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HOME AFFAIRS PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE: JOINT MEETING
6 MAY 2002
Chairperson: Mr M Scott (ANC)
Documents handed out:
Immigration Bill [B79 - 2001]
Immigration Bill: Further Options (State Law Advisors) [This document was written up as a result of this meeting.]
Immigration Bill: Amendments (prepared by Department)
Mr M Scott was elected as the new Chairperson of the Committee. The State Law Advisors presented the proposed amendments to the Committee. There were further requests for minor amendments.
Mr Johan Vermeulen, the Committee Clerk, stated that in terms of parliamentary rules, the Committee was obliged to elect a new chairperson and requested nominations.
An ANC member proposed Mr Scott as the new chairperson. Mr Vermeulen congratulated Mr Scott and asked him to take the chair.
The new Chair thanked the Committee and said that he hoped to pass a sound Immigration Bill soon. He felt it important to work out a schedule for passing the Bill. It was to go through the amendments and deliberate on them at this meeting. If any further amendments were required they would be given to the State Law Advisors. He hoped that the Committee would be able to vote on the Bill by the following Thursday.
Members thanked Mr Mokoena, the outgoing Chair, for his work.
The Chair asked the State Law Advisors to take the Committee through the amendments.
Mr Kelner, the State Law Advisor, explained that a document of the amendments had been prepared by the Department. A separate document containing additional proposed amendments by the State Law Advisors had also been prepared.
Mr Kelner explained that the bulk of the amendments were to be found in the document prepared by the Department and the Department was therefore better able to take the Committee through the amendments.
Mr Smith (IFP) asked if the amendments were technical or policy issues.
The Chair responded that there was no longer a question of policy. The State Law Advisors would take them through it and the Department would clarify issues when needed. Both the State Law Advisors and the Department would go through the issues clause by clause. The Committee was on a tight schedule. The aim was to get a better product at the end of the day which the Members could then take to their principals.
The Chair asked the State Law Advisors to take the Committee through the amendments clause by clause so that the Committee could then vote on them.
Mr Kelner explained that he would go through the document prepared by the Department and where there were differences he would then go through the document prepared by the State Law Advisors. He read through the amended preamble.
A Member noted the reference in subclause (e) to border monitoring. What mechanisms were in place to ensure the effective monitoring of borders? Which Department was responsible for this and how was it done?
Dr Ambrosini, special advisor to the Minister, corrected the misconception that the Defence Force would be responsible for monitoring the borders and arresting those who cross the borders. In terms of the Constitution the SANDF could not perform this function. The preamble states the standard criteria for immigration control. It would, however, require inter-departmental co-ordination to give it effect.
An ANC Member questioned the distinction between a point of entry and a border control point where immigration officers were positioned. He felt that immigration officers could not be positioned at all the points of entry.
The Chair stressed the need to focus on what had been said in earlier deliberations as far as the parties' wishes were concerned. The State law advisers should only be questioned where clarity on a certain issue was required. No more policy issues were to be raised at that point.
Mr Smith felt that the Members should realise that they were at the end of the process and that it was not the time to raise old issues. He clarified that representatives of the Department were there to propose the amendments while the State Law Advisors were only there to comment on the legality of the provisions. He could not understand why the State Law Advisors were proposing amendments made by the Department. He felt that things should be done without being antagonistic or overly combative.
The Chair did not want to open up the issue. Members should consider the draft before them and if they felt that something discussed earlier had not been properly captured, then the issue could be raised. The State Law Advisors would continue to take them through both documents.
Clause 1: Definitions
Mr Kelner went through amendments to Clause 1. The Department had proposed an amendment to the definition of "chartered accountant" to include an accountant other than a chartered accountant who is recognised as such and who has been delegated by a chartered accountant to perform acts contemplated in that Act. The suggestion from the Advisors was to remove the definition in its entirety. Amendments were also made to "immediate family", "immigration officer" and "spouse", which now includes homosexual or heterosexual relationships. The definition of "officer" had been deleted.
