Foreign Service Bill: discussion

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International Relations

07 November 2018
Chairperson: Mr M Masango (ANC)
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Meeting Summary

Documents handed out: Proposal by DIRCO for Inclusion in Foreign Affairs Bill [awaited]

The Committee commenced its discussions on the Foreign Service Bill (FSB) by considering the proposal by the Department of International Relations and Cooperation (DIRCO) that it should be mandated to have responsibility for its assets abroad, as the Department of Public Works (DPW) did not have a meaningful presence in overseas countries. It was pointed out that the intention of the previous legislation was to ensure all South Africa’s missions abroad were in compliance with the Government Immovable Asset Management Act (GIAMA), which stipulated that immovable assets were the responsibility of the DPW. The Committee and DIRCO were proposing that the DPW be responsible for assets at home and that DIRCO be responsible for immovable assets abroad, but that would depend on Presidential approval.

The Committee went into the details of legislation related to the buying and selling of South African assets abroad, the implications for locally recruited personnel (LRPs) at the missions, the responsibility for inspecting and monitoring the missions, and whether the Bill should stipulate penalties and fines for criminal offences committed in foreign jurisdictions. The Members also debated whether legislation should be considered to deal with foreign states negotiating directly with municipalities or provinces on trading matters in order to bypass Ministerial controls. The Committee was warned to cautious about legislating on inter-governmental relations. International relations differed from state to state, so those at the local, provincial and national level should be educated and informed about the powers all spheres had in conducting trade. A province or a municipality could not commit the country to an agreement with another country, because this could lead to a misunderstanding and even war. The National Constitution regulated on this matter.


Meeting report

Chairperson’s opening remarks

The Chairperson said he had had a meeting with the Chief Whip where he had been informed of next year’s tight programmeme. He added that Committees must do the work they had received money to do. Funds had been given to the Committee to assist in developing the Foreign Service Bill (FSB), such as the oversights visits to missions abroad (Canada and Namibia), and a stakeholder seminar in Pretoria. He added that little progress had been made towards completing the draft FSB. Therefore, if the draft was not completed, the trips and seminars would be viewed as fruitless and wasteful expenditure. The Foreign Service Bill proposal had to be ready to take to Cabinet by November 14. The Committee had previously held a meeting where they had had a clause by clause discussion of the bill and given their recommendations. These recommendations may be revisited.

The Chairperson added that clause 8 (Immovable Assets) was a contested mandate, because the bill contemplated that state assets outside the country should be the responsibility of the Department of International Relations and Cooperation (DIRCO) .The proposal was contested because the Government Immovable Asset Management Act of 2007 (GIAMA) stipulated that immovable assets were the responsibility of the Department of Public Works (DPW). He added that in light of the contention, the Committee had agreed that the proposal would be put on hold pending a visit to one of South Africa’s missions. This was the justification for the oversight visit to Namibia.

Mr Kgabo Mahoai, Director General (DG): DIRCO, introduced the attending advocates. The rest of the non-permanent attendees introduced themselves.

Foreign Service Bill: Discussion

The Chairperson suggested that discussion begin with Clause 8 (Immovable Assets). He asked the attendees to look at the clause in the hand out – the proposal by DIRCO for inclusion in the Foreign Affairs Bill -- they had been given. He noted that Clause 8 in the old FSB had changed to Clause 9 in the proposed new Bill. The proposed FSB stated that immovable assets outside the country must be the responsibility of DIRCO, although his was subject to a visit to one of the countries with a South African Embassy. The purpose of this visit was to see the state of the property in those countries. He added that a report had been made on the joint oversight visit to Namibia. The Committee would not be discussing the report as that was not the purpose of the meeting, but highlighted the main findings.

The Head of Mission in Namibia had revealed that the mission was constrained due to insufficient funds and lack of powers. He had explained that the DPW was mandated to have oversight over assets at home and abroad. However, the DPW did not have an on-the-ground presence abroad which made their oversight function moot and difficult. DIRCO proposed that it should be mandated to have responsibility for assets abroad because it had an on-the-ground presence in 124 states and was able to fulfil the function of asset management.

