Immigration Bill: briefing

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
15 April 2002
IMMIGRATION BILL: BRIEFING

Chairperson: Mr DA Mokoena (ANC)
Ms L Jacobus (NCOP, ANC)

Documents handed out:
Immigration Bill [B79 - 2001]
Briefing by Deputy Minister of Home Affairs (See Appendix 1)
Briefing by the Director General (See Appendix 2)

SUMMARY
The Deputy Minister of Home Affairs briefed the Committees about the work undertaken by himself and the Department. His first set of responsibilities relate to the civic affairs services of Home Affairs which has at the core of its services documents that are connected to the citizenship of the country. His other functions relate to the Government Printing Works, the Films and Publications Board and internal departmental arrangements like democratic transformation (including gender questions) and procurement, in terms of the Preferential Procurement Policy Framework Act, 2000. He highlighted the problem that fraudsters and illegal immigrants pose to the Department and the country as a whole by undermining the system and claiming citizenship and social grants, even though they are not entitled to do so. Even births, marriages, and deaths are faked in order to claim the privileges and rights which South African citizens are entitled to. The Deputy Minister thereafter indicated what steps are in place to combat this problem and informed the Committee about the HANIS project (Home Affairs National Identification System) which will aide in combating fraud and corruption.

The Director General of the Department of Home Affairs briefed members on the general objects of the Immigration Bill, focussing primarily on the following matters in which the Bill seeks to improve on the current Aliens Control Act. Combating transnational organised crime, handling of illegal immigrants, addressing the problem of xenophobia and combating crime within the Department of Home Affairs.

MINUTES
The Deputy Minister of Home Affairs, Mr Charles Nqakula, introduced the team which consisted of; the Deputy Director General: Mr Lambinon, Chief of Staff: Mr Molamu, and Advocate Chetty.

The Deputy Minister outlined his approach; he would share the experiences of the Department of Home Affairs in terms of the work it carries out and the problems that it faces. Because of the responsibility that legislators and members of the Executive bear, there is the need to come together to discharge their main obligation as public representatives, by bringing services to the people. There is no one individual or political party that can claim monopoly in expertise or knowledge in respect of what can be done in our country to solve the problems that it faces. Therefore there is the need to mobilise members of Parliament to assist in overcoming some of the problems that it faces.

The first set of his responsibilities relate to the civic affairs services of Home Affairs, which has at the core of its services the legalising of documents which South Africa has defined in terms of the law. The documents are the Births Registration Certificate, the Marriage Certificate, and the Death Certificate. The Department is also responsible for travel documents, that is, passports. His other functions relate to the Government Printing Works, the Films and Publications Board, as well as internal departmental arrangements like democratic transformation, including gender questions, and procurement, in terms of the Preferential Procurement Policy Framework Act, 2000.

At this point Mr Waters (DP) intervened and enquired what the content of this presentation had to do with the Immigration Bill. The Chair advised that no questions were to be put forward at this point and that they should be reserved for the end of the presentation. Mr Waters replied that it was a valid question, and to this end a Committee Member told him to "shut up"!

The Deputy Minister replied that he is merely doing what he was told to do, hence the content of this presentation.

Civic Affairs
The Constitution confers the right on every South African child to have a name and a nationality. However, he said that not all children are registered as many are born in rural areas, and sometimes where no proper structures are in place, children are born at home and consequently not registered. He averred that even children born in townships are sometimes not registered. However, the Department of Home Affairs allows for a 30-day period of grace within which a child can be registered. It is an instruction that all children need to be registered. In line with the Constitution and the Bill of Rights it is wrong, both morally and legally, not to register a child, as registration confers rights, privileges and benefits on a South African citizen.

He advised that there are adults who come forward claiming that they were not registered and appeal for registration. The grace period for registration has created a loophole in the law because there are those people who want to undermine these structures. He gave the example of an illegal foreign national who wants access to a South African identity document, passport, as well as social grants. However, the Department of Home Affairs was devising a strategy to deal with this matter and the strategy would be published soon. There are arrangements in place to clean up the population register to ensure that people with a South African identity document are in fact South Africans. One of the methods to deal with this cleaning up process is the HANIS project, (Home Affairs National Identification System), a hands on approach, which comprises of three main pillars: Automated Fingerprint Identification System (AFIS), the Identity Card and System Integration. He advised that on the 18 February 2002, the Minister received the HANIS project from the consortium responsible for its development, the MARPLESS Consortium.

The Deputy Minister said that there is a plan in place to develop a Smart Card as a form of identification in South Africa, and which would carry a picture and fingerprints of the carrier. This would assist in cleaning up the population register and eliminate fraudsters.

Marriages
HANIS would help to eliminate people who are trying to secure South African citizenship and thereby undermining the institute of marriage in the country. Victims of bogus marriages should report these matters to the Department of Home Affairs which would lead to the exposure of fraudsters, the annulment of the marriage, and the arrest of the Home Affairs Official who may have been involved in the fake marriage.

Death Certificates
Fraudsters have found a way to undermine the registration of deaths too. This is done in one of two ways. Firstly, there is currently a case being investigated whereby a man, unhappy about his divorcee settlement which required an equal division of the property, simply registered his wife as dead. He therefore obtained all the rights to the property. A second example indicating immorality of people is children placing their parents in an old age home and thereafter registering them as dead in order to claim under the insurance policy.

