Foreign Service Bill: Department of Public Works, DPSA, NSG & PSC input

Meeting report

Department of Public Works

Ms Florence Rabada, Chief Director: Asset Register, DPW, indicated that Section 2 of the Constitution, 1996 laid the foundation by providing that it was the supreme law of the Republic and the obligations imposed by it must be fulfilled. She said that Section 41 (1) of the Constitution further provided that all spheres of government and all organs of state within each sphere must preserve the peace, national unity and the indivisibility of the Republic and not assume any power or function except those conferred on them in terms of the Constitution.

She said that it was now a requirement in terms of the Chief Registrar of Deeds Circular (CRC) No. 2 of 2013 issued on this matter that immovable property could only be registered in the name of the National or Provincial Government of the Republic of South Africa. Chief Registrar’s Circular No. 2 of 2013 repealed CRC No. 9 of 2008 also dealing with the vesting of state immovable assets.

Mr Peter Chiapasco, Chief Director: Real Estate Investment Management, DPW, mentioned that one of the objectives of the Government Immovable Asset Management Act (GIAMA) was to provide a uniform immovable asset management framework to promote accountability and transparency within government. This objective formed part of the long title of this Act. The GIAMA applied to departments of state in the national and provincial governments. He said that the Act designated the Minister of Public Works as custodian to immovable assets that vested in the national government. The Act further designated the Minister of Rural Development and Land Reform as custodian to immovable assets that vested in the national government situated within the former homelands and immovable assets acquired for land reform. Finally, it designated a Premier or an MEC in respect of an immovable asset that vested in a provincial government. The exception was where custodial functions were assigned to other Ministers by virtue of legislation before the commencement of GIAMA.

Mr Chiapasco stated that the Department of Public Works was directly affected by clause 8 of the Foreign Service Bill. The misgivings expressed in respect of clause 8 of the Bill in the DPW presentation of 25 November 2016 were somewhat watered down by proposed amendments contained in DIRCO’s e-mail of 1 September 2017. He said that it was the Department’s respectful view that the wording of clause 8 should expressly recognise GIAMA as legislation applicable to national and provincial governments’ immovable assets. This would obviate possible ambiguities, uncertainty and unintended consequences in this proposed legislation. For instance, clause 8(1) suggested that immovable property utilised by the Foreign Service must vest in the Minister. He explained that the vesting of property in the Minister was inimical to Item 28(1) of Schedule 6 to the Constitution and Chief Registrar’s Circular 2 of 2013 dealing with the registration of Government Immovable Assets. GIAMA required a custodian to comply with the State Land Disposal Act 48 of 1961 when disposing of surplus immovable assets. In essence, disposal formed part of the immovable asset life cycle management hence the requirement to comply with the State Land Disposal Act, 1961. The wording of clause 8 in respect of the nature of the discretion granted to the Minister appeared to oust the requirement to observe the principles of immovable asset management enshrined in section 5 of GIAMA.

Mr Chiapasco stated that the Department forwarded a number of recommendations and these included a complete overhaul of clause 8 of the Foreign Service Bill considering some of the suggestions already made by DIRCO to bring the Bill in line with GIAMA. The Department on previous discussions with DIRCO agreed to the following proposed changes being inserted into the Bill:

 (a) “acquire” in relation to an immovable asset, means acquisition through construction, purchase, lease and acceptance of a gift outside the Republic, for use by the Foreign Service;
(b) “immovable asset” meaning land or an immovable structure on the land, or rights in such land or immovable structure

In relation to clause 8 of the Bill, the Department of Public Works proposed that the clause be worded as follows:

1. Notwithstanding the provisions of section 4 (1) (a) of GIAMA, the Minister is the custodian of immovable assets outside the Republic, acquired for use by the Foreign Service;
2. The Minister must exercise his or her custodianship in accordance with the provisions of GIAMA:

Discussion

Mr B Radebe (ANC) welcomed the presentation and requested the Department to provide explanation as to the main concern around clause 8 of the Bill. He said that it was unclear whether there was a plan in place for the acquisition of assets from abroad. Where were the GIAMA assets? Were there any penalties that imposed on the GIAMA? What were consequences for those who failed to adhere to the requirements of GIAMA?

Mr M Maila (ANC) asked whether the Department was happy with the other clauses in the Bill except clause 8 as this was not clear from the presentation. Were there any officials from the Department who were deployed abroad? Was the Department happy with the fact that any officials that were abroad were to report to DIRCO?

Ms T Kenye (ANC) asked for explanation on the use of “may” on 8.2 (a) and (b) and wondered whether this was an appropriate word to be used.

