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DEFENCE PORTFOLIO COMMITTEE
9 October 2001
DEFENCE BILL: INTRODUCTION; DEMOBILISATION AMENDMENT BILL AND AMENDMENT OF TERMINATION OF INTEGRATION INTAKE BILL:VOTING
Chairperson: Ms T. Modise
Demobilisation Amendment Bill [B5-2001]
Termination of Integration Intake Bill [B6-2001]
Defence Bill [B60-2001]
The Minister of Defence informed the Committee that the Defence Bill aims at consolidating defence functions in one piece of legislation and in line with the Constitution. Upon the formation of SANDF all other non-statutory groups ceased to exist constitutionally.
The Minister pointed out that at the moment more than half of the personnel who have joined SANDF are young and without attachment to former groupings. The Committee should not be detained unnecessarily by groups that are seeking recognition but move forward with proposed measures of creating more acceptable legislation.
The Committee passed the motion of desirability on the Demobilisation Amendment Bill. Section 1 of Act 99 of 1996, as amended by section 1 of Act 128 of 1998 which was amended to extend the closing date for demobilisation to 31 December 2002.
The Committee also passed the Termination of Integration Intake Amendment Bill with an amendment fixing the closing date for Termination and Integration to be the 31 March 2002.
Statement by Minister Mr M Lekota
In brief opening remarks to the Committee, the Minister said the Defence Bill is a major piece of legislation based on important policy decision. He said the Bill basically seeks to consolidate in a single legislation the various statutory defence provisions and that it is aimed at bringing the entire defence force structure in line with the Constitution.
The Minister said that a waiver, which empowers him to consider cases favourably, covers those left out of the process of demobilisation by mistake.
He was aware of some inconsistencies in the Bill, which clash with the PSA and the PFMA but expressed his confidence that the Committee will iron out such inconsistencies.
The Minister pointed out that when SANDF was formerly inaugurated, all other non-statutory groups ceased to exist. Constitutionally, no groups outside of SANDF exist at present.
The Chair thanked the Minster for his appearance and then called the meeting to the business of the day, which is the discussion of the Defence Bill.
Demobilisation Amendment Bill
Mr Smit (NNP) enquired about what the Department of Defence (DOD) had to say about the process of demobilisation.
Mr Ndlovu (IFP) said that since demobilisation does not affect the Defence Bill, it should be skipped for a later time.
The Chair said that she sees no reason why the demobilisation process should delay the Defence Bill. The process had dragged on for the past seven years. The waiver clause the Minister had alluded to would act as a safety net for those left out of the process.
Mr Radebe, the DOD legal adviser, suggested that the Committee deal with the issue of datelines for the demobilisation and termination of integration intake process since this will affect the events in the Defence Bill.
Mr Smit (NNP) suggested that the demobilisation dateline be set at 31 March 2002. Mr Mclntoch (DP) supported him.
Mr Ndlovu (IFP) disagreed and instead suggested that the dateline be extended to the 31 December 2002 to allow enough time for the process to run its course. Mr Ngculu (ANC) supported him.
The Chair put the matter to vote and the majority settled for 31 December 2002 as the dateline for the demobilisation process. The Chair accordingly read out the Motion of Desirability to pass the Demobilisation Amendment Bill with the amendment extending the dateline for demobilisation process to 31 December 2002.
The Amendment of the Termination of Integration Intake Bill
The Chair tabled the Amendment of Termination of Integration Intake Bill for debate by the Committee.
Mr Ndlovu (IFP) asked about the rationale behind the 31 December 2001date suggested in the draft Bill.
Mr Radebe said that the date is aimed at allowing the process between termination and demobilisation to run its course and for the administrative machinery to be set in place. He however pointed out that the DOD would support a later date if the was agreeable to the Committee.
Mr Ngculu proposed that the termination dateline be placed at 31 March 2002 since the procedure has budgetary implications. Mr Smit supported this date.
Mr Ndlovu said that it is unlikely that the process will entail any integration and therefore the 31 December 2001 date in the draft Bill should remain.
Mr Radebe disagreed with Mr Ndlovu's observation. He pointed out that the date must be set in anticipation of some people coming out of the woods to be considered. Quite a few people were out there awaiting the process to be announced.
Mr Ntuli (ANC) said that there should be enough space to allow the administrative process to run smoothly. The collected information would have to be verified before processing can take place. He therefore supported the 31 March 2002 dateline.
Mr Mabeta said that what is important was the DOD's attitude. He pointed out that if the department's attitude was to assist people then time constraints should not be over-emphasised. It was crucial for appropriate administrative networks to be put in place.
Ms Shope (ANC) supported the 31 March 2002 dateline as reasonable for the envisioned process.
