Judicial Matters A/B; International Treaty of Amity; with Deputy Minister

Meeting report

The Chairperson asked Committee Members to have a moment of silence to honour the life of Ms M Mmola (ANC, Mpumalanga).

Treaty of Amity and Cooperation

Deputy Minister’s opening remarks

Ms Candith Mashego-Dlamini, Deputy Minister of International Relations and Cooperation (DIRCO), said that the original rationale of the Treaty of Amity and Cooperation (TAC) in South East Asia was to promote economic growth, social progress and cultural development through multi-lateral cooperation. The TAC was the third largest economy in the region, as well as the seventh largest in the world.

South Africa had identified the Association of Southeast Asian Nations (ASEAN) as an important part of South Africa’s foreign relation policy. In 2018, it had established close relations with the ASEAN nations and launched a formal process to become a member state. In 2019, Minister Naledi Pandor was informed that South Africa had received a favourable outcome to its application.

Once South Africa had entered into the agreement, it would become a dialogue partner, and would eligible to exclusive platforms, including trading platforms. It would boost South Africa’s standing in the region and expand its multi-lateral footprint in the world.

As required by the Constitution, Parliament needed approval of this agreement before the Department could sign it. She emphasised that this agreement could help South Africa to strengthen its economic and diplomatic relations, as well as tap into the economy in the region as a strategy in the post-COVID era.

Director-General’s presentation

Mr Kgabo Mahoai, Director-General: DIRCO, provided the reasons why South Africa should be accessing the Treaty of Amity and Cooperation (TAC) in South East Asia. Giving the background of the ASEAN region, he emphasised that it was diverse in nature. In terms of the size of gross domestic product (GDP) and population, Indonesia was the largest, and although Singapore had a small population, its GDP per capita was impressively advanced. The diverse ASEAN background was palatable to South Africa’s vision.

Mr Mahoai referred to South Africa’s trade relations with ASEAN from 2004 to 2019, and stressed that it needed to address the trade deficit between its imports and exports to the ASEAN region.

South Africa’s strategy of engagement with the ASEAN region was provided, highlighting that the shift in economic power from West to East was also a reason why it should be tapping into this region.

He concluded the presentation by describing the benefits which South Africa would gain from entering into the agreement.

Discussion

Ms Z Ncitha (ANC, Eastern Cape) commented that the Department’s presentation had emphasised the skills development from which South Africa would benefit through entering this agreement. Given the critical skills shortage in the country, she asked what skills DIRCO was referring to which were relevant to the needs of the country.

Mr S Zandamela (EFF, Mpumalanga) noted the huge trade deficit between ASEAN and South Africa. He wanted the Department to provide an explanation for that, and what it was doing, or would do, to reduce this deficit. He also asked if there was any form of treaties signed between ASEAN and other African countries.

The Chairperson appreciated and fully understood the benefits and huge potential which this agreement would bring to South Africa. However, she raised concern over the human rights records of these countries, and sought clarity on how matters related to human rights such as justice cooperation were being dealt with and incorporated in the treaty.

The Select Committee would also be interested in knowing if there were treaties and agreements between South Africa’s local governments, such as at the provincial and municipal levels, with ASEAN countries. She asked how existing treaties between local governments and ASEAN countries would be affected by the signing of this treaty. How was DIRCO monitoring agreements between local governments and other foreign countries?

Ms Ncitha asked about the critical economic sectors in the presentation. She wanted to know why they what these sectors were, and why they had been identified as critical. In what way were these critical economic sectors relevant for SA to build the economy?.

Deputy Minister’s response

Deputy Minister Mashego-Dlamini responded to questions around the skills shortage and the skills development which South Africa would gain from entering this agreement. She said that some member states within the ASEAN already had bilateral agreements with SA. The Singaporean government was assisting South Africa on capacity building in technology and infrastructure. However, these agreements were outside the treaty under discussion. When the TAC treaty was signed, she believed that South Africa would receive more trade deals and have greater access to other ASEAN countries.