Ms Jacobus (ANC) noted that "organ of State" and "permanent residence" had yet to be defined.
The Chair asked if there were any comments on any of the amendments.
Mr Swart (ACDP) noted that his party objected to the definition of "spouse" although he did not want to enter into further debate on it.
The Chair responded to Ms Jacobus, saying that the State Law Advisors would be given the task of writing in the missing definitions.
Dr Ambrosini pointed out that an explanation for why the definitions had been left out could be found on page 23 of the Department's amendments.
Mr Kelner noted that he had forgotten to mention a suggestion from the Advisors to insert a definition for "immigration agent".
Clause 2: Admission and departure
Mr Kelner read through the amendments made to Clause 2 and noted that sub (4) now states that a foreigner may only enter the Republic if his/her passport is valid for at least 30 days after the expiry of the intended stay.
The Committee agreed to the provision.
Clause 4: General entry permit
Mr Kelner noted technical amendments made to Clause 4, to which there were no objections.
Clause 6: Study permit
Mr Kelner noted that sub (1)(a) and (b) had switched places. Provision had also been made in sub (1)(b)(v) for someone to play the role of guardian in respect of a minor.
Mr Smith suggested that since sub (4) allows students to engage in part-time work during vacations times only and that it be extended to provide for general part-time work.
Mr Pretorius inquired whether the definition of "institutions" included universities.
Ms Jacobus reminded the Committee that it had previously been discussed that institutions should only be limited to Home Affairs institutions and not institutions of learning.
The Chair recommended that where two opposing views were suggested by the Committee, that they should both be noted so as to be more helpful when voting took place.
Clause 8: Investor and self-employed person's permit
Mr Kelner pointed out a technical amendment to the provision and the addition of subclause (d) which provides that the relevant permit may be issued if the said foreigner has undertaken to comply with applicable South African tax requirements.
Clause 9: Crew permit
Mr Kelner pointed out that the word "crew" had replaced the word "crewman" in the provision. The provision provides for a member of the crew of a ship to be issued with a permit.
An ANC member questioned how the permit would be issued and if the captain would issue the names of the crew to the Department.
Mr Kelner replied that in practise it would probably be the company who owned the ship who would do it. The Department would then be the issuing authority.
Clause 10: Medical treatment permit
Mr Kelner noted technical amendments that were made to the provision. He also pointed out subclause (1)(b)(iv) allows for the institution, where a foreign minor is to receive treatment, to act as his/her guardian in the Republic.
Ms Jacobus did not think that sub (1)(b)(iv) makes provision for issues that had been raised. She felt that the provision did not take into account foreign parents who had no acquaintances in South Africa and so chose to travel with the minor. She asked that thaissituation be taken into account.
Dr Ambrosini replied that the language of the provision did not take that into account because the parent travelling with his/her child would naturally meet the definition of a guardian.
Mr Smith felt that this was a case of misunderstanding and suggested that it be made clear that sub (iv) applied "in the case of an unaccompanied minor" to take into account those minors who were accompanied.
The Chair agreed that the clause should be drafted to take this into account.
Clause 11: Relative's permit
Mr Kelner explained that in terms of the provision a relative's permit may be issued on condition that the resident provides the prescribed financial assurance, which is either certified by a chartered accountant or corroborated by relevant documentation.
Mr Chauke (ANC) suggested that there was a need to be more flexible. He suggested that the financial implications of employing a chartered accountant could be too much for, for example, a person entering the country to attend a funeral.
Dr Ambrosini responded that the provision did not apply to those who intended to stay for the duration of a funeral as it only applied to visits which exceeded approximately three to six months without a job, study or medical treatment permit.
Ms Jacobus suggested that a time limit be inserted into the provision as it did not specify the time limitation for which the permit was valid.
The Chair inquired if anyone objected to the proposal. None of the Members did.
