Defence Amendment Bill & Military Discipline Bill: briefings

Meeting report

The Chairperson said the Committee would receive a briefing on the Defence Amendment Bill. This Bill was introduced to the National Assembly (NA) in the fifth Parliament, approved and sent to the National Council of Provinces (NCOP). The NCOP had sent it back with few amendments and it had lapsed before those amendments were considered in the NA. The NA had since resuscitated the Bill with the amendments which were now before this Committee.

Officials from the Department would give a high level overview of the Bill with a special focus on the amendments as proposed by the NCOP, since this Committee had not dealt with the Bill in the first instance. It was important to get an overview of the amendments, since it was going to be debated in Parliament.

The second item would be the Military Discipline Bill which had long been in the making, and its coming was announced a while back. This Committee had to prioritise this Bill, because it would be out there for public comments for a minimum of 14 days when Parliament would be on recess.

The third item -- the cyber warfare strategy -- would be dropped today because the Military Discipline Bill had 165 clauses and so was too lengthy. The possibility existed that the presentation might not be finished today, but the Committee would try. Members agreed to drop the last item.

Defence Amendment Bill (B 18-2017)

Colonel Leon Gernandt, Defence Legal Services Division: Department of Defence (DOD):  gave a brief overview of the Bill and said a few sections had been amended where it was found necessary. It did not deal with the implications of the Defence Review, which was still ongoing in the Department. The Bill was being cleared at any section that required rectification. It had been approved by the NA on 11 November 2018, but there was the issue of consequential amendments to Sec 103 which would be dealt with later. The Bill had started in the Department with stakeholder consultations in 2015. The last substantive amendments to the Defence Act were in 2010 by means of the Defence Amendment Bill, which were piecemeal amendments.

During 2009, the DOD had commenced with the process of reviewing the Defence Act, 2002, which had resulted in the promulgation of Defence Amendment Act, 2010. Only amended selected topics and current amendments were necessary to address shortcomings and improved governance.

Objects of the Bill

• Include the Chief of Staff in the Military Command of the Defence Force.

It was necessary to formalise this appointment and position. Clause 1.

Clarify the delegatory functions of the Sec Def. Clause 2

• Provide for the employment of the Defence Force internationally

Amends the current wording of ‘international water’ to ‘internationally’, which had a wider scope. Clause 3

• Simplify matters regarding identification cards issued to military police officials.

No Regulations required. Could be dealt with by means of internal policies. Clause 4

• Correct reference to the Armaments Corporation of South Africa,

Limited in Section 36. Clause 4

Provide for the security vetting by Defence Intelligence of contractors and service providers of the DOD. Clause 5.

Regulate the administration of meetings of the Council of Defence. Clause 6. 

• Clarify that a person does not need the consent of an employer in order to join the SA National Defence Force (SANDF) as a member of the Reserve Force.

Amendment enables the Reserve Force of the DOD to attract incumbents to join without the consent of t\an employer. Clause 7

• Regulate anew the termination of service of members of the Regular Force.

To expand band create legislative provisions in terms of operation of law and administrative decisions. Clause 8.

To align legal representation for members by the state with TR12. 02 March 2005 (state cover) Clause 9

• Regulate the display of military decorations, medals and insignia: the use of military uniforms, distinctive marks and crests.

The current Act requires regulations which are impractical. Rules or determinations issued would suffice. Criminalises unlawful use of the above. Clauses 10, 12 and 16.

• Amend certain powers of the Minister to make regulations.

Minister may promulgate regulations on health and fitness standards, provision for medical, dental and hospital treatment of retired members of the Regular Force and their dependants and voluntary extra payment of insurance cover by members and employees. Clause 13

• Provide for the prohibition of access to military areas.

This was contained in the previous Defence Act, 1957, but omitted in Defence Act, 2002. The inclusion of such a provision was critical for security purposes. The Minister may prescribe measures. A criminal offence created. Clause 15

The following consultations had been carried out:

- Justice, Crime Prevention and Security (JCPS) cluster development committee(Dev Comm) on 21 July 2016 and 15 Sep 2016.

