Foreign Service Bill: discussions
31 May 2018
Chairperson: Mr M Masango (ANC)
The Committee considered the responses made by Department of International Relations and Cooperation (DIRCO) to the proposals made by various stakeholders on the Foreign Service Bill.
Members accepted a proposal that ‘accountability’ and ‘professional’ be inserted in the long title of the proposed Bill; set the requirements to appoint Heads of Missions (HOMs) and officials that would be posted to foreign missions; gave inputs on the recall of officials and HOMs from foreign missions; recognised the importance of making the Diplomatic Academy a separate entity to standardise the rankings and progression in the foreign service, and resolved that attendance at the Academy was compulsory for all HOMs, whether career diplomats or political appointees. The Committee also established that DIRCO needed to engage in a Consultative Forum on International Relations that would involve intergovernmental relations through the three spheres of government.
However, deliberations on Clause 8 were not finalised because the Government Immovable Asset Management Act (GIAMA), which allowed the Minister of International Relations to be the custodian of immovable assets, contradicted the Minister’s empowerment to dispose of dilapidated immovable assets in foreign countries. The Department of Public Works (DPW) wanted to follow the State Land Act, but DIRCO had to follow the laws of the country in which the immovable asset was domiciled. Therefore a new paragraph had to be inserted to ensure that the Minister for International Relations had the right to dispose of dilapidated buildings in foreign missions.
The Committee decided that the way forward was to hold joint meetings with the DPW and conduct oversight visits on dilapidated immovable assets in Namibia during the Parliamentary recess to ensure that it made informed decisions. The oversight visit report would serve as motivation for why the State Land Disposal Act could not be followed in foreign countries, and empower the Minister for International Relations to dispose of dilapidated immovable assets based on the laws and processes used in the foreign countries. The Committee also requested that DIRCO submit a list of countries where it had dilapidated immovable assets to ensure that DIRCO followed the relevant procedures laid out by National Treasury, to avoid corrupt practices.
The Chairperson said the purpose of the meeting was to have a clause by clause discussion on the proposed Foreign Service Bill. The Bill was complex and required that all stakeholders applied their minds. He expressed concern at the non-attendance of some Members because this phase in the discussions on the Bill was critical, as it involved legislation. Their attendance would prevent situations where absent Members would say the version of the Bill was incorrect because they were not part of the process. He noted the apologies, observed that the Committee formed a quorum, and asked for Members’ comments.
Foreign Service Bill: Clause by clause discussion
Mr D Bergman (DA) reminded Members that there had been a submission to add the word ‘accountability’ in the long title of the proposed Bill.
The Chairperson read out the long title:
‘To provide for the management, administration and functioning of the Foreign
Service of the Republic of South Africa; to provide for the operational requirements
that are suitable and supportive of the operations of the Foreign Service in
a global environment; and to provide for matters incidental thereto.’
Ms Dineo Mosala, Committee Content Adviser, drew the attention of the Committee to the amendment proposed by Prof Jo-Ansie van Wyk.
The Chairperson observed that Prof Van Wyk had added the words ‘accountability and professional’ to the long title. He remarked that in the Committee’s earlier discussion, the word ‘professional’ had come up consistently. He asked Members for their comments on inserting both words.
Mr S Mokgalapa (DA) said the line of thought was clear, and he agreed that the two words ‘accountability’ and ‘professional’ could easily be inserted in the long title.
Ms D Raphuti (ANC) said both words were key words, and should be inserted in the long title.
Ms R Lesoma (ANC) also agreed with the insertion of the two words.
The Chairperson accepted the proposal and advised that the discussion phase was important but could be slow as every Member needed to understand what was being discussed, as the Committee needed to own the outcomes of the deliberations on the Bill. He asked Members to look at the definitions which had been inserted in Clause 1, as they would define what the words referred to in the Bill. He invited Members for comments on the definitions.
Clause 1 – Definitions
Mr Mokgalapa said that DIRCO had put forward an amendment under the definition of an ‘employee’.
The Chairperson asked DIRCO to comment.
Ms Tania Steenkamp, State Law Adviser: DIRCO, said a clarification had been made in the definition of ‘employee’ to avoid confusion, because DIRCO had observed that not all staff posted to missions abroad were employed under the Public Service Act. Other staff were employed as police, defence and firemen and were employed under various Acts before been posted to missions abroad.
The Chairperson reminded Members that the matter had come up in earlier meetings.
Mr Mokgalapa remarked that the key amendment was ‘or any other employee’.
Members accepted the amendment.
The Chairperson asked Members to comment on the proposed amendment ‘prescribe’.
Mr Mokgalapa said the word was used in Clause 12, and the definition gave the terms of its use.
Ms Steenkamp said the word ‘prescribe’ was used in Clause 3, and its meaning was as defined by regulation in Clause 12 and as a code in Clause 9.
The Chairperson asked DIRCO to clarify if the word ‘prescribe’ was present in Clause 9 and 12.
Ms Steenkamp said the word ‘prescribe’ was present and its use was implied in Clause 9 and 12 of the proposed Bill.
The Chairperson noted that the word ‘prescribe’ was in Clause 9.
Ms Lesoma said that DIRCO was inserting the word ‘prescribe’ and its definition to assist with the interpretation of Clause 9 and 12.
The Content Adviser said the word ‘prescribe’ had been suggested by National Treasury and the Department of Defence and Military Veterans. DIRCO had agreed to insert the word into the Bill and had brought the proposal to the notice of the Committee.
Ms T Kenye (ANC) observed that the word ‘prescribe’ was also used in Clause 12(1))g).
Members accepted the definition.
The Chairperson asked for comments on the word ‘acquire,’ proposed by Department of Public Works (DPW),
Ms Steenkamp said that the definition of the word ‘acquire’ in the Bill was the same as that in the Government Immovable Asset Management Act (GIAMA) No 19 of 2007.
The Chairperson asked for a copy of the GIAMA.
Mr Bergman asked if the asset value of the immovable assets could be incorporated, especially when a gift was given. The asset acquired could be valuable, especially if they were gifts that were given by the Queen.
Ms Kenye asked for clarity on the definition of the word ‘acquire’ as it related to immovable assets.
The Chairperson said the purpose of the discussion was to ensure that the definition of the word ‘acquire,’ as stated under Clause 1 of the proposed Bill, was consistent with the definition of the word ‘acquire’ in the GIAMA. He emphasised that Members needed to understand this, as they would own the changes made in the proposed Bill.
Ms Steenkamp said that according to the first definition of the word ‘acquire’ in the GIAMA, South Africa could not acquire immovable assets except by expropriation. The Bill dealt with immovable assets in Clause 8, but National Treasury (NT) was the custodian of movable assets which already had regulations in place. However, DIRCO was concentrating only on immovable assets.
The Chairperson noted that in DIRCO’s definition of the word ‘acquire’, the focus had shifted from immovable assets to the acceptance of gifts in the same definition. The insertion of the word ‘gifts’ made it either movable or immovable and could be valuable, as mentioned by Mr Bergman. He suggested that the definition be re-drafted to make a distinction, because a gift could be movable or immovable, and movable gifts such as paintings could be valuable
Mr Mokgalapa said this was the reason for a bone of contention, which was property. All other things that were movable were dealt with by NT. Movable gifts or assets such as a painting, a car or cows were processed through NT regulations. The one in question between DPW and DIRCO was ownership of the properties and the land which was the purview of DPW. He expressed concern about the GIAMA definition, which allowed transfer of custodianship of immovable assets between custodians but was not fully applied to in this case, where the assets referred to the foreign missions which were outside the country.
The Content Adviser remarked that when immovable assets were defined, rights were included.
The Chairperson said he understood that assets within the country were under the DPW, while assets outside the country were under DIRCO, and asked for DIRCO’s comments. The DPW did not want immovable assets outside the country to be vested under the control of the Minister of International Relations and Cooperation until the GIAMA No 19 of 2007 was amended. He had asked the Committee to discuss immovable assets because it had to make a decision on Clause 8, considering the fact that the DPW did not have expertise in dealing with immovable assets outside the country.
Ms Kenye commented that there were two Ministers involved in the contention on immovable assets outside the country, so the Committee needed to make a distinction.
The Content Adviser advised Members to delay distinguishing between the two Ministers until after they had deliberated on the definition of ‘immovable assets’ and the proposals of the DPW. This would ensure that the Committee took the appropriate decision under Clause 8.
Advocate Sandea de Wet, Chief State Law Adviser, said that DIRCO had initiated discussions on the designated authority because it wanted control of immovable assets outside the country to reside with the Minister for International Relations and Cooperation. The concern over the use of the word ‘vest’ had been addressed by redrafting Clause 8, and would be addressed when the Committee began to discuss that clause.
DIRCO’s intention through the proposed Bill was to ensure that its Minister handled construction, purchases, leases, engineering and maintenance of immovable assets outside the country in foreign missions, but it could be in consultation with the Minister of Public Works. The assumption of the Chairperson that immovable assets in the country were under the control of the Minister of Public Works, while immovable assets outside the country in foreign missions were under the control of the Minister of International Relations and Cooperation, was true. Currently, DIRCO was operating on the principle that it owned assets outside the country in foreign missions, and it had over 1 000 leases. The DPW did not have the ability to sign the leases in foreign countries, and since 1999 it had transferred this authority to DIRCO.
However, the decision to dispose of dilapidated assets still rested with the DPW, and when assets were to be disposed, the DPW took a long time to act. DIRCO had received messages that its properties in foreign countries were so dilapidated that they were bringing down the value of properties in a grand suburb. The Committee was aware of properties in foreign missions that were problematic, and DIRCO wanted the Committee to look into them because they were an embarrassment to the state. The dynamics of conducting foreign relations through a nice building and keeping the building in good condition needed to be understood. The Committee would recall the case of Namibia which was causing embarrassment to the state. DIRCO wanted to ensure that this responsibility was given to the Minister of International Relations. At Ministry and DG level, there was no challenge that the DPW had the authority on public works, but DIRCO wanted to be able to control the upkeep of buildings in foreign missions. It was therefore looking for the right word to use in drafting the proposed Bill, and required the assistance of the Committee in that regard.
The Chairperson appreciated DIRCO for giving clarity on why it wanted the Minister for International Relations and Cooperation to have control of immovable assets outside the country. Assets that were old and dilapidated had to be disposed of, especially the assets that were domiciled in Namibian foreign missions. The challenge was that DIRCO is held up by the GIAMA, and until the Foreign Service Bill was passed, it might not be able to dispose of the dilapidated buildings. He asked DIRCO to clarify if it had legally disposed of dilapidated buildings before 1994, and to state the authority it had used to dispose of the buildings.
Adv De Wet responded that in 1999, DIRCO had been able to dispose of a dilapidated property because the then Minister for International Relations and Cooperation had received approval from the Minister of Public Works in 1994 to sell a dilapidated building asset in a foreign mission. However, this had been challenged because it had been said that only the President of the Republic could give such an approval, and change the mandate from one Minister to another according to the Public Service Act. There had been an investigation into the transaction and a legal opinion had been received which stated that it was not possible. Since then, there had been no movement on that transaction. The mechanism that DIRCO used had been to write to the DPW to indicate that the matter was urgent, but there had been delays since the focus was national. The challenge was that this was wasteful, because DIRCO had properties that were standing empty but which still needed to be maintained at a cost to DIRCO, despite the fact that they were dilapidated.
Mr Mokgalapa said perhaps Members would discuss this further under Clause 8, but it might mean that a Presidential proclamation would have to be sought to address the matter. Adv De Wet had alluded to the fact that although the approval to sell the dilapidated asset in the foreign mission was given to the Minister for International Relations and Cooperation by the Minister of Public Works in good faith, the approval had been challenged when a new Minister of Public Works was appointed after 1994. Therefore the Committee could assist by seeking Presidential approval and get a Presidential proclamation on the matter, because the process was being delayed. Delays would occur due to having to wait for the DPW to amend the GIAMA before completing the processes on the proposed Bill.
Immovable assets and GIAMA
The Chairperson said another definition proposed by the DPW were the words ‘immovable assets’ and ‘GIAMA.’ The Content Adviser had informed him that DIRCO had agreed to the insertion of both words. He asked if Members agreed with the insertion of both words.
Members agreed with the insertion of both words
The Chairperson observed that the GIAMA referred to immovable assets outside the country as under the custodianship of DIRCO, but not under the control of DIRCO. He therefore asked where it was written in the proposed Bill that the control of immovable assets outside the country had been transferred to DIRCO.
The Content Adviser said the Committee could consider asset transfers when deliberating on Clause 8, because transfers were dealt with in Clause 8.
The Chairperson resolved that the Committee was satisfied with the definition
Clause 1BIS: Application (New clause)
The Chairperson asked Members to consider the insertion of a Clause proposed by the Department of Public Service and Administration (DPSA). The proposal involved the specification of which legislation would prevail during cases of conflict -- the Bill or the Public Service Act. He said that DIRCO had agreed subject to two conditions, so he asked DIRCO to clarify.
Mr Mokgalapa remarked that it would be prudent to insert the phrase ‘if there is a conflict by DPSA’ in the proposed Clause on “conflict of laws’.
Ms Lesoma commented that the proposal had been made not only by DPSA, but also the South African Revenue Service (SARS), the South African Police Service (SAPS), and the Departments of Defence (DoD) and Labour (DoL).
The Content Adviser said DPSA could not be singled out, because under the first condition given by DIRCO there were different categories of employers, as mentioned by Ms Lesoma. Therefore DIRCO had stated in the first condition that the conditions of service would be based on laws governing the employee in the parent employment (SARS, SAPS, DoD and DoL).
The Chairperson resolved that the draft would not specify the DPSA alone, but would include all regulations, codes and directives in the conditions of service governing the employee in the parent employment, as proposed by DIRCO.
Clause 2 -- Foreign Service
The Chairperson asked DIRCO if it was vital to insert the word ‘distress’ in Clause 2(3)(d), because any employee in a foreign country would go to the South African embassy when faced with any situation.
The Content Adviser said DIRCO had made the proposed amendment to state how it would provide consular services to its citizens abroad, but the Chairperson might be proposing that another word be used. She said the service was not only for employees, but for any citizen.
Ms Raphuti said the word ‘distress’ should be removed because of its meaning. A citizen of the Republic would visit the embassy, whether good or bad.
The Chairperson observed that the word ‘distress’ had been proposed by the Department of Home Affairs (DHA).
Ms Steenkamp said DIRCO agreed that the word ‘distress’ could be removed from Clause 2(3)(d).
Mr Mokgalapa asked DIRCO to clarify why it had inserted the word ‘distress’ in Clause 2(3)(d), and to confirm if the word was diplomatic.
Ms Kenye said there was no need for the word ‘distress’ to be in Clause 2(3)(d), because a citizen could visit an embassy for advice or any other reason.
Adv De Wet said the concern of the DHA had been that with the use of the phrase ‘consular service,’ DIRCO wanted to take over its function of issuing visas, but this was not so, as ‘consular service’ had a different meaning in international law. The intention of DIRCO was that it would render consular and consular national services to any citizen in a foreign country who was under distress, in line with the guidelines of the provision of consular services. The Committee was correct that the word ‘distress,’ as contained in Clause 2(3)(d), was not diplomatic. Also, DIRCO might be flexible and include ‘permanent residents’ in Clause 2(3)(d). DIRCO would undertake to redraft Clause 2(3)(d) and omit the word ‘distress.’
The Chairperson resolved that the word ‘distress’ be removed from Clause 2(3)(d)
Clause 3 -- Requirements for Members of the Foreign Service
The Chairperson said Clause 3(2) dealt with the category of people that could be employed in the current Foreign Service, but DPSA had raised a concern on the citizenship of an employee that could be posted to a foreign mission. He asked if DIRCO had introduced a new draft to address the concerns of DPSA on the nationality of employees that could be posted to foreign missions.
Ms Steenkamp said the concerns of DPSA on nationality had been addressed in the new draft, as had the concern by other national departments that officials from their departments could be posted to foreign missions, although only the DIRCO Director General (DG) could approve such postings. She informed the Committee that there was a typographical error that warranted the insertion of a Roman numeral (iii) to be inserted in Clause 3(2)(b).
The Content Adviser said DIRCO was referring to Clause 3(2), but advised the Committee that it should consider Clause 3(1) first. There were two issues the Committee needed to decide on -- whether citizens were the only category of employees that could be transferred to a foreign mission, and if the Head of Mission (HOM) should be a citizen or not -- before considering Clause 3(2)
Mr Mokgalapa remarked that DIRCO had said during the meeting of 30 May 2018 that non-citizens could not be posted to foreign missions, but could work in the country.
The Content Adviser said the decision had been made, but the Committee had to make a categorical statement in the proposed Bill.
The Chairperson said it was clear that non-nationals who had critical skills could be employed in a South African home office, but could not be posted to foreign missions.
The Content Adviser reminded the Committee that the DPSA had raised a concern, so the Committee had to make a categorical statement to address the issue.
The Chairperson resolved that non-nationals could not be posted to foreign missions, but non-nationals who had critical skills could be employed in South Africa. He asked for comments on Clause 3(2).
Mr Bergman asked for clarity on what happened to the rank and progression possibilities of an official when posted to a foreign mission, as this was not captured in Clause 3.
Ms Raphuti observed that there was a high rate of unemployment in the country, so she suggested that citizens should be prioritised to work in DIRCO, as critical skills were a prerequisite for non-nationals to work in the country. The Committee must insist that South African nationality was a requirement to work in DIRCO to ensure that citizens were employed in the Department.
The Chairperson reminded Ms Raphuti that the Committee had just agreed that nationality was not a requirement to be employed in a DIRCO home office in South Africa, but non-citizens could not be posted to work in foreign missions. A decision had been taken and the Committee had agreed, so if Ms Raphuti did not agree then the Committee would have to vote on the proposal. The Committee could not say because it wanted to solve the problem of unemployment in South Africa it would not allow the employment of a qualified non-national. All countries did selective recruitment of foreign nationals to serve their own interest if the foreign national had the critical skills it required. Countries like the USA had given citizenships to South Africans who were top scholars who had qualified through the Fulbright scholarship programme. This was a brain gain to USA and brain drain for South Africa. In the area of football, the same thing had happened, and South Africa had also recruited lecturers in the same way, so DIRCO could not be singled out and categorised as a non-employer of people based on citizenship. The only condition was that non-nationals could not represent the country in foreign missions, which was a standard in every country. He asked DIRCO to give clarity on ranks and progression possibilities when posted.
Adv De Wet said that it was correct that there were questions on ranks, and how it influenced progression possibilities when posted, so the proposed Bill would regulate it. In government, when an official was posted to foreign missions, the rankings such as assistant directors or directors did not exist, but the designations were first, second or third secretaries or a counsellor. DIRCO had to tailor the rankings to equate positions in the public service with positions in the foreign missions, but what happened Is that when an official was posted abroad, the salary was paid but the official got an allowance equivalent to the standard of living in the country in which the foreign mission was domiciled, which was the cost of living allowance (COLA). Presently, when an official replaced another official, the official in the foreign mission received a salary, got an annual increment but did not get a career progression because the number of years spent in the foreign mission did not count towards promotion. The proposed Bill sought to correct this anomaly by creating a system that was tailor-made to address the discrepancy.
Mr Bergman said this was a huge source of concern, and asked if DIRCO had raised this in the proposed Bill. He also asked DIRCO to clarify if the proposed Bill was introducing something new to address this discrepancy or other discrepancies.
The Chairperson said the proposal on questions about rank and how it influences progression possibilities when posted had been raised by other stakeholders in other national departments. DIRCO had not given a response during the previous day’s meeting, but it was now coming up with the proposal just given by Adv De Wet. He asked for clarity on what happened to the COLA of an official posted out who had to return suddenly because if illness, for example, but had not completed his tour of duty.
Ms Lesoma asked as a follow-up what would happen to the job specification an official who returned after completing his tour of duty, because this had affected officials on secondment in DPSA who had returned and become surplus to requirements. There must be clarity on what happened, because it would not be fair for the official to return and become redundant.
The Chairperson asked DIRCO to clarify what happened, because it seemed as if two officials would be being paid a salary for the same job, which would affect budget funds and could be termed as ‘ghost employment’.
Adv De Wet said if an official was posted out, another official returned and relieved that official of his duties in South Africa. An official returning after completing his tour of duty could indicate his/her preference on where he/she wants to resume, but DIRCO posted officials based on positions available, taking qualifications into consideration as well. The official was re-posted within the directorate at the same level he/she had been before being posted. There were no redundancies because the rotation was constant.
Ms Lesoma asked DIRCO to confirm that it considered qualifications when it re-posted a returning official, as a highly skilled official might not meet performance standards if there was a skill mismatch in that position.
The Chairperson said his understanding was that for HOMs who were not re-posted to other foreign missions, the tour of duty was completed, but officials were re-posted to duties at the same level. He asked DIRCO to confirm this concern of Ms Lesoma, but asked for comments from other Members.
Ms Kenye asked DIRCO to state what happened to an official who returns before completing the tour of duty, especially if not on account of disciplinary measures.
The Content Adviser said Members were correct, but added that the concerns were matters of policy that the Committee could instruct DIRCO to consider. It was a concern that should be noted by DIRCO to ensure that it was captured.
The Chairperson read out DIRCO’s proposed response to the proposals made on Clause 3.
Mr Mokgalapa suggested that the Committee had to state that the administrative control for the transfer of officials to foreign missions depended on the DG of DIRCO under Clause 3.
The Chairperson said it should not be stated explicitly in Clause 3, since it was captured in the roles of the DIRCO DG.
The Content Adviser said the proposals on Clause 4 were because the other departments were of the opinion that the DIRCO DG was in control of requesting specific officials from other departments to be posted to foreign missions. DIRCO was using this Clause to address this. It would officially request for the talent needed, but it was the authority in the other departments that would send people to DIRCO. However, the DIRCO DG would be the authority who had the final approval after receiving the list from the DG of other departments.
The Chairperson said Members wanted confirmation on the DG who could approve such transfers in Clause 3(2).
The Content Adviser said it was the DIRCO DG, as captured in the definition.
Ms Kenye said it was not yet clear to her, because other Departments were involved.
The Content Adviser said DIRCO would clarify further, but Clause 3(2)(a) stated that the DG of that employee would be notified before transfer occurred. In the case of other departments which were not national departments, DIRCO needed to clarify.
The Chairperson said Clause 3(2)(a) meant the DG of the DHA, for instance, must inform the DIRCO DG in writing of officials who were being transferred.
Ms Lesoma said Ms Kenye wanted to know who would inform the DIRCO DG of a transfer when an official was not from a national department.
Adv De Wet said in this case, the DIRCO DG would sign a contract with the official involved, if not from a national department, so the approval would be in a different form than that stated here.
The Content Adviser reminded Members on the wording ‘prescribed requirements,’ which would be the requirements for officials employed in the Foreign Service, as seen in Clause 3. It should not be left open, as issues such as security clearance needed to be considered as well.
The Chairperson asked for comments.
Ms Lesoma suggested that it be accommodated in the regulations.
Clause 4 -- Head of Missions (HOMs)
The Chairperson said the ‘prescribed requirements’ would also be deliberated under HOMs, and asked Members to consider the requirements for officials employed in the Foreign Service, along with the requirements to appoint HOMs as proposed by Ambassador Francis Moloi.
Mr Mokgalapa said his comments would start from the Content Adviser’s reminder that the Committee had to speak to the ‘prescribed requirements’ for employment in foreign missions. The requirements should insert criteria that would ensure that the Foreign Service was professionalized, and should also state that probity checks must be done on citizens before being appointed. The probity checks would include undergoing security clearance, being free of disciplinary cases and being fit and proper. He remarked that the Committee had to address professionalism, despite the prerogative of the President to post employees or appoint HOMs in foreign missions, as Members had heard about the involvement of officials in drug cases in Singapore. Therefore the requirements needed to be followed before the President appointed HOMs.
Ms Lesoma said she understood the importance of probity checks, but remarked that being fit and proper was subjective. The other requirements would be under the regulations, but the three months’ paid leave for the individual must be adhered to as well.
The Chairperson said all the proposals put forward by Mr Mokgalapa and Ms Lesoma were correct, but the Committee had to decide if these requirements should be included in the Bill, as the probity checks should be carried out before appointments were made, not after. He remarked that a career diplomat would have undergone security clearance before being recruited, but could go through different Foreign Missions before a matter occurred, although the case of a non-career diplomat or political appointee might not be as distinct. The proposal by Ambassador Moloi had been given in favour of career diplomats, but the President might appoint non-career diplomats for different reasons. Career diplomats felt that the deployment of non-career diplomats was unfair because the requirements outlined might not be considered during the recruitment phase. He outlined cases where the President might appoint a career diplomat if he felt it was in the best interests of the country. The personality of a person might change, because a person might pass probity checks but behave in a different manner after receiving the approval. The only thing that was vital was that the qualification of the political appointee must be ascertained. His view was that the Committee should continue with what was presently in the Bill, but insist that political appointees needed to attend the Diplomatic Academy. Just as career diplomats had the opportunity to gain experience at the Diplomatic Academy, the political appointee could gain the same experience, but DIRCO would have to assist the Committee with the modalities of the training and state if three months would be enough for the training.
Adv De Wet said the programmes depended on the official and the foreign mission. She proposed that the Bill should address the training requirements. The time frame might be three months but it might be less, depending on the official and the foreign mission in question.
The Chairperson said there were many stringent ‘do’s and don’ts’ that the political appointee could contravene if not aware, so the political appointee needed to be trained at the Diplomatic Academy.
The Content Adviser informed Members that the attached memorandum 3.4 under the summary of the Bill gave the purpose of Clause 4. She remarked that the Committee had focused on the requirements of appointing a HOM, but DIRCO focused on the functionality of a HOM. She outlined the requirements to include nationality, probity checks, having security clearance, being free of disciplinary cases, being fit and proper, and having a knowledge of the do’s and don’ts of the country in which the mission was domiciled. DIRCO wanted the Committee to decide when a HOM could be removed, and criteria which could guide the President in appointing HOMs, because Article 84(1) of the Constitution empowered the President to carry out certain functions.
The Chairperson agreed with the requirements outlined by the Content Adviser.
The Content Adviser reminded the Committee that it had considered the gender of the HOM in earlier deliberations, as raised by the public service representative and by Members.
The Chairperson remarked that gender consideration was a policy of the country.
Ms Lesoma said people living with disabilities needed to be considered as well.
The Chairperson asked if Members were discarding professionalism, as proposed by Ambassador Moloi.
Ms Lesoma said professionalism was captured in the long title.
The Content Adviser reminded the Committee that the study tour on Canada report recommended that management training was important, because most of the problems caused in foreign missions occurred due to a lack of interpersonal relations.
Ms Lesoma said that management training could be addressed in one of the modules at the Diplomatic Academy
Mr Mokgalapa said the Committee could ensure that it was part of the modules at the Diplomatic Academy.
The Chairperson commented that a fit and proper person was assumed to have interpersonal relations.
Mr Mokgalapa observed that DIRCO had approached the Committee, saying that it needed to resolve the problem of HOMs who had not passed through the Diplomatic Academy, but needed to employ diplomacy in the way it was presented in the Bill. Since the Committee had given DIRCO guidelines, it could then redraft the Clause based on the submission of the Committee.
Mr Bergman asked if there was a way for the Committee to give DIRCO’s Diplomatic Academy the responsibility for setting the bar. The bases could be covered by saying that an HOM must have certain qualities and credentials as captured in the requirements to put in checks and balances. DIRCO must take responsibility and set a minimum bar through the curriculum set for people who passed through the Diplomatic Academy.
The Chairperson said that DIRCO had the Diplomatic Academy as a directorate, but in Canada the academy was attached to universities which enriched the research every time the modules were taken. He also suggested that DIRCO might include a recommendation on the period of training. The Committee had to list the basic requirements for taking up the post of an HOM while DIRCO fitted in the other requirements into the regulations based on their experience, as career diplomats may not have the diplomacy needed to handle missions.
Ms Lesoma said another requirement that must be included was that the HOM must have ten years’ experience as a Parliamentarian, because it was based on the assumption that the proposed HOM would have picked up some interpersonal skills during the ten years. She also asked DIRCO to confirm if the Diplomatic Academy was linked to the School of Government, aside from the link to universities.
Ms Raphuti asked DIRCO to confirm if the modules offered in the Diplomatic Academy were accredited under the National Qualifications Framework (NQF). She agreed that the Diplomatic Academy needed to be linked with universities, because it would show that the country was on the same page as other countries on issues of diplomacy and international relations.
Adv De Wet said the intention of the Bill proposed that for the first time, HOMs and officials who were transferred to Foreign Missions would be trained at the Diplomatic Academy, but DIRCO was not so bold as to include other entities because it did not have a budget. Currently, the Diplomatic Academy did not have a budget but it was SAQA-accredited and diplomats received qualifications based on the NQF. Appointed HOMs were not inclined to sit through academic lessons, so Presidential appointees did not attend the course. Presently, some appointed HOMs did not want to attend an academic training so DIRCO was seeking the help of the Committee to ensure that appointed HOMs attend the course at the Diplomatic Academy by addressing it in the proposed Bill.
The Chairperson remarked that another matter that needed to be addressed was to have a competent authority, such as the South African Qualifications Authority (SAQA), to ensure that the individual possessed the qualification he/she claimed to have. This evaluation needed to be done during the course, at the end of which the Diplomatic Academy would give a certificate.
Clause 5BIS -- Recall of a Member of Foreign Service
The Chairperson asked Members to consider the proposed amendment made by the South African Institute of International Affairs (SAIIA) that a member of the Foreign Service could be recalled only in recourse to the Labour Union legislation. DIRCO had responded that the recall should be divided into recalls due to disciplinary reasons, and recalls under international law. It had therefore proposed the insertion of paragraph (6)(a)(i)(ii)(iii) and (6)(b) to Clause 5.
Mr Bergman said that recalls could be for other reasons, such as for clarity or protests, so he was not sure that all the recalls had been captured.
The Chairperson gave clarity to all the kind of recalls, but said that his opinion was that recalls were for temporary time frames that were based on diplomatic terms. The proposal by the Department of Defence and Military Veterans (DoDMV), DHA, SAPS, and the Departments of Trade and Industry and Health, was that the recall must not be the unilateral decision of DIRCO, but must be in consultation with the sending department. DIRCO’s response had been that partner departments would be consulted, although if the recall was in terms of international law, South Africa would not object to the recall. He asked for comments.
Mr Mokgalapa said there were two types of recall -- one under international law, and a recall for disciplinary measures as seen in Clause 5. The only thing lacking was that the official that made the recall was not stated in the proposed Bill. Also, where the HOM was recalled for disciplinary matters and where the Bill waived diplomatic immunity for disciplinary cases, this was not captured.
Ms Steenkamp said it was correct that the Clause did not deal with all kinds of recall. Diplomatic immunity would not prevent disciplinary measures or criminal proceedings -- it only prevented situations where the diplomat was tried in a foreign court at the Foreign Mission. The Criminal Procedure Act provided that a person may be tried in a South African court for an offence committed in a foreign country. The Committee was also right that the official wh approved the recall had not been mentioned, and that official was the DG of DIRCO. The input of DIRCO would be that the DG of DIRCO would make the recall after due consultation with relevant stakeholders.
The Chairperson asked if this was a new amendment or new proposal, because it was not present in the original Bill.
Ms Steenkamp said it was an oversight which the Committee had brought to its notice, and DIRCO would insert it into the proposed Bill.
Ms Raphuti said the proposal of the Public Service Coordinating Bargaining Council (PSCBC), which recommended that the PSCBC provision Resolution 1 of 2003, which outlined the disciplinary process of employees in the public service, should be considered in recalls. The response by DIRCO stated that the Bill did not exclude the existing procedures, so the Committee should ensure that the recall would be done in conjunction with PSCBC procedures.
The Chairperson asked what the procedures were.
Ms Raphuti said the procedures were in the PSCBC.
The Chairperson said he understood the proposal to mean that if the official was not in the Foreign Mission at the behest of DIRCO, then the Congress of South African Trade Unions (COSATU) was saying that it must be consulted first, once the official had been recalled to South Africa.
Ms Raphuti said that in Clause 5(1), a recall happened if the official had been found guilty of misconduct in the Foreign Mission after an inquiry in the prescribed manner. In cases where the HOM did not like the official and was biased, then the decision to be recalled made by the HOM would not be fair.
Ms Kenye added that Clause 5(2) said the official could be recalled to the Republic, even if the case was pending.
Ms Lesoma said her understanding was that Clause 5 dealt with a temporary recall, because the logistics for the inquiry were not available in the Foreign Mission and the inquiry could be completed only in South Africa. All the infrastructure for the inquiry was domestically available, so the inquiry was better carried out in South Africa.
Ms Kenye responded that if this was so, then the word ‘temporary’ had to be inserted in the recall to qualify the type of recall, and to ensure that the official returned to the foreign mission.
Mr Bergman asked for clarity on the cases, because the basis for a recall needed to be consistent so a checklist had to be followed to establish grounds for a recall. Recalls had implications, even if it were temporary, and it could be embarrassing to the state and send mixed signals. He agreed with Ms Kenye that the recall needed to be qualified with the words ‘temporary’ or ‘permanent,’ but the recall needed to be based on consistent principles. Also, Clause 5 should specify cases that would lead to recalls.
Mr Mokgalapa said recalls could be due to sending for an Ambassador for disciplinary issues, recalls of transferred staff from a national department, a recall of DIRCO staff for discipline or a recall for international law, as seen in the new clause that DIRCO wanted to insert. The recall for a disciplinary case would lead to an inquiry and involved criminal proceedings. The best way to look at the inquiry was to bring the official back to South Africa, but if it was DIRCO staff, the inquiry could be done at the Foreign Mission. DIRCO preferred the inquiry to be done in South Africa due to the inquiry logistics of the high cost of flying union officials and a panel to the Foreign Mission to carry out the inquiry. The other option that could be used was Skype, but the cost was too high and the technology could fail. The reason for the recall was that the inquiry should be carried out with regard to South African law.
Ms Raphuti commented that if the HOM lacked interpersonal relations, the number of people recalled for small issues might be high, so it could lead to higher costs. She recommended that the Foreign Missions should be empowered to avoid such issues, especially if the HOM was biased against an official.
Ms Kenye said she agreed with Mr Mokgalapa that the cost of conducting an inquiry at a Foreign Mission was high.
The Chairperson said Mr Bergman was saying that the recalls were not differentiated, as he might be referring to a case of recall of an Ambassador for falsification of credentials, or a recall due to a protest. The recall for protest affected diplomatic relationships when South Africa also expelled an Ambassador of a foreign country resident in South Africa. This recall for protest would not lead to severing diplomatic relationships between the two countries. Ms Raphuti had said some HOM’s interpersonal relationship might be lacking, but wanted the HOM to preside over the inquiry in the Foreign Mission.. The recall was at the instance of the sending department, but if it was of a criminal nature it did not depend on the HOM, although the HOM needed to carry out the order. If the case was disciplinary in nature, the staff was recalled and an inquiry was constituted. The evidence leader would direct the proceedings but the HOM would be invited to send witnesses. However, the panel of inquiry might dismiss the allegations, and the official would be sent back to the Foreign Mission. He disagreed with the words ‘temporary’ or ‘permanent,’ but said the best term was ‘pending,’ because it was dependant on the outcome of the inquiry. He supported Mr Mokgalapa’s submission that said inquiry logistics were not available in the foreign mission, but were readily available in South Africa.
Ms Raphuti said human nature needed to be considered. It would not be fair for the HOM to lead a disciplinary case in a foreign country if biased against the official. The case could take place in South Africa because of the costs, but it should be established that the case was a disciplinary one before the official was recalled. It must also be stated that if after the investigation the official was not culpable, then the official needed to return back to the post at the Foreign Mission.
Ms Kenye said she would support the word ‘pending’ instead of temporary or permanent, as the process of investigation could occur only in South Africa because of the costs and logistics for the inquiry proceedings.
Ms Lesoma said she understood that Ms Raphuti was trying to address the rights of the officials, so the Committee should ensure that their rights were considered in the Clause.
The Content Adviser reminded the Committee that the case study had taken a decision based on the recommendation of Global Canada, which was relational network of national and regional Canadian Ministries. Members would like to know if Clause 5B was an addition or if it already existed.
Adv De Wet said DIRCO could add new parts to the existing Clause 5, and it could be a new paragraph 6. DIRCO realised that the paragraphs were not clear and would redraft them to give a complete picture of possibilities of recalls. Recalls were done only when the case was severe, and DIRCO addressed some cases at the Foreign Mission. Recalls were done when there was a danger that the inquiry would not be fair.
