In a virtual meeting, the Joint Standing Committee on Defence received a briefing from the Military Ombudsman on progress in dealing with challenges facing the institution, which involved legislative amendments and progress related to ongoing investigations. There was also a briefing by the Defence Force Service Commission (DFSC) and the Minister of Defence on the outcome of the ‘retreat’ to consider the implementation of the DFSC's recommendations.
The Committee learnt that the Chairperson had added a new item to the agenda, which was the legal opinion which had been motivated by the debate in the previous meeting on the delayed letter of the President on the extension of the deployment of the South African National Defence Force (SANDF) in Mozambique. The President was supposed to have tabled the letter of deployment to the Speaker of Parliament, who would then refer it to the Committee. The concern was whether the delay in the tabling of the letter to the Committee was unreasonable because, in terms of the law, the President had to inform Parliament promptly. Promptly meant without unreasonable delay, and the centre of the debate last week had been on whether the delay was unreasonable.
Members were told that this was similar to an issue that the Parliamentary Legal Services (PLS) had advised on as far back as 2003, and it appeared that it was a matter that had been with them for a while now. An opinion on what section 201 stipulated had been given before, and the PLS still stood by it, and it would be supplemented to the extent that was necessary for the specific circumstances being dealt with now. The PLS said the question of whether the delay of the President's letter was unreasonable was a difficult one to answer because the PLS had not been made privy to what the reasons for the delay were in the first place. It could access the reasonableness of the delay only when reasons for the delay were provided. The legal opinion was that given these practical challenges, it recommended that the JSCD in its report to the presiding officers raise the issue as a matter of concern for them to raise directly with the President through normal channels.
The Military Ombudsman reported on progress with the challenges facing the institution, and informed the Committee that progress had been made concerning legislative amendments. The legislative review process was in abeyance and was dependent on further interaction with the Minister of Defence and Military Veterans and the Government Technical Advisory Centre. On progress related to ongoing investigations in the 2021/22 financial year, there had been a total caseload of 343, of which 88 had been carried over from the 2020/21 financial year, and 255 reported in the current year. The Ombud's office had been able to finalise 258 cases and now had a current caseload of 85, putting the finalisation rate at 75.2%. However, there were still challenges with the implementation of recommendations and instances of slow cooperation from the SANDF.
The Committee learnt from the DFSC that there was a proposed strategic ministerial retreat involving senior military officials and other strategic stakeholders who would be invited by the Minister, but it was yet to take place. The outcome of a preliminary meeting on 11 February was that the DFSC needed to unpack its mandate and clearly define its roles and functions regarding the establishment of a military bargaining council (MBC), and how the operationalisation of the MBC would impact its mandate. The Commission, together with the human resources division, needed to unpack its tools of trade and conditions of service to establish a common understanding by the respective role players. This had not been finalised -- it was still a work in progress. The Commission continued to establish a better understanding by the broader Department of Defence on its role and function, and how its recommendations aimed to uplift the morale of the SANDF's soldiers.
The Minister assured the Committee that she would look into all the issues raised, but had no plans to change what the former Minister had implemented. She aimed to ensure discipline in the SANDF and restore the integrity of the Defence Force, which would restore public confidence in the army. She advised Members against jumping into matters that would undermine the structure of the SANDF, and which might introduce undesirable politics into the army. She suggested that the two Committees on Defence be invited to the retreat so that every stakeholder was kept abreast of the way forward in building a properly functioning Defence Force.
The Chairperson said there were three main things he would take away from this meeting. One was the concern about the tensions that were developing at the border between the police and the Defence Force. He was happy that the Minister was going to look into the matter, and at some point come back to the Committee with a report on what was happening there. Second was the level of outstanding cases that had not been acted upon, and the Minister would look at those cases with a view to addressing the stagnation. The third was not articulated, but was an old matter, involving the cases that had been taken to court because the Minister or Chief of the Defence Force was not implementing rulings of the Ombudsman. He hoped that all of these matters would be looked into to give clarity on the way forward
Additional agenda item
The Chairperson said that while the agenda for the meeting remained the same, he had added one item which was the briefing by Legal Services on the legal opinion. This followed a debate in the previous meeting about the President’s letter on the extension of the deployment of the South African National Defence Force (SANDF) in Mozambique. The President was supposed to table the letter of deployment to the Speaker of Parliament, who would then refer it to the Committee. The argument was whether the delay in the tabling of the letter to the Committee was unreasonable, because in terms of the law the President must inform Parliament promptly. Promptly means without unreasonable delay, and the centre of the debate last week was whether the delay was unreasonable. There was an appreciation that there was a delay because the letter was dated 28 February 2022, and it refers to the deployment whose period was dated 16 January. This deployment would be for three months, until 16 April. The letter was received on 16 January, and so from 16 January to 28 February, there was a delay, which was inconsistent with the constitution which says Parliament must be informed promptly.
