The Committee first dealt with the failure of the Department of Defence to appear before it on a previous occasion, pointing out that this was a disrespect to Parliament.
The Department briefed the Committee on the action by the two unregistered unions – the South African National Defence Union and South African Security Forces Union and the former’s recent protest march at the Union Buildings. Also discussed was the split of the South African National Defence Union into splinter groups, and their conduct in general. The legitimacy of certain regulations of the Defence Act had been challenged by the unions. The regulations had a threshold requirement, which required unions to have a minimum membership to be able to participate in the Military Bargaining Council. There were disputes about whether the unions qualified or not. The Department expressed the view that it could not proceed with the military bargaining council because of the impasse over important issues.
During discussions, it was stressed that members of the unions were raising issues which had nothing to do with their real grievances and especially political and extraneous matters, whereas soldiers were expected to be apolitical.
The Chairperson said that they were posing a threat to the security of the State and undermining Parliament’s authority. They had also manipulated the Committee into engaging in a discussion on their existence and legitimacy when what should have been discussed were their real grievances. Some members even suggested members of the unions were guilty of sedition while others said that they did not deserve the support of Parliament. Questions were raised about how extensive this problem was and whether it indicated mismanagement on the part of the Department of Defence. It was suggested that the DoD should have anticipated the problem and pre-empted it.
The Defence Amendment Bill was also discussed.
Failure of Department of Defence (DoD) to report to Parliament on labour relations problems
The Chairperson reminded the Committee that they had last met with the Department of Defence (DoD) and the unions to facilitate resolving the impasse between the Department and these “so-called unions”. He said he wanted to avoid having to legitimise the unions, save by calling them by their names. He said that the Portfolio Committee had stayed away from recognising them as legitimate unions but had agreed that the Department should look into the grievances that they had raised between 2001 and 8 January 2008. It had been agreed that the right structures be established to work and assist on the resolution of issues. With the agreement of all, the Committee had proposed that it convene an Ad Hoc Task Team for this purpose.
He reiterated that at no stage had it been said that the Portfolio Committee wished to become involved in the unions’ issues. It had also been agreed that the Committee would urge the DoD to table a progress report in early May but despite twice trying to communicate with the Department, the Committee had not received a report. Only last week the Committee had been informed of an impending march by South African National Defence Union (SANDU). He had received the information through a colleague who gave him a copy of the demands that SANDU intended to make.
When informed of the planned march to Pretoria, the Chairperson said he had told Mr Jeff Dubazana (Chief Negotiator: SANDU) how disappointed he was about this course of action as the union had not communicated this to the Portfolio Committee.
He had called SANDF’s Chief of Human Resources, Lieutenant General Derrick Mgwebi, and told him to appear before the Portfolio Committee to give a progress report. The absence of a report-back defeated the facilitation by this committee and its intention to resolve the impasse. He had requested the DoD and its Secretary as well as Lt General Mgwebi to say why they had not responded to the Chairperson’s letters.
Secretary for Defence, Mr January Masilela, extended his profound apologies on behalf of the General. They had acted according to guidelines they had received from the Committee on how to deal with such problems. As a Command, they had delegated General Mgwebi - a three star General and Head of Human Resources - to personally take charge of the matter and they believed he had done so diligently. They had had over nine engagements from 4 April to the end of May. The General had done his best to try and find solutions to the problem but unfortunately the results had been disappointing, the bickering continued and they had made no headway, despite all their efforts.
Mr M Booi (ANC) said that with due respect to the General, he wanted to make it very clear that when respect was not shown to Parliament, this posed serious problems and put Parliament’s reputation at risk. Recent history had shown how certain people treated Parliament with disrespect and this should never happen again. It was a serious matter for the General to have shown a disregard for Parliament.
The Chairperson said he had spoken to the General on 6 June, who had apologised to him personally. He had therefore wanted the DoD to attend this meeting.
