Foreign Service Bill: Department response to submissions

Meeting report

The Committee held a caucus meeting prior to the meeting to discuss the absence of the Minister. The Members decided to accept her apology as she had to make three presentations to the Cabinet at short notice. They continued with the meeting but insisted that she find time to be present while the bill was being processed by the Committee.

Foreign Service Bill: Salient issues

The Chairperson said that the following day’s meeting would consider the Public Service Bill clause by clause. After that, a letter would be written to insist that the Committee make a visit to properties outside the country so that the Committee could formulate a position when they came to deal with clause 8, and be able to mediate between the positions of the Department of Public Works (DPW) and the Department of International Relations and Cooperation (DIRCO).

Ms Tanya Steenkamp, DIRCO law advisor, said this was the first legislation before the Committee, and gave a brief recap of the consultation on the Bill which had started in 2010, and the methodology used to address the Committee’s issues as raised in the Committee’s report. The salient issues that were identified were:

• which legislation prevailed -- the Foreign Service Bill or the Public Service Act -- in cases of conflict;
• who had authority to dispose of immovable assets;
• the concept of “recall,” as used in public international law;
• the question of non-career diplomats being appointed as Heads of Mission (HOM), including the question of gender balance in the appointments;
• provision for stakeholder consultation on the promulgation of regulations;
• the question of whether officials seconded to international organisations were covered by the Bill;
• the inclusion of a provision providing for DIRCO to deposit money collected on behalf of partner departments directly into the National Revenue Fund;
• the oversight role of the Portfolio Committee.

She then moved on to speak to DIRCO’s responses.

On the objective of the Bill -- to create an administrative and management framework: a single Foreign Service -- DIRCO proposed the addition of a clause to avoid conflict where there was duplication of powers, namely,

“(1) Subject to the provisions of this Act, the conditions of service of members of the Foreign Service must be governed by the law governing that employee’s conditions of service.

(2) Where this Act conflicts with provisions of the Public Service Act, 1994, or any other legislation, and it is not possible to read the conflicting provisions as complrmentary to one another, this Act shall prevail.”

DIRCO proposed including the following text on consultation in clause 12, on the variation of conditions of service for employees deployed to foreign missions: “The Minister may make regulations after consultation with any other relevant national department”

In Clause 1, where there had been a request to broaden the definition of “employee” to include locally recruited personnel (LRPs), DIRCO said that LRP’s could not be included in the definition as LRPs were regulated by the legislation of the country where they were appointed. They were not subject to South African labour legislation. They could be regulated in more detail in the regulations.

The Chairperson said that there was a legal conundrum, in that an LRP might commit an offence in a SA embassy which was regarded as being part of South Africa, yet would be subject to the legal laws of the overseas country. In addition, it would be difficult to manage contracts of people in a number of different countries, all with different labour laws.

Ms Steenkamp said DIRCO had no objection to the proposal to include reference to section 84 in the definition of Heads of Mission in Clause 1.

Mr S Mokgalapa (DA) asked if this included ambassadors to the World Trade Organisation (WTO) and the United Nations (UN).

Ms Steenkamp replied that it referred to officials who attended meetings at international organisations or who were seconded to organisations like the WTO, but who were not necessarily ambassadors.

The Chairperson, referring to DIRCO’s comment that the Bill referred to foreign policy which encapsulated the national interest, asked whether the wording captured the idea that national interest came first and dictated foreign policy.

Ms Lineo Mosala, Committee Content Adviser, said ambassadors also represented South Africa in international organisations like the African Union or the UN as representatives, so perhaps both needed to be provided for.

Adv Simelane, legal advisor to DIRCO, said that the Foreign Service was for officials of government, governed by the Public Service Act (PSA). If the officials were not government officials, they would not fall into that category unless one was contracted to represent South Africa for a period of time. He said Prof Van Wyk could have been referring to judges at the Hague, for example, and one needed to think how these types of people were accommodated. Another category were officials who were permanently employed in organisations based on political interaction. He said envoys were contracted for a specific time period.

Ms D Raphuti (ANC) asked if attaches were public servants.

Mr Mokgalapa asked for clarity on who and how attaches and envoys were regulated.

