Military Ombudsman Bill [B9-2011]: Response by the Department of Defence to the submissions made during the public hearings

Meeting report

Briefing by the Department of Defence (DOD)
Mr Siviwe Njikela, Director: Legal Advice, DOD presented the Department’s response to the submissions received during the public hearings on the Military Ombudsman Bill on 17 August 2011 (see attached document).

The Department noted that the Bill was generally welcomed and supported.  Seven submissions were complaints rather than comment on the Bill.  The complaints would be referred to the appropriate Department for attention but would not be addressed in the response.  Three submissions included comments and suggestions pertinent to the Bill, i.e. the submissions made by the University of South Africa (UNISA) College of Law, the South African Security Forces Union (SASFU) and Ms Lebogang Monyatsi.

Response to the submission of Prof M Montesh and Adv BM Mmusinyane, UNISA
The Department regarded the suggestion that the definition of ‘complainant’ be expanded to include a person acting on behalf of a member of the South African Defence Force (SANDF) to be worthy of consideration.

The Department was amenable to the suggestion that the term of office of the Ombudsman be increased from five years to seven years, subject to the approval of the Committee.  The proposal that the term of office was non-renewable was made in the interest of establishing an independent office.  A non-renewable term of office was one of the tests of the independence of an entity.

UNISA had suggested that the qualifications of the Ombudsman included a legal qualification, along the lines of the Public Protector and the Financial Ombud.  The Department was of the opinion that the SANDF was a unique organisation and the Military Ombudsman had to be well-versed in military matters.  The Ombudsman could appoint personnel with legal qualifications.  The inclusion of a specific legal qualification for the Ombudsman would be too restrictive.  In any event, the current provisions did not preclude the Ombudsman from having legal qualifications.

The Department supported the suggestion that the Military Ombudsman had the power to initiate investigations, which was in line with the discretionary investigations allowed for similar offices.

UNISA had suggested that the procedures applicable to an investigation into or during an operational deployment were prescribed.  The Department disagreed and felt that such procedures should be regulated by service level agreements or similar arrangements.  Organisational protocols tended to change relatively frequently and were ill-suited for legislative provisions.

UNISA had suggested that the Military Ombudsman reported to the President and not to the Minister.  The Ombudsman should submit its reports directly to the Public Protector and not through the Minister.  The Department responded that the Minister was excluded from the chain of command for the purpose of investigating complaints from members of the Defence Force.  The Military Ombudsman would assist the Minister and strengthen her hand in taking remedial action when necessary.  The intervention of the Ombudsman was the only opportunity the Minister had to become involved in grievances.  The Ombudsman was not in a position to investigate the Office of the Minister.

UNISA had suggested that the Military Ombudsman and the Deputy Military Ombudsman were subjected to security clearance.  The Department agreed with the suggestion.

Response to the submission of Mr B Mvovo, SASFU
The Union had suggested that labour unions and associations were allowed to lodge grievances or complaints on behalf of their members for investigation by the Ombudsman.  The Department felt that such a provision would allow the Office of the Military Ombudsman to be flooded with labour-related complaints.  Care had to be taken to ensure that organisations that did not have the requisite credentials to participate in the relevant structures of the DOD were allowed to avoid the formal grievance framework by approaching the Ombudsman with labour-related issues.

SASFU had objected to the name “Ombudsman” on the basis that it was not gender-sensitive.  However, “ombudsman” was a Swedish word that meant “an official appointed by government to investigate individuals’ complaints against public authorities” and was commonly used and understood.  The Department was amenable to the use of the alternative “Ombud”, as applied to the Financial Ombud and the Community Schemes Ombud.

The SASFU submission included further comment on the military justice system, which was not directly relevant to this Bill.

Response to the submission of Ms L Monyatsi
Ms Monyatsi had commented on the jurisdiction of the Military Ombudsman in dealing with complaints concerning members of the SANDF on deployment in other countries.  The DOD responded that the exercising of the powers of the Ombudsman applied to the SANDF and was not limited by territory.

Ms Monyatsi suggested that the definition of ‘complaint’ was too broad and could result in complaints of a domestic nature.  The Department agreed with the suggestion and proposed to insert the word ‘official’ before the phrase ‘conduct of a member…’.

Ms Monyatsi had commented on the limitation that prevented the Military Ombudsman from investigating a matter that had been referred to another dispute resolution mechanism.  However, the Department felt that the provision protected the internal procedures for the resolution of complaints and allowed the command of the SANDF an opportunity to resolve grievances in the first instance.

