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HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
16 April 2002
IMMIGRATION BILL: PUBLIC HEARINGS
Co-Chairpersons: Mr Mokoena (ANC)
Ms Jacobus (NCOP, ANC)
Documents handed out:
Immigration Bill [B79 - 2001]
Submission by Price Waterhouse Coopers
Questions and Answers Session (See Appendix 1)
SARS comments on the Immigration Bill & Addendum of proposed amendments (See Appendix 2)
Price Waterhouse Coopers argued that there were insufficient provisions within the Immigration Draft Bill to comply with the Constitutional Court Judgements.
The South African Revenue Service (SARS) presented its comments on the Bill. SARS through the Minister of Finance was consulted. Some of their comments were accommodated by the Department of Home Affairs and others were not. The comments that were not accommodated was the focus of the presentation. The main concern raised by SARS was that South Africa needs a border policy that takes into account economic development and not only migration control. At the moment the management of ports of entry is virtually non-existent and an integrated approach is required.
Presentation by Price Waterhouse Coopers
Ms Lamprecht advised that she had a brief meeting this morning with the Deputy Director general and Advocate Malatje before arriving for the committee briefing, and certain agreements were reached in respect of the amendments to the Bill. She advised that these would be made available to the Committee Members.
Ms Lamprecht read out the submissions from the document (see annexure). She particularly highlighted the Constitutional Court decisions in the Dawood, Shalabi & Thomas Class Action and Minister of Home Affairs and Others case, the National Colaition for Gay and Lesbian Equality And Minister of Home Affairs and Others case, as well as Anette Susan Booysen and Others versus Minister of Home Affairs and Others case.
Ms Lamprecht stated that the Draft Bill does not meet the Constitutional Test and PWC felt that it is their responsibility raise these aspects to prevent future revenue losses due to court cases arising in the matters which were raised in these court cases. Ms Lamprecht thereafter read out the suggested amendments and new clauses that could be included in the Bill.
Presentation by South African Revenue Services
The SARS submission was presented by Mr Shabalala the General Manager of Customs. The General Manager of Legal Services, Mr Louw, was also present.
Two areas not adequately discussed with the Department of Home Affairs was in relation to ports of entry and more specifically trade facilitation and the management of the ports. SARS further made specific comments on the designating of ports of entry, administering ports of entry, delegating powers, issuing of permits and the sharing of information.
Mr Shabalala acknowledged the importance of border control but said that the problem of bottlenecking at the border posts must be addressed to facilitate economic development. There is no integrated national border post management policy and a policy is needed to ensure streamlined border control and clear reporting lines for the management of ports of entry.
Please refer to Appendix for full submission.
Mr Grobler (DP) asked a question that was based on the situation at certain ports of entry where there are extremely long queues because some ports cannot handle commercial activity. He asked if the potential exists to have the service at all ports.
Mr Shabalala replied that for SARS purposes certain ports are designated through legislation or rules as so called commercial ports of entry. Some ports cannot carry goods and there would be no customs officials present. Government must take the decision whether customs must be represented at all ports. Some ports however are very small and it might not be economically viable to have staff present because of the insignificant amount of commercial traffic.
He added that SARS is looking at international trends which move away from concentrating functions at ports of entry themselves. Currently goods are unpacked and repacked at the ports but maybe this could be done away from the border post. Another important factor is co-operation between the different custom officials. If an exporter leaves South Africa and wants the goods checked for VAT purposes, but when he gets across the border the goods must again be unpacked and repacked because it must be checked for import duty.
Mr Smith (IFP) referred to the proposed amendment of clause 2(3)(c)(i) and asked why this is needed because the definition section already defines what a port of entry is in that it is determined "by the Minister, in consultation with the Minister of Finance". He said SARS under the clause 2 amendment wants a further consultation and enquired about the purpose thereof.
Mr Louw replied that clause 2 allows people to enter the country other than at a port of entry if they have a certificate. This clause must be read with clause 25 that likewise allows for the exit of people in the same way. The problem arises if they enter or leave with goods. SARS concern is that they must know about this and therefore the consultation is proposed.