However, the issue was whether the delay should be deemed unreasonable. As such, the Chairperson suggested that legal opinion be sought to settle the matter. Two legal opinions talked about this matter. There was clarity on defining the term promptly to mean without delay, but the question was when the delay should be deemed unreasonable. He said that because Members thought they were interpreting, they should defer that question to the legal scholars to prepare a legal opinion to guide the Committee on the issue. It was therefore against this backdrop that he had added the matter to the agenda so that the Committee proceeded with a better understanding when it deemed the delay unreasonable.
The Chairperson acknowledged and welcomed the Minister and Deputy Minister, who had just joined the meeting.
He told the Committee that the presentation on the legal opinion would be very brief, and he was not expecting any discussion on it because it was about getting clarity on the matter. Only questions of clarity would be welcomed.
Legal opinion on letter of SANDF deployment
Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, said he would deal with the matter in a summarised way because he had been assured that the opinion had already been circulated, so there was no need to read from it. The presentation would highlight only what was considered to be the salient features of what was being said, and Chairperson had already summarised the background of the matter up to this point.
The issue at hand was specific to a particular decision by the President to extend the employment of the SANDF in fulfillment of an international obligation in relation with the Southern African Development Community (SADC). That period of employment was from January to April; however, the letter that informed Parliament was dated 28 February, a month since the extension of the employment of the Defence Force. In his understanding, that seemed to be the bone of contention and the concern that the Committee had on that matter. This was an issue that the Parliamentary Legal Services had advised on as far back as 2003, and it appeared that it was a matter that had been with them for a while now. An opinion on what section 201 stipulated had been given before, and the Parliamentary Legal Services (PLS) still stood by it, and it would be supplemented to the extent that was necessary on the specific circumstances being dealt with now.
In the letter of request that was sent to the PLS, three specific questions were posed. The first one was whether the delay from 16 January to 28 February was unreasonable. It was a difficult question to answer, because the PLS had not been made privy to what the reasons for the delay were in the first place. It could access the reasonableness of the delay only where reasons for the delay were provided. It was difficult to provide an opinion in general terms where there were no specific reasons provided. It could be that there was a justification for the delay, but the PLS was not privy as to why it was not done on time. So it was difficult to answer that question. That was the issue raised in the opinion -- that one cannot deal with the reasonableness of that delay in the absence of the reasons for that delay. Of course, as indicated in his introduction, this seems to be a continuing challenge that faces Parliament in respect of the deployment of the SANDF in many instances, which was why it went back as far as 2003. It was a matter that needed to be dealt with between the two arms of government, which was the executive and legislature, that in such a circumstance, the PLS was unable to definitively express an opinion whether the delay was unreasonable. What may have been the difference in this particular instance was the fact that the Committee was dealing with an extension of deployment, as opposed to new employment. That could play a role in determining whether the expiry of time was reasonable. If it was a new deployment, the circumstance would justify a concern on the part of Parliament, but since it was an extension of what had already been authorised, the circumstances could be different. Whatever the circumstance, the PLS was not expressing a definitive opinion because it had to look at the entire conspectus of the circumstances that may have led to the delay.
Adv Njikela said it was unfortunate that the first and second questions were closely related, as his response to question one may have dealt with both of them. The third question, therefore, was on what had to be done. If Parliament over the past 27 years had been experiencing this problem and generalising, based on the first opinion that was given in 2003, it seemed like this was a problem that had been persisting for a while. It could be that the best way to deal with it was for the Committee to raise it in its report to the Speaker, because the communication was between the President and the Speaker, who then referred it to the Committee. If the Committee had this particular concern about the delay in them being informed about the extension of the deployment, it should raise this concern in its report, and perhaps suggest that the Speaker should escalate the matter to the President. This had happened on several occasions -- the one was the delay in the assent of the Bills that had been passed by Parliament. There was already an existing framework between Parliament and the President on how they deal with those issues. The Speaker seemed to be the relevant office to raise this concern on behalf of Parliament. There already was an existing arrangement, not only on this issue but also on the issue of the assent to bills and other various issues.
There was also another issue indicated in the legal opinion that the PLS had set out the regulatory framework that governs the deployment of the SANDF which specifically speaks to section 201. Section 201 says Parliament must be informed promptly, and in the previous opinions, the PLS had said promptly meant without unreasonable delay. If one went down that section, section 201 (4) revealed an interesting fact that the Committee may want to consider. It stated: “If Parliament does not sit during the first seven days after the defence force is employed as envisaged in sub-section (2), the President must provide the information required in subsection (3) to the appropriate oversight committee." It was a very indirect way of addressing the issue, but to the PLS it suggests that the use of the word "promptly," linked to a period of seven days in circumstances where Parliament was not sitting, and suggests that it must be immediately when the decision was made. Hence, the period stipulated in 201 (4) was linked to seven days and, as indicated earlier, was an indirect way of dealing with the issue. It may not be known why the drafters of the constitution chose to do it that way, but it suggests the level of promptness that was required in addressing the extent to which Parliament should be informed of the decision to deploy the SANDF once it was made. As indicated before, this particular incident deals with the extension of an existing deployment, and that could play a role in assessing the reasonableness of the delay.
