Defence Committee duplication; Military Veterans Act interpretation; DMV Skills Audit progress

Meeting report

Legal Advice on Powers and Functions of Joint Standing Committee on Defence
Adv Siviwe Njikela, Senior Legal Advisor, Constitutional and Legal Services Office (CLSO), said the Office had received a request from the Committee to advise on the seemingly duplicated powers and functions of the oversight function over the Department of Defence as provided in the Interim Constitution, the Constitution, Joint Rules of Parliament, National Assembly Rules and National Council of Provinces Rules. The regulatory framework appears to duplicate the powers and functions of the Portfolio Committee on Defence, Select Committee on Defence, and the Joint Standing Committee on Defence (JSCD).

The request for advice arose when the JSCD was examining its mandate and realised that section 228 of the Interim Constitution, 1993, read with schedule 6 of the Constitution, 1996, which sets out its powers and functions is duplicated by having three committees as set out in the House Rules. The Committee is of the view that the duplication of effort by all committees concerned is undesirable.

Adv Njikela phrased the legal question: What is the legal effect of the apparent duplicate powers and functions of the Portfolio Committee, Select Committee and the JSCD?

He proceeded to look at the legal framework:

Interim Constitution 1993:
Section 228(3)(d) of the Interim Constitution establishes the JSCD and states that "The committee shall be competent to investigate and make recommendations regarding the budget, functioning, organisation, armaments, morale and state of preparedness of the National Defence Force and to perform such functions to Parliamentary supervision of the Force as may be prescribed by law. Section 228 was saved in Schedule 6 of the Constitution when it was passed in 1996 as a transitional clause. Schedule 6 of the Constitution deals with the transition from the legal order under the Interim Constitution to the new order established by the 1996 Constitution. It is plain from the term Transitional Arrangements in schedule 6 of the Constitution that the provisions listed in it are not meant to be indefinite. It was envisaged that the provisions would either be repealed or amended through ordinary section 75 legislation.

It is known that section 228 of the Interim Constitution was never amended or repealed and remains in effect. On this basis, it can be reasonably concluded that that is why the JSCD persists unless section 228 is repealed.

Constitution 1996:
The Constitution is the supreme law of the Republic, all law and conduct that is inconsistent with the Constitution is invalid and obligations imposed by it must be fulfilled. Section 56 of the Constitution states that the National Assembly or any of its committees may summon any person to appear before it to give evidence on oath or affirmation, or to produce documents and require any person or institution to report to it.

Section 69 of the Constitution states that the NCOP or any of its committees may summon any person to appear before it to give evidence on oath or affirmation or to produce documents and to require any institution or person to report to it.

Section 57 of the Constitution provides for internal arrangements, proceedings and procedures of the National Assembly. It states that the NA may determine and control its internal arrangements, proceedings and procedures and may make rules and orders concerning its business, amongst others. Section 70 of the Constitution vests corresponding powers in the NCOP.

Schedule 6 of the Constitution provides for transitional arrangements. It provides that all law that was in force when the new Constitution took effect, continues in force, subject to an amendment or repeal; and consistency with the new Constitution.

Joint Standing Rules of Parliament:
Joint Rule 120A establishes the JSCD: There is a JSCD as required by section 228(3) of the Constitution of 1993. It cross references section 228 of the Constitution. The JSCD investigates and make recommendations on 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 essence, the JSCD performs oversight function over the Department of Defence.

National Assembly Rules:
Rule 227 provides for functions of the Portfolio Committees. Rule 227(1)(c) states that a Portfolio Committee may monitor, investigate, enquire into and make recommendations concerning any such executive organ of state, constitutional institution or other body or institution, including the legislative programme, budget, rationalisation, policies of such organ of state, institution or other body or institution.

The Portfolio Committee also exercises oversight over the Department of Defence, including the very same areas of oversight as stipulated in section 228 of the Interim Constitution.

