Military Ombud & Military Veterans Appeals Board 2019/20 Annual Report; with Deputy Minister

Meeting report

SA Military Ombud Annual Report

Lt Gen (Ret) Vusumuzi Masondo, Military Ombud, thanked the Committee for the invitation, and said that because of the challenges of Covid-19, it was now difficult to meet with other departmental colleagues, but they also relished the opportunity to be meeting virtually. His Office welcomed the opportunity to account to Parliament on its activities, as this gave it office the opportunity to clarify its activities.

Ms Annelize Welgemoed, Chief: Policy, Strategy and Planning, Office of the Military Ombud, said the Office had set itself 12 performance targets for 2019/20, of which seven had been achieved, reflecting a 58.3% performance against set targets. This was a significant improvement on the 27.27% performance in 2018/19.

Key performance indicators (KPIs) not achieved in 2019/20 were:

Strategic direction compliance

Due to Covid-19 and the lockdown period, the Office did not table the Annual Report as per the set date in the Military Ombud Act.

Regulatory Compliance

The deviation was due to attrition.  The Military Ombud would address the shortage in the compensation of employees (CoE) with the Secretary for Defence.

It would commence the framework logistics budget procurement process earlier than anticipated, to ensure that the timely delivery of goods/services took place. 

The Office would initiate a new framework information communication technology (ICT) plan for internal procurement in the next financial year.

The Office would initiate a new framework security policy approach with Defence Intelligence (DI) to speed up the security clearances. Improve security awareness in the office.

The Ombud’s non-compliance with the human resources (HT) plan posed an ongoing concern, as it had also failed to comply with this Plan in 2018/19.

It would address the shortage on CoE with the Secretary for Defence. Members may ask for more clarity on the engagement between the Secretary for Defence and the Military Ombud in this regard.

Complaints

In the last eight years, the Office of the Military Ombud had received a total of 2 752 complaints that were registered with the Office. By the start of 2019/20, 279 cases had been carried over from the previous year. An additional 308 cases were registered with the Office during 2019/20, thus bringing the number of active total cases during the year to 587. Of these, 439 cases were finalised, leaving 148 cases pending by the end of 2019/20. The number of cases finalised in 2019/20 (439) was significantly higher than the number finalised in the preceding year (246).  The majority of cases were recorded in the North West province (95), followed by Gauteng (81) and the Western Cape (57). Only 13 cases were reported by the public, of which only two wererelated to the official conduct of a member of the SANDF.

Outreach programmes

The Military Ombud had held 52 outreach programmes throughout the year, which was an improvement on the 47 held in the preceding year. These included outreaches in eight provinces in 2019/20, as follows:

Six Gauteng outreaches (compared to one in 2018/19);

Five Eastern Cape outreaches (four in 2018/19);

Nine Limpopo outreaches (15 in 2018/19);

15 Western Cape outreaches (12 in 2018/19);

One North West outreach (seven in 2018/19);

Four Kwa-Zulu Natal outreaches (three in 2018/19)

Expenditure report

In 2019/20, the Military Ombud’s total expenditure was R53.08 million. This was less than the original vote of R54.505 million allocated to the Ombud’s office. Expenditure at a lower level than planned had been recorded in the previous financial year (2018/19). The bulk of expenditure was related to the compensation of employees (R41.514 million), while goods and services spending totalled R11.566 million during the period under review. 

Discussion

Mr S Marais (DA) agreed the Military Ombud had improved, and said they should be commended. This office was doing great work, but what happened to their findings and recommendations, knowing that they were not one of the Chapter Nine institutions? As a result, they were not totally independent and were rather relying on the goodwill of the Department of Defence and the Minister for funding. With regard to the enforceability of their findings and recommendations, what happened when they made recommendations?

If the Ombud was doing great work, what was the end result? Everything must be measured by the eventual outcomes. If their recommendations could not be enforced, it amounted to a tick box exercise, so what was the validity of the Office?

What was the purpose of a golf day for this Office? Who was their target market on that golf day, and what did they want to achieve with it? What did it cost to organise it? It could be seen as unnecessary luxury.