He pointed out that the DPW, according to GIAMA, was mandated to manage assets both at home and abroad, but they were not equipped to fulfil this function effectively. This inability to perform the oversight function was DIRCO’s foundation for the amendment to Clause 8.

Ms R Lesoma (Whip, ANC) said that the intention of clause 9 (previously clause 8) was to ensure that all the missions were in compliance with GIAMA. She proposed that Clause 9 include that the FSB be aligned with the State Land Disposal Act of 1961, the Public Finance Management Act of 1999, as well as all other Treasury compliance regulations from any department that were applicable to this bill. This was to ensure that financial compliance was adhered to. She further proposed that the clause include an additional point which would become clause 9.4, and should state “a decision to dispose of immovable assets should be in terms of the effective management of the Foreign Service, and to the benefit of the Republic in order to achieve the best functional, financial, economic, and social return or other benefits from the disposal of immovable assets”.

The Chairperson then clarified the legislation that Ms Lesoma had referred to in her proposal. The Committee and DIRCO were proposing that the DPW be responsible for assets at home and that DIRCO be responsible for immovable assets abroad, subject to the legislation that Ms Lesoma had outlined previously.

Mr S Mokgalapa (DA) enquired if the Committee had the acts and legislation that Ms Lesoma had referred to on hand, so the Members could read it and fully understand her proposal.

Ms Lesoma stated that as the Committee discussed other issues, the documents would be printed and made available.

Mr Mokgalapa said that the assumption of the recommendation was that it addressed GIAMA. He said that the DPW’s contention was based on the understanding that it was the custodian of all state assets at home and abroad.

The Chairperson responded that this was not a concern of the Committee at the moment, because it was currently the concern of Cabinet. If and when the proposed FSB was passed, it would go to the National Assembly then to the National Council of Provinces (NCOP), and would finally be sent to the President for assent. If the President assented, then he would direct the DPW to amend GIAMA in order to relinquish control over immovable assets abroad, and then that mandate of control over immovable assets abroad could be taken over by DIRCO.

Mr Mokgalapa asked if there were any other assets abroad, other than the embassies, consulates and the officials’ accommodation that the DPW was in control of. Maybe this was why the DPW had contentions against the proposed amendment. He suggested that the Committee and DIRCO concern itself with its core mandate and not overstep, as this bred animosity. The main proposal of giving DIRCO control over immovable assets abroad was concerned with assets directly related to DIRCO’s sphere of influence only.

Mr L Mpulwana (ANC) said there were other immovable assets abroad which were not related to the DIRCO or its missions, such as Defence properties.

Ms Lesoma said that Mr Mokgalapa’s concern was important, but it was explicit in the proposal that the amendment was concerned only with assets that were directly related to DIRCO, such as missions. Therefore, the DPW or the Department of Defence could not stake claim because these were assets utilised by DIRCO. Despite GIAMA, in previous years there had been little clarity as to which department was responsible for specific assets. The bill’s amendment did not encroach on any other departments’ mandate or responsibility.

The Chairperson said that a request had been made that state assets outside the country should be under the custodianship of the DIRCO, subject to the previously mentioned legislation. He asked if the amendment should read ‘any other relevant treasury regulations,’ or state specific treasury regulations or treasury regulations as amended.

The Committee agreed that Clause 9.4 should state “and any other treasury regulations, as amended”.

Mr Mokgalapa said that every amendment must be clear and not be left to interpretation. The contention the DPW had was because they assumed GIAMA gave them overarching control and responsibility for all immovable state assets home and abroad. The amendment must be clear and restrict itself to assets directly utilised by the mission.

Mr Mahoai said that in the construction of the amendment, it was clear that the assets referred to were those that were utilised by Foreign Services only.

Mr Mokgalapa suggested that the amendment should state that the assets being referred to were the missions, residences and embassies only. He suggested that this be made explicit in Clause 3 (Things acquired for the use of the mission) of the proposed FSB. The ‘things’ should be clarified. He proposed that it should state “those properties acquired for Foreign Service i.e,” and then list the ‘things’.

The Chairperson clarified the previous suggestion by Mr Mokgalapa, stating that the proposal should read “acquired by the Foreign Service that was the missions, embassies and residence”.

