Military Ombud Bill 2011: Department of Defence briefing; SAPS Report on 1267 Committee dealing with Taliban and Al-Qaeda

Meeting report

Military Ombud Bill 2011: Department of Defence briefing
Mr Thabiso Ratsomo, Chief Director: Strategic Support, Department of Defence, gave a presentation on the Military Ombud Bill 2011 (the Bill).He noted that this had been through the National Assembly processes.

He traced the legislative background back to the 1996 White Paper on Defence, which had instructed the Department to consider the establishment of a Military Ombudsman (now called “ombud”). The Defence Review of 1998 had reiterated the need for the Ombud. The 1996 Constitution had already established the office of the Public Protector, which was originally considered broad enough to fulfil the envisaged function at that time, and it was proposed that the Public Protector should establish a small office within its structures to house the Military Ombud. However, there were concerns expressed that the level at which this would be able to function would be too low for it to fulfil its envisaged functions. A series of further consultations led up to other decisions being taken, which resulted in the Bill currently before the Committee.

He noted that the 2011 Bill sought to set up an office of the Military Ombud, as well as to define its powers and functions. Clause 5 set out the procedures for appointment and removal of the Ombud, a procedure similar to that followed for the heads of the various Chapter 9 Institutions.  However, there was a different procedure for removal of the Deputy Ombud.

Clause 6 set out the powers and functions of the Ombud, and provided that once a complaint was received by the Ombud, he or she had to contact all interested parties before conducting investigations. There had been a long debate as to whether the Ombud should be able to make findings that would be binding on the Department of Defence and Military Veterans, but it was eventually decided that the Ombud would only be empowered to make recommendations.

Clause 7 limited the jurisdiction of the Ombud. Mr Ratsomo explained that this was primarily because there was already a military justice system situated within the South African National Defence Force (SANDF), and the limitation in this Bill sought to protect the independence of that system. Clause 7 ensured that the Ombud would not be able to override the decisions of military courts, in keeping with the principle of independence of the courts. In the White Paper, there was a qualification that the only grievances that would be dealt with by the Ombud should be those that could not be dealt with in terms of the Military’s Grievance Regulations and dispute resolution mechanisms.

Clause 8 provided for the independence and impartiality of the office of the Ombud. When the Ombud investigated a complaint, everyone within the SANDF had a legal duty to cooperate with such investigation.  The Ombud would be required to respect confidentiality, given the fact that the nature of the information that the SANDF dealt with was in many cases classified and sensitive. 

Clause 9 made provision for the staff of the Office of the Military Ombud, and provided that they had to have the necessary security clearance to deal with the type of sensitive information handled by the SANDF.

Clauses 10 to 13 made provision for finances, reporting and review. Clause 10 provided for the Ombud to be funded by monies approved by Parliament as part of the Defence vote. Clause 11 provided that the Ombud would report to the Minister, and the Minister would then table the report in Parliament, the same procedure as with other entities of a similar nature. Clause 13, a standard provision, confirmed that a decision of the Ombud would be reviewable by the High Court.

Clause 14 set out the offences and penalties for anyone who hindered the Ombud’s office or failed to preserve confidentiality in respect of information of the office. Criminal sanctions were prescribed to re-enforce the principle that the office of the Ombud had to treat all information with the necessary confidentiality.

Mr Ratsomo concluded that the envisaged institution was not new to the public service, and was comparable to the Independent Complaints Directorate for the South African Police Service (SAPS). There was also international precedent for such an office.  The Department of Defence had appeared before Parliament on a number of occasions to discuss grievances that had not been satisfactorily resolved by the internal dispute resolution mechanisms.  There was therefore a need for an independent body to deal with complaints from SANDF members and employees.

Discussion
Mr JJ Gunda (ID Northern Cape) stated that the Bill affected ordinary people on the ground. He asked how a Bill of such importance could be tabled in Parliament without first being reviewed by the National Council of Provinces (NCOP).  He did not feel that he, as representative of his Province, had been given sufficient say in the matter.

Mr D Bloem (COPE Free State) recommended that the Bill should be put before the Joint Standing Committee on Defence, since it was comprised of members from both houses of Parliament. 

Mr Ratsomo replied that he did not think that the Department was in a position to determine how the Bill should be tagged, as this was the responsibility of the Tagging Committee. If the Committee was unhappy with the way that the Bill had been tagged, perhaps they should follow up on Mr Bloem’s suggestion that the Bill be put before the Joint Standing Committee.