Passports
Fraudsters too have undermined passports and the country will benefit tremendously from the introduction of a Smart Card, which is a world class identity document. The Coat of Arms on the cover of passports will be changed to reflect the new coat of arms, as well as other safety features will be introduced. The Deputy Minister said that he could not go into a detailed description of these new features, as this would constitute a breach of security. However he said that the Minister would give more details about the new passports shortly.

Government Printing Works
The Deputy Minister said that the Cabinet decided in December 2000 that printing and publishing were not a core business of government and had to be converted into a state owned enterprise under the Department of Public Enterprises. A tender has been advertised calling on consultants to start the restructuring process envisaged by government to convert the printing works.

Films and Publications Board
The Deputy Minister said that this Board is not a censorship body. Its core business is to protect children from premature exposure to sexual activities through child pornography. South Africa bans three things; (a) child pornography, (b) bestiality and (c) violent sex. With respect to child pornography, which is one of the Department's responsibilities, South Africa is among the leading countries in terms of Internet connectivity. There are over 600 000 individuals or organisations that are connected to the Internet. The Internet is also used for the distribution of child pornography.

He ended his presentation by saying that there is a marked increase in the number of people who are engaging in child pornography, but also that there is a marked increase in the number of people who are opening sex shops. It is the responsibility of local government to ensure that licences are given in terms of criteria that are defined in the Films and Publications Act. Some of these shops are situated near schools and places of worship and in these situations there is the need for help from all role players, including the Members of Parliament.

Discussion
Mr Waters (DP) enquired about the infringement (if any) on people's right to privacy by the HANIS project, and how access to the database of information is safeguarded. Secondly, he enquired about what currently being done in terms of the fake marriages, as the HANIS project is going to be phased in over a long period of time. Thirdly, he asked what the Department is doing to fight child pornography.

The Deputy Minister replied that the HANIS project may infringe on certain rights He referred the members to the clause in the Annexure headed (a) HANIS PROJECT and the paragraph which reads "We are investigating, of course, the legislative implications of utilizing an electronic storage medium for citizen information…legislation". This deals with certain stipulations that infringe on rights, therefore there is interaction at the level of formulation of legislation to show that the Department does not fall into the trap of infringement of rights.

With regards to fake marriages, the Deputy Minister said that it will take time before the system is up and running, and to do all things to ensure that fraud is going to be stopped. Processes are in place to deal with these marriages, and that is the reason why people involved in these scams can be arrested. It is a fact that fraudsters do not go before marriage officers, but simply produce fake certificates. This points to the fact that there are people in the Department who are a part and parcel of this fraudulent system.

With regards to child pornography, South Africa has signed the Convention against Cyber-Crime, which covers Child pornography. There is a need for co-operation from all role players to combat this issue. The Child Protection Unit, which is aiding in the fight against child pornography, is under-resourced, but has produced great results. The Director of Public Prosecutions is doing good work. There will be amendments to the Film and Publications Act, and part of these amendments is to ensure that internet providers are brought on board to ensure that they are a part of the instruments required to fight against child pornography.

Mr Grobler (DP) asked with regards to the HANIS project, what the envisaged costs at the end of the project would be. He enquired about other Departments which have come on board this project. He asked the Deputy Minister to mention a few of them as well as mention how far discussions with these Departments have gone. He said that he was particularly interested in the police services.

The Deputy Minister replied that the HANIS project's original tender was R930 million. There is a revised figure that will be released at the end of the month. There are inter-relationships with other Departments, and gave the example of the Department of Safety and Security which has announced its launch of the Automated Fingerprinting Identification System and Advanced DNA system which aids in the identification of criminals. There is interaction with a number of other Departments for example the Department of Social Development, which would be the first Department to benefit from the HANIS project. The Deputy Minister said that the Departments of Health, Labour, Commerce Defence as well as Education would benefit from the HANIS project. The HANIS project is feeding into the overall programme of E-Governance, which will benefit the entire programme.

Mr Mfundisi (UCDP) asked whether, in respect of the coat of arms, the new passports would be phased in slowly or how the Department would ensure control over the issue of these new passports.

Ms Gxowa (ANC) asked what plans are in place for assisting women to register the births of their children in rural areas, as often women have to travel long distances to get to a place of registration, more especially if the child is born at home. Her second question was why do death certificates invariably come back stating "never married" even though the person has been married. She asked whether this was an administrative mistake. Her third question was in relation to child pornography, and how legislation is being implemented to prevent this.

In response to the first question, the Deputy Minister replied that far- flung rural areas are serviced by the Department with the aide of mobile tanks /containers and other vehicles with units of people who do go around assisting with the registration process. He said that there is an arrangement with the Department of Health whereby doctors and other clinic staffs assist with the registration of children. There are trained officials in the Department of Health to assist with registration, as this registration process is not part and parcel of their core business.

Ms Mars (IFP) said that she was interested to know how effective these mobile units have been in aiding with the registration of births. She said that one of the ways to inject poverty relief is by giving children grants and without the documents the grants are not accessible.

The Deputy Minister replied that the development of the people of South Africa across the board is uneven. Also in terms of the services, which are made available, the Department relies on the people at ground level. He said that even though there are mobile units available some areas are not effective serviced as they are elsewhere. Therefore it is difficult to say with a measure of confidence that the mobile units are effective across the board. There are some pockets where they are working effectively.