Mr M Lekota (COPE) agreed with Mr Mokgalapa, and said that the amendment needed to be clarified because assets could include soldiers, or property used by peace missions such as medical equipment. He further enquired as to the definition of ‘Foreign Services’.

He said that Mr Mokgalapa’ question could not be answered without defining Foreign Services. In order to clarify ‘things’ acquired by foreign services, the definition of Foreign Service must be clarified because foreign affairs could include any member of any department that was located abroad. He suggested that they include to the amendment “all departments located abroad in foreign service”. He added that if the Committee was in agreement to this, then all property would be under the control of the Minister, but the Minster of Defence, for example, was not located abroad. He said that the Minister of Foreign Affairs could be in control of all the property on behalf of fellow colleagues.

Mr Mpumlwana asked whether property utilised by Defence and intelligence services was under the control of the DPW. He suggested that if these other properties were clearly stated to be under the control of the DPW, then DIRCO should leave it as such.

Mr Lekota said that Military and Intelligence Services were under the control of Foreign Services. He explained that the military was connected to diplomatic relations, so Defence property had to be under the control of DIRCO and not the DPW.

The Chairperson asked if the Committee was in agreement on the amendment to assets.

Mr Mokgalapa said that he would wait for the write up of Ms Lesoma’ recommendation, along with the legislation she had referred to.

Ms DDRaphuti (ANC) recommended that Clause 1 (Definitions) on Page 1 of the proposed FSB should include the definition of ‘disposal’ .She suggested that the definition be placed before the Foreign Service definition and it should read, “ disposal means to sell, exchange or donate immovable assets in accordance with this act”.

Ms Dineo Mosala, Committee Content Advisor, clarified the suggestions. She said that the proposal given by Ms Raphuti included stating “in accordance with ‘this act,’” but the proposal made by Ms Lesoma stated that as the proposed custodian, DIRCO must be subject to the legislation she had listed previously. She explained that her proposed amendment stated “in accordance with ‘this act’” and the use of ‘this act’ contradicted all of the other pertinent legislation that should be observed, such as the legislation listed by Ms Lesoma, which included GIAMA.

The Chairperson proposed that the definition for disposal read “to sell, exchange or donate immovable assets in accordance with this act [FSB] subject to GIAMA all relevant legislation”. He explained that it was not necessary to place that in definitions because it was clarified in Clause 8 (Clause 9 in the proposed FSB).He asked Ms Mosala if she still views this as a contradiction.

Ms Mosala said that immovable assets located outside the country must be in accordance with the legislation, procedures and processes applicable in that foreign state pertaining to the disposal of immovable assets. It did not say in accordance with ‘disposal act.’ It stated that only immovable assets located abroad could be disposed of, and did not speak to all assets.

Ms Raphuti clarified that her recommendation was concerned with the definition of disposal only.

Ms Mosala said that any proposal on disposal must include other relevant acts. All state assets, whether located within the state or outside of the state, must be in accordance with the State Land Disposal Act. Therefore the proposed amendment could not state in accordance with ‘this act’. She suggested that the proposed amendment read “in accordance with this act, along with all other relevant acts”.

Mr N Mjenxele, Legal Advisor, referred to the definition of disposal, and explained that the drafting legislation convention perspective catered to the contentions. The proposed FSB was not concerned with disposal only, so the definition would be inadequate if it stated “in accordance with ‘this act’ ” because disposal was connected to other acts, as Ms Mosala had explained. He suggested that after ‘this act,’ the amendment read “and any other legislation that was applicable in disposal.” He said that stating the amendment in this manner and not listing the relevant legislation allowed for any future legislation that may impact on the FSB.

Mr Mpumlwana said that Clause 8 (Clause 9 in the new proposed FSB) addressed the relevant acts associated with disposal, therefore the definition did not need to speak to any other act. He said that a definition could not include other acts but must simply state what the term meant concerning ‘this act’.

