During the meeting to consider its first quarter performance report, the National Conventional Arms Control Committee (NCACC) was questioned by the Joint Standing Committee on Defence about reports that military hardware had been exported to Turkey in May 2020, with the possibility that these armaments might end up in Libya.
With the meeting shifting its focus from the quarterly report to the situation of Turkey and its connection to Libya and Syria, a Member explained that a letter dated 29 May 2018 had detailed some of the issues around Turkey and the fact that the South African arms trade had been embargoed under the Mondale Administration. This raised the question as to why South Africa continued to export arms to Turkey.
The Chairperson of the NCACC, Minister Jackson Mthembu, said the letter referred to had never found its way to him or to the Committee, and he was not aware of any issues related to Turkey that had been raised in the NCACC, so they continued to be committed to approving arms that were legitimately ordered by any legitimate government, including the government of Turkey. However, if South African weapons were reported in any way to be in Syria or Libya, it would be in the country’s best interest to investigate and find out how they got there, and who had messed up or misled the NCACC.
Regarding the R200 million contract for the construction of a munitions factory in accordance with the end user certificate, the NCACC was asked how it made sure that such transactions took place within the confines of not only South African laws, but also those of the United Nations and the international community.
A highlight of the first quarter had been the approval of the amended end user certificate provision regarding inspections post shipment. The Act provided for an inspectorate to ensure compliance with its provisions, the protection of economic and security interests, and the fostering of national and international confidence in the control over trade in conventional arms.
The Chairperson said the National Conventional Arms Control Committee (NCACC) would brief the Joint Standing Committee on its 2020 first quarter report. South Africa ensured that while it maintained an effective and competitive defence industry, it also conformed to its international obligations regarding the export of weapons. It reported to Parliament and the Executive quarterly. For the last two years, the NCACC had been led by the Minister in the Presidency, Mr Jackson Mthembu.
The Chairperson explained that the matter being dealt with was based largely on trust that the international obligations would be upheld by the end-user. When trust was broken, the devaluation would often be too severe to repair. In his book, “The Speed of Trust,” Stephen Covey stated that having no trust was bad, as it slowed everything down – every decision, every communication, and every relationship. On the other hand, trust produced speed. Unfortunately, as a Committee of Parliament, they did not have the capacity to monitor compliance with regard to the conditions of sale as it related to their area of oversight, so naturally it relied on the media and to some extent whistle-blowers. The support staff had therefore been tasked to monitor the media in that regard.
Dr Wilhelm Janse van Rensburg, Researcher: Parliament’s Defence Committees, said that the text of the specific meeting was based on section 23(1)(b) of the Act, which stated that the NCACC had to make quarterly reports to the Cabinet and the committees of Parliament, which was determined by Parliament, and represented by the current Committee.
He wanted to mention three recent developments. Regarding the end user certificates, a concern had been raised in a meeting last year between the Committee and the defense industry around the exporting of ammunitions and weaponry which had been standing still, to the value of R650 billion. One of the key concerns around that were the conditions mentioned in the end-user certificate. Since then, on 11 May, the Minister of Defence had gazetted the amendment to the National Conventional Arms Control Regulation. A key problem was around the post-delivery inspection which was required for the end user certificate, as some nations did not want to sign nor correct the changes that had been implemented in the last segment. Regulations allowed for on-site verification of controlled items through diplomatic processes. There were still conditions or allowances regarding on-site verifications which were important, but those would be arranged through diplomatic processes.
He thought that the new gazetted regulations did not take away those conditions -- they just provided for those conditions through different avenues, He emphasised that it was a positive development, specifically for the arms Industry in South Africa.
Regarding the issue of trust and the matters which had arisen in the media, he felt it was important for the Joint Committees in their oversight role to perhaps look at and ensure that trust was maintained in the exporting of South African weaponry. The first aspect had come to light in June 2020, but was also related to earlier articles that had come out in May 2018 regarding the use of armoured vehicles in the Libyan conflict which had been produced by the South African encoded Paramount Group.
Questions around the use of those South African police vehicles in the Libyan conflict were related to two sections of the Act. Section 15 stated that when considering an application contemplated in the Act, the Committee had to avoid transfers of conventional arms that were likely to contribute to the escalation of regional military conflicts in danger by introducing destabilising military capabilities into a region, or would otherwise contribute to regional instability. Section 16 stated that where conventional arms exported the ownership of the weaponry, the Committee had to satisfy itsself that the government of the country of import had given an undertaking that reflected it as the end-user. Previously similar concerns had been raised regarding the presence of South African nationals in Yemen.
