Diplomatic Immunities & Privileges Amendment Bill: Departmental briefing

Meeting report

Diplomatic Immunities and Privileges Amendment Bill (the Bill): Department of Foreign Affairs (DFA) briefing
Adv JoAnn Schneeberger, Acting Chief State Law Advisor, DFA, said that the DFA proposed to amend the Diplomatic Immunities and Privileges Act, 2001 (Act No 37 of 2001) with the Bill tabled before the Committee.

The Bill would seek to make technical amendments to the principal Act: in Section 2(2)(b) that pertained to the definition of a diplomat’s family, Section 9(2) that pertained to the publication of the Diplomatic List, and Section 9(3) that addressed the confirmation of immunities and privileges.

Adv Schneeberger indicated that the rationale behind the proposed amendments was to harmonise existing legislation and to align South African and international best practice. This would include the redefinition of a diplomat’s family to include the level of dependency, rather then on travel documents. In an extension of the proposed amendments, the DFA indicated that it would also publish the Diplomat’s List at regular intervals and on the internet, rather then having it published annually in the Government Gazette, and would confirm diplomatic status by the provision of official confirmation of a person’s diplomatic status whenever the need arose, not only in a court setting.

She then went through the proposals in more detail. In its current form, the Act defined a diplomat’s family members in section 2(2)(b) as including spouses, minor children and children between the ages of 21 and 23 who had been undertaking full time studies at a local institution, and any other unmarried child or other family member officially recognised as a dependent member of the family by the government of the sending State, the United Nations (UN) or any other specialised agency or organisation.

The Bill proposed to replace this definition with a definition of family members as spouses, dependant children under the age of 18 years, any other dependant family member, officially recognised as such by the sending State or the head office of the UN, specialised agencies and the life partner if officially recognised by the sending State, UN or other specialised agencies and organisations.

These amendments had been deemed consistent with international practice as they allowed for the formal recognition of life partners, whether in heterosexual or in same-sex relationships, and for dependence to be determined by cohabitation and financial dependency.

Section 9(2) of the Act as currently worded compelled the Minister of Foreign Affairs to annually publish a list of all people on the diplomatic register. The Bill would now compel the Minister to publish this register on the DFA’s website, which would be updated in real-time and made available on the Internet. This would ensure a reliable and up-to date diplomatic list that could be accessed by the public and a predictable, yet flexible mechanism for registering dependents of members of the family of the diplomats. This shift in policy would be advantageous as it would be user friendly and save the Department the costs of R100 000 required for publication in the Government Gazette.

In relation to the proposed amendments to section 9(3), Ms Schneeberger noted that it would serve as the official confirmation of diplomatic standards and to better service delivery to the public. Previously, a certificate could only be issued in confirmation of a person’s diplomatic status after the matter had been referred to court. This would now no longer pertain.

Discussion
Mr M Ramgobin (ANC) said that the redefinition of a diplomat’s family brought clarity, but also confusion as it failed to address the reality of the practise of polygamy in some countries.

He also sought clarity on the diplomatic status of the children from such polygamous unions..

Ms Schneeberger replied that these people would be accommodated if the sending State recognised their diplomatic status.

Dr S Pheko (PAC) asked whether the proposed amendments would also make provision for children born outside of a marriage.

Ms Schneeberger said that the same principle applied and they would be recognised if the sending State recognised their diplomatic status.

Mr D Sithole (ANC) said that he found it interesting that African States had particularly been named in the objects of the Bill. He requested more information on why there had only been reference made to African States.

Ms Schneeberger replied that there had been other countries as well with different but problematic diplomatic immunity and privileges. African States had been named due to South Africa’s role in Africa, and other sensitive matters.

Ms R Barnard, Director, State Protocol: DFA,said that countries such as Czechoslovakia, Denmark, Latvia and Thailand were a few of the non-African countries that had different arrangements.

Ms S Camerer (DA) said that she was doubtful whether the new policy on the publishing of the Diplomatic List would work in practice, as there would be more room for error and added workload constraints placed on the existing DFA staff.

She added that it was pertinent for the DFA to specify who the final authority was as the amendments did not clarify this.

Dr Ayanda Ntsaluba, Director-General, DFA, replied that the real-time registration would be done electronically and that the system would generate a new list automatically.

Ms Barnard added that the new system would also form part of the DFA’s Business Process Management System.

Mr Sithole noted that real-time availability of the Diplomatic List was very ambiguous as no emphasis had been placed on the time frames involved. He asked why the DFA was so willing to issue the certificate upon arrival in South Africa.

Adv Schneeberger said that this would ease the workload within the DFA and that it would ensure effective management of the Diplomatic List. The Confirmation Certificate would help with legal disputes in that it would save having to use financial and other resources to bring the matter to Court in order to obtain proof of a person’s diplomatic status.

Mr Sithole said that the response given by Adv Schneeberger was problematic, as it would prevent South Africans from taking diplomats and their family members to court over civil matters such as money owed.

