Defence Laws Repeal Amendment Bill [B7-2015]: Department of Defence briefing; Committee Reports adopted

NCOP Security and Justice

23 September 2015
Chairperson: Mr D Ximbi (ANC, Western Cape)
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Meeting Summary

The Department of Defence briefed the Committee on the Defence Laws Repeal Amendment Bill [B7-2015]. The Department gave a summary of each clause and the reasons for repealing or amending all of the Acts named in the Bill for repeal. These mostly involved “time-specific Acts” which were now redundant as the period in which they had been relevant had passed. The Acts that were to be repealed by this Bill included the Demobilisation Act 99 of 1996, the Demobilisation Amendment Act 128 of 1998, the Defence Special Tribunal Act 81 of 1998, the Termination of Integration Intake Act 44 of 2001 and the Castle Management Act, 1993 (No 2017 of 1993).

Members had questions relating to issues with ranking of those who had not been integrated into the South African National Defence forces and also about the ways in which other countries had dealt with mobilisation. Members felt that they had insufficient information and time to consider the Bill fully and with some unresolved issues, many did not feel that they were in a position to adopt the Bill. It was decided that the Department would send further information and answer any remaining questions in writing, and the Committee would look to adopt the Bill at the next meeting.

The remainder of the meeting involved adoption of a number of Committee reports, which were:
- Draft report on Proclamations in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004 (Act No 33 of 2004)

- Adoption of Draft report on the Child Justice Workshop
- Adoption of Draft report on Matlosana One Stop Child Justice Centre. There was also the adoption of the minutes, and following that an overview of the fourth term of Parliament.

A caucus was called in respect of the Draft report on provisionally suspended magistrate Mr L Zantsi and this issue was to be discussed at the next meeting and adopted then.

 

Meeting report

Defence Laws Repeal Amendment Bill [B7-2015]: Department of Defence briefing
Adv S D Mkosana, Legal Advisor, Department of Defence, apologised that she had been unable to provide the Members with copies of the Bill in advance of the meeting. She confirmed that she had written a memorandum, for the attention of the Committee Secretary, so that Members could get a copy as soon as possible.

Mr Khalabi Mashego, Legislative, Drafting and Legal Interpretation Officer, Department of Defence, introduced the Defence Laws Repeal Amendment Bill (the Bill) to the Committee. He noted that this had emanated from a project from the South African Law Reform Commission (SALRC), looking into whether legislation on the statute books was in alignment with the equality clauses of the Constitution, and was still necessary. The document ‘Project 25’ was created, which listed a number of pieces of relevant legislation under the Department of Defence. Several issues were raised that the Department looked into and it was decided that this Bill would be written to repeal the defence legislation that was considered to be obsolete or redundant, essentially Acts that needed to be repealed.

The Bill was very short, only containing two clauses. The first clause detailed two schedules to the Bill. The first Schedule concerned laws that had to be repealed or amended. He said that the Bill would repeal twelve different Acts, many of which dated back to 1929 and were no longer relevant. There were also four ‘time-specific Acts’, which he explained as Acts that had been promulgated under and intended for a specific time frame, which had now passed.

The “time-bound” Acts were then explained.

The Demobilisation Act. No 99 of 1996, provided for members of the former non-statutory forces to be integrated into the South African National Defence. This Act had allowed for those members to be mobilised and paid, but the period to benefit from the Act had passed so it had to be repealed in its entirety. 

The Demobilisation Amendment Act 128 of 1998 amended the Demobilisation Act to further regulate benefits and related matters. With the repeal of the Demobilisation Act, it could also be repealed.

The Defence Special Tribunal Act 81 of 1998 provided a process to decide upon integration disputes, enabling the Labour Court to act as a special tribunal in the adjudication of such cases. This period had now passed and therefore the Act should be repealed.

The Termination of Integration Intake Act 44 of 2001 created the cut-off date for integration of members from non-statutory forces into the South African National Defence forces. This date was 31 March 2002. Since there was no longer any process of integration the need for the Act had lapsed. 

Schedule 2 outlined legislation which was not time-bound but which needed to be repealed for other reasons. Section 7(f) of the Castle Management Act, No.2017 of 1993, was found to be discriminatory on the basis that it stipulated a particular age to be considered for membership on the board. The SALRC suggested that this be amended in order to bring the Act in line with the Constitution.

Discussion:
Mr M Mhlanga (ANC, Mpumalanga) asked whether the Bill had been brought to the Members for adoption, or if this meeting was merely held for consultation. He commented that if there was an expectation on the Members to engage with the proposed legislation, there had not been time for sufficient deliberations on the issue. 

Mr Mhlanga also wished to know about the ranking system. He had concerns that if the Defence Special Tribunal Act 81 of 1998 were to be repealed, anyone not yet integrated and who did not have a rank would lose out.

The Chairperson answered that the purpose of the briefing was for the Committee to adopt a report, but this could be postponed to a later stage.

Mr Mashego addressed the issue of ranking, acknowledging that it would always be an issue. He explained that outside of the Special Tribunal there were other processes within the South African National Defence force for members to follow. For example, he mentioned the military ombuds service created by the Department of Defence. The process under the Act in question was outdated and only applied specifically to those who integrated into the SA National Defence Force, during the period of integration, which had now passed.

