Joyce Gongxeka’s Petition: briefing by Department of Defence

NCOP Petitions and Executive Undertakings

13 February 2008
Chairperson: Mr F Adams (ANC, Western Cape)
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Meeting Summary

The Department of Defence briefed the Committee on and explained the history relating to the petition of Ms Joyce Gongxeka. He noted that she had been found medically unfit by a Board, but had challenged the findings. However, there had been a problem in that the matter was dealt with in a procedurally incorrect manner. The Minister of Defence and the Chief of the South African Defence Force should have granted authority for her discharge, but instead the Directorate of Human Resource Separation had interpreted the Act as giving this Unit alone the mandate to process the discharge. The Department conceded that the procedure had been incorrect. It suggested that the medical discharge be regarded as cancelled and that she be paid benefits as if she had been in service from 2005, when she was discharged, until the date of her death in 2007. Her benefits would be calculated and paid out. In addition, in future all medical discharges would have to be referred to the Minister of Defence for final decision and a new Instruction was being developed. Members raised questions on the financial implications, on whether investigations were being done into other cases, and noted that the Committee would have to confine itself to its own mandate only, although there might be other questions still to be considered by other Committees.

The Committee noted that had it not been for its intervention this matter would not have been resolved. It agreed that the issue would be closed. The Department would have to act in terms of the decision it had conveyed to the Committee. The matter would be referred to the House for a report, and would also be referred to other Committees for their information and action if necessary.

The Committee postponed the adoption of its Annual Report. It noted that the request to attend the second E-Participation and Local Democracy Symposium had been declined due to shortage of funds in the budget.

Meeting report

Petition of Ms Joyce Gongxeka: Briefing by Department of Defence (DOD)
Lt Gen Derrick Mgwebi, Chief:Human Resources, SANDF, briefed the Committee on the background to the matter.  Sgt Gongxeka was a nurse at 3 Mil Hospital in Bloemfontein. She became ill and was referred to a medical board. Section 59(1)(e) of the Defence Act No 42 of 2002 provided that the service of a member of the Regular Force would be terminated if the Surgeon General or any other personnel authorised by him/her issued a certificate to the effect that, due to medical or psychological reasons,, such member was permanently unfit to serve in the Defence Force.

Sgt Gongxeka was found unfit by the Medical Board and an appeal was launched through her attorneys to the Surgeon General and the Provincial Government of the Free State. The Surgeon General confirmed the Medical Board’s findings and Sgt Gongxeka was informed of this. Her classification then changed because of the finding. A number of forms were issued, one of which was a form called DD50,  which was issued to Director of Human Resource Separation (DHRS) to grant authority on the Termination Programme. Her unit continued with administration in terms of her pension benefits, and she was then discharged.

The challenge was that the Minister of Defence and the Chief of the South African Defence Force were not approached to grant authority for her discharge as required by the policy. The Director of Human Resource Separation interpreted the section of the Defence Act as giving DHRS the mandate to process the separation. This was not a correct interpretation. In fact, section 42 of the Defence Act of 2002 provided that if a person was ill, the Surgeon General would set up a Medical Board. A person could be ruled as discharged by that Board. However, in terms of the execution of the mandate, the DOD would be required to ensure that a submission was made through the office of the Minister, as the Minister was in fact the final authority.

The Department therefore recommended a way forward to redress the procedurally-incorrect discharge of Sgt Gongxeka. It was noted that she was discharged in December 2005, but passed away in 2007.

Lt Gen Mgwebi suggested that the medical discharge should be cancelled, and instead her benefits be administered as if she had passed away during service. These benefits, amended accordingly, would be paid to her beneficiaries. In future all medical discharges would be submitted to the Minister of Defence for a final decision. A Department of Defence Instruction was currently being developed and would include this process. Part of this process would be to conduct a survey determining how many other members or employees had been affected by this oversight. Stringent monitoring and disciplinary measures would be put in place to prevent recurrence of such an oversight.

Mr A Watson (DA, Mpumalanga) asked how Sergeant Gongxeka had died, and whether the current situation had any effect upon her death.

