Immigration Regulations: discussion

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
4 March 2003
IMMIGRATION REGULATIONS: DISCUSSION

Acting Chairperson: Ms Maunye (ANC)

Documents handed out:
Legislative Programme for 2003 (Appendix 1)
State Law Advisor's Opinion on the procedure for making regulations to the Immigration Act (Appendix 2)
Letter from Prince NE Zulu (IFP) to Chairperson of the Home Affairs Committee (document will be available here shortly)

SUMMARY
The Committee resolved to invite the Department for a briefing on the legislative programme for 2003. The Committee discussed a letter from Prince N Zulu (IFP) to the Acting Chair. He was not satisfied with the reasons given by for their objections to regions in Regulation 14, especially since other Departments were similarly organised.

The Committee raised concerns about possible inconsistencies between the Immigration Regulations and the Immigration Act. They resolved to submit these concerns to the State Law Advisor for an opinion. Their concerns and the State Law Advisor's opinion would then be sent to the Speaker and to the Department.

MINUTES
Legislative Programme for 2003
The Committee resolved to invite the Department to brief them on the items on the legislative programme for 2003 and on how long it would be before the Bills were sent to the Committee.

Letter from Prince Zulu
Ms M Maunye (Acting Chair, ANC) advised the Committee that she had received a letter from Prince N Zulu (IFP). Prince Zulu stated that he was not satisfied with the reasons given by Members of the Committee for their objections to regions in Regulation 14, especially since other Departments were similarly organised. (See attached document.)

Mr W Sikhakhane (ANC) said that comparisons with other Departments were irrelevant to the concern. The problem was that when the Bill was discussed, the Clause referring to the regions had been removed, so the Regulation does not refer to any provision in the Act.

Prince Zulu replied that if Mr Sikhakhane was right, then the question was: why was the Clause referring to regions expunged from the Bill when other Departments have this structure?

Ms A van Wyk (UDM) responded that the Clause was removed because the Department wanted to restructure itself, adding new regions, through the Immigration Bill. Such restructuring ought to be dealt with separately, taking into account the Public Service Act.

The Acting Chair ended the discussion of the letter since the Committee had already discussed the issues when it considered the Immigration Bill.

Prince Zulu thanked the Acting Chair for allowing the discussion of his letter, stating that this had not been allowed in other Committees of which he was a member.

Immigration Regulations: Discussion
The Acting Chair proposed that the Committee raise their concerns with the Regulations, come up with a resolution based on these concerns and take this to the Speaker to report their dissatisfaction.

Mr Sikhakhane proposed that the Committee compile their concerns into a document and submit this to the Speaker. The duty of the Committee was simply to highlight concerns with the Regulations.

Ms Van Wyk proposed that the State Law Advisor's opinion be included in the document sent to the Speaker. She highlighted her concern that the Regulations seemed very comprehensive for a set of interim Regulations, making it appear that the intention was that they be the final Regulations.

The Committee agreed that the document, including the Committee's concerns and the State Law Advisor's opinion, be sent to the Speaker.

Lack of Legal Expert Present
Mr I Pretorius (NNP) was concerned that the Committee would be raising concerns without proper legal advice or debate.

The Acting Chair responded that the State Law Advisor was required at another Committee meeting, so could not attend. She had not invited the Department to attend the meeting since this did not seem necessary.

Mr M Kalako (ANC) stated that the matter could not be left to the Department and State Law Advisor to resolve. It was the duty of the Committee to highlight inconsistencies, not the duty of the State Law Advisor.

The Committee agreed to continue with the process of raising concerns.

Concerns regarding Immigration Regulations
Regulation 15: Powers of the Immigration Advisory Board
Ms Van Wyk noted that the powers of the Board in Regulation 15 were more extensive than those given to the Board in Section 5 of the Act.

Mr Pretorius responded that the Committee could not say that the powers in Regulation 15 were more extensive than those in Section 5 of the Act, since there was no legal expert present to confirm this view. He proposed that the Committee merely 'allege' that there is an inconsistency. He cited the example of the regions where the Committee objected and the Acting Director General explained that the Department has the power to restructure itself.

Mr M Waters (DP) agreed that expert advice was needed. If it continued without advice, the Committee would have to repeat the exercise with the State Law Advisor present.

