Immigration Bill: deliberations & voting

Home Affairs

14 May 2002
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Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
15 May 2002
IMMIGRATION BILL: DELIBERATIONS

Chairperson: Mr. Scott (ANC)

Document Distributed:
Department of Home Affairs Comments on 15/5/02 Version of Immigration Bill (Appendix 1)
ANC Proposed Revised Text: Clause 7 Regulation Making
ANC Proposed Revised Text: Clauses 12 and 14 on Diplomatic and Treaty Permits (Appendix 2)
Business SA on 15/5/02 version of Immigration Bill (Appendix 3)
Bill as voted on by National Assembly

SUMMARY
After having been twice delayed in order to allow political parties to thrash out acceptable language, the meeting was held to consider the latest revised version of the Immigration Bill, as presented by the state law advisor. After he quickly summarized the latest changes, which included dropping the initially suggested special immigration courts, and creation of a "quota work permit" category, the meeting was adjourned to allow members to study the latest text in anticipation of reconvening later in the day to review, and vote on, the legislation clause by clause.

Afternoon session: A delegation of senior Department of Home Affairs officials, including Mr. Ambrosini and Adv. Malatji, was present, with Mr. Lambinon presenting the Department's comments on the latest changes. These noted that the Department had not been included in the latest redrafting exercise, and had been provided with inadequate time to fully study and analyze the latest provisions. Moreover, some of the proposed provisions, and options, were characterised as creating burdens on the Department which are practically impossible to implement and "self-defeating" (such as verification of certifications by persons other than chartered accountants); "ludicrous" (such as limiting powers to request individuals to identify themselves); "absurd" (such as styling an Investor's Permit as a "business permit"). Among the other material criticisms was a strong objection to inclusion of a "quota work permit" in Clause 19.

Despite the Department's serious problems with the latest version, the Committee proceeded with clause by clause consideration of the Bill, and by the time the session ended at 7PM had approved the bulk of the first 29 clauses without modification or adoption of options, with decisions on select clauses held in abeyance pending further consideration.

Evening session: The Committee reconvened after 8pm and met until 11pm. The Bill was accepted by all parties with amendments. Three clauses were voted against by opposition parties but were passed: Clause 19 Work permit (DP, IFP); Clause 49 Offences - This was amended by the ANC and the amended version was rejected by DP, IFP, UDM and UCDP. Clause 53 Restructuring of department - was rejected by DP, IFP, UDM and UCDP.

MINUTES
The meeting was opened by the Chair, more than 40 minutes late due to the absence of IFP members, who he indicated were in discussions with Department of Home Affairs officials concerning the latest changes to the Bill, which he noted were the product of extensive discussions between the ANC and IFP. He characterised the latest version as "not the end of the road", but the best product of an amendment process "undertaken in a cooperative spirit", which was preferable to "making wholesale changes".

The state law advisor was asked to summarise the latest changes to the proposed legislation, which were to be considered among the previously formulated textual options:
Clause 1: Concerning certifications to be made by a "chartered accountant", a clause is to be added to also allow certifications by another person to whom facts are known, which would be subject to Department verification.
Clause 4(2)(j): Provides that the Immigration Advisory Board (IAB) will include members of civil society, including 1 each from organised business and organised labour.
Clause 5: The functions of the IAB have been modified.
Clause 6: Provides for a new inter-departmental liaison committee.
Sections 12(1) and 14(2)(b): Provides for delegation of issuance of diplomatic and treaty permits, respectively, to the Department of Foreign Affairs.
Clause 19: Creates a "quota work permit" category, with gazetted quotas to be established by the Minister after consultation with the Ministers of Labour, and Trade and Industry, and modifies certain provisions relating to the "general work permit" category. [It was noted that the changes to Sections 19 and 21, concerning Corporate Permits, were among the most significant of the latest changes.]
Clause 23: Deletes reference to "refugees" from provisions concerning asylum permits.
Clause 33: Includes minor changes to the powers of the Inspectorate.
Sections 36(1) and (3): Includes minor technical textual changes related to "entry and exit", in lieu of "border control", which is to be reflected in the section heading, per the suggestion of Ms. Jacobus (ANC). Clause 37: Provides that all magistrates courts shall function as immigration courts, which had been proposed to be separate and specialised units under the initial drafts of the Bill.
Clause 59: Makes provision for Ministerial consultation concerning the Act's effective date.

The meeting was then adjourned at 11:30AM in order to allow members to consider the latest version, with the Committee to reconvene at 3:30PM, at which time the Department was to provide input, to be followed with clause by clause review in anticipation of voting on each.

Afternoon session:
The Chair, Mr. Scott (ANC), opened the session by calling on the Department to present its comments. After Mr. Lambinon's presentation the Chair scolded the Department for not being represented at the morning session, with Lambinon apologising, noting that there had been a communication problem which had created the impression that the Committee activity was to occur at this afternoon's meeting.

The floor was opened for questions and comments.

Responding to Ms. Van Wyk (UDM), Mr. Ambrosini noted that the Annexure to the Department's comments, concerning border control, had been drafted collegially, with no individual writing credit. Replying to Mr. Pretorius (NNP), he also indicated that the Clause 33 powers of the Inspectorate complement the Clause 41 power to compel individuals to disclose their status upon request.

Prince Zulu (IFP) raised a query as to the way forward in light of the Department's grave reservations concerning the latest version of the Bill (and the inadequate time afforded to review it, as also noted by Ambrosini).

The Chair stated that, as it is fundamental that the legislature authors legislation, working cooperatively with the executive organs which are to implement it, the process of reviewing and approving the Bill would continue. He suggested it would be useful for parties to designate spokespersons, at which point Prince Zulu requested a short recess to muster his colleagues.

After the recess the clause by clause review and approval process commenced:
[NOTE that unless otherwise noted, all references are to the May 15 version of the Bill, and that "approved without amendment" means without inclusion of any alternate options included in that version]:
Preamble: Approved without amendment, with Messrs. Grobler (DA), Smith (IFP), Mfundisi (UCDP), and Chauke (ANC) noting that clause (e), stating that border monitoring should be strengthened, should remain.

Clause 1, Definitions
"immigration officer" (xx)
Mr. Chauke (ANC) suggested deletion of inclusion of designated third parties and contractors of the Department.
Responding to Mr. Smith (IFP), Mr. Ambrosini confirmed that such contractors are used, and that others, e.g., airline employees and SAPS officers, can function as "immigration officers" in limited circumstances. He further noted that there is currently a distinction between "immigration officer" and "officer", and while the Department is apparently now being directed to merge the terminology, distinctions in qualifications and functions must be preserved.

"spouse" (xxxvii)
Mr. Smith (IFP) endorsed not adopting the option expanding the definition to include de facto and same sex relationships, stating that it is too problematic to analyze situations without "written contractual evidence of a relationship". Mr. Chauke (ANC) concurred, while Mr. Waters (DA) favored the expanded definition, and Mr. Mfundisi indicated that, at minimum, customary unions should be recognised.

