National Conventional Arms Control Amendment Bill [B45-2008]: briefing and Minister input and NCACC Submission

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Defence and Military Veterans

11 August 2008
Chairperson: Mr F Bengu (ANC)
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Meeting Summary

The Portfolio Committee met to receive a briefing by the Department of Defence and the National Conventional Arms Control Committee (NCACC) on the National Conventional Arms Control Amendment Bill. The Minister was present and asked members to take serious consideration of the proposal for legislating a Scrutiny Committee, as it carried a great risk to Cabinet. He stated that the NCACC was a subcommittee of Cabinet and was therefore directly accountable to Cabinet. By creating legislation for the Scrutiny Committee, it took responsibility further away from Cabinet. He suggested that this proposal be approached with trepidation and concern as it removed functions from Cabinet that related to sensitive areas of national security.

The Amendment Bill addressed two key objectives:
▪ to improve and facilitate the regulatory role of the NCACC in the transfer of conventional arms
▪ to bring the Act in line with business realities with which the NCACC and the defence industry are confronted.

Provision was to be made for the establishment of a Scrutiny Committee that considered applications and made recommendations to the NCACC. It suggested that less onerous control standards be placed on dual use goods and technologies. As a measure of control, recipient countries should be obliged to provide end-user certificates for conventional arms purchased from South Africa.

It was proposed that the NCACC be able to deal with the less serious violations of the Act and be empowered to administer penalties in compliance with the rules of administrative justice. Furthermore the NCACC should be allowed to issue guidelines for a Defence Industry Internal Compliance Programme. Linked to this, there should be the introduction of a grading system for company performance in terms of compliance with the set rules and conditions of conventional arms trade was proposed.

Also introduced was the concept of program approval that would facilitate trade and limit the strain on the arms control administrative capability. The NCACC would be provided with the requisite powers to issue notices to cater for the publication of lists of controlled items and make regulations on various provisions of the Act, including conditions applicable to permits.

The Bill proposed that the South African National Defence Force and the South African Police Service be exempt from permit requirements in emergency operations. Finally, it was proposed that the NCACC reported to Cabinet on an annual basis only and not on the current quarterly basis.

Challenges were raised by the Committee about the establishment of the Scrutiny Committee and the lack of timely report delivery by the NCACC which the Secretary for Defence conceded was a problem.

Meeting report

National Conventional Arms Control Committee (NCACC) Submission
Mr Dumisani Dladla, Director: Conventional Arms Control, presented the contents of the Amendment Bill to the Portfolio Committee.

He stated that the proposed amendments addressed two key objectives: firstly, to improve and facilitate the regulatory role of the NCACC in the transfer of conventional arms and secondly, to bring the Act in line with business realities with which the NCACC and the defence industry are confronted.

He noted that the amendments proposed the following:
▪ the scope of application be extended to include the regulation of conventional arms possession and domestic transfer of conventional arms.
▪ the Act make an allowance for the NCACC’s administration of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006.
▪ provision be made for the establishment of a Scrutiny Committee that would consider applications and makes recommendations to the NCACC.

Minister Mosiuoa Lekota interjected by asking members to take serious consideration of the proposal for legislating a Scrutiny Committee, as it carried a great risk to Cabinet. He stated that the NCACC is a subcommittee of Cabinet and is therefore directly accountable to Cabinet. By creating legislation for the Scrutiny Committee, it took responsibility further away from Cabinet. He suggested that this proposal be approached with trepidation and concern as it removed functions from Cabinet that related to sensitive areas of national security.

Mr Dladla continued that less onerous control standards be placed on dual use goods and technologies. He proposed that as a measure of control, recipient countries should be obliged to provide end-user certificates for conventional arms purchased from South Africa.

He also proposed that NCACC reported to Cabinet on an annual basis only and not on the current quarterly basis.

Furthermore he proposed that in order to deal with less serious violations of the Act, the NCACC be empowered to administer penalties in compliance with the rules of administrative justice.

Minister Lekota expressed his approval of this as the NCACC could deal with misdemeanours without the cumbersome court process.

