Draft defence Bill: discussion

Meeting report

DEFENCE PORTFOLIO COMMITTEE ; JOINT COMMITTEE ON DEFENCE; SECURITY & CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
16 November 1999
DRAFT DEFENCE BILL: DISCUSSION

Relevant Documents:
Draft Defence Bill

SUMMARY
Chapters 13 to 15 were discussed, specifically the provisions pertaining to an Exemption Board as well as medals and decorations.

DISCUSSION
Ms Modise, the chairperson, opened the meeting and apologised again to the Department for the committee not arriving for their meeting the previous week because of a clash with meetings of the Safety and Security and Correctional Services committees. She then handed over to Major-General Joan van der Poel and Admiral Retief to continue with the bill.

Clause 13
This deals with the setting up of an Exemption Board to process applications for exemptions from or deferment of training and service in the Defence Force.

Brigadier-General Schalkwyk (DP) stated that he would submit a document detailing certain veteran’s concerns.

Mr Ndlovu (IFP) requested that the document be circulated amongst the committee members. He objected to the constitution of an Exemption Board on the grounds that individuals enter into contracts with the SANDF. He was uncomfortable with members then appealing to another body to be released from that contract.

General Viljoen (FF) said that initially he too had opposed the formation of such a board. However, upon further reflection he had realised the need for a mechanism whereby soldiers may be exempted from particular operations on the basis of conscientious objection. For instance, if war were to break out between South Africa and a Muslim country, a Muslim serving in the SANDF may have difficulty fighting such a war in all good conscience. Such a person should have a way of exempting himself or herself without going AWOL or deserting. He also recognised the need for an independent body outside of the SANDF.

Major-General van der Poel concurred with General Viljoen and reiterated the need for an independent body, as the Line Command would seldom be sympathetic to requests for exemption.

Mr Selfe (DP) raised the issue of administrative justice and the provisions in 89(4). He wanted assurance that the board’s decision was a considered one and was only taken after relevant evidence had been given and testimony heard.
He inquired as to whether there were objective criteria that the board applied in such cases.

The Major General replied that she would need to consult with the State Law Advisors. She did reassure Mr Selfe that the board’s opinion was indeed a considered one and that they had a responsibility to establish all relevant facts before making a decision.

Ms Modise (ANC) pointed out that central to the debate about the necessity of an Exemption Board is the fact that although the SANDF is a voluntary force, once members have signed a contract they have a liability to serve.

Mr Selfe (DP) inquired as to whether conscientious objection covered political objections.

Major-General van der Poel said that the concept was fairly broad and would indeed cover political objections.

There was much concern from ANC members, predominantly Mr Ngculu as well as Ms Kota, Mr Ntuli and Ms Shope, about the formation of such a board. There was a general concern that the board would be manipulated by defence force members who would apply for exemption on a whim. Should a member not feel like going on a particular mission they could apply for exemption. Should large numbers of people do this at any time, it could paralyse the Defence Force. Mr Ndlovu (IFP) added his agreement to this point saying that even if exemption is eventually denied, members could apply for exemption and then take special leave pending the outcome of the case. In a state of war or national defence, this could have dire consequences.

The sentiment expressed by the MPs was that as the force is a voluntary one, those who chose to sign a contract and join the force should be liable to fulfil all missions and no provision should be made to indulge them. Upon signing the contract, members are fully aware of the nature of their jobs and the potential conflicts that accompany it.

Mr Diale (ANC) agreed with the above sentiments and suggested that although a mechanism needs to be in place to deal with resignations, this need not take the form of an exemption board. He went as far as to say that the board made provision for a coup as members of the Defence Force could effectively choose their missions regardless of political will.

Mr Ferreira (IFP) pointed out that exemptions would not be granted for frivolous reasons. Not everyone who applied would be granted exemption. This failed to appease the ANC MPs.

Mr Viljoen (FF) reiterated his stance saying that freedom should be cherished. Should soldiers be compelled to act contrary to their conscience, this would be a violation of the Bill of Rights.

Brigadier-General Schalkwyk (DP) proposed that the chapter be retained, but that it is written in such a way as to minimise the potential for abuse.

Mr Mabeta (UDM) suggested that there be a general mechanism that allowed for grievances of all sorts to be heard.

Ms Modise (ANC) felt that there were two main points that emerged. The first is that there needs to be a mechanism for soldiers to be exempted from duty in an honourable way. On the other hand this should not be used frivolously.
She asked the Department to reconsider the chapter and return with a new formulation. She also suggested that the parties research the matter further themselves.

Chapter 14
This chapter deals with decorations, medals and awards.

Brigadier-General Schalkwyk (DP) proposed that 93 (a-e) be deleted, as the conditions of the medal would be specified in the warrant accompanying the medal. In addition he stated that although the military has medals that it gives to civilians these are not military medals.

Several ANC MPs misunderstood Brigadier-General Schalkwyk and gave many instances of civilians receiving medals. They felt strongly that previous members of various military bodies should be eligible for decoration.

Brigadier-General Schalkwyk (DP) defended his position, stating that at no time had he insinuated that ex-APLA members, for example, should not be eligible for decoration.

Ms Kota (ANC) suggested that the words "directly or indirectly " be inserted into 93 (d). It would the read "South African citizens who have rendered services of military importance, directly or indirectly, to the Defence Force".

Mr Mashimbye (ANC) felt that not only should they be eligible for decoration, but should be rewarded with ranking as well.

Mr Mogoba (PAC) agreed and felt that people should also be rewarded for promoting peace as well as actions pertaining directly to defence.

Major-General van der Poel said that she would confer with the legal advisors.

Chapter 15
Admiral Retief took the members through this chapter dealing with, amongst other issues, the powers of the Minister.

Mr Mogoba (PAC) asked if the minister had power pertaining to war graves outside the Republic.

He was answered in the affirmative.

Mr Ngculu (ANC) was concerned about the overlap of jurisdictions between the Department of Arts and Culture and the Minister with respect to museums.

Major-General van der Poel responded that the two would always co-operate in this matter and that the provision was merely to allow the allocation of military funds to military or war museums even if the Department of Arts and Culture did not deem such museums a priority.

Section 99 deals with regulations.

Mr Ntuli (ANC) inquired as to whether the Military Bargaining Chamber should not in fact be the Bargaining Council. He also asked about who would represent members in the Council.

Admiral Retief said that the word Chamber should be Council and apologised for the mistake. He also mentioned that various employee organisations would represent members in the Council.

Ms Modise (ANC) asked for clarification on 99 (j)

Major-General van der Poel responded that in some cases physical measurements jeopardised the safety of the member when performing a certain operation. For example ejector seats in fighter jets only operated when the pilot weighed over 55 kg. Thus there had to be certain regulations to ensure member’s safety.

With regard to Section 100, Mr Mashimbye suggested that the Department ensure that it concurs with provisions in the Open Democracy bill.

Admiral Retief agreed and said that the department had also been advised to change the time period restricting public access to military documents, from 30 to 20 years. This would be in line with the National Archives Act.

Section 101 stipulates various regulations and legislation that the Defence Force would like to be exempted from. The Department is busy drafting objections to it being subjected to certain clauses in the Firearms Control Act. Ms Modise requested that the committee be informed of the Department’s concerns about the bill.

It was agreed that 102 (2) and (3) would be revisited at a later date.

With regard to 103, Mr Ngculu (ANC) felt that there might be conflict with clause 8.

Admiral Retief said that he would consult with the State Law Advisors.

The meeting was adjourned.