A senior delegation, led by the Secretary General of the SANDF, briefed the Committee on the status and timeframes for the tabling of the draft bills Military Discipline Bill, the draft Defence Amendment Bill and the draft Hydrographic Bill. Discussion was limited to comments and observations as the draft Bills had yet to be introduced. The draft Military Discipline Bill, which was presented and discussed in detail, would be submitted to Cabinet and if approved then referred to Parliament. It would be late. This was because of the complexity of the voluminous Bill and its ability to pass constitutional muster. It was due to be approved by Cabinet on 31 March but was expected in Parliament only in June or July. The objective of the Bill was to empower commanding officers and military courts to dispense disciplinary measures.
The independence of the military courts was mentioned as a concern as was the powers of these courts versus those of the civil courts. The Department said SANDF members were sometimes getting away without being disciplined, even for serious offences, because provisions of the old Defence Act 1957 were no longer in place. There was the Military Discipline Supplementary Measures Act, No 16 of 1999, in place however this did not address all matters. Members raised questions about the constitutionality of interfering with the rights of soldiers. The Department said this had and would continue to be a discussion between it and the State Law Advisers but when voluntarily joining the military, people had to accept a limitation on their constitutional right to life. That was an inherent risk.
Both the ANC and the DA raised concerns about the establishment of a military public order policing unit. This had to be carefully considered as it would become a problem if the military instead of the police policed the public.
The Committee received a status update on the draft Bills (the draft Military Discipline Bill, Defence Amendment Bill and Hydrographic Bill) that the Department of Defence is currently drafting.
Security of Defence, Dr Sam Gulube, said the Military Discipline Bill was with the State Law Advisers. Once cleared it would be presented to Cabinet and then introduced to Parliament. The Bill would have been tabled in Parliament by 31 March, however the date had to be moved as the complexity of the Bill had been underestimated. It would probably be in June or July of this year.
The Hydrographic Bill was a bit simpler and should be before Parliament in June or July. The timing of the Defence Amendment Bill was difficult to predict. This was because the Defence Act had to be amended to ensure that certain provisions of the Defence Review were included in the Defence Amendment Bill. The Department had to wait for the Defence Review to be approved by Parliament in order to ascertain what aspects of the Defence Act had to be amended. Provided it was finalised timeously by Parliament, the Bill could be tabled in August or September.
Military Discipline Bill 2014
Dr Gulube said this was an urgent Bill but there were major challenges. Constitutional concerns had been raised. There were questions as to the independence of military courts if the Military Judge was appointed by the Executive. How independent was the court if it was subject to being run by members of the SA National Defence Force?
The Bill had to ensure that commanders of the SANDF were able to implement discipline. Its objective was to empower commanders.
Dr Gulube said it had been difficult for the Command Council of the SANDF to implement discipline because sometimes the decisions of the military courts had been questioned by various civil courts. This was on the basis that there was not any proper legislation for the functioning of military courts and civilian courts noted this.
Acting Chief Defence Legal Services, Major-General Bailey Mmono, said he was wearing double hats. He was also the General responsible for the administration of military justice.
The Major-General led Members through the presentation (see document).
He said the Bill was important and urgent but that did not mean there had been no mechanism to enforce discipline. The Department had been using the Military Discipline Supplementary Measures Act 16 of 1999 (MDSMA). The Act came into being after the constitutionality of the Defence Act 1957, as it pertained to a court martial, was challenged in court by the Freedom of Expression Institute, and declared unconstitutional. This was because the independence and legal training necessary for it to pass muster as a court for the purposes of a fair trial as required by Section 35 of the Constitution, were lacking.
It was now 2015 and there was a need to update the current Act. The process had gotten underway in 2003 with a draft and another draft Bill was drawn up in 2007. The Department started working earnestly on the Bill in 2011 on instructions from the Military Command Council, using the 2003 draft as its primary basis. In 2012 it was referred to the Office of the Chief State Law Adviser (OCSLA) as it was the expert. It was a voluminous Bill, There were 26 chapters. OCSLA had to scrutinise, not just rubber stamp and there was a to and fro exchange of views. Unions also had a vested interest and they were being engaged.
Summary trials had been replaced by the Officer Commanding Disciplinary Hearings. This was because summary trails had been declared unconstitutional. The Court had indicated it was satisfied.
