Introductory briefings by Military Ombud, Defence Force Service Commission & Reserve Force Council; AGSA Training; with Minister & Deputy

Meeting report

Minister’s introduction

Ms Nosiviwa Mapisa-Nqakula, Minister of Defence and Military Veterans (DMV), introduced the Deputy Military Ombud who was currently in office, as the former Military Ombud’s term of office had expired at the end of May. Due to the elections and the appointment of Cabinet, the new Military Ombud was still to be appointed.

The second group introduced was the Defence Force Commission, whose term ended in September 2018. However not all Commissioners had been appointed to allow women to get chosen.

She then presented the Reserve Force Council, and said the DMV had received a request for a meeting two weeks ago at which former members of the Council would like to explain why they had decided to quit it. He invited Members of the Committee, if they had not received invitations, to attend the meeting on 13/14 September. The aim of the meeting would be to understand the challenges the members of the Reserve Force Council were encountering. Issues relating to recruitment would be discussed. Additionally, the Auditor-general would present some of the findings from the past financial year, the actions that had been taken and the consequences.

Between 30 August and 3 September, there would be a meeting consisting of stakeholders such as the Minister of Defence and the Chief of Defence, and technical experts. In 2015, the African Union (AU) member states had volunteered to put together a standby force. As a result, in November 2015, the Amani II exercise had brought together the Defence Forces of the different nations, so the African continent was ready for an African standby force now. She hoped the African capacity for response to crises would then be transformed into an African standby force made out of a combined defence force. This meeting in September would be on the harmonisation of the different forces.

Mr S Marais (DA) asked how this would impact on the South African National Defence Force (SANDF), and whether there would be negative effects.

The Minister said this might have a negative impact on the budget of the Defence Force. However, this would have to be discussed in Parliament. The continent needed some sort of capacity to intervene in the event of a crisis situation and for this purpose the African nations had to put their resources together.

SA Military Ombud

Adv Dinkie Dube, Chief Director: Operations, SA Military Ombud, and Mr Moho Makhaoemele, Chief Corporate Support Officer, briefed the Committee on the legislation and modus operandi of the Ombud.

The Military Ombud concept was first contemplated in the late 1990’s by the House as an independent external mechanism to deal with soldiers’ complaints and grievances, as well as a place for the public to lodge complaints about the actions of soldiers. It was established with the promulgation of the Military Ombud Act 2012, and was the first Military Ombud Office in Africa. The mandate of the Office was laid out in the Military Ombud Act 4 of 2012, Section 4.1. The Committee was introduced to its vision, mission and structure. of the Office.  The powers and functions of the Ombud according to section 6 of the Act were explained, as was the process for investigations undertaken by the Ombud.

The percentage of written complaints finalised within the Office had increased since the financial year 2015/2016, from 50% to 83% in 2017/2018, and was expected to stay at 75% in the coming years. The categories of complaints included issues relating to promotion, service benefits, working environment, remuneration, grievances and service terminations.  The presentation also covered the outreach programme of the Ombud and the memorandums of understanding (MOUs) conducted with relevant stakeholders which facilitated cooperation and collaboration. Stakeholders were, for example, the Defence Force Service Commission, the South African Human Rights Commission (HRC), the Commission for Gender Equality (CGE) and the South African Health Ombud. The conditions of service under S.1 of the Defence Act No. 42 2002, as amended, were laid out, and the timeframes for the lodging of complaints were explained in detail.

After a case study concerning the termination of service and a salary pay-out, the Office of the Military Ombud concluded by identifying certain challenges, such as those due to the absence of addressing the governance and accountability framework, and non-compliance to the Military Ombud Act in respect of the “monies appropriated by Parliament.” It was emphasised that the independence of the Office was at risk due to its current placement, and that funding remained a challenge as the Office was still in an establishment mode and therefore required additional funds.

