Immigration Bill, Director General’s Contract: discussion

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
25 September 2001
IMMIGRATION BILL, DIRECTOR GENERAL’S CONTRACT: DISCUSSION

Chairperson: Mr D A Mokoena (ANC)

Documents:
Immigration Bill [B46-2001]
Letter from Home Affairs Deputy Director General to Home Affairs Portfolio Committee
Questionnaire for the Department and Regional Representatives of Home Affairs
SADC Committee Report

SUMMARY
Despite protest to the contrary, analysis of substantive issues of the Immigration Bill was postponed, and potential problems were merely noted for later discussion.

The decision was taken that any examination of the Director-General’s contract would be postponed until an informed legal opinion on all the relevant legal issues is presented. This  decision was also met with objections from certain quarters.

Following the discussion and minor amendment of certain issues in the questionnaire, the document as a whole was accepted by the Committee. The primary suggested amendments to the SADC Report involved increasing the specificity of the recommendations so as to highlight proper training and discipline of personnel and improvement of facilities at border posts, as well as strengthening relations with neighbouring countries.

MINUTES
Questionnaire for the Department
The draft Questionnaire was presented for adoption by the Committee. This Questionnaire devised for the Committee covers all aspects of the work of the Department of Home Affairs and contains 29 categories with approximately two to eight questions appended to each category. Examples of the categories are Personnel, Discipline, Arrests and Deportations, Legislation, Visas, Passports, Hanis Project, Population Register, Printing Works, Repatriation Centres, Infrastructure and Security. The Department is expected to present its response to the Committee on 5 and 6 November in Pretoria.

Mr N Zulu (IFP) asked who responds to the issues raised in the questionnaire.

The Chair replied that the answer to this question could be gleaned from the heading of the questionnaire, the purpose of which is to remove any ambiguity that could arise. It would be the duty of the Director General (DG) and regional representatives (RR) to consider the questions raised. He noted that the questionnaire was by no means an exhaustive list, but merely initial concerns.

Mr F Beukman (NNP) inquired whether Monitoring and Control by Head Office, especially visitations or inquiries by Head Office, was covered

The Chair believed that these concerns were indeed covered by Question 29.

Mr Beukman suggested that Question 20 should be amended to allow a formal request to be made from the Department of Home Affairs about visitations and subsequent inquiries.

The Chair replied that Question 20.6 would be inserted in order to accommodate Mr Beukman’s concern, and will accordingly include such a request as well as details of the visitations and inquiries.

Mr K Morwamoche (ANC) asked if the issue of transformation of personnel was covered.

The Chair responded that this is covered by Question 26 of the questionnaire. This has to be dealt with by both the DG and RRs and is therefore a multi-faceted approach to the issue.

The Questionnaire was accepted by the Committee.

SADC Committee Draft Report
The Chair commended the clerk on compiling the report and opened the floor for comments.

Mr G Grobler (DP) requested that the recommendations be more specific. They should include the proper training of personnel, as well as requiring personnel to be more people-friendly as the border posts are indeed the first line of communication between South African territory and visitors to the country. He also suggested that said staff be strictly disciplined.

Mr Grobler noted further that facilities at the border posts are in dire need of upgrading as far as both IT software and hardware is concerned. He maintained that the poor state of the offices and ablution blocks and fences at these facilities could no longer go unchecked.

He requested more frequent visits by the DG and RR’s to border posts in order to fully acquaint themselves with the problems. He also congratulated the clerk on compiling an exemplary report.

Mr Zulu was concerned that the last paragraph on page 2 of the report could be misinterpreted to mean that Namibia harbours a negative attitude towards South Africa as far as neighbour relations is concerned.

The Chair acknowledged this concern and suggested that the paragraph be amended so as to now read “Some Namibians…”, which all agreed remedied the previous confusion.

Mr Zulu complained that the report reflected the Botswana delegation’s dissatisfaction at the South African Minister of Home Affairs’ failure to attend the meeting, yet the report omitted the favourable manner in which the Mozambican delegation had experienced South African relations. The Committee agreed to his suggestion that the Mozambican delegation’s response be included in the report.
 
Mr Beukman maintained that there remains a desperate need for a more comprehensive SADC protocol on Home Affairs issues.

The Chair asked whether Part 8.4 of the Report did not meet these concerns.

Mr Beukman insisted that these provisions were not sufficiently far-reaching and should therefore be amended to state ‘neighbouring countries’ and not “the African Union”.

Tabling of the Immigration Bill
The Chair informed the Committee that his office had still not received a response from the State Law Advisor, Mr E Daniels,  nor the Parliamentary Law Advisor, Mr A Meyer, about the tabling and proper channeling of the Bill. He stated that his (and indeed the Committee’s) hands were now tied and no further progress could be made in this regard until he receives this response.

Ms I Mars (IFP) failed to agree with the Chair on this issue and suggested the Committee proceed with substantive discussions on the Bill till informed otherwise. She maintained that the Committee should act according to the Minister’s directive that the Bill be processed by the year’s end. The Chair’s proposed plan of action would clearly frustrate the directive.

The Chair stood by his initial proposal as National Assembly procedure has to be followed strictly. He stated that the Committee was still able to discuss the Bill in order to fully understand its contents, but that no substantive reform of the Bill could be attempted as this would amount to “schoolkids trying to understand the textbook without the teacher”.

Ms Mars then conceded.

Mr Beukman agreed with the Chair’s proposal. However he suggested that, since fourteen days had already lapsed without any feedback from the Law Advisors, a meeting should be scheduled with them for the following week in order to expose the problems they might be experiencing with the Bill. If this were not done, the Committee could wait a further three or four weeks for an informed legal opinion. This would leave a mere two days in this year’s schedule to complete the discussion of this Bill. This would be wholly insufficient.

The Chair insisted that the Bill has to be properly processed and chanelled to be free of all controversies before the Committee could discuss its merits further, and he is not prepared to “drag” Messrs Daniels and Meyer into this matter.

Ms A Van Wyk (UDM) agreed with Mr Beukman about the problem of time constraints. Committee members had other matters to attend to, the progress of which would now be prejudiced by the delay experienced with this Bill. She questioned whether the Bill would indeed be completed this year.

The Chair reiterated his initial proposal and stated that Bill probably would not be finalised this year, and that the Programme Committee was currently dealing with the Bill.

Mr Beukman proposed that the Law Advisors be formally invited to this Committee to explain the constitutional problems with this Bill and exactly how this Committee is to progress.

The Chair responded by ruling the proposal out of order as proper procedure has to be followed in this regard. The route to be adopted by this Committee would be to write a follow-up letter to the Law Advisors to find out how far they have progressed.

Ms Van Wyk pointed out that , as a matter of proper committee procedure, the Chair had to call on a seconder for Mr Beukman’s proposal.

The Chair disagreed and stated that Mr Beukman’s proposal had not been made formally and that to allow it would reduce the process of democracy to “demo-crazy” or anarchy. He repeated his proposal that a follow-up letter be written asking for a time frame during which a response might reasonably be expected from the Law Advisors.

Mr Grobler (DP) noted with some agitation that he agreed with Ms Van Wyk’s suggestion and that he strongly seconded Mr Beukman’s proposal.

Mr Morwamoche disagreed with this action as it was contrary to Parliamentary rules and procedure.

Mr Zulu agreed with Mr Grobler’s action and suggested that the follow-up letter inform the Law Advisors of the Committee’s next sitting and request a response by that date.

The Chair supported this recommendation.

Mr Beukman and Ms Van Wyk strongly objected to the Chair’s decision to ignore Mr Beukman’s proposal and insisted that it be recognised on a point of order.

The Chair ruled that the Committee move to the next matter for consideration.

Contents of the Immigration Bill
The Chair suggested that the Committee look at this aspect as any discussion of the substantive issues is postponed till the Law Advisors respond on the matter. He stated that  the cover sheet of the Bill is important as it directs the legal advisors to test whether the Bill passes the requirements in Section 75 of the Constitution.

The Chair suggested that capitals be inserted before the main headings under the Bill’s table of contents to read as follows:
                              A    TEMPORARY RESIDENCE
                              B    PERMANENT RESIDENCE
                              C    EXCLUSIONS AND EXEMPTIONS
                              D    OBJECTIVES AND STRUCTURES OF MIGRATION CONTROL
                              E    ENFORCEMENT AND MONITORING
                              F    IMMIGRATION COURTS
                              G    DUTIES AND OBLIGATIONS
                              H    MISCELLANEOUS
                              I     OFFENCES
                              J    TRANSITIONAL PROVISIONS
                              K    SCHEDULES

The Chair then highlighted certain problems with the definitions in Clause 1 of the Bill. He suggested that the definition of “foreigner” in subsection xvii is ambivalent and circular as a foreigner is defined in terms of an illegal foreigner.

The Chair suggested that the use of temporary residence permit (TRP) in subsection xliv is anomalous as it presumes that such person has already been granted admission to this country. He questioned how such person could be granted a visa via a TRP.

In Clause 2(2), the Chair questioned why a resident could be limited to the restriction provided in the subsection, as well as how else would a resident be admitted into the country.

The Chair considered Clause 3(3) and questioned why the TRP is not issued within the Republic.

The Chair then focused on the phrase “from time to time” in Clause 4(1)(c) and suggested the prescribed fee has to be fixed and not determined “from time to time”. The Chair wondered with whom the discretion to determine these amounts lay, as the provision could be subject to abuse if not properly formulated and exercised.

The Chair suggested that the phrase “other organ of state” in Clause 7(2)(b) be reconsidered as only one centralised state organ would execute this function.

The Chair suggested that Clause 9(1)(b) currently meant that the owner of the vessel could issue the TRP, which has to be reconsidered.

The Chair turned his attention to the use of “an institution” in Clause 10(1)(a) and suggested this meant the hospital itself could issue the treatment permit and not the Department of Home Affairs. This too had to be re-evaluated.

Programme of Action
Mr Beukman offered to withdraw his earlier proposal so that the Committee could invest all its time and effort in completing the Bill.

Director General’s Contract
Mr Beukman suggested a subcommittee be formed in order to deal with the issue of the DG’s contract. He then tabled a formal proposal to set up this subcommittee.

The Chair did not recognise the proposal and suggested rather that the Public Service Commission (PSC) be approached to appoint a neutral party to settle the highly important issue of the DG’s contract.

Mr Beukman insisted that a subcommittee could indeed be established under Section 201 of Parliamentary Rules and he asked the Chair to reconsider his decision.

The Chair pointed out that the section was permissive only and not directory in nature.

Mr Grobler agreed with Mr Beukman’s request for a subcommittee as it would allow the Committee to attend to other issues and use its remaining time more productively. He seconded Mr Beukman’s proposal.

The Chair refused to validate both Mr Beukman and Mr Grobler’s actions in an effort to “avoid majoritarianism”. He maintained that the matter must not be dealt with via a subcommittee but via the PSC, who would then properly advise this committee.

Mr Zulu agreed with Mr Beukman’s proposal.

The Chair remained firm on his initial decision.

Ms Van Wyk also agreed with the proposal as the matter needed to be finalised as soon as possible. If the contract does turn out to be invalid, any contracts entered into by the DG with a third party would be void and cause significant legal problems for the Department of Home Affairs. This, she maintained, had to be avoided at all cost.

The Chair misunderstood Ms Van Wyk’s concern as suggesting the DG’s contract was indeed of no effect, and strongly advised her to refrain from making such unfounded remarks as the matter was still sub judice.

Mr Beukman attempted to salvage his proposal by stating that the subcommittee would still have to report to the PSC and consequently urged that his proposal, which had now been seconded by Mr Grobler, be put to a vote.

The Chair refused attempts to entertain further discussion on the issue of establishing a subcommittee. He adjourned the meeting.