Immigration Bill: briefing by Chairpersons; hearings

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
22 April 2002
IMMIGRATION BILL: BRIEFING BY CHAIRPERSONS; PUBLIC HEARINGS

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

Documents handed out:
Submission by the Department of Justice (Appendix 1)
Briefing by Chair of the Education Portfolio Committee (Appendix 2)
Immigration Bill [B79 - 2001]
Submission by SALGA (Appendix 3)
Report by NEDLAC on the Immigration Bill
Draft Nedlac Report on the International Migration White Paper

SUMMARY
The Department of Justice and the Chairperson of the Justice Portfolio Committee presented their main point of concern in the Bill: the creation of the Immigration Courts. The Department felt that the court system as created in the Bill equals the status of the High Court, and this impacts on Justice's vision of the concept of a single judiciary. The Department felt that infrastructure is in place for the current courts to perform these functions without the added costs of creating this new court system. The Department of Justice feels that the Bill creates exclusive original jurisdiction, and there is no link back to the legal system.

The Chairperson of the Education Portfolio Committee expressed his personal views on the Immigration Bill, and not those of the Committee. In relation to Clause 6 on student permits a definition of the "institution of learning" was not given, and he was therefore unsure if the educational institutions as well as training institutions were covered under this definition. The reference in the Bill to 'the registrar office" as a concept is particular to higher education institutions only. With close on 40 000 learning institutions in South Africa, the question was raised whether the Department of Home Affairs would have the capacity to deal with all potential applications. In respect of Clause 12 on work permits, requirements need to be relaxed to accommodate academics from SADC regions. In Clauses 23,24,26,and 35 of the Bill, it would not be in the best interests of the child if the child's education be interrupted only when their parents are deported.

The Chairperson and a Member of the Foreign Affairs Portfolio Committee made a submission on the issuing of diplomatic permits in the Bill. It was submitted that at present the accreditation process of Diplomats was handled by the Department of Foreign Affairs and if one subjects Diplomats to the normal process of migration, one runs risks with respect to the privileges that Diplomats receive as a result of treaties and other bi-lateral agreements.

The Committee heard submissions from the South African Local Government Association (SALGA) and from the National Economic Development and Labour Council (NEDLAC).
SALGA's main concern was that local government needs to be represented on the immigration Advisory Board and provides reasons for this view.

The Executive Director of NEDLAC told the Committee that the Bill as it was tabled in July 2001 had not gone through the NEDLAC process. It seemed that the government representatives in NEDLAC had a different perception of NEDLAC's role. The Report simply lists the issues of Business, Labour and the response of government. The Committee would have to decide on the usefulness thereof. Labour was of the view that the NEDLAC process was flawed.

MINUTES
Briefing by Chair of Justice Portfolio Committee
The Chairperson of the Portfolio Committee on Justice, Advocate De Lange, together with Advocate Rudman, Deputy Director General: Department of Justice, and Mr Moerand, Deputy Director, briefed the Committee on the creation of the Immigration Courts in the Bill. Advocate De Lange said that these issues have been raised previously but the Justice committee has never had to take an official position on these matters. While he is aware of the views of the Senior Judiciary, The Minister, and the Department of Justice on these issues the Committee would be hearing the views of the Portfolio Committee.

Advocate Rudman, Deputy Director General: Department of Justice referred to Clause 40, which establishes the Immigration Courts. This matter has been debated a number of times over a long period, but he has not been a party to those debates. However he would like to give an insight into the present thinking of the Department. He read out Clause 40 to the Committee.

Advocate Rudman then indicated reservation in the creation of these courts as the Department already faces constraints in obtaining resources. Each time a new court is created, there is the need for court infrastructure, court rooms, personnel, equipment and so forth, all of which is separate from the main court structure. The Department cannot afford this, and he is not sure if a full costing of these Chourt has been done. He said that a lack of resources will impact on a proper implementation of the court structures, and in addition, the creation of these courts is not in line with Justice's long term plan for the court system. Judge Chaskalson too has expressed the view that that it is not in line with the long term vision of restructuring the courts. The Chief Justice and the Heads of Courts have confirmed these views this year when they went to the Minister, who in line with the Constitutional obligation relating to the Court structures formed a task team for the purpose of making recommendations. It was decided that the creation of these courts is not practical because of the broad goals of achieving a single judiciary and the consolidation of the courts in a single Act of Parliament.

