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HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
30 April 2002
IMMIGRATION BILL: DELIBERATIONS
Co-Chairpersons: Mr Mokoena (ANC)
Ms Jacobus (NCOP, ANC)
Documents handed out:
Immigration Bill [B79 - 2001]
The Committee continued their deliberations from Clause 41. The Committee concluded its consideration. It was agreed that the State Law Advisors and the Department representatives would redraft the clauses that were flagged for consideration.
Clause 41: Employers
Prince Zulu (IFP) referred to Clause 41(4)(a) and asked whether the two year period for keeping records was sufficient.
Dr Ambrosini replied that there is no magic in the time period. This is a reasonable time as prosecutions normally take place within this time frame. He mentioned that tax records were kept for a five-year period.
Mr Morwamoche (ANC) asked what is meant by "good faith" in Clause 41(3) (a).
Dr Ambrosini replied that we are dealing with a situation where somebody who is an illegal is employed. There is the issue of reasonableness and whether a reasonable person in good faith would have known whether he was a national or not. It is not enough to show that he did not know that he was an illegal immigrant. "Good faith" is one of the legal phrases that depends on and is defined in the circumstances of the case. This requirement reduces the burden and spreads it about, as the employer has to make a good faith effort to check the status and show that he tried to ascertain it. This section is fundamental to the prosecution of the case, and there is nothing unconstitutional about this provision, as there are presumptions throughout the legal system. Dr Ambrosini added that from a policy viewpoint, if the section is removed it will make the job of Home Affairs very difficult. The presumption works in favour of the employer, and if the employer does not know that the employee is a foreigner, then it is up to Home Affairs to prove that he is an illegal.
Mr Smith (IFP) said that Clause 41(2) puts the requirement on the employer to ascertain the status of the employee, and asked whether the Labour Relations Act places such a requirement on the employer.
Dr Ambrosini said that this is a standard provision that is also found in the Labour Relations Act.
Clause 42: Learning Institutions
It was decided that Clause 42(1) would be redrafted to read, "no institution of learning shall knowingly provide training or instruction to..."
In Clause 42(2), the word "shown" would be deleted and replaced with "adduced".
Dr Ambrosini said that here "actual knowledge" is required.
Mr Kalako (ANC) said that there are many training institutions that are not registered and even run by foreigners. He asked whether the Department considered these training institutions.
Advocate Malatje said that many of these institutions are not registered. The University of Cape Town, for example, is a legal persona. These fly- by- night training institutions could not be sued and the person running this institution would have to be sued in his or her own name.
Mr Smith asked whether a "person" includes both a natural and a legal person.
Dr Ambrosini said that it includes both.
Clause 43: Overnight accommodation
Mr Morwamoche suggested that the word "overnight" be removed as accommodation includes overnight accommodation.
The Committee agreed to this.
In Clause 43(2) the word "shown" should be changed to "adduced" in keeping with the other Clause. The Committee agreed to this change.
Prince Zulu asked what would be the position at the date of the implementation of the Act, not all illegal foreigners are out of the country, and some person on humanitarian grounds allows an illegal foreigner to stay with him. He asked whether this person would be responsible for this person.
Advocate Malatje said that this person's actions on humanitarian grounds cannot be criminalised. The Clause refers to "business" and the Bill is keeping with the spirit of "ubuntu".
Ms Mars (IFP) asked how a person who runs a bed and breakfast establishment could assess that a person is a foreigner. She was unhappy about this Clause and something needed to be done about rewording it.
Dr Ambrosini said that the Aliens Control Act has a provision that people identify themselves when checking into a hotel and even though this is not done it is a requirement of the Act.
If you remove the word "overnight" then it leads to difficulty. A person must make a good faith effort to identify their clients by checking their documentation or obtaining a declaration regarding their status. This should be part of the documents that must be completed. For example provision should be made to ask the applicant whether he is a South African, and if not when does his permit or visa expires.
Mr Mokoena asked at what stage would they inform Home Affairs that the person is an illegal immigrant. What is the position where this person checks in after hours?
