Transcript of media briefing on National Defence Force Service Commission by Minister of Defence and Military Veterans, Lindiwe Sisulu, September 21 2009

In recognition of the distinction between the rest of the public service and the Security and Intelligence Services, legislators have determined that the Labour Relations Act should not be applicable to the defence force, the National Intelligence Agency (NIA) and the South African Secret Services (SASS).

A basis in law was established and during my tenure as Minister of Intelligence, we crafted a separate dispensation for the Intelligence Services in appreciation and acknowledgement of the distinctive role they play in society. The Defence Force is not any different and Cabinet approved a new dispensation for them.

In addition, the Constitution enjoins us to develop the Defence Force into a disciplined, professional force precisely because of the role it plays as the last bastion to defend democracy and to protect our territorial sovereignty.
Armed with this knowledge and insight, I stated in my budget vote that one of the priorities of my tenure would be to review and improve the conditions of service of our soldiers.

I have repeated this commitment in various platforms and audiences. The establishment of this commission is the latest in a series of steps aimed at this objective.

In my budget vote I stated that: "I want to assure the Defence Force staff that their conditions of service are a concern. We are seized with the matter and I would like to engage each one of them through the proper management structures to see how we can attend to these. We are acutely aware that the state of readiness of the South African National Defence Force (SANDF) depends primarily on the morale of our soldiers. Having assessed our options, we are considering making a request for a separate dispensation for the Department of Defence that would allow us to creatively deal with our own needs and the specificities of our own unique security requirements."

I am of the considered view that a National Defence Force Service Commission must be established immediately to assist me to deal with these vitally important issues so that our national security is never compromised. This commission will function on an interim basis until a permanent commission is established through legislation.

In appointing this commission, I am mindful of the provisions of the Constitution and section two of the Defence Act, 2002, which stipulates; the Minister and any organ of state defined in section 239 of the Constitution, as well as all members of the Defence Force and any auxiliary service and employees, must, in exercising any power or performing any duty in terms of this Act, have regard to the following:

* The formulation and execution of defence policy is subject to the authority of Parliament and the national executive
* The primary object of the Defence Force is to defend and protect the Republic, its people and its territorial integrity
* The Defence Force must perform its functions in accordance with the Constitution and international law regulating the use of force
* The Defence Force must have a primarily defensive orientation and posture
* No member of the Defence Force may obey a manifestly illegal order
* Neither the Defence Force nor its members may, in the performance of their functions, prejudice a political party interest that is legitimate in terms of the Constitution, or, in a partisan fashion, further any interest of a political party
* The Defence Force must respect the fundamental rights and dignity of its members and of all persons.

I have discussed this matter with the President in his capacity as commander in chief of the South African National Defence Force (SANDF), and the Cabinet which endorsed the proposal to establish a National Defence Force service commission. Draft legislation, which will establish the commission, is being prepared.

As the creation of the National Defence Force Service Commission does not fall within the provisions of sub-section two (a) of the act, as it does not relate to the formulation and execution of defence policy which is subject to the authority of Parliament and the national executive, I have decided to consult the Portfolio Committee on Defence and to seeks its guidance and assistance on the creation of this commission, in view of the national importance of this issue.

I briefed this committee on Tuesday, 15 September 2009 on my plans and undertook to discuss various aspects of this matter, including the composition of, and the appointment of the members of the commission with the Portfolio Committee on Monday, 21 September 2009

I also have very wide general powers to do all things necessary for the effective defence and protection of the Republic and its inhabitants in terms of section 80 of the act. This includes ensuring that the concerns of members of the South African National Defence Force are addressed satisfactorily. This will enable them to fulfil their constitutional and legislative functions. These are to maintain national security which reflects the resolve of South Africans to live as equals and as a nation, to live in peace and harmony, to be free from fear and want, and to seek a better life.

