Proposed amendments to Special Pensions Act; Regulations for Military Veterans

Defence

06 November 2013
Chairperson: Mr J Maake (ANC)
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Meeting Summary

The Committee was not able to make resolutions or approve minutes at the meeting because there was no quorum. Two items were added to the agenda.

The Committee considered a request by Mr D Maynier (DA) that it should produce a report on events in the Central African Republic (CAR). In order to produce a report, it presupposed that the Committee, or an ad hoc committee, should conduct an investigation into events in the CAR. He asked the Chairperson to recall that he had written a proposal on 31 May, but the letter was yet to be shared with other Committee members for tabling and discussion. This was a matter of immense frustration to him. He was of the view the Committee had a duty to conduct a full investigation into the events in the CAR. He had set out in the letter how the investigation could be done. He once again formally requested that his letter, proposing how the Committee should deal with events in the CAR, be shared with other Members of the Committee and be included in the minutes of the meeting.   The Committee could not abdicate its constitutional duty to conduct a full investigation. However, Members expressed reservations about the capacity of the Committee to carry out such an investigation.

The Chairperson said that the Committee had been given a copy of the amended version of the Special Pensions Act. There was a predicament, in that the Special Pensions Act fell under finance, and the Committee did not deal with such legislation.  The amendments had to be forwarded to the Portfolio Committee on Finance. His concern was that the Finance Portfolio Committee might not be well versed on what the Committee wanted to happen, or understand the urgency of the matter. He called for suggestions from Members on how the matter should be dealt with. He suggested he should to talk to the Chairperson of the Finance Committee, to clarify that the amendments did not affect the fiscus.

A Member wanted to know why the Minister had not processed the regulations for military veterans.  .  Furthermore, the whereabouts of the regulations were unknown. The regulations were of interest to the Committee, as it needed to know when the Department of Military Veterans was going to start doing its work by spending the R300 million, since the regulations had been tabled in Parliament.

The Department of Military Veterans outlined the situation, and said it had also contacted the Treasury, which had raised issues that were coming from the government and pension administration side, which administered the Military Pensions Act. These comments had been dealt with, and this meant going back to the office of the State Law Advisor. The Department was waiting for re-certification and, most importantly, it was waiting for assistance from the Chairperson and Members of the Committee to engage with the Ministry of Finance to release the funds, as all questions raised had been responded to in writing. Not only would the Department end up with under expenditure, but it really wanted to repay those people who had given South Africans democracy. The substantive conditions were making things impossible, even though the Department had responded to all the issues raised by Treasury, so it was pleading for the Committee’s intervention. It was suggested that a meeting should be convened for the Department to make a presentation to the Committee about how far the regulations were, and about the problems with the provisions of the Act.

Meeting report

Opening Remarks
The Chairperson welcomed the Committee and announced that there were apologies from Mr D Bloem (COPE) and Ms N Mabedla (ANC). There were two items on the agenda. The first was consideration of minutes on the Central African Republic (CAR). He understood that the Committee had to prepare a report which would emanate from the minutes. The second item was special pensions. The Committee had asked the state law advisor to make amendments, which had been done, and the Committee would have to consider them.

Committee Minutes dated 4 April 2013
The Chairperson tabled the minutes and also referred to a document that had been presented by the Minister on CAR. He asked whether all Members were happy with the agenda. There should be an item on the deployment of troops to the Democratic Republic of Congo (DRC). The issue had been discussed with Mr D Maynier (DA), and researchers had been asked to research the history and anything else regarding the conflict in the DRC. He had gone through the document, and it had been well researched.  He asked that the document should be distributed to every Member, and said that the item would be on the agenda for the next meeting.

Mr Maynier asked for clarification on whether the Committee was expected to write a report. Who expected the Committee to write it, and where was it going to go?

The Chairperson questioned whether he was right in saying the Committee should write a report.

Mr S Montsitsi (ANC) said the Committee already had the report. Perhaps the Chairperson meant to say there was a report on CAR before the Committee, as reflected in the minutes of 4 April.

The Chairperson attributed the error to the agenda, which said 'consideration of a report. He apologised for the error.

