The Department on Defence briefed the Committee on matters relating to its backlog and a status update on the review and completion of certain policies and possible tabling of legislation. The first presentation documented the military court cases received and finalised from 1 April 2017 to 30 September 2017; the presentation reflected an increasing backlog of cases in the given period. The next presentation highlighted policies being dealt with within the Department of Defence and these included: the Internship policy, The Human Resource Development Policy, The Directive on the Execution of Defence Diplomacy policy, Defence International Affairs policy, the promulgated Acquisition of Armaments in the Defence Policy (DAP 1000 Policy), the Defence Intangibles Assets Management Policy, the Department of Defence Procurement Policy, and Compliance to the Department’s Corporate Governance of Information Communication Technology Policy.
Members asked questions relating to the reason for non-appointment of judges for such a long period and the status of judges that were appointed for military court cases, particularly if they were employed as employees of the Department or on a contractual basis. Members expressed concern relating to the increasing backlog of cases and asked whether there would be extended hours, after-hours or weekends being used by the judges to ensure cases were attended to. Questions were raised relating to the promulgated Acquisition of Armaments in the Department of Defence Policy, specifically on what the policy says about the relationship with Armscor, Denel, other organisations or other suppliers. Members also asked questions on the Intellectual Property, particularly pertaining to whether other companies and Denel admit that the Intellectual Property belongs to the Department of Defence. Concerns were also raised on the duration it took for certain bills, specifically the Military Discipline Bill, which has been on the table since 2011.
In relation to non-appointment of judges it was articulated that from 2015 leading to 2016 the assignment of judges was not put in place and were not authorised to proceed with their work due to processes that were within the South African National Defence Force. The main reason for that was in relation to the new requirements which ensured that all military judges are also vetted. Regarding the status of judges, on whether they are employees or contractually employed, it was reported that they are a mixture of the two. Some are experts, some are in legal services and running their own law firms, some are lawyers by profession but they are employees of SANDF. In relation to extended hours, it was reported that the military courts do not have extended court hours as a daily practice but the Adjutant General and the local representatives of the Adjutant General who are located at all regional offices account on a monthly basis on the court hours utilised and the amount of cases completed. The Department does have acquisitions but on the issue of Denel and their capacity to supply they acknowledged that it is an issue that continues to be a concern. The Department committed to assist Denel in whatever way they can. On overseeing financial management and performance management of Denel, Denel reports to the Department of Public Enterprises and National Treasury, so the Department of Defence can merely assist Denel where they can. The Armaments Acquisition does relate to Armscor, in the current Acquisition the Department stipulated for the end user to develop the requirements and specifications. On the issue of Intellectual Property register, while the Department mentioned it in their policy, they are not yet where they want to be, at the same time they have Intellectual Property policy in the Department.
Due to limited time, Members posed questions to the Department which they requested to be responded to in writing, these included a quantified documentation of the financial implication of when cases are dealt with and when people are put on suspension. As well as the consequences for soldiers who are being found guilty of sexual assault.
The Chairperson announced that the presentation by the South African Military Veterans Association (SANMVA) would not take place in that meeting because it required the presence of the Minister and Deputy-Minister of the Department of Defence and Military Veterans who were unavailable at the time.
Brief to the Portfolio Committee on Defence: Military Court Case administration and legislative programme
Mr Sam Makhudu Gulube, Secretary for the Department of Defence (DOD), thanked the Chairperson and said he would give two presentations. The DOD had been requested to brief the Committee on matters relating to its military court case administration. In particular, the aim of the meeting was to brief the Committee on the military court cases received and finalised from 1 April 2017 to 30 September 2017.
The most crucial slide in the presentation was slide number five, which documented the exact numbers pertaining to the cases in question. The DOD was not given a guideline regarding which period to report on so they decided to report on the past six months of the financial year, April to September 2017 period. Slide five documents the number of cases that were outstanding in the financial year, the number of cases that were still outstanding and the number of cases handled on a monthly basis.
The DOD’s military court system, when fully functioning, is made up of 40 judges. They had experienced challenges in the past year and a half in terms of filling the posts for these judges. These challenges were related to changes made to follow the amendment of the Military Discipline Bill, and looking into the qualifications of the judges as well as what level they should be remunerated.