Mr Shabalala added that SARS only interest is that when people enter or leave South Africa the customs requirements are complied with.
Mr Smith referred to clause 25 where SARS asks for an amendment that would afford customs officers from other countries exemptions when having to enter the country.
Mr Shabalala replied that in terms of free trade agreements and memorandum of understanding South Africa officers could operate in Swaziland and Mozambique for example. In this proposed amendment SARS is asking for the indulgence of Home Affairs because the need for the special treatment of foreign customs officials will arise more often as trade agreements are implemented.
Ms Van Wyk (UDM) was concerned that if exemptions are given to SARS then all other departments like the police and parliament will want the same.
Mr Shabalala said that the exemption is in order to facilitate joint operations. He added that it could not be argued that if law enforcement officers are granted the exemption then all other departments could ask for it. Any entry into South Africa is subject to Government approval and conditions of entry are set. Customs officials entering South Africa do so for a specific purpose and in relation to a specific area.
Mr Skhosana (ANC) referred to the proposed amendment to clause 8 and asked why does SARS want adequate proof of registration with the South African Revenue Service when an accountant already certifies that all provisions have been adhered to.
Mr Louw replied that SARS wants the additional sub clause added to clause 8 so that the person is registered with SARS for tax purposes. When a foreigner comes into the country the certificate of the accountant referred to in the Bill only applies to the Immigration Bill itself. SARS needs to know if the person has been registered with SARS in terms of the legislation SARS administers.
Ms Van Wyk commented that the proposed amendment was a good idea and asked at what point the committee could ask Home Affairs why they never took certain suggestions on board.
Mr Mokoena enquired what specifically did Home Affairs not take on board.
Mr Shabalala stated that a number of discussions had taken place between Home Affairs and SARS. SARS is pushing for an integrated system to manage the ports of entry. This view is not shared to the same extent by all departments including Home Affairs. The specific amendments proposed are a move towards a more integrated approach and to make sure that there is at least the minimum amount of co-ordination. The amendments in no way go far enough to achieve the integrated approach that SARS believes South Africa needs. At the moment management is left to operational committees at the ports of entry. There are no senior officials and no rationalisation of how to work together. Mr Shabalala gave an example: when he visited a port of entry he asked the officials why a specific part was so dirty. The response was that the area specified is the responsibility of another department. With SARS, Home Affairs, Police, Defence and Agriculture present at the ports a co-ordinated approach is needed.
The Committee agreed that they could engage Home Affairs on the issues raised by all presenters when they deliberate the Bill.
Mr Chikane (ANC) asked if something could be devised to improve the situation at borders where people wait in queues for a long time.
Mr Mokoena replied that it is exactly for that reason that SARS is proposing an integrated approach.
Mr Waters (DP) asked how are ports currently administered and why is it not working. He was concerned that any new approach might not solve the problem.
Mr Shabalala replied that there were operation committees at each port. The idea was that all departments would meet regularly to plan operations and report accordingly. This was part of the old National Crime Prevention Strategy (NCPS) that was abandoned. After the NCPS was abandoned the structures collapsed at most ports. Lately there are Border Control Coordinating Committees (BCCC) that report to the Justice Cluster. These are still starting out. SARS is not part of the Justice Cluster. For the moment SARS is hoping that the BCCC's outgrow the petty competition between departments and come up with a way to jointly manage the port. Then legislation is needed from the cluster as a whole. The Justice cluster is only concerned with security therefore when discussing the policy for the new legislation, the Economics cluster that focuses on economic growth and trade and the International cluster that looks at borders must come together and jointly promote the legislation.
The meeting was adjourned.
Notes on the Questions raised and answered by Pricewaterhouse Coopers on 16 April 2002
Linda Lamprecht, of PricewaterhouseCoopers, responded to the following questions raised:
Ms Mars (IFP) asked for clarification on the issues discussed this morning with the Department of Home Affairs. Who attended the meeting?
