National Conventional Arms Control Amendment Bill: deliberations & adoption

NCOP Security and Justice

21 October 2008
Chairperson: Kgoshi L Mokoena (ANC, Limpopo)
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Meeting Summary

The Director of Conventional Arms Control of the Department of Defence, who headed the secretariat of the National Conventional Arms Control Committee (NCACC), interacted with Members on the Bill. Members followed up on some of their questions the previous day. Concern was expressed about the NCACC’s capacity to process applications for permission to export arms, and allegations that delays on its part had resulted in loss of contracts. They also sought assurance that arms could be sold and on-sold only to countries approved by the United Nations, and with South Africa’s consent, and a full explanation was given as to the procedure and the difference between End User Certificates and permits. A Member raised concern about the provisions of Clause 14, relating to disclosure and non disclosure, quoting from a report of the Research Unit, but others in the Committee indicated that they believed the position was covered, and the Department gave assurances that the NCACC and Parliament would agree on information to be shared, and that it seemed the research report had pre-dated the amendments. The requirements in regard to confidentiality of certain information were explained.

Members agreed to adopt the Bill with no amendments, and also agreed to adopt the Report of the Committee.

Meeting report

National Conventional Arms Control Amendment Bill [B 45B-2008] (the Bill): Deliberations 
The Chairperson asked if the Department of Defence (DOD) delegation had any remaining questions arising from the discussions of the previous day, 21 October 2008, in which the Committee had focused on definitions and general points, before progressing to consideration of the individual clauses of the National Conventional Arms Control Amendment Bill [B 45B-2008] (the Bill) .

Mr Dumisani Dladla, Director, Conventional Arms Control, Department of Defence, said that he was prepared to answer questions and had been fully briefed by the Departmental team on what had transpired at the meeting on the previous day.

The Chairperson encouraged Members to be ‘systematic’ and complete their deliberations expeditiously.

Mr J Le Roux (DA, Eastern Cape) agreed that no time should be wasted, since the parties had agreed that in principle this was a good piece of legislation. However, there remained some question about the capacity of the National Conventional Arms Control Committee (NCACC), especially since he noted that a major contract had apparently been lost due to its inability to conclude matters timeously.  He asked if that was true, and if anything was to be done to improve the capacity of the NCACC.

Mr Dladla interpreted Mr Le Roux’s question to mean that the capacity of the NCACC was in doubt because some companies might have been exposed to losses as a consequence of such alleged incapacity. He said that Members should understand that the NCACC was a Cabinet committee. It met at predetermined times. The day to day business was in the hands of a secretariat, which he headed. He admitted that there was a challenge as to capacity at the level of the secretariat. Currently efforts were being made to increase the capacity of the secretariat to deal with its day-to-day work. The number of Cabinet ministers on the NCACC was immaterial to the decisions that it made. The Department of Defence was revising the structure of the secretariat of the NCACC in order to deal promptly with applications as they arrived from industry. Procedures in respect of arms sales were specified in the legislation. Certain documentation needed to be provided by the company concerned, and as long as those documents remained outstanding, then the NCACC would be unable to proceed further. One of the reasons for the Department having requested the Committee to consider amendments to the current legislation was to facilitate the work of the NCACC by ensuring that it dealt with applications more speedily and with greater focus, as soon as they were received.

Mr Le Roux indicated that he was satisfied with this response.

 Mr D van der Merwe (DA, Free State) said that he was quite happy with the Bill and had no further questions.

There being no further questions, the Chairperson requested that the Committee move formally and he called for the adoption of the Motion of Desirability, which was duly done.

He noted that the Bill was therefore formally before the Committee and he wished to proceed clause by clause through it.

The Chairperson then asked the Department to respond to his previous question on permits and certificates, or re-exporting of arms and how it was to be ensured that the arms re-exported would be used for the declared purposes in terms of United Nations and Security Council Conventions and Resolutions. This went to the issue of which party should be given a certificate and which party should be given a permit.

