RESEARCH REPORT
TITLE
SOUTH AFRICA INTEGRATION OF ARMED FORCES AND THE AFTERMATH; A CONSTITUTIONAL PERSPECTIVE
by
PHILLIP DHLAMINI
STUDENT NO: 201649625
Submitted in accordance with the requirements for the degree
BACHELOR OF LAWS
In the
SCHOOL OF LAW
at the
UNIVERSITY OF LIMPOPO
SUPERVISOR: MS MPHO SEKOKOTLA
2019
i
DECLARATION
I Phillip Dhlamini fourth year LLB degree programme student no 201649625, with identity no: 5112175563087 do hereby declare that the research hereby submitted to the Research CRRR040 School of Law University of Limpopo being my first research work for the degree at University of Limpopo or any other University; I attest that it is my own work and that all resources have been appropriately accredited. In the case where the research might contain any quoted source that is not acknowledged, it is unintended.
Phillip Dhlamini Date
ii
DEDICATION
This research is dedicated to my young colleagues, law students of the University of Limpopo who mostly come from rural villages and informal settlements of South Africa, who have shared with me their little opportunities for higher education, knowledge, skills, experience, at the University of Limpopo. Furthermore, this essay is dedicated to my commanders’ former law students of the University of Limpopo namely the late Ms Gollyluck Ledwaba peace be upon her soul and Ms Lydia Mamotloung Monyane Practising attorney, they made my military life to be successful and gave me support throughout my journey to achieve my childhood dream of acquiring higher education. It is further dedicated to my parents’, brothers and sister who never lost hope that I will survive against all medical odds and finally be like all other children and be admitted in the institution of higher learning, from God we come and unto God we shall return, peace be upon their soul.
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ACKNOWLEDGEMENT
My greatest thanks are directed to my Supervisor Ms Mpho Sekokotla for her commitment in helping me, for her extraordinary help, support, encouragement, and considerations to accept, to supervise me in this research and writing it thereof. Further, my greatest thanks directed to the librarian Ms Cathrine Mokadi for her commitment in going an extra mile to find the reading material, for her patient, encouragement and her skill to listen. To my student colleagues, who encouraged me to choose research namely Ms Betsy Nchabeleng, Ms Mampotse Constance Setsiba, Ms Masehlako Venessa Maluleke, Mr Romeo Shavhane, Mr Alton Matlala and Mr Matodzi Mavhungu. Lastly to my family, for their special way of needed support, financial help, considerations and encouragements, The future is for the brave, humble prepared to learn under the most difficult situation.
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TABLE OF CASE LAW
Gcaba v Minister of Safety and Security & Others (2009) 12 BLLR 1145 (CC). Matross v Minister of Defence and Military Veterans and Another (36675/2016) [2018] ZAGPPHC 389 (24 May 2018)
Phike v South African National Defence Force (Defence Special Tribunal DST-J1/00) [2001] ZALC 152 (28 September 2001
Solidarity Trade Union v National Commissioner of South African Police Services, NO and Others (Active) case number .
South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999)
South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007] ZACC 10; 2007 (5) SA 400; 2007 (8) BCLR 863 (CC); [2007] 9 BLLR 785 (CC) ; (2007) 28 ILJ 1909 (CC) (30 May 2007)
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TABLE OF LEGISLATION
Constitution of the Republic of South Africa 1996.
Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).
Union of South Africa Constitution Act, 1909.
Defence Act, No.42 of 2002
- Chapter XX of the General Regulations for the South African National Defence Force and Reserve published in the Government Gazette 20376 dated 20th August 1999
- Individual Grievance Regulations, published in Government Gazette No 33334 dated 30 June 2010
Defence Act, 44 of 1957 as amended.
Defence Special Tribunal Act, No. 81 of 1998.
Demobilisation Act, 99 of 1996.
Government Employees Pension Law Amendment Act No. 19 of 2011
Labour Relations Act 66 of 1995
Military Discipline Supplementary Measures Act, No. 16 of 1999
Military Ombud Act, No.4 of 2012
Military Veterans Act, No. 18 of 2011
Public Protector Act,23 of 1994
Special Pension Act, 69 of 1996
Special Tribunal Defence Act 81 of 1998
Termination of Integration Intake Act, No. 44 of 2001
Transitional Executive Council Act, No.151 of 1993
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LIST OF ABBREVIATIONS
ANC African National Congress APLA Azanian People Liberation Army AZANLA Azanian National Liberation Army AZAPO Azanian People’s Organisation AU African Union BDF Bophuthatswana Defence Force CC Constitutional Court CDF Ciskei Defence Force CP Communist Party DOD Department of Defence DMV Department of Military Veterans KZSPF KwaZulu Self Protection Force LC Labour Court MK Umkhonto We Sizwe NP Nationalist Party NSF Non-Statutory Force PAC Pan Africanist Congress of Azania PLA People’s Liberation Army PRC People’s Republic of China PTV Peace Treat of Vereeniging SADF South African Defence Force SANDF South African National Defence Force. SAPS South African Police Service SCA Supreme Court of Appeal TDF Transkei Defence Force TEC Transitional Executive Council VDF Venda Defence Force UDF Union Defence Force UN United Nations USA United State of America
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ABSTRACT - Integration and its aftermath (“Traumatic experience”) are the inevitable consequences of civil war, domestic legal framework try to mitigate the effect of traumatic war by providing a mechanism to rehabilitate affected veterans of such a war, families, widows and orphan children. A domestic legal framework further provide a mechanism to the society at large to deal with such trauma and take away the triggering effects that could lead to return to war situation. We must learn even from our past, for example, the racist Nationalist Party minority government effectively addressed the trauma of Boers society at the expense of African Majority thus making a big mistake by excluding the Africans in this important healing of the nation. The results of their mistake led to another protracted liberation struggle that cost thousands of lives, sanctions and more trauma to the people of South Africa. Negotiated settlement contributed to the development and enactment of the South Africa Constitution and domestic legal framework, that made it possible to stop the war. Section 4 (1) (b), section 4 (5) of the Transitional Executive Council Act, read with Section 224 of the Interim Constitution of the Republic of South Africa Act, set the ball rolling, by providing mechanisms that made it possible for the integration of six (6) armed forces namely; SADF, TDF, BDF, CDF, VDF and MK and the incorporation of less than 600 members of KZSPF and 6000 members of APLA into the SANDF. The signing of the Constitution of the Republic of South Africa, gave right for the integrationof both APLA and KZSPF this is provided by Section 3 of Annexure D that amend section 224 of the Interim Constitution. The Courts have been vigilant in protecting the rights to integrate whenever required to do so, the case of Phike is one of the examples. Recently we have seen even the labour court providing that protection. The research indicates that there is an available solution to integration and aftermaths problems, only if the government effectively apply the available domestic laws, to the KZSPF problem. The integration of KZSPF or including members of KZSPF in the DMV data base could contribute reduce violence both IN KZN and Gauteng and as such reduce trauma situation facing the society at large.
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TABLE OF CONTENTS
Declaration .……………………………………………………………………………………………i
Dedication ……………………………………………………………………………………………..ii
Acknowledgements …………………………………………………………………………………..iii
Table of case law …………………………………………………………………………………….iv
Table of Legislations …………………………………………………………………………………v
List of Abbreviations …………………………………………………………………………………vi
Abstract ………………………………………………………………………………………………vii
Table of contents …………………………………………………………………………………… ix
CHAPTER 1: INTRODUCTION………………………….………………………………………. 1
1.1 Introduction..……………………………………………………………………………………1
1.2 Background ..………………………………………………………………………..…………1
1.3 Outcome of the Study..………………………………………………………………………..4
1.4 Problem Statement..……………………………………………………………………………5
1.5 Source of the Research Problem.. ……………………………………………………………………… 5
1.6 Basic Hypothesis and Central Theoretical Argument …………………………………………….. 6
1.7 Aims and Objectives …………………………………………………………………………………………. 7
1.8 Research Methodology …………………………………………………………………………………….. 8
1.9 Significance of the Research ……………………………………………………………………………… 8
1.10 Provisional Scope and Limitations………………………………………………………………………. 8
1.11 LITERATURE REVIEW …………………………………………………………………………………….. 9
1.11.1 Introduction ………………………………………………………………………………………………………. 9
1.11.2 “The Anglo – Boer War, 1899 – 1902, White Man’s War, Back man’s war traumatic war”…………………………………………………………………………………………………………… 10
1.11.3 Parliamentary oversight of defence transformation: the South African experience …………………………………………………………………………………………………………………………………. 14
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1.11.4 How unique is South Africa Military Integration? …………………………………………….. 15
1.11.5 Conclusion ……………………………………………………………………………………………………… 17
CHAPTER 2: DOMESTIC LEGAL FRAME WORK OF SOUTH AFRICA ………………….19
2.1 Peace Treat of Vereeniging ……………………………………………………………………………… 19
2.2 Convention for a Democratic South Africa (“CODESA”) ……………………………………….. 19
2.3 Union of South Africa Constitution Act, 1909 ……………………………………………………… 20
2.4 Defence Act (NO. 13 OF 1912) ………………………………………………………………………… 21
2.5 Defence Act (NO. 44 OF 1957) ………………………………………………………………………… 22
2.6 Transitional Executive Council Act, NO. 151 OF 1993 …………………………………………. 22
2.7 Interim Constitution of the Republic of South Africa Act, 200 of 1993. ……………………. 23
2.8 Constitution of The Republic OF South Africa Act, 1996 ………………………………………. 24
2.9 Demobilisation Act, 99 OF 1996 ……………………………………………………………………….. 25
2.10 Special Pensions Act, 69 OF 1996 ……………………………………………………………………. 26
2.11 Defence Special Tribunal Act, 81 OF 1998 ………………………………………………………… 26
2.12 Chapter xx of the General Regulations for the SANDF and Reserve. …………………….. 27
2.13 Military Discipline Supplementary Measures act, NO. 16 OF 1999 ………………………… 28
2.14 Termination of Integration Intake act, 44 OF 2001 ………………………………………………. 29
2.15 Defence Act (NO. 42 OF 2002) ………………………………………………………………………… 30
2.16 Individual Grievance Regulations of the Defence act, NO 42 of 2002 …………………….. 30
2.17 Military Veterans act, NO 18 OF 2011 ……………………………………………………………….. 31
2.18 Government Employees Pension Law Amendment Act, NO. 19 OF 2011 ………………. 31
2.19 MILITARY OMBUD ACT, NO. 4 OF 2012 ………………………………………………………….. 32
2.20 Case Law ……………………………………………………………………………………………………… 33
2.21 Conclusion ……………………………………………………………………………………………………. 34
CHAPTER 3: INTERNATIONAL LEGAL FRAME WORK 37
3.1 Introduction …………………………………………………………………………………………………… 37
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3.2 United Nation Charter ……………………………………………………………………………………… 38
3.3 Uniting for peace Resolution 377 (v) a (1950) adopted on 3rd November 1950 ………. 39
3.4 South Africa a Member of the United Nation ………………………………………………………. 40
3.5 Conclusion ……………………………………………………………………………………………………. 42
CHAPTER 4 COMPARATIVE STUDIES OF INTEGRATION OF ARMED FORCES IN SOUTH AFRICA, CHINA, THE UNITED STATES OF AMERICA AND SOUTH SUDAN 43
4.1 Introduction …………………………………………………………………………………………………… 43
4.2 People’s Republic of China (“PRC”) Integration of Armed Forces ………………………….. 43
4.3 The Aftermath of the failure of integration and return to civil war …………………………… 44
4.4 United State of America Military, Integration of Armed Forces ………………………………. 45
4.5 Comparing South Africa Integration of Armed Forces with United State of America Military, Integration of Armed Forces …………………………………………………………………. 47
4.6 Comparing South Africa Integration of Armed Forces with South Sudan Integration of Armed Forces ………………………………………………………………………………………………… 48
4.7 Conclusion ……………………………………………………………………………………………………. 50
CHAPTER 5: CONCLUSION AND RECOMMENDATIONS 52 5.1 Introduction …………………………………………………………………………………………………… 52 5.2 Conclusion ……………………………………………………………………………………………………. 53 5.3 Recommendation …………………………………………………………………………………………… 56
BIBLIOGRAPHY 58
1
CHAPTER 1: INTRODUCTION AND BACKGROUND
1.1 Introduction
On the 2nd February 1990, the Racist Nationalist Government unbanned the ANC, Communist Party, PAC and other political organisation, thus paving a way for a political settlement.1 One of the important issues to be negotiated was cessation of hostilities, between the warring armed forces and integration of these forces into a single National Defence Force, namely the South African Defence Force (SADF), Bophuthatswana Defence Force (BDF), Venda Defence Force (VDF), Transkei Defence Force (TDF), Ciskei Defence Force (CDF) and to the lessor extent the KwaZulu Self Protection Force (KZSPF) on one hand and Umkhonto We Sizwe (MK) and Azanian People Liberation Army (APLA) on the other hand.
A key complicating factor is lack, of a common effective mechanism that addresses the problems of integration,2 rank review and re-ranking of former non-statutory members, more importantly, is that Parliament enacted Defence Special Tribunal Act,3 that came into operation on 1st day of January 1999. More importantly to note is that the Defence Special Tribunal Act, unfortunately ceased to have effect on the 31st December 2001 by operation of law,4 thus creating a vacuum in the law addressing the integration problems.
1.2 Background
South Africa has vast experience of integrating warring armed forces, the first integration was after Anglo – Boer war, in 1902 (South African War),5 whereby the British Colonial Government introduced a new approach in resolving the problems of South Africa, it wanted to try to find an amicable political settlement between the British Colonial power and the Afrikaners, the solution
1 Department of Education National Senior Certificate grade 12 November 2008 History P2.
2 Integration is the bringing together of South African warring armed forces into a single National Defence Force
3 81 of 1998. The main object of this Act was to “enable the Labour Court to act as a special tribunal in the adjudication of disputes which arise out of the implementation of transitional arrangements in respect of military institutions or the rationalisation of the Department of Defence; to provide for expeditious procedures for the adjudication of those disputes; and to provide for matters connected therewith”.
4 Section 9 (1) of the Special Tribunal Defence Act, 1998.
5 Emily Hobhouse [online]. Available at http://www.ask.com/wiki/Treaty_of_Vereeniging (Accessed: 04 September 2019)
2
that will appease the Afrikaners. The British Colonial Power wanted to achieve long term peace in South Africa, to achieve it aim it had to convince the two Boer States political leaders to lay down arms in cessation of hostilities and Boer Commandos armed forces integrated in the new Union Defence Force (UDF), that will consist of both the armed forces.