Mr Kalako responded that the Committee could not use the term 'allege' when expressing its opinion on this matter. Non-lawyers could express legal opinions.

Mr I Mfundisi (UCDP) suggested that Regulation 15 implements Section 4(6) of the Act, which allows the Board to establish and operate through committees to carry out its functions.

Ms Van Wyk responded that Section 5 is clear on the functions. She cited the following differences: Regulation 15 refers to 'standing committees', while Section 4(6) refers to 'committees' as and when needed. Regulation 15 speaks of 'Investigation and enforcement' as a function of the Board, which seemed a police service function. The Department had been present at meetings of the Committee for three weeks running and had not addressed any of this adequately.

The Acting Chair said that Ms Van Wyk's concerns would be forwarded to the State Law Advisor for advice.

Mr Pretorius requested that all concerns also be sent to Adv Lambinon (Acting Director General) so that the Department and the State Law Advisor could liase on the matter.

Regulation 10(2)(a)&(b): Waiver of visa requirements
Mr Kalako referred to the exemption from visa requirements allowed under Regulation 10(2). The exemption allows foreigners ordinarily requiring a visa to submit to examination and if successful to be permitted entry on payment of a fee of R800 and of a deposit of R14 000. The Act did not provide for such a waiver. The waiver provided an opening for corruption if there were no checks.

Regulation 1(c): Definition of the Department, including reference to regions
Mr Mfundisi was concerned about Regulation 1(c), which referred to Regulation 14.

Chief K Morwamoche (ANC) agreed that Regulation 1(c) referred to a regional structure not provided for by the Act.

Schedule C: Taiwan
Mr Skhosana raised the matter of the reference to Taiwan in Schedule C, where 'Republic of China' was included in brackets after 'Taiwan'. He did not think that anyone would confuse Taiwan with China.

Reciprocal Visa arrangements
Chief P Mathebe (ANC) asked why visas were not required for citizens of all countries that required visas for South Africans to visit.

Mr Sikhakhane asked if this question belonged to the Committee or was a political question.

The Acting Chair said that it was not a matter to be decided by the Committee, but Members could express concerns on the matter.

Regulation 11(2)(a)&(b): Additional fees charged by Department
Mr Kalako raised the matter of the high additional fees charged if applicants did not go through a Chartered Accountant. The Act did not require these fees and they should be reconsidered.

Mr Skhosana said that the concern was first whether the Department was supposed to charge additional fees. If it was, then they were too high, otherwise they should be scrapped. He reminded the Committee of the issue with the Immigration Act possibly being a money bill.

Regulation 26(2): Old Age Homes as medical facilities
Ms M Buthelezi-Oliphant (ANC) raised the matter of old age homes being included as medical facilities for the purposes of medical treatment permits.

Mr Pretorius suggested that they were included to allow for temporary residence in old age homes by frail elderly persons.

Chief Morwamoche added that some old age homes were also hospitals.

The Acting Chair proposed and the Committee agreed that this concern not be noted in the document to be compiled.

Regulation 13: Budgetary implications of appointment of SAPS or SARS officials as port managers
Ms Van Wyk raised the power, under Regulation 13(1), of the Department to appoint members of the South African Revenue Service or of the South African Police Service as port managers. She was concerned that this might affect the budgets of other Departments.

Mr Mfundisi responded that Regulation 13 was intended to cover small ports of entry so that, for example, the senior police official in such small ports could also serve as the port manager.

Ms Van Wyk agreed with Mr Mfundisi's view of Regulation 13 - her concern was simply with the possibly budgetary implications for other Departments.

Regulation 28(3): Training fee
Mr Kalako raised the matter of the training fee to be paid by the employer of a foreigner issued a quota work permit. The Act did not provide for a training fee.

Ms Van Wyk added that it was this fee or levy that appeared to make the Bill a money Bill.

Mr Pretorius stated that the fees and levies in the Regulations should be revisited in the light of complaints about these by business and persons concerned about the retired persons permit.

Schedule A, item 19: Quota permits
Mr Pretorius raised the issue of the quota permits. The Minister of Trade and Industry had expressed concerns about these permits.

Mr Sikhakhane responded that the Minister had failed to make a submission to the NCOP on this. He agreed that it was a matter of concern, but it could not be dealt with in the Regulations.

