Defence Amendment Bill [B6-2008]: Public Hearings

Meeting report

Reserve Force Council (RFC) submission
Rear-Admiraliral (Retired) Lukas Bakkes (Director and Legal Adviser, RFC) briefed the Committee on the submission from the Council (see attached document).

Admiral Bakkes explained the background to the proposed amendments. Members of the Reserve Force volunteered for service and may be called up under conditions of war in terms of the current Defence Act. This restriction made defence planning difficult. The proposed amendments allowed members of the Reserve Force to be called up in peace time, in the event of extraordinary circumstances. Such provisions were in line with international practice. No additional financial burden on the South African National Defence Force (SANDF) was expected to result from the amendments.

The Council submitted comments on the amendments to Sections 11, 53, 53(A), 53(B), 58 and 104 of the Defence Act. The proposed amendments were still under discussion with the Office of the State Law Advisor (SLA).

Discussion
Mr Shah (DA) asked if the liability to serve imposed on reservists by the amendments infringed on their constitutional right to freedom of choice in employment. He asked if reservists can be bound to a mandatory retirement age.

Mr Shah asked if there were established exceptional circumstances that allowed reservists to refuse a call-up.

Mr Shah asked if the proposed amendments to the terms of service of reservists could be detrimental to the development of the Reserve Force.

Mr Shah requested clarity on the point made in the submission that there were no financial implications resulting from the amendments. The statement appeared to contradict the comments on the planning problems of the Department of Defence (DoD), which included financial implications. He remarked that enhanced deployment of the Reserve Force would involve more people, weapons and ammunition that required additional funding.

Mr Shah requested clarity on the ‘certain prescribed circumstances’ in the amendments, under which the Reserve Force may be called up.

Dr G Koornhof (ANC) referred to the meeting held with the Committee on 4 March 2008 to discuss the call-up of the Reserve Force during times of serious crisis. The key issues included the provision of enabling powers to allow for a rapid call-up of the Reserve Force and the need for a guaranteed and certainty of call-up. The Committee requested the Office of the State Law Advisor and Department of Defence legal advisors to prepare a submission and received the attached document in response. He asked if the RFC consulted with the SLA and the DoD’s legal advisors in the preparation of the submission.

Dr Koornhof was not convinced of the need to legislate the minimum and maximum ages (18 to 75) of service as legislation was normally applicable to the norm rather than the exception. He asked why a maximum age of 75 was proposed and why it was necessary to include the ages in the legislation.

Dr Koornhof asked for further clarity on the proposed cap of two years on renewed contracts. He asked if there were any financial implications if the contracts were extended and if the expense would be borne by the Reserve Force or the Defence Force.

Dr Koornhof noted that Reserve Force members were required to serve ‘anywhere in the world’ in terms of the proposed amendments. He said this was a very wide concept and contradicted legislation passed in 2007 that limited the countries where South Africans could serve. He asked if the proposed amendments contradicted any other laws.

Dr Koornhof questioned the need to legislate a call-up order for the Reserve Force. He asked if the call-up of the regular force was included in the Defence Act and why the call-up order for the Reserve Force was included in the proposed amendments.

In response to Mr Shah’s questions, Admiral Bakkes replied that the Constitution was clear on freedom of association and choice of employment. The primary objective of the Defence Force was to defend the Republic and its people. The Defence Force must be a disciplined force and those serving must be prepared to sacrifice their lives in defense of the country. Joining the Defence Force or the Reserve Force was voluntary. The regular forces were required to be available 24 hours a day and reservists signed a contract to serve. In terms of the contract, reservists must undergo training and development and must be available for call-up, including during peace time. The Reserve Force was part of the Defence Force and there must be a guarantee that reservists were available for deployment for there to be a balanced force. He explained that service in the Reserve Force was on a contractual basis and reservists were not employees of the SANDF. Reservists were only paid if they were called up and actually served.

Mr Shah remarked that the concepts of volunteers and contractual obligations appeared to be contradictory.

