South African Citizenship Amendment Bill; Births and Deaths Registration Bill: NCOP proposed amendments

Home Affairs

11 November 2010
Chairperson: Ms M Maunye (ANC)
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Meeting Summary

The meeting was convened in order to consider the proposed amendments from the Select Committee on Social Services on the South African Citizenship Amendment Bill and the Births and Deaths Registration Bill.

On the South African Citizenship Amendment Bill, the proposed amendment to Clause 6 was to delete paragraph (a) and to add the following subsection (3): Any person who obtained South African citizenship by naturalization in terms of this Act, shall cease to be a South African citizen if he or she engages, under the flag of another country, in a war that the Republic does not support.

A Democratic Alliance member said that this did improve the clause, but adding something to an already problematic clause was not the correct path to take. He said that some people may be rendered stateless. The Department responded that the person would have had dual citizenship, and that they may apply to the minister to retain their citizenship. The amendment was accepted by the Committee through a vote. A DA member asked for his objection to be noted.

On the Births and Deaths Registration Bill, the Department noted that the National Council of Provinces had recommended the removal of the term ‘facial patterns’ from the definition of biometrics. The Department said that they wanted this proposal rejected, and wished for the term to remain. The context of the Births and Deaths Amendment Bill was different to that of the Refugees Amendment Bill where changes were made. In the case of the Births and Deaths Registration Amendment Bill, a change in the definition of ‘biometrics’ should not been instituted.

A Democratic Alliance member noted that judging facial patterns created prejudice. He reminded the Committee of the xenophobia in South Africa, and incidents of people being judged as foreign based on facial patterns. He claimed to have discussed the matter with the Minister of Home Affairs who he said supported the removal of this phrase.  Other members asked what recourse was possible in cases where prejudice by Home Affairs officials did occur.

The Committee could not reach consensus on the proposal. It was put to the vote after a quorum was collected. The Committee voted against the NCOP’s recommendation, and therefore kept the term intact within the definition of biometrics. 

Meeting report

South African Citizenship Amendment Bill: NCOP proposed amendments
Mr Deon Erasmus (Chief Director of Legal Services, Department of Home Affairs) presented the amendment proposed by the Select Committee on Social Services:

Clause 6
1.         On page 6, from line 37, to omit paragraph (a).

2.         On page 6, after line 47, to add the following paragraph:

(b)        the addition of the following subsection:

                        (3)             Any person who obtained South African citizenship by naturalization in terms of this Act, shall cease to be a South African citizen if he or she engages, under the flag of another country, in a war that the Republic does not support.

Mr Mukesh Vassen, the Parliamentary Legal Adviser, agreed with this proposal.

The Chair gave the members an opportunity to respond.

Mr M Mnqasela (DA) said that the clause was now in a much better form than it had been. However, adding something onto an already problematic clause was an issue. People who had entered South Africa and then renounced their citizenship may be rendered stateless. People without dual citizenship may end up “swimming in the wilderness”. He asked for input from the legal advisors.  This needed to be very clearly stated. This amendment had to be clearer than the original amendment which made naturalised citizens subject to the loss of their citizenship in South Africa should they participate in acts which were deemed serious enough for them to lose their citizenship. These included participating in a war that South Africa did not support. He was aware it was not a new debate. He wanted it to be clear to those not present.

Mr Erasmus clarified that someone with dual citizenship that went to war for another country, in a conflict that South Africa did not support, would lose his/her citizenship. They may apply to the Minister to retain citizenship.

Mr J Thibedi (ANC) said that it was clearer than before. The amendment addressed South Africans who participated in a war the government did not support. He supported the amendment.

The Chair said that it referred to a person naturalised as a South African citizen.

Mr M Mnqasela said that they did not have the principal act in front of them.

Mr Thibedi said that they seemed to be in agreement that this was good for the country.