I must, therefore, make regulations regarding the conditions of service of members of the Defence Force and labour relations between members and the state as their employer, including the resolution of disputes and the establishment of mechanisms necessary for the regulation of the said labour relations and the administration and management of such matters in terms of section 82.

Given the enormity of this task, I am of the view that I need the guidance and assistance of an impartial commission as well as parliament to assist me to formulate appropriate regulations, which will regulate these matters, until such time as the Defence Act is properly amended to make provision for a permanent National Defence Force service commission, which will be responsible for considering the issues which affect members of the Defence Force.

The formal appointment procedures of the members and the commission's terms of reference are being finalised. The commission will be able to commence its work immediately. Among other things, it will consider the following (courtesy of the Moseneke Commission):

* To investigate and make recommendations regarding remuneration and the conditions of service of members of the Defence Force
* To make recommendations to ensure that personnel procedures relating to recruitment, transfers, promotions and dismissals comply with the values and principles set out in sections 195, 198 and 200 of the Constitution and the provisions of the Defence Act and any other applicable laws and regulations.

The appropriate remuneration, allowances and benefits to be paid to members of the armed forces will require the following:

* an analysis of the purpose, duties, responsibilities, powers and activities attached to the various positions in the armed forces
* the evaluation and grading of all posts
* an analysis of existing conditions of service, salaries, allowances and other benefits before and after tax deductions, pertaining to the Defence Force
* a comparison with compatible positions elsewhere
* the conversion of existing remuneration structure(s) or system(s) to a total remuneration system or structure
* a comprehensive implementation plan and costing for the conversion to the total remuneration structure, and

The commission must interact with the council of Defence and brief it on its work from time to time. It must also interact with the soldiers through the due protocols of the Defence Force and other relevant role players and interested parties. This will enable the commission to make appropriate recommendations to the executive.

The commission will function until the Defence Act has been amended to create a National Defence Force service commission, or such other time as I may decide.
The allowances to be paid to the members of the commission will be determined by me in consultation with the Minister of Finance.

I thank the portfolio committee for its guidance, support and solidarity. I hope that all the role players will work together in a constructive way to address the concerns of members of the Defence Force. In this way we shall achieve our objective of restoring the integrity and reputation of the South African National Defence Force as well as instil public confidence in our armed forces which perform outstanding work both nationally and internationally and which fills us with pride.

I also want to thank the members of the SANDF for their patience, support and solidarity. It is in the light of the above consideration that; I, the undersigned Lindiwe N Sisulu, MP, the Minister of Defence and Military Veterans, do, hereby, announce that I have decided to appoint a National Defence Force Service Commission (NDFSC), on an interim basis, consisting of:

* Judge R Bosielo, Chairperson
* Gen B Holomisa
* Mr I Aboobaker
* Mr P Groenewald
* Ms H Mgabadeli
* Prof R Christie
* Dr A Mokgokong
* Gen L Moloi
* Bishop M Mpumlwana
* Prof D Swartz

Questions and answers

Journalist: Minister, this commission is going to function purely, the interim commission, will that be purely to advice you, will the permanent one then replace unions, how does this fit in, what's the role of unions in the Defence Force going to be under this new dispensation and in the light of the Constitutional Court ruling that soldiers are entitled to some form of collective bargaining?

Minister Lindiwe Sisulu: No, we are not talking unions here, this is a commitment that I made in July when I was speaking very directly to the nation about my responsibility towards the Defence Force, I indicated then that we needed to establish a different dispensation for the Defence Force to deal with the unique challenges of the security environment in which we operate. And I was going to tap largely on my experience as Minister of Intelligence where such a dispensation does exists and works very effectively. It has nothing to do with unions.

The dispensation is one that we will craft together with the Portfolio Committee, this is a commission that is set up that will separate and create the necessary basis away from the Public Service Commission to ensure that we have a commission that will deal very directly with Defence Force and deal with issues that are very specific to the Defence Force. We have not gotten to the issues of unions. This is not taking the place of unions. Unions are not a matter of discussion right now.