Out of the 40 cases, 26 judges are senior judges and 14 judges are review judges. The review judges form a panel like a court of appeal. Therefore there are 26 judges that form the regular military court and 14 judges to review cases. He mentioned this because when the year started they only had 12 judges. The judges are appointed for the period of two years after two years new judges are appointed. In May 2017, the Minister of the Department of Defence appointed 14 more judges and recently in October 2017, 14 more judges were appointed. This would give more context to the numbers seen in slide number five in the presentation.
Mr Gulube explained that ‘MJ’ in the presentation referred to ‘Military judges’ and ‘Nolle prosequi’ meant that prosecutors decided that the concerned cases were not going to be prosecuted. In the past 18 months the DOD had a backlog due to appointments to judges and checking qualifications. The military court only started reviewing cases in June 2017. He acknowledged that they had challenges in the past, yet recently had picked up operations. He predicted that for the month of October 2017, they would have many more cases because this is the first month in which the military courts would be fully functioning with all the judges appointed. He also predicted that in six months’ time, the DOD would be reporting on an improved picture seeing that the military courts were now fully functioning. He reported that as from September 2017, the opening case balance is at 2531 cases and 82 of those cases would not be prosecuted.
With regard to their legislative programme, the DOD had received an indication to limit the number of bills due to the limited amount of time between then and March 2018, hence they could only present two or three bills in that given period. The Military Discipline Bill is still with the State Law Adviser for pre-certification. The Defence Amendment Bill has been through Cabinet and at that stage it was on the schedule for consideration by Parliament. The Hydrographic Bill was awaiting a timeslot in Cabinet. He added that between then and March 2018, the DOD would like to see all three bills in Parliament. Of those three bills, the most important bills are the Military Discipline Bill and the Defence Amendment Bill. The Hydrographic Bill is mainly an update of the management of hydrographic vessels.
Presentation: Status of Policies of the Department of Defence
Mr Gulube proceeded to slide number five, which were policies being dealt with within the DOD. Some of those policies might be new policies but most of them are reviews. Generally speaking, all policies must be reviewed in the period of five years, others might be three years. The first policy is the Internship policy, which is almost done in terms of drafting. The Human Resource Development Policy is one of the policies that were in the process of being reviewed. The Directive on the Execution of Defence Diplomacy policy is one hundred percent done and it should be ready for signing off from the various forums of the DOD. The same went for the Defence International Affairs policy.
On slide number six, the promulgated Acquisition of Armaments in the DOD Policy (DAP 1000 Policy) was also one of the policies that was up for review, it is complete, it awaits approval. The Defence Intangibles Assets Management Policy was developed because the DOD did not have an Intellectual Property (IP) policy. The DOD Procurement Policy deals with non-armaments and non-weapons procurements, it is a policy under review. The Compliance to the DOD Corporate Governance of ICT Policy is a new policy altogether because the old ICT policy was not aligned to the new government overarching ICT policy.
Mr D Gamede (ANC) on the first presentation, appreciated the fact that the DOD achieved full appointment of judges. He asked the reason for non-appointment of judges for such a long period. Secondly, if the DOD had identified those reasons, what actions had been taken to ensure that it does not occur again? In the DOD’s assessment what are the causes of indiscipline among the soldiers and if that has been identified, how do they plan to arrest them? He asked this because there will be an issue of seeking increases in budgets whereas the DOD could minimise the number of cases by correcting the discipline.
On the second presentation, he was concerned about slide 10 which dealt with policies awaiting corporate approval. Regarding the Creditor Payments Policy and Transformation Management Policy, he asked for a timeframe for those two policies because they are crucial for the country’s future.
Mr S Marais (DA) on the first presentation, asked for a confirmation from Mr Gulube relating to those judges that have been appointed, what is their status, are they employees of the Department? Are all them or some of them employed on a contractual basis from outside or are some of them used on an ad hoc basis. He further asked what plans had been put in place to communicate that and ensure that the people that are supposed to be charged, are being charged. The number of cases might decline but if the actual cases on the ground of ill-discipline proceed, then the rot stays.
