Sub-judice rule & Al-Bashir matter; Diplomatic Immunities and Privileges: briefing by Deputy Minister & Department of International Relations & Cooperation

Meeting report

The Chairperson stated that the Committee had requested a legal opinion from the Parliamentary Law Advisers about receiving a briefing by the Department of International Relations and Cooperation (DIRCO) on the departure of President Omar Al-Bashir of Sudan from the African Union (AU) Summit 2015.

Constitutional and Legal Services Office (CLSO) legal opinion
The Constitutional and Legal Services Office was represented by Mr Nathi Mjenxane, Parliamentary Legal Adviser, and Mr Ntuthuzelo Vanara, Senior Parliamentary Legal Adviser. Mr Mjenxane said that the issue at hand was whether the sub-judice rule applied to the Committee and whether DIRCO could brief the Committee over the matter of President Al-Bashir’s departure from the AU Summit. A written copy of the legal opinion had been given to Members. He would only highlight the salient points as Members were well aware of the background to the case. Rule 67 of the Rules of the National Assembly provided that no member shall refer to any matter on which a judicial decision was pending. The National Assembly in following the Rule was upholding the principle of separation of powers by deferring to the courts matters on which a judicial decision was pending. Committees of the National Assembly were an extension of the National Assembly and hence the Committee was bound by Rule 67.  The standard or test on the prohibition on sharing of information to protect the administration of justice would only be allowed if there was a “real risk of prejudice” as opposed to a remote possibility of interference with the administration of justice. Only then would the limitation on the basis of the sub-judice rule be justified. On perusing the papers before the court and looking at the facts of the case the CLSO was of the view that if the Committee invited DIRCO to brief it and a discussion ensued then matters may arise which could adversely affect that which was yet to be considered by the court in hearing the appeal. The latter may interfere with the proper administration of justice and the constitutional right of DIRCO to a fair appeal. He did point out that inviting DIRCO to brief the Committee would not necessarily in itself be a breach of Rule 67 nor would it in itself breach the legal principle of sub-judice. If the briefing went ahead and a member attempted to refer directly to any detail relating to the matters that were currently before the court, it could  amount to interference with the proper administration of justice and breach the constitutional right of DIRCO to a fair hearing. In order to mitigate the risk identified it was advisable for the Committee to consider postponing the briefing by DIRCO until the matters in court were concluded.

Discussion
Ms S Kalyan (DA) asked what the status of the case was at present. Apparently judgement had been reserved. She pointed out that Rule 67 had been disregarded in the House two weeks ago. She said that Minister of Science and Technology Ms Naledi Pandor had stated that if Rule 67 was irrelevant that it should be deleted from the books. She pointed out that she sat on the Rules Committee which was reviewing Rule 67. She personally felt that Rule 67 was no longer relevant.

Mr Vanara replied on the status of the judgement that had been appealed against, saying that the judgement had become suspended and was not implemented immediately.

Mr Mjenxane added that when judgement had been suspended, one could apply to have judgement applied.

Mr T Bergman (DA) noted the secondary adjudication process mentioned on page 3 of the CLSOs’ document. On page 5 there seemed to be a safe curtailing of the sub-judice rule. The issue was whether there would be a real risk of prejudice if the Committee was briefed by DIRCO about the President Al Bashir matter. Would it affect the merits of the case? The other argument was whether the work of the Committee would be hampered if the briefing did not take place.

Mr Mjenxane on whether there was a real or remote risk said it was up to the Committee to decide.

Mr S Mokgalapa (DA) said that there was nothing stopping DIRCO from briefing the Committee. He felt that the Rules Committee would nullify Rule 67. He asked if DIRCO was a respondent in the court papers. He noted that a precedent had been set when the Speaker of the House had allowed a debate on the matter to take place. That precedent had nullified Rule 67. The Committee could therefore be briefed by DIRCO.

Mr Mjenxane responded that the Minister of International Relations and Cooperation was the fifth respondent in the matter. He confirmed that DIRCO was a respondent in the matter. 

