from the treaty were matters entirely outside the jurisdiction of the Rules Board.

Mr Matila moved for the adoption of the Committee report, which the Chairperson read out to the Committee. The resolution was that the Committee, having considered the Rules of Appeal Procedure, which were drawn in accordance with the Implementation of the Rome Statute Act, recommended that the NCOP adopt those Rules.

Legal Aid South Africa briefing on amendments proposed to the 2012 Legal Aid Guide, and draft new 2013 Legal Aid Guide
Mr Patrick Hundermark, Chief Legal Executive: Legal Aid South Africa, said that the 2012 Legal Aid Guide came into operation on the 23 February 2012, after it had been ratified by the National Assembly (NA) on 20 September 2011 and by the National Council of Provinces (NCOP) on 24 November 2011. The Guide was circulated to all Legal Aid Justice Centres, Courts, Judicare practitioners, Non-governmental organisations, university law clinics, Parliamentary committees, legal professional bodies, stakeholders and visiting delegations.

A detailed schedule indicating the amendments to the 2012 Legal Aid Guide approved by the Board of Legal Aid South Africa was tabled. He added that the proposed amendments were indicated in the draft 2013 Legal Aid Guide (see attached presentation) by vertical lines in the margin.

Mr Tshepang Monare, Legal Support Practitioner, Legal Aid South Africa, said that the most important amendments could be summarised as achieving the following aims: -

- Making specific provision for children in terms of the Child Justice Act - Circular 1/2012, [No 10-12]
- Providing legal aid for Section 204 Witnesses - Circular 1/2012, [No 13]
- Providing legal aid in extradition cases - Circular 2 of 2013, [No 14]
- Permitting the briefing of the same Judicare practitioner, who had finalised a matter when the client did not elect to appeal, should that client subsequently elect to appeal  [No 15]
- Granting discretion to the Regional Operations Executives (ROE) to approve legal aid for an additional civil matter, provided there was a chance that the case would succeed and the cost of the case would justify the benefit to the legal aid applicant [No 17]
- Providing that legal representation in maintenance cases could be extended to instances where there had been a failure by the system to enable the applicant to seek or execute the order for a period longer than 12 months, or where there was abuse of the system by the other party which made it difficult to obtain or execute the order for a period longer than 12 months, [No 18]
- Providing for legal aid in child estate matters, although this was restricted to those estates where the value of the estate did not exceed the amount determined by the Minister in terms of section 18(3) of the Administration of Estates Act of 1965. There would be an exception where  there was an immovable property that exceeded that amount, but was valued at less than R500 000, [No 20]
- Granting of legal aid in commission of inquiries was clarified, [No 21]
- No merit report would be required for simple cases, such as simple divorces, uncontested divorces, domestic violence cases that were intended to protect the interest of the child, administration of estates and in eviction cases where assistance could be granted to negotiate with the owner to allow the client time to vacate the property, [No 22]
- Providing for a contribution Scheme and subsidised legal aid in criminal matters - Circular 1/2011), [No 22- 25]
- Procurement of legal services through impact litigation or by co-operation agreements for both solicited and unsolicited bids was clarified. It was also brought in line with Supply Chain Management requirements, [No 33-44]
- Alignment of the Judicare accreditation scheme to Supply Chain Management requirements, more specifically relating to the furnishing of tax clearance certificates - Circular 3 of 2012, [No 46- 90]
- Procedures around screening of unsolicited proposals had been clarified, [No 116]
- Legal Aid Judicare tariffs, for both criminal and civil matters, were increased to compensate for  inflation, by 5.3%, with effect from 1 April 2013.
- Criminal tariffs were amended to include agency agreement global fees per finalised matter which would be paid as follows:- District Court - R 1 340.00 and Regional Court - R 3165.00.

Discussion
Mr Nzimande said that it was worth noting, in the Committee Report, that Legal Aid South Africa showed much progressiveness in seeking to better the service that they offered to the citizens, and ensuring that any services offered were beneficial to the public.

Mr Nzimande also noted that the Committee wanted to engage with Legal Aid South Africa on its annual report, and speak to broader matters around the imperatives of the programmes.

Mr Nzimande welcomed the first amendment proposed by Legal Aid SA. He commented on the amendment relating to briefing of the same Judicare practitioner who had concluded the first matter, but asked whether the amendment was limited to only one practitioner, or allowed also for another to be appointed. He was asking this question because of the change in the means test for estates, and wondered if cost and affordability entered into this consideration as well.

Mr Nzimande also wanted clarity about the considerations for civil matters, saying that there might be limitations to what could be supported there.

Mr Nzimande also wanted clarity in terms of the Commissions of Inquiry, saying that consideration may be given there to the loss of income of breadwinners.

The Chairperson asked that, because of time constraints, the delegation from Legal Aid SA should respond to the questions in writing.

The Committee adopted the Committee Report and resolution to approve the draft 2013 Legal Aid Guide.

Adoption of Committee Reports: Draft Report of the Select Committee on the Budget, APP and Strategic Plans of the Department of Correctional Service, and draft Report of the Select Committee on the Domestic Violence Reports as presented by the Civilian secretariat for Police Service, dated 9 October 2013.
The Committee moved, seconded and adopted both draft Committee reports.

The meeting was adjourned.