Defence Bill: deliberations

Meeting report

Proposed amendments by the Reserve Force Council
The proposed amendments made by the Reserve Force Council dealt primarily with Clause 47, which concerns the establishment of the Reserve Force Council.

The proposed amendment suggested by the RFC would appear as Clause 47(3) and read: 'the persons appointed by the Minister must be nominated or elected as prescribed in the Constitution and must be representative of all its constituents.'

Mr Ntuli was interested to know the implications of using the words 'nominated' and 'elected'.
The Reserve Force Council explained that because of the need for transformation, members from MK and APLA were nominated onto the Reserve Force Council. He explained that once transformation had occurred and the RFC had become representative, the need to nominate members would fall away.

Mr Ntuli (ANC) then expressed his concern that there is no transformation and was interested to know how this could be dealt with in the act. The Chair agreed.

Mr Schmidt (DP) stated that because of the proposed Clause 47(3), the RFC will be representative and the number limitation in Clause 47(2) of nine to eighteen people is a sufficient number to have a truly representative Reserve Force Council.

The Department of Defence raised the concern that they had not had the chance to take these proposed amendments and discuss them internally. They had not had a chance to put them through to the minister, even though they were willing to do so.
The Chair stated that the Department of Defence is unorganised and that they must sort themselves out.

Mr R Jankielsohn (DP) stated that the Department was in meetings last week and if it does not have any proposals, it must take what is available and work with it. He then asked a question regarding the RFC's initial proposed amendment which made provision for the nomination or election of 'non-statutory forces if integrated' onto the council. Was this necessary?

The RFC responded that transformation of the RFC must take place before it is truly representative. The fundamental issue for them therefore is transformation. This was however included because members did not wish to relinquish their seats to vacant posts.

The Chair also expressed her concern with this phrase because it forces one to look at the reserve forces as broken into regiments and units as well as territorial and conventional units. This creates problems because it causes one to view the Reserve Force Council as a fragmented body and not as a unified, representative and transformed whole. The problem for her was how to integrate the council without appearing as untidy as the proposed amendments do now.

The RFC stated that within the constitution of the RFC, provision for the integration of these disparate elements does exist and suggested that the issue of representation might be better dealt with by the constitution. The issue of representation can therefore be left out of their proposed amendments to Clause 47(3).

Mr Mtumi (Department of Defence) was worried that if one nominates or elects a member according to the constitution of the RFC, the assumption is that the constitution ensures representation. What if it does not? He is worried because he himself and indeed most of those in the meeting had not seen the constitution. Furthermore, as he saw it, the wording of the proposed amendments left no choice with regards to appointing those people that have been elected, notwithstanding whether those elected people are representative or not.

Another concern raised by the Department of Defence was whether or not the Minister would be bound to appoint a person on the list even though he is possibly uncomfortable with having such a person on the Reserve Force Council.

The Chair agreed that this is a valid concern.

The Reserve Force Council stated that their constitution in fact allows this. The Minister has the right of veto, he can take names off and he can put them back on. What the council is however trying to preserve is the fact that the members on the RFC are elected by existing forces. Indeed, the RFC represents them and expects them to do something about their condition. If the forces are not happy with the way individual members on the RFC are conducting themselves, they can vote them off. It is therefore important that the reserve forces have the ability to elect people onto the council.

A member from the Department of Defence re-iterated their concern by stating that the veto power of the Minister must be in the bill and not in the Constitution.

Mr Schmidt stated that this question is irrelevant because the Minister is entitled by law to disapprove of anything the council does and the bill itself gives the Minister far-reaching veto-powers.

A Member then stated that if this is so, then the proposed amendment is redundant because it means that the Minister can do anything he likes.

The Chair suggested that the solution to this problem is either to tinker with the clause and actually give the Minister veto powers in the bill, or otherwise leave this to the constitution.

Mr Mtumi stated that the central concern is that representation is ensured and that there therefore must be an obligation on the Minister to ensure representation.

Mr Schmidt argued that this has always been the issue and that there is nothing that reads any differently in the Bill.

Possible solutions offered by various people at the meeting included leaving 'as prescribed' out of the clause and including the word 'representation' to a proviso to Cl 47(2) ensuring that the RFC is representative.

The Chair closed the discussion by stating that it is agreed by all that what is wanted is representation, whether it is included in a sub-clause or not.

The next amendment proposed was to subsection 4. This was primarily concerned with the insertion of the word 'substantial' into the clause.

A concern was raised by the Department of Defence that the word substantial assumes discretion on the part of somebody. He wanted to know who must make this judgement.
The RFC's response was simply that they need not be consulted about minor things, but about things that substantially affect the administration of the force.