Ms Lamprecht responded that the Deputy Director-General, Mr Lambinon, approached her after the public hearing on Monday, 15 April 2002, to suggest a meeting to discuss PwC 's comments with regard to the Draft Immigration Bill. They met this morning at 08H30, and the meeting was attended by Advocate Rufus Malatje, Chief of Legal Services, Dr Ambrosini, Mr Lambinon and herself. The matters discussed are as mentioned in the submission.
Chairman Mokoena asked if she approached the Department before the submission this morning?
Ms Lamprecht replied that Mr Lambinon approached her.
Mr Sikakane (ANC) asked if he understood her correctly that the Bill does not meet the requirements of the Constitutional Court rulings? He asked if the issue of permits by study institutions and medical institutions inhibit the Department from exposing corruption at an early stage and what actions could they take once corruption becomes apparent?
Ms Lamprecht replied that the Bill does meet some of the constitutional requirements, such as including the life-partners in the definition of spouse and enabling foreign nationals to apply for a work permit from within South Africa, but it does unfortunately have some serious shortfalls, as discussed in the submission, which need to be addressed .
She said that yes, it will not be possible from an administrative point to inspect all records of such institutions on a continuous basis and it might take considerable time to establish whether corruption has occurred. In view of the fact that such persons who will be entitled to issue permits at medical institutions are not employees of the Department of Home Affairs, it will only be possible to prosecute corruption by laying criminal charges.
Mr Smith asked if the State Law Advisor applied his mind and ensured that all constitutional orders are met when preparing the bill. He said that it was referred in the draft submission, an absence of a definition of spouse, but it does appear in the Bill.
He further enquired if she does not agree that the rights of spouses have been adequately addressed within section 21 of the Bill?
Ms Lamprecht replied that her view is that the State law Advisor has applied his mind, but it would appear that some issues might not have been adequately addressed.
She apologised for not amending the submission, as the initial draft was prepared, based on the version of the bill which appears on the Department of Home Affairs website, and which is also the latest copy of the Bill available to the Regional Office of the Department. She said that she was only advised on Monday in respect of Bill 79 of 2001.
She said that the request for the definition of spouse was removed, as well as the request for a definition for a chartered accountant, since this has been included in Bill 79 of 2001.
She stated that section 21 only refers the consideration of permanent residence permits, but it does not refer to the constitutional court order of Annette Booysen and others, in which it was ordered that foreign national spouses should be granted the right to temporarily work in South Africa and that such applications do not have to meet the standard requirements (in terms of the present legislation, need not meet the criteria set out in section 25(4) of the Aliens Control Act).
At present, an application for permanent residence takes anything between 12 - 18 months in the Western Cape, to be considered. Even if applications are streamlined and spouses' applications are fast-tracked it will still take between 3 - 4 months since certain security checks, which involves co-ordination with other Departments have to be obtained. In certain instances as well, applications are referred to the Department of Health for recommendations on whether certain health issues should be condoned. One should also bear in mind that staff shortages will continue and that there is a backlog of 1000- 1100 applications in the Western Cape alone. These backlogs did not only develop because of the Immigrants Selection Boards not meeting regularly enough, but also because of lack of resources, such as staff. As financial restraints will always be present, it may still not be possible to deliver a response within several weeks.
Mr Zulu (IFP) said that age limitations also appear within the Labour Relations Act and other legislation, and why should the Bill not include age restrictions.
Ms Lamprecht replied that she agrees that it is sometimes necessary to refer to age in legislation, but if there is a better way to address an issue, should we not perhaps opt for such? The underlying motivation, she presumes, for adding an age restriction in the present regulations in respect of work permits is probably to prevent a foreign national from becoming a burden on the state should he already be over the age of 51 and has made no provision for retirement. Many persons over the age of 51 can still make a valuable contribution to the economy. Would it not be better to rather request proof of provisions made for retirement?