The creation of any special court at this stage, which is equal in status to the High Court, impacts on the concept of a single judiciary. The task team is presently engaged in a preparation of a document which will express opposition to the proliferation of courts and which is against the legislation creating it. This does not mean that the Department of Justice is insensitive to the problem faced by the Department of Home Affairs. It does acknowledge this problem and recommends that they meet in order to solve it urgently. One of the options is to designate special courts to deal with immigration issues in the same way as sexual offences or traffic courts, which are working well. He referred to the discussion which he had with Mr Lambinon and agreed that, depending on this Committee's decision, they should meet to make recommendations.

Advocate De Lange said that it is clear that Clauses 40 and 57 (which flows from Clause 40) are also important. Simply put, the Bill is wrong and there would also be consequential amendments if Clauses 40 and 57 are taken away. What is being done in the Bill is unconstitutional as the Constitution determines the court structure. This Bill creates exclusive original jurisdiction, and there is no link back to the legal system as there is the creation of another apex court which falls foul of the Constitution. He is now of the view that the Labour Court too has exclusive jurisdiction and is the apex court in labour matters. It is created in another arm, which creates a problem as it was never envisaged in the Constitution to create a system like that. Justice has a vision for a single judiciary. He averred that this could be done by accommodating all kinds of matters in the same court system and training the personnel to deal with immigration matters. That is the way the Competition Appeals court runs.

Justice holds the same view on the Labour Court, the structure of which is n working. As the Justice family they have views that they should be reintegrated into the present court system as with the Land court. There are no judges, no proper term of office, and hence there is the suggestion that these courts should be integrated.

He said that he wanted to make it very clear that the objection he is raising relates not only to the immigration court but to the other courts mentioned above, which are outside the judicial system. No costing has been brought to his attention and Justice does not have the money for implementing these immigration courts. Fifty percent of unauthorised expenditure takes place through Justice, for the running of these courts. The money is simply not there, and he said that he does not know the money is going to come from as there has been no budget or implementation plan. There is no way whatsoever that we can separate the creation of these courts.

He said that immigration is unique and it needs to be dealt with quickly, and one cannot go through lengthy court processes. If one looks to the Administrative Justice Act there are exceptions to this process. Also if one looks to the world's best practices one must see how immigration issues are dealt with elsewhere and draw from that, together with the audi alteram partem practice. One solution is to link these courts with other magistrates courts. For example in Mpumalanga, which is close to Mozambique, there are courts in place where the personnel can be trained to deal with immigration issues. He also mentioned the issue around administrative justice.

He suggested that the Department of Home Affairs is out of line with the justice system as some of the matters which the Magistrate Court will hear is only in the preserve of the High Court. The Magistrate's court is not in a position to hear these matters and it excludes their jurisdiction. To take the jurisdiction to the Magistrate Court is a fundamental shift in the legal system, and nobody agreed to this shift. He pointed out that all the laws are in place for the creation of an infrastructure of these courts, and that he is not sure why we need another set of laws, except to create costs.

He concluded that there is no way that the move suggested by the Bill can be accommodated.

Discussion
Ms Jacobus asked if it was correct that they were proposing that Clauses 40 and 57 be removed.

Advocate De Lange replied that that is correct, and wherever courts are mentioned, it follows that consequential amendments would have to be made.

Mr Sikakane (ANC) asked for their suggestions on a structure which would allow immigration cases to be heard must faster. This was assuming that the intention of the Bill is to create a court system separate from the court system already in place whereby the process could be hastened.

Mr Smith (IFP) said that he sees the distinction between the creation of these special courts outside the court structure, but the Bill says that the Minister has a discretion to create these courts. What is the position if the Minister does not exercise this discretion?

Advocate De Lange explained that the Minister does not have a discretion in respect of the establishment of the Immigration Court, but what is left to his discretion is the number of courts, the place where they are to be established for example. The Immigration court is established with exclusive original jurisdiction, and he suggested that the Department of Home Affairs do some homework and consult the Administrative Justice Act and look at the best practices of the rest of the world to see what procedure it should adopt.
He suggested that there be a meeting with all concerned whereby one sees how administratively one can accommodate the Department of Home Affairs. He said that together both Departments must identify the needs and to this he gave the example of Mpumalanga where courts could be created.

He said that the issue is simple: Equality courts have specially trained magistrates and judges on the bench. However they also work on other matters. He said that the laws are in place and one must see where the needs lie and then they can be dealt with. Similarly traffic courts have been established at the road side to accommodate the needs over the holiday period. But creating a legal system outside the present system is wrong. There is one Constitution, and one legal system and to create a system outside of this is wrong.

Mr Tolo (ANC) said that he needed clarification on the issue of there being no resources in place for the implementation of the Bill.

