Military Ombud Annual Performance Plan; Feedback on number, age, and brief summary of cases the DOD has acted upon

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Defence and Military Veterans

17 June 2020
Chairperson: Mr C Xuma (ANC)
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Meeting Summary

Video: Portfolio Committee on Defence and Military Veterans 17 June 2020
Audio: Military Ombud Annual Performance Plan; Feedback on number, age, and brief summary of cases the DOD has acted upon

Annual Performance Plan (APP) of Government Departments & Entities 20/2021

The Office of the Military Ombud briefed the Committee on its Strategic Plan and 2020/21 Annual Performance Plan, which covered its mandate, its strategic focus, and the measurement of its performance.

Referring to the five-year Strategic Plan, it said that there had been no relevant court rulings that had impacted on the Office. An area of concern was the compensation of employees (CoE) budget, which was not fully funded and hampered its efforts at being able to ensure full compliance. The Office was a line item in the Department of Defence (DoD) budget, and it was in discussions with the Secretary of Defence on the CoE budget.

The Office also briefed the Committee on the status of complaints and investigations. The finalisation rate of cases was 75%, and the turnaround time for cases was 247 days, or approximately eight months. As at the end of the financial year 2019/20, there were 148 active cases.  

Members asked about the current status of the employee structure. The Office’s expenses exceeded its budget, so the DoD and Treasury had to consult to develop a realistic budget. Was the jurisdiction of the Ombud limited to only the Defence Force members, irrespective of rank, or were executive members and their staff excluded? What progress had been made with the amendment to the Military Ombud Act (MOA) for the Ombud to be able to do its work independently and without fear or favour? How much overlap was there with the Defence Force Service Commission?

Members referred to cases of unfair dismissal, where people were not reinstated into their previous positions, and wanted to know how the Ombud and DoD were dealing with this. They were shocked to hear the Ombud state that it “must not come up with a recommendation which was difficult to implement. We need to be fair to the SANDF.” They said this compromised the independence and impartiality of the Ombud.

Members said the Ombud had presented only two targets against which to measure its performance, with no targets for outreach, human resources and policy development. How realistic was this, and why had targets contained in the previous year’s plans removed? How was it planning to change the image of the office?  Had any complaints been lodged during the Covid-19 period? Was there a clear line of communication to complainants while they were waiting for a review of their case? How far was the Collins Khoza case, and when would it be finalised?

Meeting report

Military Ombud: Strategic Plan and Annual Performance Plan

Ms Annelize Welgemoed, Deputy Director: Policy, Strategy and Planning, Office of the Military Ombud, said the presentation was a combined presentation of the strategic and annual performance plan (APP), and would cover the Ombud’s mandate, its strategic focus and the measurement of its performance.

Referring to the five-year strategic plan, she said there had been no relevant court rulings that impacted on the Office of the Military Ombud. The total number of approved posts was 89, and an area of concern was the compensation of employees (CoE) budget, which was not fully funded and impacted on the Office being able to ensure full compliance. The Office was a line item in the Department of Defence budget, and it was in discussions with the Secretary of Defence on the CoE budget.

Discussion

Mr S Marais (DA) asked how big the salary challenge was and what other resources, like information technology (IT), were also challenges. He asked if the powers and jurisdiction of the Military Ombud were limited to only the Defence Force members, irrespective of rank, or if executive members and their staff were excluded. In terms of compliance, the Military Ombud faced the challenge that it could only make recommendations, and not enforce anything. What progress had been made on the amendment to the Military Ombud Act (MOA) for the Office to be able to do its work independently and without fear or favour?

Mr D Ryder (DA, Gauteng) said the mandate of the Office appeared to substantially overlap with the Defence Force Service Commission. How much overlap was there? He said the Office’s expenses exceeded its budget and was projected to do so in future, so the Defence Force and Treasury had to consult to develop a realistic budget. The cases the Office was investigating were the same as what the Defence Force Service Commission was doing, and in the year under review only two cases had been brought by members of the public against the military for investigation. How many cases had subsequently been brought?

Mr M Shelembe (DA, KZN) asked what impact Covid-19 would have on the mandate of the Military Ombud to resolve complaints in a fair and expeditious manner. He said there were cases of unfair dismissal, where people had not been reinstated into their same positions. What was the Military Ombud doing in cases where the Department of Defence (DOD) accepted that members should be renstated, but could not give them their old positions back? What was the timeframe for such cases to be finalised so that the positions were not filled while the cases were being reviewed? How was the process made fair for both parties?

Mr T Mmutle (ANC) said the Military Ombud had presented only two targets for the financial year against which the Committee had to measure its performance. There were no targets for outreach, human resources or policy development. How realistic was this, and why had targets contained in the previous financial year’s plans been removed? To what extent were operations affected by Covid-19? The total employee structure complement was 89 -- what was the current status of the employee structure? If there were interns, to what extent were they affected by Covid-19?