Ms Bongiwe Lufuno, State Law Advisor, Office of the Chief State Law Advisor, added, in relation to the tagging of the Bill, that the Office of the Chief State Law Advisor had tagged the Bill as a Section 75 Bill in terms of Schedule 4 of the Constitution, which dealt with functional areas of concurrence between National and Provincial legislative competence. Section 44 of the Constitution noted that the national legislative authority the power to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4. Although the Military Ombud was not listed in either Schedule 4 or 5, regard had to be had to Section 44(2), granted Parliament the power to pass the empowering legislation.  The Department had also taken guidance from a 2010 judgment in the Tongwane matter, which had set a precedent regarding the tagging of Bills.

Mr Bloem noted the provision in the Bill that the salary of the Ombud must not be less than the salary of a Judge of the High Court, and instead wanted to propose that the salary must not be less than the Chairperson of one of the Chapter 9 Institutions.

Mr Ratsomo responded, in relation to the salary of the Ombud, that the empowering legislation of the various Chapter 9 Institutions used the same wording.

A Member asked whether there would be a budget increase for the Department of Defence and Military Veterans to make certain that the office of the Ombud functioned properly. He assumed that there would be a single national office to house the Ombud, but sought confirmation of that.

Mr Ratsomo answered the question about the Department’s budget by stating that the budget would necessarily have to increase over a period of years. When the budget was adjusted, it would be done in accordance with the previous year’s data, and would not be a static figure. The Bill did not speak to provincial offices, so there would probably be one central national office. If the Bill had referred to provincial offices, the tagging may well have been different. Whatever happened when the office was established, there would have to be a mechanism whereby the Ombud was made accessible to all affected parties, wherever they may be situated.  The workload might not justify allowing each province to have an office.

Mr A Matila (ANC Gauteng) asked why there were changes made to clause 5, dealing with appointment and removal.  He remarked that it should not be necessary to equate the office of the Ombud with the Chapter 9 Institutions, or for the President to appoint the Ombud on the recommendation of the National Assembly. He felt that the appointment should rather be an internal matter, to be decided within the Military, and that the Ombud should ultimately be appointed by the Minister of Defence and Military Veterans. He asked why the National Assembly (NA) had made the change, thereby transferring the power of appointment from the Minister to the President. He recommended that the Committee reject this change and send this clause back to the NA for reconsideration.

Mr Ratsomo responded that the primary concern at the NA was the issue of the independence of the office. The office of the Ombud should not be seen as a mere creation of the Minister, that was under the direct control of the Minister.  It should rather be seen as something that was separate from and independent of the SANDF.

A Parliamentary Legal Advisor added that in the Bill as originally worded, the appointment of the Ombud was not to be made by the Minister, but by the President. It was correct that this must be an independent institution, and there should be a perception amongst the people who were going to use it that it was independent. If the Minister made direct appointments, this perception may be compromised.

Mr Matila recommended that the Committee should refer the matter back to the National Assembly so that the position as set out in the original draft of the Bill would be upheld. This would require the President to appoint the Ombud, and for Parliament to approve the appointment, instead of the President making the appointment on the recommendation of the National Assembly. The office of the Ombud should not be equated to that of the Public Protector, because the military should not be opened up to too much intrusion.  The matters that would be dealt with by the Ombud were, by their very nature, extremely sensitive. He thought that the original wording of the Bill had set out the best possible situation.  After all, the President was the Chief Commander of the military, not the Minister. He said that having the President make the appointment was no guarantee that the Ombud would be independent. He recommended to the Committee that the Bill should also be sent to the Joint Committee on Defence and Military and Veterans to obtain their perspective. In any event, the Ombud would have to inform the Minister of the matters that were brought before the office. 

Mr Bloem supported Mr Matila’s suggestion that the Committee send the Bill back to the National Assembly with the recommendation that the original wording on appointments be reinserted.

Mr B Nesi (ANC, Eastern Cape) agreed.

The Chairperson asked for a brief adjournment so that the Committee could caucus on the matter. 

After the caucus, the Chairperson confirmed that this Committee was of the view that the President should make the appointment. The Committee would accordingly propose this amendment.

Mr Matila reiterated that the office of the Military Ombud should not be equated with that of the Public Protector.