National Council of Provinces Rules:
Rule 103(1) states that the purposes of performing its functions a committee may, subject to the Constitution, legislation, the other provisions of these Rules and resolutions of the Council summon any person to appear before it to give evidence on oath or affirmation, or to produce documents, including conducting public hearings.

The Select Committee, in addition to the JSCD and the Portfolio Committee, also exercises oversight over the Department of Defence, including the very same areas of oversight as stipulated in section 228 of the Interim Constitution.

Legal Advice:
The Constitution as the supreme law of the Republic provides for the mandate of Parliament. It vests on Parliament the power and function to exercise oversight over the Executive. The Department of Defence falls within the realm of the Executive and is subject to the oversight function of Parliament.

The Portfolio Committee (Section 56) and the Select Committee (Section 69 of the Constitution) have the power to summon persons or institutions to appear before it and/or to produce documents. These powers include powers to investigate and make recommendations to the respective Houses on any relevant matter.

The Joint Rules provide for the establishment of the JSCD but does not provide for powers and functions of the Committee but it cross references section 228 of the Interim Constitution, which sets out these powers. As noted, the JSCD oversight powers as set out in section 228 of the Interim Constitution are an exact duplicate of the powers of Parliamentary Committees set out in sections 56 and 57 of the Constitution as well as the relevant rules of the respective Houses.

It is the view of the legal advisors that this duplication of powers may result in an unnecessary duplication of effort, which is an undesirable outcome as correctly noted by the JSCD. It is important to note that whilst there may be a duplication, the powers of the JSCD remain in full effect pending repeal or amendment.

The JSCD is advised to consider its options and make a recommendation to the Speaker on whether to sustain the status quo or repeal/amend section 228 of the Interim Constitution. If the JSCD recommends to sustain the status quo, it may be advisable for the JSCD to recommend that its mandate be redefined narrowly to limit the extent of the duplication with the Portfolio Committee and the Select Committee. However, if the JSCD recommends a repeal/amendment of section 228 it would appear that the correct vehicle for such an amendment/repeal will be the Defence Act. Therefore, the JSCD should further recommend to the Speaker that a letter be addressed to the Minister of Defence and Military Veterans for her to consider an amendment to the Defence Act with a view to repeal section 228 of the Interim Constitution.

Discussion
Mr V Xaba (ANC), Co-chairperson, thanked Adv Njikela for the briefing that touched on all the essential elements of his legal opinion. It is therefore clear what they should look at as a Committee

Mr S Marais (DA) said that the presenter referred to section 75 legislation that could be used to repeal or amend the duplication. He asked what section 75 is and if it referred to legislation that had its impact on a national basis as opposed to section 76 where it affects provinces.

Adv Njikela said it is correct that section 75 Bills are ordinary bills that are not affecting the provinces. A section 75 Bill will go through the NA and then go through the NCOP. The section 75 bill goes through both Houses. But as it does not affect the provinces, the power is within the NA. Whatever the NCOP may propose on a section 75 Bill may be overruled by the NA. This is opposed to a section 76 Bill, where the NCOP has a bit of width.

Co-chairperson Xaba said they should first agree to the legal opinion before the Committee and at some point decide what they want to do as the duplication was the issue.

Mr T Mmutle (ANC) said that the clarity the Committee was looking for has been presented. At a later stage they might revisit the matter as the Defence Amendment Bill is still coming and this might assist them going forward. But for now it is enough for them to note this recommendation because it provided the necessary clarity they wanted.
 
Co-chairperson Xaba said since this is a policy matter it needs to be processed at another level which is not committee level. It also needs to be discussed in party caucuses, from where they as Members of Parliament derived their mandate. As a Committee they are clear on the issue as Adv Njikela presented it.

Co-chairperson Xaba asked if Adv Njikela has seen the Defence Amendment Bill which Mr Mmutle referred to and which is on its way to Parliament.

Adv Njikela said he had as the Defence Amendment Bill was introduced in the Fifth Parliament and had lapsed. He is not sure if it has been revived in the Sixth Parliament.

Mr Peter Nkabinde, Ministry Parliamentary Liaison Officer (PLO), advised that the Defence Amendment Bill had been revived and is within the National Assembly process.

