Castle Management Act Repeal Bill [B9-2008]: Deliberation; Prohibition or Restriction of Certain Conventional Weapons Bill [B7B-2007]: NCOP Amendments

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Defence and Military Veterans

06 May 2008
Chairperson: Mr F Bhengu (ANC
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Meeting Summary

The Committee considered the NCOP amendments to the Prohibition or Restriction of Certain Conventional Weapons Bill. Issues raised required further consultation with the NCOP’s Select Committee on Safety and Security so the proposed amendments were not approved.

The committee researcher provided a briefing on the two submissions that had been received on the Castle Management Act Repeal Bill. The Committee discussed the the advertisement of positions managing the Castle of Good Hope, before the Bill had been passed. The advertisement by the Department of Arts and Culture was seen as premature by the Committee. This undermined the due parliamentary processes requiring proper consultation with the Committee. This would be raised with the Department at the following day’s meeting.

Meeting report

Committee Programme planning
The Chairperson proposed that a meeting with the National Conventional Arms Control Committee (NCACC) should be added to the Committee’s programme for this session.

[PMG note: NCACC meeting slotted for 2pm on Thursday 15 May - part of the meeting may be open to the public].

Mr Bhengu added that they would be meeting with the Department of Defence (DoD) and the Department of Arts and Culture (DAC) on 7 May. He then suggested that the Committee proceed to interrogate and review the Select Committee on Safety and Security proposed amendments to the Prohibition or Restriction of Certain Conventional Weapons Bill [B7B-2007].

Prohibition or Restriction of Certain Conventional Weapons Bill (B7B-2007)
Mr Siviwe Njikela (Deputy Director: Legal Support – DoD) said he had assumed that the DoD contingent would be observing the meeting only, so he was caught unprepared but he would go through the National Council of Provinces amendments to this Bill.

He stated that the NCOP proposed amendments did not detract from the Bill. The first proposal was in Clause 1 on the definition of ‘non-detectable fragments’. He noted that a definition was provided in clause five, but that the NCOP/Select Committee felt the definition should appear in clause one which dealt with definitions. A definition of ‘prescribed’ was added as in “prescribed under regulation 50”. In clause five, the word ‘weapon’ referring to non-detectable fragments was deleted as it was decided that such fragments were not an actual weapon, but a component thereof. In clause nine, line 27, there was an issue over offences and penalties in terms of when senior officers issue illegal orders. The Select Committee felt there needed to be a clause covering this as there was concern that it would not be adequately covered by the normal criminal justice system.

The Chairperson asked if that meant that the issuing of illegal orders was not covered by any other Act prior to the raising of this issue.

Mr Njikela responded that there was provision, but if offenders were dealt with under another Act, there might not be appropriate penalties, in that the sentence might be too light. He continued that the Select Committee had debated clause 10(3) and took issue with the South African Police Service (SAPS) having the responsibility of registering notification and questioned their diligence. It was prposed to add “in the prescribed manner” after ‘possession’. Under clause 11, the issue of reporting was raised, the question of why the report from the Minister would be tabled after he had submitted it to the United Nations was raised, and they felt that it should be tabled beforehand, so this was amended. Under clause 15 it was stated that the Minister of Defence draft regulation “in consultation” with the Minister of Safety and Security, it was stated that the Minister of Defence’s right should not be subject to the discretion of the Minister of Safety and Security (see Appendix for full details).

On scrutinizing the version of the Bill that the Portfolio Committee had amended [B7B-2007], Mr R Shah (DA) was concerned that the Portfolio Committee’s proposed changes to clauses 7 and 13 had not been fully implemented by the Department. He reminded them that Clause 7(d) on Incendiary Weapons, specifically related to foliage not being harmed but the exemption of such foliage if they “are themselves military objectives military target” rendered the entire subparagraph null. Instead, they had decided to add a new clause, Clause 13, on Exemptions:

(1)The Minister may, on application by any organ of state or its agent, exempt such an organ of state or its agent from the prohibitions contemplated in sections 5 and 8 for the purposes of conducting research into development, testing and acquisition of counter-measures against the effects of prohibited weapons.
(2) Any exemption contemplated in subsection (1) must—

(a) be in writing; and
(b) state the terms and conditions of such an exemption.

The Chairperson said that if this was the case, then the issue raised by Mr Shah indicated an oversight by the Committee. As this Bill was received from the NCOP, it suggests that that it was adopted without certain errors being rectified or amended by this Committee.

Mr Ndlovu pointed out that they were supposed to be going over the NCOP amendments and they should stick to this.

The Chairperson agreed and asked for comments on the NCOP amendment. He referred to clause 15, where the NCOP suggested that the regulations be seen by Parliament before the Bill was promulgated. He said that this did not normally occur.

Mr Ndlovu commented that normally legislators did not burden themselves with dealing with the regulations. The Chairperson added that since 1994 they had never been concerned with regulations and that enough consideration had not gone into the proposed amendment.

Dr G Koornhof (ANC) asked if the DoD representative could refresh his memory as to why sub clause 15(3) was there.

Mr Njikela stated that the initial bill stated, that the regulations be tabled before Parliament “as soon as possible after publication”, but did not indicate in what capacity. The impression he received from the Select Committee was that they wanted to see the regulations “prior to promulgation”.

Ntuthuzelo Vanara (Parliamentary Law Advisor) stated that this was a policy decision.

Mr Ndlovu stated that it was out of order to say that Parliament should be part of the regulation-making process.

Dr Koornhof added that the original sub-clauses 15(1) and 15(2) were sufficient.

Ms A Van Wyk (ANC) stated that this clause had been adopted by this Committee as introduced. and now the NCOP/Select Committee amendments were making it worse. She added that they could request to see the regulations, but that they did not need to make this process part of the legislation.

