Defence Amendment Bill [B11-2010]: deliberations day 3

Meeting report

Deliberations on the Defence Amendment Bill
The Chairperson advised that the Office of the State Law Adviser had documented the amendments to the Bill agreed by the Committee during earlier deliberations (see attached document).  The Committee would continue with deliberations on the amendments to Section 53 of the Defence Act (Clause 3 of the Bill), which dealt with the Reserve Force.  The failure of a member of the Reserve Force to comply with a call-up order would be dealt with under the amendments to Section 104 of the Act (Clause 7 of the Bill).  The provision requiring consultation with the Reserve Force Council had to be included in the Bill.

Mr P Groenewald (FF+) suggested that the phrase “or fails” in Clause 7 (a) (12) was replaced by the phrase “without valid reason”.  He suggested that the Reserve Force Council was included in the provisions under Clause 5 62B (d) (iv).  Clause 3 (a) made provision for the Minister to give any member of the Reserve Force, who had failed to conclude a contract of service, notice of the intention to terminate membership of the Force.  Such a provision resulted in a lengthy process and a heavy administrative burden on the Minister.  The clause did not cover instances where no response to the notice was received.

The Chairperson read out the proposed subsection to be included in Section 53 of the Act.  He felt that the provisions specified in (b) (i), (ii) and (iii) covered the steps that had to be taken and should be included.

Mr D Maynier (DA) referred to Clause 3 (d), which inserted subsection (3A) (a) and stated that “A Reserve Force member must comply with a call-up order ….”.  The member would be guilty of an offence if he failed to comply.  The Act made provision for an Exemption Board and the member had the right to apply for exemption or deferment.  He suggested that the clause included the phrase “unless the member had applied for exemption and deferment”.

The Chairperson explained that the legislation should include draconian measures to address the failure to comply with call-up orders and should not interfere with the maintenance of military discipline and the authority of the commanders.

Mr Maynier accepted the need to maintain the military institution but felt that there might be a valid reason for a member to fail to report for duty after being called up.  The legislation should recognise the right of the member to apply for exemption and make it clear that there was an obligation to report for duty unless exemption was applied for in the proper manner.

Mr E Mlambo (ANC) did not understand Mr Maynier’s argument.  He said that “we are trying to avoid the unionisation of our defence”.  He did not think that using “soft words” would do justice to the military institution and suggested that the clause remained unaltered.

The Chairperson explained that Section 67 of the Act made provision for the application for exemption and would not be amended by the Bill.  The amendment proposed by Mr Maynier created an additional opportunity for members not to report for duty and would undermine the respect that had to be shown for the institution.

Mr Groenewald referred to Clause 3 (a) and asked what was considered to be a “reasonable opportunity” as specified in sub-clause (b) (ii).  He asked for confirmation that sub-clause (c) of Section 53 would be deleted, as discussed during the deliberations held on 6^th October 2010.

The Chairperson asked for comment by the Parliamentary Legal Adviser and the State Law Adviser.

Mr Ntuthuzelo Vanara, Parliamentary Legal Adviser, Legal Services Office, Parliament advised that the provisions contained in Clause 3 (a) complied with the Promotion of the Administration of Justice Act (PAJA).  He did not consider that there was a legal problem with the provisions contained in subsection (b) (i) to (iii).  The provision allowing for a “reasonable opportunity” was an attempt to refrain from prescribing a timeframe to the Minister as there might be different circumstances applicable.  He explained the concept of an objective test, which allowed for a variation in applicable circumstances and avoided unnecessary litigation.

Mr Vanara explained that Clause 3 (c) would not be removed, only the phrase “but excluding remuneration” would be deleted.  With regard to Mr Maynier’s suggestion to link Clause 3 (d) to Section 104 of the Act, he explained that the law allowed for the concept of defenses, which allowed reasonable and valid reasons for not complying with a call-up order.  If the provisions of the clause were linked to Section 104, the wrong impression would be created and would result in the limitation of defenses.

