The Parliamentary Legal Adviser and State Law Adviser were asked to comment on some of the concerns raised by Members around the Defence Amendment Bill. There remained several issues of concern to the Committee, which would be discussed with the Department of Defence on the following day. These included the financial implications of the Bill, and apparent lack of consultation with National Treasury and the Minister of Public Service and Administration. There was differentiation between Senior Management Service and other members of the Defence Force, and there remained uncertainty as to the roles of the unions. The powers of the Inspector General of Defence were unclear, as also the scope of those powers, how he would be appointed, and possible conflicts with the Constitution and Defence Act. The possible role for a Defence Ombudsman, which had been suggested by the Committee, was again raised and discussed. There needed to be clarity on training, the representivity of the unions, their representation on the Personnel Pay Review Board, whether such a review board was indeed necessary, and what was being raised by bargaining councils. In addition, the wording of Section 55 suggested that the Minister “may” establish a Board. A Member made the point that unless sufficient funds were available in the budget, this was all academic, and asked that National Treasury be specifically questioned on this point. Questions on financial implications would also be put to the Department. Clause 10, dealing with the Inspector General, needed further clarity, and the Department would also be asked why there was a need for this post.
Defence Amendment Bill (the Bill): Deliberations
The Chairperson noted that he had asked the Parliamentary Legal Advisor, Mr Ntuthuzelo Vanara, and the State Law Adviser, Adv Mongameli.Kweta, to address the Committee. However, he called on Members to give an indication of any concerns, including those arising from public submissions.
Mr M Shah (DA) said that there were some major issues. This included the financial implications of the Bill, the fact that the National Treasury had not been consulted, the differentiation between Senior Management Service (SMS) and other members of the South African National Defence Force(SANDF). He noted that the Minister of Public Service and Administration had not been consulted, and this was problematic. The powers of the Inspector General of Defence (IG) also seemed to be in conflict with the Constitution and the Defence Act, as the President was supposed to appoint the IG, and the demands of the unions could not be ignored regarding the question of remuneration and benefits of SANDF members.
The Chairperson called for any further objections to the Bill from the Members.
Dr G Koornhof (ANC) was of the opinion that since the Defence Commission and Reserve Force Council were requested to resubmit their views on the Bill, the Committee should wait for this. He believed that the Institute for Security Studies (ISS) should address the problem of the IG, and that the Committee should consider points made by the unions on the reporting lines of the various proposed bodies contained in the Bill.
Mr V Ndlovu (IFP) asked what the implications were of the SMS members and normal members of the SANDF being part of the same wage bargaining process.
Mr M Schoeman (ANC) asked what the reporting procedure was in other departments. He asked also what the role of the Defence Ombudsman (a child of the Committee’s own deliberations) would be, and how it would impact on the IG.
Mr Shah requested that clarity be obtained on the responsibility of the Reserve Force to train its own members, as this was not provided for in the Bill.
Mr S Ntuli (ANC) asked for clarity from the legal representatives on the 60/40 split between the Reserve Force and regular force members, and asked if they were legally regarded as a single force.
Mr Shah addressed the question of the representivity of the unions and he wondered whether it was correct that they should be represented on the Personnel Pay Review Board.
Mr Ndlovu asked what the threshold for representivity was.
Dr Koornhof noted that S A National Defence Union (SANDU) wanted representation on the Personnel Pay Review Board, but also wanted to sit on the Military Bargaining Council (MBC), and this was surely a conflict of interest, even assuming the threshold, which he explained would be 15 000 members, was met. He added that National Treasury had stated that the Department of Public Service and Administration (DPSA) and the Department of Defence (DoD) should determine salaries, and that the decision would then be referred to the bargaining councils. Consequently it could be argued that there was no need for a Pay Review Board.
The Chairperson called upon the Committee to formulate its own position and decide whether such a review board was necessary.
Mr Ntuli appealed for the uniqueness of a soldier’s function to be considered, as well as the very testing conditions under which they were required to work. It was necessary that the Committee be apprised of the actual salaries and benefits paid to soldiers before the matter could be considered fully. All of these factors could be considered by the Pay Review Board.
The Chairperson questioned the need for this, suggesting that a once-off Commission could resolve this matter more efficiently.
Mr Ndlovu said that this mechanism need not be in the legislation. He said that the bargaining councils should address all of the issues raised by Mr Ntuli. If not, then they were surely reneging on their responsibilities and failing the soldiers by not bargaining properly. If they were not advising the Minister of Defence then he wondered who else would.
Mr Shah declared that he sympathised with the soldiers’ plight, but that SANDU seemed confused in their demands. In addition, the various bargaining forums in the Defence sector (including the Military Arbitration Board and the Military Bargaining Council), when considered in conjunction with a putative Military Ombudsman and IG, made the lines of responsibility very blurred. He asked if there was not a need to revise all of these institutions and streamline them.
The Chairperson brought the attention of the members to the proposed section 55A being created in the Bill, to put matters into context.
Mr L Diale (ANC) then made the point that salary negotiations should address the overall working conditions of SANDF members.
Mr M Moatshe (ANC) asked what mandate the unions had from their members to represent them, and what their internal policies were.
Dr Koornhof made the point that SANDU seemed to be wanting to differentiate between the level 1 to12 members. SMS members of the SANDF had representation on the Pay Review Board and they also believed that the MBC should not be bypassed. Any recommendation made by the Pay Review Board should be prior to wage negotiations, but this implied that the unions would have a dual role.