Military Ombud’s response

Lt Gen (Ret) Vusumuzi Masondo, Military Ombud, responded on the compensation of employees, and said the funds allocated to the Office were less than what was required to pay the staff complement. This remained a challenge for the Office, because there was a staff complement of 89 posts, but the Office had only 63 staff, so it should receive sufficient funding for its posts. This challenge had been taken up with the Secretary of Defence, as the Office had had to use its goods and services budget to top up its salary budget, and this in turn meant it could not obtain the other resources it required to do its work.  

The powers and jurisdiction of the Office resided only within the South African National Defence Force (SANDF) itself, and not the SA Defence Force (SADF) and other former armed forces.

On the challenge of only being able to make recommendations, he said it was not clear in the legislation whether the recommendations were binding on the Minister, but the Minister herself considered them binding. There had not been an instance where the Minister had asked the Office to change the recommendations, but ideally this should be covered in the Act so that there could be no confusion.

On progress in amending the Act, he said three letters had been written to the Minister requesting the authority to begin the amendment process. Experiences in the Covid-19 period had shown how the Act constrained the Office in dealing with issues. 

The difference between the work of the Office and the work of the Service Commission was that the Commission was established to look at service conditions of the SANDF, like salary increases etc., while the Office looked at complaints about conditions of service. There might be confusion, because when the Service Commission was established, they had also visited units and members had lodged complaints on the conditions of service.  

On expenses exceeding the budgeted amount, he said that half of the budget was consumed by CoE, and what was allocated to the Office led to constraints on its work.

He said 29 complaints had been received by the Office, which were at various stages of investigation.

On the impact of funding on the mandate of the Office, he said that the pressure on the operational budget meant the Office could not embark on the activities it had planned. There was a requirement to ensure that the work of the Office was understood by both members of the SANDF and members of the public, therefore it had also planned outreach programmes directed at the public. However, because of budget constraints and Covid-19, it would not be able to do that.

Referring to the issue of unfair dismissal and reinstatement, he said the Office had made a mistake in the past of insisting that members be reinstated to their posts. The reality was that vacant posts were filled by the Defence Force. The best route was to get the person reinstated, and leave it to the SANDF to place the person in an appropriate post.

On the issue of expeditious resolution of complaints, the Office experienced challenges with the turnaround time of cases, and had established liaison structures at the SANDF so that courtesy calls could be made timeously with the information required. The Office had to consider its recommendations so that they did not make recommendations that were difficult to implement.  .   

The reduction of targets to two had been done as a result off the introduction of a new framework for planning, and the other targets were not completely done away with.

Covid-19 had had a huge impact on operations. The outreach programmes would not be able to be done, and part of the budget not utilised needed to be surrendered back to Treasury.

On the structure of the Office, he said that when the structure was approved, it had 89 posts but only 63 posts were filled, and the Office was not even fully funded for these 63 posts.

He referred to how the interns were affected by Covid-19, and said two interns had left and there were now four interns who would remain until the end of their internship. The lockdown regulations had affected their programme. The funding for the employment of interns came from the Safety and Security Sector Education and Training Authority (SASSETA).

Further discussion

Ms A Beukes (ANC) said she commended and appreciated the general’s comments on its outreach to members of the public. She asked if the Military Ombud was aware of the Khoisan self-defence unit, and if it had ever referred a case to the Ombud. One of the risks identified was that of losing the credibility of the Office due to a lack of understanding and trust by stakeholders -- what were the reasons for stakeholders not understanding the mandate? As a response, the Ombud had proposed outreach events and radio programme slots, and she asked how the Ombud was planning to change the image of the office. She said the message had to be changed also, so that the layman could understand it. What were the simple, complex and carry over complaints? On radical socio-economic transformation, she asked about the interns, the type of intern posts, what percentage were youth and women, and what future opportunities there were for interns.

Mr Mmutle said that out of the six interns, two had left and four remained under contract, and it was likely that the four would leave without being absorbed, given the unfunded posts in the Office. Would the interns be absorbed? Did the Treasury budget ceiling on the DOD affect the Military Ombud? He appreciated the speedy resolution of matters through the establishment of a forum. Regarding the reinstatement of a person back into their post, he asked why the Military Ombud process should be different to that of the Commission for Conciliation, Mediation and Arbitration (CCMA). He said the DoD not reinstating a person back into their position was an undue influence of the DOD on the Military Ombud. 
 
