The Defence Ombud opened the agenda of the day with a presentation on its operational independence, progress made, action plan and challenges. The main issue highlighted was the financial and institutional independence of the Office. Other issues discussed, including staffing deficiencies and reporting failures, were directly linked to the Office’s lack of financial independence and an inadequate budget overall. The presentation was well received by the Committee. The Committee made suggestions to resolve the staffing problem. Although the Committee recognised the Office’s woes of independence, it was advised to contextualise its benchmarking exercises in South Africa’s current economic climate.
The second presentation was centred around the rampant criminal activities in the South African Defence Force military bases with attention given to the 9 South African Infantry Battalion incident that took place on 14 April 2017. The Committee was displeased with the presentation of the report and took issue with the fact that no effort was made to provide solutions for the problems. After brief discussion, the Committee resolved to schedule an engagement with the delegation soon so that the problems might be discussed in depth.
Co-Chairperson Mr Mlambo noted the importance of starting the meeting on time, particularly because the Committee was in the presence of military personnel. He went on to introduce himself as the Co-Chairperson of the Committee.
The Military Ombud of South Africa introduced himself as Lieutenant General (Lt Gen) Themba Matanzima. His team consisted of an additional three members: Mr Siviwe Njikela, the Chief Director of Operations, who would be conducting the presentation; Mr Johann Behr, the Director of Intake and Analysis; and Ms Analise Welgemoed.
Co-Chairperson Mr Mlambo asked that Lieutenant General Vusumuzi Masondo, the Chief of Staff of the South African National Defence Force (SANDF) introduce himself and his delegation and that the Committee and all other individuals present at the meeting introduce themselves.
Defence Ombud status report
Lt Gen Matanzima began by noting that the presentation was on the operational independence, progress made, action plan and challenges encountered by the Office and that Mr Njikela would give the presentation on operational independence which was intertwined with that of institutional independence. On another note, in 2018 South Africa would be hosting an international conference from 30 September to 3 October on the Ombud institutions.
Lt Gen Matanzima said that he mentioned the international conference because there would be invitations to Members of the Committee and some Members might be requested to give prepared speeches.
Mr Njikela said that the Office of the Military Ombud of South Africa celebrated its fifth year of establishment and its mandate was to ensure that complaints by current and former members of the SADF, as well as complaints from members of the public were resolved in a fair, economical and judicious manner. If the Military Ombud upheld the complaint, it had to recommend the appropriate relief for its implementation to the Minister of Defence (the Minister).
He said that it was important to give context of what exactly ‘independence’ meant. Section 6(4) of the Military Ombud Act 4 of 2012 (the Act) stated that the Military Ombud must investigate a complaint fairly and expeditiously, without fear, favour or prejudice. Emphasis was put on the statement ‘without fear, favour or prejudice’. The Act prescribed that the Military Ombud and staff members must act independently and impartially and must perform their functions in good faith and without fear, favour, bias or prejudice, subject to the Constitution and the law. The Minister was required in terms of the Act to afford the Military Ombud such assistance as may be reasonably required for the protection of the independence and impartiality and the dignity of the Military Ombud. No person may hinder the Military Ombud or his or her staff in the performance of his or her functions.
He highlighted that all these provisions spoke to the issue of operational and institutional independence. Space had to be created to allow the Office to perform its functions with little to no interference. This also spoke to the issue of financial independence in as far as administrative expenditure of the Office was concerned. This expenditure had to be funded by money expropriated by Parliament for that specific purpose as part of the budget of the Department of Defence (DOD). He noted that Sections 9 and 10 of the Act were also relevant to the topic of the financial independence of the Office. Section 11 of the Act provided for reporting requirements of the Office and stated that at the end of each financial year, the Office had to submit a report to the Minister on its activities. In addition, the Office also had to report to the Minister on its activities as and when required to do so. The reporting was not restricted to financial reporting, but also the activities of the Office.
He explained that the structure of the Office constituted 89 posts, and currently only 63 of them were filled. The structure was divided into two areas: Corporate Operations; and Corporate Support. He said that the focus of the presentation would be on the performance report over the past 5 years. On slide 14, column C it indicated the number of cases received each year, and column D had a breakdown of the cases. Column E was the finalisation rate against the number of cases received. Column F indicated what was carried over to the next financial year. The bottom of the slide showed the number of reports that were not implemented for each of the financial years, for instance, in 2016/17 there was one report outstanding. Slide 15 broke down the complaints into categories, for example, ‘career intervention’. At the bottom of the slide were those complaints that were lodged by members of the public. The biggest chunk of complaints received related to service terminations of members of the defence force.
