The Foreign Service Amendment Bill was adopted clause by clause. Areas that were discussed at length were “assets,” and the criteria for Heads of Missions.
Some Members urged that Heads of Missions “must” have management skills and experience, it could not be “may” in the legislation. However, after discussion, the Chairperson made a majority ruling for the use of “may”. The Economic Freedom Fighters (EFF) had a minority view against the use of “may,” and called for the use of “must” in the clause.
On Clause 9, Members debated whether assets should be referred to as immovable, as this excluded movable assets, but it was decided that the clause would continue to refer to immovable assets, as other legislation dealt with movable assets, and immovable assets were a primary concern of the Bill.
Members discussed the naming of the State Land Disposal Act of 1961 in clause 9, and the majority view was that the Act should not be named. Clause 11 related to inspection and monitoring of South African missions was expunged, as the practicality of implementing its provisions was questioned.
The entire Bill was adopted, and a report would be completed by 22 November. If adopted, the Bill would go to the National Assembly.
Foreign Service Bill: Deliberation
The Chairperson said Members had to have the original bill, in which some sections amendments had been made. He also referred to the B-list and the A-list, which was titled “Proposed Amendments,” which would be the principal guiding documents. A lot of hard-work had gone into this Bill.
The Chairperson, on page 3 in the A-list document, read the long title for the Bill. ‘‘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 the operations of the Foreign Service in a global environment; and to provide for matters incidental thereto.’’ He asked Members; opinion on the long title.
Ms D Raphuti (ANC) endorsed the long title and proposed it be adopted. She was seconded by Ms S Kalyan (DA).
Arrangement of Sections
The Chairperson, on Page 8, under arrangements of sections, said rearrangements were made.
Mr D Bergman (DA) questioned the omission of ‘‘Assets’’ and the substitution of ‘‘Immovable assets’’. Some missions had taken or handed over priceless paintings, and how would this Bill deal with this? For example, in Namibia, title deeds had been taken. Where would there be a provision so that the Ambassador may not remove valuable assets?
The Chairperson responded that the section was referring to the arrangement of sections and not substantive matters. The matter would be discussed when that clause of the Bill was discussed.
Mr Bergman moved the adoption of the arrangement of sections, and was seconded by Ms R Lesoma (ANC).
The Chairperson read clause 1(1) in the A-list: “On page 2, after line 19, to insert the following definition: ‘‘‘acquire’ in relation to an immovable asset, means acquisition through construction, purchase, lease, acceptance of a gift outside the Republic or by any other lawful means, for use by the Foreign Service;’’
Ms Kenye moved the adoption of the insertion.
Ms Dineo Mosala, Content Advisor, advised that each entire clause should be adopted ,and not each insertion.
Mr L Mpumlwana(ANC) on assets, asked if it referred only to immovable assets, and not movable ones as well.
The Chairperson said Members should focus on clause 1 adoption.
Mr Mpumlwana responded that he was commenting on clause 1.
Ms Lesoma asked about movable assets, and how these assets would be accommodated.
Mr Bergman suggested that under arrangements, the simplest way was to add a statement in clause 9 that any asset over a certain value would fall under immovable asset requirements.
The Chairperson requested further clarity in relation to assets.
Ms Regina Mhaule, Deputy Minister: Department of International Relations and Cooperation (DIRCO), said this was a definition of immovable assets, but the substantive matter would be discussed when Members got to the specific clause.
Mr M Lekota (COPE) suggested that movable assets be placed in a catalogue and perhaps say all items in the catalogue were immovable, based on their value.
Ms C Dudley (ACDP) said “immovable assets” was a restrictive term, and suggested the removal of the term “immovable”.
Mr Mpumlwana said he was covered, because immovable assets had been a main concern when the Bill was created. The Bill was dealing with the major issues related to immovable assets.
Mr Bergman said he agreed with Ms Dudley on the removal of “immovable”. There was no legislation for dealing with assets such as artworks which had high value, and which can be given away or deemed to be gifts. If he could be provided with legislation that covered these concerns, he would be satisfied. If it was covered under the Government Immovable Asset Management Act (GIAMA), then he would be satisfied.
The Chairperson said he also required clarity. He had sympathy for Mr Bergman, because missions had immovable and movable assets. The Department had qualifications for movable assets, but it had been found that there were immovable assets which were not in the register. What Members saw in Namibia was that there were movable assets that had a high value.