Adv J de Wet, Chief State Law Advisor, DIRCO, said attaché was a designation for people sent abroad and had a defined focus like, for example, a defence attaché. They were also part of the foreign service and regulated by the Bill. Envoys performed a special task and normally resided in South Africa. They were regulated by the Diplomatic Immunities and Privileges Act. The Bill could add clauses to provide for instances mentioned by Adv Simelane where people were placed in organisations, but it was not a secondment.

Ms Mosala said that the Committee had said that SA should fulfil its quotas at different levels, and this was an opportune time to make regulations for that.

Adv Simelane used the example of the Border Management Authority (BMA) at Beit Bridge border post, where there were officials from a number of departments working together in one building. The question was who governed there. The Foreign Service Bill sought to say that anyone representing the Republic had to report to the HoM, even if they were not from DIRCO.

Ms D Raphuti (ANC) agreed, and said that DIRCO would be dealing with issues of accountability.

The Chairperson said the BMA would be invited to make a presentation in the following term.

Ms Steenkamp continued with her presentation, moving to the definition of support services. DIRCO proposed new text for clause 2(3)(d): “render consular services to South African citizens in distress abroad and consular notarial services in line with the Guidelines for the Provision of Consular Services.”

The Chairperson asked how one knew whether LRPs were not gathering intelligence.

A Department official, Mr Madala, said that standard protocol was that a state security officials vetted LRPs.

Ms Mosala said that LRPs also received a security clearance from the local police of the country.

Ms Steenkamp said it was also a question of how the transferred staff dealt with information, and how much and what kind of information was shared with LRPs.

Ms Mosala said that the Committee had heard during the Canada oversight visit, that LRPs were not allowed alone in offices.

Ms T Kenye (ANC) asked if DIRCO had a master plan for security.

Ms Steenkamp continued her presentation. On the requirements for members of the Foreign Service to be

permanent residents and not only citizens, DIRCO said that the nationality requirement was not a requirement for employment in DIRCO, but rather a requirement for becoming a member of the Foreign Service and being posted abroad. 

Mr Mokgalapa asked if a declaration of financial interest was part of the security clearance.

Ms Steenkamp said it was independent, and that all officials from a certain level had to declare their financial interests annually.

Mr Mokgalapa asked if this included ambassadors.

Ms Mosala said it would include ambassadors, but asked if it included contracted ambassadors.

Adv De Wet said that the contract of contracted ambassadors provided that the PSA regulations were applicable, and consequently the financial declaration of interest had to be submitted.

On the submission on Clause 3(2), that the bill should clarify that partner departments would still be the ones to identify officials to be transferred to missions, and that DIRCO approve them for transfer, Ms Steenkamp said that there was agreement that partner departments would identify people, but that the DIRCO Director General (DG) needed to approve and sign off on the transfer.

The Chairperson said that when drafting the regulations, a stipulated time period for the application to be approved prior to the transfer should be included, to protect the DG from receiving overnight transfer requests.  

On political appointees to ambassadorships, Ms Steenkamp said the appointments were a Presidential prerogative, but there were prescribed requirements, like being a South African national. There had been a submission that the Minister, in addition to the DG, appoint HoMs. DIRCO said that the DG, as the accounting officer of DIRCO, was the official mandated to give direction to HoMs, and that such direction would be based on the instructions from the Minister to the DG.

Tthe Chairperson noted Ambassador Moloi’s submission that the HoMs should be career-oriented, professional and non-partisan, and that the issue of political appointees at HoM level be reconsidered,

Ms Mosala said that these were the type of issues where input would be required from the Committee and the Minister, because these were policy issues.

Adv Simelane said there would always be a foreign policy that diplomats needed to carry out and that one had to be cautious not to give more weight than necessary to the issue. There were also other criteria, such as the vetting processes. It remained the prerogative of the President to appoint, but he would be guided by the vetting processes and foreign policy itself, so these appointments were less of a concern and the issue was being over-emphasised.

On the recall of a member of the Foreign Service, Ms Steenkamp said that a distinction would be made between recall for disciplinary reasons and recall for reasons under international law. DIRCO had proposed a new addition to the Bill:

“(6)(a)    A member of the Foreign Service must be recalled to the Republic:

(i)         when the Republic ceases to have diplomatic or consular representation in the foreign state where the member was transferred;

(ii)         if the member is declared persona non grata by the state where that member was transferred; or

(iii)        at the request of the state where that member was transferred.

“(6)(b)    A member of the Foreign Service may be recalled to the Republic where such circumstances arise
            that would warrant the recall of that member in the interest of the Republic: Provided that the recall is
            reasonable and that written reasons are provided to the member.”