Lt Gen Mgwebi responded that it was difficult for the DOD to ascertain the cause of death, as Sgt Gongxeka left the service already in 2005 and died in 2007. She had been boarded for psychological reasons.

Mr Watson further asked why it took from 2005 until now, for the DOD HR unit to discover that they had acted incorrectly, and why nothing was done until Parliament intervened. He asked if the whole matter could not have been dealt with more quickly, efficiently and humanely.

Lt Gen Mgwebi responded by quoting section 59(1)(e) of the Defence Act. He noted that a Board had been convened and had sat. This consisted of  specialists in the medical field, who examined the person and took a decision. Once that decision had been made and a certificate was issued, that certificate went through to the HR environment. Within HR there was a  Directorate dealing with Separation. It was there that the incorrect procedural assumption had been made. The Board of specialists,  having taken its decision, was not charged with the matter any more. It was up to HR to go through the processes and operation of the law as set out in the Defence Act. It became clear only at a later stage that the DOD needed to set up a clear instruction of the procedures to be followed. Part of the instruction was that the staff in the Separation unit must process any applications through Human Resources, and then the Chief of the Defence Force would take the separation to the Minister of Defence for signature. It had taken some time to put that procedure in place. He confirmed that there had not been any complaints received prior to this one. 

Mr A Moseki (ANC, North West) expressed the Committee’s condolences, stating that it was most unfortunate that Sgt Gongxeka was no longer present when the Committee was dealing with the matter. This was one case that had been brought to the Committee’s attention and clearly it was flawed as DOD was asking Parliament to employ a measure to redress the problem. He asked how many cases of this nature DOD had experienced in the past, how this had happened, and how prevalent such issues were.

Lt Gen Mgwebi responded that this procedure dated back to 2002. The DOD was therefore investigating the boardings from 2002 to date, and if any other person was affected then the DOD, along the same lines, would follow the procedure that it had suggested in this case. He did not have concrete numbers.

Mr Mzizi also offered his condolences to the bereaved family, and her colleagues at DOD. As Sgt Gongxeka had passed away there was little point, nor would there be any benefit, in examining the past. He agreed that it would seem fair that her medical discharge would be cancelled and her benefits would be administered as if she had passed away during service. He expressed the need for caution in procedural matters, and said that surely the DOD had legal advisors. The Chief of Staff, which he believed was the Minister, was the only one empowered to take the final decision. He suggested that the DOD’s undertaking be put in writing so that the Committee knew exactly what was DOD’s opinion and how they would resolve this case. This must also include a statement of what was entailed, and how the family would be informed.

Mr D Worth (DA, Free State) asked for confirmation as to whether the DOD had paid a lump sum to the deceased’s estate or beneficiaries, whether the DOD had been in correspondence with the deceased’s attorneys, and whether they were now satisfied with the outcome.

Lt Gen Mgwebi said that the Minister had mandated the DOD to take the route he had set out. The next step would be to go to the family and inform them of the facts, and explain how this would be handled in terms of the benefits. Nothing had been paid yet and DOD was not in contact with the attorneys, as it seemed the attorneys had stopped taking the case any further.  He believed the DOD’s best approach was to link directly with the family.

Mr A Manyosi (ANC, Eastern Cape) was concerned that the nature of the work in the military was such that it was to be expected that military members may suffer from psychological problems. As Hon Moseki had said, there might be a number of other people affected or expelled in this manner. He asked what was the composition of the Medical Board.

Lt Gen Mgwebi clarified the composition of the Board. Depending on the case there would be a senior doctor at least, and possibly, depending on the nature of the illness, would be a comprehensive assessment of the person from the psychological psychiatric and the physical considerations.

Mr Manyosi enquired if the Board  or the Surgeon General had sought a second opinion on the health of the person to be discharged. He was concerned that if this was not the case, then there was still room for errors if the state of health of the person was not thoroughly investigated.

Lt Gen Mgwebi said that no second opinion had been taken.

Adv Zuraya Adhikarie, Parliamentary Senior Legal Advisor, asked how DOD intended dealing with other cases if it was found that there too a decision to board was invalid.

