Diplomats who have finished their four-year terms in Brussels, Milan and Geneva are asking to stay on in their postings until Covid-19 poses no more travel risks.*

They say South Africa's Ministerial Advisory Council on Covid-19  has no standing to compel them to heed advice that air travel is safe. They are concerned about losing their diplomatic status and      allowances which would see them having to survive on South African  currency as well as risk arrest and deportation

Two high ranking South African diplomats have taken the Department of International Relations and Cooperation to court for refusing to extend their terms - in Belgium and Italy, respectively - because they say travelling amid the Covid-19 pandemic poses too great a risk.

Minister plenipotentiary in Brussels Suhayfa Soobedar, who was appointed by the department, and Titi Nxumalo, the consul-general in Milan who was appointed by President Cyril Ramaphosa, saw their four-year terms abroad end in June.

At that time, South Africa's borders were still closed due to the Covid-19 lockdown, and their terms were extended to mid-November, and a second time to 15 December, as they were trying to negotiate a longer stay with the department.

Their requests for a further extension were not granted, and now they find themselves in foreign countries with only their salaries to rely on. Their cost of living allowances, granted to diplomats living abroad, were stopped on 15 December, and they now fear their accreditation as diplomats will be terminated too.

In such a case, they will be expected to leave within 10 days or face deportation by their host countries. In court papers, lodged on an urgent basis in the Labour Court on Wednesday, the duo said they were "very stressed and concerned that we might be evicted from our residences and be deported from Belgium and Italy".

Soobedar said the department would "almost certainly" take measures to terminate her child's allowance in Brussels and would most likely also stop paying for his tuition fees there.

She added she would not be able to afford school fees on her South African salary and this would "severely prejudice" her minor son.Soobedar said in court papers the South African government had, in the late 1990s, forced a diplomat to return home by withdrawing her accreditation and she feared the same would happen to her.The diplomats argued in court papers any travel from their side would go against the advice from the countries they were posted in, which are currently in their "third wave" of the Covid-19 pandemic.

It is also against the guidelines of the World Health Organisation, which state those with underlying medical conditions or who are older and more at risk of getting severely ill with Covid-19 should postpone non-essential travel.

They rubbished the advice given by the Ministerial Advisory Committee (MAC) on Covid-19 in July, on which the department is basing its decision to enforce the transfer directives as a "vague and  legally unenforceable internal memorandum".

Instead, they state both their doctors have advised against international long-haul travel, given their comorbidities, as well as that of Soobedar's husband and young son. They said department director-general Kgabo Mahoai had, however, "rejected our medical practitioners' advice out of hand as uninformed" in a letter to them dated 18 November and said he would disregard their advice.

Despite various attorneys' letters, Mahoai refused to reconsider his decision, they said. They added they could not return while a state of disaster with regards to the Covid-19 pandemic was in place in South Africa.The transfer back would be risky for a number of reasons, including that they would have to let the removal people into their homes to do an inventory and to pack their personal belongings, stay in hotels before leaving and upon arrival, and take long-haul flights, with at least one change-over, since there are no direct flights.

They said the directions in the Occupational Health and Safety Act allowed them to refuse work when they reasonably felt there was a serious Covid-19-related health risk to performing their duties, and the travel related to the transfer was defined as part of their duties according to the handbook that governed relocations.

*Sick leave*

The department indicated it would oppose their application. It is understood it offered the diplomats the option to take sick leave and remain in Belgium and Italy until it is safe enough for them to travel as their replacements had already been appointed. They will continue to receive their salaries, as they would have had they returned to Pretoria, but they would not be entitled to the same allowances as diplomats.

South African Ambassador to Switzerland Nozipho Joyce Mxakato-Diseko brought a similar court application recently, but it was postponed indefinitely to allow her time to talk to the department. She was set to be replaced by Mxolisi Nkosi who was already due to travel to Geneva, the department said. Mxakato-Diseko, who was also due to return to Pretoria at the end of June, was granted a postponement to mid-November, but argued that it was not a suitable time to return due to her being in the middle of the 71st session of the Executive Committee of the UN High Commission for Refugees, immediately followed by the 73rd World Health Assembly, with President Cyril Ramaphosa being a central role-player as chairperson of the COVAX Council. She was granted another extension until mid-December, but by that time there was another surge of Covid-19 infections and her doctor advised her against travel as she is over 60 and has comorbidities.

Due to a history of lung problems, Mxakato-Diseko said she would be unable to wear a mask for long periods of time as required on a plane, or to sleep with the mask on. She added she would prefer to wait for a vaccine to be available, which should be early next year in Europe, before travelling home.

Mxakato-Diseko said in court papers:

“I cannot be blamed for the pandemic nor can I be expected to bear the risks concomitant therewith.”She added Mahoai had "flagrantly and irrationally" rejected the medical advice of her doctor.  Mahoai, however, said the MAC had said it was safe to fly and the committee was made up of medical experts.