Regarding all the complaints received in the financial year under review; how many cases of death had been investigated, and what had been the outcomes? What had been success rate in cases of mediation and conciliation?

Ms A Beukes (ANC) said there had been improvements in their outreach programmes, and that was highly appreciated. Could they also include the rural areas in their presentations? Could the Ombud measure the impact of those engagements? Was there a plan in place for public education in future? What had they meant when they said that 58 cases had not followed the grievance procedures? What had happened to those cases? Was there a process to make contact with those people, or were the cases closed because they had not followed procedures? The average turnaround time for the finalisation of cases was 247 days -- why were the cases taking so long to finalise?

Mr W Mafanya (EFF) wanted to know if there had been complaints from the unions about the Ombud. If there had been, how many were there? An eight months’ turnaround time to deal with complaints was still too long, even if it used to be eight years. Within this period of time, people were suspended and expelled from the military, and these same people had taken the military to court. Litigation cost money, and some had been suspended with or without pay. It was unfair and unjust for these people who havd to wait for such an extended period of time.

The Chairperson said the chairs of various Portfolio Committees had had a meeting with the Auditor-General (AG), where they had discussed internal controls in various government entities. It had been resolved that from now on, just the internal audit and audit committees/units of these entities would invited to share information with Parliamentary committees, not the accounting officers or chief financial officers (CFOs). The reason for this decision was so that it could be ascertained if there were measures in place to prevent irregularities in these departments. It was cheaper to prevent irregularities compared to the expense of dealing with those that had already occurred because of the involvement of lawyers and other court processes. This Committee was also going to move in that direction.

It buttressed what the last speaker had said. If a person was dismissed and reported the matter, and the findings recommended a reinstatement but the Chief of Defence did not implement this recommendation, this frustrated person would take the matter to court. The court could rule in his or her favour, yet it might still fall on deaf ears. One could see this would end up exposing the Department to further litigation. In this case, it would have to pay the costs just because the recommendations had been ignored in the first instance. In this scenario, who bore the cost? It was high time people had to pay such costs from their own pockets, because it showed a sheer disregard to reasoning.

DNV’s response

Lt Gen (Ret) Masondo responded on the question of the Ombud’s findings, and said there was no provision in the Act that established the Office, that mandated their recommendations to be binding. However, the attitude of the Minister was appreciated as far as their recommendations and findings were concerned, by ensuring that they were upheld.

The concerns of the Committee on the golf day were understandable, but it was just an avenue of establishing rapport and confidence with stakeholders. There was no cost involved to the Ombud, as it was a sponsored event.

On the question of deviations, all cases that had gone through reconciliation and mediation successfully had been implemented. Before those cases were signed off, the Ombud normally followed up with the complainant, and there was a 100% success rate.

The outreach of the South African National Defence Force (SANDF) was mostly targeted at the rural areas, and so was the Ombud’s -- with its implementing partner, the South African Local Government Association (SALGA).

In cases where the complaints did not follow the normal processes, the Ombud respected the command and control procedures of the SANDF. As there was a grievance procedure, the SANDF was normally allowed to deal with the process. The finalisation of complaints, meanwhile, took eight months, but they were working on cutting it shorter. The Ombud was working on clearing out the backlogs, and then set targets from within one year to six months.  They wanted to be in a position to finalise complaints as speedily as possible, though the turnaround time of receiving the information and documents to deal with complaints from the SANDF also had to improve.

Sometimes, the Chief of National Defence Force was placed in a difficult situation because the constitution defined the Defence Force as a disciplined force, and yet it empowers HR to deal with misdemeanours. For instance, if someone stole a weapon, which was a very serious offence for a military person to do, the law says such a person must be administratively discharged. Sometimes people used the wrong section of the Act to execute an administrative discharge. 

Mr Thabang Makwetla, Deputy Minister (DM): Defence and Military Veterans, said there should have been an official from the office of the Minister with the responsibility of taking copious notes of the salient points for her to follow-up in her next engagement with the Committee. He hoped that his colleagues from that office would do that so that the discussion of today would be shared with the Minister. The Military Ombud was a body under the direct supervision of the Minister. As the DM, it would be inappropriate for him to venture opinions with regards to the Ombud because the Minister supervised this body directly.