Mr Pretorius (NNP) asked how the issue of vacancies in the Department are dealt with.

The Deputy Minister replied that there are very few people in his office, only five. His Department directs and co-ordinates the work that is to be done but does not work at ground level. People will employed to fill in the vacancies, and people will be moved into the HANIS project after training.

Mr Tlhagale (UCDP) said one is left wondering whether the previous legislation had loopholes or whether a measure of strictness with respect to fraudsters was not exercised, in that fraudsters can take advantage of every aspect of the work that is done at the Department. He asked what went wrong and where.

The Deputy Minister replied that the previous legislation was weak. People have been tracking the legislation and examining their weaknesses. He said the best that can be done by any government is to tighten legislation and that is what is being attempted at present, to the point that certain people have been arrested.

Mr Tolo (ANC) asked is done where people who have applied for these documents fail to collect them. His second question related to marital regimes and he said that people are not advised of being able to marry in community of property, or with or without an ante-nuptial agreement. What could be done to educate people?

The Deputy Minister replied that at present there are about 150 000 uncollected identity documents. People apply for an identity document, move to or settle in another province depending on the availability of work, and make a fresh application in that province. With the present manual system, it does not pick up these duplicate applications. Also the fact that sometimes applicants omit their entire name when making an application does not enable the system to pick up a match with the previous application. People who obtain a pauper's death sometimes have no identification on them, and in other instances deaths are simply not notified to the Department. As a result this deceased person's identity document is never collected. The Department is interacting with other organisations, community members and churches to make people aware of this problem, and to prevent future duplicate applications from being made.

It is a fact that sometimes people are not informed of the different marriage regimes therefore people who work on the ground must be more pro-active in advising people of their rights.

Mr Skhosana (ANC) asked who are the people who apply for late registration and how does the Department accommodate them.

The Deputy Minister replied that some of the people are merely fraudsters. A strict set of questions is put to the applicant to see if they are genuine in their request for an identity document.

Afternoon session
Ms L Jacobus (ANC), Co-Chairperson, informed Members that the Director General: Home Affairs, Mr Billy Masetlha, would address the Committee and he was accompanied by the Deputy Director General, Mr P Lambinon, and Adv K Malatji, Chief Director of Legal Services in the Department. Members were also informed that during this afternoon session the Immigration Bill would form the basis of the discussion, which would commence with a general overview of the Bill being provided by the DG.

Mr G Grobler (DP) drew members attention to the incident at the beginning of the earlier briefing by the Deputy Minister of Home Affairs when certain members told Mr M Waters (DP) to "shut up", after he had posed a legitimate question to the Deputy Minister. He said that Members should refrain from making such comments in future and the Member(s) responsible should retract the statement.

The Co-Chairperson asked Mr Skhosana whether he was the responsible party.

Mr Skhosana (ANC) answered in the affirmative and stated that he understands the point made by Mr Grobler, but contended that Members must adhere to meeting procedure and behave accordingly. The Chairperson had told Mr Waters that he was not allowed to address the Deputy Minister, yet he ignored this and continued to pose his question.

Briefing by the Director General
The briefing highlighted generally the following areas in which the Bill seeks to improve on the current Aliens Control Act:
- transnational organised crime;
- the problem with illegal immigrants;
- xenophobia; and
- combating crime within the Department.

Discussion
The Chairperson, Mr D A Mokoena (ANC), referred to the issue of deportation mentioned by the DG, and inquired whether even those married to South African citizens would be deported under the Bill.

Mr Masetlha responded that the reason for their deportation is the fact that it has been discovered that every four out of five perpetrators involved in the so-called "419 scams" are indeed foreigners married to South African citizens. Initiating such investigations allows the Department to dig deeper into the background and possible criminal record of the suspected perpetrator, with the result that other offences committed by the person, not necessarily related exclusively to immigration, are also unearthed.

Mr Pretorius (NNP) referred to the recent Constitutional Court cases regarding South Africa's immigration policies, and requested the DG to explain whether the Department is currently complying with these statements of law in principle.

Mr Masetlha replied that the Department certainly is complying with the judgments. In fact, at this time last year a letter was circulated to all government departments by President Mbeki compelling all Departments to comply with High Court or Constitutional Court rulings relating to them. If a department fails to comply, it has to submit legitimate written reasons for its failure to comply. Members are assured that the Department has "done all [it] can" to comply.

Mr Peter Smith (IFP) referred to the criteria dealing with consultation with other Departments, cost factors, implementation and enforceability and asked whether, in his opinion, these abstract criteria have been complied with in the Bill.

Mr Masetlha explained that the extent of the implementation of the Aliens Control Act made it difficult to say with total certainty, and it cannot be said with certainty that the Bill could be fully and effectively implemented. The Department expects foreign companies and organised labour to question this issue. It has been ascertained that in fact the entire Act has not been used to turn the tide, as certain criteria have not been put forward fully. It is thus the purpose of this briefing to share these experiences with Members, so that a viable solution to these shortcomings may be ascertained.

Mr Smith stated that the DG has not properly addressed his initial question, and sought to clarify it by asking him to explain whether, in his own view, the Bill complies with those criteria mentioned during the briefing.

