DMV Appeals Board on its mandate, challenges and achievements; with Deputy Minister

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Defence and Military Veterans

24 June 2020
Chairperson: Mr C Xuma (ANC)
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Meeting Summary

Video: Portfolio Committee on Defence and Military Veterans, 24 June 2020

The Appeals Board of the Department of Military Veterans (DMV) briefed the Portfolio Committee on its mandate, challenges and achievements. The Committee was told that financial limitations had had an effect not only on the board's function, but also on its ability to notify military veterans of its existence, and about the appeal option open to them if they were not happy with the DMV 's decisions.

The board emphasised its operational challenges and the Department's non-cooperation, which often led the board to being immersed in default judgments. It bemoaned the contemptuous manner in which military veterans who had served the country meritoriously and brought South Africa freedom, were treated. Even houses constructed for military veterans remained unoccupied and were then overrun by hoodlums, and by the time the veterans entered those houses, they had to fight to remain there.

The Committee instructed the Department to ensure that sufficient funding was made available to allow the Appeals Board to discharge its legal and statutory responsibilities. The DMV was also asked to look into the board’s capacity complaints, and to appoint a dedicated official to its staff. The Department was tasked with integrating the assistance provided to its agencies into its performance targets.

The Committee directed that the budget for the Appeals Board should be ring fenced, although its responsibility should remain with the DMV's accounting officer.

It was of the view of the Committee that the regulations of the Military Veterans Act No. 18 of 2011, which had not yet been promulgated, would be able to provide guidance to close some of the entity's operational loopholes. This included budget problems, its terms of reference and the laws that governed the board. The promulgation of the regulations was something which urgently needed to be discussed.

Meeting report

The Chairperson welcomed everyone to the virtual meeting, and said the meeting today was the first of its kind with the Appeals Board. The board was created in terms of the Military Veterans Act as an appeal body to deal with matters when an applicant, who was maybe an ex-combatant or ex-soldier from the non-statutory forces, was aggrieved by decisions of the Department of Military Veterans (DMV). They could appeal then appeal to the Appeals Board.

This body had never appeared before Parliament since it had been appointed in June 2015.The board’s term of office would expire soon, but no report had been received nor was the board mentioned in the Department’s Annual Reports, so Parliament was not aware of what they had been busy with since inception. The Committee was also not sure whether the ex-combatants and soldiers were even aware of this board’s existence. Their importance was unquestionable, because they were the body where ex-combatants and ex-soldiers could go to for recourse when aggrieved before going for review should they still be unhappy with the board’s decision. Further down the line, they could still go to the courts as the last arbiter, but to set this chain going, the Appeals Board was their first port of call, as they performed a quasi-judicial function.

DMV Appeals Board

Ms Nomsa Dlamini, member of the Appeals Board, said that the Appeals Board (AB) was tasked with considering any appeal lodged with it by a military veteran against any decision taken by an official in terms of the Military Veterans Act No. 18 of 2011 which adversely affected the rights of that military veteran. It also had to consider any question of law relating to military veterans referred to it by the Minister or the Director-General, and to advise the Minister or Director-General regarding any legal matter relating to military veterans which the Minister or the Director-General referred to it.

The AB derived its powers from Section 33 of the Constitution, read together with the Promotion of Administrative Justice Act (PAJA). It had extensively utilized the provisions of PAJA to perform its functions of promoting efficient administration, in terms of Section 20 of the Act. Section 20(1) (a) of the Act enjoined it to consider any appeal lodged with it by a military veteran against any decision taken by an official in terms of the Act, which adversely affected the rights of that military veteran.

The Board’s decision was by a majority of its members, which decision may serve to confirm, set aside, vary or substitute the relevant or adverse decision taken by an official of the Department against a military veteran, or provide the required legal advice, in terms of Section 20(2)(a)(b) and (c) of the Act.

 

There were 11 benefits statutorily regulated from which military veterans were entitled to benefit. The database registration was regulated in terms of Section 1(a)(b) and (c) of the Act.

 

Appeals received from 2016 to 2020

 

Since its inception in 2015, the AB had had the opportunity of intervening on behalf of military veterans in cases where the Department had erred in its judgment in dealing with their cases. There had been enormous difficulties for the AB in its numerous attempts to obtain funding from the Department for road shows in the provinces, to publicise its work among military veterans countrywide. Despite this, as at the compilation of this report, it had received 463 military veterans’ appeals. Of these, 160 appeals had been finalised, while 303 were pending.

