The session began with a recapitulation of questions raised that had not yet been satisfactorily answered, which were posed to the two legal representatives, from the Department of Defence and the Office of the Chief State Law Adviser. The questions related to the apparent duplication of roles between the Inspector General of Defence and of Intelligence, and whether some of the duties were not being duplicated by the Director General. The reporting lines and responsibilities of the various bodies involved in the wage bargaining process were scrutinised. Members queried the desirability of including or excluding the Defence Force members from the centralised bargaining process which was common to all employees in the public sector. The wording of the amendments to Section 55 of the principal Act were problematic, and Members felt that this was not clear, allowed for too many interpretations, and did not seem to link well with the existing provisions of the Defence Act. Members were not convinced that there were no financial implications to the Bill, despite the assurance of the Department. Neither the question of the financial implications, nor that relating to the vague wording of the amendments to Section 55 were addressed to the Committee’s satisfaction. The legal representatives claimed that it was the intention not to make the Bill too prescriptive. Members insisted that the intention of the original Defence Act was not to give the Minister the final power to approve pay, salaries and entitlements, and it was suggested that the Secretary of Defence respond to this issue. Members also insisted that the legal representatives check whether there was any conflict with other existing legislation. It was resolved that further responses were still needed from the Department and that the Committee would sit to resolve the Bill the following week.
Defence Amendment Bill (the Bill): Deliberations
The Chairperson recapped the previous day’s session and then allowed the members to state their main concerns clearly. Questions were then posed to the two legal representatives present: Mr Siviwe Njikela, Deputy Director: Legal Support, Department of Defence, and Adv Mongamezi Kweta, State Law Adviser, Office of the Chief State Law Adviser.
Mr M Shah (DA) reiterated his doubt for the need of an Inspector General (IG) of Defence whose mandate seemed to overlap with that of the Director General of Defence. He referred to further concerns that the IG would report to the Chief of the South African National Defence Force (SANDF) and the Minister of Defence, rather than the President. It was also strange to him that the Department of Public Service and Administration had been consulted on the financial implications of the proposed bill, but National Treasury insisted that it had not.
Mr V Ndlovu (IFP) asked for exact figures for the pay and benefits of level 1 to12 members of the SANDF. He noted the absence of a statutory function for the IG in the Cabinet Memorandum appended to the Bill, and mentioned a number of contradictions. The IG’s function seemed to clash with that of the Military Police, the Pay Review Board (PRB) appeared superfluous and the lack of certainty caused by the use of the word “may”, when dealing with Section 55 of the principal Act, were the most pressing concerns. The fact that the Secretary of Defence also seemed to be deprived of a job by the IG was also a worrying factor.
Dr Koornhof (ANC) was unsure how the Military Bargaining Council (MBC) could be responsible for determining the pay of SANDF members, in terms of section 55(1), as there was no evidence that it was actually functioning. The Public Service Act seemed to preclude the MBC and Pay Review Board because it required a uniform, centralised bargaining process.
Mr V Ntuli (ANC) queried whether Members were of the opinion that the SANDF must be included in a single public service, in view of its specialised role. It would be unfair to grant SANDF employees some of the benefits of other public service employees, but deny other benefits. For instance, he queried what would happen if they were to insist on the right to strike.
Mr Ndlovu commented that the lack of clarity had largely arisen because of a lack of proper input from the Department of Defence (DoD).
Mr Siviwe Njikela replied that the IG’s function related to auditing, anti-corruption activities, investigation and the like. He said that the Military Police were in a similar situation to the SAPS in terms of having a lack of independence and lack of capacity to deal with certain specialised crimes and corruption. It was for this reason that the need to legislate the powers of an IG had arisen.
On the question of reporting lines he stressed that while the IG of Intelligence had an oversight capacity encompassing the entire intelligence community, the IG of Defence was an internal management tool for the SANDF. He added that the proposed amendment did speak to section 42 of the Defence Act in that it broadened the functions of the IG.
Mr Njikela continued that the DoD saw no additional financial implications because Senior Management Service (SMS) members had always received a determination from Department of Public Service and Administration (DPSA). When the SMS structure had been introduced into the public service in 2001, the problem arose that SMS members in the SANDF could not be subject to two bargaining processes. The proposed structure in the Bill meant they now had a similar, but separate, bargaining structure. Because soldiering was a distinct, unique activity, as Mr Ntuli had rightly suggested, the Pay Review Board had been called into existence to assist the Minister in affording suitable pay to SANDF members, although it remained merely an advisory structure. Further, the MBC was now about to come to life to assist in this process.