Mr Njikela mentioned that the grievance procedures of the SANDF that came into effect on 1 July 2010 included the timeframes within which complaints had to be dealt with and made allowance for complaints to be escalated to the next level if the timeframes were not adhered to.  The current timeframes might not be practical in cases of external deployment and would have to be extended to cover periods of service abroad.

Discussion
Mr D Maynier (DA) was of the opinion that the Bill and the Department’s proposals were a major departure from the international experience of Military Ombudsmen.  The Department maintained in its response to the concerns that were raised concerning the independence of the Ombudsman that the Military Ombudsman was intended to support the Minister.  He felt that the Ombudsman should strengthen Parliament, which was responsible for oversight over the Ministry of Defence.  He considered the Ministry to be a part of the problem as Members of Parliament had referred many complaints to the Minister over the preceding two and a half years, without success.  He had personally submitted approximately 50 complaints during this period, had met with the Minister’s advisers and the Secretary for Defence and was promised a progress report.  To date, no report had been received and the complaints remained unresolved.  The issue had been referred to the Chairperson of the Joint Standing Committee on Defence and Military Veterans.  He suggested that the positioning of the Military Ombudsman was reconsidered.  The submissions received during the public hearings on the Bill had made a convincing argument that the Military Ombudsman was not be considered to be independent in at least three respects.  He wanted to know if the position of the Military Ombudsman would satisfy the legal test of independence 

Ms H Mgabadeli (ANC) asked the Department to clarify the roles played by the Minister and the existing dispute resolution structures within the SANDF, for example the National Defence Force Service Commission (NDFSC).

Mr Njikela understood that the Committee had requested comment from the Parliamentary Law Adviser on the issue of the independence of the Military Ombudsman.  The matter had been discussed with the Office of the State Law Adviser and their input was awaited.  It was also a matter of policy and changes to the Bill would impact on the direction the Department planned to take.

Mr Mongameli Kweta, Senior State Law Adviser, Office of the State Law Adviser (SLA) had been requested to offer an opinion on whether or not the independence of the Military Ombudsman had been established in the proposed legislation.  The President appointed the Military Ombudsman and the Deputy Military ombudsman for a non-renewable term of office, decided on the remuneration of the Ombudsman and the Deputy and was the only authority empowered to remove the appointee from office.

The Constitutional Court ruling in the Glenister case provided guidance on how the independence of an entity was determined.  The Court had considered the appointment and removal from office of officials, their security of tenure and remuneration.  The entity should be shielded from political interference and be able to operate independently.  The Court had expressed grave concern over the role played by the Ministerial Committee over the Directorate of Priority Crime Investigations (the Hawks).

Clause 5 (3) of the Military Ombudsman Bill made provision for a non-renewable, five year term of office for the Military Ombudsman.  The Ombudsman was appointed by the President, not the Minister.  The President decided on the remuneration of the Ombudsman, which would be equivalent to that of a judge.  The non-renewable and limited term of office precluded any interference in renewing the term of service of the incumbent.

The Minister of Defence had political accountability for the Military Ombudsman.  The Bill made no provision for the Minister to have the power to interfere in the operations of the Ombudsman.  The Office of the Ombudsman must not be confused with other Chapter 9 institutions, for example the Public Protector.  The Military Ombudsman was a statutory entity, established by law rather than by the Constitution.  There were several examples of Ombudsmen that were responsible for receiving and investigating complaints.  The reports submitted by the Military Ombudsman were linked to the Ministerial responsibility.  The Ombudsman decided on the content of the reports, which were submitted to the Minister.  The Bill contained no provisions that allowed any person to interference with the Military Ombudsman.

The Chairperson requested clarity on the difference between a statutory body and a body established in terms of the Constitution.

Mr Maynier asked if the Military Ombudsman would be considered to be independent if he was appointed by the President and reported to the Minister.

Mr A Maziya (ANC) asked what the legal position was on the establishment of independence.  He wanted to know what the international experience was on this issue.

Ms Mgabadeli asked whose interest would be served by the Military Ombudsman.

Mr Njikela referred to clause 11 (3) of the Bill.  The Military Ombudsman investigated complaints and submitted reports to the Minister.  The Minister submitted the reports to the Public Protector and to Parliament.  Parliament held the Minister accountable for the Military Ombudsman and could engage with the Minister on any failure to implement the recommendations made by the Ombudsman.  There was therefore a clear line of accountability.  Different legal systems applied in the other countries that had Military Ombudsmen but were not necessarily compatible with the South African legal system.  The South African Constitution made provision for the establishment of Chapter 9 institutions but the Office of the Military Ombudsman was established by an Act of Parliament.  The Constitution gave Parliament the power to pass legislation.