The same applies to the retired persons category. Many retire at the age of 58, as is especially the case in Europe. Rather than preventing persons younger than 60 from applying for immigration, should we not rather address the issue of proof of funds to prevent the person from becoming a burden on the South African State, which is perfectly acceptable criteria for consideration.
Mr Tlhagale asked in her opinion if the Bill should be sent back to the drawing board
Ms Lamprecht replied that no, she believes that the Bill should not be postponed any further. The amendments could easily be included within the next week or two.
The deputy chair, Ms Jacobus asked if Ms Lamprecht would be willing to prepare the paragraphs in her submission for inclusion in the bill. And if it would be possible to prepare the paragraphs for the bill within one or one and a half weeks.
Ms Lamprecht replied that they would gladly do so.
The chair asked Ms Lamprecht about her qualifications and background.
Ms Lamprecht replied that she is a graduate of the University of Stellenbosch, where she obtained her Bachelor of Arts with Political Science and African Studies cum laude.
She said that as part of her studies she also did some International Law and studied Migration as part of Sociology. During her studies she obtained a bursary from the Diplomatic Service/ Department of Foreign Affairs, but decided to join the Immigration Division within the Department of Home Affairs in Cape Town.
She said that she was involved in training officials within the Western Cape with the previous Immigration Bill during 1991 and 1996 and has acted in a supervisory position within the Department of Home Affairs, initially in charge of Temporary Permits and Permanent Residence Section and subsequently actively involved in the Temporary Permit and Visa Section. She said that she has 10 years hands-on experience in immigration and has assisted the legal section of the Department by assisting the Office of the State Attorney and Senior Council with preparing the affidavits on behalf of the Department in the Makinana/ Booysen, Dawood, Shalabi and a number of other cases.
The meeting was convened after the deputy chair thanked Ms Lamprecht for her contribution and invited her to make submissions in future since it was apparent that she had sound knowledge of Immigration Issues.
Mr Mfundisi (IFP) thereafter registered the vote of thanks on behalf of the committee and the meeting was adjourned.
COMMENTS OF THE SOUTH AFRICAN REVENUE SERVICE ON THE IMMIGRATION BILL,
NO.79 OF 2001 TO THE PORTFOLIO COMMITTEE ON HOME AFFAIRS 16 APRIL 2002
1.1 The South African Revenue Service (SARS) wishes to express its appreciation to the Portfolio Committee on Home Affairs for affording it the opportunity to comment on the Immigration Bill, No.79 of 2001 ("the Bill").
1.2 The tabling of the Bill is a welcome and timely development. Following South Africa's first democratic elections in 1994, the premise, context and rationale for migration control have necessitated an in-depth review of South Africa's migration policy. The tabling of the Bill signals that such review is taking place and SARS trusts that it will be able to enrich the discussions that will be taking place in Parliament.
1.3 SARS, through the Minister of Finance, was consulted by and did provide the Department of Home Affairs with comments during the preparation of the Bill. Some of these comments were accommodated in the Bill but others not. In respect of the comments that were not taken on board, SARS requested further consultations and it welcomes this opportunity to provide the Portfolio Committee with its comments.
The aspects of the Bill relevant to SARS insofar as they relate to ports of entry ("ports of entry" in this context refers to land border posts, harbours as well as airports) should be viewed against the background of the following two issues that have not been adequately discussed:
- Trade facilitation and control; and
- Management of ports of entry.
2.2 Trade facilitation and control
2.2.1 Customs and immigration functions are key instruments in enhancing economic development. Ports of entry are points at which the movement of people and goods into and from South Africa are controlled to ensure compliance with South Africa's customs and immigration laws. By way of illustration, Annex A contains statistics on the value of goods processed by SARS at ports of entry and underlines the importance of ports of entry for South Africa's economic development.
2.2.2 Traditionally, South Africa followed an approach that over-emphasised control. Any discussions on customs and immigration policies should take cognisance of the need to promote economic development, facilitate trade and maintaining appropriate control over the entry of goods and people to protect the economy. In other words, although it is critical to focus on the control and security aspects of ports of entry, it is just as important to also focus on the role of ports of entry in promoting economic development through the facilitation of trade and promotion of tourism. Border control functions must be undertaken in a manner that strikes a balance between facilitation and control.
