Foreign Service Bill: deliberations

Meeting report

Foreign Service Bill: deliberations
Ms Suraya Williams, Principal State Law Advisor (PSLA): Office of the Chief State Law Advisor (OCSLA), said that cross-referencing would change depending on whether there was approval to insert or reject clauses. She explained that some clauses were inserted which would change the numbering of the Bill and that this would be done last. She referred Members to the first proposal to insert the definition of ‘acquire’ as it applied to immovable assets.

Ms S Kalyan (DA) asked for clarity on ‘by any other means’. Could it mean matters of urgency? Should one insert the word ‘legitimate’ or ‘legal’ or something that was recognised in law?

The Chairperson asked whether accepting a gift would fall under ‘by any other means’.

Ms Sandea de Wet, Chief State Law Advisor : Department of International Relations and Cooperation (DIRCO), said another country might make property available for an embassy at no cost. She added that the Department wanted to cover all situations that had been seen in South Africa but if the Committee felt it should be left out, the Department would not mind. 

Mr M Malia (ANC) agreed with the suggestion made by Ms Kalyan. He explained that ‘by any other means’ would include an ejection, and that ‘legitimate means’ should be inserted.

The Chairperson said that Ms Kalyan was asking a question and not making a suggestion.

Ms Kalyan said she was suggesting an insertion of the word ‘legitimate,’ otherwise it could be interpreted to mean anything to anyone.

Ms R Lesoma (ANC) said it was not fundamental to change it.

Mr L Mpumlwana (ANC) said it was not necessary because it was obvious that the means must be legal.

Mr M Lekota (COPE) said in situations of conflict, one may be compensated and acquire property outside of the country. He said there were instances where it could not be categorized, and there should not be an insertion of ‘legitimate’.

Ms Williams proposed the use of the word ‘lawful’ instead of ‘legitimate’.

The Chairperson agreed and asked her to proceed.

Ms Williams said there was a proposal to omit the ‘trading unit of department’ and substitute it with ‘diplomatic academy as contemplated in section 7’.

All Members agreed.

Ms Williams said there was a proposal to insert a new definition of ‘disposal’.

The Chairperson asked why it did not also include ‘in accordance with any other applicable legislation’.

Mr S Mokgalapa (DA) asked why it had been omitted.

Ms Williams replied that the definition section was applicable to a particular piece of legislation, and that it would differ from a dictionary definition. It was a unique meaning for the purpose of the legislation, and was included in the substantive provisions.

Ms Dineo Mosala, Content Advisor to the Committee, added that it was included in the body of the Bill. She said that clause 9 dealt with it in more detail.

The Chairperson noted a spelling mistake.

Ms Williams replied that a spell check would be done and thanked the Chairperson for pointing it out. She referred Members to the definition of ‘employee’.

Mr Malia asked why ‘other legislation’ was now being included in the definition section.

Ms Williams replied that there was an aim for the definition of ‘employee’ to extend beyond persons appointed in the Public Service Act (PSA). This was done to avoid excluding certain employees of departments.

Mr Mokgalapa said any person who came from another department had to meet certain requirements; a letter must be obtained from their superior, and they must undergo relevant training.

Mr Mpumlwana said his concern was which law an official was employed under. He requested that ‘legislation’ be substituted with ‘law’.

Mr Lekota said that departments were governed by their own specific legislation. He explained the way officials carried themselves was subject to internal disciplinary measures within each department.

The Chairperson said it did not mean officials could not be brought into South Africa and tried in terms of the provisions of the Bill.  

Ms Williams referred Members to an insertion of the definition of the ‘Government Immovable Asset Management Act (GIAMA).’ There was the omission of everything after the word ‘Republic’; the insertion of the foreign definition of ‘immovable assets’; the omission of the definition of ‘locally recruited personnel’; the substituted definition of ‘prescribed’ and the insertion of a new clause on the application of the Bill.

Mr Mpumlwana asked for clarity on this new clause.

The Chairperson replied that except for Defence, the Act shall prevail in all instances.

Ms Williams referred to the insertion of the requirements for an employee to take up a position.

Mr Mpumlwana said he had a problem with the word ‘must’. There were those who were fit and proper but did not have the knowledge and expertise as required in the sub-clause.

The Chairperson replied that in all circumstances, the President had a particular discretion because he was acting in the international interest.

Mr Lekota said the President would always be guided by constitutional considerations when exercising his discretion.
           
Ms Kalyan referred to sub-section (d), and said it limited the scope to race and gender. She asked for it to rather reflect the diversity of South Africa so that religious associations, those with disabilities and the Lesbian, Gay, Bisexual, Transgender and Questioning (LGBTQ) community were included.

Mr Mpumlwana said that the word ‘must’ limits the discretion of political deployment. Requiring knowledge, expertise and management skills limited persons who were capable of being deployed.

Mr Mokgalapa said that Members had already said no, and that Mr Mpumlwana was out of order.