Mr S Marais (DA) said the presentation was in line with his understanding. Would it be wrong for the Committee -- given the reference to the seven days -- to be allowed to enquire from the Presidency about the reason for the delay? There may be good or not so good reasons. His concern was that SA had already lost a soldier in Mozambique.
The Chairperson interjected to find out if Mr Marais was still asking a question. He asked that Members stick to asking questions so that the Committee could move on to other items.
Mr Marais said he wanted to motivate why he was asking his question. Given the circumstances that the constitution did not differentiate between employment and extension, and the letter of the President did not refer to an extension either, but referred to authorisation of the deployment for three months, would it be unreasonable to ask the Presidency about the circumstances behind the lack of communication within seven days?
Mr D Ryder (DA) appreciated the legal opinion, but argued that it could be debated, but he would not venture into that debate. Adv Njikela had said this was an extension of employment, not a new one, but if one was extending deployment or employment, one would know that one planned to do that and the circumstances beforehand, which then became easier to ask beforehand -- or was he misreading what had been said? He was not sure why he had brought that up, and asked for his comments.
His second question was on the legal opinion itself, because when he first joined the Committee he struggled to understand where the Committee fitted in this situation. The Committee derived its mandate from section 228 of the legacy constitution, the1993 SA Constitution. Was that taken into account when drawing up the legal opinion? It was quite clear, reading from section 228 (4), which states: “The President shall, when the National Defence Force is employed for service referred to in section 227 (1) (a), (b) or (e), forthwith inform Parliament of the reasons for such employment. (b) If in the case of such employment referred to in section 227 (1) (a) or (b), Parliament is not sitting, the President shall summon the joint standing committee referred to in subsection (3) to meet expeditiously, but not later than 14 days after the commencement of such employment, and shall inform the committee of the reasons for such employment. Not only should the President inform the Committee within seven days, but the Committee must also sit within 14 days regardless of recess." Had that section 228 of the legacy constitution been applied in this opinion? Did they agree that they had to meet within 14 days of the deployment?
Mr T Mmutle (ANC) said interpreting legal matters was a challenge for him, but maybe the clarity needed may not necessarily come from a legal opinion. It had been stated that due to reasons not provided there was a limitation to advise appropriately -- maybe the Secretary for Defence or the Minister may be able to clarify the process so that there was an understanding of where the delay came from. Was it from the Department, the ministry or the office of the President? Could the process be explained to the Committee to help Members understand the process?
The Chairperson said he worried that the Committee needed to know what it wanted from the legal opinion. He suggested that the Committee should write to the Speaker to find out about the reasons for the delay of the letter, and that next time when the letters come from the President, they must be sent to the Chairperson and the Co-chairperson immediately. This would allow the Chairperson to convene a Committee within a reasonable time to deliberate on the matter. Instead of pointing fingers, they should rather request an explanation going forward.
The Chairperson said Members seemed to want to stretch the discussion beyond what was stated in the legal opinion, in the process ignoring the recommendations. The legal opinion stated that given the practical challenges highlighted above, it recommended that the Joint Standing Committee on Defence (JSCD), in its report to the presiding officers, raise the issue as a matter of concern to the presiding officers to raise it directly with the President through normal channels. He said Adv Njikela could not stretch beyond that. He had given the advice and recommendations, and stated that that was the protocol.
He said Mr Marais had misread the message he sent to the JSCD group during the course of the Committee’s exchange. The message had read: “The President informs Parliament via the Speaker and the Speaker refers the letter to the Committee. When Parliament is not in session, he informs the Committee via the Co-chairs. The Co-Chairs cannot write to the President and ask him where the letter is. I would prefer that we leave that responsibility with the Speaker." Sometimes, they were not too sure whether the delay was with the Department, the Presidency or the Speaker. He asked Adv Njikela to respond to issues that were purely for clarity, and leave those for debate for another day.
Legal advisor's response
Adv Njikela said the way forward for Parliament to deal with the delay had been dealt with. A specific recommendation had been made to the Committee, and could not be taken any further than that. It was now up to the Committee to decide how it would move forward, but the PLS proposed that it should be done through the office of the Speaker.
In response to Mr Ryder’s question on extension and employment, he said he was correct that the constitution referred to employment, not the extension. That was factually correct, but it did not mean that the issue of an extension may not be a considered fact by the people who made these decisions, so the matter would not be taken further than that, because it was raised in that context to assess the reasonableness of the delay. This was one of the issues the Committee may want to consider, but it did not mean it was an excuse for the delay, but could be a contributing factor. It was in the realm of speculation, because the reasons for that delay were unknown.
The issue of section 228 was a matter that had been considered, but the PLS decided not to deal with it for the purposes of the opinion, because the Members had specifically directed it to answer three specific questions. It was a debate that had to be heard regarding the co-existence of both section 228 and section 201 of the constitution as of 2022, because 228 seemed to suggest something else and 201 did not speak to that. In law, the latest piece of legislation was assumed to be intended to amend the previous one. That was the situation they were in, and at this moment he was not expressing a definitive opinion on that issue, but it was something that had to be looked into -- how the two sections co-existed as of today.