Mr Maynier said he thought that the Committee should produce a report on events in the CAR and that the Committee had a duty to the public and Parliament. In order to produce a report, it presupposed that the Committee, or an ad hoc committee, should conduct an investigation into events in the CAR. He asked the Chairperson to recall that he had written a proposal on 31 May, but the letter was yet to be shared with other Committee members for tabling and discussion. This was a matter of immense frustration to him. He was of the view the Committee had a duty to conduct a full investigation into the events in the CAR. He had set out in the letter how the investigation could be done. He once again formally requested that his letter, proposing how the Committee should deal with events in the CAR, be shared with other members of the Committee and be included in the minutes of the meeting. The Committee could not abdicate its constitutional duty to conduct a full investigation.

The Chairperson said if there was time after the last item on the agenda, Mr Maynier would be given a chance to explain.

Mr A Maziya (ANC) said he was not sure if he agreed with Mr Maynier that the Committee should discuss the CAR. The Committee did not have first-hand information because the Committee had not been to the CAR.

The Chairperson once again stated the matter concerning investigations would be discussed after agenda items. He called on Members to table the first agenda item and asked for suggestions on how to move forward.

Mr Montsisi suggested that they should go through page by page, and asked for the Chairperson’s guidance.

The Chairperson asked whether they should check for corrections and then get into the actual minutes.

Mr Maynier noted an error on the first page regarding a political party. He also noted on the second page that the presence of the Chief Whip, Deputy Chief Whip and others had not been recorded.

The Chair said that the pages were not numbered, which made it difficult to refer to the minutes. He also suggested that the acronyms be written in full first, so that the reader could understand.

Minor grammatical and typographical errors were identified for correction.

The Chairperson said they could now discuss the contents of the minutes, as the other pages were fine. He also asked the secretary if there had been any response from the Speaker concerning the letter of complaint against Mr Maynier.

The Committee secretary responded that the letter had been sent in June, but the Committee had not received any response.

Mr Maynier stated that in the interest of fairness, he should be given a copy the letter.

The Chairperson asked if the Committee was getting into 'matters arising.'

Mr Montsitsi stated they could not get into 'matters arising.' Even if there was no quorum, the Committee could still deliberate and move to the next item.

The Chairperson agreed.

Mr Maynier asked for clarification on the process of the meeting. Had it been agreed to make recommendations for changes to the minutes which would be effected and voted on at the next meeting?  In the interests of fairness, would he receive a letter concerning a matter in the minutes which had been submitted to the National Assembly (NA)?  There was also the matter of the letter he had written on the CAR which he had been assured would be tabled at the end of the agenda.

The Chairperson stated that that was correct.

Mr Maziya said if the Committee had agreed to send a letter of complaint to the Speaker, he did not believe it was the Committee’s responsibility to give a copy of the letter of complaint to Mr Maynier.  It should rather be the Speaker’s office who should give him a copy of the letter.

The Chairperson said he would definitely need direction on the matter.

Mr Esau said he wanted to clarify that any Committee was an extension of the National Assembly.  This meant that the rules that applied to the National Assembly also applied to the Committee. In that case, if the competency of the Committee itself could not resolve the matter, then it could be referred to the NA for assistance. However, it was essentially the Committee’s responsibility to resolve the matter. The matter had been recorded and the Chairperson could use his discretion to deal with the matter and inform the Committee whether there would be consultations. The matter would be dealt with, just like the Speaker would in the Assembly.

Mr Montsitsi said that the Committee had decided to take action against Mr Maynier at a meeting that had been held in room E249, and that Parliament should notify him of a pending complaint. He also stated that the leadership of the Committee had acted accordingly and as such, the matter was no longer in the hands of the Committee. Parliament was going to inform Mr Maynier, and due processes would follow. As soon as Parliament was ready, it would engage with him.

Mr Esau stated that he had not been present when the decision to complain against Mr Maynier had been made. He added a procedural point that the matter could have been dealt with by the Committee, as the same rules of the Assembly also applied to the Committee, and it sought the Assembly’s advice where it was needed.

Mr Montsitsi emphasised that the Committee had made a decision, and the Chairperson could only follow up on the matter. They should not deliberate the matter any longer.  Parliament had the prerogative to inform Mr Maynier.

Mr Maziya agreed with Mr Montsitsi that the matter should not be deliberated any longer, as it was out of the hands of the Committee. He stated that if the Committee had mandated the leadership of the Committee to follow a particular line, then the decision of the Committee should not be questioned.

The Chairperson pointed out that the Committee was into 'matters arising', and asked the Committee to start deliberating the second item on the agenda.

