Draft Defence Bill: briefing

Meeting report

JOINT STANDING COMMITTEE ON DEFENCE; DEFENCE PORTFOLIO COMMITTEE; SECURITY & CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
7 September 1999
DRAFT DEFENCE BILL: BRIEFING

Documents handed out:
Draft Defence Bill

MINUTES

Present was the following delegation from the Department of Defence (DoD): Mr A Ismail: Chief Policy And Planning, Advocate J Rathebe: Acting Director - Legal Services, Rear Admiral JF Retief: Inspector General, as well as Dr. L Nathan, Consultant to the DoD.

Rear Admiral Retief opened his briefing by highlighting chapters and sections of the Draft Bill which are to be discussed for purposes of this meeting.

Chapter 1: Interpretation

Provides for definitions of terms.

Chapter 2: Introductory provisions

Generally provides for the application of the Act and the principles to be followed in exercising any power or function under the Act.

Chapter 3: Civil Control over Defence

This is a new chapter, in that it is not in the previous Act. It is important as it introduces a new concept of civil control over the South African Defence Force. This Chapter clearly sets out the Powers, functions and duties of the President and the Minister of Defence in respect of national defence and related matters.

Chapter 4 : Department of Defence

Was not discussed in this meeting, but is from the previous Act and generally sets out the composition of the Department of Defence and the South African National Defence Force (SANDF).

Chapter 5: Employment and use of Defence Force

States the role of the SANDF in terms of international obligations, the employment of the Defence Force in terms of national and international obligations, as well as the cooperation with the SAPS. In defence of the Republic, which includes the protection of the sovereignty, territorial integrity or the people of the Republic against any military threat or against any threat to the constitutional order of the Republic. National border control, which is to protect the integrity of the national borders of the Republic on the land, sea, or in the air.

The draft Bill also differentiates between when and where the President and the Minister can authorise the employment of defence. It compels the President to inform Parliament in appropriate detail of expenditure incurred, or expected to be incurred, the vote that carries such expenditure and, if the expenditure is against repayment, the name of the national department which is responsible for such repayment to the Department of Defence.

Chapter 6 Law enforcement powers of the Defence Force at sea

This is a new Chapter, was held over for discussion at a later stage.

Chapter 7: Military Police

This is a new chapter. It deals with the appointment of military police officials, functions, powers, and duties of the military police, but was not discussed in detail.

Chapter 8: Defence Intelligence

This is new, but was not discussed although questions from committee members were allowed.

Chapter 9 Councils within the Department of Defence

Was not discussed.

Chapter 10: Limitations of members of the Defence Force

A new chapter that focuses on the limitations of rights of members of the Defence Force as stipulated in the Constitution. Rear Admiral Retief also expressed his concern that this Chapter still needs to pass the constitutional scrutiny of the State Law Advisors.

Specific limitations mentioned include:
Privacy: members may at times be subjected to searches and inspections, screening of their communications with people inside or outside the Defence Force. This is done in the interest and for the purpose of military security and occupational safety.

Freedom of Expression: in the interest of security and protection of information, military members and civilian members of the Department may be subjected to restrictions in communicating any kind of information, and where appropriate, may be subjected to a prohibition on communicating information.

Assembly, Demonstration, Picket and Petition; the right of military and civilian members of the Department to peaceful and unarmed assembly, demonstration, picketing, and petition may be subjected to restriction in the interest of military discipline and shall be prescribed,

Freedom of Association; the right of regular members of the force to associate or form an association alone or with certain types of organizations shall be subjected to prescribed regulations.

Freedom of Movement; entry into, remaining in and movement in and around designated military areas may be restricted to authorized persons and subjected to such conditions as may be prescribed.

Labour relations; the right of any regular, reserve or auxiliary force member to join and participate in the activities of a trade union will be prescribed,

Access to information; in the interest of national security, access to information in the department may be restricted.

In the light of the above, the department asked the committee to make any recommendation as to what should be done should such restrictions be implemented.

Chapter 11 Employment in the Defence Force

Among other things makes provision for the creation of a Compensation Board to deal with compensation in case of death, injury or disability of members of the Defence Force.

Liability to serve in the time of war, during the state of national defence or during the State of Emergency is also dealt with in this Chapter. The new SANDF has done away with the conscription system, therefore becoming a voluntary service. Subject to the provisions of this Act, every person who has at any time contracted to serve in the Defence Force shall be liable to serve and remain in the service during the time of war, a state of national defence or a state of emergency.

Where the contract of the members have expired, terminated, lapsed before the outbreak of war or the declaration of the state of national defence or the declaration of the state of emergency, the contract of the said members will be extended by the Minister for the purpose of rendering services during such time, and the extension must not exceed three months. As such, when the contract of the members expires during the outbreak of war, the state of national defence or during the state of emergency, the Minister shall extend the said contract, provided that that extension does not exceed three months.

Suspension of a member;

A members of the of the Defence Force may at any time before or after he or she is charged with misconduct or awaiting or an appeal be suspended from duty with or without payment of the whole or portion of his or her salary on such conditions. Furthermore, if a member who has been suspended from duty in terms of the above before or during the trial or disciplinary hearing, is found not guilty, he or she may resume duty under the prescribed circumstances and receive in the prescribed manner the emoluments which might have been withheld during the period of suspension.