The Chairperson asked what the term “fundamental rights” meant in the Defence Force. He wanted further clarification on the full extent of the resistance to implementing the findings of the Military Ombud. He remembered that an objective of establishing the Ombud body was to reduce instability in the Defence Force, which had become clear with the high number of complaints and grievances. He would like to know to what extent the establishment of the body had led to higher levels of stability

The Military Ombud responded that the bill of rights entrenched in Chapter 2 of the Constitution, was also applicable to soldiers, and that the effect of the establishment of the Office was the safety of the department in terms of budgeting and resources. Only a small number of recommendations did not get implemented -- somewhere less than 10%.

Discussion

Mr J Maake (ANC) asked about the mission of the Military Ombud itself. He was especially interested in the position of the former members of SANDF and veterans, and asked whether they were considered part of the public or whether they featured differently in the mission of the Office. He also wanted clarification on the issues the Military Ombud did not investigate. Were the findings, recommendations or decisions of the Ombud binding? He questioned the real impact of the Office if the recommendations did not have a binding effect. His last question concerned the relationship between the Ombud and the union, and whether the Ombud dealt with complaints raised by the union or by individual members.

Mr Marais voiced concern regarding the confidentiality, the protection of individuals and the independence of the Ombud. If the perception was that the Ombud was not fully independent, members might not come forward as they felt that they might be named or shamed.

As public representatives, Members of Parliament often see complaints -- often by serving members and even more than often former members. The presentation said that 99% of all complaints come from current serving members. This raised the question as to what extent the Military Ombud was advertising the opportunity for former members.

Every year there were quite a number of cases that the Ombud did not finalise. There had been a substantial increase of cases, but last year there had been a significant decrease in the number of cases finalised, and the number of cases not being finalised would increase. It was important for the Committee to understand the background to this, and how far the work was funded. The SANDF was under huge financial constraints, and many people would argue that the country could not spend money if it did not seem reasonable.

Ms A Beukes (ANC) wanted to add to the last comment. She asked what the reason for this decrease in finalised cases was.  She had also noticed that the presentation stated that the Military Ombud received very few complaints of members of the public. Were there any programmes or engagements to make the communities aware of their opportunities?

She expressed special interest in the former members who had served before the independence of Namibia, as most of them had come to South Africa after independence. People had heard two weeks ago that she was part of this Committee, and had therefore asked her to get more information about this topic, so she asked what the status of those former members was.

Mr M Shelembe (DA) asked if the Military Ombud had special offices in any of the nine provinces to ensure that information about them was communicated to the public. He wanted to know whether there were any public awareness programmes. He expressed concern about the rural areas, where the population did not have access to the media. He also asked how the Military Ombud engaged with military veterans over their entitlement to benefits.

Mr T Mmutle (ANC) wanted clarification on the outreach programme, as it was not clear whether they were limited to military bases, or whether the Office performed outreach activities among the civilian communities. He referred to the total number of cases finalised again, and asked whether those cases were lodged by soldiers or by civilians. He believed this was important, in order to get a clear understanding and picture of the work that the Ombud was doing. How effective was the Ombud’s system in assisting people outside of the military who had disabilities, for example?

He commented that the Ombud was supposed to be an independent body, but the presentation stated that there were challenges concerning the Office’s independence. He asked whether the presenters felt that the Military Ombud was independent.

Minister Mapisa-Nqakula said that her concerns were already covered, but she asks the Ombud to expand on the types of complaints that they receive and on its relationship with the union.

Military Ombud’s response

The Committee was told that the recommendations of the Military Ombud were not binding, but they had substantial meaning. There were six recommendations so far. The DMV was reviewing the recommendations at this point and in case of contradictions, the court would decide on the strength of the Military Ombud’s recommendation.

