Principles 2

Application of Act 3

Conflict with other Acts 4

Authority of Parliament and national executive over defence and Department of Defence 5

Powers, functions and duties of President in respect of national defence and related matters 6

Powers, functions and duties of the Minister of Defence 7

Delegation of powers by Minister 8

Composition of Department of Defence 9

Defence Secretariat:

Establishment of Defence Secretariat 10

Secretary for Defence 11

Powers, duties and functions of Secretary for Defence 12

Delegations of Powers by Secretary 13

Departmental investigations by Secretary for Defence 14

South African National Defence Force:

South African National Defence Force 15

Composition of South African National Defence Force 16

Organisation of South African National Defence Force 17

Chief of the South African National Defence Force 18

Command by Chief of the Defence Force 19

Powers, duties and functions of Chief of the Defence Force 20

Delegation of powers by Chief of the Defence Force 21

The Auxiliary Services:

Establishment of Auxiliary Services 22

Term of Service 23

Conditions of Service 24

Antecedent auxiliary services 25

Authorisation by President and Minister for the employment of the Defence Force 26

Employment in co-operation with South African Police Service 27

Members of Defence Force [employed in co-operation with South African Police Service] to have police powers 28

Minister to direct place where employment is to take place 29

Definitions pertaining to chapter 30

Appointment of military police officials 40

Functions, powers and duties of military police officials 41

Definition of defence intelligence 42

Establishment of a Defence Intelligence Division as the intelligence service of the Department of Defence and Armscor 43

Chief of the Defence Force deemed to be Head of Defence Intelligence 44

Application of defence intelligence within Department of Defence 45

Co-operation by the Defence Intelligence Division with other intelligence services 46

Counter-intelligence by the Defence Intelligence Division 47

Determination of security classification of Defence information 48

Steps to be taken regarding individual whose security clearance has been refused 49

Notification of security clearance or refusal thereof 50

Personnel Security Review Board 51

Inspector-General of Department of Defence to monitor the Defence Intelligence Division 52

Department of Defence may be authorised to assist Defence Intelligence 53

Protection of sources of information 54

Establishment of Council of Defence 55

Composition of Council of Defence 56

Rules and procedures of Council of Defence 57

Functions of Council of Defence 58

Establishment of Defence Staff Council 59

Composition of Defence Staff Council 60

Rules and Procedures of the Defence Staff Council 61

Functions of the Defence Staff Council 62

Other Councils may be established within Department 63

Establishment of Reserve Force Council 64

Chiefs of Divisions to be responsive to Secretary for Defence and Chief of the Defence Force 65

Application 66

Definition 67

Specific Limitations 68

Application 69

The Regular Force 70

The Reserve Force 71

Conditions of Employment in the Defence Force 72

Commissioned Officers in the Defence Force 73

Pay and Entitlements 74

Protection of Members on Active Service 75

Compensation in case of death, injury or disability 76

Liability to serve in a time of war, during a state of national defence or during a state of emergency 77

Suspension of a Member 78

Termination of Service of Members of the Regular Force 79

Legal representation for members 80

Procedures for Redress of Grievances 81

Religious Observances in the Defence Force 82

Labour rights for members of the Regular or Reserve Force or any auxiliary service 83

Defence Training Institutions 84

Discipline 85

Appointing Areas for Training 86

Exemption from, or deferment of training or service and the Exemption Board 87

Application for exemption from or deferment of training and service in the Defence Force 88

Powers and duties of the Exemption Board in regard to application for exemption from or deferment of training and service 89

Offences by witnesses summoned or subpoenaed by the Exemption Board 90

Institution of decorations and medals 91

Rules and Regulations 92

Award of decoration and medals 93

Wearing of decorations and medals 94

Order of precedence 95

Display of insignia 96

Antecedent honours and other insignia 97

General powers of Minister 98

Regulations 99

Protection of Defence Assets 100

Exemptions of Defence Force 101

Exclusion of liability 102

Right of recourse in respect of expenditure for injuries of members 103

Indemnity in respect of trespass and nuisance 104

Legal proceedings against the Department 105

Declaration of a State of National Defence 106

Mobilisation during a State of National Defence 107

State of National Defence Regulations 108

Agreements 109

Service by members of the Defence Force in fulfilment of an international obligation 110

Attachment of personnel 111

Command relationships when members of the Defence Force are serving under the control of an International Body 112

Mutual powers of command 113

Visiting Forces:

Discipline and internal administration of visiting forces 114

Relations of visiting forces to the civil power and civilians 115

Deserters from other forces 116

Inquests on and removal of bodies of deceased members of visiting forces 117

Boards of inquiry 118

Offences under the Act 122

Specific Offences relating to discrimination, offensive behaviour and sexual harassment 123

Repeal of Laws and Savings 124

Short Title and Commencement 125

1. (1) In this Act, unless the context otherwise indicates –

(2) Any reference in this Act to a year, when used in conjunction with an ordinal numeral adjective to denote the age of a person shall be construed as a reference to the calendar year in which the age indicated by such ordinal numeral adjective, is attained by such person.

(3) Any reference in this Act to any liability to render service in the Defence Force shall be construed as including a liability to undergo training therein.

(4) Whenever in this Act reference is made to any rank, it shall include the equivalent of such rank in any Service.

2. The Minister and any organ of state, as well as all members of the Defence Force and employees of the Department, shall, in exercising any power or function under this Act, have regard to the following principles:

3. Unless the context indicates otherwise, this Act shall apply –

4. If any conflict relating to any matter regulated by or under this Act arises between this Act and the provisions of any other law, save the Constitution or any later Act expressly amending this Act, the provisions of this Act shall prevail.

5. The Department of Defence and the Defence Force shall in all aspects be subject to the authority of Parliament and the national executive.

6. (1) The President as head of the national executive –

(2) The President as Commander-in-Chief of the Defence Force –

7. (1) The Minister shall be responsible for –

(2) The Minister may also –

8. The Minister may in writing authorise the –

within their respective fields of responsibility, to exercise on behalf of the Minister any power which the Minister may have in respect of the Department of Defence, except the authorisation of any employment of the Defence Force in terms of section 26(9)(a) to the Chief of the Defence Force.

9. The Department of Defence shall comprise –

10. (1) The Defence Secretariat which has been established in terms of section 204 of the Constitution and which is in existence immediately prior to the commencement of this Act, shall under that proper name continue as the Defence Secretariat.

(2) The Minister may, notwithstanding the provisions of section 3(3) of the Public Service Act, 1994 (Proclamation No. 103, 1994), establish, amalgamate or abolish divisions, sections and sub-sections in the Secretariat.

(3) The Secretariat –

(4) Any member of the Defence Force who so serves in the Secretariat shall obey and give due regard to the instructions and directions of his or her superior in the Secretariat, irrespective of whether such superior is a civilian or a military member of the Department.

(5) The Secretariat shall within the contemplation of section 204 of the Constitution, function under the direction of the Minister.

11. (1) The President/Minister shall, subject to the laws governing the public service, appoint a person to the office of Secretary for Defence who shall be –

(2) The Secretary shall serve in that office for the period or periods of service and subject to the terms and conditions of service otherwise applicable to heads of department under the laws governing the public service and shall receive the salary, benefits and privileges to which such a head is entitled.

(3) The Secretary must be a citizen of the Republic and shall not be a member of the Defence Force.

12. The Secretary shall –

13. (1) The Secretary may, subject to the provisions of section 15 of the Exchequer Act, 1975 (Act No. 66 of 1975), and such other restrictions or conditions as may be laid down in law, delegate in writing any power conferred upon him or her by or under any provision of this Act or any other law to –

whether with or without the authority to delegate such power in writing to a person or holder of any post or office determined by the Secretary (or, in respect of paragraphs (c), determined by the Chief of the Defence Force), and such power shall, if it has been so delegated, be exercised subject to such conditions and instructions as the Secretary may determine.

(2) The Secretary may at any time revoke in writing any delegation, authority or determination under sub-section (1), and no such delegation of a power shall prevent the exercise of such power by the Secretary himself or herself.