The Chairperson asked if Members agreed with Clause 5(a), 5(b) and the addition of paragraph 6, as proposed by DIRCO. He asked DIRCO if Members needed to qualify the recall as either disciplinary or political.
Adv De Wet said DIRCO preferred that Clause 5 covered the various recall patterns, and did not need to specify them as either disciplinary or political recalls.
Mr Mokgalapa agreed that if Clause 5 covered the relevant recall patterns, he was satisfied.
Ms Steenkamp said 5(a) may be for political or operational reasons, if it was necessary to move the official from one foreign mission to another.
Ms Lesoma said the heading should be left as ‘Recall of a Member of Foreign Service.’
The Chairperson resolved that it should be left as such, but should encompass the different categories of recall.
Clause 6 -- Diplomatic Academy
The Chairperson asked Members to consider Clause 6, although they had deliberated on some of the matters already. The proposals raised were only from Prof Jo-Ansie van Wyk.
Mr Mokgalapa said the only issues were that the Diplomatic Academy should be made compulsory for officials, linked to universities and accredited by SAQA in terms of the NQF levels and the certificate that would be issued. It should also be made compulsory for members of the diplomatic corps.
The Chairperson agreed with Mr Mokgalapa’s proposal, but asked DIRCO to clarify who referred officials to the diplomatic academy because DIRCO had earlier said some officials might not want to attend. He asked if the instruction to head a Foreign Mission by the President came with the instruction that the official had to attend the diplomatic academy. He also asked why it was possible to refuse to attend the diplomatic academy.
Adv De Wet informed the Committee that it was the President who issued the letter to assume the position as HOM, to the Minister. The Minister instructed the DIRCO DG, who would then write to the departmental heads of DIRCO to instruct the HOM that he or she needed to attend training. Presently it had not been made compulsory, so when the HOM came to DIRCO, it was the HOM who decided which module he or she would like to attend. DIRCO was trying to use the proposed Bill to put measures in place to ensure that the HOM attended the Diplomatic Academy.
Ms Lesoma said the Committee had addressed it and it was now made mandatory.
Mr Mokgalapa said attendance at the diplomatic academy was now compulsory for HOM’s and officials.
The Chairperson remarked that the modules must be designed in such a way that it gave diplomatic training and the dynamics of the country to which the HOM would be posted. He asked DIRCO if the diplomatic academy had research expertise.
Adv De Wet informed the Committee that the Diplomatic Academy had relationships with universities, and DIRCO had a separate unit that anchored the research capacity. Also the Diplomatic Academy had relationships with stakeholders and many of the Chief Directors (CDs) were people in the field. A part of the module required the HOMs appointed to pass through the CD’s desk to ensure that they were familiar with the do’s and don’ts of the country before the course was completed.
The Chairperson asked DIRCO if Mayors, Premiers and Members of Parliament who might have an opportunity to go to foreign countries, received training from the Diplomatic Academy. He proposed that a new Clause 6(6) be inserted to mandate HOMs to attend the training at the Diplomatic Academy.
The Content Adviser said the Committee had agreed to the establishment of a Diplomatic Academy, but the format would unfold. DIRCO recognised that the Diplomatic Academy would be linked to a university and although it was a directorate presently, it would be developed into an entity ultimately.
Mr Mokgalapa said the Committee had given DIRCO the mandate to establish a diplomatic academy -- an entity that would be linked to a university -- and DIRCO would finalise the remaining processes.
The Chairperson accepted the summary.
Clause 7 -- Establishment of Coordination and other activities
The Chairperson asked Members to consider the proposals in Clause 7. DIRCO, through Ms Steenkamp on 30 May, had proposed that the mechanism for the Consultative Forum on International Relations (CFIR) would be formally constituted in accordance with the Act. The Committee could say that consultations would be happening within the intergovernmental framework through the CFIR, which covered all other Departments. He asked if his assumption was correct.
Mr Mokgalapa said the Chairperson’s assumption was correct.
Ms Steenkamp said the forums already existed, although they had not been legislated and had financial implications which DIRCO could not currently meet. Therefore DIRCO did not consider implementing the forums in the light of the available resources.
The Chairperson asked if the Minister could establish the coordination of CFIR, and if it would be done in consultation with the three spheres of government.
Mr Mokgalapa said the intergovernmental framework was from government, but the CFIR addressed international relations. An international relations framework needed to be backed by consultative forums so he was not sure why Ms Steenkamp was saying it had financial implications. Also, a mayor must not be reimbursed for attending the academy. The Committee must say, notwithstanding the intergovernmental framework, a consultative forum for international relations was needed by DIRCO.
The Chairperson said since DIRCO insisted on an upgrade, the Committee did not need to specify that political office holders such as a mayor and his entourage had to attend. The Committee must say that the Minister had to make it compulsory.
Ms Lesoma said it might be introduced in a polite way by using the phrase ‘highly recommended’. DIRCO also had to include the South African Local Government Association (SALGA) and political stakeholders, as these category of officials needed to attend when a new administration started.
The Content Adviser said the Committee needed to consider the three spheres of governments’ competencies, because binding calls might lead to competition. Clause 2 of the Bill addressed what DIRCO was responsible for, which was coordination of the Foreign Service. She remarked that the coordinating mechanism was already there, but it had not being implemented. The Committee therefore had to assist DIRCO to implement the coordinating mechanism.
The Chairperson said DIRCO had responded to each stakeholder, and the responses to each stakeholder were sufficient.
Mr Mokgalapa said the Committee should add that DIRCO had to continue with the Consultative Forum for International Relations, which was a challenge to DIRCO presently, but advised the drafters to redraft it using legal terms.
The Chairperson asked DIRCO to note the suggestion of Mr Mokgalapa.
Ms Lesoma said the Committee was saying that the CFIR must be covered in the proposed Bill.
The Chairperson said he had been advised that this was another sphere.
The Content Adviser read out Clause 7(2), and observed that coordination by the Minister affected all three spheres. It would help that the Minister would address the attendance through its guidelines, although the political will was lacking, so DIRCO was experiencing problems in implementation.
Mr Mokgalapa gave suggestions on how Clause 7(2) could be captured by saying ‘DIRCO needs to engage in the Consultative Forum on International Relations’.
The Chairperson asked DIRCO to note Mr Mokgalapa’s summary.