Proposed amendments to Special Pensions Act

The Chairperson tabled the item, and said that the Committee had been given a copy of the amended version of the Special Pensions Act. There was a predicament, in that the Special Pensions Act fell under finance, and the Committee did not deal with such legislation. The amendments had to be forwarded to the Portfolio Committee on Finance. His concern was that the Finance Portfolio Committee might not be well conversed with what the Committee wanted to happen, or understand the urgency of the matter. He called for suggestions from Members on how the matter should be dealt with. He asked whether they should have a joint meeting with the Finance Portfolio Committee, or whether he should talk to the Chairperson of that committee. It would be risky to present something that was not understood, or was not agreed upon.

Mr Maziya asked whether the procedure was that the Committee should deal with the Bill to be forwarded to the office of the Speaker, who would then forward it to the appropriate Committee. Once the procedure was followed, then the Finance Portfolio Committee could invite the Committee to make a presentation.

Mr Esau said that the Bill was already in existence and that wherever amendments were being proposed, it should be clarified whether the amendments emanated from Finance or the Joint Committee on Defence, because once there was a process, it should be referred to the relevant Committee. The Committee was a stakeholder, and should be consulted by the Finance Committee, who would give consideration and follow the normal process to Parliament. He stressed the importance of knowing where the amendments emanated from, as it was the State Law Advisor who had presented the amendments to the Committee, and the Committee did not have problems with them. He felt that the Finance Committee was responsible and if the Chairperson felt the need to liaise with the Chairperson of the Finance Committee, then he could do so.

Mr Montsitsi said that committees were able to amend and deliberate bills, as well as engage in questions, but he questioned whether the Joint Committee on Defence could pass legislation. The chairpersons could indicate the urgency of a bill to other chairpersons. He added that it was good that there were no financial implications surrounding the amendment process, so it would be much easier administratively for the two Committees.

The Chairperson said that the amendments had emanated from the Joint Committee on Defence, as it dealt with military veterans, and the Finance Committee might not have any idea about the amendments. He expressed concern at leaving the amendment process entirely to the parliamentary process, as it would take much longer and the bill needed to be effective immediately.  He suggested he should to talk to the Chairperson of the Finance Committee, to clarify that the amendments did not affect the fiscus.

Mr Maziya stated that Parliamentary procedures on amendments could not be bypassed unless a mechanism was found in respect of the regulations, to speed up the process.
 

Mr Esau stated that the opinion given by the State Law advisor was quite clear that it could be tagged as a section 75 bill. If that was the case, the Committee could put in a four or six week cycle, with a minimum of public participation, to ask for input through advertising in newspapers.

The amendments would then be executed, but it had to be dealt with, because it was affecting the Act and clauses in the Act. He was referring to dependents, financial dependents and also the equalisation of benefit rights, not only to spouses but also to other dependents. He concurred with the Chairperson that it could be done, since there was no imposition on the fiscus.  Perhaps the Committee could brief the State Law Advisors to understand what was required, following which the Minister could also assist.

The Chairperson thanked Mr Esau for his contribution and asked whether the Committee, or the Finance Committee, was going to do it. He asked whether the process was out of the Committee’s hands. He did not think there was a need for the State Laws Advisors to brief the Committee. What remained was to follow the process on the amendment of bills.

Mr Mayniers letters over events in CAR and deployment of troops in Congo
Mr Maynier said that he would formally like to request the Chairperson to table a letter he had written to him on 31 May 2013 on the Central African Republic, as well as a letter dated the same day on the Democratic Republic of Congo.  He would outline the contents of the letter to the Committee. He had requested the Chairperson to conduct a full investigation by the Committee into the events that had occurred in the Central African Republic.  He felt the Committee had a duty, in the light of the tragedy in the CAR, to fully investigate what had happened, to make recommendations and then produce a report. He had reminded the Chairperson of the powers that parliamentary Committees had, and had suggested a two-stage process for the investigations.

The first stage was for the Department of Defence to discover all relevant documentation, such as all memorandums of understanding, notes between parties on memorandums of understanding, all documents relating to the Joint Defence Committee between South Africa and CAR, Cabinet memorandums authorising the deployment of SA troops in the CAR, the status of forces, status of mission agreements, rules of engagement, all directives on the use of force, all business plans, diplomatic cables and country reports from the South African Embassy in the Cameroon pertaining to the CAR, all diplomatic cables from the defence attaché relating to the CAR, all the directives to the force commanders deployed in the CAR, and the reports in respect of internal reviewing boards of inquiry conducted by SA.