On human rights, the Deputy Minister emphasised that South Africa’s role was to help other countries by advising them on human rights issues. South Africa’s view and message to the international community had been, and always would be, that human rights violations were unconstitutional and a crime. All ASEAN countries knew where South Africa stood on the matter. South Africa had bilateral agreements with countries such as China, and was recently advising China on the Hong Kong issue. However, South Africa could not instruct those countries what to do on human rights.  

On provincial interests related to this agreement, the Deputy Minister explained that some provinces had agreements with some ASEAN states, but the national Department unable to monitor these agreements because there was no legislative mandate for it to do so. After Parliament had passed the Foreign Services Act, there would then be a synchronised effort to monitor these agreements so that the national Department could help provincial departments and local governments.

Director-General’s response

Mr Mohoai elaborated on the Deputy Minister’s response on the memorandums of understanding (MoUs) between local governments and foreign states. The national Department was currently working on implementing a modality of which part was to ensure the coordination of international agreements at all three spheres of government. It had a treaty unit, but due to lack of a legal mandate, it was not binding. It was working on a structure to synergise all international agreements reached between local governments and foreign states so that it could assist them. It had invited all legislatures from the provinces to discuss this matter. He believed that the National Council of Provinces (NCOP) would have a critical oversight role to play in due course, because part of the TAC agreement would also have the implication that the nine provinces in South Africa would have different benefits, so this Select Committee’s inputs would be vital and valuable.

The Director-General elaborated on the human rights violation issues in ASEAN states. He agreed that there was an issue of human rights in all of the ASEAN states, and it was the one weakness which had been picked up by the Department. He expressed optimism that South Africa’s joining of ASEAN could positively affect and improve their human rights records. He commented that when nations came together, they would learn from each other.

On skills development, he said the Department was cognisant of the skills shortage in the country that was jeopardising economic growth. As the Deputy Minister had mentioned, Singapore was currently helping South Africa with skills development. Critical skills sectors, such as the oceans economy and information communication technology (ICT) were among those that had been identified by the Department in order to derive the expertise from this treaty.

The Department was aware of the trade deficit, and acknowledged that the deficit was huge. The Department had planned country-specific strategies in its annual performance plan (APP). It would strategise its trade policy in order to turn the trade deficit into South Africa’s favour. The current trade deficit was caused by South Africa’s gap in exporting value added products, because it was primarily exporting raw materials to ASEAN states.

Mr Mohoai explained that ASEAN states would not negate other agreements that SA had. South Africa was one of the few countries that had a partnership with the European Union. The African Continental Free Trade Area (AfCFTA) was one mechanism which, although not a treaty, was an efficient economic cooperative mechanism to improve African trade. To sum up, South Africa was trading both on the continent and beyond.

The Chairperson commented that she looked forward to receiving the content of the TAC treaty agreement.

Mr K Motsamai (EFF, KZN) enquired whether South Africa could learn some anti-corruption practices from its international relations with those countries.

Mr G Michalakis (DA, Free State) raised the issue of human rights violations in ASEAN countries. He had an impression that South Africa and the Department were paying lip service, and said any international relations should be based on shared principles of human rights. South Africa did not apply the same standard to all countries, but rather applied those standards selectively. He commented on the Department’s remark that stated that “it was following a different approach and countries needed to learn from each other and that South Africa would try using a diplomatic approach to address human rights violations.” He said there were other countries that were severely affected by human rights violations which this Department ignored. He emphasised that South Africa should be consistent in its stance towards human rights, and the building of its international relations should not compromise the country’s principles on human rights. He called South Africa’s approach hypocritical.

Ms Ncitha said she was excited that the Committee was able pass the Foreign Service Act to enable the national Department to coordinate all the agreements from all three levels of government. She emphasised the importance of coordination of international treaties and agreements.

Mr T Dodovu (ANC, North West) expressed his disappointment at the national Department’s inability to monitor trade agreements between South Africa’s local governments and foreign states. He believed it was a matter of serious concern. He did not think the Department had provided a sufficient explanation as to why the Department could not monitor them.

He reminded DIRCO that it had a responsibility to ensure human rights records before entering into an agreement with another country under international regulations. He thus questioned the Department’s response to why South Africa should enter into an agreement with a country that did not subscribe to human rights.

