Authored By: MANELISI DLAMINI
North West University
Introduction
foreign policy and international Recent reports concerning former President Jacob Zuma’s visit to India, his appearance at an event attended by fugitive Ajay Gupta, and the subsequent investigation announced by the Minister of International Relations and Cooperation into the conduct of South Africa’s High Commissioner to India have reignited debate regarding the limits of unofficial diplomacy.[1] This article argues that South African law does not comprehensively regulate unofficial engagements between politically influential persons and internationally wanted individuals abroad.[2] Although existing constitutional and statutory provisions govern official diplomacy, significant legal gaps remain where former office bearers and private citizens engage in conduct capable of affecting South reputation.[3]
Legal Framework
South Africa’s constitutional order establishes a clear distinction between the exercise of governmental authority and the activities of private individuals.[4] Foreign policy is constitutionally entrusted to the national executive, ensuring that the Republic speaks with one authoritative voice in international affairs.[5] Sections 83, 84 and 85 of the Constitution collectively designate the President as Head of State and vest executive authority in the President and Cabinet, including the management of diplomatic relations, the appointment of diplomatic representatives and the implementation of international policy.[6] Section 231 further provides the constitutional mechanism through which international agreements are negotiated, approved and incorporated into domestic law.[7] These provisions reflect the constitutional principle that foreign relations are matters of state rather than private political initiatives.
The Foreign Service Act 26 of 2019 reinforces this constitutional arrangement by establishing the Department of International Relations and Cooperation (DIRCO) as the central institution responsible for coordinating South Africa’s foreign relations.[8] The Act seeks to ensure coherence, accountability and consistency across all South African missions abroad. Diplomats and officials serving in foreign missions are therefore expected to conduct themselves in accordance with official government policy and are subject to departmental instructions, ethical standards and disciplinary measures.[9]
Similarly, the Diplomatic Immunities and Privileges Act 37 of 2001 regulates the legal status, privileges and obligations of diplomats accredited to and from South Africa.[10] Diplomatic immunity exists to facilitate the effective performance of official functions rather than to shield diplomats from accountability for conduct unrelated to their official duties.[11] Diplomatic representatives are expected to avoid conduct capable of compromising South Africa’s international obligations or diplomatic reputation.
South African citizens equally enjoy constitutionally protected rights, including freedom of movement, freedom of association and freedom of expression under the Bill of Rights.[12] These freedoms permit citizens, including former public office bearers, to travel internationally and engage in political discussion. However, constitutional rights are not absolute. Section 36 of the Constitution permits reasonable and justifiable limitations where necessary to protect legitimate governmental interests, including national security, public order and the rule of law.[13]
Consequently, while there is generally no prohibition against an ordinary South African citizen meeting another individual abroad, criminal liability may arise where such engagement facilitates unlawful conduct.[14] The Prevention of Organised Crime Act 121 of 1998 criminalises participation in organised criminal enterprises, money laundering and activities intende d to conceal the proceeds of crime.[15] Likewise, the Prevention and Combating of Corrupt Activities Act 12 of 2004 criminalises corrupt transactions involving public officials and private persons.[16] The Extradition Act 67 of 1962 further regulates South Africa’s cooperation with foreign states regarding the surrender of persons accused or convicted of criminal offences.[17]
South Africa is also bound by numerous international legal obligations. The United Nations Convention against Corruption (UNCAC) requires States Parties to cooperate in combating transnational corruption and recovering stolen assets.[18] The Vienna Convention on Diplomatic Relations establishes internationally recognised standards governing diplomatic conduct and the responsibilities of diplomatic missions.[19] Although an INTERPOL Red Notice does not constitute an international arrest warrant, it nevertheless signals that another jurisdiction seeks cooperation in locating and provisionally arresting an individual pending extradition proceedings.[20] These international instruments collectively reinforce South Africa’s constitutional commitment to respect international law and promote the rule of law.
Analysis
The constitutional distinction between official diplomacy and private political engagement becomes increasingly complex where former heads of state continue to wield substantial political influence after leaving office[21]. Former presidents remain prominent national figures whose statements and international engagements are often perceived by foreign governments as reflecting broader political developments within their home states.[22] Although they retain their constitutional rights as private citizens, they no longer possess legal authority to formulate or represent South Africa’s foreign policy unless expressly authorised by the sitting government.[23]
This distinction is particularly important because unofficial engagements may create the perception of parallel diplomacy.[24] Parallel diplomacy occurs when influential political actors engage foreign governments or politically sensitive individuals outside established governmental channels, potentially creating uncertainty regarding the state’s official position. Such uncertainty may weaken diplomatic coherence, complicate bilateral relations and undermine public confidence in the government’s ability to conduct foreign affairs consistently.
