Gender Dynamix on Alteration of Sex Description & Sex Status Act implementation; Lawyers for Human Rights on Statelessness; CoRMSA on Closure of Refugee Reception Offices in metro areas

Home Affairs

25 November 2012
Chairperson: Ms M Maunye (ANC)
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Meeting Summary

The Committee was briefed by Gender Dynamix on the implementation of Act 49 of 2003: Alteration of Sex Description and Sex Status Act. The Committee was informed that there many complications in processing applications for a change in gender status in the IDs of transgender people, with some applications taking five years to process. This was attributed to an incorrect interpretation of the Act.

Applicants were unable to access medical facilities, apply for jobs, unable to get their academic results and could not vote, they faced difficulty in travelling and allegations of fraud. Some applications had been turned down without reasons given and in some instances applicants were forced to go through a surgery operation, sterilisation and forced divorce.

Committee Members asked for the percentage of the population that was affected, whether any sensitisation had been done and the source of funding for the organisation.

Lawyers for Human Rights gave a briefing on stateless people in South Africa. A stateless person was one who “was not considered as a national by any State under the operation of that country’s law”. Statelessness was caused by domestic and foreign factors such as state succession, conflicts/gaps in the law, denationalisation, dual nationalities, unaccompanied minors and mixed migration, not having proof of nationality and thus undocumented, ID fraud (duplication), parents that had not passed on nationality and children that had been raised by single fathers.

An important measure to avoid statelessness at birth was to provide nationality to children born on the territory who would otherwise be stateless. Lawyers for Human Rights was concerned that the SA Citizenship Act of 2012 did not do enough to protect children. It recommended that South Africa should honour its 2011 pledge by signing and ratifying the UN Conventions on Statelessness by the end of 2013 to address the challenges in this area.

Committee Members asked questions on the practice of other countries in the registration of children whose parents were undocumented, on a “statelessness explosion” if granting rights of residence to stateless persons, and co-operation between Lawyers for Human Rights and the Department of Home Affairs

The Committee was briefed by the Consortium for Refugees and Migrants in South Africa (CoRMSA) on the closure and relocation of the Refugee Reception Offices in metropolitan areas. Three offices had been closed down in Johannesburg, Port Elizabeth and Cape Town with no alternative measures for new asylum seekers or for existing ones that required their documents to be extended.

The Department of Home Affairs was looking at opening up border area offices but in the meantime, asylum seekers were suffering and risking deportation in travelling long distances to access services at the remaining open offices.

CORMSA recommended that the Department of Home Affairs should comply with the judgment of the
Western Cape High Court by re-opening the offices and refraining from closing any more offices.

Committee Members asked who was funding CORMSA, the nationalities of the representatives, the motives of some of the immigrants, whether CORMSA was open to partnerships with the Department of Home Affairs, the transportation of migrants and the use of ports of entry.

Meeting report

Gender Dynamix on implementation of Alteration of Sex Description and Sex Status Act
Mr Sibusiso Kheswa, Advocacy Coordinator: Gender Dynamix, said focuses on the transgender community in South Africa. Its concern was there was much delay and complication by the Department of Home Affairs (DHA) officials in processing applications for a change in the gender status in the IDs for transgender people in cases of gender reassignment, with some applications taking more than five years.

Mr Kheswa said that transgender people faced several challenges as a result of the delay in the areas of school not releasing results without one having an ID, applying for jobs, denying one’s right to vote, accessing hospital facilities and travelling.

Ms Sanja Bornman, a lawyer with the Women’s Legal Centre, in addressing the interpretation of this Act said that section 9 of the Constitution provided for and promoted the equality of everyone, prohibiting discrimination on the grounds of gender. Section 10 provided for the inherent dignity of everyone and the respect and protection of such dignity. Transgender and intersex people were not excluded from the rights provided by the Constitution.

Ms Bornman said that a transgender person stopped by police was likely to be accused of fraud because of the lack of matching appearance of the person driving the car and the one in the ID. In practice, the Act was not being implemented because of a lack of correct interpretation.