The Committee Chairperson elaborated on the comments made by Members. He said it was not clear what happened if the Department did not support the findings of the Ombud. Was the Department legally in the position to simply ignore the recommendations of the Military Ombud, as this would mean that the effectiveness of the Office was questionable? Did this mean that the Minister could override the Ombud’s findings? Could the Ombud effectively take the Department of Defence or the SANDF to court in such a case? He added that 10% of the findings not being implemented was not an insignificantly low amount, and stressed that it was important to ensure that not an alarming number was reached.

The Ombud explained that if the Minister or the Department did not support the recommendations, they would sit down together to engage and discuss the issue. If the Military Ombud felt strongly about an issue, it could be presented to a court. However, this did not mean that the Department would be taken to court. The Military Ombud merely allowed the Department to review the recommendations at the civil high court. Afterwards, a final decision would be based on the court’s findings.

The Military Ombud had no relationship with the union -- it took complaints from individuals. It protected individuals and their confidentiality. Some members questioned the Office’s independence, but the its recommendations were not discussed with the command control, and it produced independent recommendations.

The Ombud had started an outreach programme for members of the public, and had set up stores to inform the public about the Military Ombud and their rights. They would now expand the programme and start reaching out to the border areas. Additionally, they had an outreach programme for former members and veterans. Up to this point, the Ombud had only a few cases brought by civilians. However, they were working with the Police Ombud in Cape Town, so that this office could accept cases for the Military Ombud.

The Ombud had introduced a pilot project in Cape Town and in Limpopo, where they had conducted outreach and analysis. However, due to a lack of capacity back at the office, the project was partly terminated and the cases were not finalised back at the Office in Pretoria. This explained the decreased number of finalised cases. It now planned to introduce pop-up offices, but due to budgetary constraints, this was difficult. It did not currently have the capacity to have offices in the provinces, but they were hoping to achieve progress by opening pop-up offices. They were also targeting rural areas now.

With regard to former members of the Defence Force who served before the independence of Namibia, the Committee was referred to legislation passed by the Department of Defence whereby all complaints had to be lodged within a certain time period. Unfortunately, the Military Ombud could not entertain those cases anymore. The regulations of the SA Military Ombud do specify the time frame for investigations. However, there were other opportunities where complaints could be discussed. For example, the Ombud had a monthly meeting with the Chief of Defence to investigate problems.

Due to the proximity to the Department of Defence, full independence was difficult, but the Ombud was working on increasing the autonomy of the Office. It had been advised that enhanced autonomy should be achieved, but real independence was not possible. The Ombud could function as an office which was autonomous, as they were not located in the Department of Defence. They merely depended on the Department.

Discussion

Mr Thabang Makwetla, Deputy Minister of Defence and Military Veterans, pointed out that the Military Ombud was established as an independent office in the legislation. This must be an error, and the Act did not seem to be drafted well. Was the Military Ombud accountable to the Minister of Defence, the Department of Defence or the SA Parliament?

The representative of the Military Ombud explained that the Act stated that the Office was independent, and thus they accounted to Parliament. However, they were in the process of reviewing the Act as during the seven years of its implementation, it had become clear that there should be certain amendments. 

The Chairperson highlighted that there were bodies that reported directly to the Department or the Minister, and there were other bodies that reported directly to Parliament. It was therefore was important to understand what kind of body the Military Ombud was. It seemed like the Office was an instrument of the Minister to deal with complaints and issues, to oversee the Department.

He asked what powers the Portfolio Committee had when the Military Ombud submitted a recommendation.

Mr Marais emphasised that there was a significant difference between independence and autonomy. It was preferable to get a legal opinion on this matter to understand what the role of Parliament was. If the Military Ombud was not accountable to Parliament, there was little meaning in discussing this issue here, so a legal adviser was necessary to ensure clarity.

Mr Mmutle said that the Military Ombud was overseen by the Minister, as this was part of the tasks of the Minister. Overseeing the ministry was part of the Committee’s task.