Mr Masetlha apologised for missing the question, and replied that he cannot provide a definite answer either way because there are a variety of factors that have to be considered, including whether the Bill meets the Constitutional requirements and other legal responsibilities. Another concern is whether the French model should be adopted by the Department by taking control of the entire border-line. This in turn puts into question possible infringement of the competencies of the South African National Defense Force (SANDF) and the South African Police Services (SAPS). Yet the Department is convinced that none of these challenges, including those received from other Departments, are insurmountable.

Mr Lambinon added that the costs factor is important, but assured Members that they have nothing to be concerned about because the current Act calls for the establishment of the Immigration Selection Committees in each province, which is a very expensive exercise. These would fall away under the dispensation created by the new Bill, which effectively means that those funds would be available for use in implementing the new Bill.

Furthermore, one of the key focus points of the new Bill is to remove the discretion granted to officials under the Aliens Control Act. This effectively removes the problem currently being experienced with a variety of different opinions being expressed within the Departmental hierarchy on the same set of facts. This would also mean that the surplus officials created by the restructuring would be redeployed into areas in which they are most needed: the enforcement sphere. This need is made even more urgent by the fact that it has recently been illustrated that there is one Home Affairs official for every 60 000 illegal aliens within the Republic, at any given time.

Yet it has to be remembered that the Department does not deal with crime and criminals, only with admissions to and removals from the Republic. It is not a security organisation.

Mr Grobler added to Mr Smith's concern by inquiring whether the Department will be able to implement the new issues raised by the Bill, in terms of its capacity and the requisite training of officials and personnel that would also have to be covered.

Mr Masetlha responded that far more resources are needed than are currently at the Department's disposal, or have been allocated to it for this year. An expansion of current operations and the human resource component is needed, and that little portion of the Department's budget that has been set aside for Immigration Management is simply insufficient to cover the new developments. This means that the new legislation has to be phased in over a period of time, and the most fundamental matters have to be decided upon, so that these can be developed first as a foundation on which other important matters may be built. This is the challenge presently facing the Department. Members will be fully informed of the budgetary framework and implications in due course.

Mr Waters contended that the DG has not once mentioned the Bill during his briefing, which seems to suggest that he is in fact in favour of the retention of the Aliens Control Act, subject to the three proposed amendments contained in the schedule to the Bill. Did this mean that the DG was of the opinion that a new Act is not necessary and that, therefore, the current Aliens Control Act is sufficient to attract foreign investment? If so, this seems to contradict the view expressed by Minister Buthelezi that a new Act is needed. It appears that the Minister and his DG did not see eye to eye on this matter.

The DG replied that Mr Waters was not listening, because he did mention the Bill in his briefing. The fact that, as mentioned, the Constitutional Court has challenged the Aliens Control Act does not mean that there is no need for a new Act. It has to be at least clear that a new Act is definitely needed, but the point made during the briefing in this regard is that this new Act has to incorporate the experiences and lessons learnt from the Aliens Control Act. The new legislation does not exist in a vacuum.

Secondly, there is no conflict with the Minister at all, and he was sure that the Minister had none with him, apart from the minor disagreements.

A Member inquired what the impact of the Bill was on those communities that span the Republic's national borders, and the consequences for the people in these communities who regularly cross the national boundaries to visit their relatives in neighbouring states.

The DG replied that concessions have been made for these communities on this very issue, and fair bilateral agreements have been concluded with these communities. The SADC protocol on the free movement of people has been put on halt because it is closely connected to the free trade of goods across borders, and the Department has become involved in the debate to separate the two. This was achieved at the Mauritius conference, but the new protocol is not without concerns as it is full of conflict regarding the stability of other countries and the call for certain countries to accept the new model (South Africa, Botswana and Namibia) and those African countries opposed to it.

Ms Jacobus requested the DG to ensure that representatives from the Department or himself are present throughout the week's hearings on the Bill, so that the Department may assist Members when it sinks its teeth into the substantive issues of the Bill.

The DG replied that representatives would indeed be present, and perhaps even beyond the public hearings to fully assist the process.

Ms A Van Wyk (UDM) referred to Clause 36 in the Bill dealing with the "investigative unit", and stated that this term is not defined in the Bill, nor is the Commission. The concern here is with the widening of the range of powers of the Commission by the Bill, and whether such widening is in line with the Constitutional requirements. An additional concern is whether the Department would be able to implement these to an acceptable extent.

Advocate Malatji replied that it is true that those terms are not defined in the Bill, but the functions listed, especially those relating to search and entry powers have to follow constitutional principles. Indeed, Clause 36(7) imposes strict constitutional checks on SAPS, as some of the safeguards provided by the Bill, so that the officials do not take the law into their own hands.

Secondly, Ms Van Wyk asked the DG to highlight certain clauses that were worthy of the special attention of Members when deliberating upon the Bill.

Thirdly, clarity was requested regarding the costing factor, and the DG was also requested to explain whether the current position is satisfactory or whether it is in need of change.

The Chair added to Ms Van Wyk's question by inquiring as to the precise meaning of the word "recurring" in Clause 36 of the Bill.

Mr Lambinon responded to both questions that these funds were very similar to those received from the Treasury via the annual budget. This is an indication of the funds which the Department believes it would need for implementation of the new Bill, especially the enforcement branch and the ratio mentioned earlier. This amount, it is believed, would allow the Department to provide an effective service.

The Chair corrected Mr Lambinon and stated that the correct ratio is one official to every 13 000 illegal aliens, as there are presently 4 million of the latter as opposed to 300 officials.

