Introduction to the New Diplomatic Immunities and Privileges Act, Act No 37 of 2001

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The new Diplomatic Immunities and Privileges Act came into force on 28 February 2002 and repealed the Diplomatic Immunities and Privileges Act, Act No. 74 of 1989. The purpose of this document is to introduce the new Diplomatic Immunities and Privileges Act, Act No. 37 of 2001 and to explain what the reasons were for the adoption of a new Act and what the new Act involves.

REASONS FOR THE ACT

Parliament approved South Africa's accession to the 1946 Convention on the Privileges and Immunities of the United Nations and the 1947 Convention on the Privileges and Immunities of the Specialised Agencies (hereinafter referred to as "the Conventions") on 26 and 27 June 2001. South Africa deposited its Instruments of Accession to these Conventions on 27 August 2001. In terms of these Conventions South Africa, as a Party thereto, is under the obligation to take the necessary steps to give legal effect to the provisions thereof. This needed to be done through legislation.

South Africa acceded to the Vienna Convention on Diplomatic Immunities and Privileges and to the Vienna Convention on Consular Relations (hereinafter referred to as the "Vienna Conventions") in 1989 without making any reservations. However, the now repealed Diplomatic Immunities and Privileges Act, Act No. 74 of 1989 (hereinafter referred to as "the old Act") incorporates only some of the provisions of the Vienna Conventions as part of South African law, which created problems with the administration thereof. The provisions of the Vienna Conventions are customary international law and unless a Party has made reservations when becoming a party thereto, it is obliged to give effect to all the provisions thereof. As South Africa did not make any reservations when it became a Party to the Vienna Conventions in 1989, there was no basis for the selected incorporation of the provisions thereof. In order to rectify this situation, the provisions of the Vienna Conventions had to be incorporated in full in South African law.

One of the major shortcomings of the Act is the ad hoc manner in which the granting of immunities and privileges to international organisations and specialised agencies was done. The ad hoc approach followed in the old Act, gave rise to a situation where all international organisations were not treated the same due to the differing individual agreements that were concluded with them in terms of the provisions of the old Act. The lack of uniformity in treatment made the administration and regularisation of the international organisations and specialised agencies in South Africa problematic. Urgent attention to this problem was needed.

South Africa’s international relations grew extensively since the promulgation of the old Act in 1989, not only between states (diplomatic and consular relations), but also with international organisations and specialised agencies alike. Since 1989, 110 diplomatic missions and 56 consular offices were established, 18 offices of international organisations and specialised agencies were opened. The old Act was thus in many instances out-of-date and in dire need of amendment.

South Africa also hosts international conferences and meetings more frequently than before. For example UNCTAD, NAM, WCAR and the WSSD later this year. Where United Nations and its specialised agencies are involved, they require that the specific immunities and privileges set out in the Conventions should apply to the participants during such conferences and meetings. The old Act did not provide for such situations and time consuming administrative processes had to be followed to confer immunities and privileges to participants of such meetings. This administrative burden needed to be lessened.

In order to address the above mentioned problems, it was necessary to repeal the Diplomatic Immunities and Privileges Act, Act No. 74 of 1989 and to replace it with the new Diplomatic Immunities and Privileges Act, Act No. 37 of 2001 (hereinafter referred to as "the new Act").

IMPLICATIONS OF THE NEW ACT

The new Act gives effect to South Africa’s international obligations by -

  • incorporating the provisions of the Conventions on Diplomatic Relations and on Consular Relations in full in South African legislation;
  • incorporating the provisions of the Convention on Privileges and Immunities of United Nations and of the Convention on the Privileges and Immunities of the Specialized Agencies in South African legislation;
  • The Act thus gives effect to the provisions of section 231(4) of the Constitution of the Republic of South Africa, Act No. 108 of 1996 that stipulates that any international agreement becomes law in the Republic when it is enacted into law by national legislation.

The new Act synchronizes the ad hoc practices currently applied to individual organizations in order to introduce equality in the treatment of the various international organizations in South Africa and thus addressing one of the major shortcomings of the Act.