Ms O Maxon (EFF) agreed that Rule 67 had become irrelevant. The precedent had been set in the House. She felt that when the House sat there should be legal advisers present to advise on matters if need be.

Mr L Mpumlwana (ANC) said that two questions needed to be answered. The first was whether the briefing was so urgent that it had to be done before the court gave its judgement. What was the urgency? The second question was whether Rule 67 was binding. If the House had floundered against the Rule, then it did not mean that the Committee should also do so. Rule 67 at present was still binding. He felt that the Committee should wait for the court case to conclude even if DIRCO was not a party to the case.

Mr B Radebe (ANC) noted that the Rules Committee had not yet changed Rule 67. It was still binding and no new rule had replaced it. The risk was that if DIRCO briefed the Committee, then the case could be prejudiced.  He noted that Members could compare the issue with that of the Ad Hoc Committee Report in relation to the EFF but the circumstances were different as the EFF matter had not yet been placed on the court roll. The legal opinion had been presented to the Committee and the Parliamentary Legal Advisers recommended that the briefing be postponed. What if the briefing took place and the Committee made a decision that clashed with the court’s decision. The court’s decision would be binding. It was best to wait for the court’s decision.

The Chairperson said that judgement had been reserved. What did that mean?

Mr Vanara stated that a reserved judgement was where no judgement was given yet. The judgement was pending. On the relevance of Rule 67, the CLSO’s view was that in common law it was an offence to disclose on matters that were before court. The position had not changed. The rules of separation of powers were abided by. Rule 67 was still valid and applicable. There seemed to be confusion amongst Members on its application. It was not a one size fits all rule. Its implications had to be tested in each case. It could perhaps stop debate once but it did not mean that it could do so in all instances. Whether the Committee wished to be briefed and whether there would be prejudice, the CLSO could not make that decision on behalf of the Committee. The CLSO had identified the Rule, pointed out the risks and had in the end cautioned the Committee to postpone the matter until the court case was concluded. The cautionary approach had been taken. The role of the Parliamentary Law Advisers was not to be judges and to pass judgement. Their role was to make assessments and to advise accordingly.

Ms Kalyan noted that the International Criminal Court (ICC) had asked SA to give an explanation over the matter by the 5 October 2015. Would SA be in a position to meet the deadline?

The Chairperson was not sure who would answer the question as the request by the ICC was not in writing before the Committee.

Deputy Minister of International Relations and Cooperation, Llewellyn Landers, confirmed that SA did receive the request from the ICC. DIRCO would meet the request by the due date. The matter had been discussed the day before and the Office of the Chief State Law Advisers had explained that the two processes were separate and thus not sub-judice.

The Chairperson therefore concluded the matter by stating that the Committee had been advised to not proceed with DIRCO briefing until judgement had been given. Once the court processes were over the Committee would call upon DIRCO to brief the Committee.  

Diplomatic Immunities and Privileges: Department of International Relations & Cooperation briefing
Deputy Minister Llewellyn Landers said that the briefing would set out the activities of diplomats in terms of what they could or could not do. The delegation comprised of Ms Lyn de Jongh Director: Diplomatic Immunities and Privileges, Adv Riaan de Jager Principal State Law Adviser seconded to DIRCO and Professor Eddie Maloka Special Adviser to DIRCO.
 
Ms Lyn de Jongh Director: Diplomatic Immunities and Privileges, noted that diplomatic relations in SA was covered by the Diplomatic Immunities and Privileges Act,  No 37 of 2001 (amended No 35 of 2008) thus making it domestic law. The Act was commonly referred to as the DIPA. All foreign missions enjoyed the same immunities and privileges in SA. There were 330 foreign missions in SA consisting of diplomatic missions, consular missions, honorary consular missions, international organisations and one liaison office. SA had the second largest diplomatic corps after Washington which totaled over 10 000 diplomats and their families, who were regularised by state protocol in DIRCO.