Concerning the "singular/plural" interpretive provision at the end of the Clause, Ms. Van Wyk (UDM) and Mr. Smith (IFP) endorsed its deletion, but wanted defined terms to be italicised throughout the text. The state law advisor agreed that the interpretive provision was surplussage, but noted that italicisation might delay timely finalisation and printing of the approved text.

Regarding optional clause (2), concerning the issuance of required certifications by indivduals other than chartered accountants, the state law advisor suggested that if it is to remain it be included as a Clause 1 "omnibus" provision, rather than inserted individually into specific sections.

After Mr. Chauke (ANC) dismissed the Department's strong objection to this provision as contrary to the Committee's wishes, Mr. Smith (IFP) suggested that clause (2) specifically itemise the later clauses to which it applies, and that for clarity its text be amended to state that "...the applicant may instead elect that such certificate be furnished by another person..."

Finalisation of Clause 1 was held in abeyance pending further discussion.

Clause 2, Objectives and Functions of Immigration Control
Approved without amendment.

Clause 3, Powers of Department
Concerning the power under clause (e) to request individuals to disclose their status upon request, Ms. Van Wyk (UDM) and Mr. Smith (IFP) endorsed adoption of the "reasonably suspected" threshold option as consistent with "a human rights culture". The Committee concurred, and agreed to the more descriptive language option for (h). Clause 3 was approved, as amended.

Clause 4, Immigration Advisory Board
There was agreement with Mr. Chauke's suggestion that a Department of Defence representative be added to the Board, and consensus that despite this addition there will remain 5 civil society reps. Clause 4 was approved, as amended.

Clause 5, Functions of Board, and Clause 6, Inter-Departmental Cooperation
Approved without amendment.

Clause 7, Regulation Making
Mr. Kalako (ANC) distributed a new amendment to the text, including clause (5) specifically providing for legislative review of regulations promulgated by the Minister. Mr. Smith (IFP) asked whether the legislature was empowered to alter regulations promulgated by the executive branch, with Mr. Waters (DA) indicating that this Minister cannot be singled out for extraordinary parliamentary oversight. Mr. Pretorius (NNP) added that there are already oversight mechanisms in place concerning regulations.

Ms. Van Wyk asked for clarification as to whether the amendment called for legislative review of regulations, or participation in their formulation, with Mr. Lekgoro (ANC) replying that only review was contemplated. After this discussion the Kalako amendment, excluding (5), was approved.

Clause 8, Adjudication and Review
Ms. Van Wyk (UDM) supported the option adding clause (6), concerning right of appeal to court, but Mr. Smith (IFP) suggested, with the state law advisor's concurrence, it was unnecessary in light of clause (2)(c), and the need to first exhaust administrative appeals. The clause was approved without amendment.

Clause 9, Admission and Departure, and Clause 10, Temporary Residence Permits
Approved without amendment.

Clause 11, Visitor's Permit
Mr. Smith (IFP) suggested that the last 2 words of (4) be changed from "are necessary" to "is requested".

The clause was approved, as amended.

Clause 12, Diplomatic Permit, and Clause 14, Treaty Permit
Mr. Sikakane (ANC) distributed new amendments to the text, mandating delegation of issuance of such permits to the Department of Foreign Affairs. In response, the state law advisor stated it preferable to allow the issuance power to remain vested in Home Affairs, with delegation discretionary. Ms. Van Wyk (UDM) and Mr. Grobler (DA) indicated a preference for the May 15 version of these provisions, with Mr. Smith (IFP) suggesting that the practical issue concerning where these permits are issued be addressed by changing the delegation to "the Department of Foreign Affairs", rather than to a "mission" abroad.

At the Chair's direction finalisation of these clauses was held in abeyance pending further discussion.

Clause 13, Study Permit; Clause 15, Business Permit; Clause 16, Crew Permit; Clause 17, Medical Treatment Permit; and Clause 18, Relative's Permit
Approved without amendment.

Clause 19, Work Permit
Mr. Pretorius (NNP) requested clarification on the new 19(1) "quota work permit", and Mr. Waters (DA) agreed with the Department's strong objection to the quota system, which he stated was inimical to facilitating skilled immigration in the global labour market, and suggested that the quota concept be scrapped.

Mr. Mokoena (ANC) noted that organised labour was in favour of this kind of mechanism as a necessary control on the influx of foreigners, and that as such its presence would help minimise xenophobia. The Chair added that quotas provide flexibility in addressing specialised labour needs, and suggested that the members' differing views could be reconciled.

Mr. Chauke (ANC) disagreed with reconciliation, inferring that the quota concept (which Messrs. Mokoena and Lekgoro noted should not be viewed pejoratively) must be retained as is.

Responding to a query by Mr. Waters (DA), it was noted that Clause 12(5) of the initial draft of the Bill prepared by the Department also contemplated a quota allocation of work permits in job categories to be identified.

Concerning the certification by persons other than chartered accountants in 19(3), in light of the consensus that this would be addressed by a Clause 1(2) omnibus provision, with specific reference to later clauses, it was agreed to delete 19(3).

However, finalisation of Clause 19 was held in abeyance pending further discussion.

Clause 20, Retired Person Permit
Approved without amendment.

Clause 21, Corporate Permit
The reference in clause (4)(a) was changed from (2)(e) to (2)(d), and the clause was approved, as amended.

Clause 22, Exchange Permit, and Clause 23, Asylum
Approved without amendment.

Clause 24, Cross-border and Transit Passes
The reference in clause (1) to "general entry permit" was changed to "visitor's permit", and the clause was approved, as amended.

Clause 25, Permanent Residence; Clause 26, Direct Residence; Clause 27, Residence on Other Grounds; and Clause 28, Withdrawal of Permanent Residence
Approved without amendment.

Clause 29, Prohibited Persons
Mr. Chauke stated the ANC's wish to delete the power under clause (c) to bar citizens of specified
nations, with Messrs. Grobler (DA) and Smith (IFP) noting that this power could be useful in times of emergency such as war or epidemic.

Mr. Mokoena (ANC) indicated that such a provision would not reflect well on SA's image, with Mr. Chikane (ANC) suggesting it violated international law, and Mr. Mfundisi (UCDP) stating that it was xenophobic. The Committee agreed to approve the clause, as amended by the deletion of clause (c).

The meeting was adjourned due to a 7pm vote in the National Assembly, and was reconvened after 8PM.

Evening session:
The meeting continued until 11pm {this was not minuted by PMG]. The voting was as follows:
All clauses were agreed to by parties except:
Clause 19 Work permit The DP, IFP voted against this.
Clause 49 Offences
This was amended by the ANC and was voted against by DP, IFP, UDM and UCDP.
Clause 53 Restructuring of department
The ANC and NNP deleted this clause and the DP, IFP, UDM and UCDP voted against deletion.

The Bill was accepted with amendments by all parties.

It is scheduled for debate in the National Assembly on 17 May.

