The Portfolio Committee on Defence and Military Veterans was briefed by the Parliamentary Legal Adviser and the Military Ombud on the independence of the Office of the Military Ombud. A legal opinion had been sought to determine the autonomy of the Office, and the effect of its responsibility to report to Parliament.
The Committee welcomed the new Military Ombud, Lieutenant General Vusumzi Masondo, who had officially been sworn into the Office on 8 November. It also welcomed the promotion of a number of senior generals to key positions in the South African National Defence Force (SANDF).
The legal advisor pointed out the entity’s independence and impartiality were specifically provided for in section 8 of the Act, which states that “the Ombud and the staff members must serve 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 must afford the Ombud such assistance as may be reasonably required for the protection of the independence, impartially and dignity of the Ombud. No person may hinder or obstruct the Ombud or members of his or her staff in the performance of their functions.” The Ombud was subject to the Public Finance Management Act (PFMA), and had to account for all monies received or paid by the Office, and ensure the required accounting and other records were kept.
The Military Ombud referred to the challenges on its independence. Firstly, the Military Ombud Act (MOA) did not expressly state the legal nature of the Office, so it had not been defined as a “national public entity” in terms of section 1 of the PFMA, Secondly, its budget was with the Department of Defence (DOD), and the Secretary of Defence was the Accounting Officer. Lastly, there was also a risk of losing credibility and trust among complainants.
The Ombud said the key priorities of the Office were to finalise implementation of the plan for a Ministerial directive for enhanced autonomy, to conduct a public perception survey to ascertain the levels of trust and confidence, and lastly, legislative amendments to provide for an institutional form.
Members asked what the rationale of the Ombud Act was, or whether the reasons for establishing the Act had been fully met by the entity. Did the implementation of the Act give full effect to the reasons for coming up with the Act, because if it did not, it would raise the question as to why the government had to spend money on the body if it was just an extension of the Department of Defence.
The Committee welcomed the new Military Ombud, Lieutenant General Vusumzi Masondo who was officially sworn into the Office on 8 November 2019. It also welcomed the promotion of a number of senior generals to key positions in the South African National Defence Force (SANDF).
Independence of the Office of the Military Ombud
Dr Barbara Loots, Parliamentary Legal Advisor, took the Committee through the Constitutional and Legal Services Office memorandum on the independence of the Office of the Military Ombud, in terms of the Military Ombud Act. The Committee had asked for a legal opinion clarifying the statutory position of the Office of the Military Ombud, wanting to know if it lacked the legislatively required institutional protection for it to function independently.
The memorandum had addressed the legislative framework, where it aligned the Military Ombud Act. (See document)
Dr Loots put emphasis on the independence and impartiality which were specifically provided for in section 8 of the Act, which read as follows:
- The Ombud and the staff members must serve 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 must afford the Ombud such assistance as may be reasonably required for the protection of the independence, impartially and dignity of the Ombud.
- No person may hinder or obstruct the Ombud or members of his or her staff in the performance of their functions.
- Members and employees of the Department must cooperate with the Ombud and the Deputy Ombud in the performance of their functions, which includes providing them reasonable access to facilities, information or documents.
- The Ombud must preserve confidentiality in respect of any information acquired in terms of subsection (4).
The memorandum went on through section 8, where entrenched independence is re-enforced by section 14, which are the Offences and Penalties. (See document).
She also discussed the Act where it further entrenches the independence provided for in section 8, which includes:
- Allowing for the appointment and (if required) removal of the Ombud by only the President with no involvement by the Minister or the Department –in terms of section 5;
- Empowering the Ombud to appoint his or her staff in terms of section 9(1); and
- Requiring the concurrence not only of the Minister but also the Minister of Finance in the Ombud’s determination of the remuneration and other terms and conditions of services of the staff in terms of section 9(2).
Legal analyses were mentioned in memorandum. (See document)
The factors that were identified in the evaluation of institutional independence were sufficient security and tenure, and financial security and protection from any possible arbitrary interference in the exercises of its essential authority and function.
On finance, Section 10(1) of the Act determined that expenditure in connection with the administration of the Office must be funded from monies appropriated by Parliament for that purpose, as per the budget vote of the Department.
Dr Loots pointed out that it was a general practice that entities that require institutional independence were included in the related department’s budget votes. Also, the fact that section 10(1) allows for the funding of the Office of the Military Ombud through the budget of the Department, does not automatically imply that this line item makes it impossible for the Ombud to perform the powers and functions in good faith and without fear, favour, bias or prejudice, subject to the Constitution and the law, as required by section 8(1) of the Act.
