International Criminal Court ruling; Foreign Service Bill: input by Department of Defence

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International Relations

08 March 2017
Chairperson: Mr M Masano (ANC)
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Meeting Summary

Both Ministers of Justice and of International Relations were absent from the meeting which irked the Committee as they needed to account for the International Criminal Court withdrawal without seeking Parliament’s approval and repeal of the Rome Statute Act. They said that a department official could not answer political questions.

The Department of Justice made a presentation on the High Court ruling on the International Criminal Court matter. It was noted that Cabinet had accepted the Court’s ruling that procedurally the Notice of Withdrawal was invalid and would abide by the decision. The Notice of Withdrawal was withdrawn from the United Nations on 8 March 2017. Cabinet had established a technical committee to develop a Compliance Road Map and Parliament was considering an appropriate course of action.

The judgement was welcomed by opposition parties as it meant that Parliament should be at the centre of engagement and not just a rubber stamp. It gave the Committee the powers to engage properly with future treaties. As it was the non-arrest of a sitting head of state against whom the ICC had issued a warrant of arrest, there was concern that its peacekeeping role on the continent of Africa superseded national and international law obligations. The Committee was reminded that South Africa had to appear before the International Criminal Court on 1 April 2017 to answer to the case of non-arrest. Members were concerned about the repeated poor legal advice that was given to the Executive and poor interpretation of the Constitution which had led to expensive court cases which were paid for by the taxpayer.

Members noted that the decision to respect the court was a good one. ANC members felt sure that the task team would come up with ways to address the issue so that the ICC withdrawal, although delayed, would be done once the processes had been followed. The Chairperson agreed that the Committee would invite both Ministers and would want them both present at the same meeting.

The Department of Defence provided input on the Foreign Service Bill. The main concerns were the definition of an employee or member of a foreign mission that did not include Defence Attachés as they were not employed under the Public Service Finance Management Act (PFMA). They also performed somewhat different functions from other employees at a mission. The problem arising from the Defence Attachés having to report to the Mission Head had to be aligned to their reporting role directly to the Department of Defence and Military Veterans. The same applied to the recall of Defence Attachés who technically could only be recalled by DoD. That Defence Attachés were trained by the military and not at the Department of International Relations and Cooperation (DIRCO) International School was a point of discussion. Accountability for DoD assets kept at foreign missions had not been adequately addressed and various regulations needed attention. Committee members discussed whether there should be a separate section for Defence Attachés or whether completely separate legislation was required.

Meeting report

The Chairperson welcomed the officials from the Departments of Justice and Correctional Services, International Relations and Cooperation (DIRCO) and the Department of Defence and Military Veterans (DoD) as well as the media. The Chairperson welcomed Mr Brian Molefe to his first meeting as a member of the Internal Affairs and Cooperation Committee. He would also serve on the Portfolio Committee on Economic Development. They were pleased to welcome him as they would benefit from his huge intellectual capital and his experience. Written apologies were received from the Ministers of Justice and Defence.

High Court ruling on the International Criminal Court matter: briefing by Department of Justice
Acting Chief State Law Advisor, Ms Ayesha Johaar, provided a briefing on the High Court ruling on the International Criminal Court matter in the case of the Democratic Alliance v Minister of International Relations and Cooperation and Others (Case No 83145/ 2016). She was accompanied by the Deputy Director General: Legislative Development, Ms Kalayvani Pillay, and State Attorney, Dr Kobus Meier, who assisted in the State in the case, as well as Theo Hercules, the Deputy Chief State Law Advisor.

On 19 October 2016, the national executive took the decision to withdraw from the Rome Statute. A notice of withdrawal was subsequently signed by the Minister of International Relations and Cooperation, to give effect to that decision and it was deposited with the Secretary-General of the United Nations. This triggered the process for South Africa’s withdrawal. Identical letters were sent by the Minister of Justice and Correctional Services to the Speaker of the National Assembly and the Chairperson of the National Council of Provinces on 20 and 21 October 2016, advising them of Cabinet’s decision to withdraw, and the reasons for the withdrawal.

On 11 November 2016, the High Court was asked to declare the notice of withdrawal unconstitutional and invalid; as well as the Cabinet decision to withdraw from the Rome Statute and to deliver the notice to the Secretary-General of the United Nations, initiating the withdrawal.

The Court stated that section 231 of the Constitution should be the point of departure. There was no question that the Executive has the power to conduct international relations and to conclude treaties but that power was fettered by the requirement for the national executive to engage Parliament. Its implementation was procedurally irrational because Parliament had not given its approval. According to the Constitution, Parliament needed to repeal the Rome Statute Act first, before a notice of withdrawal could be sent to the United Nations. Cabinet would have to start the process again through Parliament if it wanted to withdraw from the ICC officially.

