Defence Amendment Bill [B11-2010]: briefing by Department of Defence and Military Veterans

Meeting report

Presentation by the Department of Defence and Military Veterans (DoD&MV)
Ms Mpumi Mpofu, Defence Secretary Designate, DoD&MV, informed Members that the Bill had been introduced by the Department as a way of regularising the call-up process of reserve force members. Members of the reserve force currently served on a voluntary basis. They rendered their services in terms of a contracted period and had no obligation to report for training, exercises or any deployment for peacekeeping purposes. There was no provision to compel any member of the reserve force to serve during times of peace. Such gaps in the administration of reserve force members created difficulties with regard to planning and allocation of resources by the department. The Bill sought to, among other things; create a situation whereby members of the reserve force could be called for duty even during times of peace. That would be under circumstances such as where life, health or property was in imminent danger. Reserve forces could now also be deployed to serve in the borders of the country. It also created an offence for failure to honour a call-up.

Another area which the Bill sought to address was to create a Commission that would advise the Minister of Defence on any matter that involved the conditions of employment for the members of the defence force. The process of appointment of the Commissioners was discussed. It was to be determined by the Committee whether the Minister or the President should be given powers to appoint and fire commissioners. The Bill had proposed for those powers to vest with the Minister as suggestions were made that apart from appointment process, the Presidency did not have the capacity to deal with issues related to the working of the Commission.

Discussion
Mr D Maynier (DA) recalled that on 21 September 2009, the President, who also happened to be the Commander in Chief, had announced that a process of de-unionising the military had begun. Until now, no efforts had been seen to set that process in motion. Since there were no signs yet of de-unionising, how then would the new Commission interact with the unions representing the soldiers.

Ms Mpofu replied that there was no correlation between the setting up of the Commission and the de-unionisation of the military. The main purpose of the Commission was to advise the Minister on matters that related to the working conditions of soldiers and in the process of doing their work, the Commissioners could consult anybody they deemed relevant in discharging their mandate and that included trade unions.

Mr Siviwe Njikelana, Legal Adviser, DoD&MV, agreed with Ms Mpofu, adding that the dilemma with regard to the de-unionising of the military was caused by the Constitutional Court case of 1999 which found that soldiers should be treated in accordance with section 23 of the 1996 constitution which therefore meant they could belong to any trade union of their choice. As long as that ruling stood, it would be difficult to de-unionise the military regardless of what the President said.

Mr A Mlangeni (ANC) said it was unfortunate that such a judgement was passed and as parliamentarians they needed to find a common ground that sought to strike a balance between the judgement and the fact that it was inconceivable to have a situation whereby soldiers could decide, through their unions and the constitution, to march or partake in a stay-away. On the other hand, the principle of separation of powers prevented the executive and legislature from taking any decisions that would seem to be undermining the independent judiciary.

Mr Njikelana added that while the Bill did not seek to de-unionise the army, it was a significant step towards achieving that purpose of finding a common ground between those who felt strongly against unionisation and vice-versa. It was important not to be misled into thinking that the bill sought to ban soldiers from belonging to trade unions, for that would contradict the courts findings.

Mr Maynier said he was uncomfortable by the fact that the new Bill gave Parliament a less significant role in the selection and appointment of the Commissioners. On the other hand, the Minister seemed to have been given wide powers in relation to the Commission, something which could lead to power abuse if those powers were not properly curtailed.

Ms Mpofu said clause 62H of the Bill made provision for the role to be played by Parliament especially with regard to the reporting process. If Parliament felt it needed to be more involved in the selection or appointment, it was up to the Committee to consider such a move.

Mr Mlangeni commented that it was confusing that Ms Mpofu continued to be referred to as the Secretary for Defence designate when it had been announced that she had already been installed in that position from the beginning of the month.

Mr Maynier asked whether the Bill had any provision which exempted any reservist who may have had a valid reason not to honour a call up during peaceful times.

Major General Roy Andersen, Chief of Defence Reserves, replied that there were provisions in the Bill which allowed for certain reserve force members who had legitimate reasons to be exempted from honouring a call up, and could be exempted without incurring any punishment.

Mr Mlangeni asked for clarity as to who would be responsible for the appointment of the Commissioners. Was it the President or the Minister of Defence? Ideally, it would have been better if the President appointed the Commissioners.

Ms Mpofu replied that it was up to Parliament to make that final decision as to who between the Minister and the President should make the appointments.

The Chairperson also raised concerns about giving the Minister wide and discretionary powers over the Commission. It was critical that the Commission maintained its independence and that could be hampered by the powers given to the Minister over them.

Ms Mpofu replied that in essence, the Minister executed her duties on behalf of the President. The Presidency did not have the capacity to deal with certain matters which could easily be handled by the Minister of Defence. There was no intention to give the Minister excessive powers. There was a huge possibility that some of the powers given would not even exercised since it was unlikely that a situation requiring the Minister to remove any member of the Commission would arise.

Mr Mongameli Kweta, State Law Adviser, Department of Justice, added that there was a process to be followed even if the Minister felt strongly about relieving any of the Commissioners from his or her duties. The individual concerned would be given a chance to make submissions and state their side of the story before the Minister would follow all the processes necessary. The danger of not having a provision which dealt with how Commissioners could be removed was that it left a gap which needed to be closed. The Minister had no powers to remove any Commissioner willy-nilly.

Mr A Maziya (ANC) asked whether there had been any provisions made to accommodate the former Umkhonto Wesizwe (ANC underground military wing) veterans or even the Azanian People's Liberation Army (APLA) (Pan Africanist Congress military wing during apartheid) ex-soldiers to serve in the reserve force.

Major General Andersen replied that no specific provisions had been made for specific individuals but emphasised that every South African citizen who met the criteria set was welcome to apply to be a reserve force member

Mr C Kekana (ANC) asked what was done in other countries in dealing with issues related to appointment of commissioners who advised the Minister on matters related to conditions of employment for soldiers.

Mr Maynier said it was worrying that Parliament was being asked to consider a bill that addressed matters related to the service conditions of soldiers but no formal presentation had been made to show the Committee why there was a need to have a commission that would address such matters.

Mr Maziya asked for clarity as to the remuneration strategy of the reserve forces. Did they serve on a voluntary basis or were they considered employees just like any other permanent soldiers?

Mr L Tolo (COPE) asked how reserve forces were remunerated and whether they served on a voluntary basis.

Ms Mpofu said that the guiding principle with regard to remuneration was the need to respect everyone’s dignity as envisaged in the constitution.

Major General Andersen replied that reserves were paid the same basic salaries as regular soldiers. They also received benefits such as medical cover, uniforms and as well as other benefits.

Mr Maynier asked whether there was a shortage of reserves, which may have led to interventions brought by the bill.

Major General Andersen replied that there was no shortage of volunteers in the reserve force. It was also important to take notice that the legislation did not intend to force anyone to join the reserve force but was a way of ensuring a steady supply of reserves amongst those who had already signed up as reservists.

Ms S Ndabeni (ANC) thanked the Department for the new proposition of giving military training to the youth of the country. The Youth League of the African National Congress viewed the initiative as a progressive move towards instilling a sense of discipline amongst the youth of South Africa.

The meeting was adjourned