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DEFENCE PORTFOLIO COMMITTEE
16 May 2000
POLICE POWERS FOR THE SANDF; DRAFT DEFENCE BILL: DISCUSSION
Chairperson: Ms T Modise
The committee continued discussions and questions and answers from the previous week on police powers for the SANDF before deciding that members should consult with their parties and that the matter would then be reconsidered in fourteen days time.
The Chief Departmental drafter of the new Defence Bill told the committee that he had been requested by the Chief of the SANDF that they consider introducing a provision for the introduction of National Service under the power of the Minister, even before a national state of defence had been declared. Further that there be a provision for the reintroduction of cadets. The committee discussed this but indicated that the Chief of Defence needed to talk to them about these issues. They then reviewed Chapters 18, 19 and 20 of the draft defence Bill dealing primarily with the issue of boards of inquiry.
There was much discussion around the fact that evidence given in a board of inquiry was not admissible in a trial. Section 123 is a new section dealing with discrimination, offensive behaviour and sexual harassment.
Police Powers for the SANDF
The Chairperson indicated that they would continue consideration of the submission by Lt Col vd Westhuijzen, who had not been able to give his full input the previous week regarding the policing role of the South African National Defence Force (SANDF) and in particular, the Territorial Reserve, of which he had practical experience.
Ms Z Kota (ANC) noted that the committee's main concern was if the SANDF personnel were deployed alone and not in support of the SAPS, which was how they were supposed to be deployed. Lt Col vd Westhuijzen replied that the Territorial Reserve did not operate without the police, and that he did not believe he had said otherwise.
Mr L Ngculu (ANC) asked how the enlisting of the territorial force was done? [It was not apparent that Lt Col vd Westhuijzen answered the question at that point.]
Another ANC member asked in which communities the Territorial Reserve operated? Lt Col vd Westhuijzen replied that the Territorial Reserve operated roadblocks and in regard to these, he had received letters of commendation from various members of the public across the political spectrum thanking the unit for their service and commending them on their conduct and the way in which they operated. This was to be seen in the light of the comments about their not being adequately training. With respect to the other tasks they had to perform, namely manning observation posts, helping with natural disasters and patrolling and manning rural roads, similar letters of commendation had been received.
The Chairperson said that while they may always be operating with the police, it was not clear how operations were arranged. Could this be clarified? Lt Col vd Westhuijzen replied that operations were arranged through the Sector Operational Co-ordination Committee (SOCOC). This committee included representatives from the SANDF, the SAPS and civilians and all operations needed approval from the SAPS in this committee to go ahead.
Mr Ngculu (ANC) asked how command and control worked in operations where SANDF personnel were in the majority? Lt Col vd Westhuijzen replied that the SAPS were always in command, even between SAPS and SANDF ranks that were equal.
Mr N Gogotya (ANC) commented that the discussion and the submission of the previous week was about policing powers for the SANDF and included terms which implied that military operations could be conducted by the SANDF independently. Was this in fact, the case? Lt Col vd Westhuijzen said that the phrase that was being referred to here, i.e. "used militarily" referred to something different, that of using the Territorial Reserve in war when needed as well as for peace time operations such as policing.
The chairperson asked for confirmation that they did in fact believe that they needed further training to use policing powers? Lt Col vd Westhuijzen replied that they did need further training.
Mr Ngculu (ANC) asked what was the current situation with respect to the SANDF's training curriculum and the effect on the ground? Lt Col vd Westhuijzen said that they were thanked continually for the job they were doing, and that in his opinion, they were therefore trained adequately for the job although training could always be improved. Although the SANDF were trained to use maximum force, this was only true for war situations. In peace time they operated with minimum force for which they did receive training.
Mr Gogotya (ANC) asked how much money would be saved through increased use of SANDF personnel for policing, especially considering the increased training requirements? Lt Col vd Westhuijzen said that he did not know what the exact figures would be but he could say for certain that their forces were not currently used to their maximum potential and that could save money.