Mr Mongameli Kweta, Senior State Law Adviser, Office of the State Law Adviser concurred with Mr Vanara’s arguments concerning Clause 3 (a).  He agreed that Clause 3 (c) should be removed from the Bill as the proposed amendment served no purpose.  He felt that Mr Maynier’s suggestion concerning Clause 3 (d) would result in a loophole being created.

Ms Mamoloko Kubushi, Chief: Defence Legal Services, Department of Defence and Military Veterans agreed with Messrs Vanara and Kweta.  She pointed out that Section 104 (Clause 7) allowed for the application of exemption from a call-up order.

Mr Siviwe Njikela, Director: Legal Advice, Department of Defence and Military Veterans advised that the provision for exemption applied to all members of the Defence Force, including members of the Reserve Force.  Section 48 of the Act dealt with the requirement for consultation with the Reserve Force Council.  The issue of the notice given by the Minister was a matter of practicality.  The provision placed an administrative burden on the Minister to issue letters to a large number of Reserve Force members.  He agreed with Mr Kweta that Clause 3 (c) should be omitted.

The Chairperson pointed out that the Minister could delegate functions, without relinquishing the responsibility.  The proposal to include the provision for consultation with the Reserve Force Council was motivated by the complaint that the Council was being ignored by successive Ministers of Defence.  Similar complaints were made by other institutions.  The attempt to enforce consultation by means of legislation was further motivated by the fact that the Council was funded by State resources.  He understood that Clause 3 (c) would be deleted from the Bill.

Mr Vanara clarified that Section 2 of the Act was not being removed and that only the proposed amendment to the Section would be removed from the Bill.

Mr Mlambo understood that the Reserve Force Council was established sixteen years ago but had been ignored by successive Ministers.  The term of appointment of the members of the Council had not been clarified.  The Council had requested that the Reserve Force should be included in the Military Command.

Mr Groenewald quoted the provisions of Section 48 of the Act, which specified the establishment of the Reserve Force Council and the appointment of its members by the Minister.  He queried the need for commissioners serving on the National Defence Force Service Commission (NDFSC) to consider the entire Defence Act to determine their role and if there was any reason why the responsibilities of commissioners could not be included in a separate section.  In addition to the administrative burden placed on the Minister by the provisions of Clause 3 (a), the entire process would take a long time.  He felt that a period of two and a half years to complete the process was far too long.  The provision for a “reasonable opportunity” would further add to the length of time and he wondered what the legal position would be if this requirement was removed.

The Chairperson acknowledged that Section 48 dealt with the Reserve Force Council.  However, the issue of consultation was important and should be recognised in the legislation.  He pointed out that service in the Reserve Force was on a voluntary basis and it was necessary to allow members a reasonable time to enter into a service contract.  The rights of members could not be compromised and there could be valid reasons why a member could not comply with a call-up order.

Ms Kubushi remarked that a repetition of the requirement to consult with the Reserve Force Council in the legislation would not solve the problem of the Council being ignored by the Minister.  She felt that the provisions contained in Section 48 were adequate.

Mr Groenewald cautioned that the recommendations of the NDFSC could be invalidated if the Reserve Force Council was not consulted.  He asked why all the relevant councils could not be included in the legislation as it would serve to remind the NDFSC of the legal requirement to consult with the affected parties.

Mr A Mlangeni (ANC) asked how many councils were involved.

Mr Vanara advised that Section 48 of the Act dealt with the establishment of the Reserve Force Council.  The requirement to consult with the Council was specified in Section 48 (4).

The Chairperson read the provisions contained in Section 48.  He felt that the additional requirement to consult with the Council should be included in the Bill.  He advised that the Committee would hold regular discussions with the Council as well.

Mr Kweta explained that the proposed amendments to the Bill (also known as the ‘A-list’), would be incorporated into the B-version of the Bill for approval by the Committee on Tuesday, 12 October 2010.

The Chairperson queried why the Bill was classified in terms of Section 75 of the Constitution and therefore had to be passed by the National Council of Provinces (NCOP).

Mr Kweta gave a detailed explanation of the Constitutional requirements and the processes governing the passing of the Bill.  The Defence Act was listed under Schedule 4 of the Constitution and had to be based by both Houses of Parliament.  If the NCOP passed the Bill without further amendments, the Bill would be submitted to the President for signing into law.

