Diplomatic Immunities & Privileges Amendment Bill: briefing & adoption

Meeting report

Diplomatic Immunities and Privileges Amendment Bill (the Bill): Department of Foreign Affairs (DFA) Briefing
Adv JoAnn Schneeberger, Acting Chief State Law Advisor: Department of Foreign Affairs, said that the Department proposed to amend the Diplomatic Immunities and Privileges Act 37 of 2001 (the principal Act) .

The proposed amendments would seek to make technical amendments to section 2(2)(b) of the principal Act, 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 had been to harmonise existing legislation and to align South Africa’s practice with international best practice. This would include the redefinition of a diplomat’s family to include the level of dependency, rather then reliance on travel documents. In an extension of the proposed amendments, the DFA indicated that it would also publish the Diplomats’ List at regular intervals and on the Internet, rather then having it published annually in the Government Gazette. The confirmation of diplomatic status could be done by the provision of official confirmation of a person’s diplomatic status whenever the need arose, and not only in a Court setting, as it had been previously.

In its current form, the Act’s definition of a diplomat’s family members, in section 2(2)(b), included 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 recognized as a dependent member of the family by the government of the sending State, United Nations (UN) or any other specialised agency or organisation.

The proposed amendment that would replace this section defined a diplomat’s family members as spouses, dependent children under the age of 18 years, any other dependent 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 recognized 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 heterosexual or in same-sex relationships, as well as  having dependence determined by cohabitation and financial dependency.

In its current form, section 9(2) compelled  the Minister of Foreign Affairs to publish a list of all people on the diplomatic register on an annual basis. The proposed amendment would compel the Minister to publish this register on the DFA’s website, which would be updated in real-time and made available to the public on the Internet

Adv Schneeberger indicated that 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 DFA R100 000 by way of publication costs, in the Government Gazette.

In relation to the proposed amendments to section 9(3), Adv Schneeberger noted that these would serve as the official confirmation of diplomatic standards and better service delivery to the public, as South Africans would not have to  wait before the dispute went to court to get confirmation of a person’s diplomatic status. This amendment was now proposed to replace the current situation whereby a certificate could only be issued if a dispute had arisen that was to be decided by a court.

Discussion
Ms P Themba (ANC,Mpumalanga) thanked the DFA for their presentation and said that it had been clear and informative, and that she was happy with the relevant definitions of a family and a child.

She asked whether the DFA had issued directives to the three regional offices on the amendments and whether the DFA followed procedure during the drafting of the amendments.

Adv Schneeberger replied that the amendments had bearing on the diplomatic community, and not so much the general public, and that smaller diplomatic communities and consular offices were spread across the financial centres of South Africa; namely, Cape Town and Pretoria.

She added that the DFA had followed procedure in terms of input by the public, but that no real input had been received by the public on the proposed amendments.

Ms Rita Barnard, Director, Diplomatic Immunities and Privileges, DFA, said that the basis for the amendments emanated from the diplomatic community, and that the DFA intended  to send a circular note to all diplomatic missions in South Africa.

Ms B Dithebe (ID, Northern Cape) said that she supported the reference made to traditional values and the Confirmation Certificate, but sought clarity on what the DFA meant by “life partner”.

Adv Schneeberger said that it was impossible to have a definite definition of the term “life partner” as the DFA had not specified how many years a long term partner or life partner constituted. DFA staff had been asked to sign an affidavit that attested to them being responsible for their life partners.

She added that  some countries had their own policy directives on this, and that the DFA had  allowed for an element of flexibility, hence having the criteria changed to include cohabitation, and financial or dependent aspects. It was noted that  South American, some African and Muslim states did not allow for same sex couples to be sent as diplomats, nor heterosexual life partners who were not married, due to conservative values. She noted that it all depended on whether the sending State recognized the diplomat and his/her dependents.

