Election of Co-Chairpersons; Deployment of SANDF members to Western Cape

Meeting report

Election of Co-Chairpersons
The Committee Secretary, Ms Pat Jayiya, welcomed everyone present and submitted to Members that election of Co-Chairpersons must be done. She informed Members they needed to elect a Chairperson for the National Assembly component as well as the National Council of Provinces.

She asked Members to make nominations.

Mr T Mmutle (ANC), seconded by Ms A Beukes (ANC), nominated Mr V Xaba (ANC) as Chairperson for the NA component.

Mr Xaba accepted the nomination as there were no further nominations.

Ms P Mmola (ANC; Mpumalanga), seconded by Mr A Gxoyiya (ANC; Northern Cape), nominated Mr N Nchabeleng (ANC; Limpopo) as Co-Chairperson of the NCOP component.

Mr Nchabeleng also accepted the nomination as there were no further nominations.

Members elected Mr C Xaba (ANC) and Mr N Nchabeleng (ANC; Limpopo) as the Co-Chairpersons of the Joint Committee from the National Assembly and NCOP components respectively

Chairperson’s Remarks
Co-Chairperson Xaba first thanked Members for the appointment. He informed Members the Committee would consider the letter from the Presidency to the Speaker of the National Assembly, Ms Thandi Modise, regarding employment of SA National Defence Force (SANDF) members in Cape Town. He proceeded to read out the letter to Members noting 1 300 members of the SANDF have been deployed for service in co-operation with the SA Police Service (SAPS). The aim is to prevent and combat crime, maintenance and preservation of law and order within the Western Cape. The employed is for the period 18 July to 16 September 2019 with the total expenditure expected to be incurred R23 391 351 (R23.4 million).
[See letter attached]

Upon receiving the letter, the Speaker referred it to the Committee for consideration. This item does not often come up and therefore has its own uniqueness. The Committee consulted with Legal Services to furnish the Committee with a legal opinion on the matter. Two legal opinions were brought to his attention, both of which speak to the matter of employment of SANDF members. A Legal Advisor was approached to brief the Committee on two legal opinions and how they originated.

Overview of provisions for the JSCD oversight of military deployment letters
Dr Wilhelm Janse van Rensburg, Committee Researcher, took Members through the overview and lay out as an introduction to the mandate and history of the Committee. He said the Committee was established in terms of Section 228(3) of the 1993 Interim Constitution. More importantly Section 228(d) outlines the functions of the Committee that “the committee shall be competent to investigate and make recommendations regarding the budget, functioning, organisation, armaments, policy, morale and state of preparedness of the National Defence Force and to perform such other functions relating to parliamentary supervision of the Force as may be prescribed by law.”

In addition, there have been subsequent discussions over the years about the role of the Committee. The Joint Rules Committee listed functions of the Joint Standing Committee on Defence.

The matter before the Committee today is discussion of the letter of deployment the Chairperson read out. The researcher briefly spoke to legislation that pertains to the letter by the President and sent to Parliament. The first important piece of legislation is the 1993 Interim Constitution which, under section 228(4), places conditions on the President in terms of deployment of the SANDF. Crucially, Section 228(5) of the Interim Constitution provides powers to Parliament. In the Interim Constitution, this gave Parliament the power to terminate such employment by the President.

The 1996 Constitution provides similar guidelines in terms of the presidential responsibility in informing Parliament than is contained in the 1993 Interim Constitution. Section 201(2) of the 1996 Constitution aligns with the presidential prerogative in terms of deployment of the military. The 1996 Constitution also provides for an oversight role by Parliament through Section 201(3). Therefore, it should be noted the 1996 Constitution makes no direct provision for Parliament to terminate deployments. However, through the addition of Schedule 6, Transitional Arrangements Clause 24, Section 224 to 228 of the Interim Constitution remains in operation. This implies that the provision for Parliament to terminate a deployment, as per Section 228(5) of the Interim Constitution, remains in effect.

The third instrument is the 1996 White Paper - this policy document stuck mostly to the prescriptions in the 1993 Interim Constitution. Fourthly, there is the 2002 Defence Act which, in Section 18, differentiates between deployments of the military in terms of the 1996 Constitution and that of the Defence Act. Under the Act, there are provisions for Parliament; however, it is important to note the letter from the President is not in terms of the Defence Act but the 1996 Constitution. In the Defence Act, there are clear powers for Parliament regarding the deployment.

In conclusion, to make the powers of the Committee clear, there is some discrepancy or difficulty in interpretation of the move from the 1993 Constitution to the 1996 Constitution and exactly what the role of Parliament is. That is caught up in the legal jargon; hence, the Legal Advisor was approached to explain the legalities of the deployment.