On the second presentation, he asked for confirmation that the policies would be accessible for Members to look at. At this point the Members had seen the names of these policies but the devil is in detail and only after going through the policies then only could Members determine if they support them or not.
On the Human Resource Development Policy on slide five, he asked to what extent can that align with the requirements of restructuring, repositioning and bringing Human Resources (HR) down to 40 percent of the budget. Do they speak to each other and do they support each other, otherwise they could be opposing another which is not helpful.
On slide six, Policy number six which is the promulgated Acquisition of Armaments in the DOD Policy, he stated that the Committee had recently received a presentation by Armscor where they raised concerns regarding the ability of Denel to supply what the defence force is requiring. It is good to have a policy, so he asked what that policy says about the relationship with Armscor, Denel, other organisations or other suppliers.
On Intellectual Property (IP), do the other companies and Denel admit that the IP belongs to the DOD or are there agreements with regard to the IP? What guarantees or assurances does the Department have that the IP stays as property of the DOD?
Ms N Mnisi (ANC) asked, since the adoption of the Defence Review, what measures have been put in place to ensure that military court members are provided with adequate mechanisms to oversee and address the conduct of their subordinates. On extended court hours, what was the implication thereof? Given the reduced allocation of the division, how did that impact on the appointments of the military judges?
Mr S Esau (DA) regarding the different bills and essentially the duration it took, specifically the Military Discipline Bill which has been on the table since 2011, expressed that Members have over the years insisted on progress that has been made on the bill.
When looking at the military court cases, more and more cases are being added. Although they are dealing with cases, the backlogs are also increasing. He asked whether there would be extended hours, after-hours or weekends being used by the judges to ensure cases are being attended.
When cases are dealt with, what are the financial implications, were people being put on suspension on paid leave, which is a huge cost to the Department? The case load is increasing, what was the nature of cases that are being dealt with, are they fraud or corruption?
Mr Esau asked if there were instances of the Officer Commanding (OCs) not fulfilling their duties and responsibilities. This has happened, he recalled a case when a person was walking around drunk on duty on the facility and the incident was reported several times yet no action was taken against that person. The Committee visited that site and there were no consequences implemented.
With regard to the Defence Amendment bill, he asked whether further amendments or changes were anticipated. Policy number seven, the Defence Intangibles Assets Management Policy, speaks to the IP issue; he asked if the policy was sufficient to supersede the Intellectual Property Rights (IPR) act or is it necessary to amend the Defence Act and indicate that the IPR act supersedes any other act. He wanted to make sure whether the legal side of the DOD has investigated that. If the amendment is on the table, he asked if that had not been included as yet, can that be included.
He requested and strongly advised that the Chairperson ensures that Committee engages with the State Law Adviser, particularly the adviser should brief the Committee on the Defence Act along with the other bills and the progress thereof.
The Chairperson welcomed the DOD to respond on matters raised.
Mr Gulube thanked the Members and apologised on behalf of Brigadier General Thipe Matjila for his late arrival. He allocated questions to Brigadier Gen Matjila to answer after his own response.
On the issue of discipline, he felt that commanders are not taking responsibility of their duties to discipline the members. Most of the time they find themselves going to Simon’s Town, Pretoria and Durban to deal with disciplinary cases which should have been dealt with by the commander on site. ‘What is happening with military culture and responsibility’ is a question that he poses himself.
He added that he liked the idea of the State Law Adviser working with the Committee, especially on the Military Discipline Bill. The Defence Amendment Bill is done, and the focus of the Committee must be on the military justice and the Military Discipline Bill.
On the status of judges, whether they are employees or contractually employed, they are a mixture of the two. Some of them are experts, some are in legal services and running their own law firms, some are lawyers by profession.
Relating to making policies being accessible, actually most of the policies are supposed to be on the DOD’s website. It seemed that the policies on the website are old policies, so the DOD has a challenge with updating the website. DOD will put together all the policies and send them to the Chairperson’s office and also organise to have them sent electronically to ensure that Members have access to them.