The reported meeting involving former President Jacob Zuma and Ajay Gupta illustrates these concerns.[25] Ajay Gupta remains a fugitive sought in connection with corruption allegations arising from South Africa’s State Capture investigations. The mere presence of a former president at an event attended by a wanted individual does not automatically establish criminal liability. Criminal responsibility requires proof of conduct prohibited by law together with the necessary mental element prescribed by the relevant statute. Accordingly, it would be legally incorrect to infer criminal wrongdoing solely from attendance at a public event.
Similarly, media reports concerning South Africa’s High Commissioner to India remain subject to an official investigation.[26] Principles of administrative justice and procedural fairness require that allegations against public officials be investigated objectively before conclusions are reached. Public commentary should therefore distinguish carefully between allegations reported in the media and legally established facts.[27]
Nevertheless, the broader constitutional implications remain significant. Diplomats represent the Republic rather than personal political interests.[28] Their conduct is expected to advance official government policy while maintaining the confidence of host states and international organisations. Even where no criminal offence has been committed, participation in politically controversial events may expose South Africa to reputational risks and undermine confidence in the neutrality of its diplomatic service.
Another significant legal issue concerns the constitutional position of former heads of state. South African legislation contains detailed provisions governing presidential benefits, security protection and administrative support after retirement. However, no comprehensive statutory framework regulates their international political engagements. Consequently, former presidents retain broad discretion regarding foreign travel and political participation despite continuing to enjoy considerable domestic and international influence.[29]
This legislative silence presents practical challenges. Foreign governments may struggle to distinguish between official government policy and the personal views expressed by former national leaders. Statements made abroad concerning domestic political disputes may unintentionally affect investor confidence, diplomatic negotiations and South Africa’s broader international standing. While political criticism of the sitting government remains protected by constitutional principles of democratic participation and freedom of expression, the international context in which such statements are made introduces additional considerations relating to national interest and diplomatic stability.
The issue extends beyond former presidents. Senior former ministers, retired ambassadors and politically influential individuals frequently maintain extensive international networks developed during public service. Without clear legal guidance, unofficial engagements involving internationally wanted persons or sanctioned individuals may inadvertently undermine South Africa’s commitments under international anti-corruption and mutual legal assistance frameworks.
Comparative international practice demonstrates that democratic states increasingly recognise these risks.[30] Several jurisdictions maintain ethical codes governing post-office conduct for senior public officials, including restrictions on lobbying foreign governments, disclosure requirements concerning foreign engagements and reporting obligations relating to conflicts of interest. Although these measures primarily address corruption prevention, they also strengthen transparency and preserve confidence in governmental institutions.
South Africa’s existing legal framework therefore reveals a regulatory gap rather than a complete absence of law. Current legislation adequately criminalises corruption, money laundering, organised crime and obstruction of justice. However, it provides limited guidance concerning unofficial diplomatic activities undertaken by politically influential individuals whose conduct may have significant foreign policy consequences despite falling short of criminal behaviour.
Legal Propose Reform
The constitutional principle of accountable government requires legislative reform capable of balancing individual constitutional rights with legitimate national interests. Such reform should not criminalise ordinary political activity or restrict freedom of expression beyond constitutionally permissible limits.[31] Instead, Parliament should adopt carefully tailored measures promoting transparency, accountability and diplomatic consistency.
First, Parliament should consider enacting a *Former Heads of State Conduct Act* establishing a statutory code governing international engagements undertaken by former presidents. The legislation should clarify that former presidents do not possess authority to represent South Africa internationally unless expressly authorised by the President or DIRCO.[32]
Secondly, former presidents and senior former executive office bearers should be required to notify DIRCO before participating in politically sensitive international events involving foreign governments, sanctioned individuals or internationally wanted persons. Notification would not necessarily require governmental approval but would promote institutional awareness and minimise diplomatic misunderstandings.
Thirdly, DIRCO should adopt detailed diplomatic protocols requiring ambassadors and high commissioners to disclose invitations to events involving politically exposed persons, internationally sanctioned individuals or fugitives subject to extradition proceedings. Enhanced disclosure requirements would strengthen accountability while protecting diplomats from allegations arising from circumstances beyond their control.[33]
Fourthly, Parliament should strengthen existing legislation concerning assistance to fugitives by introducing specific offences addressing intentional conduct designed to frustrate international criminal cooperation. Such offences should remain narrowly drafted to avoid infringing constitutional rights while ensuring accountability for deliberate obstruction of justice.[34]
Finally, Parliament should establish parliamentary oversight mechanisms enabling periodic review of unofficial diplomatic engagements involving former senior public officials where substantial public interest arises. Transparency and institutional accountability would reinforce democratic governance without unnecessarily restricting lawful political participation.[35]
These reforms would not prohibit former presidents or ordinary citizens from travelling abroad or engaging in political discourse. Rather, they would ensure that activities capable of affecting South Africa’s diplomatic interests occur within a transparent legal framework consistent with constitutional principles, international law and democratic accountability.
