Foreign Service Bill: DIRCO briefing

Meeting report

The Chairperson pointed out that the Foreign Service Bill was a Section 75 Bill and had already been approved by the National Assembly. The Committee would on 13 March 2019 consider submissions on the Bill and on 20 March 2019 the Bill would be presented to Members for consideration. He noted that the processing of the Bill had taken the better part of three years to reach finality.

Department of International Relations and Cooperation (DIRCO) on the Foreign Service Bill
Adv Sandea De Wet, Chief State Law Adviser at DIRCO, said the rationale for the Bill was partly due to the fact that SA did not have a legislative mechanism to optimally support the mandate of DIRCO to achieve the country’s foreign policy objectives. The objectives of the Bill were elaborated upon – one of which was to create a professional, unified foreign service under DIRCO management. This would make SA’s foreign relations more focused and more efficient. The Bill was approved by Cabinet on 26 August 2015. Submissions on the Bill were mainly done internally and a total of nineteen departments participated. The Bill had gone through various incarnations due to the extensive public consultation process. The Bill was finally adopted by the Portfolio Committee on International Relations and Cooperation on 22 November 2018. The Bill was tabled in the National Assembly on 4 December 2018 and was adopted. Some of the amendments introduced by the Portfolio Committee were around the application of the Bill which clarified the Bill was the primary legislation for the foreign service. There were also amendments which provided DIRCO with the mandate to acquire, manage and dispose of immovable property used by the foreign service abroad. Other amendments dealt with locally recruited personnel at missions, criteria for heads of missions and also offences. The briefing continued with a brief explanation of each clause (see document). 

Discussion
The Chairperson commented that the National Council of Provinces (NCOP) was the House positioned to deal with intergovernmental relations. Many provinces had investments and partnerships with other countries. The briefing spoke about departments being consulted. The Committee together with the Select Committee on Economic and Business Development had a number of departments reporting to them. There was no doubt that tourism was a money spinner but the National Department of Tourism questioned what DIRCO at its missions abroad could do to attract more tourists to SA.

On collectable art pieces at missions, he noted that Auditor-General SA had expected the heads of missions to get these art works appraised. It was a difficult task to do. It was for this very reason that DIRCO was given a qualified audit opinion in 2017. SA owned a three-storey embassy building in Florida. The ambassador at the time had said that only a portion of the premises was used and that it was wasted space. The property should rather be sold and smaller premises acquired. SA was also considering opening an office in the south of the US. In the past the Minister of International Relations and Cooperation had equal status to the Minister of Public Works when it came to matters relating to missions. The Bill provided the Minister of International Relations and Cooperation with a little more clout than before. He emphasised that better coordination between departments was needed to protect South African citizens abroad.

Adv De Wet conceded that there were challenges with properties owned by SA abroad, especially in Europe. Some of the properties were not in use and others were in dire need of maintenance.

Mr M Rayi (ANC, Eastern Cape) asked for some insight into the challenges that DIRCO had experienced in the past 25 years that had brought about the need for the Bill. It seemed as though the Bill was focusing more on staff issues of DIRCO. He did not see the need for the Bill. What was presented seemed to be more of a standard operating manual for DIRCO. What was covered in the Bill could have been done in the form of policy. DIRCO was asked to provide the Committee with the written submissions that departments had made on the Bill. It seemed as though there was more internal participation with the exception of NEHAWU. The crux was better coordination. Why had it taken the Portfolio Committee three years to finalise the Bill?

Adv De Wet replied that in 1994 SA had a small foot print across the world with only few missions. After democracy, SA had opened up many more missions. The international arena was a complex and ever changing environment. SA and DIRCO needed to have a more professional set up. There was no legislation in place. Missions had officials from different departments. There was no one solid command line. DIRCO had been following policy for many years. The problem was that there were so many departments and role players that something stronger than policy was needed. The Bill was needed to coordinate the system.

The Bill did not take away the responsibilities and duties of departments like DTI and Home Affairs. Departments at missions had their specific tasks and staff still belonged to their own department. The intention was to have a professional system with one command and one foreign policy. It was only the Minister of International Relations and Cooperation that should have foreign relations.