Briefing by Legal Advisor on the legalities of the deployment of SANDF members
Mr Siviwe Njikela, Parliamentary Legal Advisor, commenced with the legal opinions because the conclusion would be based on opinions previously provided. The opinions were provided in 2003 by Parliamentary Legal Services.

The 1993 Interim Constitution provides for employment of the defence force in co-operation with SAPS, as in the case in the Western Cape, and empowers Parliament to terminate that deployment.

The 1996 Constitution provides that the President is the only person who can authorise the deployment of the SANDF with SAPS but must inform Parliament and disclose the expected cost of that deployment.

In 2001, there was no specific provision that empowers Parliament to terminate that deployment. Therefore, the 2003 legal opinion came to a conclusion that there is a difference between the texts of the two Constitutions. However, Section 228 of the Interim Constitution, under Schedule 6, Transitional Arrangement, read with the savings provision, makes the subject consistent with the Constitution. To the extent that it gives Parliament the powers to terminate, in the 1993 Interim Constitution, the question remains whether section 228 is consistent with section 201 of the 1996 Constitution which is silent on the matter of empowering Parliament to terminate the deployment.

It is concluded that there is a big difference. In 1996, when the Constitution was crafted, Parliament was fully aware of what was provided for in the 1993 Interim Constitution. There must have been a clear rationale why that wording was not imposed on the 1996 Constitution. It therefore seems there was a clear departure by the drafters of the Constitution from what was provided in the 1993 Interim Constitution. That departure is also clear in Section 18 of the Defence Act which again provides additional employment by the Minister. In sub-five, one may see that for those deployments under section 18, Parliament may terminate.

Section 201 deals with deployments that can be done by the President, exclusively by the President, in co-operation with SAPS, international obligations and the state of national defence. If one looks at Section 18, it deals with the secondary function of the defence force relating to the preservation of life; and one sees the Minister coming in for the first time and empowered in certain circumstance but subject to the oversight of Parliament which can terminate that deployment if it thinks it was not proper.

The bottom line is that there is a difference between Section 18 deployments under the Defence Act and Section 201 of the Constitution. Under Section 18, Parliament has the power to terminate, substitute or amend. But under Section 201, Parliament does not have that power but it is being informed of the decision that has been taken on the deployment. Currently, Parliament must take note of the decision of the President regarding the deployment and report to both Houses.

Mr Xaba said that legally, the matters seem clear. It seems the 1996 Constitution takes authority regarding employment of SANDF members in the Western Cape.

Discussion
Mr S Marais (DA) wanted to know to what extent the Defence Act and Constitutions are in conflict at times because one has to look at practical examples. In the Defence Act, it is much clearer when deployments can happen but it seems it depended on who is reading and interpreting it. What is the national state of defence? Is it something that affects the whole nation or something that only affects one city? Can that be interpreted as a national state of defence which may mean the Minister was able to deploy the SANDF?

Mr D Ryder (DA; Gauteng) was comfortable with the fact that the deployment was done correctly. The Committee can now note the letters from the President but the Committee should have sat already to deal with this matter. Nonetheless he suggested the Committee should note the letter and monitor the employment or deployment of the SANDF members.

Mr S Matiase (EFF) said Members were happy that the Committee finally sat. He welcomed the deployment of the military. However, he lamented that should not be the solution. Government needs to deal with the core socio-economic conditions of our people which breed the kind of conditions that led to deployment of the military. Counter-revolution cannot be combated with military deployment under conditions of peaceful and developmental interventions. The conditions that breed the peddling of drugs and gangsterism require a political socio-economic intervention. An appeal is made to both provincial and national government to look into that space, failing to do that nothing would have changed after the three months of the deployment. The call is for government to rather address the core fundamental challenges that breed these problems.

Mr A Gxoyiya (ANC; Northern Cape) welcomed the inputs made and noted the letter from the President. Members needed to take note and agree in the House in terms of the way forward and reporting to the two Houses. As to whether it is a state of national defence or not, that is a debate for another day. He suggested Members should accept that the President excised his constitutional right and the Committee should also exercise its oversight role by ensuring it monitors the deployment.

Mr Mmutle seconded the suggestion that Members ought to note the correspondence from the President regarding employment of SANDF. Mr Matiase raised an important point on addressing the core socio-economic conditions of our people and the root cause of these challenges. One of the gangsters was interviewed and said during the interview that people keep calling them drug dealers but they are not drug dealers, rather small business owners. They may suffer a bit with the presence of the army; they will stop their business for the three months but the problem will perpetuate after the army has left. Government must deal with the challenges from the roots.

Co-Chairperson Xaba welcomed inputs from Members and noted the Committee duly notes the letter from the President and welcomed deployment of SANDF members in co-operation with SAPS in the Western Cape, Cape Flats.

The meeting was adjourned.