Ms Mosala stated that Clause 9.1 (previously clause 8) in the amended bill states “notwithstanding section 4.1 of GIAMA, the Minister was the custodian of all immovable assets outside the republic” [acquired for use by Foreign Service]. The Minister, according to the FSB, would become the custodian of immovable assets abroad. She added that Clause 9.2 stated that “the Minister would act as a caretaker of state assets under her custodianship and must acquire and manage such assets as contemplated in sections one and two of GIAMA”. She added that Clause 9.3 states “notwithstanding the provisions of sector 4.2, the Minister must dispose of assets under her custodianship in accordance with this act.”

Furthermore, GIAMA states “a custodian may dispose of a surplus immovable asset by: 1. Allocating the immovable asset to another user,” and then number 2 states: “subject to the state land disposal act and by lease exchange or donation”. Ms Mosala agreed with Mr Mpumlwana stating that listing acts in the disposal definition was unnecessary, because there was relevant legislation in place that must be complied with. Ms Mosala explained that a Minister who was a custodian was subject to GIAMA regulations of custodianship.

Mr Mpunlwana reiterated that the acts relevant to this bill were stated in Clause 9 (in the new proposed FSB), so it was unnecessary to restate it in the disposal definition. As he understood it, Ms Lesoma’s proposal included listing relevant acts, which was unnecessary.

Mr Lekota supported Mr Mjenxele’s suggestion, and said that the disagreement could be resolved by stating “and any other legislation that was applicable in disposal”.

The Chairperson said that the discussion on the definition was over, and if the Members wanted to add anything they could check and add to the proposal, and it would be discussed at the following session.

Ms Mosala said that the Members had to make a decision on issues to allow the legal advisor to efficiently draft the proposal.

The Chairperson asked the Members if they were in agreement with the disposal definition reading “disposal means to sell, exchange or donate immovable assets in accordance with this act and any other applicable legislation”.

The Members agreed on the disposal definition.

Ms Mosala enquired as to whether there was a decision made about Ms Lesoma’ proposal to add part 4 to Clause 9 (Immovable Assets: new FSB).

The Chairperson reponded that a decision had been put on hold until Ms Lesoma provided the documents Mr Mokgalapa had requested.

Mr Mpumlwana suggested that the Committee add clause 10.1, which would address collecting revenue abroad. He said that foreign missions received payments for various services and this proposed amendment would give the Head of Mission the power to oversee the collection of those funds, and that the proposed amendment should read “subject to the Finance Management Act [act 1 of 1999] and any other applicable legislation. The department [DIRCO] was responsible for the collection of the revenue related to applications for civil immigration rendered abroad on behalf of the Department and Home Affairs”. He added that “all money received by the Department according to section 1 must be paid into the National Revenue Fund of the Republic and accounted for by the Department”. He asked whether there were other funds collected apart from those from Home Affairs. His proposed suggestion was to add “and as well as any other revenue”.

Mr Mokgalapa said that Clause 10 was important and should be clarified. He said that when the Committee met with the Department of Home Affairs (DHA), they had been informed that there was a disjuncture and confusion regarding collection of revenue between the DHA and the DIRCO. He enquired whether Clause 10 explicitly addressed this confusion and where the Department stood on this issue. He further asked who accounted for the money collected abroad -- the National Revenue Fund or the DHA.

Ms T Kenye (ANC) said that this was a challenge in the Department, as there was little accountability for money collected abroad.

The Chairperson stated that in order to understand, one had to be aware of the old scenario versus the new scenario. In the old scenario, employees of Home Affairs would collect money, but under foreign missions, that money would be given to the National Revenue. The confusion was due to a change of process.

Ms Mosala said that the collection of revenue was previously discussed by the Committee and the DHA. Home Affairs had requested that the advisors develop a formulation concerned with the collection of revenue. Mr Mpumlwana had satisfied that request.

Mr Mahoai addressed Mr Mpumlwana’s question on funds collected abroad, stating that the funds collected by Home Affairs were the only revenue collected abroad. The Department believed it should be responsible for collecting revenue abroad to ensure accountability.

Ms Raphuti proposed an addition to Clause 11 (Locally recruited personnel, LRP). Clause 11 should read “South African citizens and non-South African citizens who are authorised to work in terms of the law of a foreign state may be employed as locally recruited personnel at a South African mission in that foreign state”.