 

Weaknesses of Regulation 14(2) on housing

There were notable weaknesses in the regulation where it dealt with housing provision for military veterans. The regulation states: “Where a Military Veteran owns a house and the total sum of the balance of the mortgage loan registered in his or her name at a registered financial institution is equal to or less than the housing benefit to which he or she would, but for sub regulation (1)(i), have been entitled in terms these regulations, the Department may, despite his or her disqualification by that sub regulation from being entitled to a housing benefit, settle the outstanding balance of the mortgage loan with that financial institution, whereupon the military veteran forfeits his or her housing benefit which he or she would, but for that sub regulation, otherwise have been entitled to in terms of these regulations, had it not been for such settlement”.

 

Challenges on the working relationship with the DMV

Upon its appointment, the AB had held an introductory meeting with former Director General (DG), Mr Tsepe Motumi, who played a role in facilitating the establishment of the administration of the AB. With the exit of Mr Motumi, the AB had had to deal with various acting DGs. The relationship with these officials had varied. Of all the acting DGs that the AB had to work with, the relationship with Lt Gen (Ret) Derrick Mgwebi had been satisfactory.

It was most unfortunate that executive officials who were supposed to support the acting DG had little interest in, or understanding of, the relationship between the AB and the DMV. This rendered cooperation and coordination extremely difficult. Their attitude was not different from that they displayed towards military veterans, who were often treated like hapless supplicants. Some of these officials confused the AB, or mistook the AB members to be staff members of the DMV, who were subordinates and reported to them. Their poor and pitiful understanding of the purpose of the establishment of the AB -- as an administrative agency in terms of the PAJA -- had hobbled the functioning of the AB, which in turn had severely compromised the interests of military veterans.

 

Way Forward

 

Ms Dlamini listed some initiatives to assist the AB going forward:

 

  • A workshop between the Department and the Ministerial structures;
  • Independence and accountability for the AB budget, through a transfer payment from the Department;
  • A bi-monthly meeting between the AB and the Acting DG;
  • A quarterly meeting with the Deputy Minister.

 

Conclusion

 

On balance, a great opportunity to serve the most distressed and neglected section of military veterans had been missed. There had unfortunately been very little support for the Appeals Board which, as indicated elsewhere, had been treated like an unwanted partner. The greatest casualty in all of this had been the luckless military veterans. These were people who had sacrificed their lives to fight for the freedom South Africans had attained in 1994. They included officials who were employed in the Department of Military Veterans.

The past four years had not been easy for the Appeals Board. It could have achieved more and must still strive to do so. Opportunities had to be created and utilized. The leadership of the Department of Military Veterans had a critical role in facilitating this desperately needed success, especially because the vast majority of appellants were individuals who had given up almost everything to fight for the liberation of South Africa. They did not deserve the wretched circumstances in which they find themselves, particularly when citizens through their elected government had allocated adequate resources to ensure the alleviation of most of their travails. Nations treat their war veterans with pride and honour. South Africa’s had received a lot less. Those who could not fend for themselves lived in penury.

 

Discussion

Mr M Shelembe (DA) said today’s issues were sensitive and important, because this board had been established to assist indigent people who had served the country.  In terms of Sec 21, members of the Appeals Board were appointed by the Minister of Defence and Military Veterans in consultation with the Association. The questions that would be asked might be difficult for the Deputy Minister (DM), because if one spoke of the Association it was the South African National Military Veterans Association (SANMVA). On 4 September 2018, the Minister of Defence had approved a request from the SA third corps of military veterans, which could be regarded as an association. If one looked to the Act, it referred to one association, and he asked if the situation could be clarified. If the letter approved by the Minister could be taken into account, would one then be speaking of two associations being recognised, contrary to the Act, which states one?  It seemed that a new vote had been established by the Department, for which the DM was responsible. If the Act states that members of the appeals board were appointed by the Minister, what happened in this case, when the DM was now responsible for the military veterans’ Department? Who would be responsible to appoint the members to serve on that board? Was it still going to be the Minister, or the DM? The letter appointing members to serve on the board was dated 15 June 2020, and today was 24 June. If the new board had not been appointed by the Minister till now, what arrangements were in place to ensure that there was compliance with the Military Veterans Act, as required?