He said the question from Mr Mmutle was not for the PLS to respond to, and maybe the Minister in her remarks may speak to the processes and the reasons for the delay.
The Chairperson asked the Committee if it wanted the matter to be debated at some point in the future now that Members had received the presentation.
Mr Marais said his suggestion at this point was that the matter should not be debated because it involved the constitution. The Committee should just follow the advice of the PLS, because a debate would mean a change in a part of the constitution, which was not the intention of what the Committee was working with. He was happy to follow the advice of the legal advisor, and hoped the Speaker and the Co-Chairs would take that up with the Presidency. Hopefully, there would be an indication of what the delay was, and also a message would get to the President that the JSCD was keen on what it was doing.
The Chairperson asked the Committee if it supported the recommendation of the PLS and Mr Marais's suggestion to follow the advice and recommendations given.
He thanked the Advocate and his delegation and released them.
Military Ombud's progress report
Lieutenant-General (Ret) Vusumuzi Masondo, Military Ombud, briefed the Committee on progress with challenges facing the Defence Force related to legislative amendments and ongoing investigations.
The mandate of the Office, as captured in the Military Ombud Act No 4 of 2012, was to investigate complaints lodged in writing by a member regarding his or her conditions of service; a former member regarding his or her conditions of service; a member of the public regarding the official conduct of a member of the Defence Force; or a person acting on behalf of a member. He emphasised that the complaint should be in writing, otherwise his office would not be able to investigate.
According to its preamble, the Military Ombud Act was enacted to, inter alia, “provide for the establishment of an independent Office of the Military Ombud.” Section 6(4) states that the “Ombud must investigate a complaint fairly and expeditiously without fear, favour or prejudice."
There had been progress made with legislative amendments. The legislative review process was in abeyance and was dependent on further interaction with the Minister of Defence and Military Veterans (MOD&MV) and the Government Technical Advisory Centre (GTAC). The GTAC consultations had taken place from December 2021 to March 2022 in order to conduct an assessment of the current status of the challenges faced by the Office, and to make recommendations regarding appropriate legislative amendments to address identified challenges. This process was expected to be finalised by the end of March.
Referring to progress on ongoing investigations, he said that in the 2021/22 year, there had been a total caseload of 343, of which 88 had been carried over from the 2020/21 financial year and 255 were reported in the current year. The Ombud office had been able to finalise 258 cases, and now had a current caseload of 85, putting the finalisation rate at 75.2%. Looking at the nature of the complaints, these ranged from complaints about lack of enforcement and non-compliance with the lockdown regulations and complaints about military veterans' benefits, to other conditions of service as well as those that fell outside the jurisdiction of the Office.
Lt Gen Masondo said there had been a number of challenges that had hindered progress:
- Responses from the SANDF as an interested party to complaints remained slow.
- The slow response to preliminary reports remained a challenge, but the meeting between the Military Ombud and the Chief of the SANDF had been able to make an undertaking to mitigate the situation.
- The impact Covid-19 had on the Office with regard to the implementation of the planned Outreach programme, the creation of public awareness, and expenditure.
- Challenges with regard to the interaction between certain functional areas of the Office and the Department of Defence DOD.
- Corporate support in the process of implementing the recommendations made. There was a capacity challenge as the function was not structured for in the Office.
Ms M Bartlett (ANC) sought clarity on the challenges of the Ombud office and asked if there were time frames required for this programme. On slide 17, the entity states it had 89 approved posts but planned 63 posts -- why was that so?
Mr Ryder said 88 complaints had been brought forward from the previous financial year, and 85 were carried forward. Were they very long outstanding cases that they were dealing with? There was a concerning comment where it was mentioned that more complaints were coming from Gauteng because they had a physical office there. Because there was an outreach programme in KwaZulu-Natal (KZN), there had been a sudden increase in complaints, which may mean there was a problem with the process.
He had been approached by a member of the SANDF with some genuine concerns who was not aware of the Ombud. There had been a problematic adjudication issue, so there should be an awareness campaign on the work of the Ombud. When he tried to assist the individual, he had to download the form first, which was not in that link, and when he finally got to the link it was very complicated to fill in, so he had given up and advised the individual to call and make a valid complaint with the Ombud's office. The complications with forms could be the reason why one had more responses from people having difficulty with that online interaction.
Mr Marais asked how many recommendations had been implemented, and how many ended up in the files or dust bin? On the Amendment Act, the Ombud currently made recommendations, but they could not do anything about whether they were implemented or adhered to. It had been stated in the past that when the legislation was amended, one must look at the enforcement authority or some consequences if nothing was done about the recommendations. The Ombud must receive feedback on the implementation of the recommendations, and if they were not implemented, what were the reasons for that? He defined the Ombudsman as "an official appointed to investigate individuals' complaints against maladministration, especially that of public authorities." That implied that if this body could not enforce the implementation of the recommendation or at least a good reason was given for lack of implementation, then what was the real purpose of the office of the Ombud? Maybe this was why there was a negative image of the Ombud, because he had heard people say they had reported a matter to the Ombud and had had a letter of recommendation, but nothing had been done about it. Had any attention been given to more enforcement authority?