Ms Bornman said that under section 2 of this Act, the gender reassignment application process required the applicant to submit a report by a medical practitioner corroborating that the applicant was intersexed, a report by a qualified psychologist or social worker corroborating that the applicant had lived stably and satisfactorily, for an unbroken period of at least two years in the gender role corresponding to the sex description under which he or she sought to be registered to effect the change on the ID document.

Ms Bornman said that sexual characteristics under section 2 of the Act could be altered by surgical, medical treatment or by evolvement through natural development resulting in gender reassignment. Any one of these could suffice for one to apply to the Director-General of the Department of Home Affairs for the alteration of the sex description on his or her birth record. So, taking hormones could in this case be sufficient to cause a change in a person’s characteristics.

In terms of administrative justice, Ms Bornman said that applications were turned down without giving reasons as required under section 2(3) of the Act, something she attributed to incorrect interpretation by the DHA officials. And where reasons were given, they were wrong reasons as these were based on the primary characteristics of applicants. It was not compulsory for one to have an operation for a change in sex status to be recorded because there were other methods available under the Act.

Ms Bornman said that a lack of written reasons denied the applicants, whose applications had been turned down, an opportunity to appeal and in other cases the applicants were not informed of the appeal process to further their cases.

In conclusion, she said that ithe intention of the legislature was clear in enacting the Act and it was not the role of individual Home Affairs officials to pronounce themselves on the medical treatment or other kinds of treatment contained in medical reports for the applicants. The officials should be given guidelines on the how this Act should be interpreted to prevent further delays in its implementation.

Ms Sally Gross, Director: Intersex South Africa, said that being intersexed involved ambiguity at a physical level in the genitalia, which raised questions as to how a child is to be classified in terms of gender at birth. The implementation of the Act left a lot to be desired, and she called for regulations to see to it that DHA officials do not act in contravention of the Act. Education and sensitisation of officials by means of workshops were also recommended as a way of addressing the contrary practices of the DHA officials such as requiring forced surgery, sterilisation, undergoing divorce and a lack of written reasons for turning down applications.

Ms Gross said that there was need to fast track gender applications within a period of three months because there were instances where applications were taking more than five years. She added that a marriage that becomes invalid under the Marriage Act as a result of the gender alteration should be converted to a civil marriage under the Civil Union Act No 17 of 2006. Gender encoding of ID numbers should be removed in as far as it relates to sex description.

Discussion
Mr A Gaum (ANC) said that the Committee was going to advise the Department on the practices its officials should follow to conform to the legislation. He added that the Act was sufficient and that regulations would be premature at this point.

Mr G McIntosh (COPE) said that the fingerprints through the biometric system would assist in verifying the identity of transgender persons as a change in gender would not affect one’s fingerprints. He added that changing an ID was a serious matter, raising a concern about people might want to change gender “now and again”.

Ms Gross in response said that the biometric fingerprint system would fix the problem of verifying identity of transgender persons.

Ms Bornman referred to the comment about “a regular change of gender” and said that such a change was something serious and that those hoping to go through it had to be sure that it is something that they wanted to do.

Mr McIntosh asked for figures on the percentage of the transgender population affected by delays in processing ID applications.

Ms Bornman replied that the percentage of the population was irrelevant in terms of the Constitution. One person could also suffice as long as there was an infringement of the rights of such person.

Ms T Gasebonwe (ANC) asked if any sensitisation had been done.

Mr Kheswa replied that sensitisation had been done through workshops and that the South African Police Service was being sensitised on standard operating procedures on how to deal with intersex and transgender people.

Ms P Petersen-Maduna (ANC) asked for the source of funding for Gender Dynamix operations.

Mr Kheswa without being specific said that Gender Dynamix was funded by international donors.

Ms G Bothman said that the population needed to be clear on the data available concerning transgender people affected so that adequate planning could be done. The Department of Home Affairs was a security institution and that questions were a way of verifying validity.