Mr Mpumlwana replied that it was a very crucial limitation on the political discretion of deployment.

Mr D Bergman (DA) said the matter had been discussed in the study group submissions already, and all Members had agreed on it.

Ms D Raphuti (ANC) said they must appear as requirements, and the President would appoint a person who had met these minimum requirements.

Mr Mokgalapa said Members must be reminded of the primary purpose of the Bill. He said that it did not take away the President’s discretion -- he acts as the appointing officer and it gives him the criteria to make an appointment. Members had already applied their minds to this.

Ms Kalyan said the objective of the Bill was to professionalise the foreign service. The Bill was not being made for the President, but it was being made for South Africa. She asked the Committee to move on.

Mr Lekota and Mr Malia both said the minimum standard was relevant to ensure diplomats were professional.

The Chairperson agreed and asked Ms Williams to proceed.

Ms Williams said that clause 8 had been omitted. It would be substituted, and she asked the Department to speak on this.  

Ms de Wet said where the State Land Disposal Act appears, it was not the correct reference because the section deals with acquisition. She said it must be deleted.

Mr Mokgalapa asked if it meant the State Land Disposal Act applied only in South Africa.

Mr Mpumlwana asked if there could be an insertion of ‘any other applicable law’ and not ‘legislation,’ because there may be laws in a specific country which had to be complied with.

Ms De Wet agreed that it must include ‘any other applicable law’. The reference to the State Land Disposal Act must be moved in the Bill. She said if ‘in consultation’ with the Ministers of Public Works and Finance was required, there had to be a concurrence with them to move on anything.

Ms Lesoma said she had two points to raise. How did one ensure that legally speaking one closed loopholes in the disposal of assets? With ‘after consultation’, one was relying on the fact that the Department was in line with GIAMA. Did one need to consult with the Minister of Public Works?

Mr Mokgalapa said he understood the logic of saying ‘after,’ but these things were done for checks and balances. Was it a question of ‘in consultation’ being a problem because of personality clashes? Or was it a legislative problem?

Mr Malia suggested that Members should identify reasons why it should not move and come up with a solution. If it was to be ‘after consultation’, were they going to have standards for what they meant by consultation?

Mr Mpumlwana said it was irrelevant whether an official agreed or disagreed, as long as they were informed and aware. He had a problem with the view that decisions must be in the best interest of the Republic. This opened the floodgates to litigation, and officials would be forced to define what constituted the best interests of the Republic. He did not understand why there had to be consultation with other departments. One had to obey GIAMA first and then on top of that, there was still consultation. Why? He agreed that it should be ‘after consultation,’ but he did not understand why other departments had to come into the picture.

Ms Kalyan said she supported the word ‘after’ because at the end of the day, the objective of the Bill was to empower DIRCO. If it were to say ‘in consultation,’ there would be delays for no reason at all.

The Chairperson said that the current challenge with the acquisition of assets outside the country was that the Minister of International Relations had limited powers conferred upon him by the Minister of Public Works. When the Foreign Service Bill becomes an Act, it would grant original powers to the Minister. He said the Minister of Finance should be retained, but not the Minister of Public Works. He explained that where the Minister of International Relations decided to sell assets and the money came into the country, it would go to the National Treasury (NT) and not to DIRCO. This was where the checks and balances arose. The Minister of Finance was more relevant than the Minister of Public Works, whose function had been transferred to the Minister of International Relations. He agreed it should be ‘after consultation’. There were a number of players involved, and the Minister of International Relations could not do things without her colleagues knowing.

Ms Mosala said she would refresh Members on the Committee’s previous discussions. The Bill had initially started off with ‘in consultation,’ but discussions had shown that this would limit DIRCO from taking up their positions and being able to move. The Committee had been thinking of using ‘after’, and the checks and balances would still be maintained. If the Committee left out the Minister of Public Works, this would have to be discussed further.

Mr Mokgalapa said the essence of the clause was for checks and balances. If the Minister would be doing things through GIAMA, then it might not be necessary to include Public Works. The Bill was written in a way that this must be done in good faith. If it was not done in good faith, then what happens? Was it about the personality of the Minister or the legislation?

The Chairperson said if the President should say the mandate was now with the Minister of International Relations and not Public Works, then there would need to be an amendment of GIAMA to say ‘South Africa,’ and in the Bill to say ‘abroad’. He said the word ‘after’ was necessary so that the Minister initiated discussions and received advice from others. Once he had come to a determination to dispose and money came into the country, then consultations with colleagues would happen.

Ms Kalyan said the objective of the Bill was to give authority to the Ministry of DIRCO, and not a particular Minister. The detail of what the consultation should be should go into the regulations of the Bill.

Ms De Wet said the Department was not averse to a consultation, but there would be a problem if there must be an agreement. If it was after consultation, the Minister who held the authority had the ability to take the final decision. In consultation would mean delays and waiting for months and months. It was not about a clash of personalities, but rather who had the final decision-making power. She said there would be sufficient checks and balances.