In Sec 24(4), it is stated that a member of a board may hold office for a period not exceeding five years. Were members serving on the board presently being considered for re-appointment? One thing worrying was the Appeals Board asking to be funded, because it then meant they had been given a mandate without the necessary funds to operate. Why was it that since 2015, the board had not been provided with adequate funds to carry out its mandate? How could these indigent people get their entitlements? What was the DM going to do? It was also embarrassing that the board had not been provided with the tools of trade. The office did not have what they needed to function, and even their road shows could not take place because of a lack of funds. How did the DM plan to assist?

Ms A Beukes (ANC) asked about the current cases being dealt with by the board. Were they mostly from certain provinces, or did they include all provinces? For instance, among the 69 cases on housing, were there any from the Northern Cape? What were the reasons for not finalising the cases? One of the AB’s recommendations was to hold quarterly meetings -- what was the current situation? Were there delegated officials from the Department that work with the board? What were lines of communication? Were there monitoring measures to aid the functioning of the board? Were there timelines for reporting? The Committee appreciated the initiatives and progressive approach of the board -- did they have plans to reach out to the wider military veterans’ community through the use vernacular radio stations, for instance?  Had the board ever submitted a plan to the Department for engagements and road shows in the provinces? If they did, what had been the Department’s response? What plans and processes would they recommend to speed up capturing data?

Ms M Modise (ANC) asked the DM to focus on the budget of the Appeals Board. The challenges faced by the board were uncalled for, because how could the board function when they had such budget-related problems? What other mechanisms did the board have in place to reach out to the veterans and also ensure that their decisions were communicated to them in various locations across South Africa? The AB had also mentioned that they provide legal advice to the veterans as well -- the Act also specifies this -- but what capacity did the board have to provide this service?

Appeal Board’s response

Mr Mavuso Msimang, Chairperson: Military Veterans Appeals Board, said it was actually true that the board was functioning on an unfunded mandate. The board had been asked to submit a budget to the Department, which was done, but it had been ignored and as a result the board was operating on a shoe string funding. There was an attitude that was difficult to understand. When the board wanted to go out to visit the military veterans in they lived in the provinces, one of the senior people in the Department had told the AB to ensure they were advised when the Department itself would be going to those areas, because they did not have any money. That would answer the question asked by a Member today -- whether the board took time to visit the veterans in the various provinces in which they live. Visits undertaken by the board to the various provinces were done only after a great deal struggle. 

Ms Dlamini agreed with the chairperson, and confirmed that it was always after a long struggle that board members were able to visit the veterans in the provinces. This was limited not only to the road shows, but it was the same even to attend hearings and pre-hearings. If the veterans were residing in the Eastern Cape, for instance, they had always decided that it would make no sense for them to come to AB when there were just a handful of board members -- it would make better sense for the board to go to them. In that case, they normally used the opportunity to conduct the hearings and pre-hearings at the same time. Such situations were also used to disseminate information to other veterans about visiting them while they were in that province to lodge their appeals. 

On the legal capacity question, the board had one practising attorney, an advocate and one board member from the legal fraternity in their office. The board was well capacitated on the legal front.

She said the board used WhatsApp to reach its target group, but more often did so through word of mouth. On the initiative of going through radio, one had to be cognisant of the fact that the board had no money to pay for any adverts or public service announcements, and could only ask the radio station to do the board a favour. Regarding quarterly meetings with the DM, there was now an agreement with him to have such meetings. 

Lt Gen Mgwebi, Acting Director-General: Department of Defence and Military Veterans, referred to the level of support from the Department to the AB in terms with its secretariat, and said there was one individual in the position of Assistant Director, and two secretariat officials provided to them. For tools of trade, the Department had provided cell phones and iPads. It had been acknowledged that there might be issues with regard to air time and data, and this had to be looked at by the Department.

With regard to dedicated officials, after an engagement with the AB chairperson, the Department had decided to make its Director of Legal Services accessible to the board in order to assist with all its cases. This would ensure that such cases were processed and redirected within the Department. For the pre-hearings, there was an assistant director coming from the legal department who attend all pre-hearings to have a sense of what was happening, to aid in policy direction. It was true that the level of attendance of senior officials at the hearings was below par, but the instruction in place was that the Department had to streamline, so that senior officials had to attend the hearings in future.

On the question of funding of the board, it was unfortunate that the structuring and funding had been done within the Department, but it had begun to rectify things. For instance, in this financial year, the sum of R600 000 had been allocated to the AB by the Department. In the past, the line of communication between the board and the Department had been challenging, but this was being addressed.