Ms Bornman, in responding to DHA being a security institution, said that Gender Dynamix had tried engaging with DHA and mutual promises had been made but with no results. It was partly why Gender Dynamix took long to come before the Portfolio Committee to air its concerns.

Ms Gross said that about 1.7% of the population was affected. Quoting some research carried out in Kimberley, she said that infanticide was carried out by certain midwives in some clinics when encountering intersex babies (by breaking their necks).

Stateless people in South Africa : briefing by Lawyers for Human Rights 
Ms Rosalind Elphick, Legal Counsellor: Lawyers for Human Rights (LHR) by way of introduction said that South Africa in December 2011 pledged to sign and ratify the UN Conventions on Statelessness. She referred to Article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons which defines a ‘stateless person’ as “a person who is not considered as a national by any State under the operation of its law”. ‘Law’ under the UN High Commissioner for Refugees, Guidelines on Statelessness not only referred to the letter but also to the manner of implementation in individual cases. 

Ms Elphick said that LHR had reached over 2 000 persons from over 20 countries since the launch of the Refugee and Migrant Rights Programme: Statelessness Project in March 2011, with most persons coming from Zimbabwe. 

Ms Elphick said statelessness arises in both foreign born as well as South African born. From a foreign born perspective, the causes were state succession, conflicts/gaps in the law, denationalisation, dual nationalities, unaccompanied minors and mixed migration. Causes in the South African-born population are: children born to undocumented parents, ID fraud (duplication), parents that had not passed on nationality and children that had been raised by single fathers. 

An important measure to avoid statelessness at birth was to provide nationality to children born on the territory who would otherwise be stateless. LHR was concerned that the SA Citizenship Act no. 88 of 1995 did not do enough to protect children. It recommended that South Africa should honour its 2011 pledge by signing and ratifying the UN Conventions on Statelessness by the end of 2013 to address the challenges in this area

In terms of estimates, Ms Elphick said that there are 3,7 million orphans according to UNICEF estimates. Not all orphans in the country are stateless, but this is risk factor for statelessness. She added that 100-200,000 Zimbabweans had been denationalised but there was no way of confirming as to how many had crossed over to South Africa. There were 600 000 ID fraud and duplication cases that also contributed to statelessness.

Ms Elphick said that in the absence of a protection mechanism for stateless persons from the Department of Home Affairs (DHA), quantifying the number of stateless people was still a challenge. Such people also face the challenge of being constantly subject to arrest and detention due to lack of documents. LHR was not advocating for a new right since a right to nationality was clearly spelt out in various international instruments to which South Africa is a state party. 

Ms Jessica George, Legal Counsellor: LHR, said that the organisation’s primary recommendation was that South Africa should honour its 2011 pledge of signing and ratifying the UN Conventions on Statelessness by the end of 2013. 

Ms George, in terms of the identification and protection mechanism, recommended that at a minimum, to meet international obligations, section 31(2)(b) of the Immigration Act No 13 of 2002 should be amended. Currently section 31(2)(b) allows the Minister the discretion to grant the rights of permanent residence to a foreigner or category of foreigners who have “special circumstances.” Special circumstances could include the stateless. Ms George said that LHR recommends that in order for South Africa to comply with the 1954 Convention, it should remove the discretion given to the Minister to grant permanent residence exemptions in cases where the applicant is in fact stateless, unless for good reasons such as national security. In addition, South Africa should draft a regulation to accompany s. 31(2)(b) of the Immigration Act to give clarity on section 31(2)(b) as some applicants and stateless persons were not aware of the procedure under it. Such a regulation would also provide for a stateless definition and identification procedure in line with international guidance.
In the alternative Ms George said that the Immigration Act could be amended to provide specifically for a ‘stateless status’ to which all of the rights of the 1954 convention would attach, such as the right to an identity and travel document.


