Minister of Defence and Military Veterans on the recent military union protest action

Meeting report

A large contingent of representatives from the media attended the meeting. The Chairperson apologised for the small venue and pointed out that the purpose of the meeting was a briefing by the Minister to the Committee rather than a press conference.

Briefing by the Minister of Defence and Military Veterans
The Honourable Lindiwe Sisulu advised the Committee that she had received notice on the 19 August of the protest march by members of the South African National Defence Union (SANDU) to be held on the 26 August 2009. She immediately called an emergency meeting with the Department of Defence (DOD), the Secretary for Defence, the Chief of the Defence Force, ministerial legal advisers and the Deputy Minister of Defence and Military Veterans.

After the meeting, she instructed the Human Resources Department of the DOD to inform all members of the South African Defence Force (SANDF) of the progress made concerning the consideration of the remuneration and the conditions of service as agreed to by the Department and to send the message that Government cared about the members of the SANDF. Secondly, members of the SANDF were to be informed of the progress made with regard to the Military Bargaining Council (MBC) and the request for SANDU to return to the bargaining chamber to conclude negotiations. Members of the SANDF were advised that legal steps would be taken in the interests of national security. A march on the Union Buildings was considered to be a threat to national security. She was informed that SANDU had walked out of the bargaining chamber before negotiations were concluded and she requested the DOD to look into the matter and report back to her. SANDU was urged to return to the bargaining chamber in order to continue negotiations.

The Chief of the Army issued a statement on 19 August 2009, prohibiting members of the SANDF from participating in strike action and warning that severe disciplinary action would be taken against any member participating in labour unrest. The statement was widely distributed. SANDU sent a letter to the Minister on 20 August 2009, requesting the Chief of the Army to rescind the order against participating in the protest march scheduled for 26 August 2009 as the order contravened a Constitutional Court order permitting the union to hold meetings with union members during office hours.

The union submitted a court application on 21 August 2009 against the order of the Chief of the Army. In her response to the court application, the Minister said that the SANDF could not comply with a court order that compromised national security and that the planned protest march to the Union Buildings posed a threat to national security. The court dismissed the SANDU application with costs, on the basis of the march being illegal as the City of Tshwane Metro Police had withdrawn permission for the march on the Union Buildings, that the march posed a threat to national security and did not serve the public interests. The instruction from the court was clear as at 10h00 on the 26 August 2009. Nevertheless, approximately 2000 SANDU members staged an illegal march on the Union Buildings, in contravention of the court order and in disregard for the assurances of the Minister that the matter of the conditions of service of members of the SANDF would be dealt with.

The City of Tshwane Metro Police denied permission for the march on 25 August 2009 and communicated the decision to the leadership of SANDU and the Minister. She immediately issued an appeal to the members of the SANDF not to participate in an illegal protest march and gave the assurance that the Ministry was dealing with the complaints concerning conditions of service. Nevertheless, SANDU went ahead with the march, with many participants armed with sledgehammers, pangas, knobkerries and knives. The marchers proceeded to throw petrol bombs and vandalised police vehicles and public and private property. The subsequent clashes with the police were widely reported in the media.

Ms Sisulu said that the actions of the members of the SANDF were serious violations. The SANDF existed to provide national security to the country and the action taken undermined that very security. The Union Buildings was a national key point and the march threatened the seat of Government. The march was declared illegal and the participants were therefore guilty of illegal conduct and guilty of being absent from their posts without permission. The march contravened a court order and the union was guilty of contempt of court. The marchers failed to obey the lawful orders of the police. During the march, there were instances of outright criminality. Marchers had armed themselves and took part in acts of vandalism, violence, damage to property and threatened lives.

On the day of the march, she had held an emergency meeting with the Minister of Police and obtained footage of the violent protest action. The need for severe sanctions against the action taken was clear. She consulted the legal advisers to the Ministry and to the DOD for advice on the options available to her. She was advised that the acts of lawlessness by uniformed soldiers undermined the security of the country and were clear violations of the Constitution and the Defence Act. The two options open to her were either dismissal in terms of section 59 of the Defence Act or the immediate arrest and court martial of the participants. She immediately consulted the President as Commander in Chief of the defence force and informed him of the available options. The President supported the option of immediate dismissal, with the proviso that all action taken was within the law. The decision to dismiss the soldiers involved was communicated to the command structures. Letters of dismissal were issued to 1300 participants in the illegal march. The recipients were given a deadline of Friday, 11 September 2009 to respond with reasons why they should not be dismissed. To date, 400 responses had been received. SANDU had urged its members not to respond to the letters. She offered to provide the Committee with a copy of the letter of dismissal.

