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JOINT STANDING COMMITTEE ON DEFENCE
19 September 2001
MILITARY OMBUDSMAN: BRIEFING
Chairperson: Mr J Mashimbye (ANC)
The Committee was expecting to be briefed by the Military Ombudsman but found that there was in fact no independent Military Ombudsman but rather a senior legal administration officer working in the Office of the Public Protector. This person is responsible for dealing with the complaints of SANDF members. He will reappear before the Committee again soon once he has submitted a comprehensive written report.
Introduction by the Chair
It was the initial view of the Joint Standing Committee that the Military Ombudsman must not be situated in the Office of the Public Protector. The Committee had then been persuaded that the Ombudsman should be placed there. The Office of the Public Protector had also argued that the Ombudsman must be part of its office to prevent having numerous "offices of a Public Protector" and thereby duplicating functions. The Committee was now wanting feedback to see how the role of Ombudsman is working and if it has lived up to the requirement of providing relief for SANDF members. When a delegation representing the Committee had visitied Germany, they had seen how the Office of a Military Ombudsman should function and the members believe that South Africa has a long way to go.
Report from Office of the Public Protector
Mr Dave Scroobie began by noting that the Military Ombudsman is not before the Committee because there is no such person. He is a Senior Legal Admin Officer who is the senior investigator responsible for military matters. Mr Scroobie referred to the minutes of a June 1998 Committee meeting that stated that an Ombudsman must monitor civil and military relations, provide relief for members of the SANDF, investigate administrative action taken by the Defence Force, investigate maladministration and to undertake investigations at the request of Parliament.
In the Ministerial Commission of Inquiry report it is reported that a witness had testified that "they never got an Ombudsman, they got something less". Mr Scroobie said that this could not be disputed.
The Chair advised that the report referred to is not yet before the Committee who will only have insight into it in the first week of October.
Mr Scroobie continued and said that the German Ombudsman only acted on parliamentary instruction or on own initiative. But he had to deal with all types of complaints even if it has no basis.
Currently personal matters are dealt with such as pension and salary disputes and not matters of principle such as leadership in the military.
The Canadian Ombudsman had communicated with Mr Scroobie via email and from this he has seen the types of matters that are dealt with in Canada. Gender discrimination and sexual harassment cases are among some of the matters dealt with. There was also an investigation into Post Traumatic Stress Disorders. In Canada the Ombudsman receives a budget and a staff equivalent to that received by the National Public Protector. This country therefore has a long way to go to get to the level of Canada and Germany.
Mr Scroobie spoke of the excellent co-operation he has received from the Ministry of Defence. He had never had to complain to the Minister of Defence that his officials do not respond to enquiries. This was unlike other Departments where he had to send letters signed by the Public Protector to inform the relevant Minister that enquiries had not been responded to and warning that a subpoena would have to be issued if this continued. He said that it was ironic that the Department of Defence is the most transparent department when it comes to getting the information and finalising investigations. It was very rare that he has to request further and better particulars because the response was thorough and transparent.
When visiting units in South Africa Mr Scroobie had found that verbal abuse was rife. Soldiers were targeted with verbal abuse that was demeaning and levelled at the soldier in front of the whole infantry. In his opinion, this kind of behaviour had led to the Phalaborwa incident because the deceased had belittled, abused and defamed individuals in front of the whole company. The abuse is not levelled at groups but at individuals.
His office had received a complaint of from Amnesty International relating to the deployment of SANDF members in Kwazulu Natal (KZN). There have been incidents where SANDF members have committed various crimes for which they are facing charges in the courts. His office found that the SANDF plays an important role in confiscating weapons and ultimately relieving the pressure on the police. However, it has been found that commandos are not the appropriate persons to conduct search and seizures because they often act improperly.
He noted another area of concern was medical facilities. Up until 1995 the SANDF had excellent medical facilities but after budget cuts, medical facilities have deteriorated. In the Eastern Cape and KZN there is no military hospital nearby so people often have to wait up to three months for specialist care.
Complaints from SANDF members:
1996 - 54
1997 - 74
1998 - 86
1999 - 273
2000 - 223
2001 - To date only 92
Public awareness campaigns, the deliberations by Parliament and publicity by the Department of Defence is the reason for the increase in complaints for the first few years.
