Defence Force Minister Lindiwe Sisulu (otherwise affectionately known as “The Princess”), is obviously not a great fan of section 23 of the Constitution. This section states, amongst other things, that: “everyone has the right to fair labour practices”; every worker has a right “to form and join a trade union” and “to participate in the activities and programmes of a trade union”. Section 23(5) also states that every trade union organization has the right to engage in collective bargaining.
After the chaotic march by members of the South African National Defence Union (SANDU) to the Union Buildings last year, the Minister hinted to a committee of Parliament that trade unions in the Defence Force will be scrapped, stating that: “We envisaged that within the Defence Force itself, we will have professional bodies where the military will be able to come together lobby for better conditions but certainly it will not be like trade unions.” Last month she again attacked SANDU, accusing it of spreading lies, being irresponsible reactionaries and being a danger to national security.
The Princess obviously was not well informed about the Constitution when she hinted at the scrapping of trade unions last year. One suspects she was unaware then that in 1999 in the case of South African National Defence Union v Minister of Defence and Another the Constitutional Court declared invalid provisions of the Defence Act which prohibited members of the defence force from becoming a member of a trade union.
One is also not sure that she was aware of the 2007 Constitutional Court judgment in SANDU v Minister of Defence and Another in which Justice O’Reagan confirmed that members of the defence force had a right to join trade unions and to take part in public protests as long as they were not in uniform and as long as the protest would not cause “actual or potential prejudice to good order and military discipline”.
That judgment also confirmed that the right of members of the defence force who belong to trade unions were otherwise severely limited. They are not allowed to strike. They are not allowed to participate in the activities of a trade union while taking part in a military operation, military exercises or in training. Their trade unions are also not allowed to affiliate to any political party or labour organisation.
But importantly, in this latter case, the Department of Defence was severely embarrassed after it unilaterally withdrew from the Military Bargaining Council - which it was legally obliged to take part in – and refused to negotiate with or even consult the defence union unless unilaterally imposed conditions for its participation were met. But the military regulations themselves prohibited the Defence Department from doing this and the Constitutional Court declared the actions of the defence department in this regard invalid.
The recently tabled Defence Amendment Bill must be seen as a belated attempt to circumvent these Constitutional Court judgments. Given these two judgments, it is clear that the amendments – as they currently read – will not pass constitutional muster. The Bill – if passed – will create an elaborate smokescreen to hide the fact that unions in the Defence Force are to be banned in everything but name. If passed, the Bill would make Unions in the Defence Force irrelevant and powerless.
The Bill will essentially scrap Military Bargaining Councils where salaries and benefits are currently negotiated between Unions and the Department of Defence. Instead the Bill will create a Defence Force Service Commission which will make recommendations on salaries and benefits to the Minister. However, the creation of this Commission seems like a sham, as section 62B(4) of the Bill states that the Minister determines the conditions of service of members of the Defence Force, in consultation with the Minister of Finance, after receiving the recommendations of the Commission. She can therefore ignore the Commission (and as a Princess, she would probably not want to take advice from a lowly Commission – even one hand-picked by herself).
In a rather lame attempt at circumventing the Constitutional Court jurisprudence on the right of soldiers to join trade unions and bargain collectively, the Bill provides for a rather elaborate but completely fake mechanism that pretends to imbue the Commission with independence and the power to bargain with military trade unions about salaries and benefits for soldiers. In the end, what the Bill will do, is to give the Minister the final say on what the salaries and benefits of soldiers will be – regardless of anything that happens at the Commission.
The Bill is a mish-mash of contradictory and unnecessary provisions all trying to hide the simple fact that this Bill is aimed at ending the existence of trade unions in the military and thus at subverting the judgments of the Constitutional Court. It provides for a completely unnecessary and elaborate (but ultimately fake) mechanism for the appointment of members of the Commission to try and hide the fact that the members of the Commission are really selected and appointed by the Minister and have absolutely no power.