Briefing by Defence Force Service Commission

Mr Ian Robertson, Acting Chairperson: Defence Force Service Commission (DFSC), briefed the Committee on the mandatory role and function of the DFSC, whose mission was to provide quality advice to the Minister of Defence in pursuit of a better life for soldiers. It was mandated in terms of s.63 A-L of the Defence Amendment Act, Act No 22 of 2010, to make recommendations to the Ministry of Defence and MV on improvements of salaries and service benefits, policies in respect of conditions of service, and the promotion of measures and standards to ensure the effective and efficient implementation of policies on conditions of service. For those purposes, the Commission conducts research on conditions of service, reviews policies, evaluates and monitors the implementation of such policies and considers among others, inflationary increases and affordability of different levels of remuneration of the Defence Force. 

The Department of Defence consisted of the Ministry of Defence and Military Veterans, the Defence Secretariat, the South African National Defence Force and the organs of the state, which includes the Defence Force Service Commission (DFSC), the Military Ombud and the Reserve Force Council. The DFSC consists of ten commissioners. The Secretariat was established to provide research, secretarial, logistical and technical support to the Commission. S.63.B.3 of the Act empowers the Commission to call upon any member of the Defence Force or employee of the Department to assist it in the execution of its functions.

The DFSC’s important achievements included the introduction of a Defence Review and the implementation of several recommendations to the MOD&MV regarding topics like the remuneration for military university educators. It had undertaken benchmarking visits to four Southern African Development Community (SADC) countries -- Botswana, Tanzania, Namibia and Zimbabwe -- and had learned important lessons like sustainable exit mechanisms that ensured that existing military members were well incorporated into civil society. Additionally, 30 internal military bases and units were visited, during which the DFSC interacted with approximately 27 000 members across all ranks, as well Public Service Act Personnel (PSAP) members in the Defence Force. The demonstrated recognition, trust and appreciation by members of the SANDF was that the DFSC was the voice that could bring change and improvement to their conditions of service.

The DFSC faced several internal and external challenges. There was a lack of permanent office accommodation, which was why it would strive to acquire its own accommodation through the MOD&MV and the Defence Works Formation. Additionally, the structure of the DFSC Secretariat was poorly aligned, so it was unable to acquire the necessary skills and competencies befitting the expectation of the DFSC mandate. Moreover, there was a lack of authority to enforce the implementation of recommendations. Therefore, the action plan included an amendment of the Defence Act to enhance the effective execution of the mandate and to make the DFSC a Chapter 9 institution.

Mr Robertson said that the inadequate number of researchers, the level of appointments and the inadequate support structure to the core function of the Commission, impacted adversely on the effective execution of its mandate. As an advisory body to the MOD&MV, the Commission could strengthen the hand of the Ministers in improving service conditions of the SANDF members, secure funding to implement Defence Review (DR) 2015, facilitate the implementation of the Ministerial Medical Task Team, and secure an appropriate budget allocation for the DOD/SADNF despite the national fiscus challenges.

Briefing by Reserve Force Council

Maj Gen Keith Mokoape (Ret.), Chairperson, Reserve Force Council (RFC), representing reserves in the SANDF, said the RFC was created in 1992 by the reserves to represent them during the transition to democracy. The presentation included a detailed explanation of the RFC’s history and its constitution. The RFC councillors that were appointed by the Minister on a five-year term basis, were introduced. Their roles and functions included advising and consulting with the MOD&MV and others on matters affecting the Reserve Force, contributing to the decision-making process in the Department, specific tasks as commissioned by the Minister, the Secretary of Defence or the Chief of the SANDF, promoting the development of the Reserve Force support structures for the community, employers and employees, and actively supporting the Defence Force in the recruitment of volunteers.

The main achievements and challenges were identified, and the RFC emphasised that it had to contribute to the achievement of Milestone 1 of the Defence Review 2015, which was arresting the decline of the SANDF. The Council’s involvement in the areas of human resources, collateral utility projects, communication and public relations and international relations and cooperation were explained.

