The Committee summarised their concerns with the Bill, which were: the existence of the Scrutiny Committee, the reporting of the National Conventional Arms Control Committee (NCACC) to Parliament, the capacity of the NCACC was not addressed, and the human resource and financial implications of the Bill. The Committee were determined to adhere to the date of 23 September 2008 for the debate and adoption of the Bill in the National Assembly.
All the concerns were noted and the Department of Defence sought to assuage those concerns. It was proposed that Clause 5 inserting Section 7A, B and C in the Bill - that dealt with the establishment, functions and meetings of the Scrutiny Committee – were to be removed as well as all other references to the Scrutiny Committee in the Bill. Instead there would only be references to subcommittees and a member of the NCACC was not required to sit on the subcommittee with the proposed removal of Section 7(2) of the Act. This was proposed because no member of the NCACC had actually attended a subcommittee meeting in the last five years.
The concern about NCACC reports and whether this should be done quarterly or annually was also discussed. The Portfolio Committee, although keen to have reports quarterly, realised that neither the NCACC nor themselves might have the capacity. The Committee was reasonably pleased with the proposed changes but would wait until the department provided a report-back of its 28 August meeting with the NCACC, before they took any decisions.
Passing away of Secretary for Defence
The Chairperson opened the meeting by observing a moment of silence for the late Secretary for Defence, Mr January Masilela. Committee members expressed their sadness about his death and the loss this meant for the country. The Chairperson said he was uncomfortable with the insensitive way the story was conveyed in the Beeld newspaper. He felt that South African culture did not allow negative views to be aired during other people’s period of pain. A media statement would be given by the Committee.
National Conventional Arms Control Amendment Bill [B45 – 2008]: deliberations
The Chairperson noted that the Committee had looked into what was contemplated in the Report of the Auditor-General. It pointed directly to the National Conventional Arms Control Committee (NCACC) and whether they had the capacity for the build-up of work. Parliamentarians should not limit themselves to the recommendations made by the Department. The major question was who would make up the membership of the Scrutiny Committee. It should be filled with members from the NCACC. However there were capacity challenges facing the NCACC.
Mr S Shah (DA) thought the Chairperson had captured all their concerns. The spirit in which the Scrutiny Committee was created was understood. He asked what were the duties of the Scrutiny Committee between meetings or sittings of the NCACC. Another concern was that the Chairperson of the NCACC could make a decision based on the recommendation by the Scrutiny Committee alone. He was concerned about how the parities would change if the officials were the decision makers.
Dr G Koornhof (ANC) highlighted some of the primary concerns of the Committee. The existence of the Scrutiny Committee proposed in the Bill and the deletion of requirement for quarterly reports and frequent reporting from the Bill. The capacity of the NCACC was not attended to in the Bill but it was mentioned in the Memorandum of the Objects of the Bill. Further, no human resources or financial implications for the state were indicated in the Memorandum. Concerns had been expressed on the issue of possession of arms. Another concern was that NCACC reporting was currently only on exports as opposed to reporting on broader matters. There should be a separation between the political and administrative issues. They should not pressurise the officials at this meeting to make any political statements and should rather take it up with the political heads.
Mr Dumisani Dladla (Director: Arms Control: Department of Defence) replied that they had taken into consideration the inputs by both the Committee and the public hearings process. Subsequently they had created proposed amendments to the Bill that addressed these concerns. The Department understood the concerns about the Scrutiny Committee. They had wanted to establish and formalise the Scrutiny Committee to avoid doubt about its mandate and functions. The Auditor-General had discussed with them the fact that the NCACC lacked procedures.
However, there was a section of the Bill that overlapped with the Act where it spoke about the functions, the composition and the meetings of the NCACC. The view was that those sections were to guide the work of the NCACC. However, the Scrutiny Committee had similar clauses in the Bill. The Scrutiny Committee had to be dealt with either in the Bill or in the regulations. He acknowledged that the Bill could give the impression that the Scrutiny Committee would want to assume powers from the NCACC. They proposed dealing with the Scrutiny Committee as one of the subcommittees of the NCACC. He suggested that the entire section that dealt with the Scrutiny Committee be removed. All subcommittees would then be dealt with according to the procedures in the Bill. It would be treated as a subcommittee.