He said that between 2012 and 2013, benchmarking was done against other Ombud institutions like the Financial Advisory and Intermediary Service Ombuds.
The primary challenge related to the location of the budget of the Office. The budget of the Office was part of the budget of the DOD as opposed to an appropriation. Therefore, the funds of the Office might not necessarily be retraced as was envisaged in the Act. This was regardless of the fact the Office was required to operate independently. Thus, the Office currently functioned as any other service or division of the DOD. This compromised the independence of the Office.
He said that the Accounting Officer for the Department remained the Secretary for Defence. This placed limitations on what the Military Ombud could do. The Office was not in complete control of its budget which impacted its integrity as an independent entity. As per the Act, the Military Ombud was required to compile an Annual Report, however the Annual Report did not contain any financial statements because the budget was with the DOD.
Section 6(7) of the Act stated that the Military Ombud had to make a recommendation to the Minister. This procedure left the Military Ombud powerless in the face of the recommendation that he or she made as the implementation of the recommendations were still subject to the DOD. This might require legislative amendment. This created a reputational issue with the Office as it sought to establish its independence. There were no mechanisms for the Department to ensure the implementation of its recommendations. He believed that granting the Office its own initiative powers to initiate investigations in its personal capacity would do away with the requirement for a complaint to be lodged before the Office could act.
Co-Chairperson Mr Mlambo thanked Mr Njikela for his presentation and welcomed Co-Chairperson Mr M Motimele.
Lt Gen Matanzima noted that the Office was discussing with the Secretary of Defence, the possibility of creating a line item to enable it to have full access to its funds. A letter addressed to the Office from the Secretary of Defence, dated around the end of September, agreed that the line item was possible. He asked how this would be implemented.
Co-Chairperson Mr Mlambo thanked Lt Gen Matanzima for this information and noted that the Committee would engage with the topic further.
Mr S Esau (DA) appreciated the presentation. When people came to the Military Ombud, they exhausted all other recourses within the DOD and therefore sought external recourse. At this stage, a more independent view had to prevail, not one that was still negotiated with the DOD. It was important to come to a swift conclusion of this matter so that the Office might do its work in an impartial environment. The Military Ombud was very similar to an appeal because other recourses failed. It was therefore important to understand the status of the Office. He said that an update on the risk management policy, the ICT policy and any further updates on the regulations that were recommended by the Military Ombud was required.
He acknowledged the change in the employees from 56 in 2016 to 63 out of 89. The 89 posts were funded posts which meant that the posts were supposed to be filled. If the posts were not funded, then there was compensation that was not being fully utilised. He asked whether the Military Ombud used any contracted or sub-contracted posts that the Committee was unaware of, as was the case in the Department of Military Veterans. He asked where the compensation money went if the posts were in fact funded posts. If the posts were funded, an explanation as to why only 63 were employed now was required.
He said that the level of complaints was pleasing. The last time they met, there was a problem with the Office having only two investigative teams and there was the requirement for additional human resources to assist with dealing with the backlog and the present case-load. What was the nature of the 8 cases that were referred for discipline to the Military Ombud by the DOD? The case-note presented was unclear.
Ms L Dlamini (ANC) welcomed the presentation. The first question was based on the meaning of ‘active cases’, for example, on slide 14, in the financial year 2012/13, there were 307 active cases. She said that her assumption was that when the Office received the 307 cases, it had other cases that were active at the time. In column F, there were 190 active cases. Did this mean that all other cases were dealt with and only 190 remained? She asked whether in 2016/17, with all the backlog of cases, if the Office was left with only 192 cases? If one added up all the numbers from the financial year 202/13 to 2016/17, would only 192 cases remain?
She said that the number of reports not implemented also needed to be clarified. On benchmarking, she asked what the arrangement with other departments was in terms of budget and accountability and to what extent they were independent. A government had to be standardised and what was happening in department A had to happen in department B.
Co-Chairperson Mr Mlambo asked whether any other Members had questions. His own question was an addition to Ms Dlamini’s input, regarding the actual independence of the Ombud institution.
Co-Chairperson Mr Motimele asked what the logic behind own-initiative investigation would be.
Lt Gen Matanzima noted that most of the questions would be dealt with by Operations. His understanding of the letter he was referring to from the Secretary of Defence, although he has not read it, entailed that the Office would have full access to the budget without asking for permission and that it could not be cut without consultation, except if the cut was by Treasury.