Admiral Bakkes replied that volunteering to serve in the Defence Force differed from volunteering to serve in other organisations. There was no obligation on a person to volunteer to serve in the Reserve Force and a person joined because he/she wanted to. There was already a liability to serve in the Defence Act in times of war. The proposed amendments were intended to extend the liability to serve under extraordinary circumstances. He said that the recent incidents of xenophobic attacks were not foreseen but the army was called up as a result.

The Chairperson commented that reservists, like Members of Parliament, cannot volunteer their services on a qualified basis.

Mr S Ntuli (ANC) asked how the proposed amendments differed from the provisions in the existing Act and if volunteers had any right to refuse service if there was a fundamental conflict, for example refusing to serve in an area where there were riots because the soldier lived there.

Admiral Bakkes replied that Section 58 of the Defence Act included the obligations to serve when war was declared, in the defence of the State and when a state of emergency was declared. He explained that these were extreme circumstances. It was necessary to make provision for service under other extraordinary circumstances, for example Operation Bata and the xenophobic attacks. The current Act applied only to regular members of the Defence Force and it was necessary to extend Section 58 to apply to members of the Reserve Force as well. He said it was not possible to legislate exactly which circumstances were extraordinary enough to deploy the Defence Forces. He explained that rapid deployment was required in certain instances and there was a time delay if the Minister had to sign a proclamation first.

Admiral Bakkes said that the wording of the amendments required careful consideration. The RFC planned to consider the other submissions and the comments of the Committee in the drafting of the Amendment Bill.

In response to Dr Koornhof’s questions, Admiral Bakkes replied that the section dealing with call-ups would be revisited to allow for certainty and guarantee of call-up and to allow for more rapid deployment of forces.

Admiral Bakkes confirmed that the RFC consulted with the SLA and the law advisors from the Department. The advertisement calling for public comment on the Bill did not allow sufficient time for discussions to be completed before the deadline for submissions. It was agreed that the RFC will make the submission although the wording of the clauses were still under debate. He said that all parties agreed on the principles involved. He gave the undertaking that the final version of the proposed amendments will be made available to the Committee as soon as possible.

Admiral Bakkes conceded that it was not necessary to include the maximum and minimum ages for service in the legislation and agreed that it was better to allow the Minister to exercise discretion.

Admiral Bakkes said that the duration of call-ups was currently open-ended. The two-year cap on continuous call-up was suggested but can be left open-ended.

Admiral Bakkes said Section 18 of the Defence Act made provision for service anywhere in the world but conceded that the legality of this aspect needed to be considered.

Admiral Bakkes said that the issue of whether call-up instructions should be in the Act was open to debate.

Dr Koornhof understood that the proposed amendments to Section 58 made provision for members of the Reserve Force to be called up for training, exercises and deployment under extraordinary circumstances. He asked if the proposed amendments in the submission will achieve this. He understood that an enabling clause was required to oblige reservists to serve under emergency circumstances.

Mr Shah shared Dr Koornhof’s sentiments. He understood that currently, there was no obligation on members of the Reserve Force to report for training and deployment obligations in times of peace. He felt that training was necessary to ensure that reservists were combat-ready. He asked if the contracts signed by reservists included clauses to cover reporting for training.

Admiral Bakkes agreed that the contracts should include the obligation to report for training but this was not currently included in the contracts.

Mr Ntuli asked why it was necessary to legislate for calling up the Reserve Force under emergency circumstances.

Admiral Bakkes explained that currently, members of the Reserve Force volunteered to participate in operations but were under no obligation to do so. However, should it be necessary to call up the Reserve Force for service, refusal on the grounds of emotional or subjective reasons cannot be allowed. Application may be made for exemption from service and exemption may be granted under certain circumstances but not if the basis for the application was emotional or subjective.

Mr Ntuli asked if exemption will be granted if a reservist is self-employed or if his employer refused to release him for service.

