Military Ombud 2021 Annual Activity report; Minister of Defence on implementation of recommendations for Defence Force Service Commission


02 June 2022
Chairperson: Mr V Xaba (ANC)
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Meeting Summary


The Joint Standing Committee on Defence convened in a virtual meeting to receive a briefing by the Minister of Defence on implementation of the Defence Force Service Commission (DFSC) recommendations and a presentation on the Military Ombud’s 2021 annual activity report.

The DFSC is mandated to make recommendations to the DOD relating to:

-Annual improvement of salaries and service benefits of members;

-Policies in respect of conditions of service;

-The promotion of measures and setting of standards to ensure the effective and efficient implementation of policies on conditions of service within the Defence Force

In September 2021, the DFSC submitted a consolidated list of ±178 recommendations to their findings from 2013 to 2020. Some recommendations require a reasonable amount of time for planning and implementation

The Committee called on the Department of Defence and Military Veterans (DMV) to clarify the roles and functions of both the Defence Force Service Commission (DFSC) and the Military Bargaining Council (MBC), to ensure that there was no duplication of roles that might impact on the achievement of better conditions of service for members of the Department.

The Committee raised a concern about the reported disjuncture between recommendations being made by the Ombud and their implementation by the Department. Despite this, the Committee welcomed the bilateral engagement between the Military Ombud and the Chief of the South African National Defence Force (SANDF) which had been cited as improving the implementation of recommendations by the SANDF.    

Regarding the 2021/22 annual performance of the South African Military Ombud, the Committee appreciated the 83% rate at which the Ombud had resolved the reported cases, as that contributed significantly to the improvement of conditions of service of members of the SANDF. The Committee also welcomed the clearance of the backlog of accumulated cases and their expeditious finalisation.

Meeting report

Briefing on recommendations of Defence Force Service Commission (DFSC)
Admiral Asiel Kubu, Chief of Human Resources (HR), South African National Defence Force (SANDF), said that the DFSC is mandated to make recommendations to the Department of Defence (DOD) regarding the:

Annual improvement of salaries and service benefits of members;
Policies in respect of conditions of service;
The promotion of measures and setting of standards to ensure the effective and efficient implementation of policies on conditions of service within the Defence Force.

Since the last presentation to the Standing Committee on 16 August 2021, the Department has made several interventions to address the proposed recommendations from the DFSC. These interventions included presentation of status report to the Committee on 16 August 2021, submission of a formal response to the consolidated list of around 178 recommendations from the DFSC, and a meeting between the Minister of Defence (MOD), Military Veterans (MV) and the DFSC on 8 November 2021.

During the meeting, it was agreed that the DFSC needed to unpack its mandate and clearly define its role and functions concerning the establishment of the Military Bargaining Council (MBC) and how its operationalisation would impact the current functionality of the DFSC. Together with the HR Division, the Commission would unpack and define the tools of trade and conditions of service paradigms to establish a common understanding among the respective role players.

Regarding the implementation of recommendations, he said that on 10 March 2022, the DFSC had submitted a re-worked list of recommendations to the office of the MOD, the MV and Chief of Human Resources. After the interventions, the list of recommendations was significantly reduced from around 178 to around 50. The prioritised and categorised recommendations were divided into two groups:

The first group reflected the recommendations related to funding and needed to be elevated to the MOD and MV for a pronouncement.  
The second group reflected recommendations which required feedback by either the Secretary of Defence or Chief of the SANDF to be provided to the DFSC on terms and timelines that the DFSC would communicate.

Current recommendations include:
-HR (conditions of service/grievance policy/subsistence and travel allowance)
-conditions of service (uniform and medical support services)
-tools of trade (specialised vehicles and security)
-OHS in facilities

The Chairperson asked for a summary of the reason for the existence of both the DFSC and the MBC.

Admiral Kubu said that since the establishment of the DFSC, tangible conditions of service were approved despite the recommendations that the DFSC made. There was also a time when the DFSC had said that the Defence Force was not entitled to receive certain benefits from the DoD because they had access to free medical aid. People within the Defence Force lost their confidence in the DFSC because they were not looking out for their interests, and as a result, they did not see the reason for the existence of the DFSC.

