DEPARTMENT OF DEFENCE RESPONSE TO PUBLIC HEARINGS SUBMISSIONS :

1. DEPARTMENT OF DEFENCERESPONSE TO PUBLIC HEARINGS SUBMISSIONS : DEFENCE AMENDMENT BILL 18TH AUGUST 2010

2. AIM • To brief the Portfolio Committee on Defence on the Department of Defence response to the Public Hearing submissions on the Defence Amendment Bill.

3. INTRODUCTION • The DOD appreciates the opportunity to present its response to the PCOD with regard to public hearing on the Defence Amendment Bill. • The DOD has taken note of the concerns expressed by approximately 20 interested groups/organizations such as SANDU1, SANDU 2, SASFU, DEMUSA and COSATU. • Furthermore the DOD has taken note of the issues raised by Khoisan Kingdom and KZN Reserve Force members. • And issues raised by Honorable members of the PCOD

4. INTRODUCTION (cont) • The presentation deals with the issues arising from public hearings directly on the proposed Defence Amendment Bill. • However the DOD has taken note of all issues raised during the public hearings that are not directly impacting on the proposed Bill e.g: • the KZN reserve force wrt transformation, racism and victimization; • Khoisan Movement wrt integration and representivity in the DFSC • Other views and opinions expressed

5. INTRODUCTION (cont) • The DOD takes note that the majority of the organisations and or persons that made submissions during the public hearings, support the policy perspective of the Bill. • But sought to influence the Bill in one direction or the other.

6. SCOPE • Response • Section 53 • Section 55 • Section 62 • Section 82 • Section 104

7. Section 53 • The section sought to create an obligation to serve for members of the Reserve Force in circumstances short of time of war; • DOD analysis of the submission shows general support for the provision except few practical suggestions made by Reserve Force Council: • Consistency in the use of the words “military service contract” and “contract of service”. • The Defence Act already uses the phrase “contract of service” and therefore we propose that the Bill should be aligned with the current use in the Defence Act.

8. Section 55 • The proposed section seeks to create an additional mechanism to advise the Minister on the determination of salaries, pay and entitlements of the members of the SANDF. In doing so it was proposed that the references to the MBC in the section be omitted. • The concerns raised by all trade unions was that the proposed amendment would do away with collective bargaining for members of the SANDF in contravention of the Constitutional Court judgment. • In order to eliminate any possibility of a misunderstanding in this regard, it is proposed that the deletion of the references to the Military Bargaining Council be withdrawn.

9. Section 55 Cont • We further propose that the DFSC be inserted in both section 55(1) and (2) to advise the Minister prior to determination. Thus the section would read: • “Members of the Regular and Reserve Force must receive such pay, salaries and entitlements including allowances, disbursements and other benefits in respect of their service, training or duty in terms of this Act as may from time to time be agreed upon in the Military Bargaining Council and recommended to the Minister by the Commission; • If no agreement contemplated in subsection (1) can be reached in the military Bargaining Council, the Minister may, after consideration of any advisory report by the Military Arbitration Board and recommendation by the Commission with the approval of the Minister of Finance, determine the pay, salaries and entitlements contemplated in that subsection.”

10. Section 62C • This provision prescribes the method of appointment of the members of the DFSC and requires the Minister to appoint the nomination committee to screen and recommend the appointments of the members of the DFSC; • The concerns expressed during the hearings was that the Minister has too much power appoint and remove members of the Commission and this may compromise the independence of the DFSC. • This issue will be addressed by the State Law Advisors to explain their advice given to the DOD on this matter • The process followed in Sec 62C is similar to all commissions, boards, committees of a similar nature supportive to Ministers to execute his/ her executive duties.

11. Section 62C (cont’d) • In this regard we refer the PCOD to the following legislation: • Intelligence Services Act, • Housing Development Agency Act, • South African Post Office Act, • National Education Policy Act,

12. Section 62H • This section deals with accountability and reporting of the DFSC to the Minister. The Bill proposes that the DFSC should be accountable to the Minister and that the Minister shall table the report of the DFSC in Parliament. • The concern expressed was that the DFSC is not directly accountable to Parliament but to the Minister. • The reporting process is similar to all commissions, boards, committees of a similar nature as stated • Parliament can call upon the DFSC to report to it on specific matter as it does Boards, Commissions

13. Section 82 • This provision is linked to Section 55 of the proposed amendment bill that sought to empower the Minister to determine salaries, pay and entitlements on the recommendation of the DFSC. • As indicated above this proposal has been withdrawn and therefore this amendment automatically falls away. • The proposed amendment to Sec 82 (1) (a) is withdrawn in line with the withdrawal of the proposed amendment to Sec 55 (1) and (2).

14. Section 104 • The amendment to section 104 seeks to create an offence for members of the Reserve Force who fail to honour a call up. • The concern raised was that the provision punishes the mere failure without due regard to circumstances that led to such failure. • The proposed insertion of the words “or fails” are withdrawn.

15. Amendments Introduced • The PCOD will recall that the DOD had proposed an amendment to Sec 62C relating to the appointment of the members of the DFSC. The amendment sought to substitute the President for the Minister in that section. • A corresponding amendment was also proposed in respect of section 62K wrt intervention by Minister. • These proposals now fall away as the status of the DFSC has been determined as that of a Ministerial Commission as opposed to Presidential Commission.

16. Amendments Introduced Cont’d • The DOD records it had submitted additional proposals to the PCD on the increase of the number of Commissioners from 8 to 12. This proposal is still relevant. • The DOD expresses its greatest appreciation to the PCD for the opportunity to respond and the work done during the Public Hearings

17. DISCUSSIONS