Appendix 1:
Appendix 1:
DEPARTMENT OF HOME AFFAIRS: COMMENTS ON VARIOUS OPTIONS CONTAINED IN THE E VERSION OF THE IMMIGRATION BILL

May 16, 2002

On May 9, the Department of Home Affairs [DHA] made Comments on the options developed by the State Law Advisors on the B version of the Immigration Bill [the Bill] and on May 13 provided supplemental Comments in respect of additional options appearing in a revised version of the State Law Advisors' work product. The DHA did not participate in the formulation of any of such options. On May 14 at 10h00 the DHA was provided with a copy of a redrafted Bill, styled "E" version, which, reportedly, emerged through bilateral discussions between political parties. At 1 3h00 the DHA was provided with a second and further amended copy of such version, which the DHA could not fully compare with the first one.

The DHA was not involved in any of the aforesaid discussions and did not provide any inputs in the formulation of any of the redrafting. Therefore, the DHA requests the opportunity to apprise the Committees with its departmental views on version E. This document contains the portion of the aforesaid May 9 and 13 DHA's comments which are still relevant to the E version. If the Committees wish to revert to the B version, DHA pleads that its comments in respect thereof be referred to. The DHA has endeavoured to take into account amendments contained in the version delivered at 13h00 but cannot be sure to have done so exhaustively.

General: The DHA points out that the E version has a large number of drafting errors which will require further legal editing and which, for brevity sake, are not highlighted here. Moreover, the DHA notes that a number of consequential amendments following from the redrafting have not been affected, which will need to be addressed once the Committees have decided on the final text. It is peculiar that the E version no longer contains alternatives in respect of the B version 50 that the only text before the Committees is the E text with no immediate cross-reference to the B text. The DHA has had less than three hours to formulate these comments and cannot guarantee that everything has been addressed and that the reformulated Bill will not pose insurmountable problems' or Unforeseen difficulties. The DHA itself has had enormous difficulties in identifying all the items which have been reformulated and it is by no means sure that it has identified them all.

Preamble at (e): It seems that this option has fallen away because of the red rafting of clause 36. However, should it remain, the DHA restates that the reference to border monitoring or control is necessary because the Bill must vest border control in the DHA or another agency. As indicated in the enclosed Annexure the present situation is unconstitutional and a legislative provision is constitutionally required. It is only constitutionally permissible to vest the function in the SAPS or the DHA. It is not constitutionally permissible to vest this function in the SANDF.

End of Preamble: DHA has no objection.

Clause 1[xix]: The inclusion of great grandparents and great grandchildren is not objectionable in principle but goes beyond the scope of the various provisions in the Bill to which the definition applies, and is problematic.

Clause 1(v): This option should fall away as version B employs chartered accountants. It must also be pointed out that the definition of chartered accountants has been broadened effectively to include all accountants under certain conditions. However, should the option stay, the DHA wishes to restate that the definition of chartered accountant is necessary because the function ascribed by the Bill to chartered accountants cannot be exercised by the DHA or the DOL, and one cannot do without some functions being exercised by someone, unless one opens a gigantic loophole by relying on employer's and applicant's certifications.

Clause 1[xxxviii]: The definition of a spouse as including a mere permanent relationship without the requirement for a prescribed affidavit and the certification of cohabitation and mutual financial and emotional support would be ludicrous as any emotional or sexual liaison could be a spousal relationship.

Clause 1: The deletion of italicized words which have been used in many other laws is not advisable because it makes the reading of the Act more complex and does not achieve anything. It is a downside with no ups. The deletion of the reference to plurals including the singular is erroneous.

Clause 1(2]: This provision will enable the chartered accountant certification to be substituted by a the certification of any other person, imposing on the DHA the burden of "verifying the facts". This is an impossibility and, to the extent that it is possible, it is totally self-defeating. The DHA would need to hire accountants to go through the books of the applicant or DOL's records, or study and assess business plans, etcetera. The DHA has no capacity, whatsoever, to perform this function. The purpose of employing chartered accounts is to avoid building up and maintaining such capacity. The verification of facts by the DHA is likely to give rise to constant litigation that the DHA will not be able to sustain because of lack of in-house expertise. Similar current practices employed by the DHA have proven to be very problematic. The language is confusing as the expression "in every such case" seems to apply to the chartered accountant's certification as well.

-2-

Clause 2[2](g]: There is no intention to exclude such funds from the National Revenue Fund, which would be constitutionally problematic. The intention is merely that of creating a reporting mechanism.

Clause 3(1][e]: Substituting the power to request people to identify themselves anywhere in the Republic with that of requesting people to do the same only at the ports of entry could be tantamount to closing down the entire business of migration law enforcement. It is ludicrous. The further options of only allowing identification on the basis of "reasonable suspicion" would make the enforcement work extremely difficult and would open a wide loophole. In any case, the notion of "reasonable suspicion" is technically misplaced in this clause and, if anything, the issue would need to be addressed in respect of clause 41.

Clause 3[1][h]: The DHA does not think that the proposed clarification is strictly necessary but has no objection to its adoption, provided that its formulation is consistent with the rest of the Bill.

Clause 4[2][j]: The reduction of civil society's representatives from 8 to 5 substantially alters the policy underlying the structure, purposes and aims of the Board and contravenes undertakings made to all stakeholders during the long consultation process in which the notion emerged that even though the Board is controlled by Government, the non-government component should be almost as representative on the Board. Given the variety of interests in the field of migration control, which go far beyond labour and business and include human rights groups, churches, family unification advocacy groups, regional integration advocacy groups, farmers' representatives etc., the reduction of civil society's representatives will force important role players to be excluded.

Clause 4[3] : An advisory board must react to needs and circumstances arising out of the functions performed by the recipient of the advice. Therefore, the Minister and the Director-General must have the power to convene the Board to seek its advice whenever necessary. The advice might be demanded for policy matters within the prerogative of the Minister or operational matters ordinarily dealt with by the Director-General. Therefore both should have the power to cause the Board to be convened.

Clause 4[7]: No comments in respect of the extending of the deadline to convening the Board from 60 to 90 days.

Clause 5: One cannot understand why the Board should not advise the Minister on the execution of other legislation connected with migration control, the administration of which may be delegated to the DHA. One does not understand why the Board should not monitor the conduct of the DHA in respect of migration control, as that is the foundation on which any intelligent and well-informed advice can be provided. Similarly, one does not understand why the power to make recommendations to the Minister should be eliminated, which would render the Board less effective. Moreover, the difference between the reformulated 5[1][b] and [c] is unclear and the formulation under the original 5[1][b] was preferable. Similarly, the original 5[1][f] is preferable to Sf2) as it includes other legislation which, given the multi-disciplinary nature of migration control, may very well happen, even through regulations of other departments. One does not see why the Board should be deprived of the power of making recommendations, which is typical of an advisory board. Recommendations are formal actions containing specific details for their implementation. without this power the Board would be ineffective.