Admiral Bakkes replied that exemption was usually granted for self-employed persons. The Moratorium Act obliged employers to allow reservists to report for duty and protected his/her job. Debts are frozen for the duration of the call-up and the Moratorium Act made provision for fining employers who contravened the Act.

Mr Shah asked if the contract made provision for the contract to be terminated if the person was no longer able to serve in the Reserve Force.

Admiral Bakkes replied that reservists committed themselves for a period of five years, after which they can either renew the contract or leave the Reserve Force. However, if a contract expires during time of war, the Defence Act made provision for the term of service to be extended.

Major-General Roy Andersen (Chief of Defence Reserves, SANDF) supported the principles of the Amendment Bill. The Defence Reserve Board submitted proposals for the amendments. He said it was essential that the Reserve Force was able to guarantee service in order to obtain investment in the system. He felt that reservists were adequately protected by the Exemption Board as exemption was granted for valid reasons. What needed to be avoided was to allow members of the Reserve Force to resign from their contracts when they were called up. He disagreed with the maximum age of 75 and felt this was not practical for active service. He agreed that the calling up of the Reserve Force required Ministerial intervention and felt this serious step should not be left to the uniformed leaders of the SANDF. He supported the suggestion of capping the call-up period to two years as a longer period posed the risk of abusing the reservists as they did not received the normal benefits from the SANDF. There was also the risk that the transformation objectives of the SANDF will not be achieved. He said that reservists were allowed to resign their contracts but should not be allowed to do so when they were called up and supported the extension of the service period if a contract expired during call-up.

The Chairperson requested that the new version of the Bill was submitted to the Committee by 17 June 2008. He thanked the presenters for their presentation.


Institute for Security Studies (ISS) submission
Ms Lauren Hutton (Senior Researcher: Security and Governance, ISS) briefed the Committee on the submission from the Institute (see attached document).

The ISS commented on the legal framework created by the amendments for the functions and duties of the Inspector-General (I-G). The ISS suggested that the I-G’s responsibilities were expanded to include monitoring and reporting on the operational preparedness of the SANDF. The ISS supported the amendment to Section 55 of the Defence Act and suggested additional powers for the Minister of Defence to approve allowances for personnel with specialist and scarce skills. This would allow for the remuneration of SANDF personnel to be brought in line with the private sector and to assist with the retention of essential skills in the Defence Force.

Discussion
Mr Shah noted that the suggested role of the I-G included monitoring and reporting on the preparedness, effectiveness and performance of the SANDF. He asked if the ISS did not consider the role of the I-G to be in conflict with the Committee’s oversight responsibility over the Department of Defence and the SANDF.

Dr Koornhof said that the issue of the retention of scarce skills raised in the submission went far beyond the scope of the current Act and the proposed Amendment Bill. He said that all scarce skills in the SANDF will be affected.

Dr Koornhof noted the proposal that the I-G was empowered to inspect defence facilities and operational deployment. He said that the concept of defence facilities was very wide and presumably included buildings, equipment, etc. He asked if inspections were not currently done by the SANDF and the Department of Defence. He asked how the ISS envisaged tying up existing inspection responsibilities with the I-G’s responsibilities.

Ms Hutton explained that the I-G reported to the Secretary for Defence and the Chief of the Defence Force and advised them on matters of management. The role of the I-G was a management responsibility and the intention was not to hold the Defence Force accountable.

Ms Hutton agreed that the comments related to the need to retain scarce skills in the SANDF went beyond the scope of the proposed amendments to the Act. She said it was a serious problem with no single solution. There was no scope within the existing salary structure of the SANDF to address the concerns over the retention of scarce skills, for example, a pilot in the air force was remunerated as a major and not as a pilot. The Amendment Bill provided an opportunity to explore alternative solutions.

Ms Hutton was unable to comment on existing inspection responsibilities in the SANDF.

Dr Koornhof asked if the ISS had done any work on the issue of the retention of scarce skills. He asked if the ISS was able to submit its comments to the Committee.