Mr E Mthethwa (ANC, KwaZulu-Natal) reminded Members that there was there was no legal mandate for a municipality or a province to sign a treaty with a foreign government because all treaties reached between a foreign state and a local government were mandated by the national law. He emphasised the need to prioritise coordination of international agreements among all three spheres of government, as this could assist and guide all these agreements. He believed that there was a need for research in those treaties.

The Chairperson indicated that there needed to be further engagement between the Select Committee and DIRCO on those treaties being implemented at the local government level.

Deputy Minister’s Response

Deputy Minister Mashego-Dlamini explained that a treaty was an agreement that a country entered into in order to participate in an association of a group of countries. It also opened a trade channel for a participant country. Local governments such as provinces and municipalities were the implementers of treaties.

She agreed that with the passing of the Foreign Service Act, the national Department was now compelled to require local governments to account to them on the implementation of treaties.

On human rights, she reminded Members that every sovereign state had its own constitution on human rights, just like South Africa. South Africa was not in a position to dictate other countries on what they should do on human rights. What South Africa could do was to engage in discussions with those countries. Monitoring and instructing a country on human rights was the responsibility of the United Nation’s Human Rights Commission. She was unsure which country Mr Michalakis was referring to that South Africa did not engage in a discussion on human rights.

On whether South Africa could learn from other countries’ modalities on fighting corruption, she responded that it was learning from its interaction with other countries on how to deal with corruption. Indeed, most member countries learnt from each other. The current legislation in South Africa was that if there was any alleged corruption, people must check information, open a case at the police station and give evidence, then those involved needed to face all the might of the law. Unfortunately, people in South Africa only proclaimed corruption without providing substantiating evidence. She believed that South Africa’s policy on fighting corruption was clear, but it was the manner in which those cases were reported that was important.

Responding to Mr Dodovu, she said that the Department did not say the national government never monitored local government’s international agreements. As local governments had flexibility to implement those treaties entered at the national level, there was no legislation that required them to account to the national Department. With the passing of the Foreign Services Act, the national Department was collecting all the agreements that had been implemented by local governments since last year, and would present a report to the Select Committee in due course.

Mr M Dangor (ANC, Gauteng) commented on the preservation of South Africa’s national interests and values throughout the changes of governments in foreign states. He asked the Department to be mindful that there might be scenarios in which South Africa had entered into an agreement with one foreign state, and then there was a change of government in that state. In those scenarios, he highlighted the importance of preserving South Africa’s national interest.

The Chairperson concluded the session by commenting that she believed that it would be in South Africa’s national interest to sign the treaty. It would not only serve South Africa’s economic interests, but also its economic strategies. There were ten Asian countries that had always had a history of diplomatic relations with South Africa. Entering into a trading relationship would open up more diversity for South Africa’s exports.

The Report of the Select Committee on Security and Justice, on South Africa’s Accession to the Treaty of Amity and Cooperation (TAC) in South East Asia received majority support. The Report was duly adopted.

Judicial Matters Amendment Bill [B 13B – 2019]

The Chairperson said the Committee had received a briefing from the Department on the eight submissions on 30 July. Subsequently, it had been provided with an updated report which included another two submissions. Of the ten submissions, only four were specific to the amendments of the Bill. There was one amendment to clause 2 of the Bill. The submission stated that a six-month time period should be given, as determined by the Constitutional Court. However, the Department had responded that setting up a disciplinary process was lengthy, so six months may not be sufficient time, and had asked for a 12-month extension in the Bill. During the meeting, Members were satisfied with the Department’s deliberations as well as its responses.

The Chairperson asked for Members’ additional comments to the amendments to the Bill. Since no one indicated more inputs, she tabled the Report for adoption.

The adoption of the Report on the Bill received majority support. The Report was duly adopted.

Consideration and Adoption of Minutes

The Committee considered the minutes of its prior meetings for 17 June 2020, 23 June 2020, 25 June and 15 July 2020.

The minutes were adopted without amendment.

The meeting was adjourned.