South African Citizenship Act implementation and regulations: Departmental briefing

Meeting report

Introduction
The Chairperson welcomed the Members, Committee staff, and the guest presenters from the Department of Home Affairs (DHA). She explained that the DHA was still diligently working on a presentation on the Births and Deaths Registration Amendment Act (No. 18 of 2010), so that briefing would likely take place the following week. Instead, the Committee would mainly hear the DHA’s updates relating to implementation of the South African Citizenship Amendment Act (2010) and the Regulations made under the Act. She introduced Members, Parliamentary Officials, and the DHA delegation. She noted an apology note from an absent Member and a notice of expected late arrival from Mr G McIntosh (COPE) and reminded the Committee of a recent Parliament workshop on proper meeting procedures. Next week, minutes would be reviewed and adopted.

Mr M Mnqasela (DA) seconded the Chairperson’s suggestion to review and adopt the minutes the following week. He noted that he was using an alternative E-mail address and had not seen the minutes.

Mr M de Freitas (DA) said that he assumed the minutes were sent via E-mail and said he preferred to receive minutes electronically to save paper.

The Chairperson said electronic and hard copies would be made available for Members so that the following week, minutes could be reviewed and adopted. She reminded the Members that they were meeting with the Department for the first time in 2013 and said she looked forward to another good year. In 2012, the Committee had heard a briefing by the DHA on the South African Citizenship and Births and Death Registration Amendment Acts and had requested this follow-up meeting to hear a more detailed presentation.

South African Citizenship Amendment Act (No. 17 of 2010) DHA briefing
Mr Vusi Mkhize, DHA Deputy Director-General: Civic Services, began the briefing on the South African Citizenship Amendment Act, 2010 (Act No. 17 of 2010). He reviewed the Act Section by Section, emphasising clauses that were clarified through the Regulations. He discussed the Regulations related to the South African Citizenship Amendment Act with the aid of the slides.

The South African Citizenship Amendment Act 2010 (No. 17 of 2010) was assented to and signed by the Hon President on 3 Dec 2010 and came into operation on 1 January 2013. The proclamation was published in the Government Gazette on 28 December 2012. The Regulations on the South African Citizenship Act were published in Government Gazette on 28 December 2012 and came into operation on 1 January 2013. 

Training for the South African Citizenship Amendment Act and Regulations was conducted from 3-6 and 19-20 December 2012. Provinces nominated officials at supervisor level and front office clerk and a total of 189 officials were trained. In this number, one District Manager Operations and ten Heads of office attended.

Attendance against the nominated numbers was as follows:
Western Cape: Nominated = 61 and Attendance = 59
KwaZulu-Natal: Nominated = 69 and Attendance = 33
Free State: Nominated = 18 and Attendance = 19
Mpumalanga: Nominated = 41 and Attendance = 32
Northern Cape: Nominated = 23 and Attendance = 12
Eastern Cape: Nominated = 22 and Attendance = 22; and
North West: Nominated = 11 and Attendance = 12.

He stressed how important quality training had been and would be to the proper implementation of the Regulations.

The Births and Deaths Registration Amendment Act (No. 18 of 2010) (“the B & D Registration Amendment Act”) was assented to by the President on 3 December 2010. The Regulations were presented to the then Minister on 21 March 2012 and subsequently published in the Gazette for public comments on the 15 May 2012. All comments received were considered and accordingly incorporated into the Final Draft Regulations. A legal opinion from the Office of the Chief State Law Adviser: Department of Justice and Constitutional Development was also obtained and inputs were considered and incorporated into the Final Draft Regulations. The draft Regulations were being finalised and would then be presented to the Minister in due course.

The training on Regulations related to the Births and Deaths Registration Amendment Act covered officials of the Department, stakeholders, including, councillors, religious and traditional leaders. Training was conducted in Gauteng and Limpopo Provinces, respectively.  As of 26 October, 93 officials from Gauteng and 85 officials from Limpopo were trained. In Limpopo, nineteen funeral undertakers were also trained whilst in Gauteng, the envisaged stakeholders could not be reached in order to conduct training. Training on Registration of Births and Deaths for the outstanding provinces would resume in February 2013. A draft training schedule had been prepared and it was envisaged that training would resume on 25 February 2013.

Mr Mkhize then reviewed the South African Citizenship Amendment Act clause by clause, emphasising clauses that were clarified through the Regulations.

Mr A Guam (ANC) made a point of order as Mr Mkhize read Chapter 2, Section 4 of the Act. Although he understood the need to review the Act itself, he asked the Chairperson if it would better to discuss the regulations related to the Act, referring back to the Act as needed, rather than review the Act line by line prior to the discussion of the Regulations. He said that it might be a better use of the Committee’s time to use the Regulations as a point of departure, especially since the meeting’s agenda item indicated that the focus was to be on the Regulations and not the Act itself.

