Workshop with DoD on Force Structure, Compensation of Employees, Development of an Exit Mechanism and Force Rejuvenation, briefing on the court judgement against DoD in the Collins Khoza case

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Defence and Military Veterans

26 August 2020
Chairperson: Mr C Xaba (ANC)
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Meeting Summary

The Portfolio Committee on Defence and Military Veterans conducted a workshop via a virtual platform with the South African National Defence Force, Defence Force Service Commission and National Treasury. That was followed by a briefing on the court case brought against the Department of Defence by the family of Mr Collins Khoza.

The Department of Defence presented the main challenge to the Department which was that the human resources component would eventually consume all resources given to the Department to execute its mandate. That was largely due to consistent budget cuts and the capping of the cost of employees by National Treasury. The new ceiling was below the existing personnel budget which would compel the Department to source additional funding from the operational portion of the budget.

A rejuvenation plan had been developed for the Defence Force that would assure successful military operations while at the same time meeting the HR capacity requirements. The exit mechanism would offer severance packages, early retirement and transfers to vacancies in suitable government departments. The rejuvenation plan supported the Department’s position that numbers should be retained at 75 000 and that the Department would recruit according to attrition. The exit mechanism would focus members in the 35 to 39 years age group in the combat corps to prevent stagnation in the corps. The focus group also included those members who had served six to 12 years in a rank.

The focus was on discussion as it was a workshop but Members had some questions for the Department. Members asked if the new approach ruled out the original exit mechanism developed by the Department. Was the Department considering a limited exit merger that confined itself to mustering, demilitarising and departmental transfers so that the vacancies occasioned by the three approaches would be filled by new recruits to start rejuvenation? Why were there were no specifics for the plan? Why had the military command decided to retain the Defence Force at roughly 75 000 members when National Treasure had indicated that there were no funds? Why did the Department continue to ask for more funds?

The Department of Defence made a brief presentation on the Mobility/Exit Mechanism which was intended to bring in young, fit and healthy members and to accelerate the attractive retirement programme with full benefits beyond the current Mobility/Exit Mechanism, without losing critical skills.

National Treasury noted that the Defence budget baseline had grown from R50.5 billion in 2019/20 to R52.8 billion in 2022/23 and the compensation of employees was projected to be the largest expenditure item over the current Medium-term Expenditure Framework, accounting for 63% of expenditure. The current macro-compensation of the Defence budget was unsustainable given the limited funds for other discretionary spending items needed to modernise the Defence Force. The Department had been warned in 2016 that a ceiling would be imposed on the cost of employees as the current design structure was eroding the Department’s capital and operational budget which, in turn, reduced its operational capabilities.

Members commented that the idea of boots on the ground versus modernisation was good but the Department needed to be more practical with decisive budget allocations and timeframes.

The parliamentary Office of Constitutional and Legal Services briefed the Committee on the court judgement delivered on the 15 May 2020, three months prior to the workshop. The case dealt with the Department’s response to the death of Mr Collins Khoza during a Covid-19 lockdown exercise. The issue before the court and the judgment related to the oversight responsibilities of the Joint Standing Committee on Intelligence, the Portfolio Committee on Defence and the Select Committee on Security and Justice. Although it was the Minister who had to respond to the court order, the current focus of the Khoza case was on the standard of conduct to be expected of the Defence Force in execution of the mandate in terms of section 201 of the Constitution and sections 18 and 19 of the Defence Act. The court had also queried the independence of the Military Ombud. The Committee was advised that it should look into the legislation governing the Military Ombud and to consider the degree of independence of the Ombud.

Members asked whether the Military Ombud was serving its purpose. Was the Military Ombudsman sufficiently independent? Was it a constitutional matter? Members requested a copy of the Ombud’s findings and asked for an explanation of why the Minister had stated on national television that she had been misled by the generals.

Meeting report

Introduction

The Chairperson of the Portfolio Committee on Defence and Military Veterans welcomed all Committee Members and members of the Department of Defence (DoD) to the workshop at which they would discuss the SA National Defence Force (SANDF) structure, compensation of employees, the development of an exit mechanism and rejuvenation of the SANDF. National Treasury had been invited to attend the workshop and to contribute to the discussion.