In terms of the Bill, the Minister will select the members of the “nominations committee” that will nominate people to the Commission. She will also be able to select the members of the Commission from a list of names nominated by this “nominations committee”, who was in any case selected by her. In effect, she will therefore be able to nominate the members of this Commission herself. And in any case, even if she does not ensure the selection of trusted lackeys and yes-men to the Commission (as the Bill invites her to), she has final control over its members as she can fire them all at any time for very vague reasons.
The Bill states that the Minister can remove any member of the Commission, inter alia, if she decides that the member has failed to fulfill a function in an effective and efficient manner. She can also direct the Commission to take any action specified by the Minister if the Commission has failed (according to whom?) to fulfill a function in an effective and efficient manner. One can imagine a Princess easily finding fault with the work done by the Commissioners, so they will be serving at her pleasure and will either obey her wishes or be fired.
Given these draconian powers handed to the Minister by the Bill, and given its complete lack of power, it is quite laughable that the Bill pretends to create an independent body by stating that the Commission must act without fear, favor or prejudice. But just in case Commissioners get the wrong idea, the Bill also states that the Commission is accountable to the Minister. One can imagine a poor Commissioner trying to account to Minister Sisulu while acting at all times without fear, favor or prejudice. This is about as possible as picking your nose with your big toe.
In any case, this is all irrelevant, because the Commission has no power as the Minister may ignore any recommendations it makes and may implement her own views. The Bill creates the Commission in a completely transparent attempt to involve Unions in utterly irrelevant bargaining and consultation with it, while reserving all the power for the Minister to decide for herself how her fiefdom should be run. If passed, there will be no use in belonging to a Defence Force Union and, in effect, Unions would no longer be able to attract members and to function effectively in the Defence Force. The Bill thus places severe restrictions on the rights of soldiers to join trade unions and the rights of such unions to engage in collective bargaining. It would not pass constitutional muster.
Now, there are plausible arguments to be made on either side about the wisdom of our Constitution allowing soldiers to form and join trade unions and for those trade unions to engage in collective bargaining. Personally I am agnostic about this issue. But our Constitution does guarantee these rights and unless the Constitution is amended, the Minister should abide by the Constitution. This Bill is scandalous, not because it gives the Minister enormous power (although it does), but because it represents such a transparent and ham-handed attempt to subvert the Constitution and the judgments of the Constitutional Court.
Once again, I am forced to ask: who is advising the Minister on these constitutional issues? It cannot be anyone with integrity or any respect for the Constitution, that’s for sure.
@ Pierre
“Once again, I am forced to ask: who is advising the Minister on these constitutional issues?”
I am convinced that, whoever it is that is advising the Minister has at minimum a Doctorate, and probably some experience litigating in state courts in New Jersey and Connecticut. He or she may even have had the privilege of counselling the finest legal mind to have graced our bench since Lord de Villiers!
Paul Ngobeni was appointed earlier last year by Sisulu as her part-time legal adviser. Sisulu, in a written answer to a question by DA MP Lindiwe Mazibuko, said Ngobeni was remunerated “on compensation level IV. He is on R601 761 per annum (i.e. half the remuneration of a full-time Special Adviser calculated at R1 203 522.”
Nice work if you can get it …
The power struggle between SA’s Judiciary and legislature is mirrored by the efforts of the USA’s judiciary to rewrite at will that country’s Constitution
by legislating from the bench , as evidenced in :
MEN IN BLACK
by Mark R. Levin
Afterword
BY EDWIN MEESE III
Excerpts:
“Men in Black is one of the finest books on the Constitution and the judiciary I’ve read in a very long time. It combines history, law, and current events in an extremely interesting, insightful, and compelling examination of a dire problem—the intensifying assault on our constitutional process and governmental structure by a relentlessly power-hungry judiciary. Men in Black is a clarion call to those who care about the manner in which we, the people, are governed. This is an issue near and dear to my heart. It was an issue that greatly concerned President Reagan. As attorney general, I spoke repeatedly about the judiciary’s alarming disregard for its limited constitutional role. Unfortunately, the situation has only worsened.”