On the question of bringing Human Resources (HR) down to 40 percent of the budget and reaching alignment with budget allocation, it is questionable whether the budgeting itself speaks to the policy but the Human Resource Development Policy itself does speak to the rejuvenation of the Defence Force. When it comes to budget allocation, the Department knows that they are not at 40/40 where the budget allocation is supposed to be. The Department is engaging with National Treasury on that.
The DOD does have acquisitions but on the issue of Denel and their capacity to supply, Mr Gulube acknowledged that it is an issue that continues to be a concern. The Department committed to assist Denel in whatever way they can because Denel is very critical for the capabilities of the South African National Defence Force (SANDF).
On overseeing financial management and performance management of Denel, Denel reports to the Department of Public Enterprises and National Treasury, so the DOD can merely assist Denel where they can. The Armaments Acquisition does relate to Armscor, in the current Acquisition the DOD stipulated for the end user to develop the requirements and specifications. Then they can come to the office of the SANDF and say what the plans and the requirements are, if they require it immediately or if it is medium term or long term. Once the planning and the budgeting of the requirements are finalised then the DOD hands over to Armscor. Armscor has an independent process, it reports to the Minister of Defence and Military Veterans and he himself can only step in as an advisor to the Minster regarding the Armaments Acquisition, but the Minister appoints the board of Armscor.
On the issue of IP register, while the DOD mentioned it in their policy, they are not yet where they want to be, and at the same time they have intellectual property policy in the Department. A lot of work has been done, as well as the work to put together that register of intellectually property of the DOD.
To answer the question, so far Armscor is delegated by the DOD to manage the IPs of the Department. Armscor is being capacitated, the capacity that is there in Armscor right now is not just good for defence, but it is good for the country for other departments to utilise. Armscor has one of the biggest concentration of engineers in one state owned institution, up to more than one hundred engineers that are appointed, and are also building the capacity of young engineers both black and white. The DOD relies on those engineers to ensure that the intellectual property is protected and properly serviced. He did not have anything to show in terms of what had been benefited as the Department of Defence (DOD) from the IPs that were developed.
On the issue of the Intellectual Property Rights (IPR) Act, it is an issue for the DOD that has not been resolved, he asked the Committee to assist where possible. The IPR act talks about the intellectual property that has been developed by the government fund. For instance, if one raises funds in London or New York as a company it is fine. But when a government funded company or institution develops intellectual property, it is stated in the act that intellectual property does not belong to government, it belongs to the company or the service provider that developed the IP. The motivation by the lawmakers was to give the private industry a chance to commercialise and make money.
On the adoption of the Defence Review, he said yes, measures have been put in place to ensure that military court members are provided with adequate mechanisms to oversee and address the conduct of their subordinates. The good thing about the Defence Review is that it enables the DOD to monitor and provide oversight. After the Defence Review, the question is, does the DOD have a Defence secretariat strategy and structure that will be aligned to the Defence Review. For him that is the main issue.
There was a debate as to whether the Hydrographic Bill and the National Hydrographic office should be sitting in the Navy or that it should be sitting at the Department of transport. The military has rarely been the driver of innovation, even when looking at the hydrographer you find that in some countries it is still sitting in the Navy and in other countries it sits in the Department of transport. At least for now, it sits in the Navy and that is what the Hydrographic Bill states. Hence as the DOD they have committed themselves regarding this but they do work closely with the Department of Transport in terms of managing the Hydrographic Bill.
Brigadier General Thipe Matjila, Defence Legal Services, apologised to the chairperson and the Committee for his late arrival and stated that he was acting on behalf of Major General Eric Mnisi, who was out on a military exercise.
He spoke on the issue of the military judgements, particularly the opening balance of the cases in April 2017 where there was a total of 2220 cases. The position in 2016 was that the assignment of the military judgments was done in terms Military Discipline Supplementary Measures Act of 1999. The assignment that was given prior to the financial year ending April 2015 would have expired on 31 March 2016. The practice is, prior to expiry, submissions are made the year before (in this case that would be the year 2015) for the Minister to consider the extension of those assignments beyond April. What transpired in 2015 leading to 2016 was that the assignment of judges was not put in place and were not authorised to proceed with their work, not due to the offices of the ministry but due to processes that were within SANDF, which he would explain, as a result the cases increased from April 2015 up to September 2016 when such assignments were not in place. The main reason for that was in relation to the new requirements which ensured that all military judges are also vetted.
