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JOINT STANDING COMMITTEE ON DEFENCE
1 June 1998
MILITARY OMBUD: BRIEFING; THEFT OF ARMS: DISCUSSION
Document handed out:
Briefing document on Military Ombudsperson (available below as an appendix)
The post of Military Ombud must be advertised as soon as possible even though the relevant legislation is not in place. The Public Protector will be responsible for the appointment of such a person (in close consultation with the Joint Standing Committee on Defence) as well as for providing the independent location of this office plus its funding. It will provide an external mechanism to deal with SANDF members' complaints, provide a channel for those who wish to blow the whistle on corruption as well as a place for the public to lodge complaints about the actions of SANDF members.
A written request for an urgent briefing on the repeated arms theft from a Free State military base will be made. A press statement will be issued by the Committee expressing their outrage at such lax repetition.
Mamatho Netsianda (Deputy Secretary for Defence) and Tshepe Motumi (Director: Human Resources Policy) briefed the committee on the new position of Military Ombud who would act as an independent referee and:
investigate complaints against the SANDF
Most importantly, to ensure independence, this person would reside within the Office of the Public Protector who would also be responsible for the Military Ombud budget.
Questions by committee members
It was noted by Mr T Goniwe (ANC) that the Public Protector was suffering from budgetary constraints already, so he doubted they could absorb the costs of the Military Ombud's administrative staff. Secondly, though the Military Ombud provided an external grievance procedure for Members of the SANDF, should there not be an internal procedure in place as first resort. The chairperson echoed the concern that the Military Ombud should have sufficient resources or else the effectiveness of this position would be impeded.
The Deputy Secretary of Defence replied that SANDF uniformed members are excluded from belonging to a union and from collective bargaining even though there was a union attempting recognition but this was not recognized by the SANDF and thus could not represent members at military tribunals.
The chairperson commented that the existence of a non-recognised union was causing problems and he thought there should be an alternative internal mechanism in place to deal with complaints around excesses, wages and administrative errors.
The departmental officials pointed out that members can use the normal command channels beginning with their commanding officer before turning to the external mechanism of the Military Ombud as a last resort.
The officials assured the committee that new legislation would ensure that the Military Ombud would have sufficient powers to do his job which would include the power to seize Defence Force documents. Both the Defence Act and the Public Protector Act as well as the Military Disciplinary Code would have to be amended to accommodate the Military Ombud.
A concern was raised that the Military Ombud would be in place but would not have accompanying legislation in place outlining the powers of this position. Chairperson Yengeni replied saying that the Military Ombud must be put into place as soon as possible and one cannot postpone this until the relevant Acts and Military Disciplinary Code are revised which would only happen next year. Mr Yengeni requested that the Department prepare a written document clearly outlining the powers of the Military Ombud as well as clearly spelling out the resources and funding for this office. Further the post must be advertised as soon as possible and the Committee must be involved with a transparent appointment process from the shortlist stage onwards.
The committee members agreed that they should be strongly involved with
the appointment procedure as they are aware of the type of complaints with which the Ombud would be dealing and know what qualities such a person should have.
A suggestion by Mr Yengeni that the Committee itself should be responsible for the appointment was rejected by Mr Selfe (DP). It was then agreed that the Public Protector would be the final appointer but that the amended legislation would reflect input by the Committee with the wording "the public protector in consultation with the Committee would appoint" especially as the Public Protector would not be attuned to the skills and aptitudes required for the position which the Committee would be.
It was agreed that the minimum requirements for the position should be a degree but not necessarily a law degree.
Looking at the function of the Military Ombud, Point 3D in the briefing document, Mr Yengeni felt that "maladministration" did not sufficiently cover the area of corruption and that corruption should be inserted there as well.
The Deputy Secretary of Defence felt that this might send a strong signal that there is rampant corruption in the SANDF and thought that the term "maladministration" would suffice.
The committee members did not agree and felt that an emphasis on corruption should be present and this would give a clear message that SANDF members have the right to blow the whistle on corruption.
Repeated Theft of Arms
Mr Molekane (ANC) expressed severe concern regarding a second incident of arms theft from the Free State military base. A briefing by the appointed Board of Inquiry was requested. Mr Yengeni stated that his verbal request for the Minister to brief the Committee on the issue would be followed up by a letter immediately.
He also felt that it should be a joint briefing from Intelligence, the police and Defence officials.
Further the Committee would issue a statement about their anger and revulsion that a repeated incident from the same base should have occurred. They would call on the Minister to act promptly and harshly with those responsible as well as those in command.
EXPLANATORY BRIEFING TO THE PUBLIC PROTECTOR ON THE JOB SPECIFICATIONS FOR THE INCUMBENT DESIGNATED TO OCCUPY THE POST OF MILITARY OMBUDSPERSON IN THE OFFICE OF THE PUBLIC PROTECTOR
1. The Department of Defence has completed its the task of outlining the job specifications for the envisaged section in the Office of the Public Protector to house the office of the Military Ombudsperson. The document is submitted herewith for your attention and consideration.
2. After lengthy discussions with relevant officials in the Department of Defence, which discussions centred mainly around the nature of the functions to be assumed by the incumbent to the post, the Department has determined that the post calls for an incumbent whose integrity is beyond reproach and who will not only earn the respect of the most senior military officials of the Department, but must have the authority and ability to call on their audience and cooperation whenever circumstances so demand. The high esteem attached to the future incumbent combined with the very high responsibilities attached to the post therefore deem it necessary to consider a post designation of equivalent eminence. The Department therefore recommends, and you are earnestly implored to consider, the official post designation for the Military Ombudsperson to be that of Principal Legal Administration Officer, that is the functional rank of Director.
