For the second time in the history of South Africa’s democracy, all segments of the society are once again engaged in the shaping of the country’s defence policy. This process is spearheaded by the Defence Review Committee, which was constituted in July 2011 by the Minister of Defence and Military Veterans Lindiwe Sisulu, in order to draft and consult nationally on a new Defence Review which would in the long run comprehensively cover the complete body of South Africa`s national policy on defence. Headed by Mr. Roelf Meyer, the committee presented a draft review document for public engagement of 423 pages. There is no doubt that the draft South African Defence Review 2012 raises a plethora of contentious issues. Amongst these is the question of how the Defence Review addresses the issue of mercenaries and private military/security companies (PMSCs). The fact that the Review has included this issue, which keeps on haunting South Africa, is commendable.

The Defence Review acknowledges that non-state actors, including private military corporations and mercenaries, will play increasingly prominent roles in international affairs. In the last two decades, South Africa has been seen as a breeding ground for mercenaries and also supplied personnel to work in the lucrative business of international PMSCs that are involved in various parts of the world. The Review also notes that forces will become smaller and more agile and the role of private security companies will increase. This means that the national armies will in essence train forces that will eventually be in the employ of private security companies (PSCs) whose roles have increased exponentially. It is not just the role of PSCs that are increasing, but also that of private military companies (PMCs). It is for this reason that these entities are grouped as PMSCs as there exists a very fine line between their respective services.

The fact that PMSCs and mercenaries will play an increasing role in international affairs and that PSCs will increase should be a matter of concern to South Africa. The reports of South Africans involved, in one way or another, in external conflicts and security arrangements paint a very bad picture of South Africa. The Review should, therefore, include suggested solutions to this problem. For instance, it must be determined why South Africans are hired as mercenaries; why they are also recruited to work for external PMSCs; and why the international markets prefer their expertise. The answers to these pertinent questions would shed light on how South Africa should address these issues. The Review must also address the question of how the South African PSCs should be effectively regulated. There have been disturbing reports of PSCs and PMSCs operating in violation of South African laws both within and outside the country.

The Review further states that there must be a clear distinction between mercenaries, being individuals availing their military skills, and private security companies who provide collective military services. It further also states that both categories may provide their services to either governments or non-state actors. While it is accepted that a clear distinction has to be made between mercenaries and PSCs, the Review erroneously provides distorted descriptions to both. Mercenaries are more than just individuals availing their military skills. The Review is correct to note that there are PSCs who provide collective military services, despite the fact that their name does not include the “military” component. However, a further distinction must also be made between mercenaries, PSCs and PMCs, which also provide security services (over and above the provision of military services). Not all military and security services are provided collectively, as the Review suggests.

The controversy over the activities of mercenaries and their participation in armed conflicts, especially when they provide military services in violation of domestic and international law has been correctly mentioned in the Defence Review. It is for this reason that South Africa must play a part in the development of international instruments aimed at addressing the challenges posed by the use of mercenaries in the provision of military services. It must be pointed out, however, that it is not mercenaries alone that offer such services. PMSCs also provide these. While mercenaries are outlawed, PMSCs are not and their activities are usually considered to be legal, that is they are arguably in line with both the domestic and international law.

As a result of the South African PSCs increasingly operating outside the country, a new legislative framework has been proposed. The Private Security Industry Regulation Amendment Bill, which seeks to replace the Private Security Industry Regulation Act, 56 of 2001 proposes that any person who, within the Republic, recruits, trains, hires out, sends or deploys any other person to provide a security service outside the Republic must among other things provide to the director of the Private Security Industry Regulatory Authority (PSIRA) on a monthly basis such information as may be prescribed regarding such recruitment, training, hiring out, sending or deployment within prescribed time limits. If passed as an Act of Parliament, the Private Security Industry Regulation Amendment Bill will eventually complement the long-awaited Prohibition of the Mercenary Activities and Regulations of Certain Activities in Countries of Armed Conflict Act No. 27 of 2006 which will, inter alia, prohibit mercenary activities and regulate the provision of assistance or service of a military, security or other nature in a country of armed conflict.
While it is commendable that South Africa has a regulatory regime that seeks to address privatisation of security and mercenary activities within and outside the country, the legal instruments (if they were to come into force) would not however be sufficient. Hence the Review creates an opportunity for the country to reinforce and reassert its efforts in order to effectively address the privatisation of security and its negative implications as well as the participation of South Africans in mercenary activities, both of which have a bearing on South Africa’s Defence posture.

Written by Sabelo Gumedze , Senior Researcher, Conflict Management and Peacebuilding Division, ISS Pretoria Office