Mr Ngculu (ANC) said that it had been advocated that the use of SANDF personnel should be within the National Crime Prevention Strategy (NCPS). What was Lt Col vd Westhuijzen's perspective on this and who was active in this process? Lt Col vd Westhuijzen replied that the role-players in the NCPS were the SANDF, the SAPS, the judiciary and the Department of Welfare. The last two of these organisations did not even attend the meetings though, so although everyone was included, at the ground level not everyone participated. Lt Col vd Westhuijzen added that it seemed that for some people, it was easier to blame others for the problem than to participate in solving the problem.
The Chairperson said that the submission the previous week from the Kwazulu-Natal Community Policing Forum member had said that SANDF personnel did not interact well with the community, yet Lt Col vd Westhuijzen was saying that his forces did interact well. What were the reasons for this? Lt Col vd Westhuijzen said that he could not speak on behalf of another province, but he could say that whenever one of their personnel transgressed the command and control guidelines, they acted immediately to correct the situation.
Mr P Schalkwyk (DP) commented that the reason for the difference may be because the troops deployed in Kwazulu-Natal were not part of the community whereas Lt Col vd Westhuijzen's troops are from the community.
The chairperson asked Admiral Retief to give his views on this matter. Admiral Retief said that the submission from the Kwazulu-Natal Community Policing Forum member was very important because he had said that SANDF personnel did not act like police, but only came in when the police could not accomplish their goals. The SANDF was actively involved in the NCPS. It had been decided that the SANDF would not be involved in pure policing functions such as investigations, arrests, preparing dockets and other aspects of the criminal justice system. Also, the SANDF would be used only in rural and border areas, not cities, and they would not be used against routine crime. Their use would be in accordance with international norms in this matter.
Adm. Retief's colleague, Capt. Gillespie, added that, with respect to training, the following areas were covered: The use of minimum force, self-defence, the rights of citizens and the rights of soldiers. This training had been going on for a number of years already and Capt. Gillespie had himself personally trained approximately 2000 personnel.
Mr E Mogale (ANC) asked if there were any training manuals available for the committee to examine? Capt. Gillespie replied that there were a number of different training manuals at all levels on all subjects, any of which could be made available to the committee.
An IFP member asked whether the SANDF still had a Military Police section and if so, where did this section receive its training? Capt. Gillespie replied that they did exist and did receive training as police. Their name had been changed to the Military Police Agency. They were primarily responsible for discipline within the SANDF.
Mr Ngculu (ANC) asked about the two areas, rapid justice and regional co-operation, identified as those in which the SANDF should be assisting police. It seemed that the SANDF was not currently involved in either of these areas. Adm. Retief replied that rapid justice was precisely the area that they were involved in.
Prof. M Mabeta (UDM) said that it was not clear how an area was defined and asked whether cities, peri-urban, rural areas, small towns or commercial farms were included in these area definitions? Populations differentiated by different levels of wealth had different expectations in these different areas. Lt Col vd Westhuijzen replied that each Territorial Reserve had its own area which included rural areas and those on the edge of towns. He stressed once again that police were always involved in all operations with the SANDF.
Mr Ngculu (ANC) asked for further explanation of the types of communities in which the Territorial Reserve operated, were they predominantly White or Black areas? Lt Col vd Westhuijzen replied that they did not operate in areas where no crime was going on and they did not operate in communities where the community did not want them to operate.
The chairperson asked again whether they operated in Black, Coloured, Indian or White communities? Lt Col vd Westhuijzen answered that it was in Black, White and Coloured communities.
Mrs Kota (ANC) expressed the concern that operations seemed to be territorially driven and were apparently not temporary but seemed to be ongoing.
An ANC member asked how problems were identified and operations outlined? Lt Col vd Westhuijzen replied that it was done through SOCOC which was normally chaired by a police officer but sometimes had a revolving chair.
