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LOCAL GOVERNMENT & ADMINISTRATION SELECT COMMITTEE; SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
18 September 2002
DEFENCE BILL: BRIEFING
Documents handed out:
Defence Bill [B60-2001]
New provisions in the Defence Bill reflect the new political dispensation in South Africa. Critical provisions include the creation of a defence secretariat, provision for labour relations, the creation of Boards of Inquiry and the establishment and composition of a Council of Defence and other related Councils. Other new provisions relate to the employment in the Defence force, the Defence intelligence and law enforcement powers of the Defence Force at Sea.
Briefing by the Department
General Van De Poel briefed the Committee on the Constitutional basis of the Bill. She explained that in terms of section 199(1) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) the security services of the Republic consisted of asingle defence force, single police force and any intelligence services established in terms of the Constitution.
One of the governing principles of security services as set out in section 198(b) of the Constitution was that the resolve to live in peace and harmony precluded any South Africa citizen from participating in armed conflict, nationally and internationally, except as provided for in terms of the Constitution or national legislation. She explained that section 204 of the Constitution provides for a civilian secretariat for defence to be established under the national legislation.
The object of the Bill is to repeal the Defence Act, 1957. In its place to provide for the defence of the Republic in a way which will take into account and give effect to all the values enshrined in the Constitution in respect of security services. It is proposed that the Department of Defence should consist of the Defence Secretariat and the South African National Defence Forces and auxiliary services.
The General pointed out that the Defence Force would consist of the Regular and Reserve Forces. It was also proposed that the Secretary for Defence should head the Department and in that capacity hold the position of the accounting officer as required by finance legislation.
The Bill gave effect to the prescripts contained in the White Paper on Defence that membership of the force should be voluntary. She added, however, that the Bill stipulates that persons contracted for services will be obliged to remain in service during a time of war, a state of national defence or a state of emergency. During such times or state persons may be mobilised for compulsory military services by proclamation issued by the President.
New provisions had been incorporated in the Bill to give effect to the current political dispensation. The new provisions related to the employment and use of the Defence Force and provisions relating to military police and defence intelligence. She continued that in recognition of the UN Convention on the Law of the Sea, provision had been made for law enforcement powers of the defence force at sea. She added that new provisions had been introduced to create the Council of Defence and other related Councils. Other provisions, she added deal with issues to do with co-operation with other forces and forces visiting the republic in the spirit of the Africa Union and Nepad.
The General pointed out that prior to the Bill being presented to Cabinet for approval, it was distributed to all departments of the state for comment. Discussions were held with representatives of the Department of Safety and Security and the intelligence Service. She assured the Committee that there were no significant financial implications for the state arising from the Bill that could not be accommodated under the current budget of the Department of Defence.
Mr Ralane (ANC) asked if the Department contemplated a form of strike action by the Defence Forces.by making provision for this.
Gen. Van De Poel replied that strikes were expressly forbidden in the defence force in its different ramifications. She explained that since this was the position, it was only appropriate that the strike action be defined so that personnel who were members of unions knew exactly what is prohibited.
Mr Ralane enquired if it was permissible for defence forces to belong to political parties especially now that members of the defence force were allowed to organise themselves into unions.
Gen. Van De Poel replied that political party activities were expressly prohibited in the defence force and that military unions were not allowed to enter and form associations or affiliations of any kind with outside unions.
Mr Ralane queried the requirements for qualification to the Review Board contending that people from non-statutory defence forces would be discriminated against and thereby destabilise the process of transformation.
Mr Radebe (Legal Advisor) explained that the regulations gave the Minister discretion to appoint to the Review Board either people from the military or outside the military.
Mr Mkhaliphi (ANC) wondered why the preamble to the Bill was too short.
Mr Radebe clarified that the Bill had no preamble but what the member refers to as the long title, which introduces the objects and details the spirit of the Bill. He pointed out that the title in the draft Bill was fairly long but the Portfolio Committee approved the current version. He however pointed out that there was no legal requirement that the title be long.