Interestingly in both armed forces, Africans, Coloured and Indians who fought as soldiers of either side in the conflict, were left out or excluded. The British Colonial Government and Boer Commandos signed the Peace of Vereeniging, this Peace Treat of Vereeniging excluded Africans, Coloured and Indians soldiers from the new Union Defence Force. One will some up by saying that an important opportunity of integrating soldiers into a single Union Defence Force was lost, for the then Government of the day, missed the opportunity to integrate all South African and create an integrated one force concept and bring lasting peace in South Africa.
The researcher view the integration of British forces in South Africa and the Boer Commandos as the first integration of armed forces in South Africa. This integration was supported by signing the Peace Treaty of Vereeniging which ended the Anglo Boer war now called South African War, subsequently after the signing the Peace Treaty of Vereeniging, the British Colonial Government, in 1909 enacted the Union of South Africa Constitution. The aftermath of the war, total British casualties was plus minus 97,477, while on the other hand Boer casualties 9,103, over 20,000 women and died in British concentration camps number of Black soldiers is not recorded will remain unknown.6
On the 21st March 1960, Pan Africanist Congress (“PAC”) led by its President Robert Mangaliso Sobukwe engaged in an anti-pass campaign which resulted in the Sharpeville Kwalanga massacre and the banning of the Pan Africanist Congress, and the African National Congress. On 11th day of September 1961, the Pan Africanist Congress (“PAC”) established its military wing the Poqo which was later named Azanian People’s Liberation Army (“APLA”)7, three
6 Ken Gilling, The Aftermath of the Anglo Boer War [online]. Available at http://samilitaryhistory.org/lectures/aftermath.html (Accessed: 04 September 2019)
7 Wikipedia, the free encyclopedia [online]. Available at https://en.wikipedia.org/wiki/Azanian_People%27s_Liberation_Army
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months later the African National Congress (“ANC”) followed and established its military wing Umkhonto we Sizwe (“MK”).8
A new type of warfare “Guerrilla War” in South Africa, signalling the beginning of a protracted war of liberation struggle against both British Colonial Power and it surrogate Nationalist Party Government, leading to more than 100 Africans freedom fighters being hanged for furthering the aims of the Pan Africanist Congress (“PAC”). Both sides suffered heavy casualties in the period 1961 to 1990”.9
The world is changing by 1990, the war becomes costly to both sides, as a result, De Klerk saw the opportunity, to unban the then banned political organisation and started the negotiations for a lasting peaceful political settlement resulting in the integration of all armed forces of participating political organisation. CODESA enacted the enabling Section 4 (1) (b) read with Section 16 (9) of the Transitional Executive Council Act 1993, Section 224 of the Interim Constitution 1993, to make the integration feasible. Post-1994 parliament enacted Defence Special Tribunal Act,10 that came into operation on 1st day of January 1999 to deal with integration problems.
In one of the first integration disputes, involving members of the Non-Statutory Force members, the Labour Court acting as Defence Special Tribunal, in the matter between Phike v South African National Defence Force11 correctly addressed the problem by relying on the provisions of the Constitution of the Republic of South Africa Act and the CODESA agreements.
The Labour Court took into consideration the importance the cessation of hostilities between the SADF, TBVC Defence Forces on one hand and Azanian People’s Liberation Army and Umkhonto We Sizwe on the other hand and emphasised the importance of a new beginning
8 South African History Online on 20-Mar-2011 [online]. Available at https://www.sahistory.org.za/topic/umkhonto-wesizwe-mk
9 Dlamini M. 1984: Hell-hole: Robben Island reminiscences of a political prisoner Great Britain, Spokesman
10 81 of 1998. The main object of this Act was to “enable the Labour Court to act as a special tribunal in the adjudication of disputes which arise out of the implementation of transitional arrangements in respect of military institutions or the rationalisation of the Department of Defence; to provide for expeditious procedures for the adjudication of those disputes; and to provide for matters connected therewith. 11 Phike v South African National Defence Force (Defence Special Tribunal DST-J1/00) [2001] ZALC 152 (28 September 2001)
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that was to be made. Creation of a new National Defence Force that was to be established to this end. Section 224 (1) of the Interim Constitution played an important role for the establishment of the South African National Defence Force.
Parliament enacted Defence Special Tribunal Act,12 that came into operation on 1st day of January 1999. More importantly to note is that the Special Tribunal Defence Act, unfortunately ceased to have effect on the 31st December 2001 by operation of law.13
In the recent matter of Matross v Minister of Defence and Military Veterans and Another14 before the High Court of South Africa Gauteng Division, Pretoria, the court dealt with re-ranking of Mr Matross backdated to 27 April 1994, the High Court of South Africa, Gauteng Division, Pretoria ruled that matter is referred back to the Audit Complaints Board for reconsideration, which reconsideration should include the appointment of the Applicant in the rank of major during integration and all his subsequent promotions to more senior ranks.
Presently, there is another interesting integration re-ranking matter of Solidarity Trade Union v National Commissioner of South African Police Services, NO First Respondent, Minister of Police, NO Second Respondent, South African Police Services Third Respondent, Phetoe Anna Sebilwane First Intervening Party, Advocate Zondeka Makondo African Law Project Second Intervening Party and 3 to 629 Others, in this matter Solidarity Trade Union is opposing the re-ranking of former non-statutory members to higher ranks backdated to 27 April 1994.
1.3 Outcome of the Study
This discussion consists of the analysis of the role of the judiciary in the enforcement of integration rights in the security cluster. It further explores judicial trends and approaches in constitutional adjudication. It will therefore be of great assistance to legislators, researchers
12 81 of 1998. The main object of this Act was to “enable the Labour Court to act as a special tribunal in the adjudication of disputes which arise out of the implementation of transitional arrangements in respect of military institutions or the rationalisation of the Department of Defence; to provide for expeditious procedures for the adjudication of those disputes; and to provide for matters connected therewith”.
13 Section 9 (1) of the Special Tribunal Defence Act, 1998. 14 Matross v Minister of Defence and Military Veterans and Another (36675/2016) [2018] ZAGPPHC 389 (24 May 2018)
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and practitioners alike and all those involved in the enforcement and implementation of integration rights. Communities, students and the human rights institutions stand to benefit from this study.
1.4 Problem Statement
The problems of integration have divided the South African society for various reasons, a difference of opinions have emerged amongst members of different communities based on both racial and political grounds. Furthermore, it is not clear whether integration disputes fall within an exclusive jurisdiction of the Labour Court, and/or falls within the jurisdiction High Court.
1.5 The Research Question
The essential question is whether members of the non-statutory forces have the right to integration, within the security cluster formations?
1.6 Source of the Research Problem
The significant purpose of Constitutional law is to regulate and guide relation in a society. The purpose is more stringent when it comes to members of the South African Police, soldiers and members of the intelligence (spies). The issues of integration are constitutional matters that even the Constitutional court could be the court of first instance.
Section 4 (1) (b) read with Section 16 (9) of the Transitional Executive Council Act 1993, section 224 of the Interim Constitution 1993, section 199, section 200 and Section 3 of Annexure D of Schedule 6 of the Constitution of the Republic of South Africa 1996, focuses on integration of 8 armed forces into a single National Defence Force.
6
In the matter of Phike v South African National Defence Force15 the court provide a clear administrative law mechanism to deal with issues of integration in the South African National Defence Force, this position is further supported by Matross case16, but it is not clear whether the above cases will have influence in the matter of Solidarity v National Commissioner of South African Police Services and Others17.
The writer will take cognizance of the Constitutional Court judgment, In the matter of Gcaba whereby the Constitutional Court held that disgruntled public servants no longer have their especial administrative law remedies and must be content with remedies provided by Labour Relations Act. The court said: “employment and Labour relationship issues do not amount to administrative action within the meaning of Promotion of Administrative Justice Act (“PAJA”) when a grievance is raised by an employee relating to the conduct of the state in its capacity as the employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action”.
The constitutional Court took away the only remedy the previous highest Court had granted to soldiers approximately 19 years before. The soldiers who thought, at the start of the nineties, that they have found a lasting peace and acquired an important administrative law right, now discovered that the right was just like a dummy given to them to keep quiet, as the right gradually evanesced.
Furthermore, one will take cognizance that the Defence Special Tribunal Act18 ceased to be operative by operation of law.
1.7 Basic Hypothesis and Central Theoretical Argument
The research will be based on the assumption that both the South African legislator and the labour movements will promote the enactment of legislation that will address the problems of
15 Phike v South African National Defence Force (Defence Special Tribunal DST-J1/00) [2001] ZALC 152 (28 September 2001 16 Matross v Minister of Defence and Military Veterans and Another (36675/2016) [2018] ZAGPPHC 389 (24 May 2018)
17 Case number 79041/18 High Court of South Africa, Gauteng Division Pretoria
18 81 of 1998.
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integration, further develop mechanism and tactics to achieve success in conflict management and resolution thereof in all affected security cluster departments.
The question of the entrenchment of Section 4 (1) (b) read with Section 16 (9) of the Transitional Executive Council Act 1993, Section 224 of the Interim Constitution 1993, Section 199, section 200 and Section 3 of Annexure D of Schedule 6 of the Constitution of the Republic of South Africa 1996 set up the bases for development of legal framework to address the integration problems.
The opposite can be said with the war of liberation less has been written on the problems emanating from integration of the former warring forces, there are few case law relating to the problems emanating from integration. Importantly there are many Journal articles written by a number of academic on integration of armed forces in South Africa, less on problems emanating from it.
1.8 Aims
• To explore and analyse the willingness of the courts to become involved in
resolving integration, re-ranking and rank review disputes.
• To critically examine the failure or refusal of the legislative to establish an inexpensive mechanism to amicable resolve integration disputes.
• To examine the growing influence of society on issues of integration of former members of non-statutory forces.
• To examine the impact of the current legislative and policy framework on integration, disputes in the security cluster in South Africa.
• To examine the impact of the current legislative and policy framework on integration disputes in the security cluster in South Africa.
1.9 Objectives
• Government managing traumatic war experiences of the military veterans and society; • Re-enacting permanently the Defence Special Tribunal Act, No. 81 of 1998 and or enactment of similar Act;
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• The inclusion of former members of the KZSPF into Department of Military Veterans database, thus reducing the effects of traumatic expieriance.
1.10 Research Methodology
The research methodology to be applied in this research is based on qualitative method, relying on books, journal articles, newspaper articles, internet sources, International authorities. Further, a comparative study is used to compare how other countries dealt with the issues of integration of their armed forces and the aftermath thereof, their success and failure thereof, factors that contributed to the outcome are investigated.
1.11 Significance of the Research
The Importance of conducting this research is to make the authorities, legislators and the public aware of the problems and difficulties of integration, by studying and analysing different integration processes, which were both successful and also those that have failed, doing so will expose similar trends or mistakes that were present in a particular situation that led to a particular incident or result, this will offer better amicable solutions or even factors that will need to be considered prior integration by those International bodies promoting conflict resolution and lasting peace. The research results will lead to finding a solution for Africa problem(s), more Importantly promoting a lasting solution or factor(s) that will be useful to authorities, legislator, public and the courts established to deal with such problems, thus promoting a lasting solution for Africa armed forces integration problem(s).
1.12 Provisional Scope and Limitations
The research will be covered in five (5) chapters, each chapter focus on specific topic and subtopic:
Chapter 1 deal with: Introduction, Background, Outcome of the Study, Problem Statement, Source of the Research Problem, Basic Hypothesis and Central Theoretical Argument, Aims and Objectives, Research Methodology, Significance of the Research and Literature Review
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Chapter 2 deal with Domestic legal framework;
Chapter 3 will focus on International legal framework;
Chapter 4 will be engaging on comparative studies of integration of armed forces in South Africa, South Sudan and the United States of America.
Chapter 5 Conclusion and recommendations.
1.13 Literature Review
1.13.1 Introduction
In this literature review, the writer will review one book and two (2) Journal articles, first starting with the book written by André Wessels, “The Anglo – Boer War, 1899 – 1902, White man’s war, black man’s war traumatic war”.19 The topic Anglo – Boer War has vast Literature available for one to read yet only one book that captures the involvement of African, Coloured and Indians people in this particular war. André Wessels book not only deals with the gentleman agreements between the British and the leaders of the two Boer Republic, about the involvement of the African people in the war and arming them. He correctly captures the advantage and disadvantage of both sides, the mistakes committed by the Boer Commanders in prosecuting the war.
Further, he correctly highlights the introduction of the successful guerrilla warfare by the Boer Commandos resulting in the British command structures, introducing more brutal methods of countering guerrilla warfare by the Boers, the introduction of concentration camps for women, children and Africans, resulting in thousands of them dying in those concentration camps. The arming of Africans by the British which Boers feared so much leading to the Peace Treaty of Vereeniging and the integration of British and Boer armed forces and the exclusion of the African people in the Treaty of Vereeniging.20 Finally, he specifically deals with the problems emanating from integration which led to rebellion by Boer Commandos. Finally, he mentions in passing the struggle of liberation, the negotiated settlement, the fear of the Afrikaner and the unresolved trauma.
19 Wessels A. 2011 The Anglo – Boer War 1899 – 1902 White man’s war, black man’s war, traumatic war. First edition. Sun Media Bloemfontein: Sun Press.
20 ibid
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Secondly reviewing a Journal article “Parliamentary Oversight of Defence Transformation: The South African Experience” by Ruth Thandi Modise edited by Len Le Roux and Yemane Kidane.21 The Journal article focus on the constitutional frame as the enabling instrument for the integration of the eight (8) warring armed forces, outlining the principles, relationship, structure, and responsibilities required to secure civil-military relations. Furthermore, Thandi focus on the importance of Horn of Africa countries moving from conflict into democratisation and peace, thus in passing she touches the process of integration of armed forces as paramount to achieve peace.
Thirdly, I will review the Journal article How Unique is South Africa Military Integration? By Roy Licklider.22The writer focuses on the uniqueness of the South African Military Integration and undermine the seriousness of the aftermath of the integration.
