Draft Bill

Annexure D
Draft Bill: South African Military Ombud
To provide for the establishment of the office of the South African Military Ombud and to provide for matters connected with this office.
Preamble

Whereas section 1 of the Constitution of the Republic of South Africa, 1996, provides that the country is founded on the values of accountability, responsiveness and openness;

And whereas section 198(a) of the Constitution provides that national security must reflect the resolve of South Africans to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life;

And whereas section 200(1) of the Constitution provides that the Defence Force must be structured and managed as a disciplined military force;

And whereas section 2(g) of the Defence Act 42 of 2002 provides that the Defence Force must respect the fundamental rights and dignity of its members and of all persons;

And whereas it has been acknowledged that the establishment of the office of a Military Ombud is necessary to monitor adherence to democratic civil-military relations, and to provide adequate and suitable remedies timeously;

Be it therefore enacted by the Parliament of the Republic of South Africa, as follows:-

1. Definitions

In this Act, unless the context indicates otherwise:

‘Constitution’ means the Constitution of the Republic of South Africa, Act 108 of 1996

‘Department’ means the Department of Defence

‘Minister’ means the Cabinet member responsible for national defence

‘Parliament’ means the Parliament of the Republic of South Africa

‘Republic’ means the Republic of South Africa

‘SANDF’ means the South African National Defence Force

2. Establishment of the office of the Military Ombud

(1) The office of the Military Ombud for the SANDF and for the Department is hereby established.

(2) The Military Ombud must:

(a) serve impartially and independently and perform his or her functions in good faith and without fear, favour, bias, or prejudice; and

(b) serve in a full-time capacity to the exclusion of any other employment or the holding of any other office.

3. Qualifications and Appointment

(1) Parliament, through the appropriate parliamentary committee, must recommend an individual for appointment, and the Minister must appoint this nominee.

(2) Any candidate to be considered for the position of Military Ombud must:

(a) be a South African citizen; and

(b) be a fit and proper person.

(3) In addition, a candidate to be considered for the position of Military Ombud must:

(a) have a legal qualification and practical legal experience of at least five years; and

(b) have adequate knowledge of or experience in the administration of justice (including military justice), public administration, military administration, or conflict resolution.

(4) Furthermore, the candidate must not:

(a) be a serving member of the SANDF or an employee of the Department;

(b) have been convicted for any criminal offence for which there is no option of the payment of a fine; or

4. Remuneration, tenure and terms and conditions of employment

(1) The status of the Military Ombud will not be lower than that of a Deputy Director-General, and his or her remuneration and other terms and conditions of employment will be determined in accordance with this status by the Minister of Defence, in consultation with the Minister of Finance.

(2) Such remuneration may not be reduced and such terms and conditions may not be adversely altered during the Military Ombud’s term of office.

(3) The Military Ombud will be appointed for a period of five years, and may be appointed for one further term.

(4) The Military Ombud may be removed from office only on

(a) the grounds of misconduct, incapacity or incompetence; and after

(b) a finding to that effect by the appropriate parliamentary committee; and after

(5) The National Assembly or, if Parliament is not in session, the appropriate parliamentary committee may allow the Military Ombud to vacate his or her office:

(a) on account of continued ill-health; or

(b) at his or her request for good cause shown: Provided that such request must be addressed to the National Assembly or the appropriate parliamentary committee at least three calendar months prior to the date on which he or she wishes to vacate the office, unless the National Assembly or the committee allows a shorter period in a specific case.

5. Staff of the office of the Military Ombud

(1) In the performance of his or her functions and duties, the Military Ombud will be assisted by:

(a) Principal Investigators; and

(b) a suitably qualified person as Chief Administrative Officer;\

(d) such staff as may be necessary for the Military Ombud to perform his or her functions.

(2) The remuneration, and the terms and conditions of employment of the persons appointed by the Military Ombud in terms of subsection (2) will be determined by the Military Ombud.

(3) In exercising his or her powers in terms of subsections (2) and (3) the Military Ombud must consult with the Ministers of Defence and Finance.

(4) A member of the office of the Military Ombud must:

(a) serve impartially and independently and perform his or her functions in good faith and without fear, favour, bias, or prejudice; and

(b) if he or she serves in a part-time or temporary capacity in the office of the Military Ombud, his or her other employment must not be incompatible with the functions of the office of the Military Ombud.

6. Liability

(1) The office of the Military Ombud is a juristic person.

(2) The State Liability Act (Act 20 of 1957) will apply to the office of the Military Ombud.

(3) The office of the Military Ombud and any member of that office will not be liable in respect of anything reflected in any report, finding, point of view or recommendation made in good faith and submitted to Parliament or publicised in terms of this Act.

7. Functions

(1) The Military Ombud is competent:

(a) to investigate, on his or her own initiative or on receipt of a complaint from a member of the SANDF or an employee of the Department, any alleged:

(i) maladministration in the SANDF or the Department;

(ii) abuse of power or unfair, capricious, discourteous or other improper conduct or undue delay by a member of the SANDF or an employee of the Department;

(iii) improper or dishonest act or omission by a member of the SANDF or an employee of the Department;

(iv) improper or unlawful enrichment, or receipt of any improper advantage, or promise of such enrichment or advantage by a member of the SANDF or an employee of the Department; or

(v) act or omission by a member of the SANDF or an employee of the Department which results in unlawful or improper prejudice to any other member of the SANDF or employee of the Department.

(2) The Military Ombud must oversee and ensure the observance of constitutional rights in the SANDF and the Department.

(3) The Military Ombud must launch investigations at the request of Parliament, through the appropriate parliamentary committee.