The Chairperson said the presentation had given the Committee sufficient details to appreciate the work the office of the Ombud had done. It had been said several times in the press that at the border of SA and Mozambique, there had been ugly exchanges between the soldiers and the SA police. Although it was not a war yet, it presented itself as a tense situation. There was this body that was meant to preempt people taking the law into their hands, because it was a body that could address their concerns. If the police, as reported, were behaving in this manner towards the soldiers, or the other way round, who was the culprit, because this was reported in the press? What did the Ombud suggest could be done? One did not want this to escalate to a situation where the two entities could not cooperate because of outstanding issues that remained unresolved. He suggested that when the office of the Ombud did roadshows, potentially explosive areas like that should be prioritised so that awareness of such a body that could address their concerns and peacefully handle matters could be created.
Mr M Shelembe (DA) asked about complaints linked to the office of the Minister, or anyone related to that office. What happened in such a case? Was the Ombud able to deal with it? If so, what happened if the office of the Minister did not accept recommendations from him? In Mpumalanga, it appeared there had not been issues -- the number of complaints was too small. Were any awareness programmes conducted by the DoD or the military Ombud to ensure that all provinces had full information in this regard? Could the Ombud emphasise his independence more, because someone was funding his Department? Were there any previous incidents where his recommendations were rejected or not agreed upon by the office of the Ministry?
Gen Masondo responded to the question from Ms Bartlett regarding the time frames for resolving the challenges. He had been referring to the time frame for resolving the cases received. There were challenges in timeously and expeditiously finalising the complaints they received, as they had to interact with the Defence Force to get more information on the complaint and make them aware of it. This was so that they could investigate and the Ombud could deal with the facts as given to his office. Those turnaround times had been very long until the office took steps first to establish a liaison forum between the office and the staff in the SANDF to look at the cases being dealt with, and the challenge of getting responses. Furthermore, monthly meetings between himself and the Chief of the Defence Force had been established to elevate issues that could not be resolved at the level of the staff liaison forum so that they could give direction, and matters could be speedily resolved.
On the issue of the 89 approved posts yet the entity had staffed only 63, he said that as they were recruiting staff from outside, the process was taking a long time. It could not get all 89 posts filled quickly, and in the intervening period, the Treasury had been concerned about the human resources (HR) costs in the government departments and had placed a ceiling on how much could be spent. As part of that process within the Department, it was decided that it could not fill more than 63 posts. Concerning the actual allocation of the budget, it was funded on 57 posts instead of the 63, which was causing a challenge that had led to over-expenditure of the ceiling that had been imposed on the compensation of employees.
In response to Mr Ryder’s question of the 88 cases that had been carried over, he said only 11 cases were still not resolved, but his office compiled its statistics at the end of the month. It seemed that the entity was working on the 11 as well, so this number could be reduced by the end of the financial year.
The presentation had alluded to the fact that more complaints were received in KZN due to the outreach programme that had been conducted, and Mr Ryder had expressed concern about the knowledge of the public about the work of the Ombud's office. These outreach programmes conducted annually were meant to create awareness about the office. The initial focus was on serving members, but this was later extended to cover members of the public as well. Because SA was a big country, the entity had to strategise on how this could be done effectively. Therefore the initial approach was to create awareness in the areas where the SANDF was deployed, which was along the border areas. Once those areas were covered then it could extend to other provinces in the country. The office of the Ombud did not create awareness only through staff in the outreach programmes, but it also placed articles in newspapers so that people in different areas could get to know about the office from their local media. It was assisted by the Government Communication and Information System (GCIS) on this.
Responding to the complexity of the complaints form, he said the form was designed in such a manner that from the outside, the office could source sufficient information from the complainant to be able to proceed with an investigation. It had been found to be very handy, because if the complainant completed the form fully all the required information to commence with the investigation was covered. This explained why the complaints form was designed in that manner. However, whenever complainants were struggling with the complaints form, the office normally assisted them to complete it. For instance, during the lockdown, most of the complainants were contacting the office through social media platforms, and complaints forms were sent via emails, and they were guided on how to complete them. The process had been found to be fruitful.
In response to Mr Marais’ question on the implementation of the recommendations, he said not all the recommendations they made were implemented. There was currently one recommendation that had not been implemented. In the Entity’s Act, there was no provision for the office to provide the Chief of the National Defence Force (CoNDF) with a preliminary report. They realised that the CoNDF was not in the picture in terms of the report his office was compiling, and he would be surprised to receive an instruction from the Minister to implement the recommendation. However, to assist with that process, this step was introduced and the CoNDF was provided with the opportunity to respond to the preliminary report. If he addressed concerns about it and if those concerns were valid concerning the facts that it had gathered, those concerns were taken into account and the final report was amended, but if the concerns were not addressing themselves to the facts of the investigation, the office was unfortunately forced to proceed with it.
