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23 Sep 2009 06:00
Insiders interpret the appointment of Paul Ngobeni as chief legal adviser to Defence Minister Lindiwe Sisulu as a move to support the South African National Defence Force in its bruising interactions with soldiers’ trade unions.
But the appointment has ‘sparked outrage and ruffled feathers” in the military services division, where officials say it involves duplication.
As a former deputy registrar at the University of Cape Town Ngobeni stirred up controversy through his outspoken defence of Western Cape Judge President John Hlophe.
United States authorities confirmed this week that Ngobeni is a fugitive from justice in the state of Connecticut, where he faces criminal charges including forgery and larceny.
Ngobeni’s posting follows the clash between members of the South African National Defence Union (Sandu) and police three weeks ago during their march to the Union Buildings in Pretoria to demand a 30% salary increase.
About 1 200 soldiers face dismissal as a result of the protest. Since the march, Sisulu and Lieutenant General Solly Shoke, the SANDF chief, have signalled their opposition to the unionisation of the defence force.
This week the Mail & Guardian learned that in the past 10 years the SANDF’s legal service has lost 30 legal battles with Sandu, mostly relating to attempts to prevent soldiers from unionising.
An SANDF official, speaking on condition of anonymity, told the M&G that Ngobeni appeared to have been hired as ‘a gunslinger” whose mandate is to bolster the military’s legal services division and prevent further court defeats.
However, his appointment would render Elizabeth Kubushi, the chief defence legal services advocate, and adjutant general Bailey Mmono redundant in their capacities as official legal advisers to Sisulu.
The appointment is reported to have left Kubushi ‘bitter and frustrated”. ‘The military already has two senior legal service officials who understand the military and are mandated to provide legal advice to the minister. With Ngobeni, we’ll now have someone else advising the minister, which makes no sense,” said an official.
This week Ndivhuwo Mabaya, the defence department spokesperson, said Ngobeni’s appointment was procedurally correct and all concerns should be addressed directly to Ngobeni.
Mabaya said that Ngobeni had already functioned as an adviser to the minister for three months. Kubushi, a civilian, was appointed in June 2008. She took over as chief of defence legal services—the equivalent of a deputy director general—from Mmono and became the principal adviser to the then-defence minister, Mosiuoa Lekota.
Mmono, who is married to Constitutional Court Judge Bess Nkabinde, still has special legal advisory powers with regard to the minister, despite his demotion last year.
Among other functions the chief of military legal services provides legal advice to the SANDF, supports the minister in relation to international agreements, has full control of all financial, human and other resources allocated to the legal services division and assists in the appointment of members of the Court of Military Appeals.
Military trade unionists said this week that Ngobeni’s appointment was a desperate attempt by the department ‘to clean up its mess”.
Sandu national secretary Pikkie Greeff said the union’s past court victories indicated that unionisation of the military was essential. He said Sisulu’s decision to dismiss protesting soldiers reflected negatively on the quality of advice she receives.
‘We don’t want to get into the fight over Ngobeni’s appointment because it’s the minister’s prerogative to appoint an adviser. But [the announcement] does come at a strange time and does create concern,” said Greeff.
South African Special Forces Union president Bheki Mvovo said Sisulu had the right to appoint her own officials, but also needed to surround herself with people who have military understanding and experience.
Attempts to contact Ngobeni for comment drew a blank.
Meanwhile President Jacob Zuma announced on Thursday that the rights of soldiers to strike needs to be revised because they are not ordinary citizens. He also implied that it was not a good idea for soldiers to belong to unions because ‘unions will not protect the country when it is being attacked, the security forces will.”
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