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HOME AFFAIRS PORTFOLIO COMMITTEE
19 February 2003
IMMIGRATION ACT REGULATIONS: BRIEFING; ANNUAL REPORT: FINALISATION
Acting Chairperson: Ms M Maunye (ANC)
Documents handed out:
Annual Committee Report 2002
Immigration Act [No. 13 of 2002]
Regulations to Immigration Act - as gazetted on 25/11/02 [.pdf file 8MB large]
Letter from Independent Electoral Commission
The Department briefed the Committee on the Regulations to the Immigration Act. The Department explained that the recent Cape High Court ruling was only on the matter of the Presidential Proclamation not being gazetted; the ruling said nothing on the substance of the Regulations. The Committee considered the suitability of Dr M Ambrosini, Advisor to the Minister for Home Affairs, to brief the Committee. They considered the possibility of a conflict between Sections 7 and 52 of the Act, the Cape High Court ruling, the transitional nature of the Regulations and the possibility of a public participation challenge to the Regulations.
The Committee resolved to submit written queries to the Department and hold another meeting on the Immigration Regulations where these queries would be addressed.
The Committee adopted the Annual Committee Report 2002, discussing Members' attendance records and the approach to take to study tours.
Election of Acting Chairperson
Mr W Skhosana (ANC) nominated Ms M Maunye (ANC) as Acting Chairperson and that was accepted.
Adoption of Annual Report 2002
The Acting Chair called for any amendments or additions to the Annual Report 2002.
Members' Attendance Records
Mr Grobler thanked the secretariat for correcting the attendance record in the report. The Committee should consider having Members sign a register rather than the Clerk noting who was present as a way to avoid future mistakes.
Mr Pretorius noted that his attendance was also incorrectly reflected in the report.
The Committee Clerk responded that it was up to the Committee to decide between Members signing a register or him noting attendance. The mistake was not due to inaccurate records. The report was based on a 'skeleton' sent to him and when he changed the names to reflect the Committee Members, he had forgotten to change the attendance numbers too.
Mr B Mthembu (ANC) noted that he had only joined the Committee in October and that no meetings had been held after that date. He was concerned that without this information, his zero attendance created a poor impression.
The Committee Clerk replied that Members had been asked to bring their appointment dates to the Committee so that this could be reflected on the attendance information.
Mr Grobler drew the Committee's attention to section 5 of the report. The visit to London, where the Deputy Minister was accompanied by the Chairperson and Ms Van Wyk, had only briefly been mentioned in Committee and not discussed. Could the Committee not be consulted on such matters or was it standard practice for the Chair alone to decide these matters. Mr Grobler stated that he had written to the Chair but had not received a written reply, though they had had a private discussion. Some visits had been discussed in detail by the Committee, whilst others were not.
Ms I Mars (IFP) noted that this was a matter of principle not personalities. In future such visits should be discussed properly by the Committee, though there may have been reasons for the lack of discussion, such as time constraints.
Ms Van Wyk stated that there was uncertainty in Parliament on the matter of study tours. She agreed with Mr Grobler and Ms Mars and suggested that Parliament produce a policy on such tours.
Mr Pretorius stated that there was already a formula for such tours accepted by the Whips The Committee should obtain this formula.
Ms N Oliphant (ANC) said that there was no need for the Committee to discuss the tours, and the Committee simply needed a policy on how to deal with matters.
Mr Grobler asked that Members be sent minutes so that they can follow developments more closely.
The Clerk replied that the recent minutes could not be sent out since there had been no Chair to sign them. He had encountered problems sending out unsigned minutes before.
Adoption of Annual Report 2002
The report was adopted without amendment.
The Clerk pointed out that the Committee had yet to adopt a statement of its mission, vision and objectives. The Committee agreed that they would have a workshop.
Briefing by Department on Immigration Regulations
Ms Maunye welcomed the Department officials: Adv Lambinon, Acting Director General in the Department, Dr M Ambrosini: Advisor to the Minister, Mr C Schravesande: Acting Chief Director of Migration and Adv Malatji: Departmental Legal Advisor.
The Acting Chair stated that she thought the Department officials were to take the Committee through the Immigration Regulations since Mr Schravesande had been unable to do so at the last meeting. She also expected the Court decision against the Regulations to be highlighted.
Adv Lambinon said that since the Regulations document was 202 pages, the only reasonable action was to focus on the index and definitions. Which of these would the Committee like to engage on? The Regulations simply went into the practicalities of applying the law.
