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DEFENCE PORTFOLIO COMMITTEE; JOINT COMMITTEE ON DEFENCE; SECURITY & CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
26 October 1999
DRAFT DEFENCE BILL: DISCUSSION
Draft Defence Bill
The committee discussed General Viljoen’s proposal of a War Cabinet (continued from last week's discussion) before continuing with Chapters 11 and 12 of the Bill. The main areas of debate were around the withholding of pay for members absent without leave, suspension of a member before being charged and suspension of members without pay.
The Chair, Ms Modise (ANC) opened the discussion by referring to the issue of a War Cabinet raised by General Viljoen (FF) at the previous meeting. She asked General Viljoen to recap and invited members to comment.
General Viljoen (FF) stated that his main concern was co-ordination of relevant bodies at the executive level in the event of a war. Given the schedule of the President, a War Cabinet could be beneficial in giving support and recommendations in times of war.
Mr Ngculu (ANC) repudiated the need for a War Cabinet. He said that there were already sufficient structures in place to co-ordinate a war effort. Such a cabinet would hearken back to the previous dispensation and send a signal to the rest of Africa that South Africa had belligerent intentions. He felt that even if the institution of a War Cabinet should be approved, there was no need to include it in the Defence Bill.
Brigadier-General Schalkwyk (DP) took no particular stance on the necessity for a War Cabinet. He suggested that perhaps provision should be made allowing for the constitution of a War Cabinet should the need arise.
Mr Mabeta (UDM) echoed the sentiments of Mr Ngculu agreeing that the notion of a War Cabinet was of the Pre-1994 era and is not appropriate in the New South Africa. However, the UDM does support a more co-ordinated approach to decision making in the event of a war.
Mr Ndlovu (IFP) concurred that provision for a War Cabinet should not be included in the Bill. He and Mr Smit (NNP) requested documentation detailing the existence of such cabinets in other countries.
Mr Madasa (ACDP) pointed out that General Viljoen’s proposal is premised on the assumption that there are inadequacies in the current system. He requested that such shortcomings be enumerated so as to aid the members in making an informed decision.
Ms Modise summarised the comments by the committee. More information regarding a War Cabinet is required, but such a Cabinet will not the considered at this stage for the purposes of the bill. She handed over to the team from the Department to continue with the discussion of the Bill. Admiral Retief headed the departmental team. He was accompanied by Major-General Joan van der Poel, Mr Ratebe, Brigadier- General Coetzee and Ms Rabkin:
Chapter 11: Employment in the Defence Force
This clause deals with pay and entitlements including the withholding of pay in certain instances. It is particularly controversial in the light of the Tempe Massacre in which the withholding of pay turned out to be a contributing factor.
Mr Mashimbye (ANC) was particularly vocal in his opposition to Section 74 (2). He felt that withholding pay as a disciplinary measure was problematic. He suggested that penalties be dealt with in regulations and not the Bill.
Ms Kota (ANC) proposed that 74(2) be removed altogether. She was of the opinion that it was unfair to pass judgement and exact penalties prior to a hearing.
Mr Ndlovu (IFP) added his agreement.
Mr Selfe (DP) indicated that in reality it makes no difference if the provision is in the act or in regulations as the clause would have the same effect. He also suggested that perhaps it is not the withholding of pay that is problematic, but the 72 hour deadline, after which pay is withheld.
General Viljoen (FF) suggested that perhaps the period be extended to a week.
The Department responded that the withholding of pay was not punishment but based on the principle of 'no work - no pay'. Thus it is not unconstitutional. Seventy two hours was felt to be ample time for the person in question to communicate with the duty room and explain their absence.
Mr Ratebe said that in line with the Constitution, notice should be given to the affected party before the salary is withheld.
Mr Ngculu (ANC) raised an important point that after the salary has been withheld; it can take up to four months to reactivate its disbursement. He proposed that the procedure by which the salary is to be cut off should be clearly spelt out. Communication systems are not adequate everywhere in the country and it may take someone in the rural areas longer to inform the duty room of the reason for their absence.
The Admiral indicated that all comments had been noted and that the Department would reformulate the clause and make a re-submission.
In terms of clause 75, Mr Ndlovu (IFP) inquired as to whether customary marriages were covered by this provision.
Ms Modise (ANC) responded in the affirmative.
Ms Mashimbye indicated that in 75(3)(a) the "receive" should be "sustain".
Clause 76 makes provision for a Compensation Board. Ms Kota (ANC) rejected the qualifications required in order to sit on the board as too restrictive. She suggested something like "competent person".