The Chairperson asked for clarification on the definition of ‘non-South African’ citizen.

Mr Mahoai said that LRPs were individuals who were South African citizens, but were not recruited as diplomats. If a diplomat sought the services of a domestic worker, for example, then that individual had to acquire a permit to work at that mission .The domestic worker in this scenario was a citizen but was not going abroad via a posting by DIRCO. He added that there were no regulatory mechanisms for such individuals.

Mr Lekota said that an area that had not been discussed was that of the diplomats’ children. Diplomats’ children usually lived abroad for many years and in this time were separated from the South African culture and language. It may be helpful to develop a system or programme that supported them in keeping a connection to their culture and language. He suggested a ‘little South African’ community in the mission that was established through employing people to acclimatise diplomats’ children to the South African culture and languages.

Mr Mokgalapa said that the definition of locally recruited personal was unclear. He said that LRPs were a challenge for DIRCO, given the number of times it had been taken to court over labour disputes in connection with this. He asked how LRPs could be properly regulated.

The Chairperson clarified that when the Committee spoke to DIRCO regarding LRPs, the Department had said that in some countries abroad there was no mandatory age for retirement. Apart from the retirement age, the labour laws in other countries differed from South Africa. Therefore, South African citizens had to comply with the labour laws of the country they were residing in. The Clause 11 formulation proposed by Ms Raphuti was concerned with this challenge.

Mr Mpumlwana said that it was unacceptable for a South African mission to employ a South African and then require them to comply with residence state laws that may be unfavorable compared to South African law. He gave the example of the minimum wage, stating that South Africa had a higher minimum wage than Kenya, for example, and it would be unacceptable to subject a South African citizen to that.

He said that Clause 11 must make a distinction between a locally recruited person that was subject to the laws of the resident country, and a South African citizen working abroad but was still subject to the laws of South Africa. He explained that the distinction would reduce the conflict between the resident state and South Africa. The mission was the South African government and it must observe the South African law applied to its citizens. He concluded that the formulation only referred to citizens subject to the local law, and that should be explicit.

The Chairperson said that in the definitions, LRP meant workers recruited from the resident state to work at a South African mission, meaning they could be a French citizen living in France and was employed by the South African mission to be a driver, for example. (

Mr Mpumlwana said that in the embassy in London, for example, there were South Africans that had residency in the United Kingdom and were also employed by the South African embassy. He asked whether these employees were LRPs.

The Chairperson stated that South Africans who had residency in other countries and worked for the South African embassy in that resident country were LRPs because they resided in the resident state and not South Africa.

Ms Mosala said that the challenges associated with LRPs had been discussed by the Committee previously, and it had been concerned with the security issues associated with hiring citizens of foreign states to work for a South African mission. She added that the Clause 9 (now clause 11) reads: “South African citizens who were resident,” therefore an LRP could be a South African citizen but had residence in the resident state before being employed by the South African embassy. She said that the Committee had suggested that the embassies recruit South Africa citizens who were already resident in the foreign state. The LRP could either be citizens of the foreign state or South African citizens that were a legal resident in the foreign state. The proposal by Ms Raphuti echoed the Committee’s previous suggestion that the definition of LRP should include South Africans who were legal residents of the state where the mission was located.

The Chairperson suggested that DIRCO look into vetting of all mission employees, including LRPs. He said that LRPs could be trade attachés or intelligence officers. He further asked how DIRCO could safeguard national security regarding LRPs.

The Committee all agreed to Ms Raphuti’s formulation of clause 11.

The Chairperson said that the Committee had previously discussed including Clause 12.1 regarding the inspection and monitoring of South African missions (Inspection, Risk and Compliance) in the proposed FSB. He said that Clause 12.1 should read: “the department must periodically inspect, access and monitor the administration and operations of each South African mission in order to proactively identify and address areas of risk for the functioning of the mission”. Clause 12.2 should read: “the inspection may include an assessment of; a, the performance and compliance of the mission with all relevant policies, codes, laws and prescripts; b, financial and asset management, personal matters, conflict management, on performance, protection of whistle blowers and the general wellbeing of the mission.” Clause 12.3 should read: “the department must take all the necessary steps to mitigate and address the matters which have been identified in terms of subsection 1.” He said that this clause ensured periodic inspections of the missions.