The Chairperson indicated that the workshop was arranged to address the underfunding of the Department of Defence and it was hoped that National Treasury and DoD could discuss the ideal funding model. He referred to the risks involved with the ongoing underfunding of DoD which would lead to reduced defence capabilities and an inability to comply with the constitutional mandate to serve. It seemed that the mandate of DoD was budget-driven and not constitutionally-driven. The workshop would also discuss the loss of leadership roles and the reduced ability of human resources that need attending to. The lack of resources also vastly reduced the spread of commitments, including border guarding and had a significant impact on the Defence industry as a whole.

The Chairperson listed the Department’s capabilities that had been compromised by underfunding: awareness, provision of light motor vehicles and combat helicopters, maritime control, air mobility, military health support, Special Forces, rapid reaction, interception, underwater security, intervention and cyber warfare capabilities.

It was the intention of the workshop to seek suggestions for a more positive position going forward between the National Treasury and DoD. It was important for the issues raised by National Treasury to be discussed as a pre-requisite to any further funding increases. It was also a pre-requisite that DoD implemented cost saving, wastage prevention and personnel rejuvenation as strategies to mitigate the expenditure of resources, management of rank sizing and excess property assets. Lastly on the agenda of the workshop, was an exit mechanism from National Treasury as previously promised.

Presentation by DoD Directorate for Human Resources

Brig. Gen. Kevin Richards, DoD Strategy and Planning, made a presentation on the key personnel issues on behalf of the Directorate for Human Resources (HR).

Brig. Gen. Richards presented the challenge which was that the HR component would eventually consume all resources given to the DOD to execute its mandate. That was largely due to consistent budget cuts and the capping of the CoE (cost of employees) ceiling below its existing strength which would compel the Department to source additional funding from the operational portion of the budget. The understanding of the concept of rejuvenating the SANDF had moved on from HR redundancy to ensuring available personnel and enabling the retention of expertise and institutional memory. The implication was that the DoD might be unable to provide value against its funding from the fiscus as all other elements of the Defence Force would be negatively affected. The CoE required additional funding of R3 billion per annum. The tempo and pace of rejuvenating the SANDF workforce was dependent on the trajectory of the CoE allocation and if not addressed would result in a continued disparity between budget requirements and the allocation.

Re-aligned Rejuvenation Plan Presentation

Brig. Gen. Richards presented the Re-aligned Rejuvenation Plan as envisioned by the DoD in discussion with National Treasury. The rejuvenation of the SANDF was outlined as an issue in the Ministerial Budget Vote 19 of 2018/19. Engagements on the issue had not granted relief but had focused on adjusting the rejuvenation plan to fit in with the CoE allocation. The Military Command Council (MCC) had provided guidance, stressing an awareness of the high unemployment rate in the country and had made recommendations for addressing the situation.

The intention was to propose a rejuvenation plan for the SANDF that assured successful military operations while at the same time meeting its HR capacity requirements.  The rejuvenation plan supported the DoD/SANDF position to maintain the HR strength at 75 500 and to recruit according to attrition. There should be no adverse impact on its capacity to support military operations. Security of employment and future careers were assured.

The criteria for planning in accordance with those guidelines suggested the acceptance of a long-term service system and long service contracts would remain and not be excluded from participating in the mechanisms. The age group of 35 to 39 in the combat corps should be focused on to prevent a stagnation of the corps. The focus included those who had served six to 12 years in a rank. That would work simultaneously with a process of re-mustering combat support and filling corps vacancies based on a number of potential inter-Departmental transfers.

The presentation concluded and the Chairperson called for questions from the Members.

Discussion

The Chairperson asked if the conceptual approach presented ruled out the exit mechanism that was initially conceptualised. Was DoD considering a limited exit merger that confined itself to mustering, demilitarising and Departmental transfers so that the vacancies occasioned by the three approaches would be filled by new recruits to start rejuvenation? He noted that there were no specifics for the plans. The process required start and end dates of the process so that the Committee understood when DoD would achieve the required savings from those mechanisms.