The South African National Defence Union (SANDU) was more proactive in looking out for the interests of the Defence Force and had been successful in doing so. The more cases that SANDU won, the more members of the Defence Force they won over.

Mr S Marais (DA) recalled that the DFSC was established because there was no active union in the Defence Force and said that the Chairperson was correct in ascertaining the need to continue with both the MBC and the DFSC. He suggested that a cost-benefit analysis approach was done on both the MBC and the DFSC to conclude which of the two would be used going forward by the Defence Force. He then asked if SANDU was the only union that was recognised in the Defence Force. He also wanted to know whether Reserve Force members were included in the entire process, and whether they had been consulted, as he did not know who represented their interests.

Admiral Kubu said that there was currently only one military union, SANDU, and that all the Defence Force members, including the Reserve Force, were included in the recommendations. A “One Force” concept was used in looking out for the interests of the Defence Force members.

The Chairperson said if someone wanted to know the number of recommendations implemented -- the actual recommendations that had been implemented and the recommendations that were not implemented and the reasons for that -- he would not know how to answer. He was unsure if the Department just did not want to implement the recommendations or because of budget issues. This was because it was reported last year that soldiers deployed on the borders under Operation Corona had no authority to intercept, vehicles had poor communication equipment, lacked night vision equipment and their bullet-resistant equipment was old and unserviceable.

These were clear recommendations on what needed to be fixed, but none of that seemed to have been addressed.

Admiral Kubu said that the recommendations relating to accommodation had been parked because the Defence Force currently faced a challenge of dilapidated infrastructure and required funding, and the recommendation was not implemented. The recommendations on occupation-specific dispensation (OSD) for nurses were resolved, as the Minister signed the OSDs last year. The medical issues also needed budget, and were not resolved. He said they categorised the 178 recommendations from the DFSC because most of them were based on the same issues, which could be addressed as broad issues.

The Chairperson said that they must submit a report to the Committee that would indicate clear timelines of when they planned to resolve all the recommendations and include the recommendations that required funding, with an indication that they were in their long-term plans.

Mr Marais asked for clarity on whether the Reserve Force members were seen as temporary workers that were fully catered for. He then asked for a report on how the cost structure of the DFSC compared to the MBC. Lastly, he wanted to know the existing structures to ensure that the concerns and issues of Reserve Force members were recorded, reported and addressed.

Admiral Kubu said that Reserve Force members were not regarded as temporary employees, because the management of temporary employees was constructed differently. Reserve Force members were appointed according to the rules of the Defence Act and were entitled to every benefit. The only thing they did not get was the contribution to their pension fund.

He said that it was difficult to track the number of Reserve Force members who were part of the union. Unlike the Regular Force members, whose payment for their SANDU membership was deducted from their salaries, they would have to use the bank to pay for their membership. All the members of the Reserve Force that had issues followed the normal grievance process of the Department which was the highest body in the DOD that dealt with issues of both uniformed and regular members of the Force.

Ms Gladys Kudjoe, Secretary of Defence, said that the Department was engaging with other departments to address some of the recommendations that required funding -- for example, the issues of accommodation, infrastructure and facilities, where the DOD was engaging with the Department of Public Works and Infrastructure (DPWI). Last week, she had engaged with Treasury to discuss the Defence Force facilities and the DPWI, which was receiving a budget of R1.2 billion yearly to manage DoD facilities. Treasury had suggested that both departments should address the issues between them. She said that they would provide a report on the progress they had made on the recommendations to the Committee, with all the necessary details.

The Chairperson said that the Committee would expect to receive the full report towards the end of the current year in the third quarter.

Ms Thandi Modise, Minister of Defence, agreed that the Department needed to revert to the Committee later in the current year with a clear distinction between a member of the Defence Force and a member of the Reserve Force, because the difference was big. The confusion happened because a call-up was almost being reduced to being on leave. They needed to go back and revise their definitions of Reserve Force members because Reserve Force members were not supposed to be part of a union.

She said that as soon as a union was recognised that did not go only to the MBC, but could enter the space of all the labour bargaining councils, the trade union must be able to take care of what it was intended. There was a form of coyness around taking forward resolutions of the DFSC because, at some point, there was overreach into areas of command and control. This was a problem, because all the trade union-related issues must be respected and carried out, but there must not be any structure that would interfere with how commanders enacted their responsibilities.