The third matter that had been raised in the media referred to the Turkish military, which had imported ammunition from South Africa. This had occurred during the lockdown period. Between 28 April and 2 May, a number of Turkish military cargo aircraft had landed at Cape Town International airport. It had been presumed that they had fetched ammunition from Rheinmetall Denel Munition, which was based in Cape Town. The exact value of ammunition exported to them was unknown. The Turkish Ambassador to South Africa had stated that much of the outbound cargo was destined for practice exercises by the Turkish military.
The problem raised in media articles was that Turkey was actively involved in the Libyan conflict, and had military personnel in Libya. Secondly, specifically in 2019, the Turkish military had made several incursions into the Syrian territory which bordered Turkey. With Turkey being involved in those conflict areas, questions then arose as to whether the exported items would end up within those conflict zones, and contribute to the conflict. They would be using that conflict source to elaborate on the end-user certificate regulations, the use of potential reported military equipment in the Libyan conflict, and the Turkish exports which had increased.
The Chairperson stated that a business was based on trust, and when that trust was broken, it was difficult to repair it.
Mr Jackson Mthembu, Minister in the Presidency and Chairperson of the NCACC, stated they had all been in concurrence as to how they had crafted the details as they related to end-user certificates. An inspection of arms would be wonderful, as well as the country which they may visit if the need ever arose. All in all, it would be an inspection that would be agreed upon with the country in question. He agreed with the observations made in regard to the end-user certificates.
Regarding the export of arms during the lockdown, he stated that more information could not be supplied on the allowance of aircraft to South Africa during the lockdown, as they did not work in that space. Secondly, they did not have information on any form of transportation that had come to collect any weaponry which they might have approved. He explained that their main responsibility was to approve arms destined for areas that were not in conflict, but they were not privy to information regarding when the arms would be collected. As the Chairperson of the NCACC, he was not aware of them having approved of arms for Libya. He asked if, before they moved on to the report, his colleagues could assist him in addressing the issue as to how South African arms had landed up in Libya, and whether he was correct in stating that they had not approved any arms for Libya. He would like to receive a report from both Defense Departments; including their own intelligence committee and department. He said the matter had been raised just a week ago, so they were awaiting the necessary investigation to be conducted and concluded before the NCACC could report back to the Committee and South Africa on that matter.
Dr Naledi Pandor, Minister of International Relations and Cooperation, said that the report was being done by her own and two other departments, but it had not been finalised yet. She believed it was important for the Committee to give regard only to transactions which had been approved or licensed. The Committee had received those licences in terms of the Act as to what the other countries would do with them. She said they would attempt to establish the truth, while reminding the Committee that in order to do so, a lot of work needed to be concluded before the report could be provided to the Conventional Arms Control Coordinating Committee.
Minister Mthembu reiterated that all transactions which had been done as a Committee had been above board, and any area of conflict would not have been supported by the Committee with approval for any arms to such an area.
Mr S Marais (DA) said that in terms of intelligence, he believed that Ms Ayanda Dlodlo, Minister of State Security, would be able to provide information and answer some of the questions -- even questions Minister Mthembu himself may have had. Regarding the R200 million contract for the constructions of a munition factory, in accordance with the end-user certificate, he wanted to know how they made sure that those transactions took place within the confines of not only South African laws, but also those of the United Nations and international laws. With South African products being manufactured in another country, it could lead to the munitions being used in countries where abuses of human rights were taking place. He asked what was being done to make sure that those things were not happening, as the topic had become widely reported in the media lately.
Mr D Ryder (DA, Gauteng) explained that the letter dated 29 May 2018 had actually detailed some of the issues around Turkey, and the fact that the South African arms trade had been embargoed under the Mondale Administration. Subsequent to that, the embargo had been lifted, yet the letter pointed out a number of issues where Turkey had firstly been shown to be giving arms for the Syrian conflict, but also more specifically alarming was how Turkey was violating Greek airspace consistently -- in 2016, the airspace had been violated 1 671 times. With all the information surrounding Turkey and with the information that had just been supplied by the Parliamentary Researcher, he asked why South Africa continued to trade with them.