Co-chairperson Xaba said they will have to look at it at some point, but it is not related to what they are discussing now. They will leave the matter for now. At least they are clear and will continue as if nothing has happened until a clear directive and decision on this matter is secured moving forward.

Legal Advice on Interpretation of certain provisions of Military veterans Act
Adv Njikela said the Chairperson of the Portfolio Committee on Defence and Military Veterans had requested advice on the interpretation of certain provisions of the Military Veterans Act. Apparently, the Department of Military Veterans (DMV) has raised concerns about the interpretation of certain sections of the Act and proposed that these sections must be reviewed. In its latest Annual Report, the Department states that the Department has worked hard to finalize the amendment of the Military Veterans Act 18 of 2011, however, this process is delayed whilst the White Paper is being drafted. It is in this context that the legal opinion was requested by the Committee.

Adv Njikela noted those aspects identified for possible amendment and on which clarification was sought:

Section 1: Definition of a military veteran. The question raised was if preference can be given, especially to members of Non-Statutory Forces (NSF) and whether retired members of the SANDF can and should qualify for the benefits as stipulated in section 5 of the Act. Reference was also made to SANDF members who retired or whose contracts were not renewed such as the Military Skills Development System (MSDS) members who wanted to claim benefits.
Section 5(1)(i): Access to health care. Questions were raised on the justifiability of extending this benefit only to military veterans and not to their spouses. In addition, questions were raised on the status of widows and widowers and their children once the main beneficiary has passed on.
Section 5(1)(j): Housing. Given that the housing benefit applies only to the military veteran, what happens when s/he passes on?
Section 5(1)(k): Burial support. Is it justifiable to extend the benefit only to the military veteran and not to his/her spouse or partner?
Section 7: National Military Veterans Association. The department had challenges on the funding of conferences of individual military associations as this is not spelled out in the Act or Regulations.
Section 9: Advisory Council and Section 19 – 23 Military Veterans Appeal Board. Questions raised were on the functions and specific roles of these two statutory bodies on how and when they should be consulted and especially the authority of their advice/recommendations, and if these must be accommodated.

Adv Njikela said CLSO was requested to provide a legal interpretation of the background and main objectives of the Act to evaluate if it is justifiable to deal with these aspects in an Amendment Act. As is evident, the questions posed to CLSO go beyond its competence as they raise policy matters which can be better dealt with by the Department. For this reason, the advice is limited to legal interpretation of the relevant provisions of the Act:

• Section 1 of the Act defines military veterans broadly as any South African citizen who: rendered military service to any of the military organisations, statutory and non-statutory, which were involved on all sides of South Africa’s liberation war from 1960 to 1994; served in the Union Defence Force before 1961; became a member of the new South African National Defence Force after 1994, and has completed his or her military training and no longer performs military service, and has not been dishonourably discharged from that military organisation or force. Provided that this definition does not exclude any person referred to in paragraph (a), (b) or (c) who could not complete his or her military training due to an injury sustained during military training or a disease contracted or associated with military training.

Adv. Njikela said it is clear from the definition that it was intentionally designed to be inclusive of all forces. This is evident in the use of the phrase "involved on all sides of South Africa's liberation war from 1960 to 1994". This is reinforced by the specific reference to “Union Defence Force before 1961". This seems to accord with the fundamental principle captured in section 3(2)(g) that any policy about the affairs of military veterans must contribute towards reconciliation and nation building.

• In section 5, the question of who qualifies for benefits prescribed by the Act is regulated through the “means test" referred to in section 3(1)(c) of the Act to determine the eligibility for benefits. The "means test” is prescribed in the Military Veterans Regulations of 2011, in particular regulations 12, 13, 14 and 16.

The Act and Regulations as currently crafted do not give preference to any specific category of veterans as the “means test” is of general application to all military veterans. As such, any preferential treatment of one category of veterans over the other will fall foul of the Act and Regulations.

