PRESENTATION TO PORTFOLIO COMMITTEE ON DEFENCE & MILITARY VETERANS MILITARY OMBUD: LT GEN (RET) T.T. MATANZIMA 04 March 2015

MILITARY OMBUD SCOPE Background Mandate Modus Operandi Statistical Overview Operational Challenges Legislative Challenges Conclusion

MILITARY OMBUD BACKGROUND The thought behind the creation of a Military Ombud was for it to be: An independent, external mechanism to deal with the complaints and grievances of members and former members of the SANDF; and A place for the public to lodge complaints about the conduct of soldiers.

MILITARY OMBUD BACKGROUND CONT. As we are aware, much deliberation followed by the Joint Standing Committee of Defence of June 1998, with a premium being placed on the urgency of establishing such an Office.

MILITARY OMBUD BACKGROUND CONT. The Military Ombud Bill was introduced in Sept 2011. The Office was established with the promulgation of the Military Ombud Act 4 of 2012 and the swearing in of Lt Gen (Ret) T.T. Matanzima, May 2012 as the first Military Ombud of South Africa.

MILITARY OMBUD BACKGROUND CONT. The Office has completed three recruitment phases since May 2012 till May 2014 and currently boasts a staff complement of 54 The fourth recruitment phase is currently taking off with hopes to provide for the current total structure of 89 positions.

MILITARY OMBUD BACKGROUND CONT.

MILITARY OMBUD MANDATE The Military Ombud Act empowers the Military Ombud to investigate complaints by: A member regarding his or her conditions of service; A former member regarding his or her conditions of service; A member of the public regarding the official conduct of a member of the Defence Force; or A person acting on behalf of a member.

MODUS OPERANDI COMPLAINT INTAKE ALL CALLS RECORDED NO YES COMPLAINT ANALYSED IRO OMBUD MANDATE COMPLAINT REGISTERED AND REFERRED TO ANALYSTS COMPLAINANT REFERRED TO OTHER INSTITUTIONS WHO MAY BE ABLE TO ASSIST. WITHIN MANDATE COMPLAINT ANALYSED IRO COMPLIANCE TO ALL REGULATORY FRAMEWORKS. ALL PARTIES CONSULTED. CONTINUAL REVIEW BY DIR INTAKE. COMPLAINT RESOLVED AT LOWEST LEVEL. CASE TRACKED AND REFERRED TO INVESTIGATIONS. COMPLAINT THOROUGHLY INVESTIGATED ALL PARTIES CONSULTED. COMPLAINT CONTINUALLY REVIEWED BY DIR INVESTIGATIONS, C DIR OPERATIONS WITH LEGAL ADVICE IF NECESSARY. RESOLUTION AT RELEVANT LEVEL OF AUTH. CASE CONTINUALLY TRACKED UNTIL CLOSURE. ALL INTERESTED PARTIES KEPT INFORMED OF PROGRESS. NO RESOLUTION RESOLUTION IMPLEMENTATION MONITORED CASE TRACKED AND CLOSED NFA IMPLEMENTATION MONITORED COMPLAINANT DISSATISFIED MAY APPROACH HIGH COURT 9

MILITARY OMBUD OPERATIONAL CHALLENGES Finalising the case load accumulated during FY 2012/13. Empowering newly appointed staff with the uniqueness of the military environment in order to operate efficiently. The lack of a case management system results in non-value adding labour. Lack of fully functioning ICT capacity.

MILITARY OMBUD OPERATIONAL CHALLENGES Lack of a unique Enterprise Resource System Cementing a complaints handling process to finalise complaints. Complainants are uninformed in the role and functioning of the Ombud. Lack of optimally functioning grievance process in the DOD.

MILITARY OMBUD STATISTICAL OVERVIEW COMPLAINTS FY 2012/13 FY 2013/14 FY 2014/15 (3rd ¼) CARRIED OVER 202 252 RECEIVED 306 290 220 TOTAL 492 472 FINALISED 104 240 215 Note: The Military Ombud had 257 active complaints on 31 Dec 2014.

MILITARY OMBUD LEGISLATIVE CHALLENGES Independence and Impartiality Independence is key to ensuring the efficiency, effectiveness and credibility of the institution. The Ombud’s independence is one of its main strengths and a source of trust . As a result the Ombud should have both institutional and operational independence.

MILITARY OMBUD LEGISLATIVE CHALLENGES Institutional Independence Currently the budget of the office is ring-fenced within the defence budget. Therefore funds cannot be managed independently from the Department of Defence. This creates several difficulties as the Office is not in complete control of its budget as it has to comply with and be accountable to the departmental process structures for all resource requirements. The submissions made to the Defence Review of 2011 requested that the Ombud be the accounting authority for the Office and further that the Office be registered as a PFMA Schedule 3 Entity.

MILITARY OMBUD LEGISLATIVE CHALLENGES Institutional Independence Parliament’s Analysis of the Military Ombuds Bill of 2011, as compiled by the Research Unit in July 2011, indicated that section 9 places an onerous obligation on the Military Ombud and as a result a suitably qualified and experienced person as chief executive officer of the Military Ombud should be appointed to assist the Ombud subject to his or her direction and supervision in the performance of all financial and administrative functions in terms of the Act.

MILITARY OMBUD LEGISLATIVE CHALLENGES Institutional Independence These significant suggestions speaking to the independence of the Ombud were however not all taken further. As a result of the difficulties experienced as far as the institutional independence of the Ombud is concerned, steps have been embarked on to address the organisational and other requirements for the registration of the office as a Schedule 3 Entity.

MILITARY OMBUD LEGISLATIVE CHALLENGES Operational Independence Section 6 (5) (b) of the Act states that after investigating a complaint the Ombud must recommend an alternate resolution to the Minister. The recommendations route taken in the Act leaves the Ombud powerless with regard to the inability to enforce his recommendations. This is proving to be an obstacle in the effectiveness of the Ombud as, once approved by the Minister, the perception exists that implementation of recommendations are negotiable.

MILITARY OMBUD LEGISLATIVE CHALLENGES Operational Independence No mechanism exists to have the Department of Defence account for the non-implementation of recommendations. Another mechanism that is sure to guarantee independence of the Ombud is the capacity to undertake investigations under own initiative which currently section 6 of the Act does not make provision for.

MILITARY OMBUD LEGISLATIVE CHALLENGES Operational Independence This ensures an Ombud who is proactive and who can act or pursue issues without having to wait for a complaint to redress wrongs as well as systemic issues which may be inherent in the system.

MILITARY OMBUD CONCLUSION On a point of information, the Regulations are in its final draft stages, comment and legal analysis have been received from the Chief State Law Advisors and it is hoped to be finalised as soon as possible. Despite the challenges highlighted above, we are grateful for the support and co-operation of the SANDF/DOD. We are confident that the Office is fully operational and it can only get better from here.

MILITARY OMBUD CONCLUSION CONT. A quote from the Handbook for Ombuds Institutions for the Armed Forces, “Ombuds Institutions play a crucial role in ensuring the armed forces operate with integrity and in a manner which is both accountable and transparent. By handling individual complaints, as well as through the exploration of thematic and cross-cutting issues, ombuds institutions help to prevent human rights abuses, eliminate waste and malpractice and contribute to the overall good governance of the security sector.”