Ms Raphuti asked for clarity on removable and movable assets. An asset was an asset, whether removable or not.
Mr Mpumlwana said the Bill talks about immovable assets, and if guidance on immovable assets was wanted, it was another matter. Movable assets were not necessarily expensive -- they could be items such as cups and spoons. Measures for handling immovable assets were one of the main objectives of the Bill. Moveable assets had registers. This Bill was addressing immovable assets by making specific provision for them.
Ms Kalyan said that it was not mature to make a comment that Members wanted to count cups and spoons. Since the bill was introduced, matters had evolved and for example, paintings were given as gifts and were sold for a large sum. The reality removable assets which had a significant monetary value were the concern. There had to be distinction that gifts were not given to the ambassador in a personal capacity, but were rather gifted to the mission. The Bill did not make provision for movable assets of high monetary value. She proposed clause 1(1) say “acquire in relation to immovable or removable assets that have significant monetary value” or alternatively remove the word “immovable” and discuss the matter in clause 8.
Ms Dudley responded that the clause should say “immovable assets and assets over a specified value” instead.
The Chairperson said the Director General (DG) would respond.
Mr Kgabo Mahoai, DG: DIRCO, said the Department’s understanding was that there was cross-referencing with the Public Finance Management Act (PFMA) which was concerned with revenue, the expenditure and assets and liabilities which were currently accounted for by accounting officers, and all acquisition and disposal was taken care of. His belief was that there did not have to be legislation on top of what was already legislated for. Hence immovable assets were related to custodianship of the Minister of DIRCO for the foreign service, and that was why it was correct to say immovable assets. Movable assets were made up of tangible and intangible assets including heritage assets. The qualifications based on assets were in place, but not all assets in the register could be verified on the floor or the register. Immovable property could not be acquired or disposed of, which was the concern of the Bill, as Mr Mpumlwana had said. The Bill was not substituting the PMFA, because it was already conferred to the Department do that. Immovable assets could not be dealt with, because it was not in the Minister’s power. The original bill had “assets,” and through the Committee’s wisdom the matter had been dealt with. The PMFA dealt with the other matters.
Ms Mosala said the Bill was concentrating on immovable assets, hence the definition was changed and the word “assets” had been removed and “immovable assets” added. The real issue for the Bill was to give power to the Minister to be a custodian of immovable assets. She advised that the Committee should focus on whether the definition was correct, and not discuss the content for now.
Adv Sandea de Wet, Chief State Law Adviser, DIRCO, said the DG had explained how assets were dealt with under the PFMA and government’s procurement policy, and the Department did not want to deviate from that. On suggestions of including a threshold for assets of a certain monetary value, she said if this element was included it would create difficulty for implementation, because assets would have to valued. If the definition was changed in clause 1, then there would have to be major amendments in clause 9, because that clause only mentions legislation such as the Government Immovable Asset Management Act (GIAMA), which deals with immovable assets and no other assets.
Mr Bergman said if GIAMA and the PMFA covered movable assets, then he was covered and accepted “immovable assets”.
Ms Kenye said the amendment on page 2, in line 25, to omit ‘‘including’’ did not make sense because the sentence would not make sense if it was omitted. If “contemplated in section 2” was omitted, it would also not make sense. Why not add a full stop after “...(1994)”?
The Chairperson said it had been decided last week that it would be removed and had been discussed, and it was unfortunate that Ms Kenye was not at that meeting.
Ms Kalyan agreed with Ms Kenye that if the word “including” was deleted, it would not make grammatical sense.
Adv de Wet agreed that it did not make sense. The word “including” could be removed, but the word “and” would have to be inserted because it referred to persons appointed to the Department, other departments and Members of the foreign service that might be on contract. On “as contemplated” in section 2, the Committee decided to remove it because the term foreign service was referred to in other sections of the Bill as well.
Ms Lesoma asked how “it includes members” on last line in the B-list made sense.
Ms Dudley said it read well in English, because it was a list, and “and’ was usually before the last item in a list.
The Chairperson said “including” would be removed and “and” inserted.
Mr Mpumlwana said “including” was more appropriate, because it was including those employed by the Department or any other national department and locally recruited members.
Ms Dudley said it was not necessary to insert including, because “and” inferred that those Members were included.
