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JOINT STANDING COMMITTEE ON DEFENCE
8 February 1999
DRAFT DEFENCE BILL; MILITARY DISCIPLINARY CODE; MILITARY OMBUDSMAN: BRIEFING
Draft Defence Bill
There were complaints from committee members as to why the detailed specifications had not been tabled and only an Index of Specifications (at end of minutes) had been supplied. General Ishmael replied that it appeared no time had been allocated for the passing of this bill in this parliamentary session. Therefore instead of creating what amount to unnecessary paperwork, it was decided to treat the matter on a verbal basis at this meeting.
Ms Kota (ANC) and Mr Selfe (DP) objected strongly. General Ishmael said he was prepared to supply this documentation though he had first to let the Minister have sight of this in order to obtain ministerial approval. The Committee approved this as it would give them ample time to inform themselves and be ready to take decisions when the draft bill was eventually tabled for discussion (most probably July 1999).
Military Disciplinary Code
A recent High Court decision had found certain sections of the Defence Act, that is, the Military Disciplinary Code, to be unconstitutional. As a result a moratorium had been declared on certain cases until such time the new legislation has been put in place. It was therefore extremely urgent to put ‘emergency’ or ‘stop-gap’ legislation in place. If deemed advisable, when the new Defence Act was put before the Committee, the necessary amendments could be made and the Military Disciplinary Code once again included in the Defence Act.
Adv Kuzwayo took the committee through the findings of the High Court:
The convening authority has arbitrary powers (is part of the decision-making process in the military court) which is unconstitutional.
Courts are held in camera.
The prosecutor has no discretion to withdraw the charges without the authority of the convening authority.
The existing Act says that members of the court do not necessarily have to have legal qualifications.
The accused has no right of appeal.
No period of grace was granted by the High Court judge, hence the need to proceed urgently with the necessary legislation. Mr Selfe said that also in the interest of individuals awaiting disciplinary action, the time factor was of importance.
General Ishmael said that the Department hoped that within this week the Military Disciplinary Code Bill would be put before the Committee. It then has to be taken to the CCSI and then on to Cabinet. He continued by saying that this so-called ‘emergency’ legislation was very "workable" and he was confident that the Constitutional Court would approve of it in its new form.
There appeared to be general dissatisfaction with the post as advertised by the Public Protector’s Office. The committee had previously agreed that the appointee would fall under the jurisdiction of the Public Protector’s Office. The Acting Chairperson, Ms Modise, said the advertisement read as if "a clerk" was being sought and not as envisaged: a person of considerable military experience and knowledge.
Arising from this discussion it was felt that the whole situation needed to be re-assessed and Mr Mashimbye (a committee member who had been party to the Public Protector’s interviewing process) was asked to brief the Committee. The briefing was held in camera.
Appendix: INDEX OF THE DEFENCE ACT SPECIFICATION INDICATING THE PROGRESS ON COMPLETION OF 22 JANUARY 1999
[Ed: Status of each of the following items is indicated as complete except for those marked with an asterisk]
Application of the Act
Organisation of the Department of Defence
The Department of Defence
The Defence Secretariat
The Defence Force
The Employment and Use of the Defence Force
Employment and use of the Defence Force
The Military Police
The conduct of Defence Intelligence
The Defence of the Republic
Powers of the President in respect of the Defence Force.
Powers of the Minister in respect of the Defence Force
Powers, duties and functions of the Secretary for Defence
Powers, duties and functions of the Chief of the Defence Force
The Council of Defence
The Defence Staff Council
The Reserve Forces Council
Rights and Privileges of Uniformed Members
Employment in the Defence Force
The Regular Force
The Reserve Force
Employment in the Defence Force
Officership in the Defence Force
Pay and Entitlements
Determination of Pay and Allowances
Liability to Serve in time of War or during a State of National Defence or during a State of Emergency
Termination of Service
* Membership of Labour/Trade Unions or Professional Groupings
Ceremonial, Decorations, Medals, Flags and Accoutrements
Legal Assistance in Prosecution
Sport in the Defence Force
Religious Observances in the Defence Force
General Administration and Support
Applicability of Regulations relating to conditions of service
Protection of Defence assets
Non-liability of Department
Right of recourse in respect of expenditure for injuries of members
Indemnity in respect of trespass and nuisance
Legal proceedings against the Minister of Defence
Provisions applicable in War or during a State of National Defence or a State of Emergency
*Where service is to be rendered
Discipline, Offences and Penalties
Application of the Military Discipline Code
Detention and Custody
*Offences and Punishments [see note 1 below]
Visiting and Other Forces
Forces operating in concert with one another
1. The offences regarding membership of, recruiting for, inducing unions await discussion of the trade union section [par 33].
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