Labour Relations Progress Report by the Department of Defence (DoD)
Lt General Derrick Mgwebi, SANDF Chief of Human Resources, said it had become clear to them in March 2008 that they had to invite all the military trade unions and thus a letter had been sent to them asking them to attend a 4 April meeting. All of them had attended and an Ad Hoc Task Team had been established as mandated by the Portfolio Committee on Defence.
At that meeting, SANDU had split into two. The DoD had had to give them names so it referred to SANDU 1 led by Major Mosimane and that led by Mr Dubazana, they referred to as SANDU 2.
At the meeting of the 4 April, SANDU 2 under Mr Dubazana started to challenge them about their letter of invitation. In it, the DoD had requested that the unions send two members, who had been qualified, as elected members. As a department, it had been thought preferable to deal with uniformed officials.
The General said it had come as a surprise to him and to his department when the unions said the department could not dictate to them. By the end of the day it had become clear to the department that the officials of the unions did “not necessarily observe military protocol”.
Lt General Mgwebi said that they had requested the unions to forward the names of their representatives to them so that they would know who was representing them. SANDU 1 had furnished names there and then, while SANDU 2 had said that they were not mandated and were therefore not ready. The South African Security Forces Union (SASFU) had also said they were not ready. The DoD had instructed the unions to go back and advance these names so that that Ad Hoc Task Team’s work could commence.
On April 10, at the next meeting, the DoD had confirmed the names of those that would be available although SANDU 1 did not attend the meeting. Mr Dubazana of SANDU 2 provided his name and they were informed a second name would be forthcoming by the end of the day. During deliberations, it was decided to look at the terms of reference of the Ad Hoc Task Team and its rules of engagement. A long debate ensued, which took most of the day and a sub-committee was appointed.
At the following meeting on April 17, that sub-committee was expected to report back on the agreed terms of reference. They did return and a semblance of an agenda was established. SANDU 1 and SASFU were willing to sign and did indeed do so, but SANDU 2 said they needed a legal opinion. Lt Gen Mgwebi said that subject to correction, he did not recall whether they did in fact finally sign or not.
At the following meeting, the issues to be decided were the legitimacy of SANDU 1 and 2. The Ad Hoc Task Team had taken the attitude that it was not up to it to decide on the issue but up to the unions to come back to it with a united SANDU. The issue of the two SANDUs was not one of membership but rather one of leadership. That issue of leadership had become a bone of contention and was presently before the courts for a decision. Lt Gen Mgwebi said that in a nutshell, in terms of resolving the question of leadership, SANDU 1 had shown a willingness while SANDU 2 had not.
The Threshold Issue
Lt Gen Mgwebi said that the second issue in the terms of reference, was that of the threshold. According to Chapter 20 of the Regulations, to participate in Military Bargaining Council (MBC), a union needed a minimum membership of 15 000, but none of the unions satisfied that requirement. SASFU had accepted that they failed to meet the threshold while SANDU took the view that they did indeed meet it. The DoD adopted the view that it did not because although SANDU 2 placed its membership at 17 000, the DoD placed it at 13 000, and that of SASFU at 6 000, so that none of them met the threshold requirement. SASFU was saying that the threshold of 15 000 was too high and was challenging the constitutionality of the Regulations while the DoD disagreed. The DoD believed that a threshold of 15 000 was very low, especially if one considered that the membership of the military was in the region of 60 000.
Chapter 20 regulations
This issue concerned mainly SASFU which was challenging the constitutionality of these regulations, claiming that they needed to be revisited. The Ad Hoc Task Team had adopted the attitude that it would take note of the union’s concern but, as an ad hoc task team, could not entertain the issue of changing the regulations.
The main goal for all parties was to ensure that the MBC was quickly established and a debate ensued as to whether the MBC existed or not. SANDU 1 and SASFU maintained that the MBC did not exist because of the regulations while SANDU 2 was eager to see the MBC established.
