The Military Ombudsman Bill [B9 of 2011] Presentation to the Portfolio Committee on Defence and Military Veterans 31 August 2011 Ms SS Isaac - Parliamentary Legal Adviser

The Military Ombudsman Bill [B9 of 2011] 1. GENERAL OVERVIEW Assessing Independence: Context Form and Structure Public Perception

The Military Ombudsman Bill [B9 of 2011] 2. ASSESSING THE BILL Is there a legal obligation to make the MO independent? Do the provisions of the Bill create an MO that is adequately independent to fulfill its mandate?

The Military Ombudsman Bill [B9 of 2011] Clause 1: Definitions In this Act, unless the context indicates otherwise- " complaint" means a grievance lodged in writing by (a) a member regarding his or her service benefits; (b) a former member regarding his or her service benefits; or (c) a member of the public regarding the conduct of a member of the Defence Force The jurisdiction of the MO is not defined. The MO is not empowered to investigate systemic issues. The MO is not empowered to initiate investigations.

The Military Ombudsman Bill [B9 of 2011] Clause 3: Object of Office The objective of the Office is to investigate and ensure that complaints are resolved in a fair, economical and expeditious manner. Include ‘independent, impartial’…manner 5

The Military Ombudsman Bill [B9 of 2011] Clause 5: Appointment of Military Ombudsman and Deputy Military Ombudsman Appointment to Office 5. ( 1) The President must appoint as a Military Ombudsman a person who- (a) possesses adequate knowledge of the Constitution; and (b) has knowledge of or experience in military and public administration that was gained over a period of 10 years. Role for Parliament? 6

The Military Ombudsman Bill [B9 of 2011] Term of Office Clause 5(3) The Ombudsman holds office for a non-renewable period of five years. This is in keeping with international best practice. 7

The Military Ombudsman Bill [B9 of 2011] Remuneration Clause 5(4) The remuneration and other terms and conditions of service of the Ombudsman and Deputy Ombudsman must be determined by the President with the concurrence of the Minister of Finance: Provided that- ( a) the salary of the Ombudsman must not be less than the salary of a judge of a High Court, as determined by the President under section 2( 1) of the Judges‘ Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001); and (b) the salary of a Deputy Ombudsman must not be less than 85 per cent of the salary of the Ombudsman. This is in keeping with international best practice. Fixing the service terms and conditions of the MO? 8

The Military Ombudsman Bill [B9 of 2011] Removal from Office Clause 5(6) The President may remove the Ombudsman or Deputy Ombudsman from office on the grounds of misconduct, incapacity or incompetence, after affording the person concerned a reasonable opportunity to be heard, and subject to applicable legislation. Role for Parliament? 9

The Military Ombudsman Bill [B9 of 2011] Clause 6: Powers and functions of Ombudsman and Deputy Ombudsman (6) If the Ombudsman confirms the complaint, the Ombudsman must order the Department to comply with the determination or his or her alternative resolution within the period determined by the Ombudsman. Is the Department bound by the MO’s decisions? (9) The Minister may assign to the Ombudsman any other additional functions which are not inconsistent with this Act, as the Minister may determine. Should the Minister have a discretion to assign additional functions to the MO? Clause 7: Limitation on jurisdiction 10

The Military Ombudsman Bill [B9 of 2011] Clause 8: Independence and impartiality ( 4) Members and employees of the Department must cooperate with the Ombudsman and Deputy Ombudsman in the performance of their functions, which includes providing him or her reasonable access to facilities, information· or documents. (5) The Office must preserve confidentiality in respect of any information acquired in terms of subsection (4). Clause 14 (2) :Any person who contravenes section 8(5) is guilty of an offence and liable on conviction to a fine or imprisonment to a period not exceeding 12 months or to both a fine and such imprisonment. This clause 14(2) too onerous on the MO? 11

The Military Ombudsman Bill [B9 of 2011] Clause 9: Staff 9. (1) The Ombudsman must, after consultation with the Minister, appoint staff to assist him or her in the performance of his or her functions in terms of this Act. Should the MO appoint staff without consulting the Minister? Clause 10: Finances 10. (1) Expenditure in connection with the administration of the office must be funded from monies appropriated by Parliament for that purpose, as· part of the budget vote of the Department. Securing financial independence? 12

The Military Ombudsman Bill [B9 of 2011] Clause 11: Reporting (1) The Ombudsman must, within 30 days after the end of each financial year, submit to the Minister an annual report on the activities of the Office during the previous financial year. (2) The Ombudsman must report to the Minister on the activities of the Office as and when requested to do so by the Minister. (3) The Minister must provide the Public Protector with the report contemplated in subsection (1) and must table the report in Parliament. Will the power given to the Minister impact on the independence of the MO? 13

The Military Ombudsman Bill [B9 of 2011] Clause 12: Disestablishment, judicial management and liquidation The Office may not be disestablished or placed under judicial management or liquidation except by an Act of Parliament. This protects the office of the MO. Clause 14: Offence and penalties (2) Any person who contravenes section 8(5) is guilty of an offence and liable on conviction to a fine or imprisonment to a period not exceeding 12 months or to both a fine and such imprisonment. Is this too onerous on the MO? 14

The Military Ombudsman Bill [B9 of 2011] Clause 15: Regulations The Minister may, after consultation with the Ombudsman, make regulations regarding- ( a) the procedure for lodging a complaint; (b) the method and conduct of investigation; (c) the format of a written complaint; (d) the registration of a complaint; and (e) generally, any matter that may or must be prescribed in terms of this Act Should Parliament have a role with regard to the Regulations? 15

The Military Ombudsman Bill [B9 of 2011] 3. CONCLUSION The current Bill seeks to create a MO that is independent and impartial. To ensure that the Bill gives effect to this intention, the Committee may consider further entrenching this independence. It is submitted that special consideration be given to- the appointment and removal procedure of the MO the appointment of staff the reporting lines between the MO and the Minister the exercise of oversight over regulations. 16