2.3 Management of ports of entry
2.3.1 Various organs of State are involved at ports of entry. SARS is responsible for undertaking controls over the movement of goods (customs control) and the Department of Home Affairs for controls over the movement of people (migration control). In addition to SARS and the Department of Home Affairs, other organs of State are also directly or indirectly involved or interested in the movement of goods and people across borders. Some of the other role-players are the South African Police Service, the South African National Defence Force, the National Department of Agriculture and the Departments of Transport, Trade and Industry, Public Works and Environmental Affairs and Tourism.
2.3.2 Consultations on border control take place at senior official level within the Justice, Crime Prevention and Security (JCPS), the Economic and the International Relations Clusters. Within the JCPS Cluster, where SARS is represented, the discussions have tended to focus mostly on control and operational issues whilst limited discussions on ports of entry have taken place in the other two Clusters. The net result is that there is no integrated national border post management policy. Structured and co-ordinated discussions are therefore required to develop such policy to ensure streamlined border control and clear reporting lines for the management of ports of entry. In this regard, it can be mentioned that some countries, for example Australia and Canada, decided to introduce the so-called "one-window" approach by delegating all border control functions (i.e. customs and immigration) to their customs administrations. Other options are to strengthen consultative mechanisms to improve co-ordination at ports of entry and streamline functions.
3. SPECIFIC COMMENTS
3.1 Designating ports of entry
Both the Customs and Excise Act, 1964, that SARS administers, and the Immigration Bill provide for the designation of ports of entry. These ports are places where SARS and the Department of Home Affairs undertake their respective functions to control the movement of goods and people. As indicated, these two functions are intertwined. People will mostly have goods with them that must be declared and goods moving across borders are usually accompanied by people (e.g. the driver of a vehicle). Clause 1 of the Bill provides that ports of entry may be prescribed whilst clauses 2 and 25(2) enable the Minister of Home Affairs to make exceptions to the rule that persons may only enter or leave South Africa at designated ports of entry.
The Ministers of Finance and Home Affairs should jointly be responsible for the designation of ports of entry.
3.2 Administering ports of entry
One of the objectives of the Department of Home Affairs [clause 29(1)] is to administer ports of entry. As indicated, SARS and other organs of State are also involved in border control and, secondly, no discussions have as yet taken place within the relevant border post institutional structures on the administration of ports of entry.
Clauses 29 and 39 should be qualified by providing that the Department of Home Affairs is responsible for the administration of ports of entry only insofar as it relates to the movement of people.
The references to SARS in lines 51 and 53 of clause 29(2)(d) should be corrected to refer to "the South African Revenue Service" (reference is currently made in line 51 to "the South Africa Revenue Service" and in line 53 to "the South African Revenue Services").
3.3 Delegating powers
Clause 39(2) provides that the Department of Home Affairs may receive a delegation from SARS, the Department of Finance, the Department of Safety and Security and the Department of Defence to exercise powers or functions under any law relating to the control of the movement of people or goods across borders.
The reference in clause 39(2) to specific departments and organs of State is inaccurate and should be amended. By way of example, the Department of Finance does not administer any law relating to the movement of people or goods across borders and, in terms of the Customs and Excise Act, 1964, only the Commissioner for SARS can delegate powers and functions and not SARS.
3.4 Issuing permits
Clauses 8,12 and 13 of the Bill provide for the issuing of certain permits and outline requirements that must be complied with.
It is proposed that the issuing of the permits provided for in clauses 8,12 and 13 should be conditional on registration with SARS for income tax purposes.
This requirement should be provided for in the mentioned clauses or in the regulations to be made in terms of the Bill.