The second stage of the process was to interview a number of witnesses. The witnesses had been set out from the Presidency, the Department of International Relations and Co-operation, the Department of Defence, including the Defence Secretariat, the Chief of SAAF and the Chief of the Joint Ops and Force Commanders deployed on the ground. Ultimately the President, as the Commander-in-Chief, would also have to be interviewed, as he had made the decision to deploy troops to the CAR. After analysing all the documents and conducting the interviews, the Committee would produce a report. The Committee had a constitutional duty to get to the bottom of what had happened in the CAR so that it never happened again.

The Chairperson thanked Mr Maynier for his presentation.

Mr Maziya said he could not recall the Chairperson officially presenting an agenda for the Committee to adopt. He had sent a message to the Chairperson to include the matter of regulations on the agenda, to which the Chairperson had agreed. He had concluded therefore that his suggestion had been accepted. However, he did not have the agenda before him, so he could not reflect much on it.

The Chairperson said the item was not on the agenda, but he agreed with Mr Maziya.

Mr Maziya proceeded to comment on what Mr Maynier had tabled. He wanted the Committee to note that it was not a commission of inquiry, but a mere committee, and that the processes that Mr Maynier had suggested were outside the level or powers of the Committee. As a committee, it could recommend the establishment of a commission of inquiry to carry out the processes he had suggested. The Committee did not even have the time to sit down and look at the processes that Mr Maynier was asking. He suggested the Chairperson should investigate to establish whether Mr Maynier’s suggestions were practical or not, as the Committee did not have the capacity to establish a commission of inquiry.

The Chairperson apologised for his oversight by not including the issue of regulations on the agenda, and said the item would be tabled.

Mr Maynier disagreed with Mr Maziya, and stated that parliamentary committees did have powers to conduct the investigations suggested. Although the Committee might lack the capacity, there was no reason why Parliament could not make it possible. He emphasised that the Committee had to do something, as the families of those who had died in the CAR were looking to the Committee to provide answers.

Mr Montsitsi stated that this was not the time to stir up emotions about the situation for those who had been involved in combat, especially in the past. He asked the Committee to steer with caution in matters of such nature – those who had been in combat would understand what he was talking about. The Committee derived its mandate from the Defence Review, which also gave rise in the manner in which the armed forces were constituted. The Defence Review also covered the rules of engagement in respect of the country's responsibility to the African continent. SA troops were found on the African continent because of the partnership and mandates that were received continentally and internationally from the United Nations. He pleaded with colleagues that despite having the powers to investigate, the scope of the investigations should be looked at, as well as the Committee’s capacity to investigate. The investigations should not be biased, and the role of the French should also be scrutinised – for instance, why they had not participated when the SA troops were attacked, considering the French were also in the CAR as peace keepers. The Minister of Defence had not flinched in giving information about what had happened in the CAR. 

Regarding the memorandum of understanding, Mr Montsitsi said that it was available, covering a number of years, to all Members who would like to access it. To produce a proper report, the Committee would have to visit the trenches in the CAR, visit neighbouring countries holding the rebels, and the Committee could not do all this, as the CAR continued to be a threat. As much as the Committee would like to engage on the issues of the CAR, an executive member responsible had come to give a briefing and provide documents covering a number of years of SAAF involvement in CAR, so surely the Committee should understand that the Minister was trying her best to ensure that the Committee was informed.

He appealed to all Members to be sensitive where South African combatants had lost their lives. He pointed out that decisions could not be made during the meeting, as there was no quorum and that even if there were a quorum, the type of investigation that Mr Maynier was suggesting could not be embraced.

Mr M Nhanha (COPE) said that politicians would never be good businessmen – they tended to dwell too much on issues that in a business world would be closed. The matter should have been closed after Mr Maziya had proposed that the leadership should first investigate if the Committee had the capacity to conduct such investigations. The Committee should set a timeline for the Chairperson to carry out a thorough investigation into its capacity to conduct such investigations.

The Chairperson welcomed Mr Nhanha’s suggestion. He then asked Mr Maziya to table the item on regulations.

Regulations for Military Veterans
Mr Maziya stated that the Committee had received regulations for military veterans. He wanted to know what the problem was, for the Minister not to process the regulations. Furthermore, the whereabouts of the regulations were unknown. The regulations were of interest to the Committee, as it needed to know when the Department of Military Veterans was going to start doing its work by spending the R300 million, since the regulations had been tabled in Parliament. The Committee was expecting military veterans to start receiving benefits. Since there was an official from the Department of Military Veterans present, perhaps she should be allowed to give a briefing on the status of the regulations.