Ms George said that LHR was recommending ideally new legislation in the long term, to mirror the 1954 Convention Relating to the Status of Stateless Persons so as to give clarity and a way forward on some of the issues concerning statelessness. The 1961 Convention on the Reduction of Statelessness would be vital in terms of avoiding statelessness at birth to children in a Contracting State’s territory. She said that although section 2(4)(b) of the South African Citizenship Act had the same effect, it was not implemented in practice. The recommendation was that a regulation be made to support this provision so that children born in South Africa who are stateless can access this critical legislation.

Ms Elphick said that section 15 of the South African Citizenship Act (No 88 of 1995) entitles one to citizenship where there is doubt as to nationality by direct application to the Minister. This is especially for those that could not register through ordinary means. There was need for a broad based access by creation of a standard form application. Besides establishing a standard form application procedure for applicants, applications should be made with assistance of the DHA. It would also help those whose applications have been turned down, to know the alternatives available to them. She added that unaccompanied minors risked statelessness and so, an amendment was needed of the Immigration Act to allow for the granting of resident permits to such minors before they attain majority age. 

Ms George said that there is currently a requirement in section 13 and regulation 10 of the Births and Deaths Registration Act for South Africans born abroad to present foreign birth certificates for registration for citizenship in South Africa to be done. This was a barrier in the sense that in many countries birth registration levels remain low; only 50% of births on the continent are registered according to UNICEF. Thus LHR recommends an amendment to remove the strict requirement of a foreign birth certificate and to allow options other than birth certificates to be considered, such as other documentary evidence of birth and conducting interviews of such persons. 

Ms Elphick said that there was a challenge of late birth registration with applicants being turned down without written reason, an act that denied them a right of appeal. Further, children born to undocumented foreign parents could not be registered in South Africa – something that is in contravention of the right to registration of a birth. The recommendation was for regulations that require alternative forms of proof for registration of birth to be done.

On the issue of foundlings (child with unknown parentage), Ms Elphick referred to the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws and the Hague Protocol relating to a Certain Case of Statelessness to which South Africa was a signatory. These had a provision recognizing the right of foundlings to nationality but South Africa has not domesticated this provision. Section 12 of the Births and Deaths Registration Act (No. 51 of 1992) states that abandoned and orphaned children have the right to birth registration, but there is no accompanying right to citizenship in the Citizenship Act.
Discussion
The Chairperson asked what the practice of other countries was in terms of registration of a child with no documents. 


Ms Elphick replied that ideally it would be appropriate for parents to have documents and then have a registration of a birth done, but in other instances, an affidavit would serve the same purpose. Ms George noted that connecting hospitals to the Home Affairs system so that births could be registered on site is ideal, but LHR received reports that even in hospitals that are connected to DHA, mothers could not register children unless the mothers first had an ID or passport. This requirement must be removed.

Mr McIntosh said that granting rights of residence to stateless people would create a “statelessness explosion”. He asked if children born in hospitals of undocumented parents were being refused registration. He expressed concern at some persons who after going through immigration resorted to destroying their passports, adding to the problem of statelessness. 

Ms Elphick, in response to “statelessness explosion”, proposed the adoption of a procedure such as that applied to refugee claimants during their status determination, requiring them to act in good faith. Acting in bad faith would prompt the DHA to deny protection. She further stated that statelessness is not equivalent to lack of documentation, and statelessness is a legal status that can be verified and determined in collaboration with foreign missions. So destroying of documents does not render someone stateless.

Ms Elphick said there was a requirement to issue handwritten birth certificates for foreign children, but children whose parents are undocumented are not getting births registered. 

Ms Bothman said that undocumented people would be a concern for national security and that the DHA was currently planning around the issue of undocumented people in the country. South Africa was issuing birth certificates and a national birth registration campaign was currently on-going. 

Ms Elphick said
responded that indeed, having undocumented persons on the territory is a concern that should be addressed appropriately. Documenting statelessness provides the Department with the means to do so.