Discussion

Defence Force Service Commission

Mr Marais asked whether the Defence Force Service Commission’s primary role was to advise the Minister or the unions as well, as the Commission was there to create a better environment for serving members. He wanted more details on the relationship between the Commission and the unions and what the Commission thought about the existing mechanisms that were listed as an achievement in the presentation.

He was interested in what the Commission had done so far to improve the conditions in the Defence Force, and whether they had addressed the issue of an ageing Force. He believed that the age restrictions might stop young people from joining the Force.

He referred to its proposals to secure additional funding, and asked for further expansion on this. He also voiced concerns about the structure of the Commission, as some important posts were vacant. He asked whether they were funded.

The representatives of the Defence Force Service Commission emphasised that it was difficult to answer the questions fully in the time allocated. However, they wanted to try to give the Members of the Committee the opportunity to get a good understanding of the important issues. They made it clear that they did not work with the unions, but that the unions might interact with them at some point.

Expanding on the defence review, they said the restricted budget had negative impacts on the performance of the Commission. However, if certain things could be partly funded, the Commission would think outside of the box to find a solution. There had been a lot of administrative issues. Due to the inability of the SANDF to educate and promote the members of the Defence Force, there had been a loss of competent personnel over the past years. It was very important to change this, as skilled workers were essential for an effective defence force. However, it was also clear that they had to understand that trade-offs had to happen. Money was limited. Thus, priorities might have to be rearranged. It would be an option to promote a smaller permanent Defence Force. However, the Minister had made it clear that she was not interested in releasing people. This was understandable, as the unemployment rate would rise as a result. 

Mr Marais commented that it seemed like listening to the Minister first before giving her advice on certain issues, tended to nullify the mandate of the Commission. 

Deputy Minister Makwetla stressed that the Defence Force Service Commission must be understood as a body which dealt with issues that the Public Service Commission could not deal with, as members of the Defence Force were not employed under the Public Service Act. It was also unfair to say that the Commission listened to the Minister first and then presented her with advice which was in line with what she believed in. Actually, the Commission did the opposite -- it was there to promote the interests of the members of the Defence Force, and thus to advise the Minister in that way. The Commission dealt with the conditions of service, but they also tried to assist in other areas, such as human resources (HR) issues.

Reserve Force Council

Mr Marais said he wanted to focus on the 2015 Defence Review again. He got the impression that the Reserve Force Council supported a larger Reserve Force and a smaller Permanent Force. The Minister did not seem to agree on this. He asked whether the Council had made any recommendations with regard to this issue, despite the 2015 Review not being implemented as it was not realistic or affordable.

He asked what would be a recommended plan of action to lower the average age of members of the Defence Force. as it was incredibly high. He also wanted to know whether the Reserve Force was also involved in domestic and local operations.

He asked for further details about the new Reserve Force system, and whether they had made progress. He stressed that it was very important that South Africa established a new Defence Force that the country could afford.

Mr Mmutle asked about the development of the Reserve Force and the challenge of dealing with members who did not have qualifications recognised by a South African qualification authority. Had schemes been developed to deal with this issue? This was very important, as otherwise young people might make their living in the informal sector. He believed that there must be a recognition of the skills, even if they did not get a higher qualification. It was therefore necessary to engage with the relevant partners to improve the wellbeing of the members of the Reserve Force, as the majority were facing unemployment. This was a ticking time bomb.

Ms Beukes made two observations and proposals regarding the problem that members of the Reserve Force had with skills that were not recognised in the outside environment. She asked whether the Reserve Force Council had data about the skills, and how far they could be integrated in the community works programme (CWP) of the government. This would be a good way of keeping them busy and providing them with money, especially in most of the rural areas, where the population did not have the necessary skills. Members of the Reserve Force could be used there after they had obtained sufficient skills through the CWP programme.

She asked what the Reserve Force Council’s approach was when attempting to boost the inclusion of citizens with disabilities. She also emphasised that it was important that the population had respect for anyone in uniform, to make working for the Defence Force an occupation of choice.