Mr Njikela said that the IG could have a dual function because he was not subject to the Secretary of Defence.
In conclusion, Mr Njikela conceded that it was probably not correct to include the SANDF in the Public Service but it should be investigated what other countries did in terms of the remuneration of their soldiers. The Labour Relations Act and Basic Conditions of Employment Act were not applicable to the SANDF, but there was no reason why the Force could not have its own dispensation to determine its own salaries.
The Chairperson asked Mr Njikela whether the Reserve Force had been adequately dealt with in the Bill.
Mr Njikela replied that a proposal had been sent to the State Law Adviser, though it was not final and had no status.
The Chairperson replied that a draft would be sufficient to show the Committee. He noted also that Mr Njikela seemed to be tacitly admitting that he had not yet investigated how other countries remunerated their armed forces, despite the request from the Committee to do so. His main concern was whether two parallel systems for the remuneration of government employees were necessary.
Mr Shah said that Mr Njikela had confirmed there were no financial implications, but he thought this was impossible, given the scope of the amendments. He restated his grave concerns regarding the uncertainty of the nature of the position of IG and the extent of the oversight role the person would play.
Dr Koornhof reiterated his previous question as to whether it was practical that IG reported both to the Secretary of Defence and the Chief of the SANDF.
Mr Ntuli added his concern that in the case of fraud being committed in the office of the Secretary of Defence, the IG’s role would surely be compromised.
Mr Ndlovu referred to the problem of numerous structures being involved in the pay review process. If the MBC, MAB, Pay Review Board, Minister of Finance and Minister of Public Service were all involved he wondered how could any conflict be resolved. He reiterated that the use of the word “may” in section 55 opened the door for uncertainty and lack of clear decision making.
Mr Njikela replied that it was difficult to fully cost all the implications, especially as many were still concepts. He noted that it was in practice difficult to draw the line between the IG of Intelligence and the IG of Defence.
Mr Njikela said, in terms of salary negotiations, that the MBC negotiated on behalf of all members and that the Minister of Defence did not have to negotiate with the DPSA, since any dispute would be referred to the MAB.
Dr Koornhof was unhappy that unresolved contradictions remained.
Mr Njikela passed the question to Advocate Kweta, who simply stated that the Minister of Defence would only determine salaries and as this did not amount to an amendment of the Act, there was no conflict.
Dr Koornhof pointed out that section 55 of the Bill did not say that the Minister must determine salaries, only that he “may”.
Advocate Kweta said that the bill aimed not to prescribe and therefore there was no contradiction.
Dr Koornhof persisted that the intention of Section 82 of the Defence Act was never to give the Minister final power to approve pay, salaries and entitlements, but section 55 as now amended by the Bill would give the Minister this power. Consequently it was necessary to determine the original intention of section 82.
Advocate Kweta was confident that there was no constitutional conflict with the existing provision.
Mr Ndlovu suggested that the Secretary of Defence should respond because neither of the legal representatives had given a clear answer. He was adamant that it was not politically correct to change policy without giving a reason for the change, as this would open the Bill to possible legal challenges.
Dr Koornhof asked the legal representatives whether they could assure the Committee that the Defence Amendment Bill was in no way in conflict with the Public Finance Management Act (PFMA), the Public Service Act, or the Public Management draft. If such assurance was forthcoming, he would rest his case.
Mr Ntuli reiterated that this concern must be noted, because a substantive answer was required. If this answer could not be given today, then the legal representatives should do some research on the matter.
The Chairperson agreed, as the Bill had to be finalised by the committee by the end of the next week.
Mr Shah also called for absolute clarity on the roles and responsibilities of the various bodies contained in the bill.
Mr Ntuli asked for a note of all of the lessons learned regarding the management of the SANDF since integration, saying that the Committee still did not have the Defence Review in its possession.
The Chairperson stated that the current disjuncture between the existing Act and the Bill must be resolved. If there was indeed a need for amendment, then clear reasons must be furnished. He concluded the session by saying that the Bill was due to go to the House by 27 June. It would be necessary, therefore, to sit next Wednesday and pass the Bill at Committee level.
The meeting was adjourned.
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