Mr S Makwetla (ANC) asked for clarity on the role of the SAPS at roadblocks. Did the SAPS on occasion only get involved in road blocks after they had been set up? Also, was the Territorial Reserve saying that it should be transformed into a paramilitary force or just that it should increase its role to a policing one as well as a military one? Lt Col vd Westhuijzen repeated that they did not operate at all without the police and that the SAPS never worked in support of the SANDF, it was always the other way around. With respect to paramilitary forces, what was being referred to was purely for disaster situations.
The Chairperson said that there were two paragraphs in Lt Col vd Westhuijzen's submission which implied that the SAPS worked in support of the SANDF and the submission therefore required rewording. She also added that what Mr Makwetla was saying was that perhaps there was the need for the establishment of a paramilitary force.
Mr Makwetla affirmed that this was what he was asking, noting that in the past there had been a paramilitary force and that if the SANDF received police training, then they would in effect serve as a paramilitary force. Was this what Lt Col vd Westhuijzen wanted? Lt Col vd Westhuijzen answered that what they were asking for were certain powers, for instance with respect to roadblocks, where they currently had to use police or traffic department equipment and could well use their own equipment. Also, with respect to searches, they wanted increased powers.
Adv Madasa (ACDP) asked what was the minimum number of police that had to present at a roadblock and where there was only one policeman present, if this was the policy, how was that single policeman supposed to cope? Capt. Gillespie replied that the minimum number of police that had to be present, was in fact just one. Lt Col vd Westhuijzen added that the Territorial Reserve wanted to use its own equipment at roadblocks as police equipment was not always up to standard.
Mr Gogotya (ANC) asked if it was Lt Col vd Westhuijzen's wish to operate without the SAPS and why specifically they needed policing powers to use their own equipment at roadblocks? Lt Col vd Westhuijzen replied that by law they were currently not allowed to conduct roadblocks with their own equipment within South Africa's borders. It was not his wish that the SANDF should operate without the presence of SAPS personnel.
Mr Mabeta (UDM) asked if there were any other inadequacies with respect to the role they were currently playing? Also, what was the make-up of the Territorial Reserve? Where were the resources going to come from for training and operations and how would retrenchments affect the Territorial Reserve? Lt Col vd Westhuijzen replied that they were all volunteers and as a result could not be retrenched. They had different ways of doing things to the ways in which the police operated, having specific command structures as opposed to police constables who could make their own decisions. With respect to their make-up, the Paarl commando of the Territorial Reserve was only 5% White whereas in other areas they were mostly White. Through most of the rest of South Africa though, they were predominantly non-white.
Mr Schalkwyk suggested that the committee should go and see for itself what is happening on the ground.
Adm Retief added that retrenchments would not affect the Territorial Reserve and that the number of officers was below what they wanted it to be. In this respect, he asked the committee members to advise their electorate to consider joining the Territorial Reserve forces to become officers.
Capt. Gillespie said that currently only police were allowed to use blue lights and if they too were allowed to use blue lights, that would serve as a visible deterrent.
Mr D Bloem (ANC) began asking a question about the decision the committee was likely to take on granting policing powers to the SANDF when the Chairperson interrupted him telling him that he was out of order and that they would still be coming to that matter. She then thanked Lt Col vd Westhuijzen for his time saying that he must indeed need to see a psychologist - either that or he loved his job! She also said the committee wanted communities to feel protected. They also hoped to narrow down the specific areas in which the SANDF's role had to be outlined, in this part of the bill. The Chairperson then invited the members of the committee to debate the matter, taking into account all the submissions from the previous week.
An ANC member said he was shocked by the submission from the South African National Defence Union representative and remarked that stricter laws were needed to govern such bodies. The chairperson responded by reminding the committee that trade unions had, by their nature, to look out for the interests of their members.
