Defence Bill: informal deliberations

Meeting report

DEFENCE PORTFOLIO COMMITTEE
24 April 2002
DEFENCE BILL: DELIBERATIONS

Chair: Ms T Modise (ANC)

Relevant Document:
Defence Bill [B60-2001]
Amendments proposed by department (see Appendix)

Department delegation: Mr J Rathebe, Director: Legal Services; Mr Motumi, Chief Director: Policy and Planning; Maj Gen v/d Poel, Director: Human Resources

SUMMARY
The Committee continued with informal deliberations on the Defence Bill and the amendments proposed by the Department. Points that arose was the legal status of the Exemption Board in relation to the Minister, who appoints the board.

MINUTES
Clause 66 Powers and duties of Exemption Board
It was noted that the Minister will establish the Board which becomes independent and is not accountable to the Minister.

Mr Ndlovu (IFP) asked that, since the board is appointed by the minister, in the case of litigation, which of the two is liable, because there is an apparent separation between the board and the minister?

Mr Rathebe, a departmental legal adviser, pointed out that litigation would face the board, without the minister being implicated.

Mr Ntuli (ANC) asked if the above case of litigation is brought against the board, who pays the costs.

Mr Rathebe noted that the board still has to settle; the minister can only be brought in if there is a clear indication that the minister had a particular interest in the matter.

Given this seemingly unclear situation, the Chair suggested that perhaps it would be better if the committee goes through the bill, line by line, which committee members supported. Clauses that generated discussion were the following:

Sub-clause (1)(b), concerning the summons of attendance, Mr Rathebe pointed out that such evidence, if deemed to be relevant, should be presented before the board, whatever the contents therein.

Mr Jankielsohn (DP) pointed out that as a suggestion, the board must pay particular attention to diversity in terms of culture, race and religion to avoid incidents like the Tempe Base situation where racial/cultural tensions seemed to have reached boiling point.

Mr Ntuli (ANC) agreed with the suggestion by Mr Jankielsohn.

Clause 2 (g) deals with the issue of rights. The Board must respect the culture and religion of members. Mr Rathebe pointed out that perhaps it would be better to use 'fundamental rights' instead of merely 'rights' as culture is for instance one of the fundamental rights in the Constitution.

Clause 67 Offences by witnesses summoned or subpoened by board
Mr Ndlovu (IFP) wondered how the drafters had decided on "a period not exceeding five years" as a prison sentence.

Mr Rathebe pointed out that the board does not have criminal jurisdiction so it cannot send a person to court, pass a sentence nor send a person to prison. The matter is referred to a criminal court.

Mr Jankielsohn asked what happens if the person refuses to attend to the summons.

Mr Rathebe pointed out that in this case, the police come into the picture and the matter becomes a civil trial where the person would be arrested for failure to comply with the law and charged accordingly.

Subclause (4) was approved by the Committee.

Chapter 12 Ceremonial Decorations, Medals, Awards, Flags and Accoutrements
Clauses 68 to 74 were agreed to as is.

A member asked if Clause 72(3) meant that medals from other countries cannot be worn with SANDF medals.

Major-General J van der Spoel agreed but pointed out that mainly this provision is meant to avoid situations where medals without official status are worn with those that are, which she found to be "very nonsensical".

Chapter 13 General Administration and Support
Clause 75 Powers of the Minister
This clause was agreed to.

Mr Ndlovu (IFP) asked if Clause 75 (2) meant that SANDF members can use a civilian's car for official purposes.

Major-General van der Spoel replied that this is so, specifically in the case of special vehicles which the SANDF does not have such as freezer trucks.

Clause 76 Delegation of powers and assignment of duties by Minister
This clause was agreed to.

Clause 77 Regulations
Mr Jankielsohn asked what 'generally' in Subclause 1(a) entails and how does this regulating of conditions of service compare with other departments.

Mr Rathebe pointed out that in the public service, conditions of service are determined by the minister of public service and administration. He noted that there is a proposed amendment to some sections of Clause 77 which will deal with some unclear issues that have been identified. Clause 77 (a) will be reworked. Clause 77(f) needs to be deleted as it is contary to the Public Finance Management Act.

In Subclause(1)(i)(ii), Mr Jankielsohn suggested that "the attendance of military training programmes by civilians older than eighteen years" be replaced by "people employed by the Department of Defence".

Mr Ntuli, a departmental official, pointed out that the department runs programmes which also include personnel from other departments.

Clause 78 Protection of defence assets
Mr Jankielsohn asked if Subclause (3) was also inclusive of Subclauses (1) and (2). Mr Rathebe replied that it is in addition to those two subsections.

Clause 79 Exemptions applicable to Defence Force
Mr Ndlovu (IFP) asked for clarity on 79(d).

Major-General van der Spoel replied that this means that once trainees qualify through the Department, they are not subjected to any further training in the aviation industry.

Major-General van der Spoel pointed out that 79(f) applies strictly to official duties only.

Clauses 80 and 81 were agreed to.

Clause 82 Indemnity in respect of trespass and nuisance
The Major noted that nuisance in 82(b) is a complicated conceptualisation. Further deliberations on the issue should try and establish a balance between military and civilian interests. It was decided that nuisance will be clarified by the drafters to emphasise reasonableness.

Clause 83 Permission to enter upon private land
Mr Schmidt, legal adviser, commented that he felt that any occupier of land should be notified and consent be sought if the SANDF has to undertake operations there.