In conclusion, the Minister advised that the SANDF was currently engaged with dismissal proceedings in accordance with the applicable regulations and was assessing the responses received to the letters of dismissal. The SANDF was assisted by a team of lawyers and officials from the Human Resources Department of the DOD. The deadline for responses was Friday, 11 September 2009 and the SANDF intended to work through the weekend and conclude the matter by Monday, 14 September 2009.

Discussion
The Chairperson thanked the Minister for the briefing. He opened the floor to questions from Members of the Committee and reminded them that the matter was sub judice.

Mr L Diale (ANC) requested details of the content of the letters of dismissal.

Mr D Maynier (DA) said that there was broad agreement that the incident was a disgrace. He applauded the swift action taken by the Minister and gave the assurance that the Democratic Alliance supported the steps taken by her. He said that the causes for the incident needed to be determined. He asked if there was a failure of political or military leadership that contributed to the incident. He noted that the Minister had referred to the human resource management function as the “soft underbelly of the SANDF” in her budget vote speech. He asked if there had been a failure in intelligence and if the military intelligence structures had failed to inform the Minister and the Chief of the Defence Force of the escalation of dissatisfaction in the ranks. He asked what could have been done differently that could have averted the strike action that was taken. He remarked that it was very important that the Ministry obtained sound legal advice and wanted to know if the Minister’s legal adviser was the same person as the Paul Ngobeni who was found guilty of misconduct and was dismissed from his position as Deputy Registrar of the University of Cape Town.

Mr P Groenewald (FF+) congratulated the Minister on the actions she had taken to deal with the matter. He quoted the Afrikaans saying “julle maai wat julle saai” (translated as “you reap what you sow”). He said that the concerns over the lack of discipline within the SANDF were not new and wanted to know what strategy was in place to ensure good discipline was maintained in the defence force. He noted that 2000 members of the SANDF had participated in the march but only 1300 letters of dismissal were issued to members, who were presumably identified from media footage. He asked what would happen to the remaining 700 participants and if civilians were involved in the march.

Mr L Mphahlele (PAC) asked what progress had been made to improve the conditions of service in the SANDF. He wanted to know if SANDU was recognised as the union representing members of the SANDF and how many personnel were members of unions. Although the behaviour of the soldiers concerned could not be condoned, he felt that dismissal was not the best option to take. Soldiers had skills enabling them to wreak havoc and would increase social insecurity if released onto the streets. He remarked that Parliament had to share the blame for creating an environment for anarchy by allowing members of the defence force to join unions. Labour unions in the country tended to promote violent protests and failed to recognise the difference between soldiers and workers. He suggested that a forum was created where the SANDF and representatives of the soldiers could meet to discuss conditions of service and remuneration.

In response to Members’ questions, Ms Sisulu said that the issue of the conditions of employment had to be separated from the acts of criminality and violence committed during the protest march. She conceded that the conditions of service were a mitigating factor but she had no option but to take action. She had given the matter a great deal of thought and was personally committed to attend to the complaints concerning conditions of service and to ensure that the problems were understood and resolved. She felt that the defence force differed from other public service entities and needed to have its own dispensation. She wanted to create an environment where the unique aspects of the defence force were recognised, similar to the changes initiated by her for the intelligence community. She had met with the Minister of Public Service and Administration to propose that the defence force was granted its own dispensation and separated from other public service entities in the Public Service Commission. A position paper had been presented and a task force comprising the ministries of Defence and Public Service and Administration had been set up. Draft legislation was in progress.

Ms Sisulu had no idea of the SANDU membership numbers. The union had refused to comply with the requirements for registration. The union had to disclose its membership numbers in the application for registration. She was unable to confirm how many members of the SANDF had joined unions.

In response to Mr Mphahlele’s remark that it was unwise to dismiss the soldiers, Ms Sisulu said that it was equally undesirable for the soldiers concerned to remain in the defence force. The Constitution required the SANDF to be a professional, disciplined force and the Defence Act specified the requirements for discipline. The nation must be able to trust the defence force to provide security and to act with integrity. A strict code of conduct applied to the military and the soldiers concerned were aware of the consequences of their behaviour. There were at least eight violations of the code of conduct during the march and the fact that the participants had armed themselves indicated an intention to commit violent acts. The action taken against the soldiers concerned was the consequence for the unacceptable behaviour during the march. She was supported in the action taken by the President and would not reconsider the decision to dismiss the soldiers concerned. She conceded that the decision allowing members of the defence force to join unions could have undesirable consequences but felt that the problems with conditions of employment and remuneration would be addressed if the defence force was granted its own dispensation.