Dr Ambrosini asked what duration the Committee was considering.
Ms Jacobus answered that the provision should not apply to persons who wanted to stay for more than three months.
Dr Ambrosini corrected her by explaining that the provision applied to persons staying longer than three or six months. The point of the provision was that such people could stay for as long as they were financially independent.
Mr Smith explained that the duration was flexible. The person could apply for a duration as long as that person was able to meet the requirements of the provision.
Clause 12: Work permit
Mr Kelner read through the amended provisions relating to work permits.
Mr Waters (DP) felt that miners were being marginalised in terms of the provision.
Dr Ambrosini responded that miners were not being marginalised in that there permits would be issued in terms of clause 16, which allows for corporate permits for the employment of foreigners.
Clause 13: Retired person permit
Mr Kelner noted that the requirement of a person to be older than 60 years old had been removed from the provision. Subclause (2), which allowed the Department to authorise such person to conduct work, had also been removed.
Mr Smith said that he did not recall the Committee agreeing to remove the clause.
Mr Pretorius agreed with Mr Smith and said that he remembered the Committee deciding to make a note next to the provision for further consideration but did not recall having made a decision on it.
Mr Kelner responded that if the Committee wanted the provision in it could be included.
Clauses 14 & 15: Exceptional skill or qualification permit & Intra-company transfer permit
Mr Kelner pointed out that these clauses had been deleted from the Bill.
Clause 17 & 22: Exchange permit & Residence on other grounds
Mr Kelner read through the amendments made to Clauses 17 and 22, on which the Committee agreed.
Clause 18: Asylum
Mr Kelner noted a suggestion from the State Law Advisors that Clause 18 be deleted as some members felt that it should be left to be regulated by the Refugees Act.
The Chair asked if there were any comments or questions.
Dr Ambrosini remarked that the aim of the provision was to create a framework for permanent residence. The cross-reference to the Refugees Act was therefore necessary.
Mr Smith asked why the State Law Advisors held a different view.
Mr Kelner responded that there was no legal impediment to having the clause as part of the Bill as well.
The Chair agreed that the option of Clause 18 be put in as a second option.
Clause 23: Prohibited persons
Mr Kelner explained that subclause 23(b) prohibits a person against whom a warrant has been issued in respect of, inter alia, genocide, terrorism and money laundering from qualifying for a residence permit.
Ms Jacobus questioned why war crimes and crimes against humanity were not included in the list.
Dr Ambrosini pointed out that the provision was not an absolute provision.
The Chair agreed that Ms Jacobus's suggestion should be considered.
Clauses 25; 26 & 27: Exemptions; Withdrawal of permanent residence & The Department
Mr Kelner read through the technical amendments made to Clauses 25, 26 and 26, to which the Committee agreed.
Clause 28: Immigration Advisory Board
Mr Kelner referred to a State Law Advisors' proposal referring to the make-up of the members of the Board.
Ms Mars (IFP) noted that subclause (2)(c) provides that the Board may invite officers employed by the Department to attend or participate in its meetings. She asked what officers that may be.
Dr Ambrosini replied that there had been a difference between officers and immigration officers but the Committee had decided that all officers should become immigration officers. This had led to great problems as both categories were now regarded as immigration officers and authorised to exercise powers on behalf of the Department.
A Member asked why the Department of Agriculture had been excluded from the Board.
Dr Ambrosini replied that every line functionary is affected by the presence of foreigners in the country, however the purpose of the Board is to monitor the system. As a result, no specific group is looked at. He did not feel that this was the place to cater for that requirement.
Mr Swart (ACDP) asked if the effect of there now being 5300 immigration officers meant that a typist for the department could now, in theory, walk through Hillbrow and question people on whether or not they were foreigners.
Dr Ambrosini replied that the word "officer" had two different meanings. In terms of the Bill, officers were authorised by the Bill to perform certain functions. A typist would only become an officer if she was authorised to do so.