Mr Dladla said that his colleagues who were present the previous day were equally competent to answer, and that his response would be to the same effect as that indicated on the previous day, but perhaps using different words. He clarified that the End User Certification (EUC) served to certify that the purchaser of arms, for instance emanating from South Africa, would use these only for the purpose declared. If that purchaser decided, after some years, to on-sell the arms to another country, then it would, in terms of the original End User Undertaking, be required to refer back to South Africa, to seek its permission to forward or sell the arms to another, specified country. South Africa would have the option to agree or to refuse.

Mr Dladla then noted that a permit was applicable in instances where the original vendor gave the original purchaser specific permission to resell to a specific party. A permit was an expression of authorisation by the NCACC, whereas a Certificate was an undertaking by the end user. When the NCACC considered applications from companies, it would give authorisation in the form of a permit, with preconditions.

The Chairperson said that he understood, and commended Mr Dladla for expressing himself so well.

Mr N Mack (ANC, Western Cape) asked why the second purchaser, to whom arms were sold on by the first purchaser, did not have to apply for a permit. He noted that the second purchaser would require a certificate but not a permit, but the first purchaser needed a permit. He noted that it was important to ensure that arms could be sold and on-sold only to a country approved by the United Nations.

Mr Dladla responded that the on-selling country would have to seek South Africa’s consent, but that country would have its own procedures in respect of the sale itself. South Africa’s jurisdiction ended at its borders. The on-selling or re-exporting country would have its own equivalent of the NCACC, which would then issue a permit from that country to re-export. A condition would, however, be imposed on that country that it would first have to obtain an indication of no objection to the on-sale from South Africa.

Mr Worth asked further about the Clause 14, which dealt with secrecy, and gave the example of a customer who stipulated secrecy. He asked how this would be handled, for example, in a confidential briefing to Parliament.

Mr Dladla responded that Clause 14 of the Bill (pertaining to the substitution of the National Conventional Arms Control Act) dealt with disclosure and non-disclosure of information. There would be disclosure of information to Parliament. Some countries had their reasons for requesting confidentiality, but, in his experience, the number of contracts concerned was very small. The NCACC and Parliament would agree on information to be shared, so that there would not be any misperception that the Executive was withholding information from the legislature.

Dr F van Heerden (FF Plus, Free State) said that he felt that the Promotion of Access to Information Act covered many of these matters. He had no problem with the secrecy clause, especially as it concerned trade secrets, and would accept the Bill in its current form.

Mr Worth said that he begged to differ. He quoted from a report of the Research Unit of Parliament, which had suggested that:  ‘The workings of the NCACC, above all bodies of State, should be open to the democratic requirements of access to information. It is being proposed that in general such access should be denied. Whilst the proposed provisions do admit the requirements of the Promotion of Access to Information Act, it is allowed only as an exception’. He asked for the Department’s response to this question.  

Mr Siviwe Njikela, Director: Legal Services, Department of Defence, assumed that Mr Worth was reading from research carried out before the amendment of the Bill. In essence there were two issues: confidentiality to the public and confidentiality to Parliament. He agreed with Dr Van Heerden that the right to access of information was recognised. Limits, however, were set out under the Act. The NCACC could not rely on a secrecy clause in a contract to withhold information from Parliament for Parliament’s reporting process, since the Executive was accountable to Parliament.

Mr Dladla said that in the case of an Annual Report that was intended for public consumption, the NCACC could request that certain information, which could be divulged in confidence to Parliament, be excluded from the Report. Both legislature and Executive would be aware of that.

The Chairperson said that this seemed to have answered the question.

The Chairperson pointed out that the underlined text comprised the proposed additions to existing enactments, while bold type in square brackets indicated proposed deletions. He asked if Members thought that the additions improved the Bill.

Mr Worth asked if the Department had a functional website.

Mr Dladla noted that there was a section related to conventional arms. The control list that would be promulgated after the Bill had been passed would be available on the website. The Department owed it to the industry to provide such information on an updated basis. 

Mr Mack said that he hoped that investigations abroad would not constitute a return to ‘quiet diplomacy’.

Mr A Moseki (ANC, North West) said that he was concerned that the Committee’s discussion was now diverging from a systematic clause-by-clause consideration.

