The Committee continued with its consideration of the responses made by the Department of International Relations and Cooperation (DIRCO) to the proposals put forward by various stakeholders on the Foreign Service Bill.
The Committee had proposed that relevant parts of the Government Immovable Asset Management Act (GIAMA) No 19 of 2007 be migrated into the proposed Foreign Service Bill to strengthen the function of the disposal of immovable assets by the Minister for International Relations, but the Content Adviser advised that the Department of Public Works (DPW) had made a recommendation on the GIAMA. DIRCO had agreed with the recommendation to change the word ‘vest’ to ‘custodian’, as custodianship allowed the Minister for International Relations to manage or lease immovable assets and perform this function in line with Clauses 13(1) and 13(2) of the GIAMA. The only challenge was that Clause 13(3) of the GIAMA was contrary to the disposal of immovable assets in foreign countries, and DIRCO was against the clause.
DIRCO reminded the Committee that Clause 13(3) of the GIAMA, which empowered the use of the State Land Disposal Act to dispose of immovable assets, could not operate in other countries because the mode of disposal was through the use of agents and other laws. DIRCO was of the opinion that its Minister, in consultation with the DPW, would give regulations that would guide it on how dilapidated immovable assets outside the country could be disposed of. DIRCO also proposed that a separate clause be inserted that would prescribe how immovable assets would be disposed of in foreign countries according to Public Finance Management Act (PFMA) rules and to the satisfaction of National Treasury.
The Committee was of the opinion that a new Clause 8(3) needed to be inserted to encompass checks and balances on the disposal of dilapidated immovable assets while amending GIAMA Clause 13(3)(a) and 13(3)(b). Also, the Minister (the custodian) needed to ensure that information such as the asset management plan, valuation procedure and the valuation certificate produced, was in line with PFMA rules and National Treasury was satisfied with the process before DIRCO was able to dispose of immovable foreign assets. The Committee resolved that the way forward was that the DIRCO put its proposals in writing on Clause 8 to the Committee.
Based on the response of DIRCO on Clauses 9, 10, 11 and 12, the Committee agreed to a proposal to delete the word ‘policies’ from the title of Clause 9, but asked DIRCO to redraft the clause in line with the change. It asked for clarity on why the Minister would be able to delegate powers on codes and directives, but would not be able to delegate the power to make regulations on Clause 10. It suggested that DIRCO list the type of offences that an individual might commit and possible deterrents in Clause 11, and resolved that the regulation on training requirements in Clause 12(b) be redrafted to ensure that it was compulsory for first time Heads of Missions (HOMs) to attend the Diplomatic Academy. The Committee also resolved that the role of inspectors who would serve as a pre-warning measure on supply chain management issues, be expressed in the Bill in line with what had been noted by the Committee during its oversight visit to Canada.
Foreign Service Bill: deliberations
The Chairperson said the purpose of the meeting was to continue with the clause by clause discussions on the proposed Foreign Service Bill.
Mr S Mokgalapa (DA) proposed that Members deliberate on Clause 8-12, and then deal with the legal amendments on Clause 1-7 that had been treated on 31 May 2018. This would ensure that Members would deal only with the amendments to Clause 8-12 at the next meeting.
The Chairperson said he was not comfortable with the proposal because the proposed agenda for the next meeting was deliberation on the amendments on all the Clauses. He suggested that the Committee proceeded with deliberations on Clause 8-12, and then hand over to the drafters so that amendments would be discussed during the next meeting.
Mr Mokgalapa said his proposal was made to manage the time of the Committee.
The Chairperson said he would subject Mr Mokgalapa’s proposal to Members’ opinion after completing the day’s agenda.
Clause 8 – Assets
The Chairperson reminded Members that the Committee had decided that Clause 8 would not be finalised until the Committee had visited at least one of the countries where DIRCO had a dilapidated immovable asset, to ensure it made informed decisions on how the dilapidated immovable assets could be disposed of.