The Chair felt that this was one area that needed to be attended to and decided to leave it to the legal minds to come up with options.
Clause 29 & 31: Objectives and functions of immigration control &Structure of Immigration control
Mr Kelner pointed out amendments to Clauses 29 and 31. The Committee accepted them without comment.
Clause 32: Powers and functions of Board
Mr Kelner listed the technical amendments made to Clause 32.
An ANC member restated the position that he found subclauses (1)(b) and (c) unacceptable.
Mr Smith felt that nothing in subclause (1)(a)(ii) was clearly linked to immigration control. He felt that there needed to be some link to immigration control.
Clause 33: Regulation making
Mr Kelner explained that the Clause gives the Minister the power to make regulations conducive to the implementation of the Act.
An opposition Member asked if the Department would involve stakeholders in the negotiations and if Parliament had the right to amend the regulations.
Dr Ambrosini replied that stakeholders would be invited and a notice would be published in the Government Gazette. A comprehensive provision had been drafted in this regard, which attempted to reach out to stakeholders via letter, email and other means. An attempt was also being made to bring Parliament on board at the very early stages of the process.
Parliament would not be able to amend the regulations; it was not possible within the constitutional framework because it was a delegated power.
Mr Mokoena (ANC) cautioned against creating a Bill that would be monstrous to enforce. He stressed that the regulations are subordinate to the law.
Mr Smith said that he had read sub (4) which specifies that the regulations must be consistent with the Act. It therefore follows that if they are not consistent then they cannot be promulgated and in addition, they are subordinate to the law. He could not understand where the problem arose.
Clause 34: Adjudication and review procedures
Mr Kelner noted the addition of sub (5) which provides that notwithstanding the review provisions of sub(1), deportation proceedings may go ahead. He also referred to the State Law Advisors' submission which proposed that sub (3) be deleted as it implies the exclusion of the Courts, which would be unconstitutional.
Dr Ambrosini disagreed with the proposal. He felt that the provision was constitutional, as it was important to clarify the internal processes.
The Chair decided to leave it with the State Law Advisors to devise a solution.
Clause 36: Inspectorate
Mr Kelner noted that the heading for the Clause had changed from "investigations" to "inspectorate".
Mr Grobler (DP) could not understand why sub(1) provided for "inspection and enforcement". He felt that the words "and enforcement" were redundant and asked for clarity.
Mr Pretorius referred to sub(14) which provides that "when exercising functions under this section, an immigration officer shall clearly identify himself as such by means of his or her uniform, or, failing which, through adequate identification". He felt that a uniform was not an adequate means of identification and that the provision should rather mirror those applicable to policemen or those in a similar standing as far as identification was concerned.
Dr Ambrosini said that the issue was the condition of validity of any action taken. If immigration officers were obliged to identify themselves in addition to wearing to wearing a uniform and they forgot to do so, this would open the door for challenge at every opportunity because the correct procedures were not followed.
On the issue of enforcement, he indicated that the words "and enforcement" had been added in sub(1) because enforcement activities, listed in schedule 1, were separate investigative proceedings.
Mr Chauke remarked that even the police are still required to identify themselves and it could cause some problems if uniforms were allowed as the sole form of identification.
The Chair commented that, since there had been problems with people wearing fake uniforms committing crimes, there was something to be learnt from that.
Clause 37: Deportation and detention of illegal foreigners
Mr Kelner noted a State Law Advisors' suggestion that a sub(11) be inserted which states that "no person may be refused entry into the Republic, expelled, extradited or deported from the Republic in violation of the Republic's international obligations".
Mr Grobler queried what, if any, change had been made to the word "officer" in sub(1)(b).
Mr Kelner replied that it was a question of italics. All the terms in the Bill that had a definition were in italics but as "officers" no longer had a definition, the italics had been removed.
Mr Pretorius, referring to sub(4), which had been amended to include a fine not exceeding R20 000, remarked that the Committee had spoken before on refraining from mentioning an amount since it would most likely have to be changed in the future.