The other issue was this: SASFU and SANDU 1 realised that if the MBC were established, they would not be eligible because of the threshold requirement. They therefore wanted the Ad Hoc Task Team to conduct the bargaining but the latter made it clear that was not its function in terms of the regulations. General Mgwebi said that the two felt that they could not therefore continue to participate in the committee process but “were smart enough” not to withdraw at that time. Instead they used the issue of the General’s absence to argue that they could not participate without his presence, even if he were represented by officials of the DoD. Eventually SASFU and SANDU 1 withdrew. Meanwhile SANDU asked the Ad Hoc Task Team to assist it to go to the MBC. The latter told them to write to the secretary of the MBC, which they did. A meeting was held on 28 and 29 May, which the two unions attended. SANDU 1 wrote to the chairperson of the MBC saying that they would not attend the first day of the meeting but on the second day they did come and asked to read their letter to the Ad Hoc Task Team. The chairperson allowed them to read the letter but then said he would not take the process further as long as there were two SANDUs.
General Mgwebi told the Committee that the language used by the two SANDUs against each other at the meetings had been “not something one would like to listen to”. In terms of how they conducted themselves, SASFU came out looking “more professional and civilised”. SANDU 2 at one stage also brought their president on board at the meeting and he endorsed the view that they had a right to talk the way they wanted. It became clear at the meeting that SANDU 2 had a strong legal team, which sat outside the meeting. Most of the time, it had been difficult to engage with them, because they asked for adjournments to consult with the legal team. They also said that they could not take a decision there because their decision-makers were not present and they wished to consult with parties who were likewise absent.
To sum up, looking at the way forward, General Mgwebi said the MBC could not move forward because of these issues. The matter of the two SANDUs had to be resolved so that the Committee could know who was the real SANDU and could engage with it. General Mgwebi said that the DoD recommended that members of the Committee accept its position and that the activities of the Ad Hoc Task Team be suspended until the unions met the requirements at issue.
Mr Masilela said that despite the difficulties, there was legally no need to engage with two splinter groups. He also pointed out that the unions had raised issues which had nothing to do with the real grievances but were extraneous political issues such as xenophobia. He said that the department was looking at how military organisations in other countries handled such issues. But it was clear, he said, that they could not continue to operate in this manner.
The Chairperson said that the Committee had never recognised the union. The question remained: what was being done by the DoD to address the challenges causing this kind of anger of the so-called unions. There was a suggestion of insubordination and the danger that instead of the military being the commander, it was the unions who were giving the commands. This placed the country’s security at risk. What was the DoD doing to address the core reason for the anger and discontent among unions? He asked if there might not be ulterior motives or forces steering this approach. He said that some of the issues, from what he had seen, were political ones, which was strange because soldiers were expected to be apolitical and simply act on the orders of their commanders.
Mr M Booi (ANC) said that it had to be made very clear that trade unions could not conduct themselves in such a manner. For Parliament to allow this and to become involved would be a misapplication of its mandate. He felt it important for the DoD to go into the constitutionality of the legislation and to engage the Constitutional Court because it would not be unfair to say that things “were falling apart” within the Defence Department itself. Was the DoD ready to meet the needs of ordinary soldiers?
Mr Booi said that Parliament also needed to stand up and take a stand on how finances with the DoD were being used to address problems such as unacceptable conditions facing the military in parts of the country. The Committee had been telling the department for years that it needed to sit on management and drive them. The Department was supposed to have travelled around the world looking at how other countries handled such matters but on the other hand, solutions imported from other countries would not necessarily work, because of the fact that South Africa was a constitutional state. Soldiers were dealing with the country’s security while the unions were crafting memoranda which had little to do with conditions in the military and which even had political undertones. It could be that tomorrow they would tell the military whether to join a peace-keeping mission in Zimbabwe or not.
Mr Booi concluded that they could not allow such a situation to continue because no soldier should be allowed to do that. The unions were beginning to usurp the authority of the country rather than honour the Constitution. If they did not take the initiative and stop them, those who were entrusted with the country’s protection and defence would be seen to be threatening the country’s security.
