Foreign Service Bill: consideration and adoption

Meeting report

Consideration and adoption of the Foreign Service Bill [B35B-2015]

The Chairperson stated that the present meeting was one of the most important that the Committee was to hold as it was about adopting the Foreign Service Bill. The Committee would consider the Bill as revived on the 29 October 2019. The process around the Bill was expected to be quick. The Committee would consider the Bill page by page and clause by clause. Members would be given an opportunity to deliberate on the Bill. She said that the Committee Content Adviser Ms Dineo Mosala would refresh members minds about issues around the Bill. Adv Sandea de Wet Chief State Law Adviser DIRCO would be tasked with taking the Committee through the Bill page by page and clause by clause.

Mr Lubabalo Sigwela, Committee Secretary, spoke to the process around the Bill. The Bill was tabled in parliament on 27 October 2015. Adverts calling for public comments were placed in June 2016. However there had only been five responses to the Bill. The Committee at the time felt that greater public participation was needed. The Committee held its own public hearing seminar on 24 January 2017. Meaningful contributions on the Bill were made. Many departments had made comment on the Bill. The Committee had also undertaken an international study tour on best practises over the Bill. The Portfolio Committee adopted the Bill in October 2018. The Bill was thereafter referred to the National Council of Provinces (NCOP). The Select Committee on Trade and International Relations had rejected Clause 2 of the Bill. He pointed out that procedurally the Committee was not tied down by the decision of the NCOP. Rule 307(1)(b) of the National Assembly Rules came into play. The Committee could therefore decide to accept or reject the amendment of the NCOP.

Ms Mosala stated that there were some areas on the Bill that the Committee’s predecessor had to deal with. The Committee at the time realised that the Bill might be encroaching on the mandates of other government departments. The comments by departments were taken into account. Some of the departments that made comment were the departments of Public Service and Administration, Home Affairs and Public Works. The international study tour had been to Canada and the Committee had learnt a great deal. In Canada’s Foreign Service the head of the mission was responsible for running the mission. The aim of the Bill was to have a single administration and management procedure for SA’s missions abroad. She added that oversight had also been done to Namibia around the matter of who should be the custodian of the Department of International Relations and Cooperation’s (DIRCO’s) assets abroad. The Government Immovable Asset Management Act (GIAMA) stipulated that the custodianship of assets abroad was with the Department of Public Works (DPW). In order for the DIRCO to take custodianship they had to be given custodianship under GIAMA. Custodianship over state owned properties abroad should be under the DIRCO. She noted that the Congress of South African Trade Unions (COSATU) and bargaining councils had issues around allowances to its members. This resulted in the amendment made by the Select Committee on Trade and International Relations. The Committee’s predecessor had three meetings with COSATU and it was agreed the Bill covered COSATU’s concerns.

Mr D Bergman (DA) asked whether members would be allowed to deliberate on the clause that the NCOP had amended.

The Chairperson responded that the Committee would be taken through the Bill clause by clause explaining what each clause entailed. The Bill was not before the Committee to be amended. It was just about accepting or rejecting the Bill.

Advocate de Wet proceeded to take the Committee through the Bill page by page and clause by clause stating what each clause covered. The Committee would adopt or reject each clause as the process unfolded.

Adv de Wet read out the Bill’s Long Title.

Clause 1 - Definitions

The Clause was unanimously adopted by all parties.

Clause 2 - Application of the Act

Adv de Wet said that Clause 2 had been the contentious clause. She said that in the Foreign Service there were officials from the South African Police Services (SAPS), Defence etc. Each of these officials were employed in terms of their own dispensations other than the Public Service Act. For instance a Defence attaché was employed in terms of the Defence Act. The Foreign Service Bill would not replace the Defence Act as applying to the official. The Department of Defence had its own dispensation and procedures. The conditions of service remained the same. The Bill also did not amend existing legislation. The Bill dealt with specific matters in the Foreign Service. The Clause also covered that in the unlikely event that there was conflict between the Bill and other legislation then the Bill would prevail. The Parliamentary Law Adviser’s Office had explained the justification for this provision at length.

Mr Bergman agreed that concerns around the Clause were invalid. It was very unlikely that there would be a conflict between the Bill and other legislation. He personally could not think of any scenario where it could happen.

Mr T Mpanza (ANC) concurred with Mr Bergman. The explanation by Adv de Wet sufficed. The concerns of the NCOP were addressed and had been covered. The Clause as it was captured should be supported. He supported the adoption of the Clause and rejected the rejection of the NCOP.

The Clause was unanimously adopted by all parties.

Clause 3 - Foreign Service

Adv de Wet said that the Clause dealt with the Foreign Service itself. It was the first time that SA would have a Foreign Service with a legislative mandate. The DIRCO and the head of missions would manage missions.

Mr Bergman pointed out that at the moment a South African in London who wished to get a birth certificate had the processing done by the Department of Home Affairs (DHA) and the DIRCO saw to it that the birth certificate got to London.

Adv de Wet agreed that the DHA did the processing whilst the DIRCO did facilitation. If there were delays both Departments would be responsible. The Bill would not affect the responsibility of departments to provide specific services.

The Clause was unanimously adopted by all parties.

Clause 4 - Requirements for members of the Foreign Service

Adv de Wet said that the Clause was specifically for members of the Foreign Service. The Clause was self-explanatory.

The Clause was unanimously adopted by all parties.

Clause 5 - Head of Mission

Adv de Wet said that the Clause covered the requirements to be head of mission and also what the responsibilities of heads of missions were.

