Defence Laws Repeal and Amendment Bill [B7-2015]: deliberations & adoption; Committee Programme

Meeting report

Defence Laws Repeal and Amendment Bill: Department of Defence briefing, and deliberations
The Chairperson said the Department had been asked to brief the Committee on matters relating to the calls for integration by various groupings that had not been part of the integration process to make up the new South African National Defence Force (SANDF), specifically the Khoisan, prior to the clause by clause consideration of the Defence Laws Repeal and Amendment Bill (the Bill). The Bill was due to be debated in the House the following Tuesday.

Mr Kenneth Mashego, Legal Services Advisor, Department of Defence, said the Department of Defence (DOD or the Department) noted that the integration of armed forces into the new South African National Defence Force was provided for by the Interim Constitution, in section 224, which said that the SANDF would consist of the South African Defence Force (SADF), any defence force of any area forming part of the national territory of South Africa, including the Transkei, Bophuthatswana, Venda, Ciskei (TBVC) states, any armed force as defined in section 1 of the Transitional Executive Council whose names, at the commencement of the Constitution, were included in a Certified Personnel Register (CPR) referred to in section 16. This subsection would not apply to members of any such defence or armed force if the political organisation under whose authority and control and with which it was associated and whose objectives it promoted, did not take part in the first election of the National Assembly and provincial legislatures under this Constitution.       

The result of this section was that on the promulgation of the final Constitution on 27 April 1994 the SANDF consisted of members of the South African Defence Force (SADF), the defence forces of the TBVC states and non-statutory forces including MK, Umkhonto We Sizwe and the APLA forces. It had to be borne in mind that integration was not concerned with the taking up of individuals, but rather of the forces as stipulated in the interim Constitution. This was very clear. Any person who thought s/he qualified for integration should have been a member of the stipulated forces. The Department wanted to make it clear that integration looked at the forces themselves, not at individuals. The soldiers who were members of SADF at the time, were taken up by the SANDF according to lists submitted by the SADF. Individual soldiers of the SADF who for any reason did not take up employment in the new SANDF did not have a right, as individuals, to be integrated. Integration was not for individuals; it was for armed forces. If they were not taken up in the SANDF because their forces left them behind, their course of action could not be supported by integration. He repeated again that the legislation on integration was very clear, individual members could not be brought into the new SANDF for only the SADF had a right and the SADF had integrated its members into the SANDF.

In regard to questions raised about the Khoisan Self Defence Unit (KSDU), he said that integration was concerned with the take up of members according to the Constitution. Again, he said that integration looked at the forces not at individuals. Questions had been raised about the KSDU as they did not fall within the prescripts of section 224 of the interim Constitution. The KSDU was non-existent at the time and because of integration was terminated in 2001.

The Minister was currently not empowered to integrate anyone, especially now that it was 20 years later. The court had taken a decision that there was no legal right to integration.

The Chairperson asked whether the Khoisan were part of the SADF.

Mr Mashego said he could not definitely assert so. The SADF did not require self defence units, as the SADF was a statutory body. The Court had made it clear that there could not be a right to be heard in the absence of a legal framework. The court said it could not impose its will on the Department to hold a hearing on the matter.

Mr B Bongo (ANC) said the plight of the Khoisan was a serious matter to be treated sensitively. The Khoisan’s plight was not looked at in 1994. He submitted that the Department, in the re-integration process, should make enabling legislation to make the Khoisan feel part of the country. If there was no legislation for this then Parliament could attend to it.

Mr J Skosana (ANC) said he was reminded of the pain and suffering endured by the Khoisan, who suffered more than anybody and were now left out of the mainstream of education of the country. He agreed that enabling legislation had to be created to integrate the Khoisan and make them part of the country.

Mr S Esau (DA) said that nobody disagreed that integration was occurring in a diverse South Africa. In terms of defence however there was no legislation to integrate. There had been a fast tracking programme to assist those who were integrated to be educated and skilled. However, from a realistic standpoint, 21 years had passed and those conditions applied no more. The option, for those that were not integrated, to be considered under the military veterans associations was still open but the definition of a military veteran did not allow for the inclusion of people like the Khoisan. The South African Coloured Corps (SACC) also had not been made part of the discussion and had been disbanded, notwithstanding that it had been part of a statutory force. The SACC had later been given recognition and they were also asking for integration. They had been compensated somewhat, but had not been considered as military veterans. He supported the call of members for groups like the Khoisan, who had fought since 1781 against colonialists, to be given recognition but said it had to be done in a realistic way. The court verdict on the Khoisan matter was correct but the court had advised the Minister to engage with the complainants. He asked if that did ever take place?

