PRESENTATION ON THE PROPOSED AMENDMENTS TO THE DEFENCE ACT, 2002 (ACT NO. 42 OF 2002)

SCOPE Aim Background Proposal 1 Proposal 2 Proposal 3 Proposal 4 Conclusion Questions/Comments

AIM To brief the PCD on the proposed amendments to the Defence Act.

BACKGROUND Section 55: The Defence Act came into operation on 23 May 2003. Due to the suspension of the Military Bargaining Council (MBC) activities by the MOD and on-going litigation between the DOD and SANDU, the coming into operation of section 55 was suspended. MBC resumed activities in 17 May 2004 and consequently section 55 was brought into operation in June 2005.

BACKGROUND Sec 55 provides that members of the SANDF shall receive such salaries and benefits as may be agreed upon in the MBC. This section does not distinguish between L1-12 and SMS members within the SANDF. Implication: Strictly speaking the salaries and benefits of SMS members within the SANDF are subject to MBC jurisdiction. This is not in line with the practice within the general public service where SMS salaries are determined by the MPSA outside the PSCBC.

BACKGROUND Interestingly the only MTU admitted to the MBC excludes SMS members from its membership.

KEY POLICY THEMES To bring the DOD in line with the rest of the public service it is imperative that sec 55 be amended so as to exclude SMS members from the jurisdiction of the MBC. In order to assist the Minister in the implementation of Sec 55 it is further proposed that a Pay Review Board be established to advise the Minister on the service conditions of the members of the SANDF.

KEY POLICY THEMES Sec 10 and 42: Sec 10 empowers the Sec Def to instruct any employee or member (S 6(3)) to carry out any inspection or investigation within the Defence Secretariat. This section is silent on the role of the IG with regard to inspection or investigation. In fact the only section in the DA that sets out the powers of the IG is sec 42, which relates to monitoring the personnel structures of, adherence to the law and procedures by the Intelligence Division.

KEY POLICY THEMES The IG, in practice, has powers to conduct forensic investigations, audits, inspections and monitors compliance with DOD policies etc. The DOD therefore proposes that the rest of his/her functions should be legislated for in order to eliminate confusion with regard to his role.

KEY POLICY THEMES Reserve Force members currently serve on a voluntary basis and render service in terms of a contracted period. Thus members of the Reserve Force may only be obligated to serve during the time of war, state of national defence or state of emergency. Furthermore members of the Reserve Force have no obligation to report for training, exercises or any deployment that falls outside a state of war, national defence or state of emergency.

KEY POLICY THEMES This makes it extremely difficult for defence planners to plan and allocate resources as the availability of Reserve Force members is not certain. To address this lacuna it is proposed in the Bill that Reserve Force members should, by law, be compelled to serve during peacetime under certain clearly defined circumstances

PROPOSAL 1 It is proposed that sec 55 be amended so as to distinguish between the L1-12 and SMS members. This is achieved by inserting a new subsec (3) as ff: “(3) SMS members of the Regular Force and Reserve Force must receive such pay, salaries and entitlements including allowances, disbursements and other benefits in respect of their service, training or duty in terns of this Act as may from time to time be determined by the Minister.

PROPOSAL 2 The Minister is empowered in terms of the new sec 55A to appoint a Pay Review Board to advise him on the service conditions within the SANDF

PROPOSAL 3 As indicated above, the DOD proposes the incorporation of the IG’s functions in the legislative framework. This is achieved by the insertion of new sec 10A, B and C immediately after sec 10 of the DA. For completeness we propose as ff: the establishment of the Defence Inspectorate (sec 10A); the appointment of IG by MOD, functions, reporting lines and recognition of the current incumbent and preserve the existing terms and conditions.

PROPOSAL 4 It is proposed that members of the Reserve Force should have an obligation to serve in a “time of serious crisis” as declared by the President by proclamation in the Gazette.

CONCLUSION The proposed amendment with regard to sec 55 is desirable and will bring the DOD in line with the rest of the public service. The incorporation of IG’s powers in legislation will eliminate confusion as to the extent of the powers of the Defence Inspectorate.

QUESTIONS AND COMMENTS