Clause 8 – Assets
The Chairperson asked Members to consider DIRCO’s response and the GIAMA section 4(1)(e) and (2)(b)(i), 13(1) and 13(2), which addressed the concerns of the DPW.
Adv De Wet drew the attention of the Committee to a typographical error in the reference on section (2)(b)(i), where it should read section 4 (2)(b)(i) instead.
The Chairperson said DIRCO was proposing that assets in South Africa were under the DPW, while assets in foreign missions were under Minister of Internal Relations.
The Content Adviser said apart from replacing the word ‘vest’ by the word ‘custodian’, DIRCO wanted the Committee to address the disposal of dilapidated buildings in line with the Foreign Service Act, but the DPW wanted the disposal to be in line with the State Land Disposal Act. DIRCO needed to have direction on how dilapidated assets in foreign missions would be disposed of, so the trip to Namibia was necessary for the Committee to come to an informed decision.
The Chairperson said the inadequacy was that there was nowhere in the GIAMA where immovable assets were placed under the custodianship of the Minister for International Relations when it came to the disposal of dilapidated buildings. The DPW wanted to follow the State Land Act, but DIRCO had to follow the laws of the country in which the immovable asset was domiciled. Therefore a new paragraph had to be inserted to ensure that the Minister for International Relations had the right to dispose dilapidated buildings in foreign missions.
The Content Adviser said the DPW had said it had no challenge with allowing DIRCO to be a custodian of immovable assets abroad, but when it came to disposal it had to follow the State Land Act, which was what DIRCO was contending. She asked DIRCO to explain the process of disposing immovable assets in foreign countries to the Committee, to enable it make informed decisions.
Ms Kenye observed that the GIAMA 13(1) and 13(2) contradicted the proposed Bill if the Minister for International Relations had to be the custodian of immovable assets in foreign missions.
Adv De Wet said the GIAMA was used to control the leasing, construction, acquisition and disposal of land for immovable assets, but the Foreign Services Bill proposed that the Minister for International Relations controlled leasing, construction and acquisition of immovable assets in foreign missions. Disposal of dilapidated immovable assets in foreign countries involved laws that were different from the State Land Disposal Act [96} Act No 48 of 1967. Some countries required DIRCO to follow stringent approvals while others used agents to carry out the disposal of dilapidated immovable assets.
The Chairperson said that was the reason he had asked DIRCO earlier if it had ever sold or disposed of any asset outside South Africa before, and to inform the Committee of the authority that had approved the sale. DIRCO needed to obtain approval from the Minister of Public Works or Cabinet before the proposed Foreign Services Bill was passed if it wanted to dispose of immovable assets, because if this was not done, there could be a measure of corruption in such transactions. The Committee requested that prior to visiting other countries, DIRCO should provide a list of its dilapidated immovable assets in that country. This would enable the Committee to visit such assets to make informed decisions. He asked DIRCO to state where the money for the sale of such dilapidated immovable assets was paid, because the funds needed to be paid to National Treasury (NT), and the assets needed to be valued before the sale.
Ms Lesoma asked DIRCO to state the mechanisms in place to prevent the disposal of immovable assets in foreign missions. She also asked if South Africa had a satisfactory asset register in foreign lands, because the assets needed to be valued using standard procedures that involved the NT.
Adv De Wet said DIRCO conceded the need for consultation with relevant stakeholders, and it was good practice to add the phrase ‘in consultation with the DPW, NT and Department of Finance’ in Clause 8. Although there were checks and balances during sales, it did not say that fraud could not occur, despite Public Finance Management Act (PFMA) rules. The proposed Bill would give clarity to the sale of dilapidated immovable assets and generate income for the country.
Mr Mokgalapa said Clause 8 would be sorted out by the insertion of the phrase ‘in consultation with DPW, NT and the Department of Finance’.
The Chairperson said that he would propose that the Committee did not finalise Clause 8 to ensure that it guided DIRCO, because a number of gaps had been identified as the Committee had not done any oversight on such assets. Even when the Committee received the list from DIRCO, it still needed to be detailed when it reported to the Speaker. The Committee would not be satisfied with the insertion of the phrase ‘in consultation with the DPW, NT and Department of Finance’ in the proposed Bill, because this had not been considered earlier. Although the Committee on Public Works had not been keen on the visit to Namibia, a joint meeting could lead to both Committees having the same view. He therefore proposed that the Committee agree with Clause 13(1) and 13(2) in the GIAMA, but needed a redraft of Clause 13(3), because the disposal of immovable assets in foreign missions could not be carried out using the State Land Disposal Act [96} Act No 48 of 1967.
Ms Kenye said she supported having a joint meeting with the Committee on Public Works, because the GIAMA had some clauses that were contrary to those in the proposed Foreign Service Bill.
The Chairperson asked the Committee Secretary if the Committee could meet on Friday 1 June.
The Committee Secretary said the Committee was no longer meeting on Friday 1 June, and the date of the meeting would be communicated to Members during the next week.
The Chairperson said the Committee would continue with Clause 8, 9, 10, 11 and 12 during the next week and the time frame, would give DIRCO time to redraft Clause 3.
Mr Mokgalapa said because the dilapidated buildings in Namibia needed to be considered, the Committee might not be able to meet on Thursday 7 June.
The Content Adviser said the Committee could leave a space in the ‘A’ List, to insert the Namibia report.
The Chairperson said the Committee might not adopt the propose Bill if Clause 8 was not concluded. Motivation for the Namibia trip would be given to the Speaker and the Member standing in for the Chair of Chairs, so Members should prepare to go for the oversight visit during the recess.
Ms Lesoma asked the Chairperson if he would present the motivation letter to the Speaker before her travels commenced.
The Chairperson said the Speaker would be travelling over the weekend, so it would be inappropriate to submit the motivation letter to the Speaker before her trip. The motivation letter would be presented to the Speaker on her arrival. The Committee would go for the Namibia oversight visit during the recess and officials would compile the report. Work would be ongoing on the proposed Bill during the recess, even though only three Parliamentary committees would be meeting during the recess.
The meeting was adjourned.
Masango, Mr MSA
Bergman, Mr D
Kenye, Ms TE
Lesoma, Ms RMM
Mkhize, Prof HB
Mokgalapa, Mr S
Raphuti, Ms DD
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