Mr Lekota suggested it read “and members…”.
Adv Suraya Williams, Principal State Law Advisor, Office of the Chief State Law Advisor (OCSLA), said if all the amendments were effected it would read as depicted in the B-list: ‘‘employee’’ means a person appointed to the Department or to any other national department in terms of the Public Service Act, 1994 (Proclamation 103 of 1994), or any other legislation, and includes Members of the Foreign Service.
The Chairperson requested Members to draw attention to which document they were referring, and asked if there were any other issues on clause 1.
Mr Mpumlwana said the definitions in the B-list document were not in alphabetical order.
Adv Williams said it was noted, and the definitions would be aligned correctly in alphabetical order.
Ms Lesoma moved the adoption of clause 1. and was seconded by Mr Mpumlwana and Ms Dudley.
On page 3, after line 26, to insert the following new clause after clause 1, and renumber the existing clause 2 as clause 3, and the subsequent clauses accordingly.
The Chairperson said the clause was saying staff from other departments such as Home Affairs, for example, were included as members of the foreign service, and this Act would prevail over the Public Service Act, 1994, (Proclamation No. 103 of 1994), or any other legislation.
Ms Lesoma moved the adoption of clause 2, and was seconded by Mr Bergman and Ms Dudley.
Ms N Mashabela(EFF) suggested that Members go clause by clause, and not each line.
The Chairperson responded that matters had changed, so Members’ considerations had to be accommodated.
Mr Lekota moved the adoption of clause 3, and was seconded by Ms Lesoma
Ms Lesoma said she had to withdraw her secondment, so that Ms Kenye could be heard.
Ms Kenye asked for clarity on the amendment in the a-list, which called for the insertion of “as prescribed” after “dignitaries” in line 46 on page 3.
Ms Mosala responded that it would read: “render protocol services to designated foreign and national dignitaries as prescribed,” after amendments were effected.
Ms Lesoma seconded Mr Lekota.
Ms Kalyan moved the adoption of clause 4, and was seconded by Ms Lesoma.
Mr Mahoai referred to clause 4(2) in the B-list, which states: “The head of a national department must, in writing, notify the Director-General of an employee who has approval from that national department to be transferred to a South African Mission,” and asked if there was provision made in the event of a transfer from a provincial government.
Ms Lesoma responded that it was covered, because the Bill made provision for the three spheres of government and intergovernmental relations.
Mr Maila suggested that sub-section 2 should say “…must, in writing, notify the Director-General of an employee who has approval from that national department or provincial government”.
The Chairperson asked what would happen when the head of province transferred an employee to a mission.
Mr Mahoai said a practical example was Cuba, where provinces sent students to study and transferred employees to missions. He suggested it should be in the regulations for provincial secondment to be facilitated through the national department.
Ms Lesoma on page 3, clause 3(2), line 56, suggested “national department” be replaced with “all spheres”. She asked the legal team to address her suggestion, and the DGs question.
Mr Nathi Mjenxane, Legal Advisor, said the change proposed by the DG might change the classification of the Bill, because currently it did not have implications for other spheres. To clarify, there was a provision in the Bill’s regulations to address secondment.
Ms Dudley, on clause 5 sub-section 3(c), said Heads of Missions “must” have management skills and experience, it could not be “may”. On sub-section 3(d), she said no one person could reflect diversity broadly, as diversity could only be reflected collectively.
Ms Raphuti said the issue of “may” was about continuous professionalisation development, because making it “must” have experience would be too restrictive.
Mr Lekota said “may” have skills was not appropriate. Heads of Mission had to have skills, therefore it had to be “must”. “May” could refer to reflecting the diversity of the country.
Mr Maila, in response to Ms Dudley, said the diversity requirement did not refer to one person but to all Heads of Mission collectively. These matters had been discussed last week, and the issue of “may” versus “must” had been vigorously discussed. It was agreed last week that sub-section 3(b) should state “may have relevant knowledge and experience,” but the capturing was not correct as it stated “may have relevant knowledge and experience in international relations.”
Ms Kenye said gender and racial diversity were limiting, and therefore the term diversity was used for broadness and inclusivity of the Lesbian, Gay, Bisexual, Transgender and Questioning (LGBTQ) community, and those with disabilities.
Ms Kalyan said she was covered, because hours had been spent on discussing this clause before.
Mr Mpumlwana, on sub-section 3(c), suggested “experience” be removed and sub-section (b) should say “may have relevant knowledge and experience,” as agreed last week. He asked if sub-section 3(c) could be expunged.
The Chairperson said that there had been agreement last week, and asked Mr Mpumlwana for clarity on what had to be expunged.
Mr Mpumlwana said if 5(3)(c) was not expunged, “and experience” could be omitted. It should read “may have management skills.”
Ms Dudley said the aim of this Bill was to professionalise the public service and the use of “may” instead of “must” could undermine this aim. On 5(3)(c), she said the Head of Mission “must” have management experience and skills.
Mr Mahoai said the Department had consulted with the Public Service Co-Ordinating Bargaining Council (PSCBC), and the emphasis from its labour component was that 5(3)(b) should state: “may have knowledge and understanding of...”. It was appropriate, because requiring “experience” could be a barrier if it was left as is.
Ms Dudley, said qualified audits related directly to a lack of management experience. This Bill had been linked to difficulties that had been experienced, and competent people were necessary to address difficulties.
Mr Mpumlwana said Members had agreed to leave out “international relations” in previous meetings. It was being said that “may have relevant knowledge and understanding” must be inserted, but he thought “experience” was better than “understanding of”. He said that international relations was a particular case, because someone who was not necessarily a manager could be sent to a country for a specific reason --for example, sending an appropriate fit and proper person based on presidential discretion.
Mr Bergman said he was covered. A member had to go to the academy before going to a mission and pass at the academy, therefore there were checks and balances.
Ms Kalyan said as a safeguard, training had been mandated for Heads of Mission before being sent to the Mission.
Ms Mashabela said it was important that Heads of Mission had management skills, and 5(3)(c) should say “must” instead of “may”.
Ms Dudley said the matter remained that it should be “must” and not “may”.
Ms Lesoma suggested that clause 5(3)(a) should state, ”must be fit and proper person,” (b) state “may have relevant knowledge”, (c) state “may have management skills and understanding,” and (d)“ must reflect broadly the diversity of South Africa”. She said she was not against the inclusion of “international relations”.
Mr Maila said clause 5(3)(b) should say “may have relevant knowledge and experience”.
Ms Kenye said the removal of “international relations” could lead to be challenges in court or by labour.
The Chairperson said everyone may not get what they desire, therefore a formulation must be suggested.
Ms Kalyan requested the legal team look at 5(3)(a) and check if it reads correctly.
Adv de Wet proposed clause 5, sub-section 3 (b) and (c) be collapsed into one sub-section (b) which states, “may have relevant knowledge, management skills and an understanding of international relations.”
Mr Mpumlwana said the Bill was about international relations, but an emphasis did not have to be made by including specific reference to “international relations” in clause 5 sub-section (3), because Heads of Missions would go to training and be educated on international relations before they were deployed to a Mission, and thus objections if taken to court would be covered.
Ms Kalyan asked why Members were shying away from using “international relations” and leaving it open ended.
Ms Raphuti requested that the Chairperson make a ruling on how the matter should be addressed, so that the clause could be adopted.
Ms Dudley proposed “all must be fit and proper, may have knowledge in international relations and must have knowledge and experience.”
The Chairperson said his observation was that the head of state had discretion when it came to the appointment of Heads of Mission. The political context of another state may require someone who might not have international relations knowledge, or someone suited to the dynamics of region. For example, deploying a Muslim individual would relate better in the Middle East. There was a weakness in thinking of Heads of Missions as former Members of Parliament (MPs) and sitting MPs only, because the President could choose someone from other sectors that he deemed fit and proper. The main aim was to build relations with a country and promote national interests, and the academy would take care of Heads of Mission training before they went into the position. There was no such thing as permanent international relations, but only permanent self-interest. The “may” on both 5(3) (b) and (c) should remain, because if it was changed to “must,” the country would be limited from certain talents for Missions. The only solution was to record a majority and minority view.
Ms Lesoma seconded Mr Mpumlwana’s suggestion.
The Chairperson asked if the sub-sections should be merged or not, and asked for clarity on Mr Mpumlwana’s suggestion.
Mr Mpumlwana said 5(3) (b) should state, “may have relevant knowledge and experience,” and (c) should state “may have management skills and understanding”.
Ms Kenye seconded Mr Mpumlwana’s suggestion.