Dr B Holomisa (UDM) agreed with the Chairperson and added that perhaps the Service Commission complaint made by troops was about discrimination when it came to promotions. Firstly, the members were still being discriminated by the SANDF numbers and that DoD did not have the number in the SANDF. That information was necessary order for the Committee to contribute to the new range of proposals. Could someone from the Commission or HR Department clarify as to whether DoD did, in fact, discriminate in terms of numbers and promotions?

Dr Holomisa stated that Members of Parliament had already raised those issues with the Department and if the numbers were not being presented and not accounted for, it was a waste of time presenting what he considered half-baked measures.

Mr S Marais (DA) said that as far back as 2014, in the Annual Report of the Department, DoD had addressed the need to restructure the Defence Force and have a smaller Defence Force, not a bigger one. The problem lay with a reduced HR capacity as the fundamental principle was that more soldiers must cost less and that was where the problem started. The Department was focused on the age group between 35 and 39 for mustering and movement to other departments and the notion that other government departments must absorb soldiers and personnel who were overbudget. That was wishful thinking as everyone knew that all departments were under pressure from National Treasury to reduce HR costs. So, for the Department to expect other departments to take on DoD staff was unrealistic. A combat strength of roughly 20 000 compared to a total staff complement of 75 000, given the dominance of the South African Infantry where you actually need younger people, seemed contradictory. That being said, the focus was on relatively young people whereas at 40 years old one could be combat ready. The country had no combat strength and it was rather obvious as to why there was a problem in terms of combat readiness. He suggested that perhaps the problem was the military command as it had decided to retain the Defence Force at roughly 75 000 people. National Treasure had indicated that there were no funds whereas DoD continued to ask for more funds.

Mr Marais stated that if one kept the allocation of equipment in mind and kept a Defence Force of 75 000 people, they would have no equipment. The aim was to run a Defence Force, not an employment agency. What was needed was implementable plans as National Treasury could not allocate funds when nothing was being done. Going forward, the readjustments had to be made to fit the budget, not retain strength. He questioned whether a Defence Force of 75 000 people was a constitutional requirement.

Mr Marais referred to the top heavy structure in which there had been a huge increase in the past five years. 10 000 recruits annually would rejuvenate the Force. He concluded by re-stating that there should not be 75 000 soldiers, nor should the aim of the DoD be to serve as an employment agency, rather than the protection of South Africa. He requested the Minister and the Military Command Council to discuss that issue as the current state of affairs was unacceptable.

Mr T Mmutle (ANC) noted that it was a workshop and not a Portfolio Committee meeting where officials were there to account.  He would like to see a sharing of knowledge and perspective on those matters. He agreed that the Members should be robust and critical where they saw stagnation as Mr Holomisa and Mr Marias had been.

He said that the presentations were not compatible with the actions required and could be viewed as a theory that could not be implemented. The mechanisms were much like those in the 2015 Annual Defence Review and although Members understood the issues faced as a result of the budget, DoD could not continue with plans for which there was no implementation. According to that Defence review, by now DoD should be informing the Committee on how far it had gone to ensure that its HR expenditure did not exceed the 45% ceiling as contemplated in milestone one of the Defence Review.

Mr Mmutle addressed the matter of downsizing of personnel which DoD said could only be reached with the intervention of government and with mechanisms, such as refusing the norm of permanent employees who were excessive to future Defence plans, those who were approaching retirement and those who did not meet post requirements. He stated that the Annual Strategic Plan contained the priorities of the Minister and the Chief of the National Defence Force. It was unfortunate he was not available to account for the challenges facing the Department’s strategic priorities. One of his strategic responsibilities was the national Defence commitment. If he were present, he could give his opinion on the progress presented by the DoD.

Mr Mmutle was not happy with the progress. Everything presented was theory and if the Chief of the National Defence Force were present, there could have been more progress in the dialogue.

The Chairperson enquired about the unintended consequences because the DoD was not informing them whether the exit mechanisms and severance packages had been proposed and no one is willing to avail themselves of the mechanism. DoD was shutting the door on everyone else, including those who thought that they had reached a ceiling and wanted out. He suggested the DoD address that issue as that was an area that DoD had ruled,

The Chairperson then introduced the next speaker, the Chief of Human Resources, Vice Admiral Asiel Kubu.

