Foreign Service Bill: input from DPSA, Department of Public Works & Department of Home Affairs

Meeting report

Department of Public Works: Input

MrJeremy Cronin, Deputy Minister: Department of Public Works (DPW), pointed out that in Section Two, before the Public Finance Management Act (PFMA) of 1999, the DPW had been the final authority for the function and administration of South Africa’s foreign missions, but in 1999 the custodial function of the country’s foreign missions had been handed over to the Department of International Relations and Cooperation (DIRCO).

He referred to Section 3.1, and explained the issues that his department had with Clause 8 of the Foreign Service Bill. He said that the Ministers of DIRCO and the Department of Public Service and Administration (DPSA) could not be placed outside the Government Immovable Asset Management Act (GIAMA) of 2007, and this bill would place them outside of their current mandate and jurisdiction. The DPW had a problem with this aspect.

On Section 3.4, Mr Cronin said that the word “vest” was wrongly used, because it implied ownership. This issue was further entrenched in Section 3.7, which stated that ownership was given to the Minister of DIRCO, and this was unconstitutional. He explained that these properties should be placed in the Department’s care in a custodial function, not an ownership function.

The DPW had further concerns with the wording in Section 3.9, which stated that the Minister of DIRCO had the power to “dispose, lease, or rent” properties outside or inside the country. He acknowledged that outside the country fells under DIRCO’s mandate, and his Department did not dispute this fact. However, he argued that inside the country that jurisdiction fells within the mandate of DPW, and Section 3.9 would expand DIRCO’s power into the DPW’s mandate. This would lead to an unnecessary overlapping and duplication of custodial functions. The DPSA did not have a problem with DIRCO’s mandated power outside the country, but with the power this bill would give DIRCO inside the country.

Discussion

Ms C Dudley (ACDP) said that Mr Cronin’s comments and concerns on the Foreign Service Bill were clear, and seemed to make sense. She asked for clarification on whether the departments -- the DPW, DPSA and DIRCO -- had collaborated beforehand, saying that the technical issues could have been handled by these departments before the bill needed to come before a Parliamentary committee.

Mr S Mokgalapa (DA) said that the Deputy Minister had done a good job of clarifying the DPSA’s problem with the bill. He said that the issues that the DPSA had with the bill were very technical, but nonetheless were important details and issues. The concerns of the DPW were clear and straightforward. He agreed with Mr Cronin that the words “notwithstanding” and “vesting” contradicted one another in the way they were used in the bill.

Ms D Raphuti (ANC) said that in the GIAMA, custodianship lay with the current specific governmental entities, and the laws laid out in the Foreign Service Bill would contradict the GIAMA.

The Chairperson thanked the delegation and Mr Cronin for bringing these issues to light. He said that the bill had come from the Cabinet, where all of the ministers were sitting together. He questioned whether there had been no prior engagement between the DPW and DIRCO ministers and their respective departments, and if not, why not.

He said that there were the additional issues pertaining to a lack of clarity on how certain responsibilities would be carried out, and by which department. He argued that if the wording of “dispose, lease, or rent” left the bill open to interpretation on exactly which responsibilities should be carried out by which department, and that the wording had to be made more specific.

There was an issue around the chancelleries at foreign missions. These had been built by government and were owned by government, but he asked for clarification on whether custodianship was handled by DIRCO or by the DPW.

Mr Cronin agreed with Ms Dudley that something had gone wrong in the process of drafting the bill. He said that one of the issues was that many of the bills were written in Deputy General clusters and Cabinet committees. However, the clusters and Cabinet committees that the DPW were involved in were not the same as those that the DIRCO was involved in, and therefore there was no engagement when there were bills or issues that affected both departments. These issues were being brought to Parliament because the legislative body had the power to make the final decisions on the bill.

On the issue of custodianship and vesting, Mr Cronin said that vesting meant ownership, and custodianship meant that the specific department in question was responsible for taking care of that property, but it was still owned by the national government of South Africa. For example, the national government of South Africa owned the chancelleries.

Mr Cronin explained that in the 2007 GIAMA, the full life-cycle of a building was described, as far as the Department’s custodial function was concerned. As laid out in GIAMA, the DIRCO could dispose of a building, but because it was not owned by that department, the funds would go into the National Revenue Fund. This applies to the DPW when it disposed of a property inside the country, as DIRCO did when disposing of property outside the country.

Mr Cronin said that the Chairperson was correct, that the disposal of a building needed to be governed by law, with the law in question being the GIAMA. If there was ambiguity in the law, as could happen with Foreign Service Bill, the Ministers could potentially be exposed to scandal.