Mr Kelner replied that the intention was to show that the fine of R20 000 far exceeds the term of imprisonment of 1 year.
Mr Smith asked if there was any way to internally apply a way of factoring in the adjustment without the need for legislation.
Mr Chauke suggested the possibility of including a find but saying that it should not exceed a certain amount.
Dr Ambrosini responded that the law requires a fine to be capped. If legislation says that the fine should not be less than R20 million, then it could be R20 billion. The reason for not making a reference to the Department of Justice's schedule was that what does so unless there is a reason. Section 52 dealt with people who will be willing to take the risk of breaking the law so they had increased the ratio between the jail term and the amount of the fine. Inflation does matter, and in answer to Mr Smith's question, it would be possible to include an innovative way of allowing for it. However, he would need to receive a mandate from the Committee in order to do so. It could for example be linked to the Consumer Price Index (CPI).
Mr Smith proposed that it be linked to the CPI as this would prevent the Committee from having to look at it on a regular basis.
The Chair accepted Mr Smith's proposal.
Clause 38: Ships
Mr Kelner noted that the word "officer" had been amended to exclude its italics as it no longer had a definition.
Clause 39: Monitoring entries in the Republic
Mr Kelner explained that the Clause provides for the Department to monitor the borders and administer and manage ports of entry to ensure compliance with the Act.
Mr Mokoena asked whether the Department was deaf as he had vehemently requested the reformulation of the rubric. The heading they had required was "Administration of ports of entry". He felt that the Department of Home Affairs could not do the gigantic job of monitoring the borders.
Dr Ambrosini said that he was faced with the problem of taking the instruction and transforming it into legal parts. Here, the issue before the Committee was who would be in charge of arresting a person who was crossing or attempting to cross the border. It could not be the Defence Force as this would be unconstitutional. If it could not, then there were only two other options and there was a need to clarify whom it would be. The reformulation of subclause (3) relates to a declaration of war and there would be no point at a time of war to make special provision for this. The question centred on whom would stop those entering through the borders.
Ms Jacobus remarked that a lengthy debate had already been entered into on this issue. If the SADF spots a person trying to cross the border, they will capture them and hand them over to the immigration authorities. The Department of Home Affairs did not have the capacity to police this provision. They could not have the Department monitoring the borders seeking out those trying to crawl through the borders.
The Chair asked what the SANDF mandate is, according to the Constitution, taking into account the relevant Act and international norms.
Mr Chauke remarked that this was one of the points that had been deliberated on for hours. It was clear that the Department of Home Affairs did not have the capacity to carry out the provision. He felt that there was a need to look at the State Law Advisor's suggestion.
Mr Smith said that there were two issues to be considered. One was a policy issue and the other was who would do the policing, which had never been properly addressed although it had been raised as a problem.
Mr Kelner remarked that he had not considered the constitutionality of the SANDF carrying out this function. A possible way forward would be to amend Clause 37(1) to give immigration officers the right to arrest an illegal foreigner anywhere. The Bill was silent on what the Defence Force could do.
Dr Ambrosini explained that the Defence Force would continue to be delegated but the power must still be given to the immigration officers to be able to arrest. The proposal from the state law advisors was perfectly correct.
The Chair agreed that the state law advisors should look at this procedure.
Clause 40: Immigration Courts
Mr Kelner pointed out that the Clause allows for the establishment of immigration courts with exclusive jurisdiction in matters relating to that Act.
Mr Tolo (ANC) remarked that it looked as though everything the Committee had objected to had been brought back into the Bill. He felt that the Department wanted the Committee to agree to all their amendments. He questioned the difference between this amendment and the original provision.
Mr Grobler said that he did not regard the provision as unconstitutional. The provision says that the Immigration Courts must be designated to handle immigration cases. This did not mean that new measures were being brought in. He likened it to the Labour Courts and said that there must be some arm to carry out these functions.
