Foreign Service Bill: input by Department of Home Affairs

Meeting report

Chairperson's opening remarks on the process
The Chairperson welcomed officials from the Department of Home Affairs (DHA), the Department of International Relations and Cooperation (DIRCO), and State Law Advisors. He noted that the input of the DHA to the Foreign Service Bill (the Bill) would be crucial because the DHA is the biggest stakeholder when it comes to the missions abroad, the number of officials abroad that are dealing with visas and immigrants and how these processes are regulated, and it would thus clearly be affected by the Bill. He asked that the DIRCO officials should note the comments, so that in the final stages it would be able to correlate and then respond to comments from various departments.

Mr S Mokgalapa (DA) asked whether, in light of the fact that senior leadership of DIRCO was present, this department might not be able to clarify any technical salient points that might be raised at the time that these were made.

Ms O Maxon (EFF) agreed, expressing her concern at the request that DIRCO should not engage, as she had thought that this would be helpful, and would give some guidance to the Committee should it be considering amending any clauses in the Bill. There were a number of departments still to engage on the Bill and she thought that engagement might help to move the process along.

The Chairperson, having given consideration to their comments, then decided that the DHA will present their input on the Bill, and that DIRCO should still note the points, but may be asked to clarify technical points.

Foreign Service Bill (the Bill): Department of Home Affairs input
Mr Mkuseli Apleni, Director General, Department of Home Affairs, tendered an apology that the Minister and Deputy Minister of the Department of Home Affairs could not be present at the meeting, but highlighted that the Minister had approved the content of this presentation. He also apologised to DIRCO that because the Minister of Home Affairs had signed the letter only on 20 February, there had been no time to meet to discuss the content of this presentation in advance and clarify certain points. He noted that he would present the input clause by clause.

Clause 1
Mr Apleni noted that this clause contained the definitions. In clause 1, a definition is offered for “Diplomatic Academy”. However, clause 6(2) states that “the Diplomatic Academy may cooperate with any institution of higher learning and other experts”. His issue was that the Bill is concerned with establishing and regulating Foreign Service, and a learning academy is a separate issue and is not in line with the spirit of the Bill.

Clause 2
Mr Apleni read clause 2(d), which stated that the Foreign Service is managed and administered by the department, and to this end the department must render consular services to South African nationals in the Republic and abroad. He stated that “the department” by definition in this clause excludes any other department, but consular services is a process which includes the DHA, and not only DIRCO, because it is the DHA that administers the travel documents required for the consular services. This clause was of concern because it presupposes that DIRCO would be responsible for consular services for South African citizens, whether within or outside the Republic.

He suggested that clause 2(d) should rather refer to “coordinates consular services through issuance of civic documents  to support visas and appropriate documents to persons wishing to travel to South Africa”. He accepted that because DHA does not have a presence in every country, there would be times when the DIRCO would issue those documents on behalf of the Department of Home Affairs.

Clause 3
Clause 3 which deals with the requirement for members of foreign services. He referred to wording in clause 3(1) which referred to “except for the appointment of locally recruited personnel”. He requested that the provisions of Article 8 of the 1961 Vienna Convention be included. These would explain clearly that members of the diplomatic staff of the Mission should be in principle be persons who held the nationality of the sending state. 

He further stated that the entire clause 3(2) placed authority on DIRCO on matters that actually concerned the DHA. He therefore suggested that this clause should read “in consultation with” other departments. He reiterated his concern expressed previously that this clause was effectively giving power to DIRCO without any consultation with other departments.

Clause 4
Mr Apleni did not wish to comment on clause 4.

Clause 5
Clause 5 which dealt with the recall of a member of the Foreign Service. He stated that it was a very serious issue if an ambassador is summoned by a host country for misconduct. If this were to happen, then in order to retain diplomatic relations with that country, South Africa would need to recall that employee immediately. He explained that in a recent instance, an employee had been recalled and the matter had been referred to the Public Protector, as the employee insisted that he still received foreign allowance even though he was back in the country. For this reason, the reference to “foreign allowance”became an issue.