Mr Kweta presented the proposed amendments to the Bill, as specified in the attached document.  The amendments included changes to the definitions contained in Clause 1; the insertion of a new clause and amendments to Section 13 concerning the Military Command of the Defence Force; the rejection of Clauses 2, 4 and 6; the amendments to Clause 3; the insertion of a new clause to amend Section 55 of the Act; the amendments to Clause 5; the amendments to Clause 7 and the technical amendments to the Long Title of the Bill.

The Chairperson noted that the Secretary for Defence had undertaken to consider re-phrasing the provisions contained in the amendments to Section 62H (3) and to submit a proposal to the Committee.  The relevant section dealt with the omission of confidential information that would be detrimental to national security from the report of the NDFSC.

Mr L Mphahlele (PAC) referred to the provisions concerning the appointment of the Military Command.  He asked who was responsible for the appointment of the Chief of the Defence Force.

The Chairperson advised that the Chief of the Defence Force was appointed by the President.  Clause 3 made provision for the Minister of Defence and Military Veterans to make recommendations on who was appointed to the Military Command.  He noted that the Chief of the Reserve Force was not included in the list of persons who comprised the Military Command.

Mr Mphahlele felt that the President should appoint the members of the Military Command without the need for the Minister to make recommendations.

Mr Groenewald queried the omission of the Chief of the Reserve Force from the Military Command.  He pointed out that the Chief of the Reserve Force currently served on the Military Command.  The appointment of the Chief of the Defence Force was constitutional and legislative provision was not required.

Mr Maynier said that the Committee had not yet had the opportunity to discuss the issue of the Military Command.  He asked for an explanation of and the criteria used for the exclusion of the Reserve Force and the inclusion of the Chiefs of Human Resources and Logistics in the Military Command.  The Constitution specified that the Military Command was appointed by the President and he asked for clarity on whether the appointments were made after consultation with or on the recommendation of the Minister.

Mr Mlambo pointed out that the President was the Commander-in-Chief of the Defence Force and should appoint the members of the Military Command.  He did not think that the Minister should feature in the appointments, as was the case in most other countries.

The Chairperson asked the legal advisers to check the relevant sections of the Constitution.  He noted that the Members of the Committee felt that the Minister should be excluded from the appointment process.

Mr Vanara said that the relevant sub-section (1) of Section 2 of the Constitution was clear and unambiguous.  The President as the Commander-in-Chief must appoint the Military Command.  In his opinion, the proposed amendment that the appointment was made on the recommendation of the Minister would result in the potential for a successful constitutional challenge.  The Department needed to reconsider the requirement that the relevant Chiefs were appointed to the Military Command on the recommendation of the Minister as the Constitution required the President to appoint the Military Command.

Mr Njikela explained that the criteria applied to identify the members of the Military Command were that the incumbents had command responsibility and were at least at three-star level.  The Chief of the Reserve Force was an adviser to the Chief of the Defence Force but had no command responsibility.  The proposed provisions under Clause 3 were a matter of process.  Current Government practice required that consultation took place before appointments were made.

Mr Mlangeni reiterated that the Constitution was clear on the appointment of the Military Command by the President, as Commander-in-Chief.  However, the Constitution did not specify who comprised the Military Command.  He felt that the proposed amendment to list the Chiefs comprising the Military command made sense but he was concerned that their appointment by the President would be challenged as unconstitutional.  He was uncertain about a solution to the problem.  He pointed out that consultation took place before presidential appointments were made, even though this was not necessarily specified in legislation.

The Chairperson said that the Minister had explained the weakness in the current legislation concerning the appointment of the Military Command, hence the inclusion of the relevant provision in the Bill.  He was of the opinion that the proposed members of the Military Command made sense and that there was no need for the Reserve Force to be represented.  The problem was if the Minister made recommendations as the appointment of the Military Command was the prerogative of the President.  He considered Mr Vanara’s interpretation of the potential for a constitutional challenge to be correct.