The report of the Ombud on their performance was very satisfying. One area highlighted was that they functioned under constraints which may not have been put within the ambit of their founding framework. This denied them the ability to do certain things the public would expect or think was within the Act establishing the body. The way the Act defined the mandate of the Military Ombud, it could get involved only in matters that were referred to it. The Act did not allow them to voluntarily undertake a follow-up on matters that may have reached it. The law may have not consciously imposed this limitation on the body, but that was the framework it was working under now, and this should be looked into.

The Chairperson thanked the DM for his thoughtful and diplomatic comments. He urged that there be close cooperation between the Military Ombud and the top brass in the Department. By so doing, it would minimise risks. He advised that if they received complaints, they should weigh the evidence and make preliminary findings, after sharing it with the top brass.

Military Appeals Board presentation

Ms Nomsa Dlamini, Board Member, Military Veterans Appeals Board, said the Appeals Board’s legislative mandate was derived from:

• The Military Veterans Act 18 of 2011 section (19) to (23);
• The Constitution Section 33(1)(2) and (3); and
• The Promotion of Administrative Justice Act No: 3 of 2000 (PAJA)

She referred to the Appeal Board’s specific challenges, which included the amendment to the Military Veterans Act, the lack of consistency and alignment in legislation, regulations and policy development, and the entity’s information communication technology (ICT) capabilities.

The executive authority’s main priorities were to strengthen the governance and oversight protocols to give effect to the provisions of the Act; to provide comprehensive support services to military veterans and, where applicable, to their dependants of all 11 benefits as per section (5) of the Military Veterans Act; and to maintain the credibility and security of the national military veterans’ database.

Ms Dlamini related four instances where the Appeal Board’s intervention had resulted in a favourable outcome.

• Ms Moholo had been denied compensation after her husband died. The Department had argued that the veteran had to be alive for a medical assessment to be done. The Appeals Board had argued that the veteran had applied prior to being deceased and the assessment had already been submitted. Ms Moholo had been awarded compensation.
• Mr Nxumalo had been denied education support. The Department had argued that there was no September report from the pre-school. The Appeals Board had contacted the school and received written confirmation that pre-schoolers did not received September reports. Education support was then granted.
• Mr and Mrs Kekana were denied housing by the Department. The Appeals Board argued that the ailing pensioner had waited for years for a house. They were currently in their new house.
• Mr Mouton was denied assistance for bond rescue. The Appeals Board had argued the appellant’s matter, and his bond was settled in November 2019.

On the other hand, Mr Twala, a paraplegic from KwaZulu-Natal (KZN), had approved education support for his daughter, but this was not honoured. The Department had ultimately acknowledged the commitment and promised to sort out the matter. Mr Twala had passed on before his matter could be resolved, and to date the daughter had not been assisted.

The Chairperson thanked Ms Dlamini for the presentation, and recalled that the last engagement with the entity had been on 24 June when their term of office was just coming to an end. The Committee was unsure if their mandate had been refreshed and the board re-appointed, or the term of office extended. What was the situation? It had also been resolved at the last meeting that their budget of R600 000 be allocated from the commencement of the financial year and be ring-fenced, and at least two targets provided for them. The Department also provided a dedicated secretariat to the board. The DM should also report on progress of the board during their quarterly report, which was what was being done today. 

Discussion

Mr Marais wanted to get confirmation on the status of the Appeals Board. It seemed like the findings were only recommendations. How did the board make sure its findings were not just considered, but were accepted and would be implemented? In terms of its budget going forward, it was dependent on the same department against which it was making recommendations, so the Committee had to make sure that its budget and allocation would not be affected in terms of whether the Department would implement the Board’s recommendations or not. The Committee had to ensure the Board was well resourced. Where were the Board’s biggest cases coming from?

Ms M Modise (ANC) said the sooner the Committee dealt with the legislation and policy that would guide the functioning of this institution, the better. It was worrying that all of their staff were part time. With that, their focus and attention was not 100% on the services they had to provide. Were there reasons why this was so?

Ms Beukes said that because of budgetary constraints, military veterans were denied information and there was a platform for those who wanted to play on their vulnerabilities. They lost many cases in the process, because they had to pay as much as R250 to speed up the process. How could the Department assist the Board to serve veterans better?