Ms Kalyan asked for other options.
Ms Mashabela proposed that 5(3)(c) state “must” have management skills.
Ms Dudley suggested adding “may have relevant knowledge, skills and experience” in the place of both 5(3) (b) and (c).
Ms Raphuti seconded the merging of 5(3)(b) and (c).
Mr Maila seconded Ms Dudley.
The Chairperson said if the Economic Freedom Fighters (EFF) did not agree, it would be recorded as inflexible. The old sub-section 3 (a) remained, the old (b) and (c) merge and become the new (b), which states “may have relevant knowledge, skills and experience,” and the old (d) becomes (c).
Mr Bergman moved the adoption and was seconded by Ms Dudley and Ms Kenye.
Members took a break for lunch.
The Chairperson read clause 6 in the amended Bill [35B-2015]. He said he was reading the amended Bill which had the new formulations.
Mr Mahoai pointed out that the amended version (b-list) states “must,” while the proposed amendments (b-list) say “may” in clause 6(5). What was it supposed to be?
The Chairperson said his version had “may”.
Ms Dudley asked for a legal perspective on “must” versus “may”.
Mr Mahoai said he was covered, as he had read the wrong version.
Ms Dudley proposed that clause 6 was adopted, and was seconded by Ms Lesoma.
Mr Bergman proposed the adoption of the Clause 7, and was seconded by Ms Kenye.
The Chairperson referred to clause 8(3), and clarified that the word “guidelines” appeared, and not “regulations,” because of legal advice that said that the Minister may issue regulations that referred to all spheres of government. The guidelines could be taken to a government coordinating forum and made as binding as regulations.
Ms Kalyan asked if guidelines had the same effect as regulations in terms of enforcing implementation.
Adv Williams said that normally regulations were referred to as subordinate legislation, while guidelines were not as strong as regulations. If the Minister made regulations for other spheres, there could be challenges and it would not be feasible, even though the Intergovernmental Relations Framework Act guides how national and provincial spheres should interact. Guidelines were determined as the strongest and legally sound instrument to use.
Ms Dudley asked for a legal comment on whether “guidelines” should be inserted in earlier sections.
Ms Kalyan suggested the Committee should err on the side of caution, because guidelines did not have as much power as regulations. She was concerned that because guidelines were not as implementable and enforcing as regulations, they might not adhered to.
Adv de Wet said guidelines could be included in clause 1, Definitions, which would state “‘this Act includes all its regulations, codes, directives and guidelines”.
Ms Lesoma said she agreed, because other spheres had to be considered.
Ms Dudley said guidelines had to be added to the definitions, and proposed the adoption of clause 8. She was seconded by Ms Kenye.
The Chairperson read clause 9 in the B-list Bill, and asked why the clause did not mention the State Land Disposal Act (1961).
Adv de Wet responded that after discussion, it was determined that the State Land Disposal Act might be changed or repealed, because it was an old Act. It would be a better option to say, ”any other applicable law”. The Act would follow GIAMA, which itself referred to the State Land Disposal Act.
The Chairperson raised concern that removable assets were under the Department of Public Works, and DIRCO must comply with GIAMA, the PMFA and the State Land Disposal act. He was uncomfortable that the State Land Disposal Act had been left out by name. There may be land outside of the country which was part of immovable property, and provision had to be made for that.
Ms Kenye said the State Land Disposal Act (SLDA) should be named.
Mr Mpumlwana said it was better to say “any other act,” as opposed to “any other applicable law,” in the event the Act was repealed and the laws of the country where the foreign service was, would be covered. If an act was repealed, then the Bill had to change. He said the clause was fine as was, and there was no need to add “other act.
Ms Lesoma said one of the reasons it was agreed that the SLDA should be included was because of what had been experienced in Namibia. In Namibia, the Department had said there were nine properties, while the Head of Mission had said there were 20 properties. The discrepancy was due a lack of legislation guiding immovable assets that Missions could follow. The fact that the SLDA would be reviewed in the near future was not adequate reason for it not to be named in the Act. In the earlier stages of the Bill, Treasury regulations were included, but it was advised as unnecessary and it was agreed that “any other applicable law” should be added, but the SLDA should be named due to its importance for oversight purposes.