The Chairperson suggested further engagement with the NCOP.

Dr Koornhof suggested they separate the two issues and deal with the NCOP amendments. If the proposed sub-clause 15(3) added an extra burden, he felt confident that the Minister of Defence would not allow it.

Mr S Ntuli (ANC) asked what the rationale behind the changed sub-clause was; he suggested that they consult with the NCOP.

The Chairperson agreed that this should happen and that he would try and find an immediate date for this meeting.

Castle Management Act Repeal Bill
The Chairperson stated that the Committee would be meeting on the Castle Management Act Repeal Bill on 8 May. Therefore he had asked the researcher to analyse the submissions and compare and contrast them for the Committee.

The Committee Researcher responded that the first submission was by a private citizen. It asked whether the military presence in the Castle of Good Hope would be maintained and if the DAC could maintain the facility. The Reserve Force Council was concerned that they had not been thoroughly consulted and there was legislation that mandated that they be consulted in all matters affecting the Reserve Force. They requested that the Bill state that the Castle would remain DoD property and that it would remain a military building run by the DAC, but still housing the Reserve Force. Hudson Bennet (Vice Chairperson: Castle Control Board) argued that Iziko Museums did not have the capacity to maintain the facility and requested that it remained within the DoD. The second submission was made by one W Steenkamp, representing a group of concerned citizens and a small dog; he submitted that a modest military presence deterred vandalism of the Castle.

The Chairperson stated that the process that was being taken was not the process they should be following. The DAC still needed to make a presentation and this would occur only the next day. Although the Bill had not been passed yet, the advertisement by the DAC advertising for positions managing the Castle was highly irregular, undermined the authority of the Committee and merely require that the Committee act as a “rubber stamp”. The Committee would hold both the DAC and DoD to account for their actions and determine what had informed this decision.

Ms P Daniels (ANC) pointed out that the Reserve Force was part of the DoD, yet they were making submissions, this indicated that the DoD had not even consulted internal components affected by the issue.

Dr S Pheko (PAC) stated that it seemed that there should be a policy on whether military history and culture should fall under the ambit of the DoD or DAC.

Mr Shah stated that they needed to go back and look at the issues that had been raised.

Dr M Schoemann (ANC) added that he had picked up on the discomfort around this Bill. He felt that before it was approved, the Committee needed to be very sure that this would result in an actual improvement. The DAC track record was not very good. He noted that Edinburgh Castle in the United Kingdom was run as a financially independent facility. He stressed the need to interrogate the two departments as to the best way forward.

Dr Koornhof stated that, in the light of the DAC advertisement, it indicated that the DAC advocated transfer of the facility, then “ironing out” the details afterwards. He stated that this was incorrect. The Castle contained three or four different sets of assets and who would manage them? He wondered if the DAC had budgeted for restoration to the sum of R7 million. He added that the DAC management of Robben Island was not comforting.

Mr Ntuli added that one picked up problems with institutions that got transferred. It was in their interests to ensure that the details were correct.

Mr Shah agreed with Dr Koornhof and Ms Van Wyk. The DAC must explain how they arrived at this juncture.

Dr Koornhof raised the point of Section 3 of the Cultural Institutions Act of 1998 which empowered the Minister of Arts and Culture to declare any institution subject to the Act.

The Chairperson replied that that was what had occurred, followed by the DAC going to the media in order to effectively circumvent the Committee.

Dr Koornhof raised the point that they needed to consult the DoD to enquire what this would mean for other military history museums.

Mr M Moatshe stated that it appeared that the DAC had declared a Unilateral Declaration of Independence, which could not be recognised. He added that before transferal, they needed to see full reports from both departments.

Mr L Diale stated that the DAC had undermined the Committee and needed to account for this.

The Chairperson replied that they had exhausted the matter and that the 7 May meeting would determine the way forward.

The meeting was adjourned.


Report of the Select Committee on Security and Constitutional Affairs on Prohibition or Restriction of Certain Conventional Weapons Bill [B 7B – 2007], dated 11 March 2008:

The Select Committee on Security and Constitutional Affairs, having considered the subject of the Prohibition or Restriction of Certain Conventional Weapons Bill [B 7B – 2007] (National Assembly – sec 75), referred to it, agrees to the Bill with proposed amendments as follows:
1.         On page 4, after line 26, to insert the following definition:
    "non-detectable fragments" means any device or material the primary effect of which is to injure by fragments which in the human body escape detection by X-rays;
2.         On page 4, after line 44, to insert the following definition:
    "prescribed" means prescribed by regulation made under section 15;

1.         On page 6, from line 4, to omit “weapon” up to and including “X-rays” in 
       line 5 and to substitute “non-detectable fragments”.

1.       On page 7, in line 27, after “8” to insert “or who orders or aids the
          the contravention thereof”.

1.         On page 7, in line 33, after “possession” to insert “in the prescribed
2.         On page 7, from line 38, to omit subsection (3) and to substitute:
                        (3)            The police official must record the notification contemplated in ubsection (1) and immediately arrange for the collection of the prohibited weapon or component part.

1.         On page 8, from line 9, to omit paragraph (b) and to substitute:
(b)        to Parliament before the Minister submits the report contemplated in paragraph (a).

1.         On page 8, from line 49, to omit subsection (2) and to substitute:

                        (2)            Regulations made by the Minister prescribing the matters stated in section 10(1) must be made after consultation with the Minister for Safety and Security.
2.         On page 9, in line 2, to omit “as soon as possible after publication” and to   
           substitute “prior to promulgation”.

1.         On page 9, in line 23, to omit “2007” and to substitute “2008”.


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