Responses

Vice Admiral Asiel Kubu addressed Mr Mmutle’s concerns concerning the unintended consequences of the strategy plan, stating that it was a two-fold matter. If DoD did not exit those who were currently serving, especially in the lower ranks, and who did not have any other work outside of the DoD, they could be recruited by other forces. It was also noted that those who were ready to leave their occupations were not involved in the  HR plans. From a security point of view it posed a threat at both ends. The other issue was that those whose qualifications were valued tended to be the members that left. He referred to Mozambique which was facing similar issues to those facing the MCC. The terrorists had had serious military training. SA could not put the country at risk by cutting just anyone loose without the necessary exit mechanism to provide opportunities for second careers.

The Vice Admiral addressed the concern that nothing had been done since the plans were first announced. DoD had reworked the issue of rejuvenation based on some of the guidelines on HR provided by National Treasury. That was followed by complications in not being able to engage with other departments. At some point, DoD had engaged with the Department of Correctional Services in terms of the exit strategy but the Department had requested young people and that was the fixed group that could not be exited. The Department of Home Affairs was discussing transfers but it requested that the individuals be discharged for an unknown period. Relevant discussions were taking place and it was simply a matter of time. He admitted that DoD wanted to keep 75 000 personnel and that the Department was not going to save money that way but that was why DoD was engaging with Treasury to possibly get a once-off bailout which would allow DoD to move on with its plans. If a bail-out was not possible, then raising the ceiling would allow DoD to attempt to find the necessary funds. Although money was tight, Treasury could help to resolve irregular spending. Cost cutting from ranks would not be sufficient for resolve the situation.

He added that if proper career management was conducted, the situation of people believing they had not progressed could be avoided, although it might be possible for people to be discriminated because of the numbers in the Defence Force. If that were true, the matter needed to be addressed. DoD would be negligent if it had been discriminating against people.

The Vice Admiral agreed that the annual deficit was having an effect on combat readiness, noting that one could not keep a lot of people in the system that had no capabilities. However, DoD had no intention of continuing with an HR budget spike at the expense of operational readiness and DoD continued to attempt to re-muster members of the specified age groups in other environments. If the status quo remained, funds would have to be extracted from the salaries of other members as there was no bail-out from the operations as could have been the case three to four years ago. DoD needed the assurance of assistance from the Committee and Treasury as it was in an immensely difficult situation which was not palatable to the security of the country.

The Vice Admiral noted that 20 000 combat members was not sufficient; more were required, as evidenced in recent operations. The unfortunate reality of the situation was that many of the individuals might not be as fit as needed, but they were utilised effectively. Those members on contract who were not capable of being utilised could be exited by not renewing their contract. Medical discharge and administrative leave were other means of exiting individuals. If orchestrated with relevant departments, the strategy would be ideal.

The Chairperson noted that two questions had not been addressed. He asked why the DoD was married to 75 000 personnel in strength and whether the allegation of the military ranks being top heavy was true.

The Vice Admiral stated that the figure was based on the current Force design as there were 85 000 posts listed but many posts could not be filled. He was aware of the claim that the Department’s capabilities did not warrant that number of people. He was not comfortable discussing the matter further. He agreed that the top heavy structure needed to be addressed. The structure had ballooned and now it seemed responsible to reinvestigate the post design to consider if it worked effectively.

The Chairperson noted that the discussion needed to be taken up with the Chief of the South African National Defence Force and the MCC.

Presentation on an Appreciation of the Exit Mechanism

Brig. Gen. Richards made the presentation on the exit strategy, stating that there had been continuing correspondence between all relevant departments on the exit strategy. The mobility/exit mechanisms (MEM) and Employee Initiated Severance Package (EISP) had been placed on hold pending investigation to ensure more lucrative mechanisms than in the current models. The key drivers of the plan were curbing stagnation, addressing the slow pace of career mobility and the rejuvenation of the Defence Force with young, fit and capable members.

Brig. Gen. Richards stated that the 2018/19 Budget Speech had made a commitment to revisit the MEM to bring in young, fit and healthy members and to accelerate the attractive retirement programme with full benefits beyond the current MEM without losing critical skills.

The Chairperson asked how long the proposed theories would take to deliver the desired results, noting that the budget was decreasing, not increasing as the economy had been drastically affected by Covid-19. The sooner clear timelines were established, the sooner progress could be made.  He would call DoD back to Parliament in three weeks to get updates on the matter.