- JCPS cluster Directors General (DGs) on 4 October 2016.

- Cabinet on March 2017.

- The Bill was introduced into Parliament by the Minister in June 2018.

- It was sent to the Select Committee on Security and Justice in March 2019.

Consequential amendment to Section 103

Sec 103(1) currently provides that a Board of Inquiry (BOI) must be convened if a SANDF member has been absent without leave for more than 30 days and is still absent.

Clause 8 of the Bill amends Sec 59(3) regarding the number of days when the service of a member is terminated for absence without permission.

“30 days” was amended to a “continuous period exceeding 10 calendar days.”

The number of days of absence in Sec 59(3) must be linked to the number of days in Sec 103(1) that was exceeding 10 continuous calendar days of absence. This therefore means that a BOI must be convened after a member has been without leave for a continuous period exceeding 10 calendar days.

The amendment would ensure numerical alignment between the sections, and would have no significant impact

Approval of amendment to Sec 103(1) required.

Proposed wording:

Board of inquiry in relation to absence without leave

1. . (1) When any member of the Defence Force has been absent without leave (more than 30 days) for a continuous period exceeding 10 calendar days and is still absent, a board of inquiry must be convened by the officer commanding of the absent member to inquire into such absence.”

Discussion

Mr S Marais (DA) asked about the number of days the services of a member may be terminated.  Currently the days of termination and the date of the board of inquiry were the same. Should there not be a gap between when the board of inquiry sits and termination? Could it be done on the same day? If a person’s service was terminated, what then was the purpose for a board of inquiry sitting?

Col Gernandt explained that Sec. 59(3) happened by operation of law, which meant if a member was continuously absent for a period which exceeded 10 calendar days, the services were terminated. Consequently, Sec 103(1) provided that there must be a board of inquiry to inquire into such absence. It means that the first element was the absence, and then a board of inquiry must be convened to inquire into that absence because if, for example, the board finds that there was a good reason for that absence, then that absence was not unlawful. In that case, the process would be reverted to a disciplinary procedure. This was how it was written into the draft regulations as well, so that the Chief of the SANDF confirms the administrative part of that board of inquiry, which was very important for checks and balances. The board of inquiry was the administrative confirmation of an unlawful absence, and if it finds there is a cogent reason for the absence, then the absence is not deemed unlawful. There had been cases in the past where the board of inquiry was not sufficient to confirm the absence properly, so there were provisions on how the process must unfold. Logic dictated that if the person came back before the 10 days, that section would not kick in but would be dealt in an administrative perspective. 

Major General Eric Mnisi added that the reason for the board of inquiry was to look into whether the person was issued with serial-controlled items. For instance if a person was issued with a handgun and went missing, to account for such issues, a board of inquiry would have to convene and ensure it was brought back into stock.

Adv Siviwe Njikela, Senior Legal Adviser: Parliament, clarified further by saying that there were two issues at play here. Sec 59 (3) kicks in immediately after the 10 days of absence, and if the person were to come back on the 11th day, Sec 59 (3) kicked in by operation of the law. However, the question as to whether it was necessary to convene a board of inquiry would depend on the reasons for the members’ absence, and if the absence was continuous after the 10th day, then a board of inquiry must be convened. If the member came back, there was no need for Sec 103 (1), but the need for Sec 103 (2) was to determine whether the member had the equipment that had been given to him or her.

Mr Marais expressed his concern that it did not specifically state that if the member were absent, irrespective whether he/she had returned or not and had exceeded 10 days, and this and Sec 103 was not the same, was it then a technicality? In the same Sec 103, it says that if a person was absent for 10 days and still continued to be absent, a board of inquiry must be convened, and that was instructive and prescribed. However, it could also imply that if the person had returned, there could be no board of inquiry to decide the legality of the absence. If the person showed a good cause, the Defence Force could still say, sorry, that person had to go. Was the interest of the person absent still covered fully, because the person could not go to the board of inquiry to state their reasons? This was because Sec 103 uses the language ‘must.’

