Summary of submissions to the MDB [B21 – 2019]

slide1. Summary of submissions to the MDB [B21 – 2019] Peter Daniels
0021 4038450<br>
slide2. SUBMISSIONS 1. RESERVE FORCE COUNCIL (RFC)
2. MINISTERIAL TASK TEAM INVESTIGATING SEXUAL EXPLOITATION AND ABUSE (SEA)

3. S THOMPSON
4. DIRECTOR MILITARY PROSECUTIONS DIRECTORATE
 
5. COL L. GERNANDT, COL P.T. MODIPANE, LT COL E.S. HOBYANA, LT COL K.S.W. MASHEGO & LT COL P. PRINSLOO.
6. BRIG GEN T.S. MATJILA & LT COL G.G. VAN DER NIET
 
7. DR X<br>
slide3. OVERVIEW OF SUBMISSIONS Seven (7) written submissions received
Surprising omission – Military Trade Unions especially SANDU
Two submissions: prepared to make verbal presentations:
RESERVE FORCE COUNCIL (RFC)
MINISTERIAL TASK TEAM INVESTIGATING SEXUAL EXPLOITATION AND ABUSE (MTT)<br>
slide4. OVERVIEW OF SUBMISSIONS THE RESERVE FORCE COUNCIL (15 pages)
Concerned severe time constraints to make a full submission.
Requests to make a final written input by 28 February 2020
“Has not been consulted on this version of the Bill as required by Section 48(4) of the Defence Act (No. 42 of 2002).
Bill in Memorandum, on page 111, states under the heading “CONSULTATION” that “Various consultation have been conducted within the Department and the Reserve Force Council.”
MTT ON SEA (6 pages)
One aspect of their mandate to input into MDB
Verbal presentation.
Input was aimed at possible changes to MDB that would assist in dealing with sexual violence in the SANDF<br>
slide5. OVERVIEW OF SUBMISSIONS 5 SUBMISISONS FROM WITHIN DEPARTMENT NAMELY THAT OF:
1. S THOMPSON (2 pages)
No consultation or inputs provided to internal stakeholders within DOD.
Questions around understanding of Military Command Council regarding Defence Force in a democracy state.
Whether costing to implement Bill was done and whether DOD has such funds available. (Bill Memo states no Financial implications – p. 111)
Appointment of the Judge Advocate General (JAG)

2. DIRECTOR MILITARY PROSECUTIONS DIRECTORATE (4 pages)
Chapter 2: a sexual offence; composition, jurisdiction and powers of the Court of Military Judge (CMA) and ; Court of Senior Military Judge (CSMJ)
Chapter 8. issues of constitutionality – Section 83, 84
Schedule 1. definition of “on service; facie curia offences; Section 58: Sentence too heavy for the offence.
Schedule 2: Pornography also includes child pornography<br>
slide6. OVERVIEW OF SUBMISSIONS 3. COL L. GERNANDT, COL P.T. MODIPANE, LT COL E.S. HOBYANA, LT COL K.S.W. MASHEGO AND LT COL P. PRINSLOO. (14 pages)
Bill current version not distributed internally in DOD inputs from relevant Stakeholders. 
Only some officials were involved in a need-to-know basis.
Bill is unnecessarily voluminous (13chapters, 3 schedules, 111 pages)
Object of legislation: to establish institutions, state functions & prescribe their composition; powers, duties and rights and all incidental matters. Where necessary offences are created and penalties are determined.
Wording, drafting form and style not always of desired standard & consistency
Does not comply with good legislative drafting principles and requires extensive refinement.
 4. BRIG GEN T.S. MATJILA AND LT COL G.G. VAN DER NIET (111 pages)
Submission as officers in SANDF -1st opportunity to engage in an analysis of MDB
Submission not exhaustive of all matters of concern due to the time constraints.
Do not have an interest to make verbal presentations on the Bill.
