PUBLIC HEARING ON DEFENCE REVIEW
WRITTEN SUBMISSION BY THE SOUTH AFRICAN SECURITY FORCES UNION (SASFU)
It is true that the global strategic environment on Defence and Security has changed substantially since the white paper on Defence in 1996 and Defence Review in 1998. It is also true that the South African strategic military environment changed even more drastically when the Constitutional Court declared in May 1999 that Soldiers have rights as citizen in uniform. Taking into consideration the ethos of a Defence in Democracy, the highest Court in the land confirmed the rights of men and women in the armed forces to form and join Trade Unions. Our submission as SASFU is focused on the context and need for an environment that allows the National Defence Structure to discharge their constitutional mandate of managing a disciplined military force, while at the same time upholding the legally and constitutionally guaranteed rights of Soldiers.
ONE DEFENCE, ONE UNION!!!
Comparing and contrasting the practical environment on the ground and the principles and ideals of the previous Defence Review it clear that a huge gap exist between the framework set by both the Constitution and various legal instruments and the everyday service condition of Soldiers. We believe the greatest challenge facing the current Defence Review process is not only to produce a new document but ensures that adequate measures and processes are put in place to ensure that the Transformation of the SANDF takes place effectively. The real challenge for the current Review is to give tangible content and substance to institutions and processes that closes the gap between the degrading realities still suffered daily by most soldiers and the aspirations and ideals of both the constitution and the envisaged Defence Review and subsequent Legislative framework.
DEFENCE IN DEMOCRACY
The South African Security Forces Union accepts and endorses the need for a professional and disciplined National Defence Force, that is well equipped and resourced to discharge its Constitutional and National functions. We also assert the Constitutional Court ruling that Soldiers have both civil and labour rights in an open, free and democratic South Africa. It is therefore our specific submission that both the substance and principles articulated in the very important judgment that legalized our existence as a Military Trade Union as well as the rights of soldiers are adequately addressed and catered for in the new Defence Review.
KEY AREAS OF CONCERN
We regard the following areas of Defence and Military’s sphere as critical and requiring special attention in the changing strategic environment:
This is one of the areas that most affect middle and lower ranking members of the Military. As a Military Trade Union we are particularly exposed to the rigid, inflexible and often unfair provisions and processes of the Military Justice System. This system while necessary and important, currently lack credibility in the eyes of most soldiers. It is particularly so as the bulk of soldiers who appear before Military Courts are African and largely from non-statutory forces.
Unless and until an open, transparent and representative system of military justice is put in place the negative perceptions will persist. Currently it is not always clear which matters are labour related and which are disciplinary. The processes in place are open to abuse and tendencies to victimize lower ranking soldiers. Charges are easy to trump and fabricate as evidenced by the widely held belief that Military Courts are largely used not to maintain discipline and justice but to flash out "trouble makers" out of the system. We particularly submit that the following areas of military law and justice system should be reviewed:
Appointment and Composition of the Military Judges
Independence of both the Prosecuting Authority and the Defence Counsel System
Military Appeal System
Speedy and Fair legal Processes
Bail and Release from custody processes
Guidelines to the legal and Penal jurisdiction of military court structure
Regarding the significance of the Military justice systems in promoting discipline, fairness, professionalism and justice in the lives of ordinary soldiers, we are particularly concerned that there is no integration and clear oversight by the Civilian justice system to ensure constitutional compliance by the Military justice system. We submit that at least the military Court of appeal should be made part and parcel of the higher civilian courts.
Given the hierarchical nature of the Military, the chain of command that is necessary to maintain the very fabric of military life, it is critical that a clear and unambiguous Military Labour Relations Regime akin to the Labour Relation Act is put in place to address the specific conditions of military personnel. This regime should spell out clearly the Rights and Obligations of Soldiers. Currently a substantial area of military labour law and regulation is either grey or stacked heavily in favour of the Employer.
It is never clear, in the current regulatory environment, what specific rights and procedures a Military Trade Union can access and pursue to assist their members in their daily service life regarding labour matters.
There are no clear-cut and/or adequate processes to resolve and deal with the following areas in an open and transparent way:
Promotion / Proper Staffing
Redress of Wrongs/ Grievance Procedure
Discrimination and Victimisation
We find this area particularly complicated due to the thin line between a legitimate grievance and what could easily be construed as ill discipline/insubordination within the military context. In fact the biggest grey area in military regulation currently relates to which areas are DISCIPLINARY IISUES and which are LEGITIMATE LABOUR RELATION MATTERS. SASFU believes that lack of clarity and certainty in this matters has led to substantial abuse and victimasation of Soldiers as almost everything could be referred to Military Courts and dealt with as a Disciplinary matter.
We submit that a special labour forum/process should be constructed and put in place to deal with Labour relations and grievances effectively. The success of this procedure would be in how well it manages to make Officials and management of the Department of Defence and Military Structures responsive and accountable. It is really pointless to have a grievance procedure that looks good in paper but is in reality not enforceable
We believe that the fact that Soldiers can form and join Military Trade Unions but cannot exercise the right to Strike like their civilian counterparts, places a greater responsibility on the Department of Defence not only to negotiate in good faith but also to put in place effective mechanisms to resolve disputes.
We believe that particular attention should be given to this area of the law, given South Africa’s envisaged participation in Peacekeeping operations as a regional power. Very clear guidelines and regulatory environment consistent with International Law, Constitution and various International best practices regimes is required to equip South African Soldiers with the best framework. We submit that No South African Soldier should be sent abroad to a conflict area unless they are properly TRAINED, EQUIPED and RESORCED. Their constitutional rights should also be protected and upheld even in foreign soil but within the constrain of INTERNATIONAL LAW.
We regard access to information as vital and even critical if Soldiers and Military Trade Union are to effectively exercise their rights and obligation as accorded by the law. Indeed the entire Defence Review exercise would be pointless if attention is not given to this important aspect of administrative regime. The following administrative issues are relevant and important:
The administrative freezing of Salaries due to AWOL
The administrative discharge of Soldiers
Nomination and selection for Military and non military courses
Equal opportunities in foreign appointments, courses and training
Specific challenges and Constrains
The biggest constrain and challenge in the National Defence Force is the resistance and reluctance to embrace TRANSFORMATION. In order to overcome this, specific programmes, processes, institutions and legal forums are required to make the DoD responsive to the challenges facing soldiers on the ground.
We humbly submit that greater consultation and cooperation between the various stakeholders should form the basis of producing an informed and realistic Defence Review that takes into consideration the changed strategic environment.