Defence Amendment Bill [B18-2017]: consideration; Magistrate Nzimande provisional suspension

NCOP Security and Justice

27 February 2019
Chairperson: Mr S Mthimunye (ANC; Mpumalanga)
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Meeting Summary

The Select Committee on Security and Justice met to discuss two matters: the consideration of the Defence Amendment Bill [B18-2017] and a briefing by the Magistrates Commission to consider and confirm the provisional suspension of Magistrate Eric Nzimande. .

On the bill, Members of the ANC disagreed with the DA’s motion to have an amendment that will have a mechanism in place in the bill for the Minister to report his decisions on the military to the Joint Standing Committee on Defence. Members of the DA left in the middle of the meeting resulting in not having enough Members to vote and the vote has been deferred to the next meeting.

The Committee also confirmed the suspension of Magistrate Nzimande.

Meeting report

Discussion

Mr D Ximbi (ANC; Western Cape) said the army is supposed to be independent.  The Minister can be involved in decision making and this means that there will be political influence within the army, but it will come from a parliamentarian and not a committee.

The Chairperson asked Ms B Engelbrecht (DA, Gauteng) whether she is aware of the administrative nightmare that this matter will create. Can you imagine a Committee of Parliament engaging into controlling access into a State property? He views this matter as an administrative function that would not involve Parliament in any way. If members of the public such as journalists and schools requested access to an army base for education purposes, would the Department then have to go to Parliament with these requests every time they are made? They are under the mandate of a legislative rule. The legislation in question is section 75 legislation and their role as a Select Committee of the NCOP is to protect the interests of the provinces that they stem from. He needs Ms Engelbrecht to take all of this information into account when replying to questions.

Ms T Mokwele (EFF; North West) said the way the bill seeks to be amended does not give the Minister complete control. The bill merely allows for the Minister to prescribe measures which govern the manner at which access to military bases is granted to non-military individuals. The Minister does not have a right over the defence force. It is the presidency that has the out most authority over the defence force. They should avoid granting such rights or power to other departments or individuals. These rights should always be limited to avoid issues such as abuse of power and State capture.

Dr H Mateme (ANC; Limpopo) said it would be sad to live in a country where the Minister of Defence must consult Parliament whenever faced with a situation such as the current one. If this were to be allowed to continue it would disrupt the governing of the defence force. She appealed to the Committee to put their support behind the way that the bill is currently structured. Ms Engelbrecht should be rest assured that her fears are provided for in the Constitution and the laws of the country. South Africa is well managed and is not a banana republic. When a decision must be taken for the safety of the country, the Minister would not have the time to approach the Committee for consultation.

Mr G Michalakis (DA; Free State) said contrary to what Dr Mateme said, the military is not well managed as it barely exists. He blames the administration for this. If a mechanism would be placed in the bill for the Minister to report to the Joint Standing Committee on Defence, it would not mean that the process would be prolonged - it would not mean that the Minister needs to seek permission from the Committee. It would simply mean that an extra check and balance would be put in place for the Minister to report his decisions to the military. This would not damage our democracy but would enhance is instead. He proposed that amendment be considered to say that the Minister needs to report with reasons on his or her decisions. This would go a far way in enhancing democracy and making the bill more acceptable for them. There is a mechanism in place to allow for the Joint Standing Committee to deal with classified military information. The more information that comes to Parliament, the better it will be for them to do their jobs as parliamentarians for the purpose of democracy. He is in favour for something that involves Parliament, as a representative of the people, in the decision making of the State and more specifically the Cabinet.

Mr Ximbi said there is a joint committee for defence and he sees no need to delay the bill and he concurs with Mr Michalakis.

Ms Mokwele said her opinion is that the first section of the first sentence of section 838(1) which read “the Minister may regulate access to any military camp etc” includes the word “may” which has many other meanings in a legal context. She asked the Committee to move forward with the bill and then make sure that the Minister complies with the measures that will be favourable for the safety of the country. She said they should move forward with the bill and then deal with other nitty-gritty at a later stage. The EFF supports the bill.

At this point, Members of the DA got up and walked out of the meeting.

Adv T Ramcharant, Director: Legal Advice, DOD, assured Members that nothing sinister happens at the defence force. She said according to the Constitution a Member of Parliament must be responsible for the defence force thus making the Minister of Defence the perfect candidate for such a job. The Minister is not given ultimate power over the defence force - just has the discretion to regulate access to military bases and that access is related to the protection of military assets. There was a problem of civilians trying to infiltrate the military bases, causing problems for the defence force and compromising the security of the country.  To counter this, they need some sort legislative mechanism to give the Minister power to restrict this access.

