1. The Portfolio Committee on Defence has invited the National Conventional Arms Control Committee (NCACC) to appear before it land make a presentation about its activities over the period 2003-2004. The NCACC is made to understand that this presentation to the Portfolio Committee on Defence is scheduled for 02 August 2005 at 09:00 in Parliament, Cape Town.
SUBMISSION TO PORTFOLIO COMMITTEE ON DEFENCE: NATIONAL CONVENTIONAL ARMS CONTROL COMTEE'S (NCACC) ACTIVITIES OVER THE PERIOD 2003-2004: 02 AUGUST CAPETOWN
a. Prof A.K. Asmal (Chairperson).
b. Minister R. Kasrils (Deputy Chairperson)
c. Minister M. G. P. Lekota.
d. Minister J.T. Radebe.
e. Minister A. Erwin.
f. Minister L.N. Sisulu.
g. Minister N.C. DIamini-ZUma.
h. Min B.S. Ngubane.
i. Deputy Minister N. Madlala-Routledge.
j. Deputy Minister A.G. Pahad.
k. Deputy Minister V.J. Matthews
l. Deputy Minister MB Mphahlwa
9. Legislative Developments. In May 2003, the National Conventional Arms Control Act (Act 41 of 2002) came into force thus totally repealing the Armaments Development and Procurement Act (Act 57 of 1968), which had become outdated. The National Conventional Control Act (Act 41 of 2002) thus constitutes a new regulatory framework under which the NCACC business is conducted. In order to provide for more details to the provisions of the said new Act, a process was started at this period to draft Regulations to this Act.
10. Promotion of Administrative Justice. The Promotion of Administrative Justice Ac (Act 3 of 2000) entrenches individuals' rights to be subjected to procedurally fair administrative actions. In terms of this Act, individuals have legal rights to be furnished with reasons pertaining to administrative decisions taken against them.
11. In the context of conventional arms control, individuals or companies whose applications have been turned down by the NCACC have a legal basis to request reason for such decisions. Taking into account the sensitivity and confidentiality of cases that the NCACC deals with, it is not always possible to provide reasons for all permit applications turned down. In view of this, the NCACC decided to request an exemption from the full application of this Act. This request was based on Section I of the Act, which provides that the Minister of Justice has the power to exempt administrative institutions from the application of the Act The NCACC's request for such exemption from the full application of this Act was turned down.
12. Amendment of Cabinet Memorandum No 4 of 1997, In 1997 a Cabinet Memorandum was prepared on the destruction of small arms and ammunition. This Cabinet Memorandum had specific recommendations for Cabinet approval. On the basis of that Cabinet Memorandum, Cabinet took a decision that "disposal should be by means of destruction, of all redundant, obsolete, unserviceable and confiscated semi-automatic and automatic weapons and purpose-built sniper rifles of a calibre smaller than 12,7 (50- inch) as well as all ammunition for them held in stock by the Department of Defence and other Government department and parastatals "
13. During the implementation of this decision there was, however, interpretation confusion. There was confusion on whether the Cabinet decision included small arms of a 12,7 mm caliber or it excluded such caliber. In order to address this interpretation confusion, a need arose for the Cabinet Memorandum on which the Cabinet decision was based to the amended. The process to amend the said Cabinet Memorandum commenced at this period but was to culminate in 2004.
14. Cabinet Memorandum No 3 of 2003. In 2003 a Cabinet Memorandum was prepared on South Africa's position concerning arms transfers relating to Israel. This Cabinet Memorandum was prepared on the NCACC's instruction. This Cabinet Memorandum recommended that the DOD should initiate a process to terminate its dependence on Israel for equipment, spares and technology in all respects excluding the following defence systems:
a. Maintenance of Cheetah Aircraft.
b. Strategic in-flight refueling.
c. The V4 Air -to-Air Missile.
15. The exemption on the defence systems indicated above was to the extent of the life cycle of these systems. The recommendations, which were later endorsed by Cabinet as a Cabinet decision, were informed by the continued unstable political situation in the Middle East where Israel was one of the main actors.
16. Regulation of Foreign Military Assistance. In the period under review, the NCACC considered two applications for rendering military assistance in foreign countries. These applications were submitted in terms of the Regulation of Foreign Military Assistance Act (Act 15 of 1998). The NCACC denied permits to both these applications.
17. In the same period, the NCACC referred two cases to the National Director of Public Prosecutions for consideration and possible prosecution. This was due to the fact that in the view of the NCACC and the South African Police Service, the provisions of the Regulations of Military Assistance Act (Act 15 of 1998) were violated. The National Director of Public Prosecutions, however, indicated that he could not prosecute the persons involved in the case due to difficulties in obtaining the necessary evidence for the cases.
18. Permit Applications. As its primary functions, the NCACC considers defence industry's permit applications and issues or denies such permits. In executing this important function, the NCACC considers all relevant factors as stipulated in Section 15 of the National Conventional Arms Control Act (Act 41 of 2002). The NCACC considers each and every permit application presented to it on the basis of its own merits. In the period under review, the NCACC considered the following categories of permit applications:
a. Marketing Permit Applications, 47.
b. Contracting Permit Applications, 326.
c. Export Permit Applications, 1 988.
d. Import Permit Applications, 978.
e. Transit Permit Applications, 42.
19. Details on these applications in terms of approvals, countries and equipment categories involved are contained on Appendix A and B of this submission.
20. Compliance Matters. Section 9 of the National Conventional arms Control Act (Act 41 of 2002) provides that a Conventional Arms Control Inspectorate be established for purposes of ensuring that the defence industry and all other relevant role players comply with the laid down conventional arms control regulations. In terms of the said section of the Act, the Inspectorate reports directly to the NCACC.
21. In the period under review, the Inspectorate conducted audits on Avitronics and Grintek Communication Systems. After these audits, the Inspectorate came to a conclusion that these companies never had the required compliance programs. On the basis of this conclusion, NCACC decided that the business of the two companies be suspended until such time that satisfactory compliance programs were developed and implemented effectively. As part of this suspension, the NCACC did not issue permits for these companies for a period of approximately eight months. This had adverse effects on the companies, as revenue that could have accrued over the suspension period was lost. After the companies had presented their compliance programs, the suspensions were lifted.
22. Other Matters. The NCACC exercises control over the Arms Control & Non- Proliferation Fund which resulted from the South African-United States Agreement on Co-orporation on Arms Trade Controls. This agreement between the two countries came as a result of the Pennsylvania judgement of 1997. In the reporting period, no substantial expenditure had been registered on the Fund.
23. NCACC Membership. During this period, the NCACC membership remained similar to that of 2003 as reflected on page 2 of this submission. This NCACC membership was, however, changed in April 2004 due to general elections and the appointment of new Cabinet members. From April 2004 to date the membership of the NCACC is as follows:
a. Minister F.S. Mufamadi (Chairperson).
b. Minister B.P. Sonjica (Deputy Chairperson).
c. Minister M.G.P. Lekota.
d. Minister A. Erwin.
e. Minister N.C. DIamini-Zuma.
f. Minister M.B. Mphahlwa.
g. Minister R. Kasrils.
h. Minister C. Nqakula.
i. Minister M.A. Mangena.
j. Deputy Minister A. Pahad.
k. Deputy Minister M.E. George.
l. Deputy Minister J. Moleketi.
24. Legislative Development. On 28 May 2004, the Regulations to the National Conventional Arms Control Act (Act 41 of 2002) came into force. These Regulations are based on the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies.
25. Amendment of Cabinet Memorandum No 4 of 1997. The process of drafting an amendment to the 1997 Cabinet Memorandum on small arms and ammunition destruction resulted into a Draft Amendment. In view of the coming into force of the Conventional Arms Control Regulations referred to in the previous paragraph, the NCACC decided that the amendment to the 1997 Cabinet Memorandum was no longer necessary. This was due to the fact that the issues addressed in the Draft Amendment were already adequately covered in Section 4 (2) of the new Regulations.
26. Regulation of Foreign Military Assistance. In the "period under review, the NCACC considered and referred three cases to the National Director of Public Prosecutions for possible prosecution in terms of the Regulations of Military Assistance Act (Act 15 of 1998). These cases included Hover Dynamics, Meteoric Tactical Solutions and Liconex. The National Director of Public Prosecutions declined to prosecute, as prima facie cases could not be made out under the present legislation.
27. Permit Applications. In 2004, the NCACC considered the following categories of permit applications:
a. Marketing Permit Applications, 52.
b. Contracting Permit Applications, 388.
c. Export Permit Applications, 2 237.
d. Import Permit Applications, 1466.
e. Transit Permit Applications, 23.
28. Details on these applications in terms of approvals, countries and categories of equipment involved are contained on Appendix C and D of this submission.
29. Compliance & Verification Matters. In line with its statutory function, the Conventional Arms Control Inspectorate conducted compliance and verification exercises both in South Africa and internationally. In South Africa compliance and verification audits were carried out in quite a number of companies located in different parts of the country. These, inter alia, included Vector and Reutech Radar Systems.
30. At the international front, verification and compliance audits were conducted in the following countries:
e. Trinidad & Tobago.
31. Other Matters. In the reporting period, no expenditures were registered on the Arms Control & Non-Proliferation Fund. It is, however, important to note that at this period a business plan was drawn up for the Arms Control Workshop, which was held at the beginning of the 2005.
32. In the period under review, the NCACC conducted all the activities indicated above in pursuance of its function as 'contemplated in the National Conventional Control Ad (Act 41 of 2002). In conclusion it is important to note that the activities of the NCACC, over the reporting period, have contributed significantly to the strengthening of the country's arms control regime thus position South Africa firmly in the international conventional arms control arena.
(MINISTER BJP. SONJICA)
NCACC DEPUTY CHAIRPERSON
A: 2003 Statistics on Permits Issued
B: 2003 South Africa's Statistics for conventional Arms.
C: 2004 Statistics on Permits Issued
D: 2004 South Africa's Statistics for conventional Arms.
[Email [email protected] for the appendices]