The Chairperson addressed Mr Mpumlwana’s question on whether the Committee should legislate regarding the inspection and management of missions.

Mr Mpumlwana said that legislating for the management of missions was micro-managing. There were already codes and mandates in place for management, therefore legislation was unnecessary. “Periodic inspection” was an established duty, and certain employees were recruited to supervise.

The Chairperson agreed and said that there were many risks and weaknesses associated with foreign missions, such as LRPs, immovable assets and misconduct by officials. It was with this understanding that the clause was formulated to ensure that DIRCO had an oversight role in inspection and management, and would therefore be accountable. The missions should ideally be in compliance with inspection and management protocol, but through the years it had been observed that the missions had been found to be non-compliant.

Mr Mokgalapa said that part of legislation practice was to adopt best practice. Study tours were a mechanism to establish best practice. The Committee had gone on a study tour to Canada, which had appointed an Inspector General whose function was to perform random inspections of their missions. Under the current economic environment, the Department could not appoint an Inspector General, so the best option was not legislate the need for inspection to ensure the missions were efficiently and adequately functioning. At times, the managers within the missions were indifferent and uninterested in complying with regulations, so this legislation combated that occurrence. He added that this clause did not aim to micro-manage but to ensure compliance.

Ms Raphuti said that Clause 12 was appropriate, given the observations of the Committee. This clause was necessary because it allowed DIRCO to assist the Head of Mission. There were some employees who became depressed abroad because of the treatment they received from colleagues. She motivated that this clause would enable DIRCO to identify and intervene in time and appropriately.

Mr Mpumlwana reiterated the statement he made earlier about being wary of micromanaging. The Committee could not legislate on irregularities beforehand but could call the offender to order when a transgression occurred.

The Chairperson said that Mr Mpumlwana’s view on micro-managing was a minority stance.

Ms Mosala said that Clause 12 had been discussed by the Committee previously and it had agreed to include the amendment to the FSB.

The Chairperson confirmed that the Committee had agreed to the inclusion of clause 12 (Inspection and Monitoring of South African Missions) into the FSB.

Ms Kenye proposed that Clause 11 (Offences) in the previous FSB be included as Clause 14 or 15 in the new FSB. It should be clarified and termed ‘criminal offences’. Only two paragraphs in the old FSB were concerned with offences. The clause states that an official found guilty of an offence was subject to a fine of R50 000. She proposed that the clause include five sub-sections, adding the offences of fraudulent certificates and corruption. The previous FSB reads: “1. A member of the Foreign Service may be prosecuted in the Republic for the offence committeed in the territory of a foreign state in accordance with section 110A of the Criminal Procedures Act (51) of 1977. 2. Any person who under the false pretense of being a member of the Foreign Service, engages in any activity that a member of the Foreign Service would engage in their ordinary cause of duty on behalf of the Republic, was guilty of an offence and liable to the imposition of a fine or imprisonment, but not exceeding two years”. The proposal extends the stipulated sentence to two years instead of one year. She further proposed that the fine of R50 000 should be dependent on the severity of the offence.

Ms Kenye explained that due to the reality of falsifying certificates, the proposed sub-section 3 should read: “any person who by means of a false certificate or any false representation of papers, to comply with the regulations of section 4 of this act and was transferred to a South African mission, was guilty of an offence and was liable on conviction to a fine or imprisonment for a period not exceeding five years”.

She further proposed that subsection 4 should read “a member of the FS who, by virtue of being a member of the Foreign Service, uses the resources of the Republic for financial benefit was guilty of an offence and liable on conviction of a fine or imprisonment for a period not exceed five years.

Lastly, Ms Kenye proposed that subsection 5 should read “any member of the foreign service whose verbal or physical conduct brings the republic into disrepute was guilty of an offence and liable on conviction to imprisonment not exceeding two years.

The Chairperson asked what Ms Kenye defined as physical conduct. He asked the Committee whether it was the responsibility of the Committee to stipulate sentencing.

Mr Lekota clarified that the clause reads ‘not exceeding,’ so the Committee was not stipulating the sentences but giving guidance by placing appropriate boundaries.