The Chairperson interjected and said that he wants to clarify that since the person who raised the motion of the amendment of the bill has left the meeting without the motion being seconded by any Members of the Committee, the motion thus falls off and the meeting will simply continue as a discussion.

Adv Ramcharant then continued and said when legislation is made, there are checks and balances that are put together and part of these is consultation. Even on the bill in question there was consultation of a department that deals with legislation within the Presidency.

Col Leon Gernandt, Legal Advice, DOD, said it is correct to say the President is the Commander in Chief of the SANDF. The President can deploy the SANDF where ever in the world as per the Defence Act. This means that the SANDF needs to have all the necessary powers in order for them to do their jobs in terms of section 200 of the Constitution. The Defence Act also prescribes that the Minister can do anything necessary for the defence of the Republic and access and movement to military units needs to be limited. There is legislative oversight by the Department of Planning, Monitoring and Evaluation (DPME) as well as the Office of the State Law Advisor who must confirm that the regulations are in line with the Constitution and other national laws.

Dr Barbara Loots, Parliamentary Legal Adviser, said a Member said the minister needs to function in consultation with the Committee. There is a problem with the phrase “in consultation with” in this context - it would be an infringement on both Parliament and the Executive’s constitutional rights.

Dr Y Vawda (EFF; Mpumalanga) said he would like clarity on the distinction between the jurisdictions of the Minister to that of the President in relation to the military.

Dr Mateme said that we must not lose sight of separation of powers as this was added to the Constitution for a very good reason.

Col Gernandt said that even though the Defence Act says that the minister can do anything to ensure the safety of the Republic, section 18 of the Act says, ‘subject to the Constitution and the President’. The clause should always be read in conjunction with the Constitution and the rest of the Defence Act. The Minister will always be subject to the Constitution.

The Chairperson moved to conclude the discussion. He said the meeting agrees that the bill be carried through for purposes of adoption, in its current form, on the next committee meeting. The Committee currently does not meet quorum in terms section 75 for them to vote upon the matter.

Col Genandt asked the Chairperson to clarify if the adoption was now with the amendments as it is or not.

The Chairperson said he would like to get advice and then revert to the Colonel. He asked Dr Loots to address the Committee on the substantive implications of the Committee adopting the bill with the proposed amendment.

Dr Loots said if the Committee does not have a quorum to vote today, there is a very high chance that this motion will lapse and would have be revived in the 6th Parliament.

Adv Ramcharant asked that the bill be allowed to go through as it is without the amendment and they will deal with it on their own as a Department.

The Chairperson said that he is deferring the meeting to the next committee meeting. They do not have the number needed to adopt a resolution of the Committee around the bill. He dismissed the members of the defence force and welcomed the Magistrates Commission.

Magistrates Commission

Adv Cassim Moosa, Chairperson, Magistrates Commission, said he would like to give the Committee the comfort that when the Commission appear before the Committee, they do so from an objective stand point and not a subjective one. They have no personal interest in the case. Their wish is to only see through that justice is done and seen to be done.

Magistrate Eric Nzimande was suspended on 5 October 2018 by the Minister.  The Committee recommends that the National Assembly should confirm Mr Nzimande’s suspension. The matter was deliberated on by the Magistrates Commission on 22 February 2019. More allegations were brought against Mr Nzimande during the deliberation. The investigating officer in the case has received death threats. The Acting Regional Court President has had her computer hacked. The witnesses have already received visits from Mr Nzimande in relation to the evidence. The integrity of the process will be compromised if the Committee does not confirm the provisional suspension of Mr Nzimande to the NCOP. The resolution of the Magistrates Commission has endorsed the recommendation that three people should preside over the case and two people should lead the evidence. He asked the Committee to confirm Mr Nzimande’s suspension as this will be in the interest of justice.

Adv Johannes Meijer, Member, Magistrates Commission, said that this was a very serious matter and they would like to commence with the enquiry as soon as possible.

Adv Moosa said there is tremendous national interest in the matter and he believes that the Committee will be acting correctly if they recommend the provisional suspension of Mr Nzimande.

Dr Mateme proposed that the Committee confirms the provisional suspension of Mr Nzimande.

There were no objections to the motion and the motion was carried.

The Chairperson confirmed that the provisional suspension of Mr Nzimande has been confirmed and the resolution will be taken to the House.

Consideration and adoption of minutes

For the meeting dated 19 February 2019. Ms Mokwele asked that she be captured as having been on medical leave and not absent for that meeting.

Minutes were adopted.

Minutes for meeting dated 20 February were adopted.

 Meeting adjourned.

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