Adv Lambinon noted that the present status of the Regulations was that the Cape High Court had ruled on a technicality, not on their substance. The Presidential Proclamation had been signed but not gazetted. The Proclamation was to be gazetted as soon as possible, allowing the Regulations to come into force.
Mr H Chauke (ANC) raised a point of order. The Chair had requested a briefing and that this was what Adv Lambinon should be giving.
Mr Pretorius suggested that before the discussion of the Regulations started, the Committee needed to discuss procedure. Since the document is 202 pages in length, a briefing on broad principles would be appropriate. It would be impractical to go through the Regulations in detail in only an hour or two.
The Acting Chair stated that she expected a briefing from the Department.
Ms Van Wyk stated that there had been a clear request at the previous meeting that the Department briefly highlight and summarise the Regulations, concentrating on the three issues raised regarding the Act. They had also asked for documentation.
Adv Lambinon said that he did not know of a request for documentation other than the Act and Regulations. If such a request had been received the documentation would have been produced. He asked Dr Ambrosini to present a briefing to the Committee.
Mr Chauke said that the Department was in the forefront of implementing the Act and Regulations and he wondered why Dr Ambrosini was briefing the Committee instead of the Department officials.
Ms Oliphant agreed with Mr Chauke's point. The Minister had told the Committee that Adv Lambinon was working on the Act. She wondered who was really taking up the Bill, Act and Regulations if Adv Lambinon was unable to brief the Committee. She noted that Dr Ambrosini was only a Political Advisor to the Minister.
Mr M Kalako (ANC) suggested that the Department was being unfair to Dr Ambrosini. He would not object to Dr Ambrosini briefing the Committee had the Minister sent him to do so. By getting Dr Ambrosini to present the briefing, the Department was creating the impression that he drew up the Act and Regulations.
Mr Grobler wondered whether the Committee had time to waste. It had been decided at the previous meeting that the Committee was to be supplied with the Regulations as soon as possible so that they could go through them in study groups and then bring up any questions raised by this process with the Department. He did not hear a request that the Department was to distribute documents on the Regulations. Personalities were irrelevant and he did not care who presented the briefing.
Mr Grobler stated further that while he accepted the Chair's ruling that the Committee go through the Regulations and then the Court ruling, he wondered if this did not place 'the cart before the horse'. Why had the slip-up happened? He also wondered about the further challenge regarding public participation.
The Acting Chair stated that it had been agreed that the Department would send the Regulations to the Committee and that there would be a briefing by the Department.
Mr Sikhakhane asked for a five minute adjournment so that the ANC members could have a discussion.
Prince Zulu saw nothing improper in Dr Ambrosini presenting the Department briefing.
Mr Kalako stated that Mr Grobler and Prince Zulu appeared to think that the briefing could continue with Dr Ambrosini giving it. However, the fact remained that Dr Ambrosini is the political advisor to the Minister. He would accept a presentation by Dr Ambrosini had the Minister written to the Committee stating that Dr Ambrosini was to give the briefing. The implication was that Dr Ambrosini was responsible for the Act and Regulations and not the Acting Director General, Law Advisor and other Department officials.
Mr Chauke said that when the Committee called the Department to account, the Department must give the account. He understood that Dr Ambrosini was involved in the process but expected the Department leadership to brief the Committee. If this could not be done, then there was a problem. He could see no reason for the ANC to caucus.
Mr Pretorius asked what instructions the Secretary had given to the Department.
The Acting Chair recognised Ms N Maphisa-Ngakula, Deputy Minister of Home Affairs.
The Deputy Minister said that she wished to give guidance to the Committee to try to find a way forward. She pointed out that the Department's Acting Director General, Head of and Head of Legal Services were all present. Between them, they should be able to answer any Committee questions. She understood the issue of Dr Ambrosini and did not wish to embroil herself in that. The Committee should give the three officials a chance since it is important to understand how they reached decisions on the Regulations.
Mr Grobler stated that the Deputy Minister had made her point in an effort to advance the meeting.
Ms Maunye Acting Chair said that the Department should take this opportunity to brief the Committee.
Briefing by Department on Regulations
Adv Lambinon stated that the Department had received nothing from the Committee secretariat other than a request that the Regulations be distributed to the Committee and that was done the following day. He saw no request for an overview and the Department official present at the previous meeting had not come away with the view that an overview was required. Mr Schravesande, as the person centrally involved in drawing up the Regulations, would be asked to give an overview. Dr Ambrosini was a policy advisor not a political advisor.