In the judgement, the North Gauteng High Court found that there was nothing patently unconstitutional as it was within the Executive’s powers to take the decision. The process was invalid as Parliament had not been informed prior to the sending of the Notice of Withdrawal to the United Nations.

Court Order
The Court ordered the Minister of International Relations and Cooperation, the Minister of Justice and Correctional Services and the President of the Republic of South Africa to revoke the notice of withdrawal and to pay the applicant’s costs, including costs of two counsel.

Way forward
Cabinet has noted the ruling of the High Court and abides by the ruling and has established a task team to determine a compliance road map.

Ms G Breytenbach (DA) thanked the presenter. She requested a copy of the document that she had been reading prior to reading from the PowerPoint presentation. It could be assumed that everyone wanted a copy. The presenter referred to technical task team that was developing a compliance road map. Did she know how far the team was and what the map contained? Ms Breytenbach requested a copy of the document. She informed the Committee that on today, the Notice of Withdrawal from the ICC was withdrawn so that portion of the Court Order had been complied with.

Mr S Mokgalapa (DA) said that the judgement was to be welcomed as it said that Parliament should be at the centre of legislation and accountability in the country and should be taken seriously. The Committee had long complained that Parliament was not properly consulted about international treaties and then was expected to assent to international treaties. This judgement said Parliament was not just a rubber stamp. It gave the Committee the powers to engage properly with future treaties. Parliament should do its job and the Executive could not do things expediently. It would be interesting to see the roadmap. He noted that such decisions were leading to much litigation and costing the government a lot of money. It was one of those classic cases. He referred the Acting Chief State Law Advisor to the argument that by leaving the ICC, the government would be free to pursue its peacemaker role on the continent without the obligation to arrest indicted heads of state. In her view, did diplomatic immunity supersede domestic law and international law obligations? The argument advanced was that government wanted to engage in peacekeeping and did not want to be tied down by the Rome Statute in terms of warrants of arrest. Is it going to work? Which one comes first? It might be a chicken and egg situation in terms of diplomatic immunity versus international law obligations. The Democratic Alliance welcomed the judgement and looked forward to engaging in the process moving forward.

Mr D Bergman (DA) agreed with his colleagues that the international treaties that they signed were often a case of ‘action and reaction’. He was sure that the Executive was going to go ahead with the ICC withdrawal after correcting their steps. He felt that at least one of the Ministers should have been present to respond to questions as it was ultimately the Ministry and the Executive that made the decision. He was worried about the legal advice given to ministers because there seemed to be a lot of court cases that were lost in terms of decisions taken at executive level and it reflect on the reputation of their legal advisors. The country has the Constitution but every judgement seems to attack the incorrect understanding, knowledge and interpretation of the Constitution and it is embarrassing for Parliament. If it was the legal department’s advice to the Ministers, they needed to interrogate the bureaucracy. But if it was the Executive itself then the Committee needed to look into how they should address the decisions taken by the Executive that ended up costing the citizens of South Africa. South Africa had been summoned to The Hague on 7 April to explain why it had allowed Sudanese President Omar al-Bashir to exit South Africa. Were they aware of that and was it on the roadmap?

The Chairperson indicated that they would have loved to have the Minister but he was off sick. The Acting Justice Minister, Faith Muthambi, was to attend but she had apologised saying that she was assigning the officials to the Committee meeting.

Ms H Hlophe (EFF) wanted clarity about the Minister’s absence because the agenda was misleading as they had been expecting the Minister.

Ms Hlophe understood that the case was the Democratic Alliance versus the Minister of International Relations and Cooperation and therefore it would be procedurally correct for the Department of International Relations and Cooperation (DIRCO) to present first as that department was accountable, although she did understand the role played by the Department of Justice. However, procedurally she felt it would have been better if the Minister of International Relations and Cooperation had come to the Committee to account.

Ms Hlophe referred to page 5 of the presentation: “Identical letters were sent by the Minister of Justice and Correctional Services (“Minister”) to the Speaker of the National Assembly and the Chairperson of the National Council of Provinces on 20 and 21 October 2016, advising them of Cabinet’s decision to withdraw, and the reasons for the withdrawal.” Did the Speaker and Chairperson reply? The Court was querying the process so her question was whether the letter was presented to Parliament? They were in that mess because Parliament did not hold the Executive accountable. On page 20, the presentation referred to a Committee. The Committee was not being given information about what was happening. One of the reasons given was that South Africa needed to withdraw from the ICC in order to play a role on the Continent. What was the alternative? If there was no alternate body, then what was the way forward? A treaty was signed in1989 but there had been no follow up. If South Africa were to withdraw from the ICC, then what was next?

