Foreign Service Bill: discussions
15 November 2018
Chairperson: Mr M Masango (ANC)
The Portfolio Committee on International Relations and Cooperation discussed the proposed amendments to the Foreign Service Bill.
Members were primarily concerned with the clauses which related to the appointment of Heads of Missions, and offences. They questioned the criteria for the appointment of Heads of Missions, and the appropriateness of including imprisonment terms and amounts of fines in the Bill. Concerns were expressed about the separation of powers, the President’s discretion being impinged upon, and the need to maintain adherence to the strategic intent of the Bill, which was to professionalise the public service.
There were also a number of technical amendments addressed by the Committee and the legal advisors, such as the appropriate use of the terms “may,” “must” and “shall.” A draft Bill was required to be drawn up by 19 November.
The Committee secretary said if something had changed or been added to the principal bill, it must be forwarded in writing to the Speaker and go to the House. Other matters that were not in the bill would have to be discussed later. The advice was to deal with clauses of the Bill and make improvements, and send it to Creda.
Ms R Lesoma (ANC) said she believed a report should still be made. Nothing stopped the Committee from making a recommendation that the Department should monitor the implementation of the Memorandum of Understanding (MOU).
The Chairperson said there were few areas that there were interfering with other departments’ jurisdiction, so there was a need to interact with other departments and have their views considered through recommendations.
Ms S Kalyan (DA) asked for the legal advisor’s opinion on the stipulation of an imprisonment sentence in the Bill. Did stipulating imprisonment terms not cross over in to legal jurisdiction territory -- must the sanction not be determined by the judiciary?
Mr L Mpumlwana (ANC) responded that any act may put a sanction on an issue, but the problem he personally had was the broad nature of the offence -- for example, anything that embarrassed the state. What happened when it was a serious offence, such as rape, because a two-year sentence stipulated in the Bill would not be appropriate? Was there anything or other Acts that were peculiar to the internal arena to determine a crime and then give a penalty?
The Chairperson said he would give a partial explanation. The Bill made provision for when members of the public service committed a crime that may put the country into disrepute. The sanction was a guideline, and a judge would make the final decision about the sentencing.
Adv Sandea de Wet, Chief State Law Adviser, said the Department confessed to not having thought through the issue of existing legislature, but agreed with the Committee that there were existing crimes listed in clause 11(1) 3, 4 and 5, which would be covered under existing legislation. Clause 11(1) (1) indicated that a member of the foreign service who had committed an offence on the territory of a foreign state would be brought back to South Africa and charged under South African law. Sub-section 2 stated that “any person who, under 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 course of duty on behalf of the Republic was guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding two years”. This was an offence which had been created and guidelines still had to be set, but for sub-sections 3, 4 and 5 there was existing legislation for charging these offences.
Mr Mpumlwana asked for an example of a clause 11(1)(2) offence, how this was new and if two years sentencing was appropriate? Was there existing legislation to deal with imposters?
Ms Kaylan said she was concerned that the Committee was taking over the work of the judiciary by being prescriptive about sanctions. She asked if prescriptions related to the sanctions could be left out.
Ms Lesoma said that the Committee had been given a legal opinion that inserting sanction guidelines was allowed because there was founding legislation that dealt with the issue. She suggested the matter be parked and that the Committee stick to the master plan to deal with the last two clauses so there could be progress from yesterday.
The Chairperson said she was making an assumption that all legislation said infringements would be dealt with in specific way, and it would not be different for this legislation. The matter would be addressed when the Committee went through the bill clause by clause.
Mr S Mokgalapa (DA) agreed with Ms Lesoma, but said the matter of the inclusion of a maximum sentencing period had been previously discussed and there had been no report back.
Adv Suraya Williams, Principal State Law Advisor, said that one did not need to include the number years, but it did provide an indication of the severity of the crime and a threshold and guidance for the presiding legal officer.
Ms Dineo Mosala, Committee Content Adviser, said the Committee had the right to amend what the Department had proposed. The Committee had applied its mind and agreed to remove the “R50 000” and whether the threshold should be included. She cautioned against the removal of sanctions because of the problems that could come up in annual reports that related to activities of the Department.
