Defence Amendment Bill [B18-2017]: written comments; Legal Aid SA regulations

NCOP Security and Justice

19 February 2019
Chairperson: Mr S Mthimunye (ANC, Mpumalanga)
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Meeting Summary

The Committee met to discuss the Defence Amendment Bill [B18-2017], the written comments by the Right2Know Campaign, and the regulations of Legal Aid South Africa.

The Right2Know Campaign accused the Department of Defence (DoD) of attempting to give the Minister unfettered powers to regulate access to military areas and assets. It also sought clarity on the specific penalties that would be imposed on members of the Defence Force who absented themselves for a specified number of days. The Campaign and other concerned groups also expressed concern about the lack of oversight over the Minister.

The meeting considered the amendments and a consequential amendment to the current Defence Act, which were discussed extensively. Section 59(3) dealt with the termination of a member of the Defence Force who absented him/herself for 10 calendar days, while Section 103 dealt with the termination of a member of the Defence Force who absents him/herself for 30 calendar days. In addition, Section 103 empowered the Commanding Officer of the absent member to convene a board of inquiry to investigate the matter. The member could be suspended or terminated if found guilty, but could also be reinstated if the Chief of the Defence Force or Secretary of Defence finds him/her innocent.

The DoD proposed amendments to the Defence Force Act that empowered the Minister to have control over military areas and assets. The amendment Bill’s reduction in the number of days of absenteeism to 10 was to enhance a disciplined military force.

Members cautioned that the proposed amendment Bill should be thoroughly investigated and interrogated. This was to ensure that the Minister of Defence was kept in check by Parliament and other authorised entities. Some Members cautioned that the Committee should strive to finalise the Bill before the end of the Fifth Parliament. They commended the efforts of Legal Aid South Africa to enhance the access of poor and disadvantaged South Africans to legal services.

Meeting report

The Chairperson said the Committee was meeting to discuss the Defence Amendment Bill [B18-2017, taking into account the comments by the Right2Know Campaign, and the regulations of Legal Aid South Africa. He asked the Department of Defence (DoD) to respond to the questions posed by the Right2Know Campaign, and to advise the Committee on new developments associated with the Bill.

Presentation by the Department of Defence

Advocate T Ramcharan, Director: Legal Advice, Department of Defence, said that the Department had previously discussed the matter relating to restriction of access to military areas and assets with the Committee in September of 2018, especially in terms of the concerns raised by the Right2Know Campaign. The DoD had proposed amendments that empowered the Minister of Defence to have control over military areas and assets, to the Defence Force Act. The Bill was later published and the DoD had received comments from the Right2Know Campaign. Basically, the Campaign indicated disagreement with some provisions of the Bill, especially Clause 15, which mainly deals with access to military properties and areas. The Campaign insinuated that the Department gives the Minister unfettered powers over military areas and properties.

Adv. Ramcharan explained why the DoD disagreed with the comments raised by the Right2Know Campaign. She described the legislative and administrative contexts of the Bill, while Colonel L Gerniruf, Senior Staff Officer: Policy and General Legal Support, DoD, spoke on the military context. This explained the goal of the Department with the proposed Bill and steps taken to address the concerns raised by the Right2Know Campaign. Aside from the concern that the Minister had unfettered power over military areas, concerned individuals were also afraid that there was no oversight function to monitor the activities of the Minister.

According to Adv Ramcharan, it was absolutely necessary that the Minister had authority over military areas and properties. The Campaign had picked on certain events that occurred in the past to back up its argument. The legislation was very important to prevent ugly incidents from occurring in the future. Military areas were filled with equipment, and artillery and military exercises took place. Therefore, the safety of civilians in such an environment was of critical importance to the military. For this reason, the Minister should be given power, in terms of the Amendment Act, to regulate access to these areas.