The new Act lessens the administrative burden by -

  • making a clear distinction between the privileges and immunities to be granted to heads of state, diplomatic missions and staff, consular offices and staff on the one hand and on the other, the privileges and immunities applicable to the United Nations, its specialised agencies and other international organisations;
  • providing for the granting of immunities and privileges with regard to international meetings and conferences hosted in South Africa by notice in the Gazette of a meeting recognised by the Minister for this purpose.
  • The new Act updates the South African legislation, removes existing duplications and clarifies uncertainties and inconsistencies.

CONTENT OF THE DIPLOMATIC IMMUNITIES AND PRIVILEGES ACT OF 2001

The Act has 17 sections and 4 schedules containing the texts of the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations, the 1946 Convention on the Privileges and Immunities of the United Nations and the 1947 Convention on the Privileges and Immunities of the Specialised Agencies.

Section 1 contains the definitions in order to assist with the interpretation of the provisions of the Act. It is noteworthy that for the first time a definition of "organisation" as an intergovernmental organisation is included which does away with the uncertainty relating to the kind of organisation that will enjoy privileges and immunities in terms of the Act.

Section 2 provides for the four Conventions to have the force of law in the Republic. It also defines who will be regarded as a "member of the family" for purposes of the Act as this is a matter that is not defined in the Conventions. The definition of member of the family takes into account international practices in this regard.

Section 3 provides specifically that the Vienna Conventions shall apply to diplomatic missions and members of such missions and to consular posts and members of such posts. The Conventions now have the force of law in South Africa.

Section 4 deals with the immunities and privileges of heads of state, special envoys and certain representatives by emphasising that the rules of customary international law shall apply to such individuals or as may be agreed to in an agreement or as the Minister may confer.

Section 5 deals with the immunities and privileges of the United Nations, its specialised agencies and other international organisations. It provides that the Conventions shall apply to the United Nations and to its specialised agencies respectively. The provisions of the Conventions now have the force of law in South Africa. Other organisations recognised by the Minister for this purpose shall enjoy such privileges and immunities as may be provided for in any agreement or as may be conferred by the Minister.

Section 6 provides for the granting of immunities and privileges to participants to international conferences and meetings held in South Africa. The only requirement is that the Minister recognises a specific conference or meeting for this purpose by notice in the Gazette.

Section 7 requires that any agreement conferring immunities and privileges must be published by notice in the Gazette. The Minister may in cases where it is not expedient to enter into an agreement, confer such immunities and privileges as may be specified in the Gazette.

Section 8 makes provision for the waiving of immunities and privileges of all persons enjoying such immunities and privileges where the immunity would impede the course of justice.

Section 9 requires a register to be kept by the Minister of all persons enjoying immunities and privileges in South Africa.

Section 10 gives the Minister the authority, where it appears that the immunities and privileges accorded to missions of the Republic in the territory of any state are less than those conferred in the Republic to the mission of that state, to withdraw some of the immunities and privileges to ensure equality in treatment.

Section 11 makes provision for the adjustment of loss of revenue caused by tax exemption to municipalities out of funds approved by Parliament.

Section 12 requires that any mission, post, United Nations, specialised agency and other organisation must obtain the approval of the Director-General of the Department of Foreign Affairs before it can acquire, construct, relocate, renovate, replace, extent or lease immovable property in South Africa.

Section 13 provides that the Minister must prescribe by regulation liability insurance requirements to be met by persons enjoying immunities and privileges in South Africa. This will ensure that when damage caused by such an individual occurs, adequate insurance is available to cover such damage.

Section 14 provides for making of regulations by the Minister.

Section 15 deals with offences and penalties and stipulates that a person who without reasonable care sues or executes any legal process against a person who enjoys immunity is guilty of an offence.

Section 16 repeals the 1989 Act and its 1992 Amendment Act.

Section 17 contains the short title and commencement. The Act is to be called the Diplomatic Immunities and Privileges Act of 2001.

Four schedules follow in which the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations, the 1946 Convention on the Privileges and Immunities of the United Nations and the 1947 Convention on the Privileges and Immunities of the Specialised Agencies are respectively reflected.

Office of the Chief State Adviser: International Law

Department of Foreign Affairs

7 March 2002


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