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DEFENCE PORTFOLIO COMMITTEE
28 August 2001
NATIONAL CONVENTIONAL ARMS CONTROL BILL: BRIEFING
Chairperson: Ms T R Modise
National Conventional Arms Control Bill : Second draft
Conventional Arms Control Bill [B50-2000]
Previous meeting on Bill - 12 September 2000
The Committee met to discuss changes to the Bill, now in its Second Draft, which had been suggested in the initial discussions relating to this Bill.
Ms Modise recounted the initial discussions on this Bill. She said that when the Bill first came before the Committee is was riddled with shortcomings. She complained that the language was bad and rendered the Bill extremely hard to read and understand. There were a number of gaps in the Bill as it was not in sync with other policies of the Government.
Ms Modise said that despite what had been said by the media, there was discussion between the Committee and the Department of Defence, to the effect that the Bill needed to be reworked. After talking to Mr K Asmal, Chairperson of the National Conventional Arms Control Committee and Minister of Education, the Bill was indeed reworked.
At this point Ms Modise welcomed all the members of the Committee. She however also stated that for once the Committee would be taking serious action against those members who saw fit not to attend the meeting. She said that disciplinary measures would be used regardless of which party the relevant members belonged to. This would be with the exception of two members who were attending to other Defence matters.
Ms Modise handed over to Mr Allan Taylor, Special Advisor to the Minister of Education, and who was responsible for overseeing the changes made to the original Bill. The amended version of the Bill would be made available shortly.
Mr Taylor pointed out that the introduction had been changed to include a preamble. He said that this was a fairly substantial change which positioned the Bill internationally as well as within South African legislation.
Chapter 1: Definitions, Committee and Secretariat
In the definition section, the definition of "brokering services" has been changed to include people who acted as 'middle-men' or agents. This amendment was done to fill a gap which had been pointed out by the Committee.
Mr Taylor pointed out that the definition of "conventional arms" had been amended to include 'dual-use' goods. If articles were not necessarily used as weapons but could be, then they too were subject to the Bill. This amendment was included to address the concerns of the Committee.
The next amendment was contained in clause 1(9)(b) where the definition of "export" had been changed to include goods or items which had been exported out of South Africa on a temporary basis. This temporary exportation could be for a number of reasons, such as for demonstration or sample purposes.
The next substantial change was that to clause 4(1)(g). This clause provides that the Committee established in terms of the Bill has to "submit quarterly reports to the Cabinet and the appropriate parliamentary oversight committee concerning the control and regulation of conventional arms and the provision of services."
Clause 8 relating to the secretariat had also been changed. In the original Bill it had been envisaged that an inspectorate be established which would be a part of the secretariat. Under the new position the inspectorate is to be separate from the secretariat. This is desirable as it is in keeping with the principles of separation of power. If it were not so, then the secretariat would effectively be watching over itself.
Chapter 2: Control and Inspection
The drafters had made the language simpler and easier to read. Mr Taylor noted that clause 13 was an entirely new one which had been requested by the Committee.
Mr Taylor said that the guiding principles and criteria embodied in clause 15 have been developed over a number of years and are internationally accepted.
The clauses relating to inspection had been cleared up. The drafters in consultation with the South African Police Service had formulated new clauses relating to warrants and the role they play in the area of entry, search and seizure. Mr Taylor said that they had 'tightened up' this area. The clause on self incrimination had been removed. This had been done so that the ordinary law relating to his matter would apply. The Duty to Give Reasons in the original Bill has also been removed from the second draft. This was done because sometimes information would be obtained from intelligence sources. To protect certain people or operations, information would sometimes be highly sensitive and in these circumstances reasons could not be given.
Mr Taylor said the language had been improved. Clause 25 has been included in the new Bill to provide for the situation where someone commits what is a crime under the Bill, but in another country. The Bill now provides that these people who perform acts forbidden under the Bill outside of South Africa are still guilty of an offence under the Act. This was in keeping with an international trend which is currently being implemented throughout the world. A recent example given by Mr Taylor was of a English citizen who on his return to the United Kingdom, had been convicted of sexual abuse of a minor, an act he had committed while in Thailand.
Mr Taylor said the last change was that to the name of the Bill. As the Bill is to provide for the establishment of the National Conventional Arms Control Committee (NCACC), it should thus be called the National Conventional Arms Control Bill.
Mr H Schmidt (DP) asked why the duty to furnish reasons had been included in the original Bill and then removed.
Mr Taylor said that the inclusion of this provision in the original Bill was perhaps the result of an over zealous administration. Once again Mr Taylor used the example of acting on information of a sensitive nature. In this case it would not be possible, or at least wise, to give reasons. Mr Taylor said that this new position was a result of the fact that the drafters would prefer to provide for a safer position.
Ms Modise interjected saying that it is not a bad thing to provide for a safer position. The Constitution provides for transparency and the furnishing of written reasons where this is necessary. However the right to reasons can be overridden when it in the best interest of national security to limit these rights. Ms Modise said that if one wants to be as politically correct as possible then one has to walk a fine line between providing for transparency and national security.