(4) The Military Ombud may resolve any dispute or rectify any act or omission by means of:

(a) mediation, conciliation or negotiation;

(b) advising a complainant regarding appropriate remedies; or

(5) At any time prior to, during or after an investigation, the Military Ombud may:

(a) if he or she believes that the facts disclose the commission of an offence by any person, bring the matter to the notice of the relevant authority charged with prosecutions; or

(b) if he or she deems it advisable, refer any matter which has a bearing on an investigation, to the appropriate military body or authority affected by it, or make an appropriate recommendation regarding the redress of the prejudice resulting therefrom or make any other appropriate recommendation he or she deems expedient to the affected military body or authority.

(6) The Military Ombud must advise a complainant of the outcome of an investigation initiated by that complainant, and must also advise any other person who may be implicated by that investigation.

(7) The Military Ombud must play a role in the education and training of members of the SANDF and employees of the Department regarding their fundamental rights, the available grievance procedures, and the role and functions of the Military Ombud.

8. Jurisdiction

(1) Any of the following persons may bring a complaint to the attention of the Military Ombud, subject to the provisions of section 12:

(a) a member of the SANDF

(b) an employee of the Department

(d) a former employee of the Department

(e) an immediate family member of the persons referred to in (a) to (d) above.

(2) The Military Ombud may not investigate any complaint or matter relating to:

(a) a military judge or a military court

(b) any matter to be determined by collective bargaining

(3) The Military Ombud may refuse to deal with a complaint if he or she has reason to believe that it is in the public interest to refuse. In order to determine this, he or she may consider:

(a) whether the complaint has a bearing upon state security;

(b) whether the complaint is related to the issue of obedience to lawful orders;

(d) whether the complainant lacks sufficient personal interest in the matter;

(e) the age of the complaint;

(f) the amount of time that has elapsed between the occurrence of the cause for complaint and the reporting of the complaint; or

(g) the need for judicious and efficient use of the resources of the Military Ombud.

9. Powers

(1) In conducting an investigation, the Military Ombud will determine the procedure to be followed.

(2) At any time prior to or during an investigation, the Military Ombud may request the assistance of any member of the SANDF and/or any employee of the Department to assist him or her in the performance of his or her functions.

(3) Members of the SANDF and employees of the Department must co-operate with the work of the Military Ombud, which includes providing him or her with access to facilities, members, employees, information, and relevant documents.

(4) Any person who fails or refuses to assist the Military Ombud in the performance of his or her functions commits an offence, and will be liable to a fine not exceeding R40,000 or to imprisonment not exceeding 12 months, or to both such fine and such imprisonment.

(5) The Military Ombud may be denied access to information in exceptional circumstances for reasons of security.

10. Finances

(1) The office of the Military Ombud must be financed by the Department.

(2) The Chief Administrative Officer is responsible for money received by or paid out of the account of the Military Ombud.

(3) The Chief Administrative Officer is responsible for the keeping of the necessary accounting records.

(4) The budget of the office of the Military Ombud must be appropriated by Parliament as part of the budget vote of the Department of Defence, and shall be expended in accordance with the rules and procedures as set out in the Public Finance Management Act, Act 1 of 1999.

(4) The Auditor-General will audit the accounting records referred to in subsection (3).

11. Accountability and Reporting

(1) The Military Ombud must be accountable to the Minister and responsible to Parliament.

(2)

(a) The Military Ombud must publicise any report, finding, point of view or recommendation in respect of a matter investigated by him or her, unless he or she has reason to believe that exceptional circumstances require the report, finding, point of view or recommendation to be kept confidential.

(b) If the Military Ombud has reason to believe that exceptional circumstances require that a report be kept confidential, the appropriate parliamentary committee must be provided with reasons for this belief and, if the committee concurs, such report shall be dealt with as a confidential document in terms of the rules of Parliament.

(c) Such exceptional circumstances may exist if publication of the report, finding, point of view or recommendation is likely:

(i) to endanger the safety or security of the state or its citizens;

(ii) to prejudice another investigation;

(iii) to undermine the public peace or security of the SANDF or the Republic

(3) The Military Ombud must submit a written report to the appropriate parliamentary committee at least once a year, or when requested to do so by that parliamentary committee.

(4) The Military Ombud may report to Parliament at any other time in respect of any matter relevant to his or her office if:

(a) he or she deems it necessary;

(b) he or she deems it to be in the interest of the military or public; or

12. Procedure

(1) The office of the Military Ombud does not replace the grievance procedures laid down in section 61 of the Defence Act 42 of 2002 and in section 134 of schedule 1 of the Defence Act 44 of 1957 (‘the Military Disciplinary Code’.)

(2) A person who has lodged a complaint in terms section 61 of the Defence Act or in terms of the Military Disciplinary Code may approach the Military Ombud only once he or she has utilised the standard grievance procedures and:

(a) his or her complaint has not been attended to at unit level within one month; or

(b) his or her complaint has not been attended to at base level within one month; or

(d) his or her complaint has not been attended to at defence headquarters level within two months.

(3) A complainant who has reason to believe that his or her complaint has not been addressed satisfactorily at defence headquarters level may approach the Military Ombud.

(4) In certain compelling circumstances, a complainant may approach the Military Ombud directly, bypassing the standard grievance procedure. Such compelling circumstances include situations:

(a) where the use of the standard grievance procedure will cause undue hardship to the complainant;

(b) where the complainant raises a systemic issue; or

Provided that the decision of the Military Ombud regarding whether the circumstances in question are compelling will be final.

13. Short Title

This Act will be called the South African Military Ombud Act, 2005.