As the Committee was aware, the vetting within the Department is not only problematic because it is a scare skill, it is a process outside the division and is normally facilitated through the environment of intelligence. By September 2016, 12 of the 19 existing functional judges were vetted and as a result their assignments proceeded. For 2017 it had been difficult to finalise the remainder of the vetting processes for reasons that are currently unknown. Obviously, the gap left by the several odd remaining judges who were not functional explained the statistics that were presented.
The requirement of the office of the Adjutant General had been tabled and re-tabled for higher consideration to ensure that the numbers are increased in terms of the number of judges, obviously, partly to deal with the backlog and to ensure that backlogs are prevented in the future. Two weeks before the meeting, 42 new judges were assigned but not fully functioning yet. Two of the 42 judges, were assigned purely for dealing with ad hoc matters that were still outstanding as of 31 March 2017. Another two out of the 42 judges are reserve force members. There is obviously a challenge with reserve force capacity because of the dwindling resources and the need to observe austerity measures within the Department. Twenty-six within the total are full time military judges hence their primary purpose is to preside over matters, and the remainder are part-time military judges to support on an ad hoc basis when the need and requirement arrives both within and outside the Republic.
There are members that have the suffix, “pe” and those with “mc” after the source number, all these members are members of the SANDF. The only difference is that those with the “pe” suffix are more permanently employed in that their contracts do not have to be renewed. Those with the “mc” suffix imply that on expiry of the contract term, which is normally 10 years, the member indicates their interest to renew their contract and the Department goes through due processes to evaluate whether it will accept the contract renewal of the member. To answer the question, indeed they are serving members of the SANDF.
To round up on the military judges, due to challenges experienced by the Department due to resignation and retirement, the military law practitioner’ posts are not filled. The item 10 issue on remuneration, there is a broader deficit in the Department. When a post gets vacated, whether it is a prosecutor or a defence council etc. that post will not be filled. The only way to manoeuvre around that is to identify a candidate within those court secretary functional domains who may be suitable to ascend to a responsibility whether it is prosecution or the judges’ domain. As a result, they are not operating in full, functional capacity. He did not have the exact figure but speculated that their footprint is at around 366 out of 446 posts available within the division.
On the issue of Nolle prosequi and how it impacts on the issue of discipline within the military, Nolle prosequi decisions are taken by the Director Military Prosecutions within its independent, functional responsibility upon reviewing cases flowing from command level. Discipline issues are initiated by the commanders. The military legal service is merely there as a tool to ensure that discipline is enacted. Whatever steps that need to be taken are not initiated by the Legal Services Division, it must emanate from the commander level. It was important to explain to the Committee. 415 cases are now adding up to the backlog, but he highlighted that between April 2017 and June 2017, the judges were not assigned. What happened in the meantime, the prosecutors supported commanders and military police in ensuring that investigations that are completed will be case-ready when the court resumes. That exercise would have unfolded as part of their defence duties, particularly the prosecution council and the military defence council, unless members opted for private legal counsel.
By the end of June 2017, 415 new cases were received in addition to the 2220 cases that were the opening balance as at April 2017. This is how the backlog accumulates in a period of three months when there is no action, which came as a result from some other backlog, so the DOD is sitting again with a deficit to start with for the amount of cases available.
Nolle prosequi occurs as a result of different reasons, it could either be because the case was a frivolous exercise from the beginning from the command level where the commanding officer and his/her subordinate could have had personal tension, or the witnesses pass on and the case will not be considered. Other situations could be complications around deployment and the witness is outside of the republic and people state that “I will testify if you pay me so much”, this has happened in Burundi and the Democratic Republic of Congo (DRC). In other instances it could be poor investigations through the military police. So there are many other reasons for Nolle prosequi, but normally, the previously mentioned reasons are the common reasons.
The military retains jurisdiction over its members even after they have retired or resigned. Unlike the civil environment, the jurisdiction is not based on the area you reside, it is attached to the person because you are subject to the military court. As a result it is still possible to pursue matters even after members have completed their term or function within the organisation.