Mr Morwamoche (ANC) requested the State Law Advisor (SLA) to explain whether it is possible to repeal a piece of legislation, while the new law still provides that sections of that repealed legislation may still be subsequently amended. Is this constitutionally sound?

Advocate Malatji replied that Schedule 3 of the Bill does state that those Acts listed, ie. the Aleins Control Act and its subsequent amendments, are wholly repealed by the Bill. It also provides that only the South African Citizens Act remains with certain sections being amended by the Bill. It is thus not possible to simultaneously repeal a law and amend it, and this is not the case with the Bill.

The meeting was adjourned.

Appendix 1:
INPUT TO THE HOME AFFAIRS PORTFOLIO COMMITTEE, PARLIAMENT
Monday, April 14, 2002
CHARLES NQAKULA, MP
DEPUTY MINISTER OF HOME AFFAIRS

INTRODUCTION

The work that I do at Home Affairs relates to delegations that, from time to time, the Minister assigns to me. Some of those tasks were given to me immediately after my appointment while others were added to meet rising challenges within the context of the imperatives of our programme of action.

The first set of my responsibilities relate to the civic affairs services of Home Affairs. At the core of the services are documents that are connected to the citizenship of our country. These include certificates for the registration of births, marriages and deaths, and travel documents.

My other functions relate to the Government Printing Works, the Films & Publications Board and internal departmental arrangements like democratic transformation (including gender questions) and procurement, in terms of the Preferential Procurement Policy, Framework Act, 2000 (Act No5 of 2000).

In discharging the task you assigned me, Mr Chairperson and Honourable Members of the Portfolio Committee, I will share with you, in the first instance, our experience in the Ministry as we deliver services to our people, and, on the other hand, the frustrations we have to confront in the process of such service delivery. In other words, I will acquaint you with both our successes and failures; our strong points and weaknesses.

I will be doing this because I am convinced there is no one, and no one political formation in the country that can claim monopoly on expertise and wisdom to solve all the problems we have as a nation. We need you, as law makers, to help those of us who are in government to deliver to our people all the services they need to transform their lives for the better in even; respect.

CIVIC AFFAIRS

The first legalizing document that all South Africans have a right to is the Birth Certificate. The South African Constitution confers this right on every South African child. Article 28(1)(a) says "Every, child has the right to a name and a nationality, from birth."

It is wrong, both in terms of the law and morally, not to register children when they are born. Those who are registered as South African citizens have rights, privileges and benefits that flow from their citizenship. These are identified for children as well in terms of the South African Bill of Rights.

Home Affairs allows for a period of grace of 30 days within which children have to be registered. The department also allows for the late registration of births, which has helped many people from our rural countryside. The Portfolio Committee will appreciate that there are many people, mainly in the rural areas with a sprinkling of others in the townships, who give birth in their homes. Children born in that fashion are often not registered. This is part of the reason why Home Affairs created space for the late registration of births.

This practice, while benefiting our people, has also created a loophole that some foreign nationals exploit in the quest for all manner of South African services. Such people have not only gone on to acquire South African identity documents and passports. They have also registered for grants with the Department of Social Development.

We are devising a strategy at Home Affairs to deal with this matter in a way that will flush out wrongdoers but not disadvantage South African citizens. This will be published as soon as it has gone through all the necessary processes in the Department and Ministry, as well as government.

Two years ago we established in our regional and district offices screening committees to scrutinize all applications for the late registration of births. The committees have done good work but their success rate is below expectation. Many fraudsters, consequently, escape and continue to abuse our systems.

Meanwhile, the department, working closely with the Departments of Education and Health, allocates officials to schools to help learners to acquire identity documents while others work with their Health counterparts in hospital maternity wards to register newborn babies.

IDENTITY DOCUMENTS

The proper registration of South African children is the first step towards the cleaning up of our Population Register. At the moment there are many people who earn South African documents that have been acquired fraudulently.

a) HANIS PROJECT:
On February 18 this year the Minister of Home Affairs accepted on behalf of the department and the country the Home Affairs National Identification System (HANIS) from its developers, the Marpless Consortium.

The HANIS Project will be explained more fully by the Minister in the department's Budget Vote. Suffice to say at this time that HANIS is comprised of three main pillars. These are the Automated Fingerprint Identification System (AFIS), the Identity Card and System Integration.

We are going to convert from the current identity document to the Smart Card that will provide South African citizens with a world-class identity card that will provide a common platform for the integration of government services. We are investigating, of course, the legislative implications of utilizing an electronic storage medium for citizen information as it is anticipated that modifications will be required to some of the existing legislation.

The Smart Card will go a long way towards the elimination of fraudulent identity documents.

b) MARRIAGES:

HANIS will also help us to eliminate the registration of fake marriages, which have become common these days.

There are a number of people who have been communicating with us about these bogus marriages. One correspondent, in a letter to the Minister, says, among other things:

"... I have also been informed that I will have to get divorced from this man that I have been fraudulently married to, in order to get out of the marriage. I am NOT (her emphasis) prepared to do this, as I never married him in the first place, and am in this situation as a result of a fraudulent crime perpetrated by the Department of Home Affairs."