This is something we have committed ourselves to. We were interrupted because of the protests and therefore our attention was diverted to other things, but this is what we intended to do right at the beginning, we are proceeding with it and this is where we are, but the matter of unions does not serve right now, not unless it arises out of the recommendations of the commission. I have spelt out the terms of reference of the commission, right now we are dealing with the conditions of the Defence Force in its entirety.

Journalist: Congress of South African Trade Union (COSATU) which of cause opposes the banning of military unions, says that looking at the commission they are worried that there is not a representative of labour in the commission itself, do you think that's fair, do you think that there is no representative, and if not, why, and I noticed here the spelling of Dr Anna Makgokong or Anna Mokgokong, is it suppose to be an O.

Minister Lindiwe Sisulu: Caiphus, what is it we're dealing with here? Thank you for that, we will certainly make sure that we correct it. We had prepared a slide presentation where the names are spelled properly. This is one that we just printed out very quickly because we didn't think that we'd be able to screen the presentation which has pictures of the various people.

Now where would COSATU have heard of the names of the commission, I'm announcing them now.

Journalist: They told me that last week Friday, that they knew that there was not going to be a representative.

Minister Lindiwe Sisulu: Ok, now the commission was not started last week Friday, the commission is only established now. The commission was approved by the President this morning. Therefore there were no names last week Friday at all. So I have no idea where they get that from. The only consultation I have had finally was with the President on Saturday and the finalisation of the commission was this morning, which is why even the spelling and everything is in such rough cast, and it could not have existed until I have kept my promise to the Portfolio Committee to consult with them.

I did say when we were discussing when the media was there, that I would like the media to be out of the consultation room this morning because when you're discussing names, you would like that confidentiality to be kept. So no, there were no discussions last week Friday. That was a thumb suck from COSATU. But we are not discussing unions, we're discussing a dispensation. The kind of people I want to advise me are people who have knowledge of the Public Service Commission so that we can create a different form for the Defence Force, that's all, we haven't even got to unions yet.

We're ensuring that the conditions which we accepted need to be looked at. Right at the beginning the conditions of employment of the soldiers are attended to as a matter of urgency, that's what I committed myself a long time ago. I don't know why the unions did not want to comment on it at that time, we're not talking about unions here, and we are talking about the Defence Force. Its regulation, we are talking about the creation of a different dispensation away from the Public Service Commission. I don't know if I should not emphasise that over and over again. It has nothing to do with the unions. Of cause if they would want to make a presentation to the commission, they would be free to do so.

Journalist: Sorry this is just a follow up on that one, but it seems that it deals with labour issues; wouldn't it have been then correct to have somebody with knowledge of labour issues?

Minister Lindiwe Sisulu: The commission will determine the parameters in very much the same way as the Public Service Commission determines labour relations for the public service. We are not yet dealing with labour relations. When we get to that we might want to consult with COSATU, might want, I don't know, but this is the creation of a different dispensation. Please underline that, in its totality, and I would not want this to be sidetracked into dealing with one matter out of this totality.

On a regular basis from the time I have taken office, what you find in the newspaper is the deplorable state of the facilitates of the Defence Force, we have been very concerned about that, we have expressed the problems we have around the challenges that we have with the budget of the Defence Force, all of those matters require that we handle them in a particular way, and I speak from experience, because for three years this is what we did in Intelligence. So I know from fact, how it has been done and I know from fact, how it has succeeded. So please this is not a COSATU meeting, Caiphus, this is a briefing on Defence issues, if you would allow me to continue on Defence issues. Thank You.

Journalist: You've said repeatedly this is not about labour issues but yesterday the ANC National Executive Committee (NEC) said they want the process of de-unionising the soldiers to start, so clearly there is some link between this and that, and I mean, how are you going to de-unionise the soldiers, that's given the Constitutional Court ruling that they have the right to organise because it does link with this, because they have already said last week that they won't cooperate with the commission unless they are consulted and since the commission is about working conditions and possible remuneration why can't they be drawn in as a kind of a partner?