Lt Gen Mgwebi noted that once the investigation had been done and it was known whether this was a prevalent problem, and who had been affected, then the DOD would follow a similar route to redress the issues.
Ms Thuli Manzini, Director: Human Resources Policy Management, DOD,  added that in some cases of medical boarding it was found that due to their illness people had themselves asked to be medically boarded. There may therefore be a number of applicants who had fully agreed with the DOD decision to board them.

Mr Moseki asked for an indication as to when this matter would be finalised.

Lt Gen Mgwebi responded that the finalisation was really dependent upon the Minister’s go-ahead. The documentation had already been sent to his office. His authorisation would mandate the DOD to deal with he family. The HR Separation unit would calculate what was due to Sgt Gongxeka, and this would probably be finalised by the end of the week. There would then be discussions with the family as to where the payment should go.

Mr Moseki pointed out that an investigation could have huge financial implications, and asked if the DOD was satisfied it could deal with that.

Mr Mzizi felt that this was a matter of human error. It was always assumed that if a doctor declared one medically unfit nobody would employ you. He believed the DOD should deal directly with the family and not with the attorneys formerly representing Sgt Gongxeka.

The Chairperson asked what would happen if other former members took the DOD to court, and if they were prepared for this.

Lt Gen Mgwebi said that the DOD did not foresee many similar cases since 2002. The financial implications were not known. This was the reason for doing the investigation. If it did turn out that there were cases that had not been budgeted for, then these must just be treated as unforeseen circumstances. However, he clarified that a member being discharged was expected to sign acceptance of the boarding. In most cases this did happen. Sgt Gongxeka refused to sign.

Lt Gen Mgwebi said that one of the reasons for the investigation included finding out what the financial implications might be. Once the DOD knew how many cases were involved, they would be able to assess the implications. They had not budgeted for the payments, and if they had to pay this would be regarded as unforeseen circumstances. If the DOD did find that money was due to individuals who had been wronged, then it was obliged to meet and correct those wrongs. This was why DOD was now giving specific instructions to prevent this reoccurring.

The Chairperson pointed out that in terms of the NCOP Rules, the applicant (who was of course no longer alive) should have been informed of the decision of this Committee. It would also need to inform the Free State Legislature and would discuss the matter in the House. The Committee would then send minutes of this meeting to the Committee that dealt with Defence, for them to look into the Act and ways to speed up the process with the Minister, so that there would be no delay in clarifying that the Minister was the overriding authority in such issues. 
Mr Watson cautioned that the matter must be seen from the mandate of the Committee to entertain petitions. This petition was concluded from this Committee’s point of view. However, he felt that the Committees dealing with defence and labour matters should be advised of this, so that they could be aware of the matter.

Adv Adhikarie stated that the cause of death was relevant, because the Department could face further legal consequences if she had taken her own life, for instance, due to stress or her inability to meet obligations. In her view it was irrelevant if people had signed the discharge. There was a certain prescribed process, and the failure to meet procedural requirements would still be relevant. If the Minister was required to sign off before the discharge became final, then any discharge would depend not on the signature of the individual, but on the signature of the Minister.

Mr Moseki agreed with Hon Watson’s approach. He pointed out that the mere fact that Sgt Gongxeka had refused to sign said a lot. He was concerned about the desirability of going for a second opinion if a person was declared medically unfit by the Board. He wondered if Sgt Gongxeka had, on her own, gone for a second opinion from other experts,  and whether that could have been the reason that she refused to sign.

Lt Gen Mgwebi responded that she had gone for a second opinion.

Mr Moseki asked whether he knew what were the findings.

Lt Gen Mgwebi replied that the doctors had files of the medical history, but somewhere in the process of the files being transferred between doctors they were misplaced, so although she did go for a second opinion they did not know what transpired.

Mr Manyosi submitted that there was information from a Dr M Talatala that Dr Talatala had not detected any psychological problem, other than the effect of problems she was experiencing at work, such as not getting accommodation as it was reserved for white people. One of the reasons she had refused to take a package was that her contract was supposed to end in March 2008, and that meant that she could still have been at work. This issue had not been commented upon. In fact she had refused to comply because apparently the Board, even before conducting any examination had already declared her mentally unfit. This situation could have hastened her death before March 2008, when her contract would have expired. That in itself was another complication.

