Defence Amendment Bill [B11-2010]: briefing by South African National Defence Force Reserves and Reserve Force Council

Meeting report

Briefing by South African National Defence Force (SANDF) Reserves
Major General Roy Andersen, Chief of SANDF Reserves, SANDF, briefed the Committee on the proposed amendments to the Defence Act regarding the call-up of Reserves (see attached document).

The Defence Amendment Bill made provision for the call-up of the Reserve Force in times other than a state of war.  The Amendment Bill was previously introduced to Parliament but was withdrawn in 2008.  The Cabinet approved the re-introduction of the Bill on 24 April 2010.

The presentation covered the background to the Reserve Force, the current legal position, the policy theme and legislative proposal, the safeguards incorporated in the legislation and the consultation process followed concerning the proposed Amendment Bill.

There were currently 28,500 volunteer reservists serving in the SANDF Reserve Force.  During the 2009/2010 fiscal year, 12,500 reservists were called up to serve an average of 62 days.  It was planned to increase the Reserve Force to 72,000 members.

Discussion
Mr D Maynier (DA) wondered if the proposed legislation was intended to address the failure of the SANDF system to provide an adequate number of reservists to serve on the Reserve Force.  He referred to the 2008/09 report that a total of 1,445 SANDF members exited the Military Skills Development System (MSDS) but only 102 persons (i.e. 7%) had joined the Reserve Force.  He noted that the Defence Act made provision for an Exemption Board to consider applications from members of the Reserve Force who were unable to serve.  He asked if the Exemption Board existed and if it was effective.  He noted that the employers of reservists were not compensated if the member of the Reserve Force was called up and asked if the lack of compensation was not a disincentive for companies to employ reservists.

The Chairperson requested clarity on the enforcement provisions and penalties for non-compliance contained in the legislation.  He was concerned that the rights of all parties would be adequately protected under the proposed legislation.

Gen Andersen replied that the Reserve Force currently had no problem with attracting sufficient numbers of reservists.  The adverse economic situation meant that many soldiers leaving the SANDF found it difficult to find other employment.  There was a certain degree of resistance from the leader group to the call-up of reservists for prolonged periods but to date, only two members had declined to serve for personal reasons.  He conceded that the MSDS would not provide sufficient numbers to increase the Reserve Force from 28,500 to 72,000 members.  Currently, there were 8,500 reservists from the MSDS.  The Reserve Force was developing more effective alternatives to attract reservists, such as providing training for skilled artisans (for example mechanics) and promoting the signing of contracts to serve for an additional five years in the Reserve Force after leaving the regular Defence Force.

Gen Andersen confirmed that the Exemption Board was not in existence.  A national as well as regional Exemption Boards were planned.  He confirmed that no provision was made for the compensation of employers if reservists were called up.  Both international models for the compensation or non-compensation of employers were considered but depended on the availability of financial resources.  The SANDF Reserves was in the process of forming regional employer councils in each province on which political, business and labour interests were represented.  The councils provided a communication channel to appraise businesses of the benefits of employing reservists.  Employees who underwent Reserve Force training acquired skills that ultimately benefited the employer as well.  He invited the Members of the Committee to attend one of the council sessions in the Western Cape.  The SANDS Reserves wanted volunteers to serve as reservists but he doubted that the National Treasury would make funds available to compensate employers during times of peace.

The Chairperson enquired what skills were currently available to the Reserve Force.

Gen Andersen explained that the members of the Reserve Force who had completed the two-year contract with the MSDS were matriculants and the training provided included a foreign deployment.  At the end of the two-year period, career guidance was provided and the SANDF attempted to find employment for the soldiers exiting the system (including with the South African Police Services (SAPS) and the Department of Correctional Services).  Sufficient numbers of relatively unskilled volunteers were available but attracting members of the leader group was more challenging.  Typically, members of the leader group found employment in middle and senior management and it was more difficult to encourage employers and reservists to serve.  The Exemption Board would consider applications from reservists if they were engaged in essential work when called up.

Mr Maynier asked if the system for providing adequate numbers of reservists should be reconsidered and asked what alternative options for recruitment were available to the Reserve Force.  The lack of compensation to the employer meant that the reservist would have to serve at the cost of the employer and he asked if this would not result in employers having a claim for financial compensation against the State.

Mr L Diale (ANC) asked what benefits were available to persons joining the Reserve Force and what their remuneration was.

Mr A Mlangeni (ANC) supported the proposed Amendment Bill.  He felt that the SANDF would be more effective in controlling the country’s borders than the SAPS.  He asked what was meant by the remark that the Bill was not considered to be urgent.  He asked what the age limit was for reservists.  He wanted to know how long the training period was for members of the Reserve Force and if the training provided was adequate.

Mr L Tolo (COPE) requested further clarity on the problems experienced with the leader group of reservists.