Mr M Lekota (Cope) said that the Committee should be clear as to whose role it was to do what. In so far as the political head of the Department was not there, they were honestly making a serious mistake to think that they could tie down the members of the bureaucracy to the political question. When they wanted a political showdown, the bureaucrat ought not to take responsibility for political decisions. They were employed to give advice not to decide for the politicians. Why was it thought that a person paid to give legal advice should answer to political questions? Bureaucrats should not be there to defend questions that the Committee had about the ICC decision; those questions should be answered by the Minister. He found it very embarrassing that they found themselves in a position where they confronted sardines when the sharks were away. They needed the sharks there. He wanted to appeal to the Chairperson. They had been given that report and it had been competently presented but they were missing the point if they asked the employees to answer. He did not want to hold a bureaucrat to account. This report should have been given by the Minister. The person who presented was competent but not to be interrogated. The Ministers should be there to hear as they held them to account. He did not want to hold bureaucrats to account. He wanted to hold politicians to account. Why did they not arrest Omar al-Bashir? He was the Minister of Defence when people were shot in Darfur and when they returned, he had asked why Omar al-Bashir was not arrested. South Africa could not again be the polecat of the world by being seen as protecting those who were killing innocent and defenceless people in Africa.

Mr M Mncwango (IFP) agreed with Mr Lekota that they could not ask political questions to legal technocrats. He personally had a lot of questions that he had wanted to put to the Minister and was expecting answers from the Minister. He could not expect any answers from the legal experts. He welcomed the decision of the Court as it had done a great deal to restore the constitutional aspect of Parliament as far as international treaties were concerned. Very often Parliament was just side-lined on crucial matters like those. He did not understand how it had actually eluded even their legal technocrats about the simple protocol of going out in the manner in which they actually did, because Parliament had been involved in the signing of the treaty. How did they think that when they wanted out, they could simply ignore Parliament? One had to go out the door that one had gone in. They wanted to leave through the window. That was just not on. South Africa could not have its cake and eat it. If they wanted to be champions for human rights in Africa and elsewhere, then they should actually be seen to do so. They could not be a champion of human rights on the one hand and then on the other, sup and dine with people who are supreme violators of human rights. They could not do that. He wished he could have the Minister there to answer to all these questions.

The Chairperson explained that the Committee had not asked the Minister of International Relations and Cooperation to come and make a presentation on that matter. They had invited the Minister of Justice, who unfortunately was sick and was represented by Acting Justice Minister, Faith Muthambi. All the members were demanding that to get clarity on political questions and for purposes of accountability, the Minister should come there. He could arrange a meeting where both Ministers could come but for the moment, as they were dealing with legislation for a legislative process, he had only invited the other Minister. He noted that all international treaties, and they were sitting with about 14 different international treaties affecting different Committees and Departments, all of those treaties, whether they were to be ratified or are being withdrawn, should touch base with the Committee. He wanted to say to members that the Portfolio Committee on Justice should work very closely with them to the extent that it affected the work of that Committee. Could it be agreed that both Ministers should be invited to make a presentation? The Minister of International Relations because she was assigned by the Executive to deposit the Notice of Withdrawal to the ICC as a representative of South Africa and the Minister of Justice because he had to address the Assembly of Third Parties, as it were.

Ms D Raphuti (ANC) thanked the lady for the presentation and wished all women, “Happy Women’s Day”. She noted that what was important to the Committee were the uBuntu attributes but not on that day. Kindness, politeness and caring were not there as some visitors were unkind and uncaring and had displayed a bad attitude. It was impolite and uncalled for that opposition MPs referred to people as "sardines and sharks". It was uncalled for and those people should apologise.

The Chairperson said he had wanted to comment that all fish are important.

Mr B Radebe (ANC) said that the Committee was an extension of Parliament and the Rules of Parliament applied. People could not be referred to as animals, in particular referring to the Ministers as sharks. The parliamentary constitution should be respected. It should be ruled upon. On behalf of the ANC he really appreciated the presentation and the level of advice given to Cabinet not to challenge the decision of the High Court. The decision did not cast aspersions on the decision of the Executive to withdraw from the ICC. The Executive had the power to withdraw but just the process had been wrong so the advice had been good and respectable. Even if the advisors were referred to as small fishes, they were good. The decision to respect the court was good. Cabinet had already begun complying with the order and that was why South Africa had a good reputation. The Executive would come with ways to address the matter. It would be delayed but it would be done as soon as the processes had been followed. They just had to consult with stakeholders and present it to Parliament and it would be done. He appreciated the advice of the legal advisors. The Court had made a good decision and Members should support the Executive.