(3) Any delegation of a power by the Secretary under this section shall remain in force notwithstanding the vacating by a particular person of the office of Secretary for Defence, until it is revoked or amended by a subsequent Secretary or person acting as Secretary for Defence.

(4) Any delegation of a power by the Secretary for Defence who immediately prior to the commencement of this Act is so serving as Secretary and which could have been made under the provisions of this section had it been in force at that time, shall be deemed to have been made by virtue of this section.

14. The Secretary may in respect of any matter concerning his or her capacity as head of department or accounting officer of the Department –

15. (1) The South African National Defence Force which has been established in terms of section 199(1) of the Constitution and which is in existence immediately prior to the commencement of this Act, shall under that proper name continue as the defence force of the Republic.

(2) The Defence Force shall have the primary object of defending and protecting the Republic, its territorial integrity and its people in accordance with the provisions of the Constitution, this Act and any other law which may from time to time be applicable and of force as well as in accordance with customary international law and international agreements binding on the Republic.

(3) The South African National Defence Force shall be the only lawful military force of the Republic.

(4) The Defence Force shall consist of –

(5) Persons who are officers or employees employed in terms of the Public Service Act, 1994, but who may not be members of the Secretariat, may serve in posts within the Defence Force.

16. The Defence Force shall be composed of the –

17. (1) The Defence Force shall consist of the following Services –

and any other structural component as the Minister may authorise. Such structural component may consist of members of any one or more or all of the said Services or both or any one of the Regular and Reserve Forces.

(2) Notwithstanding sub-section (1), the Chief of the Defence Force or an officer authorised thereto by him or her, may establish such temporary task force headquarters and temporary task forces, groups, elements or units as may be required for any military exercise or for any military operation.

(3) The Defence Force shall be structured in such a way that different authorities under the Chief of the Defence Force will, respectively, prepare combat-ready forces and employ allocated task forces in military operations.

18. (1) The President as Commander-in-Chief of the Defence Force, shall appoint the Chief of the South African National Defence Force.

(2) The Chief of the Defence Force who immediately prior to the commencement of this Act is serving as the Chief of the Defence Force, shall be deemed to have been duly appointed under this section and shall continue to serve in that capacity under the terms and conditions of service of his or her existing appointment for the remainder of the period of service of such appointment.

(3) The Chief of the Defence Force shall serve in that capacity for the period or periods of service, subject to the terms and conditions of service otherwise applicable to the head of department under the laws governing the public service and shall receive the salary, benefits and privileges to which such a head is entitled.

(4) The Chief of the Defence Force must be a citizen of the Republic and be a member of the Regular Force.

19. The Chief of the Defence Force –

20. (1) The Chief of the Defence Force shall be the principal adviser to the Minister on any military, operational and administrative matter within the competence of the Chief of the Defence Force.

(2) The Chief of the Defence Force shall have the power and be charged with the functions and duties and be responsible for –

21. (1) The Chief of the Defence Force may, subject to such restrictions and conditions as may be laid down in law, delegate in writing any power conferred upon such Chief by or under the provisions of this Act or any other law –

whether with or without the authority to further delegate such power in writing to a person or holder of any post or office determined by that Chief (or, in respect of paragraph (c), determined by the Secretary), and such power shall, if it has so been delegated, be exercised subject to such conditions and instructions as that Chief may determine.

(2) That Chief may at any time revoke in writing any delegation, authority or determination under sub-section (1) and no such delegations of power shall prevent the exercise of such power by that Chief himself or herself.

(3) Any delegation of a power by that Chief under this section shall remain in force notwithstanding the vacating by a particular person of the office of Chief of the Defence Force until it is revoked or amended by a subsequent Chief of the Defence Force.

(4) Any delegation of a power by the Chief of the Defence Force who immediately prior to the commencement of this Act is so serving as such Chief and which could have been made under the provisions of this section had it been in force at that time, shall be deemed to have been made by virtue of this section.

22. The Minister may establish and designate for the purpose of support to the Defence Force, or any portion or part thereof, such auxiliary service or services as he or she may consider necessary.

23. The Minister may, in his or her discretion, provide for an auxiliary service whose members serve for a period as the Minister determines.

24. The organisation and conditions of service in any such auxiliary service, including enrolment prerequisites, enrolment, engagement, attestation, discharge, ranks, musterings, leave, duties, discipline, attire and any other matters convenient or necessary for the establishment, control and proper functioning of such auxiliary services, shall be as prescribed.

25. An auxiliary service which was in existence immediately prior to the commencement of this Act shall, under its existing name and in the way in which it was organised at that time, continue as an auxiliary service within the contemplation of this Act.

26. (1) Without derogating from the provisions of section 1, in this section –

"an international obligation of the Republic" [means] includes an international obligation of the Republic arising from –

"in defence of the Republic" means to protect the sovereignty, territorial integrity or people of the Republic against any military threat or against any threat to the constitutional order of the Republic;

"national-border control" means to protect the integrity of the national borders of the Republic on the land, at sea or in the air.

(3) Any authorisation by the President in terms of sub-section 2(a), shall be given by Presidential Minute under his or her signature: Provided that if, due to the urgency of the matter, any such authorisation cannot be given in time to avert serious consequences, authorisation may be given in any other practical way whereafter the President shall as soon as possible confirm that authorisation by Presidential Minute.

(4) The President shall, upon the Defence Force or any portion or member thereof having been employed by virtue of an authorisation under sub-section (2)(a) or (3), inform Parliament promptly and in appropriate detail of –

(5) If Parliament does not sit during the first seven days after any employment envisaged in sub-section (4), the President must provide the information required in that sub-section to the Chairperson of the Joint Standing Committee of Parliament on Defence.

(6) Parliament may on its reconvening and within seven days by resolution –

(7) Any parliamentary order in terms of paragraphs (b), (c) or (d) of sub-section (6), shall not affect –

(8) The Minister shall inform the President and Parliament at the earliest opportunity of any employment of the Defence Force by virtue of an authorisation given in terms of sub-section (2)(b) or (9)(a) and of –

27. (1) Authorisation for the employment of the Defence Force or any portion or member thereof in co-operation with the South African Police Service in terms of section 26(2)(a)(i), shall be limited to co-operation in the prevention and combating of crime and in the maintenance of public order, within the Republic.

(2) The employment of the Defence Force in co-operation with the South African Police Service shall be notified within twenty-four hours of the commencement thereof by notice in the Gazette and, upon such employment being discontinued, that fact shall likewise be notified within twenty-four hours of such discontinuation.

(3) Service in co-operation with the South African Police Service shall –

28. (1) Any member of the Defence Force who is used in terms of an employment [in co-operation with the South African Police Service by virtue of the President's authority issued] under section 26(2)(a)(i) and section 26(2)(b)(i), (ii) and (iv), shall –

(2) For the purposes of the exercising of such powers and duties by any member of the Defence Force who is used in accordance with sub-section (1), every statutory provision which confers or imposes any power or duty upon a member of the South African Police Service –

Provided that no member of the said Police Service shall be empowered to exercise command or control over any portion or member of the Defence Force and conversely, that no member of the said Force shall thereby be empowered to exercise command and control over any portion or member of the said Police Service, unless specifically provided for in an agreement.

29. (1) Subject to the provisions of sub-section (2), any employment by virtue of an authorisation under section 26(2)(a) or (b) or 26(9)(a), shall take place within or at such areas or places as the Minister may direct and such direction shall provide for the required access by the Defence Force to traverse property during the employment of the Defence Force: Provided that such access is reasonable and justifiable to achieve the aim of the employment.

(2) When, due to the urgency of circumstances referred to in section 26(9)(a), any member of the Defence Force has to be immediately employed for any service referred to in section 26(2)(b) before the Minister can act in terms of sub-section (1) of this section, the Chief of the Defence Force may direct that such employment is to commence immediately within or at the particular area or place involved: Provided that such direction shall lapse after twenty-four hours unless confirmed in writing by the Minister within that time.

(3) The Chief of the Defence Force shall inform the Minister as soon as possible of such direction by virtue of sub-section (2) and of the reasons therefor and the outcome thereof.

40. The Chief of the Defence Force or any person designated by him or her may appoint a member of the Regular Force or the Reserve Force as a military police official. A member so appointed shall be issued with, and whenever on duty carry, a prescribed identification card.