The book is divided into three (3) parts, the first part deals with planning, deployment and the war. The Second part focuses on the utilisation of the African, Coloured and Indians in combat and the reaction of the Boar forces in the British utilisation of the African in combat. The third part focuses on collateral damage and traumatic consequences of the Anglo-Boer War.23
The author of the book is a noteworthy historian, schooler, academic and writer of great note, having written nine (9) books and many journal articles on the subject of the Anglo – Boer War 1899 – 1902 and the involvement of Africans, Coloured and Indians in the said war.24 The author is highly knowledgeable on the subject. Interestingly the author is a Senior Professor since 2007 at the University of Free State, Chairperson, department of history since 2006,
21 Modise, T.R. “Parliamentary oversight of Defence transformation: The South African Experience”, ISS Monograph Series. No 135, May 2007 [online]. Available at https://issafrica.s3.amazonaws.com/site/uploads/M135FULL.PDF (Accessed: 04 September 2019)
22 Licklider R “How Unique is South African Military Integration?”, Scientia Militaria, South African Journal of Military Studies, Vol 43, No. 1, 2015, pp. 149 – 155. [online]. Available at https://www.ajol.info/index.php/smsajms/article/view/117426/106988 (accessed: 04 September 2019)
23 Wessels A. 2011 The Anglo – Boer War 1899 – 1902 White man’s war, black man’s war, traumatic war. First edition. Sun Media Bloemfontein: Sun Press
24 ibid
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between 1985 – 2000 was Editorial consultant Dictionary South Africa, he is involved with South African Journal Cultural History since 1988 and in 2009 was visiting fellow Australian Défense Force Academy, Canberra.25
The author has been a member of the Free State regional committee National Monuments Council between 1988 -2000. Member of the Council of National Museum, Bloemfontein between 1996 – 2005. Member of South African Society for Culture History1990 -1996 and again 1998 – 2002, South African Academy of Sciences and Art, Netherlands – South African Society, Simon’s Town History Society, Simon van der Stel Foundation, Friends War Museum (founder, life, chairman 1989 – 1990).26 In view of the above, we can safely argue that the author has vast knowledge of the subject, thus contributing to the strength of the book.
The key argument of the author is that the war was strictly speaking “a white man’s war and a gentlemen’s war” thus a correct descriptive of the war is “Anglo-Boer War 1899 – 1902” to denote this war.27 The author main argument is apparent convincing from the beginning of the book and supported to the end of the book. Thus, I concur with the author on this point, the Africans, Coloured and Indians were used by the warring parties to further their political and military intents. Furthermore, both warring forces agreed on not arming Africans for fear of Africans taking up arms against them after their war. The difference was that the British were not committed to the gentlemen’s agreement thus armed and used African, Coloured and Indians in the combat. This is apparent from the introduction to the end of the book. The British had something to gain from the war by annexing both Republics and the Boers had to protect their interest, but nothing for the Africans to gain or protect from the war, thus white man’s war.
The weaknesses of the book are that the author when it comes to the role of the African in the war, he fails to separate Africans in the Tribal areas or under the rule of Chief system and those in the farms namely farm labourers who most of the time were more loyal to their masters. The author captures correctly the utilisation of African by the British forces, not limited to Africans in the farms and white control areas but even those in the areas controlled by chiefs in the tribal
25 [online]. Available at https://prabook.com/web/andre.wessels/338344 (accessed: 06 September 2019)
26 ibid
27 Wessels A. 2011 The Anglo – Boer War 1899 – 1902 White man’s war, black man’s war, traumatic war. First edition. Sun Media Bloemfontein: Sun Press
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areas, thus showing the British capabilities of taking the risk required to win the war. On the other hand, the author shows the weaknesses of the Boer failure to have structured command and good planning for war and the lack of organised stable defence force.
The author fails to highlight the difference of the two Boer Forces namely from the Free State Republic and those from Transvaal Republic. The Free State Boers had a better diplomatic relations with its farm labours, shared common fears of British and Zulus invading and taking over their land, thus as a result many Boers were able to train and arm their women, children and farm labours to assist in the defence, while the Transvaal Boers did not want any African to be armed, it is argued that there are good reasons for Transvaal Boers to have different fears from that of the Boers in the Free State, having conflict with Bapedi, Ndebele, Zulu and Swati’s.
This argument is supported by the author contention in paragraph 2.2.1 of part 2 of the book.
“The Boers had been involved in several conflicts with black people since the time that whites had arrived in Southern Africa. For this reason, the Boers were opposed to the arming of “non-whites”. As a result of their superiority in numbers, (armed) black people could potentially play a decisive role in the conflict”.28
The above criticism is unfair to the author, but necessary for the author future research to enrich this important historical event of our country. The researcher must point out that my grand grandfather participated in this particular war on the side of the Boers both in logistic support and in actual battles when the Boers started suffering serious casualties. Thus, unfair to those many Boers that had good relations with their farm labourers and did everything in their power to win the war they eventually lost because of religion of majority of Boers. It is important that historians must correctly record role of liberal Boers in the history of this great war and the author is the right person to do so.
The researcher find the book easy to read and fascinating, logically built, the three (3) part are constructed in such away that the reader after reading the preamble could choose which part to start with and which part to end with or will be the last but come to the same conclusion as if
28 ibid at para 2.2.1 Part 2 page 103.
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he/she started from part 1. The author makes it easier for non-academic person to understand the conflict and the aftermath of that conflict and effectively tell the story.
The book is more appropriate for general public to understand the effects of war and the aftermath (traumatic experiences) of the war, more importantly more appropriate for our military to understand the trauma caused by war.
The researcher has already alluded above, that the author has written a number of books and journal article on this subject and is a historian of note, he uses endnotes in referencing other sources, this make it easy for the reader continues reading undisturbed but keeping in mind that there are other sources to read later. Furthermore, the author effectively uses the appendix that makes it easier to start reading from any part of the book. The author style of referencing makes it easy to tell whether he relied from primary sources or secondary sources. Thus, it could be argued that the author relied on the secondary sources to a greater extend.29
The researcher has alluded at the beginning of this review, that the author is historian of great note, he captures the events of the war first in such a way that the ordinary reader would find himself or herself mentally participating in that war depending from which side are you supporting, it is normal for English to support the British and the Afrikaner support the Boers. Secondly to academics and specialist in the field of military law and science, find the book highly useful in many fields. Thirdly, the book is useful specially to history, law, and political science students investigating the subject for the first time. Lastly the book is easy to follow for novice reader like me and more relevant to military personnel from recruits to most senior officer to follow and understand more importantly the trauma after the war.
Conclusion, André Wessels, “The Anglo – Boer War, 1899 – 1902, White man’s war, black man’s war traumatic war” is a master peace, perfectly organised thoroughly, structured in such a way that a novice reader will find it easy to read and follow the events of the war as it unfold, detect the breach of agreements by the British and the brutality of the Boers imposed against the African found carrying any weapons of war. 30 The author captures the aftermath of the war in such a way that the reader will easily apprehend. The book is thoroughly researched, the
29 Ibid at page 163 – 205
30 ibid.
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weaknesses highlighted above, are unfair to the author and are made to contribute to the future writings of the author on the subject and does not in anyway undermine this brilliant work by the author.
The article was published in the ISS Monograph Series, No. 135, May 2007 edited by Yemane Kidane senior researcher and late Major General (retired) Len le Roux former head of the Defence Sector Programme at the Institute for Security Studies. Thandi Modise in this article, she focuses on Civilian and parliamentary oversight on National Defence force.
The author has written few journal articles in various subject more importantly on women issues, thus, the journal article finds its strength from the assistance and guidance by major General (ret) who understood the style of writing of former freedom fighters where the author emerged from thus able to guide but not interfere with both the content and style of writing. First let the researcher deal with the author main argument, is the NDF and constitutional imperatives, she adequately highlights the movement of the Defence Force from Racist minority SADF to a constitutional democracy National Defence force. In passing she mention integration of former warring forces into a single National Defence force.
The journal article Parliamentary Oversight of Defence Transformation: The South African Experience is organised in such way that the reader could easily follow the author’s main arguments, and ultimately convinced that constitutional superiority and the rule of law is the ultimately the way to go. The article is reasonably built it takes you from prior democracy step by step until constitutional democracy and the rule of law. Interestingly the author tries to be neutral in his writings and avoid being bias in favour of the liberation movements, thus her focus is to find lasting solution for the horn of Africa and its people. The reader will be able to make his/her own judgement after reading the article, furthermore, the article will be useful to academics and research students but more importantly to politicians trying to find a political solution to conflict.
There is a requirement for further research in this field of study, the article will be useful to researchers, and students liking investigating the subject for the first time and those finding solution for Africa’s problems. General points emerging from the article is that a solution for the
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warring parties in the horn of Africa can easily be found in negotiations and strong democratically drafted Constitution.
Conclusion, Thandi Modise article, represent the silent voices of the members of the non-statutory forces and the voice of majority, on a sensitive topic of conflict, thus balancing the views expressed in the ISS. The supremacy of the Constitution is properly ventilated and Parliamentary and civilian oversite properly captured in the article.
The researcher have alluded above, that the author has been guided by late Major General (retired) Len le Roux former head of the Defence Sector Programme at the Institute for Security Studies, The researcher has read many articles written by late Major General (retired) Len le Roux on integration, thus as the editor of the article he allowed the writer to express herself without interference as a result one could not criticise the writer for not using endnote or footnote and appreciate the acknowledgement in the bibliography.
The Journal article “How Unique is South Africa Military Integration?” By Roy Licklider, published in Scientia Militaria South African Journal of Military Studies vol 43, No1 (2015). He is a Professor at Rutgers University New York, visiting Professor of Political Science at Yale University.31 The author of the book is a noteworthy historian, schooler, academic and writer of great note having published 5 books in the military field.
The main argument of the author is “how unique is South Africa military integration?”. The author highlights the fact that South Africa integrated eight (8) warring groups into a single National Defence force, this point alone is unique to South Africa. He contends that the military culture of the warring forces differed in many ways, example from hierarchical one’s modern armies to the contrast of guerrilla army’s another unique fixtures to South Africa. The non-statutory forces (MK and APLA) sending of its freedom fighters to various countries for training in preparation for integration another unique fixture to South Africa. The integration of 8 warring
31 LICKLIDER R [online]. Available at https://polisci.columbia.edu/sites/default/files/content/pdfs/Faculty%20CVs/Licklider%20CV.pdf .
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military forces is supported by many writers like, late Major General André Wessels, “The South African National Defence Force 1994 – 2009: a historical perspective”,32 Joelien Pretorius, “Redefining Defence in the Post-apartheid Security Imaginary: The Politics of meaning-fixing,33and Len Le Roux.34
The limitation of the article, it only focusses of the uniqueness of the integration and not the aftermath of such integration. The article fit well in the present research topic as it addresses the uniqueness of South Africa integration of its warring armed forces. Furthermore, the article tries to provide solution to many African countries military problems using South African integration as a case study.
The article is organised logically, novice could read and understand the main arguments of the author while on the other hand academic and researchers will find the article helpful in their research work. The article was written to highlight the military and political trends during that period, more specifically trying to promote peace in the world.
The article is at the level suitable to student of political science, military science and more importantly law, further researchers will find this article helpful in military law research. The article achieves the author intended purpose.
The weakness is that the author failed to establish that only six (6) armed forces where in integrated between 27 April 1994 – 4th February 1997, Azanian People’s Liberation Army (“APLA”) and Kwa-Zulu Self Protection Forces (“KZSPF”) where absorbed in to the new National Defence Force only after the 4th February 1997 APLA members were integrated into the SANDF those who where sent to South African Police Service to date have not been integrated into the SAPS remain absorbed and in the bottom of the rank structures of the SAPS. The situation with KZSPF is painful less than 600 members where absorbed and remains
32 Wessels A Journal for Contemporary History, volume 35, issue 2 Sep 2010, p131 – 152 [online]. Available at https://journals.co.za/content/contemp/35/2/EJC28520 (accessed: 06 September 2019)
33 Pretorius J Journal for Contemporary History, Volume 33, Issue 1, Sep 2008, p 35 – 56 [online]. Available at https://journals.co.za/content/contemp/33/1/EJC28456 (accessed: 06 September 2019)
34 Published in African Security Review Vol 12 No 3, 2003
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absorbed in the SANDF, thus the argument that eight (8) forces where integrated is not correct, thus thousands of KZSPF former members remain not integrated or demobilised posing a security risk in a long term to South Africa.
In view of the above paragraph, more research necessity to be done on this subject, and the article will be handy as a starting point, taking into consideration that less books have been written both on South African integration of warring arm forces and the problems emanating from such integration, furthermore, there are few caselaw relating to the problems emanating from integration.
1.13.2 Conclusion
The article by Thandi Modise “Parliamentary oversight of Defence Transformation: The South African Experience”, focuses on civilian and parliamentary oversight on National Defence Force. It contributes extensively to the topic of this research, providing the backbone of integration thus talk to the topic of the research. Furthermore, it complements the article “How Unique is South Africa Military Integration?” By Roy Licklider and the book “the Anglo-Boer War, 1899 – 1902 White man’s war, black man’s war traumatic war by André Wessels more in this case the Integration.
The article by Roy Licklinder “How Unique is South Africa Military Integration?” is written for international audience especially those in the field of political science and military science and is relevant to law specifically international law, constitutional law and military law. It is relevant to the topic of this research and provide interesting arguments in this subject.
Lastly, the book “The Anglo-Boer war, 1899 – 1902, White man’s war, black man’s war traumatic war” humbles the researcher, very few authors write about trauma of war, he communicate with the reader the long lasting traumatic experience of war, that not end with the generation that was involved in that particular war but generations to come, he highlight the needs to effectively manage that traumatic experience to prevent future conflict and war, he makes clear examples of the Boer rebellion after the declaration of world war one and built of
18
anger to 1948 elections and lastly highlight the lost opportunity to have a permanent peace by excluding Africans in the Peace Treat of Vereeniging .
The book is relevant to day as it was relevant before it was published and more relevant on the day of its publication. The book addresses post war traumatic experiences of war and continue providing solution to present war traumatic experiences, it warns us about the danger of unmanaged war traumatic stress and experiences that harbours uncontrolled anger from the survives of the war and the generations to come thus contributing to threat to long lasting peace.
CHAPTER 2: DOMESTIC LEGAL FRAME WORK OF SOUTH AFRICA
2.1 Introduction
The municipal law is enacted to give effect to the provisions of both the interim Consitution and the Constitution of the Republic of South Africa. It is tried law that before one could plead for the rights provided for in the Costitution, must first start with the legislation enacted to give effect
19
to that particular constitutional right. The following legislation gives effect to the integration of armed forces in line with section 199 of the Constitution read with Schedule 6 annexure D(3).
2.2 Peace Treat of Vereeniging
The history of South African legislation on integration is rich, it starts just after the Anglo – Boer war (South African War), 1899 to 1902, with the signing of the Peace Treaty of Vereeniging ending the war. The Peace Treaty of Vereeniging is one of the most important documents in the history of South Africa. It paved the way for the establishment of the Union of South Africa (USA) and the integration of the two warring armed forces, the British Colonial Government armed forces and the Boer Commandos armed forces in 1910. Clause 1 of the Peace Treaty of Vereeniging deals with termination of hostilities and laying down of arms and the surrender of such arms of war to the British Colonial Government armed forces. Clause 2,3 and 4 of the Peace Treaty of Vereeniging deals with amnesty and guarantees for their personal properties for the Boer Commandos armed forces. Clause 5 and 6 of the Peace Treat of Vereeniging deals with rights of Boers in the Orange River Colony (Free State) and Transvaal colony, example, Dutch language taught at schools, allowed to be used in courts and possession of rifles for self defence or protection.
Clause 8 of the Peace Treaty of Vereeniging, important as it deals with the rights of African people, in this clause the question of granting franchice to Africans was postponed pending the introduction of self-government. Furthermore, clause 8 introduce the subject of self-government thus, it could be argued that it set the foundation for the enacting of the Constitution of the Union of South Africa. The failure of including the African in the Peace Treat of Vereeniging is an opportunity lost and that become more expensive in many years thereafter.35
2.3 Convention for a Democratic South Africa (“CODESA”)
On or about 25 October 1991, more than ninety organisations led by the African National Congress (“ANC”) assembled in Durban to create a Patriotic Front in preparation for negotiation process with apartheid National Party Government led by Mr F.W. de Klerk at the Convention 35 South African History online [online]. Available at https://www.sahistory.org.za/archive/peace-treaty-vereeniging-original-document
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for a Democratic South Africa (“CODESA”).36 The result of the gathering was the proposal of the interim government to manage transition. The first meeting or plenary session took place on the 21st December 1991 at the World Trade Centre in Johannesburg. The Chief Justice Michael Corbert assisted by Petrus Shabort and Ismail Mohamed presiding judges open the convention attended by plus 228 delegates from nineteen political parties.
The importance of CODESA was inclusive in its nature, continued inviting those political organisation and liberation movement’s who were not participating and made reasonable concessions were necessary. It succeeded to bring back to the negotiating table Inkatha Freedom Party (“IFP”) and the Pan Africanist Congress (“PAC”).
CODESA play an important part amongst other things the drafting and enactment of the Transitional Executive Council Act,37 Interim Constitution of the Republic of South Africa Act, and the Constitution of the Republic of South Africa.38These laws are the foundation and the corner stone of integration of the eight (8) warring armed forces into a single National Defence Force. It is argued that CODESA played pivotal role than the Peace Treaty of Vereeniging played in bring peace to South Africa. The Peace Treat of Vereeniging excluded the African while on the other hand CODESA was inclusive of all South African Citizens.
This chapter will attempt to address all relevant constitutions of South Africa starting with Union of South Africa Constitution, Transitional Executive Council Act, Interim Constitution and the final Constitution Act, 1996, over and above address the various legislations that are enacted to give effect the provisions of the Constitution relating to integration and its aftermath and conclusion.
2.4 Union of South Africa Constitution Act, 1909
36 South African History online at https://www.sahistory.org.za/article/convention-democratic-south-africa-codesa
37 Transitional Executive Council Act, No.151 of 1993
38 Constitution of the Republic of South Africa,1996
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The British Colonial Government took almost seven (7) years after the signing of the Peace Treat of Vereeniging to enact the first Constitution of the Union of South Africa which was enacted on the 20 September 1909 resulting that on the 2nd day of December 1909 British Government by Royal Proclamation declared the 31st May 1910 being the date for the establishment of the Union of South Africa, thus paving the way for the establishment of the semi-autonomous Union of South Africa government39.
Interestingly the Constitution says nothing about the military integration, but section 17 of the Constitution deals with the command of both naval and military forces within the Union, thus the commander in chief of both naval and military forces in the Union of South Africa was vested with the King or in the Governor-General of the British empire.40
It is evident from the constitution that the legislator did not effectively deal with the military problems of integration, thus a need to establish the Union of South Africa Defence, as a result the government enact the Union of South Africa Defence Act, No 13 of 1912, to help integrate the two-armed forces, the British armed forces and the armed forces of the two Boer Republics.41 Interestingly thousands of African soldiers died in this war, and many African people died in the concentration camps but the Constitution did not cater for the African, thus an opportunity to have one Defence Force was lost.
2.5 Defence Act (no. 13 of 1912)
It took two years for Union Government to enact the Union of South Africa Defence Act, No. 13 of 1912, to make it possible for the Government to integrate the two-armed forces namely; the British armed forces and the armed forces of the two Boer Republics.42
The Union of South Africa Defence Act No 13 of 1912 was not adequate to address the problems of integration, but good enough for the establishment or formation of the Union
39 The Union of South Africa Act, 1909 [online]. Available at: https://media.law.wisc.edu/s/c 8/jzhy2/cbsa1.pdf
40 ibid
41 A history of military nomenclature in South Africa [online]. Available at https://www.ajol.info/index.php/smsajms/article/viewFile/142946/132691
42 ibid
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Defence Force, though small and consisted of Active Citizen Force and small Permanent Force component.43
In view of above paragraph, the UDA 13 of 1912 was silent on issues of integration, thus a recipe for revolt.
2.6 Defence Act (no. 44 of 1957)
On the 26 day of May 1948 at the general election, the Reunited National Party under the leadership of a Dutch reformed church cleric Daniel Francois Malan was voted into power44. Shortly thereafter, the Government of the Nationalist Party had a clear program to correct the wrongs of the past, one of the targets of change was the Union Defence Force45. The first thing was to amend the old Defence Act and replace it with the then new Defence Act46.
The enactment of the Defence Act,47 was designed to resolve many problems of integration of the Boer Commandos armed forces in the Union Defence Force.
Analysing the Act, it provided many solutions to the problems of the two Boer Republics armed forces but did not address the problems of African soldiers. It is admitted that was one of the best drafted/crafted Defence Act of the time.
2.7 Transitional Executive Council Act, no. 151 of 1993
The enactment of the Transitional Executive Council Act,48become the first legislation that talk to integration of the warring forces. Section 4 (1) (b) read with section 4 (5) of the Act deals with procedure for the participation of the said armed force.
43 ibid
44 South Africa general election [online]. Available at https://en.wikipedia.org/wiki/1948
45 A history of military nomenclature in South Africa [online]. Available at https://www.ajol.info/index.php/smsajms/article/viewFile/142946/132691
46 Defence Act, 44 of 1957 as amended.
47 ibid
48 Transitional Executive Council Act, No.151 of 1993
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Section 16 of the Transitional Executive Council Act,49 focuses on the requirements of a new integrated National Defence Force, like training, research on policy of the Defence Force.
The Act is the foundation of bringing peace and integration of the eight (8) warring armed forces. Further setup issues that must be addressed in the new Interim Constitution. The Act was a necessity for successful integration of armed forces and country stability.
2.8 Interim Constitution of the Republic of South Africa Act, 200 of 1993.
The Interim Constitution of the Republic of South Africa Act,50 was drafted by the “Multiparty Negotiating Form” and become operative on 27 April 1994. It encompassed all agreement of the negotiating parties.
Section 224 of the Interim Constitution of the Republic of South Africa Act deals with the establishment of the South African National Defence Force and state the following:
“[224] Establishment of the National Defence Force:
(1) The National Defence Force is hereby established as the only defence force for the Republic.
(2) The National Defence Force shall at its establishment consist of all members of –
(a) the South African Defence Force;
(b) any defence force of any area forming part of the national territory; and
(c) any armed forces as defined in section 1 of the Transitional Executive Council Act, 1993 (Act 151 of 19930, and whose names, at the commencement of this Constitution, are included in certified personnel register referred to in section 16 (3) or (9) of the said Act: Provided that this subsection shall not apply to members of any such defence or armed force if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did not take part in the first election of the National Assembly and the provincial legislatures under this Constitution.
49 ibid,
50 Constitution of the Republic of South Africa Act, No. 200 of 1993
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(3) Save for the National Defence Force, no other armed force or military force or armed organisation or service may be established in or for the Republic other than –
(a) as provided for in this Constitution;
(b) a force established by or under an Act of Parliament for the protection of public property or the environment; or
(c) a service established by or under law the protection of person or property.
Analysing the Interim Constitution,51 it is evident that the “Multiparty Negotiating Forum” wanted to avoid the mistakes of the past, namely the Peace Treaty of Vereeniging52 and the Union of South Africa Constitution Act,53 of excluding African Soldiers from integration of armed forces and not providing mechanisms to deal with problems of integration.
“Multiparty Negotiating Forum” correctly took a risk of including all warring armed forces into the new National Defence Force thus paving a way for lasting peace and prosperity in South Africa.54 Eight (8) armed forces integrated to form one National Defence Force, thus ending the protected war of liberation. Over and above the Interim Constitution become the pace setter for the final Constitution, many of its sections and chapters were included in the Final Constitution more importantly the Bill of Rights and the establishment of the new National Defence Force.
2.9 Constitution of the Republic of South Africa Act, 1996
The Constitution of the Republic of South Africa,55 was drafted by newly elected members of Parliament after 27 April 1994, subjected to Constitutional Court for approval, it was sent back to Parliament for correction and finally approved on 4th day of December 1996, signed by the President on the 10th day of December 1996 at the place where the Sharpeville massacre took place on the 21st March 1960.56 Section 3 on Annexure D amend section 224 of the Interim
51 ibid 52 Wikipedia, the free encyclopedia [online]. Available at http://www.ask.com/wiki/Treaty_of_Vereeniging
53 Union of South Africa Constitution Act, No 13 of 1912
54 Section 224 (2) (c) of the Interim Constitution of the Republic of South Africa Act, 200 of 1993
55 Constitution of the Republic of South Africa,1996
56 South Africa History online [online]. Available at https://www.sahistory.org.za/article/constitution-republic-south-africa-1996
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Constitution by replacing the proviso to subsection (2) with the following proviso: “Provided that this subsection shall also apply to members of any armed force which submitted its personnel list after the commencement of the Constitution of the Republic of South Africa, 1993 (act 200 of 1993), but before the adoption of the new constitutional text as envisaged in section 73 of that Constitution, if the political organisation under whose authority and control it stands or with which it is associated and whose objectives it promotes did participate in the Transitional Executive Council or did take part in the first election of the National Assembly and the provincial legislatures under the said Constitution.57
Interestingly the Government, signed the Constitution on the United Nation International Day for the Elimination of Racial Discrimination adopted on the 26 day of October 1966, whereby the United Nation proclaimed 21 March as the International Day for Elimination of Racial Discrimination to be commemorated annually.58 Furthermore, signed at the Sharpeville Township where the Apartheid racist police force supported by the army massacred 69 innocent unarmed African civilians in a peaceful demonstration against the “pass laws” and the township situated plus minus 14 Kilometres from Vereeniging where the Peace Treaty of Vereeniging was drafted and agreed upon between the British Government armed forces and the Boer Commandos leadership excluding Africans.59
The signing of the Constitution of the Republic of South Africa at Sharpeville signal and or signifies the end of the policies of apartheid in South Africa and the elimination of all forms of racial discrimination.60
Analysing the Constitution of the Republic of South Africa, 1996, one is bound to conclude that the drafters of this Constitution followed in the trend of their predecessors who drafted the Interim Constitution by adopting the various provisions of the interim constitution to the new Constitution and fine polishing them to be acceptable to the Constitutional Court. More
57 Constitution of the Republic of South Africa,1996
58 United Nation General Assembly Resolution 2142 (XXI) adopted on 26 October 1966 [online]. Available at https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/2142%20(XXI)
59 South African Government [online]. Available at https://www.gov.za/EliminationofRacialDiscrimination2019
60 Chapter 2 Bill of Rights of the Constitution of the Republic of South Africa, 1996
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importantly, the provisions of the new Constitution speak to the provisions of the interim constitution, thus a synergy exist between the Interim Constitution and New Constitution.
2.10 Demobilisation Act, 99 of 1996
The Demobilisation Act,61 was enacted for the purpose of demobilising former members of the Non-Statutory Force; namely Umkhonto we Sizwe (“MK”) and Azanian People’s Liberation Army (“APLA”). This Act catered for all those members of the Non-Statutory Force who did not want to integrate to the South African National Defence Force for various reasons and to provide for a demobilisation gratuity and to determine the requirement for that gratuity.
2.11 Special Pensions Act, 69 of 1996
The Special Pension Act,62 was enacted to give effect to Section 189 of the Interim Constitution.63 The problem with the Act, was section 1 of the Act, which set an age limitation, the person must have been 35 years and above, to qualify for the special pension.
The Act did not even take into consideration, those young man and woman, who became disable on the line of duty or struggle and those disabled people who effectively contributed and made sacrifices, served in the struggle for liberation and contributed in the establishment of a democratic order.
Analysing the Act, one will say that it discriminates against the young people living with disability and all other your people on ground of age and could not find any employment as many of them
61 Demobilisation Act, 99 of 1996.
62 Special Pension Act, 69 of 1996 (1) Provision shall be made by an Act of Parliament for the payment of special pensions by the national government to- “(a)persons who have made sacrifices or who have served the public interest in the establishment of a democratic constitutional order, including members of any armed or military force not established by or under any law and which is under the authority and control of, or associated with and promotes the objectives of, a political organisation; or (b)dependants of such persons”.
63 “to provide for special pensions to be paid to persons who made sacrifices or served the public interest in the cause of establishing a democratic constitutional order; to prescribe rules for determining the persons who are entitled to receive those pensions; to establish a Special Pensions Board and a Special Pensions Review Board; and to provide for related matters”.
27
have no formal education and many are disable. The lack of pension for these former Non-Statutory members burden the immediate family, the public at large and promote crime.
2.12 Defence Special Tribunal Act, 81 of 1998
The Department of Defence (“DOD”), between 1994 to 1998 was faced serious integration problems, resulting in thousands of soldiers joining trade unions and to the extreme the shootings of Senior Officers in the Military Bases. The lack of speedily dispute resolution mechanism created this anger from aggrieved soldiers. More important the shooting incident at Tempe Military base Bloemfontein necessitated that the Department of Defence to provide mechanism to resolve integration problems or disputes.
The Department of Defence responded to the challenge by enacting the Defence Special Tribunal Act,64 thus many of soldier’s integration problems could be resolved amicable by the Labour Court. Unfortunately, the Act had a short life span. The Act becomes operational as from 1 January 199965 and ceased to have effect by operation of law on 31st December 2001, thus it existed for only 3 years. 66
Analysing the Act, it could be submitted that the Act was necessary to deal with integration problems and its aftermath, its short life span did not assist both the Department of Defence and soldiers especially former members of the non-statutory force. The cessation of the operation of the Act, created a lacuna, thus grievances of lower rank soldiers keep on pilling up without any mechanism to resolve them.
64 Defence Special Tribunal Act, No. 81 of 1998. To enable the Labour Court to act as a special tribunal in the adjudication of disputes which arise out of the implementation of transitional arrangements in respect of military institutions or the rationalisation of the Department of Defence; to provide for expeditious procedures for the adjudication of those disputes; and to provide for matters connected therewith.
65 This Act shall be called the Defence Special Tribunal Act. 1998, and shall come into operation on 1 January 1999.
66 Duration of Act: 8. (1) Subject to the provisions of subsection (2), this Act shall cease to have effect on 31 December 2001. (2) The president may at any time before the date referred to in subsection (1) and by proclamation in the Gazette declare that this Act shall cease to have effect on any earlier or later date specified in the proclamation. (3) If any proceedings have been brought before the special tribunal before the date on which this Act ceases to have effect in terms of subsection (1) or (2). those proceedings 20 shall be continued and concluded as if this Act had not ceased to have effect.
28
It is submitted that the President should have extended the life span of the Act, by amending the termination date of the 31 December 2001 indefinitely.
2.13 Chapter xx of the General Regulations for the South African National Defence Force and Reserve.
On the 20th day of August 1999 the Department of defence published in the Government Gazette 20376 dated 20th August 1999 Chapter XX of the General Regulations for the South African National Defence Force and Reserve.67 this was after the Constitutional Court had ruled that soldiers are workers and section 23 (1) of the Constitution is applicable to soldiers and declared a number of section in the Defence Act No.44 of 1957 to be unconstitutional.68 The shortcomings of these regulations they provided for collective bargaining and collective disputes and not for individual grievances, thus individual grievances of former members of the Non-Statutory Forces could not be entertained. The dispute mechanism was designed to resolve only collective dispute referred by the Military Bargaining Council (“MBC”) to the Military Arbitration Board (“MAB”).
2.14 Military Discipline Supplementary Measures Act, no. 16 OF 1999
The Military Discipline Supplementary Measures Act,69 was enacted for the purpose of introducing a new system of military courts. The new system was introduced first to comply with the constitutional requirements and secondly to improve the execution of military discipline and matters incidental thereto.
It is important to mention that this Act only deals with military discipline, grievances of soldiers are not addressed in this forum. Interestingly, the jurisdiction of the military court applies to any person subject to its disciplinary code, civilians deployed with military outside the country, military personnel and prisoner of war.70 Its jurisdiction is limited when the military operates
67 Chapter XX of the General Regulations for the South African National Defence Force and Reserve published in the Government Gazette 20376 dated 20th August 1999
68 South African National Defence Union v Minister of Defence (CCT27/98 [1999] ZACC; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999)
69 No. 16 of 1999
70 Section 3 (e) to (g) of the Military Discipline Supplementary Measures Act, No 16 of 1999
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within the borders of South Africa specifically to soldier(s) or person(s) suspected of having committed murder, treason, rape or culpable homicide in the Republic of South Africa, such cases will be dealt with in terms of section 27 of the National Prosecution Authority Act, No. 32 of 1998 as amended, the trial shall take place in a civilian Court.71
Analysing the Act, one finds that it only provides for disciplinary procedure, and the jurisdiction of the Military Court and similar to Criminal Procedure Act. Furthermore, the Act does not address grievance(s) of soldiers thus problems of integration escalate on daily bases.
2.15 Termination of Integration Intake Act, 44 of 2001
On the 14th day of December 2001, the office of the Acting President asserted Termination of Integration Act,72 effectively terminating the integration intake of non-statutory forces members into the new South African National Defence Force. The Section 5 of the Act purports to amend Section 236 (8) (d) of the Interim Constitution to read as follows; “The continuance of membership of members of the South African National Defence Force referred to in section 224 (2) © shall be subject to such members entering into an agreement for temporary or permanent appointment with the South African National Defence Force [within a reasonable time] on or before 31 March 2002: Provided that such agreements shall be in accordance with normal employment policies and terms and conditions of service”.73
The amendment of section 236 (8) (d) of the Interim constitution is of great interest, taking into consideration that the Interim Constitution was drafted by “Multiparty Negotiating Forum” one would have expected that Parliament will follow the procedure laid down by the Constitution to amend the Constitution which was not done. Furthermore, submit the Termination of Integration Act, for approval by the Constitutional court which was not done.
71 (3) when a person who is subjected to the Code is suspected of having committed murder, treason, rape or culpable homicide in the Republic, the matter will be dealt with in accordance with section 27 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998, and any ensuing trial shall take place in a civilian court.
72 Termination of Integration Intake Act, No. 44 of 2001
73 Ibid at Section 5
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Interestingly, not a single political party,represented in Parliament objected or challenged the unconstitutionality of the Termination of Integration Act. Furthermore, not even the most vocal Non-Governmental Organisation challenged the unconstitutionality of the Act. The result of Termination of Integration Act was thousands of Non-Statutory Members were not integrated into the South African National Defence Force, thus posing a serious security risk to the country.
Analysing the Termination of Integration Act, one concludes by that the SANDF (DOD), run by former members of the South African Defence Force (“SADF”) wanted to terminate the integration of former Non-Statutory members into the SANDF for various grounds amongst those grounds a treat of rationalisation members of the SANDF, promotion and budget cuts. It is the common course for every employer who wants to reduce cost, start by retrenching employees, and as such integration gave the SANDF easy way out of the financial problem. It is submitted that the Termination of Integration Act is unconstitutional.
2.16 Defence Act (no. 42 of 2002)
The enactment of the Defence Act,74 was as the results of the Constitutional Court declared Section 126B (1) unconstitutional and invalid, declaring that with effect from the date of the order , the following words in section 126B (2) are unconstitutional and invalid: “or perform any act of public protest” “or to perform such an act” and “or such an act” and such words are severed from the subsection. Declaring that with effect from the date of the order, the words “(1) or” in section 126B (3) are unconstitutional and invalid and they are severed from the subsection.75
Analysing the Defence Act, it is evident that the Act was enacted to give effect section 199 read with section 200 to 204 of the Constitution.76 of the Republic of South Africa, 1996. Furthermore, the act was enacted to remove those section of the Defence Act, 44 of 1957 that were unconstitutional and adding some sections with regards to termination of members service
74 Defence Act, No.42 of 2002 75 South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999)
76 Constitution of the Republic of South Africa, 1996
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contracts. It is submitted that nothing new that contributed to the integration of armed forces was included in the Act.
2.17 Individual Grievance Regulations of the Defence Act, no 42 of 2002
On the 30th day of June 1910, the Department of Defence published in the Government Gazette number 33334 the Individual Grievance Regulations of the Defence Act.77 The Regulations where published to give effect to Section 61 of the Defence Act, 42 of 2002.78
Regulation 2 of the Individual Grievance Regulations state that “These Regulations apply to all members and employees who lodge Individual Grievances after the commencement of these Regulations subject to Regulation 19”. The immediate problem of the Regulations is that it encompasses labourers who could not read and write thus by operation of law they cannot raise their grievances.
Analysing the Act, it was published eight years after the Defence Act, 42 was enacted, the only reason one could think of, as to why these Regulations were enacted, was the growing pressure from Parliament Standing Committee on Defence after receiving thousands of grievances from members (Soldiers) of the SANDF.
2.18 Military Veterans Act, no 18 of 2011
The Government responding to public outcry of the status prevailing on issues of Non-Statutory Military Veterans, published in the Government Gazette dated 5th December 2011 the Military Veterans Act.79 The purpose of the Act was to recognise the sacrifices made by military veterans in the service for their country and or their role in the democratisation of South Africa. To provide benefits relating to military veterans amongst other things.
77 Individual Grievance Regulations, published in Government Gazette No 33334 dated 30 June 2010
78 Section 61 of the Defence Act, 42 of 2002: Procedure for redress of grievances: (1) Any person to whom this Act Applies and who is aggrieved by any act or omission of any other person to whom this Act applies, may lodge his or her grievance in writing. (2) The Minister must prescribe procedures, which must among other things, specify the expeditious processing of grievances and the chain of command through which individual and group within the Department may address individual and collective grievances.
79 Military Veterans Act, No. 18 of 2011
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The Act plays an important role in keeping peace, security and stability in the country. Further, it takes away the threats of these soldiers going back to the bush.
2.19 Government Employees Pension Law Amendment Act, no. 19 of 2011
The Government after 16 years of democracy noting public pressure with regards to the plight of non-statutory force military veterans, published in the Government Gazette the Government Employees Pension Law Amendment Act.80 The Act amongst other things provided for the recognition of pensionable service for former members of the non-statutory and to provide for matters connected therewith.
In addition, this Act read with Military Veterans Act, played an important role in keeping peace, security and stability in the country. More importantly, addressing the plight of military veterans and taking away the threats of going back to the bush.
2.20 MILITARY OMBUD Act, no. 4 of 2012
The problem of soldier’s grievances could not be resolved by the Individual Grievance Regulations, Parliament Standing Committee on Defence continued receiving grievances from former members of the non-statutory force. The other problem that the Department of Defence had to address was the continuing of shooting of senior officers and senior non-commissioned officer in military bases by junior soldiers which posed a serious threat to the stability of the country. The Department of Defence in response to these situations stated above, sponsored a green paper on establishing the office of the Military Ombud.
On the 3rd day of May 2012, the Government published in the Government Gazette the Military Ombud Act.81 The mandate of the office of the Military Ombud amongst other things, was to investigate complaints lodged in writing by members and former members of the SANDF regarding her/his condition of service. Interestingly,section 7 (2) of the Military Ombud Act deals
80 Government Employees Pension Law Amendment Act No. 19 of 2011
81 Military Ombud Act, No.4 of 2012
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with the Jurisdiction.82 The question to be asked, is the office of the Ombud independent, impartial, acting in good faith, without fear, favour, bias and or prejudice, with such restrictions? The answer is simple the creation of the office of Ombud was done with a purpose to curtail members of the SANDF from launching complaints to the office of the Public Protector and Parliament Standing Committee on Defence. Furthermore, Section 7 (2) of the Military Ombud Act, limits the office of the Military Ombud a limit that could not be imposed on the Public Protector. It is argued that the Military Ombud or his/her office could not conclude that the grievance is in terms of section 7 (2) (a) to (e) without first investigating and allow the aggrieved to state his/her case (audi alteram partem rule). Thereafter make such conclusion that it has no Jurisdiction.
Analysing this Act, it is obvious that there is duplication of legislation dealing with grievance procedure of members of the South African National Defence Force. Furthermore, there is duplication of the Public Protector mandate, as provided for in Section 193 of the Constitution83 read with Public Protector Act.84 It is argued that the is duplication of legislation and or over legislation. The research submits that the Military Ombud Act, 4 of 2012 is unconstitutional as far as it purports to duplicate the mandate of the Public Protector.
2.21 Case Law
The South Africa courts have played a pivotal role in resolving integration disputes from the beginning of integration. The matter of Phike v South African National Defence Force,85 the Applicant join APLA in 1983 and in 1984 was ordered to infiltrated Bophuthatswana Defence Force (“BDF”) which he did successfully and during this period he was able to be promoted by
82 Ibid Section 7 (2) “The Ombud may refuse to investigate a complaint if: (a) the investigation may undermine channels of command, or constitute insubordination in the Defence Force; (b) the complaint is frivolous or vexatious; (c) the complainant has failed to lodge a complaint within a reasonable time as prescribed; (d) a member has not first used the mechanism available under the Individual Grievance Regulations, 2010, unless the complaint relates to problems inherent in the system which bring about an adverse result to the complaint; or (e) a matter has been referred for resolution through any other dispute resolution mechanism available”.
83 Constitution of the Republic of South Africa
84 Public Protector Act, No. 23 of 1994 85 Phike v South African National Defence Force (Defence Special Tribunal DST-J1/00) [2001] ZALC 152 (28 September 2001)
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BDF to the rank of Captain, while on the other hand APLA continued promoting him to the rank equivalent to Colonel. Early 1995 APLA recalled the member, as a result, Khululekile Chris Phike had to resign from BDF as ordered by APLA. On or about 2nd day of July 1998 Applicant was ordered to report at wallmannstal assemble area of the South African National Defence Force for integration within the Air force.86
The problem arises when Phike appeared for ranking by SA Air Force Senior Manning Board of the SANDF whereby the Board refused to integrate him on grounds that he was a member of the SANDF and resigned.87
The Applicant launched Application in the Labour Court acting as Defence Special Tribunal sitting in terms of the Defence Special Tribunal Act, number 81 of 1998 and succeeded.88 In various matters of SANDU v Minister of Defence and Others the highest court was not hesitant to intervene.89 These cases played an important role in the lives of soldiers’ as members aggrieved can easily approach the High Court for relief, more importantly if the issue in dispute resolve around constitutional and legal problem.
In the matter of Matross v Minister of Defence and Military Veterans and Another90 the High Court Gauteng Division set aside the decision of the Minister of Defence and Military Veterans the First Respondent and ordered amongst other things: “2 The matter is referred back to the Audit Complaints Board for reconsideration, which reconsideration should include the appointment of the Applicant in the rank of major during integration and all his subsequent promotions to more senior ranks”.
In another matter of Minister of Defence and Another v Xulu,91 the Supreme Court of Appeal did not hesitate to intervene to grant Xulu relief sought. In the matter Minister of Defence and
86 ibid
87 Ibid at paragraph 13 page 3
88 Ibid at paragraph 21 page 5
89 South African National Defence Union v Minister of Defence (CCT27 98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999) and South African National Defence Union v Minister of Defence and Others (CCT65 06) [2007] ZACC 10; 2007 (5) SA 400; 2007 (8) BCLR 863 (CC) ; [2007] 9 BLLR 785 (CC) ; (2007) 28 ILJ 1909 (CC) (30 May 2007) 90 Matross v Minister of Defence and Military Veterans and Another (36675 2016) [2018] ZAGPPHC 389 (24 May 2018) 91 (337/2017) [2018] ZASCA 65; 2018 (6) SA 460 (SCA) (24 May 2018)
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Others v South African National Defence Force Union and Another92 Nugent JA contend at paragraph 30 that Government and public bodies conduct their affairs in the public interest and do so in a matured judgment.
2.22 Conclusion
The Transitional Executive Council Act,93 Interim Constitution of the Republic of South Africa Act,94 and the Constitution of the Republic of South Africa,95are the foundation of integration of the 8 warring armed forces to form one National Defence Force in terms of Constitution. Demobilisation Act,96 Special Pension Act,97 Defence Special Tribunal Act,98 Military Veterans Act,99and Government Employees Pension Law Amendment Act.100These Acts were enacted to give effect Section 224 of the Interim Constitution and Section 199 to 200 of the Constitution of the Republic of South Africa and form the backbone of integration.
Defence Act101, Chapter XX of the General Regulations for the South African National Defence Force and Reserve.102 Military Discipline Supplementary Measures Act,103 Defence Act,104 the Individual Grievance Regulations of the Defence Act.105These Acts deal with the aftermath of integration namely Grievance procedures and discipline.
Termination of Integration Act,106 and Ombud Act,107 reflect a confused management, trying to resolve grievances of soldiers by legislation. It is argued that both Act are unconstitutional as far as they purport to amend the Interim Constitution and far as purports to duplicate the Public
92 (161/11) [2012] ZASCA 110 (30 August 2012)
93 Transitional Executive Council Act, No.151 of 1993
94 Constitution of the Republic of South Africa Act, No. 200 of 1993
95 Constitution of the Republic of South Africa,1996
96 Demobilisation Act, 99 of 1996.
97 Special Pension Act, 69 of 1996
98 Defence Special Tribunal Act, No. 81 of 1998.
99 Military Veterans Act, No. 18 of 2011
100 Government Employees Pension Law Amendment Act No. 19 of 2011
101 Defence Act, 44 of 1957 as amended.
102 Chapter XX of the General Regulations for the South African National Defence Force and Reserve published in the Government Gazette 20376 dated 20th August 1999
103 No. 16 of 1999
104 Defence Act, No.42 of 2002
105 Individual Grievance Regulations, published in Government Gazette No 33334 dated 30 June 2010
106 Termination of Integration Intake Act, No. 44 of 2001
107 Military Ombud Act, No.4 of 2012
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Protector mandate, as provided for in section182 of the Constitution read with the Public Protector Act.108
The higher courts are decisively intervening in matters of integration thus those soldiers who have funds to challenge the military hierarchy could approach the court and find resolution of their disputes. The problem is that thousands of lower-ranking soldiers live from hand to mouth thus could not afford the exorbitant legal fees to take their matters to court let alone appeal to the Supreme Court of Appeal and the Constitutional Court. Soldiers find that taking labour dispute to court is like a bridge to far thus unable to cross the river.
In the case of military veterans, it is just continuing traumatic experience that is transferred from one generation to another and that generations must learn to live with trauma until such time, something triggers the uncontrollable anger that destroy everything on their path. The situation of KZSPF is an example of thousands of veterans trying find a solution for their trauma and approached High Court on 09 November 2012, Pretoria news weekend reported “Fight to join SANDF goes to High Court”.109 KSPF military veterans must learn to live with it, even non-governmental organisations are not prepared to assist or test the law on this issues.
CHAPTER 3: INTERNATIONAL LEGAL FRAMEWORK
3.1 Introduction
108 Public Protector Act,23 of 1994
109 Flanagan L [online]. Available at https://www.pressreader.com/ and https://www.iol.co.za/the-star/sas-forgotten-troops-take-army-to-court-1420170
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In the first and the second world war, millions of man and women died during the war, technology played a decisive role in changing the old type of warfare to the sophisticated new type of warfare. Universities played a major role in producing the greatest engineers, logisticians, planners, communicators, signallers and legal minds thus contributing to military evolution and innovation. In a short space of time warring countries were able to develop submarines, aircraft Carrier, missiles, and atomic bombs. War by its nature is brutal, just place yourself in one of the two Japan cities Hiroshima and Nagasaki you look up and see enemy plane above your head take cover on the trenches boom they release atomic bombs never head off prior the 6 August 1945, 90% of the City population wipeout and many of the survivors would die from radiation exposure. Thus, no sensible leader of the country will continue with the war, thus it comes no surprise that the Emperor Hirohito tendered unconditional surrender of the Japanese armed forces on the 15 August 1945.110 The Union of Soviet Socialists Republics (“USSR”) lost 20 million citizens killed during the war with Germany.111
On the 26th day of June 1945, just after Germany surrender and before the surrender of Japan, a United Nation Conference on International Organisation held at San Francisco a financial and, commercial centre of, Northern California in the United States of America,112 adopted the United Nations Charter. The charter was signed, by 50 countries and Poland signed later to become 51 countries original members of the United Nations. More importantly the United Nation Charter comes into force on 24 October 1945.113
3.2 United Nation Charter
110 History Com Editor [online]. Available at https://www.history.com/topics/world-war-ii/bombing-of-hiroshima-and-nagasaki 111 Wikipedia, the free encyclopedia, Soviet Union in World War II [online]. Available at https://en.wikipedia.org/wiki/Soviet_Union_in_World_War_II 112 Wikipedia, the free encyclopedia[online]. Available at https://en.wikipedia.org/wiki/San_Francisco
113 History of the United Nations [online]. Available at https://www.un.org/en/sections/history/history-united-nations/
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The United Nation Preamble is of great interest, in that it starts with the following words: “We the people of the United Nations determined (1) to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and (2) to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and (3) to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and (4) to promote social progress and better standard of life in larger freedom”.114 South Africa was one of the 50 countries that signed Charter and original member of the United Nation. Thus, the Charter is the foundation and the pillars of peace in the world.
Chapter one of the UN Charter hit at main important factors of peacemaking, the maintenance of peace and security in the world and address deals the collective measures for the prevention and removal of such threats to peace. It further deals with the suppression of acts of aggression or other breaches of the peace, to bring about by peaceful means. It further gives some commitment that this will be done by peaceful means, and in line with the principle of justice and international law settlement of disputes. 115 It is argued that integration of national conflicting forces is one of the methods that conform to the United Nation Charter of bringing settlement of dispute by peaceful means and in terms of the principle of justice and international law.
On the 10 December 1948, the United General Assembly adopted the Universal Declaration of Human Rights, (Resolution 217A) having noted the experience of brutality, holocaust and extreme racism prevailing in second World War.116
3.3 Uniting for Peace Resolution 377 (v) a (1950) adopted on 3rd November 1950
114 Preamble of the United Nation Charter [online]. Available at https://www.icj-cij.org/en/charter-of-the-united-nations
115 ibid
116 Universal Declaration of Human Rights, (Resolution 217A) [online]. Available at https://www.un.org/en/universal-declaration-human-rights/
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On the 3rd November 1950, the United Nation General Assembly adopted an important resolution 377 (v) A, promoting maintenance of international peace and security, and encouraging its members to take effective collective measures to prevent and remove of threats to peace, more importantly the suppression of acts of aggression and other breaches of peace. Furthermore, this resolution promoted that bringing about peace should be done by peaceful means and in line with the spirit purported by the principle of justice and international law. The resolution further promoted the settlement of international dispute by peaceful means.117
The importance of these resolutions the world in general and South Africa in specific, was the wind of change, African people demanded their human rights, the anti-pass campaign which resulted in the Sharpeville massacre and the banning of the PAC and the ANC. The banning’s led to the Pan Africanist Congress (“PAC”) establishing its military arm wing on the 11 of September 1961 followed by the ANC establishing Umkhonto we Sizwe (“MK”) on the 16 of December 1961.118
Flowing from the banning and declaration of arm struggle by the Pan Africanist Congress (“PAC”) followed by the African National Congress (“ANC”), South Africa conflict entered the international arena, the United Nation General assembly and the Security Council in line with the provisions of its Charter adopted various resolution over a number of years against South Africa, most important resolutions are the following: Security Council resolution 134 (1960) [ Question relating to the situation in the Union of South Africa],119 United Nation General Assembly Resolution 1761 adopted on the 6th November 1962,120 Resolution 417 (1977) adopted by Security Council on 31st October 1977.121
3.4 South Africa`s standing with the United Nation
117 United Nation [online]. Available at https://www.un.org/en/sc/repertoire/otherdocs/GAres377A(v).pdf
118 Underground teachings of Zephania Mothuping late President of the PAC
119 Security Council resolution 134 (1960) [Question relating to the situation in the Union of South Africa] [online]. Available at https://www.refworld.org/docid/3b00f1893c.html 120 United Nations General Assembly Resolution 1761, 6 November 1962 https://en.wikisource.org/wiki/United_Nations_General_Assembly_Resolution_1761,_6_November_1962
121 United Nations Security Council Resolutions on South Africa [online]. Available at https://www.refworld.org/docid/3b00f1893c.html
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It is of great interest to note that the Union of South Africa as represented by Prime Minister Jan Smuts, played pivotal role in the establishment of the United Nation, especially the first draft of the United Nation Charter was drafted by Prime Minister Jan Smuts, not only even presided at the first meeting of Commission II, on the 30th May 1945 held at San Francisco Opera House. Furthermore, Jan Smuts was present at the historic ceremony of signing the UN Charter on the 26 day of June 1945 and attached his signature on behalf of the Union of South Africa, thus the Union of South Africa obtained the status of being one of the original fifty-one (51) members of the United Nations.122
On the 10 day of December 1948, the United General Assembly adopted an important declaration on human rights namely “Universal Declaration of Human Rights, (Resolution 217A)” dated 10 December 1948 Union of South Africa abstained from voting.123 This declaration changed the perception of the people of the world regarding racism and colonisation. In contrast, the political development in the Union of South Africa was running in the opposite direction than the one promoted by the United Nation Universal Declaration of Human Rights, (Resolution 217A). Apartheid was not only practised but was even legislated into law, by the Nationalist Government.
The Union of South Africa despite playing a pivotal role in the establishment of the United Nations, by 1948, it was in loggerhead with the United Nation General Assembly. On the 22 June 1946 India Government had filed a complaint with the United Nation, this was followed by another complaint filed 12 July 1948, thus signalling the protected UN struggle against South Africa ending on February 1990, during this period several United Nation Resolution condemning South Africa was adopted.124
The more important resolution was the United Nations Security Council Resolution 418 and United Nations Security Council resolution 591 of 28 November 1996, strengthening the mandatory arms embargo against Racist South Africa. 122 South African Modern Military History [online]. Available at https://samilhistory.com/2017/04/28/jan-smuts-drafted-the-preamble-to-the-united-nations-charter/ 123 Wikipedia, the free encyclopedia [online]. Available at https://en.wikipedia.org/wiki/United_Nations_General_Assembly_Resolution_217
124 United Nations and Apartheid Timeline 1946-1994 [online]. Available at https://www.sahistory.org.za/topic/united-nations-and-apartheid-timeline-1946-1994
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South Africa reaction to the United Nation Security Council Resolutions was that of resistance to change, this is evident, on the 15 August 1985, the world over expected the then President of the Republic of South Africa P.W. Botha to cross the “Rubicon” in his infamous speech delivered in Durban, after the Minister of Foreign Affairs had told the world to anticipate a policy shift in South Africa politics, the world anticipated the announcement of the release of Nelson Mandela and other political prisoners, which did not happen.125 After his speech economic sanctions against South Africa was intensified, the United Nation Security Council resolution 591 of 28 November 1986, contributed immensely on the international pressure against apartheid South Africa.126
A year later the 27 November 1987 a disaster fell on South Africa Airways flight SA295 Boeing 747 aircraft type, from Taipei, Taiwan to Johannesburg stopping over at Mauritius before flying to Johannesburg, the aircraft crashed in the Indian Ocean, about 240 kilometres, to Mauritius. The cause of the worst accident for SAA was investigated by international team of experts and was unable to determine the exact cause of the accident, unsubstantiated theories from internal and external alleged that the Nationalist Party Government were involved in sanction busting.127
International pressure mounted against South Africa, on the 14 August 1989, F.W. De Klerk was appointed as acting state President, and was subsequently succeeded P.W. Botha as a state president, six months down the line announced the release of Nelson Mandela and the unbanning of political parties in South Africa. It is wildly recognised that P.W. De Klerk speech was a game-changer in South African politics. United Nation sanctions where relaxed, and subsequently removed, freedom of movement and sport for all South African.
125 PW Botha given the “Rubicon” Speech in Durban, [online]. Available at https://www.sahistory.org.za/dated-event/pw-botha-gives-rubicon-speech-durban
126 https://www.sahistory.org.za/dated-event/pw-botha-gives-rubicon-speech-durban
126 The question of South Africa [online]. Available at https://www.sipri.org/sites/default/files/2016-03/591.pdf 127 The Helderberg disaster: Was this the cause of the crash? [online]. Available at https://www.politicsweb.co.za/news-and-analysis/the-helderberg-disaster-was-this-the-cause-of-the-
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The Interim Constitution complied with United Nation Charter, Universal Declaration of Human Rights, (Resolution 217A) and all other UN human rights resolutions. The United Nation provided funds for the return of the exiled, it further promoted integration of 8 warring armed forces providing the British Military Advisor Team, to assist in the integration of these forces.
3.5 Conclusion
The United Nation Charter is its constitution, and the supreme law of the United Nation, laws and conducts of any member and non-member state inconsistent with it is invalid, and the obligations imposed by the UN Charter must be fulfilled. South Africa Constitution fulfil these obligations.
The integration of the 8 warring armed forces, comply with the United Nation Uniting for Peace Resolution 377 (V) A adopted by the General Assembly on the 3rd November 1950 “To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace”.