The Chairperson said that the Ministers of the DPW and DIRCO would meet to discuss these technical issues in the bill, and that afterwards the Committee would call both departments back for another presentation. DIRCO was supposed to have been represented at this meeting.

Mr Cronin agreed, and said that he was quite surprised that there were no DIRCO representatives present. He concluded by thanking the Committee, and said that his department was more than happy to return for another meeting.

The Chairperson thanked the Deputy Minister, and released him and his delegation.

Department of Home Affairs: Input delayed

The Chairperson welcomed the delegation from the Department of Home Affairs (DHA), but said that the Deputy Minister had said she would be in attendance, but had not arrived yet.

Ms Nonzame Mnyaka, Acting Chief Director: DHA, asked for the Department’s input on the Foreign Service Bill to be withdrawn, because its inputs had not been officially approved by the Minister of Home Affairs. She asked that once the inputs had been approved, that another meeting be scheduled.

The Chairperson asked for clarification on the main issues, and if the issue was a lack of engagement from within the Department.

Ms Mnyaka said that the main issue was a lack of internal communication on the inputs, and once those due diligence steps were taken, the DHA would like to return for another meeting.

Ms Raphuti agreed that this was an acceptable and necessary step, and that she was amenable to another meeting at a later date.

Mr Mokgalapa said that in general, fruitless and wasteful expenditure should be avoided, but in this specific instance it seemed necessary to give the DHA time for more internal engagement. He asked however, that the DHA engage with the DIRCO before returning for another meeting. The DHA should take all necessary steps to engage with the other stakeholders on this bill, as the concerns of the DHA carried the most weight, as their department handled all issues related to consular services, and they would be most affected by the bill.

The Chairperson thanked the delegation from the DHA, and released them.

Department of Public Service and Administration: Input

Ms Renisha Naidoo, Acting Chief Director: Legal Services, Department of Public Service and Administration (DPSA), said that their delegation did have a mandate to discuss the bill. They had raised the issues with DIRCO, and the two organisations had had a dialogue. The DIRCO was cognisant of the issues being raised, but the main issue with continuing dialogue between the departments was that the bill was currently tabled in Parliament.

Ms Dudley stated that she was concerned that DIRCO was not represented, as this was detracting from the effectiveness of the meeting. She questioned whether the meeting would need to be held again with DIRCO representation.

The Chairperson said that he was satisfied with the representation in this specific meeting, and that the Committee could still hear the DPSA’s concerns with the bill.

Ms Naidoo said that in the last few weeks, the DPSA had had more engagement than in the months leading up to the bill being tabled in Parliament. She expressed her disappointment that the DPSA had not engaged with the bill more thoroughly before this point.

She explained that in Section 2, foreign service employees were already envisaged as falling under the Public Service Act, and that this new Foreign Service Act created a layer of overlap. This became problematic, because two pieces of legislation would then exist that dealt with the same category of employee.

There were additional challenges with how the bill was drafted. Under Section 3.1, there were further criteria placed on the requirements for appointment. It stated that persons hired for foreign service positions had to be citizens, which contradicted the Public Service Act, which stated that both citizens and permanent residents could be appointed to positions in the public sector. The Public Service Act had been amended as a result of a Constitutional Court ruling, which gave permanent residents the same employment hiring rights as citizens. This Foreign Service bill would therefore be at odds with that Constitutional Court ruling.

Ms Naidoo said that in Section 9, the Minister of the DPSA was allowed to prescribe conditions of appointment, which added an additional overlap to what was described in the above bills. This created challenges when clarifying the responsibilities of each department.

Discussion

Mr Mokgalapa said that Ms Naidoo was asking the Committee to throw out the bill in its entirety. He said that Parliament was not going to do that, and that many of the issues raised were merely technicalities which could have been dealt with through more thorough discussion between the departments. The bill was necessary, and a Foreign Service Bill was vital for streamlining the labour issues in foreign missions.

He asked the DPSA and DIRCO discuss this bill, and argued that it did not affect the Public Service Act. He asked that the Deputy Directors Generals and legal counsels from each department speak to one another.

Ms Raphuti commented that based on the issues being raised, it seemed the two departments had not had any substantial dialogue. This bill was very necessary for streamlining the labour process. She said that foreign service employees would be hired on the basis the Public Service Act, and that only high level officials were going to be hired under the Foreign Service Bill.

Ms Dudley said that these technical details should be finalised outside of the Committee.

The Chairperson said that the task ahead of the DPSA was to meet with the legal counsel of DIRCO so that these technical issues could be addressed. Very serious and thorough work had gone into the analysis of this bill.

He told the delegations that when they were advising on a bill that was already in Parliament, he would like to see, at the very least, a Deputy Director General present at the Committee Meetings.

The meeting was adjourned.