41. (1) A military police official may at any time and in any place perform police functions which include –

for the purpose of enforcing any provision of this Act, in so far as it is applicable to the Department of Defence or any member or any employee or any property thereof, or any person or any area or any land or any premises or any property under its protection or control.

(2) In the performance of any such police function, every military police official shall –

with respect to any person, entity or organisation, at any place, area or in or on any premises including any place or area to which an employment of the Defence Force is applicable.

(3) For the purpose of the exercising of such powers and duties by any military police official performing any military police function under this section, every statutory provision which confers or imposes any power or duty upon a member of the South African Police Service –

Provided that no member of the said Police Service shall thereby be empowered to exercise command or control over any military police official and, conversely, that no military police official shall thereby be empowered to exercise command or control over any portion or member of the South African Police Service.

(4) The provisions of section 217 of the Criminal Procedure Act, 1977 (Act No. 57 of 1977), in relation to a confession made to a peace officer other than a magistrate, a justice of the peace or a peace officer referred to in section 334 of that Act, shall apply mutatis mutandis to a confession made to a military police official in the exercise or execution of any function, power or duty referred to in this section.

(5) Any civilian arrested by a military police official is to be handed over to the South African Police Service as soon as possible when the arrest is effected in relation to any offence committed within the borders of the Republic.

42. In this Chapter "defence intelligence" also means –

as defined in the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994), irrespective of whether or not any such defence intelligence element consists in whole or in part of "domestic intelligence" or of "foreign intelligence" as defined in the said National Strategic Intelligence Act.

43. The Defence Intelligence Division which is in existence immediately prior to the commencement of this Act, is hereby established as the only defence intelligence service of the Department of Defence and Armscor within the contemplation of section 209(1) of the Constitution, and it shall under that proper name continue to function and conduct defence intelligence in accordance with the provisions of the Constitution, this Act, the National Strategic Intelligence Act, the Committee of Members of Parliament on and Inspectors-General of Intelligence Act, 1994 (Act No. 40 of 1994), and any other law which may from time to time be applicable and of force.

44. Notwithstanding the provisions of section 11(1)(a) and notwithstanding the appointment of any other person as Chief of the Defence Intelligence Division, the Chief of the Defence Force shall be deemed to be Head of Defence Intelligence, as defined in and for purposes of the Committee of Members of Parliament on and Inspectors-General of Intelligence Act. In addition, the Defence Intelligence Division shall function only within the parameters of activities defined in an appropriate mandate issued by the Minister to the Chief of the Defence Force and such mandate shall be in keeping with the National Strategic Intelligence Act.

45. Defence intelligence shall, as the case may be, be gathered, evaluated, correlated and interpreted or conducted, taken or instituted for –

46. The Defence Intelligence Division shall co-operate with other intelligence services and bodies created by or under law and shall participate or be represented in national intelligence co-ordinating structures as may be established by law.

47. Notwithstanding any provision to the contrary contained in any law, Defence Intelligence is hereby charged with and shall be responsible for the conduct of and for the institution or taking of measures and activities of counter-intelligence –

in accordance with the Constitution, any applicable law and any policy, procedure or norm determined by the Minister in this regard.

48. (1) The Minister may prescribe –

(2) A candidate, person, employee or member referred to in sub-section (1)(a) shall not be enrolled, appointed, promoted, conferred a commission or remain a member or be retained, unless such person has in accordance with the provisions of this Act and the regulations, been accorded and issued by Defence Intelligence with the appropriate prescribed or provisional grade of security clearance.

(3) No candidate, person, employee or member referred to in sub-section (1)(a) shall claim an automatic right by virtue of appointment to obtain, retain or be accorded a security clearance or any grade of security clearance.

(4) Defence Intelligence shall in accordance with the regulations and determinations made in terms of sub-section (1) of this section and section 7(1)(k), determine whether any security clearance or a specific grade of security clearance should be accorded to any person referred to in sub-section (1)(a), or be refused.

(5) The grade of security clearance (if any) accorded to a candidate, person, employee or member under sub-section (4) shall –

49. Any person who, by virtue of section 48(3) is deemed unfit for further membership or employment in the Department, may be discharged by the Minister from the Department of Defence.

50. (1) The Chief of the Defence Intelligence Division or an officer authorised by him or her, shall cause every candidate, person, employee or member or person under whose auspices the application was made, to be notified in writing of the determination made regarding such individual in terms of section 48(5).

(2) No grounds or reasons need be given or disclosed by the Chief of the Defence Intelligence Division, the Chief of the Defence Force, the Secretary for Defence or the Minister in respect of any security clearance which has been accorded in the grade applied for.

(3) Upon any security clearance or a particular grade of security clearance having been refused or any security clearance having been downgraded or withdrawn, the individual affected thereby shall with the notification in terms of sub-section (1), be informed of the grounds and reasons for such refusal, downgrading or withdrawal: Provided that no counter-intelligence measure or activity conducted, instituted or taken, or any source of information or the identity of any person involved in the collection or giving of information with regard to that security screening investigation and evaluation, shall be revealed or be alluded to in such a way which will enable a reasonable person to identify any such measure or activity conducted, instituted or taken or any such source of information or the identity of any such person involved in the said collection or giving of information.

(4) If –

on account of information which, after evaluation causes Defence Intelligence to be reasonably of the opinion that the individual concerned may no longer be employed for any purpose or in or at any level or capacity as before without that individual possibly being a security risk or possibly acting in any manner prejudicial to the interests of the Republic, the individual affected by such decision or opinion shall be deemed unfit for, as the case may be, further membership in the Department or for further employment in the Office of the Minister of Defence or, to be used for or in connection with any work or other purpose referred to in section 47(d).

(5) No security clearance or specific grade of security clearance may be refused, downgraded or withdrawn without the individual who will be affected thereby, after having been informed of such a possibility, afforded reasonable opportunity to present information regarding such matter.

51. (1) The Minister shall establish a Personnel Security Review Board which shall consist of –

(3) The Personnel Security Review Board shall review any determination made in terms of section 48(5) upon any objection against such determination having been referred to that Board in accordance with the provisions of section 50(6)(c).

(4) The Personnel Security Review Board may, if necessary, require such further enquiries to be made or information or explanations to be furnished in respect of the matter under review, as it deems fit, and may in addition direct Defence Intelligence to undertake a further investigation or enquiry in relation to any aspect of the matter under review and to submit its findings and recommendations in that regard to the said Board.

(5) Upon having duly considered any matter before it, the Personnel Security Review Board may –

(6) The provisions of sub-sections 50(2) and 50(3) shall mutatis mutandis apply in relation to any review, procedure or determination made by the Personnel Security Review Board under this section.

(7) In giving effect to any determination made by the Personnel Security Review Board under sub-section (5)(b) of this section, Defence Intelligence shall cause the certificate referred to in section 48(5)(a) to be amended accordingly or to be cancelled (as the case may be).

52. Defence Intelligence personnel structures, law and procedure adherence and activities shall be monitored by the Inspector-General of the Department of Defence for purposes of ensuring adherence to all applicable laws, Ministerial policies and prescriptions in terms of section 7(1)(k) and in compliance with delegations.

53. Notwithstanding any provision to the contrary contained in any law, the Chief of the Defence Force may authorise any member, employee or portion of the Department of Defence (not being a member or employee of or a portion forming part of Defence Intelligence), to assist Defence Intelligence to enable it to conduct defence intelligence: Provided that, in the case of Public Service Act Personnel, the Head of the Department must concur with such authorisation.

54. All sources of information of Defence Intelligence shall be protected. The Chief of the Defence Force or Chief of the Defence Intelligence Division cannot be legally compelled to reveal the identity of any source of information.

55. The Council of Defence which is in existence immediately prior to the commencement of this Act, is hereby established as the Council of Defence and it shall continue to function in accordance with the provisions of this Act.

56. The Council of Defence shall consist of –

57. The rules and procedures for the conduct of business by the Council shall be determined by the Minister.

58. (1) The Council of Defence shall serve as a consultative forum for the Minister (assisted by the Deputy Minister of Defence), the Secretary and the Chief of the Defence Force regarding matters affecting the functions which the Minister exercises in respect of the Department of Defence and matters connected therewith.