Adv Schneeberger stated that states had different policies on what type of passports they issued and that the Malawian government, for instance, only offered a diplomatic passport to the principal diplomat and not the dependents. The DFA could not dictate to Malawi that it should change its policies.

Ms Barnard noted that the DFA normally waited for the sending State to present it with a document of formal/official recognition of life partners. She pointed out that the Department itself did not accord immunities and privileges, as only the Minister of Foreign Affairs could do that.

Mr D Gamede (ANC, Kwazulu-Natal) said that the proposed legislation mentioned “spouse” and not “spouses” and that this might be a cause for concern for those diplomats with more then one spouse.

Adv Schneeberger noted that the same issue had been discussed in the National Assembly and that the State Law Advisor had said that there was a rule of interpretation in legislation that covered this issue. Diplomats with more then one spouse would be allowed into the receiving country only if the sending State recognised the marriages. The second or third wife could either be included under spouse, life partner or other member of the family.

Mr Z Kolweni (ANC, North West) said that he had a problem with the expected outcomes. as the true essence or meaning of “dependence” had not been adequately clarified, as there was also mention of cohabitation.

Adv Schneeberger said that the DFA had  thought about this in detail and eventually decided that the Act was too restrictive in its definitions and that a framework had to be set. The DFA had sent out a circular note to the diplomatic community to say that when the family had been registered, a note from the Ministry of Foreign Affairs was necessary to facilitate protocol and procedural issues.

She added that the DFA did not want to go too broad in terms of the Act and that everybody that lived with the diplomat was considered as being a dependent.

Ms Barnard said that the DFA would look at the issue of cohabitation, and that if it became a problem it could be regulated through other channels, as the DFA had received the authority from Department of Home Affairs to confer a study permit to a child or family member, who was not catered for in the Act, but that such a person would not receive diplomatic immunity.

Mr D Mkono (ANC, Eastern Cape) asked what would happen if a child of a diplomat wanted to attend a school or tertiary institution in a different province from where the parent had been  stationed.

Adv Schneeberger replied that the DFA wanted to maintain the family link between diplomats and their dependents and that parents normally had more control over their children if they stayed in the same province or city. She added that  if they wanted to live in another city for study purposes,  they needed a study permit. Under section 17 of the principal Act, the Minister of Foreign Affairs  was allowed to adopt regulations to stipulate what dependency was. This made the Act easier to govern through regulation. She said that South Africa had very good schools and higher learning institutions located across South Africa.

She further indicated that teenagers had a tendency always to get up to mischief. The grandson of a Namibian diplomat had recently been arrested for armed robbery, and that the Namibian authorities had waived his immunity.

Mr Gamede said that the Act did not explicitly say “A child under the age of 18 years” and that it was open to interpretation.

Adv Schneeberger replied that the DFA had looked at the Children’s Act definition of a child and this meant that when a person was over the age of 18 years that person would be excluded from the Diplomatic Lists as a “child” and lose his or her diplomatic immunity.

Mr Mkono asked whether it was legally acceptable to publish the Diplomatic List on the Internet, as the Government Gazette was legally recognized.

Adv Schneeberger indicated that the parliamentary law advisors had said that there would be no problem with publishing the Diplomatic List on the Internet. She noted that the Government Gazette was useless to the DFA, as the Diplomatic List changed constantly despite the fact that the Gazette listing remained as it was for the period of one year. 

Adv Koleka Beja, Parliamentary Legal Advisor, said that she could find nothing wrong with having the Diplomatic List published on the Internet, as it was accessible and most companies or institutions accepted electronic signatures these days.

She added that the Children’s Act was clear on the definition of a child and that it was deemed appropriate for the purpose of the Diplomatic Immunities and Privileges Amendment Bill.

Mr MH Hoyana, Chief Director, State Protocol: DFA,  said that the proposed amendments would assist the DFA in facilitating an effective system that pertained to the Diplomatic Community and that all issues had been covered.

The motion of desirability was read and approved unanimously.

The Bill was adopted by the Committee.

The meeting was adjourned.