The Chairperson agreed that discussion should proceed a little faster, but did not want to pressurise Members. He wanted them to have sufficient opportunity to inform themselves by discussion.

Mr Dladla said that the defence industry was export based. The Department had an inspectorate that followed up on the use of exports, but it was only possible to do investigations with the co-operation of the foreign country concerned. It was necessary to ensure that a purchasing country would not renege on the terms of sales agreements.

The Chairperson asked why the Bill used the term ‘conventional arms’ in its title but not in its clauses, in which the term ‘controlled items’ was used.

Mr Njikela said that the term ‘controlled items’ was used for practical purposes to avoid referring to them individually in the body of the Bill. In the regulation clause, the items were referred to separately. The Department, in order to maintain the focus of the Bill, preferred to retain the existing term in the title of the Bill and in the title of the NCACC. 

Mr Theo Hercules, Principal State Law Advisor, Office of the Chief State Law Adviser, affirmed that the name of the NCACC was being retained. It was also important to retain the name as it was already used in international treaties.

The Chairperson said that he was not convinced that this made it necessary.

Mr Dladla explained that the NCACC was one of the many institutions of government that had identities attached to the title. The main focus of the Bill remained as Conventional Arms. He said that if the title of the Bill was changed to “controlled items” this would not only be confusing, but would also conflict with the international nomenclature.

The Chairperson asked about use of the word ‘concurrence’ in  Clause 5 (pertaining to amendment of Section 9 of the principal Act), although he indicated that he had no particularly strong views on the matter. 

Mr Njikela responded that this was to ensure ‘a meeting of minds’ between the Minister and the Committee in designating any employee of the State as an inspector.

 The Chairperson, with reference to clause 6, asked for confirmation that the Auditor-General’s report on the NCACC would be available to the public.

Mr Dladla said that the Auditor-General’s audit report was indeed available, but it would be included as part of the report on the Department of Defence. However, the Department and the NCACC were assessed separately. 

The Chairperson directed Members’ attention to Clauses 7, 8, 9 and 10 successively.

The Chairperson asked if the NCACC could stop a transaction between foreign companies, if it was not satisfied as to those companies’ credentials. 

Mr Dladla responded that governments concerned could raise objections.

The Chairperson expressed some surprise as to how the NCACC could vet such transactions. 

Mr Worth asked about controls over the sale of aeroplane components for re-export.

Mr Dladla responded that such sales were subject to discussions at a political level. There were provisions for multiple export permits, but such provisions did not constitute ‘a free for all’. There was a duty to reconcile.

Mr Worth asked if a private collector or a military museum was required to apply to the NCACC if it wanted to sell a collection of arms.

Mr Dladla responded that it was essential that Government knew who owned such museums or collections, and their location. Such museums or collectors would have to obtain specific authorisation to sell their collections, or any part of them, since such collections could potentially include weaponry that was still, for practical use, effective.

Mr Dladla said that if a violator were a defence force, then Government would have to engage bilaterally at a political level or at the level of the United Nations.

The Chairperson said that it was undesirable to over-legislate, but wondered if such a matter could be dealt with in the regulations. 

The Chairperson commended the Department of Defence for its correct use of the term ‘Parliament’ rather than ‘National Assembly’ in Clause 14. He was pleased that this Department, unlike some others, was aware of such distinctions. 

The Chairperson asked if there were any exemptions for companies who might be asked to sell arms urgently.

Mr Dladla responded that such exemptions would be applicable only to the South African National Defence Force and the South African Police Service, in the case of emergency deployments. 

The Chairperson recollected a previous government’s invasion of Lesotho, just after the President concerned had just been sworn into office. 

The Chairperson concluded that it appeared that Members were in agreement that the Bill was not controversial. All parties in the National Assembly had supported the bill.

Members voted to adopt the Bill.

The Chairperson then noted that the Committee Report on the Bill would include a request that countries and companies should be obliged to adhere to arms control treaties and agreements, as past experience had shown that they were often the worst offenders. 

Members voted for the adoption of the Committee’s Report.

 The Chairperson thanked the Department of Defence and Members for their work on this Bill.

The meeting was adjourned.

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