Mr L Ngculu noted that the Bill would provide for the establishment of the NCACC and the potential appointment of a number of people. However the Bill did not provide for the disclosure of a conflict of interests when it came to the appointment of people.
Mr F Marais, Director of Conventional Arms Control, said that such a section was not included because it might hinder the President's power to appoint someone he feels best suited to be Chairperson of the NCACC. However, this principle would underpin the entire Bill.
Ms Modise said that in the light of the recent occurrences in South Africa, perhaps such a course of action is necessary and it would be best to specifically provide for this area.
Mr Taylor replied that the drafters would provide for this in drawing up the third draft.
Mr Ngculu said that it seemed as if all the activity would occur under the auspices of the secretariat. He wanted to know if his interpretation was correct, and if so, why.
Mr Taylor replied that Mr Ngculu's interpretation was correct as it was envisaged that the NCACC would make decisions political in nature and the secretariat would then carry out these decisions. The secretariat would thus have an executive function while the NCACC would have a political or policy function.
Mr Ngculu referred to the clause which provided for the appointment of the inspectorate. It provided that people 'suitably qualified' be appointed to the inspectorate. He said that the clause should be changed to expressly provide that the words 'suitably qualified' did not exclude previously disadvantaged members of society from getting such a job. Ms Modise then asked what the phrase 'suitably qualified' meant.
Mr Taylor said 'suitably qualified' was in relation to what the NCACC requires. Mr Marais interjected here explaining that the inspectorate would not be a permanent body and would thus not employ anybody on a permanent basis. What is instead envisaged is the hiring of individuals or organisations on a case-by-case basis. Each situation will be considered and once the NCACC has established what it needs investigated, it would hire an individual who specialises in the relevant field. The inspectorate could thus comprise of a private detective, the police or any other individual who is 'suitably qualified' to carry out the function required in the given set of circumstances.
Ms Modise pointed out that clause 6(1) stated that the Chair should determine the time and place of meeting and then make it known to members timeously. Ms Modise said that 'timeously' is relative and can be regarded as a week by one person and one day by another. She said that this concept should be elaborated on, or even an exact amount of time provided for in the Bill.
Mr Marais replied that it would depend on the institution, but the time frame could also be elaborated on in the regulations. He said that usually these meetings took place at the same time as Cabinet meetings.
Mr Ngculu said that he found no reference to the status of another government. There was no definition taking into account the status of another government when considering the granting of a permit. Mr Ngculu used the example of Burma.
Mr Taylor said that this concern was accommodated for in clause 15 dealing with guiding principles and criteria. The clause provides for the consideration of applications on a case by case basis, taking into account matters such as the safeguarding of national and security interests of the Republic and those of its allies. There are a number of points in this clause which more than adequately provide for the area which Mr Ngculu had thought unchecked.
Mr Schmidt commented that the Bill did not provide for the contents of the quarterly reports. He said this should be remedied.
Mr Taylor said that the detail of the report would have to be decided on in consultation with the two Committees involved.
Mr Schmidt said that he had a media release detailing the total export of arms from South Africa in 1999. It detailed the amounts in each of six categories of arms and to which country these had been exported. This was for the year 1999, making it nearly two years old. He wanted know if a similar more recent report could be expected in the near future.
Mr Taylor replied that there had been a problem with the report for the year 2000. However the problem had since been resolved and the report checked and rechecked and it would be released by the end of September 2001. The report would be presented in the same format.
Mr P Schalkwyk (DP) asked a question relating to practicality. He wanted to know how the Bill would influence the arms exportation process. His concern was that the delay in approving contracts would result in the loss of business for South Africa, especially where arms are needed quickly.
Mr Marais replied that the average political approval takes about 43 days. Once this process is completed, it takes eight days to issue the permit. The position under the new Act will not increase the administrative burden and the process will be subject to no more bureaucracy than it is now. In addition to this, the Bill provides for the calling of extraordinary meetings to provide for those instances which may require immediate or faster approval.
Mr R Jankielsohn (DP) expressed a concern that the dual-use provision would impose a too onerous position as many items that would more than likely not be used as weapons, would fall under the dual-use provision. He gave the example of intellectual property that would not be able to be exported in light of this provision.
Mr Russouw, a member of the drafting team , said that this concern would be addressed through the regulations which would provide in detail for what would qualify as a dual-use item under the Bill.
Ms Modise said that she could understand most of the section relating to warrants, but could not understand the portion that provided that the warrant must be 'affixed' if there is nobody at the site of inspection.
Mr Taylor assured her that this provision was sound. The provision was formulated in consultation with the SAPS and that affixing a warrant in the absence of someone to present it to, was standard operating procedure.
The drafters will now incorporate the amendments suggested in this meeting into a Third Draft.
Ms Modise commented that the drafters had done well in redrafting the Bill. She specifically mentioned that the language had been vastly improved. Also the substantial changes recommended by the Committee had been reflected in the new draft. She said this was important in light of the fact that the media had recently made representations that the Committee had erred in its duty. She commended the drafters on a job well done and adjourned the meeting.
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