National Conventional Arms Control Amendment Bill [B45-2008]: Department of Defence briefing

Meeting report

Condolences on passing of Secretary of Defence
The Chairperson expressed the condolences of the Committee on the tragic loss of Mr January Masilela (Secretary for Defence). He also expressed his dismay at the press article published in the Sunday Times of the 26 August as being disrespectful and inconsiderate to the members of the Masilela family.

Dr G Koornhof (ANC), Dr E Schoeman (ANC) and Mr R Shah (DA) also expressed their disappointment at the article, especially that it was published on the day of the funeral. It was suggested by Dr Koornhof that a letter expressing the Committee’s discomfort be written to the Editor of this newspaper

Defence update
Dr Koornhof remarked that the defence update had not yet been furnished to the committee. He also enquired about the defence committee request to review the budget allocated to the Department of Defence (DOD) and particularly to the South African National Defence Force (SANDF). He requested that the Minister’s response to this issue be circulated to members of the Committee.

The Chairperson welcomed the Department and the National Conventional Arms Control Committee (NCACC). He stressed that the NCACC was not a sub committee of Cabinet, even though it was constituted by members of parliament.

Mr S Dumisani Dladla, Director, NCACC, Department of Defence briefed the Committee on the requests made regarding certain sections of the Bill. These related to the establishment of the scrutiny committee, the possession clause, the issue of quarterly reporting, and the issue relating to vetting.
 
Mr Dladla indicated that an “A” list containing the proposed amendments was prepared and circulated to the members. He noted that he would refer to this list as well as other additional items.

Firstly, as regards the issue of the scrutiny committee, the NCACC had given an instruction to withdraw the proposed amendment on that committee in its entirety. Parliament’s concern around this clause was understood and accepted. It was agreed that there seemed to be some misinterpretation of the role of the NCACC, as compared to the role of the scrutiny committee. It was proposed that Section 7(2) of the existing Bill be amended, to remove the requirement of Cabinet that one member of a scrutiny committee must sit on the NCACC. He noted that the scrutiny committee would never be legally recognised, and that all references to it should thus be removed from the Bill.

Secondly, he referred to Clause 21(4)(g)(i), that stated that possession would be permitted if such possession was only for the purposes of maintenance, repair or upgrade of controlled items. The reference to the ownership of a ‘duly authorized entity’ was amended to ‘registered person’.

Mr Dladla noted that the term ‘person’ as defined by the Act included a juristic person and a natural person and that a company could cover both uses, therefore such a term would be more applicable. He further noted that the words ‘maintenance, repair and upgrade’ would be retained as no new meaning to these words was being introduced.

Thirdly, Mr Dladla stated that it was proposed that the NCACC report annually to Parliament. This had caused great concern to Parliament. Following further instruction from the Board of the NCACC, Mr Dladla reported that quarterly or six monthly reports would be submitted to Parliament.

He also stated that the report would convey information on all types of transfers, including exports, imports, conveyances, and transit and that NCACC had therefore proposed a language that catered to that. Furthermore, he stated that the Committee would be provided with more detailed information, as the reports provided in the past had been very limited and might have been inconsistent with the information provided to the United Nations. The legislation was therefore being amended to include a number of factors, such as the country; the type of export, the category it fell into and also a full description of all items that were being transferred.

He also spoke to the issue regarding the NCACC reporting to Cabinet, and stated that the NCACC had an administrative function and was therefore subject to the laws of administrative justice, but that it also fell under the Executive. He noted that the NCACC had an obligation to make Cabinet aware of all the work it did, while at the same time it bore the duty and responsibility to come to Parliament to provide similar information.

Mr Dladla further noted that the ‘A’ list suggested, in Clause 14, that a report was made to Cabinet and also to a Committee as determined by Parliament, of all controlled item transfers concluded during the preceding quarterly or six-monthly period.

Mr Siviwe Njikela, Director: Legal Support, DoD, addressed the issue of vetting people who were doing the work of the NCACC. He noted that the security requirement for access to State information was governed by the Minimum Security Policy of the Cabinet. He also drew the Committee’s attention to the Defence Act, as well as the Protection of Information Act, stating that there was a broader framework currently in place for the purposes of vetting. He reminded the Committee that it could decide to have further security requirements put in place if it desired.

Clause by clause deliberations: amended clauses
Mr Dladla dealt briefly with certain amendments relating to wording, omissions, rejections and insertions in the Bill, relating to Clauses 1,3, 5, 6, 7, 8, 9, 18, 23 and the long title.

He also stated that the Memorandum needed to be re-worded to give allowance for the capacity and finances of the NCACC to be increased.