Men in Black describes how federal courts, and the Supreme Court in particular, treads recklessly on virtually every avenue of modern life and governance. Even in areas such as the political process and electing a president, over which the framers gave exclusive authority to Congress and the states, judges and justices have interjected themselves and twisted fundamental constitutional precepts—such as free speech and equal protection—into dangerous weapons.
“Men in Black cogently explores the rationale for the judiciary’s relentless quest for primacy over the other branches. It details how the Supreme Court has become the de facto driving force for social engineering in the twenty-first century, through its convoluted immersion into issues such as same-sex marriage and abortion—areas that should be largely beyond its purview. It matters very little to many of the men and women on the bench today that the will of the people—expressed repeatedly in election after election and poll after poll—rejects the radicalization of our social institutions. The courts increasingly abolish, alter, and substitute the foundational principles of our republic for their own preferences.
The judiciary was not established to divorce the power and reach of the public sector from the people it is supposed to serve. Nor was it intended to strip the state governments—the entities most responsive to the people, from whom sovereignty flows—of the authority to act as those governments generally choose, as long as they don’t violate the federal powers and rights specifically enumerated in the Constitution.
James Madison, whom many credit as the “father of the Constitution,” proclaimed that the combination of the judiciary’s powers with those of the executive and legislative was “the very definition of tyranny.”
@ nimrod
is this the same edwin meese who was vigorously opposed to the implementation of the miranda warning ?
@ Etienne Marais
Affirmative.
“The Constitution of the United States has been described as “the most wonderful work ever struck off at a given time by the brain and purpose of man.” But the Constitution can fulfill that promise only if it is faithfully interpreted by those responsible for its application to our legal system. When the federal judiciary usurps the authority of the legislative and executive branches, and when judges substitute their personal prejudices and policy preferences for what the Constitution actually says, it creates a potential crisis for our democratic republic. ”
- Edwin Meese .
@ nimrod
yes, the same meese…i thought as much
here’s another quote from the famed “protector” of the american constitution:
U.S News & World Report asks: “You criticize the Miranda ruling, which gives suspects the right to have a lawyer present before police questioning. Shouldn’t people, who may be innocent, have such protection?”
Meese answers: “Suspects who are innocent of a crime should. But the thing is, you don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect.”
see, every nation has their menzi simelane
@Etienne Marais
My Thesis : Judicial usurpation of politics ( http://www.firstthings.com/article/2007/11/001-the-end-of-democracy-the-judicial-usurpation-of-politics-30 )
Your Antithesis : ?
In classical philosophy, dialectic (Greek: διαλεκτική) is a form of reasoning based on the exchange of arguments and counter-arguments, advocating propositions (theses) and counter-propositions (antitheses). The outcome of such an exchange might be the refutation of one of the relevant points of view, or a synthesis or combination of the opposing assertions, or at least a qualitative transformation in the direction of the dialogue.
One of my best laughs of the day was the following, a reply in Parliament to a FF+ question, reported at politicsweb as follows:
FF Plus MP Pieter Groenewald asked Minister Sisulu “why is the submarine SAS 101: Manthatisi currently being refurbished in the dry dock?” to which the Minister replied: “Where else would the Honourable Member suggest we should refurbish a submarine?”
For more of her inane-insane-ness see:
http://politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=181373&sn=Detail
Nimrod writes:
“In classical philosophy, dialectic (Greek: διαλεκτική) is a form of reasoning based on the exchange of arguments …”
Yes, Nimrod, this sounds about right.
But tell me this: did these great Greek dialecticians ever attempt to frame their OWN arguments? Or did their discourse consist ENTIRELY of lengthy cut-and-paste jobs?
@Mikhail Dworkin Fassbinder :
For the sake of continuity , many legal arguments are based on precedent , according to my understanding .
I have no need no need to reinvent the wheel , and my sources are acknowledged.
I have to say that I have not read any original ideas/concepts on this blog. Polemic seems to be the weapon of choice of most participants .