Adv De Lange said that there is a lack of resources. An example is the Labour Court, which has one permanent judge. Judges leave soon after they have obtained their experience, wished to leave for other appointments, and as a result, today there are no judges in the Labour Court. Judges are leaving and he asked why would people want to sit around in one court only.
With regards to finances he said that he does not know what implementation plan is put in place, as it was not discussed in his Department and no costing has been done to date, therefore they are opposed to the creation of these courts. He said that 50% of unauthorized expenditure takes place through the Department of Justice.

Advocate Rudman replied that the Commercial Crime Court is a special court within the present structure, which is working well. The Sexual Offences Court is equally successful.

Co-chair Mr Mokoena (ANC) asked what is their view on Clauses 52 and 53.

Adv De Lange replied that he has not read the clauses nor applied his mind to it. If you delete Clauses 40 and 57 it does not affect the Bill, as once you remove the Immigration Court the normal courts will deal with the issues. The offences created in the Bill are not any different from the usual offences found in other Bills like this, and that is not a problem. With respect to administrative offences, he said that did not wish to comment on it, however he is worried about the constitutionality of it. The constitution makes it very clear that every person has the right to have disputes adjudicated in the court of law, therefore one cannot have kangaroo courts. He would have to look into the issue of administrative offences. Who would make a finding on an administrative offence? If the Board were to sit on its own cause, it is not impartial.

Mr Mokoena asked if the clause dealing with offences is still to be retained in the Bill.

Adv De Lange said that it must be retained in the Bill, as you have to create offences in a Bill. Hence the offences clause as a concept has to be retained.
With regards procedural matters, Parliament can rewrite the Bills once the amendments are discussed with the Minister, but there is no question of Parliament needing permission from the Minister to pass a Bill. The biggest problem is to obtain resources to get somebody to draft the Bills.

Mr Pretorius (NNP) asked whether Clause 36 is constitutional.

Adv De Lange said that he has read the clause, and that he has his doubts about it. The Bill creates its own police system, and he is flabbergasted and finds it difficult to see how one justifies the Bill legally and morally.

Adv De Lange said that for moral reasons the Committee should try and abide by the Constitutional Court's decision to properly, effectively and timeously complete the Bill. He said that they could approach the Constitutional Court before the deadline and ask for an extension, but preferably one would try and finish the Bill before that. The Committee could show that a genuine effort was made to finalize the Bill but requires an extension. He said that there is the option to fix up certain issues later once the Bill is passed as not everything in the Bill will be implemented immediately. He said that the later fixing up of the Bill is not a preferred option, but is the better option, with a dead line looming, rather than asking for an extension.

Adv De Lange said that he finds it absolutely astounding that the Bill can go through when there has been disagreements with the Department, and suggestions that disagreements can be rectified at workshops. He asked who would be the arbitrators at the workshops. He also said that he does not know who is right or wrong and what is going to happen.

Ms Van Wyk (DP) said that she has also raised concerns about Clause 36. How does it compare to Labour Court inspectors, and the Security Officers Board who have similar powers?

Advocate De Lange said that the Labour Court was created with the best intentions in mind but if one reads the Constitution it is created as a third apex court, and that is unconstitutional. There are different ways to deal with it; (a) it can be struck down or (b) the Constitutional court can read it down so as not be interpreted as excluding the Supreme Court of Appeal. One would have to wait and see how the court deals with it.

Advocate Rudman suggested that the Department obtain an opinion from the Chief State Law Advisors, and that is the route to follow.

Briefing by Chair of Education Portfolio Committee
The submission by Professor Shepherd Mayatula, Chairperson of the Portfolio Committee on Education, revolved around the following clauses. Clause 6 on student permits, Clause 12 on work permits, Clause 17 on exchange permits and Clauses 23,24,26,and 35.

He read the submission to the Committee, and the floor was opened for discussion.

Discussion
Mr Sikakane (ANC) asked whether he was suggesting that these institutions should only be responsible for the issuing of permits, and how would he envisage the institutions being able to deal with the acceptance of bona fide students.

Prof Mayatula replied that a definition of "institutions" is not given in the, hence it must be specific, because as it stands the definitions are too wide.

Ms Jacobus (ANC) said in terms of Clause 6 (a) the primary responsibility for issuing permits lies with the registrar. But sub-clause (b) states that the Department has that responsibility. One must get a view of whether it must be the Department or the Institutions.

Ms Van Wyk (DP) said her question is linked to that of Ms Jacobus. Did Prof Mayatula believe that educational institutions have the capacity to deal with the issuance with permits?

Prof Mayatula replied that Registrars are confined to universities and technikons, and he would rather that the Department issues the permits.

Ms Van Wyk said that if the institutions should issue permits, would there be a problem with administration and so forth. Did he think they have the ability, man-power and capacity to deal with this?