Ms Hlophe said that they could not support the Executive as the Executive should be accountable. They had done wrong. They did not even understand their constitutional powers. Referring to the presentation, it said that government should pay costs for the court ruling but it was the taxpayers who would pay. They were not paying out from their own pocket. Otherwise, the Committee should take the decision that they should pay from their own pockets. It should come to an end.

Mr Lekota did not want to open an English class but even in the mother tongue there are figures of speech and he had used a figure of speech. It was a figure of speech to say that people who had no powers were sardines. They were employees, they were experts and were trained to give advice. He doubted whether the officials had thought they were sardines. He explained how figures of speech should be interpreted. If his colleagues did not understand figures of speech, they could not call him out of order. He used a Sotho figure of speech as an example.

The Chairperson shared an anecdote making the point that language can have different meanings to different cultural groups. He also wanted to make the point that public representatives were not more important than officials. He asked Mr Lekota to withdraw his comments but Mr Lekota refused. A general commotion followed.

Mr Radebe complained saying that action should be taken. Mr Mokgalapa interjected saying that time was being wasted. Ms Breytenbach pointed out that the judgement did not exonerate the Executive as they were found to be wrong on several points. Mr Bergman asked that the Committee attend to business as this behaviour was embarrassing and wasting time attacking Mr Lekota for saying something perfectly acceptable was frivolous. The Chairperson said that he would take advice from the Rules Committee.

The Chairperson said that the presentation had been noted and the decision of the court had been noted. They would invite both ministers and would want them both at the same meeting. He would confer with the Chairperson of the Justice Committee to see how Parliament was going to deal with the matter.


The Chairperson explained that the Committee been receiving presentations from different departments that would be affected by the Bill, such as Home Affairs and the Department of Public Service and Administration, as well as unions, because the officials in the Foreign Service belonged to unions. It was in that context that the Department was being heard. They had had a public seminar on the Bill and were engaging departments. All the drafts presented to the Committee would be sent back to the departments for them to check that the draft contained exactly what they had said.

Department of Defence and Military Veterans input on the Foreign Service Bill
Brigadier-General Mninimzi Sizani, Defence Attaché to the UN, accompanied by Brigadier-General Thalita Mxakato, explained that the Department had engaged with DIRCO and had given inputs into the process. They would articulate those inputs. Three approaches would be used to articulate their input to the Bill.

Members of the Committee interrupted, saying that they did not have a copy of the Department’s input. After some discussion, the majority of the Committee agreed that the Department could continue but the Chairperson requested a written presentation.

Brigadier Sizani said would provide a presentation to the Committee the following day as the notes that they had with them had not been prepared as a presentation. He apologised for the omission.

He spoke on the necessity to recognise Defence diplomacy. On looking at the Bill, they felt there ought to be more recognition of Defence diplomacy and its activities as an extension of foreign policy. The facets of Defence diplomacy that cover the political as well as military strategic level ought to find expression in the Bill. Lastly, expressly recognising the defence instrument as an instrument to enhance international relations was necessary. It was something that entirely informed their understanding of the Bill.

DoD participated in defence of South Africa through, amongst others the placement of Military, Air or Naval Attachés as referred in the Geneva Convention at Republic of South Africa (RSA) diplomatic missions abroad and through secondment to internal organisations, such as the United Nations (UN) or African Union (AU). Although the 1951 Vienna Convention on Diplomatic Relations speaks of military, naval and air Attachés in Article 7, the term Defence Attaché would be used to refer to all three as described in the Vienna Convention. Such Defence Attachés formed part of the diplomatic staff in a foreign mission and their names were usually approved by the receiving state before they were appointed to the staff of the mission. These military members were appointed to the Department of Defence under the Defence Act and they were, and remained, soldiers for the duration of their diplomatic service and were subjected to military disciplinary code only for the purposes of discipline. The Defence Attachés would be selected, screened, disciplined in instances of disciplinary infractions and vetted, security screened by DoD while a command and control link was retained between DoD and the Defence Attaché through the diplomatic service.

Clauses 1 and 2
DoD had a challenge with respect to “employee” or the minimalistic definition of “employee”.

The definition of “employee” defined a person appointed by DIRCO or any other department in terms of the Public Service Act 1994. This definition excluded the Defence Attaché as they were appointed by the DoD in terms of the Defence Act and might be problematic when you read clause 12(1)(f). The narrow definition in the Bill then proceeded to qualify the initial portion by including “members of the Foreign Service as contemplated in section 2”. This provision made the definition untenable as members of the foreign service, as contemplated in clause 2 of the Bill, were not all appointed in terms of the Public Service Act of 1994 and were not part of that definition.