The Chairperson said it had been decided not to include the Treasury regulations because it was already included under the PFMA. If land gifted to a mission had to be disposed of, the SLDA, GIAMA and the PMFA would have to be referred to, therefore naming the three Acts created checks and balances.
Mr Mpumlwana said if multiple acts were mentioned, there had to be provision made for a presiding act for when there was a clash between the acts. He asked if GIAMA was the presiding act.
The Chairperson said the Minister would be responsible for immovable assets outside of the country, subject to the three acts which were of equal measure. Mr Mpumlwana was not correct in his assumption that one act was presiding. When the Minister was subject to working with other ministers, it would be in consultation. In Namibia, there were 11 properties listed but 20 properties had been found, and it was suggested that there were possibly more properties. Therefore these checks and balances were necessary to address such matters. Why should the SLDA be deliberately omitted?
Ms Kalyan said the 1961 Act was an apartheid law, and dealt only with land disposal within the Republic. She requested it not be debated further, because “and all legislation” was adequate and it was likely that the SLDA would be scrapped when it was reviewed by Parliament. The Committee had to think forward and make provision for what was likely to happen.
Mr Mahoai referred to the Namibian properties, and said the number referred to the vacant land -- it was not meant to mislead or to hide.
Ms Lesoma asked how the Committee, as oversight officers, was meant to do its job if asset registers were not accurate. She asked why Members were shying away from including the State Land Disposal Act, for reasons other than it would be repealed.
Mr Mpumlwana said there was a clash between this Act and the State Land Disposal Act, because the former gave power to the Minister and the latter gave power to the President in terms of disposal. He suggested that it should remain “any relevant act,” because otherwise provision had to be made for clashes which might occur.
The Chairperson disagreed, and said all these powers had originally been with the President, and the President had oversight over Ministers, whom he could instruct. He suggested that the SLDA be named in clause 9(3), after “Act”.
Mr Mpumlwana said the SLDA gave power to the Minister of Land Affairs, but there was no Minister of Land Affairs, and it spoke to a different regime. There would be a conflict in law if more clarification for interpretation was not provided, considering the dated nature of the SLDA.
Ms Kalyan said the SLDA dealt with only land, and not buildings.
Mr Mpumlwana reiterated that the SLDA was not relevant.
The Chairperson said the responsibility for immovable assets had been given to the Minister by this act, and it had been said that checks and balances were needed by naming the PMFA and GIAMA. This had been listed because the SLDA mainly referred to land, while the PMFA and GIAMA referred to a broader set of assets and requirements for checks and balances.
Adv de Wet said the Department of Public Works had proposed a review of the SLDA to align it with current constitutional legislation.
The Chairperson suggested the SLDA be named, but it was clear that the majority view was that referring to it was no longer relevant.
Ms Lesoma moved the adoption of clause 9, and was seconded by Ms Kalyan.
Ms Dudley proposed that the clause be accepted as read.
Mr Mpumlwana asked for clarity on clause 10, which stated, “Any person, including South African citizens, who were authorised to work in terms of the laws of a foreign state, may be employed as locally recruited personnel at a South African Mission in that foreign state”.
Mr Mahoai said all locally recruited personnel at foreign embassies were employed in terms of the domestic legislation, and were regulated in terms of local law. There were South Africans who obtained work permits and worked elsewhere.
Mr Mpumlwana seconded Ms Dudley for the adoption of clause 10.
Ms Kenye, on clause 11(2)(b), asked why “policies” were being included, because previously it was agreed that it would be removed.
Mr Maila asked what was wrong with complying with policies.
Ms Kalyan suggested “policies” be deleted.
Ms Kenye said she needed clarity.
Ms Mhaule said the point was not related, but the DG would like to depart. She said missions had daily operations which led to the creation of specific policies, and this was what the Auditor General monitored. Therefore “policies” was relevant.
Adv Williams agreed with Ms Mhaule, because the codes and directives were matters the Minister could issue. The codes and directives were under Section 12.
Ms Kalyan asked if “periodically” in sub-section 1 could be clarified.
The Chairperson responded that it meant timeously -- whether three months or within the term of Minister and inspection could conducted by the Department or Committee.
Mr Maila said “periodically” was linked to each mission, and it was unlikely to happen. He suggested it be worded differently.
Mr Mpumlwana raised concern about creating a law that the Department may not be able to adhere to, and said the clause had to be removed.