Ms T Kenye (ANC) agreed that that had been the resolve of the Committee, but asked the Chairperson for clarity on whether it would still have a joint meeting with Committee on Public Works.
The Chairperson said he would give feedback on the joint meeting to the Committee later.
He asked Members to compare Clause 5 of the Government Immovable Asset Management Act (GIAMA) No 19 of 2007 with Clause 8(2a) and 8(2b) of the Foreign Services Bill (FSB). He observed that the proposed Bill did not give the prescripts the power to control the disposal of immovable assets as stated in Clause 8(2a) and 8(2b), so the Committee might need to import some of the relevant clauses in the GIAMA to the proposed Bill to empower the Minister. Therefore the relevant parts of Clauses 5, 6 7, 8, 9, 10, 11, 12, 13 and 14 in the GIAMA could be imported to the proposed Foreign Service Bill while replacing the Department of Public Works (DPW) with the Department of International Relations and Cooperation (DIRCO). Clause 17 of the GIAMA on delegations was also relevant, but the portion that referred to ‘any official in the DPW or employ of another organ of State’ would be removed.
Ms Kenye said the Committee must ensure that the portions that referred to DPW would be deleted when importing the clauses from the GIAMA to the Foreign Service Bill.
The Chairperson said he was making the proposition to back up the Committee if it wanted to ensure that the Minister of International Relations controlled the acquisition, leasing, sales or disposal of immovable assets in foreign countries. In Clause 18(1) and 18(3) of the GIAMA, the words ‘Premier and MEC’ would be removed. Also in Clause 19(1)(a) of the GIAMA, the phrase ‘Public Service Administration’ should be removed after due consideration and be imported into the Foreign Service Bill,
Mr D Bergman (DA) said he understood why the Minister or Premier, as custodians of assets, could delegate the powers, but expressed concern that the checks and balances to this rule were not indicated.
Ms R Lesoma (ANC) said she was comfortable with the Chairperson’s proposals to import some of the clauses from the GIAMA to the Bill, because foreign assets were supposed to be addressed in consultation with DPW. She also remarked that human relations challenges should be addressed according to the laws of South Africa.
Ms Kenye said Members needed to look at the paragraphs in Clause 18 and not single out only Clauses 18(1) and 18(3), as Clause 18(2) originated from 18(1).
The Chairperson said that contrary to Ms Kenye’s earlier concerns, the Committee was not amending the GIAMA -- it was merely borrowing some aspects and importing them into the FSB.
Mr Mokgalapa said he was covered by the Chairperson’s proposal to import portions of the GIAMA to the Bill while removing aspects that favoured the DPW, because the GIAMA had been written to entrench the DPW’s policies. During the last meeting, DIRCO had referred only to Clause 4 and 13 of GIAMA, but the proposal of the Chairperson involves the migration of a lot of clauses. He therefore suggested that the Committee take the relevant clauses and insert them into the Bill, because the GIAMA could not be re-written into the Bill, only the relevant parts.
The Chairperson said he would want to hear the response of the Parliamentary Legal Adviser (PLA) and DIRCO on Clause 8 before dealing with the concerns of Members. He reminded them that DIRCO had received proposals on each clause and had given responses. Although DIRCO had to make the call, the Committee had to make decisions that would guide DIRCO. If the Committee decided that DIRCO would control the acquisition, leasing, sales or disposal of immovable assets in foreign countries, then it needed to be sure that the policies used by DIRCO were from the GIAMA and the laws of South Africa were followed. In the process of the disposal of immovable assets outside the country, the Committee wanted to ensure that information such as the asset management plan, valuation procedure and the valuation certificate produced were in line with Public Finance Management Act (PFMA) rules, and that National Treasury was satisfied with the process. He observed that the Minister for Public Works, Finance and International Relations would be active, based on the clauses, so the Bill should not have any loopholes.
Ms Lineo Mosala, Committee Content Adviser, said if the Committee referred to DIRCO’s responses to proposals by stakeholders, it would note that the DPW had made some recommendations on the GIAMA. It had proposed that the word ‘vest’ be changed to ‘custodian’. Custodianship allowed the Minister for International relations to manage or lease immovable assets and perform this function in line with Clauses 13(1) and 13(2) of the GIAMA. Clause 13(1) entailed having an asset management plan, while Clause 13(2) entailed having the accounting officer release information on the immovable assets to relevant stakeholders. The Chairperson had listed some of the clauses in the GIAMA that DIRCO had to follow, which showed that the Committee wanted DIRCO to follow GIAMA in acting as a custodian of immovable assets outside the country. The only challenge was that Clause 13(3) of the GIAMA was contrary to the disposal of immovable assets in foreign countries, and this clause was what DIRCO was against. However, DIRCO should know that the Committee would not just work with GIAMA alone because there were other regulations that needed to be followed in the disposal of immovable assets, even if they were dilapidated.
The Chairperson reminded Members that he had asked if DIRCO had leased or disposed of assets under any terms. This had been to ensure that DIRCO followed protocols and was in line with the GIAMA when it performed leasing or disposal functions on immovable assets outside the country.
Advocate Sandea de Wet said DIRCO had been carrying out other functions such as acquisition, leasing and maintenance on immovable assets outside the country, but the challenge was with disposal of dilapidated assets. DIRCO had fully complied with GIAMA on immovable assets outside the country, in consultation with the DPW -- its only challenge was on disposals and it needed guidelines to carry out this function. Clause 13(3) empowered the use of the State Land Disposal Act  (Act No 49 of 1961) to dispose of immovable assets in South Africa, but in other countries this Act could not operate because the mode of disposal was different. DIRCO believed that the Minister of International Relations, in consultation with the DPW, would give regulations that would guide DIRCO on how dilapidated immovable assets outside the country could be disposed of, and strengthen the paragraph on disposal as suggested by DIRCO in the proposed Bill in such a way that the disposal would be prescribed according to PFMA rules and to the satisfaction of National Treasury.
The Chairperson drew DIRCO’s attention to Clauses 13(1) (b) and 13(1) (c), and said this was what Mr Bergman and Mr Mokgalapa had been referring to when they spoke about checks and balances. Clause 13(1) (b) mandated the custodian to submit the immovable asset management plan to the relevant National Treasury (NT) as part of its strategic plan before an asset was sold. Also Clause 13(1) (c) mandated the custodian to advise NT on the immovable asset management plan.
Adv De Wet said DIRCO had drafted a new proposal based on the discussions of the meeting 31 May.
Ms Anthea Gordon, Parliamentary Legal Adviser, said the proposed draft of DIRCO covered the concerns of the Chairperson. She drew the attention of the Committee to Clause 4 of the GIAMA and compared it with DIRCO’s new draft. She asked the Committee to take note of the word ‘custodian’ in Clauses 4(1)(a) and 4(1)(b) -- the Minister was the custodian -- while in Clause 4(1)(c) the Premier was the custodian. The new draft by DIRCO provided that the Minister of International Relations was now the custodian. Therefore, from the provisions of the GIAMA, the custodian was the Minister of International Relations and the context was immovable assets outside the country. If the Minister of International Relations handled custodianship, it would be in line with GIAMA Clauses 13(1) and 13(2). She read out the changes to GIAMA Clause 13, and pointed out the cross linking with Clause 8 of the proposed Bill, and said this was why DPW proposed that the changes be made in line with the word “custodian’. The changes were subject to the decision of the Committee. However, for disposals, GIAMA Clause 13(3) was not applicable, but DIRCO was willing to consult with the DPW to ensure that it conformed to DPW projections.
Ms Lesoma said she would not be comfortable if DIRCO took time to effect the changes it had proposed, because Departments generally had been known to waste time in completing the processes on Bills.