The court-martial had been presided over by people who were not legally trained. They could prescribe imprisonment. That was why all the courts would have legal people. Only one person who did not have to be legally qualified was the Officer Commanding Disciplinary Hearings. The Officer could only deal with matters where the accused had pleaded not guilty. When that happened it went to the higher military court. This had caused a backlog. In the Bill it had been proposed that legal terminology be replaced. Instead of guilty or not guilty it would be accept or deny. This would allow the commanding officer to determine the outcome based on the provisions of the Bill.
Derived from the Potsane case, concerns had been raised that the existence of military courts resulted in unfair discrimination. Soldiers argued that instead of civil court appearances they were subjected to military court proceedings.
The Major-General said the uniqueness of the military required an understanding of the bigger picture of the military environment. Military justice was needed. Some cases were dismissed by the civil courts. People were not held to account for heinous crimes.
The Department was also looking at the seriousness of the offence and provisions allowed to suspend members without pay. One case had taken up to 10 years to resolve. The person had received a salary for the duration. Once found guilty it was difficult to recoup the cost of 10-year’s salary from the person. There was a Ministerial Directive that those accused would be suspended without pay and in the event of the person being found not guilty then the monies would be re-paid. This was not however in the Act. It was proposed that it be included and that cases of suspension be prioritised so that members would not be without a salary for too long.
The Military Discipline Bill provided for extra-territorial application. An example was given of a SANDF member who had been accused of the murder of a prostitute. He was released from custody and the Senior Military Judge and confirmed by the Court of Military Appeals sentenced him to life imprisonment because of extra-territorial jurisdiction. The South African High Court and not even the Supreme Court of Appeals had that jurisdiction. That was because of the uniqueness of military justice system.
Under the MDSMA the military lost jurisdiction to hear a case after three years. Civil courts then had the jurisdiction. Some members of the SANDF got away with murder. This was addressed in the proposed Bill.
In Chapter 5 the powers of the military police had been expanded. For certain offences an official, who was not an officer, may arrest an officer, but s/he had to hand over to another officer without delay.
In Chapter 6 and 7 procedures for investigation had been changed. Preliminary investigations were replaced with pre-trial investigations. The procedures had been simplified. Unless there was substantive prejudice to the accused, pre-trial investigations would be employed. Preliminary investigations and pre-trail investigations were a duplication.
Chapter 19 dealt with sentences and court orders. Under the Act sentences had a maximum fine of R6000. This was easily paid by members. Sentences which had involved detention remained with the courts. The draft Bill provided empowerment to the commanding officer therefore the fine was to be increased to a maximum of R50,000 with a possible provision that the amount be adjusted in terms of an increase in CPX.
Chapter 24 dealt with suspensions, administrative or summary discharge and dismissal and alternative relief. This was not new but it would be highlighted. There were provision in the old Defence Act but after it was repealed the provisions were not properly saved. Since then, when a member committed an offence like the murder of his officer commander there were no provisions in place to deal with matter. Due process had to be followed but this required certain provisions to be properly covered in the Act.
Chapter 25 related to the powers of the military police. It was considered very important. The military was like a state within a state. It was a different environment and required different action. The separate powers were not there in the current legislation. The chapter also allowed for the establishment of a public order policing unit.
Chapter 26 sought to improve general provisions to bring back some of the old provisions in the Defence Act that were working and were not deemed unconstitutional. Under this Chapter the Department also dealt with surrender liability. The challenge was that troops were sent to countries whereby the death penalty was legal. The Department wanted jurisdiction in order to discipline its own members so that that they were protected from that form of sentencing.
Mr Motimele reminded Members that they were not deliberating on the draft Bill. It was a very important Bill considering the timeframes but general comments were welcome.
Mr D Maynier (DA) commented that time spent ensuring the Bill is constitutional is time well spent, as the possibility of a challenge in respect of this Bill is high.
He asked for clarity on Chapter 25: Military Police (slide 76). Did he understand correctly that the Bill would provide for a public order police unit within the military police? If so, what would the purpose of that unit be? Would it be to police the military or civilians or both? That was a concern.
Did the Department have the capacity to actually implement the Bill, given the high levels of vacancies among professionals in the Defence Force and also the budget constraints. What where the possible financial implications of the Bill?