Clause 6: The DHA does not believe that the new clause 6 is necessary and feels that it is legally unsound. During the process of policy formulation it was established that the Immigration Advisory Board would be the clearing house of inter-departmental coordination, which would take place through relevant subcommittees, of which ports of entry and border control would be one. This would enable other departments, such as the Department of Foreign Affairs [DFA], to keep some degree of involvement. The -.committee proposed in this clause has no powers and 4unctions and yet it is provided for in statute. It is no more than a principle which will engender confusion as the same people will be required to sit in two bodies. As a principle, the notion of cooperation is dealt with in paragraph (c) of the Preamble and in clause 2[1][i], and as a function is dealt with in clause 2[2][c], [d] and [I] which refers to the provisions of clause 36 which call for further integration. The DHA feels that this committee will engender confusion and undermine the function of the system set out in the Bill.

Clause 6 of the B version: Clause 6 of the B version has been deleted and is no longer before the Committees.

Clause 6: The DHA cannot but restate that clause 6 is foundational to the entire structure of the Bill and its deletion would create an entirely different piece of legislation. This section is necessary to vest the power in Regional Directors to become the engine of permit issuance and law enforcement. It is essential to make the new system work as intended and bring about real improvement in service delivery. This cannot be done administratively as otherwise the Minister remains finally accountable for each and every decision, to the point that he or she may continue to be sued for any action of the Department. This responsibility should legally vest in the Regional Directors.

Clause 7[1][a]: The DHA is at a loss as to why this item should be deleted as no-one in the Committees objected to it and it is part of the public participation process agreed upon with all stakeholders and role-players. Its elimination would decrease transparency and the effectiveness of public participation.

Clause 7[1][b]: Provided that the preceding item is kept, the DHA has no objection to the proposed reformulation of language.

Clause 7[1][c]: The DHA does not understand the need to reformulate this item which was not objected to by anyone, or why the guarantee contained therein should be eliminated when such guarantee is immediately tied to the criteria on which the validity of a regulation should be judged as for subclause [4]. The criteria is that of not being arbitrary and capricious, which must be an assessment on the record, and for this reason the court must have a record of both the inputs and the reason for which inputs were not taken on board. This is a standard practice in many countries in respect of regulatory processes based on public participation.

Clause 7(2]: The DHA does not understand why this sub-clause should be deleted as it was never objected to by anyone. Its deletion shows little understanding of the subject matter as it would be impossible to operate through the regular process of regulation-making as far as certain decisions which require immediacy are concerned. The Bill has been carefully crafted to make a distinction between that which needs to be "prescribed" and that which needs to be "prescribed from time to time". If this distinction is to be eliminated, the definition clause and a great part of the Bill would need to be amended, which is not part of this proposal, which shows that the function of this sub-clause was not carefully studied.

Clause 8(6]: This amendment is unnecessary because the DHA has already amended clause 8[3] to the same effect and more elegantly, to add "subject to section 37 of this Act". It is likely that this amendment was overlooked

Clause 9(4]: The notion of subjecting the requirement to comply with the law in respect of entering the Republic to the Refugees Act is legally unsound. There is nothing in the Refugees Act to which this "subject to" can be referred to. The asylum seeking process is aimed at curing an illegal entry. It is not a replacement for a legal entry.

Clause 11: The restyling of the general entry permit as a "visitor's permit" is confusing. It must be kept in mind that this law needs to be read by a large number of foreigners, including foreign travel agencies. We need to make it clear that we have collapsed tourist, visitor's and business permits into one, hence the name "general entry permit". The difficulty is compounded by the reformulation having styled self-employed and investor's permits as "business permits", which is wrong (see below).

Clause 11(1](a]: The substitution of the "and/or" at the end of this item with a mere "or" is problematic, as was explained to the State Law Advisor, because it no longer caters for citizens from a visa exempt country who have been placed on the so-called C-List requiring them to obtain visas because of security considerations or owing to their having defaulted on prior occasions on the terms and conditions of their stay. Case law is clear in stating that while the "and/or" drafting technique is not preferable, it is nevertheless permissible when there is a technical reason justifying its employment. The drafting of regulations will expand on the matter making its application clear.

Clause 11(1](b] and [c]: The DHA is at a loss to understand the collapse of subsections [b] and [c] into one, as they serve different purposes as different options, as highlighted by the use of the "and/or" technique, which creates a matrix of permutations between [a], [b] and [c]. The reformulation is incorrect and problematic for a variety of reasons.

Clause 11(4]: The DHA does not understand the need to reformulate this clause and insert the requirement of "necessity" which is not the criterion on which multiple entries are usually issued. Convenience and reliability of the holder are the standard criteria. The original formulation was mindful of the concerns of the matter.

Clause 12(1]: The addition of the words "under delegation" is technically contradictory and diminutive of the roles of missions. It calls for the DHA to pick and choose rather than vesting the function in each mission for as long as it complies with set criteria. The DHA does not understand its advantages.

Clause 12(1](c]: The notion of referring to the Diplomatic Immunities and Privileges Act was requested by the DFA. The quotation of the Diplomatic Immunities and Privileges Act is erroneous as it should be Act 37 of 2001 rather than Act 74 of 1989. This error took place during the parliamentary editing process, rather than during the formulation by the DHA. It was discussed and agreed with the DFA that in order to ensure coordination between their protocol practices and the issuance of diplomatic permits, the same definition of "member of a family" should apply both in the Immigration Bill and the Diplomatic Immunities and Privileges Act. Originally, the Bill made reference to "immediate family" as defined therein.

Clause 13(1](a]: It is problematic to give to the applicant the option of applying under item [a] or [b] because item [b] will apply only to a limited number of institutions of learning. Moreover, when item [b] applies it will defeat the purpose of having an item [b] if applicants can choose also to apply in terms of item [a], which will force the DHA to have a double system in place in respect of an institution of learning operating in terms of item [b].

Clause 13(3](c]: The DHA does not understand the need to reformulate the preexisting subclause [4] eliminating the controlling criteria of part time work during study periods and full time work during vacations, as well as the advice of the registrar.

Clause 15: Styling an Investor's Permit as a "business permit" is absurd. The expression "business permit" has a clearly understood meaning within South Africa and worldwide practice. Missions, travel agents and immigration officers may end up requiring people who are entering the Republic for business purposes and who would merely need a general entry permit to comply with the provisions of this clause. It will also create the perception that we do not have an Investor's Permit. It will send out a message that we are somehow confused. This confusion is increased by the proposed additional subclause [5]. In terms of the Bill all temporary residence permits, except the general entry permit, automatically entitle the holder to multiple entries. It is contradictory that in respect of an Investor's Permit multiple entries will be allowed only if the holder proves a special need for multiple entries and that the period for which multiple entries are allowed would not be the same as that of the validity of the permit. Furthermore, within the context of the Bill the legal formulation of this subclause is incorrect.

