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DEFENCE PORTFOLIO COMMITTEE
17 May 2005
WHITE PAPER AND DEFENCE REVIEW; ARMSCOR AMENDMENT BILL; SPECIAL DEFENCE ACCOUNT AMENDMENT BILL; MILITARY OMBUDSMAN DRAFT BILL: BRIEFINGS
Chairperson: Professor K Asmal (ANC)
Documents handed out:
White Paper on Defence and the Defence Review presentation 1
White Paper on Defence and the Defence Review presentation 2
Armaments Corporation of South Africa, Limited Amendment Bill [B14-2005]
Defence Special Account Amendment Bill [B15-2005]
Draft Bill on Establishment of Military Ombudsman: Second Draft of April 2005
Memorandum on objects of Armaments Corporation of South Africa Limited Amendment Bill
The Committee was briefed on the White Paper on Defence and the Defence Review. As these documents had not yet gone to Cabinet, they were not released. They were also briefed on the Armscor Amendment Bill and the Special Defence Account Amendment Bill which were due for tabling later in the week. The Committee agreed that the Armscor Amendment Bill should remove the Chief of Defence from Armscor's Board of Directors because of potential conflict of interest, but that the Secretary for Defence should remain. The Committee found the Special Defence Account Amendment Bill acceptable but requested that the explanatory memorandum be made clearer.
The Committee went over the latest version of the Draft Bill on the Establishment of a Military Ombudsman and agreed that their proposals from the previous meeting had been correctly captured. The Chairperson was keen to get this Bill approved by Cabinet and tabled as soon as possible as it was necessary that the Office of the Military Ombudsman be established. He believed that it might be tabled by November 2005.
The Chairperson reviewed the Committee Programme for the next month.
White Paper on Defence and the Defence Review
Mr Motumi, Deputy DG for the Department of Defence, Mr Naidoo, Director: Research and Analysis, and Dr Rakate, Deputy Director: Research and Analysis, represented the Department. They presented the White Paper on Defence and the Defence Review (see presentations).
Armscor Amendment Bill
Mr Njikela, Deputy Director, Department Legal Support, presented the Armscor Amendment Bill. The Armaments Corporation of South Africa, Ltd (Armscor ) was a procurement agency for the Department. The current amendments related to the Constitution of the Board of Directors. Currently, the Secretary for Defence and the Chief of the SANDF were both members of the board and the amendment proposed that the Chief be removed due to a potential for conflict of interest. Mr Njikela asked the Committee to consider whether they felt that the Secretary should be removed as well.
Mr V Ndlovu (IFP) said that he understood the removal of the Chief but not of the Secretary. The Secretary had to be aware of where money was going and should, therefore, remain on the board.
Mr M Shah (DA) said that the procurement division of the Department must be under the influence and control of the Secretary. If the Secretary sat on the board of Armscor, there could be potential for conflict of interest as he was in a position to influence decision-making, and he should therefore be removed.
Mr D Dlali (ANC) said that there seemed to be consensus on removing the Chief, but that he did not think that the Secretary needed to be removed. Instead of a conflict of interest, he would be looking at the interests of the Department in executing its responsibilities.
Mr S Ntuli (ANC) said that it was politically sensible to retain the Secretary and remove the Chief. Both were senior positions in the department, however if one of the two was removed from the board, the problem would be solved. The Secretary should remain to oversee the activities of Armscor.
The Chair said that the Minister, who was ultimately accountable, had to understand what happened on the board of Armscor because the civil control of purchasing was very important. The Accounting Officer was ultimately the DG. The Secretary was the most appropriate one to give the Minster briefings on particular purchases.
Mr Shah said that the argument that the Secretary needed to look after the interests of the Department could be used to justify the appointment of anyone to the Board. Appropriate reporting channels were in place, and he asked if they did not trust this institution to report and operate in the interests of the country.
Mr Ndlovu replied that they were not saying that they did not trust Armscor, but that the Chief was more directly in conflict in this matter. The Chief might have desires for certain arms but not have the funds and he would be open to a conflict of interest. However, the Secretary was a civilian and stood for the Ministry and was responsible for finances, so he had to be present. Both were trusted, but it was a precautionary measure.