Comments on Heading; Preamble; Defence act of 1957; MDSMA, Regulations and Rules; Definitions; etc<br>
slide7. OVERVIEW OF SUBMISSIONS DR X (52 A3 pages)

It found that the Bill:
Bill seriously encroach on powers & role of Sec Def as accounting officer.
Overreach by including PSAP officials and members of public under military rule & justice
Elements of unconstitutionality; (appointment Judges-Pres- vs JAG; Suspension of privileges( Clause 151); The constitutionality of what is envisaged in this clause is highly questionable<br>
slide8. 1. RESERVE FORCE COUNCIL Dated 4 February 2020 - concerned severe time constraints to make a full submission.
Requests to be allowed to make a final written input by 28 February 2020 and to make a verbal presentation later.
States that the RFC “has not been consulted on this version of Bill as required by Section 48(4) of Defence Act (No. 42 of 2002).
Bill (Memorandum page 111) states under heading “CONSULTATION” that “Various consultation have been conducted within the Department and the Reserve Force Council.”
The issues raised by the RFC relate to:
Asked whether SAPS and Correctional Services have been consulted to the extent that they are affected by the Bill.
Bill’s object should be reduced to “To provide for an effective administration of military justice system and maintenance of discipline in the Defence Force; and to provide for matters connected therewith.”<br>
slide9. 1. RESERVE FORCE COUNCIL (CONT) DEFINITIONS (p.3)
 “appropriately qualified” Definition creates more hurdles; shorten it
“camp” – include vessel instead of ship
“civilian court” – align with Military Discipline Supplementary Measures Act (16 of 1999) (MSDMA) definition.
“Department” - should refer only to the Defence and not to Military Veterans as well.
“Geneva Convention” – full title should be used (p. 6/15)
“legislation” – a definition of legislation should be included
“degree in law” refer LLB but should include B Juris, B Proc BA(Law)
National security” – should it not mention “… that which must be defended?”
“on service” – appears 20 times in Bill but not defined and a suggestion is made how to define “on service”
“superior officer” – suggestion that rank of Chaplain for a disciplinary hearing hold the rank of a Colonel or its equivalent.<br>
slide10. 1. RESERVE FORCE COUNCIL (CONT) Chapter 1: Object and application
 Object of the Act
 Clauses 2 (g), (h) and (i) should be omitted as these are alien to the subject matter in the clause and belong in the Defence Act (No. 42 of 2002).
Rest of provision warrants simplification along the lines of Section 2 of the MDSM Act.
 Application of Act
Clause 3 (1) (c) - Motivating why this change is necessary
Clause 3 (1) (e) – deals with MSDS members who is either the Regulars or Reserves or Auxiliary services, making the distinction superfluous.
Questions the necessity of Clause 3 (1) (e).<br>
slide11. 2. MINISTERIAL TASK TEAM INVESTIGATING SEXUAL EXPLOITATION AND ABUSE (SEA) One aspect of mandate is to input into MDB.
Interested to make a verbal presentation at a later stage.
Input aimed at possible changes to MDB to assist in dealing with sexual violence in the SANDF.
Overall comments
Confirm the structure of military courts & state that its critical that checks and balances should be put in place to protect the independence of these structures.
Concerns here relate to a military judge being outranked by an accused and the strict criterion that only internal candidates can be considered for the JAG position.
It recommends rights of parties to review and appeal a decision of a military court, should be strengthen.
Recommends that review & appeal clauses should be reviewed to ensure there are no misinterpretations and suggest such processes should follow that of the civilian courts.