The definition of “member of the foreign service” refers to “a person who served as a member in the Foreign Service and who was accredited to a foreign state as contemplated in Section 2”. However, this definition was flawed in that it included the very term that it was intending to define in terms of the definition. As the definition of member of the Foreign Service makes reference to clause 2, the members of the Foreign Service could not be defined without reference to clause 2.

Clause 2(2) provided that “The Foreign Service consists of all South African Missions and of those persons who serve in a position in the South African Missions and who are accredited to a foreign State for the period of time that they hold that position, regardless of whether they are ordinarily employed by the Department or by any other national department or appointed on a contractual basis for a fixed period”.

DoD assumed that included the locally recruited person (LRP). Except for the reference to South African missions, the definition of the Foreign Service member was actually contained in the latter part of clause 2(2) and this definition included the different attachés. DoD stated that the definition of an employee could not include all members of the Foreign Service as it was qualified or limited to persons employed in terms of the Public Service Act (1994). DoD understood that employees of DoD could not be classified as members of the Foreign Service in the Foreign Service Bill but they formed an integral part of the Foreign Service if the definition of a member of a Foreign Service was read with a definition of a ‘national department’ and clause 2(2) thereof.

The term “employee” was used only twice in the Foreign Service Bill. In clause 11(2) on offences committed by any persons in the Foreign Service or employees of DIRCO and clause 12(1)(f) on secondment of employees to a foreign state or an institution or organisation outside of South Africa. The clause appeared to be deficient in both instances. The issue of secondment was so important to DoD that the question should be raised whether that term should not be defined. The inclusion of secondment persons to international organisations in the Foreign Service could also be considered in clause 2(2) of the Bill.

He said that an application clause, while not strictly necessary, might have been useful in that context. The reason was that a plain reading of the definition clauses with clause 2(2) left the reader uncertain as to what extent the Bill was applicable to the Defence Attachés as they were not included in employees, but seemed to be included as members of the Foreign Service as well as part of a South African mission. An application clause that also specifically addressed the application of the Foreign Service Bill to Military Attachés might have been helpful. An application clause could also have assisted to clarify the applicability of the Foreign Service Bill to DoD secondment to international organisations.

In terms of the Foreign Service in paragraph 2, the current reading of the Bill included Defence Attachés in clause 2(2). However, the discrepancy with relation to the definition of an employee remains and the omission of a Defence Attaché from that definition remains. The provisions of clause 2(2) did not make it clear whether personnel who were seconded to an international organisation, such as military members who were seconded to multilateral organisations or to the AU or to other states, also formed part of the foreign service. DoD sought clarity or expansion of the definition to cover the Defence Attaché and to cover secondment to a multilateral organisation.

Clause 3 Requirements for members of the foreign service
Clause 3(1) did not make provisions for the fact that Defence Attachés who were a part of the Foreign Service as per 2(2) were not subject to the requirements of DIRCO but were subject only to the processes of the DoD. The wording in 3(2) refers to the transfer of a member:
“No member of the Foreign Service may take up a position at a South African Mission until such time as he or she has met the prescribed requirements for such transfer and has obtained a security clearance as issued by a competent authority: Provided that any transfer should be approved by the Director General.”

However, for a Defence Attaché there was no need for a transfer as they would already be employed in the post of a Defence Attaché in the DoD. Also DoD approved who would be staffed in such posts and in this case, it was not the DG DIRCO who approved Defence attachés.

Clause 4 Head of Mission
DoD recognised that there existed a reporting and control relationship between the Head and the Defence Attaché. It could not be equated with the relationship with other members of the mission. The recognition of a dual reporting in terms of clear command and control between him as representing the Chief of the Defence and the Minister of Defence with an obligation to also report to the Head of Mission, DoD therefore stated that in paragraph 4, that recognition was not expressly recognised. DoD stated that the management function of the Head of Mission did not extend to the point where it superseded the control by the South African National Defence Force (SANDF) and such the statement in clause 4(1) that read all members of the Foreign Service mission was found deficient if it did not make provision for the exception with relation to the Defence attachés. The clarity with respect to the reporting channel and issues of accountability were what concerned DoD.

Clause 5 Recall of member of Foreign Service
Clause 5(1) provides that: “A member of the Foreign Service may be recalled to the Republic if, after an inquiry in the prescribed manner, such a member is found guilty of misconduct in terms of the disciplinary code applicable to that member”.