Prof Mayatula said that this is dealt with in his submission. When there are a number of people issuing permits, somebody somewhere is bound to miss out something.

Mr Smith (IFP) said that Clause 6 is saying two things; (a) he would imagine that it refers to the Registrar issuing a permit if the person is attending a university and (b) the Department issuing the permit if a person is attending a primary school.

Mr Tlhagale (UCDP) said that the Professor recommends that where his parents are deported, a child should be retained in school until such time of the deportation. Would the best interests of the child protected if the child is retained in school until the end of the year, rather than be removed in the middle of the year for example.

The Chairperson replied that there is no logic in that as the care-giver is removed from the country.

Briefing by Chair of Foreign Affairs Portfolio Committee
Mr Sithole (ANC), a Committee Member of the Department of Foreign Affairs, said that he was here to raise issues which were referred to the Department in relation to diplomatic permits. He said that in consultation with the Ministry, the conclusion reached is that many of the issues around diplomatic permits are as yet unresolved. He said that a document raising all these issues is in the process of being finalised and will be made available shortly.

The major concern is about subjecting diplomats to the normal migration laws, and that diplomatic accreditation is different if it is subject to normal migration laws. Diplomats are governed by agreements between States, United Nations treaties and other bi-lateral agreements, therefore if the immigration laws are not sensitive to these, there will be an element of contradiction in what you achieve, therefore one must consider carefully if one wants to subject diplomats to this Bill.

A detailed submission was not ready yet, and the Department of Foreign Affairs was reluctant to table a document until all areas are covered.

Discussion
Ms Jacobus (ANC) asked what the current practice is in relation to the issuing of permits to Diplomats or High Commissioners, and if it is the Department of Home Affairs or Foreign Affairs that issues these permits. This committee is not aware of these other treaties.

Mr Sithole said that as things stand at present, all work is done by Foreign Affairs, which handles accreditation and other procedures.

Mr Grobler (DP) made a comment that he would have liked to have been briefed by the Department of Foreign Affairs, and that it is a pity that they could not ever been here to give a detailed input on the matter.

Mr Ntlabati (ANC) said that Clause 28 on the Immigration Advisory Board does make provision for the Department of Foreign Affairs to be represented there, and they can therefore make recommendations when the Board sits.

Mr Smith (IFP) said that he would like clarity on the status quo. He said that the accreditation of Diplomats is done by Foreign Affairs, but asked who handles the entourage that accompanies the diplomatic, like his body-guards for example.

Mr Sithole said that in respect to the Immigration Board, the Board can deal with all the issues but when you subject diplomats to the normal immigration laws there are problems.

With regards to the entourage that accompanies the diplomat, there are cost implications because the sending State has to provide a certain amount of money, therefore there are limits on the number of persons a diplomat is allowed to bring with.

Mr Pretorius (NNP) asked if there has been communication between the Department of Foreign Affairs and Home Affairs on the uncertainties surrounding the diplomatic permits.

Mr Sithole said that in a Protocol in April, they did make representations on the issues that needed to be taken into cognisance. He is waiting for that document to be finalised before tabling it as a working document. They will attempt to get the document to the Committee before they start deliberating the Bill.

Mr Sikakane said that his personal concern is what happens at present. It is clear that nothing is handled by the Department of Home Affairs in regard to these diplomatic permits, then why do they want it to be a part of the Bill?

Mr Sithole said that this is the situation as it exists at present, and that the location of the responsibility is with Foreign Affairs.

Ms Jacobus asked whether Clauses 5 and 6 should remain or be removed from the Bill.

Mr Sithole said that he could not respond to this. Whatever pieces of legislation is in place needs to be supplemented with other legislation. It is a political decision whether the clause should stay or be removed.

When you subject diplomats to normal process of migration it causes problems because of the privileges that diplomats receive as a result of treaties and bi-lateral agreements , therefore he could not answer the question. However, the Committee should ask whether the current legislation raises the concerns and if not, they should ask what should be done to ensure flaws are covered and no contradiction is created with other pieces of legislation.

Mr Mokoena (ANC) asked if the database of diplomatic permits handled by Foreign Affairs is handed to the Home Affairs.

Mr Sithole said that this is communicated to the Department of Home Affairs.

Afternoon session
South African Local Government Association (SALGA)
The SALGA submission was presented by Mr Solomons, a member of the Social and Economic Development Working Group within SALGA. Mr Solomons read from the briefing document included hereunder.

Discussion
Mr Pretorius (NNP) was concerned about the impact of provisions such as Clause 55(2) on municipalities especially since SALGA had submitted that there would be no direct financial implications for municipalities.