Discussion
Dr Koornhof welcomed the proposed amendments to the Bill, stating that it would now ensure effective parliamentary oversight and also transparency in democratic society.

He questioned that if the NCACC would retain the definition of a person as defined in the 1957 Act.

Mr Dladla addressed Dr Koornhof’s query regarding the definition of person and stated that they were comfortable with its definition in terms of the 1957 Act.

The Chairperson and Dr Koornhof emphasised that reporting must occur at a quarterly basis.

Dr Koornhof also required further clarity regarding the capacity, and if this would be addressed through additional structures.

Mr Shah also commended Mr Dladla for responding to the requests of the committee, but required further clarification as regards to disclosure, end user certificates and specification of a competent authority.

Mr Dladla said, in regard to disclosure, that it was very rare for a contract to have a confidentiality clause attached to it. He further noted that if it did occur, Parliament would be informed and would then make a decision if this would be made public.

Mr Dladla also spoke to the issue of end user certificates and stated that this related to component parts, which were small items that needed to be integrated in larger systems. He noted that the NCACC could waive the end user certificate requirement on condition that it looked at certain criteria, such as the country to which exports were made, the end user that involved, the integrity of the arms control system of the country, and the nature of the equipment being exported.

Mr Shah stated his concern that small items might perform critical functions for example a trigger to nuclear bomb was a small component and questioned if this waiver might be open to abuse.

Mr Dladla replied that the NCACC exercised the discretion by ascertaining the merits and demerits of that component part, what it would be used for, and who the end user would be. He noted that this waiver would not be exercised indiscriminately.

He also addressed Mr Shah’s query regarding competent authority and noted that it was adequately defined in the Bill.

The Chairperson suggested if the issue of vetting could be handled in this bill without the need to refer to other acts that might be applicable. He also asked for clarity on the procedure of reporting to Cabinet and reporting to Parliament. Furthermore he enquired if the reports were first given to the UN before being given to Parliament.

Mr Shah questioned that if the NCACC was not a subcommittee, then who would report to Parliament.

The Chairperson interjected to explain that the NCACC was an entity that reported to Parliament and that fell under a department. He noted that the Bill indicated that it must report to Parliament.

Dr Schoeman questioned whether the report would first go to Cabinet to be scrutinised and “sanitized” and would then come to Parliament, or whether two similar reports were given to Parliament and Cabinet, allowing the Committee to make inputs on unsanitised reports. He also stated that the Committee has the right to more information than the information furnished to the UN; and that this information was never forthcoming. This made it difficult for the Committee to assess if the work was being done in the correct way.

Mr Dladla gave a general response, to provide some background as to where the NCACC originated from, and the reason for its establishment. He stated that prior to 1994 Armscor had three divisions - namely Armscor manufacturing, Armscor acquisition and Armscor arms control. Subsequently, the manufacturing went to Denel, leaving Armscor with two functions. This was investigated by the Cameron report, which concluded that putting both functions under one umbrella allowed for no checks and balances, and which therefore suggested that the functions be independent of each other. The NCACC was then established to consider all transfers of conventional arms, whether public or private. He noted that one of the conditions for establishing the NCACC was that a Minister who had a line function interest in conventional arms should not be the chairperson of NCACC.

Mr Shah questioned if the information that came before Parliament was sufficient to provide the oversight function.

Mr Dladla replied that NCACC was part of the Executive, and that the NCACC was therefore accountable and responsible to Cabinet, the Executive and to Parliament. He stated that a report would be provided to Cabinet and to Parliament. He noted that the NCACC was a body on its own (sui generis) and that it was difficult to draw parallels with other committees, although it must account to Parliament and to Cabinet because of its executive function

He also stated that a report must be submitted to Parliament and then to the UN.

The Chairperson suggested that the report could be provided to the UN and to Parliament simultaneously.

The Chairperson reminded the Members that they were now considering refinement of, and not a complete challenge to, the Bill. These were key areas that requiring further clarity, especially with regard to the lines of reporting.

Dr Koornhof questioned if the annual report submitted to UN had a deadline and whether this was also applicable to parliament.

Mr Dladla replied that the report went via foreign affairs to the UN after which it would be submitted to Parliament.
 
The Chairperson suggested that the reports be provided simultaneously.

Mr Dladla agreed to this and suggested that the legislation be amended accordingly.

Dr Koornhof suggested that the ‘A’ list containing the proposed amendments be adopted and inserted into the Bill, together with the other amendments agreed upon today.

The Chairperson asked for all the amendments to be highlighted, and for a new draft of the Bill to be prepared for the Committee’s purposes at the next meeting, although it was not necessary yet to produce a formal ‘B’ version of the Bill. 

The meeting was adjourned.