Ms Lesoma said she did not necessarily support the insertion of this new clause. The clause was adding responsibilities to the Department and missions which already had capacity challenges, and therefore monitoring was not likely be a priority. She was concerned that the responsibility would disempower DIRCO further.
Ms Kalyan said the inspection and monitoring aspects should be split. The Department must physically inspect, but then it would be placing an obligation on the Department that it may not be possible to fulfill. They should take out the inference that that was physical inspection, and maybe bring it in some other way. She suggested that “periodically inspect and” must be removed, and perhaps insert “conduct on site visits,” as “periodically inspect” created multiple challenges.
Ms Mhaule said that clause 11 was too administrative, and she did not see it fit for the Department and suggested it be cut from the Bill.
Ms Kalyan said it could be placed in the regulations because it should not be lost completely.
Mr Mpumlana proposed that clause 11 was expunged and numerical changes made. He was seconded by Ms Kalyan.
Mr Mpumlwana asked if the code of conduct and other similar things were part of the regulations.
Ms Dudley said it was not an issue, especially if it aided the Department to be more effective and efficient.
Adv de Wet said the Department thought to not have it in the regulations, because it was operation codes and would take longer to go through the regulation processes. The Minister would have the power to guide regulation and formulate an oath for high level code of conduct issues. The Department was happy for the Committee to adopt the clause as is.
Mr Maila moved the adoption of clause 12, and was seconded by Ms Dudley.
Ms Lesoma moved the adoption of clause 13, and was seconded by Ms Kalyan.
The Chairperson asked for clarity on clause 14, sub-section 5, which referred to physical conduct that brought the Republic into disrepute.
Ms Kenye asked if the offenses were dealt with in South Africa, or in the country of the mission.
The Chairperson said it was covered in section 14 (1)m and offenders were brought back and dealt with. South Africa.
Ms Dudley said clause 14(5) it had to be corrected to “to a fine,” instead of “of a fine”.
Mr Mpumlwana asked what the penalty given to a fraudster in the foreign service would be, and how the offender would be prosecuted.
The Chairperson said Members had previously agreed to remove details of penalties, such as the number of years of imprisonment, to allow the legal presiding officer discretion to deal with aggravating and mitigating factors.
Mr Mpumlwana said sub-section 5 was vague when it referred to physical conduct that may bring the Republic into disrepute, and had to be narrowed down to a correct interpretation for prosecution purposes.
The Chairperson said the members of the foreign service had to be mindful that their conduct represented the Republic at all times, and they were trained and informed on appropriate behavior.
Ms Dudley said “knowingly brings disrepute” was not always applicable, as there could be situations where the offender was not aware of the appropriate behavior.
Ms Kalyan said not knowing was not an excuse.
Ms Dudley said it would depend on the situation. If the member of staff was informed they would be committing the offence knowingly and held liable, but in certain situations, actions could be done unknowingly.
Mr Maila agreed with Ms Kalyan, because a member of staff would be educated on appropriate behaviour, and if they transgressed they would be liable.
He moved the adoption of clause 13 and was seconded by Ms Kenye.
The Chairperson asked if any amendments had been made to the section.
Ms Kaylan said clause 15(1) sub-sections (b) and (c) were made mandatory.
Ms Lesoma said sub-section (h), which was related to the activities of spheres of government, had been removed.
She moved the adoption of clause 15, and was seconded by Ms Kalyan.
Ms Dudley moved the adoption of clause 16, and was seconded by Ms Lesoma.
Adoption of entire Bill
The Chairperson said there must be approval of the adoption of the Bill.
Mr Mpumlwana moved the adoption of the Bill and was seconded by Ms Kenye. There were no objections.
Ms Mosala said the Committee had adopted the Bill, but there was minority view with regard to the submission by the EFF on the Heads of Mission clause, and this would be recorded the report.
The Chairperson asked when the amendments made would be finalised so that the Bill could be sent to the National Assembly.
Adv Williams said the changes would be made and sent to Creda by the end of the day, and by 12 noon the next day (22 November), it would be ready.
Mr Mpumlwana gave thanks to everyone who had been involved in the creation of the Bill.
Ms Mosala said the report would be ready the following morning (22 November).
Mr Lubabalu Sigwela, Committee Secretary, said there would be a meeting for the adoption of the report the following morning, which would end by 9am.
The meeting was adjourned.
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