The Clause was unanimously adopted by all parties.

Clause 6 - Recall of member of Foreign Service

Adv de Wet stated that the Clause spoke to the system of recall of members of the Foreign Service. It also covered how recalls and transfers were regulated

The Clause was unanimously adopted by all parties.

Clause 7 - Diplomatic Academy

Adv de Wet said that the Clause made provision for a Diplomatic Academy as there was a serious need for training and education for members of the Foreign Service. She pointed out that international best practise had shown that the Diplomatic Academy needed to have status in terms of legislation.

The Clause was unanimously adopted by all parties.

Clause 8 - Establishment of coordination and other mechanisms

Adv de Wet said that the Clause provided for consultative, coordination and other mechanisms to be put in place for the effective execution of the Bill. She pointed out that at present coordination was not regulated.

The Clause was unanimously adopted by all parties.

Clause 9 - Immovable assets

Adv de Wet explained that the Clause placed custodianship of all immovable assets abroad used by the Foreign Service in the hands of the Minister of International Relations and Cooperation. Previously overseas properties were under the DPW.

The Clause was unanimously adopted by all parties.

Clause 10 - Locally recruited personnel

Adv de Wet said that the Clause regulated who could be employed as locally recruited personnel at missions. It included South Africans that had work visas to work abroad.

The Clause was unanimously adopted by all parties.

Clause 11 - Codes and directives

Adv de Wet explained that the Minister could make additional codes. Codes of conduct were additional and were subject to consultation with departments and stakeholders. The Minister could also make regulations. For effectiveness all codes were brought together. There was agreement with unions.

The Clause was unanimously adopted by all parties.

Clause 12 - Delegation of powers

Adv de Wet noted that it was a standard clause. The Clause provided for the Minister to make delegations to the Director General of the DIRCO. The delegations had to be in writing.

The Clause was unanimously adopted by all parties.

Clause 13 - Offences

Adv de Wet said that provisions of the Criminal Procedure Act were confirmed in the Clause. There was a firm policy to bring persons back to SA in order to be charged.

The Clause was unanimously adopted by all parties.

Clause 14 - Regulations

Adv de Wet said that the regulations covered the transfer of members of the Foreign Service. Mandatory training would be prescribed in regulations. The regulations also covered the secondment of employees.

The Clause was unanimously adopted by all parties.

Clause 15 - Short title and commencement

Adv de Wet stated that it was a standard clause.

The Clause was unanimously adopted by all parties.

The Chairperson asked Members if they had any questions.

Rev K Meshoe (ACDP) asked for an explanation on diplomatic immunity.

Adv de Wet explained that diplomatic immunity applied to the heads of missions, their wives and to their children up until the age of 23 years of age. She did note that there were various categories of diplomatic immunity. It also depended upon the country that one was serving in.

Mr Z Peter (ANC) referred to the case of a public servant of Norway that had come to SA with stolen Norwegian government funds and had bought eight farms. The person had combined the farms to start a game farm. When he was caught he was sent back to Norway to be prosecuted. Mr Peter was concerned about the farm workers that had been displaced from the farms. He asked how the matter could be dealt with. The guilty Norwegian official had only received a sentence of 4-5 years. The land in question was huge at 4000 hectares. Could the guilty party be prosecuted in SA?

The Chairperson asked the legal experts in the meeting i.e. Adv de Wet and Ms Suraya Williams, Chief State Law Adviser, to give Mr Peter advice after the meeting. She noted that the Bill had been adopted clause by clause. All that was left was for the Committee to adopt the Bill in its entirety. She placed the Bill in its entirety before the Committee for adoption.

The Committee adopted the Bill without amendments.

The Chairperson pointed out that the Committee had dealt with the Bill in terms of Rule 307 of the National Assembly Rules. A Draft Report had been prepared by the Committee Secretary. The Committee would either have to accept or reject the Draft Report of the Committee. She said that the Bill was a long time in coming. SA’s Foreign Service had for many years operated without a legislative mandate. There would be a single administration and management of missions. Accountability would also be clear. The Bill would assist the Minister and the DIRCO to hold people accountable. She pointed out that Clause 9(3) of the Bill was applicable to the New York Pilot Project. She said that if the Bill had been processed years ago it would have prevented the issues around the New York Pilot Project from happening. With the Bill in place the Minister could crack the whip when needed. The Bill would also allow the Director General of the DIRCO to deal with issues legally. Ambassadors and consuls general would now have their work cut out for them. She asked the Committee Secretary to read out the Draft Report to the Committee.

Mr Sigwela read out the Draft Report to the Committee.

The Chairperson placed the Draft Report before the Committee for adoption. A minor grammatical change was effected to the Draft Report.

The Draft Report was adopted as amended. The Chairperson stated that the Draft Report would be tabled in Parliament.

The Chairperson said that the Committee would table a report on the work that the Committee had done in 100 days. She stated that the Committee would set the tone for other portfolio committees in Parliament.

Adv de Wet thanked the Committee for all its support to the DIRCO which enabled the DIRCO to up its game. The Committee would also be better empowered to carry out its oversight role.

The Chairperson said that the Committee was one to rewrite history. The Committee assisted the DIRCO to execute its mandate without hindrances. The Committee would also crack the whip. In the Committee’s meeting the following week the Committee would expose culprits in the DIRCO and would send them to the Standing Committee on Public Accounts (SCOPA). She asked Adv de Wet to also attend the meeting referred to as the Committee needed someone that could provide a legal opinion. The DIRCO was supposed to have bought land in New York but a building was purchased instead.

The meeting was adjourned