The statistics for 2001 show an alarming drop. The reason for the drop is that Mr Scroombie had been very busy with the arms deal inquiry in the first half of the year. He could not take calls and the initial call was an important part of the complaint process. He suggested that about 30 complaints had been lost because he could not take the initial call. Many complainants then go to the Human Rights Commission (HRC) and since the establishment of the regional offices of the Public Protector the complainants rather go to the nearest office.
The Ministry of Defence as well as the Minister try to handle complaints addressed to them themselves. They and the HRC make the same mistake in that the enquiries are directed at the wrong level. The Department and the Minister do not have the capacity to deal with the complaints and they should be referred to the Public Protector.
Despite the problems of morale and racism, Mr Scroobie felt that training and operations conducted by the SANDF are of a very high standard.
The major failures mentioned by Mr Scroobie are that he had failed to regularly report to Parliament, he had failed to advise Members of Parliament in relation to defence legislation and that he could have played a more pro-active role in giving such advice. There were a few complex personal complaints that have taken a long time to investigate. However 70% of all investigations were quickly resolved.
The achievements are that he has a good relationship with the Department of Defence which freely provides access to people and information. The Department transports, feeds and houses him when visiting bases and in fact treats him like one of the Lieutenants - General. He would not have been as successful without the help of the Department. In addition to this Mr Srcoobie said that he has made recommendations in regard to personnel policy and drafted guidelines that the Department has used. For example, six bulletins had been released informing the public how the 'freedom of access to information' provisions apply to the Department and providing names and telephone numbers of the information officers.
Mr Scroobie said that the reality is that the country has a senior investigator in the Office of the Public Protector that deals with military matters but who also deals with other matters. For a Military Ombudsman to be effective, it would need someone at least at the level of director. He asked the Committee if it was still looking to establish the institution of an Ombudsman and if so, where it would be placed. He takes a keen interest in military matters but he was not sure that his successor would have the same interest.
It was Mr Scroobie's view that the Public Protector Act makes provision for Deputy Public Protectors but for principle reasons there are no such deputies. The deputy would have the same powers as the Public Protector and perhaps one of the deputies could be the Military Ombudsman who would concentrate only on military matters. The other route would be to have an Ombudsman as a separate office,
Questions and comments by members:
Mr Mashimbye (ANC) asked how his work is affected by having his office situated within the Office of the Public Protector. He asked about the capacity of his office because surely if he is not there, the office still has to function.
Mr Scroobie said that the Public Protector is an institution of last resort. The complainant must first exhaust all internal grievance procedures. A report and comment procedure is followed. The complaint is received and the respondent is asked to comment and thereafter the complainant is asked to comment. The present situation is that he deals with other matters and if it involves scrutinising legislation, regulations and policy then it is difficult to devote sufficient time to military matters. A person dealing with the complaints from the military should be able to devote at least 90% if not all of their time to that task.
Ms Modise (ANC) said that originally the Committee had said that it would not accept anything less than a Military Ombudsman and it did not want a Senior Legal Administration Officer. She was shocked to hear that the Department transports, feeds, houses and treats Mr Scroombie as a Lieutenant General. His duty is towards the rank and file and it is no wonder the number of complaints have decreased because they cannot trust someone who they see rubbing shoulders with the persons they are complaining about. Regarding medical facilities, she commented that it was not the facilities that healed people but the doctors. If the doctors cared enough, the people will be healed.
Mr Mabete (UDM) asked what was Mr Scroobie's involvement in the writing of the Ministerial Commission of Inquiry report.
A member asked about the constitutionality of the military courts because there was a concern that the court process is being used to get rid of non-statutory members.
Mr Bloem (ANC) queried the status of the committee meeting because the Military Ombudsman was to appear before the Committee but there is no such person. He noted that Mr Scroobie was unhappy that the Minister investigated some matters on his own and asked if this point had been raised with the Minister.
Ms Kota (ANC) requested that a return report be given and that it must be in writing. She wanted all members to agree that Ombudsman situation needs to be reviewed.
A member suggested that the Committee must stipulate what was wanted in the written report so that all the many problems can be adequately addressed. It was also suggested that other mechanisms for an Ombudsman be considered.
Another member said that it was disturbing to discover that there was no Military Ombudsman as they all know there is a real need for one. The money spent on travelling to Germany was well spent because they know what the role of the Ombudsman must be and how it must work. In the written report, Mr Scroobie should describe what is his current position and what would be needed in the future.