Adv Njikela replied that there was another way to deal with his matter, because the person absent had a recourse in that they had an avenue to speak to SANDF, stating their reasons for the absence for more than 10 days. If the reasons were cogent, then the person would be reinstated. This was stated in Sec 59(3), wherein it states that the Chief of the Defence Force may, on good cause shown, authorise the reinstatement of such member on such conditions as that he or she may determine. 

Mr T Mmutle (ANC) wanted clarity on the insertion of the position of Chief of Staff of the Defence Force. What was the current designation for the position of the Chief of Staff, and why was there a need to change the job title? Were the powers and functions stated anywhere in the Bill so that Members could understand why there was a need for this change?

Maj Gen Mnisi said that previously in all the armed forces, there were no seconds in command or deputies. This created command challenges when the Chief left, hence the decision to put in those deputies who were all major generals in rank, who were led by lieutenant generals. At the Chief of the Defence Force level, although they were a Chief of Staff, they were a Deputy Chief of the Defence Force at the rank of Lt General. All Lt Generals were part of the military command, and the Chief of Staff was the only Lt General who was not in the military command, which was the highest decision-making body in the SANDF. The Chief of Defence Force delegates some of his administrative powers to the Chief of Staff. If he delegated such powers, but not in the military command, it means that it lacks accountability. The statutory functions according to the Defence Act were that all powers were delegated by the Chief of the Defence Force. The position was previously called ‘Chief of Corporate Staff,’ and was now changed to Chief of Staff.

Adv Njikela further clarified that all he had done was to bring this position to the command structure. It was a position created already.

Mr Mmutle asked, when one was delegated powers to perform a certain function by virtue of the delegated authority, what stopped the person from sitting in the command structure?

Mr Marais asked when the position of the Chief of Staff had been brought in. Since the Chief of the Defence Force could delegate his powers to the new position of Chief of Staff; how had it been done in the past?

The Chairperson  said that he was only allowing these questions for the sake of clarity, because nothing could be done as it stood now because this matter had been concluded in the fifth Parliament. However, the present Committee still had the right to get clarity.

Lt Col K Mashego, Legal Adviser: DOD, said that the constitution in Clause 202 provides that the President, who was the head of the national executive, must appoint the military command. Before 2010, the Department did not have a military command and after a review of the Defence Act, it was realised that there was a need to have a clause that enabled the President to appoint a military command. In doing so, the Defence Act was amended in 2010, and it had a clause 4(a) which dealt specifically with the military command. In the process of amending that, the Office of the Chief of Staff was already there, but under a different classification, which was then ‘Chief Corporate Management Services.’ Once it was changed to Chief of Staff, the holder of that office had to be a part of the command structure. The challenge was that members of the defence command were not delegated by the Chief of the SANDF, but had to be appointed by the President. For the Chief of Staff to be a part of the military command, it could not be delegated but appointed by the President.  That was why, going back to Sec 4 which had been inserted in 2010, the Department was bringing an amendment so that the holder of the office of the Chief of Staff could be part of the military command.

Military Discipline Bill

In his presentation, Maj Gen Eric Mnisi, Defence Legal Services, DOD, declared that the object of this Act is to ensure and maintain proper order and discipline in the Defence Force as required by the Constitution. The Act applies to the following persons:

-Every member of the Regular Force

 -Every member of the Reserve Force while rendering any service, undergoing any training or carrying out any duty in terms of the Defence Act; or  when liable or called up therefore, and fails to render that service or to undergo that training or carry out that duty.

Extra-territorial application of Act

4. (1) This Act applies inside and outside the borders of the Republic to members of the Defence Force and all persons attached to the Defence Force.