Ms Hutton replied that some work had been done by the ISS on the issue of scarce skills. She undertook to inform Major-General Le Roux, who was working on this matter, of the Committee’s request.

The Chairperson requested that further information from the ISS was made available to the Committee by 17 June 2008. He thanked Ms Hutton for her input.


South African National Defence Union (SANDU) submission
Mr Mosima Mosima (President, SANDU) and Mr Michael Thekiso (Legal Advisor, SANDU) briefed the Committee on the submission from the Union (see attached document).

SANDU commented on Section 2 of the Bill, amending Section 10 of the Defence Act. The Union suggested that the I-G reported to the Minister of Defence rather than to the Secretary for Defence and to the Chief of the Defence Force.

SANDU was concerned that the proposed amendment to Section 55 of the Defence Act denied Senior Management Service (SMS) personnel their right to the collective bargaining process to negotiate their pay and benefits. SANDU submitted that the provisions made a distinction between the SMS and other members of the force and conflicted with the labour rights protected by the Constitution.

SANDU requested that provision was made under the amendments to Section 55(A) for a representative of the duly accredited military trade unions to be represented on the Personnel Pay Review Board.

Discussion
Mr Shah explained the protocol to be followed when submissions were made to the Committee. He said that the Minister reported on 27^th May 2008 that no union had met the threshold requirement for admission to the MBC. This conflicted with the statement made under point 6 c of the submission from SANDU that “SANDU has been duly admitted to the MBC”. He asked for clarity on the matter as the recommendation that a union official served on the Personnel Pay Review Board was presumptive if the union was not admitted to the MBC.

Mr Shah noted the concerns that were raised by SANDU that the proposed amendments violated the constitutional rights of SMS staff. He said that the Committee will take up the matter and investigate the reasons for singling out SMS staff in the determination of their salaries.

Mr Shah asked who was meant to make recommendations on salaries to the Minister.

The Chairperson reminded Mr Shah that the Committee did not question the credentials of the parties making submissions. He said that all organisations and individuals were called on to make comments and submissions on legislation before the Committee to obtain the endorsement of the electorate. He said that the Committee had previously agreed on a process for the resolution of the issues between the Department of Defence and the unions and that the matter should not be discussed during this hearing.

Dr Koornhof supported the Chairperson’s ruling. He asked for SANDU’s opinion on the issue of the retention of scarce skills and said that it was likely that such skills would be in the SMS bracket.

Dr Koornhof referred to the suggestion that the I-G reported to the Minister rather than to the Secretary for Defence or the Chief of the Defence Force. He said that there was a danger that such a reporting structure would result in the Minister micro-managing the Department.

Kr Koornhof asked what the basis was for the request that a union official served on the Personnel Pay Review Board.

The Chairperson agreed that Dr Koornhof’s question can be asked provided it pertained to unions in general and not SANDU in particular.

Mr L Diale (ANC) asked how many members of the SANDF belonged to the union.

The Chairperson replied that he had ruled on the issue of the credentials of the party making the submission. He said that SANDU had commented on the participation of a union and that meant any union that may exist in the SANDF. He expected SANDU to reply accordingly.

Dr M Schoemann (Chairperson, Joint Standing Committee on Defence, ANC) remarked that positions similar to that of the I-G existed in other Departments, e.g. the Department of Correctional Services. He asked if SANDU had done any research on the role of inspectors in other Departments.

Advocate Paul Mardon (Chief Legal Advisor, SANDU) appreciated the Chairperson’s ruling. He acknowledged that SANDU’s credentials were under dispute and advised that the matter was under litigation. He said that the MBC was sitting on 28^th and 29^th May 2008 and the issue was to be debated. He said that SANDU was still a registered and accredited union. Participation by any union official on the Personnel Pay Review Board was a matter that must be negotiated. He said that the union was very concerned over the issue of scarce skills and had asked the Department of Defence what was being done about the matter. He advised that regardless of SANDU not meeting the membership threshold, the union was a standing member of and participated in committees and boards dealing with the benefits of Defence Force personnel. For that reason, it was important that the union was represented on the Personnel Pay Review Board.