It was emphasised that the Ombud must be subject to the Public Finance Management Act (PFMA), 1999 (Act 1 of 1999), which is to account for all monies received or paid by the Office, and cause the required accounting and other records to be kept.
In the conclusion of the memorandum, it was outlined that in terms of the scope and provisions of the Act, the Office of the Ombud was sufficiently independent to enable it to function effectively, free from interference in its decision-making processes and the exercise of its function.
In the event that the provisions of the Act were incorrectly applied to the intent of the legislature, Parliament retained its overarching oversight power and the Ombud could submit any concerns or perceived interference by the Minister or the staff of the Department to the Committee for oversight purposes.
If the Committee was of the opinion that the Act -- although drafted to ensure the independence of the Office of the Military Ombud -- could go further in providing safeguards against unnecessary interference in the exercise of its powers and functions, the Committee could report such as a policy decision to the National Assembly, and request permission to amend the Act by means of a Committee Bill in terms of Parliament’s primary constitutional mandate to legislate.
The Chairperson asked if the Act envisaged the Ombud to be a public entity.
Dr Loots replied that the PFMA section 10 reflects that the Ombud must be subject to the Public Finance Management Act. The Ombudsman Act also brings in the financial standards required, which involves the public sector and public funds.
Schedule 3 of the entity section 47(2), addressing the issue of unlisted public entities, provides that the accounting authority for a public entity that was not listed in either Schedule 2 or 3 must notify the National Treasury in writing on why the public entity is not listed. She said as far as they could determine, that had not been happening.
The Chairperson asked for clarity on the accounting authority of the Ombud, because if it had a board, the accounting authority would be a board.
She replied that the Ombud was responsible for everything that was happening in the entity. The Ombud was the head, but because it was not listed as a schedule 3 entity, it must report to Parliament through the Minister, so when it came to finances it was the Minister who had to report to National Treasury and Parliament.
Mr Siviwe Njikela, Senior Parliamentary Legal Advisor , said that there was a particular context in which the development of the Ombud had happened. The Chairperson had asked a very pertinent question which he was had been bothering the Military Ombud Office, because the status of the Office was not as clear as it should be.
The PFMA stated that for one to be an entity, it must be declared as such. The Military Ombud, although it existed as an organ of state, did not have the status of being a schedule 3 entity as required by the PFMA. That was where the issues were coming up.
Those were the issues that had been discussed at the time when the Bill was being promoted through the Parliamentary processes. He believed that the Parliamentary legal services had advocated the creation of an Office of the Chief Executive Officer for the Military Ombud, but the Committee at that time, and the institution, in their wisdom decided not to go along that route.
These were the issues that were being debated even to this day -- whether the office had been given the status it required for it to be able to do the work. There were policy issues that had to be debated by the Committee on what direction should be taken as a country as far as the Office of the Military Ombud was concerned.
He also pointed out that the Act seemed to provide sufficient safeguards for the Military Ombud to be operationally independent, but there were issues of institutional arrangements which only members of the office could share that may be undermining the independence of the office. Those may not necessarily be legislative issues, but were issues of how the two institutions -- the Ministry of Defence and the Department of Defence -- related to the Office of the Military Ombud.
The legal services office said it would leave that part to the Office to deal with. The Committee had the authority to exercise oversight over the Department if it in anyway undermined the independence of the Office through institutional arrangements.
South African Military Ombud: Challenges to its independence
Lt Gen Vusumzi Masondo, Military Ombud, said the purpose of the presentation was to capture the actions that had been taken by the Office since the last time it had interacted with the Committee. It would also dsecribe the representations made to the Minister to assist in trying to resolve some operational and functional obstacles that it had encountered.
Advocate Dinkie Dube, Chief Director: Operations, Office of the Military Ombud, took the Committee through the presentation. She presented on the question of independence, according to the legislative provisions. (See document)
The challenges to the independence of the Office of the Military Ombud were:
- Military Ombud Act (MOA) did not expressly state the legal nature of the Office. As a result, it had not been defined as “national public entity” in terms of section 1 of the PFMA.
- The Office’s budget was with the Department of Defence (DOD), and the Secretary of Defence was the Accounting Officer.
- There was also a risk of losing credibility and trust among complainants.
She went through the activities and key milestones towards Institutional Independence from December 2012 to August 2019. (See document)
The action that was taken in May 2019 was the final report from the Government Technical Advisory Centre (GTAC), which came up with two options -- enhanced autonomy and a Schedule 3A public entity.
In August 2019, the action that was taken was the introductory presentation to the Committee on the role and functions of the Office of the Military Ombud, and the outcome was that the Committee would solicit its own legal opinion on the issue of institutional independence.