However, the DoD contended that DIRCO could not prescribe the disciplinary procedures to the Defence Attaché as that was already existing within the framework of the Defence in the form of the Military Disciplinary Code and Military Disciplinary Supplementary Measures Act. It provided for the manner of enquiry and discipline in a statutory manner already. Clause 5(3) did not make exception for Defence Attachés regarding the unique misconduct regime applicable to them whether the military offences had been committed inside or outside of South Africa.

Clause 6 Diplomatic Academy
DoD trained their own Defence Attachés and did not ordinarily undergo the training by DIRCO at the Diplomatic Academy. Clause 6 did not make provisions for this exception. The Bill had a catch-all phrase but DoD had unique training in tandem with the Diplomatic Academy in preparation for their unique role of Defence Attaché.

Clause 8: Assets
DoD noted that clause 8 referred to immovable assets only. However, movable assets purchased with the funds of DoD but maintained, disposed of and maintained by DIRCO should be addressed and they were aware that it had caused confusion in the past between both departments. It was an issue of accountability and the prescript of the Public Finance Management Act. The Accounting Officer who accounted to Parliament remained the Chief of the Defence Force whereas the Bill sought to say the DG of DIRCO.

Clause 9 Policies, codes, directives and decisions
The applicability of policies, codes, directives and decisions as indicated in paragraph 3 to Defence Attachés had not been addressed sufficiently. It was submitted that any disciplinary policies, codes or directives should not be applicable to Defence Attachés as they were already subject to the criminal jurisdiction of the Military Code as indicated previously. The applicability clause should be revisited.

Clause 10 Delegation of powers
On the issue of delegation of powers, it was intended that the DIRCO DG may delegate powers:
“10(2) The Director-General may delegate any power conferred upon or duty assigned to him or her by or under this Act to any member of the Foreign Service excluding any power or duty delegated under subsection (1)”.

DoD felt that the DG for DIRCO should be empowered to delegate any such power or duty to the Defence Attaché as that was the current situation.

Clause 11 Offences
It was not intended that the Defence Attaché be included in the scope of clause 11(1) when members of the Foreign Service were mentioned in terms of the military disciplinary system that exists for Defence Attachés by virtue of their appointment in terms of the Defence Act. The military legislation was even wide enough to encompass the DIRCO legislation, once promulgated. The term “person” was wide open to include both members of DIRCO and the foreign service. The term “employee” and “member” should be omitted from clause 11(2).

Clause 12 Regulations
Clause 12(1)(e) did not take the unique conditions of service or disciplinary regime of Defence Attachés into account. It might be desirable that Defence Attachés be subject to additional conditions of service, constitute a separate category of Foreign Service members so that they received appropriate allowances in line with other members of the Foreign Service but the intermingling of unique aspects with common aspects for Defence Attachés should be properly considered. The issue of whether Defence Attachés would be subjected to the Foreign Service dispensation could be addressed in that regulation as well.

Clause 12(1)(d) did not acknowledge that the security requirements for the Defence Attachés were not subject to the security requirements of the Minister of State Security but by Defence Intelligence this is enshrined into the national legislation by the National Security Intelligence Act, read with the General Intelligence Laws Amendment Act and captured in the Defence Act. It was advisable for that exception to be mentioned, the clarity of which was that DoD screened and provided security vetting for members of the Defence Attachés and provided countermeasures in embassies to protect Defence Attachés against foreign services but they also noted that DoD shared the role for looking at risks but had to be able to ensure that evacuation orders were in place for all South African embassies. That recognition of the role of the Minister of DoD was highlighted.

Clause 12(1)(f) related to the secondment of employees to the service of a foreign state or an international organisation. As Defence Attachés were not included in the definition of Foreign Service employees, it meant that the regulations promulgated under 12(1)(f) were not applicable to them. It was the intention of the drafters to exclude the Defence Attachés in the wider sense that military personnel were seconded but should Defence Attachés not also be subject to such a regulation?

The main concern remained the absence of a clear and workable regime to manage the Defence Attachés and that aspect coupled with the disciplinary aspect, areas that deal with allowances and remuneration, as well as the command and control regime, would be worth considering in the Foreign Service Bill.

DoD noted that they had a clear-cut role in foreign policy but with diplomacy in the Bill they ought to see the marshalling of national power potentials, one power potential being the military instrument, to bear for maximum effect in attaining the national interest.

Brigadier-General Thalita Mxakato, DOD Director for Defence Relations, wanted to emphasise two points. She agreed with proper training for their Defence Attachés foreign service. They recognised the role played by DIRCO in preparing diplomats to be on par with the regulations and provisions that should be adhered to in terms of diplomatic relations. Clause 2 also talked to certain aspects that were provided in the training by DIRCO so all that DoD needed to do was to match and incorporate areas that were of common interest. DoD took cognisance of the critical role played by DIRCO in as far as the preparation of DoD diplomats and military personnel including the protocol aspects as well as diplomatic training provided by DIRCO in Defence Force courses.