The problem with the Scrutiny Committee was that it required a member of the NCACC to be part of it. It was proposed that a subcommittee be established without a member of the NCACC. They would do their duties by specific mandate of the NCACC. It was further recommended that Section 7(2) of the Act be deleted because it required that any subcommittee that was established, had to have a member of the NCACC on it. They were not bound to the Scrutiny Committee; it could be any committee with a specific task. The reality of the situation was that they would not be able to have NCACC members present at subcommittee meetings. They had to create a mechanism to allow the NCACC to deliver on its mandate. They would delete Clause 5 and instead they would deal with the subcommittees in a detailed manner in the regulations.
Dr Koornhof asked what was the original purpose of having a member of the NCACC sitting on the subcommittee.
Ms P Daniels (ANC) asked why it should be deleted as the department official stated that it in that way it would continue to have clout. Would it not further exasperate issues? Should they not rather be looking for a way to ensure that someone from the NCACC was sitting on the subcommittee.
Mr Dladla replied that when the legislation had been originally drafted, they did not contemplate that members of the NCACC would not be able to sit on the subcommittee. Over the past five years, it has never happened that a member of the NCACC sat on a subcommittee. The actual intention of the legislation was that if there was a particular issue that could not be resolved, then a subcommittee was formed to ensure that the issue was resolved. If they continued to have provision for an NCACC member sitting on the subcommittee, then it would always be lacking since the NCACC would be unable to attend meetings. The NCACC would decide who would sit on the subcommittees and they would not have to be directors-general of departments.
The Chairperson noted that the members were uncomfortable with the functions of the subcommittees regardless of where it was placed. It begged the question why NCACC members were not fulfilling their responsibilities. If a member was expected to serve on the subcommittee, why could such not serve on that subcommittee?
Dr Koornhof thought that they should not ask Mr Dladla about the members that serve on the NCACC as he could not answer. If it was true that the NCACC members were not adhering to the mandate, then it was a violation of the legislation. Whenever a subcommittee was formed, members of the NCACC should sit on that subcommittee. He assumed it worked the same way as Cabinet worked - when a subcommittee was formed, ministers would serve on that subcommittee. Why should it be different for the NCACC?
Mr M Fihla (ANC) thought that an NCACC member should be the chairperson of the subcommittee so that it had authority.
Ms Daniels wanted to know if they could be informed if NCACC members were sitting on subcommittees.
Dr E Schoeman (ANC) responded that it was unfair for Mr Dladla to respond to these questions.
Ms Mamoloko Kabushi (Chief Director: Legal Services: Department of Defence) noted that in Section 7 of the Act, subcommittees had to be formed by a member of the NCACC, afterwards other members could be added. She understood that when the Act was drafted it was not foreseen that the NCACC would not be able to sit on the subcommittees sufficiently and a vacuum would develop. Because of this vacuum, the NCACC had created the Scrutiny Committee to fulfil that mandate. However when its functions were questioned, they needed the committee to be formalised and its functions to be recognised. Once it was listed as a subcommittee then members of the NCACC must sit on the Scrutiny Committee. If the clause was placed in the Regulations of the Bill, the subcommittee was no longer a subcommittee but rather a normal committee with its own specific functions. As a subcommittee, however, it would have its own terms of reference and did not need regulations.
Mr Dladla responded that they needed the guidance of the Portfolio Committee on how to move forward. He understood the rationale but was not in a position to make any decisions. He suggested that he present the views of the Portfolio Committee to the NCCACC when they met on 28 August.
Dr Koornhof asked how many times did the Scrutiny Committee meet per annum.
Mr Dladla replied that they met monthly. The Scrutiny Committee met a week before the NCACC met. For instance, when he met with the NCACC on 28 August, he would present what happened at the meeting of the Scrutiny Committee.
Dr Koornhof noted that there were administrative problems and suggested that it be taken to the NCACC to find out their recommendations.
Dr Schoeman agreed with the suggestion that they should wait for the response from the NCACC.
Mr Dladla then went through the proposed amendments. Comments were raised on the following clauses:
Clause 3 amending Section 4
Mr Dladla noted that the revision included both trade and possession.
Mr Shah noted that with the inclusion of ‘services’ in Clause 3(a)(A) it could mean numerous services.
Mr Dladla replied that in an area of armed conflict, permission from government was needed before entry into the country, in reality the NCACC needed to be able to respond immediately any crisis.
Dr Koornhof wanted clarification that they did not require the assistance of the Committee to legislate the advisory process of the NCACC.