Minister Mthembu said he wished to clarify that the letter referred to had never found its way to him or to the Committee, so he would not be able to respond to questions related to the letter. He explained that he had joined the Committee only in 2019, and unfortunately the letter had not been handed over to him. He was not aware of any issues related to Turkey that had been raised in the NCACC, so they continued to be committed to approving arms that were legitimately ordered by any legitimate government, including the government of Turkey. If the Members or colleagues wished to pursue the matter, they could send the NCACC a copy of that so that in the next interaction he would be able to say what position the NCACC would be taking.
The Chairperson asked what laws would be applicable and applied to a South African company operating in another country.
Minister Mthembu said he would have to get back to the Chairperson regarding that, but logically the laws of South Africa and the laws which informed the work of the NCACC arose from the Constitution of South Africa. Therefore, any person who was South African but operated their business in another country would have to adhere to the business laws and general laws of that country, and the SA Constitution may not apply there. Therefore, the NCACC would not have any locus standi to poke its nose into the affairs of a person who was operating in another country, although he was open to correction from lawyers.
The Chairperson said that South Africa would not have any jurisdiction in terms of its own laws over a company located in another country.
NCACC first quarter performance
Mr Ezra Jele, Director: Conventional Arms Control, described some of the highlights of the first quarter:
- The NCACC had approved and amended the end user certificate provision as regards inspections post shipment;
- The Amendment had been gazetted; and
- The amended provisions of the End User Certificate (EUC)) had force in law as per the Regulations of the Act.
He referred to the international and domestic context of the legal framework. The international context involved:
- Treaties based on international public law, which were legally binding.
- Conventions based on international common law which, through accepted practice, were morally and persuasively binding.
- International interest group arrangements, which attempt to close gaps that may not be covered by either treaty or convention.
The context for the domestic legislative imperative involved:
- The National Conventional Arms Control Act.
- Act 41 of 2002 (as amended) (primary Act).
- Act 73 of 2008 (amendment Act).
- The National Conventional Arms Control Act also framed the:
- Regulation of Foreign Military Assistance Act (RFMA), Act 15 of 1998.
- Prohibition of Mercenary Activities and Regulation of Certain Activities in an area of Armed Conflict Act – Act 27 of 2006.
The Act captured the object of policy imperatives as being:
- To ensure compliance with government policy in respect of arms control.
- To implement a legitimate, effective and transparent control process.
- To provide for an inspectorate to ensure compliance with the provisions of the Act.
- Protection of economic and security interests.
- Fostering national and international confidence for control over trade in conventional arms
- Composition of the Committee
Mr Jele said the Committee was appointed by the President in terms of s5 of the NCAC Act. It may not be chaired by a Minister with a line responsibility interest in trade in conventional arms, and a member must vacate office if the member resigns or is removed from office by the President
The current membership of the Committee was:
- Min J Mthembu - Chairperson
- Min R Lamola - Deputy Chairperson
- Min N. Pandor
- Min N Mapisa-Nqakula
- Min A Dlodlo
- Min P Gordhan
- Min E Patel
- Min B Cele
- Min B Nzimande
- DM T Makwetla
- DM C Mashego-Dlamini
- DM D Masondo
The Scrutiny Committee (SC) had been established in terms of s7(1-9), and was chaired by the Secretary for Defence as Director-General of the Department of Defence. Members were Senior Government Officials. Its role was to scrutinize and recommend decisions to the NCACC.
The Chief Directorate for Conventional Arms Control (CDCAC) was established in terms of s8 of the Act, and served as the Secretariat of the national authority for licensing, the NCACC. It was the nodal interface point with the South African defence industry.
The inspectorate was established in terms of s9 and was accountable to the Committee, in terms of s9(1)(a). The object of the Inspectorate was to ensure that the conduct in Conventional Arms Control was in compliance with the Act, and that the internal regulatory processes of the Committee were complied with. The inspectorate had to consist of persons appointed by the Minister.
Mr Jele said the End User Certificate:
- Was legal document recognised under International Law (Article 1: Hague Convention);
- Was required in terms of s17 of the Act, underpinned by s16;
- Supported criteria 3 and 4 of s15 – primarily risk of diversion, but lent greater support in promoting non-proliferation of arms and regional stability;
- Permit holders were under obligation to provide a valid End User Certificate;
- Permit holders must inform the potential client (importer) of the requirement that ensures that there was compliance with the NCAC Act.