Mr Mhlanga suggested that the Members not adopt the Bill today. Some issues required further consideration, and for this reason he suggested that the Committee be provided with all relevant documentation and the decision should be taken on another day.

Mr D Michalakis (DA, Free State) agreed that Members were not in a position to adopt anything at the current meeting, and that Members should merely note the Department's briefing today

Ms T Wana (ANC, Eastern Cape) asked what other countries had done in terms of mobilisation. She asked for clarification on  frameworks set up by the Department of Defence in terms of reparations for those who had been decorated. She raised concerns about implementation. She wondered why it took the South African Law Commission so long to review these Acts. She agreed fully with Mr Michalakis that this session should be for a briefing only, and the adoption of the Bill must stand down to a later meeting.

Mr Mashego said that unfortunately he was not in a position to answer the question on the mobilisation systems of other countries. He outlined the process of the defence legislation, saying that the Law Reform Commission was mandated in 2003 to start this process. The Commission had, however, handled all of the legislation in relation to defence. The drafting of this specific Bill only commenced in 2010 and was ready now.

Mr Mashego asked if Members had any specific concerns that they wished to have clarified at the next briefing.

Ms Wana said that the Members would pass any questions to the Department through the Secretariat.

Disciplinary proceedings against magistrate Mr Zantsi
The Chairperson noted that this matters had been discussed at length in the previous meeting. He called a caucus to deliberate, which returned with the suggestion that the matter be postponed to another meeting for a decision.

Draft Committee Reports: Adoption
Draft Committee Report on the Revised Draft Rules made in terms of section 7(3) of the Promotion of Administrative Justice Act, 2000 (Act No 3 of 2000).

Mr L Nzimande (ANC, KwaZulu Natal) suggested that the Report was a true reflection of the Department’s previous briefing.

The Chairperson said that the document in question was short and that Members knew most of the details already.

Members adopted the Report.

Draft Committee Report on Proclamations in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004 (Act No 33 of 2004), and tabled in terms of section 26 of the Act.
Mr Nzimande highlighted how important it would be for Members to cooperate on adopting the Proclamations report. South Africa had signed all of the relevant United Nations treaties, there were no South African citizens on the Security Council lists as yet, and he felt that it was important for the security of the country to engage with the list and to adopt it. This matter had been discussed at length at the previous meeting.

Mr Nzimande wanted to stress that this was not an issue related to Al Bashir, as it was an entirely separate issue from that of people who were charged by the International Criminal Court.

Mr Mhlanga commented that at the previous meeting, Members were told that a study group would be formed in order to fully consider all of the matters. He felt that, since this had not yet happened, the Members should not adopt the Report. 

He also commented on Al Bashir, saying that the relevance of the current context must be considered; he had been called a terrorist in the past. 

The Chairperson told Mr Mhlanga that the Committee was composed of a number of different parties and it was necessary, in this instance, and to avoid conflict, that the Members hold a caucus.

Mr M Chetty (DA, KwaZulu-Natal) agreed that there should be a caucus in the interest of progress.

The Report was not adopted pending the caucus.

Draft Committee Report on the Child Justice Workshop.
Ms Wana, who told Members that she had been at the workshop, and that the Report correctly reflected the proceedings.

The report was adopted.

Draft Committee Report on Matlosana One Stop Child Justice Centre.
Ms Wana moved for adoption of this. She noted an apology on the handout.

The Report was adopted.

Committee Minutes
Members adopted minutes of 25 June 2015, and 2 September 2015.

Fourth Term Committee Programme
The Secretariat outlined the programme of the 4th term to the Members. On 14 October, the Department of Defence would brief the Committee and the Bill discussed earlier this morning could be adopted.

Rescheduling had taken place in respect of 20 to 23 October. No briefings were noted for those days.

On 28 October there would be briefings from the Department of Justice and Constitutional Development on the Judicial Matters Amendment Bill, and the Department of Police on the Domestic Violence Act, stemming from the Government’s 16 days of Activism against All Forms of violence against women and children.

On 4 November there would be a workshop with the Magistrates Commission concerning limitations in disciplinary matters and a presentation about the legislation, on conducting disciplinary matters more quickly.

Various meetings would be held in both KwaZulu-Natal and Gauteng during the fourth term for oversight integration. The Taking Parliament to the People Community Report-Back sessions had been referred to the Committee for consideration, this required the Committee to do on-site visits. Matters would be rounded off in the meeting on 25 November.

Mr Michalakis asked whether the Members could also go to visit a child justice centre in the Free State on 23 October, whilst they were in the area.

Mr Nzimande urged that the Committee prioritise the Criminal Procedure Amendment Bill so that it could be enacted as soon as possible, and hoped for further documentation to be sent soon to allow Members enough time for consideration. He also hoped that the Committee could have an entire week undisturbed for petitions.

Mr S Thobejane ((ANC, Limpopo) thought one of the principles of these Committee meetings was to communicate and make progress, but was disappointed with the lack of organisation around the timings of meetings and miscommunications about start times.

Ms Wana agreed, saying that she hadn’t been told of a petition meeting.

Mr Mhlanga agreed with Mr Michalakis on the idea of visiting the Child Justice Centre on the Free State.

The meeting was adjourned.

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