Minister Lindiwe Sisulu: You know the ANC is a political organisation; it is free to discuss matters as and when it finds the time and it becomes necessary to discuss them, but what you are doing is reading the ANC's statement from a particular bias. What the ANC statement said is that they would want to ensure that a process of de-unionisation of the unions, a process is undertaken and secondly they support the commission. Those are two different things discussed as two very separate things, this is a commission I promised on my budget vote it had nothing to do with the unions. It had nothing to do with the ANC statement, the ANC statement comes after reviewing the events of the last three weeks and coming to a particular recognition that they would like to put forward.

When we get to that, when the process is complete, we will call a press conference and inform you how far we are, this one is something we committed ourselves to and this is what we are doing now. You are indicating that you think because it has to do, this has to with soldiers remuneration, that the unions will be consulted, that remains entire the responsibly of the commission. The terms of reference of the commission are to ensure that they consult the soldiers through the proper protocols of the Defence Force. So, in consultation with the Defence Council, they will then ensure that every soldiers views are understood and heard and those channels will be created, but exactly what those will be, will be determined at that particular time and I don't think that it would be appropriate for me to be making comments about that.

Please ladies and gentleman, this is about a separate dispensation, one that will make sure we can deal with the sensitivities of a unique situation where we have a Defence Force that has particular needs such as ours does. This is what we have been dealing with and unfortunately we did have the strike, it had nothing to do with that, this would have continued apace regardless of that. I have made this very clear, over and over, and I would like us please to come back to this matter and deal with the need for creating a separate dispensation, because I think the Defence Force needs it, its long overdue. It should have been done a long time ago, and now that we have caught up with it, we want to make sure we put this in place. Thank You.

Journalist: Minister you've said in your statement that work have begun on amendments to the Defence Act, could you tell us what the brief to those legal drafts was, in other words, which aspects of the act are you changing?

Minister Lindiwe Sisulu: Well, we are consulting very widely, and when I met the Portfolio Committee this morning they told me they were very ready, because they've also been applying their mind to this matter because it's part of their responsibility, basically what we would like to do is look at the Defence Act and make sure that it does give provision for the creation of a National Defence Force Service Commission, and therefore ensure we do have regulations on those matters that needs to be regulated through the commission and give us the space to operate outside the Public Service Commission.

We sought the help of the state law advisors and they are assisting with this matter, but the Portfolio Committee, under whose authority this rest is also very ready to propose amendments to the law. We are hoping to meet very soon and at that point we will be coming to you to indicate specifically which parts of the law we will be dealing with.

Journalist: Minister you spoke earlier about looking to have the interim committee commission report back by December. What timeframes do you have for the legislation, when would you like to see the permanent commission set up?

Minister Lindiwe Sisulu: Thank you, in consultation with the Portfolio Committee, we have worked out that perhaps by December we could have the amendments done. They promised that they would very hard to achieve that goal, and I think we are all aware of the urgency of the matter, so we are giving our deadline as December. So we will have the commission report and thereafter ensure we can pass the necessary amendments to the legislation.

Journalist: Minister when you talk about a separate dispensation; are we talking about perhaps soldiers now getting much more, getting paid much more than their counterparts at the same level in the public service?

Minister Lindiwe Sisulu: Caiphus, a separate dispensation is a separate dispensation. It does not put any figures to the salaries, can I just give you an example of what it is we are talking about here. You know when I was Minister of Intelligence; we worked very hard to make sure that we create a separate dispensation for the Intelligence Services, which has resulted in regulations that are reams and reams. It deals with all of those matters that the Public Service Commission deals with in relation to the public service; promotion, ranking, remuneration in relation to ranking and all of those things.