The Chairperson replied that not all Members were legal minds and that she saw value in reviewing the Act itself prior to discussion of Regulations. She requested that Mr Mkhize resume his presentation, in the same manner, reviewing the Act prior to explaining the regulations.

Mr Mkhize thanked the Chairperson and assured Members that he would proceed with the presentation as quickly as possible.

Mr Mkhize briefly summarised the last few sections of the Act and concluded the review of the Act.

The Chairperson said that Members could go through the sections but not read them verbatim later. She noted that Mr De Freitas was the only Member who was not a part of the Committee when it suggested changes. She said that the Committee was pleased that the amendments went through. She referred to Mr Mnqasela’s role as the main writer of the 2010 Amendments and permitted him to ask a question.

Mr Mnqasela said that what struck him the most were the circumstances as explained in Section 8 (Deprivation of Citizenship) of the current Act. It was easy to picture an official denying access to South Africa for a vague reason. He asked if the Regulations added any clarity on this point.

The Chairperson welcomed Mr McIntosh, who had just arrived.

Mr McIntosh apologised for his being late.

Mr Mkhize said he would begin discussing the Regulations and explained that the Regulations were worded so that the layman could understand the Act and understand its impact on him or her.

He said that under the definitions and under Section 2.1, if the child of a South African citizen was born outside of South Africa, a birth certificate must be submitted to a diplomatic office or a subsidiary of DHA within thirty days. There was a concern that people abroad might have an issue with getting the form to the DHA by the deadline. He said the DHA agreed that as long as proof exists that a birth certificate was submitted within 30 days of the child’s birth, the DHA would accept the birth certificate. This was understanding, but practical. As of 04 March 2013, unabridged birth certificates would be issued. The Treasury agreed to waive fees in order to ensure that all citizens would receive a first issue, unabridged birth certificate. He said that supporting documents at DHA offices, including permanent residence documents, passports, and original identity/birth certificates, have been simplified. He said that the long-winded, complicated process of naturalisation had been simplified as well, and that the DHA could now easily determine if individuals have been present for five-year periods. Individuals seeking naturalisation were only allotted a 90-day vacation allowance that did not roll over from year to year. Individuals were now expected to apply for citizenship on behalf of any minor children as soon as they began their own paths to naturalisation. This expectation would combat the smuggling of children and would help solve the problem of bloating South Africa with children that were not South African. Every member of a family would be checked by the DHA and would be expected to meet the appropriate citizenship requirements, not just the head of the family. He reiterated that the DHA had created new forms that were designed for their own specific purpose because it makes it easier for the individual to understand and easier for the DHA to process.

Discussion
The Chairperson thanked Mr Mkhize for his presentation and asked Members if there were any questions.

Mr Mnqasela thanked the DHA delegation. He was concerned that it was difficult to understand Section 5, Subsection 9A, when read together with Section 3 because “exceptional circumstances” did not appear to be succinctly defined. He asked if only the Minister of Home Affairs granted “exceptional circumstances.”

Mr De Freitas pointed out that Section 5F and 5G outlined the need for knowledge of South Africa and for proficiency in one of South Africa’s official languages to become naturalised. He asked where these needs were covered in the Regulations. He said that he assumed South Africa would create an assessment to determine if an individual was ready for naturalisation. He said that Section 5 and Section 6 gave him the impression that a declaration of allegiance, similar to the one used in the United States, would be required of individuals before naturalisation was finalised. He referenced Chapter 2, Section 9B, and said that the Minister usually tabled the names of people for naturalisation before the Parliament year began, but he asked how the Minister made the announcement years ago and how the Minister would make the announcement in the future. He said that his next question was unrelated, but important because citizens needed to know about the Regulations. He said that he had not seen much publicity on the Regulations and asked Mr Mkhize whom the Committee should talk to about publicity.

Mr McIntosh thanked the delegation for the presentation and noted that his questions had had already been answered.

The Chairperson said that she was concerned that the Gauteng and Limpopo Provinces were not included in the list of Provinces that received training on the Regulations surrounding the South African Citizenship Act. She said she was worried that KwaZulu-Natal had a 33/69 attendance rate at the training. She asked how the DHA reacted. The Free State and the Northern Cape also had poor attendance records. The new Act must be implemented and people would not know what to do if they were not properly trained. She said the delegation could begin responding to the Members’ questions.