Mr R Shah (ANC) said that the Committee had made a great effort to try and bridge the gap between the unions and the department. The unions were not legal but in the interests of the country, of discipline and morality, the Committee had given them the time (to get their house in order). The fact that the unions could just pick up the phone and speak to the Chairperson of the Committee without any prior notification in writing indicated to him that they had undermined Parliament. The other question that needed to be asked was: Why were these people so angry when mechanisms and structures had been put in place in the Department to address their grievances?
He compared the situation to that of a pot boiling over and asked why, before it did so, alarms bells had not been ringing. As much as he condemned their actions, questions needed to be asked about how the situation had been allowed to reach this stage. In any other part of the world, soldiers who declared war other than at the behest of the Commander in Chief, were guilty of treason and sedition and that was exactly what it was. He said he would put them before a tribunal. What was at stake was the security of the State, of the country and also the integrity of Parliament. If all of these were thrown out of the window, one no longer had government.
Mr Shah pointed out that the General had said that while engaging in discussions with SANDU 2, that it had seemed that perhaps they were taking their cues from elsewhere and not just their legal representatives. His concern was that they were not just arguing about bread and butter issues but perhaps there were unknown political forces outside the unions. Perhaps the Committee needed to hold a closed meeting to look into these questions.
Mr V Ndlovu (IFP) said he wanted first to comment on the constitutional issue. He asked if the department had a right in terms of the Constitution, to speak to the various unions. Secondly, did the threshold requirement allowed the department to speak to the unions, only on certain issues. It should be made quite clear constitutionally and otherwise that the Committee did not and should not have a relationship with any trade unions. There should be no need for the Committee to talk to the unions about the regulations. As to why there were complaints, he said the Department should be clear that if people were complaining – and they had a right to do so – the Department had to come up with a solution in advance of any action that might be taken by anybody. The Department should also be a step ahead so as to be aware of the discontent in advance. He said he did not believe that those taking part in the march were members of the Defence Force. As far as he knew, when they were employed, they were groomed on how to behave and to prosper. It was untenable that they could present a memorandum which spoke about issues extraneous to them and their own grievances. How could they speak about matters such as xenophobia? By identifying them, the Department should deal with them strictly, if they were indeed SANDF members. According to the Constitution, the primary objective of the Defence Force was to defend and protect the Republic so the simple question which arose was: Was this march in defence of the country?
Dr G Koornhof (ANC) said that the Ad Hoc Task Team needed to engage, after the meeting, on what to do next. He was very disappointed about the turn of events because the National Defence Force was a national asset and it had to be protected at all costs. It had to be ensured that mismanagement and political influences did not eat away at this national asset. He said that what the General had reported to the Committee was definitely not what they had intended to have when the Act had been drafted. It was never their intention to have unions marching in front of the Union Buildings and making political demands. The DoD needed to inform the Committee what the extent of the problem was. Did it affect half of the human resources or the majority? Without knowing this, it was impossible to gauge how serious the problem was. If it was indeed a management problem, then it was the Department’s duty to resolve it, as the Ad Hoc Task Team could not micro-manage the Department.
He said that they could not afford to damage the military on issues such as these because it was not healthy, neither for the unions, the Department or indeed all members of the SANDF. The Committee should thank the Department for the thorough briefing and should ask it whether it needed the Committee’s assistance and in what regard.
The Chairperson said that such conduct and such marches were seen by the whole world and they reflected badly on the country. He said the intervention these unions had made on the 7th was targeted at Parliament and they had once again achieved their aim by going straight to the Committee and this while the whole world was watching.
Mr S Ntuli (ANC) said it was very clear why the Ad Hoc Task Team had been formed. The issues were that of the MBC and the threshold question. It was clear that even rights had limitations. The Regulations stated clearly that the unions needed to meet the threshold requirements. The Committee should “stop pussy-footing” around as these unions would not stop.