Recommends that these sections should create an obligation to consult a victim in cases where the alleged perpetrator has been acquitted.<br>
slide12. 2. MINISTERIAL TASK TEAM INVESTIGATING SEXUAL EXPLOITATION AND ABUSE (SEA) Victims Charter and representation of victim in MDB (p. 3)
Concurrent jurisdiction: civilian & military courts sexual offences 
Use of schedule 1 and 2 and placing of sexual offences & SEA
Suspension of members charged with sexual offences (p.4)
 Holding superior officers to account for failing to report cases (Sections 65, 66, 67, 69 and 115) (p.5)
 Budget (Memo p.111 Bill has no financial implications)
 Command and control (Schedule 1 sections 19 disobey lawful order and 47 conduct to prejudice of military discipline)
 Linking to other Acts (Section 45 unseemly behaviour & 68 endangering morale of own forces or allies)<br>
slide13. 2. MINISTERIAL TASK TEAM INVESTIGATING SEXUAL EXPLOITATION AND ABUSE (SEA) Definitions: To be included: (p. 5)
Fraternisation
Sex work/prostitution
Comrade
Sexual harassment
Military assessors
Filing –refer also to electronic filing on personnel files<br>
slide14. 2. MINISTERIAL TASK TEAM INVESTIGATING  SEXUAL EXPLOITATION AND ABUSE (SEA) Section 45 Furnishing particulars of trial by civilian court (p. 6)
 Section 68 Powers in respect of prints, photographs and samples of accused without warrant
 Section 93 Declaratory orders
 Section 149 and 150 – Military order policing capability and crime investigation capability
 Schedule 1 General
 Schedule 1 Section 63
 Schedule 2 Section 8 (p. 7)<br>
slide15. 3. S THOMPSON No consultation or inputs provided to internal stakeholders within DOD to comment on.
Questions around the understanding of the Military Command Council regarding the Defence Force in a democracy state.
Whether costing to implement the Bill was done and whether the DOD has such funds available.
Appointment of the Judge Advocate General (JAG
Constitution (Sec 174(6) President appoints judges but the Bill provides for the Minister to appoint the JAG (Clause 28(1); 
Questions around appointment criteria for JAG as impression is that the criteria were tailored to suit the current Adjutant General.
Clause 28(5) (a) states salary of JAG must not be less than that of a judge of High Court. Questions raised relate to how this was determined<br>
slide16. 4. DIRECTOR MILITARY  PROSECUTIONS DIRECTORATE Directorates
Bill does not address creation of 2 new directorates i.e. Director Military of Administration of Justice & the Directorate Research and Development. It suggests that these directorates should be addressed in terms of Chapter 3 of this Bill.
Definitions
Chaplain defined as an officer but no specific rank – seek clarity.(p.1)
Commanding Officer definition refers to a unit. Can include any entity under command of JAG or local representative etc.
“Service” and “on service” need to be defined (p.2 &3)
Define Court of Senior Military Judge & Court of Military Judge (p.3)<br>
slide17. 4. DIRECTOR MILITARY  PROSECUTIONS DIRECTORATE Chapter 2 (p.2)
Clause 9(1)Sexual offences in RSA tried by civilian court – Bill change this?
Clauses 11, 12, 13 do not address dissenting views amongst CMA panel
Clause 20 & 21 same as above re CSMJ
Clause 21 ASSESSORS – require guidelines for appointment
Clause 25(1) accused no longer in service – clarity for interpretation
Clause 24 & 25 jurisdiction of courts – role of pre-trial irregularities
Clause 26 – equates period of default to days accused evades arraignment
Clause 29 (3) & 30 – Inquiry to be done conjunction Ethics Committee (p. 3)
Clause 83 & 84 contrast sections 35, 10, 12 13 of Constitution (legal representation & sentences)
Clause 104 Extend right to review to State (acquittal not subject to review)<br>
slide18. 4. DIRECTOR MILITARY  PROSECUTIONS DIRECTORATE Schedule 1.
Clause 18 (2).(malingering) Issue might relate to mental illness
Clause 34. (offences relating to military courts) All in facie curia offences should immediately be tried in court.
Clause 47 (1) (e).(conduct to prejudice of military discipline) Very vague and undesirable.
Clause 48. (offences under customary international law etc outside RSA) Should not be an offence.
Clause 54. (Participation peaceful & unarmed assembly, demonstration etc) Clash with Clause 49 Defence Act 2002 & Ch. 20 of regulations?