Adv Mardon explained that the recommendations listed on page 4 of the submission were made by the Military Arbitration Board. He suggested that the union submitted a separate briefing on the issue of scarce skills to the Committee. He said that the Personnel Pay Review Board was the right forum for addressing the matter.

In response to Dr Schoemann’s question, Adv Mardon replied that he was not sure of the extent of the research done and will have to report back to the Committee on this point.

Adv Mardon said that the Defence Force was a unique organisation with extensive powers and responsibilities. The Secretary for Defence and the Chief of the Defence Force were both the makers and the executioners of policy. He gave examples of many other inspectorates and investigators within the SANDF. He said that the concern was over the question of objectivity if the monitoring function of the I-G reported to the Secretary for Defence and the Chief of the Defence Force instead of to the Minister of Defence. The Secretary and the Chief reported to the Minister and there was a risk that adverse reports from the I-G could be covered up.

Mr Mosima said that retention of personnel with scarce skills was important. Skills were being lost because of the labour practices in the country. It was necessary for the employer to look after employees and to develop them. He said that before 1994, many soldiers were illiterate but the Defence Force now attracted and recruited university graduates. It was essential that policies were put in place to retain those graduates.

Mr Mosima referred to the meeting with the Committee on 18 March 2008.  He said that the feedback received was important and SANDU was now able to talk to the SANDF. He confirmed that SANDU will submit a progress report to the Committee in due course.

Dr Koornhof said his question on the retention of scarce skills was not answered. He suggested that the unions endeavoured to find solutions to the problem as the situation was critical. He strongly objected to the language used in the submission and the comments regarding the Secretary for Defence and the Chief of the Defence Force.

Mr J Phungula (ANC) commented on the need for unity in SANDU. He said that the decorum of the Committee must be respected and care must be taken with the tone and language used as proceedings were recorded. The Department of Defence and SANDU must still report back to the Committee on progress as agreed at the meeting held on 18^th March 2008. The Committee intervened for the benefit of all parties. The country was reeling under the impact of the recent xenophobic attacks and cannot be seen to be divided.

The Chairperson requested Members to limit their responses to the submissions. He requested the union’s input on the issue of scarce skills. He wanted to know what program was in place for recruitment and retention of skills in the SANDF. He said it was a common problem and solutions needed to be found rather than pointing fingers. A multi-skilled Defence Force was necessary and ways needed to be found to retain skilled persons serving in the SANDF.

Mr Thekiso noted the comments made by Members and said that SANDU shared the concerns and acknowledged the need for the retention of scarce skills. All stakeholders were involved in finding solutions but the issue cannot be resolved overnight. The proposed amendments made no reference to the retention of scarce skills. The distinction drawn against the SMS personnel in the proposed amendments and the denial of their rights to collective bargaining did not promote the retention of skilled personnel.

The Chairperson explained that Members asked questions to obtain clarity on the issues raised in submissions. The questions were not intended as critique. The Committee asked questions on the broader issues to gain insight and public participation was welcomed as it assisted in determining policy.

Mr Mosima agreed to submit another presentation on the issue of scarce skills. In response to Mr Phungula’s comment, he said that the matter of unity between the two factions of SANDU will be dealt with outside the meeting. He said that soldiers signed a code of conduct and had rights and duties. The modern soldier was a professional. He valued the contribution of the Committee and agreed that all the stakeholders needed to work together to achieve a win-win solution.

The Chairperson thanked all the delegates for their submissions.

Dr Koornhof remarked that the Committee needed to obtain legal advice on the comments from the Gender Commission that the proposed amendments were in conflict with the Constitution and with the Defence Act.

The Chairperson agreed to request clarity from the SLA.

The meeting was adjourned.