Defence Amendment Act, 2010

1. Section 1of the Defence Act, 2002 (Act No. 42 of 2002) (hereinafter referred to as the principal Act), is hereby arnended- (a) by the msel1ion in subsection (I) after the definition of "Code" of the following definition: recmilment procedures and a vertising :md selection criteria; appointment and appointment processes; job classification and grading; salaries, allowances and service benefits; job assignments; ., ~conditions of service' indmlc:s conditions relating to-- (a) (b) (c) (d) (e) (j) working environment and facilities: (g) (11) perfonnunce evaluation syslems; promotIOn; (i) transfers; (j) (k) demotion; (l) (m) grievance and grievance procedures; (fl) dismissal; disciplinary measures other than dismissals; education, training and development; 5 10 15 20 4 No, 33866 GOVERNMENT GAZETfE. <) DECEMBER 10[0 Ad No. 22 of 2010 DErENCE AMENDMENT ACT. 2010 scarce skills: (,,) (1') pay progression; (q) deployment benefits: tools of trade: (r) acconmlOdation; and (s) f.!.L-. any oth~r matter pertaining to conditions of service; "; and (b) by the insertion in suhsection (I) after the definition of "superior officer" of 5 the following definition: '--the Commis....,ion' means the Defence Force Service Commission established by section 62A:" . to Insertion of section 4A in Act 42 of 2002

2. The following section is herehy inserted in the principal Act after section 4: "Military Command of netcnce Force

4A. The Military Command of the Defence Force referred to in section 201(1) of t Ie Constitution consists of (a) (b) (e) (d) (e) (0 (g) (h) (i) the Chief of the Defence Force; the Chief of the South African Army; the Chief of the South African Air Force; the Chief of the South African Navy: the Surgeon-General of the South African Military Health Service; the Chief of Joint Operations of the Defence Force: the Chief of Defence [ntelligence; the Chief of Human Resources; and the Chief of Logistics.". Amendment of seetion B of Act 42 of 2002 15 20 25

3. Section 13 of the principal Act is hereby amended- (a) by the substitution for the heading of the following heading: "Chief of nefence Force, and appointment of other members of Military Command"; and (b) by the insertion after subsection (I) of the following subsection: 30 "(lA) The Presidetllmust appoitllmembers of the Military Command of the Defence Force referred to in section 4A. ". Amendment of section 53 of Act 42 of 2002

4. Section 53 of the principal Act is hereby amended- (a) by the adilition to subsection (1) of the following paragraph, the existing 35 subseclion becoming subsection (1)(a): "(b) (i) The members of the Defence Force contemplated in paragraph (a) must, wit lin 1 mont sater t e commencement 0 t e e ence Amendment Act, 20 I0, enter into a contract of service with the Defence Force as contemplated in subsectIon (IA)(a). (ii) Should any such members fail to conclude a contract contemplated in suhparagraph 0), the Minister must give the member notice of his or her intention to terminate the membership ofUle member 'md alford such memher a reasonable opportunity 10 conclude the contract. 40 (iii) The Mirllster must terminate the membership of the memher if 45 such member contemplated in subparagraph (i1)."; fails to conclude the contract following the notice 6 No ..B866 GOVERNMENT GAZETTE. 9 DECEMBER 2010 Act No. 22 of 2010 DEFENCE AMENDMENT ACT, 2010 (h) by the insertion after subsection (1) of the following subsection: "( tA) (a) Any member of the Reserve Force is liable to render service in terms of a contract entered into between the Defence Force and such member. (b) The content and format of the contract contemplated in paragraph 5 (a) must be prescribed. (c) The period for which a memher of the Reserve Force must render the service contemplated in paragraph (a) and the calcnlation thereof must be prescribed. "; (e) by the insertion after <nbsection (3) of the following subsection: 10 "(3A) ra) A Reserve Force member must comply with a call-up order issued by that member's commanding officer in terms of which such member must report for service as contemplated in this Act or the Constitution, (b i The content and fonnat of such call-up order must be prescribed.": 15 and (d) by the insertion after subsection (4) of the following snbsection: "(4A) Where a Reserve Force member's period or service tenninates. lapses or expires during ,my rOn" of employment cotllemplated in section 18(1), the Minister may, with the concurrence of such member, 20 extend such service for a period not exceeding three months or until the conclusion of the operatioll, whichever is the shorter," , Amendment of st.'Ction 55 of Ad 42 of 2002

5. Section 55 of the principal Act is hereby amended by the addition of the !(,llowing suhsection after subsection (2): 25 "(3) In the event that the processes contemplated in subsections (I) and (1) do not materialise. the Minister may. taking into account any recommendation by the Commission, and with the approval of the Minister of Finance, determine pay. salaries and entitlements of the members of the Defence Force.". Insertion of sections 62A, 628, 62C, 621>, 62E, 62F, 62G, 6211, 621, 62.1, 62K and 30 62L in Act 42 of 2002

6. TIle following sections are herehy inserted in the principal Act after section 62: "EstabIL'ihment and composition of Ikfence Force Service CummL~· sion 62A. (I) There is hereby established a Defence Force Service Conmlis- 35 sion. (2) The Commission consists of no fewer than eight and no more than ten members appointed by the Minister. (3) The Minister must designate one memher as Chairperson and another as Deputy Chairperson of the Commission. (4) If the Chairperson is absent or for any reason nnable to act as Chairperson, the Deputy Chairperson must act as the Chairperson of the Conmlission. Functions of Commission 62". (I) TI,e Commission must- (aJ on an annua asis, make recommen ations to t Ie Minister on improvements of salaries and service henelits of members: (b) make recommendations to the Minister on policies in respect of conditions of service: 40 45 No. 33866 GOVERNMEKT GAZETTE, 9 DECEMBER 2010 Act No. 22 of 2010 DEFENCE AMENDMENT ACT, 2010 (c) (d) promote measures and sd standards to ensure the effective and efficient implementation of policies on conditions of service within the Defence Force, and make recommendations to the Minister in this regard; and for paragrdphs (u), (h) and (c)- the purposes of making recommendations contemplated in (1) (ii) (iii) (iv) (v) (vi) (vii) (viii) enquire into or conduct research on conditions of service; review policies; evaluate and monitor the implementation of such policies; consult with the Secretary for Defence, the Chief of the Defence Force, memhers of the Defence Force, Reserve Force Council and any other interested person or body on conditions of service and any other matter relating to the purview of its functions; consider any representations made to the Commission; consult \vith National Treasury; confer with the Department responsible for public service and administration. the Public Service Commission and any other relevant stakeholder wiU,in the public service; consider, among others- (aa) the rank structure of the Defence Force; (bb) the afiordability of different levels of remunerallon of the Defence Force; (cc) current principles and levels of remuneration in the public service generally; and (del) inflationary increases. 5 10 15 20 25 (2) The Commission must perform its functions impartially, without hi as, fear or prej udice. (3) The Commission may, in consultation with the Minister, call upon any memher of the Defence Force or employee of the Department to assist 30 it in the execution of its funclIons, and such person is obliged to provide the necessary assistance. (4) The Minister determines the conditions of serVtce for members of the Defence Force, in consultation with the Minister of Finance, after having received a ret:ommellliatioll from the Commission. 35 Appointment of members of Commission and conditions of service 62<:' (1) For the purposes of appointing the members oftlie Commission, the Minister must hy notice in two national newspapers and in the Gazette invite interested persons to submit, within the period and in the manner mentioned in the notice, members of the Commission. the names of persons fit to be appointed as 40 (2) The Minister must appoint five members of a nomination committee to make recommendations to the Minister for the appointment of the members of the Commission. (3) (a) In estahlishing a nomination committee, the Minister must ensure 45 the committee is broadly representative of the South African that population and thaL both males and females are represented. (b) The members of the nomination commiLlee must have sufficient knowledge and experience that \'I.'ould enable them 10 exercise a sound and objective discretion in making recommendations to the Minister. 50 (4) The lIomination committee must, in making a recommendation to the Minister, cOllsider- (a) the proven skills, knowledge and experience of a candidate in malters relevant to the functioning of the Commission; and ( h) generally, whether the persons llominated represent a sufficient spread 55 of qualifications. expertise and experience to ensure the efficient and elIective functioning of the Commission. (5) The nomination committee must submit to the Minister a list of suitable candidates at kast one and a half times the number of members of the Commission to he appointed, 60 10 No. 33866 GOVERNMENT GAZETTE, 9 DECEMBER 2010 Act No. 22 of 2010 DEFENCE AMENDMENT ACT, 2010 (6) If a suitable person or the required number of suitable persons is not recommended, the Minister must call for further nominations in the manner set out in subsection (I), (7) (a) The Minister must appoint members of the Commission from the list of candidates submitted in terms of subsectIOn (5), (b) The Minister must, within 30 days after appointing the members, by notice in the Gazflfe publish the names of the members so appointed and the date of commencement of their terms of office. (8) Any vacancy occurring in the Commission must he filled in the manner provided for in subsections (I) to (7), (9) (a) A member of the Commission- (i) holds ollice for a period not exceeding Nve years; (ii) may, at the discretion of the Minister and in the interest of continuity, be reappointed, hut may not serve more than two terms consecutively: is appointed according to the terms and ,onditions determined by the Minister: and (iii) (iv) may be appointed either on a full-time or a part-time hasis. 5 10 15 (b) A memher of the Commission who is not in the full-time employ of such the State must be paid from the budget of the Department remuneration amI allowances in respect of his O( her services as the 20 Minister may determine, acting in consultation with the Minister of Finance. Disqualification from membership and removal from olliee 621>. (1) No person may be appointed as a memher of the Commission if 25 heorse is a member of the Defence Force; (a) (I» is ,m unrehabilitated insolvent; or (rj has been convicted of any olTence for which that person has heen sentenced to imprlsonment without the option of a nne ror a period of not less than l2 months, unless a period of at least five years has 30 expired :.lfter the date on which the sentence was served. (2) For the purposes of suhsection (1)( c), no person is ueemeu to have heen sentenced until an appeal against the conviction or sentence has been disposed of or until the period has expired within which an appeal may be lodged, as the case may be. (3) The Minister may remove a member of the Commission from office on account of- (a) misconducl; (b) inability to perform the duties of thal member's office effectively and efficiently; or absence from three consecutive meetings of the Commission without the prior pennission of the chairperson, except on good cause shown. (co) VHciHtion of' office