Mr Skhosana (ANC) added that a number of functions can be referred to local government . SALGA had not mentioned this in their submission; were they happy with it.

Mr Solomons replied that any function that is to be given to a municipality must be done in terms of an agreement.

Mr Solomons replied that the comments are generated at a technical level because the time period in which the Bill needed to be processed was short. For now SALGA is concerned with having a voice on the advisory board. But SALGA is continuing to work on the Bill.

The Chairperson again referred to Clause 55(2). The Minister can delegate certain functions to municipalities; could municipalities afford it?

Mr Solomons reiterated that delegations would be done in terms of an agreement.

Mr Grobler (DP) asked if any discussion between SALGA and home affairs had taken place.

Mr Smith (IFP) referred to Clause 29(2)(c), which states that Home affairs must liaise with the SAPS to 'educate and instruct law enforcement agencies to detect illegal foreigners.' SALGA wants local government to be part of this process as well. Mr Smith said that he could not understand why local government must be part of this.

Mr Solomons referred the Member to 2.3 of the submission that says that local government also have certain law enforcement functions and that is the rationale for the request.

Mr Pretorius asked if SALGA had a working group to deal with the issues raised by Clause 55(2).

Mr Solomons replied that SALGA is still looking at the bill and more specifically the implications for implementation.

National Economic Development and Labour Council (NEDLAC)
Mr Philip Dexter: Executive Director of NEDLAC, presented the submission. Mr Siphiwe Mabaso: Labour Market Chamber Co-ordinator was also present.

The NEDLAC report on the Immigration Bill was handed out.

Mr Dexter told the Committee that the report was only the first few pages and the rest of the document consisted of appendices. At the beginning of the negotiation process there was no agreement on the process to consider the bill within NEDLAC because the government representatives said that NEDLAC had concluded its role during the White Paper process. This contention was disputed by labour and business. All agreed that although elements were discussed during the White Paper process the Bill had not been considered by NEDLAC.

Mr Dexter said that 'consider' has a specific legal meaning in NEDLAC. Business wanted a definition of 'consider' in the report. For a Bill to be considered it had to be tabled in NEDLAC, considered, discussed, negotiated and reported on.

He ran through the appendices. Appendix A contains the issues raised by business. Appendix B and C contains Labour's views. Labour however indicated that their submission to parliament is a reflection of its view. Appendix D is governments response to Labour and Appendix E is government's comments on the process.

Mr Dexter said that there had been no substantive process in NEDLAC because of the dispute. This was an unsatisfactory situation. Normally there would be discussion and negotiation and the points of consensus and disagreement would be recorded. The Committee would have to decide how the report could assist its work.

Discussion
Mr Mokoena asked where the frustration was.

Mr Dexter replied that there was a dispute because the government representatives had a different understanding of what they were doing in NEDLAC. It was the view of the government representatives that they were not in NEDLAC to engage in the content of the Bill.

Mr Mokoena asked for an explanation of what 'government representative' meant.

Mr Dexter said that the representative of any Government Department is referred to in NEDLAC language as 'government representative'.

Mr Sikakane (ANC) asked if the CEO was saying that NEDLAC has no input at the meeting.

Mr Dexter replied that NEDLAC only has an input if the parties agree or agree to disagree. What is supposed to happen in NEDLAC did not happen. The report is just a record of the issues.

It was government's view that the Bill tabled in July did not need to go to NEDLAC but it cannot be said that the Bill was considered in NEDLAC because it must be formally tabled. Labour is of the view that the entire process is flawed and it says so in Section 4 of the report.

Mr Mokoena asked if Business South Africa is represented in NEDLAC.

Mr Dexter said they were represented, their Submission to parliament is an appendix in the report.

Mr Smith commented that the report is a list of all the issues and could be useful in that way but added that the dispute is a serious one.

The meeting was adjourned.

Appendix 1:
COMMENTS BY ADV T D RUDMAN OF THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT ON THE IMMIGRATION BILL [B79-2001]

The Department's concern relates to the establishment of new immigration courts in terms of the Immigration Bill (Clause 40).

This matter has been debated over a number of years. I was not involved in all of these debates but I would like to give you some insight into the present thinking of the Department.

Background

· The Immigration Bill (Clause 40) provides for the creation of new immigration courts, at magistrate's court level, which will operate as specialist courts, with exclusive original jurisdiction on any matter originating from the application of the Immigration Act, including, but not limited to, the review of decisions of the Department of Home Affairs in terms of the proposed legislation, the validity of regulations, actions against the Home Affairs Department for any cause, including damages, and matters of status.

· During 2000 the draft Immigration Bill was referred to various departments, including the Department of justice and Constitutional Development, for comments. We indicated at that stage that we had reservations, particularly in respect of the establishment of immigration courts. It was, as I understand it, at that time agreed to by the Home Affairs Department and Ministerial representatives, that the Bill could be presented to Cabinet, but that the concerns by the various departments would be discussed further during 2001.

· During 2001 at a seminar relating to the Immigration Bill, the Department's reservations regarding specialist courts, in particular the envisaged immigration courts, were, so I am informed, once again stressed to the Special Advisor to the Minister of Home Affairs.

· Adv Pikoli, Director-General: Department of Justice and Constitutional Development, also raised his concerns regarding the establishment of these courts, in letters to Home Affairs as well as to the Justice Portfolio Committee Chairperson, during 2001.

What are our concerns

1.Firstly, the Department already faces serious constraints in obtaining resources for our existing court structures. Every time you create a new court, you have to create a new court infrastructure. That means finding new court rooms, personnel, such as presiding officers, prosecutors, interpreters, clerks of the courts, etc, you have to obtain the equipment that a court requires to function properly, all of this alongside and separate from our present lower court structure. To our mind we cannot afford this. (I am not sure whether a proper costing of these courts have been done.) This lack of resources will definitely impact on the proper and prompt implementation of the Bill once it is passed.

2. Secondly, the creation of these courts are not in line with our long term vision for our court structure. In this regard the serious concerns of the Chief Justice of our county, the Honourable Justice A Chaskalson, should be noted. At a meeting on 8 October 2001 in Cape Town, between the Minister for Justice and Constitutional Development, the Chief Justice, the President of the Supreme Court of Appeal and the Heads of the Superior Courts, Justice Chaskalson expressed the view that the creation of these courts (immigration courts) are not in line with the long terms vision for the restructured court hierarchy and that its passage through Parliament should be halted. We were requested by this meeting to inform the Department of Home Affairs accordingly. The letters by Adv Pikoli that I have already referred to gave effect to this request. The Chief Justice and the Heads of Courts have affirmed this view as recently as March of this year when they again met with the Minister.

3. Our Minister has also, in line with a constitutional obligation relating to the rationalisation of the court structure, formed a Task Team under the chairpersonship of Judge Chaskalson for the purpose of making recommendations pertaining to the rationalisation and transformation of our court structure. It has been decided that it will not be practicable to deal with all matters simultaneously. An incremental approach is being followed to bring about the rationalisation/transformation required. The broad goals are to establish a single judiciary, the elimination of all impediments to the independence of the magistracy, and eventually, the consolidation of all the legislation pertaining to courts into a single Act of Parliament. The creation of "special" courts, which are equal in status to the High Courts, has a detrimental effect on the concept of a single judiciary (e.g. differences in appointment criteria, appointment mechanisms, conditions of service, etc), as well as on the administration of justice generally. What has been pointed out in relation to specialisation of the High Court is also applicable to the lower courts.

4. The Task Team is presently engaged in the preparation of a discussion document that will set out a framework for the development of the necessary legislation. It is envisaged that this legislation will be developed during the course of 2002/3.

5. The Task Team has however already expressed their opposition to any further proliferation of our courts and they are of the opinion that it would be undesirable for legislation purporting to establish "courts" to be introduced by any Minister other than the Minister responsible for the administration of justice.

Having said all this it does not mean that we are insensitive to the problems experienced by the Department of Home Affairs. We acknowledge that they do have problems. We recommend that our two Departments meet on an urgent basis to discuss the problems and to decide how we are going to address these problems. There are options available, the most logical being to designate specific courts to deal with immigration matters, in the same way that we are now dealing with traffic offences, commercial crime and sexual offences. These courts function within the present court structure with dedicated personnel being assigned to them and they are working well.

Appendix 2:

COMMENTS ON THE IMMIGRATION BILL [B79-2001] BY PROF. SHEPHERD

M. MAYATULA : CHAIRPERSON OF THE PORTFOLIO COMMITTEE ON

EDUCATION SUBMITTED TO THE HOME AFFAIRS PORTFOLIO

COMMITTEE ON THE 22 APRIL 2002.

I would like to indicate from the outset that the views expressed here are not those of the

Committee but are my personal views, given more time, the legal advisors of the

Department of Education could put more flesh.

Implications for Education

The Bill repeals the whole Aliens Control Act. The Aliens Control Act will cease to operate when the New Act becomes operative. Education legislation or policy which makes reference to the Aliens Control Act should be amended in such a way that the reference is made to the New Act, however, due to the interpretation Act No.33 of 1957, it will not cause any legal uncertainty and it will be regarded that such reference to the old Act will mean a reference to the New Act.