The Chair wanted to know if there were any other words available.

Mr Radebe (Department of Defence) stated that the insertion of a word like 'adversely' would be better because it is much more defined, one would know when to consult and when not to consult the RFC.

Mr Schmidt argued that this created the same problem and whether something is adverse or not is essentially a judgement call.

It was finally agreed to leave it substantially as it stood in the proposed amendment.

Regarding subsection 8 of the RFC's proposals, it was decided that a provision such as this is not necessary because such powers are catered for elsewhere.

It was decided to leave 9 and 10 of the RFC's proposals as they were.

The section of the meeting dealing with the RFC's proposals was adjourned with an expression by the RFC that they were happy with the decisions reached by the committee.

The meeting then moved on to the next sections in the bill and discussed amendments as they appeared in the document dealing with the proposed additions and deletions to the defence bill. Most of them were agreed to, but there was discussion around others.

Other proposed amendments to the Bill
Chapter 8
All Members were satisfied with the amendments.

Chapter 9
A member from the Department of Defence stated that the presentation last week by the Catholic Bishops Conference referred to Clause 53(2)(c) as being anachronistic in that a member of the force should be able to carry dual citizenship. She disagreed with this submission and found it problematic in that one cannot claim allegiance to South Africa while at the same time having dual citizenship. The Chair agreed.

Mr Radebe asked why the word swear is used in Clause 53(2)(a). Could they not possibly use the word declare?
Another member of the Department of Defence agreed, arguing that 'swear' is a stronger word than declare and may be offensive to those who are very religious.
Mr Mtumi suggested that they change this section to 'swear or declare'.
This was agreed.

Clause 53(5) was changed from 'determines' to 'may determine'.

A Member asked why Clause 55(1) was included.

Mr Radebe responded that previously Clause 55 offered protection only to members, but that it should also cover employees. This section was added to cater for this.
The Chair stated that Clause 56 does the same thing for the same reasons.

Regarding Clause 56, a member from the Department stated that money should be appropriated from Parliament to pay injured soldiers because this is one of the only way that Parliament can be held accountable for sending soldiers on a mission. It is the only way to make Parliament feel guilty.

The Chair stated that this issue has been dealt with previously and the issue is settled.

A Member of the Defence Force stated that the word 'cashiered' must be inserted into Clause 58(1)(d). She stated that cashiering is a process whereby a soldier is stripped of his rank publicly in front of other soldiers. It is a method of terminating service and of saying that the soldier's conduct was unbecoming.

A committee member wanted to know why Clause 59(4) was highlighted in the draft.
Mr Radebe stated that this was an issue raised by the Chief of the Defence Force. It needs clarification because at first glance it implies that if the State provides legal representation for a soldier, it may ask that soldier to repay the costs of that representation to the State.

A Member stated that this is a standard clause and simply means that if one is found guilty, then he has to pay for representation.

Mr Radebe explained how the Clause works. It simply means that if representation is given and it is found that the alleged offender had not acted negligently, then the state foots the bill, If however the result is the opposite, then the state may ask the offender to recover the costs of representation.

Mr Radebe stated that Cl63 should be deleted because the issue of discipline is going to be dealt with elsewhere in the Military Dispute Bill.
It was however argued that this will create a lacuna in our law until the Military Dispute Bill comes into force.
The Chair suggested that this clause be left because although it is already in legislation, it will not make a difference if this clause remains in the bill.

Chapter 10
There was extensive discussion around Clause 64. It was decided to change Cl64(2) to read: '…and inviting all interested and affected parties to furnish him or her with representations with regard thereto not later than a reasonable date specified in the notice'.

Mr Jankielsohn stated that the provision should be made in Cl64(2) to include local official languages and not just official languages. This was however not agreed.

It was decided to change Cl64(3) to read 'lawful owner and occupier' rather than just lawful occupier because the owner should also have notice as to whether or not his property will be used by the Defence Force.
Another concern was that Cl64 was in contravention of the property clause in the Constitution. Mr Radebe stated that this was not so because of the requirement of reasonableness and the safeguards which are provided for in the act.

It was agreed that the rest of Cl64 should stand as is but that Mr Jankielsohn will run through it with Mr Schmidt to ensure that it is constitutional and not in conflict with any other laws.

Chapter 11
It was decided to change Cl65(3)(d) from reading 'the Chairperson' to read 'a chairperson' in the small case. This is because as it read, Cl65(3)(d) essentially meant that a meeting could not be held if the Chairperson was not present. With the amendment, a chairperson can now be elected for the day and the meeting can be held.