The Office was meant to be a Schedule 3 entity, and from the benchmarking exercise, the conclusion was that the Office had to be financially independent to enable it to properly account for its expenditure. The Office currently had no legal status.
Mr Njikela noted that with the international benchmarking they conducted, they discovered that the Ombud institution had the power to initiate its own investigation if it discovered evidence. The only trigger for the Military Ombud was the lodging of a complaint. In the absence of a complaint, an investigation could not be initiated. However, if the Competition Commission became aware of uncompetitive behaviour, it did not wait for a complaint to be lodged while consumers continued to be ripped-off. This was the logic behind own-initiative investigation. An independent office should be able to be proactive when problems arose.
There was one investigative team that was filled at the moment. There were two investigative teams that still had to be filled. The current 63 staff complement included the one investigative team. It was not filled due to lack of funding. Although the structure was approved for 89, the funding only allowed 63. This matter could be linked back to the line item. For instance, the Office was being told that the current staff complement had to be cut to 61. Therefore, two people had to be retrenched by 2018. In a new office, which already had a small complement, cutting two people would have a severe impact.
The eight complaints reflected on slide 14 was the number of complaints received directly from the public that had nothing to do with the conditions of service. The ‘other’ was a consequence of the fact that the Ombud had to undertake its own categorisation for administrative purpose and whatever did not fit neatly into one of the eight categories, was relegated to the ‘other’ section. The categorisation was based on the requirement listed in section 1 of the Defence Act 42 of 2002.
As pertaining to ‘active cases’, what was reflected in column G was what was not finalised in the year, that was, what was carried over to the next year. If 44 cases were received, and only 34 were finalised, 10 would be carried over to the next financial year. Where an investigation was done and a report with a recommendation was submitted, if at the end of that financial year, those recommendations were not implemented, then it was listed as being ‘not implemented’. It might be implemented in April of the next financial year, and in that case, it would be reflected as implemented in that financial year.
Mr Behr noted that there were no employees on contract. However, there was one person that the defence force called out from the defence reserves who was an HR specialist who assisted with finalising the Office’s policies in terms of the conditions of service that the Ombud published. This appointment was done because of the high workload and the small human resources component that was available. In terms of risk and ICT, it was uncertain whether the ICT policy on risk related to the requirements of the Protection of Personal Information Act (POPI). There were policies and measures in place guiding towards compliance with data sensitivity. Further risk management was more of Ms Welgemoed’s speciality. However, there were comprehensive analyses of the risks and plans to mitigate them. Part of the line item drive was a result on those plans. Regulations were drafted, and the Minister approved and signed them, and it was Gazetted in September 2016. In line with this, the investigation manual was finalised, and the Office was working on its Standard Operating Procedures to further enhance the regulations.
Ms Dlamini asked who the two people were that would be cut and how the decision would be made. She also wanted to know who implemented the recommendations after they were made?
Mr Esau, regarding the lack of adequate investigative teams, suggested that the Office hire graduates from legal backgrounds as interns led by a competent team leader. This was done by many government departments and might be useful to prevent the backlog of cases from growing when the two people were cut.
Co-Chairperson Mr Motimele thanked the Committee Members for their input and gave the floor to Lt Gen Matanzima.
Lt Gen Matanzima noted that the Office was responding to the measures given to it by the DOD and the Treasury. The decision about who would go was not yet made. This was one of the problems that arose when the Office’s budget was handled externally.
As soon as the reports were finalised, they were submitted to the Minister of Defence. The Minister then directed the Chief to implement the recommendations should the Minister find them favourable. The implementation was always within the services upon the direction of the Chief, be it the army or navy.
He said that the Office had no interns and the idea was not previously considered. The reason for not having the two additional investigative directorates was not only a paucity of funding, but also because the Office wanted to test the waters, that was, for example, if there was an office in Pretoria and not in the regions, many soldiers who sought to lodge a complaint might not have access to that office. The intern proposal would be considered.
Co-Chairperson Mr Mlambo asked whether soldiers who were studying law within the military establishment could be considered before considering hiring graduate interns. In this way, the cost factor could be lowered.
Mr Esau asked how many investigations of those that were finalised were followed through by the DOD.
Ms Dlamini’s impression was that all other recommendations were implemented except those that were reported not to be implemented.
Lt Gen Matanzima noted that it might be difficult to utilise soldiers going through their studies because of the confidential nature of the work. There might be a conflict of interest as the soldiers may deal with matters involving their superiors. This created a conflict of interest in terms of the impartiality requirement and could compromise the independence of the institution.