Mr T Mmutle (ANC) referred to the Board’s powers and duties, and said it had certain roles to play. With regard to the Military Veterans Act, what was their view on the definition of a military veteran? Could they summon anyone who, in its opinion, may give information? Was it in the context of an appeal that was made, or could they also do so in the current situation, where one was seeing military veterans taking to the streets -- did that clause give them powers to summon the organiser of such a march to hear their grievances? Did they have the power to summon anyone with regard to issues pertaining to military veterans?

Appeal Board’s response

Ms Dlamini clarified that they had a secretariat of five staff, of which one was permanent and was seconded to the board. Regarding the five members of the Appeals Board, one board member -- even though he was paid as a part-time employee -- had dedicated his whole time to the work of the board.

On outreach, the Board had embarked on its own study to find out how many veterans were in which region, so that when they visited a region they combined it with a visit to adjoining provinces. A full plan on resource allocation had also been submitted to the Department of Military Veterans (DMV) with a budget that would cover the road show.

She said Board decisions were binding to the extent that if the Department did not agree with them, the next step was to go to the high courts.

The Board was appreciative of the Committee’s willingness to intervene on its behalf on budget-related matters and others.

The Act specified that the board had powers and a duty to offer legal advice on matters pertaining to military veterans, and it had done so several times to the DMV.

On the definition of a military veteran, the board had had opportunities to make inputs on the review process of veterans’ issues. In fact it had made very important contributions in this regard.

Mr Cyril Morolo, Board Member, Military Veterans Appeals Board, added some clarification on the role of the Board.

Its primary function was to ensure that the DMV exercised it powers and complied with the constitutionally mandated principles of lawfulness, reasonableness and procedural fairness. Also, that whenever the DMV made a decision which had an adverse effects on a military veterans, they provided cogent reasons for doing so. It was important for veterans to feel comfortable enough to approach the Board, because the high court would not entertain any matter if the veterans had not first exhausted all the internal remedies of going through the Board. The military veterans should be made aware of this, and before the DMV decided to review any matter, they should find justifications from the Appeals Board why the judgment had gone against them.

Regarding default judgements against the DMV, in a recent meeting with them it had been agreed that the Board would amend its rules and procedures, and that the Department should be afforded an opportunity to apply for a rescission of those judgments. Those rescissions should also be accompanied by a condonation in order to save costs. The powers of the board did not only reside in Sec 20(1)(a)(b)(c), but also in Sec 30(2)(c), which states that they may provide the required legal advice to the DMV.

Mr Derrick Mgwebi, Acting Director-General, DMV, said the Appeals Board’s budget for travelling and subsistence stood at R1.2m this financial year, and they had spent R953 779. The Department had spent R545 000 on their allowances for the financial year under review. Their current allocation for this financial year was R700 000. With the challenges of expenditure this financial year, the Department hoped they would be able to come up with plans to implement their outreach programmes.

Deputy Minister’s concluding remarks

Deputy Minister Makwetla thanked the Appeals Board for delivering on their mandate. Their sacrifices to get the Board functioning was commendable. The purpose of the Appeals Board had been well defined and articulated by the previous speakers. Its role was to ensure that there was the promotion of administrative justice within the DMV. The most poignant part of its work in the founding Act was where it stated that “the appeals board must consider any appeal lodged with it by a military veteran against any decision taken by officials in DMV which affects the right of that military veteran.” This was what the Board was here to achieve. 

It was unfortunate that tensions had emerged over time between the Board and the DMV management, where the Board even had findings that were made as default judgments without the Department being heard on those issues. This was against the backdrop of the Board’s function, which was to get the Department to realise its faults in the decisions it had taken, but this had set the stage for the dysfunction that developed between the two bodies, when in actual fact they belonged together. In actual fact, the DMV could not function without an Appeals Board because its decisions had to be in synch with the advice it received from the Board.

The Chairperson thanked the DM for his comments, and said some issues raised by him required further discussion. Other comments referred to policy issues, and hopefully these would be elaborated and dealt with now that the DMV was having a policy review process.

The meeting was adjourned.