On Clause 6, on the Diplomatic Academy, Mr Mokgalapa asked if the South African Qualifications Authority (SAQA) was involved in diplomatic training. What was SAQA’S role?

Ms Steenkamp said SAQA did give input, and advised the Minister and the Department.

Mr Mokgalapa asked if SAQA should be made more relevant.

Ms Steenkamp said Clause 7 gave DIRCO the scope to formalise the relationship and give SAQA more visibility.

Ms Mosala said Prof Van Wyk had envisaged an academy being a separate body, with a different governance structure and with associations to universities, as was the case in Canada. The Diplomatic Academy was not a fully-fledged academy because it was based in DIRCO, and was run on a smaller scale. It was up to Members to decide whether it should be a fully-fledged academy.

Adv Simelane said that the issue was currently whether there was the funding for a fully-fledged diplomatic academy, and what Prof Van Wyk was portraying was an ideal that could be considered in the future should the financial situation of the country change. South Africa also provided a training to foreign nationals, so there was a likelihood of growth in the demand for its services.

The Chairperson said it would be a political decision of a country, to the extent that the country wished to be an important player in international affairs.

Ms Steenkamp said DIRCO would conduct all diplomatic training, and it would be compulsory for anyone posted abroad.

On clause 8: Assets, DIRCO agreed with submissions to change the heading of the clause to “Immovable Assets,” and proposed the inclusion of definitions for “acquire”, “immovable asset” and “GIAMA”. The proposed wording is:

1. Notwithstanding the provisions of section 4(1)(a) of GIAMA, the Minister is the custodian of all Immovable Assets outside the Republic acquired for use by the Foreign Service;
2. The Minister must act as caretaker of the assets under her custodianship and must acquire and manage such assets as contemplated in section 13(1) and (2) of GIAMA; 
3. Notwithstanding the provisions of sections 2(b)(i) and 13(3)(b) of GIAMA, the Minister may dispose of assets under her custodianship in accordance with this Act.

She said that the DPW accepted the first two sub-clauses, but still had issues with the third subclause.

Ms Mosala said that in relation to the last sub-clause, the DPW contended that disposal should be according to the State Land Disposal Act.

Ms Steenkamp said that the State Land Disposal Act was seen by DIRCO as not being relevant outside the borders of South Africa.

Adv De Wet said the two Ministers and DGs of DIRCO and DPW had agreed to the transfer of authority to DIRCO, but the struggle to get the right wording was at the level of the officials. There had to be regulations closely mirroring the Government Immovable Asset Management Act (GIAMA), but taking into account that property was being sold outside of South Africa, where there were different legal frameworks. 

Mr Mokgalapa said the state law advisors could work on the wording.

The Chairperson asked if GIAMA allowed for the Minister to acquire and dispose of property outside of South Africa. What was the history of acquiring and disposing of property outside the country prior to GIAMA? He said there was political consensus but not legal clarity, and perhaps GIAMA needed to be amended. Regarding the officials of the DPW, he said that since 1994, land had been acquired outside of the country, but he doubted whether DIRCO knew all the properties, as the DPW controlled the properties.

Mr D Bergman (DA) said that if it was agreed that the Minister of International Relations had the final say, it was then about checks and balances. It was not only about immovable assets, as embassies had priceless art and the wording should include a control, and not just be a blank cheque.

Ms Steenkamp said that DIRCO proposed that the heading of Clause 9: Policies, codes and directives should exclude the word ‘Policies’ and be changed to “Codes and directives”.

On clause 10: Delegation of powers, DIRCO proposed the removal of reference to section 9. The original read: “The Minister may –

b) Delegate to the Director-General any power conferred on the Minister by this Act, except the powers contemplated in sections 9 and 12; or …”

The proposed change reads: “(a) delegate to the Director-General any power conferred on the Minister by this Act, except the powers contemplated in section 12; or …”

On clause 12: Regulations, DIRCO proposed a change to allow for consultation as requested in the submissions. Clause 12 (1) read: “The Minister may make regulations regarding,” and DIRCO proposed “The Minister may make regulations after consultation with any other relevant national department.”

Ms Mosala and the State Law Advisor then addressed the process the Committee would follow in developing an A list of amendments and the B version of the Bill.

The meeting was adjourned.