REPUBLIC OF SOUTH AFRICA
DIPLOMATIC IMMUNITIES AND PRIVILEGES BILL
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(As presented by the Portfolio Committee on Foreign Affairs (National Assembly))
(The English text is the official text of the Bill)
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(MINISTER FOR FOREIGN AFFAIRS)
[B 40B—2001]
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REPUBLIEK VAN SUID-AFRIKA
WETSONTWERP OP DIPLOMATIEKE
IMMUNITEITE EN VOORREGTE
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(Soos ingedien deur die Portefeulje Komitee oor Buitelandse Sake (Nasionale Vergadering))
(Die Afrikaanse teks is die amptelike vertaling van die Wetsontwerp)
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(MINISTER VAN BUITELANDSE SAKE)
[W 40B—2001]
DIP_IMMUN_BILL
BILL
To make provision regarding the immunities and privileges of diplomatic missions and consular posts and its members, of heads of states, special envoys and certain representatives, of the United Nations, and its specialised agencies, and other international organisations and of certain other persons; to make provision regarding immunities and privileges pertaining to international conferences and meetings; to enact into law certain conventions; and to provide for matters connected therewith.
ARRANGEMENT OF SECTIONS
1. Definitions
2. Conventions have force of law
3. Immunities and privileges of diplomatic missions and consular posts, and of members of such missions and posts
4. Immunities and privileges of heads of state, special envoys and certain representatives
5. Immunities and privileges of the United Nations, spesialised agencies and other international organisations
6. Immunities and privileges pertaining to international conferences or meetings convened in the Republic
7. Conferment of immunities and privileges
8. Waiver of immunities and privileges
9. Register of persons entitled to immunities or privileges
10. Restriction on immunities, privileges and exemptions
11. Adjustment of loss of revenue to municipalities and statutory public utility organisations
12. Acquisition, construction, relocation, renovation, replacement, extension or lease of immovable property in the Republic
13. Liability insurance requirements
14. Regulations
15. Offences and penalties
16. Repeal of laws
17. Short title and commencement
Schedule 1
Vienna Convention on Diplomatic Relations, 1961
Schedule 2
Vienna Convention on Consular Relations, 1963
Schedule 3
Convention on the Privileges and Immunities of the United Nations, 1946
Schedule 4
Convention on the Privileges and Immunities of the Specialised Agencies, 1947
B
E IT ENACTED by the Parliament of the Republic of South Africa, as follows:—Definitions
1. In this Act, unless the context indicates otherwise—
(i) "Director-General" means the Director-General: Foreign Affairs; ( )
(ii) "Minister" means the Minister of Foreign Affairs; ( )
(iii) "municipality" means a municipality established in terms of Chapter 2 of the Local Government Municipal Structures Act, 1998 (Act No. 117 of 1998); ( )
(iv) "organisation" means an intergovernmental organisation of which two or more states or governments are members and which the Minister has recognised for the purposes of this Act; ( )
(v) "regulation" means a regulation made under section 13; ( )
(vi) "special envoy or representative" means a person duly authorised by the sending state, government or organisation to undertake a special mission or task in the Republic on behalf of such state, government or organisation; ( )
(vii) "specialised agency" means any agency contemplated in paragraph (ii) of section 1 of Article I of the Convention on the Privileges and Immunities of the Specialised Agencies, 1947, and which the Minister has recognised for purposes of this Act; ( )
(viii) "the Convention on the Privileges and Immunities of the Specialised Agencies, 1947" means the Convention on the Privileges and Immunities of the Specialised Agencies, adopted on 21 November 1947, as may be applicable in the Republic in accordance with the reservations made by South Africa upon its accession thereto and which is set out in Schedule 4 to this Act; ( )
(ix) "the Convention on the Privileges and Immunities of the United Nations, 1946" means the Convention on the Privileges and Immunities of the United Nations, adopted on 13 February 1946, as may be applicable in the Republic in accordance with the reservations made by South Africa upon its accession thereto and which is set out in Schedule 3 to this Act; ( )
(x) "the Conventions" means the Convention on the Privileges and Immunities of the United Nations, 1946, the Convention on the Privileges and Immunities of the Specialised Agencies, 1947, the Vienna Convention on Diplomatic Relations, 1961, and the Vienna Convention on Consular Relations, 1963; ( )
(xi) "the Vienna Convention on Consular Relations, 1963" means the Vienna Convention on Consular Relations, 1963, signed at Vienna on 24 April 1963, and which is set out in Schedule 2 to this Act; ( )
(xii) "the Vienna Convention on Diplomatic Relations, 1961" means the Vienna Convention on Diplomatic Relations, 1961, signed at Vienna on 18 April 1961, and which is set out in Schedule 1 to this Act; ( )
(xiii) "this Act" includes the regulations. ( )
Conventions have force of law
2. (1) Subject to the provisions of this Act, the Conventions have the force of law in the Republic.