Mr Pretorius (NNP) said that he agreed with Ms Mars submission that the Clause should be redrafted. Clause 43(2) criminalises people that offer accommodation. We are trying to attract tourists and normally people in business do not know about these Acts or Bills.
Ms Van Wyk (UDM) agreed with the above submissions and said that this is placing a burden on these people and they might not have the capacity to deal with it.
If the applicant produces fraudulent papers there is no way that a person running a B&B can distinguish these documents. These people are creating jobs and now a heavy burden is being placed on them. They are being asked to become police and inform on other people.
Mr Skosana (ANC) asked what would be the position where a group of people wants to hold a conference at a place without staying overnight.
Mr Smith suggested that the whole Clause be deleted.
Mr Grobler said that it is not wise to delete the entire Clause as this issue cannot be ignored.
Dr Ambrosini said that by deleting a qualification it doubles the scope of the application, and it does not solve any of the issues raised. It applies to overnight accommodation and other forms of accommodation as well. If the Clause is deleted this leads to insurmountable interpretations. Even SAA offers overnight accommodation and this is a concept with which we are all familiar. A person running a B&B must register the name and identity number of their clients in a register and the proprietor must then hand this over to the police. He did not see what could be achieved by expanding the definition.
Mr Smith said that an illegal person will not admit that he is illegal. He will lie about his status and enter incorrect information when checking into an establishment.
Mr Pretorius suggested that this section be flagged and reconsidered later.
Clause 44: Identification
Mr Grobler suggested that the word "officer" should be qualified with "immigration" to read "immigration officer". The Committee agreed.
Mr Pretorius referred the Committee to Clause 30: Powers of Department. What was decided in Clause 30 (e) that deals with identification?
Mr Smith said that he could not imagine a situation where you cannot request people to identify themselves. This Clause cannot be removed.
Clause 45: Aiding and abetting illegal foreigners
Mr Smith proposed the deletion of Clause 45(a) as it is too wide ranging. If you help an illegal that has been involved in a car crash you would be guilty of an offence.
Clause 46:Obligation of foreigners
There were no amendments proposed for this Clause.
Clause 47:Organs of State
Mr Kalako said that "organs of state" were not defined in the Bill.
Mr Smith suggested that Clause 48 read "organ of state" and "the" before "state" be removed.
Mr Skosana asked why health care facilities are exempt in Clause 47.
Mr Grobler asked whether it is necessary to include the words "law of contract" in the Clause. He asked if the sentence could stop at ''any law" as these words are all embracing.
Ms Jacobus said that by excluding health it does not mean that people will be excluded from receiving treatment.
Ms Van Wyk proposed that health be removed.
Dr Ambrosini said that the Bill would allow for the treatment of people. Concern is raised where a foreigner will not seek medical treatment because he is afraid he will be caught and be deported, and this will deter him from seeking treatment. On humanitarian grounds there is the need to help people and this was the sentiment that was expressed in the discussions around this Bill.
Mr Skosana pointed out that the Constitution entrenches the right to basic health care.
Ms Mars said that they should not concern themselved with the notification of diseases as this is not a function of Home Affairs.
With regards to the "law of contract", Dr Ambrosini said that the law emanates out of the contract entered into between individuals, and it is important to clarify that you cannot withhold contractual performance.
Clause 48: Other Institutions
There were no amendments proposed for this Clause.
Clause 49: Agents
Mr Kalako said that he required clarity on who "agents" were.
Dr Ambrosini said that an agent is somebody who acts on behalf of some person. There are many agents around and while some are fraudsters, others are genuine, hence there is the need to create regulations for these agents.
Mr Pretorius said that he has his doubts about regulating the number of agents and keeping a list of them.
Advocate Malatje said that an agent is somebody who makes it their business by charging a fee to assist another in their applications and on other immigration matters. He said there needs to be a list of these people as fly-by-night operators will not be covered in terms of the Bill.
Dr Ambrosini said that the Department is working towards such a system of accreditation.
Clause 50: Internal auditing
Mr Grobler asked if it was necessary to have this clause, as the Auditor General is looking into these matters.
Ms Jacobus asked if at present there is an auditing unit in place.
Mr Smith suggested that the heading is inappropriate as there is no auditing function as he can see it.
Adocate Malatje said that at present the auditing unit deals with the financial matters of the Department, it is important to establish the auditing unit as a distinct unit.
Ms Jacobus said that there are rules from the Public Service Department that govern internal auditing. Did those rules apply here?
Mr Skosana asked if the auditing unit is going to look only into issues pertaining to this Act.
Mr Lambinon said that when you are dealing with the movement of people there is the potential for corruption in the Department, amongst the agents as well as attorneys. Because of the specific nature of controlling people, there is the need for this auditing unit.
Dr Ambrosini said that they respond to the demands of the public. The issue of xenophobia is not on the agenda hence there is the need for an internal auditing to put the issue of xenophobia on the agenda. There is nothing in place that deals with the abuse of power. Although there are internal units that police corruption, there is the need for a single auditing unit.
Mr Kalako suggested that it be called "internal anti- corruption unit".
Mr Pretorius asked if the clause is comparable with the SAPS unit which was established.
Dr Ambrosini said that this clause forces the Department to take a look at what is being done and implemented. The issue of efficacy and cost effectiveness is key to any exercise. There is no specific function in which it is done, and in terms of Clause 50(2)(b) there is no mechanism or methodology in place to determine the number of illegals in the country, hence this section forces the Department to improve on the services it offers.
Ms Jacobus suggested that the clause be flagged for consideration at a later stage.
Clause 51: Foreigners erroneously allowed to enter Republic
Mr Grobler said that the words "of South Africa" be added after the word "Republic".
Price Zulu asked for clarification on the benefits of this clause in the Immigration Bill.
Dr Ambrosini said that the concept being used is estoppel. If somebody creates a condition under an error, and from which a person benefits, estoppel applies. He said that the government does not want to be in a position whereby it makes a mistake that allows a person into the Republic and then is estopped from sending this person back. Hence this is a safe guard against corruption as well.
Clause 52: Offences
Mr Smith asked how a fixed amount for the fine is affected by inflation.
Mr Grobler reminded the Committee of Advocate De Lange's submission that this clause must be retained.
Mr Skosana referred to Clause 52(3)(b) and asked how the ratio is to be determined. Which training fund would it go to: the Department of Home Affairs or Department of Labour.
Dr Ambrosini said that a schedule would have to be in place to amend the fines if it is fixed.
Ms Jacobus asked what the general trend was in respect of fines being equivalent to jail sentences.
State Law Advisor, Advocate Tladi, said that there is an Act in place in respect of fines, and the purpose of it is to give the court a discretion.
State Law Advisor, Advocate Kelner, said that there is the Adjustments of Fines Act which allows Parliament to leave the amount of a fine open whilst still setting a maximum prison term. He said that a notice issued by the Minister of Justice governs the amount of the fine and which links an amount to a prison sentence; for example a two-year sentence is linked to R5000 and with inflation that amount could be changed to R8000. It is not unlikely for the Department to set a heavy fine where the criminal is a rich company and thereby escapes a prison sentence.
Ms Jacobus asked whether an amount must not be included. The Committee should consider this issue as well as sub -clause 12 when it reconsiders the issue of Immigration Courts.
Clause 53: Administrative offences
Mr Smith asked how do you exact a fine if a person overstays in the country. Is it on re-entry into the Republic?
Dr Ambrosini said that if the person does not come back there is nothing that they can do. A person cannot be fined when he is leaving the Republic because it is a nightmare to reconcile the movement control register. At the airport a person's passport will have to be checked, he would have to be stopped, and if the plane is going to take off, it will mean delaying the flight. As a result it is much easier on the person's return that he first pays the fine and then gets the benefit which he is seeking from us.
Clause 54: Definitions
Ms Jacobus asked why these definitions could not go under the general definitions section.