The Chairperson noted that this Committee should not go beyond its scope or mandate. Ascertaining the cause of death was not part of its mandate. It was up to the family to consider if they wished to take legal action against DOD, and for the DOD to take the necessary action to defend themselves in this event. The Committee had been asked to look at the discharge, the hospitalisation, and the accommodation.

The Chairperson asked whether it was only DOD who had received correspondence from Parliament, or whether, by petitioning the Committee, she had forced the DOD to go the extra mile to reconsider her case. He asked whether similar consideration had been taken for other people.

Lt Gen Mgwebi responded that only when correspondence landed in the Minister’s office did DOD become aware that staff at a lower level were following a certain procedure without proper authority. DOD was investigating whether others had been affected by this.

The Chairperson declared that there were still a lot of questions but stressed that this Committee should not go beyond the scope of its mandate. Members in other committees must consider the DOD’s investigations into Section 59(1)(e) of the Defence Act and its labour practices. This Committee would draft a report and publish it in the ATC, and then make a statement in the House in terms of the Rules.

Adv Adhikarie asked for clarification as to whether there was a discriminatory policy
in terms of accommodation.

Lt Gen Mgwebi replied that there was not. Some staff members had complained, depending upon how they had experienced the policy. There was no discrimination practised.

Ms N Nqaba, Committee Researcher, pointed out that the fact that Sgt Gongxeka had never agreed with the assessment of her status of illness. The contract should have ended in March 2008. She asked if the DOD’s assessment of the financial benefits would cover the period that she had been out of the workplace.

The Chairperson pointed out that that DOD would pay all benefits as if she were a member of the Defence Force when she passed away.

Mr Watson said the Committee had exhausted the issue. However, he was concerned that the Committee had devoted an entire meeting last year waiting for the Department’s reply and he asked why the Department had not been present.

The Chairperson explained that he had enquired from the Minister, and had also requested the Committee Secretary to find out, why the Department had not arrived. The previous Committee Secretary did not address a letter to the Parliamentary Liaison Officer, in line with the required procedure. Instead, the letter went to the Department directly. The Department was now present following up on dealings with the Parliamentary Liaison Officer. 

The Chairperson asked the Department not to delay in finalising the matter and getting in touch with the family of the late Sgt Gongxeka so that all relevant monies could be paid out.

Mr Watson remarked that this was an achievement for Parliament and for this Committee. If the Committee had not interrogated the issue, nothing would have happened, as even the DOD was not aware of the matter until raised here.

It was proposed and agreed that this matter was now closed.

The Chairperson noted that the Committee would now put the matter on the ATC,  write to the Chairperson of the ATC, write a letter to the Speaker of the Free State Legislature, inform them about the briefing and attach a copy of the briefing documents. The report to the ATC should include the sentiments expressed by Mr Watson about the importance of the Committee’s work. There would be a statement by the Chairperson. There should also be a media briefing. The Committee should also get in touch with the Executor of the Estate of the late Sgt Gongxeka to inform them that Parliament had resolved this matter. A report would be made to the other relevant committees.

Annual Report Adoption
It was agreed to adopt the draft Annual Report at the next meeting, since the documents were badly photocopied, with missing and duplicated pages. This would be raised with the appropriate department.

Invitation: Second E-Participation and Local Democracy Symposium
Mr Adams informed Members that he had received a letter from the House Chairperson that the application for political travel was declined by the House Chairperson. Committees were not to travel overseas during this semester, as it was not budgeted for and the current budget was inadequate.

The convenors were disappointed, as they would have loved to have the National Parliament present. He would be meeting with Ms Oliphant in the morning and would try to approach Mr Mahlangu with the possibility of going to London with a scaled down delegation.

Time of Meetings
Mr Moseki reminded the Chairperson about meetings clashing.

The Chairperson clarified that the secretaries had met, and there was apparently no problem as the Committee on Local Government met on a Tuesday and this committee on a Wednesday.

The meeting was adjourned.


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