Mr Rathebe replied that he would add that the occupier should not withhold such consent unreasonably.

General van der Spoel pointed out that some areas such as games reserves are vacant with the owners not living there. In such a situation, it becomes difficult for the SANDF to seek permission.

Mr Groenewald (FF) pointed out that if permission is not granted or the owners are not reachable, then the SANDF should enter such territory.

Mr Ndlovu (IFP) added that since this is a security issue, the military should know precisely, what is what, no matter where the owners of the place are. If not, consultation with relevant departments such as Land Affairs should be sought to obtain certainty on the issue.

Mr Jankielsohn added that the state department in particular, no matter where the owner is, should be in a position to know who owns the land and where they are or their closest representatives if they are unreachable. The committee agreed to these proposals.

Major General van der Spoel felt strongly that the department should guard against constraining the SANDF in executing its constitutional duties.

The Chair pointed out that their intention is not to constrain the SANDF, but merely to ensure that procedure is followed with due respect to every one.

Chapter 14 State of National Defence
Clauses 84, 85, 86, 87 and 88 were agreed to.

Chapter 15 Cooperation with Other Forces
Clause 89 Attachment of personnel
In response to Mr Ntuli (ANC) asking if this provision was normal practice, Mr Rathebe said that it was indeed the standard practice.

The Chair noted that Clause 89(3) should be revisited to clarify some issues and reworked into plain language.

Clause 90 and 91 Command over members…
The Department will consult with Joint Operations.

Clause 92 Discipline and internal administration of visiting forces
It was decided that the Department will investigate taking best international practice into account, especially 92(1)(a) and (b).

The Committee continued informal deliberations on Clauses 93 to 99. PMG did not minute this session. Please email [email protected] if you wish to know what discussed in Clauses 93 to 99.

Appendix:
AMENDMENT PROPOSED: DEFENCE BILL [B 60-2001]

CLAUSE 1
1. On page 6, from line 22, to omit the definition of "directives".

2. On page 6, in line 29, to omit "too the Department".

2. On page 6, from line 35, to omit the definition of "instructions".

CLAUSE 3
1. On page 8, in line 5, after "Constitution," to insert "and the Public Finance Management Act, 1999 (Act No.1 of 1999)".

NEW CLAUSE
1. That the following be a new clause:

Secretary for Defence and Chief of Defence Force exercise powers under direction of Minister

4. Subject to section 202(2) of the Constitution, the powers vested in the Secretary for Defence and Chief of the Defence Force by or under this Act must be exercised subject to and in accordance with any directions of the Minister.

CLAUSE 5
1. On pages, from line 17, to omit subsection (2).

CLAUSE 7
1. On page 9, after line 7, to insert the following paragraph:

(e) must provide the Chief of the Defence Force with comprehensive instructions requiring the Chief of the Defence Force to issue orders and directives and to give commands to any specified member regarding the exercise of any power delegated or the performance of any duty assigned to that member by the Secretary for Defence as head and accounting officer of the Department of Defence;

CLAUSE 8
1. On page Sin line 12, after "powers" to insert "and assignment of duties".

2. On page 9, in line 14, after "power" to insert "and assign any duty".

CLAUSE 53
1. On page 23, after line 57, to insert the following subsection:

(2) If no agreement contemplated in subsection (1) can be reached in the Military Bargaining Council, the Minister may, after consideration of any advisory report by the Military Arbitration Board and with the approval of the Minister if Finance, determine the pay, salaries and entitlements contemplated in that subsection.

CLAUSE 54
1. On page 24, after line 40, to insert the following subsection:

(6) For the purposes of this section "member" includes an employee deployed with the Defence Force.

CLAUSE 55
1. On page 26, after line 1, to insert the following subsection:

(20) For the purposes of this section "member" includes an employee deployed with the Defence Force.

CLAUSE 58
1. On page 27, in line 22, after "acted" to insert "negligently,".

2. On page 27, in line 27, to omit "member" and to substitute "Department".

3. On page 27, in line 27, to omit "Department" and to substitute "State".

4. On page 27, after line 31, to insert the following subsection:

(4) For the purposes of this section "member" includes an employee deployed with the Defence Force.

CLAUSE 77
1. On page 33, from line 1, to omit all the words after "(a)" up to and including the second "as" in line 3.

2. On page 33, in line 4, to omit "related".

3. On page 33, from line 11, to omit paragraph (f).

4. On page 34, in line 30, to omit "Defence Force" and to substitute "Department of Defence".

5. On page 34, from line 31, to omit subsection (2) and to substitute:

(2) Any regulation made under subsection (1)-

(a) which may result in financial expenditure for the State may only be made subject to sections 63 and 64 of the Public Finance Management Act, 1999 (Act No.1 of 1999), and with the approval of the Minister of Finance; and

(h) relating to the terms and conditions of service of members of the Defence Force other than pay, salaries and entitlements contemplated in section 53, may be made with retrospective effect for a period not exceeding 12 months, except where such regulations provide for-

(i) any reduction in the privileges of members; or

(ii) the imposition of penalties.

CLAUSE 99
1. On page 43, after line 42, to insert the following paragraph:

(19) Any person who fails to deal with public funds in an honest and accountable manner, fails to use the property and other resources of the State efficiently or uses such funds, property or other resources for unauthorised or unofficial purposes, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment.