Foreign Service Bill: COGTA + SARS input

Meeting report

Department of Cooperative Governance (DCOG): Support for Bill

Ms Gigi Gosnell, Chief Director, Department of Cooperative Governance (DCOG), said the Department welcomed and supported the Foreign Service Bill and its objectives to:

• Coordinate and align international relations activities between the three spheres of government;
• Regulate the foreign service benefits for all officials who were deployed abroad.

The DCOG welcomed the opportunity to be a consultative partner in “such an endeavour,” and supported the intentions of the Department of International Relations and Cooperation (DIRCO) to proactively engage across government on the content, implications and implementation platforms for the proposed Act.

Ms Gosnell identified various issues with municipalities’ role in international relations:

• There was an absence of a local government sector international relations strategy to guide municipalities in their conduct of international relations, in line with the Municipal International Relations Framework of 1999.
• Some municipal international relations activities were not informed or aligned to Provincial Growth and Development Strategies (PGDS), Integrated Development Plans (IDP) or South African foreign policy. These municipal activities brought little to no value to the municipality or the country.
• There was a risk of municipalities signing international agreements in an unregulated manner without referencing South African foreign policy protocols. This resulted in non-implementation of government’s commitments to international agreements.
• Participation of South African local government in multilateral local government forums was uncoordinated.
• Public resources were wasted by municipal officials on non-beneficial international travel and there was a lack of information on the size of delegations sent abroad.
• International travel was unregulated and unreported by some municipalities and had resulted in DIRCO and South African missions abroad experiencing challenges in managing requests for diplomatic services, including provision of safety for these delegations.

Ms Gosnell identified coordination challenges on the execution of local government international relations. There was limited international relations support for local government, a poor monitoring framework and a lack of protocols for hosting international events by municipalities. The current inter-governmental relations (IGR) forums on international relations convened by COGTA and DIRCO did not sufficiently provide strategic platforms for the alignment of provincial and municipal international relations activities with foreign policy goals and priorities.

DCOG’s recommendations on how to liaise effectively with local government and DIRCO included the following:

• DIRCO should present the Foreign Service Bill to Ministers and Members of Executive Council (MINMEC) and the President’s Coordinating Council (PCC).
• Existing IGR coordinating forums on international relations should be strengthened in line with the objects of the Foreign Service Bill.
• The DCOG should be consulted on the development of IGR coordinative mechanisms and protocols.
• DIRCO should assist COGTA in updating its 1999 Municipal International Relations Framework in collaboration with the South African Local Government Association (SALGA).

Discussion

Mr B Radebe (ANC) asked for details of the 1999 Municipal International Relations (MIR) framework, so that the Committee could provide informed oversight on municipal international relations. He referred to Article 7(1), where it was stated that “arbitration may be in the form of an arbitration clause in a contract or in the form of a separate agreement.” The word “may” was identified as problematic as it could allow the relevant Minister of DIRCO too much discretion. Instead it should read as “may or may not.” He was worried about the issue of “consultative process,” and asked if DCOG had been consulted when the Bill was formulated.

Ms Gosnell said that the issue of terminology related to “must” and “may” could be answered by a legal representative from DIRCO.

Mr S Mokgalapa (DA) said COGTA had provided detailed input. The need for the Foreign Service Bill was due to the fragmentation diplomacy in relation to different spheres of government, and diplomatic activities of different spheres of government were occurring independently and parallel to one another. The MIR should be defined more clearly. He was glad DCOG acknowledged that there was a problem. He did not see the way DCOG tried to balance the role of local government and national priorities in South African international affairs as an issue, but there may be an issue with “individual spheres” of government.

Mr M Maila (ANC) said he appreciated the presentation. There was an “issue of regulation.” DCOG had shown that “things were uncoordinated.”

Mr M Hlengwa (IFP) said DCOG had thoroughly presented the realities. There was an issue of cooperative governance and the extent to which spheres of government worked together. For example, Mr Solly Msimanga, the DA Mayor of Tshwane, had gone to visit political officials in Taiwan. He asked where the independence of municipalities was in this regard, as policies could not be imposed on municipalities.

Ms S Kalyan (DA) asked if analysis had been done to see if the three Acts that governed the DCOG had overlaps with the Foreign Service Bill. Some local government structures entered into Memorandums of Understanding (MOUs) or an agreement that may compromise the country, and asked for an example where this had happened. If the agreement, understanding or MOU had to be undone, she asked how they would go about doing it. She asked if DCOG briefs delegations with public officials who go abroad, advising officials what to do on foreign missions. She referred to dormant MOUs and asked how they would be dealt with.

Ms T Kenye (ANC) said that when one looked at the roles of the spheres of government outlined by DCOG, the fragmentation of these spheres of government had been identified as a problem. It was concerning that municipalities undertook their own international relations trips, when the national government and provincial government may not know anything about them.

Ms D Raphuti (ANC) said that DCOG was progressive and would play a meaningful role in “twinning the international relations policy.” It was important that all mayors in South Africa should be unified on the political stances taken. She emphasised that standing with the Palestinian people was the duty of South Africans, and that it was also important to support Palestine’s cause.

Mr L Mpumlwana (ANC) said that the DCOG seemed to think there was merely a relationship between DIRCO and DCOG, but one could think of other departments that liaised with DIRCO. He commended the Bill for trying to prevent multiple diplomatic stances coming out of South Africa. There should be only one South African policy. South Africa was not a federal state. Mention was also made of the issue of the Mayor of Tshwane going to Taiwan that had caused confusion on where South Africa stands. DIRCO should have the prerogative on where South African diplomatic ventures took place.

The Chairperson referred to DCOG’s recommendation that DIRCO must present the Foreign Service Bill to MINMEC and the PCC. DIRCO said they had consulted with departments, but departments had come and said they were not consulted, or there had been disagreements between DIRCO and other departments. Departments feel as if their mandate was being encroached upon. Therefore, the departmental meetings must be recorded. He forgave DIRCO if they had not consulted with MINMEC, but there was a problem if DIRCO had not consulted DCOG at all.

DCOG did not recognise its limitations. International agreements could be concluded only by the President. All these departments must be fair.

The problem of delegation sizes was a problem for the countries they were going to.

The Bill must confer the power to the Executive. Parties had the right to obtain a different viewpoint on diplomatic relations, but all diplomatic activities must align to the “national interest.” An important example mentioned was the importance of municipal and departmental interaction, such as how the Department of Trade and Industry (DTI) could consult with municipalities who were unaware of national economic policies. He referred to an example where a trade agreement for the export of timber had been signed between a mayor from Mpumalanga province and China. The DTI, or the national government, had not been aware of this agreement. He asked if mayors or delegations sent abroad were briefed by DCOG or DIRCO on what one was allowed to do on foreign missions.

The Chairperson said that there have been several twinning agreements signed between local and foreign cities and municipalities. These agreements should be reviewed. Twinning agreements should be revisited, especially because they were not consistent with the national interest.

The Chairperson asked if DCOG cooperated with SALGA. He asked for clarity on international leadership where SALGA was involved. SALGA must be assisted on international relations.

DCOG’s Response

Ms Gosnell said that a copy of the MRI was ready, and that they had brought a softcopy to the current meeting. The intergovernmental relations in this country posed a lot of “balancing act” questions. Besides the area of international relations, even in the area of service delivery DCOG had witnessed a lot of uncoordinated and fragmented actions. Inter-governmental relations in South Africa needed a chance to mature, because South Africa was a young democracy. The political leaders and technical people needed to be continuously educated on the matter of cooperative governance. If the Foreign Service Bill was enacted, it would “give peace” to intergovernmental relations, as there was currently no Act to address the issues of intergovernmental affairs and international relations as addressed in the Bill. There was nothing in the act to make the three spheres of government collaborate more. The Bill also provided useful dispute mechanisms.

Ms Gosnell responded to Ms Kalyan’s question on MOU agreements. It was important to record the MOU arrangements and informal arrangements and share the information. The DOCG should be able to analyse MOUs so that there would be more knowledge of agreements between local government and other countries through the provisions made in the Bill.

In response to Ms Kenye’s point on the role of different spheres of government, Ms Gosnell said that the IGR and MIR coordinating forum had to function. The forum meets twice a year, but maybe they should consult more. The DCOG said that their main goal was to play a more involved cooperative role with DIRCO.

In response to Ms Raphuti, Ms Gosnell said that South African ambassadors did go to Palestine to represent the country’s national interests.

Ms Gosnell said DCOG supported the Bill because it provided enabling legislation for municipalities’ international relations to be properly coordinated. Provisions of the Bill could be implemented by DCOG to provide support to local governments to align their international relations with the Bill. After DIRCO and DCOG consult further, DCOG could make sure that their roles outlined in the Bill were implemented at the provincial and local government level. DCOG had been consulted on the Bill in 2015, as the Bill had been drafted at that time. DCOG had decided to meet with other departments and various political officials to consult on matters related to the Bill.

Ms Gosnell suggested that during future IGR coordinating forums, SALGA could be invited to participate. DCOG had the capacity to potentially coordinate its own national coordinating forums with SALGA as an important partner. 

The Chairperson referred to DCOG’s recommendation, where it recommended that DIRCO present the Bill to MINMEC and the PCC. The issue was that the Bill was already before Parliament. Soon the Committee would conduct a clause by clause deliberation of the Bill, where DIRCO could present their views on the Bill.

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South African Revenue Services (SARS): Legal counsel input

Mr Mark van den Broek,  Senior Specialist: Legislative Research and Development, SARS, presented legal input on the Foreign Service Bill. SARS currently had officials stationed as attachés at the South African missions in Beijing, Brussels and Washington. Sometimes, SARS officials were also seconded to various international institutions, such as the Organization for Economic Co-operation and Development (OECD) and the World Customs Organization (WCO).

In 2015, SARS had provided input on a preliminary draft of the Foreign Service Bill at the request of the Department of International Relations and Cooperation (DIRCO).

He summarised the 2015 input, providing the following points:

• By focusing on “persons and institutions” within the ambit of the Public Service Act, the preliminary draft seemed to exclude SARS and its officials at missions abroad from the envisioned “Foreign Service”. It was therefore advised that the definitions for “employee” and “national department” may need to be expanded to provide for a public entity which, like SARS, falls outside the ambit of the Public Service Act.
• SARS wished to retain the arrangements in place with DIRCO, because SARS regarded its officials abroad and in relation to international engagements.  SARS also acknowledged negotiations that came out of bilateral and multilateral agreements in the highly technical areas of tax, customs, and related matters.

Mr Van den Broek said that the definition of “national department” seemed to retain a particular focus in the Public Service Act, but it also proposed to include SARS. He listed the following problems with the definition of “national department”:

• SARS would not fall within the proposed definition in terms of the Public Service Act.
• The proposed definition would deem SARS a “national department” even though it was not, which may cause confusion.
• There may be some circularity in the proposed definition referring to “national department” and “national government component.” Perhaps an alternate term to “national department” could be considered for the purposes of the Bill for organs of state deploying or sending officials to foreign missions.

Mr Van Den Broek said that the definition of “employee” seemed to retain a particular focus on persons appointed in terms of the Public Service Act. Furthermore, the definition of “employee” included the “members of the Foreign Service contemplated in section 2”. He pointed out the following issues with the definition of “employee”:

• SARS officials would not fall within this proposed definition in terms of the Public Service Act.
• While the proposed definition seemed to include “members of the foreign service” as a sub-set of “employee”, the remainder of the Bill seemed to use the two terms as distinctly separate concepts.
• It was not clear whether the proposed definition actually required any reference to “any other national departments in terms of the Public Service Act,” as this appeared to have the effect of including all officials from such other national departments, whether stationed domestically or abroad.
• It was not clear whether the current formulation might have the unintended consequence of excluding SARS officials who had been selected to serve abroad, but who were in training and not yet stationed abroad.

Concerning clause 12(f), Mr van Den Broek noted that the Bill sought to empower the relevant Minister to make regulations, but the Bill currently did not seem to consider “seconded persons” to be part of the envisioned “Foreign Service,” nor did it seem to seek to do so. Furthermore, SARS currently had officials seconded to international institutions and would need to appreciate the impact of this provision in this regard.

Discussion

The Chairperson asked if other countries’ revenue services had “undercover people.” Many companies evaded tax, but sometimes the information should not be public.

Mr Van den Broek responded that SARS did not do undercover work, but they did have investigators who carried out tax investigations. Customs administrations were also sent abroad, but such bodies were involved in representational issues, not foreign service issues. SARS representatives sent abroad were located within the mission.