In regard to the data base, there were cases when the Department demanded certain documents for veterans to process their requests, but instead of doing so, they run to the appeals board claiming that they had provided all the documents requested. A case in point was one in which someone wanted to be on the data base, but did not have the papers signed by the relevant association. This kind of person wanted to abuse the system, and was impossible to help. The same applied to housing complaints. In this case, some veterans wanted their houses to be renovated by the Department, but this was not covered under present guidelines. Neither was emergency housing. 

Deputy Minister’s comments

Mr Thabang Makwetla, Deputy Minister of Defence and Military Veterans, responded on who would appoint the board, now that oversight of the appeals board had been moved to the office of DM. He said this matter had also been raised yesterday by the accounting officer. There were issues with regard to this delegation, some of which had to be refined by looking at the business value chain. Even though the DM’s office was responsible for the Appeals Board, the Department still had to make decisions on the board’s recommendations. The very establishment of the board still had to be decided by the office of the DM and the Minister, because the Minister may decide to either retain the appointment of a new board to replace the existing one, or no, because the ultimate responsibility still lay with the Minister to either ratify, amend or certify. 

One had to be conscious not to say that the DM’s office was responsible for the Appeals Board, because what the Minister had done was only to delegate that responsibility to DM’s office. Another point worth noting was the assistance and resources provided to the appeals board. As indicated by Ms Dlamini, the first meeting between the board and Department took place last week because this delegation of responsibility was handed to the DM’s office only last April.

One of the issues highlighted was that resources at the disposal of the board were limiting the board’s operations. It was clear from communications received from the Minister, however, that this was a function of low resourcing of the Department as whole. The Committee should also take note that this Department, ten years later, was still in the process of being established. It still had not got the budget to fulfil its mandate, and it was in this context that its support for the Appeals Board had been very modest. The Minister’s thinking towards supporting the board’s secretariat was that one staff member would be able to do the duties required at both the appeals board secretariat and the advisory council.

As Members were aware, this year’s budget for the Department was R683m, yet Treasury had just directed that the same budget had to be cut by 20%. It was now a near impossible assignment that the Department had to deliver on in relation to available resources.

Regarding the challenges facing military veterans to gain access the appeals board, it should not be the board’s responsibility to worry about veterans who had appealed its decisions, to appear before them. The AB believed that the Department should take responsibility where necessary to arrange the logistics for these appellants to appear before the board. The issue now was that not every appellant would be successful in their appeals against the Department’s decision, so it did appear reasonable to say the Department should take charge to assist them to appear before the board, although it had to be done on the basis of refunding their expenses incurred to appear before the appeals board. If the Department had to fund everyone who wanted to appeal the decisions of the Department, then it might be a difficult responsibility to fulfil. 

Chairperson’s comments

The Chairperson said that the Committee had been promised amendments to the Act, which had not been forthcoming. The regulations, as well the Act which gave practical effect to the provisions to the Act, had not been promulgated so in essence the Appeals Board was operating in a vacuum. It had therefore had to come up with rules and procedures, and also to produce their own terms of reference. Those were not public documents, as they had to produce their own rules of procedure as they did not yet have regulations. These issues had to be urgently attended to by the Minister and DM, and the earlier the better, as the board had to attend to those grey areas existing at the moment.

The budget of the entity also had to be ring fenced and must be agreed upon upfront. Accountability of spending would not change from that of being the responsibility of the accounting officer, and he must be informed periodically of the level of expenditure agreed upon, either monthly or quarterly. When the Department came again to present their amended budget in the near future, it must be indicated where they had slotted in the ring fenced budget of the Appeals Board.  

The Acting Director General should know that the provision of the tools of trade for the Appeals Board should not be debated, as they were a requirement. If one assigns a responsibility to a person, it is only fair that that person is given the necessary support, part of it which was the provision of the tools of trade. The DM should facilitate a discussion between the board and the Acting DG to resolve this matter, as the non-availability of the tools of trade was affecting the board’s ability to function effectively.

The capacity of the board to perform should be considered by the Department, and it should be adequate as well. It should also enable them to perform their statutory responsibilities, even it meant designating one or two persons that would be accountable to the board, who would be part of the appeals board secretariat. If that was done, then they would have at least one person dedicated to the board that they could call on at any time. The problem of not having dedicated staff was that they might not get that person to do their work when they needed him or her. This too should be attended to urgently.