A distinction needed to be made between immunity and privilege. Immunity conferred a procedural protection from the enforcement processes in the receiving state. A privilege involved some substantive exemption from the laws and regulations of the receiving state. What did diplomatic immunity mean? It meant immunity from jurisdiction in criminal cases, immunity from jurisdiction in civil and administrative cases; except matters involving private immovable property or succession where there was an executor/heir in a private capacity and also any professional/commercial activity outside a diplomatic function. Diplomatic inviolability was the term used to express the rule that no agent of the receiving state or its citizens may interfere with anyone entitled to immunities and privileges. It covered inviolability of diplomatic premises, inviolability of diplomatic property, inviolability of the diplomatic bag/pouch, inviolability of the person of a diplomat and the inviolability of personal effects of the diplomat.

The Vienna Convention on Diplomatic Relations: Article 27 provided that a diplomatic bag would not be opened or detained. It would bear visible external marks (and seal in practice). Its contents had to be for official use of the mission. South African practice was not to X-ray diplomatic bags in order to protect its integrity. Sniffer dogs would not intrude on the integrity of its contents. In practise suspect bags were reported to DIRCO. The Vienna Convention on Diplomatic Relations: Article 36 provided that the personal baggage of a diplomat would be exempt from inspection; or the inspection of suspect baggage with irregular/illegal content would be conducted in the presence of the diplomat or his/her appointed agent. This applied to for example articles prohibited by law and articles violating quarantine regulations. However as times have changed there had been a number of security incidents which had necessitated a change in this exemption. It should be noted that all Heads of State enjoyed full diplomatic immunities and were not searched in terms of international law. It did not apply to a Deputy President. It applied to Ministers of Foreign Affairs to a lesser extent that also enjoyed immunities. All other Ministers and persons were subject to search and scanning of their luggage. In terms of the Vienna Convention on Diplomatic Relations: Article 41 all diplomats had to respect the laws and regulations of the receiving state.

On diplomatic security the Vienna Convention on Diplomatic Relations also provided that the receiving state has a special duty to provide security to the diplomatic community i.e. diplomatic missions, consular posts, accredited international organisations, representatives and accredited members of their family. The South African Police Service (SAPS) did have a Diplomatic Policing Unit. It conducted regular patrols at missions and diplomatic residences.

Challenges being faced were abuses of diplomatic immunities and privileges by accredited diplomats and family members who misused their immunities. For example claiming immunities when they refused to pay rent or to pay for services. They were however compelled to adhere in terms of the Vienna Convention on Diplomatic Relations. Other challenges were the abuse of privileges when diplomats purchased items duty free and resold the items at a profit. This was a transgression of the DIPA. In terms of Section 11 of the DIPA, the rates and taxes of foreign owned properties were paid. This was a large financial responsibility. DIRCO had done a reciprocity survey and would recommend changes thereby reducing the budget in this regard.

Remedies available to the receiving state where there was abuse by a diplomat were that diplomats were bound to respect the laws of a receiving state (Article 41), there could be a request of an official apology by the sending state (Note Verbale), the sending state could be requested to waive immunity (Section 8), the sending state could be requested to recall the offending diplomat, the offending diplomat could be deregistered from accreditation and one could request his/her immediate departure or the offending diplomat could be declared a persona non grata. Where there were disputes between states and there was breach of international law, the International Court of Justice could be approached. There could also be a request of an official apology or a correction of a wrong. The more drastic action would be that the sending state may break off diplomatic relations.
           
Discussion
Ms Kalyan asked what immunities and privileges Members of Parliament had been given since they had official passports. She noted that years ago as a Pan African Parliament (PAP) member she had received a diplomatic smart card which made things easier. Why were these smart cards no longer issued? Would DIRCO consider re-issuing the smart card?