(2) All recommendations which have been approved by the Defence Staff Council for submission to the Minister, shall be submitted to this Council for consideration by the Council and decision by the Minister.

(3) The Minister may consult with the Council for the determination and co-ordination of any policy, decision or directive for or in respect of the Department of Defence and for any other purpose connected with the Minister's functions which the Minister may determine.

(4) All proceedings and decisions taken at meetings of the Council shall be minuted and retained in perpetuity.

59. The Defence Staff Council which is in existence immediately prior to the commencement of this Act, is hereby established as the Defence Staff Council and it shall continue to function in accordance with the provisions of this Act.

60. The Defence Staff Council shall consist of –

61. The Constitution for the Defence Staff Council shall be determined by the Minister.

62. The Defence Staff Council shall –

63. (1) The –

may establish other councils at such headquarters level as may be necessary and such councils shall be constituted and perform such functions as the Defence Staff Council may determine.

(2) All councils at such headquarters level which are in existence immediately prior to the commencement of this Act shall be deemed to have been established in terms of the provisions of this section.

Establishment of the Reserve Force Council

64. (1) The Minister may establish a Reserve Force Council.

(2) The Minister may appoint not less than nine and not more than eighteen members to the Reserve Force Council and shall appoint one of the members as chairperson, in such manner as shall be prescribed.

(3) The Council shall function in accordance with the a constitution as approved by the Minister.

(4) The Council shall be a consultative and advisory body representing the Reserve Force in order to promote and maintain that Force as an integral part of the Defence Force and it shall be consulted beforehand in respect of any proposed legislative and significant administrative measures affecting the Reserve Force.

(5) The Minister, the Secretary and the Chief of the Defence Force may commission the Council to execute any task or programme or to investigate any matter pertaining to the Reserve Force or its interests.

(6) The Council shall not have any powers of command.

(7) The Minister may by regulation make any other determination regarding the Reserve Force Council that may be required.

65. Every Chief of Division serving at the Department of Defence Headquarters shall, notwithstanding any such Chief serving within either the Defence Secretariat or the Defence Force and notwithstanding the provisions of sections 10 and 15, be responsive to the needs of and requests for assistance by the Secretary or the Chief of the Defence Force under whose authority or command, as the case may be, such Chief of Division is not directly serving.

66. The provisions in this Chapter shall apply to all members of the Defence Force and where specified, to persons employed in terms of the Public Service Act, 1994, in the Department.

67. For the purposes of this chapter, "military discipline" shall mean, but not be restricted to command and control or order exercised over military personnel and the system of military law, rules, regulations and lawful practices and conduct used to maintain and sustain the command and control or order.

68. Without derogating from the nature and extent of the limitation of rights as they may apply in any other law, the nature and extent of limitation to certain rights includes the following:

(1) Privacy – In the interests and for the purposes of military security and occupational safety, military members and employees of the Department may from time to time be subjected to, and endure -

(2) Freedom of Expression – In the interests of security and protection of information, military members and civilian members of the Department may be subjected to restrictions in communicating any kind of information, and where appropriate, may be subjected to prohibition of communication of information.

(3) Assembly, Demonstration, Picket and Petition – The right of Regular members of the Defence Force, serving members of the Reserve Force and members of any auxiliary service to peaceful and unarmed assembly, demonstration, picket and petition may be subjected to restrictions in the interest of military discipline and shall be prescribed.

(4) Freedom of Association – Without derogating from generality of the provisions contained in sub-section 6, the right of Regular members of the Defence Force to associate or to form an association alone or with certain types of organisations shall be subject to prescribed regulations.

(5) Freedom of Movement and Residence –

(6) Labour Relations – In the interests of national security and of maintaining the Defence Force as a structured and disciplined military force the rights of members of the Regular and Reserve Forces and members of any auxiliary force to join and participate in the activities of trade unions shall be as prescribed.

(7) Access to Information – In the interests of national security, access to information in the Department may be restricted.

69. Unless indicated to the contrary or specifically stipulated the provisions of this Chapter shall apply to members of both the Regular Force and the Reserve Force.

70. (1) The Regular Force shall consist of men and women, of or above the age of eighteen years, but not exceeding the age of sixty-five years, whether in permanent or temporary capacity, and shall be organised in such a manner as may be prescribed.

(2) The terms and conditions of service as well as the conditions for and procedures regarding enrolment, appointment, promotion and transfer, excluding remuneration, in the Regular Force, shall be prescribed in the Regulations.

(4) No person may enrol in the Regular Force unless he or she is a citizen of the Republic, provided that the Minister may, if a need for a specific service or capacity exists which cannot be realised by any other means, authorise the enrolment of a non-citizen in a temporary capacity for a term not exceeding three years at any one time.

(5) A member of the Regular Force shall place the whole of his or her time at the disposal of the State, and to that end shall be prohibited from performing or engaging himself or herself to perform remunerative work outside his or her employment, and in particular, is prohibited from –

unless prior authority is obtained annually from the Head of Department or as delegated by him or her.

(6) Should a Regular Force member be granted permission to embark on a separate yet coincidental career or careers to his or her employ in the Defence Force, the interest of the State shall take precedence when conflict between the Defence Force career, on the one hand and the other career or careers, on the other hand arise and the member concerned shall be obliged to resign or temporarily vacate his or her position in his or her other careers as directed by the Head of Department.

(7) A member of the Regular Force may not -

(8) In terms of his or her terms and conditions of service the Minister may place any member of the Regular Force at the disposal of the military authorities of any State or international organisation or cause any member to be temporarily attached to the military authorities of that State or international organisation, subject to an appropriate agreement.

(9) Members of the Regular Force are deemed to be officers and employees in terms of the laws governing the Public Service for purposes of maintaining discipline over persons employed in terms of the Public Service Act, 1994 in the Department.

71. (1) The members of the Defence Force who immediately prior to the commencement of this Act were serving voluntarily in a component known as the Citizen Force or the Commandos shall be deemed to have been enrolled as members of the Reserve Force under this section and all rights, privileges, duties, capacities, standing and legal position not excluded by this Act that accrued to them immediately prior to the commencement of this Act, shall be deemed to have accrued to them under this Act and shall continue to accrue to them under the terms and conditions of service for the remainder of the predetermined period of the said voluntary service.

(2) The terms and conditions of service as well as conditions for and procedures regarding enrolment, appointment, promotion and transfer, excluding remuneration, in the Reserve Force shall be as prescribed.

(3) All benefits and allowances accruing to a member of the Reserve Force, including a travel allowance scheme, shall be as prescribed.

(4) Any member of the Reserve Force may, on a voluntary basis, render service with or without remuneration in addition to service stipulated in his or her contract of service under such terms and conditions as may be prescribed.

(5) A member of the Reserve Force, while in service, may not -

(6) The Reserve Force shall be organised, and its members be trained and render service, at any headquarters, service, formations, units, personnel musterings or military training institutions as may be required.

(7) Any member of the Reserve Force who wishes to undergo special training which cannot be fitted in within the bounds of normal Reserve Force service, may, if he or she meets the requirements for such training, enter into a specific contract with the Defence Force to undergo such training.

(8) Every member of the Reserve Force shall be provided with the basic prescribed uniform, distinctive marks, badges and accoutrements at State expense and shall maintain these during his or her service contract.

72. (1) The maximum age to which a member may serve shall be prescribed.

(2) A member of the Regular or Reserve Force, may be required and be obliged to perform service at any time and place where the Defence Force is employed, including outside the Republic. Exemptions will be dealt with as prescribed.

(3) No member of the Regular Force shall be eligible for nomination, election or appointment as a member of Parliament or any other legislative body. Alternatively should the member wish to take up such a nomination and appointment, such member will be required to resign.

(4) No member of the Regular Force may be a member of the Reserve Force and vice versa.

(5) No member of the Defence Force may be a member of the South African Police Service and vice versa.

(6) No member of the Defence Secretariat may serve as a member of the Reserve Force.