This matter needs some discussion by all of us. I agree with the writer of the letter that you do not get divorced from a fake marriage. B', its nature, a fake marriage does not exist and should not enjoy legitimacy. To insist that those who are victims of bogus marriages should institute divorce proceedings to free themselves is an attempt to legitimize the marriages. A simple formula should be found to free those who are entrapped in this way. The procedure, I believe, would be to ask the victims to submit to Home Affairs a signed affidavit. The department would have to take responsibility to investigate the matter, leading to the exposure of the fraudster, the annulment of the marriage and the arrest of any Home Affairs officials who may have been involved in the fake marriage.

c) DEATH CERTIFICATES:
Fraudsters have found a way to undermine the registration of deaths. They produce death certificates that they use to register deaths. Some men who have been divorced and face what they consider to be harsh divorce conditions, simply go and register their former wives as dead.

There are children who put their elderly parents, who have life assurance policies, with in age homes. The parents are then reported dead and fraudulent death certificates are submitted to back this up.

There are some cases we are following up in regard to these matters and we are close to arresting some of the suspects.

d) PASSPORTS:

Our passport, which has enjoyed pride of place for many years among international travel documents because of its safety features, has been assailed in a big way by fraudsters, thus undermining its value. The document will benefit tremendously from the introduction of the new Smart Card.

There are other features we will include to consolidate the document's safety features. These I cannot talk about for security reasons. What I can reveal, though, is that the front cover of the passport is going to change in due course. This has to do with the fact that we will need to change the old Coat-of-Arms, which appears on the book's cover currently. We will replace it with the present Coat-of-Arms.

The change will not be effected soon as we have large stocks of the passport that we need to exhaust before we convert to a new document.

GOVERNMENT PRINTING WORKS:

We have approached the Leader of Government Business to allow us to include the Government Printing Works Conversion Bill in the 2002 Parliamentary Programme.

Cabinet decided in December, 2000, that printing and publishing were not a core business of government and agreed that the Government Printing Works had to be converted to a State Owned Enterprise under the Department of Public Enterprises. A tender has since been advertised calling for consultants to start the restructuring process envisaged by government to convert the Printing Works. The closing tender date is today, April 15, at 11 this morning.

FILMS AND PUBLICATIONS BOARD:

This Board, set up in terms of the Films & Publications Act, has 43 examiners, 10 of whom are chief examiners. A Chief Executive Officer assisted by two Senior Executive Officers, heads the board. There are nine members of the Review Board, which is entrusted with the function of reviewing the decisions of the Films & Publications Board.

South Africa does not have censorship laws. The Films & Publications Board is not a censorship body. Its core business is to protect children from premature exposure to sexual activities through child pornography.

The board discharges its task through the classification of films and publications. But, there are weaknesses in our law, which make it difficult for the board successfully to do its work. The public broadcasters, for instance, have their own classification authorities, which results in two different determinations regarding classification. The films shown on television, more often than not, are rated differently. This enables children to watch on their televisions at home films they are not allowed to watch in public cinemas and theatres.

The classification of publications is another nightmare. There are so many publications that publishers put into the public domain every day. The Films & Publications Board cannot keep track of such publications.

Australian publishers are duty bound to submit for classification certain publications that fall under certain criteria. These are magazines like Hustler and Playboy. The publishers submit proof copies of the magazines before they are finally printed for circulation.

You must have seen just over a week ago banner headlines in one of Cape Town's newspapers that announced: "Rape Film Man Held In Child Porn Raid".

The arrest was just one in a trend that seems to be growing, of some South Africans who are producing and distributing child pornographic images. You are aware of the Christmas Father case that is currently before our courts.

The internet has become a primary channel for the distribution of child pornography. There are 600 000 individuals and organizations in South Africa that are connected to the internet. This has put our country at position 18 of the most connected countries in the world, ahead of France, among other First World countries. This translates into more than two million South Africans who are internet users.

Concomitantly with this development, there has been a marked increase in the distribution through the internet of child pornography in South Africa.

There is also a proliferation of adult shops in South Africa. The monitoring of such shops is part of the responsibility of the Films & Publications Board.

Appendix 2:
HOME AFFAIRS PORTFOLIO COMMITTEE
PRESENTATION OF THE DEPARTMENT OF HOME AFFAIRS
ON THE MIGRATION SYSTEM IN SOUTH AFRICA

REMARKS BY
BL MASETLHA
DIRECTOR-GENERAL OF THE DEPARTMENT OF HOME AFFAIRS CAPE TOWN: 15 APRIL 2002

The Chairpersons of Portfolio Committees on Home Affairs and Honourable Members of the Committee.

I thought it opportune to premise the presentation of the Department on the Migration system with a few introductory remarks. Migration control is in no doubt a difficult and multi-faceted issue, which easily lends itself to controversy and seldom offers consensus-based solutions, There is however consensus that migration system has to be effective in keeping out foreigners who are not wanted and facilitate economic growth by processing those who are supposed to be here more efficiently and expeditiously.

The issue of whether a state should admit a foreign national into its territory is a matter of an exercise of state sovereignty1 taking into account the rule of law and specific treaty obligations. Since the democratic elections of April 1994 and the coming into effect of the 1996 Constitution, applicable constitutional provisions, particularly those contained in chapter 2 of the 1996 Constitution, govern the law relating to the entry and departure from the Republic. I must emphasize in this regard, the supremacy of the Constitution as envisaged in terms of Section 2 of the 1996 constitution, that law or conduct inconsistent with it is invalid. In addition, since 1991, the most important legislative provisions governing the admission into, residence in and departure from the Republic are to be found in the Aliens Control Act of 1991 as amended extensively in 1995.