Mr Norman Remashia, DHA Chief Director: Back Office Status Services, said that “exceptional circumstances” would cover individuals with scarce skills seeking naturalisation. He explained that the ten-year process to attain citizenship had the potential to discourage people with scarce skills from immigrating to South Africa. By allowing for “exceptional circumstances,” the DHA would be able to motivate certain individuals to become South African citizens. He admitted that the DHA might not have reached all stakeholders with its publicity campaigning and said that the DHA’s first priority was on training officials, and gazetting and publishing the Act and the Regulation through the government. The DHA was working with its Communications Unit and was in the process of an awareness campaign in the Provinces. Informational pamphlets would be printed to cover different Acts and Regulations. He said that Gauteng and Limpopo were not included in the South African Citizenship Act training list because both Provinces were trained on the Births and Deaths Registration Act and the South African Citizenship Act at the same time.

Mr Mkhize said that the DHA wrote to the Provincial Managers from Provinces with poor attendance records for the trainings. He said the DHA had an obligation to ensure that all officials were properly trained. He said that publicity was an on-going process and that stakeholders would be better reached soon. In reference to Section 5F and Section 5G, he said that some parts of the Act were very clear and did not need to be clarified through Regulations. The allegiance declaration would be similar to that of the United States in that individuals seeking naturalisations must declare commitment to the country. The citizenship document then became legally binding. He said that the DHA and Legal Services would work together to compile the list of naturalised South Africans and that the Minister would continue to announce the list of naturalised South Africans annually.

The Chairperson thanked the DHA delegation again. She asked Mr Mkhize to explain the unabridged certificates again. She specifically asked what was required of an individual seeking to adopt a child.

Mr Mnqasela said that the number of years required to attain citizenship seem ‘to contrast’, when Section 5.1C of the Act was read together with Section 3.2A. Section 5B explained that a spouse must wait for 10 years to be admitted as a South African citizen, as opposed to the two-year time frame previously outlined. He noted that the issue of reciprocity had already been raised a few times.

Ms T Gasebonwe (ANC) asked what the delays to the implementation for the Regulations were. She asked what the requirements were to be an informant for late registration of birth and asked where the requirements were stated.

Mr Remashia said that the unabridged birth certificate would be introduced on 4 March 2013 and would replace the abridged version for newborn babies. Adopted children would also receive an unabridged birth certificate. The DHA had worked with the Department of Social Development and to determine the qualifications for adoption. Social workers, the Childcare and Protection Forum, and other relevant stakeholders were present at a meeting with the DHA and the Department of Social Development last week to discuss to birth certificates. The reason that spouses must wait the same 10-year period for naturalisation was to prevent marriages of convenience. The DHA had worked with immigration and police forces to investigate and expose marriages of convenience. The intention was not to cause problems for women. National security was key. The DHA reached this decision after many unpleasant discoveries of marriages of convenience. He noted that South Africans have been known to receive payment from foreigners to marry them so they could become South African citizens as well.

The Chairperson said that the reason she asked about the unabridged birth certificate form for adopted children was because sometimes the adoption process went through a lengthy process with the Department of Justice and Constitutional Development and with the Magistrate’s Court. She suggested that the next time the DHA met with the Department of Social Development, social workers, and other stakeholders, the DHA should include representatives from the justice system.

Mr A Guam (ANC) said that the long waiting period to receive permanent residency was not acceptable.

Mr Mnqasela said that when Regulations were wedded to an Act and when a Regulation referred back to an Act, the wording must be identical. He said that it would be important continuously to update the list of scare skills that fell under the “exceptional circumstances” for naturalisation.

The Chairperson asked the DHA to consider Mr Mnqasela’s suggestion. She thanked everyone present for taking part in the meeting. She reiterated the importance of proper training for officials. She released the DHA delegation.

Committee business
The Chairperson asked the Members if they would be available to meet with a Ugandan delegation on Wednesday, 13 March 2013.

Mr De Freitas asked the Chairperson what time the meeting would take place.

The Chairperson said that the time would work itself out and that the Committee must agree on a date first.

Mr Mnqasela apologised because he had an appointment from 10h30 noon.

The Chairperson noted Mr Mnqasela’s apology and concluded that the Committee was in agreement to meet with the Ugandan delegation on 13 March 2013. She reminded the Members that the Seminar on Electronic Voting and Counting Technologies would take place on 11 March 2013 and 12 March 2013.

The Chairperson ruled that the Members would attend the Seminar on Electronic Voting and Counting Technologies on 11 and 12 March, a meeting with a Ugandan delegation on 13 March, and that the 12 March 2013 meeting would be cancelled. The agenda item for the 12 March meeting would instead be covered at the 19 March meeting.

The meeting was adjourned.