Now in relation to the Defence Force, this fell under the rubric of first the Defence Act and then the Public Service Commission, resulting in a whole lot of issues within the Defence Force that were a grey area. As I indicated we needed to have attended to this matter a long time ago, but unfortunately legal processes got ahead of us and that's what sidetracked most of our attention.
We want to make sure that soldiers are treated differently from the Public Service Commission, because their terms with us as a state are very different from those in the Public Service.

If indeed in the end it means paying them better, I would be the first one to go for that, but I'm very mindful of the fact that we are in a recession, so I would not like to be speaking in terms of what it is that we might expect, raising expectations that we can't provide as a state. I want them to be treated as decently as soldiers deserve, I think they are doing an excellent job and I want to make sure that the state does look after them. I committed myself to this a long time ago and I would like to see it happening. The moral of our soldiers depends on how they are looked after and if we can create an environment that does that, I think I would be a very happy minister.

Journalist: You say the commission will start its work immediately, have they been told what their first priority is, or will they decide their own agenda?

Minister Lindiwe Sisulu: The commission will start its work immediately, but as I indicated earlier, I needed to take the Portfolio Committee along with me, they have requested to have a look at the names and to give the go ahead. I have met with them this morning at 11h00, they have given the go ahead, this is my first encounter with the public on this matter. I will be meeting the commission and I would like to leave it to them to work out what their agenda is, and perhaps advise us. What I do know, is that I will be giving them a timeframe, but an agenda, I think that most of them are in their own right very eminent people who know the public service, the military and knows exactly what it is that I might be requesting them to do.

Journalist: You said there were several suggestions from the Portfolio Committee; can you just share some of those with us?

Minister Lindiwe Sisulu: The Portfolio Committee was a bit concerned that the commission must be as representative as possible of a broad spectrum of political views and I agreed with them. So what we have decided as that we would, engage the commission and advise them to attach to their work a committee of experts on a variety of issues that would advise them so that we have a representative group as possible. Ten is the number, and ten is a manageable number for the commission and this is what cabinet has agreed to and within 10 you can only get so much expertise, anything beyond that the commission has a right to draw in experts who will advise them.

The second recommendation that came from the Portfolio Committee was one where every party would want to feel accommodated, so we have amended the terms of reference to indicate that the commission would be required to meet with political parties that are represented in parliament. This for us is very important because we want to make sure that we do have the buy-in from parliament, finally our job is determined by parameters laid by parliament and if we can take them along it only also shortens the time that we spend on the commission. So we will be amending the terms of reference in relation to that.

There was a concern also about the gender component of the commission, it was noted that we only have two women and I should have told them that, I am a woman too. I might not be in the commission but I have appointed the commission and I thought it would equally out the scales but I didn't think of it at that particular time. We do have members of the Democratic Alliance (DA) so we thought we would tap on their expertise on how they managed to convince the Western Cape that you can do without the necessary component of women, they promised me that they would look into that and give me the necessary rational.

We agreed also, that we can only do so much in the shortest space of time, also when we looking for particular expertise and the availability of people, this is the best we could in the time that we have available. When we finally have the permanent national commission, we will ensure that the gender equation is right, but right now, I asked them to bear with me and accept it as it is, that I would counter balance most of the men there and I think they would better believe it.

Journalist: In the changes to the Defence Act, will there be a provision for professional associations?

Minister Lindiwe Sisulu: Actually, there is right now, isn't there? You know, we will be led by the commission, I largely rely on my own experience in intelligence and we did have professional associations. We studied what happens in most other countries and this is what obtains in most other countries. Professional associations that are the rights we can't take away from anybody. But let's not pre-empt the issue, as it stands now, we do have them and we had no intention of tampering with that aspect of our law. I think when the President made his input to the public last week, he made a distinction between that, that professional associations are universally accepted as a way in which military address issues of salary and remuneration and all of that. So we had no intention of dealing with that, but please allow me not to pre-empt the outcome.

Thank you.

Issued by: Department of Defence and Military Veterans, September 22 2009

Click here to sign up to receive our free daily headline email newsletter