The Transitional Executive Council Act,128 Interim Constitution of the Republic of South Africa Act,129 and the Constitution of the Republic of South Africa,130 have encompassed the United Nation Charter, Universal Declaration of Human Rights, (Resolution 217A),131 Uniting for Peace Resolution 377 (V) A adopted by the General Assembly on the 3rd November 1950132 and all
128 Transitional Executive Council Act, No.151 of 1993
129 Constitution of the Republic of South Africa Act, No. 200 of 1993
130 Constitution of the Republic of South Africa,1996
131 United Nation [online]. Available at: https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/ROL%20A%20RES217(III)A.pdf
132 United Nation [online]. Available at https://www.un.org/en/sc/repertoire/otherdocs/GAres377A(v).pdf
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other UN human rights resolutions and are the foundation of South African law that forms the backbone of integration.
CHAPTER 4 COMPARATIVE STUDIES OF INTEGRATION OF ARMED FORCES IN SOUTH AFRICA, CHINA, THE UNITED STATES OF AMERICA AND SOUTH SUDAN
4.1 Introduction
Integration of armed forces, differs from one country to another, in China integration happen during and after the war, the reasons for China’s military integration was to be able to deal with foreign invation. The reason for United State of America was different from China and other countries, namely the focus of the integration was to give good grounds for the African American
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to participate in USA fight against communism in the world, thus a planned integration with clear time lines. The integration in Sudan and South Africa was purorly to resolve internal disputes, namely racism, tribalism and land disputes.
This chapter will focus on the methords applied by China in integration of its armed forces and the aftermath thereof, specifically the failure of integration and human life lost thereafter. The chapter will further look at United States of America integration of armed forces base on rule of law and the time lines to be followed integrating theses forces, ideed USA integration was different from China integration, in this case integration was removing racial segregation and expanding military recruiting grounds within USA. It will futher compare South Africa integration of armed forces with USA and Sudan integration of armed forces, thereafter conclusion.
4.2 People’s Republic of China (“PRC”) Integration of Armed Forces
During China civil war, the Communist Party of China’s military wing led by Chairman Mao Tse-tung, were at war with the Kuomintang know as Nationalist Party of China, led by Chiang Kai-shek known as Generalissimo. On the 7 July 1937, a war broke out between Japan and China known as the war of resistance, whereby Japan invaded China.133 It is during this war that the Kuomintang the then Government of China invited the Communist Party military wing People’s Liberation Army to be integrated into the National Revolutionary Army of China as part of the Eighth Route Army and the New Fourth Army. Mao Tse-Tung strategy of engaging Japanese forces, gave PLA an upper hand, providing it with opportunity to absorb nationalist troops and paramilitary forces behind Japanese positions into own force.134
This was another scarce type of integration of armed forces, done during civil war time, promoted by national interest of two warring political parties fighting for political power. defending their motherland against common enemy in this case Japan.135At first integration went smoothly it achieved its objectives of fighting the Japanese invaders, while one of the parties withheld its own forces reserving it for civil war after the defeat of Japan, while on the
133 Mao Tsetung Selected works of Mao Tsetung volume 1 at par 11 page 174
134 ibid at para 12 – 15 page 174
135 ibid
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other hand the communist where winning the hearts and minds of the population and the other party soldiers in support of its course.
Unfortunately, after the second world war in 1947, the Kuomintang had trained more than two million soldiers in preparation for civil war, on the other hand the Communist Party had one million battle harden soldiers. At the beginning of the civil war Kuomintang had an advantage over the Communist Party, based on manpower two million highly trained soldiers at its disposal supported by Western Countries namely Great Britain and USA and its allied forces.136 on the other hand the Communist Party enjoyed the support of the Chinese population who wanted peace and prosperity. Furthermore, the People’s Liberation Army had acquired vast reserve of weapons from the surrendering Japanese forces.137 The other problem of Kuomintang it was brutal to its own forces thus made things ease for soldiers to cross the line to the Communist forces and welcomed by the People’s Liberation Army.138
4.3 The Aftermath of the failure of integration and return to civil war
The Kuomintang at first had victories in many major cities of China but unfortunately because of its brutality was not supported by the Chinese population, despite the massive funding from United State of America,139 this led to the People’s Liberation Army making massive gains slowly on the ground, intelligence gathering of the position of Kuomintang armed forces and type of weapon used. The result of civil war People’s Liberation Army lost over 40000 soldiers, Kuomintang lost over 640000 killed and 1050000 captured soldiers these numbers exclude civilian’s life lost in this campaign.140
Lesson learned is that the unplanned integration, can led to disaster, like the Chinese Armed forces integration, it promotes competition of the diminutive resources, concealing mistrust and is deadly. The people of China wanted that integration of their armed forces, the politicians did
136 Mao Tsetung Six Essays on Military Affairs
137 ibid
138 Mao Tsetung Selected works of Mao Tsetung volume 1 at par 12 – 15 page 174, Foreign Languages Press, Peking 1960
139 Mao Tsetung Six Essays on Military Affairs
140 ibid
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not understand that loud and clear message of peace amongst the Chinese and war against the Japanese invaders and paid dearly at the end.
The Kuomintang lost the war not because its forces were not well prepared but because they were not committed to the Kuomintang brutalities and could not ignore the people’s voice.
Comparing the Chinese integration of armed forces with South Africa integration one would argue that the liberation movements had learned a lesson from the Chinese, that ignoring the voice of the masses could be highly dangerous and lead to total defeat of its forces. More importantly the Constitution, legislation that govern integration and the participation of the international community in finding a lasting peace plays a decisive role in resolving integration disputes. This was not the case in China civil war, the communist was the one promoting integration especially on captured enemy soldiers.
4.4 United State of America Military, Integration of Armed Forces
After the second world war President Harry Truman of the United State of America considered civil rights issues, high on his agenda, this was as a result of atrocities committed by Nazis’ Holocaust, which shocked Americans, and the fight against the spread of communism or socialism.141
One could not hesitate to argue that, the United Nation Charter142 played important role in influencing President Harry Truman to promulgate Executive Order 9981, first it is argued that United Nation to the greater extent was sponsored by the USA and as such USA had to led in setting example to other countries on human rights and be able to enforce it as a super power. Secondly, human rights to be used as a political tool against communist countries, especially the USSR, China, and influence nations to align with Western democracies and reject communism and socialism, in order to achieve that he had to address USA racial problems.143 141 Lisa Vox [online]. Available at https://www.thoughtco.com/lisa-vox-bio-45108
142 [online]. Available at: https://samilhistory.com/2017/04/28/jan-smuts-drafted-the-preamble-to-the-united-nations-charter/
143 [online]. Available at https://www.thoughtco.com/executive-order-9981-us-military-desegregation-45360
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It is argued that just after the United Nation Charter was adopted and signed on the 6 day of June 1945, and as early as 1946 President Harry Truman appointed or established a Committee on Civil Rights on USA implementation to advise him on the integration of USA armed forces to draw into the millions of African American and other minorities, in preparation for a possible conflict with the USSR and its satellite states.
The next step for President Harry S Truman was to sign Executive Order 9981: Desegregation of the Armed Forces (1948), this was done on the 26 July 1948, establishing the President Committee on Equality of Treatment and Opportunity in the Armed forces, thus committing both the government and military to integration of the armed forces and an end to racial discrimination, thus USA armed Forces was integrated by operation of law.144
Flowing from integration of the USA armed forces, the government had to remember President Abraham Lincoln’s promise “With malice towards none, with charity for all, firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow, and his orphan”, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.”145 It is clear from the above statement that President Abraham Lincoln perceive a need for a lasting peace amongst the nation and other nations, and that peace could be brought about by integration of the warring armed forces and more importantly to care for military veterans, their widows and soldiers children made orphans by war.
Interestingly eighty-four (84) years later President Harry Truman promulgated Executive Order 9981, continuing with the work of President Abraham Lincoln’s promise and made it possible, to integrate people of colour (African American, Mexicans American Indians and others) into a single integrated armed force. Thus, integration of the armed forces went better comparing with the integration of society at large, especially education whereby white society rejected it, in
144 Executive Order 9981: Desegregation of the Armed Forces (1948) [online]. Available at
https://www.ourdocuments.gov/doc_large_image.php?flash=false&doc=84
145 Biography newsletter [online]. Available at https://www.biography.com/us-president/abraham-lincoln
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many ways, in some cases the Governor of State literally block African American children from entering school premises.146
One hundred and twenty-four (124) years later on the 25 October 1988, President Ronald Reagan signed into law the Department of Veterans Affairs Act of 1988 and come to effect on the 15 March 1989.147 This Act, provided military veterans, widows and orphans with various benefits, like health care, housing, graves and education amongst others.148
4.5 Comparing South Africa Integration of Armed Forces with United State of America Military, Integration of Armed Forces
The comparison of the two countries integration of armed forces, have many similarities, that one can easily identify, more importantly one must take into consideration both the USA and Britain influence on South African Government in many aspects of governance, and major role in the political settlement.
The USA Department of Military Veterans conducted several workshops or seminars for the South African Department of Defence (“DOD”) with regard to issues of military veterans, the writer participated in many of these workshops. What emerged from such workshops or seminars, is that the USA military integration is similar to South African military integration as both integrations are by operation of law. Both countries had the first integration only of white soldiers despite the facts that African participated in the wars, thus losing the opportunity to promote one force concept in the arm forces. The second USA arm force integration was based on the law namely President Harry Truman to promulgated Executive Order 9981 while on the other hand South Africa integration of armed forces was based on Transitional Executive Council Act 1993, Interim Constitution and finally the Constitution of the Republic of South Africa Act, 1996.
146 [online]. Available at https://en.wikipedia.org/wiki/Brown_v._Board_of_Education 147 Wikipedia, the free encyclopedia [online]. Available at https://en.wikipedia.org/wiki/United_States_Department_of_Veterans_Affairs
148 ibid
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Another important similarity between the two countries, is the establishment of Department of Military Veterans Affairs, in the United States of America each war has its own Military Veteran Association that look at the interest of those particular veterans, their colleagues widow and orphans this help to prevent Veterans from joining the unemployed, and the feeling of rejection by the society he/she contributed to make it leave in peace and prosperity. South Africa has followed the same route, but different in that these military veterans are based on their former force, members of Umkhonto we Sizwe have their own Veteran Association, same with former members of SADF having their own association, APLA has its own Veteran Association same with all the other members of the TBVC state individually have their own military veterans. The problem with this arrangement, it promotes discrimination based on former force and benefits are not equally shared amongst military veterans, while in the USA veterans get the same benefits.
4.6 Comparing South Africa Integration of Armed Forces with South Sudan Integration of Armed Forces
The South Sudan armed force integration failed before it started, the problem of tribalism, foreign interest on oil, lack of trust amongst the politicians, lack of direct involvement of the superpowers and finance, to promote smooth integration of both political leadership and the military force resulted in the South Sudan military crises. Trust is not built in one day but take time to build and second to destroy.
Comparing South Africa integration with South Sudan, one will not hesitate to say that the British Military Advisors and the USA played a pivotal role to make the South African integration of Armed forces succeed in many ways, while on the other hand in South Sudan very little involvement was visible to promote smooth integration. Furthermore, the political crises contributed extensively in the integration failure.
The lesson to be learned from the Southern Sudan’s integration is that it is important to try and integrate all armed forces into one National Defence Force, avoid tribalism, discrimination on the bases of former force, give all soldiers same treatment and those demobilised follow Abraham Lincoln advise “With malice towards none, with charity for all, firmness in the right as
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God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow, and his orphan”, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.”149 President Abraham Lincoln as a lawyer understood very well the soldier’s esprit de corps thus took care of military veterans, widow and orphan children. This is what many countries in Africa fail to do, as a result, they experience continues civil wars.
There is similarity between Sudan Equatorian Region and South Africa KwaZulu Natal Province both are killing fields, South Sudan exclusion of the Equatorian militia is similar to that of South Africa National Defence Force exclusion of the KwaZulu Self Protection Force from integration and all other military veterans’ benefits.
The problem facing South Sudan is the broken trust first amongst leaders, secondly amongst military commanders, lastly the troops on the grounds who have lost many of their colleagues in battle, esprit de corps to the dead and their widow and orphan children, commanders will find it very difficult to order troop back to the barracks to integrate into a hostile National Defence Force, commanded by Dinka commanders.150 On the other hand South Africa still has a chance of correcting this situation by including members of the KwaZulu Self Protection Force into the Department of Military Veterans database o receive military veterans benefits like all other military veterans, the is no reason why member of KwaZulu Self Protection Force should not be including in the DMV data base.
4.7 Conclusion
The lessons learned from China Civil War, is that Chine’s integration was unique to China, thus Chairman Mao Tsetung said “It is well known that when you do anything, unless you understand its actual circumstances, its nature and its relations to other things, you will not know the laws governing it or know how to do it or be able to do it well”.151 People’s Liberation Army was able
149 Biography newsletter [online]. Available at https://www.biography.com/us-president/abraham-lincoln
150 Global Risk Insights [online]. Available at https://globalriskinsights.com/2019/03/south-sudan-war-peace-deal/
151 Mao Tsetung Six Essays on Military Affairs at page 2, Foreign Language Press, Peking 1972
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to integrate enemy forces to its own force and multiplied itself without a problem.152 The Chinese were able to focus on foreign invasion, thus needed every Chinese to contribute to that effort not only of defeating Japan but all other foreign countries trying to colonise China, like the Americans and British. The important thing Chinese Communist Party did correct, was to win trust of enemy force, allow them access to integration, education and the feeling of being part of the People’s Liberation Army, more importantly, be eligible to promotion like any other members of the PLA.
South Africa could learn from China, especially on avoiding discrimination of integrated arm forces members based on former force, presently members of MK and former SADF enjoy better benefit than the other forces former APLA on the bottom of the ladder. The Chinese armed forces and the people of China pay undivided loyalty to China and its arm forces. This cannot be said about South Africa, there is a room for development of bandits.
Lessons learned from the USA well planned legalised integration makes the government to be able to overcome most racist American society into accepting integration not only of the armed forces but even the integration of schools, universities and workplace. The Government was able to carry the white majority kicking and screaming to the desired goal of integrating the USA armed forces and the community at large. The racial problems of the USA were much bigger than that of South Africa, but the government focus on achieving the National interest was a priority thus gradually starting with the arm forces, then education and lastly society at large was achieved. Today USA practises the one force concept that gives its armed forces an urge over its enemies, and thus their Airforce, Navy and Army are integrated eliminating unnecessary competition and conflict. South Africa has more in common with the USA, even historically, the racial problem, slavery, colonisation and exploitation of the African people. Interestingly the USA contribution to the establishment of UN and South Africa contribution in the drafting of the Un Charter preamble, the USA started immediately to deal with its racial problem, while on the other hand South Africa entrenched racial divide, as a result, the same United Nation help to establish was in conflict with its racial policies leading to sanctions one after another. It is argued that South Africa can
152 ibid
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learn so much from USA especially on issues of integration and the caring of military veterans without any form of discrimination. South Africa can do better than the USA in this field.
