The lunatic fringe in the Democratic Alliance is continuing to demonstrate its utter disrespect for our constitution and institutions of government. The Sunday Times just reported the DA statement that “Defence Minister Lindiwe Sisulu must "back down" and release the interim reports on how soldiers' service conditions affect the combat readiness of the SA National Defence Force (SANDF)..”. See, DA: Sisulu should release report Jul 26, 2010. Democratic Alliance MP David Maynier, who sits on the portfolio committee on defence and military veterans, was referring to reports by the National Defence Force Service Commission (NDFSC), a body appointed by Minister Sisulu and whose terms of reference include to: (a) advise and make recommendations on a unique service dispensation outside the ambit of the public service; (b) advise on the regulatory framework of the unique service dispensation; and (c) investigate and provide advice on remuneration and conditions of service of members of the defence force.
Minister Sisulu has never tried to shield the NDFSC’s work from the Portfolio Committee. In her very first presentation to the Committee, she stated: “I have discussed this matter with the President in his capacity as Commander-in-Chief of the South African National Defence Force, and the Cabinet which endorsed the proposal to establish a Military Services Commission. Draft legislation, which will establish the Commission, is being prepared.” This means she recognized from the very onset that the President and Cabinet are major stakeholders in the decision to establish the Military Service Commission and the Portfolio Committee agreed with her assessment. It follows that any reports from the NDFSC about the proposed Commission would have to be submitted to the President and Cabinet for consideration. This is a constitutional obligation and not mere gratuity or courtesy extended to them. Unfortunately, some misguided and opportunist members of the Portfolio Committee have spread rumours that Minister Sisulu seeks to have the reports of the NDFSC shrouded in secrecy. That is a blatant lie and distorts the nature of the cooperative relationship Minister Sisulu has always had with the portfolio committee.
Minister Sisulu has always recognized the extremely important role that the Portfolio Committee on Defence plays in this regard. She stated: “As the creation of the Military Services Commission does not fall within the provisions of sub-section 2(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.” Although she was not legally obligated to do so, Minister Sisulu adopted a deliberately collaborative approach in dealing with the Portfolio Committee on Defence and fervently hoped that the Committee would appreciate and share her view that the constitutional role of both the President and Cabinet must be respected throughout the process.
As the Minister of Defence and Military Veterans whose executive responsibilities included matters relating to defence, Minister Sisulu was concerned about the service conditions of the men and women serving in the SANDF. Under the Constitution the Minister was entitled to and could have asked the President to appoint a full commission of inquiry to enquire into these concerns. Instead of doing that, Minister Sisulu appointed the Interim National Defence Force Service Commission (INDFSC). The Portfolio Committee was fully briefed about this decision and wholeheartedly supported the Minister’s decision.
The President was equally concerned about the service conditions and supported the work of Minister Sisulu and the NDFSC. In fact, the President has wisely chosen to await the recommendations of the NDFSC before exercising any of the constitutional powers available to him, including that of appointing a full commission of inquiry. The NDFSC duly accomplished some of its tasks and has produced interim reports on these matters. The question is at what stage must these very preliminary reports by a ministerial committee be handed over to members of parliament? Does any right-thinking person expect parliament to start debating the NDFSC’s “advice and make recommendations on a unique service dispensation outside the ambit of the public service” before the President and Cabinet have fully considered the report in all its ramifications? Does anyone knowledgeable about constitutional and administrative law expect cabinet and the presidency to relinquish their responsibility by having reports by a ministerial committee regarding “regulatory framework of the unique service dispensation” and “advice on remuneration and conditions of service of members of the defence force” discussed by parliamentary committees before the executive has fully digested the same. How does a parliamentary committee jump the gun and demand reports of a ministerial task force before the president of the republic and the cabinet have perused these reports and made an informed decision on the same?
It is only proper that the report of the NDFSC be provided first to the President as it impacts directly on his powers to appoint commissions of inquiry (as head of state) and his powers as Commander in Chief of the armed forces (as head of the executive). Section 84(2) (f) of the Constitution provides that the President is responsible for: “… (f) appointing commissions of inquiry;”. Section 202 of the Constitution states that the “President as head of the national executive is Commander-in- Chief of the defence force, and must appoint the Military Command of the defence force.” It also states that the command of the defence force must be exercised “in accordance with the directions of the Cabinet member responsible for defence, under the authority of the President.”
Unlike the misinformed DA members, Minister Sisulu is mindful of the fact that the exercise of public power is regulated by the Constitution in different ways. There is a separation of powers between the legislature, the executive and the judiciary which determines who may exercise power in particular spheres. The reports may directly impact the President’s prerogative power to appoint a full commission pursuant to Section 84(2) of the Constitution. Clearly the President may wish to exercise that power after interrogating the NDFSC reports but the DA cannot be allowed to stampede him into rash decision-making. It would indeed be an act of great discourtesy and unfair intrusion into the President’s powers as head of state to release the report of the NDFSC before the President has applied his mind to it.
In a similar vein, Minister Sisulu’s duties and position as Minister obligate her to take very seriously the principle of collective ministerial responsibility. This principle recognizes that Ministers should, amongst other things, loyally support any Cabinet decisions, must not publicly disassociate themselves from any government decision, and must not announce a major new policy in their own area of responsibility without prior Cabinet approval. It would be patently improper and disrespectful to her cabinet colleagues to have a parliamentary committee interrogate and debate interim reports before Cabinet has digested the same or made its views known in this regard.
Maynier is correct in mentioning that there is currently pending before the Portfolio Committee the Defence Amendment Bill [B11-2010] which seeks, amongst other things, to establish a permanent Defence Force Service Commission – a body that will advise the Minister of Defence and Military Veterans on the improvement of conditions of service of members of the South African National Defence Force (SANDF). However, Maynier is dead wrong in assuming that the principles underpinning our constitutional democracy must be sacrificed simply to please the DA. Maynier has gone even further by claiming that the “minister has not only dug in her heels and refused to release the reports but has gone further and tried to suggest that the first interim report submitted on November 5 2009 did not really exist because it was a work in progress." That is a damnable lie. But assuming arguendo that the president is dealing with such alleged explosive report, does it not make sense that the Minister should give both the Presidency and cabinet full and fair opportunity to consider the reports and their import?
In the final analysis, the President may accept or reject the NDFSC report in whole or in part. In the alternative he may exercise his prerogative to appoint a commission of inquiry in line with the Constitution and the Commissions Act Act of 1947. In the case of the appointment of commissions of inquiry, it is well-established that the functions of a commission of inquiry are to determine facts and to advise the President through the making of recommendations. See Bell v Van Rensburg NO 1971 (3) SA 693 (C) at 705 F; S v Mulder 1980 (1) SA 113 (T) at 120 E. The President is bound neither to accept the commission’s factual findings nor is he bound to follow its recommendations. Beier v Minister of the Interior and Others 1948 (3) SA 409 (A) at 455; S v Mulder, above n 113 at 120 E – F.
It would be inappropriate for the Minister to make the reports available without receipt of direction from the Commander-in-Chief and cabinet. This would violate clearly established constitutional, would set a wrong precedent aside from being outright disrespectful of the office of the President and the cabinet. We are dealing with weighty matters of state security. This is a Ministerial commission established by Minister Sisulu to take all the necessary steps to, among others, ensure that the South Africans have trust and confidence in the ability of our defence forces to protect the country and its inhabitants. Maynier is a grandstanding constitutional ignoramus who shows absolutely no respect for the principles of separation of powers between the Executive and the Legislature which are the very foundation of our constitutional democracy. Maybe he should change the name of his party from Democratic alliance to Fascist Alliance.