The Chairperson wanted to know if there were any meetings between the Department and DIRCO to discuss issues related to leasing and acquisition of assets. It was unclear as to whether GIAMA was to fall under the Department or DIRCO. The Department did not have any labour unless having to undertake a particular project. What were the areas of the Bill that were supported and those that were rejected?

Mr L Ramatlakane (ANC) asked for an explanation in relation to the recommendation in clause 8 particularly the wording “notwithstanding the provisions of section 4 (1) (a) of GIAMA”. Was this the paragraph to be inserted on clause 8? Why was there a desire to have such an insertion in clause 8?

Mr M Lekota (COPE) firstly apologised for being late. It was unclear if the Minister under 7.4 was the Minister of Public Works or DIRCO. Where was the budget for the maintenance of buildings abroad located?   

Mr Chiapasco responded that the whole function in maintenance of buildings fell under the Department and DIRCO was solely the user department. There were discussions that this duty should be undertaken by DIRCO.  The only function that was not transferred was disposal of assets. He said that there was always a good relationship between the Department and DIRCO. The Bill was clear that DIRCO should not replicate functions. Clause 8 needed to be reworded as suggested by the Department but there was counter-proposal to the suggestion by DIRCO.

Mr Johannes Lekala, Acting Director: Property Owner Activities, DPW, stated that clause 8.2 was not currently addressing the concern of the Department. The clause should make specific reference to GIAMA and that was why the proposal by the Department contained GIAMA.

Mr Radebe said that his interpretation of clause 8 was that the clause was empowering the Minister to dispose a property without having to wait for the approval from the DIRCO.

M Ramatlakane commented that he was happy that he received a response for the question that was asked around the Department’s proposal on clause. However, the response that was provided was subjected to a lot of discussions that still needed to take place. The issue of ownership of property was something that still needed to be discussed further.

Mr Chiapasco responded that GIAMA was still applicable to both departments. The budget for the maintenance of buildings abroad was from within DPW. There were discussions with the Minister on the legislation from the Department that would specifically discuss the disposal of surplus assets.

Ms Rabada mentioned that the taxpayers would be happy if the Bill was to be passed as these properties abroad were protected and safeguarded through taxpayer’s money. It had to be highlighted that there was still no common mind regarding the Bill and this was something that should be factored in the discussions. There were many disagreements on some issues despite engagements with DIRCO.

Mr Maile highlighted that the elements of GIAMA needed to be effected as it was critical important.

Ms Rabada agreed that indeed the elements of GIAMA needed to be effected. There was a need to avoid the situation where there were many custodians that were tasked with safeguarding the immovable assets.  

Briefing by the Department of Public Service and Administration (DPSA)

Mr Victor Sakala, Acting Deputy Director General: Employment Conditions and Service, DPSA, stated that the DPSA had a number of concerns on the Bill specifically the definition of “the Foreign Service” as envisaged in the Foreign Service Bill vs “Employee” in the Public Service Act. He said that concurrent powers between the Minister for Public Service and Administration and the Minister for International Relations and Cooperation to make determinations on specific employment mattered. There was a concern that there was no mention of gender parity in the Bill and it was important that it was expressly stated. Clarity was sought on whether Heads of Missions had oversight responsibilities or more authority over reports (whether they were responsible for the management of personnel matters and or operational matters over employees posted by other departments other than DIRCO). It was unclear if the Performance Management and Development System continued for employees in a foreign country. Section 9 of the Bill provided for the Minister of DIRCO having sole responsibility. Would this affect further negotiations within the Public Service Co-ordinating Bargaining Council (PSCBC) which was the sole responsibility of the Minister?

Discussion

Ms D Raphuti (ANC) said that there was a consideration that the Department should be afforded more time to work on the Bill and this should also be supported by the Committee. She wanted to make it clear that she supported the analysis and recommendations that was forwarded by the Department.

The Chairperson asked how the Bill was inconsistent to the Public Service Act as this was not explained adequately in the presentation. The reality was that people who were nationalised as South Africans were allowed to represent the interests of South Africa abroad. It seemed like the Bill was deliberately trying to exclude anyone who was a nationalised South African.

Mr Lekota commented that all Ministers had the same delegated powers and therefore it was critically important to ensure that there was realignment between the Department and DIRCO in order to ensure that everything was operating smoothly. He said that there should be the allocation of power between the two departments so that the standards were the same. The national legislation had to inform the jurisdiction of power, but this was not explicit in the Bill and in the recommendations, that was made. There were cases where foreigners would come to the county and compromise the security of the county. Therefore, there should be consensus as to who was supposed to be delegated with the responsibility of representing the genuine interests of South Africa. The laws should not only be designed for favourable conditions but also unfavourable conditions like a war with another country.