Ms Elphick said that the issuance of handwritten birth certificates for children born to parents who were undocumented was happening rarely and that on the whole, this was not being done. The national birth registration campaign was good but some people were still falling through the cracks. 

Ms Bothman said that LHR should assist DHA in advising clients on citizenship and how to avoid becoming stateless.
Lawyers for Human Rights noted that in its 2011 pledge, South Africa stated it would sign and ratify both stateless conventions following an internal consultative process. LHR is delighted to take part and contribute recommendations and expertise during this process and moving into 2013.


CoRMSA on closure and relocation of Refugee Reception Offices in metropolitan areas
Ms Roshan Dadoo, Regional Advocacy Officer: CoRMSA, by way of introduction said that asylum seekers were currently suffering because of the closure by the Department of Home Affairs (DHA) of Refugee Reception Offices (RROs) in Crown Mines/Johannesburg, Port Elizabeth and Cape Town. This had created an administrative and humanitarian vacuum with new applicants being forced to travel long distances to the remaining offices to be documented and renew permits. Undocumented, they would be subject to arrest and deportation.

Ms Dadoo said that protests about the closure of offices and the call to have the offices re-opened had not had any positive result. The DHA was looking at opening up new border area offices, something she said should have been discussed with civil society. Closing offices before opening new ones did not make any sense given the effect it had on those accessing the services of Home Affairs. She added that the idea that asylum seekers were troublemakers had not been borne out by any research.

Ms Dadoo recommended that the offices be opened in accordance with the Western Cape High Court judgment of 30 August 30 2012 in which the court ruled that the DHA must serve newcomers in the metropolitan area as well as those renewing their documents. The DHA had appealed the judgment (see Appendix). She also recommended that no further closure of offices should be done.

Ms Dadoo said that the DHA was not willing to have a proper consultation with the people who had been affected. This would only lead to asylum seekers being dishonest because of the difficulty in approaching the authorities that make the services inaccessible. The legislation in place was sufficient but the implementation by the officials was still lacking.

Discussion
The Chairperson pointed out that the Crown Mines/Johannesburg offices were closed by the order of court and not the DHA.

Ms P Petersen-Maduna (ANC) asked if CoRMSA would have any objection to moving the offices to the border.

In response, Ms Dadoo said that the main issue was in closing offices before the opening new ones. She added that the closure deprived the Government of knowing who was in the country, especially for those that got into the country viameans other than ports of entry.

Mr G McIntosh (COPE) said that some immigrants had added a huge value to the South African economy through employment. However, the Government was in a delicate situation because it had a responsibility to its own people and of upholding the law. South Africa had the highest number of refugees. Making it easy for people to come to South Africa would create many problems considering that some are economic refugees. Civil society should appreciate the situation of the Government and remember that there was no moral obligation to help illegal immigrants/asylum seekers.

Ms Dadoo replied that South Africa did not have the highest number of refugees. South Africa was bound by international legal obligations to set up Refugee Reception Offices (RROs). It was also bound by its own legislation such as the Refugees Act and regionally the OAU Convention on Refugees. This legislation provided for a right to a fair hearing and was also a way of determining who was truthful and who was not.

Ms Dadoo said that economic migrants were a global phenomenon and there was need for a system to quickly determine the status of asylum seekers.

Mr McIntosh added that immigrants were using South Africa as a stepping stone to get into Europe and the United States. CoRMSA should partner with the Government in dealing with the problem.

Ms G Bothman (ANC) asked if the CoRMSA representatives were South Africans, who was funding CoRMSA and whether South Africa was the only safe country for immigrants. She added that the DHA was implementing government decisions in accordance with the law.

Ms Dadoo produced her green ID book as a confirmation that she was South African. Her colleague, Mr Alfani Yoyo an Advocacy Officer at CoRMSA, said that he was originally from the Democratic Republic of Congo.

Ms Dadoo said that CoRMSA had received funding from Atlantic Philanthropies, Open Society Foundation, Oxfam, the European Union, Foundation for Human Rights and the Government (including the DHA for training programmes).