1267 Committee dealing with the Taliban and Al-Qaida and Proclamations made in respect of entities involved in terrorist and related activities: South African Police Service (SAPS) briefing
Brig K Strydom, Legal Services, South African Police Service, briefed the Select Committee on the 1267 Committee dealing with the Taliban and Al-Qaida and Proclamations made in respect of entities involved in terrorist and related activities as identified by the United Nationals Security Council.

In terms of Section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, No 33 of 2004, the President must, by Proclamation in the Gazette, and other appropriate means of publication, give notice that the Security Council of the United Nations had identified a specific entity as one who commits, or attempts to commit, any terrorist and related activity, or one that participates in or facilitates terrorist activities. Besides using the Government Gazette,  other methods of publication included the South African Police Service (SAPS) internet website and the intranet, which was connected to Interpol.

Section 26 of the Act provided that every Proclamation made in terms of Section 25 must be tabled in Parliament for consideration.

It was noted that the consolidated list contained four categories, comprised of Taliban individuals and entities and Al-Qaeda individuals and entities.  The Proclamation was comprised of various Gazettes.  Member states were encouraged to submit names for listing as soon as supporting evidence was obtained, and were encouraged to first approach the State of whom the person listed was a citizen or where that person resided. Member states should provide a “detailed statement of case” in support of the proposed listing, meaning evidence of terrorist activities. The responsible UN Committee would make amendments to the list upon receiving information provided by member states or regional or international organisations. 

The effects of listing included freezing of assets, arms embargos, and travel bans. The freezing of assets was somewhat limited, to allow for the continued cost of living. A petitioner calling for a de-listing would have to submit a request to the office of the Ombudsperson by a member state to the Committee after bilateral consultation with the designating State(s), and the State(s) of nationality, residence or incorporation of the listed person. In practice, the making of such a recommendation was usually at the behest of the Ombudsman.

Discussion
Mr D Jacobs (DA) wanted to know whether there was any similar protocol, internally, in South Africa, for listing of persons suspected of terrorism in this country. 

Brig Strydom replied that in 2001, information regarding the Boeremag group was circulated through government. In practice, travel bans could be enforced through the Department of Home Affairs, and assets could be seized in terms of the Prevention of Organised Crime Act.

The Chairperson asked what the legal position was regarding heirs of a deceased person whose assets were frozen.

Brig Strydom replied that there was legislative provision made for hospitalisation and legal representatives’ fees, and that, given this pragmatic approach, the heirs of a deceased should not be required to suffer unduly.

Mr M Mokgobi (ANC Limpopo) asked what the current status of the Boeremag group was.  He wanted to know whether they had been listed as terrorists, whether they were free to travel, and if their assets had been frozen.  

Brig Strydom replied that of the 23 original members of the group, two were now deceased. She gave a historical overview of the case, which started in 2002, and explained that they were regarded as terrorists, because they had committed a crime against the State. She remarked that most of them were currently receiving legal assistance from Legal Aid South Africa, and that the length of the trial meant that most of them did not have much money left. Crime Intelligence was currently tracing their families and associates, who were under constant observation.

Mr Jacobs asked about the role of South Africa’s representative at the United Nations (UN) in respect of the listing of terrorists, and enquired when last there was any information about the possibility of terrorist threats in South Africa. 

Brig Strydom answered that the South African Ambassador to the UN was involved in the listing procedure. The presentation only dealt with additions to the Taliban and Al-Qaeda lists on an international basis.  She noted that on 17 October 2011, there was a new listing, with a new individual being added to the Al-Qaeda list. There had also been a recent resolution to keep the Al-Qaeda list separate from the Taliban list.

Mr Jacobs asked, with regard to those people who had been listed but had allegedly died, whether it was possible to establish for certain that they had died.

Brig Strydom answered that there had to be a death certificate issued by a reputable source, but quipped that she was still waiting for definitive proof of Osama bin Laden’s death. 

Mr Jacobs asked why there were only four categories of entities that were considered worthy of listing.

Brig Strydom replied that the 1267 Committee only dealt with the Taliban and Al-Qaeda.  She said that while there were probably other Committees, she was not privy to the details of those lists, and was not sure whether Al Shabab, for instance, was a listed entity.

Adoption of minutes
The Committee adopted the minutes of previous meetings, with some minor technical amendments.

The meeting was adjourned.