The second point dealt with clause 8. In the previous couple of years, DoD had been found wanting in accounting for assets in foreign missions. Part of what DoD did talks to huge assets at DoD’s disposal, for example in the Democratic Congo Republic (DRC) where they currently had peacekeeping missions. But to talk to the issue at hand, the assets in the missions had posed serious problems for DoD as they could not accurately account for assets and that had resulted in certain audit queries to the extent that the Auditor-General wanted to audit their assets. But in the provisions in terms of the standards of DIRCO, those assets were said to belong to DIRCO, although they were provided by funding from DoD. Those were grey areas that DoD had been trying to address in the past couple of years with DIRCO. There was a need to synchronise in terms of acquisitions and assets, properties and other related issues. DoD was of the view that it could not be dealt with in the manner in which it had been articulated in the Bill. It did not comprehensively address the challenges at hand and they might not be the only department affected.

There had been extensive consultation in the past year with other departments including the Police, Trade and Industry and DIRCO to discuss how best to align themselves on issues of commonality but to retain their mandate in areas of operation where they might have to exercise certain uniqueness as the military. The issue of security had already been mentioned but it was critical to DoD. They might be exposed to certain situations that talk to protecting South Africans where a need might arise but those issues could not be talked about in an open meeting in a mission where they discussed, for example, the deploying of special forces to evacuate South Africans in a mission. In that respect, extensive consultation was required with DIRCO and other departments before the Bill could be promulgated. There were other areas where they might require legislative processes and were engaging with DIRCO where they found themselves in a position of being unable to comply with DIRCO, for example, the PFMA and the accountability of assets.

Mr L Mpulwana (ANC) complimented Brigadier-General Sizani. He appreciated the good job but he wanted more. He suggested the DoD knew better than he the problems of controlling personnel and the sensitivity of things associated with Defence. DoD had brought forward the problems but he wanted to hear about the ideal solution as there were so many people controlled by their various Acts and having their own assets. It was difficult for a Head of Mission to be told by someone that that person was controlled by his head office. The question of employment required a proposal from DoD as to what they wanted. Did DoD want to be treated separately or did they want to be under DIRCO? If there was a need for a change of the PFMA, DoD should come up with a suggestion. On the question of recall - in a mission, it is the diplomat who is called by the head of a country as he represents the President. If he could not send the man back, even working with DoD, he would find himself in a difficult situation, He had to be involved. DoD was requested to come with positive contributions so that they could be included. What were the problems, if any, caused by DoD wanting to be treated separately? How did DoD want to be treated as far as other countries were concerned? What was the position with DIRCO now?

Mr M Maila (ANC) had heard Brigadier-General supporting the Bill and that it was a step in the right direction but several areas were problematic, especially where Military Attachés were not covered. DoD should come up with a suggestion as to how they could be covered. The issue of clause 4 on the Head of Mission where the Head of Mission is in charge but DoD said there were gaps should be clarified. What did DoD believe would be the best model for dealing with Military Attachés? On assets, the Brigadier-General indicated frustration, as did DIRCO. He asked how the Office of the Auditor-General had engaged with DoD and whether the AG went to several areas where there were personnel or whether they just verified at head office. How far had the discussions with DIRCO got?

Mr B Molefe (ANC) stated that, having had the honour of serving the country under the Defence Act and the Public Service Act, he could confirm that the two Acts were chalk and cheese. The Defence Act was very different from the PSA and he was unable to see how the Military Attachés would be able to retain the discipline required of Military Attachés with the Public Service Act. Perhaps there should be a section dealing only with Defence personnel and that they should be excluded from the terms of the Bill and there be a section that just dealt with military personnel that was aligned with all the DoD rules and regulations as well as Acts and the rules for Military Attachés. However, on hearing the presentation, he had thought that perhaps they needed a separate Bill like the one on the table but which dealt with military personnel, and as was as extensive as the Foreign Service Bill. To eliminate overlaps and contradictions, it would need to be done at the same time. On training, he agreed that DoD had its own training but perhaps as an extra measure the Attachés should also attend DIRCO training to understand the situation of the Home Affairs personnel as they have had a big misunderstanding as a result of the military doctrine. Another Bill was needed for multi-lateral deployment, peace keeping missions and other issues not dealt with in the Foreign Service Bill.

Ms Raphuti asked about the role of a Military Attaché in the foreign missions outside the country as they had their own regulations and conditions of service and disciplinary code. If the Military Attaché commits misconduct, what happened to him? What kind of assets were there in the foreign missions from the DoD side? On diplomatic training, did a soldier outside the country also need diplomatic training? Was he a diplomat or a soldier?