The Department responded that the qualifications had been set high deliberately because of the vast amounts of money involved.
Mr Ferreira (IFP) felt that "competent person" was too broad and could qualify almost anyone.
Mr Selfe (DP) suggested "suitably qualified".
Mr Mashimbye (ANC) stated unequivocally that the ten-year judicial experience specification should be abandoned as it excludes those judges or magistrates of the new dispensation.
Ms Modise asked whether the clause, which relates to liability to serve in time of war, during a state of national defence or during a state of emergency, should be expanded to include peacekeeping operations.
The Major-General said that given the voluntary nature of the SANDF, the provisions in the clause only relate to times when the Republic itself is under serious threat.
Mr Selfe (DP) asked for clarification on 77 (1) and the phrase "has at any time contracted to serve in the Defence Force". He inquired as to whether this pertained only to contracts with the SANDF itself or included contracts with the bodies that amalgamated to form it.
Major-General van der Poel indicated that the clause only covered those who contracted directly with the SANDF itself, not MK, APLA or any other previous military body now incorporated into the SANDF.
There was much debate on this clause. There were many objections to the suspension of a member prior to being charged and the provision of suspension without pay.
The Admiral indicated that in the cases of serious offences, especially those of murder or violence, it is irresponsible to keep the suspect on active duty and in possession of a firearm when such a person is a risk to others. Also suspension of suspects prevents them from intimidating witnesses.
Mr Mabeta (UDM) said that conditions under which suspension may take place should be prescribed as the procedures governing such suspension.
Mr Ngculu (ANC) objected to individuals being suspended without pay, as they have not yet been convicted of an offence. They should be presumed innocent until proven guilty.
Mr Ferreira (IFP) supported the possible suspension of an individual before they are charged, but felt that they should continue to receive pay. Mr Madasa (ACDP) concurred.
Ms Shope (ANC) suggested that perhaps two clauses be written; one governing those who had been charged and the other concerning those who had not yet been charged. She was particularly concerned about the discretionary powers of officials to suspend people.
Ms Modise (ANC) reminded Ms Shope that the discretionary powers had been circumscribed in a previous act. She did, however, feel that it was unfortunate that the committee would not have an opportunity to review regulations pertaining to the Bill before it was passed.
Major-General van der Poel informed Ms Shope that there were strict procedures governing suspension and that the discretionary power was in the hands of the Head of Department.
Ms Modise (ANC) suggested that perhaps suspected perpetrators of certain crimes should be subject to suspension without pay and others should retain their salaries while suspended.
Admiral Retief said that the Department would reformulate the clause.
Clause 79 refers to the termination of service of members of the regular forces.
Mr Madasa (ACDP) deemed dismissal a little harsh for a minor offence, which may nonetheless have resulted in imprisonment.
The Department felt quite strongly that if a soldier, more especially an officer, is imprisoned that they are unfit to serve in the SANDF and should be dismissed.
Ms Kota (ANC) was concerned about those given the option of a fine but unable to pay.
The Department responded that this clause does not cover such a person.
Mr Ferreira (IFP) asked whether someone declared unfit in terms of 79 (1)(e) had the right to call for a second opinion.
Admiral Retief indicated that this was in fact the case. He explained that the declaration of members as unfit was rare and that there are prescriptions governing this.
79 (2)(a) and (b) invest in the Minister the right to retrench and are very similar to provisions in the Public Service Act.
Mr Ngculu (ANC) was concerned about the principle to be utilised when retrenching. He pointed out that given the unique history of the SANDF, a "last in - first out" approach would not be possible.
Clause 80 deals with legal representation given to members of the Defence Force.
Mr Mabeta (UDM) inquired as to the nature of that representation.
Mr Ratebe indicated that this representation would be appropriate in any given case.
Ms Modise (ANC) also commented that in the case of members being shown to have acted in bad faith etc, every attempt should be made by the Department to recover the money spent on their legal representation.
Chapter 12: Training
Mr Mashimbye (ANC) questioned whether those trained at the expense of the SANDF were obliged to serve in it.
Major-General van der Poel indicated that to study at the expense of the SANDF, the individual has to be a member of the regular force. Such graduates remain on the personnel list and can be called up after their contract has expired if they are really needed.
With regard to public notification of military training areas, Mr Ngculu (ANC) was concerned about illiteracy and the lack of circulation of some newspapers. He suggested the utilisation of radio and television as well.
Major-General van der Poel responded that in terms of the law, notification had to be in writing. Provision had been made to post notices in all area in the local language.
The meeting was adjourned.
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