Defence Laws Repeal and Amendment Bill [B7-2015]: South African Law Reform Commission input; Committee Programme

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Defence and Military Veterans

12 August 2015
Chairperson: Mr J Skosana (ANC) (Acting)
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Meeting Summary

The South African Law Reform Commission (SALRC) briefed the Committee on intention and purpose of the Defence Laws Repeal and Amendment Bill, but since Members did not have the document in front of them it was decided that this would be a preliminary briefing on which more detail and more questions could be offered at the next meeting. It was explained that during 2003, Cabinet decided that the SALRC should "clean up" the statute books by repealing all unnecessary, obsolete or inconsistent legislation, and the SALRC had proceeded to deal with each department in turn. When dealing with the Department of Defence and Military Veterans (at that stage still one department), it had identified a number of pieces of legislation which either existed merely to amend the principle Act, or to substitute one Act for another, but had no substantive provisions of their own, or which were very specific to times, such as pieces of legislation making provision for demobilisation and integration within a specific time frame, or giving power to the Labour Court over some military service disputes. The list of Acts which the Defence Laws Repeal and Amendment Bill would now repeal was set out and explained. Members questioned the precise reason behind repealing the legislation on demobilisation and integration and it was explained that the time had since passed for this process. Members questioned what would happen to defence properties, and it was explained that the principal Act contained the provisions around these properties. It was also explained that the Castle Management Act 1993 was to be amended but not because it was obsolete, rather because some clauses were inconsistent with equality provisions. The Chairperson noted that the Department of Defence should be asked to clarify some issues arising out of the demobilisation process, involving Khoisan members who had taken the matter to court.

The Committee then discussed the draft programme for August and September, although the programme stood over for adoption at the next meeting. One Member questioned why matters that could not be dealt with during the Committee's last trip to Pretoria were not automatically put on to this programme, and it was asked that these issues be specifically detailed; it may be more appropriate to deal with them separately when the Committee worked through the report of the visit. Members also made suggestions for the trip, with other Cluster committees and bodies, to the border and asked that the briefing be arranged prior to this visit. Members asked that the South African National Veterans Association should be invited to brief the committee on its annual report when the Department of Military Veterans came before the Committee. It was noted that the Defence Service Commission and National Conventional Arms Control Committee, as well as the Department of Military Veterans Appeal and Advisory Board also needed to submit reports. The Committee would decide which outstanding items to deal with on 23 September.

Meeting report

Mr J Skosana (ANC) was elected as Acting Chairperson.

Defence Laws Repeal and Amendment Bill: South African Law Reform Commission briefing
The Chairperson stated that the report was received in March, but the Committee Members did not have it before them. He asked, however, that a preliminary briefing should be given.

Ms Geraldine-Maureen Moloi, Researcher, South African Law Reform Commission, introduced the SA Law Reform Commission (SALRC or the Commission) as a body whose aimed to improve and renew the laws of South Africa, on a continuous basis. This would include the repeal of obsolete or unnecessary provisions, the removal of anomalies, and bringing about uniformity in the law in various parts of South Africa, as well as consolidation of any branch of the law.

In 2003 the Cabinet mandated the SALRC to review the statute book, in order to identify and recommend, for repeal or amendment, any legislative provisions that were inconsistent with the equality clause in the Constitution. In 2004, SALRC included in its reform programme the Statutory Law Revision Project 25, which was revising all statutes since 1910. Reports were submitted to Cabinet in May and October of each year. SALRC worked on departments one by one. The consultation paper was submitted prior to the split of the Department of Defence and Military Veterans into two departments. In 2012 that Department had agreed with the SALRC about the preliminary findings and proposals found in the paper.