Clause 15(5]: This clause is wrong as in terms of clause 10 all temporary residence permits entitle the holder to enter for as long as they are valid. The mention of multiple entries was necessary only in respect of a general entry permit the validity of which would ordinarily expire upon departure because it is nothing more than an entry permit rather than an activity permit. Mentioning multiple entries in respect of this type of permit alone will create the conclusion that none of the others are multiple entry.

Clause 15: A suggestion has been made to the DHA by some MPs that some or all cross border passes should be placed under this clause. Placing cross border passes under this clause would be incorrect and problematic because cross border passes are not temporary residence permits within the meaning of the Bill and all provisions relating to such permits do not apply to them, including the requirement of issuance on application.

Clause 17(1](iii]: One does not understand the purpose of the reformulation of this clause because if the word "accompanied" means "to stay with for the duration of the sojourn" then it is covered by the expression "guardian", for a parent can also be a guardian, and if it does not mean that and only means being brought into the Republic and left there, then it does not satisfy the need to have a guardian at all times. All that is required is to have the name of a guardian who is present in the Republic at all times, which may very well be a parent. This clause is also inconsistent with similar ones.

Clause 18(1][a]: The addition of "applicant's option" is pleonastic.

Clause 19(1] to (4]: Together with clause 20 relating to corporate permits, the red rafting of the work permit provisions represents a fundamental shift of policy and a complete change of the very nature of the proposed migration control in South Africa. Addressing the implications of this change would require an entire workshop. The reformulation establishes a quota system but does not explain what it is and how it will work. Quota systems were contemplated by the DHA between 1995 and 1998 and after a long study they were disregarded because they do not meet South African needs, they require an enormous amount of administrative capacity to administer and, in the final analysis, do not guarantee sufficient verification of actual needs in the specific case and are open to abuses, discretion and perfunctory compliance. It must be pointed out that the provision for quotas in clause 19[5] of the B version was a completely different technique and situation, in that it was meant to address exclusively limited circumstances and, in effect, the possibility existed that it would not even be used. It was a corrective measure to respond to malfunctions and emergencies within the general administration of work permits. Within that context it was possible for government to identify specific need and frame a quota with sufficiently clear identifying features. However, moving to a system in which quotas need to be established to cover the entire field of human activities will require creating a complex matrix supported by monumental data gathering and processing capacity. Thereafter we will need to identify features and characteristics which can be used to construct a quota, which usually are a combination of skills and qualifications. If skills are used in addition to qualifications, a mechanism must be identified to evaluate and certify such skills. Thereafter, each application needs to be assessed against the features which identify each quota. The process of policy formulation in South Africa has moved from the premiss that our context does not lend itself to identifying the "needed" foreigners on the basis of qualifications, for certain needed people do not hold qualifications, while government would need to employ a great deal of capacity which the DHA does not have in assessing qualifications. Therefore, one cannot even begin identifying how the system envisaged in section 19[1] would eventually work and, having considered the matter for only a few hours, the DHA cannot express any professional opinion on it. It is nonetheless a major move backwards in the evolutionary scheme of migration control techniques as those countries which employ quotas have often indicated their intention to move towards a better system and look with interest at the South African proposals contained in the B version of the Bill.

While quotas appear to be the general means to obtain a work permit, when such quotas are not available clause 19[2] proposes a work permit on the basis of a "needs test" based on satisfying the Department that no national is available to fill the relevant position. This will apply only in respect of people with qualifications. The difficulty with this approach is that it sends the DHA back to where we are. The DHA does not have the capacity to determine whether nationals are in fact available to fill the relevant position and to verify the accuracy of procedures such as advertisement and efforts made to employ nationals. Usually these efforts become a lengthy, costly and delaying perfunctory exercise in which the DHA tries to make it difficult on applicants to ensure that in fact there is no national who comes forward. There are also complex assessments to be performed in respect of each application in respect of the existence of the job position, the description of its features or requirements, the verification of the

qualifications, skills and often intangible contribution of the applicant and finally, the suitability of the applicant for the position. This is necessary to avoid that the process is tailored to meet the applicant's specific requirements or qualifications and to motivate a decision already made. This calls for a great deal of administrative capacity dedicated to this process, and discretion, which, given the strengthened guarantees for appeal and judicial review, is likely to increase litigation.

The thrust of the new policy was that of diminishing evaluative processes in the issuance of permits and administrative capacity dedicated to such purpose. The techniques used in these clauses do not achieve such purpose. Furthermore, the DHA has never been asked to apply its mind to a generalised system of quotas which was considered to be out of the question and has been raised for the first time with the DHA at 10h00 today, May 15, 2002.

Clause 19(3]: The provision for the chartered accountant's certification to be replaced by an employer's certification with the burden on the DHA to verify the accuracy of all the information is impossible or self-defeating. The DHA does not have the capacity to perform such function and if it were to develop such capacity the purpose of having chartered accountants' certification would be defeated. It is also likely that the process of verifying information is going to be inaccurate and contentious and will give rise to litigation, discretion and problematic practices. The language is confusing as the expression "in every such case" seems to apply to the chartered accountant's certification as well.

Clause 19(6]: The requirement that the relevant foreigner be employed "abroad" defeats the purpose of an intra-company transfer in most cases and, to a certain extent, covers a field which in the B version of the Bill was dealt with through the general entry permit. The DHA did not have the opportunity to check the matter because of the limited time within which it had to react to this proposal, but suspects that this contravenes applicable WTO stipulations.

Clause 20(1]: The deletion of the function of a chartered accountant will place the DHA in the business of having to assess the validity, nature and contractual terms of domestic and foreign annuities and retirement accounts and assess personal and corporate net worth, in respect of which the DHA has no expertise and skills. Net worth is not cash in hand reflected in bank accounts and can be elicited only from the analysis of often complex financial statements. This will require either resorting to guess-work or to retaining expensive consultants, effectively to achieve the same certification, the burden of which is, instead, placed by the Bill on an affluent applicant. This will lead to litigation.

Clause 21: The DHA is still in the process of trying to understand the function of a corporate permit in the new setup of the E version of the Bill. In the B version, a corporate permit worked against the aggregate amount of licensing fees which would otherwise have to be paid if the same applicant employed the same number of foreigners with a regular work permit. That created a negotiating environment with a number of incentives and disincentives, which was finalised to developing "adequate" training programmes, which are those finalised to reduce the employers dependence on foreigners and transfer skills from foreigners to nationals. The new version of the corporate permit seems to be a technique to bring about "bulk applications", by creating an umbrella under which the "needs test" no longer applies. However, it is not clear whether the foreigner falling within this category needs to be within the quotas contemplated in section 19. If they do, there is a lesser purpose for a corporate permit, if they do not, there is a lesser purpose for the quotas. The relationship between the corporate permit and the individual permit is also unclear once the possibility that the corporate applicant extends authorisation to work to its chosen employees has been eliminated. This was the most salient feature of corporate permits as described since the adoption of the White Paper in March 1999. Indeed, corporate permits have been the most resounding novelty in the new migration policy and the reformulation of this section represents a fundamental shift of policy. The DHA has not had the time to fully study and evaluate how this new corporate permit would work and what purpose it would serve. It should also be kept in mind that in formulating the original version of the Bill and its B version, the DHA has always had a clear notion of how each provision, if not each word would be implemented through regulations and administrative practice. Faced with these re4ormulations the DHA has no clarity on how the new system will need to be fleshed out.

