Defence Act - Military Disciplinary Code

Defence

23 February 1998
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JOINT STANDING COMMITTEE ON DEFENCE

JOINT STANDING COMMITTEE ON DEFENCE

24 February 1998

DEFENCE ACT - MILITARY DISCIPLINARY CODE

Departmental officials present: Rear-Admiral JF Retief & Commodore Smart

Document handed out: Draft copy of the Military Discipline Code (MDC)

Rear-Admiral JF Retief briefed the Committee on the document handed out. The Defence Bill is expected to be completed mid-1998. The Military Discipline Code (MDC) is ready in draft form. The Minister is expected to approve the draft after which it will be distributed to Committee members. The meeting of the Committee on 23 March 1998 will discuss the draft. Retief recommends that the MDC shall stand alone as an act. This has the advantage that it is more easy to change it in future than when the MDC is part of the Defence Act. Similar documents as today's handout will be produced on the Defence Act, each chapter separately.

Mr Yengeni asked what is to be achieved with the document.

Rear-Admiral Retief replied that it is a user friendly document (couched in layman's terms) and that at a later stage the contents will be written in legal language.

Mr Selfe (DP) commented that if the Defence Bill is dealt with chapter by chapter, one could not see the whole, but only a summary of parts. He asked whether the MDC was drafted on the old MDC or drafted afresh without looking at the old one.

Commodore Smart replied that international law was used to draft the new MDC and that the Act should be accessible and therefore easily written.

Mr Loots (ANC) commented that 'persons held by the SANDF' in times of national defence needs to be clarified.

Commodore Smart answered that the Geneva Convention defines categories of people who were prisoners of war.

Mr Yengeni commented that it would be helpful to know the MDCs of other countries. This way Committee members could give better input into the MDC.

Mr Loots commented that state lawyers were reluctant to adopt international law into our own law.

Commodore Smart replied that the document was drafted on the basis of international law.

Mr Mashimbye (ANC) commented that abuse can happen in field punishment and that safeguards are needed.

Commodore Smart replied that punishments must be defined and that the drafters had looked at a few MDCs of other countries before drafting this one.

Rear-Admiral Retief said that suitable copies of MDCs of other countries will be made available to Committee members.

Ms Kota (ANC) asked whether the MDC will apply retrospectively (those who were punished through the old MDC) and whether issues of sexual harassment, sexual orientation, the question of language and the right of appeal have been dealt with in the MDC.

Rear-Admiral Retief said that there was no provision for the MDC to apply retrospectively but he will look into this matter. Sexual harassment is dealt with in the MDC. The MDC does not look at gender equity or sexual orientation as these issues are clarified by the Constitution.

Ms Thandi Modise (ANC) asked whether fraternisation was defined by the MDC.

Rear-Admiral Retief said that fraternisation across levels of command was problematic as this does not serve the chain of command.

Mr Yengeni said that grievance procedures are not dealt with in the MDC, but in the conditions of employment.

Mr Loots commented that it seemed to be a contradiction in the MDC in that provision is made for the confirmation of a sentence and the review of a sentence. Or are both the same thing?

Commodore Smart explained that confirmation of a sentence is the first review of the sentence and the review of a sentence a judicial review of the sentence thereafter.

Mr Yengeni closed the meeting urging Committee members to come prepared for the next meeting on the MDC (23 March 1998).

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