(2) Whenever this Act is enforced outside the borders of the Republic, each trial or hearing held, including any finding, penalty, sanction, order or declaration made, pronounced or imposed in terms of its provisions, must be as valid and effective, as if it had been made, pronounced or imposed in the Republic.

(3) For the purposes of ensuring access to a High Court of the Republic, anything done outside the borders of the Republic in pursuance or purported pursuance of this Act, is deemed to have been done within the jurisdictional area of the North Gauteng High Court in Pretoria.

Establishment of military court system

The military court system is hereby established and consists of the

- Court of Military Appeals

- Court of Senior Military Judicial Reviews

- Court of Military Judicial Reviews

- Court of Senior Military Judge; and (e) Court of Military Judge

Offences of concurrent jurisdiction with civilian courts

When a person who is subject to this Act is suspected of having committed treason, espionage, public violence, terrorism, sedition, murder, culpable homicide, robbery, kidnapping, arson, torture or a sexual offence, or an attempt to commit any of these offences or crimes, within the Republic, the matter must be dealt with in accordance with the provisions of the National Prosecuting Authority Act, and any ensuing trial must take place in a civilian court

Prescription of offences

Subject to section 26, no person is liable to be tried by a military court for any offence committed outside the Republic, which is not a military disciplinary offence, in respect of which that court has jurisdiction, unless that person is brought or arraigned before a military court within 30 years after the date of the commission of the offence: Provided that a person charged with—

(a) treason, espionage, public violence, terrorism, sedition, murder, culpable homicide, robbery, kidnapping, arson or a sexual offence, or an attempt to commit any of these offences

 (b) an offence under any law giving effect to an international agreement

 (c) the possession or distribution of child pornography as contemplated in section 24B of the Films and Publications Act, 1996 (Act No. 65 of 1996)

 (d) commercial sexual exploitation of children as contemplated in section 141(1)(b), read with section 305(1)(c), of the Children’s Act, 2005 (Act No. 38 of 2005)

 (e) an offence under section 4, 5, 7 or 10 of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act No. 7 of 2013); or

(f) torture as contemplated in section 4(1) and (2) of the Prevention and Combating of Torture of Persons Act, 2013 (Act No. 13 of 2013), may be charged by a military court, with jurisdiction, at any time after the commission of the offence.

Jurisdiction of civilian courts

Nothing in this Act affects the jurisdiction of any civilian court in the Republic to try a person for any offence within its jurisdiction.  Any High Court or Magistrate’s Court of the Republic, subject to any other law prescribing its jurisdiction, may try any person for any offence under Schedule 1 and may impose any punishment and make any orders which may be imposed or made for that offence under this Act and which is within the jurisdiction of that court, including a sentence of correctional confinement.  In imposing any punishment for an offence under Schedule 1, the civilian court must take cognisance of the gravity of the offence in relation to its military bearing and have due regard to the necessity for the maintenance of the required standard of military discipline in the Defence Force, in accordance with section 200(1) of the Constitution.

Persons authorised to arrest without warrant

(1) A superior officer or any military police official may arrest or, by his or her order or instruction, cause the arrest of any person who is subject to this Act who:

 (a) commits any offence in the presence of that superior officer or such military police official

 (b) in operational circumstances, is on reasonable grounds suspected of having committed an offence, and may cause the arrested person to be detained in terms of this Act: Provided that an officer is not subject to arrest in terms of this subsection by any person other than an officer.

(2) A military police official or any person who is subject to this Act in whose presence any person who is subject to this Act

 (a) Engages in any mutiny or riotous behaviour

 (b) Commits any offence under item 4 or 79 of Schedule 1

 (c) who has been declared an habitual offender, commits the same offence for which he or she has been declared an habitual offender, must arrest and detain such person in accordance with the provisions of this Act: Provided that an officer is not subject to arrest in terms of this subsection by any person other than an officer or a military police official and where the arrest of an officer is effected by a military police official, who is not an officer, such military police official must hand the arrested officer over to an officer without delay, who must deal with such officer as if he or she had personally effected the arrest.

