National Conventional Arms Control Amendment Bill [B45-2008]: deliberations

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Defence and Military Veterans

15 September 2008
Chairperson: Mr F Bhengu (ANC)
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Meeting Summary

Members highlighted their concerns in respect of the clauses in the National Conventional Arms Control Bill dealing with administration fines, exemption and end-user certificates. The Committee requested the Department to revise the explanatory memorandum on the Bill so that it was consistent with the main body of the Bill. The Department explained that Clause 19 was aimed at empowering the National Conventional Arms Control Committee to impose fines for administrative violations because such matters would take a long time to finalise through the court process. It was not intended to usurp the powers that would ordinarily vest in the courts, because an accused would be allowed to elect the jurisdiction in which he or she wanted to be heard.

The Department then presented a proposed new draft of the Bill, incorporating changes that had been agreed upon. It was highlighted that new definitions were now included for  “armed conflict”,  “conventional arms” and “domestic transfer”. A new clause 2(d) was included to direct the NCACC to fulfil any obligation imposed under the Mercenary Act. All references to the Scrutiny Committee were expunged from clauses 5 and 6. A new Clause 7 empowered the inspector to call upon the police to assist with the execution of their powers. Clause 8 had been removed. Clause 9 was corrected to broaden the functions of the Auditor-General to cover the affairs of the Committee. A new subclause (g) had been inserted into Clause 10, to give effect to recommendations during the public hearings, to make a specific exclusion or exemption in the case of maintenance, repair or upgrade of controlled items. Clause 11 was clarified by a new subclause imposing obligations in respect of re-exportation of controlled items. Clause 17 now specified the ways in which the National Conventional Arms Control Committee must account, and Clause 18 now set out administrative penalties, but retained the option to use the Courts. Clause 20 set out exemption requirements in instances of legitimate emergency operations and deployment. Members asked questions why provisions requiring the concurrence of the Minister of Finance in certain decisions were deleted, questions around the vetting and security clearances and declaration of interest, and one Member queried the directorship of the Acting Secretary for Defence in a company. Doubts were raised as to whether there was meaningful input into the subcommittees and Control Committee, and it was suggested that the regulations must contain a stipulation that reminded Cabinet members of their obligation to meet as members of the Committee, but other Members disputed whether this was necessary, pointing out that the Committee had the power of oversight.

Meeting report

Opening Remarks by the Chairperson
The Chairperson welcomed Members as well as the officials from the Department of Defence (Department or DoD). Thereafter, he expressed concern that the media was privy to information that the Committee lacked. To support this claim, he alluded to specific newspaper reports, which discussed, in detail, matters of which the Committee had no knowledge. The most striking articles included an analysis on whether the country was defenceless to air attacks, and a theory on why the Department had failed to submit its update to Parliament. He hoped that officials from the Department would refer the Committee’s concerns regarding this matter.

Update on the Sunday Times Article
The Chairperson informed Members that he had written a letter to the Sunday Times to express the Committee’s disquiet regarding their obituary of the late Secretary of Defence, Mr January Masilela.

In addition, the Chairperson noted the recent passing away of two South African National Defence Force (SANDF) soldiers in foreign territories. He pointed out that in other countries, such occurrences were given prominence and the deceased soldiers were commemorated accordingly. However, in South Africa, the passing away of such individuals was either ignored or not accorded the proper recognition. In light of this, he had requested the Department to forward the names of all those who had either passed on or sustained injuries since 2004 - the duration of the Committee’s term- during active service, so that Parliament could pay their respects to the individuals concerned and their affected families. In addition, he hoped to arrange a debate in the House in order to recognise those who continued to serve in the SANDF.  All of this was aimed at “elevating the defence force into the pedestal befitting the soldiers”.

National Conventional Arms Control Amendment Bill (the Bill)
Discussion

At the outset, the Chairperson affirmed the Committee’s intention to produce a good piece of legislation. In that regard, he informed the Department that the Committee would continue to interrogate various provisions, so as to avoid a situation where the President referred the Bill back to Parliament because it did not comply with constitutional imperatives.

Explanatory Memorandum
Dr G Koornhof (ANC) addressed two issues. Firstly, he noted that the term “competent authority” was defined in the main body of the Bill but was not referred to specifically in the explanatory memorandum on the Bill. Conversely, he observed that while the explanatory memorandum made mention of various other legislation that affected the work of the National Conventional Arms Control Committee (NCACC), nothing was spelt out within the main body of the Bill itself. As a result, he requested that both omissions be remedied.

Mr Siviwe Njikela, Director: Legal Support, DoD, demonstrated, in relation to the second issue, that Clause 13 not only made specific reference to the other pieces of legislation, but also described how each one interacted with the NCACC.

Mr Dumisani Dladla, Director: NCACC, DoD, gave an undertaking that the Department would revise explanatory memorandum to ensure consistency with the Bill.

The Committee agreed to this amendment.

Clause 20- Exemption
Dr Koornhof probed two issues in section 25A. Firstly, he enquired whether it was necessary to define the terms “special operation” and “emergency operation”. In addition, he sought clarity as why SANDF and the South African Police Services (SAPS) would be granted an exemption from the provision of the Act, in cases of an emergency or special operation, in relation to the export of controlled items.