Clause 58. (Sublet, prohibited business – not exceeding 15yrs) Sentence too heavy for the offence.
Clause 62. (Failure 2 report civilian court conviction) Suggest period to report be extended 14 days at least -from 48h
Clause 77(1) (f). Offence vague. Sentences not commensurate offences committed.<br>
slide19. 4. DIRECTOR MILITARY  PROSECUTIONS DIRECTORATE Schedule 2.
Clause 16. (computer-related acts of misconduct)
Pornography also includes child pornography which is a serious offence. This gives impression that such serious offence maybe tried in a disciplinary forum.

Clause 15. (acts of misconduct relating to driving of military vehicles)
Serious offence also being tried in a disciplinary forum.<br>
slide20. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Introductory remarks
Bill unnecessarily voluminous - contains provisions on matters that should be addressed by amendments to Defence Act, or by way of prescribed court rules & otherwise by regulations.
Object of legislation: 1ST to establish institutions, state their functions & prescribe their composition; etc
Wording, drafting form & style of clauses not always of the desired standard and consistency,
Bill does not comply with good legislative drafting principles and requires extensive refinement. It does not present as a reader friendly legislative instrument.
Ask if section 82(1) of the Defence Act should not be repealed in view thereof that both the long title & clause 2 of Bill state that Bill deals with discipline in Defence Force.
“It must be emphasized that the Bill in its current version and even previous versions, especially since 2017, was not distributed internally within DOD to elicit comments & inputs from relevant stakeholders.   Only some officials were involved in a need-to-know basis.”(p.13)<br>
slide21. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Definitions
Delete "or any regulations" in "appeal authority" as it is vague and cause interpretation problems.
“Appropriately qualified” is too vague & should be more specific.
"Chief of the Defence Force" differs from definition Defence Act.
"Civilian court". Use section 166(e) of Constitution definition.
"Military Veterans" not part of Department of Defence
“member" Defence Act definition should be used
“Military property or areas” different descriptions "
"Minister" More sensible "the Minister responsible for Defence".
"Motor vehicle" or "vehicle" defined Motor Vehicles Act, 1988.<br>
slide22. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al “Officer Commanding” include words “uniformed member who is a director in the Defence Legal Services Division". Given there is only director post in the Defence Legal Services Division this is unclear.
"Operational deployment" definition in Bill wider than contemplated deployment in Chapter 3 of the Defence Act.
"Prescribe" it must clarify that it is the Minister who prescribes the regulations and rules.
“Rehabilitative labour” Of utmost importance to clarify who will have the discretion to determine the exact nature thereof in each separate case.
“Military Law Practitioner (MLP)”.   Admission as an advocate or attorney for appointment in the department was never a prerequisite, although it may have been preferred. This must be rectified by providing for a transitional measure.<br>
slide23. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al CLAUSES
Clause 2 (p. 3 para 21) Object of Act (administrative charges & access bases)
 Clause 3: Application of Act (person attached DOD vague; attached be defined)
Clause 5: Conflict with other acts (para 26 p. 4) (Clause not ideal solution 4 interpretation)
 Clause 7: Limitation of jurisdiction of military courts (“President” replaced by “Parliament”
 Clause 10: Civilian offences under the Act (para 28 p. 4) (purpose of clause 10(2) is not clear.
 Clause 11: Composition and jurisdiction of Court of Military Appeals (para 29.1 p. 4)(inappropriate use of word "must" is illustrated in several provisions of this clause)<br>
slide24. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al CLAUSES
Clause 12: Powers of Court of Military Appeals (para 30 p. 5)
"contemplated " reference to CMA is superfluous & confusing
 Clauses 24 & 25: Prescription of Offences and Trial when accused no longer in employ or service of Defence Force: Refer Offences committed outside RSA & military discipline offences but silent if dealing with such offences inside or outside RSA.