Several reasons have been advanced as to why Aliens Control Act, 1991 (Act no 96 of 1991) should rather be abolished in toto than to be amended. A detailed discussion of these debates is beyond the scope of this presentation and will be pursued in so far as ft is necessary

It is said of the current legislation that it stems from the apartheid era and is racialist and should therefore be removed from our statutes. It must be realized that this legislation and its basic principles stem from 1913, shortly after the unification. The reason far this legislation is however, extremely interesting. It was to keep undesirable, fortune-hunting citizens (whites) from Europe, America and Canada from pouring into the country. It is furthermore noteworthy that the apartheid element was never built into this legislation but was embodied in the Black Urban Areas Act, Black Labour Act and the other elements of the so-called influx control legislation.

The second reason that is given for the need for new legislation is that the current legislation is unconstitutional. In this regard it is interesting to note that the Department has been taken to court on constitutional basis mainly on three principal areas.

The first was the constitutionality Of the refusal by the Department to give reasons for some of its decisions. The challenge pertains to the requirements of Section 33 of the Constitution, which addresses the concept of just administrative action. The first few cases brought before the court were decided in favour of the Department but were later overturned by the High Court. Two things are important here, namely that the challenge was not on the contents or principles of the Act; but on the principle of audi alteram partem rule. The principles of Section 33 of the Constitution were subsequently incorporated in the Promotion of Administrative Justice Act. The Department accepted this and adapted all its procedure accordingly.

The second challenge in terms of the Constitution tame in the sphere of foreign spouses or partners married to South African citizens or residents. Here the Constitutional Court made keynote decisions and the Judge indicated that the problem was not the fact that temporary residence permits were refused, but that there was insufficient guidance in the Act as to reasons for refusal where spouses are concerned. In actual fact the Court conceded that the Department could refuse a temporary permit provided there is a good cause to do so.

The third challenge came against the deportation sections, i.e the section involved when foreigners are convicted of crimes and then deported to their countries of origin. This challenge came else) in conjunction with a spousal situation added to the scenario but was dismissed recently by the High Court despite this connection. The Court actually conceded that the fact that a person is married to South African citizen does not mean that he cannot be deported.

Several other half-hearted challenges were directed at the Department: The foremost of these was the challenge that the Act was discriminating against foreign persons. The Department was of the view that this was in line with the Constitution as the Constitution determines in section 21(3) that Citizens have the right to enter, remain and stay anywhere in the RSA. Furthermore, Section 22 gives the right to exercise ones profession to citizens only. There are several other rights which are given only to citizens. The Constitution itself therefore discriminates or differentiates between citizens and non-citizens. The Courts as expected, correctly rejected these allegations.

It is interesting to note that the Constitutional challenges against the new Refugee Act has been more than those against the Migration legislation.

On the other hand, as I mentioned before, one has to look at the challenges that are lying ahead of us for which the Migration legislation should make provision if we intend to provide the service, in the spirit of Batho-Pele principles to our customers in the first place, i.e. the citizens and legal residents of this country of ours. In this regard I wish to note the following, most of which are worldwide phenomena:
> Transnational Organized crime;
> Illegal migration and undocumented, economic migrants;
> Stemming the veritable tide of so-called marriages of convenience with which the department is inundated because of the Constitutional Court judgment in the Dawood and subsequent matters;
> The rise in crime in the host country of illegal migrants;
> The effect of illegal migrants on unemployment;
> The perceived rise in xenophobia;
> Facilitating desirable skills and investment importation to enhance job creation and prosperity;
> Combating corruption in the Department.

The phenomena of trans-national organized crime has reached such proportions that by resolution of the UN a convention was to be established to combat this trans-national organized crime. South Africa participated seriously in this process and the representatives of the Department were actively involved in the drafting of the Protocols on the Smuggling of Migrants and the Trafficking of persons especially women and children in the context of trans-national organized crime.

This message was also carried over to the Deputy Minister of Home Affairs at the time by the South African Ambassador at Vienna who was primarily responsible for the overall inputs of South Africa at the Convention. As such the South African representatives could speak with authority and were revered as being on the forefront of this battle with crime. The biggest problem that most countries had was that they require major legislative changes to be able to sign the protocols, whereas South Africa could sign and execute its duties in terms of the Protocols with no additional legislation.

The experience of the enforcement officers of the Department in their daily contact with and assistance to the other South African security institutions has taught us one serious lesson. Approximately 90% of foreign persons, who are in the RSA with fraudulent documents, i.e. either citizenship or migration documents, are involved in other crimes as well. To give an example I would like to recall the matter of the Director of the National Treasury. He obtained South African citizenship fraudulently and that is where the matter started. The investigators of the Department built a docket of 150 pages on this person in one week before they arrested him. In the end the following appeared:
>He had two false RSA identities, despite the fact that he was a Zimbabwean citizen with a Zimbabwean ID and Passport;
> He was wanted in Zimbabwe (his country of origin) for fraud of approximately
US$2 000 000-00;
> He was wanted for fraud by ESCOM, his previous employer;
> He was wanted for fraud by a large commercial bank; and
> He was appointed to all positions on the basis of forged certificates from UNISA.