Ahh Nimrod: I wish to respond to this:
Polemic: 1. A controversial argument, especially one refuting or attacking a specific opinion or doctrine.
2. A person engaged in or inclined to controversy, argument, or refutation.
adj. also po·lem·i·cal).
3. Of or relating to a controversy, argument, or refutation. (Farlex Free Dictionary)
To say that the weapon of choice on this blog is polemic, I cannot accept. What I have found, now for a few years of reading and valuing the Prof’s posts is consistently truly valuable discussion, the airing of views, and even I, a stubborn old man, have re-evaluated my own views upon reading others.
As for precedent law, its very nature is that it changes with the times, as law and societal circumstances evolve. And for that matter, in my view there is not enough precedent law in SA. Those judges who don’t develop meaningful precedent need to rethink their purpose, courage and whether they actually attain meaningful success in law.
On a more personal note: I knew a man, worked with him for two decades; he set precedent after precedent, not here, but in the west. When he died at 90 less a few days (his retirement date) and the day before his final sitting which I had to cancel, he had never been overturned, nor lost his mental acuity.
So here’s the challenge. Match that! Anyone up to it?
Nimrod, would you consider this post polemic?
Sirjay Jonson , I concede that my perception may not conform to reality in relation to your postings.
The honorable Minister of Defence who has lately shown (by this bill and other actions) how much she (dis)regards the Constitution and the Parliament, is she not the one who is also being promoted (in some quarters, allegedly including her own) as a credible candidate for the Presidency of ANC and South Africa? What wonderful prospects….
According to some newspaper stories, one reason is her gender, another is that it would honour her father (strange, in a way, to use someones lineage as an argument for giving them supreme executive power as SA is not a monarchy). Maybe someone with more familiarity with SA politics can tell me what wonderful things the honorable Minister has done that would make her deserve the highest position in SA?
So Prof, are you angry with the Minister being affectionately referred to as Princess because (a) you would rather have that pet name or (b)you actually think she is some elitist snob from ANC royalty and that is something negative.
I do not want to raise an issue of law, but an issue of ideology. And before many of your sycophants jump up and down claiming that this is legal blog, I would remind them that more often than not the writer of this blog moves far from law into the realm of ideology and politics.
At the risk of being called a fascist or national socialist, let me state that I agree with the Minister. But I also think that the Minister does not go far enough. My understanding of a trade union is that it was for workers not for white collar but blue collar workers. It gave the blue collar workers who were by far the most vulnerable a distinct advantage over other employed persons. Therefore white collar workers like teachers, lecturers, prosecutors, lawyers, advocates, office clerks (particularly in government bureaucracy), financial analysts, stockbrokers, etc should not be allowed to form a trade union. To me this is a recipe for disaster for the working class, it allows the middle class, wanna-be-management use working class tools like trade unions for middle class objectives which will come at the expense of the working class. These profesionals are supposed to have a commitment to the learning and practice of their profession not just the rands and cents, therefore they can have an association which will not only discuss wage issues but content of the work.
Finally for the record, in a non-conscription and professional national army, a trade union cannot be allowed. The Minister is correct, I just wish the President and Ministers of Education (Higher and School) would raise this matter with their allies especially in the trade unions.
@ Donovan
In addition to the Constitution, please see the Universal Declaration of Human Rights 1948, section 23.4:
“Everyone has the right to form and to join trade unions for the protection of his interests”
And art. 22 of the International Covenant of Civil and Political Rights:
“1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this rights other than those which are prescribed by law and which are necessary in a democractic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in the exercise of this right.”
There is no doubt that restricting white collar workers rights to form trade unions would be against SA’s obligations under the above provisions. Similarly, whereas restrictions on the armed forces is specifically allowed, prohibiting trade unions in the armed forces altogether will clearly go beyond what is allowed and be contrary to SA’s international obligations.
Donovan, do you advocate that SA should try to leave the International Covenant on Civil and Political Rights?
