Question NW2358 to the Minister of Defence and Military Veterans
08 January 2025 - NW2358
Niehaus, Mr CG to ask the Minister of Defence and Military Veterans
a. Whether she has found that the important duty of the Military Ombud (MO) is severely hampered by the lack of independence and legal power to enforce its findings, and that for all practical purposes the MO in its current format is a toothless tiger; if not, what is the position in this regard; if so, what are the relevant details; (b) whether she has found that the MO must be independent and given the necessary binding legal powers in order for its findings to be enforceable; if not, what is the position in this regard; if so, (c) whether she intends to introduce the required amendments to the relevant legislation to ensure the independence of the MO and empower the office of the MO to be effective in carrying out its duties; if not, why not; if so, what are the relevant details?
Reply:
Response
No, the Military Ombud is not severely hampered by the lack of independence and legal power to enforce its findings. The Ombud has operated with functional independence since its inception and has effectively fulfilled its mandate as a mediator seeking resolution of matters within its jurisdiction. However, its reliance on the Department of Defence for key functions such as personnel, finances, IT, and logistics is constrained by its operational and administrative autonomy. Additionally, the Ombud lacks the authority to undertake own-initiative investigations. Despite these limitations, the Ombud continues to perform its duties and submit recommendations, which the Minister of Defence and Military Veterans has consistently accepted and implemented.
(M. OTSHEKGA)
Response
The position is that while the Ombud's independence and authority could be enhanced, recent High Court judgments have clarified that its recommendations are not legally binding. In Lembede v Minister of Defence and Others (15 December 2021) and the combined cases of E. Davids and Z. Miles v Minister of Defence and Others (27 February 2023), the courts ruled that the Ombud's recommendations are not binding on the Minister. This jurisprudence underscores the current limitations of the Military Ombud Act, and any changes to provide binding legal powers would require careful consideration and legislative amendments.
Response
Yes, the Ministry has taken steps towards reviewing the legislative framework governing the Military Ombud. Under the leadership of Ms Mapisa-Nqakula, a legislative review process was initiated, and the Ombud engaged the Government Technical Advisory Centre (GTAC) to conduct a feasibility study into enhanced independence. The Ombud has indicated that his office is at an advanced stage of drafting legislative options, which will be subject to further consultation and discussion.