The Portfolio Committee on Defence and Military Veterans has adopted a Defence Amendment Bill with certain amendments an despite the objections of two opposition parties.
Bill 11-2010 makes three amendments to the Defence Act 42 of 2002. It firstly seeks to ensure that Reserve Force (RF) personnel can be utilised and required to perform service in the Defence Force at all times, including during times of peace – the current law only allowing mobilisation in time of war or emergency. This makes it difficult to deploy RF personnel on border control duty or peacekeeping missions.
Secondly, the Bill seeks to establish a permanent National Defence Force Service Commission (NDFSC) – a body that will advise the Minister of Defence and Military Veterans on the improvement of conditions of service of members of the South African National Defence Force (SANDF).
Lastly, the draft law refines the definition of “Military Command”. Section 202(1) of the South African Constitution requires the President to appoint the “Military Command of the Defence Force”. The Defence Act does not define the concept and instead, in Sections 7(1) and 13(1) of only stipulates the appointment of the Secretary for Defence and the Chief of the SANDF by the President.
“An inclusive definition of the Military Command is therefore proposed, to include the appointment of the Chiefs of the Army, Air Force, Navy, Medical Health Services, Defence Intelligence and Joint Operations to this structure,” Portfolio Committee on Defence and Military Veterans chairman Mnyamazeli Booi said in June, not long after the Bill was tabled.
Debate on the Bill quicklime bogged down on the issue of the NDFSC and Parliamentary access on two interim reports compiled by the Interim NDFSC on conditions in the SANDF and on the need for a NDFSC. The committee, at various times, believed access to the reports was necessary for its deliberations, while defence minister Lindiwe Sisulu throughout insisted it was not.
The Bill was approved for submission in the National Assembly last Tuesday by a majority, but with objections by the Democratic Alliance and the Freedom Front Plus (FF+). DA committee member David Maynier says the “Bill was rammed through Parliament by the ANC [African National Congress] faction on the Portfolio Committee on Defence and Military Veterans. They have clearly been whipped into line by Minister of Defence and Military Veterans Lindiwe Sisulu. As a result there is now some serious doubt about the constitutionality of the Bill.”
FF+ committee member Pieter Groenewald said his party only objected to the definition of “military command”. He says, as passed, this was essentially the same as the Military Command Council, but without the Chief of Defence Reserves. Groenewald says no cogent reason was advanced why the chiefs of logistics and human resources were part of the “military command” while the head of the RF was not. Neither he, nor Maynier, could establish what problem the provision sought to address nor what criteria were applied in compiling the list of members of the Military Command.
The Department of Defence’s Chief Director Legal Services Mamoloko Kubishi responded the issue arose during the appointment of a new Chief of Defence Intelligence. The Parliamentary Monitoring Group reports her saying the proposed amendment was an attempt to remedy a legal lacuna. Kubishi added tt was important to differentiate between the Military Command and the Military Command Council. “The Military Command Council was an entity used by the Chief of the Defence Force to discuss matters of strategy and the Chief decided who served on the Council,” she was reported as saying. With regard to the composition of the Military Command, the Chiefs of the Services were automatically included. In addition, three-star generals (lieutenants general) were included. “The President confirmed the appointment of three-star generals and instructed the respective Chiefs to go to war,” she was reported as saying. The inclusion of the Chiefs of Human Resources, Logistics and Intelligence was based on the preceding criteria. The Chief of Defence Reserves did not command any forces as the members of the Reserve Force who were called up served in the other services. The Chief of the Reserves acted as a coordinator, facilitator and an adviser. Members of the Reserve Force reported to the Chiefs of the respective services, the Chief of Joint Operations or the Chief of Human Resources when undergoing training.