@ Ricky. Thanks for the reply, I won’t fault your good intention but I do not raise this as a matter of law but of ideology. And as left wing and progressive as it may sound, but for me if one allows middle-class professions to be unionised it will only result in working class issues playing second-fiddle to middle class issues. A case in point would be wage (or read salary) issues rather than then overall change of the economic system.
@ Donovan
Thanks for that. But in that case, you should not take about “being allowed” – but about whether white collar workers ought or ought not be members of trade unions. “Being allowed” would indicate that you would want a ban on something – which would be clearly against SA’s international commitment.
And, from the perspective of ideology, whereas I can see you point that the poor down-trodden workers need the protection of trade unions much more than white-collar workers, where do we stop once to start to ban various organisations and freedoms? You could probably argue that a number of assocations are not beneficial for society as a whole but freedom, including the freedom to associate, is key in maintaining a democratic, pluralist and free society. And I am sure that you could find other people who would argue that also trade unions for white collar workers are beneficial.
Donovan, I do not want to pull a Dworkin Fassbinder on you, but if one follows the logic of your argument all trade unions should be banned. 40% of adult South Africans are not employed and many of them are unemployable in the modern market economy because of the poor education system and structural poverty in South Africa. By definition this 40% do not belong to trade unions and cannot benefit from its work. Trade unions by definition fight for the rights of the employed – not the unemployed,who are the most vulnerable members of society. Trade unions therefore often work against the interests of the most vulnerable unemployed as they fight for better wages and conditions for the employed not for more workers to be employed and for a complete overhaul of the economic system which helps sustain the membership fees on which trade unions are based. Trade unions can therefore be seen as a tool of the elites to retain the economic status quo as it provides some stability in the system and helps to create a relatively stable working class and lower middle class to the detriment of the army of unemployed who will never get any chance because of an unholy alliance between elites and unions to preserve the status quo. (Why else do you think apartheid government legalized trade unions in the late seventies?) Trade union members have billions of Rands invested on the stock exchange through their pension funds and it is not in their interest to change the economic system in which almost all itchier savings are invested. Strong trade unions in a market economy thus makes the kind of revolution to overthrow the existing economic system almost impossible.
In any case, section 23 guarantees these rights for everyone, so if the Minister (and you) think the right should be taken away, then a proposal to change the Constitution is the way to go. But the Minister will never do that because that will upset Cosatu, an important ally in future potential political leadership battles. Now she is proposing legislation that tries to circumvent the constitution through a smoke and mirrors exercise. That undermines the Constitution and is fundamentally dishonest.
The Enemy of Political and Industrial Democracy
BY
JOHN SPARGO
CHAPTER VI
THE BOLSHEVIK WAR AGAINST DEMOCRACY
” Instead of being fanatical idealists, incapable of compromises and
adjustments, the Bolsheviki have, from the very beginning, been loudly scornful of
rigid and unbending idealism; have made numerous compromises, alliances, and
“political deals,” and have repeatedly shifted their ground in accordance with
political expediency. They have been consistently loyal to no aim save one—the
control of power. They have been opportunists of the most extreme type. There is
not a single Socialist or democratic principle which they have not abandoned when
it served, their political ends; not a single instrument, principle, or device of
autocratic despotism which they have not used when by so doing they could gain
power. For the motto of Bolshevism we might well paraphrase the well-known line
of Horace, and make it read, “Get power, honestly, if you can, if not—somehow or
other. “
Oh but you are trying to pull a Fassbinder, no matter how much you claiming you do not want to!
Prof you reveal your ideology by believing that having a job makes one elitist, and therefore any person working is an enemy of the unemployed. In an under-developed country, the aims and the objectives of the developed world are found in first world centres, as Anders Gunder Frank and Immanuel Wallerstein concurred, which are usually cities like Cape Town, Joburg, etc. But these citadels are not just empty without people. The unconscientised middle class (and at times even the unconscientised lower middle class) unwittingly become representatives of the developed world, which is only succesful because of the exploitation of the under-deveveloped world.