On the issue of extended court hours, unlike the magistrate courts, they do not have a permanent military judge seated at a specific court at this case where cases run from Monday to Monday with that court allocated to that specific judge. Due to the structure of the organisation the DOD has to take their services to the environment where the matters are arising, as a result there is a lot of expensive movement amongst the available judges. Regional satellite offices like the one in Cape Town sitting at the Castle are also responsible for cases up to the Eastern Cape, meaning their responsibility reaches up to Grahamstown. The one sitting in Durban has to move to Umtata, Ladysmith to Mtubatuba. There are environmental factors that impact on effective utilisation because there is also movement. Unlike with civil cases where the prosecutors and defence councils are co-located, military court judges and legal counsel have to move around.
Certain matters must be headed by senior military judges either because of the rank that is concerned, for example for the rank of “Major” and above those cases must be heard by the court of senior military judges. Given the limited number of those judges, before the assignment of the 42 judges and 26 full-time judges, they had two senior military judges who had to run around throughout the entire country and also go to Burundi or DRC to hear matters arising.
On the issue of suspensions, there was a High Court ruling where the ruling stated that suspensions cannot be without pay, suspensions under any circumstances have to be with pay so that families of members do not suffer. As a matter of practice, although it is not administered by the legal division it is a function administered by commanders. The officers commanding make applications through their channels of command requesting for a specific member to be suspended.
Whether a member who is due to stand trial may be suspended, it is a matter administered by commanders so prosecutors cannot advise otherwise on that, their primary function is to ensure that the member’s case goes to court even if they are suspended. The implications on those suspensions in terms of the matters that are protracted to say that members are with pay, the impact of the delay and the finalisation of those matters was subjected to the wisdom of the DOD’s principles.
Up to 2016, between 2013 and 2016 in particular, a general officer was appointed to lead a task team to ensure the backlog is eliminated. He took retirement in May 2017; he was responsible with the backlog team which was co-located in Pretoria and Bloemfontein. The team consisted of a reserve force capacity and a permanent force capacity, the permanent force capacity was taken from those specific regions. This ensured that there was a team dedicated to the backlog, they were called the Backlog Project and they functioned until 31 March 2017. The team’s function was to ensure the backlog is killed and the new strategy used is ensuring the backlog is captured.
They do not have extended court hours as a daily practice but the Adjutant General and the local representatives of the Adjutant General who are located at all regional offices account on a monthly basis on the court hours utilised and the amount of cases completed. They also account for the resources and budget allocation to ensure that both on personnel and operational aspects, the budget is utilised according to the fair target as specified by the Secretary for Defence. Given that, courts do operate up to 5/6 pm and there is no remuneration for extended hours, it is a call of duty. Ordinarily the courts do not operate within the Republic on Saturdays and Sundays but in deployment areas, it is not unusual for the court to operate until 8/9pm because soldiers are co-located in that base, these included the witnesses, the accusers and the prosecutors.
On the Military Discipline Bill, in 2011 the Defence Legal Services Division (DLSD) was mandated to revise the existing Military Discipline Supplementary Measures Act 16 of 1999. Over the years, DLSD identified certain things that needed to be revised not because it was not working but because it was hurried and it was drafted to meet objectives at the time it was drafted. But, it did not mean that the system is dysfunctional. It is very much functional the only challenge is, do the commanders utilise it to the best of their capability. Even today, if asked if it is utilised to the best of its capability, his answer is likely to be “no”. It is now about making it a better piece of legislation. That mandate of the Military Command Council and the Plenary Defence Staff Council in 2011 was to add up to those elements that would assist the commander in ensuring that the structure is indeed discipline. In 2012 the first draft was submitted to the office of the State Law Advisor in Cape Town and the discussions emanated in 2013 where the DOD was in daily contact if not physical contact to ensure the bill is taken forward. In 2013 those consultations were extensive and a comprehensive bill was then re-submitted back to them in November 2014.