Mr Njikela explained that legal tests of independence applied different levels of independence for institutions such as Courts of law and the Public Protector.  The Glenister matter concerned the independence of the Directorate of Priority Crime Investigations, which was responsible for investigating allegations of corruption.  Such allegations could involve the Executive and the Directorate could therefore not report to the Executive as well.  The existing grievance procedures in the SANDF made provision for grievances to be escalated to the Grievance Board.  The Minister was not involved in the grievance process but was ultimately held responsible for the SANDF.  Different roles were played by the Public Protector, the Public Service Commission and the NDFSC in dealing with complaints.

Ms N Mabedla (ANC) noted that the Minister was not part of the grievance chain but she did receive reports from the entities involved in the handling of disputes.

Mr Njikela replied that the grievance procedure ended with the Grievance Board.  The Minister and the Secretary for Defence were excluded from the grievance process.

Mr Maynier awaited the opinion of the State Law Adviser on whether or not the Bill made adequate provision to ensure the independence of the Military Ombudsman.  He disputed the argument that international trends were not relevant to South Africa and referred to the submission made by UNISA that found Canada, Germany and Norway to be good examples.  He asked if the ruling in the case of the State vs Van Rooyen had been considered.

Mr Kweta found that the DOD had dealt adequately with the issue of independence.  In his opinion, the Bill would pass muster in the Constitutional Court.  He pointed out that the Military ombudsman did not require complete insulation from political players, unlike the Directorate of Priority Crime Investigations.  He undertook to look into the Van Rooyen case.

Rear-Admiral Alan Green, Director: Military Strategy, SANDF explained that the Minister supported the President, who was also the Commander-in-Chief of the SANDF  The Minister was not included in the chain of command of the SANDF.

Ms Mgabadeli asked why it was necessary to establish a Military Ombudsman.  She found the reporting requirements difficult to understand.

Mr Maynier repeated his earlier question concerning the Canadian, German and Norwegian Ombudsmen.  He said that the Department had not dealt with the issue concerning the failure of the grievance mechanism to effectively deal with complaints.  The Ministry was part of the problem and made no effort to respond to complaints that were submitted by Members of Parliament.  He would refer the unresolved complaints that were submitted to the Ministry to the Ombudsman at the earliest opportunity.

Mr Maziya remarked that the Department was required to brief the Committee on its responses to the public hearings.  The Department should not be expected to respond to other issues.

The Chairperson advised that the Committee would commence deliberations on the Bill on 31 August 2011.  The final adoption of the Bill was scheduled for 7 September 2011.

Mr E Mlambo (ANC) referred to the UNISA submission.  He asked if the best practice had been benchmarked against international standards.  He asked the Department to explain what best practice would be suitable for South Africa.

Mr Njikela said that there were approximately 70,000 members of the SANDF.  The fact that Mr Maynier alone had reported 50 complaints that remained unresolved was an indication that there was something wrong with the grievance mechanism.  The Military Ombudsman would serve to ‘close the loop’ as he would be the last resort if a grievance had not be resolved by the command structure of the Defence Force.

Mr Maziya asked if the Military Ombudsman would become the platform for the handling of complaints.  He asked what the role was of the NDFSC.

Mr Njikela replied that the NDFSC dealt with conditions of service of members of the SANDF, as defined in the NDFSC Act.  The Commission made recommendations to the Minister but was not involved in the handling of complaints and grievances.  The Department had found that there were two kinds of systems in other countries.  In certain countries there was a single Ombud, who dealt with all complaints involving public entities.  South Africa had a Public Protector, who served a similar purpose.  The military environment was unique and complaints that were currently referred to the Public Protector required specialist knowledge being available.  The second system involved multiple Ombudsmen, for example a Military Ombudsman would only deal with military matters.  The Department had studied the establishment and operation of Military ombudsmen in other countries and had drawn on international experience.  The South African Ombudsman would not be a copy of another country’s.

The Chairperson asked Members to consider the role of the Minister, the responsibility for oversight over the Department and the Ombudsman and the role of Parliament in preparation for the deliberations on the Bill.

Mr Maynier asked why the Department had decided to establish the Military Ombudsman according to an executive model.  He wanted to know the reasons why the Ombudsman should not report to Parliament.

Mr Njikela declined to answer Mr Maynier’s questions.

The Chairperson suggested that Members gave careful consideration to clause 11 of the Bill and the possible implications of the provisions.

The meeting was adjourned.