Mr Dladla noted that the phrase “special operation” was a common term in the military industry. However, he conceded that there was validity in defining the term so that it did not lend itself to various interpretations. Finally, he added that a definition would ensure that the discretion exercised by the Chairperson and one member of the NCAAC was restricted.

Mr Dladla, speaking to the exemption query, then argued that SAPS and SANDF should be exempted from permit requirements in instances of emergency special operations and deployment. This would be done to ensure that the SANDF and SAPS attended to all security emergencies but without derogating from accountability and responsibility requirements in controlled items’ transfer.

The Chairperson was satisfied with both explanations.

Mr R Shah (DA) questioned whether the Department could guarantee that the items that were exported in the case of a special emergency would be the same as the items that were retuned. 

Mr Dladla assured the Committee that the Department had a rigorous process in place to ensure that there was reconciliation between exports and imports. He added that whenever discrepancies arose, this would have to be accounted for.

Mr Shah expressed concern that the provision could be abused. He asked what would happen in a case where weapons, which were not subjected to scrutiny because they were exempted, were exported and then used to undermine another State.

Mr Dladla replied that even in such a case the NCACC would require documentation, which guaranteed that the deployment was for a lawful and legitimate exercise.
 
Clause 19-Administrative fines
Dr Koornhof expressed concern that the clause had the effect of equating the decision of the NCACC with that of a court judgment. Accordingly, he questioned whether this provision was in line with the Constitution, which stated that the Courts were the highest authority to make a decision on legal issues in the country.

Mr Njikela explained that the provision was aimed at empowering the NCACC to impose fines for administrative violations because such matters would take a long time to finalise through the court process. In addition, he emphasised that the provision was not intended to usurp the powers that would ordinarily vest in the Courts, because an accused would be allowed to elect the jurisdiction to which he or she wanted to be subjected. Lastly, he reiterated that there was no unilateral removal of an individual’s constitutional right of access to the Courts.

Dr Koornhof added that subclause 10 prevented the prosecution of an individual who had paid an administrative fine under the Act. Consequently, he examined whether the provision was constitutionally sound.

Mr Njikela believed that it would be unfair to subject a person to a fine, and then expose him to a prosecution later on the same issue.  Also, he indicated that there was other legislation, such as the Competition Act, which contained a similar provision.

Dr Koornhof sought an assurance that if the Committee passed the Bill, there was no possibility that it would be referred back to Parliament on the grounds that these issues were unconstitutional.

Mr Theo Hercules, Principal State Law Advisor, Office of the Chief State Law Advisor, explained that when administrative fines were imposed, the NCACC must have regard to the rules of fair administrative action. He also gave an undertaking to reflect on this matter further and return with a firm response.

Dr E Schoeman (ANC) expressed doubt as to whether the NCACC was equipped to weigh all the pros and cons and provide a judgment similar to that which a judge would have given.

Mr Dladla indicated that the administrative fine would be the result of an administrative process. Similar to the Courts, the NCACC must apply the laws of administrative justice. This implied that the accused would be given an opportunity to present his case and would be entitled to legal representation. In addition, he suggested that the regulations be crafted in a manner to give effect to the laws of administrative justice. Lastly, he made a commitment that the Department would consider this matter further and thereafter provide feedback to the Committee.

Clause 14 -End-User Certificates (EUCs)
Mr Shah referred to paragraph 3, and queried under what terms and conditions the NCACC would exempt an exporter from providing End User Certificates (EUCs). He argued that the provision could be misused and urged the Department to include such criteria in the regulations.

Mr Dlaldla explained that as a measure of control, recipient countries were obliged to provide EUCs for conventional arms they purchased from South Africa. This was an international rule and practice applicable for arms trade. The exemption from the EUC requirement would be done on a case-by-case basis, on application, and on such terms and conditions as may be prescribed. When interrogating the application, the NCACC would have to take into account certain factors such as the nature of the item, the intended use of item, the identity of the end-user and the standing of the arms control system of the country where the item was being transported to. This ensured that the decision was not arbitrary and was done in accordance with a particular criterion. Lastly, he advised that the conditions could be catered for in the regulations.
 
The Committee concurred that that such details must be included in the regulations.

Proposed new draft of the Bill
Mr Dladla noted that the Committee and the Department had reached consensus on several points in the previous meeting. As a result, the Department had updated the draft version of the Bill, now tabled as the draft Bill of 15 September, to incorporate and reflect all the amendments that were agreed upon. He highlighted that new additions were written in italics and underlined twice, while deletions, which also appeared in italics, were crossed out. (See attached document)
.

Clause 1
Mr Dladla highlighted the insertion of the term “armed conflict” in the definition of the Bill. The definition was taken verbatim from the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act (Mercenary Act).

Mr Dladla noted that the term “conventional arms” was substituted with “controlled items”, wherever it appeared in the Bill.

The Department had also reworded the definition of “domestic transfer” to accommodate the recommendation made by Armscor.

