Hon Chairperson, hon Minister, hon members, the defence environment is unique in its nature in that the Defence Force protects and defends the Republic and its people as a whole. Therefore it is regarded as an essential service. Hence it is necessary that the personnel in the Defence Force have a functional and effective complaints resolution mechanism, which is meant to complement the chain of command structure.
Although the Department of Defence and Military Veterans led discussions of the Bill, it should be remembered that the Bill was originally championed by the Portfolio Committee on Defence in 2005. The Bill seeks to establish the office of the Military Ombud. The role of the Military Ombud is to receive and attend to complaints within and against the Defence Force from current and former members of the Defence Force regarding their conditions of service, as well as from members of the public regarding the official conduct of a member of the Defence Force.
The role of the Military Ombud is to investigate and ensure that complaints are resolved in a fair, economical and expeditious manner. This office is meant to enhance the grievance processes and ensure that grievances are addressed by an independent office.
In addition to establishing the office of the Military Ombud, this Bill prescribes the process of appointing the Military Ombud, which begins with an open and transparent portfolio committee nomination process and leads to recommendations being tabled before the National Assembly. The President appoints a candidate based on the recommendation of Parliament, which appointment will have received the majority vote of the National Assembly.
A candidate nominated for this office needs to possess adequate knowledge of the Constitution of the Republic of South Africa, and have legal experience and, knowledge of or experience in the military and public administration acquired over a period of 10 years.
Further to this, the Bill defines the objectives, mandates and powers of this office with the distinct intention of achieving the independence of such an office. To illustrate this independence, the Bill gives the Military Ombud the right to be consulted when the President appoints his or her deputy. Further to this, the Military Ombud is given the sole responsibility of appointing the staff in his or her office.
It should be noted that this individual needs to pass the security clearance of the intelligence division of the Defence Force. It should also be noted that the issue of sufficient independence of the Military Ombud was raised. The DA raised the question as to whether or not the Ombud is sufficiently independent from any influence by the executive, noting that the Ombud reports to the Minister. The committee sought a legal opinion in this regard. The legal opinion proved that the independence of this office is successfully reflected in the Bill, in terms of the mandate of the Ombud and the powers and functions of the office.
Essentially, the Military Ombud must investigate complaints lodged in writing and must do so fairly and expeditiously without fear, favour or prejudice. All parties must be informed and given an opportunity to respond to complaints. The Military Ombud may summon any individual who is part of a complaint and resolve it through mediation or conciliation.
After investigation, the Military Ombud may make any of the following three determinations: He or she may confirm the dispute, recommend an alternative resolution to the Minister, or if it falls out of his or her jurisdiction, refer it to the appropriate public institution. If the Ombud upholds the complaint, he or she must recommend the appropriate relief for implementation to the Minister. The outcome of the inquiry must, immediately after completion, be made available to the complainant in writing.
The Military Ombud is restricted from investigating cases that are being heard or have been ruled on by the military courts or any other alternative dispute resolution mechanism. Equally, the Military Ombud has no jurisdiction over issues that may undermine the command structure or amount to insubordination. If the complaint is frivolous, if it is not lodged in reasonable time and if the member has not exhausted the internal complaints mechanism, the office of the Military Ombud must exercise ... [Time expired.]
A request for declarations of vote has been received. I will now allow one member of each political party wishing to make a declaration an opportunity to do so for up to three minutes.
Declaration of vote:
Chairperson, hon members, the functions of the Military Ombud are limited to the investigation of complaints concerning conditions of service within the SA National Defence Force, SANDF. This is a departure from international best practice, where similar institutions have wide mandates to investigate matters within their respective defence forces.
A legal opinion provided by the parliamentary legal service's office defines an Ombud as an office provided for by the Constitution or by action of the legislature or Parliament and headed by an independent high-level official who accounts to the legislature or Parliament, who receives complaints from aggrieved persons against government agencies, officials and employees, who acts on his own motion and has the power to investigate and recommend corrective actions and issue reports.
However, the Military Ombud, as provided for in the Military Ombud Bill, falls short of the criteria set above. Most important and worrying is that the Military Ombud does not account to Parliament. The Military Ombud may not initiate an investigation. The Minister may assign to the Ombud any other additional functions which are not inconsistent with the Act. The Military Ombud must report to the Minister on the activities of the office of the Military Ombud, as and when requested to do so by the Minister. This obviously raises questions about the Military Ombud's level of institutional independence.
However, one of the most challenging issues facing the SANDF is the ineffective grievance system. There is a large number of unresolved grievances, which causes enormous frustration among ordinary soldiers in the Defence Force. Therefore the establishment of a Military Ombud office will go some way towards improving the handling of complaints within the Defence Force. The Military Ombud will therefore, contribute to improving conditions of service in the SANDF. We support the Military Ombud Bill, but with the reservation that the level of institutional independence of the Military Ombud is not adequately addressed. [Applause.]