Ms Suraya Williams, State Law Adviser, said if the provisions were included in the proposed Bill, it would be uniform and the Committee would not have to come back to amend every time. In the disposal of immovable assets outside the country, Clause 13(3) would not be appropriate, so the Committee had to liaise with the DPW to assist DIRCO in fulfilling the function of custodian. The Minister, as a custodian, must comply with Clause 7 of the GIAMA, which included having an asset management plan, providing a valuation certificate and giving information that was satisfactory to National Treasury in line with the PFMA. The drafters would ensure that these amendments were made in consultation with DIRCO if the Committee approved, but this involved a lot of work.
Mr Mokgalapa said the Committee had come to a way of resolving the challenges faced by DIRCO in the disposal of dilapidated immovable assets in foreign countries, but it needed to ensure that checks and balances were factored into the Bill. He agreed with Ms Lesoma’s proposal that DIRCO needed to effect the proposed changes timeously, but remarked that the Committee needed to ensure that the legislation was tight when it came to the disposal of immovable assets.
The Content Adviser said the Committee needed to receive further advice from DIRCO, because the Bill would be challenged if it left out the fact that foreign countries’ laws should be followed, because their laws and manner of disposal of immovable assets differed from that of South Africa. The State Land Disposal Act would not be applicable in foreign countries.
Ms Lesoma asked the drafters to confirm if a particular law did not impact on other laws, based on the date amended.
The Chairperson said checks and balances while carrying out the function of a custodian and legality were very important when considering the disposal of immovable assets outside the country. He expressed concern that DIRCO had merely referred to certain clauses in the GIAMA, but the wording had not been imported into the proposed Bill. He suggested that it was better to import the specific matters that were needed from the GIAMA to the Bill to ensure that it would not be challenged. If the Committee wanted to refine the Bill and it was doing that subject to a certain regulation without importing the relevant parts into the proposed Bill, then it could leave room for corruption.
Ms Williams said there were two options involved. The first involved importing the relevant parts needed from the GIAMA to the proposed Bill, but this would mean amending the Bill every time when there were changes to the GIAMA. The other option was that DIRCO said that Clauses 13(1) and 13(2) of GIAMA were applicable to the custodian of the assets, so when amendments were made to the GIAMA, the changes would reflect when the Bill was used.
The Content Adviser said a new Clause 8(3) needed to be inserted to encompass checks and balances, but the GIAMA Clauses 13(3)(a) and 13(3)(b) needed to be changed to fit in. The conditions of Clause 13(3)(a) provided that the immovable assets be disposed of by allocating the immovable assets to another user, while Clause 13(3)(b) provided that the immovable assets be disposed of subject to the State Land Disposal Act. It was required that the Committee assist DIRCO to dispose of immovable assets in foreign countries, but this would have to be done with the principles of checks and balances. The Committee could assist DIRCO by inserting principles that would satisfy the DPW.
The Chairperson resolved that the way forward was that the DIRCO, in conjunction with drafters, put its proposals in writing to the Committee so that the Committee would guide it. The resolution would require an oversight visit, and it would be good if the DPW could be part of the visit. If an oversight visit was not carried out, the decision would be theoretical, but he had not yet engaged the Parliamentary leadership yet.
Clause 9 -- Policies, codes or directives
The Chairperson reminded Members that the proposal was to remove all references to the word ‘polices’.
Adv De Wet said DIRCO had received proposals that the word ‘policies’ was confusing.
The Chairperson observed that Clauses 9(1), 9(3) and 9(4) would be read without ‘policies,’ and asked if Members agreed with the proposal.
Mr Mokgalapa said the proposal was in order, but reminded Members that the Committee had earlier decided to insert the phrase ‘locally recruited personnel’ (LRP) in the proposed Bill.