Mr Maila said that SARS seemed to support the Bill, and the presentation had been useful. He asked if officials deployed abroad were based in “missions” or “particular institutions.” SARS’ view on removable assets was requested.

Mr Van den Broek responded that he was not aware of SARS having any removable assets. SARS was in support of the Bill.

Mr Mpumlwana asked if SARS representatives supported the notion that certain facts needed to be kept secret. The Bill did not include provisions on the protection of information. What the Bill outlined was that there could not be two “kings,” where one “king” was situated in South Africa and the other stationed abroad. When a SARS representative was outside South Africa, then the representative was directly on a foreign mission. Therefore, the representative’s movements had to be controlled and checked. He asked what exactly SARS foreign officials do during foreign missions. He also wanted to know what secrets SARS’ representatives could not reveal to the “Head of Mission,” as indicated in the Bill.

Ms Catinka Smit, Senior Specialist: Legislative Research and Development, SARS, said the crux of the matter was that the information given to SARS by taxpayers was statutory information, therefore the issue of the right to privacy was where information could be disclosed. Where exceptions to secrecy were made, this was regulated by law. For example, the Tax Administration Act did not even allow the relevant Commissioner of SARS to reveal information at his discretion. Confidential taxpayer information was highly regulated. Parliament watches SARS “like a watchdog” whenever it tried to relax the secrecy provisions. Parliament justified the protection of secrecy based on the fact that it encouraged taxpayers to voluntarily reveal information, and respected the right to privacy. SARS may disclose information in accordance with their duties related to certain organs of state, where SARS had to reveal what they had done. If SARS interacted with a high profile person in another country, SARS may think it was necessary for that person to be audited in a joint investigation. 

Ms Kenye asked for clarity on the input given to DIRCO, and if SARS’ requests had been met. Referring to the issue of SARS being included in the definition of the “national department,” she asked how SARS would prefer “national department” to be phrased. She asked how many attaches were abroad.

Mr Van den Broek responded that SARS had three attaches. Sending officials abroad was expensive, so SARS tried to manage more work domestically. There were various international instruments that SARS cooperated or consulted with. It was critical for SARS to have representatives in Washington, because the International Monetary Fund (IMF) was located there. China was another major important country for SARS to have foreign representatives, because China was South Africa’s largest trading partner. In terms of African imports, SARS officials had “regional focuses.”

In response to the issue of DIRCO, and whether SARS was satisfied with DIRCOs input, he said that SARS had provided input in 2015. In 2014, SARS had not been included the draft Bill, as it made provisions for state entities under the Public Service Act. At that point, SARS’ main input was that it could not be included on the basis of the Public Service Act.

Ms Kalyan said that attaches sent to Beijing, Brussels and Washington were presumed to fall under the category of “Head of Mission.” She asked what code of conduct these attaches had to follow. She asked, if SARS officials did not function under the Public Service Act, whether they would function as an organ of state. She asked why SARS wanted the removal of the draft text relating to DIRCO “leading, managing and coordinating the Republic’s participation in international engagements, negotiations and the conclusion of bilateral and multilateral agreements.”

Ms Smit responded that SARS had a strict code of conduct.

Mr Van den Broek responded to Ms Kalyan that SARS representatives sent on missions had to make sure there was no fragmentation of foreign policy implementation. SARS officials’ roles were stipulated under different Acts. He said the draft text had been removed to include the role of the SARS, and added that there were various technical terminologies that DIRCO needed to readdress. 

The Chairperson said that like departments, SARS foreign officials would be deployed to centres where there was massive trade, such as Russia, China or Europe. Foreign officials engaged with foreign companies at the centres, and a major problem was that these companies could be “short changing” SARS, by not paying the necessary taxes to South Africa. SARS could not give directives to their foreign delegations on issues that had to be decided by the Executive. 

Ms C Dudley (ACDP) said it seemed as if SARS was not happy with how certain terms or phrases were worded in the clauses.

Mr Van den Broek said that SARS did not want to dictate text or potentially predetermine the drafting approach. There may be confusion over terms used in the Bill, due to how other Acts and the Constitution referred to the same terms under specific definitions.

The Chairperson said the principle objective of the Bill was to try to harmonise roles and regulations so that there was no policy fragmentation.

The meeting was adjourned.