Clause 26(a]:The chartered accountant's certification in respect of compliance with job description and the existence of the position has been eliminated without substituting it with any other means of verification. These are matters almost impossible to verify, for a position may be invented and kept open just for a matter of days to enable the foreigner to qualify for the permit. Who is to verify the statement made by the employer? The Department of Labour [DOL]? The DHA? or should it be taken at face value? The DOL may have the skills but does not have the capacity to do it. The DHA does not have the skills and expertise. Effectively, the DHA will place itself in the hands of employers.

Clause 27(a](i]: The chartered accountant's certification in respect of compliance with job description and the existence of the job position has been eliminated without substituting it with any other means of verification. The review of a labour certification process based on advertisement is extremely complex and requires enormous dedicated administrative capacity. It affects the existence of the position, the need for the position, the relationship between the position and the job description and the relationship between the job description and the actual qualifications of the applicant. Furthermore, the public advertising process needs to be scrutinized, otherwise positions, job descriptions and advertising will be tailored to meet the needs of the foreigner and becomes a perfunctory exercise. Who is to verify the statement made by the employer and all the relevant procedures made by the employer? The DOL? The DHA? Or should they be taken at face value? The DOL may have the skills but does not have the capacity to do it, the DHA does not have the skills and expertise. Effectively, the DHA will place itself in the hands of employers. This will lead either to disregard for the law or endless litigation. The issuance of permits will take an inordinately long time to ensure that all necessary evaluations are performed.

Clause 27(c] : Substituting the chartered accountant's certification of compliance with the requirement that a certain amount of money should be part of the "book value" with that of the applicant, is ludicrous. The DHA would either need to take such certification at face value, which would create an enormous loophole, or would need to hire accountants to go through the books of the applicant and its corporate structure and business plan to advise the DHA. The DHA has no capacity, whatsoever, to perform this function. Moreover, this would be an intrusion in the applicant's affairs and have an enormous cost to the State. For the applicant it is not so onerous, as in most cases it would already retain the services of an accountant who is familiar with its business.

Clause 27(e] The deletion of the function of a chartered accountant will place the DHA in the business of having to assess the validity, nature and contractual terms of domestic and foreign annuities and retirement accounts and assess personal and corporate net worth, in respect of which the DHA has no expertise and skills. Net worth is not cash in hand reflected in bank accounts and can be elicited only from the analysis of often complex financial statements. This will require either resorting to guess-work or to retaining expensive consultants, effectively to achieve the same certification, the burden of which is, instead, placed here on an affluent applicant.

Clause 27(f]: The deletion of the function of a chartered accountant will place the DHA in the business of having to assess domestic and foreign personal and corporate "net worth", in respect of which the DHA has no expertise and skills. Net worth is not cash in hand reflected in bank accounts and can be elicited only from the analysis of often complex financial statements. This will require either resorting to guess-work or to retaining expensive consultants, effectively to achieve the same certification, the burden of which is, instead, placed here on an affluent applicant.

Clause 29(1][c]: The DHA was under the impression that the Committees had accepted its explanation for the necessity of this clause which relates to extraordinary situations where citizens of a country are prevented from entering the Republic, in cases such as war or a medical epidemic, or international sanctions against the country concerned. without this provision, such bar could not be imposed. This provision can only be activated with the advice of the Immigration Advisory Board on which all relevant Departments are fully represented, and is not a ministerial action but the result of a regulation.

Clause 33(1] to (4]: The consultation requirement with the Board, previously provided for in the B version and now eliminated, has the purpose of ensuring coordination with the law enforcement agencies represented therein. The expression "inspection and enforcement unit" is standard and preferable to "inspectorate". There is no problem in using the word "inspectorate" in the rubric but the text of the clause should express the notion that this is the enforcement branch of migration control. Enforcement goes beyond inspections and is the overall function of ensuring compliance.

Clause 34(11]: This additional new section is not necessary and will give rise to extreme confusion. If its import is that of stating "the law must be respected", it is pleonastic. If its meaning is something more, it is very dangerous. Section 34 defines the strict parameters within which the DHA must operate. Anything written in there will give rise to defences and objections on the side of those who are resisting deportation. Something so fluid and technically uncertain should not be there and will create loopholes. Furthermore, the DHA is not in the business of expelling or extraditing anyone, which are functions exercised by the DOJ.

Clause 36(1]: The DHA is concerned by the expression "with the assistance of or through other organs of the State", which may make illegal the actions taken by the Department in respect of border control, such as arresting those who cross borders illegally, if such actions are taken by the Department alone and not with the assistance of or through other organs of the State. The DHA also believes that the expression "administer and manage ports of entries" in the B version was important and worth retaining.

Clause 37: The DHA recognises that this clause has been redrafted with the concurrence of the two relevant Ministers and will refrain from commenting on it.

Clause 41: Substituting the power to request people to identify themselves anywhere in the Republic with that of requesting people to do the same only at the ports of entry could be tantamount to closing down the entire business of migration law enforcement. It is ludicrous and we would be better advised to dismiss all investigative staff of the DHA whose cost to the tax payers could no longer be justified, and announce that anyone entering the Republic illegally cannot be subjected to any legal sanction if he is no longer at the port of entry or has crossed the border illegally.

Clause 42(2]: The DHA has no objection to this proposal, provided that it should be reformulated in a more preferable format.

Clause 46(1]: The DHA feels that the addition is pleonastic, but does not object to it.

Clause 51: The "deeming" language utilized in the DHA's formulation had the purpose of reducing the risk of unconstitutionality flowing from a delegation to subordinate legislation of the power to set fines which must be spelled out in law. Therefore, the DHA believes that its formulation remains sounder as it gives clear parameters to the Minister and time frames. However, space exists for the merging of the two formulations.

Clause 52(i] and 54(1]: The deletion of the transitional definition of "prescribe" would collapse the implementation of the Bill because it would not be possible to adopt interim regulations to make the Bill operational upon its coming into force. The Bill must be operational in order for the Immigration Advisory Board to be established. without such Board, regulations cannot be adopted. However, once the Bill comes into force, the public will expect permits to be issued and other activities to be undertaken which cannot happen unless interim regulations are set in place ahead of the establishment of the Board. This provision is essential to the possibility of implementing the Bill without engendering chaos.

Clause 53 : The DHA strongly objects to the deletion of this clause and to the fact that the DHA was not afforded the opportunity to justify its necessity in law and policy during the deliberations in the Committees. This clause is necessary to enable the DHA to implement the Bill within a matter of weeks rather than years. As soon as the Bill is adopted there will be a public outcry for its expeditious implementation. Furthermore, without this clause it is impossible for the DHA to switch from one system to the other without having to shut down for a considerable period of time, either as a whole or in part, which would be unthinkable.