Mr Booi said that at all times they had played their role as Parliament, and had negotiated even though this was not in their constitution. But the bottom line was that if they failed to provide leadership, there would be yet another march and this time they would come and insult them in Parliament. A dangerous precedent had been set. The danger it created was that people might lose confidence in Parliament. He said they should not entertain these people. They had acted in an unbecoming manner and the Portfolio Committee should make a decision to cut off its relationship with them. South Africans were quick to go to court and litigate. If the unions took Parliament to court, they could put it in an embarrassing position. The Committee should let the unions continue engaging with the DoD. The Committee should also go on engaging with the DoD until it was satisfied on the issues at hand. Parliament’s responsibility was to continue building the morale of ordinary soldiers. Those in the trade unions did not deserve their support, if they continued in the manner in which they were currently conducting themselves.
Mr Shah urged the Committee to look critically at the DoD’s Human Resources Department and to make sure that all other grievance-addressing structures were running smoothly. He agreed with Mr Booi that they should make a decision not to entertain any unions in this building. The unions were however free to write to the Committee and they could then discuss the letter. He urged the Chairperson to make sure that he did respond to them in writing because otherwise they would not hesitate to go to the media. He also agreed with Dr Koornhof that the DoD should be very clear with the Committee as to whether the matter was an issue of management or capacity. If there were political reasons for the unions’ behaviour then the DoD should tell the Committee in a closed meeting. He said they should watch the unions very carefully because they “did not want an Idi Amin situation in the country”.
Mr M Moatshe pointed out that those members of the unions were also members of the SANDF. If they were marching and they caused damage or injury, it would be the responsibility of the Defence Force because if anyone sued, they would sue the Defence Force and not the unions. They had to be urged to control their own members.
Mr H Fazzie (ANC) described the action on the part of the soldiers as serious. If he were in that department he would deal severely with those soldiers. He believed they were acting not just as soldiers, but that certain political group or groups were behind them. He urged the Committee to pull up its socks and act against them.
The Chairperson said he thought that the Department had “heard it all”. Much as the Committee might feel anger, it was their duty to act responsibly. He told General Mgwebi that he had been “targeted” not because his name had been chosen by the Ad Hoc Task Team but because the unions had given his name as the Head of Human Resources. The General was picking up some key issues at the meeting. Some of those in the union’s legal team, who had been involved in the drawing up of the Act, had pushed the General into the trap of having to begin negotiating the issue of the existence of the unions rather than the grievances of the soldiers. This Committee was saying the same thing it had before – continue to apply the prevailing law and address the bread and butter issues of the soldiers. The Committee did not recognise them as unions. The Ad Hoc Task Team did not recognise the existence of the unions as registered unions and the unions had trapped the Department into negotiating what was not negotiable. The unions should have come and told it what their grievances were and not raised the issue of their existence. It came back to an issue of management. They had never before had a situation where people could petition the President and Commnander in Chief of a country and present political issues which ought to be resolved by politicians and not by soldiers. The Department needed to answer as to what it was doing, because the Committee would ask it and not the unions. He said that the Portfolio Committee would meet again to look at these issues and if necessary, have a closed meeting to do so.
Mr Masilela said the Department appreciated the discussion and took the comments very seriously and would deal with it.
Defence Amendment Bill
Clause 3 Substitution of Section 55 of Act / Clause 4 Insertion of Section 55A in Act
Mr Masilela addressed the issue of Section 22 of the Constitution and said that although it had been argued that Defence Force members were ordinary employees, the Court had ruled that the DoD was a unique environment and that the DoD should regulate its own conditions of employment. The DoD had acted accordingly, especially when it had realised that the legislative intent of that chapter had not been realised. The DoD went even further and proposed to Cabinet to amend Section 22 of the Constitution but the Department of Justice and Constitutional Development had refused.
Section 55 of Defence Act had been amended so as to introduce the Personnel Pay Review Board, to compensate for the fact that the Defence Force did not have the frameworks and mechanisms found in a civilian labour context. This had been done after considerable research on armed forces overseas. The section and its mechanisms were still in the process of being refined.