Mr Apleni amplified that the DHA interpreted foreign allowance as being paid only in order for an employee receiving it to sustain himself or herself in a foreign country, in addition to the salary. DHA took the view that if an employee is based in the home country, there is no reason to continue to pay a foreign allowance because the purpose of the allowance is limited to times when the employee is abroad. The issue of “foreign allowance’ is not clear in this clause and was likely to cause problems.

Clause 6
Clause 6 relates to the Diplomatic Academy. Clause 6(2), which states that the Academy, under control and management of “the department” (DIRCO) is responsible for various issues. The clause implies, again, that other departments are excluded, and this is of concern as there is a danger that the Academy may not consult the DHA.

Clause 7
This clause deals with the establishment of coordination and other mechanisms, and the main concern of DHA was that it is not specific. He stated that the “mechanisms” need to be established because it seems as though there is no process of coordination to manage foreign services abroad, and it is important to do so seeing that a mission abroad represents the whole country.

Clause 8
Clause 8 deals with assets, and Mr Apleni said that he was unsure of whether there was a specific law that grants the Minister of International Relations and Cooperation any authority to deal with ownership of assets abroad. If such a law does exists, then DHA would not have a problem with this clause. However, as far as he was aware the Minister does not in fact exercise ownership authority over assets of the state held abroad.

Clause 9
The only issue of concern to the DHA in relation to this clause was the matter of consultation; he recommended that the clause should include provisions for consultation.

Clauses 10 and 11
Mr Apleni confirmed that the DHA had no problems with clauses 10 and 11, dealing, respectively, with
delegation of powers and offences.

Clause 12
Mr Apleni repeated that the issue of consultation was an issue again, and it was important to consult specifically with the relevant stakeholders because if this is not addressed, it would raise legal issues.

Clause 13
No changes were suggested to this clause.

Revenue issues
Mr Apleni noted that DIRCO should be collecting revenue abroad on behalf of the Department of Home Affairs. Previously, this had been an issue because the revenue was reflected in both DIRCO and DHA accounts. Should DIRCO be empowered to collect alone, this would avoid duplication. He further said that DHA would engage DIRCO regarding the topic of revenue collected, along with the clarification of consular services.

Discussion
Mr Mokgalapa said the points made by the DHA were technical and salient points which he believed DIRCO could clarify. He added that the points raised had more to do with establishing synergy between the two departments and dealt with technicalities but he did not believe that the points would in any way really change the substance of the Bill.

Ms S Kalyan (DA), speaking to the issue of revenue collected for the missions, asked if Mr Apleni was suggesting that all revenue should go back to National Treasury. If so, then she wondered if it was not possible to say so specifically. She also asked what would be the view of National Treasury on that point.

Ms D Raphuti (ANC), on the issue of the diplomatic academy, was concerned that there seemed to be some suggestion that the references to the Diplomatic Academy should be removed. She argued that those who were employed outside the country are technically all diplomats and whether they are working for a specific department or not, it is still important that they should be trained at a diplomatic academy in order to become a well-rounded diplomat.

Ms C Dudley (ACDP) also commented on on the issue of the Diplomatic Academy, and said if the DHA is suggesting that there should not be reference to it in this Bill, then where else and how should that Academy be dealt with.

Mr B Radebe (ANC) commented on the input and consultation process, by suggesting that DIRCO needed to document all the issues raised by the various departments and then have a full consultation process internally, so that a fully comprehensive response could be given to the Committee in due course.

Mr L Mpumlwana (ANC) requested more detail on the distinction on what authority is given to DIRCO and to the DHA regarding the employees working abroad who are referred to in the Bill. He added that while DIRCO is responsible for those working abroad, he would like to know what would happen if a person working abroad was summoned to return to the country, and who would take that decision to recall. He requested clarification between the activities that DIRCO would fulfil and those that the DHA would fulfil, as well as any activities they would share. He highlighted that the specifying the exact activities fulfilled by both departments is crucial.