3. Section A sets out the following functions of the Military Ombudsperson
a. To monitor adherence to democratic civil-military relations;
b. To render an external grievance procedure to members of the SANDF.
c. To investigate administrative actions taken against and reported by members of the SANDF;
d. To investigate suspected cases of maladministration with respect to
e. To investigate complaints against the SANDF by members of the public; and
f. To undertake investigations at the request of Parliament.
4. The incumbent shall report to and be answerable to the Public Protector.
5. Section B sets out a task analysis to the post, and to that end, lists the key performance areas applicable to the execution of the functions, the clients who stand to benefit from the outputs of each key performance area, the instruments which guide the execution of the key performance areas and lists the tools essential to execute the key performance areas.
6. Section C sets out the essential or preferable background necessary to fulfill the requirements of the post.
7. Section D lists the personality requirements and security classification level for the post.
OFFICE OF THE MILITARY OMBUDSPERSON
1. Identifiable Detail
Director (Military Ombudsperson)
a. Official Post Designation: Principal Legal Admin Officer
b. Rank Specification of Post: No military rank is essential
2. Work Content
a. Purpose of Post: To conduct investigations into complaints against the SANDF
b. Functions of Post:
i Monitor adherence to democratic civil-military relations
ii The rendering of external grievance procedure to members of the SANDF.
iii The investigation of administrative actions taken against and reported by members of the SANDF.
iv. The investigation of suspected cases of maladministration with respect to the SANDF.
v. The investigation of complaints against the SANDF by members of the public.
vi. Undertake investigations at the request of Parliament.
c. Task description per function
Monitor adherence to democratic civil-military relations at own initiative
or on complaints lodged.
lnvestigate grievances submitted by members of the SANDF against the Department of Defence, provided the interns dispute resolution mechanisms have been exhausted. In other words, the Military Ombudsperson is not an avenue of first instance.
Investigate cases of administrative actions against the SANDF which are reported by members of the SANDF on the grounds that such actions
a taken without proper authority, or contrary to sound or fair administrative practice, or the action was unfairly discriminatory.
Investigate complaints lodged by members of the public against the Department of Defence on grounds that an action was taken for unjustifiable exercise of power, or that it was based on erroneous information, irrelevant grounds or was as a result of negligence.
Undertake investigations at the request of Parliament.
d. Reporting mechanisms
To report to the Public Protector.
3. Bearing in mind the Purpose and Functions of the Post:
a. List the key performance areas (KPA's) applicable to the execution of the functions indicated:
i A grievance procedure for military personnel that is external to the
Department of Defence.
ii An approved plan of action iro which investigations will be conducted.
b. State to the benefits of whom/what the output of each of these KPA's are directed:
i Members of the SANDF
ii Members of the public
iii The Department of Defence
c. List main instructions which guide/authorise the execution of these KPA's:
i. Public Protector Act, 1994 (as amended)
ii Defence Act, 1957 (as amended)
iii Strategic management plans of the Department of Defence
Iv. Strategic management plans of the Public Protector
d. List aids/tools/equipment essential to execute the KPA's:
i. Desktop computer
ii Telecommunication instruments such as a telephone fax machine and voice-mail; electronic mail.
4. Development and Functional Courses - identify and indicate which development and functional courses are essential/preferable for this post.
5. Academic Requirements - indicate the minimum/ preferable academic
qualifications required for this post.
a. Minimum qualification: A three year degree in Law
b. Preferable qualification: LLB degree or equivalent qualification in Law
6. Special Skills - Identity and indicate special skills that are essential/ preferable
* Investigative skills: essential
* Negotiation skills: essential
* Military management and command virtues: preferable
7. Personality Requirements - Indicate and rate the applicable personality requirements needed for the post where 1=low and 5=high.
* Reasoning Ability: 5
* Mathematical Ability: 1
* Problem Solving Ability: 5
* Initiative: 5
* Inter-Personal Proficiency: 4
* Language Proficiency: 4
* Physical Skills Capacity: 2
PURPOSE OF POST (MILITARY OMBUDSPERSON)
TO CONDUCT INVESTIGATIONS INTO COMPLAINTS AGAINST SANDF
* Monitor civil-military relations
* Render external grievance procedure to members of the SANDF
* Investigate administrative action against/ by SANDF members
* Investigate suspected maladministration
* Investigate complaints against the SANDF by the public
* Investigate at the request of Parliament
Appendix A: White Paper on Defence
.. such other functions related to parliamentary supervision of the force as
may be prescribed by law [Section 228(3)(a) and (d)].
2.12 The SANDF shall perform its functions and exercise its powers solely in
the national interest by i) uplifting the Constitution; ii) providing for the defence of the Republic; and iii) ensuring the protection of the inhabitants of the Republic [Section 227(2)(a)
2. 13 The SANDF shall perform its functions and exercise its powers under the directions of the government and in accordance with the Constitution and any law [Sections 227(2)(a) and (b)].
2.14 The SANDF shall conform to international Iaw or armed conflict which is binding on South Africa [Sections 227(2)(d) and (e)].
2.15 The SANDF shall refrain from furthering or prejudicing party-political interests, and no member of the regular force shall hold office in any political party or organisation [Sections 227(2)(c) and 226(6)].
Authority and powers
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