Births and Deaths Registration Bill: NCOP proposed amendments
Mr Erasmus noted the proposed amendment to the definition of ‘biometrics’. NCOP recommendations had resulted in the proposed deletion of the words “facial patterns”. The context of the Births and Deaths Amendment Bill was different to that of the Refugees Amendment Bill. In the case of the Births and Deaths Registration Amendment Bill, a change in the definition of ‘biometrics’ should not been instituted.

Mr Mnqasela said that he had discussed this matter with the Minister. He commented on the negative impact of people being defined as ‘other’ during apartheid. He said that judging facial patterns created prejudice. He reminded the Committee of the xenophobia in South Africa, and incidents of people being judged as foreign based on facial patterns. Children should not be judged by their facial structure. He was worried about using these patterns.

Mr Erasmus said that biometrics involved many other factors besides facial patterns. In addition, children would be accompanied by a parent. If someone were subjected to the issues raised, it would be taken up. Facial patterns would not necessarily be used.

Mr Thibedi pointed out that the child would be accompanied by a guardian or parent. That person would be expected to produce a South African citizenship document. He did not understand where the confusion would arise in thinking the child was not South African. The parent would have documents to qualify the child as South African. The parent would be the determining factor.

Mr Mnqasela responded that the Minister had said that this issue was a ‘no brainer’. The term ’facial patterns’ did not need to be there if it was not to be used. In the worst case scenario, when it was being used, what then? He had accompanied an 18 year old boy to a Home Affairs office, and they had looked at his hair and said he could never be South African. His father was Somalian (himself born of a South African mother), and the child’s mother South African. There were people who looked white but were black. These issues would prejudice people. The NCOP had picked this up, and the Minister had agreed that it was a bad thing. If the Government was saying no to xenophobia, why was “facial patterns” part of this definition? It might create problems in communities.

The Chair asked what Mr Mnqasela and the Minister of Home Affairs had discussed specifically.

Mr Mnqasela responded that when they spoke they had agreed that the inclusion of ‘facial patterns’ was unnecessary. However, the decision should not be based on what the executive thought, but the Committee should apply their minds. The Minister had said that the NCOP proposed amendment was worthy of noting.

The Chair asked for input from state law and parliamentary advisors. Mr Vassen said that it was a policy matter. He asked the Department to explain, practically, why they had made this decision to keep the term in the definition and why prejudice would not occur. There were potential pitfalls.

Mr Thibedi said that if the example cited did happen, someone was prejudiced because of facial appearance. Was there any recourse? He was having difficulty with how the Committee was to factor in an outside discussion with the Minister. The NCOP was in agreement with the proposed amendment to the definition of ‘biometrics’ so as to prevent prejudicial discrimination. The Department had made its submission to argue for “facial patterns” to remain. How were they to take this process further?

Mr Erasmus said they were moving on a practical and policy level. Mr Luvo Vena (Legal Officer, Home Affairs) added that, with regard to the biometric definition, it sometimes happened in practice when they were forced to take the photos into the system. They were currently only doing fingerprints. Unclear pictures also caused a problem. Going forward, they were planning for everything to be digitised to avoid fraud.

The Chair said they had a problem as a country as people had fraudulently removed pictures and attached other pictures. Would this not then help in identifying the owner of the identity document? She agreed with the Department to leave ‘facial patterns’ in the definition because it would assist the Department in doing its work. She did not think it would contribute to discrimination. They were trying to assist the Department in doing its work

Mr Thibedi said the example was a good one. Perhaps ‘not to be used prejudicially’ could be added next to ‘facial patterns’ within the biometrics definition.

Mr Mnqasela said that he had made his argument in an attempt to win over the members. The official that spoke was mindful of the fact that they did come across circumstances when they had to look at people ‘like that’ [using facial patterns]. Given that the Department had to pay more than their annual budget on legal fees, he understood. He quoted the law – that people should not be disadvantaged by unfair discrimination. He said they were contravening the law if they passed this. He cited the xenophobic attacks, and how these had almost occurred during the current year too. He reiterated that this aspect of the Bill should be withdrawn. He said they had many issues in making laws non discriminatory.