 Clause 27: Prohibition of double jeopardy (para 32 p. 5)
Not sufficient to provide that a person may not be tried again on a charge based on same offence. What about a charge based on any fact that formed part of a charge he was tried on?<br>
slide25. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Clause 28: Appointment of Judge Advocate General (JAG) (p. 5 para 33.1- 34.7) Not clear justification for a term of 9 years or cap on one term. These proposals are new and key to appointment is experience.
If Clause 28 is accepted, means JAG will be appointed overall to provide legal services to the DOD as a whole and do away with the civilian post. Questioned whether this is approved & accepted position by Department.
Clause 29 and 30: Functions and Powers of the JAG (para 35 – 43. p. 7)
JAG is a high ranking officer in SANDF as other officers on same rank. That his/ her responsibility is military law services does not justify a different remuneration dispensation from other senior officers on the same rank.
Clauses 29(4) and (5) constitute infringement of the constitutional rights of, privacy, human dignity and fair administrative procedure.(appointment fin records, qualifications and refusal disqualify person)<br>
slide26. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Clause 31: Power of Minister iro assignment of functions (para 44, p. 8)
Not revealed what rank is envisaged for the JAG.  
Clause 34: Termination of appointment and assignment (p.9 para 49):
Any MLP, including the JAG, may be administratively discharged after prescribed procedures. Sub clauses (1), (2), (3), (4)(a)(i)-(iii) and (b), (6) and (7) must be deleted.
Clause 36: Assignment & functions of local representatives of JAG
Why would the appointment of a Local Rep be of someone who has at least 12 years’ experience when JAG is to have 9 years’ experience?
Clause 41: General duties of Military Judges and Senior Military Judges (p. 10 para 52)
It should be emphatically provided that Military Judges (Courts) have no jurisdiction with regard to the invalidity or unconstitutionality of any law.<br>
slide27. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Chapter 5: CIVILIAN COURTS (para 53, p. 10)
Deals with matters also dealt with in Chapter 4 & section 31 of Chapter 5 of the Defence Act. There is no indication of any repeal of or amend to the relevant provisions. 
Clause 68: Powers in respect of prints, photographs and samples of accused without warrant (para 54. p. 10)
It is not known whether the SAPS and the Department of Justice was sufficiently consulted
 Clauses 76 to 79: Investigation, receipt of findings, collation of evidence, etc
These clauses merely lay down procedures & should be omitted from Bill & included in Rules to be made
 Clause 92: Adjustment of fines
Adjustment of Fines Act prescribed fines after passing of time to correlate with prescribed prison sentences due to inflation. No apparent reason why that Act should not be applicable to sentences by military courts.
 Clause 93 Declaratory orders (para 57. p. 10)
Not clear what purpose is of declaring a person a habitual offender. It is inappropriate to cloud issues when in fact the same issue is being addressed elsewhere.<br>
slide28. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Clause 98 read with 162(1): Correctional centre, military prison, military correctional facility, etc (para 58 p. 11)
Provides for regulations re military correctional and detention facilities, & provision must be made for repeal of section 82(1)(u) of Defence Act.
Clause 103: Right to review of trial or declaration (para 59. p. 11)
Clause must clarify that review here at issue is first a "military" review where after the High Court may be approached.
Clause 109: Right of prosecution to appeal to Court of Military Appeals (para 60)
Meaning at end of clause by the words "a case made by that military court"?
Clause 114: Composition, jurisdiction of military disciplinary hearing and prescription
Does it serve anything to have a military disciplinary hearing of a person who has left the SANDF)? Will just be a waste of state resources & time thereof.
Chapter 11: Military Disciplinary Hearing (para 62. p. 11)
Gross irregularity that no provision is made for an implicated member to object on reasonable grounds to be heard by person who will conduct the proceedings.<br>
slide29. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Chapter 12: Military Police (para 63, p. 11)
Structure of Military Police, powers of officials & investigation of crime falls outside ambit of a military court system.
These matters are presently dealt with in Defence Act & should these prove to be inadequate relevant Act must be amended.