It may be instructive to reflect on section 2 of the Act which provides that, "This Act must not be interpreted as entitling any person who is defined as a military veteran in this Act, or his or her dependents, to any benefit provided for in this Act or any other law merely on the grounds of such definition". Simply put, the status of being a 'military veteran' per se does not automatically entitle a person to any benefits under the Act. An additional requirement, in this instance, the means test, needs to be fulfilled for eligibility for benefits.

Section 5(1) of the Act provides a list of benefits for military veterans. Section 5(2) extends three of these benefits to the dependents of military veterans:
- dedicated counselling and treatment to military veterans who suffer from serious mental illness, post-traumatic stress disorder or related conditions,
- education, training and skills development
- pension.
This is a clear demonstration that the legislature intended to limit the benefits of the dependents to the three mentioned in 5(2) and unfortunately access to health care and housing are part of the exclusions.

In section 5(j), where a house has already been allocated, it is the view of the legal opinion that the house will devolve to the military veteran’s beneficiaries through his/her estate. Where he/she passes on before the allocation, unfortunately his/her beneficiaries do not stand to benefit. If the Committee wishes to extend the benefits in 5(2), this can only be achieved through an amendment to the Act.

Section 5(k) Burial support: This repeats what was stated in section 5(i) and (j). The benefits listed in section 5 are meant for the military veteran.

• Section 7: National Military Veterans Association: Section 26 of the Act provides that “The costs and expenses connected with the administration and implementation of this Act must be defrayed from moneys appropriated by Parliament to the Department for that purpose”. From this provision it is clear that the budget of the Department can only be utilised for a purpose related to the “administration and implementation of this Act". To the extent that it is necessary, the National Military Veterans Association is a statutory body established in terms of the Act and is required to advise both the Minister and the Director General on matters affecting the military veterans. As such, it is the view of the legal opinion that its activities are related to the administration and implementation of the Act and therefore, can – subject to availability of resources – be funded from the budget of the Department. Despite this opinion, the legal advisors advise that the Accounting Officer of the Department is better placed to determine what activities are related to the administration and implementation of the Act. However, it is difficult to deal with this question in the abstract.

• Section 9 - 18: Advisory Council: In terms of section 10 of the Act, the role of the Advisory Council is to advise the Minister and the Director General on policy applicable to military veterans and all other matters pertaining to military veterans. According to the dictionary the word "advise" is a verb meaning "to give counsel to; offer an opinion or suggestion as worth following". It would appear therefore that the Minister is under no obligation to follow the advice. However, this does not mean the Minister is at liberty to ignore sound advice without good reason. The Minister is required, by principle of rationality, to at least demonstrate that she has considered the advice. Any other interpretation would have the effect of rendering the Council superfluous contrary to the clear intentions of the legislature.

• Section 19 - 23: Military Veterans Appeal Board: From the reading of section 20, it would appear that the Appeal Board has both adjudicative S20(1)(a) and advisory S20(1)(c) powers. This view is fortified by section 20(2). In its adjudicative powers, the Appeal Board may "confirm, set aside or vary a decision contemplated in subsection (1)(a)" and "substitute any other decision for the decision". Thus it would appear that the decision of the Board would be binding on the Department.

Adv Njikela concluded that to the extent that the questions hint at a policy shift, they would advise the Committee to engage with the Department with a view to persuade it to consider the relevant amendments which the Committee deems necessary.

Discussion
Co-Chairperson Xaba said what the legal opinion addresses is a summary of questions that arose in the Portfolio Committee meetings, and it has achieved that purpose.

Mr M Shelembe (DA) asked what is going to happen now since the question that was raised at the beginning of the Sixth Parliament was the concern that the self defence units (SDUs) and self protection units (SPUs) are not to be considered as military veterans.

Co-Chairperson Xaba said what Mr Shelembe is asking in short is who constitutes the non-statutory forces, and how far it goes in terms of inclusivity or if it is limited to certain forces.

Adv Njikela replied that it is a slippery slope for him as a legal adviser to venture on that area. He would rather refer that question to the Department to answer because his was to interpret the law as it stands and he has done justice in that regard.