The provisions of this clause enable the Department to undertake its restructuring without having to comply with the relevant provisions of the Public Service Act. However, it does so without giving a blanket exemption, but creates procedures and mechanisms for two things. First, to ensure that the provision is not abused and therefore the Minister's discretion is narrowed by specified criteria and, second, to ensure that no one is adversely affected by its application and everyone has the opportunity to be heard.

This provision was widely discussed in Cabinet and in the end it was adopted on the basis of substantive re4ormulations made at the request of the Minister for Public Service and Administration who recognised the necessity of this provision within the framework of aims and objectives of the Bill. Without this provision it will not be possible to redefine job descriptions, reorganise offices and change statutory qualifications and duties within the required time frame.

It must be appreciated that the Bill does not only bring about a large legislative reform, but also a very significant administrative one. At present, because of the legacy of colonialism and apartheid and the insularism on which they were based, we do not have a system of immigration control which is up to par, either from a legislative or an administrative viewpoint. The reform of the underlying administrative structure is going to be very significant and vastly necessary. There is no hidden or ulterior agenda in this process but only a real need to get the system up and running without total destruction of the function, which would cause South Africa's international image to suffer.

The objection raised in Committees had a flavour suggesting that this section was motivated by ulterior and unknown motives, which is just not the case.

Comments on the letter from the Minister for Public Service and Administration:

In its closing paragraph., the letter points out that the Minister made inputs in the formulation of clause 55. The letter concedes that clause 55 does not derogate from the Labour Relations Act [LRA] but bypasses the Public Service Act [PSA]. It is silent in respect of the contention of the DHA that bypassing the PSA and possibly other ancillary legislation is a necessary condition if one is to adjust the existing administration to the requirements set out by the new permitting procedures in the Bill.

While not addressing the merits of the matter, which one hopes are conceded, the letter raises an issue of constitutionality in respect of section 23[5) of the Constitution relating to the right to engage in collective bargaining. However, the letter itself shows how such concern does not arise, as the quoted sections of the LRA identify collective bargaining as relating to the formulation of "uniform rules, norms and standards that apply across the public service" or "apply to terms and conditions of service that apply to two or more sectors", none of which fall within the matters covered by clause 55.

Clause 55 does not deal with two or more sectors nor does it set uniform norms that apply across the Public Service. It respects the general norms that apply within the Public Service and the conditions of employment, but enables employees to be transferred and job descriptions to be changed within the parameters and the framework of such uniform norms and standards, but without complying with the PSA and other ancillary legislation in respect of each case. Therefore, it is not a matter of collective bargaining, but individual determinations. Therefore, the letter is incorrect in stating that "a likely construction of the proposed clause 55 is that it excludes any collective bargaining". This was the main thrust of the argument and by it falling away the exceptions do not seem to arise.

The letter is also incorrect in stating that anything in clause 55 "excludes other remedies in terms of the LRA", as the letter itself indicated that the LRA is not affected by the amendment. Furthermore, a decision of the Minister is fully able to be reviewed in court. There is nothing in the Bill which excludes the rights of judicial review, while clause 37 of the Bill is clear that the Immigration Courts have jurisdiction over any matter arising in the implementation of the Bill. The statement in the letter relating to the possibility of exclusion of judicial review is outright unfounded.

The letter proceeds to indicate that the exclusion of the PSA would be "bad legal policy". However, it would be even worse policy to cause the collapse of a function pending its restructuring. Once again, in response to paragraph 4.4 and 4.5, there is nothing in clause 55 which would trigger the application of collective bargaining agreements. Similarly, it is fantastic to read clause 55 as allowing the Minister to undertake the exercise twice, as this power is clearly indicated to be a transitional one to be exercised within nine months in respect of "a" new organisational diagram, which would not allow this to be changed again in this fashion. Therefore, the "contrary intention" appears very clearly. Section 3 of [5] of the PSA quoted in the letter identifies the power of the Minister to restructure the Department but fails to highlight that this power is "subject to the provisions" of the PSA, which create significant burdens in respect of a restructuring of this magnitude, also taking into account the Public Service Regulations which would otherwise apply.

Clause 55 : In light of the reformulation of clause 37 the DHA has no objection to the deletion of this clause. However, the need for a transitional mechanism may be considered.

 

Clause 57 : The option to delete this clause was tied to a discussion on clause 36 which has now been solved and therefore the option to delete it should have fallen away. However, just in case this option were to be considered, the DHA wishes to reiterate that the deletion of this clause has been talked about but not thought through adequately as it relates to both section 33, in respect of which there is no proposal for its deletion, and section 36 in respect of which the option of deletion exists. Therefore, the two issues should be separated. For instance, this clause would apply to a possible SAPS Aliens Control Unit to be brought within the scope of section 33, which has not been controversial. In this respect, it would be an entirely enabling provision as it can only be actioned through consensus of all departments concerned.

As it relates to section 36, this clause is necessary if the notion of border monitoring and control is to be retained. If one studies carefully the attached Annexure on border control, one cannot escape the conclusion that this Bill must provide for it. The legislature may not close its eyes to a persistent situation of unconstitutionality. If border control is to be exercised by the DHA, this provision is necessary to ensure an enabling mechanism which will enable the departments concerned to bring about the required transformation without having to comply with the laws which apply, for instance to the decommissioning of military equipment or transfers. This provision will come into force only once there is preliminary agreement on the way forward and its promulgation will be held back until that time.

Clause 59(2]: The DHA is at a loss as to why this sub-clause should be amended as this matter was not discussed with, or raised by, anyone. This sub-clause is extremely necessary to ensuring the proper coming into force of this Bill. There is just no way that all the provisions of the Bill can come into force at the same time.

Final addition: The DHA was expecting to receive the "B" version of the Bill back from the State Law Advisor for its final approval and vetting, also for purposes of making any final required refinement. Not having had this opportunity the DHA wishes to use this occasion to propose the addition of a clause, to follow clause 48 and to read:

"48bis Fees

The Department may impose such reasonable fees and user charges as may be necessary or expedient in connection with any application or any other of its activities under this Act."

Annexure

BORDER CONTROL

 

The Constitution and the present practice

The present situation of border control is highly constitutionally problematic and the legislature is duty bound to rectify it. The status quo is part of an interim arrangement set out in the Constitution intended to be replaced by a law of Parliament. However, the current practice does not even to comply with this interim arrangement.

In terms of the present interim constitutional arrangement the responsibility of border control vests in the South African Police Service [SAPS]. It is unclear whether the SAPS could enlist the assistance of the South African National Defence Force [SANDFJ in performing this function. However it is beyond doubt that the Constitution prohibits the SAN DF from exercising border control.

Item 24[1] of Schedule 6 of the Constitution indicates that certain provisions of the interim Constitution continue in force, until repealed by a law of Parliament and subject to their consistency with the new Constitution. Amongst such provisions is section 218[1][j] which, as amended by Annexure D of schedule 6 of the Constitution, reads:

"Subject to the directions of the Minister of Safety and Security, the National Commissioner shall be responsible for -:

(j) such functions relating to border control [...] as may be assigned to the Service by law.