On the issue of the recommendations being binding, he indicated that in the office’s relationship with the previous Minister; the way she was handling its recommendations was as if they were binding. In instances where she was not agreeing with the recommendations, she would instruct that those recommendations be taken to the High Court for review. In that manner, therefore, the office of the Ombud did not feel the need for its recommendations to be binding. There were instances where the Minister was not clear about some of the facts covered in the final report. The report would be sent back to the office to clarify those issues, and after clarifying she would accept the recommendations, or at times the report would be directed to the CoNDF if she had not responded to the preliminary report.
He assured the Chairperson that his concern about the tension at the border between the soldiers and the police would be looked into. The presentation of the mandate indicated that the office reacted, and could not be proactive, because it investigated only when it received complaints. It would therefore be very difficult for it to look into the allegations until such time that the Act had been reviewed to accommodate all initiative investigations.
In response to Mr Shelembe’s question on investigating a matter that involved the office of the Minister, he said they could not do so because their mandate covered investigating complaints of members and former members of the SANDF about their conditions of service, and members of the public about the conduct of the SANDF. Therefore, if there was any problem within the office of the Minister, their Act did not empower them to look into that.
On Mr Shelembe’s observation that there were few complaints received in Mpumalanga, he said the office compiled data and statistics on different areas where complaints were received. This informed the outreach programmes, because once it had been seen that this was a trend, the office went to those areas where fewer complaints were received to create awareness there. He had indicated that this area of work had been impacted by the Covid 19 pandemic, so there could not be a timeous response to some of the trends that were seen to be developing.
In response to the question of what happens if the Minister did not agree with the recommendations, Gen Masondo said that fortunately the previous Minister had somehow regarded his office's recommendation as binding. Where she disagreed, she would refer the matter to the High Court.
Ms Thandi Modise, Minister of Defence and Military Veterans, said it was common practice that when a new Minister came in, they did not bring their own rules. The new Minister inherited the office, and if he/she did not agree with a decision taken by the predecessor, then of course it would be taken under review. In this case, one needed to acknowledge that Gen Masondo had said there had not been a sit down meeting. What would be interesting in their interaction would be for one to look at the types of complaints that must meet the criteria that go to the military Ombud, and the issues which must be dealt with within the normal procedure of a department and the Defence Force itself. Whatever it was, one did not want a situation where the Ombud overruled the general or a commander at a base, because he would then be interfering with military discipline. So, perhaps when they had that sit down meeting, she would be able to look at the matter properly and see what was happening there.
She told Gen Masondo that she had no intention of simply refusing or agreeing with the recommendations as they were submitted. They had to look at the first matter that had been tabled to her, which had to do with the Occupation Specific Dispensation (OSD), which had been sitting on the table because there had not been the money to agree to the recommendations. This was because if one agreed to accept the recommendation, one would have to follow through with it. That matter had been sitting on the Minister’s desk, having been satisfied that everything was good and the budget was there to ensure that what had been recommended through the Department's HR could be rectified and processed, and had been agreed to.
The Minister assured the General that she was not here to undo, but to ensure that there was not only a functioning Department, but also a Defence Force that was disciplined, and to ensure that the soldier was at all costs protected. She also had a strong case that she was putting on the table, which was the functionality of the military police. Were they doing what they were supposed to be doing? The caseload was not moving -- why was that so? Were the military courts doing what they should be doing? Therefore, were the matters going to the Ombud the same cases that should have involved the processing and prosecution by the military police and the military courts?
She was happy if Members of Parliament could refer complainants back to structures that should be dealing with the matters if uniformed and active members came to them. They may be enthusiastic as "policemen," but ended up bringing politics into the Defence Force, which was undesirable. If it involved matters which meant that the rights of people were being trampled on, such as racism and other things, they must be referred to the relevant structures which had to deal with those matters before jumping in. The process she was following was that before one has taken one's matter to the relevant structures within the Defence Force, do not come to her because she was not interested in undermining the structures of the Defence Force. However, if there was anybody in a command post who was suppressing, that person would be dealt with because they should not be dominating and should treat people fairly. She thought this was an area that was created for any other matter which did not fall under direct command control issues that could be taken somewhere else. She would be looking at the recommendations.
The Military Ombud reported to the Minister, which meant that if the Chief of the SANDF was not implementing the recommendations, whatever they were, the first call of complaint about the Ombud was the Minister. When the Minister got the report, she must follow through so that she could give feedback to the Ombud. She said it would work better for her, because there was a different reporting line and she was happy that the General had said they had opened a line that allowed the Chief of the SANDF to respond before finalising a report. That was a point before a firm position would be taken on whether or not to finalise it.
Regarding the disputes at the border posts, she said it would be interesting to look at the nature of the disagreements between the police and the soldiers. On the one hand, one must look at issues coming into the Republic, and on the other, one was looking inside the Republic, so it should be an easy area to negotiate and resolve if there were tensions there. It was worth mentioning that countries in Africa had issues that now and then spring up between the police and the military, so it should not be regarded as unique to South Africa, because it happens and it gets resolved.