Presentation by National Treasury

Dr Rendani Randela, Budget and Policy Analyst, National Treasury, noted that the DoD budget baseline had grown from R50.5 billion in 2019/20 to R52.8 billion in 2022/23 and the compensation of employees was projected to be the largest expenditure item over the current MTEF, accounting for 63% of expenditure. The current macro-compensation of the Defence budget was unsustainable given the limited funds for other discretionary spending items needed to modernise the SANDF. The genesis of those issues stemmed from the 2016 Cabinet decision to impose a ceiling on CoE. In that year, departments were notified to prepare themselves for the implementation of the decision. Since 2016 there had been no attempt to comply with the ceiling. In 2017/18, DoD had overspent its CoE budget, resulting in irregular expenditure and DoD was projected to overspend the 2020/21 CoE budget by R3 billion, which would significantly increase the accumulated irregular expenditure. Reprioritising funds from the Special Defence Account, as well as Goods and Services, was unsustainable and would lead to an ill equipped DoD. DoD should consider using natural attrition to deal with CoE pressure.

Dr Randela said that the rejuvenation strategy would not work in its current state and that rearranging the budget allocation accumulated irregular expenditure. That was unsustainable. The current design structure was eroding the Department’s capital and operational budget which reduced its operational capabilities. Dr Randela requested that the Department of Public Service Administration (DPSA) provide further assistance in future meetings. He concluded that National Treasure reiterated its objective to have an effective but affordable Defence Force.

Discussion

The Chairperson remarked on the similarities with what the DoD presented and an identification of low hanging fruits where the Department has no contractual. He noted that the CFO of DoD was in the meeting and suggested that he should apply his mind to the proposals. The Chairperson wanted to hear his comments on them.

The deputy chairperson of the Defence Service Commission said that there had been a decline in the budget that had an impact on the effectiveness of the DoD and was clear that unless the equipment was serviceable there was no point in having a Defence Force as it would not be effective. She noted that the United Nations had decided to pay the DoD to service their equipment. Therefore not focusing on the equipment of the DoD only added to the potential loss of funds. One of the reasons prompting the deployment of the DoD was to do with the consideration of making the dispensation of the Defence Force different from that of the DPSA. DPSA had a particular dispensation as well as other benefits exclusive to DoD and cost savings could be realised.

She referred to the SANDF top-heavy structure and noted that the support services had nearly double the number of Generals that SAPS had, and that was not enabling the absorption of the Military Skills Development System (MSDS). DoD had to address appropriate methods and the MEM had to become an issue for all departments as there were opportunities for departments, such as the Department of Public Works and Infrastructure, and the Department of Small Business Development. There were skills that could be nurtured if an integrative method was investigated by government departments. The context of the situation was that he majority of the population in the country was young and those young people were suitable for the rejuvenated Defence Force. She concluded that waiting for natural attrition and vacancies would lead to continuing frustration, resulting in an issue too big to solve.

The Chairperson invited further discussion and questions.

Mr Roberston (Defence Service Commission) began noting that if the Members were serious about Defence, the Committee needed all the relevant structures to engage on the issue more broadly. He noted the budget options of various strategic plans and commented that the idea of boots on the ground versus modernisation was good but DoD needed to be more practical with decisive budget allocations once timeframes had been established, The Committee could hold the parties accountable for the lack of progress.

The Chairperson agreed with the need for concise action with clear timeframes so that results could flow from the plan. A bail-out was not possible with such a deficit. It needed to be addressed before bail-outs could be discussed. The Chairperson referred to the suggestions of early retirement without penalties, the Department’s low hanging fruits and the training of the MSDS recruits that the DoD did not plan to recruit. It was those young people who used their skills for crime. Those who had been in the Defence Force longer were less of a concern than those who had been members for 12 to 24 months.

Response by DoD

Vice Admiral Kubu spoke about the early retirement with no penalties option. He agreed but stated that National Treasury should have discussed that when the human resources matter was originally discussed.  There had been subsequent disagreements and members had been told not to avail themselves for discussion. He discussed the conditions of scaling down and the problems of recruitment based on attrition to avoid the already stated security concerns. DoD still recruited, although recruitment had been much lower since 2016.