The Chairperson said that there was no amendment being put forward for the removal of the Secretary before the Committee, therefore the discussion was unnecessary. The Committee accepted the bill as introduced and would confirm it when the Bill was tabled [on 20 May 2005].
Special Defence Account Amendment Bill
The Bill seeks to bring the principal Act in line with current legislation by replacing or removing obsolete references and procedures.
The Chairperson pointed to the Draft Explanatory Memorandum on the Special Defence Account Amendment Bill and said that it was unclear and confusing. He asked for a new explanatory memorandum to be drawn up and said that the Committee would not deal with this one.
Mr Njikela replied that they had assumed that the Committee would have the necessary background to the issue and had decided to deal only with the necessary amendment.
The Chairperson said that nothing should come to the Committee unless it had gone through the Secretary of the Department, but that had not been done.
Mr Njikela explained that both Bills had been submitted to the presiding officers of both houses under the signature of the Minister, and that the Secretary for Defence and the Minister were both aware of the content of the memos.
The Chairperson asked for an explanatory memo that they could understand.
Mr Booi (ANC) said that they had to be wary that they were not passing something that would not be of benefit in terms of capacity, so they needed to understand it better.
Mr Motumi said that they would withdraw the Draft Explanatory Memorandum and submit a new one.
Draft Bill on the Establishment of a Military Ombudsman
Dr H Corder, the Dean of the UCT Law Faculty, presented the Draft Bill on the Establishment of a Military Ombudsman. Dr Corder said that the amended Draft Bill being presented took into account the suggestions made in the previous presentation to the Committee and outlined the main changes to the document.
The Chairperson noted that the amendments had nicely incorporated the suggestions made by the Committee.
Mr Dlali said that in terms of qualifications for appointment, the Bill said that Parliament must recommend the individual. He asked if this did not limit the choice of the Minister.
The Chairperson explained that the appointment had to be made by Parliament and that this issue was not a drafting matter.
Mr Dlali asked for clarification on whether there was some contradiction between Clause 12 and Clause 7 in terms of which sub-clauses should precede others in the two clauses.
Mr Shah said to Mr Dlali that there was no contradiction as it was clear that one section laid out function and one laid out procedure.
Mr Ndlovu said that there was something missing. Clause 7 dealt with functions and Clause 12 with procedure, but he felt that procedure should come first. If one looked at Clause 7 first, it seemed that there were extra functions to conduct in the course of the investigation. They should start the process of investigation by looking at procedure, and then the functions should follow so as not to miss any procedural steps.
Mr Monareng felt that it was immaterial because the sections would act together and when it was being discussed, one could refer to either first.
The Chair said that there was a style that was usually followed in drafting legislation, but that things could be rearranged. The executive, not the ombudsman, took decisions, so the ombudsman could not usurp that power of the executive. He then referred to Clause 7(4) which said that the ombudsman may make recommendations to rectify and resolve matters through mediation, reconciliation and negotiation or any other means that would be expedient under the circumstances. He complained that this was too wide a definition and should be altered.
Mr Ndlovu noted that Clause 8(3) said that the ombudsman may refuse to deal with an issue and asked if that was correct.
The Chairperson replied that Mr Ndlovu’s question was an issue of procedure and that the ombudsman should be allowed to say that the issue was not in his terms of reference or it was too contentious. His own question had to do with the substance of the approach being taken.
Mr Shah said that he thought it would be useful to have the Department give some input on their opinion of the Bill.
Mr Motumi commented that it had been submitted to the Minister for his consideration.
Dr Corder said that the sections on procedure and function could be rearranged if requested. It was useful to distinguish between functions, procedure and jurisdiction. When reading the Act as a whole, it was coherent and was clear that there was no contradiction. Clause 7(4) could be amended according to the Chair’s suggestions.
The Chair asked them to also look at Clause 4(a). He thanked Dr Corder and said that once they had received the memorandum from the Minister, the Committee would recommend that the Bill was very necessary. They could not insert this into the Defence Amendment Bill as that was not on the horizon yet, and they could not wait that long. This Bill was very much in the interest of the Department and though they may not be able to pass it this year, it could go to Parliament by November.
The meeting was adjourned.
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