Adv De Wet replied that provinces and cities had a vital role to play in the development of countries. The Bill aimed to formalise a coordinating mechanism. In the past there were different messages coming from different departments. There were even times when there was competition between departments for investment. The problem was that there was never one view on what SA needed. SA was all over the place. There was also competition between provinces and cities. Policies and codes simply had not worked. The Bill was performing an execution function, that is, to execute international relations. Other challenges were of an administrative and management nature. She pointed out that countries like China, India and Egypt were professionalised. Written submissions by other departments would be forwarded to the Committee. The process in the National Assembly had taken long because there were many submissions to work through. A study tour was even undertaken to Canada.

Mr Siyabonga Mpongosha, State Law Adviser: DIRCO, added that there were also legal challenges with other departments. There were times that officials were recalled and in these types of labour issues, DIRCO was often cited even though it was not involved. At times DIRCO was even held jointly liable with the other department.

Mr O Terblanche (DA, Western Cape) asked about the administration of foreign representatives. He asked if it was correct that officials from other government departments would be serving under the heads of missions. What happens where there is a disciplinary case involving a member of the South African Police Service (SAPS) or South African National Defence Force (SANDF) at missions? The Bill focussed more on administration and was silent on outcomes that Members wished to see. How could one ensure that the interests of SA were pursued and pursued properly? On the procurement and sale of immoveable assets, would the expertise lie with the mission or with DIRCO?

Adv De Wet replied about the administration of foreign representatives saying when China sent diplomats they had to be accredited. Their stay had to be administered and regulated by DIRCO and Home Affairs. Immunities and privileges were also managed by DIRCO. On disciplinary matters, departments had their own legislation and disciplinary codes. The Bill did not affect this. When SAPS and the SANDF were deployed abroad an additional set of conditions would apply. The sale of properties abroad was the responsibility of the Department of Public Works (DPW). In reality DIRCO had taken over most of the responsibilities when it came to the sale of properties. However DPW took the final decision. DIRCO would get expertise to deal with local conditions abroad. Different countries had different laws. Many SA properties abroad were not maintained and had thus devalued. It would be easier if DIRCO could deal with the properties itself. SA also had properties in Namibia.

Mr Mpongosha pointed out that SA had twenty properties in Namibia. Four were in Walvis Bay and sixteen in Windhoek. There was a huge chancery but many of the floors were not occupied. Most of the properties were beyond repair.

Adv De Wet stated that budget was a huge concern. It was a very difficult process to dispose of properties. The Minister in consultation with other ministers could dispose of properties. Initially DPW was opposed to DIRCO having the right to deal with properties abroad but they now understood the logic behind it. DPW was in support of the Bill.

On the Bill bringing about a professional unified service, the Chairperson asked if any of the departments consulted had reservations about the Bill. The Department of Trade and Industry (DTI) had an ambassador at the World Trade Organisation (WTO). There was no DIRCO representative. He asked if having a unified foreign service would not negatively affect other departments. He asked what was meant by appointees from outside the public service. He observed that at the Buenos Aires WTO conference, DTI had capable staff that handled arrangements professionally. Would these DTI staff also be accountable to SA’s ambassador in Buenos Aires? The briefing had spoken about the three spheres of government and he asked if DIRCO had considered other legislation and the Constitution when it came to the autonomy of the three spheres of government. Provinces and municipalities in SA had trade agreements and partnerships with countries abroad. The Eastern Cape Province for one had a partnership with Volkswagen in Germany. There were also city to country partnerships that held huge benefits for cities in SA. How would the aim of the Bill fit in given the autonomy of municipalities?

Adv De Wet replied that the idea was to have a unified foreign service. There were DTI and Home Affairs officials at missions and at organisations abroad. Under the Bill they had to all fall under the head of the mission. Each department received operating instructions but would report to the ambassador and to the head of the department. SA would have one voice. She was aware that DTI played an essential role abroad. Due to budgetary constraints, DTI had withdrawn its trade representatives from missions. There needed to be a common understanding of opportunities for SA. Coordination at present was lacking. Persons hired from outside the public service could be heads of missions. They were often from other spheres of service. Heads of missions were appointed on a contractual basis and were appointed by the President. Heads of missions often thought that they did not have to report to the DIRCO Director General and Minister because they were appointed by the President. The Bill had to put in place that accountability was to heads of missions. There was one vision and one foreign policy. On other spheres of government, that is, provinces and municipalities, she noted that in most instances they were the custodians of development projects. There had always been an uncoordinated approach. Provinces often competed against one another. Countries like India, Cuba and Brazil asked ever so politely why they were approached by SA’s nine provinces individually. Why could they not meet the provinces as a unified group? There were always these types of things to answer for. Dignitaries from provinces often just rocked up in other countries and would phone the SA ambassador to meet them. Such practices also had budgetary implications. DIRCO assisted provinces and municipalities when they concluded agreements abroad. The intention was to have a Team SA. The Bill brought everyone on board and in the same direction. All three spheres of government had to work together.