Clauses 149 and 150 have considerable financial implications. Clause 150 in particular is vague as to what is envisaged.(Military order policing capability and Military special crime investigation capability)<br>
slide30. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Clause 151: Suspension of privileges (para 66, p. 11)
Constitutionality of what is envisaged in this clause is highly questionable.
How can it be justified that a person be withheld from service benefits when he or she has not been convicted?
Even more questionable that a person who has been penalised as a result of a conviction is burdened with actions that effectively add more punishment.
Pension and privileges.  
Proposed terms "favourable personal actions or privileges" be defined for what it is.  This could be open to abuse, e.g. no suspension without pay.  
No provision made for application of audi alteram principle rule since these propose actions may be severely prejudicial to a member. 
This must certainly be revisited as it may appear to be unconstitutional.<br>
slide31. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Clause 157: Appointment or enlistment in Defence Force (para 68, p.12)
Clause must be deleted. Conditions regarding enrolment in Defence Force are prescribed by Minister under sections 52(2) and 53(2) for the Regular Force and the Reserve Force, respectively.
Clause 162: Regulations and Rules (para 69 p. 12)
Where rights are to be infringed it is not permissible to do so by regulation, it should be expressly dealt with by an Act of Parliament.
 Schedules 1 and 2 (para 71, p. 12)
These two schedules were not subjected to a rigorous examination due to time constraints.
In Schedule 1 many penalties appear to be extremely harsh and clauses 31 and 41 appears to deal with similar matters.
It is doubtful whether clauses 54 and 57 will stand constitutional muster.(Participation secondary strike etc and participation lawful peaceful unarmed assembly etc)<br>
slide32. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Schedule 1:  Disciplinary and other military offences.
Clause 45(c)(i)(ii). Offences relating to uniforms, decorations or medals (para 72, p. 12)
Propose words "fraternisation" and "indecent language" be defined since this could be open to abuse and auditory interpretation.
Clauses 58, 59, 60.  Illegal action with regards to military or State controlled property or premises
Unlawful use of DOD premises, etc. Clauses must not be interpreted to circumvent civil processes re evictions by unlawful occupants present in DOD property or premises.
Clause 80: Dishonesty and plagiarism.  (para 74, p. 13)
Not clear why this conduct is criminalised since this conduct could be dealt with ito of common law, e.g. fraud, etc as is currently the case. 
The sanction also appears to be excessive(imprisonment for a period not exceeding 10 years.<br>
slide33. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Schedule 2: MILITARY   DISCIPLINARY HEARING ACTS OF MISCONDUCT
Clause 20: Prohibited physical relationship (para 75, p. 13).  
Unclear why provision is included especially as it extends to any person who is engaged in a physical or sexual relationship, while clause 45(c)(iii) only refers to sex workers, prostitutes or members of the local population.  
Does this provision mean that a man and wife for example may not have physical or sexual relationships while on deployment operation?   This must be revisited.
Schedule 3: REPEAL OF ACTS
Incorrect to repeal "The whole" of the Defence Act, 1957. The Act was repealed by the Defence Act, 2002, with exception of sections 104, 105, 106, 108, 109, 111 and 112 and First Schedule. Only those provisions must now be repealed.
The two MDSMA Amendment Acts must also be repealed.<br>
slide34. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Schedule 2: MILITARY   DISCIPLINARY HEARING ACTS OF MISCONDUCT
Clause 20: Prohibited physical relationship (para 75, p. 13).  
Unclear why provision is included especially as it extends to any person who is engaged in a physical or sexual relationship, while clause 45(c)(iii) only refers to sex workers, prostitutes or members of the local population.  
Does this provision mean that a man and wife for example may not have physical or sexual relationships while on deployment operation?   This must be revisited.
Schedule 3: REPEAL OF ACTS
Incorrect to repeal "The whole" of the Defence Act, 1957. The Act was repealed by the Defence Act, 2002, with exception of sections 104, 105, 106, 108, 109, 111 and 112 and First Schedule. Only those provisions must now be repealed.