She said that Reserve Force members could not be treated as members of the Regular Force because their conditions were different. A Reserve Force Council had been established to look after their needs, and it did not make sense for them to want to be part of the trade union.

Mr K Motsamai (EFF, Gauteng) asked the Minister to investigate the issue of people who extended their contracts in the Defence Force while they were beyond the age of retirement.

The Minister noted the request.

Military Ombud's 2021 Annual Activity report
General Vusumuzi Masondo, Military Ombud, presented the Annual Activity report for the 2021/22 financial year.

Referring to the performance analysis, he noted that during the 2021/22 financial year, the Office had logged 8 192 physical contacts. This comprised people who attended outreach events organised by the Communications Directorate and attended to by operations personnel. It also included walk-in enquiries, telephone enquiries and electronic enquiries such as emails and postings on social media that required assistance from operations staff.

The Office had opened various modes of contact in addition to the traditional methods of posting and faxing complaints as a way of promoting accessibility. The Office of the Military Ombud had a caseload of 351, which was made up of 263 new complaints received in the year and 88 complaints carried over from the previous financial year. A total of 293 complaints had been finalised. This represented an 83% resolution rate, an achievement which was a key highlight in the performance of the Office during the financial year. The annual performance target of a 73% resolution rate was exceeded by 10%, the maximum variance planned for in the annual performance plan (APP) and annual operational plan (AOP).

Of the 263 new complaints lodged with the Office during the year under review, 226 were lodged by members of the SANDF concerning conditions of service, and one was investigated as tasked by the Minister of Defence and Military Veterans. The Office had seen a decline in the complaints lodged by members of the public relating to the conduct of SANDF members compared to the previous financial year. This may have occurred because of termination of internal deployment of members of the SANDF, deployed to assist in enforcing lockdown regulations in the previous financial year.

Complaints from current SANDF members constituted the highest number of matters lodged with the Office during 2021/22. The 142 complaints from current members amounted to 54% of the total new complaints received. Complaints from former members remained the second highest, at 85, which constituted about 32% of the new complaints lodged. The Office received 36 complaints from members of the public, which amounted to 14% of the 263 complaints lodged during the period under review.

The Directorate continued to provide effective and efficient legal services to the Office regarding legal support. While the drafting of the Amendment Bill had been placed in abeyance, the Directorate was in rigorous engagement with the Government Technical Advisory Centre (GTAC) and its study to determine the existing challenges facing the Office, to expedite the legislative review process. The report on the GTAC study was finalised on 29 March 2022, and the recommendations contained therein would be considered to address amendments to the draft Bill. 

On governance, the Office of the Military Ombud had institutionalised the result-based management framework prescribed in the Department of Planning, Monitoring and Evaluation's (DPME's) revised framework for strategic plans and APPs with effect from 2020/21. This is a tool to ensure that the Office fulfils its legislative mandate as expressed in terms of the intended impact, outcomes and outputs.

Accountability for performance was upheld by the Military Ombud, who further delegated the execution of specific responsibilities to functional owners/heads. Respective quarterly reports were discussed and tabled at the management committee (MANCO), mandated as one of the oversight structures within the Office. Organisational performance was continuously monitored against the approved APP and AOP, and reporting was appropriately aligned to the development of corrective measures, leading to creating a corporate support services dashboard, which would be institutionalised in 2022/23.

Mr Marais said that part of the frustration was that the Office could only make recommendations and had no enforcement authority in the past. He wanted to know if this should be a concern for the Committee regarding provision of funding to the Office of the Military Ombud. He asked if the finalisation of cases referred only to the Office sending out a recommendation, or if it also referred to the completion of cases to the satisfaction of the complainants. 

He said that some of the basics that he believed were important in the Office of the Ombud duties included percentage investigations and resolutions of complex complaints. He said that the Office existed to deal with the complex cases, and the fact that they dealt with only 59% of those cases meant that they did not earn their money in the financial year. This also meant that the Office's overspending on the cost of employees was bad value for money.

Compliance with the regulatory framework was also part of the basic duties of the Office, as compliance with the Public Finance Management Act (PFMA) was the basis of any government institution. If an institution did not comply with the regulatory framework, it was putting its justification and sustainability at risk. He said that the 47.5% compliance with governance, risk and compliance (GRC) by the Office was self-sabotage and was unacceptable because it was bad value for money. He said that the Ombud must understand that there was already not enough budget for the Defence Force, and if the Ombud was not going to contribute and help, that exacerbated the problem. 