Ms de Jongh explained that official and diplomatic passports were only travel documents. It did not provide benefits of being treated differently. There should not be any distinction between official and diplomatic passports. It was news to her that PAP members no longer had smart identity cards as they should have them. They were no longer issued to the children of PAP members due to this being misused. She assured Ms Kalyan that she would do a follow up.

Ms Kalyan asked how she intended to follow up on the matter. She stated that she sat on the Rules Committee of the PAP.

Ms de Jongh responded that she was the Director responsible and would follow up with her officials. There was also a multilateral branch that could look into the matter.

Mr Bergman pointed out that the USA used their own security in foreign countries. Who had jurisdiction?
He pointed out that one often heard of ambassador recalls. What did the process entail? He asked whether it was an easy or difficult process. If there was no offence per se but there was pressure from lobbying groups what would be the basis for a recall?

Ms de Jongh said that the USA had marines to deal with internal security on foreign land. Countries had the right to bring in their own security people.

Adv de Jager noted that SA could recall an ambassador as an act of protest. SA’s ambassador to Israel had been recalled in the past as an act of protest.

Mr Mokgalapa asked whether diplomatic immunity trumped the domestic laws of SA. Pres Al-Bashir had claimed diplomatic immunity. He was concerned about locally recruited staff being abused at embassies and consulates. He asked which country’s labour laws applied. Was it the labour laws of the sending state or the receiving state?

Ms de Jongh said that DIRCO was not party to disputes regarding locally recruited people. There had to be respect for the receiving country’s state laws. SA tried to adhere to the laws of countries where its missions were located. 

Adv de Jager pointed out that people were under the impression that foreign embassies in SA formed part of the country of that embassy. South African law was still applicable to them. There was a choice in terms of which system of law would apply. It could be agreed upon by virtue of contract. On South African missions abroad, the local laws were applicable.

Mr Mokgalapa reacted that if local laws were applicable to SA’s missions abroad then why could South African law not apply at foreign embassies in SA.

Adv de Jager said that South African law could apply but it depended upon the agreement that had been entered into.

Ms Maxon pointed out that on a recent visit to the USA the use of her official passport had not made things easier. She had been treated badly. Some weeks ago she had read that tourists had been affected by crime committed by the South African Police Service (SAPS) members. She asked DIRCO to comment. She asked what DIRCO was doing where locally recruited staff were treated badly at embassies. Would labour unions be able to step in?

Ms de Jongh noted that the USA had issues with safety and security. Being treated badly was not the norm across the board. She reiterated that official passports held no benefits. Only the President of SA had full diplomatic immunity. The Minister of International Relations and Cooperation had diplomatic immunity to a lesser extent and nobody else. Everybody had to meet the entry requirements of a country even a President. The tourist attack issue fell within the realm of the SAPS. DIRCO was involved on Operation Fiela.  

Mr Radebe said that heads of state had full diplomatic immunity. Heads of state could not be arrested anywhere in the world.

Mr Mpumlwana said that Members should not bring the President Al-Bashir issue up again through a back door. He was concerned where a diplomat committed a serious crime like murder or rape. Was there no way in which law or treaties could be amended. Requesting the wrong doer’s country to waiver diplomatic immunity would not always work.    

Ms de Jongh stated that in the case of murder and rape discussions took place on the process to be followed. The diplomat could however not be arrested there and then. It was just the procedure that was followed that would be different.

Adv de Jager said that where there was immunity there was no recourse for legal action. There was the option of a civil suit if the sending country waivered immunity. It was an issue of jurisdiction but jurisdiction was difficult to prove. It was highly unlikely that the Vienna Convention would be changed. Immunity was there to shield diplomats. He explained that sovereign immunity was immunity of the state whereas diplomatic immunity was for an individual. Heads of state had full immunity. An individual who had committed a crime could be tried by his sending state law in terms of the Vienna Convention.

Ms T Kenye (ANC) said that Article 27 of the Vienna Convention did not allow diplomatic bags to be opened. She asked if a bag was reported to DIRCO, what the next step was. She asked where there was a breach of internal law, why did the sending state break diplomatic relations rather than send another official.