The Content Adviser said the Committee had to acknowledge that support staff known as Locally Recruited Personnel (LRPs) worked in foreign missions. For instance in Germany, Germans had been recruited to work in the foreign mission. DIRCO had informed the Committee that they had been recruiting South Africans who were resident in the country where the foreign missions were domiciled, as staff. The Committee should consider inserting paragraph 6 that addressed LRPs in Clause 9. Also, to achieve checks and balances in foreign missions, inspectors needed to visit these missions to address challenges before it became a problem.
The Chairperson observed that the Content Adviser was suggesting that Members insert Clause 9(6) to accommodate LRPs, and was also suggesting another paragraph on inspectors.
The Content Adviser said LRPs and inspectors needed to be expressed in the proposed Bill.
The Chairperson asked DIRCO to confirm if the Foreign Service Administration Manual and Code of Conduct for the Foreign Service in Clause 9(3) existed already, or if it was just being drafted. He also asked the Content Adviser and DIRCO to clarify if LRPs would be subject to the Foreign Service Administration Manual and Code of Conduct for the Foreign Service or to the laws of the country where the foreign mission was domiciled.
The Content Adviser said her referral to LRPs was only to address the concern of Mr Mokgalapa on LRPs. The LRPs would be governed by the service rules of the country where the foreign mission was domiciled.
The Chairperson said Members would confirm where LRPs should be inserted in the proposed Bill later, and invited Ms Lesoma for her comment.
Ms Lesoma said she was about to ask which service rule would govern LRPs, but the question had been answered. However, she asked DIRCO to consider what would happen to the paragraphs when the word ‘policy’ was removed from Clauses 9(1), 9(3) and 9(4).
Ms Kenye remarked that all the paragraphs in Clauses 9(1), 9(3) and 9(4) would be subject to change, so she asked DIRCO to redraft the clauses.
The Chairperson said the Committee had agreed that the word ’policies’ be removed from the title of Clause 9, but said the Members should deliberate on Clauses 10 and 11 before addressing issues that pertained to LRPs.
The Content Adviser said Members should comment on concerns raised by stakeholders that DIRCO should consider its input when drawing up codes and directives affecting the working conditions of the Foreign Service. Clause 9(5) covered this concern.
Clause 10 -- delegation of powers
The Chairperson sad the Committee had to clarify the powers that the Minister would not be able to delegate from Clause 12. He asked why the Minister would be able to delegate powers on codes and directives, but would not be able to delegate the power to make regulations.
The Content Adviser said Clause 10 confirmed that the Minister could delegate powers only on codes and directives.
Adv De Wet said codes and directives were administrative, while policies were regulations. DIRCO would redraft Clause 9 as suggested by Members.
The Chairperson observed that Clause 10(4)(c) gave the Minister the power to withdraw any power delegated in writing. He asked what the immediate intervention would be if the Minister withdrew powers in writing from a Head of Mission (HOM), but the HOM was still in the position.
Adv De Wet said HOMs were appointed based on contracts, so when the Minister wanted to withdraw the powers of an HOM, the HOM would be recalled. Only in the case of finance, such as a reduction of credit limits to sign financial contracts, would such withdrawals be done in writing. The power to withdraw in writing was standard language on delegation clauses, but the drafters could help DIRCO.
The Chairperson said he was not sure the drafters could assist the Committee, but he had asked the question only for knowledge purposes.
Clause 11 – Offences
The Chairperson observed that Clause 11 had inputs from Ambassador Francis Moloi, the Department of Defence (DoD) and the South African Institute of International Affairs (SAIIA), on offences. He was surprised that the DoD was interested in pursuing conviction for offences because it did not affect its officials, as the DoD court-martialled its staff instead of taking them to court.
Mr Mokgalapa said the Committee should take decisive action on theft cases, even when it was as minor as the stealing of teaspoons.
The Chairperson said he agreed with the proposal.