Mr Radebe indicated that there should indeed be a clear definition of employee as also to be looked into by the Department. There were absolute cases where there should be exclusions as to who was supposed to represent the interests of South Africa abroad. There were even exclusionary clauses in the Public Service Act where essential public servants like police and defense were not allowed to go a strike despite being regarded as public servants.

Mr Sakala responded that the Department went according to the recent constitutional ruling where it was stated that permanent South African residents should enjoy the same rights as South Africans. The vetting process would certainly exclude those individuals that were not desirable to represent the interests of South Africa abroad. There was indeed a plan in place to ensure that there was realignment between the two departments. The Department was still waiting from DIRCO for further inputs on the Bill. It would be good to have a discussion on the delegation of ministerial power and which Minister should supersede the other.  

National School of Government

Ms Leonore Neethling, Director: HRM & D Training, National School of Government, mentioned that NSG training in Disability Management enabled it to determine that much had to be done to promote the rights of persons with disabilities in all spheres of government. The main approach of NSG was based on the United Nations Convention of Rights of Persons with Disabilities (UNCRPD) and White Paper on the Rights of Persons with Disabilities (PWDs). WPRPD argued for the removal of barriers to access and participation experienced by PWDs. This should be done by following a mainstreaming approach in all our South African Missions that prioritised budgets to include reasonable accommodation support, disabled specific services and assistive devices. UNCRDP Article 27 (Work and Employment) advocated the right of PWDs to work on an equal basis with others and to have affective access to general technical and vocational guidance programmes, placement services and vocational and continual training.

Ms Neethling indicated that NSG proposed a  new addition on section: 9(6) where it stated that: The Minister or Director General, as the case may be, shall through a directive or allow for Reasonable Accommodation and the promotion of the rights of Persons With Disabilities, who are recruited to serve at an South African mission or who serve as members of the Foreign Service, in accordance with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the South African White Paper on the Rights of Persons with Disabilities (WPRPD). This directive may be included in codes to be called the Foreign Service Administration Manual and the Code of Conduct for the Foreign Service or any other code that may be adopted. She said that there was also another proposal of a new addition: Capacity building and Training in section 6. (1) The Diplomatic Academy, under the control and management of the Department, is responsible for— (a) providing training, or causing training to be provided to employees and to members of the Foreign Service in a format or means that will enable persons with disabilities to readily access learning.

Discussion

Mr Radebe asked if NSG had any interactions with DIRCO on the matter that was flagged especially the accommodation of disabled people. The input that was made by NSG was important as there was a government policy that was meant to accommodate people with disabilities. There were indications that National Health Education and Allied Workers Union (NEHAWU) opposed the input that was made by NSG.

Mr Lekota wanted to know about the overall percentage of people living with disabilities in the country so that whatever determination was made was guided by the number of people with disabilities. What was the percentage of people with disabilities who were in tertiary institutions including technikons? He said that there was no point in targeting employing disabled people when there was no awareness of the overall number of disabled people in tertiary institutions. What were the interdepartmental programmes in place to reach out to disabled people?

Ms Raphuti wanted to know whether NSG was aligned to the Public Service. Were there no duplications in the courses that were being offered in the school? Were the courses offered by NSG internationally recognised? It had to be highlighted that any public servant in the country should have basic knowledge on governance and ways to provide service to the people including answering calls as this was an important public service to the people. What was the exact role of NSG in the broader scheme of public service?

Ms Kenye said that there were many challenges faced by disabled people and therefore it was important that NSG was able to bring this up. It was unclear if there were any disabled lecturers and these institutions of higher learning to assist disabled students.

Ms Neethling responded that NSG worked with DIRCO in the past and therefore there was always a good relationship between the two. NSG was tasked with training of public servants on leadership and there were different modules that included project management. There was a deep training on various courses and there was a management stream where there were courses focusing on leadership. Any person could be trained as a public servant although sectorial training had specific courses for public servants. She said that there were more than 1 million people with disabilities in the country with KwaZulu-Natal having the highest number of people with disabilities according to 2011 Census. There was no readily available number of people with disabilities in tertiary institutions, but this was information that could be provided. There could be a rewording of some of the words in the Bill.

The Chairperson said it would be important for the Committee to be provided with detailed information as to whether NSG was doing any assessment on the extent to which the buildings abroad were not friendly towards disabled people.

The meeting was adjourned.