Mr Mpumlwana also supported Mr Radebe’s suggestion of DIRCO taking notes from this meeting, and consulting internally before presenting its response to the Committee.

Mr Mokgalapa agreed that since officials from both departments were present who must know their exact roles, they should express their points now if at all possible.

Ms T Kenye (ANC) also spoke to the Diplomatic Academy, and wanted to know how, if this were to be removed, staff would gain upward mobility to do their jobs.

Mr Mpumlwana reiterated his earlier suggestion of having DIRCO and the DHA consult first among themselves and added that the Committee should only be arbitrators if they disagreed on certain issues. He repeated that he would like to hear from DIRCO after its full consultation process had been completed

Ms Lineo Mosala, Content Advisor to the Committee, addressed how the meeting might proceed. The DHA had made an official submission to the Committee, and it was not up to DIRCO to give any responses in that process of the submission. The Committee’s mandate is to decide as to which issues need to be fleshed out by the two departments, so they know what issues need to be consulted on.

The Chairperson repeated his earlier point that DIRCO needed the opportunity to consult and debate the issues internally but that if there were technicalities able to be clarified now, then DIRCO should be invited whether it wished to speak to them.

Mr Radebe said that since the DHA had made a submission it was important for the Committee to engage with it, and only if there were points that could be commented on and clarified right now, should DIRCO be given the opportunity to do so.

Mr Radebe wanted to speak to clause 6, on the Diplomatic Academy. The point of the Academy was to train South Africans who would be serving in foreign nations. He did not think that the DHA had the capacity to train the officials in regard to foreign policy. In some countries such as China, there were universities dedicated to dealing with foreign services, and this is done so that diplomats have a clear understanding of the foreign policy of the countries in which they would serve. Similar platforms and facilities were not present in South Africa and he believed that the Academy, and clause 6(2), served this purpose. Whichever department staff were working for, whilst abroad or on a mission, they clearly needed to have a holistic understanding of the foreign policy of their host country.

The Chairperson questioned who would deal with security clearances for locally recruited personnel (LRPs), citing the example of a French citizen who might be designated as a driver for a diplomat, because of his acquaintance with local terrain and issues. He wondered if such clearances were the responsibility of the host country, and if so, how South Africa could check that the security clearance and certificate were correctly done and genuine. Should there be any security risk, a further question was who would withdraw that security clearance – the host country, or the country employing the LRP. He also asked how far the security clearance of South Africans covered them when they were abroad.
The Chairperson commented that there had been a suggestion that the Bill might be encroaching on the constitutional mandate of other departments, and DIRCO clearly needed to engage with and address those points.

Mr Mokgalapa asked about DHA's objections to clause 3. He asked whether the DHA was questioning the security clearance because it was the Director General of DIRCO who would be dealing with the clearance, or whether the issue was that it was a security clearance on a certain employee.

Mr Apleni clarified that the DHA, when speaking to this Committee, was responding to the invitation from the Chairperson of the Committee, and not to any letters from DIRCO. Since the Minister of DHA had been asked to submit comments to the Committee, the comments had been submitted. However, the DHA would still be willing to meet separately with DIRCO and clarify any other issues with DIRCO directly too.

On the issue of employees and citizens going abroad, he said the reason why DHA takes fingerprints at the airport is that this is also done by other countries, to be able to know of people’s whereabouts. South Africa has an Advanced Passengers Processing system so that whilst a citizen is still in her or his own country of origin, passports can be checked, but South Africa does not have a Personal Name Record (PNR). He explained that a Personal Name Record provides information when a person enters another country; such as that the person is staying at a Cape Town hotel for so many days, and when the person checks out from that hotel, where that person then goes. The DHA is trying to get to implementing such a system. At the moment, DHA is taking finger prints of foreign nationals, but would like to take finger prints of nationals also, in order to check that the person at the airport is indeed the passport holder. This would also help prevent incidents like ISIS attacks, as the Department would know exactly which and how many citizens left to go to a certain country at a certain time. However, a process like this would take time to implement. In other countries, processes like this are enforced. When done on a voluntary basis, it could cause problems.