Mr Masilela, the Secretary of Defence, said that his office has always insisted on earlier dates. He, however, supported the 31 March 2002 dateline considering the festive period that lies ahead.
The Chair then put the two dates to vote but before the vote could be taken Mr Ndlovu, who had insisted on the date in the draft Bill, changed his mind and agreed with the 31 March 2002 dateline.
The Chair then read the Motion of Desirability to the effect that the Amendment of Termination of Integration Intake Bill, is unanimously passed with the amendment extending the dateline for the termination of integration to 31 March 2002.
The Chair asked the DOD to stick to the dateline, which had been extended on four separate occasions. She asked the DOD to embark on an intensive information campaign to reach out to all those in remote rural areas so that every body is taken aboard. She said that it was the Committee's feeling that there should be no further extensions.
Mr Smit requested debate on the Bill to which the Chair replied that the Speaker has allocated the 18 October, 2001 as the date for debate on the Bill.
The Defence Bill
Vice-Admiral Johan Retief; the head of the SANDF took the Committee through the Bill.
Chapter 1 Introductory Provisions
Mr Retief said that clause 1 of the Bill deals with definition of terms whilst clause 2 sets out general principles upon which the Bill is based. He said clause 3 deals with the application of the Act.
Mr Retief said that ss xi does not indicate the Public Service Committee which should be inserted. He also indicated that ss xiii appear to be too wide and that he would like to seek legal consultation on this. He said further that ss xxxii(a) and (b) should be followed by clause (c ) to cover civilians in the military.
Mr Smit (NNP) asked whether the employment in DOD covered the right to labour relations to which Mr Retief replied in the affirmative.
Mr Ngculu said the Act refers to all employees, and asked which employees are covered.
Mr Retief replied that the term 'employee' should be read in the context as defined by the Act at ss xiii clause 1.
Mr Retief said that it seems ss 2 of clause 3 contradicted the Public Service Act (PSA) and pointed out that one option would be to delete the offending sub-section altogether.
Mr Radebe suggested that clause 3(2) be drafted to exclude the PSA in its effect so as not to override the former.
The Chair requested that the clause, due to its technical conflict with the PSA, be suspended for the time being. The Committee will revisit it later.
Mr Retief requested the Chair allow him some time to consult and come back to address the Committee on the offending clause.
Chapter 2 Department of Defence
Mr Retief said that this clause refers to the composition of the DOD and that the same has not changed at all.
The Chair referred to ss(c) and asked what auxiliary service meant.
Mr Retief said that this cadre of personnel are covered at clause 16 and refers to what the Minister may require and establish in time of war. He explained that the provision is designed for the mobilisation of a large size of people during war time whenever such people are needed for logistical support yet they do not meet they the requirements to be enlisted in the SANDF.
He said that the provision serves its purpose in time of war but that there were personnel in SANDF today who fall under auxiliary service. Plans were in place to demobilise this cadre of personnel from SANDF.
Clause 5: Subsections 1-6
Under ss 5(2) Mr Retief suggested that the words "with due regard" replace the word "despite". He requested for time to go and reflect further on the subsection.
Mr Ngculu said that ss5 (2) was crafted in too wide terms such that it could be problematic in interpretation.
Mr Smit (NNP) asked how the PSA relates to the DOD and the Secretary of Defence. He asked why these wide-ranging powers were placed at the disposal of the Secretary of Defence in the first place.
Mr Retief replied that the spirit of the PSA is to allow the Minister as much power as possible to organise and run the affairs of the DOD. He explained that the PSA features here, as appropriate because there were civilians in the military about whom the Secretary of Defence must take charge of.
Mr Mclntosh (DP) asked why the foresight role of the Parliamentary Committee on over the Minister's organisation and running of the Department had been excluded.
The Chair agreed with Mr Mclntosh and pointed out that the Committee was very unhappy last year when the Defence structure was overhauled without the participation and knowledge of the Committee.
She pointed out that the section makes no such accommodation of the Committee's oversight and monitoring role.
Mr Retief said that the Constitution prescribes the establishment of the Defence Secretariat and the clause sets out how it should be organised. He was not sure on how to legislate the Parliamentary monitoring role and suggested that the Committee consult the Minister on the matter since the Minister has been empowered to organise this structure.
Mr Smit agreed with the Chair and pointed out that it was expedient for a form of submission to the Committee to be provided for.
The Chair clarified that it was not the Committee's intention to temper with the Minister's powers but that anything that impacts on the policy and morale of the Department becomes the business of Parliament's oversight role. She suggested that the Committee revisit the issue at a later stage.