Dr Ambrosini replied that these definitions only apply to Clauses 54
to 59, and would override the other definitions, which apply throughout the Bill.
Mr Smith asked for the State Law advisor's opinion on this clause.
Advocate Tladi said that it is not unusual to have the definitions in the body of the Bill if those definitions are confined to a specific area of the Bill. There are several Acts which have these provisions and it is not there to create confusion.
Ms Jacobus said that if it is not out of the ordinary, the Committee should consider these definitions.
Clause 55: Restructuring of Department
Mr Mokoena said that this entire section must be deleted as it does not belong here.
Mr Lekgoro said that restructuring is an internal matter and should not find itself in the Bill.
Mr Pretorius referred the Committee to SALGA's submission on the clause.
Mr Grobler said that it is important to bring services to people but it should not find its way into the Bill.
Dr Ambrosini replied that many of the submissions made are correct. The Minister said that legislation and administrative reform will not work without each other, which is why they are creating a
new structure for the Department. Without this new structure they will not be able to fulfil the provisions of migration control. The Department needs this section, as it is a short cut to bring about profound restructuring. They need to empower Regional Directors to issue permits and without this section the profile of administrative feasibility will be extremely problematic.
Mr Mokoena said this is why this clause should not be included in the Bill. It is dangerous to decentralise and delegate powers to municipalities.
Ms Van Wyk said that the Department has no capacity to deal with this issue. The Department is trying to "sneak it in" as one of the last clauses in the Bill. It would do injustice to the Department of Home Affairs, therefore she supports the removal of this clause.
Mr Waters (DP) said that he is aware of the principle of devolution of powers to the municipalities and that he does not have a problem with it. Local authority is established as there is easy access to them, but his concern is around SALGA's submission that they were not consulted on this. He asked for clarity on this issue.
Mr Smith said that SALGA's submission is incorrect as there is no provision for assignment in the Bill.
Ms Jacobus said that the main concern is that the question of restructuring does not belong in the Bill.
Dr Ambrosini replied that when the drafters wrote this section it was a parameter for restructuring the Department. There is no assignment and SALGA was consulted on the entire Bill. If sub-clause (2) is a problem it can be eliminated. He averred that what is important is the power to restructure.
Ms Jacobus said that the general agreement is on removing this clause, however the Committee should consider it carefully.
Clause 56: Functions of Department and Board
Mr Mokoena said that this clause is standing alone and should belong to the category of Clause 33: Regulation making.
Mr Smith said that this is a transitional provision and asked what is its effect if it is put in earlier in the Bill.
Mr Waters said that this clause should stay where it is, but he would suggest a time period by which the Board is constituted and operational.
Ms Jacobus suggested that perhaps a time frame be included in the clause.
Clause 57: Courts
This clause was flagged for consideration at a later stage.
Clause 58: Existing permits
There was general consensus on this clause.
Clause 59: Border control and investigative functions
Mr Mokoena suggested that this clause be deleted as this is not the responsibility of Home Affairs, and is not compatible with immigration.
Mr Lekgoro suggested that a great deal of time was already spent on debating this issue. He suggested that the Stat Law Advisors and the drafters redraft this clause, taking the concern of the Committee into account.
Clause 60: Repeal of laws
Ms Van Wyk asked what is the purpose of having Clause 60(2).
Mr Morwamoche asked if it is proper to repeal laws that are not before the Committee.
Ms Jacobus said that it is their responsibility to look at all of the laws.
Dr Ambrosini said that Clause 60(2) is in place to facilitate the general principles of law. He said that although the law will be repealed one could resort to these laws to assess the validity of what
is being done at present. The laws are stated in the 3rd schedule.
Clause 61: Short title and commencement
The year would be changed to 2002.
The Committee concluded its deliberations on the Bill. It was agreed that the State Law Advisors and the Departmental drafters would take all concern raised into account when considering redrafting the
clauses. A Bill incorporating all these concerns would be presented to the Committee for consideration and voting at their next session.
The meeting was adjourned.