The Chair said that they had exhausted this discussion and did not agree. She suggested a vote. They did not have a quorum at that moment. The Bill may need to be considered at the next meeting.

Mr Mnqasela said the meeting convened was to agree on the amendments, and not to vote on the amendments. They could not do anything they were not supposed to do. He had not said that he agreed on anything before them. They were trying to get a consensus. Democracy needed to take its course, but the issue at hand far exceeded the value of democracy. It could become a serious legal issue.

Mr Thibedi said that the fact of the matter was that they did not agree. What was one to do next? This needed to be voted on in plenary session the following week. Could they proceed and vote, or could the lack of a preceding indication to vote preclude this.

Mr M Mnqasela said that it did.

The Chair said that an sms had been sent to ask for the Committee’s presence so voting could be conducted.

The meeting paused for five minutes in order to get three more Members of Parliament to form a quorum.
 
The Chair then moved for a vote on the two Bills.

Voting on South African Citizenship Amendment Bill
The Chair started with the South African Citizenship Amendment Bill noting the change to Clause 6: “Any person who obtained South African citizenship by naturalisation would cease to be a South African citizen if they engaged under the flag of another country in a war that South Africa did not support.”

Mr Thibedi put forward his agreement, and it was seconded,.

Mr Mnqasela recorded his vote as against this.

The Committee adopted its report on the Bill which stated:

Report of the Portfolio Committee on Home Affairs on the South African Citizenship Amendment Bill [B 17B—2010] (National Assembly—sec 75), dated 12 November 2010:
The Portfolio Committee on Home Affairs, having considered the subject of the South African Citizenship Amendment Bill [B 17B—2010] (National Assembly—sec 75) and proposed amendments of the National Council of Provinces (Announcements, Tablings and Committee Reports, 3 November 2010, page 3662) referred to it, reports the Bill with amendments [B 17 C—2010]. Report to be considered.

Voting on Births and Deaths Registration Bill

The Chair said the NCOP had proposed the removal of ‘facial patterns’ from the Clause 1 definition of ‘biometrics’. He asked that those who wanted ‘facial patterns’ to remain in the Bill, and rejected the proposal, should raise their hand.

Mr Thibedi raised his hand, and it was seconded.

Mr Mnqasela (DA) asked that his objection be noted. He supported the NCOP, and objected to the Committee’s rejection of their proposal.

The Chair said that she would reflect that objection in the report, which would reflect the Committee’s rejection of the suggestion of the NCOP.

The meeting was adjourned. 

Appendix 1
Report of the Select Committee on Social Services on the South African Citizenship Amendment Bill [B17 B – 2010] (National Assembly – sec 75), dated 02 November 2010:

The Select Committee on Social Services, having considered the subject of the South African Citizenship Amendment Bill [B17 B – 2010] (National Assembly – sec 75), referred to it, and classified by the JTM as a Section 75 Bill, reports the Bill with proposed amendments:

CLAUSE 6

1.         On page 6, from line 37, to omit paragraph (a).

2.         On page 6, after line 47, to add the following paragraph:

(b)        the addition of the following subsection:

                        (3)             Any person who obtained South African citizenship by naturalization in terms of this Act, shall cease to be a South African citizen if he or she engages, under the flag of another country, in a war that the Republic does not support.

Report to be considered

Appendix 2
Report of the Select Committee on Social Services on the Births and Deaths Registration Amendment Bill [B18B – 2010] (National Assembly – sec 75), dated 2 November 2010:

The Select Committee on Social Services, having considered the subject of the Births and Deaths Registration Amendment Bill [B18B – 2010] (National Assembly – sec 75), referred to it, and classified by the JTM as a Section 75 Bill, reports the Bill with proposed amendments as follows:

Clause 1
On page 2, in line 10, to delete “facial patterns”.

Report to be considered




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