The first opinion came in February 2015, vis-à-vis the bill that was forwarded to the Department, the Department responded by March 2015 and the Legal services awaited their second opinion. Then other interfaces took place but in February 2016 Defence Legal Services Division became aware of the second opinion in which officers stated that they had prepared in July 2015. It was at that time that DLSD prepared another comprehensive response to the Department’s second opinion. Meetings were held along with the then Adjutant General to discuss the issues that emanated from their first and second opinion. Most of the issues raised were constitutional concerns and drafting issues and the DLSD believes it answered all constitutional related matters. There is a place for a unique justice system called a military justice system, issues such as institutional and independence may not have to be looked at as they are with the judges at the Constitutional Court or the High Court judges. Another difference is that magistrate courts only have jurisdiction within the Republic while military courts have jurisdiction outside the republic. Members who go outside the Republic are subjected to the legal dispensations of some that are unilateral and some which are very punitive outside the republic. In 2016 the DSLD moved for pre-certification of the comprehensive bill which was done on 6 May 2016. Immediately thereafter the DSLD engaged the development committee of the Justice and Security cluster, which included a consultation on 16 May where the chairperson guided the DLSD in terms of what needed to be done by the Department. The DSLD went back and had certain responsibilities and by August in that year they provided all jurisprudence and responses that were required of them. The specific remarks were that they had noted the morality of the pre-certification but they were still not satisfied with certain constitutional issues and wanted the Department of Justice and the office of the Chief Justice to come on board in relation to those issues. The DSLD relayed that through the office of SANDF to issue letters together with areas in the Bill that affected that specific department, which were given out to departments that were stakeholders affected by the Military Discipline Bill. These letters went out by the beginning of July 2016 by August 2016 two or three responses had been received and but by February 2017, not all departments had responded.
In spite of those appearances, there are comments still outstanding; at this stage those comments received are being consolidated with the view of completing the draft. There was obviously a transition of authority in this year (2017), specifically in June where Major General Mnisi took over. Immediately they were instructed by the Department and some of the concerns raised by the State Law Advisor, those parties wanted DSLD to separate the bill, they said it was too comprehensive. It consisted of about 26 chapters and the rules were in compliance with the substantive so it needed the rules to be separate from the substantive. What would have been regulated was also intertwined but the issue there is that was their (DSLD) mandate from the beginning, where they thought that it should be a once-off solution for all the challenges that commanders are facing on the ground.
Where the challenge came through was that the office of the Chief State Law Advisor, those that are assigned would have dealt with it within their competence. He highlighted to the Members of the Committee that they may not have a military background and that complicates issues. They do not understand the difference between Commanding Officer and Officer Commanding, for them it is either one of the two.
The Chairperson interjected and requested Brigadier General Matjila to wrap up.
Brigadier General Matjila in conclusion stated that where they stand regarding the Military Discipline Bill is that the bill has been separated in terms of the substantive, the rules, the regulation although it has been a hurried process, it has since been with the State Law Advisor since 25 July as it stands currently, it is awaiting pre-certification in order to enact the next steps that should unfold.
Mr Gulube expressed that despite the challenges, they do have successes to report regarding military justices. Soldiers are deployed at a group of countries which have been affected by the Sexual Exploitation and Abuse (SEA) cases such as the DRC. The United Nations (UN) provided a full report regarding those cases and they appreciated the fact that South Africa was the only country out of all the countries deployed in the DRC that has military courts on the ground. No other county has military courts running in peacekeeping.
The Chairperson thanked the delegation and said he had another meeting he needed to attend.
Mr Esau stated that he had questions which could be responded to in writing. He indicated that the question on the financial implication was not answered, so he asked for a quantified response in writing. He asked what the average duration of cases was, how long was the longest case and the costs attached to the longest case. If they employ 42 military judges, where some are permanent and some are not, there will come a time when judges need to be replaced, he asked how the strategy employment is being planned. Lastly, he asked what were the consequences when soldiers were found guilty of sexual assault? Are they dishonoured, discharged and never to join the army?
Adoption of minutes
The minutes of a previous meeting were adopted.
The meeting was adjourned.
- Research Unit: Department of Defence: Concerns Related to the Defence Legal Services Division
- Research Unit: South African National Military Veterans Association: Key Issues for Discussion
- Military Court Case Administration & Legislative Programme: Defence Legal Services Division presentation
- Status of Policies of the Department of Defence