Ms Dadoo said that South Africa was not the only safe country. South Africa should sign and ratify the Free Movement of Persons protocol and encourage other SADC members to join in order to share the burden.

Ms Bothman said that instead of CoRMSA “heaping more burdens” on South Africa; it should assist in educating immigrants about alternative countries.

Ms Dadoo said that CoRMSA was open to partnerships with the Government and the DHA. She added that South Africa had a history of migrant labour and closing down the movement of people would not be the solution.

The Chairperson said that immigrants should use ports of entry and not jump over the fence while accessing the country. Who was transporting the immigrants?

Mr Yoyo said that using ports of entry is an ideal solution but added that the section 23 permits were no longer being issued since June 2011. In response to the transportation of immigrants, he said that CoRMSA did not know who was facilitating their transportation.

Ms Dadoo added that there was no limitation on movement for asylum seekers as they could not be held at the border and the backlog of status determination was taking years to be dealt with.

The meeting was adjourned.

Appendix
From CoRMSA website:

HIGH COURT ORDERS THE DEPARTMENT OF HOME AFFAIRS TO ABIDE BY INTERIM ORDER TO ACCEPT NEW ASYLUM SEEKERS AT THE CAPE TOWN REFUGEE OFFICE

On 30 August, Judge Dennis Davis of the Western Cape High Court heard two matters related to the closure of the Cape Town Refugee Reception Office to new asylum applicants. The State sought to appeal the interim order and simultaneously the Scalabrini Centre brought an application Rule 49(11) to compel the State’s compliance with the interim order regardless of State’s appeal to the High Court or Supreme Court of Appeal. On both issues Judge Dennis Davis sided with the Scalabrini Centre of Cape Town.

This case was a follow up to an earlier decision. On July 25th Judge Davis ruled that the Department of Home Affairs must serve newcomers in the metropolitan area. He issued an interim order, stressing that the newcomers must be served while a fuller review was pending.

The DHA appealed this interim order, saying they should not have to accept newcomers while awaiting a fuller review.

Judge Davis ruled that the state could not appeal the interim order from July 25th 2012. He noted that delaying implementation of the order would cause grievous harm to asylum seekers as they would be forced to travel thousands of kilometres to be documented and renew those permits. Undocumented, they would be subject to arrest and deportation. Compared to such harm, the expenses to the DHA of assisting newcomers were negligible. He further held that there was no reasonable prospect that another court would rule differently.

In a particularly riveting portion of Judge Davis’s ruling, he threw out the affidavit of the Head of the Cape Town Refugee Reception Office, Acting Director Santos Mohapeloa. Mr. Mohapeloa had stated under oath that in the period from the July 25th judgment “no new asylum seekers presented themselves for processing at the service centre.” The Judge found this particularly unbelievable as there had previously been more than a thousand new applicants per month. Detailed lists of unassisted newcomers collected by PASSOP and Scalabrini Centre since the July 25th judgment provided further evidence to this effect. Judge Davis called the statements of the Acting Director “untenable” and rejected his affidavit wholesale.

Additionally, Judge Davis ruled on a so called Rule 49(11) application by the Scalabrini Centre. He ruled that even if Home Affairs appealed to the Supreme Court of Appeals they would still have to accept newcomers in the meantime. He found that the alternative would mean parties who had achieved a victory in court could be denied justice via drawn out appeals.

This is another victory for asylum seekers but it remains to be seen if the DHA will comply with the order. As of today, one day after the judgment, no one at the Refugee Reception Office has been notified by the Director General that newcomers must be accepted. The officials have not even begun formulating a plan of how they will serve new applicants.

We and our colleagues at PASSOP, the Legal Resources Centre, and the UCT Refugee Rights Project will continue to monitor the situation and call on all newcomers to present themselves at our offices to be included on our data base.

Rebecca Chennells
Advocacy Officer : Scalabrini Centre of Cape Town



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