Mr M Mgwebi, Acting Director-General: Department of Military Veterans, replied that the participation of the members of SDUs and SPUs can be confirmed by their political organisations whether they participated or not, and at what stage. And if they must be taken on board somebody must be able to say this particular individual was trained internally as part of the organisation, and has done political work for the organisation. Then the question will be, if these people were SDUs or SPUs, are they military veterans or can they be assisted or supported in any other way? He is able to say yes from where he is.

Mr Shelembe said this answer is acceptable because it explains who qualifies in terms of the Act. But from the side of the Committee they have that concern from outside where it is said the SDUs and SPUs were part of the liberation movement internally, but not like those external forces such as MK and APLA. But they are still arguing that they do qualify and should be declared as one of the non-statutory forces of that time.

Co-Chairperson Xaba thanked Adv Njikela for his legal advice. The Committee is clear where they stand as far as the Act is concerned.

Skills Audit: briefing
Mr Mbuyiselo Mgwebi, Acting Director-General: Department of Military Veterans (DMV), said that DMV recognized the central role of a skills audit as advocated in the Skills Development Act to balance capacity and capabilities and identify the gaps in skills. The outcome is a training needs analysis that identifies where training is needed. He noted that the audit outcomes for Department had shown progressive improvement since 2013/14 with a notable stagnation in the past three years.

Mr Mgwebi said Parliament was concerned with the level of performance within the Department of Military Veterans as depicted in the audit outcomes. On close analysis it became clear that DMV lacked capacity to enable it to function at the desired strategic and operational level. On inquiry it became apparent that management had no knowledge of available skills within the department. The need for a skills audit was highlighted. Due to the very capacity challenges in house, outsourcing was the only option available.

Mr Mgwebi said they identified a service provider and a contract was initiated in 2016. Its scope included: Identify employees’ skills; Compare them with requirements as per the Department (now and future); Determine skills shortfall/surplus; Identification of gaps; Train. The original schedule for the execution of the Skills Audit was January to May 2018. The identified target for the skills audit was 250 employees.

The progress to date was: 122 employees have been psychometrically tested; reports of individual assessments are available; the assessment reports (psychometric) are currently being analyzed; the outcome will be presented to the DMV Senior Management for consideration; DMV is in consultation with the service provider to ensure finalization of the process in line with agreed implementation protocols.

Discussion
Mr Mmutle said that the skills audit report has been long overdue since 2016 and what is needed is to finalise that report and bring it to the Committee to engage with it. They cannot engage with a report that is not finalised.

Mr Shelembe agreed and emphasised that DMV must give them a timeframe for finalisation of the process.

Mr Marais referred to the concerns raised by his colleagues and asked if this was a manmade problem or a systems problem because in previous years the Department always talked about lack of computerisation. He asked to what extent the IT challenge has been dealt with.

Co-Chairperson Xaba said Members are saying the gestation period has been too long, but he pointed to what the DG reported:
- The department is still analysing the assessment report.
- The outcome of that process will be presented to DMV senior management for consideration.
- The Department is in consultation with the service provider to ensure finalization of the process.

Co-Chairperson Xaba said Members have asked how long before the process is concluded because it is critical for the functioning of the department.

Mr Mgwebi replied that DMV senior management will meet on 25 November 2019 as they have given an opportunity to HR management to compile all the individual names for presentation and discussion.

Mr Mmutle said they should give the Department a timeline up until the end of this financial year to present the final report to the Committee.

Mr Mgwebi assured the Committee that they will present the final report before the end of the financial year.

Co-Chairperson Xaba said they will slot a meeting with the Department in February/March 2020 to get an update on the finalised Skills Audit Report.

As for the DMV database challenges, the Committee is aware that the database is work in progress and they have given the Department until the end of this year to present a purified database.

The Committee agreed.

Co-Chairperson Xaba thanked Mr Mgwebi and his delegation and the Committee was looking forward to the next engagement before the end of the term.

The meeting was adjourned.