Draft Defence Bill; Military Disciplinary Code; Military Ombudsman: briefing

A recent High Court decision had found certain sections of the Defence Act, that is, the Military Disciplinary Code, to be unconstitutional. As a result a moratorium had been declared on certain cases until such time the new legislation has been put in place. It was therefore extremely urgent to put ‘emergency’ or ‘stop-gap’ legislation in place. If deemed advisable, when the new Defence Act was put before the Committee, the necessary amendments could be made and the Military Disciplinary Code once again included in the Defence Act.

Adv Kuzwayo took the committee through the findings of the High Court:

The convening authority has arbitrary powers (is part of the decision-making process in the military court) which is unconstitutional.

Courts are held in camera.

The prosecutor has no discretion to withdraw the charges without the authority of the convening authority.

The existing Act says that members of the court do not necessarily have to have legal qualifications.

The accused has no right of appeal.

No period of grace was granted by the High Court judge, hence the need to proceed urgently with the necessary legislation. Mr Selfe said that also in the interest of individuals awaiting disciplinary action, the time factor was of importance.

General Ishmael said that the Department hoped that within this week the Military Disciplinary Code Bill would be put before the Committee. It then has to be taken to the CCSI and then on to Cabinet. He continued by saying that this so-called ‘emergency’ legislation was very "workable" and he was confident that the Constitutional Court would approve of it in its new form.

Military Ombudsman

There appeared to be general dissatisfaction with the post as advertised by the Public Protector’s Office. The committee had previously agreed that the appointee would fall under the jurisdiction of the Public Protector’s Office. The Acting Chairperson, Ms Modise, said the advertisement read as if "a clerk" was being sought and not as envisaged: a person of considerable military experience and knowledge.

Arising from this discussion it was felt that the whole situation needed to be re-assessed and Mr Mashimbye (a committee member who had been party to the Public Protector’s interviewing process) was asked to brief the Committee. The briefing was held in camera.

[Ed: Status of each of the following items is indicated as complete except for those marked with an asterisk]

Item

Introduction

Application of the Act

Organisation of the Department of Defence

The Department of Defence

The Defence Secretariat

The Defence Force

Auxiliary Service

The Employment and Use of the Defence Force

Employment and use of the Defence Force

The Military Police

The conduct of Defence Intelligence

Directing Defence

The Defence of the Republic

Powers of the President in respect of the Defence Force.

Powers of the Minister in respect of the Defence Force

Powers, duties and functions of the Secretary for Defence

Powers, duties and functions of the Chief of the Defence Force

The Council of Defence

The Defence Staff Council

The Reserve Forces Council

Rights and Privileges of Uniformed Members

Employment in the Defence Force

The Regular Force

The Reserve Force

Employment in the Defence Force

Officership in the Defence Force

Pay and Entitlements

Determination of Pay and Allowances

Security Clearances

Liability to Serve in time of War or during a State of National Defence or during a State of Emergency

Termination of Service

Suspension

* Membership of Labour/Trade Unions or Professional Groupings

Ceremonial, Decorations, Medals, Flags and Accoutrements

Cadets

Legal Assistance in Prosecution

Grievance Procedures

Sport in the Defence Force

Religious Observances in the Defence Force

Training

General Administration and Support

General provisions

Regulations

Applicability of Regulations relating to conditions of service

Protection of Defence assets

Exemptions

Non-liability of Department

Right of recourse in respect of expenditure for injuries of members

Indemnity in respect of trespass and nuisance

Legal proceedings against the Minister of Defence

Provisions applicable in War or during a State of National Defence or a State of Emergency

*Mobilisation

*Where service is to be rendered

*Emergency regulations

Discipline, Offences and Penalties

Application of the Military Discipline Code

Detention and Custody

*Offences and Punishments [see note 1 below]

Punishments

Visiting and Other Forces

Visiting forces

Forces operating in concert with one another

Transitional Arrangements

Notes:

1. The offences regarding membership of, recruiting for, inducing unions await discussion of the trade union section [par 33].