Lastly, the Acting DG should know that the law required the DG to revert back to applicants in writing on the outcome of their applications within 30 days. This was not happening in the majority of cases. This was now a notice to the Acting DG, that this Committee demands this should happen, and it would monitor compliance with the spirit of this law going forward. Applicants should also be advised of the reasons for reaching a certain conclusion, and that they had the right to appeal such a decision. The DM should by now know who needed to be appointed next, and should not wait till the last moment. These were matters that needed to be attended to without further delay.

Appeals Board Chairperson’s closing remarks

Mr Msimang thanked the Chairperson for the closing comments and said for the sake of the record, it was important for the Committee to know that the Appeals Board had not received the kinds of tools of trade indicated by the Acting DG. He may have instructed someone to do that, but it had never been followed through.

The DM had made mention of refunding the expenditure incurred by applicants, but they were dealing with people who had absolutely no money. A decision was needed that could deal with how to go about this, knowing that if money was given upfront for them to come to lodge their claims, the majority of might be fraudulent or even unsuccessful. If perhaps nine out of ten appeals were successful, then that might be a risk worth taking.

He thanked the Committee for the meeting, even though it had come five years too late. Whoever came as a new board would have a set of notes to work from. It was disgraceful the way the country talked about, treated and the contempt they showed for its military veterans. The way many of their issues were handled by those who were supposed to assist them was contemptible. Some of these issues spill out to the media, and the loser here was government that should have provided the funds to institutions, and made available the capacity to deal with their issues. These sentiments needed to be conveyed to the Committee Members, as it was not nice for people to condemn South Africa as the one that paid the least attention to those that had contributed to its liberation.

Committee comments

The Committee Chairperson thanked the Appeals Board chairperson for his comments, and reiterated that it remained the responsibility of the Department to ensure that appellants were able to appear before the board. The Committee would write to the Acting DG to come back and furnish it with a progress report at a future date.

Mr Shelembe said his observation was that the relationship between the Appeals Board and the Department was not amicable. In May 2017, Mr Shahid Esau, a former Member of Parliament, had indicated that the functioning of the appeals board was not up to scratch, and had wondered if it was adequately capacitated to deal with any appeal at that time. No report had been submitted to the Minister at that time, and at the very same meeting the Department had observed that the Appeals Board was functioning and capacitated, but looking back at the transcripts from that meeting, the Board had disagreed with that assertion. The DM should therefore state now how he was going to strengthen his relationship with the Appeals Board. One was left now feeling unhappy with the current relationship that existed between the two entities. Concrete steps had be taken to cement that relationship so that the military veterans would not continue to suffer.

Mr W Mafanya (EFF) said the DM had referred to the possibility of a reduction of their budget by 20%, and this would severely hamper the Department’s activities because of its low resourcing over the last ten years. Should that happen, it would also affect the very discussion the Committee was having today. With the impending expiry of the current term of the Appeals Board, by now it should be known what plans the DM had to appoint a new board, so that the next meeting would see the introduction of new board members.

Ms Dlamini was happy the Committee was alerting the Department about their turnaround times in responding to appellants, because it was crucial for them. At the same time, attention was being drawn to the DM to take steps to fix their relationship with the Department of Housing. This was because houses built for military veterans remained unoccupied for a long time and then invaded by hoodlums and by the time veterans occupied those houses, it had been a big struggle. Invaders always took advantage of houses that had been completed but left unoccupied for a long time. This was at a time the military veterans were sleeping under the bridges or squatting somewhere.

Deputy Minister’s closing remarks

Deputy Minister Makwetla, in his closing remarks, appreciated the comments and advice from the Committee on how this board could be strengthened. The documents produced by the board were very impressive, indicating the professionalism with which the board members had gone about doing their work for the last five years. As a newly established board, they had put forth a very strong foundation, and the next board would build on this.

The Department would revert back to the Committee on the various areas of concern, and would provide quarterly reports. The challenges identified today would be worked on, and reported back to the Committee at the next Departmental appearance. It had noted with respect the comments made by the Appeals Board chairperson about the present state of affairs in respect to the tools of trade made available to the board, and the Department would mend its ways. It promised to improve its performance.

The Chairperson thanked the board for a meritorious performance over the past five years, and acknowledged that they were a respectable group of members whose legacy report spoke volumes of their competence. As a founding board, they had nowhere to draw lessons from, yet they had gone about the business of discharging their mandate with proficiency. He also thanked the DM and Acting DG their commitment and pledges made today.

Adoption of minutes of previous meetings

The minutes of 6, 15, 22 and 27 May, and 3, 10 and 17 June, were adopted without amendments.

The meeting was adjourned.

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