Mr T Mmutle (ANC) wanted to know the Office's challenges in trying to solve the complex cases timeously. He also wanted to know the plan to fill the vacant posts in the Office, and how they planned to balance the ethnic groups in the Office. It was unacceptable that with the current unemployment rate, such an Office sat with a high vacancy rate and was not necessarily making strides to ensure that the posts were filled.

Military Ombud's response
General Masondo said that in terms of the Act, their recommendations were not binding, but the previous Minister of Defence would always instruct the Department to refer the recommendations to the High Court for review when she disagreed with the recommendations. Through its involvement with international bodies, the Office understood that it would not be ideal that its recommendations should be binding. That would create conflict between the Office and the entity on which the oversight was conducted. It was better for the Ombud's institution to be persuasive in the quality of work to ensure that its recommendations were implemented.

He said that it was worrisome to the Office that when the Minister accepted the recommendations, there were problems in their implementation by the SANDF, which needed to be addressed.

Regarding the finalisation of cases, he said that from the Office's point of view, their work was done once they submitted their recommendations to the Office of the Minister. However, at every stage of the investigation, complainants were informed of progress, and the Office introduced a step not in the regulations. Once they finalised investigations and produced a preliminary report to the Chief of the SANDF and the complainants, they were allowed to dispute if the complainants felt that there were issues that were overlooked in the investigation. If their disputes were valid, the Office considered them, and the report would then be finalised.

He reminded the Committee that the Office came from a place where its overall performance was low on all the cases, not just the complex cases, and it had since improved significantly. The Office had achieved 59% on the complex cases because it depended on stakeholders to provide it with the kind of information that allowed it to continue with investigations. It was impossible to finalise the cases if that did not happen timeously. The Office established different forums, one with the SANDF, where they looked at complications around receiving responses on time, and another with the Chiefs of the Services, which improved the situation tremendously for the Office to have achieved 59%.

The issue of non-compliance with the regulatory framework was a non-negotiable issue, as the Office always strived to comply. The Office was not structured for the GRC function, and was doing it above its tasks. The Office also took steps to invite internal auditors to the Office, and they found certain anomalies. The Office did this to ensure compliance, even though it was never audited before. They continuously ensured that they strengthened the control measures in the Office so that they could be fully GRC compliant.

Some of the other challenges that the Office faced regarding solving complex cases timeously, especially in pensions and insurance pay-outs, included conflicts among family members of the complainants when they failed to locate each other, which caused problems in finalising the cases and making the necessary recommendations.

Regarding the vacant posts, he said that the Office had been established with 89 approved posts, but it had never been able to fill them since its establishment. At the most, the Office could fill only 63 posts, which was what it always tried to do. When there were vacancies, the Office used those to close the gaps to improve equity.  

Follow-up discussion
Mr Mmutle wanted to know the number of posts filled out of the 63.

Mr D Ryder (DA, Gauteng) asked what happened when a member of the Defence Force lodged a complaint with the DFSC and was not satisfied with the resolution. If they escalated their complaint to the Office of the Ombud and were not satisfied by the Ombud, they escalated it to the union. He said that there seemed to be an overlap between these institutions, because they seemed to be doing the same job. If such a situation occurred, then there must be a serious discussion about the existence of the three bodies.

The Chairperson wanted to know the number of the recommendations made by the Ombud that the Minister implemented. He also wanted to know if there were instances in the past where the Ombud recommended a solution to a complainant and the court supported the recommendation, but the Department refused to implement the recommendation regardless. This was because the Committee wanted to understand how the Defence Force was prepared to cooperate with the Ombud.

General Masondo said that of the 63 positions, three posts were vacant, and they were in the operational environment of the Office. In terms of their Act, the institution was created to deal with complaints from members and former members about their service conditions, but the Office could entertain a complaint only when a member had first exhausted the internal grievance processes. Whether the member decided to escalate their issue to the DFSC or the union was entirely up to them.

