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JOINT STANDING COMMITTEE ON DEFENCE; PORTFOLIO COMMITTEE ON DEFENCE; SELECT COMMITTEE ON SECURITY & CONSTITUTIONAL AFFAIRS: JOINT MEETING
19 October 1999
DRAFT DEFENCE BILL: DISCUSSION
Draft Defence Bill
Sections 64 to 73 of the draft Defence Bill were discussed and a few changes were made.
Major-General Joan van der Poel headed the departmental team. She was accompanied by Dr. L Nathan, Consultant to the Department of Defence: Adv. J Rathebe: Acting Director - Legal Services, Brigadier- General Coetzee and Ms Rabkin.
Chapter 9: Councils within the Defence Force.
Major-General van der Poel informed the committee that a suggestion had been made to the Department, that the "may" in section 64 (1) of the bill be altered to "shall". The clause refers to the establishment of a Reserve Force Council by the Minister. The Department, however, felt that in an attempt to give maximum discretion to the Minister, the "may" should be retained.
Mr Ngculu (ANC) questioned the Department’s decision to retain "may".
Mr Schalkwyk (DP) believed that "shall" be used as did General Viljoen (FF). The General pointed out that the reserve force is an important component of the Defence Force and as such the Council should be mandatory.
The decision was taken by the committee to change the "may" to "shall".
Mr Ngculu (ANC) further suggested that the "may " in 64 (2) also be changed to "shall". The Major-General responded that this was not advisable because the number of people on the Council would depend on the number of people with relevant expertise and the number willing to sit on the Council.
At this point, General Viljoen (FF) raised the idea of a War Cabinet. He cited historical examples of how such a Council had been utilised in the past and highlighted the benefits accruing to the executive from the formation of such a Council. He also requested that ARMSCOR be included in the Council of Defence (Section 56).
The Department agreed to consider the inclusion of ARMSCOR on the Council. The discussion about a War Council was deferred to a later stage.
There was much debate around the statement that the Secretariat and members of the Defence Force should be "responsive" to each other’s needs.
Brigadier-General Schalkwyk (DP) felt that the term "responsive" was too vague, although he had no suggestions of how it could be revised .
Mr Nathan suggested that perhaps the term "comply" could be substituted.
Members asked for clarification of the meaning of the paragraph and its importance.
Major-General van der Poel responded that the paragraph alluded to civilian control over the Defence Force as stipulated in the Constitution.
Mr Ngculu (ANC) felt that the wording in the paragraph did not convey this.
General Viljoen (FF) added that it is vital to make the co-operation between the civilian Secretariat and the Defence Force obligatory and to spell it out in the Act so that so that those who do not co-operate are contravening the law.
Mr Mabeta (UDM ) requested clarification of instances where this co-operation was unlikely to be forthcoming.
Mr Nathan replied that both the Secretariat and the Defence Force have separate chains of command or hierarchies. However, there may be times that an individual may request information or the like from a person in the other hierarchy. This section is intended to ensure that the request is complied with. It was decided that the Department will reformulate section 65.
Chapter 10 : Limitations on the rights of members of the Defence Force.
Brigadier- General Schalkwyk (DP) asked about section 68 (1)(b). He enquired as to whose authority was necessary to grant permission for the screening of communication.
Brigadier- General Coetzee of the Department, commented that both clauses in Acts and the Acts themselves should not be read in isolation. He referred the member to the section in the Act that deals with intelligence gathering. He also mentioned that in terms of another unnamed Act of Parliament all orders for the interception of telephone conversations have to be approved by a Judge of the High Court.
Mr Bloem (ANC) asked for the reason for the inclusion of the word "auxiliary" in 68 (3).
The Department responded that as per previous discussions with the committee, the reference to an auxiliary force will be omitted from the bill.
General Viljoen (FF) made an argument for the exclusion of the Reserve Force from the stipulations of 68 (5)(b). He felt that those in the Reserve cannot be expected to relocate their families.