(2) In order to qualify for a permanent commissioned appointment in the Defence Force, the eligible person shall –

(3) The holding of a permanent commission is a lifelong privilege at the pleasure of the President, and shall not be cancelled without the holder thereof being notified in writing of any complaint or charge made against him or her and of any action proposed to be taken in respect thereof, nor without his or her being called upon to show cause in relation thereto: Provided that where the holder thereof cannot be traced after a diligent search that is appropriate in the circumstances, such commission may be cancelled without such notification as prescribed.

(4) The Minister may confer a temporary commission in the Defence Force on any citizen of the Republic or any other person who is a member or who is eligible to become a member of the Defence Force, if such person complies with the regulations for such appointment and there being an appropriate post in which such person can serve.

(5) All persons appointed with a temporary commission shall hold their commissions at the pleasure of the Minister.

(6) An officer may by notice in writing tender the resignation of his or her commission and any such notice shall take effect upon the expiration of a period of three months after the date upon which it is lodged or such earlier date as may be approved by the conferrer of the commission: Provided that an officer shall not in consequence of his or her resignation be exempt from any service or training for which he or she may be liable under this Act, except if so permitted by the Exemption Board and on the payment of any monies stipulated in a contract pertaining to such education or training he or she may have undergone or be in the process of undergoing at State expense.

(7) The commission of any officer shall terminate and shall be deemed to have been cancelled –

(9) Officers who have retired from the Defence Force and while still in service held permanent commissions, may retain the use of their rank after they have so retired and are no longer in service, but they shall append the appellation "Rtd" whenever it is used.

(10) Commissioned officers from other countries who are attached to the Defence Force in terms of this Act, may be allowed to hold temporary appointments in the Defence Force and be entitled to all privileges of officership bestowed by virtue of their rank.

74. (1) Members of the Regular and Reserve Forces shall receive such pay and salaries and entitlements which include 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.

(2) The pay and entitlements of any member of the Defence Force shall be temporarily withheld or suspended if he or she, without authority, does not report for duty at, or is absent from his or her designated place of work or duty as instructed or ordered for a period exceeding seventy-two hours.

(2) Subject to the provisions of the Moratorium Act, 1963 (Act No. 25 of 1963) and any other law relating to the protection of citizens or non-citizens who are in active service on behalf of the Republic, no appropriations, including seizures or attachments, shall be made under or by virtue of any garnishee or sequestration order issued against a member of the Defence Force who is employed on active service in time of war or during a state of national defence or in fulfilment of the Republic’s international obligations, nor shall any such appropriations be made against pay, entitlements or property of the member under or by virtue of any writ of execution, except appropriations under or by virtue of a maintenance order issued against the said member.

(4) An appropriate death and disabilities benefit insurance scheme shall be negotiated and provided by the Department of Defence on behalf of members to which such members shall belong and for which premiums are to be recovered directly from the pay or entitlements payable to such members.

76. (1) There shall be established a Compensation Board (hereinafter called the Board) whose members shall be appointed by the Minister and receive appropriate emoluments as prescribed.

(3) The Board shall adhere to such procedure as will be prescribed.

(4) The functions of the Board shall be to consider any application referred to it under sub-section (5) and to make recommendations to the Minister, or an officer acting on his or her behalf, as to the following:

(5) Any member or former member of the Defence Force who has suffered injury or psychological damage or loss or cost or potential loss or cost directly related to said injury or psychological damage as a result of an act or omission arising from any training or service under this Act, whether or not proceedings have been or may be instituted, or have lapsed, may apply to the Board in writing for compensation, setting out fully the grounds on which the application is based, the extent and nature of the injury or psychological damage or related loss or costs and the compensation desired. Any person may also act on behalf of the member or former member concerned with his or her consent or in the event of the member or former member being impaired, such person as designated by the Master of the High Court to act in that way. The application may be accompanied with such documents as may be necessary to support the application.

(6) The Board may furnish its recommendations in connection with any application after consideration of the application and such documents accompanying the application as were submitted to it under sub-section (5), or at its discretion, make such investigations or cause such investigation to be made in connection with the application in such manner as it may deem necessary in order to enable it to furnish its recommendation.

(7) For the purposes of the investigation referred to in sub-section (6), the Board may, in so far as it deems it necessary summon witnesses, to cause an oath or affirmation to be administered to them, to examine them, and to call for the production of books, documents and objects;

(8) A summons for the attendance of a witness or for the production of any book, document or object before the Board shall be signed and issued by the chairperson of the Board in a prescribed form and shall be served in the same manner as a summons for the attendance of a witness at a criminal trial in a civil court at the place where the attendance or production is to take place.

(9) If required to do so by the chairperson of the Board a witness shall, before giving evidence, take an oath or make an affirmation which shall be administered by the chairperson of the Board or such official of the Board as the chairperson may designate.

(10) Any person who has been summoned to attend any sitting of the Board as a witness or who has given evidence before the Board shall be entitled to claim expenses incurred from public funds.

(11) In connection with the giving of any evidence or the production of any book or document before the Board, the law relating to privilege as applicable to a witness giving evidence or summoned to produce a book or a document in such a court, shall apply.

(12) Any person who –

shall be guilty of an offence and liable on conviction, in the case of an offence referred to in paragraphs (a) or (b), to a fine not exceeding one thousand Rand, and in the case of an offence referred to in paragraph (c), to any punishment that may in law be imposed for perjury.

(13) The recommendations of the Board in pursuance of any power or duty conferred or imposed upon it by or under this section shall be referred to the Minister or officer acting on his or her behalf whose decision shall be final: Provided that nothing in this Act or any other laws shall be construed as precluding the applicant from making appropriate representations to the High Court of South Africa to review the decision of the Board and seeking appropriate redress and relief.

(14) The Minister or officer acting on his or her behalf shall notify the applicant in writing of his or her decision, and shall cause effect to be given to the said decision.

(15) The Board may after reasonable time has elapsed or on the grounds of the production of any new facts presented to it, review any previous recommendation for a greater or lesser amount to be paid in compensation to the member who was duly compensated.

(16) The Department shall maintain a secretariat which will support the Board, keep appropriate records and handle queries referred to it in connection with any relevant matter pertaining to injury or psychological damage and compensation of members or former members of the Defence Force.

(17) Parliament will annually vote funds and augment the vote if necessary, for the purpose of financing the activities of the Board and the allowances made payable by its recommendations and the Minister’s commensurate compensation grants. The Board in turn will furnish Parliament annually with a full report on its activities and expenditures and the ministerial actions pertaining thereto.

(18) All such compensation shall be free from taxation on payment to the member or former member concerned.

(19) A member of the Board who is not in the full-time employ of the Defence Force nor the Public Service shall be paid such remuneration and allowances in respect of his or her services as the Minister may determine, in consultation with the Minister of Finance.

77. (1) Subject to the provisions of this Act, every person who has at any time contracted to serve in the Defence Force shall be liable to serve and remain in service during a time of war, a state of national defence or a state of emergency.

(2) Where the contracts of the members of the Defence Force have been terminated, lapsed or expired before the outbreak of war or the declaration of the state of national defence or the declaration of the state of emergency, the contracts of the said members may be extended by the Minister for the purposes of rendering the service in a time of war, during a state of national defence or during a state of emergency: Provided that no such contract shall be extended at any one time for a continuous period exceeding three months.

(3) Where a member’s contract terminates, lapses or expires during service in a time of war, during a state of national defence or during a state of emergency, such contracts may be extended by the Minister to enable the said members to remain in service during the aforementioned services: Provided that such service shall not extend beyond a period of three months.

(4) The provisions relating to the exemption or deferment of service as contemplated in section 87(2) may be invoked under this section.

78. (1) A member of the Defence Force may at any time before or after he or she is charged with misconduct or awaiting trial or an appeal be suspended from duty with or without payment of the whole or portion, of his or her emoluments on such conditions as may be prescribed.

(2) If a member of the Defence Force who has been suspended from duty in terms of sub-section (1) before or during the trial or disciplinary hearing, is found not guilty, he or she may resume duty under the prescribed circumstances and receive in the prescribed manner the emoluments which might have been withheld during the period of suspension.