62E. A member of the Commission must vacate office if he or she- (a) becomes subject to any disqualification referred to in seclion 620; (b) becomes of unsound mind; (co) (d) resigns by giving at least 30 days' written notice to the Minister: or for whatever reason, becomes unfit or unahle to remain a member of the Commission. 35 40 45 12 No. 33866 GOVER:"lMENT GAZETTE. 9 DECEMBER 2010 Ad No. 22 of 2010 DEFENCE Al'\r1ENDMENT ACT. 2010 Meetin~s of Commissinn 62.: (l) The Commission must meet "I leasl Iwice a year al a time and place delermined hy the Chairperson of the Commission. (2) Six members of the Commission fann a quorum for a meeting of the Commission. (3) The decision of a majority oCthe members urthe Commission present at a meeting of the Commission constitutes a decision of the Commission and, in the event of an equality of votes on any maller, the person presiding at the meeting concemed has a casting vote in addition to his or her deliberative vote. (4) TIle Commission must determine iL~ own procedures to be followed at its meetings. Committees of" Commission 62(;. (1) The Cunmlission lIlay from time to time appoint one Of more committees to perform any duties and exerc1se any pow~rs assigned or delegated to it by the Commission, and may at any tim~ dissolve or r~c()nst:itute such a c()mmitte~. (2) A cormmttee consists of so many members of the Commission as the Commission may deem necessary. 5 10 15 (3) The Commission must designate one of the members of a t:ommiltee 20 as chairperson of that corrunittee. (4) A conmlittee must perform ils duties and exercise its powers suhject to this Act and such directives a..'i may be issued by the Commission. (5) A decision of a committee taken in the performance of a duty or exercise of a power assigned or delegated to it Commission, subject to ratitication by the Commission. is a decision of the 25 Reportin~ 6211. (I) The Commission- is accountable to the Minister; and (a) (h) musl within two months after the end of each financial year submit a 30 report on its activities and lindings to the Minister. (2) The Minister must, as soon as practicable after receipt of a report contemplated in suhseclion (I), cause a copy of the report to be lodged with the Cabinet and tahled in Parliament. (3) A report contemplaled in subsection (I) must nol conlain conlidential 35 infomlation that would he detrimental (0 national security. (4) The Commission must, hy notice in the Ga:l'tle, annually publish its lindings and recommemlations in respect of its work. StaR' of' ('ommission