Unfortunately, to the best of our knowledge the "law" referred to in such section does not exist and, therefore, the SAPS cannot exercise this function which, however, it has in fact exercised. If in fact this law does not exists, SAPS' exercise of this function would be unconstitutional.

There are other constitutional problems. Item 24 of schedule 6 of the Constitution also provides that section 227 of the interim Constitution, as amended by the aforesaid Annexure D, remains in force subject being amended by a law of Parliament and being consistent with the new Constitution.

Section 227 of the interim Constitution indicates that the SAN DF can only

"be employed [...] for services in the upholding of law and order in the Republic in cooperation with the South African Police Service under circumstances set out in law where the said Police Service is unable to maintain law and order on its own".

The SAPS has invoked this provision to call on the SANDF to assist it in respect of border control, which creates two difficulties. First, the only assistance allowed is that of "cooperation", which does not imply the possibility of acting "in lieu of the SANDF, which is what often happens, but rather in a merely supportive role. Second, this provision can only be invoked when the SAPS is "unable to maintain law and order on its own", which obviously does not apply to a situation of people crossing the borders illegally, whom in many respects are not even regarded as criminals.

Furthermore, section 227[2], as rephrased by the aforesaid Annexure D, indicates that the

SANDF

"shall exercise its powers and perform its functions solely in the national interests in terms of Chapter 11 of the Constitution".

Chapter 11, at section 201 [2], indicates that

"only the President as head of the National Executive, may authorise the deployment of the defence force [...] in cooperation with the Police Service".

This couples with the requirements of consistency with the new Constitution set out in Schedule 6 item 24[1]. Therefore, if a real situation in which the SAPS were in fact "unable to maintain law and order" were ever to arise in respect of border control, the SAPS could only seek the "cooperation" of the SAN DF and only on the basis of a specific authorisation of the President. This authorisation must be on an ad hoc basis. Present practice complies with none this.

It is beyond doubt that the SANDF cannot arrest people on its own and perform on its own a function of border control which includes deterring, detecting and arresting illegal foreigners who cross the border. What is presently taking place violates the Constitution and if challenged in court by anyone so arrested or any of the NGOs often representing them, this practice is likely to meet severe criticism.

In terms of section 227 of the interim Constitution, which continues to be in force, the SANDF has the function of protecting the "sovereignty and territorial integrity" of the Republic. This function is different from "border control" which section 218[1][1] of the same interim Constitution ascribes to the SAPS. Therefore, it is untenable to suggest that border control is subsumed in the broader notion of territorial integrity as the two concepts are used separately and are different in nature and references. The present Constitution, which has embodied these two sections as part of its interim arrangement in the matter, in Chapter 11 makes reference only to the responsibility of the SANDF to "defend and protect" the "territorial integrity" of the Republic as set out in section 200[2].

In constitutional terms over two thousands years of debates on this concept ,there is no doubt that "territorial integrity" means that no part of the national territory is taken away from the control of the South African Government, its laws and its people, which has nothing to do with people entering the Republic illegally, unless they do so to occupy it and impose on it a sovereignty different from the South African one.

Under the circumstances the legislature is duty bound to end to the interim arrangement and adopt one of the laws called for by item 24 of schedule 6 of the Constitution. The only two constitutionally permissible available options are either vesting this power in the SAPS or in Home Affairs. For the past five years, since the publication of the Green Paper, the only debated option has been that vesting this power in Home Affairs. This option was spelt out in the Green Paper, the White Paper and the Immigration Bill, all of which have been reviewed by, widely discussed in and approved by Cabinet.

The SAPS does not have the specialised knowledge required for border control in a modern society, while its members have different knowledge, skills and training which are far in excess of what is required for border control. In fact, border control is not aimed at detecting criminals in respect of which a docket is to be opened and who are to be charged, tried and convicted. Around the world this function is exercised by a specialised immigration force which in turn can seek the cooperation of all other organs of the state, including the SAPS and possibly the

SANDF.

Appendix 2
ANC Proposed Revised Text: Clauses 12 and 14 on Diplomatic and Treaty Permits
Diplomatic Permits

The Minister shall delegate the power to issue diplomatic permits to persons provided for under the Diplomatic Immunities and Privileges Act (Act No.37 of 2001) and to foreigners conducting activities in the Republic in terms of an international agreement to which the Republic is a party, to the Department of Foreign Affairs

Treaty Permits

The Minister shall delegate the power to issue treaty permits to persons provided for under the Diplomatic Immunities and Privileges Act (Act No.37 of2OOl) and to foreigners conducting activities in the Republic in terms of an international agreement to which the Republic is apart>'. to the Department of Foreign Affairs


Appendix 3:
Letter from Business South Africa

15 May 2002

Mr M I Scott
Chairperson
Portfolio Committee on Home Affairs
Parliament of the Republic of South Africa
P0 Box 15
CAPE TOWN
8000

Fax No: (021)4033177

Dear Mr Scott

IMMIGRATION BILL

Business is concerned about reports. from various sources that substantive amendments are to 1'e proposal to the Portfolio Committee through a study group or other committee These amendments appear to be far-reaching and considerably undermine the basic philosophy of the Bill. They would introduce a range of discretions together with impractical and onerous provisions making it exceptionally difficult or impossible to employ the foreigners needed to supplement our critical skills deficiency.

Business fears that the re-introduction of such restrictions will make implementation of the provisions of tile Bill onerous, uncertain and unpredictable. The addition or substitution of these retrogressive provisions will aggravate the skills shortage and diminish the job-creating capacity of Business. It will also further depreciate our standing in the eyes of investors, who have severely criticised our present immigration regime and persistently called for its modernisation.

Business is convinced that die immigration policy we need should constitute a progressive, modern approach which would help to integrate South Africa with the rest of the world and ensure that necessary skills are made available from all sources to promote economic growth and development.

The reality is that, at the present pace, we will never catch up with the exponentially accelerating knowledge economy of the developed world, because we simply cannot create skills quickly enough, nor do we have instructors to impart tern, unless we look outside our borders.

At die same time there is scope for development of labour-intensive sectors of the economy and training through SETAs and skills development processes.

While our concerns regarding various provisions of tile current Bill are on record, the new amendments have not boon discussed with stakeholders nor dealt with in NEDLAC as is clearly intended in our law.

At this critical stage the exact nature of these amendment is unknown and we believe that they have not yet been finalised - only one day before they are ostensibly to be voted on.

Business cannot condone this process and expresses its extreme concern that we may be faced with an Immigration Act in tile near the future whose precise nature and import has never been considered by important stakeholders.

We ask you kindly to take note of this position which reflects the concerns of investors, domestic and foreign , who arc ready to invest and promote our economy if the appropriate encouragement is given.

Yours faithfully
Chairperson
Business South Africa
Immigration Task Team

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