Conclusion
South Africa’s constitutional democracy depends upon a coherent foreign policy conducted through constitutionally authorised institutions.[36] While constitutional rights protect freedom of movement and political expression, those rights must be balanced against the State’s obligation to preserve diplomatic credibility and comply with international legal obligations.[37] The constitutional allocation of foreign affairs to the national executive reflects the need for consistency, accountability and a unified international voice.
The recent developments surrounding former President Jacob Zuma’s visit to India and the investigation involving South Africa’s High Commissioner have highlighted the limitations of the existing legal framework. Although these events do not, without more, establish criminal liability, they expose important regulatory gaps concerning unofficial diplomatic engagements by politically influential individuals. Existing legislation effectively addresses corruption, organised crime and obstruction of justice but provides insufficient guidance regarding conduct capable of undermining foreign policy without necessarily constituting a criminal offence.[38]
It is therefore submitted that South Africa should adopt measured legislative reforms that preserve constitutional freedoms while strengthening transparency, diplomatic accountability and institutional coherence. A statutory framework regulating unofficial diplomatic engagements by former senior office bearers would enhance public confidence, reduce uncertainty in international relations and reinforce South Africa’s constitutional commitment to the rule of law. Such reforms would not diminish democratic freedoms but would instead ensure that political influence exercised beyond public office remains compatible with the constitutional values of accountability, responsible governance and respect for international legal obligations.[39]
Bibliography
Legislation
Constitution of the Republic of South Africa, 1996
Criminal Procedure Act 51 of 1977
Diplomatic Immunities and Privileges Act 37 of 2001
Extradition Act 67 of 1962
Foreign Service Act 26 of 2019
Prevention and Combating of Corrupt Activities Act 12 of 2004
Prevention of Organised Crime Act 121 of 1998
Promotion of Administrative Justice Act 3 of 2000
International Instruments
INTERPOL, Rules on the Processing of Data and Red Notice framework
United Nations Convention against Corruption (2003)
Vienna Convention on Diplomatic Relations (1961)
Books
Denza E, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th edn, Oxford University Press 2016)
Journalistic Source
Fabricius P, ‘Lamola orders probe after SA diplomat joins Zuma’s India reunion with fugitive Ajay Gupta’ Daily Maverick (2 July 2026)
[1] Peter Fabricius, ‘Lamola orders probe after SA diplomat joins Zuma’s India reunion with fugitive Ajay Gupta’, Daily Maverick (2 July 2026).
[2] Constitution of the Republic of South Africa, 1996.
[3] Foreign Service Act 26 of 2019.
[4] Constitution of the Republic of South Africa, 1996.
[5] Constitution of the Republic of South Africa, 1996 ss 83–85.
[6] Constitution of the Republic of South Africa, 1996 ss 83–85.
[7] Constitution of the Republic of South Africa, 1996 s 231.
[8] Foreign Service Act 26 of 2019.
[9] Foreign Service Act 26 of 2019.
[10] Diplomatic Immunities and Privileges Act 37 of 2001.
[11] Vienna Convention on Diplomatic Relations 1961.
[12] Constitution of the Republic of South Africa, 1996 ch 2.
[13] Constitution of the Republic of South Africa, 1996 s 36.
[14] Constitution of the Republic of South Africa, 1996.
[15] Prevention of Organised Crime Act 121 of 1998.
[16] Prevention and Combating of Corrupt Activities Act 12 of 2004.
[17] Extradition Act 67 of 1962.
[18] United Nations Convention against Corruption (2003).
[19] Vienna Convention on Diplomatic Relations (1961).
[20] INTERPOL, Rules on the Processing of Data and Red Notice framework.
[21] Constitution of the Republic of South Africa, 1996.
[22] Constitution of the Republic of South Africa, 1996.
[23] Constitution of the Republic of South Africa, 1996 ss 83–85.
[24] 24. Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th edn, OUP 2016).
[25] Peter Fabricius (n 1).
[26] Constitution of the Republic of South Africa, 1996 s 35; Criminal Procedure Act 51 of 1977.
[27] Promotion of Administrative Justice Act 3 of 2000.
[28] Foreign Service Act 26 of 2019; Vienna Convention on Diplomatic Relations (1961).
[29] Foreign Service Act 26 of 2019.
[30] Constitution of the Republic of South Africa, 1996 s 198.
[31] Recommendation of this article.
[32] Recommendation of this article.
[33] Foreign Service Act 26 of 2019.
[34] Constitution of the Republic of South Africa, 1996 s 36.
[35] Constitution of the Republic of South Africa, 1996 ss 83–85.
[36] Constitution of the Republic of South Africa, 1996 ss 83–85.
[37] Constitution of the Republic of South Africa, 1996 s 198; UNCAC (2003).
[38] Peter Fabricius (n 1).
[39] Recommendation of this article.