Mr Ndlovu (IFP) said that the Committee needs to look at the legislation that prevents them from having an Ombudsman. The member echoed the sentiments of Ms Modise, saying that there must be something wrong if the Defence Department treats Mr Scroobie like a king.
Rev Mogoba (PAC) related the story of a young SANDF member that was facing a criminal charge. In the member's opinion this person was innocent. The person had gone through the military tribunal process so quickly and the member had not known that he could contact Mr Scroobie to help this person. The member went to the Minister who also probably did not know about Mr Scroobie and advised that the matter is with the courts and they should wait until it is concluded. Was Mr Scroobie the right person to contact in this case?
Mr Smit (NNP) asked for a breakdown of all the cases dealt with by Mr Scroobie.
Ms Modise and Mr Oosthuizen (ANC) said that they need to distinguish between officers who use foul language and those who use it in a racially motivated way because all defence forces use foul language.
Response to questions and comments:
The response does not address the questions in particular order.
Mr Scroobie said that that the Public Protector gets many complaints from convicted members of the Defence Force. In terms of the Constitution the Public Protector has no jurisdiction to investigate court decisions because appeal and review processes are provided for. A military tribunal as a matter of policy is seen as a court, therefore again the Public Protector has no jurisdiction to investigate the decisions. If the Military Tribunal is seen as an administrative tribunal then the decisions can be investigated. The Constitution states that there is one National Prosecuting Authority for the Republic. There is however a separate Director of Military Prosecutions. There are groups challenging this and saying that it is unconstitutional to have a separate prosecuting authority for the military.
Mr Scroobie conceded that that foul language is part of the military. The problem was that verbal abuse was perceived as racial discrimination and the Phalaborwa incident supports this argument. It was his experience as a former member of the military that abuse had then been levelled at groups and he had never experienced soldiers being singled out and insulted in front of his company.
Mr Scroobie said the requested written report would be completed by the following week.
Moving to the medical facilities, Mr Scroobie said that he had not looked in detail at this problem but agrees that it is not just budget cuts that had caused the deterioration of medical facilities. He said that the new SANDF has ballooned as a result of integration. Customary marriages and an increased number of dependents would be another factor.
There is no legislation that prevents a Military Ombudsman from being appointed as long as there is consistency with Chapter 9 of the Constitution and with the Public Protector Act. There is nothing in the Public Protector Act that says that one cannot have an Ombudsman.
In respect of him being treated like a king, Mr Scroobie conceded that this might be the reason for the SANDF members losing confidence in him. The criticism that has been levelled at his closeness with the Department of Defence has not caused an undue influence but has probably caused rank and file not trust him. In the beginning he felt that he was trusted and admitted that he has lost that trust.
Mr Scroobie said that in the Office of the Public Protector, he was the only person dealing with military matters but that it was only a half a person doing the work because he has obligations to other departments as well. There is no administrative capacity to speak of because typists and the receptionist are shared. He said that the budget is fine but how it is used and what it is used for probably needs to be looked at.
Mr Scroobie indicated that all the concerns that he has with the Minister or Ministry, he raises with officials but he has never raised the concerns with the Minister.
Regarding his involvement in the writing of the report, Mr Scroobie said that he accompanied the Ministerial Committee of Inquiry during the orientation period and provided information on cases dealt with by his office and problems with the tribunals. He indicated that he was not present during the writing of the report or when recommendations were made.
He said that he was happy with the constitutionality of the military tribunals. He has heard the concerns that the tribunals are being used to get rid of the non-statutory members. It has happened that the Military Disciplinary Code has been unfairly applied especially to blacks but he is satisfied that the courts themselves are constitutional.
Mr Scroobie concluded that it is for the Committee to decide where the Military Ombudsman is situated. It is easy defining the role but not what sort of capacity and powers will be given to this office.
Concluding remarks by Chair
It was suggested that Mr Scroobie's written report be made available next week and that another committee meeting on the matter be held in about two to three weeks. Mr Mashimbye said that they might have to return to the drawing board and have policy discussions to decide if this current situation is what they want or something different. It is clear that they do want to review the Office of the Military Ombudsman but for now, they will make use what they have and strengthen this.
The meeting ended.
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