Mr Schravesande said that he would brief the Committee in broad terms. The Regulations were drafted in the same sequence as the Act. Sections 1-18 dealt with administrative matters, 19-32 with prescriptions for temporary residence permits, 33 with prescriptions for permanent residence permits, 34-40 with procedures for dealing with people that should not be in South Africa and 40 onwards with administrative actions of the Department.
Mr Schravesande drew the Committee's attention to Schedule A, which contained the heart of the regulations regarding permits. Schedule A was the form to be used when applying for a permit, the relevant requirements, the conditions that may be imposed on the permit and so forth.
Mr Schravesande stated that the Annexures covered everything that the Department needed to implement the Regulations.
Inclusion of Regions and Definitions in the Regulations
The Acting Chair thanked Mr Schravesande but said that she was not sure that the Department had prepared itself. Why have issues that were excluded from the Act been included in the Regulations, for instance the issue of regions? During deliberations, the Committee had asked that issues they voted to be removed not be sneaked into the Regulations but here they appeared in the Regulations.
An ANC member asked if the definitions in the Regulations were supposed to differ from those in the Act, noting that the definition of the Department was different in each and that there were definitions of regions and regional directors, which contradicts the Act.
Adv Lambinon replied that the Regulations 'embroider' on the Act and that the definitions in the Regulations were not in conflict with the Act
Sections 7 and 52 of the Act
Ms Maunye queried Section 7 of the Act, which requires that public comment be considered regarding the Regulations. The Committee ought to have been taken on board in drawing up the Regulations, but this was not done. Since the Regulations would take effect on 12 March 2003, she was not sure that the Committee would have time to be properly involved.
Adv Lambinon replied that the Committee and Parliament had considered the Act. Section 52 provides that until the Immigration Advisory Board (IAB) is constituted, regulation of the Act shall be prescribed. Regulations are needed to put the Act into operation, which will allow the IAB to be constituted and then Section 7 will be followed. The Regulations were interim measures to give effect to the Act.
Mr Pretorius asked if this meant that the Act comes into operation and then the IAB will consider public comment.
Adv Lambinon replied that these were issues considered by the Committee. Section 52(3) states that the IAB shall be convened within 90 days of the Act coming into force. These Regulations were an interim measure to get the IAB into place and then Section 7 comes into play.
Mr Skhosana responded that Section 7 was very clear that Regulations had to be tabled in Parliament and then available for comment for at least 21 days. Parliament only opened on the 14 February 2003. There was no indication that these Regulations were interim regulations.
Mr Chauke said that they should go back to the Chair's point. He thought it clear that the Department was not prepared and proposed that the Committee agree to prepare them for a meeting to consider the interim regulations tabled. The Department and Committee should go back and table them formally in Parliament.
Mr Sikhakhane noted that the Committee had insisted on the Department briefing and were now moving backwards and forwards. The issue was not whether procedures were followed, the exercise was to raise questions, not endorse the Regulations.
The Chair responded that that was what the Members were doing. Section 7 has been raised as an issue.
Mr Chauke asked if the Committee could agree that there would be a formal tabling since the current process contradicts the Act. He cited Section 7(1)(a) and (b) that requires 21 days for comment before publishing draft Regulations and a further 21 days once the draft Regulations are published.
Adv Lambinon responded that whilst the Department acknowledged the provisions in Section 7, one should not look at individual sections in isolation. One cannot read Section 7 without Section 52. Section 52 falls under the heading of transitional and therefore it comes into force before Section 7.
Ms Van Wyk suggested that the Department was missing the word 'transitional' in the Regulations. If she understood Adv Lambinon, Section 7 only took force when the IAB was formed. Since these Regulations are transitional they do not need to be tabled.
Adv Lambinon responded that they are Regulations but applicable in the transitional period. The parliamentary process will take place when the IAB is formed.
Mr Chauke returned to the question of Sections 7 and 52. He asked that the Department officials take the Committee through Section 7(4). Section 52 should not be read in isolation from Section 7.
Mr Schravesande agreed that Section 7 was there and must be applied. He directed attention to Section 7(4) where it requires that the advice of the Board shall not be disregarded. The advice cannot be sought until the IAB is established. The Regulations are necessary so that the public and Department have something to work with.
Mr Chauke responded that Mr Schravesande should continue reading 7(4).
Mr Schravesande replied that he would be happy to distribute the Senior Counsel's legal opinion on the matter.