Mr Mabeta (UDM) said that his party had not completed deliberations on this issue, but his original understanding on this matter was that Territorial Reserve units were in reserve for emergency situations, as a support role. It seemed increasingly likely however, that their use was to be full-time. The UDM believed that what is needed is an increase in the level of SAPS personnel through the addition of approximately 65 000 marching constables, not through increased militarisation. It would be in order to maintain a Territorial Reserve where members would have some additional powers to protect themselves from being sued and for other reasons but this should not be a permanent feature.
The Chairperson asked if what Mr Mabeta was saying, amounted to the UDM being against the continued use of SANDF personnel in a policing role? Mr Mabeta replied that, on balance, the submission of the Southern African Catholic Bishops' Conference representative, was in line with what his party supported.
Admiral Retief said that there were originally two focuses that had to be considered, one being the use of the SANDF in support of the police and the other being the transfer of border control to the SANDF. The second of these two focuses should not be forgotten since Cabinet had already decided that the responsibility should be transferred from the SAPS to the SANDF. At the moment though, there was a state of transfer with respect to this issue.
Mr Ngculu (ANC) said that the committee should be wary not to add to the problems by providing all powers to SANDF personnel, as indicated in the wording of the current draft of the bill, but rather that the White Paper should be the guide, especially with regard to exceptional circumstances. Police powers should not be given to SANDF personnel but rather specific powers such as search and seizure should be given to them. Also, the capacity of the police should be looked at as an urgent issue. Command and control should remain with the police at all times.
Ms Kota (ANC) expressed the view that when an operation is identified and planned, the role of the SANDF should be outlined there and as a result the exact powers of SANDF personnel did not need to be contained in the bill.
Adv Madasa (ACDP) endorsed what Mr Ngculu said, adding that the two forces had separate roles. He also agreed that additional funding was needed for the police.
The IFP committee member expressed his concern about those who conducted roadblocks and how they should be administered. He said that if people in a car were White then they were treated differently by soldiers manning a roadblock than if they were Black. There had to be regulations on those who conducted roadblocks.
The Chairperson cautioned that the committee could not regulate attitudes, they could only hope that attitudes of South Africans changed so that everyone was treated equally. It was also necessary to remember that change took a long time.
Mr H Smit (NNP) said he would like to clear with his caucus what the position of his party was, and in order to do this he would like a specific time frame in which to consult and then report back. These submissions were however very helpful and had even changed his view on some points.
The Chairperson noted that Mr Madasa agreed with this view as did Mr Mabeta and the IFP committee member.
Mr Schalkwyk (DP) said that his party's general view was to maintain the status quo, but perhaps with the addition of a few specific additional powers. He said he did not need to consult further.
The Chairperson said that it was agreed that members should consult with their parties and that the matter would be reconsidered in fourteen days time.
Draft Defence Bill
National Service / Cadets
Adm Retief said that the review would continue with Chapters 18, 19 and 20. The Chief of the SANDF had however also asked him to speak to the committee about two other matters. The first was National Service, the introduction of which was currently only permitted after a state of national defence had been declared. The Chief of Defence said that perhaps it should be considered that there be provision for the introduction of National Service under the power of the Minister, even before a national state of defence had been declared. The second issue was the lack of any organisations which served to feed new members through to the reserves, this gap previously having been filled by cadets. Cadets had been abolished a few years ago and the Chief of Defence felt that they should possibly be reintroduced. He wanted the committee to consider the inclusion of these two issues in the Bill.
Ms Kota (ANC) said that they wanted to better understand this matter. Was not the reason for National Service to cover states of emergency? Adm. Retief replied that if they waited for a state of national defence to be declared, before initiating National Service, it might be too late in some circumstances. Since this was however the concern of the Minister, perhaps he should rather be the one to address the committee on this matter.