She said the comments of the Right2Know Campaign were absolutely incorrect. As the Chairperson and Members of the Committee were aware, the Department of Planning, Monitoring and Evaluation (DPME) mandates a social and economic impact assessment before any legislation is passed through the different phases of the National Council of Provinces (NCOP), as well as the National Assembly. The Legislation must be certified and authorised before it could come into force. Beyond the demands of the DPME, the legislation was also evaluated within the context of applicable law. She requested Col Gerniruf to explain why the Minister should be given such powers and why the Department disagreed with the comments of the Right2Know Campaign from a military perspective. She told the Committee that the Department welcomed the comments regarding the oversight function over the Minister, if he was eventually given the powers.

Col Gerniruf reminded the Committee of the meeting held in October 2018. He said that the constitution and constitutional amendments empowered the military to ensure the safety and integrity of the people of South Africa. The military did this by having well-equipped military bases in different parts of the country. The DoD had indicated to the Committee in October 2018 that there was a comprehensive provision to regulate access to military areas in the Defence Act of 2002. There was also a concomitant provision in the 1957 Defence Act to deal with this matter. Based on these provisions, the military was trying to rectify the matter regarding the regulation of access to military areas. The Right2Know Campaign had erroneously accused the Department of trying to maliciously minimise access to these areas. The DoD was responsible for the protection of military equipment, bases and the entire country of South Africa.

In terms of its mandate, the Department was responsible for the security of the Republic. It was not the Department of Housing or the Department of Home Affairs, where people had the right of access as a matter of course. It was absolutely unacceptable for people to have unlimited and unfettered access to military areas. This notion formed the rationale behind the proposed Bill. He recalled ugly incidents that had occurred in the past due to unchecked access to military areas, and this had been discussed previously before the Committee. The people protesting and causing problems had had contacts with military areas in the past. Therefore, the Department needed regulations to restrict access in order to prevent a recurrence of ugly incidents. It was almost unthinkable that any military establishment in the world would give the public unfettered access into military areas. The right of access was an important matter that needed clarity, and the Department sought to provide adequate responses to the comments raised by the Right2Know Campaign. For now, it was important to focus on the amendments to the Bill. These would empower the military to protect various bases and assets.

In response to the concern of the Right2Know Campaign regarding oversight, Col Gerniruf said that the oversight was not only internal. There were external bodies that exercised oversight over the Minister, among which the DPME was important. There were external legal advisors who confirmed that the regulation was in line with national law, which included the constitution. It therefore meant that the Department prioritised the interests of the country as far as the regulation was concerned.

The Department did not make regulations indiscriminately. Due process was followed when formulating regulations. He again spoke about the DPME and the other entities that have oversight functions over the Minister. A socio-economic impact assessment was conducted to determine the impacts of the proposed regulation on communities in close proximity to military areas. He urged the Committee to disregard the allegations raised by the Right2Know Campaign. He reiterated that the oversight was not only in-house, but also external. The Right2Know Campaign had also demanded to know about the criminalisation aspect – specifically whether a person would be punished if an incident was unintentional or due to negligence. He said the Department would try to look at specific offences and the corresponding punishment.

Adv Ramcharan said the Right2Know Campaign had also requested an explanation on the provision of Section 104 of the Defence Act, but the Department could not answer the Campaign at the moment. What was important at the moment was the proposed amendment that empowered the Minister to control access into military areas. The Right2Know Campaign should direct any concerns on Section 104 to the Minister. She said the Committee should consider the consequential amendment to Clause 103 of the Current Defence Act that was before the Committee. The Bill could be effected only after adoption by the Committee.

Ms B Engelbrecht (DA, Gauteng) asked the Department to be specific in terms of the consequential Amendments. A specific explanation would give clarity to those who were not experts in law.

Adv. Ramcharan explained that a consequential amendment was basically a result of the amendment that went through. There was another section of the Act as a result of the amendment that was changed. In this case, the Department had received myriads of inquiries regarding the current Defence Act, that if a member was absent for more than 30 days, a board of inquiry must be convened. Under the amendment, the Department proposed that the number of days should be 10 calendar days. If adopted, it would mean that the 30-day period was amended. This was an example of a consequential amendment.