The Chairperson asked if the sanctions were a guideline.
Adv Williams responded that sanctions were a guideline on the severity of the crime for the presiding officer.
Ms Kalyan used fraud as an example of a crime that could be committed, which faces a penalty of 15 years, and asked how a penalty not exceeding five years would be appropriate? If the five-year maximum sanction was applied, it would be too lenient. They should not stipulate the period, but say “liable to imprisonment” instead.
Mr Mpumlwana said that the same offence with different penalties in different Acts could lead to conflict. Was there anything or an offence that was peculiar, and if so, which one?
Adv De Wet said the Department had the same concern about guidelines for offences. The Department had to implement existing legislation and report offences to the police, but the Department was not doing this. A particular example of a foreign service offence was someone who committed fraud by pretending to be an official and making trade deals. However, this was not only fraud, but a case of impersonating a foreign service official as well. The Department believed that including that inluding impersonation of a foreign service official was specific offence which could be created under this Act.
The Chairperson asked if Members agreed to remove the five and two year maximum in clause 11(1)(4). Members agreed to remove the years.
Adv Williams clarified that clause 1-5 would remain, but the years would be omitted. Clause 11 subsection (2) would be omitted.
It was proposed that on page 6, after line 10, to insert the following paragraph:
“(b) the prescribed mandatory training for members of the Foreign Service as contemplated in section4(3);”
The rest were consequential amendments such as renumbering.
On page 6, after line 19, to insert the following paragraph:
“(h) the coordination of international relations across the three spheres of government; or”
Ms Lesoma and Kalyan suggested that “three” be omitted, and replaced with “all”.
On page 6, after line 24, after “Service” to omit “need not” and to insert “must”.
On Page 6, after line 24, after “Gazette” to omit “but” and to insert “except regulations relating to security matters which”.
On page 6, after line 29, to insert the following subsection:
“(4) Any regulation made under subsection(1)(h) may provide that a contravention of or failure to comply with a regulation is an offence and that any person found guilty of the offence is liable to a fine or to imprisonment for a period not exceeding two years.”
Adv Williams said she would hand over to the Department, as there was some concern around the insertion of new sub-clause 4, because the decision had been made without the Committee.
Adv de Wet said the Department was not supposed to lead the issue, and the Committee had to provide input. It was a serious legal issue.
Ms Lesoma asked what the rationale for including subsection 4 was, but indicated she had no objection to it being retained.
This clause dealt with the short title, and required a textual correction.
On page 6, in line 31, after “This” to omit “Bill” and to substitute “Act.”
On page 6, line 31, after “Bill,” to omit “2015” and to insert “2018”.
Adv Williams said the reason it was 2018 and not 2015 was because the B version of the Bill was likely to be drafted in 2018 and the Act number would change to the year when it was assented to by the president.
The Chairperson asked for clarity on the assent of the Act by the President, and when it would take effect.
Adv Williams read section 81 of Constitution which stated that “a Bill assented to and signed by the President becomes an Act of Parliament, must be published promptly, and takes effect when published or on a date determined in terms of the Act”. The President, however, could assent to the Act and it could become effective on that date, or dates could be set for specific sections to become effective. She suggested “fixed” be replaced with “determined” in clause 13.
Ms Lesoma requested that the Members discuss the clause concerning the appointment of the Head of Missions.
Adv Williams continued and proposed that on page 2, the long title should be substituted with the following the long title: “To provide for the management, administration, accountability, and functioning of a professional Foreign Service of the Republic of South Africa; to provide for the operational requirements that were suitable and supportive of operations of the Foreign Service in a global Environment; and to provide for matters incidental thereto.”
Ms Lesoma referred to clause 4 subsection 3 (b), which states that all Heads of Mission must “have knowledge of and experience of International Relations,” and asked if this meant those without relevant knowledge and experience were not eligible. The use of “must” did not allow for flexibility.
Mr M Maila (ANC) asked if the President had discretion to appoint someone who did not meet the requirements in clause 4(3)(1), because it was mandatory.
Ms Kalyan asked if “shall” rather than saying “must” could be used, as it would be a more open approach and allow for discretion.