Mr Ngculu (ANC) asked for further explanation on the issue of the reintroduction of cadets. Adm. Retief replied that it was a very good feeding ground for new recruits into the reserves and it gave a good background in terms of discipline and as a general introduction into the military. This could begin from age sixteen or seventeen which was significant since the law prevented membership of the military for those younger than eighteen.
Mr Schalkwyk (DP) said he supported the reintroduction of cadets but not in all schools.
Mr Smit (NNP) said that he also supported this but that more information on the matter was needed as there were also concerns on this. He wanted a further briefing about this before making any decisions.
Mr Mogale (ANC) said that he was becoming more peaceful as he got older. Those countries which allowed military backgrounds from a young age, all seemed to have a siege mentality and this contributed to the militarisation of society. For this reason he was uneasy about this proposal and would rather see other organisations substituted for cadets, such as scouts etc.
The Chairperson said that the Chief of the Defence Force needed to talk to the committee about this because she had the same concerns as Mr Mogale. This applied to the first issue of national service as well because it had some loaded implications and it possibly amounted to smuggling in conscription in the worst form.
Adm. Retief proceeded with going through Chapter 18, Sections 118 - 121, of the Draft Defence Bill, which made provision for boards of inquiry.
Mr D Bloem (ANC) asked for clarity on who would be the president of such a board. Adm. Retief said that the officer convening the board could appoint anyone as president. That person would also be the one co-ordinating the collection of evidence. Normally, the senior person serving on the board would become the president.
Mr Ngculu (ANC) remarked that boards of inquiry seemed to be more disciplinary than investigative. What happened in the event of an investigation into a plane crash for example? Should the relevant Minister (the Minister of Transport in that case) not be the one to appoint the president when that was the focus of the board of inquiry? Adm. Retief said there was an important distinction between a board of inquiry and a trial. A board of inquiry merely collected evidence and attempted to determine what went on. It could consider testimony as evidence but since it was not a trial, no one was ever found guilty.
The Chairperson said that she did not understand section 118 (4) in the light of what Adm. Retief had just said. What was the point of compelling someone to give evidence? Capt. Gillespie responded by saying that a board of inquiry attempted to determine what went on and as a result anyone giving evidence had to be given protection from incriminating themselves. Sections 118 (3) and (4) dealt with the collation of evidence which may be later incriminating in a trial. If the president of the board required such evidence that would not be admissible in any later trial.
Mr Bloem (ANC) asked why this was so if it was not the process of building up a case against someone? Adm. Retief replied that normally in a board of inquiry, one did not know what went on, and in fact, whether or not anybody should be accused of anything. The board attempted to determine what had happened and whether or not anybody should be accused.
Mr Gogotya (ANC) asked if it was the manner in which evidence was given which made a board of inquiry different from a trial? Was the statement saying that someone can be compelled to give information, the same as giving information under duress? Capt. Gillespie said that the main difference was that evidence given in a board of inquiry was not admissible in a trial.
Mr Ngculu (ANC) said that they should find ways of separating the roles of boards of inquiry, giving more examples of what they did, including exceptional circumstances such as the incident at the Tempe Military Base. Capt. Gillespie said that cases of personnel being absent without leave (AWOL) were more administration than discipline related.
Mr Ngculu (ANC) said that he would have thought cases of personnel being declared AWOL was not the same as the being sick or missing. Did AWOL not imply that there was a presupposition that there was a duty to be present, which was not fulfilled? Adm. Retief replied that a person was either present or absent and if they were absent, they either had permission to be absent or they did not. If they were absent without there being permission for the absence, they were technically declared AWOL. They were not necessarily guilty of an offence though, it was just a technical term. The SANDF waited 30 days before a board of inquiry was formed in the case of a member being AWOL.
Mr Ngculu (ANC) asked whether they used the information from the board of inquiry? Adm. Retief replied that they did, but it was administrative, not disciplinary. Technically, it could eventually be punitive but such evidence would not come from the member who was AWOL, it would be circumstantial.