Mr Apleni clarified that the DHA does not have a particular issue with security clearance, but its main point of concern is that the Bill does not state that there will be any consultation, and he would like some leeway for the DHA to consult on that point.

Mr Apleni answered questions on the revenue. He said that the current arrangement is that DIRCO collects the revenue and deposits it into the National Revenue Fund. However, the revenue amounts collected are not reflected in the books and financial statements of the DIRCO, but in the books of the DHA. DHA handles operational areas such as issuing of visas and Ids. However, the administration is under DIRCO. The person who sends money to the bank account is the LRP, who is appointed by DIRCO. The main concern and argument was that if there is any error or omission in this process, the DHA will be the department deemed responsible, despite the fact that another department is actually handling the operations and he did not think that this was correct. The DHA was therefore suggesting that, for the purposes of this Bill, consideration should be given to DIRCO adopting the entire responsibility for collection of the revenue, while the DHA continues with the issuance of visas, IDs and other travel documents.

Mr Apleni next clarified what he had been suggesting in regard to the Diplomatic Academy. He had not been intending to suggest that the DHA did not want to have a learning academy. However, even if DIRCO were to remain responsible for the Academy, clause 6(2) would need to be addressed. In its present form it suggested that the Academy did not need to have any consultation with other departments. He suggested that the preamble wording to clause 6 could be corrected to clarify that point. However, DHA saw the value in retaining the learning academy.

He reiterated that DHA and DIRCO will meet to discuss and clarify and certain points raised in the clauses. He added that the DHA was broadly in support of the Bill but they needed to sort out those issues raised.

The Chairperson said that in future the Committee and the departments would also need to raise and discuss the issue of the powers of the Public Protector, specifically to cater for the situation when an offence has taken place in a foreign country, and to clarify how far the Public Protector’s powers extend into those countries.

Ms Kenye was happy that the Department of Home Affairs raised the issue of PNR. She asked the Director General of the DHA to engage with DIRCO on the issue of Registration of South Africans Abroad (ROSA), and how to ensure that PNR and ROSA are not voluntary processes but are made compulsory.

Mr Radebe believed that the points made in regard to clauses 7 and 12, and the issue of consultation, were critical and reasonable. In relation to clause 8, he agreed with the DHA that whatever property is situated abroad does not “belong” to a particular Minister, because it is state property. State property remains a Public Works issue, and he agreed that in regard to this, consultation with other departments is again very critical.

Mr Mpumlwana expressed that he was impressed by the DHA’s articulation of the comments.

The Chairperson invited the Acting Director General of DIRCO to comment.

Mr Kgabo Mahoai, Acting Director General, DIRCO, thanked the Chairperson and clarified that the Department of Public Works and the Department of Public Service and Administration had already met with DIRCO in order to clarify points that were of concern to those two departments. So far, DIRCO had not had the opportunity to engage with the DHA, but he said that there were no major concerns about any of the points raised, and agreed that these were likely to be merely a matter for technical clarification, which will need to be sorted out. For example, with the issue of consular services, as raised by the DHA, he confirmed that whilst DHA handled this as an operational issue, DIRCO handled this from a legalistic viewpoint.

He asked that the State Law Advisor engage with the Committee on the point around the Public Protector.

Adv JGW de Wet, Chief State Law Advisor, DIRCO, stated that DIRCO was unhappy about the judgement in the Public Protector matter. She added that in two subsequent matters, one of which was handled in the Labour Court, it was decided that dispensation for foreign services is not payable if the person is not at their station in a foreign country, and that was, in the view of the DIRCO, a reasoned judgment.

The meeting was adjourned.