Mr Ntuli believed that the threshold was too high for the unions and they would not qualify to enter into the bargaining process. He was of the opinion that unions were not strictly speaking necessary if all of the bargaining mechanisms were in place. However, in the absence of the Military Ombudsman, members were open to abuse, as it was difficult for soldiers to bargain on their own behalf and difficult, if not illegal, for them to be part of a union process.
Mr Schoeman pointed to the Cabinet Memorandum 3.2 (attached to the proposed Bill), which indicated that the only military trade union admitted to the process did not make provision for SMS members. If this were correct, then the motives of SANDU must be questioned.
Mr Ndlovu then expressed a critical point regarding the wording of the Bill. He referred to the fact that Section 55, setting out the establishment of the Pay Review Board, stated that the Minister “may” establish such a body. There was no time frame, nor was there a definite instruction obliging him to do so. It would be impossible to regulate this if the current wording were to stay, and this must be addressed.
Mr Shah told the Committee that all of the members’ concerns were academic unless sufficient funds were available in the budget.
Mr Ndlovu corrected him, declaring that as lawmakers, the Committee could not be limited by a budget, as its duty was to make recommendations where policy should be amended.
The Chairperson noted that the Ministers of Finance and Treasury had considered the budget carefully already, and must have foreseen the need for more funds.
Mr Shah agreed that members of the SANDF must be adequately taken care of, but was still of the opinion that the DoD budget was insufficient to address all of the concerns raised by the Committee.
The Chairperson called on the Committee to agree on an instrument for addressing the concerns of SANDF members regarding pay, salaries and benefits. He also enquired whether this instrument should be located, inside or outside of the Act.
Mr Shah agreed to look for a way forward but remained wary of creating new structures that duplicated existing functions. He noted that according to the documentation the National Treasury had not in fact been consulted.
The Chairperson then asked the Committee Members what questions they would pose to National Treasury, as it was incumbent upon them to prevail upon Treasury to apply its mind to the financial implications of the proposed amendments.
Ms P Daniels (ANC) asked how the roles of the Pay Review Board and the MBC could be delineated. She was sceptical of the power of the former. She also wanted clarity whether certain functions of the Board were not in the domain of the Military Ombudsman. She also agreed that the use of “may” in section 55 was problematic.
Dr Koornhof continued probing into the lack of clarity in Section 55 and queried the absence of financial implications in terms of the proposed amendments. He also believed that this section did not adequately address the concerns raised by the Committee. Dr Koornhof also asked that the proposals made regarding the Military Ombudsman be looked at to see if issues regarding the remuneration and working conditions of SANDF members were not addressed.
The Chairperson undertook to pose the questions on the financial implications to the representatives of the DoD on the next day.
There was some doubt as to whether the proposal of the Military Ombudsman had been formally tabled. Members eventually agreed that it had remained as an internal, informal document.
Mr Ntuli and Mr Ndlovu then addressed the question of the representation of the unions in military bargaining structures, and asked the legal representatives what their status was in terms of the proposed Bill.
Mr Vanara replied that he was of the opinion that the Commission on Gender Equality (CGE) was incorrect in regarding Clause 10 of the Bill as unconstitutional. The Inspector General of Intelligence was responsible for the oversight of all intelligence activities. The Inspector General of the SANDF was responsible only for oversight of the SANDF. It was therefore up to the Committee whether they wished to include or exclude subclause (d) of Clause 10.
Mr Shah reiterated his concern that it would be unwise to appoint an IG of Defence who had to report to the Minister of Defence, rather than to the President and Parliament. It also seemed to him that duplication would certainly occur, as two people would be responsible for overseeing the intelligence function of the SANDF.
Mr Ndlovu asked whether Mr Vanara was saying there was an overlap in the functions of the IG of Intelligence and the IG of Defence. He asked if the IG of Defence had any authority in terms of military intelligence.
The Chairperson concluded that it would be foolish to have two IGs, and he interpreted Mr Vanara as having said that the IG of Defence was precluded from having oversight over military intelligence.
Mr Shah repeated his concern that the Minister of Defence, rather than the President, had the power to appoint the IG of Defence. He repeated that clause 10(b) was not clear. It mentioned neither the intelligence monitoring function of the IG, nor mentioned anything about his authority to monitor each arm of the SANDF. It would, however, be difficult to imagine how he could fulfil his oversight function without having jurisdiction over the entire SANDF.
The Chairperson asked whether the function of the IG was not a more limited function than the national IG of Intelligence.
Mr Ndlovu said that the conflict related more to the name than to the function of the IG. He referred to paragraph 2.3 of the Cabinet memo.
Mr Schoeman suggested that the legal representatives could resolve the problem by defining the IG’s functions more clearly.
Advocate Kweta replied that the two IGs clearly had different jurisdictions.
The Chairperson expressed the wish that the DG of Defence were present to provide resolution to this issue.
Dr Koornhof again referred to the lack of a clear definition of the roles and responsibilities of the IG in the Defence Act. There remained the unresolved issue as to how the Minister would appoint the IG. It seemed to him that the new clause 10(b) did not talk to section 42 of the existing Act.
The Chairperson asked whether the IG’s function did not conflict with that of the DG, and if there was a not a danger of thus creating two centres of power in the DoD.
Mr Shah added that the question must be posed the next day to the DoD representatives as to why there was a need for an IG.
Further discussion took place on whether there was a need for the IG and whether the proposed Ombudsman of Defence could not fulfil a similar function.
The meeting was adjourned.
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