Mr Lever (DP) referred to clause 50 2(d) in the Defence Bill on Limitation of rights as follows:
50. (1) Subject to the Constitution, the rights of members or employees may be restricted in the manner and to the extent set out in subsections (2) to (7).
(2) To the extent necessary for purposes of military security and safety of members of the Defence Force and employees, such members and employees may from time to time be subjected to-
(a) searches and inspections;
(b) screening of their communications with people in or outside the Department;
(c) security clearances which probe into their private lives
(d) shared accommodation or privation in accordance with the exigencies of military training and operations.
Mr Lever felt that the usage of the word 'training' in Clause 50 2 (d) was wholly inappropriate since it was susceptible to different interpretations.
Gen. Van De Poel replied that the Constitution guaranteed the basic right to privacy but that there were certain unavoidable military operations and training which might abrogate these fundamental rights.
Mr Lever insisted that the term 'training' in the particular clause should be deleted since it left open an opportunity for unscrupulous people to invoke as an excuse to assault people's fundamental rights unnecessarily.
Gen. Van De Poel reiterated that there was a fine line between training and operations. During such operational and training expeditions service men and women may be forced to live in conditions that could only be described as sub-human but such was the vocation of military duty.
Mr Ralane agreed with Gen. De Poel adding that service in the military was voluntary and that those who conscripted were aware of the occupational hazards in this regard. He quipped that life in the military service was not akin to that in the high school
Mr Ackermann (NNP) asked who between the Chief of SANDF and the Secretary of Defence was in charge of the Defence force and therefore chair of the Defence Council.
Gen. Van De Poel explained that the Chief of SANDF was in-charge of operational matters and the deployment of members of the Defence Force whilst the Secretary of Defence was the accounting Officer of the Department as provided for under the PMF. She added that the Chair of the Defence Council alternated between the two offices in the absence of the Minister.
Mr Ackermann asked if the Department before drafting the current Bill sought for and obtained an in-put from the experience of other Commonwealth jurisdictions.
Gen. Van De Poel replied in the affirmative. She pointed out that although various jurisdictions had been studied the African scenario was a unique one and hence the significant departure from practices elsewhere.
Mr Baloyi (ANC) asked if the introduction of the trade unions component in the military was one of the items borrowed from other jurisdictions.
Gen. Van De Poel noted that although many jurisdictions allowed trade unions in their defence forces that was not the motivation for this item's in-put in the current Act. She explained that a Constitutional Court's ruling to the effect that such associations were permissible in the military necessitated the current in-put. She however clarified that these unions were allowed within much narrower confines than those in the civilian domain. This was necessary to ensure that the tenets of discipline in the force were not undermined.
Mr Baloyi asked what constituted the auxiliary service.
Gen. Van De Poel explained that personnel in the auxiliary service consisted of 143 people who worked in uniform even though they had no military training. These cadre of personnel offer support services to the defence forces were unrelated to soldiering and dealt with issues such as burying the dead during war time, dealing with field conditions, hygiene and clearing battle-fields.
Mr Ralane asked if a pardon by the president was enough to reinstate a person to active service.
Mr Radebe replied in the affirmative. A presidential pardon had the effect of clearing a person's criminal record and therefore would act as clearance for military service provided all other requirements were met.
The Chair wanted to know why certain key words that were in constant use in the Bill had not been defined. He said that words like 'order',' instruction', 'direction' and 'command' were not defined anywhere in the Bill.
Gen. De Poel replied that the Portfolio Committee agreed that since these terms were capable of many meanings and the dictionary meaning would apply.
The Chair asked for clarity on the designation of members of the reserve force.
Gen. De Poel explained that the reserve force corps consisted of officers not in full time employment of the military but were nonetheless members of the defence force on reserve.
Mr Ralane pointed out that a while ago members of the defence force were withdrawn from patrolling sections of the countries' borders. He asked why this was so.
Gen. De Poel pointed out that the executive and Cabinet had the discretion to decide due mainly to financial constraints to withdraw the deployment of troops from any part of the country.
The Chair regretted that due to time constraints the Bill on Convention Arms would not be presented. This meeting would be rescheduled.
Meeting was adjourned.