A typical example is clause 20 of the Admission Policy which refers to persons classified as "illegal aliens" and also to the "Aliens Control Act". As soon as the New Act becomes operative, this clause will have to he amended to reflect the new terminology used in the New Act. 'The term "illegal foreigners" and the phrase, "Immigration Act" will be substituted for "illegal aliens" and the "Aliens Control Act" respectively.

My comment on the bill will focus on those clauses which have a direct implication to education.

Clause 1 on the Definitions will be discussed as part of the discussion on the substantive clauses in the Bill.

Clause 6. Student permit

Clause 3(2) allows a student to have temporary residence as a result of a permit issued to a foreign student. Clause 6(T) indicates that a student who intends to study for longer than 3 months may obtain a permit from "the registrar office of an institution of learning where the foreigner intends to study". The "institution of learning" is not defined. It is not clear if it refers to education institutions only or it also includes training institutions. It is not clear if it includes all education institutions, for example, Adult Basic Education and Training (ABET) centers, schools, Further Education and Training (FET) institutions and Higher Education (HE) institutions. It is not clear whether this sub-clause is only applicable to public institutions or it also includes private and independent institutions as well. It is submitted that a definition be included of an "education institution" to clarify whether it refers to all public and registered private or independent institutions as contemplated in the ABET Act, FET Act, HE Act and SASA.

It must also be noted that the clause refers to "the registrar office". Legally it would be more correct to refer to the education institution as the authority. This institution is a juristic person and all action or decision must be done or made on behalf of the institution Furthermore, not all institutions have a registrar office, as the concept of "registrar" is more particular to higher education institutions only.

In terms of this clause, it is required in paragraph (a)(i) that the institutions must be "approved by and is registered in good standing with the Department". There are at least 30 000 public schools in South Africa. If one includes all public and independent institutions in ABET, FET and Higher Education, one will have close to 40 000 if not more institutions. Will the Department of Home Affairs have the capacity to deal with the potential applications? There is no indication in the Bill as to what will be the guiding principle on which the decision to approve will be based. Without such clear criteria, the risk of a challenge by an institution on the basis of unfair discrimination is substantially high.

It is therefore suggested that clause 6(1)(a)(i) be amended as follows: "the Department of Education must provide the Department with a list of all public institutions within six months after the commencement date of this Act. It is suggested that clause 6(1)(a) be amended as follows;

"6(l)(a) the public institution of learning where the foreigner intends to study, provided that such institution-

A definition of public institutions be inserted in clause 1 after "prohibited person as

follows:

"public institution" means an education institution established under the Adult Basic

Education and Training Act, 2000 (Act No. 52 Of 2000); South African Schools Act,

1996 (Act No. 84 of 1996, Further Education and Training Act, 1998 (Act No.98 of

1998) and Higher Education Act, 1997 (Act No.101 of 1997).

A new clause be inserted after clause 59 as follows:

Regulations

"The Minister may make regulations on any matter which may be necessary or expedient in order to achieve the objective of the Act".

While education institutions can issue such permits, it might be politically sound to limit this authority only to public institutions. It is also important to give effect to the SADEC protocol which promotes free movement of students between these countries. This provision will assist in giving effect to it. Article 7 of the Protocol on Education and Training in the Southern African Development Community (SADC), which was signed on 8th September 1997 states:

The last comment on this clause is that many of the important principles and timeframes must be prescribed by regulation. There is no indication as to when these regulations will be in place or what will be the substance and language thereof Some of the issues may even be determined in the principal Act rather than in the regulation, for example, clause 6(l)(a)(vi) requires a "prescribed periodic certification that such foreigner is satisfactory performing his or her curriculum of study". This period will most probably be once a year.

Clause 12: Work permit and Clause 17 Exchange permit

This will most probably be the authority to allow visiting academics to work at education institutions. There might be a need to relax these requirements from such academics from the SADEC region to comply with the protocol.

Clause 17(a) only refers to higher education institutions but be necessary to include FET institutions as well.

Clauses 23, 24, 26 and 35

Foreigners who are parents and who have children at schools in the Republic, and who later on are regarded as prohibited persons, undesirable persons or their permanent residence withdrawn, the education of their children will be adversely affected if they are deported to their country of origin. This will be in conflict with Section 28(2) of our Constitution which determines that a child's best interests are of paramount importance in every matter. The children of such foreigners will be protected in terms of the Constitution until such time when the foreigner is deported.