The two MDSMA Amendment Acts must also be repealed.<br>
slide35. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Schedule 2: MILITARY   DISCIPLINARY HEARING ACTS OF MISCONDUCT
Clause 20: Prohibited physical relationship (para 75, p. 13).  
Unclear why provision is included especially as it extends to any person who is engaged in a physical or sexual relationship, while clause 45(c)(iii) only refers to sex workers, prostitutes or members of the local population.  
Does this provision mean that a man and wife for example may not have physical or sexual relationships while on deployment operation?   This must be revisited.
Schedule 3: REPEAL OF ACTS
Incorrect to repeal "The whole" of the Defence Act, 1957. The Act was repealed by the Defence Act, 2002, with exception of sections 104, 105, 106, 108, 109, 111 and 112 and First Schedule. Only those provisions must now be repealed.
The two MDSMA Amendment Acts must also be repealed.<br>
slide36. 5. COL L. GERNANDT, COL P.T. MODIPANE, et al Schedule 2: MILITARY   DISCIPLINARY HEARING ACTS OF MISCONDUCT
Clause 20: Prohibited physical relationship (para 75, p. 13).  
Unclear why provision is included especially as it extends to any person who is engaged in a physical or sexual relationship, while clause 45(c)(iii) only refers to sex workers, prostitutes or members of the local population.  
Does this provision mean that a man and wife for example may not have physical or sexual relationships while on deployment operation?   This must be revisited.
Schedule 3: REPEAL OF ACTS
Incorrect to repeal "The whole" of the Defence Act, 1957. The Act was repealed by the Defence Act, 2002, with exception of sections 104, 105, 106, 108, 109, 111 and 112 and First Schedule. Only those provisions must now be repealed.
The two MDSMA Amendment Acts must also be repealed.<br>
slide37. 6. BRIG GEN T.S. MATJILA AND LT COL G.G. VAN DER NIET Heading
Name of Act is a misnomer: relates to concept of military discipline, which is a far wider than provided for. Propose amending title to “Military Justice (And Related Matters) Act.”
General Regulations vs. Regulations
Submit that Bill should refer to Regulations and not General Regulations.
Term Rules in heading in Clause 162 be changed to Rules of process and procedure.
Preamble
Bill does not provide for maintenance of discipline in DOD, as this is a command function.
Change to “To provide for a military justice system in the Defence Force in support of the Constitutional imperative that the Defence Force must be structured and managed as a disciplined military force.”
Appointment vs assignment/designated
Submit that Bill does not establish & regulate the appointment of judicial officers and court officials. Judicial officers and court officials are assigned or designated.
Consider replacing the term “appointment” with “assignment”.<br>
slide38. 6. BRIG GEN T.S. MATJILA AND LT COL G.G. VAN DER NIET Military policing powers, functions and duties to be captured in Preamble (p.2. para 7)
Bill & draft Regulations provide, inter alia, for military policing powers, functions and duties of Chief SANDF of, Provost Marshal General & military police officials.
Provisions retained, should reflect in pre-amble as well, and it should also refer to amendment of the Defence Act, 2002
Aspects to be included in Preamble
Preamble omits various aspects addressed in Bill and recommend inclusion of:
Establishment and regulating of military disciplinary hearings.
Military policing powers, functions and duties of the Chief of the Defence Force, the Provost Marshal General and military police officials.
Repeal of the Defence Act, 1957, as is provided for in Schedule 3 (and not just the repeal of the MDSMA).
Repeal of the Rules (although the Minister may repeal the rules ito sec 104 Defence Act, 1957 and sec 44 MDSMA)?
Amendment of the Defence Act, 2002.<br>
slide39. 6. BRIG GEN T.S. MATJILA AND LT COL G.G. VAN DER NIET Empowering of access and exit controls to and from military property
Above absent from Preamble: do not “propagate for its inclusion at this stage.