The failure to integrate the KwaZulu Self Protection Force continue posing a security risk and or threat to peace. The present political crimes committed in KwaZulu Natal and the country at large could develop to something else, thus the Government must listen to the crying voices of disabled veterans, widows and orphan children of members of the KwaZulu Self Protection Force, without the government integrating or registering KZSPF former members, widows and orphan children in the Department of Military Veterans database to access military veterans’ benefits as provided by Military Veterans Act, 2011. The situation in KwaZulu Natal need urgent attention, it cannot be allowed to continue, the anger prevailing is disturbing, it can only be reduced to a manageable level by including KZSPF into the DMV data base. In fact, the Government discriminate against these members in many ways, members of AZANLA have been included in the DMV database, it is public knowledge that its political mother body did not participate in the 1994 general elections, while on the other hand members of KZSPF excluded.
CHAPTER 5: CONCLUSION AND RECOMMENDATIONS
5.1 Introduction
The chapter will provide the reader with a synopsis of important points contained from chapter 1 to chapter 4 highlighting important points to the study, leading to the well-informed conclusions of the topic. Furthermore, provide key abstracted recommendation from each chapter for future research and deal with limitations of the study in particular limitation of time, and experience for research purpose.
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The research attempt to determine the aftermath of integration and the constitutional imperative taking into consideration the traumatic experience of war and the trigger thereof back to war situation. The country is striving for long-lasting peace, promoting government effective management of traumatic experiences of military veterans and the population at large, especially Kwa-Zulu Natal and Gauteng where most killing of politicians happened and continue to happen almost monthly.
5.2 Conclusion
Thandi Modise journal article provide us with civilian and parliamentary oversite on National Defence Force and highlight the basis of integration being the Constitution of the Republic of South Africa and the need for the rule of law and the supremacy of the Constitution. She has properly ventilated the need to encourage the countries in the horn of Africa to follow South Africa example.
Roy Licklider article “How Unique is South Africa Military Integration?” focuses on the uniqueness of the South Africa Military Integration, which he contended that eight (8) warring forces integrated to form the new National Defence, the researcher is of the opinion that only seven (7) forces integrated and the eight one small number under six hundred was absorbed into the SANDF and thousands of members left out. In addition the author promotes South African integration as a model that may solve the world problems of integration and bring about lasting peace.
The brilliant work of André Wessels in his book “The Anglo-Boer War, 1899 – 1902, White man’s war, black man’s war (Traumatic War) capture the essence of the research topic, it covers all the elements of this topic, from propaganda of war, deceits by the British, brutalities committed by both warring parties, the lasting traumatic experiences of the war and after war to both soldiers and the population and the need to mitigate the traumatic experience to avoid anger building up to the extreme. Lastly, he points out that slight unacceptable incident could be the trigger.
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This chapter provides a clear picture what has been done and what must be done to mitigate against the effects of traumatic experience of the past conflicts and as such the government must play a major role in managing the veterans and population traumatic experience, making the South African integration experience unique to all other integrations.
South Africa has a sound domestic legal framework, the founding fathers and mothers of our democracy had the opportunity to look back on the mistakes of the past, and tried to correct them, thus our Constitution not only provide for the Bill of Rights but went further and address the integration of former warring armed forces and provide for the rule of law.
Domestic legal framework provides many solutions to the problem of integration, in this area of law little must be done. The researcher alluded at paragraph 2.11 above, that the Minister of Defence should have extended the life-span of the Defence Special Tribunal Act,153 that gave Labour Court the right to adjudicate on soldier’s labour disputes. We advocate for the re-instatement of this Act. Furthermore, the researcher have alluded at paragraph 2.14 and paragraph 2.19 that that Termination of Integration Act and Military Ombud Act are unconstitutional.
Chapter 3 provided an introduction to International legal framework, and the source for South Africa domestic legal framework.
Chapter 4 provides the opportunity to do comparative studies of integration of armed forces in South Africa, China, USA and South Sudan. The study found that South Africa is better compared with USA and highlight the following shortcomings:
➢ “The failure to integrate the KwaZulu Self Protection Force continue posing a security risk and or threat to peace”; ➢ Traumatic situation for KZSPF veterans, widows, children and orphan children continues unabated;
153 Defence Special Tribunal Act, No. 81 of 1998. To enable the Labour Court to act as a special tribunal in the adjudication of disputes which arise out of the implementation of transitional arrangements in respect of military
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➢ The anger prevailing in Kwa-Zulu Natal and Gauteng from KZSPF and supporters is a threat to long-lasting peace; ➢ The government discrimination of KZSPF is unwarranted and unconstitutional; ➢ That the Department of Military Veterans should include former members of KZSPF into its data base in order to access all benefits allocated to military veterans and their dependents; and ➢ The failure to integrate KZSPF remain the major threat to peace.
Concluding traumatic war experienced by military veterans, family and the population at large need to be managed by government in such a way that gradually this experience is eliminated and should not pass from one generation to another, Professor André Wessels in his book “The Anglo-Boer war, 1899 – 1902, White man’s war, black man’s war traumatic war” provide a long lasting answer to this problem.
The study has found that the Department of Military Veterans has a clear mandate to include members of the KZSPF in its database, there is no need for new legislation to be enacted. Furthermore, the domestic legal framework, is sufficient to deal with the problem of KZSPF, the Minister of Defence and Military Veterans is authorised to make such decision, the Minister of Defence must just cross the Rubicon integrate former members of KZSPF to achieve the lasting peace and contribute stopping the carnage in Kwa-Zulu Natal, Gauteng and other Provinces.
The first objective “To explore and analyse the willingness of the courts to become involved resolving integration, re-ranking and rank review disputes”, has been achieved, the role of the judiciary in the enforcement of integration rights has been clearly and effectively articulated in the study, the judicial trends and approaches in constitutional adjudication has been properly captured. The matter of Matross v Minister of Defence is one of the examples of the intervention of the High Court.154
154 Matross v Minister of Defence and Military Veterans and Another (36675 2016) [2018] ZAGPPHC 389 (24 May 2018)
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The second objective “To critically examine the failure or refusal of the legislative to establish an inexpensive mechanism to amicably resolve integration disputes”, has been achieved, to date the inexpensive mechanism to resolve integration dispute is non-existence since the 31 December 2002 when the Defence Special Tribunal Act,155 cease to exist by operation of law and government over legislating.
The third objective “To examine the growing influence of society on issues of integration of former members of non-statutory forces”, has been achieved, it is in the interest of society to have credible integration to bring lasting peace and eliminate trauma of conflict thus circumventing a trigger of the past.
The fourth objective “To examine the impact of the current legislative and policy framework on integration disputes in the security cluster in South Africa” has been achieved, there is reasonable legislation that empowers the High Court to deal with integration dispute, with special reference to the Constitution of the Republic of South Africa that provide basis for integration of armed forces.
5.3 Recommendation
The Department of Military Veterans must include former members of the KZSPF into its database thus reducing the effects of trauma from these military veterans their families and widows and orphan children of those killed during conflict;
Re-enacting permanently the Defence Special Tribunal Act, No. 81 of 1998 and or enactment of similar Act, to enable the Labour Court to act as a special tribunal in the adjudication of disputes which arise out of the employment of soldiers and integration disputes;
Government manage traumatic war experiences of society in such a way to avoid triggering of unnecessary conflict.
155 Defence Special Tribunal Act, No. 81 of 1998. To enable the Labour Court to act as a special tribunal in the adjudication of disputes which arise out of the implementation of transitional arrangements in respect of military
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The first recommendation is easily achievable there is no need for enactment of new legislation the available legislation is sufficient for the Minister of Defence and Military Veterans to give such instruction to the Department of Military Veterans.
BIBLIOGRAPHY
BOOKS
Dlamini Moses: Hell-hole: Robben Island reminiscences of a political prisoner; (Spokesman,1984).
Mao Tsetung; Six Essays on Military Affairs Foreign Languages Press 1972.
Mao Tsetung: Selected works of Mao Tse-Tung Volume 1 Foreign Languages Press 1977.
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Wessels A. 2011 The Anglo – Boer War 1899 – 1902 White man’s war, black man’s war, traumatic war. First edition. Sun Media Bloemfontein: Sun Press.
JOURNAL ARTICLES
James A. Higgs, Creating the South African National Defence Force; publication Joint Force Quarterly – Summer 2000.
Len Le Roux, Defence Sector Transformation; Challenges for Sub-Saharan Africa Published in African Security Review Vol 12 No 3, 2003 at page 5 – 15.
Wessels Andre, The South African National Defence Force, 1994–2009: A historic perspective; Journal for Contemporary History, Volume 35, Issue 2 September 2010, page. 131 – 132.
CASE LAW
Gcaba v Minister of Safety and Security & Others (2009) 12 BLLR 1145 (CC). Matross v Minister of Defence and Military Veterans and Another (36675/2016) [2018] ZAGPPHC 389 (24 May 2018).
Phike v South African National Defence Force (Defence Special Tribunal DST-J1/00) [2001] ZALC 152 (28 September 2001.
Solidarity Trade Union v National Commissioner of South African Police Services, NO and Others (Active) case number .
South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999).
South African National Defence Union v Minister of Defence and Others (CCT65/06) [2007] ZACC 10; 2007 (5) SA 400; 2007 (8) BCLR 863 (CC); [2007] 9 BLLR 785 (CC) ; (2007) 28 ILJ 1909 (CC) (30 May 2007).
CONSTITUTION
Constitution of the Republic of South Africa 1996.
Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).
Union of South Africa Constitution Act, 1909.
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LEGISLATIONS
Defence Act, No.42 of 2002 - Chapter XX of the General Regulations for the South African National Defence Force and Reserve published in the Government Gazette 20376 dated 20th August 1999.
- Individual Grievance Regulations, published in Government Gazette No 33334 dated 30 June 2010.
Defence Act, 44 of 1957 as amended.
Defence Special Tribunal Act, No. 81 of 1998.
Demobilisation Act, 99 of 1996.
Government Employees Pension Law Amendment Act No. 19 of 2011.
Labour Relations Act 66 of 1995.
Military Discipline Supplementary Measures Act, No. 16 of 1999.
Military Ombud Act, No.4 of 2012.
Military Veterans Act, No. 18 of 2011.
Public Protector Act,23 of 1994.
Special Pension Act, 69 of 1996.
Special Tribunal Defence Act 81 of 1998.
Termination of Integration Intake Act, No. 44 of 2001.
Transitional Executive Council Act, No.151 of 1993.
WEBSITES
A history of military nomenclature in South Africa: [online]. Available at https://www.ajol.info/index.php/smsajms/article/viewFile/142946/132691 (accessed: 06 September 2019).
A history of military nomenclature in South Africa [online]. Available at https://www.ajol.info/index.php/smsajms/article/viewFile/142946/132691 (accessed: 06 September 2019).
60
Convention for a Democratic South Africa (“CODESA”) [online]. Available at https://www.sahistory.org.za/article/convention-democratic-south-africa-codesa (accessed: 06 September 2019).
Défense Media Activity [US] [online]. Available at https://ndupress.ndu.edu/portals/68/Documents/jfq/jfq-25.pdf
https://css.ethz.ch/en/services/digital-library/publications/publication.html/112517 (accessed: 06 September 2019).
Ken Gillings: The aftermath of the Anglo-Boer War: [online]. Available at
http://samilitaryhistory.org/lectures/aftermath.html (accessed: 06 September 2019).
Licklider R “How Unique is South African Military Integration?”, Scientia Militaria, South African Journal of Military Studies, Vol 43, No. 1, 2015, pp. 149 – 155. [online]. Available at https://www.ajol.info/index.php/smsajms/article/view/117426/106988 (accessed: 04 September 2019).
Modise, T.R. “Parliamentary oversight of Defence transformation: The South African Experience”, ISS Monograph Series. No 135, May 2007 [online]. Available at https://issafrica.s3.amazonaws.com/site/uploads/M135FULL.PDF (Accessed: 04 September 2019).
[online]. Available at https://prabook.com/web/andre.wessels/338344 (accessed: 06 September 2019).
Poqo was founded in 1961 following the massacre of PAC-led protestors at the hands of police outside the Sharpeville police station the previous year [online]. Available at ttps://en.wikipedia.org/wiki/Azanian_People%27s_Liberation_Army (accessed: 06 September 2019).
Pretorius J Journal for Contemporary History, Volume 33, Issue 1, Sep 2008, p 35 – 56 [online]. Available at https://journals.co.za/content/contemp/33/1/EJC28456 (accessed: 06 September 2019) (accessed: 06 September 2019).
South Africa History online [online]. Available at https://www.sahistory.org.za/article/constitution-republic-south-africa-1996 (accessed: 06 September 2019).
South Africa general election: [online]. Available at https://en.wikipedia.org/wiki/1948 (accessed: 06 September 2019).
61
South Africa History online [online]. Available at https://www.sahistory.org.za/article/constitution-republic-south-africa-1996 (accessed: 06 September 2019).
The Treaty of Vereeniging signal the end of Anglo Boar War (South African War) [online]. Available at http://www.ask.com/wiki/Treaty_of_Vereeniging (accessed: 06 September 2019).
The Union of South Africa Act, 1909: [online]. Available at https://media.law.wisc.edu/s/c 8/jzhy2/cbsa1.pdf (accessed: 06 September 2019).
Umkhonto we Sizwe (“Spear of the Nation”) or ‘MK’ as it was more commonly known, was launched on the 16th December 1961 [online]. Available at https://www.sahistory.org.za/topic/umkhonto-wesizwe-mk (accessed: 06 September 2019).
United Nation General Assembly Resolution 2142 (XXI) adopted on 26 October 1966
[online]. Available at https://www.gov.za/EliminationofRacialDiscrimination2019
https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3 CF6E4FF96FF9%7D/ROL%20A%20RES217(III)A.pdf
https://www.un.org/en/sc/repertoire/otherdocs/GAres377A(v).pdf (accessed: 06 September 2019).
Wessels A Journal for Contemporary History, volume 35, issue 2 Sep 2010, p131 – 152 [online]. Available at https://journals.co.za/content/contemp/35/2/EJC28520 (accessed: 06 September 2019).