Mr Shah said he was wary to pass legislation that would require further amendments and that the NCACC did not have the capacity for what was to be passed.
Dr Schoeman understood that the Bill did not have an additional cost implication. The NCACC had already stated that because of personnel and administrative problems, they were not producing reports and that had to be addressed if it was going to function as envisaged. It should clearly be stated if there was a cost implication, to ensure that they were assisted.
Mr Dladla replied that cost implications were not included in the Bill because whether it was amended or not, the capacity constraints remained there. Some provisional structures were being put in place and they should provide feedback. The capacity of the NCACC was in the effectiveness of its structures. The institution needed a structure that were very strong and currently there were constraints.
Mr Shah understood that capacity could be increased.
Clause 5 amending Section 7
Ms Kabushi reminded the Committee that the removal of Section 7(2) would result in all subcommittees not requiring NCACC members to sit on the subcommittees.
Mr Theo Hercules (State Law Advisor) responded that the whole debate regarding subcommittees would be dependent on what the subcommittees functions were and what the Committee decided.
In reply to Dr Koornhof, Mr Theo Hercules noted the change to Clause 6 (amending Section 8(1)(a) of the original Act) was necessary if the Committee chose to remove Clause 5 (inserting Section 7A, B and C), as it made a reference to the Scrutiny Committee.
Dr Koornhof noted the inclusion of paragraph (g) and asked if there were any consequential effects on the definitions.
Mr Hercules replied that all the necessary definitions were already in the list and there were no consequential changes.
Mr Shah asked if they should be more specific on the location of testing since anything could happen.
Mr Dladla replied that when testing was performed, it is usually in a suitable environment.
Dr Koornhof wanted a decision on whether it was quarterly or six-monthly reports and the clause did not say what should be reported.
Mr Dladla replied that the content of the report would remain the same annually. If they were to report quarterly or bi-annually then it would contain projects that might not have been completed. Their view was that if they were to report bi-annually, it would be more practical.
Dr Schoeman replied that if they were to report quarterly, they would always read the report in conjunction with the previous report. It would add to the workload of the Portfolio Committee as well, but he felt that regular quarterly reports would ensure proper reporting.
Mr Shah thought that it would be best to have quarterly reports because then the Committee could be kept up to speed with all the projects.
Ms Daniels noted that the Committee had not received quarterly reports before there was a growth. Now when there was a growth, they still had not received reports.
Mr Shah asked if it was true that the “800 companies” was not an actual figure of 800 companies but rather that there were companies that were registered but not functioning.
Mr Dladla replied that the database had informed him that there were approximately 800 plus companies. Obviously some of the companies might be dormant. Registration lasted for three years. The 800 companies mentioned were those companies with valid permits.
Dr Koornhof suggested that they should not force the issue. Perhaps the Portfolio Committee might not have the capacity to have quarterly reports for instance they were supposed to receive quarterly reports from Armscor and had not received any for the past two years. Further he asked if they found balance in the clause because it mentioned a “committee referred to by Parliament” and elsewhere in the Bill it just mentioned “a committee”.
Mr Dladla replied that it could go anyway that the Committee chose.
The Chairperson commented in response to the Dr Koornhof that annual reports were always referred to the Portfolio Committee and that quarterly reports were referred to the Joint Standing Committee. They were still looking into amalgamating the two committees - which was still under discussion.
Mr Dladla suggested that they should leave it at just Parliament for both quarterly and annual report and Parliament could decide which committee would deal with it.
Dr Koornhof mentioned that in the revised clause it was stated that the quarterly reports went to cabinet and Parliament and asked if it should remain as such.
The Chairperson replied that it was in the original Act and that it said that it should remain as such. He added that Cabinet should report to Parliament.
Mr Dladla read out the revised clause, “A court convicting any person of an offence referred to in subsection (1)(a) [;(b)] or (c) may, in addition to any other penalty which it may impose, order seizure and forfeiture of any goods, or any other article, or any material or substance in respect of which such offence was committed.”
Dr Koornhof asked if they had consulted with National Treasury because they usually had guidelines.
Mr Dladla replied that they had not consulted the National Treasury. However there were certain procedures that were used in dealing with these items.
The Chairperson noted the two media statements from the Committee and the Department and Defence on the death of the Secretary of Defence had gone out to the media.
The Chairperson adjourned the meeting.
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