Miss N Shope (ANC) asked whether a board of inquiry could start a preliminary investigation which could in turn, eventually result in a prosecution? If this was the case, there was a thin line that could be crossed in what happened to the information. What would happen if the same people were involved in a board of inquiry which then changed into a preliminary investigation? Adm. Retief replied that, firstly evidence from a board of inquiry was not admissible and that, secondly, if wrongdoing was found, then the military justice system was put into place. If a person was AWOL for 30 days, then they were dismissed, although they could be reinstated if evidence supported that they were AWOL through no fault of their own.
Mr Ngculu (ANC) asked whether it ever represented a problem that evidence in a board of inquiry was not admissible in a trial? Capt. Gillespie replied that it was not a problem since the same rules applied in civil courts.
Ms Shope (ANC) asked whether this did not open a loophole for guilty people to escape through important evidence being declared inadmissible? Capt. Gillespie replied that it was a possibility, although a legal principle stated that it was better for ten guilty men to walk free than for one innocent man to go to jail, and this was applicable here. Also, if there were better procedures in place and the prosecution required other evidence, then this would be prevented. Adm. Retief added to this that if a crime was suspected, then the SANDF urged officers not to instigate a board of inquiry.
Mr Ngculu (ANC) asked whether sufficient records were kept so that boards of inquiry could be reopened after they had released their findings? Adm. Retief said that if new evidence came to light which was relevant, then a board of inquiry could be reconvened.
Mr Ngculu (ANC) asked why boards of inquiry happened in private? Adm. Retief replied that since they were not a trial, they were not held in an open court. Also, it was not known what evidence would be given until it was actually given and as a result the Secrecy of Information Act had to be considered. After a board of inquiry was completed, a written copy of the evidence was made available. Also, the professional character of personnel had to be taken into account in this respect.
The chairperson asked how this related to ordinary soldiers and the instances in which they had to make decisions? Adm. Retief acknowledged that ordinary soldiers did occasionally have to make decisions, especially in the fog of war, such as whether to shoot or not, and this fact was always taken into account.
Adm. Retief explained that in this chapter, a number of different offences and punishments, previously in different sections, had been put together. Referring to Section 122, which made provision for a number of offences which were punishable by a maximum one year sentence, it had to be noted that judges always had the prerogative of imposing lesser sentences.
Mr Schalkwyk (DP) asked whether everything under the old Military Discipline Code (MDC) was included in this section? Adm. Retief replied that this was not so and the old MDC was to become the Military Disciplinary Act.
Mr Bloem (ANC) asked whether the provision in Section 122 (m) referring to anyone who recruited or attempted to recruit for a trade union other than a military one, was not too broad? Adm. Retief replied that this applied to other trade unions, such as POPCRU or NEHAWU and if it happened it was an offence.
Another ANC member asked whether it contradicted the Labour Relations Act? The chairperson replied that it did not and Adm. Retief reiterated her comments and added that the Labour Relations Act excluded the SANDF. It was strictly laid down that SANDF personnel could only join military trade unions, they themselves having to apply for permission before they could begin recruiting.
The Chairperson asked why this particular offence was more severe than others, noting that it carried a five to fifteen year imprisonment sentence? Adm. Retief replied that the penalty was a five year imprisonment, not fifteen years, and that it was more severe because the crime was considered more severe. The Chairperson remarked that it still seemed to be too harsh.
Mr Bloem said that the clause referring to an "attempt to recruit" would be very difficult to prove in a court of law. Adm. Retief replied that they would have to rely on the judge to overcome that difficulty.
Adm. Retief said that Section 123 dealing with discrimination, offensive behaviour and sexual harassment, was a new section and that the committee's guidance was needed on whether or not its wording was acceptable.
An ANC member said that what did or did not constitute sexual harassment needed to be more clearly defined. The Chairperson agreed with this, saying it would be discussed further at a later stage. She added that the entire bill faced concerns of time. She then thanked the committee and closed the meeting.
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