The Parliamentary Legal Advisor also expressed concern with some of the details presented by the Department, especially in terms of Clause 15 of the newly proposed Section 83A. However, she was in agreement with the DoD on the need to empower the Minister to have control over access to military areas and assets. She commended the way the Bill was drafted, as this was the standard in any Department of Defence. She said that regulation did not give every detail. It represented the broad purpose and functions. The Minister could act only in alignment with what the regulation provided. She assured the Committee that the Minister could not abuse the powers given to him/her because every regulation was considered in light of the hierarchy of legislation of which the constitution was supreme. In light of this, there was nothing wrong with the proposed amendment.

She felt it was unnecessary to rephrase sub-Clause 2, as this was synonymous with the content of sub-Clause 1. The 'prescribed measures' in sub-Clause 1 alluded to 'regulations'. In terms of Section 75, the Committee was completely empowered and had a mandate to propose amendments to the National Assembly. The National Assembly would then consider the amendment and ensure it went through the necessary stages before it was adopted. In this case, however, the Department needed the Amendment to be adopted as soon as possible, as a delay in the process could affect the functioning and operations of the Department.

She agreed with the Department on the provision of Section 104 of the Defence Act. She noted that that the Right2Know Campaign did not table any concrete proposal before the Committee regarding amendments to the Bill. She urged the Committee to leave further concerns of the Campaign for the Sixth Parliament to consider. She requested the Department to clarify the provision of Section 103 of the Defence Act. She also sought clarity on the consequential amendment. In her opinion, the  consequential amendment served as a cross-reference to various sections of the Act.

She also expressed concern about sub-Clause 2 of Clause 15 of the Act. Apart from the fact that this was an additional amendment, it was not tabled before the Committee. This would have more impact on the processes required at the National Assembly, because there was a bit of scope relating to Section 75 of the National Council of Provinces. Section 76 was very specific that if the NCOP wanted to propose an amendment that was not in the Bill tabled, permission from the House was required. Section 75 empowered the Committee to simply make that decision and take the amendment to the National Assembly, but the responsibility to seek permission from the House rested with the National Assembly. She said the amendment would go through public comments, which takes a minimum of two weeks. This may impact negatively on the target date of March 20, 2019. The reason was that the amendment was not in the Bill as tabled. She expressed concern that the Bill may lapse, and the Sixth Parliament may have to start the process from scratch. It was therefore important that the current Parliament finalise the Bill by avoiding unnecessary legislative processes.

Col Gerniruf said there appeared to be some confusion over Sections 59(3) and 103 of the Defence Act. Section 59(3) dealt narrowly with the termination of service due to offences linked to misconduct, It stated that any service member of the regular force who was absent from duty for 30 days (now amended to 10 calendar days) without the permission of his/her commanding officer, must be regarded as being terminated on account of misconduct. However, the Chief of the Defence Force may authorise the reinstatement of that member based on the circumstances surrounding the absence, as well as his discretion. Linked to Section 59 was Section 103 of the current Defence Act, which was not in the amendment. 

Section 103 spoke to investigations conducted by a board of inquiry. It stated that a board of inquiry must be convened in relation to absence from duty without leave when any member of the Defence Force had been absent without leave for more than 30 days. The Commanding Officer of the absent member must convene a board of inquiry to inquire into such absence. Section 59 (3) was linked to Section 103 in terms of the board of inquiry.

The Chairperson asked Col Gerniruf to provide clarity on the concern of the Parlikamentary legal adviser (PLA) regarding the amendments of the Bill that were not tabled before the Committee.

Discussion

Ms G Oliphant (ANC, Northern Cape) expressed concern about the oversight function of the Committee. She said the Committee may not know exactly what went on in military areas, since Members of the Committee may also be restricted during oversight visits to military bases. She urged the Chairperson to expedite action so that the Committee could have a specific timeframe for the activities that lead to the finalisation of the Bill.