It was a matter of determining which part of the territory each one is in. Internally, the soldiers know that the police take the lead if they are deployed to support the South African Police Service (SAPS). It was the police that search and arrest, while the soldiers just hand over, but on the borders, if the police try to take the responsibility of the Defence Force, there would definitely be tension. They would look into that and try and deal with those things, and they would look at the areas where the Ombud wanted to see it extended. She would not take anything on review, but she would take a thorough look at the report when it got to her to see whether it was within the area of responsibility of the Ombudsman or the command control structures, or whether the command control structures were not doing what they should be doing. This would lighten the burden on the Ombudsman, but would also start cracking the whip on the military police and the military courts, because she had issues there. She could not see any progress there, and matters they should have dealt with had not been dealt with. Therefore, the temptation may be, “well, they were not helping us here so let us go to the Ombud!" The Minister said she would like to keep an open mind and interact first with the Ombud, and then would be able to say where she could help, and where she could not. She would also follow up on the 11 recommendations that were not implemented by the Chief of SANDF -- look at their nature and perhaps get an understanding as to why he had not acted on those recommendations.
Mr Thabang Makwetla, Deputy Minister, thanked Chairperson for the opportunity to add something, but said he had nothing to add.
The Chairperson said there were three main things he was able to take away from this meeting. One was the concern about the tensions that were developing at the border between the police and the Defence Force. The JSCD took an interest in this because soldiers were deployed there and the mandate was derived from the Constitution. He was happy that the Minister was going to look into it, and at some point come back to the Committee with a report on what was happening there. If it needed intervention, they were the agencies entrusted with the responsibility and could intervene in time before it became ugly.
Secondly, it was the level of outstanding cases that had not been acted upon, and the Minister would look at those cases with a view to address the stagnation. The third was linked to this one, which was not articulated, but was an old matter -- the cases that had been taken to court because the Minister/Chief of the Defence Force was not acting. There were several cases where the Department had been taken to court by a person who had received a ruling from the military Ombudsman in his favour, but there was resistance in implementing it. When the matter went to court, the court confirmed the resolution of the Ombudsman, and there were, of course, implications. He hoped that all of these matters would be looked into to give clarity on the way forward.
He thanked the Ombudsman and his team for the presentation, and released them.
Implementation of Defence Force Service Commission recommendations
Mr Ian Robertson, Chairperson, Defence Force Service Commission (DFSC), said that the proposed strategic ministerial retreat involving the Minister, the Chief of the South African National Defence Force, the Secretary for Defence, the Chief of Human Resources (CHR), other senior strategic stakeholders who the Minister would have invited and the DFSC, was yet to take place.
He said that pending the strategic retreat, two meetings had taken place in preparation of the agenda on 1 December last year, and on 11 February. At the February meeting, the Special Advisor to the Minister, the Military Secretary and the Ministerial Liaison Officer in the Office of the Minister, the CHR and other directors within HR division, the Defence legal service division and the Commission had attended.
The outcome of the 1 December meeting was that the DFSC had to categorise and prioritise recommendations in order to elevate recommendations that required additional funds on which the Minister needed to pronounce on, and other recommendations that could be pursued by the DOD. The document had been finalised and sent to the Office of the Minister on 10 March.
The outcome of the 11 February meeting was that the DFSC needed to unpack its mandate and clearly define its roles and functions concerning the establishment of the Military Bargaining Council (MBC), and how the operationalisation of the MBC would impact the mandate of the DFSC. The Commission, together with the HR division, needed to unpack the tools of trade and conditions of service in order to establish a common understanding by the respective role players. This had not been finalised -- it was still a work in progress.
The Commission continued to establish a better understanding by the broader DOD on its role and function and how its recommendations aimed to uplift the morale of the SANDF soldiers.
The Chairperson said the Commission was reporting on work in progress towards resolving several recommendations which remained unattended to. The main concern was that there was no response to some of them.
Mr Mmutle welcomed the presentation, which he said was short and precise. The only unfortunate thing was that their recommendations were not really finding expression. However, because the Minister was in the House, she could give input as to when she would be able to meet with the DFSC, as she had indicated in the previous presentation that she had not yet met with them. This meeting was important to ensure that there was mobility in terms of the work done by this Commission and the Ombud. Previously a resolution had been taken, but there must be some kind of retreat between the DFSC and the ministry to deal with some of the issues that had been raised. He asked for an indication of a timeline to assist the process.
Mr Ryder said that in his reading of the mandate of the JSCD, the defence Ombudsman and the JSCD were at the core of that particular mandate, and asked if there were overlaps. How much cooperation was there between the two bodies? He said Mr Mmutle had been right that they needed to hear from the Minister -- what was her intention, because these were important role players in the Defence Force and its operations? How did she perceive them and intend to move forward with them? When was she going to sit down and meet with them? There had been an incident the last time Mr Robertson was with the Committee, where he had ended up being angry because the Commission had not yet been given enough space by the Ministry, and did not seem to be taken seriously. He was hoping that Minister would take these issues seriously, and of course engage with those concerned.