3.5 Sharing information
One of the objectives that the Department of Home Affairs must pursue in administering the Bill, is to create a climate of co-operation with other organs of State [see clause 29(1)(d)]. Clauses 30(d) and 47 give effect to the stated objective by requiring organs of State to provide information to the Department of Home Affairs to enable it to execute its functions in terms of the Bill. Specific provision is also made in clause 29(2)(d) of the Bill for the Department to liaise with SARS to ensure that the identity of people who contravene the laws administered by SARS is "checked" for purposes of the Bill. It should be pointed out that SARS is required in terms of the laws that it administers to protect the confidentiality of information that its officers acquire in executing their functions. SARS will therefore only be in a position to provide information insofar as it is permissible within the framework of the legislation that it administers.
SARS wishes to thank the Portfolio Committee on Home Affairs for the opportunity to submit its comments on the Bill and wants to assure the Committee that it is available for further discussions to assist the Committee as well as the Department of Home Affairs to finalise the Bill.
R146 328 304 395
R166 673 475 010
R186 476 474 495
R210 512 684 657
R217 252 505 565
R253 579 543 664
% average year-on-year increases:
SAMPLE OF BILLS OF IMPORT AND EXPORT PROCESSED BY SARS
SAMPLE OF BILLS OF IMPORT AND EXPORT PROCESSED BY SARS
IMPORT BILLS OF ENTRY
EXPORT BILLS OF ENTRY
192 000 p.a.
144 000 p.a.
4 892 p.a.
139 640 p.a.
168 000 p.a.
114 000 p.a.
ADDENDUM TO THE COMMENTS OF THE SOUTH AFRICAN REVENUE SERVICE PROPOSED AMENDMENTS TO THE IMMIGRATION BILL, NO.79 OF 2001 CLAUSE 1 - DEFINITION OF PORT OF ENTRY (XXVIII)
ADDENDUM TO THE COMMENTS OF THE SOUTH AFRICAN REVENUE SERVICE
PROPOSED AMENDMENTS TO THE IMMIGRATION BILL, NO.79 OF 2001
CLAUSE 1 - DEFINITION OF PORT OF ENTRY (XXVIII)
It is proposed that the following words be inserted between the words "time" and "where" in line 33 of the definition of "port of entry":
"by the Minister, in consultation with the Minister of Finance,"
It is proposed that the following words be inserted between the words "entry" and "within" in line 41 of clause 2(3)(c)(i):
",as determined in consultation with the Commissioner for the South African Revenue Service,"
It is proposed that the following new sub-paragraph (d) be added in sub-clause (1):
"such foreigner submits adequate proof of registration with the South African Revenue Service."
It is proposed that the following new sub-paragraph (d) be added in sub-clause (1);
"submitted adequate proof of registration of such foreigner with the South African Revenue Service."
It is proposed that the following new sub-paragraph (c) be added in sub-clause (1):
"submitted adequate proof of registration with the South African Revenue Service."
It is proposed that the following new sub-paragraph (d) be added in sub-clause (1):
"such foreigner submits adequate proof of registration with the South African Revenue Service."
It is proposed that a new sub-paragraph (f) be added in sub-clause (2):
"whether such corporate applicant has submitted adequate proof of registration of such foreigners with the South African Revenue Service."
It is proposed that a new paragraph (h) be added:
"has submitted a clearance certificate issued by the South African Revenue Service."
It is proposed that the following words be inserted between the words "a" and "military" in line 46 of sub-clause (2)(a):
"customs or revenue authority or"
It is proposed that the following words be inserted after the word "urgency." in line 15 of sub-clause (2):
"and that the Commissioner for the South African Revenue Service is informed of any exemption granted in terms of this section."
It is proposed that the following new sub-section (3) be added:
"The objectives and functions contemplated in this section shall be limited to the regulation of persons except where the Department received a delegation as contemplated in section 39(2)."
It is proposed that the following words be inserted between the words "borders" and "to" in line 36 of sub-clause (1):
"insofar as it relates to the movement of persons"
In respect of sub-clause (2), please refer to the proposals made in paragraph 3.3.2 of the comments of SARS.
It is proposed that the following words be added between the words "sections" and "other" in line 42: