Castle Management Repeal Bill [B9-2008] & Draft Defence Amendment Bill [B9-2008]: Defence Department briefings & German MP's briefing on German Defe

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Defence and Military Veterans

04 March 2008
Chairperson: Mr F Bhengu (ANC)
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Meeting Summary

Mr Jurgen Hermann, member of the German Bundestag, briefed the Committee in general terms about the German army and its current issues. In Germany, intake was reducing and there were concerns that forces being posted overseas left inadequate protection in the country. A possible solution was the national youth service that would require all school leavers to serve a period in the defence force. He noted that there were also budgetary concerns. He described the ombudsman set up as an independent body to consider military issues and complaints. Members commented that the national youth service would be a  useful tool for South Africa.

The Department of Defence briefed the Committee on the Castle Management Act Repeal Bill. The Castle of Good Hope fell under the management of the Department of Defence currently, but this Department did not have the expertise or capacity to fulfil the obligations in respect of protection of cultural heritage. It was therefore proposed that the Department of Arts and Culture should take over. Rather than trying to incorporate into the Castle Management Act all the provisions in respect of frameworks and legislation, it was decided that the Act should be repealed in its entirety and that a new Council, which was a public entity, should be established under the Cultural Institutions Act and take over the duties. It was hoped to achieve this by 1 April. Members asked questions around the auditing of the Council, whether the time frames were feasible, and the desirability of having input from the Department of Arts and Culture.

The Department then briefed the Department on the draft Defence Amendment Bill, which was tabled. It was proposed that amendments be made to the Defence Act. Section 55 needed to be amended to regularize the position of Senior Management Service members, so that their salary discussions were excluded from the Military Bargaining Council. A Pay Review Board would be established to advise the Minister on the service conditions of the members of the SANDF. Section 10 was to be clarified by the insertion of Sections 10A, 10B and 10C, to legislate specifically for the functions of the Inspector General in the Defence Secretariat as there had been confusion about the role and anomalies within the Act. The Minister would be given the power to oblige Reserve Force Members to serve “in a time of serious crisis” through proclamation in the Gazette, to clear up the difficulties around their obligations to report. Members commented that there may need to be an enabling clause also inserted in the Act, and queried the consultation process and the need for the amendments in respect of the Reserve Force.

Meeting report

German defence issues: Bundestag Member Jurgen Hermann Briefing
Mr Jurgen Hermann, a member of the German Bundestag, briefed the Committee in general terms about the German army and its current issues. He was enthusiastic that Germany and South Africa would come together and help one another to achieve an effective security system, and noted that South Africa was a key country in security on the continent.

Mr  Hermann stated that the German permanent force was originally 5000 soldiers, but that the soldier intake was reducing and currently was around half of that number. This was a problem because some soldiers were sent overseas, especially to Afghanistan, and this left few soldiers to protect the country. One way to curb this issue was having a national youth service, requiring all young men of college age to complete nine months compulsory service.

In regard to the annual budget allocated to the army is allocated, Mr. Hermann complained that the 30 billion euros allocated was too little. The defence force had many projects coming up and needed to purchase army vehicles, which would be customized for sending their troops overseas. A contributory factor was probably that citizens were paying such small amounts of tax on income.

Mr Hermann noted that in Germany there was an ombudsman to hear queries, issues or problems that the soldiers faced. This post was independent of government so there was no influence from the latter. The ombudsman ensured that the constitution was adhered to. It was an elected post for 5 years and there were about 70-80 support staff.

Mr Hermann finally mentioned some of the military bases that had been closed down because the infrastructure was poor.  .

The Committee members were impressed with advances in the German army system and commented that it would be wise for South African to examine this system to see how the lessons could advance the South African system.

The Chairperson commented that the national youth service could potentially assist in the fight against crime, especially among the youth, and reduce unemployment if introduced in South Africa.

Castle Management Act Repeal Bill: Department  of Defence (DoD) Briefing
The Chairperson noted that this Bill related to the repeal of the Castle Management Act (the Act) as there was a similar legislative framework falling under the Department of Arts and Culture.

Mr Siviwe Njikela, Deputy Director: Legal Support, Department of Defence, said that the Castle of Good Hope was one of the properties handed over to the Department and was currently a property administered by the Department of Defence. In 1993 the Minister was given certain obligations around the administration and management of the Castle, including the protection of cultural heritage. However, there was no proper institution that could structure the administration and properly execute the Castle Management Act.

In view of the constitutional dispensation, it was now considered that since there was an institution that dealt with cultural heritage and arts, the Minister of Defence should no longer have this function, but instead it should fall under the Department of Arts and Culture (DAC). There had been a series of consultations with the Department of Defence as to how an effective transfer could take place, and a joint team had been set up.

Mr Njikela noted that the transfer could happen in two ways. Normally, the President, by means of a proclamation, would transfer the duties and powers under the Act from the Minister of Defence to the Minister of Arts and Culture. However, that would not solve the issues here. The Department of Arts and Culture operated under its own regulations and frame work in respect of cultural heritage property, and to try to insert those into the Act could be problematic. Therefore it had been decided to repeal the Act in its entirety. It was likely that it would take some time to introduce another Act, and the interim situation must be considered. 