The net result of this was that my colleague, the Director-General of the Department of Finance instructed that, the investigators of the Department of Home Affairs must vet all new appointments of staff in his department. This is but one example of the many that are brought daily to justice. In fact it is quicker to charge these criminals for their false documentation and then to deport them than to pursue the long route in respect of the other crimes that are committed. The few investigators available are now almost every day in court assisting the police to oppose bail or to give evidence in respect of the false documentation of the criminals.

This action is currently gaining momentum at an almost alarming rate, to the benefit of law enforcement in general and the elimination of criminals who are responsible for the huge rise in crime in the RSA. To change all this to a weaker system, and not enhance the enforcement part of our work; will not only be detrimental to the enforcement of the migration legislation, but would seriously affect the criminal justice system as well.

There are a large percentage of undocumented illegal migrants who, apart from the less complex, but nevertheless serious crimes1 are affecting our normal citizens on grassroots level seriously. I refer to the unemployment problem. I am not an expert on labour but from the figures quoted in the media it appears that unemployment is never adjudged to be less than 10% and very often higher.

On the other hand, from a study conducted by the Human Sciences Research Council in conjunction with the University of Pretoria estimated that in 1996, two years after the new dispensation and the opening up of the country to the world in 1994, there were between 2.4 and 4.1 million illegal aliens in the RSA at the time. Now, 8 years later, one can safely say the minimum is at least above the estimate of 4.1 million, and probably substantially higher. This being the case it means that 10% or more of the population are illegal aliens. This equals most of the quoted unemployment figures.

This brings me to the purported problem of xenophobia, perceived in some quarters to be a serious problem. I say purported and perceived; as I do not believe that we have a serious problem of xenophobia in the RSA. We have several ethnic or cultural groups of whites in this country. On top of that we have even more ethnic and cultural groups of people of colour. On top of that we have many foreign persons with the right to residence in the country who are not even citizens. With a few exceptions, which prove the rule, I have yet to experience real xenophobia in this context.

However, I have been privileged to have contact with our people on grassroots level quite often. During these contacts it becomes clear that they are not against people who are different from themselves, but object to being without a job where the job was taken by an illegal, not legal, but illegal alien. This is understandable seen in the context of the situation they find themselves in. They were precluded from many job opportunities during the apartheid era and had hoped that after 1994 they will be able to compete for jobs openly.

The reality, however, was dismal. The South African is still without a job and he sees the illegal alien and the alien with false documents walking away with his job, often because the alien is prepared to work for lower wages. Is this xenophobia or a genuine objection to the perceived inability of the Government to protect them, to ensure that they get what is rightfully theirs even in terms of the Constitution?

The question directed to me is always: Why doesn't your Department do more? They continue and say; 'We do not need new legislation; we need more resources to combat the root of the problem.' These are some of the things ordinary persons of our country raise with those of us who continue to remain in contact with.

To educate our people not to be xenophobic, while the root cause of such perceived behaviour is growing would be a total waste of resources. The reaction the Department is receiving, after each success, is overwhelming. Our people do not want to take the law in their own hands, but they will if we don't do everything in our power to eliminate the problem or show them that we mean business.

Together with this challenge, is the challenge created by the Dawood decision in respect of the rights of spouses married to South African citizens and /or permanent residents. The first category of persons to climb on this bandwagon was the criminals. At first they paid South African unmarried women to marry them 'as some sort of a joke'. The fee of R300 to R500 and the marriage was never consummated. This escalated to the current situation where corrupt marriage officials will marry the illegal alien to an ID book without any person being available. If you are not married and you lose your passport or it gets stolen, you find yourself married to a foreign citizen of whom you have no knowledge. It is imperative that this situation must be combated.

The facilitation of the importation of skills is also a major challenge. The current legislation, however, is wide enough to encompass this challenge as well. The new Immigration Bill will need to give definite guidelines and policy in order to minimise discretionary measures which our officials are at times forced to employ. This must be accompanied by ongoing first class training as a norm.

The field of endeavour of the Department or any science dealing with the movement of people, migration and migration patterns is a dynamic social science. For this reason, the legislation in this regard cannot remain static. Ever since the first legislation on migration there had been an evolution to accommodate new trends and developments. By the same token, the current legislation must keep on evolving to remain relevant in the changing times and to make provision for the new challenges.

Any new legislation must give certainty to the process and limit, if not eliminate discretion by officials. These processes must be made simple, fair, less complex and non-contradictory.

As we prepare this new legislation, we must ensure that we take into account Constitutional and legislative mandates and responsibilities of other state departments such as Labour, Police, Education, Defence and SARS just to name a few. We must avoid trying to be everything to everyone.

Any outcome of this process, for it to be credible, must produce legislation that is implementable and enforcable. In this regard, contemporary international practice can be very helpful; especially experiences of Western Europe and the North Americas.

I would not have done justice to my input if I did not raise the question of cost. As we elaborate on all the different options available, we must note that there is a limit to how much more money and other resources are needed to implement any new legislation. There are definitely no short cuts to this question, very soon it will catch-up with us.

One of the experiences in the international arena is that, the State must at all times remain at the centre of management, control and responsibility in dealing with matters of migration, especially were it requires enforcement.

In closing chairpersons and members of the Committee, I must state that, ever since my appointment as Director-General of the Department of Home Affairs, I have never engaged on issues embodied in the Immigration Bill; whether within the department or outside of it. I do not intend to do so now, however, I believe there are lessons we must learn through our experience in the implementation of the current legislation; we must; as we deliberate the new, keep those lessons in mind.

I thank you.