Mr Radebe appreciated the presentation and the fact that the role of the International Academy was recognised. He noted that as even a soldier or Military Attachés have on the DoD uniform a flag of South Africa, he always represented the country. In Congo, a certain peacekeeping force forced children to engage in bestiality so whatever one saw soldiers doing could be bad for the country. Brand SA should be protected. The Head of Mission became the head even if he were not a military man. The Military Attachés should account to him and the responsibility should lie with the Head as he/she represents the President. Perhaps it would be necessary for the Committee to engage with the Defence Force Act so that they could understand the dynamics. As far as assets were concerned, he asked whether they had engaged with the AG so that the clause on assets could be strengthened. For example, lots of assets were left behind in the Democratic Republic of Congo. How were these assets accounted for as they had been acquired with public funds from South Africa? Therefore, the Defence Act was important and the Committee needed to be taken through it.

The Chairperson noted that a memorandum between DoD and DIRCO was needed so that they understood how they were going to interact on certain matters. He also believed that a department such as DoD or State Security should not disclose certain assets when it was involved in a particular mission, for example DoD could not reveal how many landmines had been planted during a mission, but at some time, after a particular mission had been completed, the information should be disclosed so that DoD could account to the AG. Secondly, soldiers the world over do not want to be subjected to the command, instruction or discipline of the mission head so the memorandum of understanding should clarify the relationship with the Head of Mission and recommend what should happen. The Chairperson told DoD that they needed an engagement with DIRCO and they should provide the document as promised.

Brigadier-General Sizani replied that they recognised themselves as the military expression of the people of South Africa. They were the intercourse of politics, or the tool of politics and not a stand-alone. What underpinned DoD was subordination to the Constitution, and total accountability as the military expectation of South Africans was that they looked like they could protect the country. They submitted themselves to the control of the Constitution. They did not refuse to submit to the Mission Head. The concept of defence diplomacy was that of diplomacy conducted by men and women in uniform or by civilians in the defence ministry. In the military there was clarity between men in uniform and civilians in the DoD. They were the comrades of foreign policy. They wished to bring greater transparency in military spheres and closer relations with other countries in pursuit of foreign policies in peace and wartime. They did not oppose DIRCO but they supported each other as they were there to ensure that foreign policy objectives were attained through the involvement of the military. They wanted to state that at a very strategic level, defence diplomacy was the use of defence by the state to engage in diplomacy in bilateral, multi-lateral and security arrangements so they were an essential constituent of international diplomacy to further political ends fostering regional and bilateral relationships. DoD had a role to play in ensuring regional security and the Armed Forces had a foreign policy role. They represented the transition from military to the political domain because there were dimensions of diplomacy that DoD should serve. There was a military industry which should enhance and advance the causes of economic development in the country. SANDF was the army of the people so it did not have a violent role but served to meet the needs of the people of South Africa. DoD was eager to be aligned to DIRCO and other role players. The issue of assets acquired through funding by DoD required a submission to Parliament. DoD also presented at the International School. The PFMA did not meet the needs of DoD. DIRCO put DoD outside of Foreign Service but they also serve in multi-lateral institutions so they were making inputs into the Bill. In terms of the Head of Mission they were quite clear about the political intercourse and that they were subordinate to it. However, the Defence Attaché had a conflict of interest as he advanced the DoD strategic objectives regarding regional security and enhanced the foreign policy objectives so he had two bosses because of the role that he had to play. There had to be express recognition of that fact. He had to report to both the Head and the DoD, and in respect of military intelligence he has to report to DoD only. Administratively, the Head of Mission could take responsibility for the conduct of Defence Attaché but operationally DoD took responsibility for how the Defence Attaché conducted his activities as prescribed in policies and rules of DoD.

There was an existing Memorandum of Understanding between DoD and DIRCO which was currently applicable and addressed assets and accountability but the issue that needed to be addressed was in respect of who was accountable under the PFMA. The Minister had said there should be no overlapping issues. As regards issues of command and control, where there had been misconduct, Defence Attachés had been reported to Intelligence and action had been taken. DoD was in support of the One Mission concept.

The Chairperson requested the DOD representatives to express his thanks to the Minister and the Director General.

The Chairperson informed the Committee that in various SONAs over the years, South Africa had pledged solidarity with various countries such as Cuba. One of these countries was Western Sahara which is the only colonised country in Africa. The Deputy Minister of International Relations and Cooperation is giving a public lecture on Western Sahara at 10am on Wednesday 15 March and invitation had been sent.

The meeting was adjourned.


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