The Chairperson said he was equally shocked to hear the statement that the Ombud “must not come up with a recommendation which was difficult to implement. We need to be fair to the SANDF.” He said this compromised the independence and impartiality of the Ombud. At the Ombud, appeals were heard at the level of a judge. Any person aggrieved by the decision of the Ombud could apply to the High Court for review. The Minister had to give the Ombud assistance as required to protect its independence and impartiality, and their work should not be obstructed or hindered. The Ombud should speak truth to power. If the general’s statement was the approach of the Ombud, then the people would lose confidence in the Office.

Ms M Modise (ANC) said there were 168 carry over cases, and asked what the budget implications were. Had the money for these cases been carried over, or was there a new budget? She said the turnaround time was eight months -- did they deal with one case at a time? On the priority of the cases, was there a difference between public cases and members in uniform cases? Were there any complaints during the Covid-19 period? Did the Ombud communicate clearly to the complainant on cases that were still on review on the findings and the recommendations, and indicate what was done? Was there a clear line of communication to complainants while they were waiting for a review of their case?

Mr Marais agreed with the Chairperson’s comments, and said that compliance had to be enforced. There should not just be a recommendation. He asked to what extent the interns were professionals, such as having law qualifications.

Following up on the issue of unfair dismissal and reinstatement, Lt Gen Masondo said that a new person would have been placed in that position and if that second person was now removed to allow for the re-instatement of the first person, the person removed from the post would now feel aggrieved and seek redress. So the Office sought to be balanced and fair to both the complainant and the Defence Force.

He said the Office had not received any complaints from the Khoisan self-defence unit.

Adv Dinkie Dube, Chief Director: Operations, Office of the Military Ombud, said that one complaint had been received in 2018, but it had been related to integration into the Defence Force. She said it was important to note that the Office only investigated complaints related to the SANDF, and therefore this complaint was outside the mandate of the Office.

The Chairperson said he thought the crux of the question was the Khoisan SDU bringing a complaint on behalf of former members of the SA Coloured Corps.

Lt Gen Masondo referred to the issue of the credibility of the Office, and said its budget was received from the Department of Defence as a line item, so the Department could not interfere with it. On logistical matters, though, the Office depended on the Department of Defence. As part of its outreach programme, there was no interference by the Department of Defence on how the Office dealt with complaints.

On the categorisation of complaints, Adv Dube said simple cases were those resolved within six months, complex cases were those resolved within 12 months, and carryover cases were active complaints at the end of the financial year that were carried over into the new financial year. This categorisation arose at the request of the Committee so that it could see if the office was effective or not.

Mr Mamorapeli Makhalemele, Chief of Corporate Support, Office of the Military Ombud, said the Office had started with six interns and there were now four. The funds for them were not paid from the Office’s budget, but by SASSETA.

Mr Mmutle asked if the Office administered the intern posts by themselves, or if the interns had come from SASSETA

Admiral Asiel Kubu, Chief of Human Resources, SANDF, said SASSETA received money from the Skills Levy Act, and gave funds to the DOD and advised them to recruit interns. These targets were submitted to SASSETA, which provided the funds. The Office then advertised the posts and were accountable for what it did.

On the budget ceiling, he said the wage bill was a problem and the operational budget was used to fund salaries, but Treasury had become stricter, and the money for the Office was ring-fenced.

Status of complaints and investigations
Adv Dube gave a presentation on the status of complaints and investigations. The finalisation rate for cases was 75% for the total caseload of 587 for the 2019/20 financial year. The turnaround time for cases was 247 days, or approximately eight months. As at the end of the financial year 2019/20, the total active cases were 148. Most cases were related to conditions of service and came mainly from the army. There were 29 complaints outstanding. The North West province had the most cases, because outreach programmes had been done there. In terms of gender, 80% of the cases were male.

Discussion

The Chairperson said there was only time to note members’ questions and the Office of the Military Ombud could respond in writing to them.

Ms Modise said her question on how the Office dealt with carried over cases and their financial implications, the distinction in priority between complaints from members in uniform and from the public, as well as what communications there were to the complaints that after recommendations were reviewed, they were not answered.

Mr Marais said he wanted confirmation that the Office was not serving only members of the Permanent Force, but also the Reserve Force members that were covered by the jurisdiction. There had been a number of cases where the Ombud had made recommendations on which the Minister had signed off, but there had been no implementation by the Defence Force. There had been delays and resubmissions, and the cases remained unresolved, and some had been referred to the SANDF for investigation. Why would the Office do that if it was independent, as this would appear to be contradictory? How far was the Collins Khoza case, and when would it be finalised?

Mr Mmutle said his question on the set-aside for youth and women in the procurement budget of the Ombud, given the increase in the budget for goods and services over previous budgets, had not been answered, as well as his question on whether the Office had a plan to absorb the current four interns.

The meeting was adjourned.


 

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