Mine is not an argument against trade unionism or indeed the formation of trade unions. Rather it is against narrow trade unionism, or indeed, workerism, which places at the centre wage issues above all else. And the middle class professions being unionised results in the over-centredness of wage issues rather change of systems and development. The result is that the government which is only the only elected body in society becomes the main focus and target of trade unions, and the private sector which clearly holds the wealth of the country either directly or indirectly through credit and interest get off scot-free.
Our trade unions are being captured by middle class forces with short-sighted objectives. Read Poulantzas, to see what the outcome will most probably be.
At the risk of pulling a Fassbinder, let me say: Donovan is right — and so is Poulantzas. Reactionary workerism has been the sworn enemy of our National Democratic Revolution. We can learn from the People’s Republic of China, which has achieved prosperity by ensuring that the workers’ aspirations are channelled through trade unions that are always subject to the discipline of central democratic structures!
@ Ricky
I am a little dumb, what is it that you are exactly saying , that middlle class workers are not entitled to the same protection as blue collar workers?
what then exactly is your definition of an employee and therefore the consideration that if you do a certain job that you are above another? that employees should be differentiated between because of the type of work that is being done, surely that is an elitist argument.
and please clarify your definition of working-class issue because from speaking with both so-called blue/white collar workers the issues that exist in the workplace is similar.
The employment relationship in both exist on an unequal power relationship and i am aware of legal professionals that are sitting with exactly the same problems with their employer as a person who work as a groundsman with his employer, and both, an the majority of cases, are unaware of how to approach their employer without the consistent fear of victimisation and trade unions fill this important vacuum. I wonder whether you have ever heard the employer tell you that making use of your rights e.g. making use of grievance procedure or raising an employee related issue is a career limiting process.
Trade unions play a very big role in regulating the workplace relationship which in most case = workplace peace which equal a happy workforce and therefore a productive workforce. a productive workforce therefore equal better service delivery.
To argue that employment issues for white collar workers is only relegated to issues which relates to Salaries, is to either not understand the working environment or going through the employment relationship with blinkers on.
Clearly all persons are entitled to the same treatment if however you propose that the rights of certain persons are limited from joining a trade union on what basis would this rights be limited.
sorry the above was actually raised to Donovan.
@Donovan quote – “the developed world, which is only successful because of the exploitation of the under-developed world. ”
Please explain what evidence you have to support the above contention.
Development Economists have for years researched succesful versus unsuccesful economies , developed versus developing economies and drawn a number of conclusions.
I cannot recall any academic research that resulted in the conclusion that developed economies owe ALL their relative success to the exploitation of less developed economies (although one could argue that it is a factor – migration of skilled labour / brain drain etc).
Sounds a bit more like a Political opinion than an Economic fact.
Please cite your references and quote your sources.
Oh, and which group did the previously undeveloped countries that became developed countries exploit in order to advance? (Malaysia comes to mind, that had a per capita GDP lower than Ghana in 1945).
I repeat it is political opinion for ideological objectives. Read up on the domination of the proletariat and you may understand what I’m writing about.
More particularly read about Greece and how the German premier, Merkel, will lend money, taken via austerity measures directed at the workers, so they can lend it via the IMF, to Greece so that Greece can then pass it onto German Banks. The losers in both counts will be the working class in Germany and Greece, the winners: the banking executives will still get their bonuses and the politicians will talk about a stable economy although social spending would have been reduced.
On Malaysia, it was not in a democracy. Moreover, it first allowed for the elite (like Saudi Arabia) get the lions share, and that western companies made the profit. Oh, and a slight mistake its not only but it is the overarching reason for the development of Europe and USA. The entire welfare and social system came from colonialism of Asia, Africa, and South America.
Understanding the Defense Amendment Bill
Professor Sipho Seepe
Strategy Consultant and Special Advisor to the Minister of Defense
An appreciation of the current defense amendment bill would be incomplete without locating it within the constitutional mandate and the developments in the ever-changing defense environment.
