Has our Constitution, billed as among the most progressive in the world, become a license to leisure for some in the SANDF? Has it given officers and other ranks a right to defend the country at their convenience?
The Afrikaans Gauteng daily, Beeld, earlier this month reported that it was being approached by elements within certain specialist groups of the SA National Defence Force who were apparently unwilling to serve on six-month peacekeeping deployments. The paper said the SANDF’s increasing involvement with peace operations in Burundi and the Democratic Republic of Congo has led to an increasing expectation that helicopter pilots and medical doctors, among others, go there to perform their services. Some of them recently complained to the paper that the SANDF was taking no heed of their unwillingness to go. “The Defence Act and Constitution provides that no soldier can be compelled to go work in a foreign country. It does not matter if one says one doesn’t want to go, because it is simply assumed one will go,” one complainant told the daily.
But is this so? The 1957 Defence Act (still in force at the time of writing) was based on compulsion and white conscription. After 1994 race-based conscription was viewed in conflict with the new Constitutional order and abandoned. Also abandoned was compelling Reservists to serve — on the bases that they were mostly former white conscripts. The decision was apparently informed by a desire to keep the matter out of the courts. As a consequence the Reserves became all-volunteer and shrank massively in size. Service in the Regular component remained voluntary, meaning one had to apply out of own volition to join. A new Defence Act, Act 42 of 2002, has now passed Parliament and has been signed into law by President Thabo Mbeki. But it is not yet in operation. The new law is based on voluntarism but retains the possibility of conscription if required. The argument was that there might be too few volunteers and some form of compulsion might be required to flesh out the armed forces.
The new law, although based on voluntarism, does not as far as a reading can determine, include the right to demand a posting or to decline a posting or assignment, other than doing so through resignation. Indeed, the chairwoman of Parliament’s Joint Standing Committee on Defence, the Hon. Thandi Modise, MP, recently (March 26, 2003) expressed her position forcibly on the issue, saying the matter had been extensively debated during the deliberations on the then-Defence Bill and that Members of Parliament had generally agreed that South Africa could fail to mobilise forces for action if serving in outside missions was made on the basis of voluntarism. She told a delegation from the Department of Defence, including its Chief Director for Defence Policy, Nick Sendall and its budget director, general Rautenbach, that MPs were in agreement that once a person volunteered to serve in the armed forces they had volunteered to serve anywhere directed by the SANDF’s command.
In a nutshell then, the old law is based on compulsion and the new law on voluntarism: soldiers can volunteer to join the SANDF and can leave voluntarily. The law gives them no license to cherry-pick where they want to serve.
In case anyone in the DoD had forgotten that Parliament controlled the purse strings and therefore called the tune, Modise told Rautenbach & Co. that Parliament had the authority (in terms of the Constitution) to accept or reject DoD and Treasury costings tabled before it and could even veto the deployment of peacekeeping missions.
What about South Africa’s progressive labour laws? Well, most do not apply to the defence force. The Labour Relations Act of 1995, the Basic Conditions of Employment Act of 1997 and the Employment Equity Act of 1998 specifically excludes the SANDF from their operation. Instead, military labour relations and conditions of employment are dealt with in the Defence Act.
But is the law and Parliament’s position Constitutional? The best way to find out is to take the matter to court. In the meantime, a reading of the country’s highest law must suffice. The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), was approved by the Constitutional Court in December 1996 and took effect in February 1997. The preamble to the Constitution states that the aims of the Constitution are to:
— heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights,
— improve the quality of life of all citizens and free the potential of each person,
— lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law, and
– build a united and democratic South Africa able to take its rightful place as a sovereign State in the family of nations.
Chapter Two of the Constitution contains a list of fundamental human rights that set out the rights and freedoms of every South African. The Constitution Court polices this Bill of Rights and judges whether or not actions of the government, laws passed by Parliament and decisions reached in other courts are in accordance with constitutional provisions. But right at the start, Chapter Two warns that “the rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.” What South Africans tend to forget is that rights and freedoms come with corresponding obligations. The right to life comes with the obligation not to take life. Murder is therefore a crime.
The Bill of Rights is indeed liberal allowing South Africans a great deal of freedom, even in the workplace. Section 13 rules that no-one may be subjected to slavery, servitude or forced labour. Section 22 says every citizen has the right to choose their trade, occupation or profession freely. However, the practice of a trade, occupation or profession may be regulated by law. Section 23 guarantees everyone the right to fair labour practices. Every worker has the right to form and join a trade union, to participate in the activities and programmes of a trade union, and to strike.
But the Bill of Rights also includes a “limitation” clause. Section 36 (1) decrees that “the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including
— the nature of the right;
— the importance of the purpose of the limitation;
— the nature and extent of the limitation;
— the relation between the limitation and its purpose; and — less restrictive means to achieve the purpose.
Further limitations apply under states of emergency. Such a state “may be declared only in terms of an Act of Parliament, and only when the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; and the declaration is necessary to restore peace and order.” Any legislation enacted in consequence of the declaration of a state of emergency may restrict the Bill of Rights only to the extent strictly required by the emergency. The legislation must also be consistent with the country’s obligations under international law. In terms of this section, forced labour, for example, is allowable during a state of emergency. Conscription is one example of forced labour. Suspending the right of soldiers to resign or compelling reservists to muster for military service are too.
Also, when interpreting the Bill of Rights, a court, tribunal or forum is Constitutionally obliged to promote the values that underlie an open and democratic society based on human dignity, equality and freedom. It must also consider international law and may consider foreign law.
Those who so easily trade on the Bill of Rights to get their way should think again. Contrary to what they may think it is not a one-sided license to demand convenient rights and freedoms. The same Bill of Rights that gives rights and freedoms imposes obligations as well as guidelines for common-sense limitations.
Such limitations exist in other democratic countries. A reading of US court decisions during and after the 1991 Gulf War show a number of cases where Reservists who refused mobilisation orders were jailed. According to court records, they had joined the Reserves and National Guard to benefit from a free tertiary education programme under the “GI Bill,” a law passed at the end of World War Two to reward military veterans for their service. One actually testified that she had neither intended nor expected to be sent to the Middle East to fight in a war and consequently could not be made to. The court disagreed, ruling that by joining the armed forces to obtain the GI Bill benefits she had also voluntarily assumed the obligation to serve her country as a soldier as and when required. In other words her right to serve at her convenience was proscribed and sanctioned with imprisonment.
Courts, of course, do not come up with their own arguments. The South African Labour Court lamented this fact in March this year when it ruled against the SA Police Service in an affirmative action case. Judge Adolf Landman told police lawyers, who wanted to appeal an earlier ruling he had made that they had presented a sloppy case. “It is not permissible for me to decide the application on any basis other than the grounds upon which the applicants (the police) rely. The result is that I am precluded, by the applicant’s grounds for leave to appeal, from sending a matter of undoubted public importance for consideration by a higher court,” Landman ruled. In the US cases the military had the courage to take the matter to court and weigh the issues against the US Constitution, a document as liberal as our own highest law. They won.
The same can be the case here. The law is clear. The intention of the lawmaker is a matter of public record. The Constitution provides no refuge for those who seek license in rights and freedoms without corresponding obligations. It is time to deal with military personnel of the type mentioned by Beeld. Parliament and the public demand no less. Do not cross them.