Procedure: submission of concerns to Speaker
The Acting Chair proposed that the collated concerns be sent to the State Law Advisor for comment and then to the Speaker.

Mr Lekgoro proposed that whatever was sent to Parliament must have been voted on by the Committee. A vote should be taken Regulation by Regulation.

Ms Van Wyk responded that the Committee was not voting on the Regulations but was raising concerns. She proposed and the Committee agreed that the State Law Advisor's opinion be included in the document.

The Committee agreed to send the document to the State Law Advisor and then to the Speaker, that copies should be circulated to Members of the Committee and a copy sent to the Department.

The meeting was adjourned.

Appendix 1:
LEGISLATIVE PROGRAMME FOR 2003: DEPARTMENT OF HOME AFFAIRS

The Department intends submitting the following Bills by April 2003:

1. Identification Amendment Bill

The Bill introduces the issue of electronic data capturing and verification, in view of the new Home Affairs National Identification system. The Bill is extremely urgent as the initial phase of HANIS is already being implemented. Furthermore it will enhance the effectiveness of identification of citizens, which is one of the main functions of this Department.

It is envisaged that this Bill will be presented to Cabinet in February 2003.

2. Films and Publications Amendment Bill

This Bill aims to address the regulation of child pornography on the Internet as well as providing for prosecution of guilty parties in this regard. This Bill is extremely urgent as the Department has in terms of the Films and Publications Act, an objective of regulating these. The increased incidence of child pornography on the Internet demands this amendment urgently.

It is envisaged that this Bill will be presented to Cabinet in April 2003.

3. Marriage Amendment Bill

The Bill aims to repeal the Marriage Act 25 of 1961, whose provisions are mostly obsolete. The Bill is urgent as the Department needs to urgently put measures to control the problem of fraudulent marriages and marriages of convenience (so-called scam marriages).

It is envisaged that this Bill will be presented to Cabinet in April 2003.

4. Electoral Systems Bill

A Bill will has to be drafted in order to regulate the general elections, as presently there is no law in this regard. The next general elections are due in 2004 and therefore an Electoral Act must be passed well before the elections.

This makes the Bill urgent. The Department has as one of its objectives to ensure that the legislative framework to run the elections, is in place.

It is envisaged that this Bill will be presented to Cabinet in June 2003.

5. Alteration of Sex Description and Sex Status Bill

The Bill aims to provide legal mechanism in terms of which any person who has undergone a sex change operation could apply to the Director-General of the Department of Home Affairs for the alteration of his or her sex description in the National Population Register. Sex change is a reality, which should be accorded legal recognition. This has been supported by the Law Commission's recommendations.

It is envisaged that this Bill will be presented to Cabinet in April 2003.

MARRIAGE AMENDMENT BILL

The proposed amendments to the current Marriage Act came about as a result of an investigation and research conducted by the South African Law Commission.

Most of the amendments may be regarded as cosmetic in the sense that certain obsolete words are to be repealed in accordance with our current political dispensation. These are words like Commissioner, solemnization, Union of South Africa, province of the Union and reference to different population groups.

The Amendment Bill also seeks to provide for the appointment of South African diplomats abroad as ex officio marriage officers for purposes of conducting marriages in foreign missions.

The Bill also deals with situations where there is a change in the name of a religious denomination where a marriage officer was appointed under the previous name and further provides for situations where there is an amalgamation of various religious denominations.

The Bill further provides for new mechanism for lodging objections to marriages by providing that same should be made in writing to the marriage officer at least 24 hours before the actual marriage is conducted.

A standard marriage formula is also envisaged so as to have uniformity in the conduct of marriages.

In line with the constitutional provisions, the minimum age of entering into a marriage is set at 18 years for both males and females thus doing away with the gender stereotypes of the past.

In an effort to curb corruption, the requirements of identification are sort to be amended by requiring positive identification and/or an affidavit attested to in the presence of an official of the Department of Home Affairs.

FILMS AND PUBLICATIONS AMENDMENT BILL

With the escalating rate of child pornography and related cyber crimes and almost low conviction rate in the prosecution of these sort of crimes, it became important to revisit the provisions of the Films and Publications Act with a view of addressing some of these concerns.

The Amendment Bill seeks to prohibit child pornography through the use of internet and places a duty upon internet service providers to take necessary steps to prevent access to pornographic material by children.