Maj Gen Mokoape commented that the questions asked had been solution-driven, and he thanked the Council for suggesting them. He said that on 7 August, the Council had presented to this Committee what they thought was the best way out of the HR crisis, and how to deal with the high levels of youth unemployment. Afterwards, they had returned to discuss re-skilling and skills development. They had been instructed to come back later in the year, and recommended that all relevant parties should be invited to suggest solutions.  This should be done in September, so that all questions and comments could be discussed in a lot of detail.

Capacity building programme of the AGSA

The Auditor-General of South Africa (AGSA) told the Committee it was the supreme audit institution of South Africa. It existed to strengthen South Africa’s democracy by enabling oversight, accountability and governance in the public sector through auditing and thereby building public confidence. It audits, reports and generates commitment from all key stakeholders. The audit process included risk assessment, risk response and reporting.

The AGSA shared insights on the root cause of audit outcomes and recommendations on corrective actions needed for improvement and sustainable outcomes through briefings to the committees. The audit outcome trends over the last few years were explained. The history of irregular expenditure and unauthorised expenditure was highlighted and the root causes of continuous poor outcomes were laid out. Material irregularity and irregular expenditure were defined. The Public Audit Act (PAA) amendments and the key expansion of the AGSA mandate were explained. This included referring material irregularities, taking binding remedial action and issuing a certificate of debt. The legal obligations of an accounting officer (AO)/Accounting Authority (AA) to address an irregularity were outlined. The implementation of the expanded mandate was laid out. Its role in the oversight and monitoring initiatives was also explained.

The AGSA concluded the presentation with an overview of the measures of success.

Discussion

Mr Maake started by referring to a Department of Defence audit matter that had been described in the presentation. AGSA had stated that payables of R589 million were outstanding for a period above 30 days, and this amount exceeded the voted funds to be surrendered by R566 million. The amount of R566 million would therefore have constituted unauthorised expenditure had the amounts due been paid in time. He asked for further clarification as to his understanding, if something had been budgeted for R566 million, but more money was spent, the difference would be unauthorised.

Mr Marais said he also understood that if the more money was spent than authorised, this would be an unauthorised expenditure, which then meant that it would have to be covered by the budget for the following financial year.

He would like to understand how the value of intellectual property (IP) was determined. Does the responsibility lie with the Department of Defence, which was the actual owner, or the office that was using the IP?

He asked if the AGSA applied its discretion in certain audits, as he believed that the Department of Defence was a specific case because it might have to deal with a broken aircraft. If no emergency process was applied, the aircraft would stay grounded for up to five months, but the Defence Force could not afford this. Therefore the emergency process under s. 200 must be followed due to the importance of the safety and the sovereignty of the country.  He asked whether the same set of rules was applied to all departments, or whether different groups might be dealt with differently according to their mandate.

AGSA’s response

AGSA explained that no institution was allowed to exceed a specific budget. If there was a regulation that a department must pay invoices, the AGSA did not highlight a non-compliance, but would merely highlight a financial risk, and the relevant department then had to ensure that this was covered in the next year’s budget. It was important to control those kinds of situations.

In the case of an irregular expenditure in the employee cost budget, the AGSA reports non-compliance. This was a complicated issue, as there were budget cuts every year, but salaries and compensation of employees usually increased.

The situation regarding IP was very complex, so they order the identification of an individual owner of each IP. This owner was sometimes a department, and usually featured in the audit of the department.

With regard to the emergency procedure, there were currently no special emergency rules. However, it was always essential to comply with the National Treasury rules

AGSA explained that when identifying material irregularities, it followed a specific procedure. First, they identify a potential irregularity. Then, if they still believe that it is irregular, they go to the next step, which is a recommendation. At the end of the process, the presentation would go to an independent committee which would oversee this, and this committee would then make a recommendation too. In the end, it would be decided whether a certificate of material irregularity should be issued.

The meeting was adjourned.