The Chairperson said that the objective of the meeting was to sell the importance of the Bill to Members. On sensitive matters like the Ebola virus, Minister of Health Dr Aaron Motsoaledi had been the spokesperson on the matter. SA had done work on it in West Africa and at laboratories in Pretoria. Proper coordination was needed. SA’s ambassadors ought to be SA’s advocates. Minister Motsoaledi had struggled with the ambassador that he had dealt with. There was also serious conflict in West Africa. The SANDF and SA military intelligence would get involved. The point was, in silencing guns, how SA would hold its officials accountable. He felt that the Bill would assist in this. In the recent tiff between Russia and the USA it had come out that most embassies in the West had spooks. If SA had them they should be accountable to the relevant ambassador. The Bill stipulates that officials would be accountable to ambassadors and to the department they belonged to. As SA’s democracy was maturing, legislation was needed to deal with issues.

Mr Rayi asked why the Bill was not a Section 76 bill. If it were a Section 76 then provinces and municipalities could have made input on it. DIRCO was asked how the Bill related to Brand SA. He did not see the Department of Communication mentioned as one of the departments consulted and Brand SA was an entity within it. How did the Bill relate to special envoys? He had read about conflict between SA’s ambassador to Switzerland and staff. Would the Bill deal with such matters? He asked for the view of the State Law Advisers Office on the constitutionality of the Bill. The briefing had spoken about the Bill superseding other legislation such as the Public Service Act. The Bill would take precedence. He felt that the Department of Labour should take the lead on labour relations.

Adv De Wet replied that consultation with all relevant stakeholders was done as best as possible. The conduct of international relations was a national competency. Provinces and cities also had a role to play. There would be relationships with Brand SA and SA Tourism. Memoranda of Understanding (MOUs) would be entered into with bodies and companies. She conceded that at present things were being done in a very fragmented way. She explained that special envoys were assigned as appointees from outside the public service. This would fall under conditions of service in the Bill. Immunities and privileges would apply. Where there were staff conflicts investigations would take place. Existing systems and codes would be strengthened.

Ms Suraya Williams of the Office of the Chief State Law Adviser responded that on the application of law the Constitution was supreme. The Constitution was the threshold. The Bill must be read in line with the Constitution. If for instance there was conflict between the Bill and an Act, what was considered was the specific versus the general. Usually, the specific would override the general and trump it. In the same way newer legislation would trump the older. On the tagging of the Bill as a Section 75 Bill, her Office had considered the provisions of the Bill. A Constitutional Court judgement said that a substantive measure needed to be considered for tagging purposes. The provisions of the Bill were looked at against Schedule 4 and 5 of the Constitution. The State Law Advisers Office found the Bill to be constitutionally sound.

Ms M Dikgale (ANC, Limpopo) said that when “people arrived unannounced at airports abroad” it was embarrassing to SA. How would the practice be stopped? She asked how other countries dealt with it.

Adv De Wet noted that the conduct of international relations was a national competency. Provinces and cities had a role to play. What other countries did varied. It depended on the country set-up. In China and India no city was allowed to do anything without the say so of national government. To prevent reputational damage to SA, regulations would be strengthened. To resolve provinces and municipalities rocking up abroad unannounced, Adv De Wet stated that there were two mechanisms to strengthen things. Firstly, there was a coordinating mechanism in place which the Minister of International Relations and Cooperation was leading. Secondly, there were guidelines to coordinate relations that were going to Cabinet. These would be gazetted. If provinces or even national departments wished to visit abroad, standard processes needed to be followed. Ambassadors had to receive the visiting parties. There could no longer be fragmentation. Coordination was key.

Minutes dated 30 January 2019 and 13 February 2019 were adopted and the meeting adjourned.