The South African Constitution is deliberate and unambiguous with regard to its expectation of the Defense Force. It purposefully enjoins us to establish a defense force that “structured and managed as a disciplined military force.” The emphasis on discipline is obvious. Without discipline the defense force will be unable to fulfill its primary function of defending and protecting the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force. This translates to defending and protecting our critical interests, supporting our foreign policy by assisting our allies and supporting peace operations in the continent. In addition, the defense force helps in beefing up civil power through its support it gives to the police, border protection, disaster or emergency relief.
More often, this responsibility involves exposure to enormous personal risks and sacrifices arising from heavy operational commitments. Members of the SANDF are expected to spend large amounts of time away from home on back-to-back deployments. To the extent that they bear the responsibility as the last defense of our democracy, they are our ultimate insurance policy against any threat within and outside the country. For their sake, and ours, we must preserve their caliber and morale.
It does not take much to appreciate that their commitment cannot be reduced to issues of pay. There are other intangibles such as pride in the service of one’s country and “enjoyment of a lifestyle that involves adventurous training and activities [that] make remuneration one of many factors that motivate personnel.”
In her budget vote of 2009, the Minister of Defense & Military Veterans Ms Lindiwe Sisulu sought to underscore this very issue in stating that “I want to assure Defense Force staff that their conditions of service are a concern…We are acutely aware that the state of readiness of the SANDF depends primarily on the morale of our soldiers.”
She went further to indicate that “we are considering making a request for a separate dispensation for the Department of Defense that would allow us to creatively deal with our own needs and the specificities of our own unique security requirements.” All these commitments, which are the subject of the present bill before parliament, were undertaken to motivate its personnel and encourage recruitment and retention.
The Ministry of Defense & Military Veterans has gone a long way in establishing a different dispensation. The concept was approved by Cabinet. It also approved the regulatory mechanism to govern and oversee the dispensation. The dispensation allows us to accommodate the unique nature of the defense force. It is precisely because of this that we demand and take extraordinary measures to enforce discipline. Soldiers are not tied to the state by an employment contract but by an oath.
The new dispensation presents a creative space to innovatively respond to the unique challenges of the defense force. It has used the space to develop an HIV/Aids policy that uniquely responds to its circumstances. It is a matter of public record that its policy on HIV/Aids is not only precedent setting but is considered the most progressive in the world.
The present bill, which serves to amend the Defense Act of 2002, is the culmination of the process that started with the Minister’s 2009 budget vote. Three critical concerns are being presented; the first is the establishment of the permanent Service Commission to replace the current Interim South African National Defense Service Commission (INDFSC). Contrary to the misrepresentations, the bill before parliament has been drafted by the INDFSC. Credit (and in some cases criticism) is due to their sterling work.
The second amendment relate to remedying the lacunae in the legislation. The constitution refers to the President having the responsibility, among others, of appointing the military command. However, no definition is provided in the legislation of what the military is or entails.
The last aspect of bill deals with is the empowering of the Chief of the SANDF to recall members of the Reserve Force. At the moment members of the Reserve Force can only be recalled when the country is at war or during the state of emergency. As a resource, they are under-utilized and their combat readiness is severely compromised. The bill aims to remedy this situation inasmuch as it responds positively to their request to be recalled for service when the Chief of SANDF deems it fit.
Far from wanting to assume dictatorial powers, the Ministry of Defense & Military Veterans is taking all the necessary steps to ensure that it delivers on its mandate of structuring and managing a professional discipline defense force in the service of the country and the nation.
Thank you to Prof de Vos for getting right to the heart of the matter. Mr Mabaya and his co spindoctor can provide carefully crafted statements (that take up a lot of space but really say nothing) into infinity. The Prof is writing on a matter of jurisprudence and its subverting by dishonest means and narrow political interest. You dont have to like the law, just respect it. Mr Mabaya should focus on the massive defamation lawsuit that his statements about SANDU in the media has produced, rather than surfing blogs at the taxpayer’s expense trying to sell cowdung as peanut butter.