Ms Mosala said this amendment had already been discussed by the Committee, and she agreed it must be ‘after’.

The Chairperson asked why the Minister of Public Works was still a player. He said it should rather include the Minister of Finance at least. Money coming into the country via the Reserve Bank had to be cleared to ensure it was not money laundering. The Minister of Finance would want an evaluation certificate.

Ms Mosala said the Minister’s decision was based on an analysis, and the Minister of Public Works took part in that analysis because they had the capacity. The Department did not have in-house expertise and officials from the Department of Public Works would be invited to be involved.

Mr Mpumlwana said he was repeating what he said earlier, that they should avoid going to court over the interpretation of the Bill.

Ms Kalyan asked where the action plan was for a decision to dispose of assets. Was there an action plan in the Act or its regulations? She added it could be easily included in the regulations.

Mr Mokgalapa said Members agreed on the purpose of the Bill, which was to provide for administration accountability and functioning of foreign services. Why were Members afraid to go to court? He saw no harm, as there were checks and balances to ensure that every disposal must be to the benefit of the Republic in order to achieve the best functioning.

Ms Raphuti said she fully agreed that it must be to the benefit of the Republic -- it was clear from the clauses.

The Chairperson said the checks and balances and involvement of other colleagues was very important. It had to be ensured that officials who disposed of property did so in the best interest of the Republic. He supported the clause remaining.

Mr Mpumlwana said it was a technical Bill. When making a law, one did not draft it in a way that would ask for litigation.

The Chairperson asked who would take officials to court.

Mr Mpumlwana replied that drafting must always keep in mind loopholes. The clause was opening loopholes for people to go straight to court to question what defined ‘in the interests of the Republic’. It was too broad and needed to be defined in the Act itself. He asked whether other lawyers could advise whether he was wrong or not.

The Chairperson ruled that the clause must remain as it stood, and asked Ms Williams to proceed.

Ms Lesoma referred to clause 9, sub-section 5, and said the wording had been redrafted. How could it be drafted so that it flowed nicely? It had to be within the spirit of the Act, and need not be a stand-alone.

Ms Williams replied that sub-section 4 provided for an official to make a decision to do the transfer and sub-section 5 provided for the power to effect the transfer. She explained one took a decision before one did something, and that was why it was in that format.

Ms Mosala asked if it should be isolated, or as it remained. She said it should be combined, and not left as it was now.

Ms Kalyan said Ms Williams had already provided an explanation that one was a decision and one was an action, and they needed to remain separate.

Ms Lesoma replied that she was not convinced. She said that it was confusing because officials would not know which law to implement and that they should flow together so that it was harmonised. She said there should not be discretion for someone to use one as a stand-alone.

Ms Raphuti said she thought it should stay as a stand-alone.

The Chairperson held that they must remain separate as they were.

Ms De Wet said she saw that the concern was that officials would act in accordance with the laws of a foreign state. She suggested that it be redrafted, but said the latter section dealt with how property was registered and would have to happen in terms of the foreign country’s laws.

All Members agreed.

The Chairperson asked the Department to speak on revenue collection.

Ms Williams replied the intention was not for it to be interpreted as a money bill. It was actually a collection of fees. She said there were concerns because it introduced new subject matter and certain permissions were required, and this caused a delay. The Committee would have to take the final decision.

Ms De Wet said that the matter came from a proposal by the Department of Home Affairs (DHA), and there had been discussions with Ms Mosala. The clause provided that DIRCO collects the money and pays it over to the Revenue Fund. This made the administration shorter.

Mr Mpumlwana asked why the money was not given to the DHA to account alone to the NT.

The Chairperson replied that this had led to misconduct. DIRCO would collect the fees and see to it that they went straight to NT.

Mr Mpumlwana asked where the revenue went.

Mr Mokgalapa said the problem was that DIRCO collected money and puts it into the DHA’s account and then the DHA deposits it into the NT. He said the Auditor-General had an issue with recent accounts and that with the new proposal, DIRCO would collect and instead of depositing it with the DHA, they would deposit it directly with the NT.

Mr Mpumlwana said he was not answering him on the accounting question.

The Chairperson asked the Department to comment.

Ms De Wet said that DIRCO would collect fees and pay them over to the DHA, but there was a problem of keeping the money and recalculating it like a business. She added it must go directly to the NT from DIRCO. She understood there would be accounting delays.

Mr Mpumlwana asked what happened to the bookkeeping.

The Chairperson replied that he was going to move towards moving the adoption. They needed to finish the Bill before Parliament rises.

Mr Lubabalo Sigwela, Secretary of the Committee, said the implication of the collection of fees clause was that the process would be delayed because they had to get permission from the Treasury.

Ms Lesoma said if it took time to go to the Treasury, it must happen.

Ms Williams said wherever it refers to ‘revenue,’ it should be substituted with ‘fees’.

Members agreed.

Ms Williams took Members through the remaining proposed amendments, to which Members agreed.

The meeting was adjourned.