Mr Robertson said that in his opening remarks, he had indicated that they had met with the Minister in early November, and she was briefed on the Commission's mandate and operations. She was aware of it, but had a lot on her plate. She had indicated that they needed to meet and unpack some of the issues, and as indicated, there had been several preparatory meetings, and the outcome of these meetings had been shared in the presentation.
In response to Mr Ryder’s comment/question, he said the Commission had a memorandum of understanding (MOU) with the military Ombudsman. The Commission did not entertain individual complaints in their visits to various units and bases, and had always indicated that they did not entertain individual complaints. It had happened in the past, before the Covid 19 pandemic hit, when the Commission was visiting bases that it had shared a collective grievance with the military Ombudsman from members of a particular unit, so it was not an individual grievance. At that time, the head of the body had been Gen Matanzima. Just to repeat, there was an MOU, and in fact, it had been in the two bodies' agenda to revise it and meet with the current Ombudsman and his team to take through the revised MOU.
Minister Modise mentioned from the onset that she had not met with the Ombudsman and his team, but she had not refused to meet with them. No date had been set to meet with the Ombudsman either. She had known the General since they were teenagers back in Angola eating baboons, and therefore there would be absolutely no reason to refuse to meet the leadership of the structure that was integral to the proper functioning of the Defence Force. She dispelled the notion that there could be some ulterior reasons for why she had not met them.
She said Mr Robertson was right in saying that the retreat referred to had come out of an interaction between her office and the Commission. She had suggested that they take time off in an informal setting where there would be enough time to gain an understanding of all the functions. In that inaugural meeting, it had occurred to her that when there were individuals who were not in the military who were serving in military-related structures, some orientation was needed. This was because the tensions that were arising as she was getting that report, were an indication that sometimes there was no appreciation from members who were serving in the DFSC of the responsibility of the officer commanding a base. There were now demarcations that one could not walk into a base and demand to see soldiers without making proper arrangements. If anything, there was no need to have a commander. Even in the police, those arrangements were made.
The second thing that needed to be looked at was that when the DFSC was inaugurated, there were no labour unions allowed in the military. Therefore, the Commission was in a way taking the responsibility to represent the HR and labour interests of the soldiers on their behalf. Now that one union had reached that threshold, they may want to sit down amicably and decide what their role was. Where did they find one another? How relevant was the DFSC? She did not want to have a clash between what the unions would do in the SANDF and what the DFSC thought it would continue doing. They needed to break out, sit down and deal with that, and they were working to get a date. She told Mr Robertson that her office had identified a date, so they would sit down and discuss it. She suggested that all Members of the Committees of Parliament be invited so that everyone could sit down in an informal setting and discuss the matter in the interests of maintaining a very disciplined and coordinated Defence Force.
She assured the Committee that ensuring the return of pride and integrity to the SANDF was what drove her. Ensuring that pride and integrity were returned would restore the trust and respect of SA in their military, and this was also something that drove her. She wanted to make sure that the SANDF was doing what was conventional in other countries, especially those that SA had a relationship with. There were several instances where they were doing things that were not in line with other militaries, and they should not be doing so because certain policies had not been put in place in the SANDF. The Minister said they would not be imposing union policies on the military, but would be doing what other militaries were doing.
Minister Modise assured the Committee that she would do her job within the time allocated, and ensure that all aspects of the Defence Force were attended to. That included sitting with the Ombudsman, and she was hoping that they would sit and discuss and see that whatever recommendations made were carried out. If there was a disagreement, they would also not be ashamed or afraid to tell the General that they thought he was overstepping the mark, and provide the reason for that. The Minister’s office would ensure that what the General tabled would be implemented by the Chief of SANDF. That was why she committed to follow up on the 11 unimplemented recommendations, because if the former Minister had agreed to those recommendations, then they should have been implemented. She had no business in going against what the former Minister had done.
She committed to following through to ensure that the meetings and the retreat happened, with both committees invited, so that no one was excluded from what was understood and finally agreed upon.
The Chairperson said that reading from the chatline, there seemed to be a warm reception about Members being invited to the retreat. The JSC welcomed the invitation and was excited that the recommendations of the DFSC Commission were receiving attention. There was a concern about the state funding an institution whose recommendations were simply ignored. It was happy with the way the Minister had suggested the way forward.
He said this was the conclusion of the discussion, and it could not be taken further than this as it was still a work in progress. He thanked the Members of the DFSC for the presentation, and released them.
Committee's second term programme
The Chairperson moved the Committee to the next item, which was the consideration and adoption of the second term committee programme.
He asked Members to finalise the first weeks of April so that they could have a good start going into the new term. Members agreed that for security purposes, there would not be a discussion on the deployment in Mozambique, particularly what was happening on the ground and deployment camps under Operation Vikela. The allocation of the resources for that deployment would be discussed only in a closed meeting, where a possible oversight to Mozambique would be considered.
The programme was adopted as is, and one set of minutes was considered and also adopted, with no matters arising.
The meeting was adjourned.
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