Ms Engelbrecht urged the Committee to avoid hasty finalisation of the Bill just because the Fifth Parliament was coming to a close. The Committee should avoid this option. It had a full right to send the Bill back to National Assembly if there were concerns. The Bill could be re-initiated in the Sixth Parliament if the current Parliament could not get it finalised. The Committee had a responsibility to ensure that the Bill was well drafted in a way that allowed legitimate use of power. She cited an example of the war in the Middle-East, which the United States had initiated. The US had initially thought that there were weapons of mass destruction (WMDs) in Iraq under Saddam Hussein’s regime, and Iraq was invaded on this basis. On the contrary, it had turned out that there were no WMDs in Iraq. She urged the Committee to be cautious, as the Bill tabled before it had temporary as well as permanent significance for South Africa. Properly drafted, the Bill would prevent excessive and/or abusive use of power both in immediate and future terms. Inappropriate legislation could hinder effective oversight and people may suffer disproportionate punishment for unintentional offences. She said there must be measures to check the powers given to the Minister, although there would be a need for secrecy on certain matters. She urged the Department to explain why the period of absenteeism was 10 calendar days instead of 10 working days.

The Chairperson commented that the Second World War had started in 1939, and the South African Defence Force had played a key role. The constitution of South Africa was based on Christian value,s and that no President could take the people of South Africa into an illegitimate war.

In response to the Chairperson, Ms Engelbrecht reminded the Committee of the wars in Iraq, as well as the Second World War, where millions of Jews were killed by Hitler.

Dr H Mateme (ANC, Limpopo) commended the constitution of the Republic of South Africa. It was a constitution that respected human rights and prioritised the interests of South Africans. The constitution had the powers to check the decisions of the Minister, and nobody could engage South Africa in a needless war. She spoke about the dangers in the decentralisation of power. She cited the example of the disaster in Gauteng, which had got out of hand because the Minister had been unable to intervene. In relation to the matter of 10-day absenteeism, she said that the regulation was fair. Members of the Defence Force must demonstrate the discipline expected of them. She urged the Committee to expedite action on the long-awaited amendment before the expiration of the Fifth Parliament. The Sixth Parliament must come to face other matters in order to move the nation forward.

DoD’s response

Col Gerniruf spoke about Section 202 of the Defence Act, which states that the primary objective of the Defence Force is to defend and protect the Republic, its territory and its people in accordance with the constitution and the principles of international law regulating the use of force. This meant that the military could not take any steps that contradicted the Constitution and other applicable laws. After 1994, South Africa had signed many international conventions that prohibited the use of weapons, especially nuclear weapons.

He reminded the Committee about the importance of controlled access to military assets and bases. There must be a balance of interests to prioritise the safety of South Africa, and there was sometimes a need for secrecy in certain matters of national importance. This gave the military a strategic advantage.

On the 10-day question, Col Gerniruf said that the reason the 30-day period had been reduced to 10 days was to ensure a disciplined military force in the Republic. An indisciplined military force was a danger to any nation. He noted that discipline was the cornerstone of any military force.

In response to the concerns of the PLA, Adv Ramcharan said that the amendment to the Bill had come as a response to the concerns of the Right2Know Campaign. The consequential amendment and the amendment to the Bill were actually synonymous, and that the DoD would work to remove any duplication or confusion.

She lamented the situation in military bases across the country due to uncontrolled access to military areas. The DoD had the responsibility and right to protect its assets, and this should not be a matter of litigation or debate in court. She urged the Committee to adopt the amendment in order for the military to perform effectively.

Further discussion

The PLA quickly went through Section 101, which allowed for the convening of the board of inquiry, which was what Section 103 addressed, but Section 59(3) was a bit narrow and it dealt with the termination of employment due to offences linked to misconduct. Section 59(3) stated that a service member of the regular force who was absent from his official duties without permission from the commanding officer for a continuous period (now) exceeding 10 calendar days must be regarded as having being terminated on account of misconduct. The phrase ‘must be regarded’ was a presumption that kicked in if the member was found guilty. However, there was a provision that the member could be reinstated if the Chief of the Defence Force considered the situation and found the member innocent. For example, the member might not appear for 10 calendar days because of hospitalisation or serious injury. Obviously, the member could be reinstated.