The GTAC had made recommendations on the way forward, where it had recommended two scenarios for institutional independence which were not mutually exclusive to enhanced autonomy and operational independence; and a Schedule 3A public entity.
The key priorities of the Office were to finalise implementation of the plan for a Ministerial directive for enhanced autonomy, to conduct a public perception survey to ascertain the levels of trust and confidence, and lastly, legislative amendments to provide for an institutional form.
The Chairperson asked what the rationale of the Ombud Act was, or whether the reasons for establishing the Act had been fully met by the entity. He asked if the implementation of the Act gave full effect to the reasons for coming up with the Act, because if it did not it would raise the question as to why the government had to spend money on the body if it was just an extension of the Department.
Mr Njikela replied that all the issues that had been raised in the presentation were issues that the Committee had engaged on when it considered the Bill at that time, and that was why he had said earlier that there were policy issues which the Committee must consider.
He believed that policy changed from time to time, and if it was a consideration now that the Committee needed to strengthen the independence of the Office of the Military Ombud, it was a decision that was within the consideration of the Committee, in consultation with the Minister of Defence.
If one looked at the history of the Bill, one would see that there were different versions of what today was the Military Ombud Act, because there had been different suggestions on how the Office must be established.
The Parliamentary Legal Services had made the proposal his colleagues were making -- that the Office must be strengthened. Discussion had taken place and the Committee at that time had made a decision which said that the Office was not chapter 9 institution. Therefore, it may not require the level of independence that other chapter 9 institutions were entitled to, but it was a policy decision.
It was for the Committee to consider what had been presented. There was a good reason for it to apply what had been said by the entity as to whether the lack of clarity with regard to the status of the Office impacted on its independence and operations.
Financially, the Secretary of Defence was the Accounting Officer, not the Military Ombud, and that was an issue that the Committee needed to consider -- whether that undermined the independence of the Office. Institutionally, the Office of the Military Ombud relied on the Department of Defence and the Committee needed to consider the impact of that on its operations.
Mr Njikela said what mostly needed to be emphasised was the perception of the independence, because independence was not whether one was independent or not, but whether an ordinary soldier, when looking at the Ombud and how it was related to the Department, could trust it to deal with its issue independently. The Committee needed to consider the perception of the independence and make a decision on how it could proceed.
If the Committee at any stage of its consideration came to a decision where there needed to be a change, there were three ways to proceed. Firstly, there was an executive Bill, which must come from the Ministry of Defence, opposing the changes that the advocate was presenting. Secondly, there could be a Committee Bill which was initiated by the Committee itself. Thirdly, there could be Private Members Bill, which could be initiated by any Member of Parliament to give the effect to the proposal that was being put forward.
The Chairperson asked whether the Military Ombud was able to achieve what it was meant to achieve.
Mr S Marais (DA) said now that there was a new Ombud, he was making a request to the Office of the Ombud to make sure that new Ombud works, and if there were any stumbling blocks along the way, the Office must report to the Committee for assistance. The Ombud was very important to the Committee, and the Committee would be privileged to support the Ombud, but there must be action, as actions spoke louder than words, especially on paper.
Mr Masondo said many of the recommendations were accepted, and realised that some had not been implemented when it was reviewing. He thought of a case where the Office felt strongly that the position of the Office of the Military Ombud was right, and the Minister did not accept that recommendation, and the complainants would actually lose faith in the institution’s independence and its ability to prosecute its work in a fair and impartial manner.
the Chairperson requested the Office of the Military Ombud to provide the Committee with an analysis of outstanding cases currently being investigated as well as quarterly reports, to monitor and ensure that the intentions of the Act were given effect.
The Chairperson made an announcement about the programme of the Committee. On 20 November there would be briefings by the Department of Defence on the Defence Amendment Bill [B18- 2017], on cyber warfare strategy, and on the regulatory framework governing the sale/export of arms by the Defence Industry, including the National Conventional Arms Control Act (NCACA).
On 27 November, there would be briefing by Denel, the National Defence Industry Council (NDIC) and the Directorate Conventional Arms Control (DCAC) on the state of the defence industry, as well as an update on DOD projects.
The meeting was adjourned.
- Media Statement: DMV Committee Welcomes New Military Ombud & is briefed on Appropriate Institutional form to Ensure Independence
- Activities & Action taken by Office of the Military Ombud to Determine the most Appropriate Institutional form to ensure Independence
- Legal Sevices Memo: Independence of the Office of the Military Ombud in terms of Military Ombud Act
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