Co-Chairperson Mr Motimele announced the end of the Committee’s engagement with the Ombud. He noted the biggest concern as the independence and that this independence was in the interests of both the military and the South Africa’s democracy.
Co-Chairperson Mr Mlambo added that benchmarking exercises must be viewed in relation to the material resources available at the disposal of the Office.
The delegation from the Office of the Military Ombud of South Africa departed.
Military Bases state of security
Co-Chairperson Mr Mlambo moved on to the next agenda item, introducing the presentation on the state of security in South Africa’s military bases. The Committee requested a report to be submitted about the state of security in the military bases considering recent criminal incidents within the bases.
Lt Gen Masondo said that there was concern about the fact that the military recruitment system was not fool-proof. To this end, some criminal element might be recruited. The incident at 9 South Africa Infantry Battalion (9 SAI) for example, was a great embarrassment to the military. The military was charged with defending the country and such criminal incidents planted doubts in the community about whether the military was up to the task of defending the nation. The presentation would be made by Major General (Maj Gen) Michael Ramatswana, Chief of Military Policy, Strategy and Planning of SANDF, after which the floor would be open to questions from the Committee.
Maj Gen Ramatswana began on slide 5, referencing the Defence Act 42 of 2002, chapter 8, section 50 subsection (ii), which provided for military security and defence intelligence. Moving on to slide 7, the policy framework to guide military security was discussed. He said that there were minimal physical security standards which had to be applied in all military units including all the mission areas where soldiers were deployed. Military security was a command function and therefore every Commander was accountable for military security. Every official was accountable to the DOD and was always accountable for the security of information, personnel and material in his or her areas of responsibility. Commanders were also to budget for their units, a duty which might be difficult given recent budget cuts.
He said that the defence force was in a state of decline, partly due the security of military bases. Weapons and ammunition were key areas in the Department central to the core business of the DOD. The reserve force became exposed to the facility and because they were temporary and prone to leave, the chances of these forces getting involved in criminal activities was likely.
He said that the extent of crime in the Department given in this report spanned three years. The section would deal with the issue of theft in the military bases. In the last financial year, the incidences of theft went down; however, the monetary value of the goods stolen were increasing. This might be attributed to one of two things: either the Rand value was decreasing; or the incidences were specific towards high cost items.
Slide 15 noted that in 2015/16, railway track, worth R3 million were affected. Slide 16 gave the totals of firearms, which were pistols and rifles. In the year 2017,12 were lost with six of these rifles lost in 9SAI.
Slide 18 dealt with ammunition. In the financial year 2014/15, seven rounds of ammunition were lost. In 2015/16, 26 rounds were lost. 10 of these rounds were 9-millimetre rounds.
Military Base Heist report
Maj Gen Ramatswana said that on 14 April 2017, at 03.00am, five armed suspects climbed over the outer perimeter fence and moved over the inner perimeter fence. They then cut a hole and entered the unit’s magazine. There they encountered the two roving guards and overpowered them, taking with them one firearm that had 10 rounds of ammunition in it. They then proceeded to the guardroom and overpowered the five guards that were stationed in the magazine duty room and demanded the keys for the weapons stores. Five weapons were removed from the weapons safe of the guard room, bringing the total number of weapons to six. The suspects then locked the guards in the magazine and exited the unit by making a hole in the fence.
He said that security was since increased in the unit and a guard might be deployed into a tower to have a birds-eye view of the unit. There was an investigation by the SAPS in conjunction with other security organisations and defence intelligence. A polygraph report revealed one member to be inconsistent in his report. The Office Commander of the unit and the Regimental Sergeant Major were removed. The guards on duty on the day were suspended.
He explained that there were some general security measures in place, for example, internal audio, stock-taking, continuous vetting and suitability boards for repeat offenders. Recent initiatives taken by the DOD include a deterrent mechanism in the face of lenience in sentencing.
He added that the shortfall of the budget slowed progress. Technology such as CCTV systems had to be maintained and the budget was a limiting factor. Some of the more difficult security issues faced by the Department were securing sentences. For example, by law, R4 rifles were military rifles therefore when an R4 rifle was stolen from a military unit, it was undeniably a military rifle. However, because the perpetrators filed off the serial number on the rifle, it became impossible to objectively identify the rifle as belonging to a specific military unit in the court of law. Rations stolen in military units were also difficult to prove as belonging to the military as the same rations could be found in numerous local supermarkets such as Spar. Fuel theft was also a significant problem, for example, vehicles sent for service were often returned without fuel.