Mr Ngculu (ANC) said that ss5 (6) has a clash of authority in that it is not clear whenever interests clash who's authority would prevail: i.e. the Secretary of Defence or the Chief of General Staff? He suggested that the last words "as well as those of superior officers" be deleted.
Mr Retief said that the sub-section aims at ensuring those military members in the DOD submit and are under the authority of their civilian superiors. There was no space for contradiction since those in the military understand the chain of command well and are trained by it. He, however, was agreeable to Mr Ngculu's suggestion to delete the last words.
Mr Mabeta (ANC) said that he did not see where it was stated that the Secretary should be consulted.
Mr Ndlovu (IFP) agreed with Mr Mabeta and pointed out that there is a serious likelihood of conflict of loyalty between the Secretary of Defence and the Chief of SANDF and wondered who's authority would prevail should such a conflict occur.
Mr Makwetla (ANC) concurred with the views expressed by his colleagues and pointed out that ss 5(6) as read together with clause 8, 14, and 15 clearly demonstrates such a clash of authority. He said this has the potential to create confusion and friction between the office of the DOD and that of the Chief of SANDF. He added that the situation is further complicated by the fact that both offices report directly to the Minister.
Mr Retief explained that under ss 5(4), although the secretariat was a civilian outfit, from time to time uniformed officers are seconded to it. Those under the Secretary take orders directly from the Secretary and not the Chief of SANDF.
Mr Masilela said that there were many outstanding issues regarding the relationship between the Secretariat under the PSA and the Defence Act that needed to be ironed out. He suggested that the Committee give them time to go and look deeper into these matters.
He added that the Act should expressly state that the Secretary of Defence is the Head of the Department and the Principal accounting officer. He said the Chief of SANDF only reports to the Minister and the President only on issues of operational nature.
The Chair agreed with the Secretary that these issues must be refined and that the matter is at the Defence disposal. Mr Makwetla concurred with the Chair that these outstanding issues should be looked at critically by the Department.
Clause 6:Subsections 1-4
Mr Retief said that this clause deals with the appointment of the Defence Secretary
Mr Ngculu raised issue with ss 6(1) and said that it does not appear to have been satisfactorily drafted.
Mr Ndlovu agreed with Mr Ngculu and said that the subsection is objectionable since the President cannot appoint the Defence Secretary. The President is empowered to appoint the head of Department only and not the Defence Secretary.
Mr Retief said that the subsection should cover head of Department and Defence Secretary.
Mr Radebe said that Clause 4 clarifies the position on this issue but Mr Masilela was of the view that the distinction must be made absolutely clear.
Mr Retief said that the PSA was very clear as to who is the head of the department but added that some more clarity can be added if that were desirable.
Clause 7 (a)-(e)
Mr Retief said that the clause covers the functions of the secretary and that it remains unchanged.
Mr Smit pointed out that it was crucially important to state unequivocally which functions should be performed by the Secretary to avoid confusion.
Clause 8:Subsections 1-2
Mr Retief said that the clause deals with delegation of powers by the secretary for Defence.
The Chair questioned the power given to the Secretary to delegate. She asked whether there were certain powers that the Secretary cannot, under any circumstances delegate.
Mr Retief said that the powers the Secretary is empowered to delegate are those given in terms of the Defence Act. It is expected that the Secretary exercise wisdom and good judgement when making a decision on delegation of certain functions.
The Chair queried such power pointing out that the section was loose and too broad.
Mr Smit (NNP) said that it is difficult to definitively state which functions should not be delegated because by so doing you exclude other functions.
He said that it is better to leave the question of interpretation to the law courts. He, however, pointed out that the Secretary is expected to Act within the bounds of reasonableness.
Mr Ndlovu (IFP) said that the reasonableness Mr Smit was referring to was not in the Act.
Mr Mclntosh said that it was up to the appointing authority to ensure that the holder of the office would be a credible and judicious person.
Mr Ngculu agreed with Mr Smit's sentiment and suggested that the sub-section be rephrased to provide for reasonableness.
Mr Radebe said that it is possible to identify, in the framework, of the Act which powers cannot be delegated at all.
Mr Retief said that under the PSA the same terminology is used regarding delegation of powers.
Mr Ngculu suggested that it should provide that "may delegate such powers" but Mr Radebe said this does not make any sense at all.
Mr Maphoto (ANC) wondered if it was not advisable to follow other Acts that employ similar terminology.
The Chair said that the position of the Secretary under the Defence Act is different. She said that the Secretary has under him both military and civilian staff. She then suggested that more time be given for the DOD to come with proper formulation.
Mr Masilela said that the DOD is at present working on a project touching on delegation of function. The findings would be made available to the Committee.
The Chair adjourned the meeting and said deliberations on the Bill are to continue.
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