79. (1) A member of the Regular Force shall have his or her service terminated as prescribed  -

(2) A member of the Regular Force may have his or her service terminated -

(3) A member of the Regular Force who absents himself or herself from official duty without permission of his or her commanding officer for a period exceeding thirty days shall be deemed to be dismissed if he or she is an officer or discharged if he or she is an other rank, on account of misconduct with effect from the day immediately following his or her last day of attendance at his or her place of duty or the last day of his or her official leave: Provided that the Chief of the Defence Force may on good cause shown, authorise the reinstatement of the said member on such conditions as he or she may determine.

(4) A member whose service has been terminated in terms of sub-section (1)(a) or (b) or sub-section (2)(a) or (b), and who has not voluntarily joined the Reserve Force, shall be retained on the personnel list.

(5) A member who is entitled to be discharged in terms of sub-section (1)(a), (b) and (c) shall not, without the prior consent of the Chief of the Defence Force, be permitted to obtain his or her discharge –

(6) Provided that such monies as indicated by contractual agreement, remain payable by any such member pertaining to such education or training he or she may have undergone or have been in the process of undergoing at State expense.

80. (1) A member of the Defence Force against whom a civil claim or any other action arising from his or her acts or omissions has been instituted shall be entitled to legal representation at the expense of the Department: Provided that the member shall not be entitled to such representation if he or she –

(2) Notwithstanding the ineligibility of a member for legal representation by reason of any or all of the grounds listed in the proviso to sub-section (1), the State Attorney may on the request of the member, provide legal representation to him or her if in his or her opinion the Department has an interest in the case.

(3) The legal representation contemplated in sub-section (2) shall be provided on the express understanding that such costs and expenses incurred by the State Attorney may be recovered from the said member.

81. (1) The Minister shall prescribe procedures, which shall also specify the chain of command, through which individuals and groups within the Department may address individual and collective grievances.

(2) Any person subject to this Act who is aggrieved by any act or omission of any other person subject to this Act, may address in writing his or her grievance.

(3) For the purposes of this section, and in the manner prescribed, the chain of command may include the unit commander, formation commander, Chief of the Defence Force, the Minister and the President.

(4) The President, as Commander-in-Chief of the Defence Force, shall be the final authority in the chain of command to which members of the Defence Force may appeal to for the redress of their grievances.

(5) The Minister may perform any act in connection with any matter which relates to or arises from the employment or the conditions of service of a former member whilst he or she was a member, provided that the Minister would at the relevant time have been competent in terms of this Act or any other law to perform any such act in respect of the then serving member: Provided that the Minister shall not perform any such act after the expiry of a period of two years.

82. (1) Religious observances in the Defence Force may be conducted in the prescribed manner, subject to the provisions of section 31 of the Constitution.

(2) The Minister shall determine the rules and related policies for religious observances in the Defence Force in consultation with the Chief of the Defence Force.

83. (1) A member of the Regular Force or of an auxiliary service shall not be or become a member of any trade union other than a military trade union established under this Act.

(2) The Minister shall prescribe the manner in which members of the Regular Force, of an auxiliary service, or serving members of the Reserve Force shall exercise their labour rights.

(3) The Minister may impose certain limitations on labour rights as provided for in the Constitution.

(4) Members of the Defence Force or of any auxiliary service established under this Act are prohibited from participating in a strike or a secondary strike.

84. (1) The Minister may establish and designate defence training institutions for the purpose of providing instruction and other training for military members and persons employed in terms of the Public Service Act (1994) in the Department of Defence.

(2) Any institution established prior to the commencement of this Act for the purpose of providing military instruction and other training, whether under a law hereby repealed or otherwise, shall be deemed to be a defence training institution established under this Act.

(3) The Minister shall ensure that the training of military members and persons employed in terms of the Public Service Act (1994) in the Department of Defence promotes the objects of, and is in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic.

(4) The programme of activities for the training of military members of the Department of Defence shall be part of the force preparation activity, and shall encompass instruction at any military or tertiary institution for higher education and learning in the world, as well as practical training which shall include physical training, sport and official structured recreational activities and military exercises.

(5) The provision and maintenance of training tools and equipment as well as the provision and maintenance of training facilities and opportunities for military members of the Defence Force or other forces shall be carried out under the direction of the Chief of the Defence Force or a person designated by him or her.

(6) The appointment of the staff of any defence training institution, the duration and description of the courses of instruction and training therein, the conditions of admission thereto of students or other participants, the conditions of future service required from graduates of or persons who have completed their courses or training or persons who have not completed their courses or training, and all matters relating to good administration and management, control and regulation of any such institution shall be as determined by the Chief of the Defence Force or a person designated by him or her, and where employees of the Department and other civilian participants who are not members of the Department are involved, in consultation with the Secretary or a person designated by him or her.

85. All military persons, including military persons of visiting or other forces, if agreed to between the Republic and the State or institution or organisation sending the force, who are under instruction and training at any defence training institution in the Republic, shall be subject to the Code, and for that purpose and for the purpose of jurisdiction, prosecution and punishment, a military person who is not a member of the Defence Force shall be deemed to hold the equivalent of a rank in the Defence Force which the Chief of the Defence Force determines, and if sentenced shall be subject to all the lawful consequences attendant upon being so sentenced.

86. (1) The Minister may, at the request of the Chief of the Defence Force, as and when the exigencies of the training require, designate any area or areas, whether on public or private property, wherein the whole or any portion of the Defence Force may conduct military exercises.

(2) The Minister shall prescribe the conditions under which compensation may be claimed by and paid to the owner or official lessee of the designated area for any damage or loss sustained as a direct consequence of such military exercises conducted.

(3) The Minister shall cause publication of a notice in the Government Gazette and a notice in one English [and one Afrikaans] newspaper circulating in the district or districts of the designated area, and a notice in any other official language commonly spoken in the designated area in a newspaper or newspapers circulating in the said area, as well as posting suitable public notices, to the effect that such area, which shall be defined in the notice, is proposed to be designated as a training area under sub-section (1) and inviting all interested parties to furnish him or her not later than a date specified in the notice, with any representations they may wish to make in regard thereto, and such representations shall be dealt with in as expedient and fair a manner as possible.

87. (1) There shall be established a Central Exemption Board and such additional Exemption Boards under the control of the Central Board as directed by the Minister.

(2) The functions of the board shall be to hear applications for exemption from members of the Regular or Reserve Force for the exemption or deferment of the whole or any part of training or service, as the case may be, on any one or more of the following grounds:

(4) The Minister may make such rules not inconsistent with this Act as he or she may deem necessary for regulating the procedure and the conduct of the business of the boards.

(5) A member of the Board who is not in the full-time employ of the Defence Force nor the Public Service shall be paid such remuneration and allowances in respect of his or her services as the Minister may determine, in consultation with the Minister of Finance.

(7) No person shall disclose any information obtained while in the exercise of his or her powers, the performance of his or her functions or the carrying out of his or her duties related to the deliberation or evidence brought before this Board in terms of this Act without prior authority from the Minister.

88. (1) The following persons may apply for exemption from, or deferment of, training or service –

(2) Any application made under sub-section (1)(a) and made by the employer of such person shall be addressed to and lodged with the Chairperson of the Board and any application made under sub-section (1)(b) and made by the employer of such person shall be addressed to the Chairperson of the Board and lodged with the commanding officer of the unit in which the said person is stationed.

(3) Any person who has made an application in terms of this section or on whose behalf such application has been made, shall at his or her own expense attend at the time and place determined by the Board and submit himself or herself to any examination relating to any matter connected with the application.

89. (1) The Board shall make such investigations in connection with any application and representations under section 87(2) as it may consider necessary.

(2) The Board may sit at any place that is under the control of the Defence Force, for the purpose of hearing evidence or for deliberating.

(4) The Board may, with due regard to the evidence adduced before it –

(5) The Board shall give reasons for its decision.

(6) The Board may in its discretion, if it is so satisfied, grant exemption or deferment irrespective of whether or not the application is for such exemption or deferment.

(7) No deferment shall be granted which shall have the effect of forcing the applicant to commence service or training after reaching the age of fifty years.