Discussion also centred around the precise meaning of Cl65(3)(d). The Chair stated that all it means is that there is not a quorum if there is not member there who is covered by Cl65(3)(a)(i) and a member who is covered by Cl65(3)(a)(ii). A member from each must be present as well as a Chairperson before there can be a quorum.

The meeting was adjourned.

Appendix

CONFIRMATION OF PROPOSED AMENDMENTS BY THE PORTFOLIO COMMITTEE TO CHAPTER 7 SECTION 47 OF THE DEFENCE BILL: RESERVE FORCE COUNCIL

To: Ms Modise, Chairperson: Portfolio Committee on Defence

From: John Del Monte, Parliamentary Liaison Officer: Reserve Force Council

As requested attached please find the following documents regarding the amendments to the Defence Bill in respect of the establishment of the Reserve Force Council:
a. Appendix A: Proposed amendments originally submitted by the Reserve Force Council (on 24 May 2002).
b. Appendix B: Proposed amendments as suggested by the Portfolio Committee on 28 May 2002.
c .Proposed amendments to Chapter 7, Section 47(2) of the Defence Bill on 28 May 2002.

PROPOSED AMENDMENTS BY PORTFOLIO COMMITTEE ON DEFENCE TO CHAPTER 47(2) OF THE DEFENCE BILL.

47(2) The Minister must appoint no fewer than nine and no more that 18 persons to the Reserve Force Council and must designate one of them as chairperson, provided that to make the Council representative. the Minister must consider the appointment to the Council, of persons elected or nominated from the constituents of the Council.

Bold denotes insertions

Note:
This amendment addresses the Portfolio Committee's concern to ensure that the Council is representative and allows the Minister the discretion to appoint the members of the Council

APPENDIX A
PROPOSED AMENDMENT SUBMITTED BY THE RESERVE FORCE COUNCIL
EXTRACT PROM DEFENCE BILL

Establishment of the Reserve Force Council
47.(1) The Minister must establish the Reserve Form Council

(2) The Minister must appoint no fewer than nine and no more that 18 persons to the Reserve Force Council and must designate one of them as chairperson.

(3) The persons to be appointed by the Minister must be elected or nominated as prescribed in its constitution by the members of the Council and of at least the Reserve Force Regiments and Units in all the Services and Divisions including both conventional and territorial units former non-statutory forces and recognised military veterans organisations.

(4) The Secretary or Defence and the Chief of Defence Force must be represented in the Council.

[(3)] (5) The Council must conduct its business in accordance with a constitution adopted by it and approved by the Minister.

[(4)](6) The Council is a consultative and advisory body representing the Reserve Force in order to promote and maintain that Force as an integral part of the Defence Force and must be consulted on any [legislative] legislation policy and administrative measures substantively affecting the Reserve Force.

[(5)] (7) The Minster, Secretary for Defence and Chief of the Defence Force may commission the Council to execute any task or program or to investigate any matter pertaining to the Reserve Force or its interests and the Council must report to the Council of Defence and the Defence Staff Council in respect of such Reserve Force matters as and when required.

(8) The Council must report to the Portfolio Committee on Defence in respect of Reserve Force matters as and when required.

[(6)] (9) The Council does not have any powers of command.

[(7)] (10) The Minister may make such regulations regarding the Reserve Force Council as may be required.

[ ] Brackets denote deletions
Bold denotes insertions

APPENDIX 3
PROPOSED AMENDMENTS SUBMITTED BY THE RESERVE FORCE COUNCIL EXTRACT PROM DEFENCE BILL

Establishment of the Reserve Force Council

47. (1) The Minister must establish the Reserve Form Council

(2) The Minister must appoint no fever than nine and no more that 18 persons to the Reserve Force Council and must designate one of them as chairperson, provided that to make tile Council representative the Minister must consider the appointment to the Council. of persons elected or nominated from the constituents of the Council.

(3)The Secretary for Defence and the Chief of the Defence Force must be represented in the Council.

[(3)] (4) The Council must conduct its business in accordance with a constitution adopted by it and approved by the Minister.

[(4)] (5) The Council is a consultative and advisory body representing the Reserve Force in order to promote and maintain that Force as an integral part of the Defence Force and must be consulted on any [legislative] legislation policy and administrative measures substantive affecting the Reserve Force.

[(5)] (6) The Minister Secretary for Defence and Chief of the Defence Force may commission the Council to execute any task or program or to investigate any matter pertaining to the Reserve Force or its interests.

[(6)](7) The Council does not have any powers of command.
[(7)] (8) The Minister may make such regulations regarding the Reserve Force Council as may be required.

[ ] Brackets denote deletions
Bold denotes insertions