He said that the Department would respond to other queries at later stage when the relevant structures were present. He had heard that DoD needed to move away from plan A of upholding the 75 000 personnel and had taken note of the issues raised.

The Vice Admiral stated that DoD needed to respond to at least half of the issues voiced, so as to not run around in circles.

The Chairperson shifted the focus to early retirement without penalties.  Treasury and the DoD had to address that matter. Paying an additional four months’ salary to employees should be avoided but the appropriate levels of capabilities within the military were of utmost importance and should be a higher priority than providing employment.

The Chairperson welcomed Members of the Standing Committee on Security and Justice who would be listening to the presentation by Adv Siviwe Njikela from the Office of Constitutional and Legal Services in preparation for the documents to be sent to the Executive on deployment.

Presentation by the Office of Constitutional and Legal Services

Adv Siviwe Njikela noted that the DoD strategy plan went broader than the Department of Defence and his aim was to speak to matters affecting the oversight Committees in so far as the Defence portfolio was concerned.

He referred to the court judgement delivered on the 15 May 2020, three months prior to the workshop. The case dealt with the DoD’s response to the death of Mr Collins Khoza during a Covid-19 lockdown exercise. The issue before the court and the judgment related to the oversight responsibilities of the Joint Standing Committee on Intelligence, the Portfolio Committee on Defence and the Select Committee on Security and Justice. Members rarely gained an understanding of what affected Parliament because, as in that case, it was the Ministers who had to develop and publish a code of conduct and operational procedures regulating the conduct of DoD members, to file affidavits and to obtain various reports on the events. However, Adv Njikele stressed that the current focus of the Khoza case that was before the court was on the standard of conduct to be expected of the Defence Force in execution of the mandate in terms of section 201 of the Constitution and sections 18 and 19 of the Defence Act. It had not been about the constitutionality of the Emergency Act.

Adv Njikela referred to the expected standard of behaviour of the Defence Force, noting that the nature of the application that had led to the judgement was unusual in insisting that the court recognise basic human rights, such as dignity, right to life, and one’s rights against torture and inhumane treatment. In that sense the applicants were requesting clarity in relation to the DoD within the context of Covid-19 epidemic. Those filing the case were pursuing confirmation that the troops should conduct themselves in accordance with the DoD Code of Conduct. The situation in Alexandra had led to an unfortunate loss of life. He referred to the absence of any code of conduct existing alongside deployment guidelines. The Defence Force had been assisting police with managing Covid-19 and it was unusual for SANDF to be dealing with civilians in scenarios like covid-19. DoD members were supposed to be present with the police when it happened. The court had noted that the quasi-policing function called for a different conduct.

The court had ordered that all SANDF members who were present at the deceased’s home that day or adjacent to his premises, be placed on suspension with full pay within five days, pending the outcome of an investigation into the death. The incident had taken place during an official deployment of the Defence Force.

Adv Njikela noted the views expressed by the judge who was informed of misguided budget spending and the conduct of grievances. There were no specific finding of that as yet but the relevant check and balances had to find their way into its mandate. He concluded that he could go more deeply into those issues addressed, if so requested.

The court had also contemplated the question of the investigation into the members of DoD. The Military Ombud was the correct structure to investigate, legally, but the court queried the independence of the Ombud which was paid by the Minister of Defence, reported to the Minister of Defence and the Ombud’s regulations had been issued by the Minister. Could the Ombud be considered an independent structure that could investigate military misconduct? There was also a question of the capacity of the Ombud. The status of the Ombud was not before court and there were no findings that the recommendations were invalid and prevailed There was no order of invalidity, by any means, unless the Committee and Parliament decided to rearrange the relationship between the Minister and the Department. He reminded the Committee that it should consider the views expressed by the court as the Committee was responsible for the oversight of DoD.

Adv Njikela noted that he had previously advised the Committee that it should look into the matter of the Military Ombud and to consider the independence of the Ombud. He reminded the Committee that it could amend the Military Ombud of its own accord and it did not have to wait for a court judgement.

He said that there were legal issues to be looked at but there were also other considerations. He re-assured the Committee that there had been no finding on the way in which the Committee had handled the deployment as it had only an oversight role over the deployment. It could not take the decision for a deployment or for there not to be a deployment. 