90. (1) Any person summoned to attend and give evidence or to produce any book, document or object before the Board who, without sufficient cause (the onus of proof whereof shall rest upon him or her) fails to attend at the time and place specified in the summons, or to remain in attendance until the conclusion of the enquiry or until he or she is excused by the Chairperson of the Board from further attendance, or having attended, refuses to be sworn or to make affirmation as a witness after he or she has been required by the Chairperson of the Board to do so or, having made affirmation, fails to answer fully and satisfactorily any question lawfully put to him or her, or fails to produce any book, document or object in his or her possession or custody or under his or her control, which he or she has been summoned to produce, shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand Rand.

(2) Any person who after having been sworn or having made affirmation, gives false evidence before the Board on any matter, knowing such evidence to be false or knowing or believing it not to be true, shall be guilty of an offence and liable on conviction to a penal sanction determined by the court having regard to the gravity or otherwise of the offence.

91. The President may institute warrants for decorations and medals which are to be conferred in respect of conduct in peace or conduct during a state of national defence, including war.

92. The President shall cause the Minister to prescribe such rules and regulations as he or she may consider necessary in the case of every such decoration or medal, for the award of the said honours, including regulations relating to the granting, wearing, forfeiture and restoration thereof and such other matters concerning such decorations and medals as he or she may deem expedient.

93. The following category of persons may be awarded decorations and medals depending on the content of the warrant pertaining to such decoration or medal –

94. The wearing in public of decorations and medals shall be allowed, in a prescribed manner, by the following categories of persons and on the following apparel –

96. Units of the Defence Force shall display on parade only those flags, honours, awards and other insignia which are as prescribed.

Antecedent honours and medals

97. Any decoration or medal instituted or recognised prior to the commencement of this Act may, notwithstanding anything to the contrary in such honours contained, but subject to the rules for the governance thereof, be awarded, and any authority, sanction, warrant or certification relating to any such decoration or medal may be continued, amended or cancelled by the President excepting anything to the contrary in such honours contained.

98. (1) The Minister may do or cause to be done all things which in his or her opinion are necessary for the efficient defence and protection of the Republic, its territory and its inhabitants or people.

(2) Without derogating from the generality of the powers conferred on him or her under sub-section (1), the Minister or any person authorised thereto by him or her in writing or as prescribed may –

99. (1) The Minister may make regulations or issue or cause to be issued directives, not inconsistent with the provisions of this Act, relating to –

(2) Any regulation made in terms of sub-section (1) relating to the terms and conditions of service of members of the Defence Force, such may be made with retrospective effect for a period not exceeding twelve months except where such regulations provide –

100. (1) The Minister or any person authorised thereto by him or her may from time to time, by notice in the Gazette designate a mark or marks to be applied to animals, equipment or articles to denote the ownership of such animals, equipment or articles by the Department or by any visiting force.

(2) No animal, equipment or article belonging to the Department or any visiting force which bears a mark referred to in sub-section (1) shall be capable of being seized or attached by or under any writ of execution which may be issued against any employee of the Department or any visiting force.

(3) An entity known as the Department of Defence Archive Repository which existed immediately prior to the commencement of this Act shall continue to exist under this Act under the same conditions, and the provisions of the National Archives of South Africa Act, 1996 (Act No. 43 of 1996) shall apply mutatis mutandis: Provided that –

101. Notwithstanding anything to the contrary, contained in any other law –

Exclusion of liability

102. (1) The State or any member of the Department shall not be liable [(except in the case of any wilful act or omission on the part of any such member)] to any person who makes unauthorised use of any vehicle, aircraft or vessel belonging to or under the control of the Department, or to the spouse, or any parent, child or other dependant of such other person, for any loss or damage resulting from any bodily injury, loss of life or loss of or damage to property caused by or arising out of or in way connected with the use of such vehicle, equipment aircraft or vessel.

(2) The State or any person in the service of the State shall not be liable (except in the case of any wilful act or omission on the part of any such person) to any person referred to in paragraph (e) of sub-section (2) of section 98 who makes use of any vehicle, aircraft or vessel which is the property of the Department or which is private property which has been appropriated by the State for use by its officers or employees, or which has been hired by the State and is used by the lessor or his employees for or on behalf of the State, or to whom services are rendered by the said Department or who makes use of any other property of the Department, or to the spouse, or any parent, child or other dependant of such other person, for any loss or damage resulting from any bodily injury, loss of life or loss of or damage to property caused by or arising out of or in any way connected with the use of any such other property.

(3) Whenever the State has paid any compensation in respect of a claim by any person for any such loss or damage, the State may without having obtained any formal cession of the right of action, recover from the appropriate person referred to in any of the aforementioned paragraphs, the amount paid by way of compensation or so much thereof, if anything, as the Minister in consultation with the Minister of Finance (or any person acting under the Minister's authority in consultation with any officer in the Department of Finance deputed thereto by the Minister of Finance) considers the circumstances justify the Government in claiming.

103. Whenever the Department –

and the expenditure has been incurred and the payments have been made in circumstances where the member or his or her estate would otherwise have a claim against another person as a result of the bodily injury to or incapacity of the member, the Department shall have a right of recourse against that other person for the restitution of the expenditure that was incurred or payments thus made as could have been claimed by that member or his or her estate from said other person.

104. No action shall be brought against the State in respect of –

105. (1) No legal proceedings shall be instituted against the Department, the Minister of Defence or any body or person in respect of any alleged act performed under or in terms of this Act or any other law, or an alleged failure to do anything which should have been done in terms of this Act or any other law, unless the legal proceedings are instituted before the expiry of a period of twelve calendar months after the date upon which the claimant became aware of the alleged act or omission, or after the date upon which the claimant might be reasonably expected to have become aware of the alleged act or omission, whichever is the earlier date.

(2) No legal proceedings contemplated in sub-section (1) shall be instituted before the expiry of at least ninety days after written notification to institute such proceedings has been served on the defendant, wherein full particulars of the alleged act or omission are contained.

(3) If the notice referred to in sub-section (2) is given to the Secretary for Defence or the Chief of the Defence Force or any officer acting on their behalf, it shall be deemed to be notification to the defendant concerned.

(4) Any process by which proceedings contemplated in sub-section (1) are instituted and in which the Minister or the Department is the defendant, may be served either on the Secretary for Defence or the Chief of the Defence Force at the Head Office of the Department, as prescribed.

(5) Notwithstanding the provisions of sub-sections (1) and (2), a court of law may dispense with the requirements and prohibitions contained in those sub-sections where the interests of justice so require.

(6) The decision to defend or not to defend any legal proceedings against the Department shall be made by the Minister and shall not be delegated to any other person.

(7) The Minister may, in defence of the Republic and for national-border control cause private land to be entered upon, without the consent of any occupier thereof by any member in the execution of official duty, within a strip not exceeding ten kilometres in width along any national border of the Republic. Members or employees may be authorised to conduct specific functions as the Minister may determine.

106. A state of national defence may be declared by the President, by proclamation in the Gazette, under the following conditions:

107. (1) The mobilisation of persons for service in the Defence Force may be authorised by the President after the declaration of a state of national defence subject to the provisions of section 203 of the Constitution. Such authorisation will be promulgated in the Gazette.

(2) Subject to the provisions of this Act, mobilisation for and service during a state of national defence shall be promulgated only if necessary to supplement or complement the numbers of serving members of the Defence Force.

108. The President may, for the purposes of mobilising persons for service during a state of national defence, and for as long as the proclamation declaring a state of national defence remains in force, by proclamation in the Gazette, make such regulations as are necessary or expedient to deal with any circumstances which have arisen or are likely to arise as a result of the state of national defence and to make adequate provision for terminating the state of national defence, and the regulations may include the following matters:

109. (1) The Government of the Republic may negotiate and enter into bilateral or multilateral agreements with any other State or States or international institution or organisation, either in the main or as a supplement to the main agreement.

(2) Such agreements shall prescribe the legal status of –

110. Service in fulfilment of an international obligation which entails participation by any member of the Defence Force in a military force under the control of an international body, shall –

111. (1) The Minister may  –

(2) While a member of a force of any other country or international body is attached temporarily to the Defence Force, he or she shall be subject to the law applying to that portion of the Defence Force to which he or she is attached and shall be treated and shall have the same power of command and punishment over members of the Defence Force as if he or she were a member of that Force of a rank equivalent to that held by him or her as a member of the force of such country or international body: Provided that the President may, by proclamation in the Gazette direct that in relation to members of a force of any country or international body specified in the proclamation, the laws relating to the Defence Force shall apply with such exceptions and subject to such adaptations and modifications as may be so specified.

