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PRESENTATION TO THE SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL DEVELOPMENT ON THE DEFENCE AMENDMENT BILL, 2010. AIM. To brief the Select Committee on the Defence Amendment Bill: Obligation to serve for members of the Reserve Force; Establishment of the DFSC; and

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  1. PRESENTATION TO THE SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL DEVELOPMENT ON THE DEFENCE AMENDMENT BILL, 2010

  2. AIM To brief the Select Committee on the Defence Amendment Bill: Obligation to serve for members of the Reserve Force; Establishment of the DFSC; and Definition of the Military Command.

  3. SCOPE • Obligation to serve for Res. Force: • Background; • Policy theme; • Legal Position; • Legislative Proposal. • Establishment of the DFSC: • Background; • Policy themes; • Legislative proposals • Appointment; • Functions; • Method of appointment; and Intervention by the Minister.

  4. SCOPE • Military Command: • Composition; and • Appointment.

  5. BACKGROUND: OBLIGATION TO SERVE • Res. Force members currently serve on a voluntary basis and render service in terms of a contracted period; • Furthermore members of the Res. Force have no obligation to report for training, exercises or any deployment for peacekeeping purposes. • They can only be compelled to serve in time of war, state of emergency or state of national defence.

  6. BACKGROUND: OBLIGATION TO SERVE • This makes it extremely difficult for defence planners to plan and allocate resources as the availability of Res. Force members is not certain/guaranteed. • Previously

  7. LEGAL POSITION • An analysis of the DA reveals that there is nothing in the Act that makes service compulsory for Res. Force in circumstances short of a time of war or state of national defence. • It has often been argued that the voluntary nature of service in the Res. Force is a contractual arrangement and therefore does not warrant the intervention of the Legislature. • However, if the res. Force is to serve as a “force multiplier” it is critical that Res Force members are compelled to serve when required by the SANDF both for training and operations.

  8. LEGAL POSITION • Certainty requires that a matter of service in the SANDF should not be left to the whims of an individual but to legislation. This approach will eliminate contractual disputes at a later stage.

  9. POLICY THEME • It is the DOD’s view that Res. Force members should be obliged to serve during peacetime e.g. under the following circumstances: • Where life, health or property are in imminent danger; • To ensure the provision of the essential services; • Support any department of state, including support for purposes of socio-economic upliftment; and • Effect national border control. • This is particularly so given the: • Ever expanding mandate of and demands on the SANDF; and • Shrinking budget.

  10. LEGISLATIVE PROPOSAL • The Bill proposes to make it compulsory for members of the Res. Force to serve in peacetime when called upon to do so. • An offence is created for failure to honour a call-up. • This, however, does not detract from the rights that the members of the SANDF have under section 66 of the DA. • This section entitles members of the SANDF to apply for exemption or deferment of service or training

  11. BACKGROUND: DFSC • To date the conditions of service of members of the SANDF are primarily dependant on determinations made by DPSA or negotiated in the PSCBC. • This has proven inadequate as it does not take into consideration the uniqueness of military service. • To address this vacuum the MOD & MV appointed a INDFSC to: • Advise and make recommendations on a unique service dispensation outside the ambit of the public service;

  12. BACKGROUND: DFSC • Advise on the regulatory framework for unique service dispensation; and • Investigate and provide advice on remuneration and conditions of service. • The INDFSC continues to execute this function pending the establishment of the permanent DFSC.

  13. POLICY THEME • In order to attend to service conditions of the members the Bill proposes the establishment of an independent DFSC to advise the Minister on general conditions of service.

  14. LEGISLATIVE PROPOSAL • Establishment of DFSC: • The Bill establishes the DFSC; • Empowers the Minister to appoint Commissioners to serve in the DFSC; and • The Minister designates the Chair and Deputy Chair. • Functions of the DFSC: • The Bill empowers the DFSC to: • Make recommendations on improvements of salaries and other service benefits; • Make recommendations on policies iro conditions of service; and • Promote measures and standards to ensure effective and efficient implementation of policies.

  15. LEGISLATIVE PROPOSAL • Method of Appointment: • The Bill proposes a transparent method of appointing the Commissioners viz invitation of nominations in national newspaper and GG • Establishment of the nomination committee to recommend for appointments; • Minister must appoint from the nominations submitted by the committee. • Appointments may be on full or pert time basis for a five year renewable term.

  16. Intervention by Minister • The Bill empowers the Minister to intervene where she is of the opinion that the DFSC is not discharging its functions effectively and efficiently. • The DFSC must, however, be afforded an opportunity to make representations prior to a decision being made on the intervention. • If she is still not satisfied, she may replace the DFSC or appoint an administrator. • Of course, these powers may only be exercised after consultation with Cabinet.

  17. MILITARY COMMAND • Sec 202(1) of the Constitution provides that: “The President …, and must appoint the Military Command of the defence force.” • The Constitution does not provide any guidelines as to who should constitute that “Military Command”. • The DA also provides no guidelines as to the composition of the Military Command. • The Bill proposes that a new provision should be inserted to describe the composition of the Military Command.

  18. MILITARY COMMAND • The Command as proposed shall include: • CSANDF, Chiefs of Services, CJ Ops, CDI, CHR and C Log.

  19. CONCLUSION • It is submitted that the imposition of the obligation to serve for Res. Force members shall not negate the principle of voluntarism in the SANDF; • The proposed amendment has been carefully crafted so as not to be onerous to the point of discouraging service in the Res. Force or to be disruptive to the functioning of civil society. • The establishment of the DFSC will enhance the relationship between the SANDF and the members; • Facilitate timeous improvement of conditions of service and create labour peace

  20. CONCLUSION • The inclusion of a provision on Military Command in the DA will bring certainty on this issue and facilitate exercise of the President’s powers in this respect.

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