Ms Lesoma also agreed with the proposal but remarked that in light of Mr Mokgalapa’s proposal, the Committee had to ensure that there was accountability. Decisive action should be taken even on minor cases.
The Chairperson asked for clarity on what would be done if someone who was not a member of the Foreign Service contravened the Offences Act.
Mr Mokgalapa said such cases were dealt with under consular services, in terms of Clause 11(2). The Committee might say that a fine should be imposed, or state that the punishment be commensurate to the offence committed.
The Chairperson observed that according to Clause 11((2), it was not the first time that a specific amount had been written as a fine to convict a person that committed an offence, but noted that this tied the hands of the magistrate. He asked for what would happen if the court felt that it should charge a lower or higher amount, depending on the offence.
Ms Kenye said it was unfortunate that the Clause 11(2) read ‘any person,’ as this made it difficult to prescribe the penalty for the offence.
Adv De Wet said that DIRCO did not initially want to create an offences clause in the proposed Bill, because if a member of the Foreign Service committed an act of misconduct, a panel would look into the case based on the Labour Relations Act. However, if the panel of inquiry decided that the case was criminal, the individual would have to be held accountable. The offences clause had been inserted because some officials went to countries that they were not supposed to visit. This fell within the Offences Act, and DIRCO had no choice but to hold these officials accountable, as alluded to by Mr Mokgalapa, and hand the case over to the courts.
The Chairperson said the proposal was accepted and asked if there were other proposals on Clause 11.
The Content Adviser reminded the Committee that there was proposal from the SAIIA that the size of the penalty should be directly linked to the nature of the offence. She suggested that the Committee should not prescribe penalties, but agree that due process be followed commensurate to the gravity of the offence.
Ms Kenye said the Committee must make recommendations based on the best practices in other countries.
The Chairperson said he had initially asked Adv De Wet why a penalty of R50 000, or one year’s imprisonment, was apportioned to anyone convicted, but he realised that this was a standard in such clauses. He asked Members if the punishment for the offence could be prescribed.
Ms Lesoma said the Committee would be leaving out the responsibility of the courts if it prescribed a punishment for the offence.
Mr Mokgalapa said the Committee should not be prescriptive on what courts did to a person declared non grata, but should coin a paragraph to say the punishment should be commensurate to the crime.
Ms Williams said before a penalty was imposed, due process must have been followed. The monetary value of R50 000 used as a fine and the one year imprisonment indicated the severity of the offence. If a threshold penalty was not attached to the offence, the courts might refer back to the Committee to amend the proposed Bill.
The Content Adviser said she agreed with what the SLA had said, but suggested that the deterrent punishment was too low.
Ms Kenye observed that Members were saying that the deterrent punishment was too low, and reminded Members that she had asked for a comparison with best practices in other nations to redraft the clause.
Mr M Maila (ANC) said if the Committee increased the amount of the deterrent, it might also need to increase the number of years of imprisonment.
The Chairperson suggested that both punishments could be enforced.
Ms Lesoma said it was not the practice to give double punishment.
Ms Williams said that the law did not allow for double punishment as a deterrent.
Mr Mokgalapa suggested that the Committee might be prescriptive, and list the types of offences that would lead to a deterrent of R50 000, or one year’s imprisonment.
Ms D Raphuti (ANC) said the different kinds of offences were labour, criminal or state sabotage, and each should carry different kinds of punishment.
The Chairperson suggested that both punishments be withdrawn, and the clause should be dratted as ‘depending on the nature of the offence, the individual is liable for a suitable punishment’.
Mr Mokgalapa said that this proposal did not solve the challenge of putting a suitable deterrent, because a severe offender might get the same punishment as a minor offender. The Committee should draft the clause as ‘depending on the severity of the offence, an appropriate penalty would be given by the courts’.
The Chairperson suggested that DIRCO should work on this and come back with responses to the Committee. He asked Members to apply their minds as to what the punishment should be if sabotage was committed.