Mr Mokgalapa added that the aim of professionalizing the public service was important, and therefore suggested using “and or” so that there was room for discretion, but not to leave it open ended.
Mr D Bergman (DA) said the requirements listed in clause 4(3)(a-d) were objective and broad, and therefore allowed the President space for discretion.
Mr Z Makhubele (UDM) added that using “and or” was not clear.
The Chairperson said ordinarily Heads of Missions were career people, but the President did appoint based on specific circumstantial conditions in certain cases, or former Members of Parliament. The President had discretion, but these individuals had to undergo some training. The clause must be left, because it aligns with the aims to professionalise the public service and did not take from the President’s discretion. The matter was whether “must” or “shall” should be used.
Mr A Williams (ANC) suggested that sub-section 3(b) should state “must have relevant experience and knowledge,” so that it did not limit the President.
Mr Maila agreed with Mr Williams.
Mr Mpumlwana said saying “must” and “shall” was the same thing. He agreed on relevant knowledge and experience, because an individual who knew nothing could be appointed and trained. He suggested the use of “may”.
Ms Lesoma said the issue of “must” and “shall” was the same, but stating “all heads of missions may” gave flexibility. She suggested the use of “may”.
The Chairperson asked if there was a case where the President had directly appointed someone and not trained them before sending them to a country. If that was the case, under certain circumstances he would use his discretion.
Ms Mosala said this was a milestone clause, as there had been a long discussion on the criteria for Heads of Mission. Using “may” would not be appropriate.
The Chairperson said “may” could undermine the President’s discretion.
Adv Williams said the Committee could have best of both worlds if the dash was placed after “Mission” instead of after “must” so that it was not applicable to all the criteria.
Ms Kalyan, Mr Mokgalapa and Mr Bergman departed.
Adv Williams asked for clarity. Should 3(b) say “relevant knowledge and experience in international relations, or “relevant knowledge and experience”?
The Chairperson said that it was agreed that all Heads of Mission must be a fit and proper person, may have relevant knowledge and experience, may have management skills and experience and must reflect broadly the diversity of South Africa.
Mr Williams asked if the clause did not impinge on the President’s power, and if it was not a challenge to the separation of powers.
The Chairperson responded that the strategic intent of the Bill was to create a public service which was professionalized, and therefore minimum relevant conditions were introduced. The Diplomatic Academy would be updated. Minimum requirements were in place, but nothing stopped the President. If one looked at broad racial and gender representation, there might be times when discretion was required so that the appropriate individual was chosen for the specific country context -- for example, the appointment of a Muslim Ambassador for an Arabic state.
Mr Mpumlwana said sub-section 3(c), which refers to the management skills and experience, should be removed.
Ms Lesoma cautioned against making changes after three Members had departed. The Constitution did require the Committee to perform, but the National Development Plan (NDP), which calls for professionalisation, must also be considered. Provision for discretion should be made, but the NDP should not be undermined.
Mr Mpumlwana said it was not correct that he should be cut short. He said when management skills in a sub-section was a requirement, it appeared as an emphasis which “must” be met and limited discretion. Management skills should therefore fall under “relevant experience and knowledge,” which was broader.
The Chairperson said he disagreed, because the appointee must be fit and proper and therefore must have knowledge and experience as well as management skills and experience. Management skills were different to relevant knowledge and experience, and were a requirement for someone who would oversee an institution and people.
Ms Mosala added it was important that diplomats had management skills as the position entails multiple interpersonal issues.
The Chairperson said a Head of Mission must be fit and proper, and may have management skills and experience.
He asked when the draft would be finalized, and if it could be done by Tuesday 20 November, as he had to write to the study group as soon as possible, and therefore the draft would be needed soon as well.
Adv Williams said a draft for the following week could be created if the finalised proof was sent to Creda by Monday 19 November.
The meeting was adjourned
Masango, Mr MSA
Bergman, Mr D
Kalyan, Ms SV
Lesoma, Ms RMM
Maila, Mr MS
Makhubele, Mr ZS
Mashabela, Ms N
Meso, Ms L
Mokgalapa, Mr S
Mpumlwana, Mr LKB
Williams, Mr AJ
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