Ms Moloi said that she would speak to various defence laws that needed to be repealed or amended. Firstly, there were still some laws on the statute books that effectively had no surviving or independent provisions, and it made no sense for these to remain on the statute book. These included:

  • Defence Endowment Property & Account Amendment Act, Act No17 of 1929.
  • Defence Amendment Act of 1954, which had inserted some provisions from the 1929 Act as well.
  • The Moratorium Amendment Act of 1969 was substituted by another Act, so it did not have any surviving provisions on its own.
  • The Civil Defence Amendment Act, 1969 repealed the Civil Defence Act 39 of 1966. It had no surviving provisions on its own.
  • The Defence Amendment Act of 1973 only existed in order to amend other legislation, so it had no provisions on its own.
  • The Moratorium Amendment Acts of 1977 and 1978 were substitutions for other legislation. They were and in turn eventually deleted by another Act, so they should be repealed and removed from the statute book
  • The Defence Special Account Amendment Acts of 1981 and 1995 were substitutions for another Act which had now too been deleted, so that no substantive provisions remained.
  • The Armaments Corporation of South Africa, Limited Amendment Act 2005 was set up to delete a subsection therefore had no independent surviving sections of its own.
  • The Demobilisation Act of 1996 was enacted to provide for the demobilisation of those members of the former non-statutory forces who did not enter into agreements for temporary or permanent positions in the South African Defence Force, and to provide for a demobilization gratuity for each member. The closing date for these gratuities was 31 March 1999. For this reason there was no longer any reason for the Act to exist, and it should be repealed.
  • The Demobilisation Amendment Act 128 of 1998 was enacted to amend the Demobilisation Act of 1996 and since it had no longer any surviving provisions on its own, it could be taken off the statute book.
  • The Defence Special Tribunal Act 81 of 1998 was enacted to enable the Labour Court to act as a special tribunal in the disputes connected with remuneration or any other conditions of service of an employee in terms of a law regulating employment. This Act may also now be repealed.
  • The Termination of Integration Intake Act 44 of 2001 was enacted to provide for the termination of the integration intake of members of non-statutory forces into the South African Defence Force, and since it had also exhausted its purpose, the closing date having passed for that intake, it could also be repealed.

The Chairperson stated that the Committee would make fuller input once Members had the document in front of them, at the next meeting.

Mr S Esau (DA) asked whether the SALRC would be present in the next meeting when the Committee was set to deliberate on the briefing.

The Chairperson stated that the SALRC would present again in the next week.

Mr Esau asked about the repeal of the Defence Endowment Property and Account Amendment Act, and specifically what would happen to the properties of the Department of Defence. He felt that this legislation outlined was obsolete and could be removed from the statute books.

Ms Moloi replied that it must be remembered that this was an Amendment Act only and the original Act was not being repealed. Essentially there was nothing in the Amendment Act that was of any particular purpose.

The process for the Demobilisation and Integration Act was questioned.

Ms Moloi said, in relation to the Demobilisation and Integration Act, that the SALRC consulted with the Department of Defence, and there were no more people applying under this Act.

Mr K Mashego, Legal Advisor, Department of Defence and Military Veterans, stated that the Demobilisation Act was intended for non-statutory forces who did not want to integrate in the South African Defence Force at this particular time. They would be demobilised and paid a certain sum of money. It did not apply to any members who were in the South African National Defence Force already. That integration process was closed on 31 December 2001.

Mr Esau noted that a case had come before the Court, involving the Khoisan Kingdom & All other People (KKAP). The Court had noted that the Demobilisation and Integration Act process was over, but the Minister should meet with this group and come to a agreement or settlement on certain matters. That had never transpired, and there was no agreement or report on the matter between the Department and the KKAP.

The Chairperson requested that the Department attend to that matter and then the Committee would get a report on that.

Mr Esau then requested clarity on the Castle Management Act 1993 and asked whether that would be discussed in the next meeting, since it was not discussed in the present briefing.

Ms Moloi said that the Castle Management Act was being repealed, but for a slightly different reason. It was discriminatory due to the clause saying "No person shall be appointed or remain a member of the Board if such a person has reached the age of 70 years".

Mr B Bongo (ANC) wanted to know why the process was taking so long, the decision having been made apparently by Cabinet in 2003.

Ms Moloi explained that this was due to the consultation process, between the Department of Defence and SALRC, which was then followed by a discussion paper that then turned into a report. This was a time-consuming exercise.

He added that the presentation would be done again in the next meeting and the Members could give proper input with relevant documentation.

Draft Committee Programme
The Chairperson asked that the Committee go through the draft programme and suggest any changes or issues to be added. It would be finalised at the next meeting..