(2) For the purposes of the Conventions—
(a) "grave crime" means any offence for which a person may on conviction be sentenced to imprisonment for five years or more; and
(b) "member of a family" means—
(i) the spouse;
(ii) any unmarried child under the age of 21 years;
(iii) any unmarried child between the ages of 21 and 23 years who is undertaking full-time studies at an education institution; and
(iv) any other unmarried child or other family member officially recognised as a dependant member of the family by the government of the sending State, the United Nations, a specialised agency or an organisation,
and who is issued with a diplomatic or official passport.
Immunities and privileges of diplomatic missions and consular posts, and of members of such missions and posts
3. (1) The Vienna Convention on Diplomatic Relations, 1961, applies to all diplomatic missions and members of such missions in the Republic.
(2) The Vienna Convention on Consular Relations, 1963, applies to all consular posts and members of such posts in the Republic.
Immunities and privileges of heads of state, special envoys and certain representatives
4. (1) A head of state is immune from the criminal and civil jurisdiction of the courts of the Republic, and enjoys such privileges as—
(a) heads of state enjoy in accordance with the rules of customary international law;
(b) are provided for in any agreement entered into with a state or government whereby immunities and privileges are conferred upon such a head of state; or
(c) may be conferred on such head of state by virtue of section 7(2).
(2) A special envoy or representative from another state, government or organisation is immune from the criminal and civil jurisdiction of the courts of the Republic, and enjoys such privileges as—
(a) a special envoy or representative enjoys in accordance with the rules of customary international law;
(b) are provided for in any agreement entered into with a state, government or organisation whereby immunities and privileges are conferred upon such special envoy or representative; or
(c) may be conferred on him or her by virtue of section 7(2).
(3) The Minister must by notice in the Gazette recognise a special envoy or representative for the purposes of subsection (2).
Immunities and privileges of United Nations, specialised agencies and other international organisations
5. (1) The Convention on the Privileges and Immunities of the United Nations, 1946, applies to the United Nations and its officials in the Republic.
(2) The Convention on the Privileges and Immunities of the Specialised Agencies, 1947, applies to any specialised agency and its officials in the Republic.
(3) Any organisation recognised by the Minister for the purposes of this section and any official of such organisation enjoy such privileges and immunities as may be provided for in any agreement entered into with such organisation or as may be conferred on them by virtue of section 7(2).
(2) Any organisation contemplated in this section is vested with the legal capacity of a body corporate in the Republic to the extent consistent with the instrument creating it.
Immunities and privileges pertaining to international conferences or meetings convened in Republic
6. (1) The officials and experts of the United Nations, of any specialised agency and of any organisation, and representatives of any state, participating in an international conference or meeting convened in the Republic enjoy for the duration of the conference or meeting such privileges and immunities as—
(a) are specifically provided for in the Convention on the Privileges and Immunities of the United Nations, 1946, or the Convention on the Privileges and Immunities of the Specialised Agencies, 1947, as the case may be, in respect of the participation in conferences and meetings;
(b) are specifically provided for in any agreement entered into for this purpose; or
(c) may be conferred on any of them by virtue of section 7(2).
(2) The Minister must by notice in the Gazette recognise a specific conference or meeting for the purposes of subsection (1).
Conferment of immunities and privileges
7. (1) Any agreement whereby immunities and privileges are conferred to any person or organisation in terms of this Act must be published by notice in the Gazette.
(2) The Minister may in any particular case if it is not expedient to enter into an agreement as contemplated in subsection (1) and if the conferment of immunities and privileges is in the interest of the Republic, confer such immunities and privileges on a person or organisation as may be specified by notice in the Gazette.
Waiver of immunities and privileges
8. (1) A sending State, the United Nations, any specialised agency or organisation may waive any immunity or privilege which a person enjoys under this Act.
(2) For the purposes of subsection (1), any waiver by the head, or by any person who performs the functions of the head, of—
(a) a mission;
(b) a consular post;
(c) an office of the United Nations;
(d) an office of a specialised agency; or
(e) an organisation,
must be regarded as being a waiver by the state, the United Nations, the specialised agency or the organisation in question.