Mr Mokgalapa echoed the Chairperson’ concern and enquired as to what the effect would be on the judge’s sentencing power if this act stipulated sentencing boundaries, and whether the Committee had power to place such boundaries. Stipulating sentencing boundaries may contradict existing law and disallow the judge from making judgments based on specific situations that could not be accounted for beforehand. He suggested that they do no stipulate sentences as there was establish criminal legislation that served this function.

The Chairperson said that there were times when South Africans did not register with the consulate when they arrived in a foreign state, and then were arrested for drug smuggling, for example. Some states had the death penalty for such an offence, but South Africa did not. Some states did not extradite. The country where the offence was committed may stipulate a harsh penalty, but the proposed clause 14/15 states that the citizen could be extradited and would not receive a sentence ‘exceeding five years’.

Mr Lekota clarified that the offences were not concerned with illegal behaviour, but with misconduct. The judiciary would formulate the offence within already established offences such as espionage, fraud (falsifying certificates) or treason (behavior that may bring disrepute to the Republic).

He said that the term ‘physical conduct’ was broad because it could mean physical assault, rape or attempted murder. The judiciary would form the offence in a way that made the stipulations of this act moot because of established mandatory sentences. He suggested that the Committee should not be concerned with sentencing.

The Committee agreed to add Ms Kenye’s proposed clause into the FSB without the stipulation of sentences.

Ms Raphuti proposed that Clause 16 (Regulations) be added to the FSB. She further proposed that the regulations should be shown in alphabetical order.

Mr Mokgalapa said that it was necessary to have the formulations in writing.

The Chairperson added that all formulations should be submitted in writing.

In connection with trading resources, some states communicated and signed agreements with Mayors to bypass Ministers. The Chairperson gave the example of a situation that transpired in Mpumalanga. A state could not get what they wanted from the Minister of Trade, so they bypassed the Minister and signed an agreement with the province to acquire timber from Mpumalanga at an unfair price. He added that the sold timber did not fall under the jurisdiction of the local municipality. The matter came to the provincial government when the owners of the timber business raised issue. The provincial government found that a chief was being paid for the timber by the foreign state. He added that there were MoUs between provinces that were being developed to bypass decisions made by the state’s cabinet. The DIRCO Minister should be made aware of all international trade taking place within government.

Mr Mokgalapa said that there may be institutional challenges, as there were three bodies involved. There was far too much to regulate with cities and provinces. The Committee and DIRCO could regulate only at a national level. At times, the nation may have an issue with a particular country, but provinces would have relations with it despite this. He said that clause 7 (Establishment of coordination and other mechanisms) in the previous FSB regulated inter-governmental relations to ensure the establishment of coordination and other mechanisms.

Mr Lekota said that the Committee should be cautious about legislating on inter-governmental relations. International relations differed from state to state, so those at the local, provincial and national level should be educated and informed about the powers all spheres had in conducting trade. A province or a municipality could not commit the country to an agreement with another country, because this could lead to a misunderstanding and even war. The National Constitution regulated on this matter.

Ms Mosala clarified that serious offences had clear directives which were stipulated in paragraph 1 of Clause 15. It stated that if an offence was of a criminal nature, it would be subject to the Criminal Procedure Act. Any criminal offence that was committed abroad would be tried as if it was committed in South Africa.

Mr Mpumlwana said that if the Committee stipulated an offence, then it must stipulate the sentence. He suggested that the decision to remove sentencing from Ms Kenye’s proposal be revised.

Ms Mosala said that the Committee had previously been advised that they could remove the amount of the fine (R50 000), but must give a stipulated sentence for an offence committed. The Committee had agreed on stipulating sentences that read “not exceeding,” to give the courts leeway and discretion on sentencing.

Mr Mpumlwana said that if a fine was stipulated, the amount must be stipulated along with it, but it could not be in contradiction with the Criminal Procedure Act.

The Chairperson stated that adding sentences to regulations was moot, given that the sentences were laid out in the Criminal Procedure Act.

The Committee agreed to adding the formulation by Ms Kenye without the sentences.

The meeting was adjourned.



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