Mr Esau asked about the recent visit to Pretoria that the Committee had, and the changes to that visit which meant that some issues could not be covered in that meeting. He wondered if these were now to be left out, or could be reconsidered for inclusion in the new programme.

The Chairperson stated that issues that were not resolved should be included in the new programme.

Mr Bongo asked that the excluded issues should be specifically named so that the Members could apply their minds to that.

The Chairperson agreed that the issues excluded from the last trip should be set out; the Committee Secretary and Chairperson would check the list and advise on them when the Committee was due to adopt the programme at the next meeting.

Mr Esau summarised that those issues were addressed in the first draft programme and the notes of the visit that took place showed exactly those points and areas that the Committee did not address.

The Chairperson stated that the Committee would re-visit that programme.

Mr Esau stated that one of the issues was the visit to the Defence Intelligence Headquarters that did not take place at all. There were serious complaints about the facility where Defence Intelligence was accommodated and that it was being compromised as a result. There had been a request that the Committee consider the position and make recommendations to the Department of Defence and Military Veterans about the facilities.

The Chairperson stated that this issue was covered during the visit that took place and that the report would reveal this. Members could then pick out the particular issues and ask the Department to address them.

Mr Esau requested that since the Committee would be adopting the new programme, it must list the facilities the Committee had already visited.

Mr D Gamede (ANC) felt that the Committee should proceed with the current programme, in its present form. He suggested that any issues not addressed in that visit should rather be dealt with by way of the report, and the new programme that would emerge from that Pretoria visit.

The Chairperson requested that the Members focus on the programme currently at hand. Anything arising out of the Pretoria visit could cause a further amendment when the programme was adopted.

He noted the shift of a meeting from 5 to 18 August.

Mr Gamede advised that there was going to be a joint visit by the Department of Home Affairs, South African Police Services (SAPS), and Intelligence Services when the Committee visited the South African borders from 24 -26 August, and that this should be added to the programme.

Mr Esau wanted more clarity on this matter.

Mr Gamede explained that it was not on the programme and he was requesting it to be added. He also submitted a document that confirms the provisional dates that were 25 -26 August or 14 -18 September.

Mr Esau said that Parliament's Programming Committee had stated that there would be plenaries until 13 September and the rest of the dates would be spent on constituency and probably standby, so from 15 to 18 September members of other Committees should all be available.

The Chairperson asked that all possible dates be added and a final decision would be taken once the Cluster had made arrangements.

The Chairperson asked that Mr Gamede give clarity on the South African National Veterans Association (SANVA).

Mr Gamede stated that SANVA should be invited when the Committee was due to deal with the Department of Military Veterans' briefing, because it had never been invited with the Department to Parliament. He asked that this briefing should be included in the programme for 19 August 2015.

Mr Esau agreed and advised that SANVA should brief the Committee on its Annual Report and on developments during the year.

The Chairperson agreed that this would be added to the programme, and SANVA would be asked to brief the Committee.

Mr Esau referred to page 8 detailing the programme for 16 September. This was to deal with Operation CORONA, which was border control. He asked that this briefing should be taken before the visit to the border; as currently stated, it would coincide with the Committee visit.

The Chairperson agreed and said it would be put in the programme.

Mr S Marais (DA) stated that the programme was subject to information that was to be considered in the next meeting.

Mr Esau asked when the Defence Service Commission would brief the Committee on its annual report. He also asked when the National Conventional Arms Control Committee would be scheduled to discuss its report, which had been submitted to the Committee, but the Committee had not set any date for this NCACC to discuss the report. In addition, the Department of Military Veterans Appeal and Advisory Board also needed to submit a report.

Mr Gamede referred to the agenda for 23 September: Finalisation of outstanding Committee business, and suggested the Committee should choose which business it could discuss on that day.

The Chairperson asked Mr Esau to follow a procedure of writing down the issues that he wanted the Department to discuss, and at the appropriate time, the Committee would decide which of the issues could be dealt with on that day.

The Chairperson reiterated that the Committee would adopt the programme in the next meeting.

The meeting was adjourned.


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