Mr Smith commented that the Committee had had a very clear discussion earlier and he felt that the meaning that some members attributed to the Immigration Courts was not the meaning that the Department and everybody else had. The problem was one of interpreting a wrong meaning. The provision was necessary for the implementation of the Act.
Mr Mokoena stated that the purpose of the Bill was not characterised by radicalism. He could not understand what had inspired such radicalism. He was of the opinion that Mr Johnny De Lange and the Justice Department had cautioned against such a court.
Mr Chauke felt that the position was clear, the Clause was not wanted. This was based on information obtained from stakeholders. He felt that the provision should be left to return to.
Mr Pretorius suggested that perhaps Members had misread it. The determining factor would be the Minister of Justice who would be in charge of the establishment of the courts.
Mr Smith felt that Members were misquoting the Department. The problem was due to misunderstanding the position. He felt that if it was clear that there was a misunderstanding the same argument could not now be used again. The Justice Department had not wanted what they thought had been implied by the provision. As the provision stood now was what had been agreed as needed.
The Chair suggested that both options be put down.
A Department representative stated that the Department of Home Affairs would not be responsible for the courts. The courts themselves would fall under the Minister of Justice. The Home Affairs Department was only interested in the provision allowing for the establishment of the courts.
Dr Ambrosini, referring to the statement on radicalism, agreed that there was something radical in the Bill. There was a marked shift from the way things were currently being done towards ensuring the highest respect for human rights. This was the idea of the Minister of Justice and not the Department of Home Affairs. It was correct that the substance of the amended provision was the same as the original but the reason for this was because he had believed the provision to be flagged. The Department of Justice had agreed that unless the Bill contained this delegated area of jurisdiction in law, they could not do their administrative job.
Clauses 41 to 54
The Committee accepted the mostly technical amendments without comment.
Mr Smith referred back to Clause 53 and asked if a person could be liable "to an offence".
Mr Kelner responded that that was a mistake and it should read that a person shall be guilty "of an offence".
Clause 55: Restructuring of Department
Mr Chauke asked if it was necessary to insert a provision, relating to the restructuring of the Department, in the Bill.
The Chair suggested that the Committee focus on suggestions and not bring up old arguments.
Ms Jacobus added that she agreed in principle to hearing the submissions from the State Law Advisors and going into their respective study groups before reappearing in the Committee.
Mr Smith asked whether such a Clause was necessary and if the Department could function without such a Clause.
Ms Jacobus said that if one were going to attempt to answer the question it would be necessary to go back to all the old arguments.
The Chair asked the Committee to agree to leave it and move on to Clause 56.
Clause 56: Functions of Department and Board
Mr Kelner explained that subclause (3) had been included to allow the Board to be convened within 90 days of the Act coming into force.
Clause 59: Monitoring of borders and inspections
Dr Ambrosini clarified that the provision did not deal with restructuring of the Department. It was consensus point that revolved around the issue of needs.
The Chair felt that the point would have to be considered later.
Clause 60: Short title and commencement; and Schedules
Mr Smith, referring to Schedule 1, said that he though the Clause would be worded to read "treason against the Republic" and not "treason committed in the Republic".
Mr Kelner said that it was a policy decision and could not comment on it.
Mr Mokoena inquired as to what had happened to the repeal of laws provision.
Mr Kelner replied that there was no objection to it as it was.
The Chair asked the State Law Advisors to talk about the first paragraph of their document.
Mr Kelner read through the preliminary remarks on the first page of his document.
The Chair agreed that in terms of process there was a move towards the voting part and therefore a need to talk to the principals. He said that the Committee would come back on Thursday to vote but there was nothing to stop anyone from further including acts because the Committee would be going through the Bill Clause by Clause and line by line.
Mr Mokoena asked who would be responsible for the process of legal drafting.
The Chair replied that the State Law Advisors would be doing it in consultation with the Department's legal advisors.
The meeting was adjourned.