According to his understanding, the DFSC was established to deal with conditions of service of members of the Defence Force proactively, by assessing conditions and how they could be improved. The Office of the Ombud simply dealt with complaints, and did not have the power to investigate whether members of the Defence Force were adequately provided for their service conditions. The unions could escalate some of the complaints to the courts and force implementation, which was something that the Ombud’s Office could not do.

Ms Sarisha Naidoo, Deputy Director: Legal, DoD, said that there were two distinct mandates between the Office of the Ombud and the DFSC. The DFSC was tasked with determining conditions of service for the Defence Force as a whole, whereas the Office of the Military Ombud was tasked with investigating complaints relating to conditions of service of individual members of the Force. The Office dealt with investigations, and not necessarily policy decisions, relating to conditions of service.

The Office was seen as an extension of the grievance system, because it dealt with the individual complaints that emanated from the grievance system. It had no control over whether a member approached the union or the DFSC before the Ombuds Office, even though it would have been in the member's best interests to approach the Office first.

General Masondo said that the Office had finalised several reports and made a significant number of recommendations, but there was a gap because the Office was not receiving confirmation on whether the Minister accepted them. They did not know where they stood regarding most of the reports that they had recently finalised.

Mr Velile Jonas, Director: Investigations, SA Military Ombud, said that they would revert to the Committee regarding the actions taken by the Office when the Department refused to implement their recommendations after a court order. He said that most of their recommendations were implemented and were engaged in the liaison forum.

Ms Naidoo said they were currently not aware of any cases where the court had ordered implementation in favour of a complainant and the Department had refused to comply with the order. There were cases where courts made rulings against the complainants and set aside the decision of the Military Ombud’s Office and found in favour of the Department. There was currently an ongoing case where the complainant was compelled to apply to appeal such a decision to the High Court. She said that if the Department decided not to implement a recommendation after a court ruling, it would be in contempt of court.

General Masondo said that since the establishment of the monthly forum between the Military Ombud and the Chief of the SANDF, the number of recommendations that were not implemented had decreased because they could discuss them in the forum.

The Chairperson asked if they also discussed the issue of the Office not receiving feedback on implementation of its recommendations from the Department in the forum.

General Masondo said that the problem in the Department was that no legal advisor was appointed to assist the Minister with the recommendations.

The Chairperson said that the Committee would consult with the Minister on the issue.

He thanked the Office of the Military Ombud for the presentation and noted improvements in performance by the Office over the years. The Committee was impressed with their handling of the backlog, but the issue was that their decisions were nothing but recommendations and had no authoritative backup.  

Committee matters

Adoption of minutes
The Committee considered and adopted the minutes dated 19 and 26 May 2022, with no amendments.

Discussion on study tour
Mr Peter Daniels, Committee Content Advisor, said that in the Committee’s strategic workshop last year, it had been discussed that they should do an oversight visit to the Democratic Republic of Congo (DRC). Given that soldiers were also deployed in Mozambique, the suggestion was that the Committee liaise with the Department to assist with travel arrangements.

The second option was that the Committee would do a study tour to Algeria, as it was well known for treating its military veterans well. This would help the Committee understand the different benefits, and how they honoured their war veterans.

The third option was the force structure and force design, suggesting that the Committee should visit a European country and a relevant country within the continent and engage them on career management, succession planning, exit mechanisms, and force rejuvenation.

The Chairperson allowed the Members to discuss which option would be best.

Mr Marais said that the third option looked like it would produce more value for money and was something that the Committee should consider pursuing. He understood how much the visit to the DRC meant to the Defence Force, and for them to understand the country's circumstances from their last visit to the country.

Mr Ryder agreed that the first and third options should be prioritised.

Ms M Mothapo (ANC) suggested that the three options should not be the only options, and that more options should be considered. She said that European countries were too advanced and South Africa was still a developing country. She suggested that a country with military operations similar to South Africa should be considered.

The Chairperson agreed, and added that visiting a country with stronger defence industries than South Africa could benefit the Committee.

Mr Motsamai suggested that countries like Cuba, Jamaica and Brazil should be considered.

Mr Mmutle said that more options should be considered, and a decision could be made thereafter.

The Chairperson said that perhaps the trip should combine elements of all three options, and suggested that the Content Advisor do some more research on the best possible option to choose, or if the three options could be combined on a single continent.

The meeting was adjourned.


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