(3) Sections 110 and 112 of this Act shall apply mutatis mutandis with regard to any member of the Defence Force placed at the disposal of the military authorities of another country by the Minister for the purpose of being attached temporarily by those authorities to a force of that country in terms of sub-section (1)(b) of this section and in accordance with an international agreement regardless of whether or not such member, in consequence of the Minister’s decision, becomes attached temporarily to the Defence Force or any other organ of State of that other country or international body.

112. Whenever the service contemplated in section 110 entails a force of the Defence Force and any military force under the control of an international body serving together, whether alone or not –

113. (1) Whenever a force of the Defence Force and any other force of another country or any military force under the control of an international body are serving together, whether alone or not –

(2) For the purpose of this section, a force of the Defence Force and any other force shall be deemed to be serving together or acting in combination whenever the President has by proclamation in the Gazette, declared that they are so serving or acting, and the relative rank of members of the Defence Force and of such other force [shall] may be as designated by such proclamation.

114. To allow for routine visits by forces to the Republic where no prior agreement for such visit has been entered into between the Republic and the State concerned, the following shall apply:

(1) A military court or other authority of any country may exercise within the Republic in relation to members of a visiting force of that country in matters concerning discipline and the internal administration of that force (including the administration of the property or the estate of a deceased member of that force) all such powers as are conferred upon such court or authority by the law of that country.

(2) The provisions which under the laws of the Republic are applicable in connection with the powers, immunities and privileges of a military court of the Republic and in connection with proceedings before such a court shall, in so far as they can be applied, be applicable also with reference to a military court of a country exercising jurisdiction by virtue of this Act.

(4) No proceedings in respect of pay, terms of service or discharge of a member of a visiting force shall be entertained by any court of the Republic.

(5) For the purpose of enabling the military courts and military authorities of any country to exercise more effectively the powers conferred upon them by this section, the Minister may, if so requested by the government of that country or by the officer in command of a visiting force, from time to time by general or special orders to the Defence Force direct the members thereof to arrest members of the visiting force alleged to have been guilty of offences against the law of that country and to hand over any person so arrested to the appropriate authorities of the visiting force.

115. (1) The President may by proclamation in the Gazette authorise any Minister or any other person in the Republic to perform, at the request of such authority of any country as may be specified in the proclamation, but subject to such limitations as may be so specified, any function in relation to a visiting force of that country and members thereof which that Minister or person performs or could perform in relation to any portion of the Defence Force of like nature to the visiting force, or in relation to members of such a portion thereof, and for the purpose of the performance of any such function, any power exerciseable by virtue of any law by such Minister or person in relation to the Defence Force or members thereof shall be exerciseable by him or them in relation to the visiting force and members thereof: Provided that nothing in this sub-section shall be deemed to authorise any interference with the visiting force in matters relating to discipline or to the internal administration of that force.

(2) If the President by proclamation in the Gazette so provides, members of the visiting force, if sentenced by a military court of the country to which such force belongs, to penal servitude, imprisonment or detention, may under the authority of the Minister, given at the request of the officer in command of the visiting force, be detained in custody in prisons, gaols or detention barracks in the Republic during the whole or any part of the term of their sentences, and the President may by the same or a subsequent proclamation in the Gazette make provision relating to any of the following matters, namely –

(3) Any costs incurred in the maintenance and return of, or otherwise in connection with any person dealt with in accordance with the provisions of sub-section (2), shall be defrayed in such manner as may with the consent of the Minister of Finance, be agreed upon between the Minister and the government of the country concerned.

(4) Save as hereinafter provided, the provisions of any law, including this Act which –

shall, with any necessary modifications apply in relation to a visiting force as it would apply in relation to the Defence Force: Provided that the President may, by proclamation in the Gazette, direct that any such law either shall not apply or shall apply with such exceptions and subject to such adaptations or modifications as may be specified in the proclamation.

(5) A proclamation under this section may apply either generally or in relation to any particular visiting force or in relation to any particular place.

116. (1) Subject to the provisions of this section, the Code shall within the Republic apply in relation to a deserter or absentee without leave, from any military force of any country (including any member of a reserve or auxiliary force of that country, who, having failed to obey a notice calling upon him to appear at any place for service, is by the law of that country liable to the same punishment as a deserter, or to the same punishment as an absentee without leave), as it applies in relation to a deserter or absentee without leave from the Defence Force.

(2) No person who is alleged to be a deserter from a force of any country shall be apprehended or dealt with under this section except in compliance with a request from the government of that country, and a person so dealt with shall be handed over to the authorities of that country at such a place within the Republic as may be agreed: Provided that a person who is alleged to be a deserter or absentee without leave from a visiting force may be apprehended and dealt with in compliance with a request from the officer in command of that force.

(3) For the purposes of any proceedings under this section –

117. (1) Subject to the provisions of this Act, no inquest shall, unless the Minister otherwise directs, be held as to the cause of death of any deceased person who at the time of his or her death was a member of a visiting force or of a civilian component of such a force.

(2) Whenever a magistrate holding an inquest is satisfied that a person subject to the jurisdiction of the military courts of any other country is being detained for the purpose of being charged or has been charged before a court of that country with an offence arising out of the death which is the subject of the inquest, he or she shall, unless the Minister otherwise directs, adjourn the inquest and furnish the assistant registrar of births and deaths with such particulars necessary for the registration of the death as he or she may have ascertained at the inquest up to the time of its adjournment.

(3) No inquest which has been adjourned in terms of sub-section (2), shall be resumed unless the Minister so directs: Provided that where an inquest is resumed on the Minister’s directions, the magistrate having jurisdiction shall commence the proceedings de novo but shall not furnish the assistant registrar of births and deaths with any particulars or further particulars for the registration of the death.

(4) Section 29 of the Births, Marriages and Deaths Registration Act, 1963 (Act 81 No. of 1963), shall not apply in respect of any case where the body of a deceased person who at the time of his or her death was a member of a visiting force or of a civilian component of such a force, is to be buried or cremated at any place outside the Republic except as regards the burial or cremation of the body of a deceased person in relation to whose death an inquest has been held or resumed in pursuance of instructions given by the Minister under sub-section (1) or (3).

118. (1) The Secretary for Defence or the Chief of the Defence Force, may at any time or place convene a board of inquiry to inquire into any matter concerning the Department of Defence or the Defence Force respectively, any member thereof or any public property or the property or affairs of any institution or any regimental or sports funds of the said Force, and to report thereon or to make a recommendation as may be directed.

(2) The president of any such board of inquiry is hereby empowered to administer the prescribed oath to witnesses, interpreters and shorthand writers at such inquiry.

(3) Any person giving evidence before a board of inquiry may be compelled to answer a question or to produce an article which may incriminate him or her if the president of the board of inquiry has issued an order to that effect.

(4) Any incriminating answer or information obtained or incriminating evidence directly or indirectly derived from a question in terms of sub-section (3) shall not be admissible as evidence against the person concerned in criminal proceedings in a court of law or before any body or institution established by or under any law: Provided that incriminating evidence arising from such questioning shall be admissible in criminal proceedings where the person is arraigned on a charge of perjury or a charge contemplated in sub-section 122(u).

119. (1) When any person has been absent without leave for more than thirty days, a board of inquiry may be convened by the commanding officer of the absent person to inquire into such absence and into any deficiencies there may be in his or her kit, arms and equipment or any articles of public property whatsoever on issue to him or her.

122. In addition to any other punishable conduct referred to in this Act, the following conduct shall constitute an offence and be subject to punishment which shall be specified against each such offence:

124. Subject to the provisions of this Act, the laws mentioned in the First Schedule are hereby repealed to the extent set out in the third column of that Schedule.

125. This Act shall be called the Defence Act, 1999, and shall come into operation on a date to be fixed by the President by proclamation in the Gazette.