The Chairperson asked why the Exemption Board was not in place and why legislation was required to enforce the call-up of reservists rather than enforcing the contracts signed by the members on joining the Reserve Force.

Mr Mukesh Vassen, Parliamentary Legal Adviser, responded to earlier questions concerning the Constitutional rights of employers and employees.  Sections 22 and 23 in the Bill of Rights covered labour relations and Section 104 dealt with unfair discrimination.  Although Section 104 had to be considered in more detail, he did not consider that the Constitutional rights of employers would be infringed by the proposed legislation.

The Chairperson advised that the expertise of the Parliamentary legal services and the Office of the State Law Adviser were available to the SANDF Reserves if required.

Gen Andersen emphasised that there were currently sufficient numbers of volunteers to serve on the Reserve Force and the proposed legislation was not urgently required to address any lack of volunteers.  The SANDF Reserves proposed two alternatives to boosting the number of volunteers joining the Reserve Force.  One alternative was to reduce the MSDS training period from to years to one year.  The second year of the current MSDS training period included the foreign deployment of the recruit.  The second option was to revert to a system of direct recruitment, particularly in non-infantry positions.

Gen Andersen pointed out that employers were not compelled to pay the salaries of reservists who were called up to serve.  Reservists received a stipend during the call-up period but employers were encouraged to make up any loss of earnings.  The only additional training currently provided was the two-month pre-deployment training course.  The SANDF was reluctant to invest in additional training unless the Reserve Force could be guaranteed.  The training of the members of the Reserve Force was considered to be adequate as reservists completed the two-year MSDS training course as well as the pre-deployment training.  The standard of training was high and the performance of the member was evaluated at the completion of the training period.  The legislation made provision for a guaranteed Reserve Force and provided the incentive for additional investment in the training of reservists.

Gen Andersen confirmed that reservists were only paid for the period of service.  A small bonus was payable if the minimum period was served.  The period of call-up could be anything from one day to nine months.  The legislation was necessary to allow for the call-up of the Reserve Force in times other than war.  There had been occasions during the previous two years that the Reserve Force had to be called up with only four hours of notice.  The age limit for reservists was age 65 and members were required to be fit and have no criminal record.  The age limit may be extended if the member had unique and essential skills.

Gen Andersen explained that the employer liaison forums were recently introduced and he was not yet in a position to provide more information on the effectiveness of the initiative.  He said that the legislation would provide a clear understanding of the obligations of both employers and employees and the enforcement of the Act would be less costly and time-consuming than enforcing individual contracts.  The Exemption Board provided for a more structured means of considering applications for exemption or deferment from reservists than the current process where the unit commander decided on applications.  Community leaders would serve on the Exemption Board.

The Chairperson noted that the discussion on the proposed legislation would continue before the Bill was finalised.

Mr P Groenewald (FF+) asked for confirmation that there was no obligation on the employer to pay the salary and benefits of reservists who were called up.

The Chairperson said that this issue had to be clearly addressed in the legislation.

Mr D Smiles (DA) asked how military veterans and members of units in the previous Defence Force were dealt with in the Reserve Force.

Mr Maynier asked for the reasons why the MSDS system had failed to provide adequate numbers of volunteers to serve in the Reserve Force.

Gen Andersen replied that the SANDF Reserves considered each category of military veterans, the training that the veterans had received and the results of the medical examination the veterans had to undergo.  Most veterans were older than age 40 and had served more than 15 years ago.  If all was in order, veterans were absorbed in the Reserve Force.  The MSDS was not considered to be a failure as more than 10,000 soldiers were recruited per annum.  Many soldiers remained in the regular Defence Force and did not exit the system to join the Reserve Force.  The SANDF Reserves planned to simultaneously build up the expertise in the Reserve Force and to increase membership to 72,000 over a period of time.

Briefing by the Reserve Force Council (RFC)
Rear-Admiral Lukas Bakkes (Retired), Director and Legal Adviser of the Reserve Force Council, presented the Council’s comments on the proposed Amendment Bill.  He reiterated that members of both the regular Defence Force and the Reserve Force served on a voluntary basis.  The results of a study conducted by the Council were attached to the submission from the RFC.

Brigadier General John Del Monte, National Vice Chairman and Parliamentary Liaison Officer of the Reserve Force Council explained the involvement of the RFC in international reserve force organisations.  South Africa was the only African and southern hemisphere member of the International Confederation of Reserve Officers, which was a non-political organisation with members from both NATO-aligned and non-aligned nations.  Legislation governing reservists were in place in most countries reliant on volunteers to serve in defence forces.