On slide 34, it was necessary to have a deterrent mechanism in managing security in security bases. When a person was found guilty of stealing ammunition and the sentence was a mere fine, then there was no deterrent mechanism.
On slide 35, a serious challenge was highlighted. The Office had land and facilities belonging to the DOD. There were illegal occupants on these facilities that had to be removed in accordance with the law. As these legal procedures were being followed, more people often moved on to settle on the land illegally. Some settlements were expanding rapidly to border the fence of the military units such as 9SAI. It was unlikely that a civilian from Khayelitsha would have taken time to jump a fence and move on to the magazine. The suspect obviously had intimate knowledge of the structure of the unit.
Co-Chairperson Mr Motimele noted that time ran out and Members of the Committee needed to travel back to their constituencies. He gave the floor to the Chief of the South African Army, Lieutenant General Lindile Yam.
Lt Gen Yam began with the 9SAI issue. He said that he removed the Commander and the Regimental Sergeant Major who was not following the prescribed drills. When it came to the theft of rifles, the perpetrators were often found and charged promptly. Leadership was also a big issue, but the resources were limited to the point that it was difficult to have constant patrols. At the moment, there were no cameras for the weapons stores and the ammunition stores. The plan was to acquire guard dogs and bicycles to ensure there were always roving guards.
Mr J Mthethwa (ANC) asked when crime started and whether it sprang up recently or always existed. He also questioned how a civilian could have the confidence to attack a military base unarmed. He also noted that the presentation was not conducted in the authoritative tone of a soldier, but of someone who sought a favour from the Committee. He questioned whether South Africa was still in safe hands and whether the suspension and dismissal of the members involved in 9SAI was appropriate prior to an investigation.
Ms Dlamini noted that it was a pity that such an important issue was being rushed and hoped there would be a follow-up meeting soon. She still had full confidence in the military but felt that the element of criminality posed a threat to the safety of the country. If SANDF’s defence intelligence was truly competent, incidents like the one at 9SAI would have been picked up before it happened. She also questioned which hole was cut by the criminals as she personally saw numerous holes in the fence before the incident. It was likely that the perpetrators were soldiers themselves as only soldiers would have the confidence to rob a military base. At the very least, soldiers were colluding with criminals, it was highly likely that personnel of over seventy-five thousand would attract criminals and therefore the recruitment process had to be more thorough. Singapore had a strong relationship between the community and the military, a trust and bond which was missing in South Africa.
Mr S Marais (DA) linked the issue to constitutional imperative article 200 of the role of the defence force. He said that the issue could not be rushed. There were only excuses from military people. There was no control or command over the structures. Defence priority was expected from the military, even in terms of funding. The fact that there was no proposal about refunding the organisation showed that defence was not a priority. Salaries were prioritised over defence. Discipline in all structures was expected in the military and should be able to be stabilised within a few years. The only sympathy he had was the situation of the military bases. Perhaps auditing all the military facilities in the country and seeing whether they were all necessary or could be combined would be beneficial. For example, 9SAI was very risky and it might be sold off and the capital used. He said that what was missing in the presentation were solutions and plans to these issues.
Mr Esau noted that the Commission received reports from the National Defence Force Service Commission about the bad conditions in the bases. The budget for infrastructure was shifted towards salaries despite already crumbling infrastructure. He said that there had to be minimum standards and norms at all bases, for example, cameras at specific points. Repeat offenders could not be tolerated as safety and security should never be compromised. The control measures implemented were totally ineffective. A person could not steal firearms and ammunition and simply pay a fine when the same guns were used in gang warfare and innocent people lost their lives. Discipline had to be passed as soon as possible. This portfolio was neglected. An amendment of the law had to be requested when it came to the transgressions on military bases. More regular reports were also necessary.
Co-Chairperson Mr Mlambo told Lt Gen Masondo to make a final comment and recommend that the Committee meet soon.
Lt Gen Masondo noted that the Constitution enjoined the Chief of Defence and the Military Commander to run a disciplined institution. South Africa was the only country where soldiers marched through the citadel of power and when one wanted to act, they were absolved by the courts and did not come to account.
Co-Chairperson Mr Mlambo noted that the Secretary would put the issue on the next term programme.
Mr Esau added that an update on the investigations on all the issues of crimes, the statuses of prosecutions and consequences would be required.
The Committee agreed.
The meeting was adjourned.
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