Confinement of arrested person

(1) Subject to subsections (2) and (4), every person arrested and not released must, after he or she has been handed over or presented to the Disciplinary Adjutant of his or her unit or arraigned before a military court, be kept in confinement and;

(a) in the case of an officer or Warrant Officer, in his or her living quarters under the charge of an officer or Warrant Officer of, where possible, equal or higher rank

 (b) in the case of a Non-Commissioned Officer, in his or her living quarters or a guardroom under the charge of a Non-Commissioned Officer of, where possible, equal or higher rank or

(c) In the case of a Private, in a guardroom, correctional facility, military police cell, military police lock-up or military police detachment.

Please see the entire presentation attached.

Discussion

Inkosi R Cebekhulu (IFP) asked if a member of the defence force committed an offence in a foreign country, he or she got confined to barracks while waiting for judges to arrive from South Africa to rule on the offence committed. Was it the procedure that a person had to wait for judges to be sent from SA to be charged in the foreign country? Why not send the person to SA for trial?

Maj Gen Mnisi responded that when SA deployed in other countries, there were no military judges, prosecutors and defence council. Military judges moved in only when there were cases. For instance, if there was a case of rape against an SANDF deployee to another country, all witnesses would be in the host country, who might be a local. Suppose current deployment was still in operation, SANDF would have to apply to the UN for the permission of a military judge to go that mission area and this could take weeks. The accused person could not be kept in custody to appear in court within 48 hours, as normally was the case. In this instance, there was no court so what happened was that the movement of that accused would be limited.  When the UN had authorised for judges to come in, they could come in and even after the case was disposed, the UN still had to give the permission for such an individual to be repatriated. This was because the mission was under UN control, but wearing an SA uniform.

Mr Marais asked on the limitations to legal representation, as envisaged in Sec119. There were no provisions or role for the unions. Normally in disciplinary HR hearings, unions were involved in representing their members.

Maj Gen Mnisi replied that a person would consult and be advised by a lawyer, but could not be represented by such a lawyer in disciplinary hearings. Union members were not ordinarily lawyers because it was not a judicial process, but a quasi-judicial process. This meant advocates could not represent a force member, but could sit outside the system and advise the accused. This was almost, if not the same, arrangement with the public service.

Mr Marais asked if inputs had, been obtained from all stakeholders such as other defence force members, staff and unions for this Bill.

Mj Gen Mnisi answered that extensive consultations had taken place within the Defence Force and with other stakeholders. Public comments were the next process, so consultation had been broad and was still ongoing. As for the unions, they formed part of the public.

The Chairperson asked if the Department would have the funds to implement the Bill. How many people were in the military detention cells and correctional facilities?  Did the Military Ombudsman have any role in this Bill? The military Appeals Court was a five-member court -- what was the quorum? This question also applied to all other military courts. In the composition and jurisdiction of the Court of Military Appeals, it was stated that the Minister. in consultation. may appoint a judge to this court who might be an active or retired judge, but that reference was missing in the present Bill. All these questions could be answered in the next meeting with the Department.

Mr Bryan Mantyi, Committee Secretary, concluded that the first presentation had just being taken on the Bill, and it would be published at a time when the public were not too busy so that they could read it. The time for it to be published could not be confirmed now because it required an administrative process, as well as seeking the necessary political approval for placing the adverts. When the political approval had been obtained, the Committee would be informed.

The Chairperson gave some guidelines, saying that it should not happen in the first or second week of December, and definitely not around Christmas time and the first week of January. The publications should be around second week of January until end of January 2020 so that the public would be given enough time to add their inputs. The first two weeks of February should then be utilised by the team for analysis of the comments, and then public hearings would follow. The team was asked to work out the modalities. 

The meeting was adjourned.