621. The Minister may, after consultation with Ihe Commission, appoint 40 or designate persons to give research, secretariat, logistical anti technical support to the Commission or to perform other work incidental to the exercise or pertcmnance of the powers and duties of the Commission. Funding 62.'. The costs and expenses connect~ with the- administration of the 45 affairs of the Commission must he defrayed from moneys appropriated by Parliament to the Department for that purpose. 14 No. 33866 Act No. 22 of 20 to GOVERNMENT GAZETTE, 9 DECEMBER 2010 DEFENCE AMENDMENT ACT. 2010 Intervention by Minister 62K. (I) The Minister may direct the CommIssion to take any action specified by Ihe Minister if the Conunission has failed to pe ofln its functions in an effective and efficient manner. (2) A directive contemplated in suhsection (I) must state- 5 (aJ (h, (c) the reason for issuing the directive: the steps which must he taken to remedy the situation: and a reasonable period within which the steps cOlltemplated in paragraph (b) must he taken. (3) ((/) If the Commission fails to comply with the directive contemplated 10 in suhsection (I), the Miniskr may- (i) after having given the Commission a reasonable opportunity to be heard; and after having atforded the Commission a hearing 011 any submissions recei ved, 15 (Ii) replace the memhers of the Commission Of, where circumstances so require, appoint a person a-; an administrator to take ova one or more functions of the Commission suhject to such conditions as the Minister may ddennine. (hi Any vacancy occurring as a result of the application of paragraph (a) 20 must he fmed in the manner provided for in section 62C. (a) (b) (4) If the Minister appoints an administrator in tenlls of suhsection (3) the administrator may do anything \vhich th~ Commission might otherwise be empowered or required to do under or in tenns of this Act; and the Commission lllay not, while the administrator is responsible for 11 particular function, exercise any of its powers or perform ~U1y of its duties relating to that function. 25 (5) Once the Minister is satisfied that the Commission is able to perform its functions in an etTt:ctive and enicient manner, tenninate the appointment of the administrator. the Minister must 30 (6) (a) Notwithstanding subsection (3), the Minister may dissolve the loses confidence in the ability of the Commission if Commission to perform its functions effectively and etliciently. the Minister (b) The Minister may dissolve the COlrunission only nfter having- (i) provided the Commission with reasons for losing confidence in its 35 abilities; (ii) given the Commission a reasonable oppJrtunity to respond to those reasons; and atlorded the Commission a hearing on any submissions received. (iii) (e) If the Minister dissolves the Commission, the Minisler- (i) may appoint an administrator to take over the functions of the Commission and lO do anything which the Commission might otherwise be empowered or required to do unlicr or in terms of this Act, subject to such conditions as the Minister may determine; and (ii) must, as soon as it is feasihle, hut llotlater than three months after the dissolution of the Commission, appoint the members of the Commis sioll in the manner proVided for in section 62C. Regulations in respect of Commission 621.. The Minister may make regulations regarding- (a) (b) (c) eonsu tation wit t e Commission must t e manner in W lie condw.:ted ami the procedures relating thereto; any matter relating to the functioning of the Commission that it is necessary to prescribe in order to ensure lhe emcient and etlective functioning of the Commission; and any ancillary or incidental administrative or procedural matter that it is necessary to prescribe for the proper implemenlation or administration of the prOVisions relating to the Commission.". e 40 45 50 55 16 No. 33866 GOVERNMENT GAZETTE. 9 DECEMBER 2010 Ad No. 22 of 2010 DEFENCE AMENDMENT ACT. 2010 Amendment of section 104 of Aet 42 of 2002

7. Section lO4 of tl,e priocipal Act is herehy amended- (a) by the substitution for subsection (12) of the following subsection: "(12) Any person who is hable to render service in the Defence Force hy virtue: of a military service contract with the Defence Force, and refuses or, without a valid reason, fails to rencler such service, is guilty of an ofIence ~U1d liahle on conviction to a fine or imprisonment for a period not exceeding one year."; 5 (h) (c) by the deletion in snhsection (2l)(a) of the word "or" at subpamgraph (i1), and the insertion or the expressl0n "; or" at the end or 10 paragraph (iii); and by the addition to suhsection (21)(a) of the followlllg subparagraph: the end of "(iv) having heen duly noti/ied of his or her call-up for service by wav of a call-up order issued in terms of section 53(3Al. fails to present himself or herself at the time and place specified in the call-np 15 order." . Tnmsitinmtl provision and saving 8. (I) Any person who is a member of the hody known as the interim National Defence Force Service Commission when this Act takes eJfect, is regarded a', having been appointed in terms of section 62C and holds o/lice until the Minister has appointed 20 the memhers of the Commission in terms of that section. (2) Anything done hy the interim National Defence Force Service Commission prior to the commencement of this Act which could have heen done by the Commission in terms of this Act, must he regarded as having been done hy the Commission in terms of this Act.". 25 Short title und commencement

9. This Act is called the Defence Amendment Act. 2010. and Wkes effect on a date fixed by the Presidenl hy proclamation in the GllZPll('.