Agb Voorsitter, alhoewel die militre omgewing 'n omgewing is waar streng dissipline moet heers, is dit ook so dat lede van 'n weermag ook griewe het. Daar moet aandag geskenk word aan daardie griewe anders het jy probleme, nie net ten opsigte van die doel van 'n weermag nie, maar ook die feit dat jy dan 'n ongelukkige soldaat het. 'n Ongelukkige soldaat is dan nie 'n soldaat nie.
Toe die agb Minister aangestel is, het sy 'n paar stappe gedoen om die lede van die weermag se diensvoorwaardes en die omstandighede waarin hulle dien beter te maak. Agb Minister, u het die tussentydse weermagdienstekommissie aangestel, en alhoewel die permanente lede nog nie daar is nie, is dit 'n poging om te s dat ons die omstandighede waaronder die lede van die weermag werk beter moet maak.
Hier kom nou 'n tweede instrument. Dit is die Wetsontwerp op die Militre Ombudsman wat dan spesifiek gaan kyk na die hantering van ons lede se griewe. Voorsitter, ek het al voorheen vanaf hierdie podium ges dat dit wel so is dat mense teen vakbonde in die SA Nasionale Weermag gekant is. Ek s weer dat as daar nie 'n behoorlike grieweprosedure is waardeur lede hul griewe kan lug nie, jy dan nie lede kan kwalik neem as hulle by 'n vakbond aansluit en daardie vakbond sy werk goed doen om na hul griewe om te sien, en selfs in die hof suksesse behaal nie.
Dit is u taak om te sorg dat prosedures en strukture daar moet wees sodat ons lede kan voel dat daar aan hul griewe aandag gegee word. Dit is waar die geheim gaan wees, ook met die militre ombudsman.
Die VF Plus ondersteun hierdie wetsontwerp. Daar is gebreke. Dit is nie 'n perfekte wetsontwerp nie, maar dit is 'n goeie begin wat ons lede ook toelaat om die militre ombudsman te gebruik om hul griewe te kan lug. Aan die einde van die dag gaan die bewys daarin l om te sien hoe effektief die militre ombudsman funksioneer. Daarom is daar 'n verantwoordelikheid op die agb Minister om te verseker dat die struktuur van instelling, en die aanstelling van die lede van hierdie struktuur, so gou moontlik moet plaasvind sodat hulle met hul werk kan begin. [Applous.] (Translation of Afrikaans speech follows.)
[Mr P J GROENEWALD: Hon Chairperson, although the military environment is one where strict discipline must prevail, the fact remains that members of an army have grievances too. Those grievances should be dealt with, otherwise you will have problems, not only with regard to the purpose of an army, but you will then have an unhappy soldier as well. An unhappy soldier is not a soldier.
When the hon Minister was appointed, she took a few steps to improve the conditions of service of members of the army and the circumstances under which they serve. Hon Minister, you have appointed the interim Defence Force Service Commission, and although the permanent members are not there yet, it is an attempt to say that we have to improve the working conditions of members of the army. Now a second mechanism is on its way. It is the Military Ombud Bill which will specifically look at how our members' grievances are dealt with. Chairperson, on previous occasions I have said from this podium that it is true that people are opposed to unions in the SA National Defence Force. I will say again that, if there is no proper grievance procedure for members to air their grievances, you cannot then blame the members if they join a union and if that union does its job well to see to their grievances, even achieving success in court.
It is your task to see to it that procedures and structures are in place in order for our members to feel that their grievances are being dealt with. This is where the secret will lie, also with the Military Ombud.
The FF Plus supports this Bill. It has its flaws. It is not a perfect Bill, but it is a good start that enables our members also to use the Military Ombud to air their grievances. At the end of the day the proof will be in how effectively the Military Ombud is functioning. This is why it is the hon Minister's responsibility to see to it that the structure is created and that members are appointed to this structure as soon as possible so that they can start with their work. [Applause.]]
Hon Chairperson, members, as you have heard, the Military Ombud is meant to deal with complaints of former members and members of the Department of Defence and Military Veterans, lodged in writing. We are not creating an animal that will go out hunting for unfounded allegations heard of or read in the papers or in the media. With this Bill we intend to make sure that we expedite, examine fairly and investigate complaints that are lodged by these members. We also want to make sure that this office does not undermine the command and control of the Department of Defence and Military Veterans, because we must remember that the grievance procedure is part of the command and control of the Department of Defence and Military Veterans.
We are bringing in this office in order to make sure that it deals with grievances that people were not happy about and those that were not taken care of fairly within the command and control of the Department of Defence and Military Veterans.
We have listened to the DA flagging the independence of this office, trying to say that this office must be set up outside the department. Yet the chairperson, in his introduction, said that the defence environment is a unique one. Therefore what happens in the Defence Force must be within the environment of the department. Failure to do so is where the Military Ombud comes in. The ANC supports this Bill and we feel that the independence of this office is adequate for dealing with these issues. [Applause.]
The fact that the DA is flagging this issue suggests that they do not have confidence in the department and the executive. How, then, do you run a department if the Opposition is saying that the mandate of this office that they are part of is not enough? [Time expired.] [Applause.]
There was no debate.
Bill read a second time.