Mr Dladla said that the Bill proposed that the South African National Defence Force and the South African Police Service be exempt from permit requirements in emergency operations.

In order to promote compliance best practice, the Bill proposed that the NCACC issue guidelines for the Defence Industry Internal Compliance Programme. Linked to this, the Bill proposed for the introduction of a grading system for company performance in terms of compliance with the set rules and conditions of conventional arms trade.

The Bill also introduced the concept of program approval that would facilitate trade and limit the strain on the arms control administrative capability. The NCACC would also be provided with the requisite powers to issue notices to cater for the publication of lists of controlled items and make regulations on various provisions of the Act including conditions applicable to permits.

Finally, the Bill allowed for the Act to be properly cross referenced to other relevant legislation.

Discussion
Dr G Koornhof (ANC) asked for clarity on the composition of the Scrutiny Committee. Were there only officials on it or were there politicians? Was it drifting away from the original Section 15 of the Act? He also noted that the heading of Section 23 which used to be Disclosure and Non Disclosure now stated Reports of Committees. He suggested that the old heading be retained.
He asked for an explanation of the relationships amongst the various bodies: the directorate of the NCACC, the Secretariat, the Inspectorate and the Scrutiny Committee. He also asked about capacity and questioned if additional constraints were being put on the human resource capacity and funding.

Dr Schoeman (ANC) also questioned the Scrutiny Committee and expressed his concern that there would be too much power in the hands of officials. He asked for careful consideration of the concept and expressed his reluctance to give a blanket approval for the establishment of this committee without its functions, roles and powers being clearly stated in the Bill. He also voiced his concern about the lack of reporting by the NCACC to Cabinet and to the Defence Portfolio Committee.

Mr Dladla addressed Dr Koornhof’s concern and agreed that the heading of Section 23 should remain as Disclosure. He said that the relationships that existed amongst the various bodies did not function at cross purposes. The Secretariat was established as a body dealing with applications, and it presented them via the Scrutiny Committee to the NCACC. The NCACC then makes a decision regarding the application and issues the permit and communicates this to the defence industry. Therefore the Secretariat acts as a bridge between the NCACC and the defence industry. The work of the Inspectorate differed to the Secretariat as its role was to enforce compliance in the industry and report on this to the NCACC. The NCACC could be considered as the mother body that controlled all the work of the Secretariat and the Inspectorate and had the final say on all matters.

Mr Dladla explained that the Scrutiny Committee was currently functional and already operational as a sub-committee of the NCACC in that the Secretariat received and prepared applications, put them before the Scrutiny Committee for consideration and made recommendations on the application to the NCACC, who had the final decision on the matter.

The Chair questioned why there was a need for the Scrutiny Committee to be legislated if it was an already functioning body. He said that there was caution to legislate this body into existence as it created an entity within an entity. 

The Secretary for Defence,
Mr January Masilela, then suggested that in light of the concerns raised by the Portfolio Committee and by the Minister, the Scrutiny Committee could be placed under the regulations of the Act and not be legislated upon.

Mr Dladla responded to Dr Koornhof’s concern about capacity and said that there was no implication for human resources and funding.

Ms P Daniels (ANC) stated that annual reporting as suggested in the Amendment Bill was not acceptable and suggested that a report be delivered by the NCACC every six months instead.

The Chair asked for the NCACC to honour the matter of reports, as no quarterly reports had been tabled. He expressed his concern that even the annual reports were not delivered on time and the NCACC needed to address this matter seriously, as the Portfolio Committee and Parliament needed to informed at all times.

The Secretary for Defence admitted that it would be reasonable to deliver a report every six months in order to facilitate the Committee’s oversight role and admitted that there had been difficulty in report delivery in the past.

The Chair asked for members to consider the concerns of the Committee, especially those relating to scrutiny. He stated that the Scrutiny Committee needed to be placed in the correct position. This matter required further interrogation and stressed that this task needed to be completed. He thanked the NCACC for the work done. He informed the NCACC that public hearings would be taking place and suggested that the NCACC read these submissions and consider them.

The meeting was adjourned.

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