The Reserve Force Council was actively involved in the formulation of the Bill and supported the proposed amendments.  The Council suggested that the Minister of Defence was empowered to delegate the authority to sign the contracts with reservists to the Chief of the Defence Force or another appropriate officer in order to relieve the administrative burden on the Minister.  The proposal that a reminder was issued to reservists who did not sign contracts within eighteen months was considered to be impractical.  The Council suggested that the contracts initially entered into with new members of the Defence Force made provision for the additional period of five years to be served in the Reserve Force.  A further suggestion was that the contracts were consistently referred to as “Military Service Contracts” in the legislation.

Discussion
The Chairperson advised that the Council had submitted two documents to the Committee for consideration.  One document dealt with issues concerning the military command structure but would not be discussed during the proceedings.  The second document concerned the Amendment Bill.

Mr Mlangeni asked what the main functions of the Reserve Force Council were.

Adm Bakkes explained that the Council was mainly an advisory and consultative body, established in terms of Section 48 of the Defence Act.

The Chairperson requested further clarity on the proposals concerning the delegation of the powers of the Minister and the obligations on the Minister and the Chief of the Defence Force in terms of the proposed legislation.  He asked if the proposed amendments were intended to address possible tensions in the relationship between the Minister and the Chief of the Defence Force.

Ms S Ndabeni (ANC) asked what the composition of the Military Command was and what the challenges were concerning the Reserve Force.

The Chairperson explained that the second submission dealt with the issues concerning the Military Command but was not under discussion during the current proceedings.

Adm Bakkes explained that the Defence Act specified that the Minister was responsible for signing the contracts with Reservists.  The Council recommended that the Minister was empowered to delegate this responsibility to the Chief of the Defence Force or another authorised officer merely for practical reasons as the signing of thousands of individual contracts with reservists placed an untenable administrative burden on the Minister.

The Chairperson was concerned that the proposed legislation did not compromise the authority and powers of the Minister and the Chief of the Defence Force.  He reiterated his earlier concerns regarding the intention of the proposed regulations to govern the relationship between the Minister and the Chief of the Defence Force.

Mr Groenewald suggested that the State Law Advisers commented on the legal technicalities concerning the powers and the delegation of powers of the Minister and the Chief of the Defence Force.

Mr Mongameli Kweta, Senior State Law Adviser, Office of the State Law Adviser, explained that legislation might describe the powers and obligations of the Minister and could include provision for the delegation of power to another person.  The provision for the delegation of authority might specify that the person to whom powers were delegated to could not in turn delegate the authority to another.  The Minister was the political head of the Defence Force.  He pointed out that the contracts signed by reservists were referred to as a “contract of service” and the Council’s suggestion that the terminology used was “military contract of service” would necessitate a substantial number of changes to the applicable legislation.

Mr Vassen understood that the proposal to make provision for the Minister to delegate the signing of the contracts was a practical issue, motivated by the untenable administrative burden to sign thousands of individual contract documents.

Gen Andersen assured the Chairperson that the relationship between the Minister, Deputy Minister and the Chief of the Defence Force was extremely good and that there was no perception of any tension between the two parties.  The issue was not the delegation of powers but the subsequent delegation by the delagatee.

Adm Bakkes confirmed General Andersen’s observation and stated that the proposal was a technical provision to relieve the Minister of an onerous administrative burden to sign contracts and to issue reminders if the contracts were not signed by reservists after 18 months.  He said that the reference to the contracts had to be consistent in both the Amendment Bill and the Act.

Ms Mamoloko Kubushi, Chief of Defence Legal Services, Department of Defence and Military Veterans explained that the President appointed the Military Command.  There was some confusion about whether the Military Command was limited to the Chief of the Defence Force or included the members of the Military Command Council.  The proposal to specify who the members of the Military Command were in the legislation was intended to remove any confusion.  The Military Command comprised the Chief of the SANDF, the four service Chiefs, the Chief of the Defence Intelligence Service and the Chief of the SANDF Reserves.

Adm Bakkes advised that the Council supported the Department’s proposal concerning the Military Command and suggested that the SANDF Reserve was commanded by an officer in the Reserve Force rather than the SANDF.

Mr Diale asked what the relationship between the RFC and the Reserve Force was.

Adm Bakkes explained that the RFC was an advisor and consultative body, representing the members of the Reserve Force.  The Council was not in the line of command but worked very closely with the Reserve Force.  Members of the Council were elected by the members of the Reserve Force and the Minister appointed the Councillors from the elected members.

Mr Groenewald noted that up to 12 Councillors served on the RFC.  The pointed out that the RFC must be consulted on all legislation and matters pertaining to the Reserve Force.

Mr Maynier suggested that the MSDS as the system to provide reservists was reviewed as 93% of the soldiers exiting the MSDS did not join the Reserve Force.

The Chairperson acknowledged Mr Maynier’s concerns and advised that the Committee would consider the report on the MSDS included in the annual report from the Secretary of Defence.

Adm Bakkes gave the assurance that the Council would be happy to appear before the Committee to provide more information on the formulation and functioning of the RFC.

The meeting was adjourned.