Revised Preamble
The suggest the following: “To provide for a military justice system in support of the Constitutional imperative that the Defence Force must be managed as a disciplined military force, the appointment of the Judge Advocate-General and the Provost Marshal General, the assignment of judicial officers and court officials, to establish and regulate military courts and the Military Disciplinary Hearing, to empower commanders and provide for related administrative measures, to designate military policing powers, functions and duties, to amend the Defence Act, 2002, repeal the Defence Act, 1957, and the Military Discipline Supplementary Measures Act, 1999, and to provide for incidental matters”.
Deletion of Defence Act of 1957 – Sections 104 to 112 (p. 3- 4 para 11)
The total deletion of this act will cause deletion of sections 104 to 112, which are still operational.
They suggest that such provisions should be included in the current draft and provide a specific draft to rewrite Clause 162.<br>
slide40. 6. BRIG GEN T.S. MATJILA AND LT COL G.G. VAN DER NIET DEFINITIONS
Add Definitions of “appeal authority” and “this Act” (para 12)
Definition of “appropriately qualified” (p. 7. para 19- 27)
Absence of the term “assigned” (para 28. p. 8
Ad definition of “civilian authority”. (para 29)
Ad definition of “civilian court”.
Ad definition of “civilian offence”.
Ad definitions of “commanding officer” & “Officer Commanding”. (p.9 para 32 & 33)
Ad definition of “correctional confinement”.(p. 11, para 34)
Ad definition of “correctional facility” and clause 98.
Ad definition of “court official”. (p. 11 para 37 & 38)
Ad definition of “custody”.(p. 12 para 39)
Ad the term “data storage device”.<br>
slide41. 6. BRIG GEN T.S. MATJILA AND LT COL G.G. VAN DER NIET DEFINITIONS
Ad the term “day”.
Ad definition of “Defence Force”.
Ad definition of “degree in law”.
Ad definition of “Department”.
Ad definition “deploying authority”. (p12 &13, para 46-49)
Ad definition “Disciplinary Adjutant”. (p. 13 para 50)
Ad definition “enemy”. (i.e. piracy is not included in the list that constitute an “enemy”.
Ad definition “Firearms Control Act”.
Ad the term “hospital”.
Ad the term of “Implementation of the Geneva Conventions Act”. (p. 14 para 54)
Ad definition “implicated member”. (para 55)
Ad definitions “Inmate” and “offender”. (p. 14 – 15, para 56 – 68)<br>
slide42. 6. BRIG GEN T.S. MATJILA AND LT COL G.G. VAN DER NIET Ad definition of “Judge Advocate General” and clauses 28 and 163.(para 72 - 81 p. 16 – 19)
Appointment requirements for JAG is prescribed in clause 28. JAG only needs to appropriately qualified serving officer who has been admitted as an advocate or attorney of the high court and with not less than nine years’ experience in the administration of criminal justice.
Possible that an officer serving in Reserve Force, who is not an MLP, who does not have any experience in administration of military justice, and is a practising advocate or attorney, can be appointed as the JAG.
The absence of a qualifying criteria relating to experience as an MLP, is of grave concern and should be reconsidered.
It is unclear whether the JAG has to be an MLP upon appointment as JAG; it seems not to be the case as he or she must only have served for nine years as an MLP.
The Bill provides, by implication, that the JAG will provide legal services
The implication of clauses 28, 29 and 36 is that the JAG will not be able to perform his or her duties under the Bill, unless he or she is a practicing legal practitioner in terms of the Legal Practice Act.
Does not provide for such administrative aspects and therefore provisions of clause 28(5) should be deleted. The inclusion of the sub-clause (5) begs the question why the drafter only provides for the remuneration and conditions of service for the JAG and not all MLPs if the drafter deemed the Bill to be the correct vehicle for providing for remuneration and conditions of service?<br>
slide43. Defence Sector overview Peter Daniels
Content Advisor: Portfolio Committee on Defence and Military Veterans
pdaniels@parliament.gov.za
Tel: 021 403 8450 Thank you<br>