Ms Sisulu was unable to reply to the question about whether or not anything could have been done to avert the protest march as she had only been in office for three months. She pointed out that the first notification from SANDU of the intention to strike was dated 1 April 2009. The second letter was dated 19 August 2009. It was clear that the intention to strike was planned some time ago. The DOD was actively involved in all the decisions taken concerning the matter. She said that the 1300 letters were issued to members of the defence force who were clearly identified from the footage taken of the protest march but she had no information concerning the other participants.

Ms Sisulu denied that there was a failure of intelligence and said that she was aware of the situation in the SANDF. However, she believed that enough was being done to resolve the complaints about the conditions of service and that recognition was given for the efforts being made. Despite her personal assurances that a resolution of the problems was a top priority, the union went ahead with the protest march. She came to realise that SANDU was determined to strike.

In response to Mr Maynier’s question, Ms Sisulu confirmed that Mr Paul Ngobeni was her legal adviser. She had requested the President to assign Mr Ngobeni to her ministry and he underwent the required security vetting by the National Intelligence Agency. She was unaware of the accusations against Mr Ngobeni but felt that the matter fell outside the purpose of the meeting and should be discussed at another time.

Mr Thabang Makwetla (Deputy Minister of Defence and Military Veterans) responded to the question concerning the failure of political leadership and said that the Portfolio Committee and the DOD had a joint responsibility for resolving the issues in the SANDF. He provided more background on the relationship between SANDU, the SANDF and the DOD. He explained that SANDU was not recognised as a union by the DOD as the union had not met the threshold requirements for recognition. SANDU had failed to provide information on the number of members and the names and addresses of the union executives. SANDU was merely registered as a union by the DOD but was excluded from participating in wage negotiations in the bargaining chamber as the union was unable to satisfy the Department that its membership was representative of the SANDF. However, the Human Resources Department of the DOD continued to engage with SANDU.

Mr Makwetla referred to the Constitutional Court ruling in 2007, granting SANDU the right to organise protest action. He pointed out that most of the court action brought against the DOD by SANDU and other protest activities arranged by the union had nothing to do with the conditions of service of members of the SANDF. He accused SANDU of creating an environment where a lack of discipline prevailed. The DOD was dealing with an undisciplined union. The breakdown in relations between the DOD and SANDU dated from 2002, when the then Minister of Defence suspended negotiations with the union. The union took the DOD to the Constitutional Court, resulting in the ruling handed down in 2007. Although the Court found in favour of SANDU, the ruling did not give SANDU carte blanche to do what they liked. Because the union failed to satisfy recognition requirements, the DOD could not treat SANDU as a partner representing the interests of SANDF employees. However, the DOD considered SANDU as a necessary partner in order to ensure that members of the SANDF were happy with their conditions of employment. SANDU was however not playing a positive role in this regard.

The Court ruling included an order for both parties to clarify the rules of engagement before resuming the relationship. A recognition agreement was reached and the Court endorsed the deed of settlement detailing the rules of engagement. Negotiations between the DOD and SANDU were resumed in April 2009. The negotiations were still not in the bargaining chamber as SANDU had not received the necessary recognition from the DOD. Although SANDU had the required number of 15000 members in 2001, the Department was aware that the numbers had subsequently declined. Based on the wage deductions for union dues, SANDU currently had only 12000 members, although the union claimed a membership of 18000. When the negotiations were resumed, SANDU demanded the right to negotiate wages and insisted on a wage increase of 15%. In terms of the rules of engagement, SANDU had no right to negotiate wages. The DOD refused the demand from SANDU and the union walked out of the negotiations. The DOD felt that, if it was appropriate to have a union in the defence force, the union had to be representative. SANDU had failed to provide proof that the union was representative of the members of the defence force.

Mr Makwetla requested the assistance of the Portfolio Committee in dealing with a union that was very problematic and to persuade SANDU to abide by the rules of engagement agreed upon. He listed the functioning of the bargaining council as another challenge. The defence force was not the same as other public service entities and a defence force-specific dispensation might achieve different results.

Ms Sisulu added that the findings of the Constitutional Court were under review and the DOD was required to effect the necessary changes to the regulations. She understood that the relationship between members of the defence force and the SANDF differed from the normal employer/employee relationships and the relationship between the DOD and a union representing members of the defence force also differed from relationships with unions in industry. She was concerned that the interests of members of the defence force were adequately represented.