Mr B Bongo (ANC) said a lot of matters had been clarified. What was the issue around the State Law Advisers; they were asking about the independence of the judges themselves. It might move faster with meaningful engagement.
Mr M Booi (ANC) said he was sure the Department was well aware that it was interfering with the Constitution, extensively so. The Constitution talked about the rights of an individual way beyond the military. Parliament would need substantive reasoning to interfere with that. Even to deal with courts and the rights of courts demanded a lot of motivation. The Commission for Conciliation, Mediation and Arbitration made provisions for individuals and there was no specific provision for military. Dealing with foreign countries also required extensive engagement. It was not going to be easy to give these powers away to the military.
Dr Gulube fully agreed that it was a difficult task to ensure that military discipline aligned with the rights as enshrined in the Constitution and the Bill of Rights. It was not insurmountable; it had to be worded and formatted properly.
Major-General Mmono responded on the question about public order policing. There were sometimes exceptional cases when the military was requested to assist the police. Soldiers are trained to kill that is the primary objective. It was an exception rather than the norm to get the military to do police work but the time had come more often. The military had to be able to support the police. They had to be prepared and had to have the equipment. The primary objective would not be lost sight of. In the absence of war, then the military would help with disasters. He recalled when protesting soldiers marched to the Union Buildings and the police had to contain that. We should be able to use that same equipment against our own soldiers.
He said as much as the Department was working on the Bill it also had to start preparing itself for when it became an Act. It had to start to train members. A lot of what was in the Bill was not new, but these provisions had not been used in a while, so members had to be trained.
He said it was not clear yet as to how much the Bill would cost. He would come back to the Committee with an answer.
He said there had to be meaningful engagement with the State Law Advisers because without them, the Bill could not go anywhere. The Minister, the Council on Defence and the Chief of the SANDF wanted to know why it was taking so long. They would like to come down Cape Town to meet with State Law Advisers and ask what was needed, as the Bill was urgent.
In terms of the quality of Bill, it was in the hands of the State Law Advisers, the Department could only do the framework. There was constant engagement though.
Major-General Mmono said the Department was aware that it could not do certain things that were at odds with the spirit of the Constitution hence the involvement of the State Law Advisers. The same Constitution also has its limitation clause, which limited the right to life. If someone joined the SA National Defence Force, it was voluntary. He gave the example of the soldiers who had died in the Central African Republic. They had the right to life but they went there knowing that that right was limited.
He noted the challenges the SANDF faced with the military trade unions. How to resolve that impasse? It was a matter of discipline. What happened at the Union Buildings should never happen again, but the trade unions had said, March. The Department had been taken to court sometimes for unnecessary matters. To say that soldiers are workers; was that the right decision? Soldiers are not workers. They were prepared to lay down their lives.
Senior State Law Adviser at the Office of the Chief State Law Adviser, Mr Malusi Ncolo, said when the Bill was being drafted there were many issues that had to be looked at. The purpose of the legislation was for anybody to understand it. So there were those challenges. There were some other considerations. Quality had to be produced.
Mr Booi said the question of threat versus the Constitution required a balance. There had to be a balance between what was happening in the country and the Constitution. It should not be over-emphasised as it was going to create a problem. Arresting powers was within this balance, how would this be balanced with the proposed military policing unit?
Mr Maynier said he supported that the Bill had to be constitutional. It was incumbent on Members to carefully scrutinise the Bill when it was introduced. If the Bill provided for a public order police unit to be established within the military and to be deployed in support of the police against civilians that would be a major departure from doctrine. In the past the SANDF had only been deployed along perimeters to allow the police to do their work. If indeed the Bill envisaged that, there was a guarantee the Department would be in for a good fight. It was a clause that should be re-thought. It was in no one’s interest to find the SANDF deployed on the front lines in a public order policing role in the next Marikana. That was not something Members wanted to legislate for.
Mr Motimele said the constitutional requirement was there already. It had to be run as a disciplined force. The tricky part was not the constitutional requirement, the difficult part was what constituted discipline in the military without infringing on personal rights. It was also about the procedures followed. Those were the critical matters that needed to be looked at when the Bill was brought to Parliament. Once it was tabled and referred to the Committee, the Committee would send its advisers and researchers to do a situational analysis and research on the areas it thought were ambiguous.
The meeting was adjourned.
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