Ms Maphisa-Ngqakula noted that Members had repeatedly raised the question of Sections 7 and 52 and advised them to get the State Law Advisor to assist so that at the implementation of the Regulations this would be understood.
Cape High Court Ruling
Ms Maphisa-Ngqakula asked what was in place when the old Act ceased to apply on 12 March 2003, since the Court had thrown out the Regulations.
Adv Lambinon replied that the Regulations had not been thrown out. The Court only ruled on the Proclamation; the Regulations were not considered. The Proclamation will thus be gazetted and once that is done the interim Regulations will come into force the moment the old Act is no longer in force.
Transitional Nature of the Regulations
Ms Maphisa-Ngqakula asked if these Regulations were to be implemented on 12 March 2003. If they were, then she thought they were final. She asked what the process was.
Adv Lambinon responded that the Regulations are Regulations in the real sense and will come into force on 12 March 2003 for the transitional period that is described in Section 52. The IAB will come into operation 90 days after the Act takes force. Once constituted, the IAB will consider the Regulations and the Parliamentary procedure in Section 7 will take place.
Mr Schravesande added that the Regulations state that they were made in terms of Section 52; Regulations in the transitional arrangement.
Mr Skhosana wondered if this meant that the regions set up in terms of the interim Regulations would be dissolved when the Board was constituted 90 days after the Regulations took effect.
Ms Maphisa-Ngqakula stated that she wished to clarify that these were Regulations to be implemented, not a draft to be discussed. She was concerned that Adv Lambinon had referred to 'draft' and not 'transitional' Regulations. If they were 'draft' Regulations then they could be commented on, while transitional arrangements needed no input.
Mr Skhosana, concerned that the Committee might be arguing about points the Court had ruled on, asked that the Department provide a detailed account of what the Court rejected. He proposed that the Committee adjourn and allow the Department, with the State Law Advisors, to prepare a response based on the Committee discussion and the Court ruling.
Ms Oliphant agreed that the Department should go back and redraft the Regulations. She raised the issue of the regions in the Regulations when it had been decided that these should fall away when the Clause was rejected.
Mr Sikhakhane also stated that he would like an explanation of the inclusion of regions in the Regulations when they were excluded in the Act.
The Chair suggested that the Committee have another meeting where they invite the State Law Advisors and the Department to brief them. It seemed to her that Sections 7 and 52 were not properly followed. She also wanted the Department to brief the Committee on the Court ruling.
Mr Chauke agreed with the Chair's suggestion.
Ms Maphisa-Ngqakula suggested that the Committee identify all areas of the Regulations inconsistent with the Act and put these in writing so the Department are adequately prepared and able to clarify and respond at the next meeting.
The Chair proposed that Ms Maphisa-Ngqakula's suggestion be adopted and that written submissions be sent to the Clerk. The deadline for submissions was set at Friday, 21 February 2003 at noon. The Chair also requested that the Department brief the Committee on the Court ruling.
Adv Lambinon noted that it was important that the Department have sufficient time to respond to Members' written submissions. He repeated that the Court's ruling was only on the matter of the Presidential Proclamation not being gazetted; the ruling said nothing on the substance of the Regulations. Regulations were never a final document and even when the Board was constituted and Section 7 took force, the process of developing the Regulations would be ongoing.
Mr Pretorius wondered if the next meeting would go ahead if the Department needed more time.
Mr Chauke responded that the Department will be able to get answers in time with all the advisors at its disposal.
Ms Van Wyk agreed that the Committee should meet, especially since there was a deadline in place for submissions.
Public Participation Challenge to Regulations
Mr Grobler wondered about the possibility of the public participation challenge to the Regulations succeeding.
Adv Lambinon responded that with the adoption of the Constitution and a rights-centred system, it was inevitable that the Department would be subjected to many legal challenges, given the Department's involvement in so many areas of human concern. Litigation was part of the daily routine. Regarding Mr Grobler's question, the Proclamation was to be gazetted and then the Regulations will be challenged in Court. He saw this as normal practice. The Department followed legal advice on the Regulations.
The Chair raised the question of the costs of litigation.
A Member noted that the Judge had ruled that the Regulations were not in line with the Act.
Adv Lambinon said that the issue of the budget was a grave concern but that the Department had no choice about the litigation - when challenged they had either to concede or defend their case. He thought this was fundamental and good for the rule of law and democracy. The Court had not ruled that the Regulations were in contradiction with the Act.
The Chair thanked the Committee and Department Officials and the meeting was adjourned.