Mr Ndlovu (IFP ) suggested that the clause be separated into two clauses, one pertaining to the Regular Force and the other to the Reserve. This was agreed upon.
Brigadier- General Schalkwyk (DP) suggested that 68 (6) refer to serving members of the SANDF only. His suggestion was noted.
Mr Ngculu (ANC) raised the issue of Trade Unions within the Defence Force.
Ms Modise, the Chairperson, reiterated that although the committee felt that certain associations should be allowed , they should not be called trade unions because this conveys something that is undesirable in the Defence Force. Although bargaining should be allowed on certain issues such as remuneration, the ethos of discipline in the force should not be jeopardised.
Chapter 11:Employment in the Defence Force
Mr Bloem (ANC) objected to foreigners becoming members of the Defence Force, even for the circumscribed period of three years [section 70 (4)].
Mr Mabeta (UDM) agreed with Mr Bloem maintaining that contracts could be signed with foreigners "on loan " from other countries and that there was no need to make them members of the SANDF.
General Viljoen (FF) pointed out that in certain circumstances it was indeed necessary to include foreigners in the force. For instance in the DRC, the SANDF required the services of Congolese interpreters and guides. In order for these persons to be under the command of the SANDF and subject to their discipline, it was necessary to confer temporary membership on them.
It was agreed that the Department would revisit the clause in question.
In terms of 70 (5) members of the Defence Force have to gain permission from the Head of the Department to engage in any activity after hours to augment their income from the Defence Force. The Department explained that this was required by the Public Service Act.
Certain members objected because of a misreading of the clause. After the misunderstanding was cleared up, it was agreed that the clause would remain as is.
With respect to 70 (7)(a) General Viljoen (FF) objected to the prohibition of SANDF members furthering or prejudicing the political interest of any political party "in the performance of his or her functions". He felt that all political affiliations and sympathies of members should remain undisclosed even in their private lives. He cited the need for the chain of command to retain its integrity. Should soldiers know the political affiliation of the officer, in certain situations they may question the order if they feel it was politically motivated.
Ms Modise (ANC) agreed that maintaining the unity of the Force was a priority, especially given our divided history.
Mr Nathan pointed out that if the rest of the sentence 70 (7)(a) was deleted this could precluded the right to vote which would contravene the Constitution.
Mr Ndlovu (IFP) supported General Viljoen’s proposal for the deletion of "in the performance of his or her functions."
Mr Ngculu (ANC) shifted the debate to 70 (7)(b) with a proposal that "performance of his or her official duties" be altered to read "performance of his or her functions".
Mr Nathan pointed out that there were certain Constitutional provisions governing this. Section 19 and 199 of the Constitution had to be taken into account or else the bill would not be accepted by the Constitutional Court. In light of these clauses Mr Nathan suggested that 70 (7)(a) remain as is and that 70(7)(b) should read " be politically partisan in the performance of his or her official duties nor express any political allegiance". This would apply to 71(5) as well.
The committee accepted this suggestion.
Mr Ngculu (ANC) asked if 71 (1) precluded rationalisation of certain forces or commandos.
Major-General van der Poel responded that rationalisation was at the discretion of the Minister.
Mr Bloem (ANC) queried whether the budget had been taken into account in the provision of travel allowances for the Reserve Force as specified in 71(3). He also wanted to know what the rationale was behind the allowance.
The Major-General answered that the budget had been taken into account and that the allowance was necessary to enable impoverished soldiers to travel to their appointed camp.
Mr Ngculu (ANC) questioned the reference to a maximum age in 72 (1).
The Major-General responded that the age would be prescribed in regulations. She said that there was an ideal age at which to send troops into the field and that this was an attempt to keep the Defence Force young. The minimum age for entering the force is 18.
Mr Nathan indicated that in 73(2)(f) the "and" should be "or".
In response to a question by Mr Bloem, it was agreed that 73 (9) will be revised.
The meeting was concluded.
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