(3) For the purposes of this section, a waiver must always be express and in writing.
Register of persons entitled to immunities or privileges
9. (1) The Minister must keep a register in which there must be registered the names of all the persons who enjoy—
(a) immunity from the civil and criminal jurisdiction of the courts of the Republic; or
(b) immunities and privileges in accordance with the Conventions or in terms of any agreement contemplated in section 7.
(2) The Minister must cause a complete list of all persons on the register to be published at least once a year in the Gazette.
(3) If in any proceedings in a court of law any question arises as to whether or not any person enjoys any immunity or privilege under this Act or the Conventions, a certificate under the hand or issued under the authority of the Director-General stating any fact relating to that question, is prima facie evidence of that fact.
Restriction on immunities, privileges and exemptions
10. If it appears at any time to the Minister—
(a) that the immunities and privileges accorded to a mission of the Republic in the territory of any state, or to any person connected with any such mission, are less than those conferred in the Republic on the mission of that state, or on any person connected with that mission; or
(b) that the exemptions granted to the Government of the Republic in the territory of any state are less than those granted by the Minister to that state,
the Minister may withdraw so much of the immunities, privileges and exemptions so accorded or granted by him or her as appears to him or her to be proper.
Adjustment of loss of revenue to municipalities and statutory public utility organisations
11. The loss of revenue caused to any municipality or statutory public utility organisation by reason of this Act relating to exemptions from taxation, must be made good to such municipality or organisation out of funds approved by Parliament for that purpose.
Acquisition, construction, relocation, renovation, replacement, extension or lease of immovable property in the Republic
12. (1) All foreign missions or consular posts, the United Nations and all specialised agencies or organisations referred to in this Act, must submit a written request to the Director-General for acquiring, constructing, relocating, renovating, replacing, extending or leasing immovable property in the Republic in the name of or on behalf of—
(a) the mission or post or its government;
(b) the United Nations;
(c) the spesialised agency or organisation in question;
(d) any person referred to in section 4 or 5; or
(e) any representative contemplated in the Vienna Convention on Diplomatic Relations, 1961, and the Vienna Convention on Consular Relations, 1963.
(2) Any such request must consist of a narrative and graphic description of, and indicate the reasons for, the proposed acquisition, construction, relocation, renovation, replacement, extension or leasing.
(3) No deed of transfer of land may be registered in accordance with the Deeds Registries Act, 1937 (Act No. 47 of 1937), in the name of any such government, mission or post, the United Nations or any such specialised agency, organisation, person or representative unless the Director-General has informed the Registrar of Deeds in writing that the property has been recognised for the use of a embassy, chancellery, legation, office or official residence and that the Director-General approves of such registration.
(4) Diplomatic missions established in the Republic in accordance with the provisions of the Vienna Convention on Diplomatic Relations, 1961, or other rules of customary international law, must be located in Pretoria or, during sittings of Parliament, in Cape Town.
(5) Despite subsection (4), the Minister may approve that a section of the diplomatic mission may be located elsewhere.
Liability insurance requirements
13. The Minister must prescribe by regulation liability insurance requirements which have to be met by any person who enjoys immunities or privileges under this Act or in terms of the Conventions.
Regulations
14. The Minister may make regulations regarding any matter which must be prescribed or which the Minister deems it necessary or expedient to prescribe in order to carry out or give effect to the provisions of this Act or of the Conventions.
Offences and penalties
15. (1) Any person who willfully or without the exercise of reasonable care issues, obtains or executes any legal process against a person who enjoys immunity under this Act or in terms of the Conventions, whether as party, attorney or officer concerned with issuing or executing such process, is guilty of an offence.
(2) Any person who contravenes subsection (1) or who willfully or without the exercise of reasonable care commits any other offence which has the effect of infringing the inviolability of any person contemplated in subjection (1), or of his or her property or of the premises occupied by him or her, is liable on conviction to a fine or to imprisonment for a period not exceeding three years or to both a fine and such imprisonment.
Repeal of laws and saving
16. (1) The Diplomatic Immunities and Privileges Act, 1989 (Act No. 74 of 1989), and the Diplomatic Immunities and Privileges Amendment Act, 1992 (Act No. 56 of 1992), are hereby repealed.
(2) Anything done under a provision of any law repealed by subsection (1) and which could have been done under a provision of this Act, must be regarded as having been done under the latter provision.
Short title and commencement
17. This Act is called the Diplomatic Immunities and Privileges Act, 2001, and takes effect on a date fixed by the President by proclamation in the Gazette.