There was a Cultural Institutions Act, administered by DAC, which made provision for the DAC to establish separate councils to take over responsibility for management of specific issues. There were already existing councils, but establishment of a new one was the preferred option. Issues to be decided upon included financial implications, asset and liability transfer, and civilian staff on the payroll. In respect of the staff, it was suggested that they would be transferred in accordance with the provisions of the Labour Relations Act. It was hoped that by 1 April the Council could assume responsibility and this Act could be repealed.

Dr G Koornhof (ANC) commented that the presentation was clear. He asked how the qualifications would be handled, between the Departments of Defence and Arts and Culture. There had not been compliance with the Act by castle management in the past. He asked if the new Council would continue to be audited by the Auditor General. He commented that he would have liked to have the DAC also present at this meeting for their input. Finally he requested whether the deadline to set up a Council by 1 April was not too tight. He wanted details of who was in the Council and who was running it. 

Mr Njikela responded that in regard to the qualification question, he could not answer; those who could give further details were not present. He confirmed that the Auditor General would be auditing as the Council was a public entity.

Mr S Ntuli (ANC) commented on the issue of names that might need to be changed. He too was not impressed that the DAC was not present, as the Committee would not like to have a situation where after passing legislation this Department would come up with issues which needed to be addressed.

The Chairperson agreed with these comments. 

An official from Department of Defence agreed, but assured the Committee that matters would be properly scrutinised by all parties, and not rubber-stamped.

A Member asked what would be the situation with the repeal of the Act. He also asked for the main motivating factor for transferring those responsibilities, and whether it was not due to failure of the DoD to manage matters. 

Mr Njikela indicated that the DoD was unable to comment on the first question, but normally the Department responsible for passing the Act would also see to its repeal. In relation to the latter question, he noted that the DoD had no skills and expertise to deal with the cultural management issues, as set out in the Act, and that was the reason for transferring these responsibilities. The Council would be taking over and would also be operating the museums.

Draft Defence Amendment Bill: Briefing by DoD
Mr Njikela stated that the Defence Act had come into operation on 23 May 2003. At that time, however, the operation of Section 55 was suspended, due to the suspension of the Military Bargaining Council (MBC) activities by the Minister, and litigation that was going on at the time.  Section 55 was finally brought into operation in June 2005. Section 55 provided that members of the SA National Defence Force (SANDF) shall receive such salaries and benefits as may be agreed upon in the MBC. However, this section did not distinguish between Level 1-12 and Senior Management Service (SMS) members within the SANDF. The normal practice with SMS salaries were that they should be determined by the Minister of Public Service and Administration, outside the Public Service Coordinating Bargaining Council (PSCBC).

Since one of the key policy themes was to bring the DoD in line with the rest of the public service, it was imperative that section 55 be amended so as to exclude SMS members from the jurisdiction of the MBC. In order to assist the Minister in the implementation of section 55 it was further proposed that a Pay Review Board be established to advise the Minister on the service conditions of the members of the SANDF.

The amendments proposed were therefore to insert a new subsection (3) and the wording was outlined in the presentation. Furthermore a new Section 55A would be inserted in respect of appointment of a Pay Review Board.

In relation to sections 10 and 42 there were further inconsistencies. Section 10 empowered the Secretary for Defence to instruct any employee or member to do inspections or investigations in the Defence Secretariat. However, it made no mention of the role of the  Inspector General (IG), who, n practice,  had powers to conduct forensic investigation audits and inspections and to monitor compliance with DoD policies. The only mention of these powers was contained in Section 42. The Department was therefore proposing that the IG’s functions be legislated for specifically in order to eliminate confusion with regard to this role.

The Department therefore proposed to insert a new Section 10A, 10B and 10C, dealing with, respectively, the establishment of a Defence Inspectorate, the appointment of the Inspector General and the reporting lines and functions, and preservation of existing terms and conditions.

A further issue related to Reserve Force Members. Currently they served on a voluntary basis, and rendered service in terms of a contracted period. They were only obliged to serve during a time of war, state of national defence or emergency. They did not have any obligation to report from training, exercises or deployment outside the contracted period. This made it difficult to plan and allocate resources properly. It was therefore proposed that the Bill now oblige Reserve Force Members to serve during peace time under certain clearly defined circumstances.

It was proposed that the members of the Reserve Force therefore be obliged to serve “in a time of serious crisis” as declared by the President by proclamation in the Gazette.
Dr Koornhof asked what guarantee or certainty there was that the Reserve Force would support or be obliged to operate, as time was of the essence. He believed that there was a necessity for an enabling clause for the Reserve Force to operate.

Dr Koornhof asked if there had been consultation with National Treasury or the Unions.

Dr Koornhof asked if there were any consultations with the Auditor General on Section 10. He stated that the IG might have to be consulted on Section 10.

Ms P Nombulelo (ANC) stated that the Committee needed to know what was going on with the Reserve Force. She also enquired who had powers to investigate, and what role was played by the Secretariat.  

Maj Gen Roy Andersen, Chief: Defence Reserves, DoD, said that he could not comment, as he was an accounting officer, not a legal specialist. He believed the amendments were necessary for the IG to carry out its work through the Secretariat.

Mr M Kwela, State Law Advisor noted that these amendments had been made to close gaps. Section 16 of the Act dealt with support for border control, Section 18(1) spoke of the Reserve Force being deployed at times of war, and Section 55 was also confusing on the distinctions and definitions. The Defence Force comprised both regular and reserve forces, but there were lacunae between the definitions and the implementation. That was what this Bill was seeking to address.

The meeting was adjourned


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