Mr Bergman asked Members to ascertain the type of offence implied in the clause, and ensure that the proposed Bill covered it. Some types of offences that an individual could commit were driving under the influence, rape, or the sale of state secrets.
Mr Maila said the Committee needed to identify the kind of offence that was referred to in the clause.
The Chairperson suggested that DIRCO should work on the type of offences, and come back with responses to the Committee on possible deterrents.
Ms Williams said the Committee needed to identify the type of offence being dealt with before the deliberations ended. The offence being referred to in the clause was under the Criminal Act.
Adv De Wet asked the Committee to clarify if it wanted DIRCO to come up with a list of such offences, or if it would identify such offences. DIRCO had already committed to getting a list of proposals on the asset clause, and it might not be possible to do both before the next meeting.
The Chairperson resolved that if DIRCO would not be ready on the two proposals, it should concentrate on the proposal on assets, and the deliberations on the offences clause might be continued after Members returned from the oversight visit to Namibia.
The Content Adviser said once the Committee was satisfied with the A list, it would adopt it. The Committee therefore had to advise DIRCO that the Minister for International Relations must be present for the second reading of the proposed Bill.
Clause 12 – Regulations
The Chairperson invited Members to consider if DIRCO’s response to stakeholders on Clause 12 was satisfactory.
Mr Bergman expressed concern on Clause 12(1)(b), which gave rights to the Minister to overrule regulations on training requirements, and said he was not sure that it was satisfactory.
Mr Mokgalapa said the Committee had to ensure that the Minister could not overrule regulations on training requirements, because this could make the Diplomatic Academy unable to deliver on its mandate. He also asked why Clause 12(2) read that regulations that referred to members of the Foreign Service need not be gazetted, as all government reports needed to be published or gazetted.
Ms Lesoma observed that in reality, Acts should supersede regulations, but the experience now was that regulations superseded Acts. Members had to ensure that the Minister made it compulsory for political appointees and HOMs to attend the Diplomatic Academy, as it would negatively affect the clause on the Diplomatic Academy. She also asked DIRCO to state how many officials needed to attend the Diplomatic Academy to make it relevant.
Ms Raphuti said the regulations should make training for HOMs at the Diplomatic Academy mandatory. She did not understand why regulations needed to be gazetted.
The Chairperson said Ms Lesoma’s point that attendance of the Diplomatic Academy be prescribed for ambassadors was vital. The challenge was that former Ministers did not want to attend modules under Deputy Directors General (DDGs), and this was why attendance at the Diplomatic Academy was challenged. The Committee therefore had to make it compulsory for HOMs appointed for first time to attend the Diplomatic Academy, as HOMs could claim they were not aware of certain things that they could not do in the countries they were posted to, and embarrass the state. Regulations must be published or gazetted to ensure that the Act and regulations went hand in hand to ensure that individuals did not claim ignorance.
Adv De Wet said DIRCO agreed with the Committee‘s reading and its prescriptions to strengthen the proposed Bill to this level. Clause 12(2) had been added in the proposed Bill because DIRCO envisaged that the Minister would add some sensitive trade secrets in the regulations which were not suitable for publication, and that was why Clause 12(2) read that regulations may not be published in the gazette.
The Content Adviser confirmed that the Foreign Service had some trade secrets.
The Chairperson resolved that the Committee agreed with Clause 12(2), but requested that Clause 12(1)(b) be redrafted.
Adv De Wet reminded the Committee of Clause 8bis that empowered DIRCO to collect revenue, related to the applications for visas based on the Immigration Act No 13 of 2002 and the PFMA.
Mr Bergman asked for clarity on where the clause should be inserted.
Adv De Wet said it was a new clause that would be under Clause 8.
The Chairperson agreed with the proposal, and invited Members to deliberate on LRPs
The Content Adviser informed Members that LRPs were captured under the definitions. Inspection appeared to be important, as it served as a pre-warning measure. She suggested that it be inserted in the proposed Bill, as it had been noted during the oversight visit to Canada. She would liaise with DIRCO on how LRPs would be drafted.
