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DEFENCE PORTFOLIO COMMITTEE
7 September 2004
DEFENCE REVIEW: BRIEFING
Chairperson: Prof K Asmal (ANC)
Documents handed out:
Military Legal Services Report
Military Labour Relations Report
Ministerial Task Team on Military Justice System briefing
The Chief of Military Legal Services briefed the Committee on his division. He alluded to the Service's fragmented structural position within the Department. Many of the problems with the MLS stemmed from this fragmentation. The Committee interrogated the Service's review procedures and the Chairperson concluded that the time-consuming processes was an obstacle to the development of camaraderie and mutual trust within the South African National Defence Force.
The Ministry of Defence briefed the Committee on the Ministerial Task Team that has been commissioned to look into the Military Justice System. Reasons for this commissioning, the mandate of the task team and its composition were explained.
In a briefing on Military Labour relations, the history of collective bargaining within the South African National Defence Force was charted, focussing on developments in the Military Bargaining Council and the Military Arbitration Board. The Chairperson urged that the briefing focus more on the challenges faced by the Department in the wake of court judgements in favour of collective bargaining.
The Chairperson indicated that the delays in the review system need to be addressed. The Committee had requested a Department investigative report to address media reports of racism within the South African National Defence Force (SANDF) Academy in Saldanha Bay. Department representatives responded that they were not in a position to deliver such a comprehensive report. The Chairperson said this was unsatisfactory.
Military Legal Services (MLS) briefing
Rear Admiral D Smart alluded to the structural position of the MLS within the Department's Corporate Staff division. However, the MLS provided many services for which it was not structured, such as providing staff for United Nations posts. This contributed to the MLS being overstretched.
Another challenge was under-structuring. The MLS did not provide important services, such as an interpreter structure. In addition, law training had been a challenge. Persistent perceptions about the unconstitutionality of the Military Justice System needed to be dispelled. Poor personnel retention was a related challenge. The Chairperson commented that the fragmented nature of the MLS did not allow for a conventional career path and it thus had a limited appeal to potential employees.
The most common offences were peculiarly military in nature, such as absence without leave. In the last four years, the number of offences had reduced in relation to the reduction in the staff complement of the SANDF. Fraud, however, was increasing, with 91 charges reviewed in the last year.
Ministerial Task Team on Military Justice System
Ms. E Kubushi, legal advisor to the Ministry of Defence, briefed the Committee on this task team that has been commissioned to look into the Military Justice System. She provided the reasons for this commissioning, the mandate of the task team and its composition (see document).
Labour Relations briefing
The Chairperson said the Labour Relations Act need not be discussed. The Constitutional Court had recognised the rights of soldiers to engage in collective bargaining and thus it was taken for granted that there had to be trade unions in the SANDF.
Dr (Ms) Ledwaba, Chief Director: Human Resources, then briefly charted the history of collective bargaining in the Defence Force. Court decisions by Judge Smit and Judge Bertelsman had posed challenges for the Department. The Minister would be hamstrung in the execution of his powers. The approximately 80% of SANDF members who were not unionised, were 'held hostage' by the unions' stance.
Mr M Moulana Sayedali-Shah (DA) expressed concern at the high number of fraud charges brought against Brigadier-Generals and other high ranking officers. He wanted to know the exact nature of these charges.
Rear Admiral Smart said the charges were a result of plagiarism in examinations and misrepresentation of travel expenses.
Mr D Dlali (ANC) wanted to know who provided the structure to safeguard and manage the records of military trials.
R Adm Smart said the MLS provided the service. The MLS was not structured to provide this so it over-stretched MLS staff.
Mr M Booi (ANC) asked who selected Military Judges, and what criteria was used. R Adm Smart said personnel acquisition was the province of the Human Resources division. The MLS provided job specifications, and a Department selection board then assessed the suitability of candidates. Military Judges are assigned by the Minister of Defence on recommendation of the Adjutant General.
Mr B Ntuli (ANC) presumed that certain grievances went through the Military Ombudsman, yet this had not been mentioned in the briefing. R Adm Smart said there was a Senior Investigator responsible for the Military within the Public Protector's Office. The operation of the courts, and thus the MLS, was outside the investigator's jurisdiction.
The Chairperson pointed out that 300 cases had come before the Public Prosecutor in the last year, which was indicative of the failure of the Military to deal with its own grievances. It was important that a closed system like the Military dealt with grievances internally because the Public Prosecutor, and other external arbitrators, would not understand the Military. This was not good for the development of mutual trust and camaraderie within the SANDF.
Adv Z Madasa (ACDP) wanted to know if there was a ongoing training programme to make SANDF members aware of their rights. R Adm Smart said this was a challenge. There was a programme that sought to promote rights as much as possible, but the issue needed further attention.
Mr C Burgess (ID) commented that, in many of the Military cases with which he had been involved, the trial had been adjourned, so that the presiding judge could phone Pretoria for advice. The Committee expressed concern about this.
R Adm Smart said this was acceptable when the judge was phoning for information about the scheduling of senior judges or for collegial advice, otherwise this was not acceptable.
Mr Burgess was concerned that the Commanding Officers Disciplinary Hearings, part of the existing Military Court structure, was unconstitutional. R Adm Smart said that the Disciplinary Hearings constituted an admission of guilt procedure. An appearance before a commanding officer is determined by the accused and not by the prosecution. However, the Constitutional Court had indicated that the Forum should be chosen by the prosecution. This would be dealt with in future legislation.
The Chairperson asked how the vast majority of the Military staff not in trade unions, pursued their grievances.
Dr (Ms) Ledwaba said that Forums served this purpose, but that the effectiveness of these Forums varied greatly from area to area.
The Chairperson was concerned that the Military Arbitration Board (MAB) had the power to bind the Minister and the Government. He recognised the absolute necessity for collective bargaining, but said it was the right of the Minister to draw up general regulations. He did not know of a precedent for the MAB anywhere in the world and said the issue needed immediate attention.
The meeting was adjourned
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