Clause 2
Mr Dladla drew the Committee’s attention to the insertion of a new Clause 2(d), which directed the NCACC to fulfil any obligation imposed under the Mercenary Act.

Clauses 5 and 6
Mr Njikela indicated that all references to the Scrutiny Committee were expunged form the Bill.

Clause 7
Mr Njikela explained that the new Clause 7 empowered the inspector to call upon the police to assist with the execution of their power.

Clause 8
Mr Njikela indicated that the clause had been removed in its entirety because it made reference to the Scrutiny Committee.

Clause 9
Mr Njikela stated that the Department had erroneously inserted the words “financial records” and this was now being replaced with the word “affairs”. Furthermore, the functions of the Auditor-General had been broadened to cover the affairs of the Committee.


Clause 10
Mr Njikela indicated that the there was a new insertion of a new subclause (g). This was to give effect to the recommendations during the public hearings, to make a specific exclusion or exemption in the case of maintenance, repair or upgrade of controlled items.

Clause 11
Mr Njikela clarified that the concluding new subsection 14(5A) imposed an obligation on a person to ensure that the re-exportation of controlled items did not violate end-user requirements set by any foreign supplier.

Clause 17
Mr Njikela reported that the Clause made provision for the NCACC to account to the Cabinet, Parliament and the United Nations. The Clause specified that a quarterly report must be tabled to Parliament regarding the transfer of all controlled items.

Clause 18
Mr Njikela summarised that the clause imposed administrative penalties for less serious violations of the Act. The clause also proposed the retention of the court process as a recourse option.

Mr Shah asked into what account the fine would be paid.

Mr Njikela replied that all monies would be paid into the National Revenue Fund.

Clause 20
Mr Njikela explained that the clause made an allowance for SANDF and SAPS to be exempted from the permit requirements in instances of legitimate emergency operations and deployment.

Discussion
Mr S Ntuli (ANC) referred to Clause 21, and enquired why the provision, which stated that any regulation dealing with State expenditure must be made in concurrence with the Minister of Finance, was deleted from the Bill.

Mr Njikela explained that the provision was removed because the financial management principles that had been brought in by the Public Finance Management Act (PFMA) required that the accounting officer of each department was responsible for the expenditure of its own department.

Mr Ntuli probed several more issues. Firstly, he questioned whether members of the NCACC would be vetted and whether this would be catered for in the Bill. Related to this, he asked to what extent members of the NCACC would be required to declare their interest on a matter.


Mr Njikela believed that there was sufficient regulatory framework in the public service to deal with the issue of clearance. He noted that the security requirement for access to State information was governed by the Minimum Information for Security Standards Act. Finally, he added that the Defence Act set out specific vetting requirements for all people who interacted with information from the NCACC.

Mr Dladla noted that Ministers were not defined as public servants, and that the standard that was applicable to public servants in terms of vetting may not be applicable to them.

Mr Njikela explained that as part of the code of conduct in the Public Service Act, no employee should put him or herself in a situation where he or she would have a conflict of interest.

Mr Dladla explained that in practice, members of the NCACC were required to declare their interest before a meeting commenced. This practice applied in all the subcommittees and the Scrutiny Committee as well. Also, he quoted Section 25 of the principal Act, which provided that if any member of the NCACC, subcommittee or secretariat had a direct or indirect pecuniary interest in any matter which could conflict with the proper performance of his or her duties, he or she must declare that interest as soon as practicable.

Mr Shah noted that t
he Auditor-General had previously found that the current Acting Secretary for Defence, Mr Tsepe Motumi, was as a director in Chancellor House Defence Dynamics, which was part of the Chancellor House Group, the front company for the ANC. He believed that this was a conflict of interest, and that he would address the issue with the Minister of Defence.

Mr Ntuli voiced doubts as to whether the relevant Ministers meaningfully served on the structures (NCACC and subcommittees) and gave it the political direction that was needed. He feared that the structures were run by bureaucrats and that the Ministers simply rubberstamped the process. For that reason, he recommended that the regulations must contain a stipulation that reminded Cabinet members of their obligation to meet as members of the NCACC.

The Chairperson noted that the Committee had already discussed this matter at length. He believed that it was not necessary to put in the regulations that the Ministers must meet. The onus was on Parliament to ensure that they performed their functions and accounted.

Dr Schoeman stated that while the NCACC had failed to do its work, Parliament was equally responsible for failing to exercise its oversight authority. He hoped that once the Bill was approved, the Committee would ensure that all the provisions were implemented.

Mr Ntuli commended the Department for all their efforts. He was optimistic that the Bill would be in the best interest of the country and benefit generations to come.

Similarly, Mr Shah thanked the Department for their diligence. He advised the Committee that in its report, it should raise the issue of capacity, skills and resources to help the Department implement all the provisions of the Bill.

The Chairperson advised that the regulations must be brought to Parliament so that the Committee could check whether these spoke to the legislation.

Dr Schoeman believed that the amendments were a great improvement and also thanked the officials for their hard work.


The Chairperson hoped to finalise the Bill the following day, and enquired whether the Department would be ready with all the amendments.

The Department replied in the affirmative.


The meeting was adjourned.

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