Mr D Gamede (ANC) said the point of a termination date did not hold water, as that date had been set by Parliament and could be reviewed. The issue needed to be studied and the law needed to be changed if that was required.

Mr Skosana said new issues such as the SACC could not be added now for the issue under discussion was the Khoisan matter.

Mr Bongo said that Parliament had created the law and if there was something wrong with the law then it should be improved. He accepted the judge's verdict, which had looked strictly at the law, so it was up to Parliament to change the law.

The Chairperson asked if the Khoisan Self Defence Units had been investigated and whether they appeared on the Certified Personnel Registers (CPR) list.

Mr Mashego said there appeared to be confusion about the groups that were being talked about, whether it was the Khoisan as a people or as a Self Defence Unit. He said there were Khoisan members who belonged to the SACC and there were Khoisan who had been integrated, but they were not integrated as individuals but as members of a military force structure.

The Chairperson said it seemed clear that Members felt that the country’s democracy should promote inclusivity, not exclusivity. The legislative frame work had to be recognised and not undermined, but it had to be remembered that the legislation had excluded some members of non statutory forces who could not be part of the processes. The Committee should not have a silo approach as legislation was made by the Members. The Committee should not only look at the legislation but also look at the circumstances surrounding the plight of the Khoisan people. He said it appeared that Members felt that further investigation should be done on the KSDU, with the aim of including them, and all available options had to be exhausted to include the Khoisan. This, however, must be done separately from the current process the Committee was busy with, which was the consideration of the Bill. 

Clause by clause deliberations
The Committee then went through the Bill clause by clause.

Mr Esau asked, having regard to the discussion on integration by the Committee, whether the laws would be repealed and new legislation be considered, or whether the relevant laws would be amended to allow for the inclusion of the Khoisan.

Mr Mashego said the former path would be the way to go forward because the Integration Act had excluded certain groups that wanted to be recognised. The Department should start afresh with legislation which would require that a policy decision be taken, and that would be used as a guide to draft the legislation.

Mr Bongo said that amendments had to be done to change the dates, because starting afresh would take a long time to process the legislation.

The Chairperson said the matter before the Committee was not to consider amendments, but the repeal of laws as contained in the Bill.

Mr Bongo said that if the laws were repealed, then there would be nothing to amend.

Mr Mashego said that if the legislation was amended to include an additional group, it would be affected by other pieces of legislation which were attached to that specific Act and it would require a policy decision to look at these other pieces of legislation. Even if the dates were changed, the Khoisan would still be excluded because of the circumstances of the Act which excluded them. His suggestion was that a new policy decision be sought.

Mr M Mncwango (IFP) said that if the process had to be started afresh it would be a long drawn out process and many of the affected people would be gone by the time it came into effect, so amending the legislation would be better than expunging it..

Mr Skosana said the Committee was in the process of repealing the Bill. He agreed that time was needed for a consultation process.

The Chairperson reminded the meeting that the Bill still had to go to the NCOP. The process regarding the Khoisan would continue, irrespective of the Bill. It was Members of this Committee who would give an instruction to the Department. In the meantime the Repeal Bill had to be adopted.

Mr Bongo said that Mr Mashego should be given time to consult and get further advice regarding policy.

The Chairperson said that the Department had to look at all options to include the Khoisan, but that the Committee meanwhile should adopt the repeal Bill.

The Committee agreed to the Bill without amendments

Amendment of the Committee Programme
The Chairperson said there had been a suggestion that joint oversight visits be undertaken. In the oversight period, 15-18 September, the Committee was supposed to be going to the borders but if other departments were to be taken on board it would include harbours and airports also.

Mr Esau asked if the NCOP members would also be included.

Mr Gamede said it would be a cluster oversight and include also the portfolio committees dealing with international affairs, police and state security.

The meeting was adjourned.