It further deletes certain provisions, which made prosecution difficult and further introduces wider definitions of certain words and phrases so as to be more effective.

The Amendment Bill also deletes the provision requiring a warrant of search to be signed by the Attorney-General before a particular building can be searched.

It further provides that the creation, production, possession and distribution of child pornography be punishable as an offence.

In conclusion, the Bill also grants more powers to the Films and Publication Board to make regulations so as to effectively police child pornography and related crimes.

IDENTIFICATION AMENDMENT BILL

The proposed amendment to the Identification Act came as a result of the envisaged introduction of the Home Affairs National Identification System (HANIS).

The Bill seeks to make provision for fingerprint verification process whereby other national departments and various commercial institutions like banks and building societies will make use of the Department's information as stored in the central server instrument which will then be communicated electronically to any requesting client department or institution.

It is envisaged that the fingerprint verification process will help the Departments of Social Services, Labour and Housing to reduce fraud in providing services to their clients.

ALTERATION OF SEX DESCRIPTION AND SEX STATUS BILL

The proposed introduction of this Bill follows the recommendations of the South African Law Commission presented to government during 1995.

The Bill seeks to make provision for any person who has undergone a sex change

operation by either surgery or medical treatment to apply to the Director-General of

Home Affairs for the alteration of his or her sex description in the National Population

Register.

Appendix 2:
OPINION BY STATE LAW ADVISOR:
PROCEDURE FOR MAKING REGULATIONS IN TERMS OF THE IMMIGRATION ACT, 2002

1

I have been asked for my opinion on the procedure followed by the Department of Home Affairs in making the regulations published on 21 February 2003 by Government Notice 487 of 2003.

2.

The regulations are stated to have been made by the Minister of Home Affairs in terms of section 52 read with section 51 of the Immigration Act, 2002 (Act No.13 of 2002). Those sections provide as follows (as far as they are relevant to this opinion):

"Transitional definitions

51. In respect of sections 52 and 53 the following additional or different definitions shall apply, unless the context requires otherwise:

(i) 'prescribe' means to provide through regulations and 'prescribed' has a corresponding meaning;

(ii)'previous Act'

(iii)'published' means published in the Government Gazette; and

(iv) 'regulations' means both general and specific rules adopted by the Minister and published.

Functions of Department and Board

52. (1) Until the Board is duly constituted and operational, any regulation required in terms of this Act shall be prescribed. (Note not required "in order to make the Act work" or anything similar but required "in terms of' the Act)

(2)

(3)The Board shall be convened within 90 days of the coming into force of this Act."

3

It will be seen from the above that section 52 empowers the Minister to adopt and publish both general and specific rules required in terms of the Act. The fact that these sections are contained in the transitional provisions of the Act and that they provide for a more streamlined procedure for making subordinate legislation than that provided for by section 7 of the Act leads us to conclude that -

4

In order to be able to say with certainty whether the regulations in question comply with the criteria contained in paragraph 3(a) one would have to go through each provision and test it against those criteria, a task that is beyond the scope of the present opinion.

5

What does concern me however, is that from a preliminary reading of the regulations in question there does not seem to be any indication that the regulations are meant to be of a transitory nature. Indeed, regulation 1(2) and the comprehensive nature of the regulations tend to indicate the opposite. If this is so, one wonders what is left to regulate in terms of the procedure established by section 7 once the Board is in place. It seems to me that the legislature would not have established the elaborate and transparent procedure for making regulations in terms of section 7 if it meant to allow the Department to make the bulk of the regulations by means of the procedure envisaged in sections 5l and 52.1 fear that a court would come to the same conclusion if the regulations were to be challenged.

6

In order to avoid a challenge on those grounds the Department might like to consider the addition to regulation 51(2) of words to the following effect:

"...and shall cease to be of any force and effect 120 days after date on which the Immigration Advisory Board holds its first meeting unless the Regulations are ratified, within that period of 120 days, by means of a regulation contemplated in section 7 of the Act.".

7

I trust that this answers the Committee's concerns but if any clarification is required I shall try to oblige.

DATED AT CAPE TOWN THIS 25THDAY OF FEBRUARY 2002.

O.B. KELLNER

Principal State Law Adviser