She spoke on Section 101 of the principal Act that dealt with the convening of the board of inquiry and Section 103, which deals with the 10-day period. Section 103 did not specifically state the conditions under which the appointment of a member might be terminated. She noted that this Section had been left open.

According to Section 101 (sub 1), the Minister, the Secretary of the Defence Force or the Chief of Defence may, at any time or place, convene a board of inquiry to inquire into any matter. Section 59 (3) dealt with reinstatement by the Chief of theDefence Force. She was concerned that Section 59 (3) might not come to play if Section 103 was not amended. This might impact affected members adversely. Section 103 did not cover the conditions of employment of a member. However, there were provisions to ensure that members received fair treatment. Members had the right to approach the Board if they felt they had been unfairly treated. She asked the Department to clarify the difference between the provisions of Section 59(3) and Section 103, since both sections dealt with a different number of days. Was there any gap between the two sections? On what basis would an absent employee be treated? Was it based on Section 59(3) that specifies 10 days, or on Section 103 that specified 30 days?

Ms Oliphant sought clarity on how the Department handled matters of absenteeism in rural and urban areas. She said members in rural areas may encounter difficulties such as bad road networks, poor phone signals and uneducated spouses that may affect an effective information exchange between an affected member and his/her Commanding Officer.

The Chairperson said the military could not afford to treat certain matters with kid gloves. Doing so might affect the image of the National Defence Force. The Republic’s military should measure up to international standards.

Col Gerniruf said Section 59(3) addressed the service of a member of the regular force who absented himself or herself. Section 101 was not applicable in terms of the board of inquiry. Section 103 was a confirmation of Section 59(3). It was important that Section 103 was amended so that the responsible officer could convene a board of inquiry to investigate an absent member within a reasonable time.

The Chairperson advised that the Committee Members make further studies and investigations on the matter in preparation for the meeting that be held in the last week of February.

Ms Engelbrect requested the Committee to give the Right2Know Campaign the chance to respond to the Department of Defence.

The Committee noted that the Campaign was not represented.

Legal Aid South Africa regulations

Mr J Esterhuizen, Head:f Cape Town Office: Legal Aid South Africa (LASA) said that the national office had already made a presentation on the amendment to the regulations before the Committee, and that there was no difference between the previous and current presentations.

Discussion 

The Committee Secretary said that the previous amendments would have to be withdrawn from Parliament once the regulations were presented. The processes at the National Assembly would be more prolonged if new amendments were tabled. He said that the Committee and relevant stakeholders had agreed to facilitate the approval of the amendment. He officially tabled the regulations and the amendment before the Committee for adoption.

The Chairperson noted that the regulations fell within the domain of the responsible Minister. He asked the Members to interrogate, internalise and deliberate on the regulations and amendment before the adoption of the Bill.

Dr Mateme observed that the discussions at the previous meeting on legal aid had been exhaustive. LASA had made legal services available to more South Africans, especially those in rural and disadvantaged areas.

Mr J Mthethwa (ANC, KwaZulu-Natal) decried the delay in the adoption of the regulation. The Committee had spent considerable time on deliberation. It was therefore necessary to adopt the regulations without any further waste of time.

Ms Engelbrecht said the Committee should not waste any time to adopt the Bill, as it empowered more South Africans to access legal aid.

Mr D Ximbi (ANC, Western Cape) agreed with Ms Engelbrecht’s view.

The Committee Secretary, with the permission of the Chairperson, tabled the report for adoption. The resolution of the NCOP on Security and Justice was to consider a draft regulation based on Section 23(1) of the Legal Aid South Africa Act of 2014. The regulation would commence provided the National Council of Provinces approved the set of regulations.

Mr Mthethwa moved the adoption of the Bill, and was seconded by Dr Mateme.

Consideration of minutes

The Committee considered the minutes of the meeting held on November 27, 2018. Mr Ximbi moved their adoption, and was seconded by Mr Mthethwa. 

The minutes were adopted without amendments.

The Chairperson told the Committee that Members would receive the programme of action for the first term of 2019, which would be the last for the Committee.

The meeting was adjourned.

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