The Chairperson asked the Content Adviser for clarity on how the inspectorate would be treated.
The Content Adviser said she would also liaise with DIRCO and the SLA.
The Chairperson asked the Content Adviser to explain how the issue of inspections had come about.
The Content Adviser said during the oversight visits to Germany and Canada, the Committee had found that it was important in terms of supply chain management to ensure that the Auditor General (AG) did not pick up any issues in the financial accounting processes of foreign missions.
The Chairperson instructed the Content Adviser to extract a motivation for inspections to foreign missions from the Canadian oversight visit report. He said inspectorates to foreign mission could be constituted through the AG, outside the purview of the Minister, through the Minister or by the President when he sent special envoys for a specific task. If the Committee said an inspectorate should exist, it could assist the Minister to deploy certain people to the inspectorate.
The Content Adviser said in Canada and Germany, inspectors were officials of the Foreign Affairs Ministry. The inspectors were risk management officials, but there needed to be many because the workload was high,
Mr Mokgalapa said in Canada, the inspector could be an inspector general in the Foreign Affairs Ministry who worked on issues of defective management in terms of risk. They conducted inspections on independent and objective audits, evaluated reviews and investigations of the programmes and operations of foreign missions.
The Chairperson said Mr Mokgalapa was right on the roles of an inspector general to foreign missions, but the Committee would not deliberate on it yet. He had instructed the Content Adviser to extract a motivation for inspections to foreign missions from the Canadian oversight visit report, to ensure that Members were on the same page when the proposal on inspectors was being considered.
He asked DIRCO to state the challenges on visa fees, as proposed by the Department of Home Affairs (DHA).
Adv De Wet said DIRCO collected funds for processing visas in foreign countries, which was a role that DHA could not perform, and DIRCO remitted the funds to the DHA. The DHA had agreed that due to administrative challenges and the risk involved in the transfer of visa fees, DIRCO should pay the fees directly into the revenue fund account. The DHA wanted this function to be captured in the proposed Bill.
The Chairperson asked the Committee Secretary to announce the next meeting time and venue.
Mr Mokgalapa reminded the Chairperson of his earlier proposal for Members to consider the amendments made on Clauses 8-12 after the day’s agenda, to ensure time was managed effectively.
The Chairperson asked Members to consider the proposal.
Ms Raphuti said Members could consider the amendments to ensure that the time frame of the next meeting was shortened.
Ms Lesoma said the Committee’s administrative team and DIRCO had to work on the clauses of immovable assets, offences and LRPs. She therefore suggested that the amendments be taken during the next meeting to allow the Committee’s administrative team and DIRCO to complete the work that needed to be done.
Ms Kenye observed that the workload for the drafters was high, so Members should allow deliberation on the amendments to continue at the next meeting.
Mr Bergman said he would not be available for the next meeting, so he would not be able to comment.
Mr Maila said the Committee could continue with its deliberations.
The Chairperson remarked that the Committee’s administrative team and DIRCO had a lot of work to do, and procedurally it was nicer to do all the amendments from Clauses 1-12 at the next meeting rather than start today, and complete it during the next meeting.
Mr Mokgalapa said since the Committee had dealt with Clauses 9, 10 and 12 already and DIRCO had said it would not be able to complete the work on Clause 11, Members could assist by deliberating on the amendments to Clauses 1-7 to assist the administration team.
The Content Adviser cautioned that some of the amendments made on Clause 9, 10 and 12 could impact on the draft made by DIRCO for Clauses 1-7, so the draft for Clauses 1-7 would need to be amended.
The Chairperson resolved that since the issues were interlinked, it was better to reflect on the amendments and deliberate on the amendments of Clauses 1-12 during the next meeting, which would be on 7 June.
The meeting was adjourned.
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