The Chairperson asked what recourse a private person had against a diplomat who did not pay his rent which was a breach of contract. Could the landlord take the diplomat to court or should one approach DIRCO? He asked how DIRCO would assist South Africans in such a case. What happened when a criminal ran to an embassy and stayed there? Would the SAPS be able to enter to arrest the individual?

Ms de Jongh responded that SAPS would not be able to enter an embassy unless permission was received. However if a criminal ran into an embassy, the embassy staff would throw him out. The fire brigade would be able to enter without permission in order to save lives.

Adv de Jager explained that on rent disputes, DIRCO played a mediator role. DIRCO would urge for the rent to be paid. The landlord did have the option of going to court. It was a commercial activity and so court was an option. No court order could be issued but the matter could be solved politically. He agreed that where a criminal ran into an embassy, the SAPS could not enter. The matter could be dealt with politically as well.

Mr Mpumlwana asked what recourse a person had if a breadwinner was murdered by a diplomat. How did DIRCO ensure that diplomatic bags were not misused?

Ms de Jongh explained that DIRCO worked with the SAPS Customs branch on diplomatic bags. DIRCO was aware who the culprits were. Diplomats who had misused their diplomatic bags had been kicked out. Usually their own governments would decide what action to take against them.  DIRCO knew which countries and which individuals were misusing diplomatic bags. They were being monitored. The matter would be dealt with through a process of engagement, firstly administratively and secondly politically.

Mr Mpumlwana noted that if the diplomat’s country was to take action what recourse was there for the victim’s family? Could the diplomat be sued in his own country by the victim’s family?

Mr Mokgalapa asked who was responsible where the credentials of a diplomat were false. Was it the responsibility of the sending or receiving state?

Ms de Jongh explained that the curriculum vitae of an ambassador was sent to the relevant country. SA’s Security Cluster looked at the curriculum vitae and did a check with Interpol. The curriculum vitae was sent to the whole security cluster. She referred to an example where a country wished to send its ambassador to SA. When a check with Interpol was done, it was found that the individual was wanted for rhino poaching. SA would have a choice to state that it did not approve of the person or could simply not respond. If SA did not respond then the country would informally enquire as to why there was no response. There was a process involved.

Mr Bergman asked what recourse did a receiving state have to expel an ambassador.

Adv de Jager replied that an ambassador could be expelled without a reason but there would be retaliation from the ambassador’s country.

Mr M Mncwango (IFP) asked what if the United Nations Security Council (UNSC) decided to hold a meeting at Gallagher Estate in Johannesburg. What would the status of Gallagher Estate be? If a criminal ran into Gallagher Estate would the SAPS be able to enter.

Adv de Jager replied that in such an instance the UNSC would be hosted under a host agreement. There would be a clause of inviolability. Gallagher Estate would not be United Nations territory but it would be inviolable. If a criminal entered, the SAPS could not go in but could request that the criminal be handed over.

Prof Maloka noted that there was a legal, political and security element. In existing conventions there was a whole range of political tools. All countries did security clearances. The three elements would always be together but in different measures. One would always be dominant over another.

Mr Bergman said that in the past there had been workshops offered to Members of Parliament similar to the training that diplomats went through.

The Chairperson noted that a workshop for Members of Parliament would be useful. He would speak to the Speaker's Office.

Committee Minutes
Committee Minutes dated 15 April 2015 and 17 June 2015 was adopted unamended. Committee Minutes dated 3 June 2015, 19 and 26 August 2015 were adopted as amended.

Joint Oversight Visit to KwaZulu-Natal by Peace and Stability Cluster
The Chairperson pointed out that all clusters were in agreement that there was need to visit different ports of entry throughout SA. It included harbours, airports and borders. The visit would be from the 14-18 September 2015. He asked that Members indicate to the Committee Secretary their availability for the trip.

The meeting was adjourned.