Chapters 12 to 18

These chapters were not discussed. Chapters 16 and 18 are new chapters. Chapter 16 deals with the State of national Defence and Chapter 18 with the Board of Inquiry.

Chapter 19: Offences and Punishments

In instances of special offences relating to discrimination, offensive behaviour and sexual harassment this Chapter defines "unfair discrimination".

For the purpose of this section "unfair discrimination" means any unacceptable treatment of a person which:

• is based on that person's race, gander, sex, religion, marital status, ethnic or social group, colour, sexual orientation, age, disability, conscience, belief, culture, language, or birth;
• is not intended to redress historical disadvantage, and
• with respect to employment, is not absolutely essential to the performance of a particular job or function.

Chapter 20: General

General Chapter dealing with the repeal of laws and savings.

Rear Admiral JH Retief concluded his presentation by saying that they were looking up to the committee members to make any suggestion concerning what was presented. Any input will be taken into consideration and will be treated with due respect.

QUESTION FROM MEMBERS OF THE COMMITTE

Mr Mashimbye (ANC): Who is to appoint the Secretary of Defence?

Response : In terms of the Public Services Act of 1994, as amended, the Secretary of Defence is to be appointed by the President. In terms of clause 7(1)(j) the Minister appoints the Secretary general, we admit that is wrong and needs to be moved to the powers of the President, as set out in clause 6 of the draft. This point is noted and the appropriate changes will be made.

Mr Mashimbye (ANC): Will the department take the committee into their confidence by stating whether the Defence Review will be opened again?

Response : (Mr Ismail) There will be a debate of this, but only next year as there are other pressing issues and a high work load to be dealt with. However there are no plans to change the department's stand on their posture.

Mr Mathebe (ANC): Where does the bill state that the Minister must consult with the Chief of Staff, or does this now mean that the Minister can do as he or she likes?

Response : (Mr Ismail) The Minister is a political appointee, elected to the office, therefore he or she can decide whether or not to consult with the Chief of Staff.

Mr Mathebe (ANC): The Chief of Staff, since he/she is in constant touch with the staff, is he/she not in a better position to know who is to be re-deployed, and other such matters?

Response : (Mr Ismail) The point here is to exercise the civilian control over military, not about consultation.

Ms Mapisa-Nqakula (ANC): What is the legal mandate of the defence intelligence, are they allowed to collect covert intelligence inside the country?

Response : (Chairperson) If this is allowed to be discussed today it will not be thoroughly exhausted.

Ms Mapisa-Nqakula (ANC): Under what circumstances will covert intelligence gathering be exercised?

Response : (Mr Nathan) Clarity on this will be given at a later stage, at the moment the department is still working on determining this.

Ms Mapisa-Nqakula (ANC): (follow up statement) The sentence on covert intelligence gathering should be redrafted in such a manner that it is understandable to all those who will read and apply it.

Chairperson: proposed that debate be put aside for another day so that members can formularies themselves with the National Strategic Intelligence Act, 1994, and then on the day of discussion everybody will be better informed.

Mr Mathebe (ANC): How will the independence of the Personal Review Board be guaranteed?

Response : (Rear Adm Retief) The Board can take decisions outside the department or without being influenced by the department or the Minister. For the sake of fairness and representatively, two members will be seconded from the Defence Force, to put its interests on the table, other members will be appointed as the Minister sees fit. The judge will be the Chairperson of the Board, and he/she is the right person to see to it that the independence of the Board is not compromised.

Chairperson : Clause 26 (5) caters for the situation where Parliament does not sit during the first seven days after employment is envisaged, now what happens if Parliament is not sitting for a longer period or where no committee in existence, e.g. before and soon after the elections?

Response : (Mr Nathan) Currently there are no provisions, and it is not certain what the position would be, would have to consult legal advisors on what the position would be.

Mr Mashimbye (ANC): Will it not be appropriate to have a separate force operating the border control beside the SANDF and SAPS?

Response : (Mr Ismail) This will be in contrast to the view of the department, but the debate on this will be welcomed to explore further on the issue.

Mr Mabethe (ANC) : Please elaborate on the screening of communication (chapter 10 section 68 (1b)?

Response : (Rear Adm Retief) For security reasons, where priority information may be passed out or jeopardized, it is necessary to screen letters and other correspondences.

The department requested that the committee should advise whether Chapter 10 should be included in the final Draft, if so, what should be included and what should be excluded, as this is the first time such attempt have been made where constitutional rights are being limited.

Mr Ismail asked the committee what process will be followed from here, because giving the department a week or two will not be enough to prepare, and this will not help the matters. The Chairperson responded that Tuesdays are committee days for Joint Standing and Portfolio Committees on Defence. However if there are pressing matters with legislation, legislation will take precedence. A follow up meeting will be arranged so as to determine how to apportion time to different sections of the draft bill. Some of the sections might take longer, but others are short and do not need the entire duration of the meeting, this can be grouped together in one meeting.

The meeting was adjourned.