Mr Tsepe Motumi (Acting Secretary of Defence) agreed with the comments made by the Minister.

Mr Makwetla said that the participants in the protest march were aware that they were involved in an illegal march. There were 74000 permanent members of the defence force and the 2000 participants in the illegal march comprised a relatively small faction. Their participation remained a matter of concern for the DOD. The Department had instituted a civic education program for all ranks and the program included the extent of the responsibility a member must take for his or her own actions. According to the United Nations, if a soldier took a manifestly illegal action, the soldier was not recused from responsibility. Members of the defence force therefore needed to exercise caution as they would be subjected to disciplinary procedure if they took illegal action. The civic education program addressed the duties and responsibilities of members of the defence force.

Mr A Mlangeni (ANC) commented that most people interviewed considered the action taken by the soldiers as bordering on mutiny. He conceded that the soldiers might have had reason for a peaceful march but the manner in which they presented their case was horrifying and was condemned by all. He congratulated the Minister on the manner in which she had handled the matter and agreed with her decision to dismiss the soldiers concerned. He said that reliance on the courts was to be avoided as the court could not solve socio-economic problems. He noted that the Minister had only been in office for three months and that the strike action had been planned before she took office. He had met with both unions in the defence force and SANDU was blamed for all the problems between the DOD and the unions. He reiterated that SANDU had failed to meet the threshold requirements and was not recognised as a representative union and wanted to know who was behind the union. He suggested that the union was investigated by Military Intelligence.

Mr Groenewald agreed that the soldiers concerned could not remain in the SANDF. He felt that their continued presence in the SANDF was a bigger threat than if the soldiers were released into society. The soldiers had training and access to weapons and ammunition and had proved that they were unsuitable to serve in the defence force. He again referred to the lack of discipline in the defence force and cited the example of the unacceptable behaviour of some soldiers on peace-keeping missions elsewhere in Africa. When he met with the Chief of the Navy, Admiral Maduma, had not been properly dressed and did not wear his insignia. He felt that discipline had to be instilled in the top ranks before it could be imposed on subordinates. He said that special discipline was necessary in the SANDF or else the members of the defence force posed a danger to national security.

Mr V Ndlovu (IFP) remarked that the issue of unionisation of the defence force had been debated before. He suggested that the Ministry reconsidered the decision as a matter of priority. He said that the DOD could not negotiate with an unrecognised, unrepresentative union.

Mr Maynier said that, in his opinion, there was no place for unions in the SANDF. He was gratified to hear that the Minister was reviewing the applicable legislation. There was deep concern over the conditions of service in the SANDF and the issue was a serious concern. He had taken account of the efforts made to establish a separate dispensation for the defence force and the problems experienced with SANDU as related by the Deputy Minister. He asked how many times the Minister had met with the unions in the defence force and wondered if such meetings would have helped to “cool things down” and averted the trashing of the Union Buildings.

Ms H Mgabadeli (ANC) urged Members of Parliament to pay more attention to what people were saying on the ground. She deplored the tendency to blame the Minister for the problems and said that Government could not be seen to be only a punitive structure.

The Chairperson had taken note of the creation of a special dispensation for the defence force. He felt that the Minister understood the issues and problems facing the SANDF and was committed to resolving the complaints about the conditions of service in the defence force. He pledged support for the Minister and felt that she provided the necessary leadership. He urged the Members of the Committee to understand the issues and to assist the Minister in her efforts.

In conclusion, Ms Sisulu agreed that discipline in the defence force was a serious concern and she was attempting to determine the causes. She said that she would be working with the Committee and accepted joint responsibility for resolving the issues. The DOD was close to concluding the negotiations on the conditions of service when SANDU walked out of the bargaining chamber. The DOD had tried to get the union to return to the bargaining table to resume negotiations. She pointed out that the SANDF was unique in that there was a clear command structure. Soldiers disobeying orders undermined the defence force. She conceded that it might have been a mistake to allow unions in the defence force and that Government might have been too magnanimous and optimistic. If the decision had been a mistake, she was determined to fix it and was open to discussion on the issue. The administration of the defence force was in the hands of the SANDF. Her role was to provide guidance and conduct oversight. She read out the letter from the Chief of the Army to the participants in the illegal march. The letter included the transgressions committed by the soldiers and notified the recipients of the decision to terminate their employment in terms of section 59(2)e of the Defence Act. The recipients were given ten days to submit the reasons why they should not be dismissed.

The Chairperson thanked the Minister for the briefing.

The meeting was adjourned.