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DEFENCE PORTFOLIO & JOINT STANDING COMMITTEE: JOINT MEETING
14 September 1999
DEFENCE BILL (draft): DISCUSSION
Documents handed out:
draft Defence Bill
The Chairperson, Mr Mashimbye, invited members to come up with suggestions as to what procedure should be followed in the discussion of the Defence Bill. General Viljoen (FF) said that he would like to consult with other people and therefore would ask for such consultation to be allowed during the recess period and to make submissions after recess. The Chairperson said that the Bill is still in the consultation process and therefore time should be allowed for more consultation. An agreement was reached that such time would be allowed.
The following delegation was present from the Department of Defence : Adv J Rathebe: Acting Director - Legal Services, Rear Admiral JF Retief: Inspector General and Dr. L Nathan, Consultant to the Department of Defence.
Questions and Remarks from members
Chapter 1 - Interpretation
General Viljoen : There is a need to define "organ of state" and also a need to include certain clauses regarding peacekeeping forces.
Response (Adm Retief):Clauses 109 to 113 address possible combined operations with visiting countries, and when these clauses were drafted we did not find clauses needing definitions other than the ones specified. "Organ of state" is defined in the Constitution and was therefore not repeated in this draft.
Mr Mahlangu (Mpumalanga): The terms "state" and "department" are used interchangeably, can you please clarify this?
Response (Adm Retief): The term "department" is defined in the draft, however we will make sure that there is no interchangeable uses to confuse the reader.
General Viljoen (FF) : There is a clear distinction between "under command" and "under control" and this distinction must be made, therefore I propose the definition of these terms.
Response (Adm Retief): The point is noted and the terms will be included, if there is confusion.
Chapter 2 - Introductory Provisions
General Viljoen (FF) : Clause 2(b) provides that primary functions are given to the Defence Force, now surely if this is included the secondary functions must be included too.
Response (Dr Nathan): This clause is drawn from the Constitution. It is not written as a function, but rather an objective. The current Defence Act does not include functions of the Defence Force; in the past the Defence Force derived its functions from deployment clauses. The Constitution lists three employments by the President, these are not functions. We have not assigned functions to the Defence Force other than that they are here to defend and protect.
Dr S Mogoba (PAC) : The draft ought to have a stipulation that the Defence Force, although primarily for the defence of the country, should also be available for good governance and peace and this should be added to the principles of the draft.
Response (Dr Nathan): Chapter Five deals with use and employment of the Defence Force, it was the view of the drafters that it is not significantly important to form part of the principles. A proposal is that when drafters consider this we will include it as an option to be considered by Parliament.
Chapter 3 - Civil Control over Defence
Admiral Retief said that since the last meeting, a few additions and redrafts had been made. In clause 6(1)(a)(iii) delete "as provided for in law" and add "as provided in Section 26(2)(a) and (b) of this Act. Also Clause 6(1)(b)(i) add (iii) Appoint the Secretary for Defence and delete clause 7(1)(j). This would have the effect that the President and not the Minister will appoint the Secretary for Defence.
Mr J Selfe (DP) : There is another possibility by providing in clause 6(1)(b)(i) instead of "as provided in law" rather "as provided for in the Constitution" or "as provided for in section 26".
Response (Adm Retief): This is a good point and the best option would be "as provided for in section 26".
Mr Mahlangu (Mpumalanga) : With regard to the appointment of the Secretary of Defence, what are the implications?
Response (Adm Retief): The Constitution says the President shall appoint the Commander in Chief and similarly the Public Service Amendment Act of 1999 provides for the appointment by the President and therefore this Bill must be in compliance.
General Viljoen (FF) : In clause 7(1) mention is made of "shall" and clause 7(2) makes mention of "may", what is the distinction? Why is no mention made in the draft of the Minister's relationship with Armscor?
Response: The term "shall" puts a duty on the Minister but with the term "may" there is a choice in the matter and it is up to the Minister to exercise that discretion. In respect of Armscor, when it was discussed it was agreed not to include it in this draft, but rather in another Act.
Chapter 4 - Department of Defence
Mr D Bloem (ANC) : What is meant by auxiliary service in clause 9(c)?
Response (Adm Retief): This is a type of service that is only auxiliary to the Defence Force, for example guarding or nursing during a time of war.
Mr Bloem (ANC) : In clause 25 it is said that these auxiliary services have names, could you give us some names and clarify this?
At present there are two Auxiliary Services in existence and they are called Response: The Auxiliary Service. The one is a guard service, which is being run down and should become non-existent soon. The other is a service core, which was established as an auxiliary service and still exists as such in the department. This core will exist until it is no longer required.
Several questions and concerns were raised concerning this auxiliary service and the Chairperson suggested that this should be discussed at a later stage. The meeting was adjourned.
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