Mr Masilela said the DoD did face challenges as a department but these could not be taken to extreme. In terms of pay structures and remuneration and conditions of service, the Department’s soldiers were not very different from the rest of the public sector and in some respects they were better off. There was a whole range of benefits and incentives that other departments did not have. Whatever the issues and challenges, they did not justify the type of action seen on the part of the unions.
Mr Siviwe Njikela, Director of Legal Services: DoD, said it had always been the practice in the DoD to contract members of the Reserve Force to render service in the Force for a particular period during the year. But these members were under no obligation to respond to call-ups and render service at the behest of the Commander in Chief of the Defence Force. Even if there was a military crisis at a particular time, these members could legitimately refuse, saying they were not available.
Mr Njikela said the DoD felt that it was in the interests of the DoD that it should be able to call up such people whenever the need arose. But the State Law Advisor had explained to them that there was a problem in terms of the Defence Act. Section 11 of the Defence Act used the terms ‘Regular Force’ and ‘Reserve Force’ as distinct and separate terms but it used the term ‘Defence Force’ when it wanted to refer to the Defence Force collectively. Although Section 18 of the Defence Act defined all such members as members of the Force, a practice had become entrenched over years, which allowed members of the Reserve Force to choose when they wished to serve.
Mr Njikela said the DoD believed the solution was to amend the Act so as to provide that Reserve Force members would have to sign a contract, in terms of which they were obliged to serve at the behest of the Defence Force. Once they had entered into a contract with the Defence Force, they would subject themselves to the laws applicable to anyone serving in the Defence Force. They would have to serve whenever called upon to do so and there would be a sanction for failure to comply.
He then referred to the “critical issue” of a member of the Defence Force who had a contract that had been terminated, expired or lapsed. In the event of a war, in terms of Section 58, the Minister had the power to extend such a person’s contract in time of war. The DoD wanted to introduce a similar provision with regard to members of the Reserve Force, so that the Minister would have the power to extend their contract in the same manner. Once a member who entered into a contract was called up and refused to serve, there should be a sanction.
Clause 2 Insertion of sections 10A, 10B and 10C in Act 42 of 2002
He said that at the last meeting there had been a concern about Section 10 which provided for the Minister to appoint an Inspector General. The concern had been about the duplication of powers. He said that in terms of the section, there was the power to instruct employees of the Defence Force to conduct an investigation, with regard to accounting and other matters in the Department. But the section went on to talk of the Inspector General conducting the investigation so that the issue of duplication arose.
He said the idea was not to take away the powers of the Secretariat but to legislate for the powers of the Inspector General.
Mr Masilela said that the issue of the Inspector General was a big challenge and Section 10 should be amended to allow for the Force to instruct any employee to carry out an investigation not just within the Secretariat but within the Department as a whole. In fact such powers should not be confined to the Office of the Inspector General.
He said there was a debate within the Defence Force about the powers of audit as opposed to inspection and it was felt that the powers of inspection should be more utilised by the Chief of the Defence Force but the primary function of heads of departments should be internal audits.
Mr Shah asked, if there was going to be the Office of the Inspector General, what capacity it would have.
Would the Inspector General’s Office have a real capacity and authority to fulfil its mandate or would it just be another office, doing what the Secretariat was enjoined to do anyway?
Dr Koornhof asked what the consequences would be of amending Section 10 of the Act. He said that what was being done was to give to the Inspector General the powers to conduct inspections as well as internal audits. What was the distinction between external and internal audits?
Mr Booi said he had not heard anyone on the Committee referring to the Constitution. People would be sure to refer to it to justify their refusal to obey orders. For example, Reserve soldiers would invoke it to justify their refusal to serve. For that reason, whatever one amended or inserted, one had to be sure that the Constitution supported it.
The Chairperson thanked members and closed the meeting.
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