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JOINT STANDING COMMITTEE ON DEFENCE
8 September 1998
DEFENCE ACT; MILITARY DISCIPLINARY CODE: BRIEFING
Admiral Retief, General de Klerk and Advocate Kuswayo briefed members about the drafting of a new Defence Act as well as the separate document, the Military Disciplinary Code. The Minister wishes to introduce the new Defence Act legislation before the election next year.
Admiral Retief, a member of the working group responsible for drafting the Bill, briefed the committee.
Elements of the envisaged Defence Act
The Act focuses on the Department of Defence and the civic control of the department.
Looks at :
the redefinition of the department and what its elements are.
employment and the use of the Defence Force: they are busy discussing this in the workshops.
direction of defence function, that is, the terms of employment of people, rights and privileges etc. training
state of emergency or war - how to handle these.
discipline for offences like spying etc. This should be separated from the military code of conduct.
how to handle visiting forces.
It was requested that three members of the committee serve as members of the new work group to participate, assist with guidance and listen to arguments debated.
The Chairperson wanted to know the time frame for the completion of the Act. Mr Retief said the Minister would like the Act tabled in parliament next year. The first draft bill should be ready by the end of January next year.
The Chairperson raised a concern about members of parliament joining workgroups. He said since the parliamentary schedule is busy these members will not be able to give of their best in the workgroup. He said if members think they will be able to cope then they can join.
Mr Retief said that the department lacks a political input so it would be important for committee members to participate.
Mr Marais (NP) suggested members should join the workgroup. He said the National Party would like to send two members. Mr Molekane (ANC) agreed with the National Party on this though he understands the position of the chairperson. He said they should seize the opportunity so they can keep in pace with the workgroup.
After the briefing, the chairperson opened the floor to the house.
Mr Makwetla asked two questions.
1) Concerning time frames, he needed information on what exactly is going to happen next year. Is the Act going to be finished before the elections or after the elections?
2) What is the business of today’s meeting? Are we focusing on the military disciplinary code which is part of the Bill or not?
The chairperson replied that the Act will take quite a long time to finish. He suggested that the Bill be introduced after the next elections.
Concerning time frames, Admiral Retief said he was not sure whether the Act would be ready by February next year. He said the Minister desires to present the Act before elections.
Military Disciplinary Code
At this stage Advocate Kuzwayo was asked to brief the house on the Military Disciplinary Code.
She said the purpose of the MDC specification is to facilitate discussions. The language used in the document has been kept user friendly.
Input has been invited from members of civil society. She said the Defence Act will be a principal driver of the Military Disciplinary Code but these are separate documents. The new MDC provides for an appeal mechanism to be introduced. It will also deal exclusively with administrative and military justice.
What still needs to be debated is the extent to which jurisdiction of the MDC can be extended to civilian members. The Advocate said there is a list of proposed offences in the MDC including, amongst others, serious offences - offenders will be tried by court marshalls and new offences - war crimes, racism, improper fraternisation etc
Admiral said the workgroup has not yet deliberated on the MDC which has to be soon so that they make sure they do not deviate from the constitution.
He also made mention of a new concept of correctional custody. The chairperson asked if there will be special prisons for soldiers. The Admiral said that imprisonment is the severest punishment now in SA since there is no death penalty. He said nothing new will be established in terms of prisons. Detention barracks are being used at the moment.
A committee member wanted to know current views concerning MDC versus constitutional provisions. What happens if one refuses to carry out an order?
Mr Loots said if SANDF is controlled by civilians, when does this change? Outside the borders of the country or inside? The Admiral said in answering Mr Loots there are a number of offences defined in the Defence Act that apply to civil and military members. The MDC only applies to certain military members.
Admiral Retief asked General De Klerk to talk about insubordination and refusal to carry out orders and commands in answer to the questions asked. Gen. De Klerk said that there will be provision so that soldiers obey. Disobedience is punishable as a separate civil-related offence.
It was asked what happens in the event of war where a soldier refuses to accept an order especially outside the borders of SA where there are no detention facilities?
The Admiral said that in cases where you have military versus military there will be a military trial. A military court should also exist to try senior officials inside the borders of SA as well but this should not be an easy decision, there should be a good reason for this. He said the responsible person involved in corruption, theft etc should be brought back and tried here in SA.