Adv Schneeberger replied that South Africa had a duty towards the Vienna Convention on Consular Relations, which had set-up different avenues of recourse in the examples cited by Mr Sithole. She said that if South Africans had occasion to sue a diplomat or any of his/her family members in court, the courts would not proceed, as they would determine the person’s diplomatic immunity. The dispute could thus be dealt with via diplomatic channels. However, the diplomat’s or family members’ diplomatic immunity could be waived at the request of the receiving or host nation, the receiving nation or host nation could declare the relevant persons persona non grata or the embassy could resolve the matter.

Ms Barnard stated that the DFA had a well-organised Unit that dealt with immunity disputes.

Dr Ntsaluba added that the Confirmation Certificate would also enable South African landlords to speedily verify the diplomatic status of a purported diplomat wanting to rent property on arriving newly in the country. This would avoid any uncertainty in a situation where the diplomat’s name had not yet been placed on the Diplomatic List or advertised in the Government Gazette.

Mr Pheko asked whether the Bill was in line with diplomatic and international best practices.

Ms Barnard noted that the Bill was in accordance with the Vienna Convention on Consular Relations, the principle treaty bodies that governed diplomatic/consular relations and that the DFA had already begun with colour coded documents that specified the person’s level of diplomatic immunities and privileges. She added that the  Convention allowed signatories to define” member of the family” in terms of their own laws.

Mr Sithole asked how the DFA intended to spend the R100 000 it would save by no longer having to publish in the Government Gazette, within the current financial year.

Dr Ntsaluba replied that during the DFA’s annual Strategic Budget presentation to parliament, it had indicated that there had been several programmes that had been planned for, but where funding was not available. The R100 000 would thus be allocated to these projects.

Mr A Beukman (ANC) asked which countries South Africa reviewed as part of its international best practice research.

Adv Schneeberger noted that the research conducted on these countries had been of a legislative nature, and that it included countries such as Malawi, Canada, the United Kingdom (UK) and the USA.

Mr Pheko asked whether all of the eight countries reviewed by the DFA were Western countries.

Ms Barnard replied that not all of these countries had been Western countries, as they included Malawi.

Mr Beukman asked whether the DFA systems were ready for the new verification system.

Ms Barnard replied that all the systems had been put in place and that the DFA would be able to adequately fulfil its functions.

Mr B Skosana (ANC) said that the proposed amendments brought clarity on certain issues that pertained to the diplomatic community and that it was imperative for the Portfolio Committee members to be empowered on the Vienna and Havana Conventions as the practical implications covered a wide scope.

Dr A Luthuli (ANC) asked to what extent the DFA became involved in family disputes.

Adv Schneeberger replied that only in extreme cases would the DFA become involved in trying to mediate and resolve the issue at hand, after being informed of it by a family member or third party

Mr Skosana asked to what extent other consular officials such as technical staff and household staff enjoyed diplomatic privileges.

Adv Schneeberger stated that the Havana Convention on Consular Relations had very clear guidelines on diplomatic immunity and privileges, and that technical and household staff and their dependents would not enjoy the same diplomatic immunity and privileges as those of the principal diplomat and his/her family.

Mr Sithole asked what would happen if two diplomats from different countries were married and one was posted to a third country.

Dr Ntsaluba said that the same principle applied as with spouses. Spouses and minor children were generally easily accredited.

Mr Sithole asked why the DFA did not insert the ruling by the Constitutional Court on the issue of life partners in section 2(2)(b) so that it could be in line with the Constitution.

Adv Schneeberger said that after consultation with the Office of the Chief State Law Advisor the DFA had decided on an outwards-looking approach by defining “life partners” as there was the need for consistency in matters related to dependency and the official recognition by the sending State.

She noted that in countries where Shariah Law was practised, cohabitation before marriage was not allowed. Therefore, South Africa would not send life-partners to these countries.

Mr Gideon Hoon, State Law Adviser, Office of the Chief State Law Adviser, added that the outward-looking approach was more general and applicable to certain areas.

Dr Luthuli asked whether South Africa employ any gay diplomats and their life partners,  given the fact that countries such as Zimbabwe had anti-gay legislation.

Dr Ntsaluba replied that during the application process most candidates disclosed their sexual orientation, whilst others come to the DG personally. This helped to facilitate the selection process by placing individuals that were involved in same sex relationships in countries that did not have legislation against gays and lesbians. He added that there had been instances where diplomats had been recalled and redeployed to “friendlier” countries after the DFA had been approached by receiving States and the diplomats themselves.

Mr Pheko asked to what extent other countries reciprocated the measures instituted by the DFA.

Dr Ntsaluba noted that the amendments related to the problems that had been experienced in certain States. The DFA had required a change in the Act rather then seeking reciprocity, as South Africa had a struggle in placing same sex couples, even in the United States. He said that given the history of South Africa’s discrimination, the DFA had been very sensitive to the plight of same sex couples and would thus not send them to “unfriendly” countries.

Mr Pheko said that he found it strange that the DFA would have a struggle,  as most countries seemed to be accommodating of same sex couples.

Dr Ntsaluba replied that there had nonetheless been a struggle, but reiterated his previous remarks on attempting not to send these couples to countries where they would experience discrimination.

The meeting was adjourned.