Adv Njikela stated that there were many other issues raised in the judgement but that he believed only the three issues impacted on the Committee.

The Chairperson’s connection to the virtual meeting froze and Mr Mmutle took over as Acting Chairperson.

Discussion

Mr Marais asked about the Military Ombud and whether it was serving its purpose as the Minister was paying. Was the Military Ombudsman sufficiently independent? Was it a constitutional matter? He queried whether the Committee needed a better understanding of where it stood and its role in the midst of a standoff between the Military Ombud, the Minister and the leadership of the Defence Force.

Ms M Modise (ANC) asked if the funding and recommendations were invalid in light of what the court had alluded to in its decision and whether the Defence Force could be found guilty, considering that public policing was not its function. She agreed that members of SANDF should have been given a new code of conduct for public policing.

Dr Holomisa stated that, to do justice to the issue, the Committee needed the relevant military report from the Military Ombud. A meeting should be called in September to discuss the matter and each political party should make its decisions on the matter prior to the meeting and possibly the Committee could present a united front in dealing with the matter. He concluded that the matter needed investigation.

Mr Mmutle agreed that the Military Ombud and the Defence Minister still had to present a report to the Portfolio Committee before Members could take any decision on the matter or make any recommendation. His understanding was that the day’s meeting was a briefing in relation to the judgment made by the court on the deployment of SANDF in support of the police without a code of conduct to inform them how to conduct themselves when delivering their mandate.

Response by the Legal Advisor

Adv Njikela noted that the issues that Mr Marais had raised were legislative issues and the Military Ombud, in terms of the Act, had made recommendations to the Minister on the matter. The recommendation could be accepted or not and the difference between accepting the resignation or not lay in the words relating to implementation. He said that Parliament was able to change the Military Ombud Act and would have to follow the various processes for legislation. Legal Services had previously advised the Committee that the Military Ombud lacked independence and the matter should be addressed. There was little more that he could add to previous inputs.

Adv Njikela noted it was possible that generals could have misled the Minister but there was little that he could say about that. However, if there were allegations that someone had been misled, it was within the discretion of that Committee or the Joint Standing Committee to investigate. He stated that the Joint Standing Committee, in particular, had wide powers when it came to matters of Defence. Without evidence, he could not advise further.

Adv Njikela responded to the question of whether the Military Ombudsman’s findings were invalid following the judgement of the courts. The issue of the status of the Military Ombud was not before court so there was no change to his status. The Ombud would hear cases and make recommendations to the Minister as before unless Parliament decided to change that.

He responded to the issue of whether the SANDF was at fault for not having a code of conduct under that kind of deployment. The court had found that there should have been a special code of conduct. It was not his place to judge, but he said that the fact that DoD had not challenged that ruling, suggested that DoD agreed that it was wrong not to issue a code of conduct. He had considered the question of whether there had been a code of conduct on the previous deployments. He could not answer that question but it was clear that the court expected greater oversight over military operations. DoD seemed to agree that it was at fault, although it would probably not use such powerful words.

He noted Gen. Holomisa’s comments on the Military Ombud report but he had not seen a copy of the report, although he had tried very hard to get a copy. It appeared that it was not a public document and he agreed that it would be difficult to understand the findings without access to that report.

Concluding remarks

Acting Chairperson Mmutle commented that, regarding the statement about the Minister being misled, she would be in a better position to provide context for such a perception.

Mr Marais said that the statement by the Minister of being misled was on record. She had said on television that she had been misled. The Commander-in-Chief had to be given a chance to put his side of the story but it required an investigation by the Committee as it alluded to mistrust between the Minister and the generals and that was a risk for the state that needed to be attended to.

Acting Chairperson Mmutle agreed that the Minister should, indeed, come to the Portfolio Committee and discuss the matter. He would put the suggestion to the Chairperson and further suggest that the Committee obtained the report, if possible, and received a briefing to get clarity on the matter. The Minister needed to explain what she had meant.

Acting Chairperson Mmutle adjourned the meeting as the Chairperson had technical issues. He thanked all Members for their attendance and contributions. He thanked the DoD, National Treasury and the advocate.

Meeting Adjourned.

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