The chairperson asked what happens in an event where an intelligence officer runs over to the enemy forces to give them information that might endanger the lives of the SA soldiers during a war. Gen. De Klerk said that will be an offence which should be handled by a court martial.
A committee member said the law of this country provides for self defence and if a soldier endangers the life of another soldier, that soldier has a right to defend himself even to the extent of shooting down the person in question.
Advocate Kuzwayo said there are laws of armed conflict which seek to balance military necessity with humanitarian considerations. If there is no other way of stopping the soldier in the above example then other means can be tried like warning shots before shooting the soldier down.
Mr Loots asked how will the law defends the person who shoots the soldier and what will be done with the commander of the army who gave the command.
Gen. De Klerk said the commander will have to rely on common law, for example, self defence. Common law should be searched to see if it provides in such an event and if it does then there is no need to worry and even think about these uncommon incidents.
The chairperson wanted to know about improper fraternisation. Admiral Retief said that improper fraternisation has to do with the relation across rank lines which could confuse the chain of command. An example is a commander/officer who takes soldiers to a bar.
The Admiral proposed that sexual harassment, racism etc. should be in Defence Act and not in MDC since these crimes can be committed by both civilians and soldiers.
Mr Molekane asked what it means that military and criminal justice systems have to be aligned. He asked what this entails.
In answering Mr Molekane the Advocate said the question here is recognition and coordination of services. A person who has committed an offence must not be tried twice, that is, in the military court and in the civilian court. She said coordination is very important here.
Mr Makwetla said a comparative study needs to be done to see what other countries do in relation to aligning military justice with the constitution.
The Admiral said a comparison was made last year and the results were made available. He said the department's officials were not constitutional experts but have a number of legal people to advise in this regard. He advised people to attend workshops to learn more about the act.
Mr Molekane said there is a problem when the military refuses to allow the police investigate a case/s affecting the community, for example, theft of weapons from a military base. How do you solve this? The Admiral said that even if the military deal with a particular case, for example, military member stealing military weapons, police are contacted and from his experience, the police are always willing to assist.
A committee member asked about the relationship between the military and the police and the set-up between the two. He asked what the military police really is.
Admiral Retief said the military police is a police agency inside the Defence Force. These people do work outside the Defence Force and can take statements from the community. He said SAPS deals with civil criminal offences.
It was asked to what point in jurisdiction process can military police act and what are their powers. What is regarded as of military interest and of public interest?
The Admiral said that after military police deal with a case they hand over dockets to the police. If any matter is civilian in nature it is forwarded to the Public Prosecutor.
Mr Loots asked what happens in terms of legislature if a group of guerrillas fight inside the Defence Force.
Admiral said they will have to look at the status to afford the guerrillas whether it be international or internal. He said they will have to look at the common article three of the Geneva Convention and Protocol Two for internal conflict situations and establishment of control of such group.
Mr Molekane raised his concern about the so-called trade unions within the army that challenge the military code and certain cases that have already been handled by court martials.
The Admiral said the White Paper On Defence states very clearly that members of defence should not be members of any union whatsoever. He said they are concerned about the challenge of the legality of court martials and are working hard to ensure that such concerns are not valid in future.
The chairperson asked how long are people detained in the barracks.
The Admiral said there are two types of detentions:
1) serving of sentence for correctional measures
2) in custody awaiting trial
He said the maximum detention period is two years.
He said the Defence Act does not allow for the setting of bail. This needs to be discussed.
The chairperson asked if there is any supervision from outside to see if conditions are all right in the barracks and if there is no ill treatment.
The Admiral said there is no independent body to do that but it is the command line that is responsible for monitoring the situation. He said there is nothing at this stage to be concerned about since he visited the barracks shortly. He added that the female facilities for women are not in good condition but something is being done to rectify that. There is only one female in detention in Bloemfontein.
The chairperson said there have been many complaints by members of the Defence Force about ill treatment in the barracks. He said this should be noted. The Admiral agreed to note this down.
The chairperson thanked the Admiral and asked members to appoint representatives for the work group. It was suggested that this be done outside the meeting. The meeting was declared closed.
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