The Chairperson asked the member from the Department of Military Veterans to give a briefing.

Ms Nandipha Ntsaluba, Department of Military Veterans, apologised for the Director General's (DG's) absence, as he had had to rush back for a function in Mpumalanga. The DG had asked her to convey to the Committee that if the Department for Military Veterans was required to provide a full briefing, the Department was prepared to come, as it valued the Committee’s support. The Department had presented to the Committee and had been given some useful inputs which had been accepted. The Department had later had a meeting with the Minister, who had also given useful insight which had allowed the Department to review the issues.

She asked the Committee to recall that when the Department had presented to the Committee, one of the decisions that it had requested was an intervention with the Minister of Finance, to provide a concurrent response in writing for the Department to gazette the regulation, so that it could begin to utilise the funds.  In November, an allocation letter had been given to the Defence vote, rather than to the Department of Military Veterans, and had a condition that the R300 million would be expended when the regulation framework that informed such spending was in place by way of gazetting. This was a substantive condition for the availability of the charter period, and as a Department it had tried to deal successfully with all the issues raised by Treasury.

Ms Ntsaluba stated that after meeting with the Minister, the Department had looked at some of the matters and tried to review them. One of the pertinent issues was the amount that determined whether the Department could be considered, because the question that was raised to the Department was about the gross that came out of the 90 000. As such the Department had to conduct research to find out what was plausible and amend the regulations accordingly.

The Department had also contacted the Treasury, which had raised issues that were coming from the government and pension administration side, which administered the Military Pensions Act. These comments had been dealt with, and this meant going back to the office of the State Law Advisor. The Department was waiting for re-certification and, most importantly, it was waiting for assistance from the Chairpersons and Members of the Committee to engage with the Ministry of Finance to release the funds, as all questions raised had been responded to in writing. Not only would the Department end up with under expenditure, but it really wanted to repay those people who had given South Africans democracy.   The substantive conditions were making things impossible, even though the Department had responded to all the issues raised by Treasury, so it was pleading for the Committee’s intervention.

The Chairperson wanted to know where the regulations were.


Ms Ntsaluba stated that because of changes in the threshold, the Department had had to go back to the State Law Advisor for re-certification and had also engaged with Treasury, which still had the regulations. Treasury still had the original documents submitted, as the Ministry of Finance had also been consulted on the basis of the Public Service requirement that if there were any regulations with financial implications, the Ministry of Finance had to be consulted.

Mr Esau asked if there had been a letter from the Committee to the Chairperson of the Finance Committee or the Minister of Finance, asking for an intervention. It was clear that the certification by the State Law Advisor had not been finalised, which affected concurrence. The Committee had to be appraised on the final amendment of the regulation, so that the Minister of Finance could be lobbied to expedite the matter.

Mr Maynier made a procedural point that once the regulations were finalised and the State Law Advisor had certified them, they would have to be provided to PAC. There would have to be 30 days’ notice, because the regulations would now have been substantially amended. The Department should bear that in mind.

The Chairperson asked what was expected of the Committee.

Mr Maziya said that it was now up to the Department to approach the Portfolio Committee on Finance, or whoever had authority for an intervention. Technically, the Department had not exhausted all means of ensuring that the regulations were effective, and the Committee could intervene only once the cycle was exhausted. The Minister of Defence could resolve the matter with the Minister of Finance, and if that did not work, he could approach the President. Even though the Committee had access to the Portfolio Committee on Finance, it was doubtful that the Committee could directly challenge the Minister of Finance.

The Chairperson said it would be better if the Department wrote to the Committee to explain the situation and inform it on the status of the regulations before the Committee could start questioning the Minister of Finance.

Mr Montsitsi suggested that a meeting should be convened for the Department to make a presentation to the Committee about how far the regulations were, and about the problems with the provisions of the Act. He also clarified that a presentation had not been made to the Joint Committee.

The Chairperson said that the Committee secretary would take up all matters and check on the Act, as it was a very serious matter.

Mr Maynier commented on a previous matter where Mr Maziya had made a proposal and it had been accepted that the Chairperson would investigate whether the Committee had the capacity to conduct investigations. He suggested that the Chairperson be given a deadline to report back to the Committee on the matter at the next Committee meeting.

The Chairperson asked the Committee secretary and the research teams to work on this.

The meeting was closed.

 

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