Mr Groenewald wanted to know why the Chief of the Reserve Force currently served on the Military Command.  He was surprised to hear that the Chief had no command responsibility as the Reserve Force was currently serving on military operations.  He quoted Section 11 of the Act, which specified that the Reserve Force was part of the South African National Defence Force (SANDF) in addition to the regular force.  Section 12 of the Act specified that the SANDF comprised the army, navy, air force and military health services.  The Department sought to include the human resources and logistics services as well.  He strongly objected to the omission of the Reserve Force from the Military Command and urged that the proposed amendment was reconsidered.

The Chairperson noted that the composition of the Military Command was not included in the current Defence Act.  The proposed clause in the Bill was the first attempt to make provision for specifying who would serve on the Military Command.

Mr A Maziya (ANC) concurred with the opinions expressed by the other Members of the Committee.

Mr Maynier remarked that the composition of the Military Command appeared to be a “thumb suck”.  He wondered what the experience was in other countries and if international best practice was considered.  He supported Mr Groenewald’s assertion that the Chief of the Reserve Force should be included in the Military Command.  He disagreed that the Chiefs of Human Resources and Logistics should be included.  He asked for an explanation by the Department on the motivation for the amendment.  He understood that the issue arose during the appointment of the Chief of the Intelligence Services by the President.  He wanted to know what the problem was that required the proposed legislation.

Mr Mlangeni supported the proposed amendments to the Act.  He did not consider it necessary to take into account what the rest of the world was doing.  He pointed out that members of the Reserve Force served on a temporary, voluntary basis.

Mr Maziya was unsure why the Reserve Force should be included as the reserves had delegated powers and its members served under the command of full-time officers when called up.  He suggested that the Committee accepted the proposed amendments.

The Chairperson felt that the matter should be a Parliamentary decision.

Mr Groenewald urged the Committee to exercise caution.  He disagreed with Mr Maziya’s statement that the Reserve Force operated under delegated powers.  An operational commander would be appointed but any member of the Reserve Force would serve in the same manner as another member of the Defence Force when called up.  If the composition of the Military Command was defined in legislation, the definition had to be in accordance with the principal Act, which excluded the Human Resources and Logistics services.

The Chairperson asked how the matter could be dealt with if further amendments to Section 12 were to be avoided.  He allowed the matter to be debated by the Committee as it was raised in the submission made by the Reserve Force Council.

Mr Groenewald said that the proposed list of the members of the Military Command had to be clarified.  If the Military Command was limited to the Chiefs of the services, then the list should be limited to the Chiefs of the services specified in Section 12 of the Act.  If the list was extended to include additional services, such as Human Resources, Logistics and Intelligence Services, then the Reserve Force should be included.  The fact that the Chief of the Reserve Force was included in the current Military Command proved that his membership was important.  Members of the Reserve Force currently served in all military operations.  He felt that the exclusion of the Reserve Force from the Military Command structure would not be to the benefit of the SANDF.

Mr Mphahlele disagreed that the Chief of the Reserve Force should be included in the Military Command and accepted the explanation of the criteria applied by the Department.

Mr Mlambo pointed out that members of the Reserve Force had specific skills and were called up to serve in particular arms of the defence services and reported to the relevant service commanders.  The Reserve Force did not operate on its own.

The Chairperson concluded that the majority of the Members of the Committee felt that the Chief of the Reserve Force should be excluded from the Military Command.  He referred to the briefing to the Committee on 10^th June 2010 concerning the Military Command.

Mr Groenewald concurred that Section 12 (2) of the Act made allowance for the Minister to establish a structure comprising components of any of the services.  He insisted on an explanation of the decision to include the Chiefs of the additional services and to exclude the Reserve Force from the Military Command on legal grounds.

The Chairperson drew a distinction between what was happening in practice and the specific legislative requirements.  He reiterated that the majority of the Members disagreed that the Chief of the Reserve Force should be included in the Military Command.  The Committee felt that the potential constitutional challenge resulting from the provision that the Military Command was appointed on the recommendation of the Minister should be avoided.  He requested that the motivation for the omission of confidential matters that threatened the national security from the reports of the NDFSC be presented to the Committee before the Bill was considered on 12 October 2010.

The meeting was adjourned.