- Without a valid EUC, an export could not be effected under law.
He advised the Committee of topical matters handled by the NCACC, the requirements for reports to be presented to Parliament, and reporting cycles.
He summarised the operation of the NCACC, stating that the NCACC framework was grounded in domestic law, which was in harmony with treaties and conventions. The Cabinet Committee applied itself effectively within the confines of prescribed laws. The Cabinet Committee supported compliance with South Africa’s international commitments on arms control, and the Secretariat was supported to attend arms control meetings wherever these meetings took place. Defence industry members registered under the NCAC Act were subject to its provisions and must operate and grow within the parameters of the arms control framework.
Mr Marais wanted to know whether there had been any applications for munitions or military equipment for Mozambique. He asked what the difference between a contract and exporting was. His concern was that when they applied for a permit or a multi-year contract, whether they were convinced about the irrevocable order that had been placed and guarantees being applied. He asked what happened between applications and the issuing of permits, and what happened when it eventually got exported or not. He asked for a breakdown of the statistics in order to get an indication of the magnitude and size of the contracts, as well as to what extent small businesses were involved or could be involved when competing with multi-national businesses. He asked whether the amendment to the end-user certificate had had a positive effect and whether it could be enhanced to support the defence industry.
Mr Ryder sought clarity regarding the conveyancing of permits, and the comments made that no permits had been issued during the lockdown, as social media had been abuzz regarding a delivery to Botswana that had landed and was being transferred through South Africa. He wanted to know if the delivery had been from an earlier period. Secondly, slide 21 spoke to the safeguards on transfers, and he asked if they had not considered NATO in addition to the UN Security Council’s resolution and emphatic statement.
Mr Marais asked about applications for transfers between countries, and whether permits were granted to transfer munitions from one country to another.
Minister Mthembu responded that the arms originated in South Africa. He explained that South Africa had approved arms for African states, which including Mozambique. There was no way Mozambique could not be assisted as a legitimate government under attack by some terrorists. The details regarding the number of payments authorised and where those payments had come from, could be made available to the Committee.
The Chairperson said there was no evidence that the military hardware manufactured in South Africa had ended up in Libya. What was in the media was just speculation over what was happening in the conflict areas of Syria and Libya. He believed that unless they felt it necessary to conduct an investigation into the matter, the NCACC should just monitor the situation to make sure that military hardware did not end up in the conflict areas.
Minister Mthembu responded that whoever they worked with understood that the sale and use of military weapons was guided by international protocols, so they would always do what was expected by international law. Regarding whether anyone had broken the trust between them, he reserved comment for his colleagues to answer that. However, nobody who they had interacted with in good faith should have then done things which had not been agreed to. If South African weapons were reported in any way to be in Syria or Libya, it would be in the country’s best interest to investigate and find out how they got there, and who had messed up or misled the NCACC.
The Chairperson expressed his support for the Minister’s comments, adding that the meeting was a public one and served as a testament to the transparency and credibility the party and government wished to display.
Mr Marais said that he had seen a significant change in the applications and extra permits subsequent to the end user certificate amendments.
Minister’s closing remarks
Minister Pandor, in her closing statement, said that in the international domain, there seemed to be greater admiration of South Africa’s defence industry, hence the very busy and momentous work which was being done by the Committee. Secondly, regarding legislation of that kind, as a Committee they were on the right side of the street in comparison to many parts of the world, where it would be a rare occasion to have members of government bodies in other countries questioned in the same manner that South Africa’s were. It showed the fairly strict control legislation in the country, which she believed should be appreciated, as it served a vital purpose.
While some may want to look at other countries, they would find that South Africa held a very high standard of care in the supervision of the industry. Regarding permits, she believed that the legislation, rather than being permissive, was prohibitive. She assured the Members that the NCACC made every effort, supported by the secretariat and the Director General, to ensure appropriate supervision and implementation of the legislation.
The Chairperson thanked the NCACC for the good work that its team was doing. South Africa was expected to play by the highest standards, which the NCACC had not defaulted on. As a country, South Africa had a commitment to human rights and silencing of the guns wherever they were. Everyone was grateful that South Africa was honouring its obligations to the United Nations when it came to maintaining the highest standard of care.
The meeting was adjourned.
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