Appendix 3:

IMMIGRATION BILL: SALGA'S DRAFT SUBMISSION TO THE JOINT SESSION OF
PARLIAMENTARY PORTFOLIO COMMITTEE ON HOME AFFAIRS AND THE SELECT
COMMITTEE ON SOCIAL SERVICES: 22 APRIL 2002

PURPOSE OF REPORT
The purpose of the report is to propose relevant submissions to the Parliamentary Portfolio
Committee on Home Affairs as well as the Select Committee on Social Services on the
Immigration Bill.

BACKGROUND
The proposed immigration legislation establishes a legislative framework for the issuance of temporary residence permits allowing for foreigners to enter, sojourn and conduct certain activities, including but not limited to work activities, with the Republic. It empowers the Department of Home Affairs to issue such permits and prevent, detect and deport illegal foreigners with the Republic, while performing functions relating to the prevention of xenophobia and education of communities. The Bill also provides for a human-rights based legal framework to deal with matters relating to foreigners within the Republic. It also provides for specialised border control.

IMPACT ON LOCAL GOVERNMENT
Section 28 of the Bill refers to the establishment of the Immigration Advisory Board and it is recommended that organised local government (SALGA) should be officially represented on the Board as a permanent member for the following reasons -

2.1 Local government is a distinct sphere of government in terms of section 40(1) of the Constitution, often faced with the discontent of local communities not accepting foreigners in their midst. Recent conflict and violence in the Zandspruit informal settlement in the Johannesburg Metropolitan Municipality is a typical example of such events during such events, enormous political pressure mounts on the shoulders of the local political leadership to find or facilitate solutions.

2.2 The integrated development approach effected by means of the Local Government: Municipal Systems Act, 2000, transforms municipalities into the developmental delivery vehicles of government. It requires municipalities to execute proper risk assessments, to identify those elements, which could impede development whereas one such impacting factor is foreigners. Recent events in the Limpopo Province as well as difficulties experienced on the gold fields of the Gauteng and Free State Provinces with retrenched foreign workers are good examples of local socio-economic development (and implicitly the creation of employment) being negatively impacted upon.

2.3 Section 29(2)(c) of the Bill states that the Department of Home Affairs shall liaise with the
SAPS to 'educate and instruct law-enforcement agencies to detect illegal foreigners' and to report.

The municipalities are law-enforcement' agencies in as far as it's health, building and fire prevention officers as well as it's traffic or metropolitan police officers enforces a host of statutory requirements and bylaws. It is therefore recommended that the Department also liaise with organised local government in this regard.

2.4 Section 29(2)(e) states that the Department of Home Affairs shall &educate communities and organs of civil society on the rights of foreigners, illegal foreigners and refugees, and conduct other activities to prevent xenophobia'. Although it is accepted that these activities represent the functional field of responsibility of the Department, it is of utmost importance that sensitive matters of this nature, having the distinct potential to cause socio-political instability and disruption, be co-ordinated with local government.

2.5 Section 30(d) provides the Department of Home Affairs with the mandate to 'request any sphere of government or organ of State to take actions or adopt procedures to ensure that the recipients of their services are identified as citizens and residents or foreigners and request that prescribed services, or licences, or concessions or other actions be subject to proof of status of citizenship, provided that such requirements shall not prevent the rendering of such services to illegal foreigners when so required by the Constitution or a law.' In this respect it would be prudent for SALGA to be part of the process rather than simply being instructed to amend processes and procedures in accordance with the de jure mandate of the Department.

2.6 Section 30(f) mandates the Department of Home Affairs to '0rganise and participate in community fora or other community-based organisations to deter xenophobia and involve the citizenry in the application and implementation' of the proposed legislation as well as to 'educate the citizenry in migration issues'.

2.7 Section 32 defines the proposed powers and functions of the Immigration Advisory Board. Sub-section (1)(b) empowers the Board to assist the Minister in the formulation of the policies of Department and sub-section (1)(c) burdens the Board with the monitoring of the conduct of the Department. SALGA arguably has a key role to perform in respect of both mentioned sub-sections.

FINANCIAL IMPLICATIONS FOR LOCAL GOVERNMENT
No direct financial implications for local government caused by the devolution of any powers and functions or direct statutory obligations to local government other than incidental and general principle support, are implied in the Bill. Local government could however, be indirectly influenced by the provisions of section 30(d) as well as in cases where societal conflict leads to the damaging or destroying of municipal infrastructure.

The most profound risk factor for local government with regard to the Bill could arguably be found in the socio-political arena rather than the functional or financial sphere.

RECOMMENDATION THAT -
1. The Joint Committee of the Portfolio Committee on Home Affairs and the Select Committee on Social Services be requested to secure permanent representation on the Immigration Advisory Board for SALGA.

2. It be recommended to the Joint Committee that section 29(2)(c) be amended to read as follows
'liaise with the South African Police Service and organised local government to -'