Work permits for foreign nationals: Home Affairs & Department of Labour; Labour Laws Amendment Private Members Bill: inputs

Meeting report

The Chairperson stated that Parliamentary Legal Advisor would brief them on the procedure to be followed in processing a Private Member’s Bill; as Members they would only be listening and then deliberate in next meeting. The Committee was not engaging on the Bill at this meeting. The Committee could only engage once Members had taken a decision on how to deal with the Bill. Each Member could bring an opinion. It would only be then that the Committee would be in a position to comment. The Committee’s opinion of the Bill had not been discussed. The procedure was to listen to the presentations and process these then later sit and decide how they would deal with the Bill. There would be time to engage but not at this meeting.

The Chairperson spoke to the departments, saying the Department of Home Affairs would lead the presentation. The Committee wanted to understand how they work. The Committee had visited farms in Mpumalanga and realised that there were farms where most of the workers were from neighbouring countries, especially Mozambique. Most of the workers had permits that had expired. When they explained how they got the right permit, there was a story that the Committee could not understand. However, the fact that the farms were flooded by people from outside, was a concern, because the work done on the farms was not a scarce skill. The Committee needed to understand the problems. How was it there was a battalion of workers coming from neighbouring countries, working on the farms, and some without permits, sometimes for years. On those farms where they were in the majority, the farm bosses did not want the Committee to interact with the workers.

That work was the work of both departments, in terms of how the foreigners get in and stay in the country for so many years. It was also concerning that South African farms were flooded with foreigners when the skills were here and available in the country. The Committee wanted to know the role of each department, their predicaments, where they stood and when last they visited and checked. It was easy for Home Affairs to go in and check who was in the country illegally because it was their responsibility to do so.

Legislative Processing of a Private Member’s Bill
Ms Desiree Swart, Parliamentary Legal Advisor, said she was from Parliament’s Legal Services in the legislative drafting unit. The office assists Private Members with the drafting of legislation. The Members told the office what they wanted to do and the policies behind the Bill, and the office made sure it was in the format of a Bill. The office did not promote any policy or any decision but merely gave drafting and legal assistance to Members. She assisted the Member with the drafting of this Bill. The latest Private Member’s Bill procedure was fairly new to Parliament. These rules were set out in the Rules of Parliament.

The rules which guided the process of Private Member’s Bills, was called the Interim Measures for the Introduction and Consideration of Private Member’s Bills. These rules were tabled on 20 November 2012. The rules were drafted after the judgment in the Constitutional Court case in Ambrosini vs Speaker of National Assembly. The issue challenged was the fact that the rules required Members to go to the Speaker to request permission to introduce a Private Member’s Bill. The Constitutional Court stated that it was in the Constitution, Private Members did not need permission from Speaker. So the new rules were then drafted. The new rules would be filed in the National Assembly Rules, just after Rule 233; they did not have a number yet.

The authority of a Private Member to introduce a Bill was derived from s73 of the Constitution. It states that a Member of National Assembly could introduce a Bill. There were qualifications upon which Bills Members could not introduce, which were mainly money Bills. Then the rules further give limitations to Private Members in that if there was a Bill of similar substance introduced previously in that annual session, then that Member may be prevented from introducing the Bill. Those were the only two limitations in place.

At the pre-introduction stage - which what the Member had to do in order to get the Bill before Parliament - the rules require that the Bill comply with all the formal requirements, in other words it must be in the format of a Bill, must have a memorandum and must address specific issues. Those rules were set out in rule 237 and 241. If it was a Bill that sought to amend the Constitution, it had to comply with formal requirements set out in rule 258. According to this rule, the Member had to publish an explanatory memo of the Bill, or the Bill was to be introduced in the Government Gazette. The publication could contain an invitation to the public to comment on the Bill. Those comments had to be submitted to the Secretary of Parliament. The Secretary of Parliament was also liable for the costs of that publication. At this stage, these formalities had already been complied with for the Bill before the Committee.

Thereafter, only once these requirements had been met, could the Member approach the House to introduce the Bill. At the introduction stage, Member had to give a copy of the Bill, or if it was published in the Government Gazette, a copy of the Gazette, a copy of the Bill itself, a copy of the explanatory memo, and a supporting memorandum which explained the objects of the Bill, it had to give an account of the expected financial implications for the State and stated the proposed classification of the Bill.

The introduction of the Bill was then published in the parliamentary papers, Announcements Tablings and Committee Reports (ATC), and it was deemed that the Bill had been introduced in the House. Thereafter, the House could refer the Bill to the Committee for consideration, which was where the Bill was now.

The next slide dealt with how the Committee was to deal with the Bill. The Interim Measures provided that the Committee must provide reasonable notice to the Member in charge of the Bill before it considers the legislation, and after due deliberations considers a motion of desirability on the subject matter of the Bill. The reasonable notice was usually for the Member to have sufficient time to brief the Committee on the Bill. The Committee’s initial consideration of the Private Member’s Bill was intended to be on the principle or subject matter of the Bill, in other words, whether it was desirable. It was not on every specific detail of the Bill. That was done only after the Committee had decided whether they had wanted to proceed with the Bill.

The rules speak of due deliberation, but the rules did not provide guidance on what due deliberations were. What the legislative drafting unit had done was look at past practice relating to Private Member’s Bills that had been before Committees, and based on that Ms Swart had formulated guidance for the Committee on how they could go about considering it.

Firstly, it would be expected of the Committee to allow the Member responsible for the Bill an opportunity to explain and motivate for the legislation. This could include details of stakeholders consulted in preparation of the Bill, a summary of public responses to the published Bill, an explanation of the anticipated costs of the Bill to the State. It was also expected of the Committee to engage with the relevant department or agency on the need for and practicality of the Bill. It may be that government intended introducing similar legislation in the near future or a policy direction may be different from the policy of government. It was basically an audit for the Committee to inform its decision to have the Bill. The department would be responsible for the Bill should the Committee decide to proceed with it, so it was best to hear their side as well. The policy may not fit in with their policy therefore it was better to get feedback from the department as well.

The Committee may also decide to have public hearings for those who had made submissions on the Bill when it was initially published in the Government Gazette. It may at the same time invite any other interested parties to make submissions.

Further guidance on what to take into account when considering the desirability of the Bill could be taken from Rule 235A of the 7th edition of the Rules of the National Assembly. Ms Swart conceded that the Constitutional Court case in Ambrosini vs Speaker of National Assembly, declared this rule invalid and severed it in its entirety. However, the Court did state that the rule declared invalid, was only meaningless because it had its existence from a rule above, and that rule the court declared invalid. In other words, the Court stated that rule was to be declared invalid because it was consequential on another rule. However, at that stage, the Court did say that it was not to be considered that its judgment was a pronouncement on the constitutionality of it. It was her view, that the guidance set out in the previous rules could still be used by the Committee, because the Court had not made a pronouncement on it. Previously the rules were much clearer as to what the Committee could take into consideration when considering its motion for desirability. The previous rule stated that the Committee could decide whether the Bill went against the spirit and purport and object of the Constitution, seeks to initiate legislation beyond the legislative competence of the Assembly, duplicates any existing legislation that is awaiting consideration by the Assembly of Council, pre-empts similar legislation to be introduced by the National Executive or results in a money Bill or is frivolous or vexatious. These were all things the Committee could consider when deciding.

The Committee then proceed to the motion of desirability. If the motion was rejected and the Committee felt it did not want the Bill, the Committee had to report that decision to the House. If the Committee decided it wanted the Bill, it would then proceed like any other Bill. It would call for wider public engagement, then it would interrogate every clause of the Bill to see if that was what the Committee wanted. It would then report on the Bill to the House.

Department of Labour’s presentation regarding Private Member’s Bill
Mr Sam Morotoba, Deputy-Director General: Public Employment Services, introduced Mr Virgil Seafield Deputy Director-General: Labour Policy and Industrial Relations  and Mr Thembinkosi Mkalipi Chief Director: Labour Relations who are the negotiators at National Economic Development and Labour Council (NEDLAC). He apologised on behalf of the UIF commissioners but introduced officials from the Unemployment Insurance Fund. Ms T Puzi UIF Chief Financial Officer, Mr H Mhlongo UIF Corporate Services Chief Director and Ms E Tloane, UIF Chief Director, who were here as the Private Member’s Bill affected their areas.

Mr Mkalipi stated that the Bill was presented at NEDLAC by the African Christian Democratic Party in terms of s73 of Constitution. The Member complied with the NEDLAC Act, according to which NEDLAC was to deal with all proposed labour legislation relating to labour market policy.

The Bill proposed to amend the Basic Conditions of Employment Act to provide for parental leave, that being 10 consecutive days leave when a child is born and when a child is adopted. The Bill proposed adoption leave of 10 consecutive weeks or 10 days parental leave for adoption of a child, if the adoption order was made in respect of two adoptive parents. The Bill proposed commissioned parental leave for 10 consecutive weeks or 10 days parental leave on the day the child is born as a result of a surrogate motherhood or agreement.

The proposed Amendment Bill sought, as indicated, to provide parental leave, adoptive leave and commissioned parental leave, as well as payment from the Unemployment insurance Fund in relation to commissioned parental leave.

Presently, the Basic Conditions of Employment Act provides for maternity leave on an unpaid basis with payment being made from the applicant’s credit in the Unemployment Insurance Fund. The second provision by the Basic Conditions of Employment Act was termed family responsibility leave. This leave was for full time employees, who were entitled to three days full pay leave when a child is born, when a child is sick, a father could use it as paternity leave. It could be taken by spouse, life partner, parent, adoptive parent, grandparent, children and siblings.

The Basic Conditions of Employment Act, at this point, did not make provision for adoption leave or commissioned parental leave, nor does it make provision for paternal leave.

In the NEDLAC process in 2001, when amending the Unemployment Insurance Act, which was passed by the Committee, the issue of maternity leave and adoption and accrual of funds from the Fund were raised.

There was a judgment from the Durban Labour Court given against a Skills Education Training Authority (SETA) for refusing to grant a gay man four months maternity leave on the basis that he was not the biological mother of the child. The Court found that it was unfair discrimination to refuse gay men maternity leave who had become parents through surrogacy. The Court stated that this approach to not give this leave was to ignore the maternity leave granted in the Basic Conditions of Employment Act and in the current circumstances, this was not linked solely on the welfare of the mother, but also the child’s best interests were being taken into account. The Court, in NEDLAC’s opinion, had dealt with the issue of surrogacy. There was a court decision stating that one did not have to be the biological mother of the child; it had extended the rights of the Basic Conditions of Employment Act and the Unemployment Insurance Act.

The only issue then, was that of paternity leave. The Bill at NEDLAC was dealt with in three meetings, on 15 May 2015, 25 January 2016 and 27 January 2016. The Member who had proposed the Bill was invited into the private deliberations at NEDLAC, to brief NEDLAC about the Bill itself. Initially there was confusion as to how to deal with this. Normally, NEDLAC deals with policy intervention of government, it would be Government that puts in the proposal and NEDLAC discusses it. Thus there was some confusion as to how best to deal with the Bill since it had not been introduced by a government department. After discussion in the management meeting, it was agreed to continue with the Bill and deliberate on it.

In the NEDLAC process, during the Unemployment Insurance Fund Amendment Bill (currently before Parliament) dealt with at NEDLAC, it was agreed that after 18 months after the Bill had been functioning, NEDLAC would have to return, relook at the issues that were not finalised at NEDLAC.  

An issue from the UIF Amendment Bill was that of resignation. The law presently stated that if one resigned one did not get paid UIF. One was only paid from the Unemployment Insurance Fund if dismissed, absconded or retrenched. The issue was to try to avoid the unintended consequences of resignations. The fear was that people would resign just to get paid out. There was, however, a big demand to deal with that issue during negotiations.

The other issue that needed to be dealt with was fixed term and seasonal contracts and informal employment - those people who were self-employed. For example, people selling fruit and vegetables were not normally employed by employers. There was a demand that UIF should be catering for that. How that would be possible was still to be debated 18 months after the UIF Amendment Bill came into operation.

The next issue was the alignment between the Unemployment Insurance Fund and social security policies that government intended to introduce so that they spoke to each other.

The inclusion of asylum seekers into the Unemployment Insurance Fund was also an issue; how to include them and make sure that they could benefit out of the process.

Another issue which NEDLAC had to deal with was short time. Presently, during economic difficulties, if employers placed workers on short-time, they were not technically dismissed. In the legislation, before 1994, there was provision that if workers were on short-time, workers could claim from the Fund during that time. However, in the new legislation, that was taken out of the legislation. This is an issue that needs to be discussed again.

As a result of that engagement, the Commission and Unemployment Insurance Fund were busy with an affordability study to analyse those issues because when amending the Unemployment Insurance Act, it had to be ensured that the Fund could manage financially. With the changes that were to come, NEDLAC was worried that if they did not wait and see how it affected the Fund and immediately introduce these changes, chances were it may affect the Fund negatively. He concluded that at NEDLAC, there was no in principle disagreement about dealing with these issues pending the affordability study in terms of the Fund. The proposals in the Private Members Bill had been referred along with the NEDLAC issues to the Unemployment Insurance Fund. The commission was busy with an actuarial evaluation to check the costs effect of these items on the Fund.

The other issue that NEDLAC wanted to raise, was that they were currently busy with the discussion on the minimum wage and stability of the labour market. Those two discussions were going to necessitate an amendment to the Basic Conditions of Employment Act and the  Labour Relations Act. The view at NEDLAC was that it may not be desirable to amend repeatedly. To make proposals now relating to the Basic Conditions of Employment Act and make more proposals three months down the line when finalising minimum wage negotiations at NEDLAC seemed cumbersome. The view was that when doing an amendment to an Act, it had to be a holistic amendment and include all these issues. When the commission had looked at the amendments NEDLAC is proposing and the amendments the Private Member’s Bill was proposing and everyone was sure of the cost implications, then all the legislation would be dealt with. There was no principle objections on all the issues, including those in the Private Member’s Bill. it was only about affordability of proposals and the timing of when to make the proposals.

Discussion
Mr M Bagraim (DA) was worried in that Mr Mkalipi had stated that they wanted to do composite discussions, which was the opportune thing to do, in order to not keep having to rushing to Parliament. However, it was his understanding that they were still a long way off from assessment of the minimum wage, what it would be and who would determine it, it could all take years. Unless, they had a sunset clause in mind, and if so, maybe they could share it with the Committee.

The Chairperson thought that whether the Committee decided to follow the route that NEDLAC was going or if they decided to take another route, it was something the Committee had to decide upon. It was not something to discuss at this meeting. As she had said previously, fortunately, NEDLAC was telling the Committee what they were thinking and their view on the Private Member’s Bill. Now it was on the shoulders of the Committee to discuss whether they agreed or whether they wanted the Bill. So those were things that would be discussed as a Committee. She suggested that at the stage, the Committee should keep what was said and then meet to decide. They had gone through all the processes outlined by the Legal Advisor – called the Member who drafted the Bill, the submissions had been sent to Parliament, the Committee secretary had given them to the Committee. At this stage they were on the right track. The question was not wrong, but they should rather discuss and find the way forward. Asking this now, was suggesting they wanted the Bill but did not want this route. The Committee had to discuss whether they wanted to wait for NEDLAC, want to deal with it now, do they want the Bill – the Committee was not yet there.

Mr Bagraim stated that he was aware they had not made a decision and that a decision would be made at some stage but he was asking what the current thinking of NEDLAC and the department’s thinking, which was what they were here to tell the Committee. What were they thinking in terms of timing because that may in turn influence the Committee’s thinking. If they thought the time was ripe for X,Y,Z, then maybe it would influence some of the Committee’s debate. NEDLAC proposed that it should be debated together, he was merely asking when.

The Chairperson stated that she understood Mr Bagraim’s question. She thought Mr Mkalipi had put forward what NEDLAC wanted to do. She did not think it was important to ask now. It would be important when the Committee took a decision. The Committee still needed to sit and make that decision. In deciding its way forward, they could decide to take the route suggested by NEDLAC, then NEDLAC could come back. The Committee now knew where NEDLAC was at in all the issues raised. If Committee was not aware, they could say so, but the Chairperson thought they were there. What Mr Mkalipi said on behalf of NEDLAC, was not going to influence their decision. Whether that was two months or two weeks, that was not something that needed to be decided now, the Committee first needed to decide its route and discuss everything that had been put before it.

Ms F Loliwe (ANC) agreed with the Chairperson that there were processes that needed to be followed in dealing with this matter. The onus was on the Committee to say they had taken a particular step and would be ready with the next step at a certain time. She wanted to reiterate that according to the programme of Parliament they would be there until 27 May 2016. Then it meant that as a Committee, having already adopted a programme, they had to look at that programme and see where to fit in this particular matter.

The Chairperson moved on to matters of immigration.

Department of Home Affairs (DHA) briefing on work permits and temporary visas
Mr Modiri Matthews, Chief Director: Immigration Inspectorate, gave apologies for the Deputy Director General who was currently on annual leave, and introduced Mr Ronnie Marhule, Acting Chief Director of Permits and Visas and Mr Phindiwe Mbhele, Director for Corporate Permits.

Mr Matthews spoke on the DHA mandate relating to the immigration policy as well as the legislative prescripts that govern the area of work permits and temporary visas for the purpose of work. The Immigration Act governed how immigration was performed in the Republic of South Africa, guided foreigners on how to gain entrance and residence in the country and their departure from the country. Matters connected therewith would be deportation and issues relating to how refugees would move over to the immigration regime if they were here permanently.

The Immigration Act provided for the following categories of temporary residence visas: Study, Treaty, Business, Crew Visas, Medical Treatment, Relatives, Work, Retired Person, Exchange and Asylum. The issuing of permanent residence permits entailed a foreigner entitled to reside in South Africa on a permanent basis, with all the rights and responsibilities and obligations of a South African citizen, except the right to vote. So a permanent resident gains all the rights of a South African citizen except the right to vote in elections or use of a South African passport. 

The legislative framework was governed by the Constitution, the Immigration Act, the related regulations as well as the Promotion of Administrative Justice Act. The Preamble of Immigration Act talks to residence and guided as to how to implement immigration control. It ensured interdepartmental coordination and public consultations were done to enrich the management of immigration. It also ensured economic growth was promoted through the employment of needed foreign labour; facilitation of foreign investment; enabled entry of exceptionally skilled or qualified persons so skilled human resources were increased, academic exchanges within the Southern African community; and promotion of tourism. The Preamble also spoke to the contribution of foreigners in the South African labour market, conducted in a manner which did not adversely impact on existing labour standards and the rights and expectations of existing South African workers. 

For a corporate permit, where a corporate needed a number of employees to work for it, a consultation process took place with the Departments of Labour and Trade and Industry. Through that consultation, the Director of Home Affairs determined the maximum number of foreigners to be employed in terms of a corporate Visa. The Ministers may after consultation with the Minister of Trade and Industry or Energy or the Minister of Labour designates certain industries or segments in respect of which the government may reduce the requirements in terms of subsection 2; that was the consultation process.

In addition, the representations made by the corporate applicant on the need to employ foreigners, their job descriptions, the number of permanent residents employed in their business and other matters had to be forwarded when they made their applications for corporate visas.

For a general work permit, the application had to be accompanied by a certificate from the Department of Labour or an estimate from the database of a salary benchmark in the organisation stipulating the average salary earned by others in similar positions in the Republic. It had to indicate that there had been a diligent search for a local worker, which resulted in no local being able to fill the post, therefore there was a need for a foreign national to fill the position.

Corporate visa applications had to be accompanied by proof of the need to employ the number of foreign nationals. So a person could not just apply for a certain number and think they could get that labour from neighbouring countries. There was a certificate from the Department of Labour confirming that there was a diligent search by the corporate applicant who was unable to find suitable persons locally to occupy the positions. They would also need to provide the job description and the proposed salary of each foreigner. It should not get to a point where a corporate could reduce the salary; it had to be in line with what a local would be paid.

The amendments to the Immigration Act which were done in 2011 spoke to the Director-General determining, in consultation with prescribed departments, the maximum number of foreigners to be employed in terms of a corporate visa.

General Work Visa applications are similar. They are accompanied by a certificate from the Department of Labour confirming that despite a diligent search, the prospective employer had been unable to find a suitable citizen or permanent resident with qualifications or skills and experience in line with the job offer. Salary and benefits would not be inferior to current citizens or permanent residents and the employment contract stipulating working conditions signed by both parties was in line with the labour standards in the Republic, and was made conditional upon a general work visa being issued.

The Department of Labour would forward the certificate to Home Affairs, the applicant would submit their application and Home Affairs would reconcile the two to see they match, and it also allows Home Affairs to adjudicate the work visa.

Business Visa application are from those who came into country to establish a business. There needed to be proof in terms of South African legislation, that at least 60% of the total staff complement employed in the core business operations were South African citizens or permanent residents.

An application for a business visa by a foreigner who intends to establish a business or invest in a business that was not yet established in the Republic, had to be accompanied by an undertaking by the applicant that at least 60% of the employees would be South Africans and permanent residents. Proof of such undertaking had to be submitted within 12 months of issuance of the visa.

The Department of Trade and Industry (DTI) responsibilities in terms of the Immigration Act and its amendments, was that the corporate visa needed to show proof of registration with the South African Revenue Service (SARS), Unemployment Insurance Fund, Compensation Fund for Occupation Injuries and Diseases, Companies and Intellectual Property Commission (CIPC), and that 60% of the total staff complement was South African nationals.

DTI’s responsibilities for business visas were similar. There was a requirement for a certificate from the Department regarding the feasibility of the business and its contributions to the national interests of the Republic. Businesses. For example, fast food businesses may not be considered in the national interest because there are many, rather businesses in the national interest would contribute towards major infrastructural development or other development and economic improvement and welfare of the country. There would also need for registration with SARS, the Unemployment Insurance Fund, Compensation for Occupational Injuries and Diseases, CIPC and financial statements in respect of the business and proof of investments as well.

On the present application management system, the Department of Home Affairs had contracted with Visa Facilitation Systems (VFS). Applicants either go to VFS if they were in the country or to the foreign missions offices to apply for visas of they were outside of the country. Where DHA was not represented in a foreign country, the application had to be to be submitted at the relevant diplomatic or consular offices. Permanent residence permits had to be lodged at the mission or VFS offices. If the Department had offices contracted to them in foreign countries, such as Nigeria, London, India - it was a similar process - the visa applications had to be submitted to those places.

If the application was done in country, the application would only accepted if the person was permanently resident in South Africa. If they were not permanently resident, they would be in the country illegally and so would report that person. Applicants, in the new regulations, did not allow someone to submit a visa application on behalf of someone else. It was allowed in the past where one could have an immigration agent coming to DHA with documentation and submit the application on behalf of someone else. Now the applicant had to be present themselves and having their biometrics taken, for security reasons. There was a lot of fraud and corruption with the old process. The new process had minimised the possibilities of fraud or other transgressions occurring because the applicants appeared themselves.

The process in terms of the Department of Trade and Industry and Department of Labour, was anticipated not to take more than 30 days before the applications were submitted to Home Affairs. The DTI and DOL would inform an applicant that their certificate had been submitted to Home Affairs. Then the applicant could apply to the Department of Home Affairs for the visa. The process would be for the applicant first to go to either DTI or DOL and apply for a corporate visa and say that they wanted to bring in corporate workers. The application would be processed by either of the departments, the applicant would be informed that their certificate had been forwarded to Home Affairs, and the applicant would then apply to Home Affairs.

Pressure points were discussed which related to the capacity to deal with the volumes of applications. Concerns with the standard operating procedures, inadequately trained staff and slow turnaround times, were some of the challenges faced by Home Affairs, that they were continually seeking to improve upon.

VFS offices in the country currently numbered 11 centres were applications could be lodged for visas, one in each province currently. There was also a specific office for corporate clients which had opened last year in Sandton. They were hoping to open two new ones soon.

In closing, Mr Matthews spoke to the recommendation process between the Departments of Trade and Industry, Labour and Home Affairs. They sought to limit the frequency of engagement between the applicant and the departments. Systems had been put in place to manage the process of recommendations. There was development of new standard operating procedures in line with the three departments: identify, prevent and eliminate potential risks such as corruption and fraudulent documents, using face value certificates with serial numbers that could be audited, these were some of the processes. They wanted to strengthen processes but also simplify them.

Mr Matthew answered the point raised by the Chairperson about the migrants coming into the country from neighbouring countries. There was 4000km of land border line, which was extensive, with about six neighbouring countries with many of those nationals being economic migrants looking for work here, having done so for a number of years. There was also an inspectorate unit which did inspections at businesses, farms and factories to ensure that people were here on a lawful basis. If not, Home Affairs would detain and prosecute, employers as well. Processes were in place for those that came in, however, there were extensive border lines, and it was not policed at every step. There were those who could choose to come in clandestinely, and that was why they had the inspectorate unit to deal with those people. This also led to a number of people being deported and most of them were deported to neighbouring countries.

Discussion
Mr M Bagraim (DA) thanked the Department of Home Affairs for their presentation. It had opened his eyes, the Committee now understood fully how it was done. Slide 4 spoke about economic growth promoted through needed foreign labour. In his constituency, it was his experience that this was absolutely correct. The reports he had had were that each time foreign labour was brought in, it created four to five local jobs. He was unsure of whether that was Home Affair’s experience as well, and that was why it was important to look at what the Department of Labour had suggested and how they moved from there. On slide 7, by saying that a foreigner cannot be paid less, because they could create some sort of benefit, in other words, invite in a foreigner and pay them less than a local. It worked the other way around as well. They could not be paid higher than a local as well when providing the same service. He hoped that was in the remit as well. It would be egregious to pay someone higher when they were doing the same work as a South African.

On slide 9, where the contract stipulated ‘conditional upon a general work visa being approved’, Mr Bagraim’s understanding was that once someone was given a letter of appointment, they can claim for unfair dismissal even before they have started work. So this ‘conditional on work visa’ may have to be tested.  Slide 10, speaking of 60% of the staff complement being South African, he presumed it was those employed in South Africa itself rather than elsewhere, although it was not stated in the presentation. On slide 12, the contribution to national interests in the country, was very wide. The most important thing in this country at the moment was job creation. That was a national interest, but job creation for South Africans as opposed to foreigners. It would have to be proven that giving a job to a foreigner would relate to extra jobs to locals. He presumed that would be in the national interest – he asked for comment. On the recommendation process on slide 14, Mr Bagraim believed that Home Affairs still had the final say as opposed to the other departments. If DOL stated they should be employing a particular foreigner because he had certain skills and it would lead to five other jobs, did Home Affairs second guess them, and if so were reasons provided for that, in other words could Home Affairs override Department of Labour?

Ms P Mantashe (ANC) stated that when the Committee visited Mpumalanga, they found a handful of migrant workers. The presentation states that before permits were granted for them to come into South Africa, many things were verified. She asked if Home Affairs had done this with these people, whether they had work contracts at the farms they working at, why was it that they replaced South Africans in those jobs. The work of a general farm labourer was not a scarce skill, so why were those migrants allowed permits to come into South Africa. She asked if Home Affairs had looked into compliance of these employers to the Basic Conditions of Employment Act before granting them their permits. Why was some of Home Affairs’ day-to-day work outsourced to VFS and had Home Affairs checked what amount VFS charged people applying for visas? What are those people doing now in Home Affairs offices that had previously been doing the work of the VFS?

Ms S Van Schalkwyk (ANC) appreciated the presentation, it was eye-opening and informative. Looking at slide 5, the Director-General was to determine the number of foreigners to be employed. She wanted to know whether there was a determination of the maximum number of employees that needed to be employed, and whether at any stage there was a monitoring mechanism in terms of ensuring that the maximum was not exceeded. How did Home Affairs determine that someone had reached the required amount and it was enough? When looking at the diligent search, and comparing what was said in terms of law and what was experienced on those farms, the Committee was talking about people who did not have skills. She asked if the diligent search was being performed for non-skilled workers as well. 

Looking at the 60% of staff complement being South African, she asked if there was a monitoring mechanism to ensure that companies were indeed complying with the 60%.

After granting the permit, because this was the crux of what the Committee established, the majority of those employees at some stage had permits, but then these expired. They told the Committee that they have since struggled to extend their permits or get permission to extend their employment. As a result, some of those people, and she was quoting one of the employees, were on those farms for more than 20 years. She asked how Home Affairs went about this situation. When applications were to expire, did Home Affairs not have a system or some way to track that? In terms of this specific month, these were the applications that had expired and these were the people they would be tracking. She believed that was the crux of the problem.

On the number of visa application centres, when looking at the vastness of some of the provinces, Ms Van Schalkwyk asked how Home Affairs determined how many centres per province was necessary. When looking at Gauteng, it was understandable. She compared Northern Cape, which was so vast, versus Western Cape, which had two centres. She asked the criteria for establishing those centres, what was the plan for increasing those centres or was there a need to even do so?

Ms Loliwe (ANC) welcomed the report. When the Committee was in Mpumalanga, they determined that many workers did not have work permits and her understanding was that even if DOL was picking up that they were illegally there, there was still a process that had to unfold for them to be dealt with by the immigration officers. She asked Home Affairs plan in dealing with this because she viewed it as a challenge. She noted Home Affairs issued work permits, but were there mechanisms to determine when those permits expired so that they then visited these workplaces. Was there a way of tracing expired visas other than unannounced searches, because what if those unannounced searches were only done quarterly and yet permits expire on a daily basis.

She requested a simpler interpretation of the information on slide 14, because arithmetically, if the application was with the DTI for 2 weeks, then to DOL for 30 days, and with Home Affairs for about 8 weeks. She asked if there was a greater possibility of waiting up to 3 months for one application to be processed.

Mr T Rawula (EFF) stated that what came out about farm workers was the inspectorate capacity. He wanted Home Affairs to comment on the inspectorate capacity. In most vulnerable sectors, was where one was likely to find people being deported because they did not have permits. The impression given then is that the only illegal foreigners, were those from neighbouring countries in Africa. He wanted to check because when you see the deportation centres, there were only Africans. Mostly because they were easily found in vulnerable sectors, even the police could check permits, and if there was no permit they could arrest you. The impression given was that the only illegal immigrants were those from Africa. In terms of the inspectorate, those from Europe would not be found in farms, taverns or vulnerable sectors, but the fact was that they were here. What mechanisms were used for finding rich people from Europe who may be here illegally because of expired visas, but were not black enough to show they did not belong in South Africa.

Ms Mantashe (ANC) said that according to their map, in the Eastern Cape there was only one centre for visa applications which was Port Elizabeth. The province was vast and people had to travel far to get the Port Elizabeth for visas. Someone travelling from Queenstown travelled 400km to Port Elizabeth. She asked the extent of the costs of going to this centre, and why was there only one centre in the Eastern Cape?

Mr Matthews responded to the questions about VFS. VFS’s role was a collection role, so they did not do the decision making on the visas. There may be centres where the applicant will do the submission of the application which only checks applications. So the applicant would go with their application form, passport and all necessary documentation and motivation for the particular permit. VFS mainly checked the documents were correct and gave the applicant the relevant information, and took the biometrics and photo. VFS then couriered that application to Home Affairs itself. So the decision of whether the person was entitled to the visa was still with Home Affairs. Those officials who dealt with visa applications in Home Affairs were still employed, there had not been any retrenchment by going the route of VFS.

Home Affairs was monitoring, they were in regular contact with VFS, their contract was monitored, they were within the department on all these matters. So Home Affairs had not outsourced to VFS where they took primary role on what the client actually required.

The decision in terms of numbers of centres was based on the number of applications received in each of the provinces. There were minimal applications in certain provinces for extension of visas. Gauteng and Western Cape had higher number of applications for extension of visas. In certain provinces the volume was very low. It was found that the actual service Home Affairs provided by its offices in those provinces was more aligned to some of Home Affair’s other work.

There was a period of a number of days before a person would apply for an extension of visa, and prior to VFS centres opening, Home Affairs was not doing visas in a number of offices. Only key offices had dealt with visas, so there had not been a lot of change in distance that needed to be travelled to apply for visas or do an extension. They would still need to go to the main or larger offices – that was what was done in the past. There had not been a drastic change, in terms of where a VFS office was being placed. So Home Affairs had not seen that that had had an impact, where clients were complaining of the distance.

In terms of the inspectorate capacity, it was acknowledged that Home Affairs did not have the same inspectorate capacity as in other countries. There were only 800 or so inspectors nationally, to do all the inspections and follow ups on visas that had expired. There were systems within the department where they could tell when someone had overstayed. The system could tell when someone arrived in the country and when they should have left. So Home Affairs had the overstayer list. Part of their role as the inspectorate was to monitor the overstayer list. There was a system of tracing and monitoring people, there was also monitoring of addresses given by that person and there were systems of communicating with other departments who had address databases in order to do that. So part of function of the inspectorate was to trace overstayers.

The majority of deportees, it was clear, if one looked at the statistics, was from three of the neighbouring countries. The inspectorate did deport wider. There were cases of internationals from outside of the SADC area and even outside of Africa, those from Asia and Europe. However, those would be minimal compared to the neighbouring countries and the economic migrants who had been coming here for years. It just made sense that they would be the majority that were found to be here illegally.

The 60% staff complement was for within South Africa. It was unlikely that Home Affairs would second guess the Department of Labour. If labour conditions were not complied with, Home Affairs would use that as a factor for refusal. A person could use that and submit an appeal because they were entitled to do so. They could say that the assessment by the DOL was not correct and provide reasons. In considering the appeal, Home Affairs would need confirmation of this. The appeal was allowed and provided for. The engagement between the departments was paramount.

The Chairperson said that Mr Matthews response to the question on tracking people who were in South Africa illegally, made it sound easy – Home Affairs knew where they were and when their permits were expiring. She wanted to talk about what the Committee had seen. Home Affairs needed to explain why there were a number of farm workers there under appalling conditions. The Committee had called in Home Affairs because they knew where DOL could intervene and where they would have obstacles. The farmers were very clear about that law, they knew it and used it to the letter. Then the Committee found out that the gap was from Home Affairs. For the Committee it was not only about the farms being flooded by foreigners but it was also about seeing the exploitation of those who did not have permits or were there illegally. They were vulnerable. If they give problems, the employer can threaten to call the police. DOL could not deal with the abuse that was there. If it was so easy, then those farms would have been cleared, because the animals were treated better than the human beings on those farms. She wanted Home Affairs to give them an official who would not be denied access and would have access to any document that they wanted to see, and to be told by Home Affairs that on those farms all was well.

Ms Mantashe stated that the response from Department was valueless. Mr Matthews said that the people in Home Affairs offices were still there, they were not there; she had been there. She was talking about what she had seen. The people of Queenstown say that the services of Home Affairs had been taken away from them. So anyone who wanted to renew a visa did not get service there. The policy of the ANC was to take the services closer to people. Was Port Elizabeth closer to the people of the northern region of the Eastern Cape? It was not. Services were not given to the people of Queenstown, they say that function had been taken away from them. It was not a joke.

Ms van Schalkwyk stated that Mr Matthews had indicated that they had an overstayer list, so she asked what was being done with that list, and could they perhaps give the statistics in terms of how big the problem was in terms of overstayers, and how much time was being granted before intervening.

Mr Matthews stated that Home Affairs took all of this very seriously. The inspectorate unit was not more than 800, and looking at the deportation rates for this year, they had deported more than 30 000 people. In previous years it had been higher. That was done with the small capacity they had, compared to international figures of a similar unit. There was nothing in the mandate of the inspectorate to prevent it from doing as the Member suggested, to go to a farm or a business to check permits. There was no such thing as a no go area. They were mandated to ensure that everyone in South Africa was here on a lawful basis. Home Affairs could give assurance that farms visited by the Committee could be visited by officials for inspection and they may have done so in the past.

On the exploitation that was encountered there, they understand that. As part of Home Affairs, they were also part of human trafficking task teams that dealt with people who had been trafficked and vulnerable persons. Home Affairs sometimes joined the Department of Labour for inspections and vice versa. DOL was there to assist, and their role was to determine whether those people were holding permits or were undocumented. If that was the case, they would be reported to Home Affairs and it would be attended to.

His colleagues involved in permits could perhaps provide clarification on the Queenstown matter. He assured the Member that he was not making light of the situation.

The overstayer list, when it was reported to Parliament last year during the incidents that happened with foreign nationals, Home Affairs indicated then that the record of overstayers at the time was over 300 000. That information could be provided, that list could be drawn from the information within the department.

The Chairperson stated that though the Committee knew the lines the Department of Labour could reach. What the Committee was telling Home Affairs was that they had been there with the department. The farm owners knew exactly how to respond to Home Affairs and to the Department of Labour, because the farm owners know the role of the departments well. If this was not the case, the Chairperson was sure it would be fine for the DOL not to be accompanied by Home Affairs, to just go in and check permits and farm owners just give in. If it was such an easy process, then Home Affairs should just tell the Committee. It would mean that the Committee did not need to call Home Affairs again, because DOL could ask for the permits, and if the farm owners comply, then they would just get a list and that list would be forwarded to Home Affairs, who could then deal with the arrest or deport. The Committee needed to know what the status was in terms of that relationship.

Mr Matthews stated that it was done on an operations basis. If there were inspections being undertaken by Home Affairs to specific areas, business or farm inspections, they could invite other departments to join the inspection, and vice versa.

The Chairperson asked if the Department of Labour could go to any of those farms and ask to see permits. The DOL could take that data and pass it on to Home Affairs. Was DOL allowed to do this and were farmers obliged to comply. This was on issues relating to basic conditions of labour. When one spoke about this abuse, it was the DOL that took the flack, forgetting that there were certain things, before DOL could deal with their issues, there was a partnership. The Chairperson just asked if DOL could go in, ask for permits and then deal with the situation If this was true then the Committee would whip the DOL, who should not be talking about Home Affairs, they should be passing on the relevant information to Home Affairs. The Chairperson asked if DOL had the power, whether farm owners had to comply and whether they could do it without Home Affairs.

Mr Matthews stated that the Department of Labour could inform Home Affairs, but they do have the mandate. However, in terms of determining whether a person has status in the country and a person being detained, only the police and immigration had the authority. However, DOL could indicate that they believed that those people on those farms did not have documents.

The Chairperson stated that so far the Committee had been right. It was not just anyone who could go into the farms, even in terms of the departments, and check the status of the workers on those farms, it was only Home Affairs. It was not 100% correct that anyone could go in. Everyone coming in to deal with those issues was dependant on Home Affairs. Some of those farm owners were very arrogant, even to the inspectors of Labour, the Committee was there with them. It was a difficult task.

The Chairperson asked of Home Affairs, that when they left they had to focus on those farms, starting with Mpumalanga and all those farms close to the borders. Those were the ones who had all those people, fellow Africans, who were being treated like animals, and had no permits. It suited the employer to have those employees there because those people were not going to be joining trade unions. Those workers were intimidated because they were here illegally, some did not even come in through the official borders because they were desperate for work, and they found themselves trapped there. It was only Home Affairs that could save them. So when the Committee called for the reports on all the farms around the country that were close to the border, three months would be given, and Home Affairs had to tell the Committee that they could go into any farm. When they did this they would work with Department of Labour, so by the time the Committee called them, that situation was dealt with and they could go there because that situation was horrible. Home Affairs was failing there in terms of inspections. Home Affairs may be getting reports that all was well there, but it was not. When Home Affairs got these reports they had to go and check the farms. The conditions at the farms were worse but the workers had no protection because they were not South African. Sometimes workers could not leave the farm because the farm owners would not let them leave, even when their permits had expired. So Home Affairs needed to focus on this, the Committee would call them for the statistics and they would go and see all these farms.

Mr Ronnie Marhule, Acting Chief Officer of Permits, answered the remainder of the questions. He began with the VFS. Home Affairs was aware of the provinces where people had to travel distances to apply for visas. It was true that in Eastern Cape, there was only one office, in fact there was only one office in each province, except in Gauteng. The reason for this was that this was the start of a process, which was called government partnering with business, because they did not have resources. There had been problems with applications at Home Affairs that could not be accounted for or took forever, and the Committee may have been aware of that. In order for government to bring in efficiency, they had partnered with business and introduced Visa Facilitation Services, which was done worldwide. They had benchmarked with a number of other countries in the world which were using VFS processes. The process that was introduced was government partnering with business for efficiency. The processes were seamless, efficient, there was an increased rate of applications being processed in the turn-around time. They were aware of the distances, and as such the Minister had indicated in the budget vote that an additional office in Eastern Cape, in KwaZulu-Natal and Western Cape were being planned. Home Affairs was aware that they were not able to cover all the people at the moment, but they were attempting to roll out these services to those provinces to ensure they were taking the services to the people.

Prior to Home Affairs issuing visas for people to work on farms, the Department of Labour did the inspections and the search and work to ensure the employer complies with the Labour Relations Act, the Basic Conditions of Employment Act and all the regulatory frameworks. Once the Department of Labour was satisfied that the employer was adhering to the regulatory framework, then they would recommend to the Home Affairs for them to issue a corporate visa. Home Affairs would not second guess a recommendation by Department of Labour, they would rely on its advice.

In terms of processes in slide 14, they ran concurrently in terms of the Departments of Labour and of Trade and Industry for corporate visas. As far as farm workers were concerned, the Department of Trade and Industry did not play a role in that space, it was a space limited to the Department of Labour. Department of Trade and Industry would be involved in other categories, for example if Sasol wanted to bring in workers, then the Department of Trade of Industry and Department of Labour would both be involved in an intergovernmental relationship.

It was correct that the contract of employment would have to comply with all labour legislation, including payment of foreigner, whether foreigner was not paid more or less. That would have been checked by the Department of Labour, whether that employer complied with those stipulations.

Concerning what was regarded as national interest, it was what would benefit the country in terms of job creation. South Africa was currently battling with poverty eradication and employment creation because of high unemployment rates. National interest was what would benefit and contribute to the three aspects raised as government as priorities. Something that brought in employment to South Africans who were unemployed would most likely be regarded as in the national interest. There would be other businesses that the Department of Trade and Industry had deemed undesirable business, much as they would employ South Africans, they may not be in the national interest, and Home Affairs had a list of those.

On why farm workers were foreigners and why they replaced South African farm workers, and why foreigners were not critically skilled, was a dicey question. He was sure his colleagues from Department of Labour would assist him. The majority of South Africans did not want to work on farms. The situation was that there was a big farm in a particular province that generated income for South Africa, dealing in import and export of their goods contributed to the GDP of the country. However, because South Africans were not willing, according to the research, to work on farms, or when they worked there, according to the stories heard, they worked for a week and then disappeared. The employer or farmer was then forced or compelled to look for employment elsewhere to ensure the business continued and contributed to the economy. That recommendation that came to Home Affairs, had already been determined by the Department of Labour, that in that particular farm, Home Affairs needed to give the farmer 400 people. Home Affairs facilitated what their colleagues at the Department of Labour would have researched and informed them.  

That also applied to who monitored that 60%. Home Affairs said that 60% of employees had to be in the operations of the business. Home Affairs’ colleagues in an intergovernmental relationship, determined that for them and made sure that employers complied to the 60%.

Some of the people indicated that they were finding it difficult to get new permits. It was something that they would consider because they had simplified the process for farm workers. There had been bilateral discussions with neighbouring countries, so it was something that would be investigated with the purpose of finding a solution and to ensure that those working in the farms were there legally. Home Affairs responsibility was to ensure that everyone complied, and if they were finding it difficult to extend their visas on the farms, Home Affairs would investigate that. Mr Mahrule agreed that when people did not have valid visas they were subject to abuse and they were vulnerable. They would take that advice and assist those who had challenges, and do that in consultation with the Department of Labour.

Ms Mantashe asked if the Department of Labour gave Home Affairs the go ahead to allow foreigners to replace South Africans because they did not want to work – when South Africans were currently saying that there was high unemployment.

The Chairperson stated that this was an interesting revelation, because when the departments entered into an agreement, it could not be a gentleman’s agreement. It was stated that the only people who could be taken in, were those whose skills were scarce. If both departments decided to come up with something else, that decision had to be made in black and white. She was riding on what Ms Mantashe had asked.

Ms Loliwe wanted to check if prior to Home Affairs issuing visas, the Department of Labour had to first conduct their own research? The reason for the question was that in Mpumalanga farms, people who had found themselves in appalling conditions often came to South Africa not through official border posts, because they were desperate for work. They may never apply for work permits in such conditions. Who informed who between DOL and Home Affairs that there were so many people that had applied for visas.

Ms van Schalkwyk spoke about unannounced visits because what the Committee had experienced was during an announced visit. What was found during the announced visit was scary, so she could not imagine what would have been found if it was unannounced. Speaking particularly to one farm, even though an appointment had been arranged, it was still difficult to gain entrance to that farm, even in the presence of Department of Labour and immigration officers. Her question was then with the interest of those workers at heart, it was not an attack on any department, but the question remained, how effective was the system, when looking at the unemployment statistics of 350 000 people who lost their jobs in the first quarter of 2016, and Home Affairs had an overstayer rate of 300 000 people. That was what was on record, but what was the real state of affairs?

Mr Marhule first dealt with the process between Home Affairs and DOL and DTI. Coupled with what the Chairperson had said about skills that were brought to the country, Home Affairs had what was called critical skills. Critical Skills applicants did not go through the process of checking via any department, because that process of compiling the critical skills list had already been done. So South Africa already had a critical skills list. The other visa was a general work visa, where someone could work anywhere or at any company in South Africa that wanted to employ a foreigner. It was one of two areas where Department of Trade and Industry had to determine that this skill was what was needed and this was the person that could do the work and therefore recommend that the person be granted a work visa.

The third category was what happened on a farm, which was a corporate visa. This was where a farm wanted to bring a large number of workers onto the farm. Reasons provided may be that it could not find South Africans. Whatever reasons were provided, it was not a gentleman’s agreement, it was a lawful provision of the Immigration Act that said that for a corporate visa to be issued, the Department of Labour had to determine the numbers and provide recommendations. For the Corporate Visas issued as Home Affairs, they get the number from the Department of Labour to say employ a certain number of people.

The other corporate visas, with the scarce skills, both the Department of Labour and the Department of Trade and Industry determined and recommended that a certain business could have a certain number of employees. That was what happened in certain businesses and farms.

For those who were illegally in country, those were directly Home Affairs responsibility to ensure that they had documentation. He just wanted to clarify that farms were governed by corporate visas, and it went through the Department of Labour.

The Chairperson stated that the Committee had listened carefully when he had explained the categories of workers. It was clear that when he was speaking of Department of Labour, he was speaking of corporate visas. She asked if Home Affairs got the mandate from the Department of Labour. When they did get that mandate, what were they told? Were they given the list or the farmer went to the Department of Labour or wherever they had to go, and they decided on their own to get these people because they had been given the go ahead by the Department? How were those people then gotten on the farm? With Corporate Visas, Home Affairs had names. In these farms, the Department of Labour had said it needed 400 workers because South Africans did not want to work. She did not want Home Affairs to tell them about the law, she wanted to address specific issues and specific farms. Home Affairs could say that they did not know why the Committee was asking about Mpumalanga. Home Affairs could say that they had been to Mpumalanga and for those farmerss, South African workers were not willing. She wanted Home Affairs to be specific. She wanted examples of where workers were given to farms through the recommendation of Labour.

Ms van Schalkwyk stated that the presenter had mentioned research regarding South Africans who did not want to work on farms. She wanted that information made available to the Committee. She recalled, when visiting the farms, that there was a big number, which the farm worker also said was the reality on a daily basis. South Africans came to the farm on a daily basis but they could not be hired.

Mr Marhule was not privy to specific farms that they could say for now that that Labour had recommended that corporate visas be granted. They first needed to look at the name of the farm, go to their records to see if there was ever an application for a corporate visa, and if there were any recommendations from Department of Labour, and if the visa had been issued. So there was no direct answer on that. Whether he could respond on a specific farm, whether Home Affairs had gotten any recommendations for specific farms, he could say that they did not have facts at the meeting.

The Chairperson stated that those people falling under that category would be the ones he was speaking of. He spoke about the list which meant those people were covered. Now she wanted to ask why Home Affairs brought up the relationship between them and the Department of Labour. If they had said there were cases but they would check, but the way they had presented it, it seemed like they were saying the fault did not lie with them but rather with the Department of Labour. If Home Affairs had presented in a way where the Committee was informed that they should be alerted that Home Affairs did not have the information. Those farms the Committees had visited, there were some things that had been done. However, Home Affairs presented as if the Committee did not understand. It was not the right approach, and it was a form of defence. It should have been brought in a different way. The questions arose because of the floods of people on farms that did not have permits. It may seem like Members of Parliament did not understand and only asked questions for questions’ sake, this was not the case. Where there was a situation where the Committee did not have the facts, Home Affairs should make that information available to the Committee. So when they go to do oversight visits, they had the lists available.

Mr Matthews would be leaving their contact details, and providing facts and clarification as required. Home Affairs committed to doing inspections as requested. They did not take all of this information lightly, and sought to address matters as soon as possible.

The Chairperson thanked the Department for meeting with the Committee because now they were clearer on what to expect from Department of Labour and Department of Trade and Industry. In the meantime they had to go to those farms and check. For now, the Committee was on Home Affairs’ case.

Department of Labour’s role regarding migration
Mr Morotoba introduced Ms Esther Tloane Chief Director: Public Employment Services and Ms Dolly Chiloane, Chief Director: Provincial Operations. The DOL had noted Members' concerns about the inspection conducted in her area, thus it was important she was present to answer to issues relating to that.

The Chairperson asked the Department of Labour to zoom in. Having listened to the questions posed to Home Affairs, maybe they could present on that relationship, there was the law but there was also practice which was what the Committee wanted to hear about. The Chairperson also wanted them to highlight any challenges of implementation and anywhere that the Department found problems, taking into account what had already been said. In terms of Home Affairs, there were times when they looked at the certificates and said there was no need because there were the skills; that consultation, where did it begin and where did it end, and how was the relationship established?

Mr Morotoba skipped the first few slides. Initially they had structured their presentation to cover the mandate and immigration interventions across government and cover the labour rules. The first few slides contained information given to the Committee by Home Affairs already where Department of Labour was not involved.

Slide 9 gave a sense of the work done in the Department of Labour. Members could appreciate that South Africa was part of the African Union, and part of the SADC region. Within the SADC region there were protocols on employment and labour, and the SADC migration policy framework, which was signed by the President and was linked to the African Charter on Human and People’s Rights and the migration policy framework for Africa. So whatever was done was aligned with that. He highlighted that their work was informed by the conventions of the International Labour Organisation, especially convention 97.

Slides 10 to 15 gave Members a sense of the range of issues raised by Members at this meeting, raised by Ministers and as result they established multitask teams headed by Ministers. They had agreed upon outcomes that needed to be addressed and both Department of Labour and Home Affairs, and a whole range of departments, like Defence and Police, all reported to that Ministerial task team on issues raised by the Members. When anyone arrived at the airport, one found Health, Trade and Industry, Police looking for drugs and the like. So that task team on migration was dealing with a whole range of issues. DOL reported on a regular basis, as did SASSA on grants, DSD, Arts and Culture and so on.

He went straight into what was mentioned by the Chairperson, Department of Labour’s involvement was threefold. Firstly, it was to ensure that they prevent the displacement of local labour, which was in line with international best practice and the role of Ministers of Labour. Secondly, it was to ensure that they promote the in-flow of skills which South Africa did not necessarily have. Thirdly, it was to assist the placement of South Africans abroad. Those were the three areas of intervention. This was outlined in slide 16.

Focusing on challenges in slide 21, his colleagues from Home Affairs had raised these. Whilst Department of Labour and Home Affairs had both put systems in place, syndicates were still found. Home Affairs had indicated that there had been migration practitioners who used to make their living from taking applications from people and submitting them to Home Affairs. As a result of corruption, Home Affairs did away with that practice. The truth was that those practitioners did exist and tried to use every trick in the book when they applied. In some cases to Labour, they inflated numbers. They would say that an employer was looking for certain number but when the Department checked, the business did not exist, or it did but they were looking for far fewer workers. The practitioner was trying to get more numbers, so that they could use the other visas granted by Home Affairs to get more people in. Those people then paid the practitioners as part of trafficking. There were many stories of this where people from places like Lesotho came to South Africa and someone kept their passport.

Mr Morotoba said on the matter that Department of Labour was reported as saying South Africans did not want to work, he did not think it was completely correct. This was the perception that continued to be propagated by certain persons for their own reasons. There was no official research that confirmed that. There were allegations from both sides. If one had to ask a South African why they did not want to work on the farm, they would say the conditions were bad. Equally, Department of Labour had proof that where Department of Agriculture had given funding in the form of tractors and so on, young people from the cities were going to start their own farms, which meant there was nothing wrong with farming. The only thing was the treatment of people. This perception was what some farmers were implying and translating into fact and then using as an excuse. Department of Labour had not seen this. If one looked at the TV programme on agriculture in the morning before 6am, one saw the number of people who had been denied the right to farm but were now going into farming because they enjoyed it. This was an issue that Department of Labour and Home Affairs would have to take seriously. He knew that their inspection unit had challenges. There were agreements with AgriSA because farmers said they were being attacked by people walking onto their farms. This was a valid point but that point was now being used against the Department of Labour. Where they made appointments and farmers knew they had illegal or undocumented migrants, it gave them an opportunity to move them. So when Department of Labour arrived, the migrants were gone. Workers were also threatened and if they said anything, they were dismissed. Joint inspections between Home Affairs and Department of Labour, accompanied by police, had thus been identified, so that they could begin to minimise this problem of farm killings. If police were in present with the Department of Labour and Home Affairs and they could all identify themselves, they could begin to deal with the problem. On unannounced raids, he would take this up with the DG of Labour and meet with Home Affairs. This issue was raised, but not only in farming, but on construction sites, and in security and hospitality, people were working for tips. They were planning to rearrange the hours of inspectors because those migrants were working night shifts and there were a lot of undocumented migrants working for tips.

On slide 26, employers, when Department of Labour did payroll audit, they did not state that they employ undocumented migrants because they know the consequences of s49 of the Immigration Act. In last week, in a process led by the Minister, inspections were conducted on 50 farms, three in Mbombela, unannounced, and in most cases, one had to appreciate cell phone and smses. The minute one farm was hit, because they had rapid response smses in case they were being attacked, word went out immediately to all other farms in the region that the Department had arrived. Technology, while it had positive spin offs, allowed them to alert each other. So the Department of Labour would inspect one or two farms, but by the time it got to the third one, already word had got out, and that was a challenge that they continued to experience.

On slide 24, Mr Morotoba had addressed the joint inspections, and the sectors, head count against payroll in areas where the Department found them working but not necessarily employed. Where raids were conducted, ordinarily they were supposed to deport foreign or undocumented migrants. On the other hand there were treaties with neighbouring countries that said migrants had worked in our companies and then they were deported. On Fridays when it was payday, the employers phone friends that were police to come in vans and the migrants were forced to run away because they knew that if arrested, they would be deported. In the process, they were leaving behind their salary.

Department of Labour now had to look at how to deal with employers in order to protect every worker, whether illegal or not. Every worker was supposed to enjoy all the rights provided for in the Constitution, however, they were also supposed to comply. Being illegal did not reduce their rights. The question was how to deal with an employer who had reduced workers to sub standard conditions. When a case was opened against a migrant for deportation, it went to court but there were no witnesses. So Magistrates tended to dismiss the cases and the farmers got off scot free. There were good advisors who studied the rules and advised how the law could be frustrated, and how they could win. This was something that had to be looked at. The longer that Home Affairs kept someone in the country, the longer they had to be fed in the camps. South Africa’s justice system could drag on for a long time and one of the solutions suggested was as in 2010, where there were special courts. These were ongoing discussions with the Labour Courts. There was an acknowledgement that there were gaps in the system and they needed to find ways to deal with that.

On support systems for work seekers, Mr Morotoba said that in most cases permits were issued because people were not available, in some cases this was not completely the case. It was found that in Mpumalanga, those people may not be in Mpumalanga but there may be in Northern Cape or Western Cape. The issue had to do with how they put in mechanisms that supported South Africans to move internally. We were all migrants in our own country. They needed to promote internal migration. The reason they had integrated their systems in the department was to ensure that, even though the opportunity one was looking for was not in Mpumalanga, it was available in Free State. It was better for South Africans to take those opportunities rather than give visas.

Slide 25 outlined the process put in place in Department of Labour to process work permits. Unlike Home Affairs, Department of Labour used their 126 labour centres and service points, and would be using the internet to accept applications as well. Currently they were coming through the labour centres. In some cases letters were received from people who were not even employed by Department of Labour, who had written recommendations to Home Affairs, either using a letterhead of the office or the provincial head office regarding the work permits.

To deal with these fraudulent practices, all the provincial offices collected applications. However recommendations only came from one point. The certificate was only issued from one point and Home Affairs knew that it came from the Department of Labour or it did not. Department of Labour could only recommend and Home Affairs took into account other issues as well. DOL was tightening that system, and he was sure on Home Affairs side they were too, to ensure that recommendations entertained were only the genuine ones that came from one place, and no other centre processed work permits without those certificates. That called for them to meet on a regular basis with Home Affairs and DTI, especially to discuss the issues spoken about in this meeting, so that they were also able to deal with syndicates and corrupt officials in their own departments.  It could be that someone in the department may have recommended it, but the certificate may not be genuine. In the adjudication meeting, there were people who had the necessary authority to sit there. There had been instances where colleagues from Home Affairs informed them that they had received recommendations and they would inform Home Affairs that it was not coming from the Department of Labour. Mr Morotoba thought that the tightening of recommendation processes on both sides to eliminate syndicates and corrupt officials, would help with this.

Moving onto Slide 25, apart from the work done by Home Affairs, in terms of the Employment Services Act - which this Committee had assisted with in passing - there was a requirement that related to migration regulation that aligned with the Immigration Act and they were working on that. Once the Employment Services board was established they would go on to finalise that. Department of Labour was required by 2019 to come up with a Labour Migration Policy, and they were working with the ILO, and were therefore aligned with the ILO conventions. There were three conventions and once that was done, they would be approaching the Portfolio Committees on Labour and on Home Affairs with the request to rectify those conventions. They could not approach now because they did not have systems that were tight enough that aligned with those conventions. Only once that was done, there was a labour policy and Home Affairs was working on a blueprint on migration that they were going to provide input on. The Ministers of Labour and Home Affairs were participating in the SADC Ministers of Home Affairs and Labour Joint Committees within the AU Committee on Labour, Social Affairs and Home Affairs, where they looked at the African Charters and South African charters were supposed to draw from that. They were learning a lot from the EU with their free movement of labour but they had different borders. They were looking closely at debates and agreements signed by the Heads of State on a protocol on labour because they suggested they collaborate in different ways but South Africa did not have the mechanisms.

Suffice to say, migration was a complex issue and not only confined to Labour and Home Affairs. There were many other departments in the inter-Ministerial Committee and they believed that if they could manage it properly and implement a range of recommendations recommended by Members they would be able to address xenophobia and the high levels of unemployment. Also for migrant workers to be able to go seek work in their countries of origin and address the problem. He was hoping that colleagues would touch on issues around asylum seekers and those in the countries on special permits, from Zimbabwe and Lesotho for example, because they all also put a strain on the labour market and they continued to be taken advantage of. Those were the areas that they needed to continue collaborating on as government departments because one position taken by one department had unintended consequences on other departments, and resulted in situations like on the farms.

Discussion
Ms van Schalkwyk wanted to welcome the presentation but a point of concern was that even though DOL was trying to conduct unannounced visits it was not really assisting the Committee. She thought they should come up with other strategies. They had to come up with new ways to deal with what their mandate was saying they needed to do. In 4.2.2, Department of Labour mentioned statistics for work visas recommended to Home Affairs. They had covered 9 073 workers, but 2 168 were negatively recommended during that period. She sought reasons for the negative recommendations.

When looking at 4.2.7, they mentioned that some companies were not willing to test the local labour market for availability or suitable labour. She asked whether they had a choice, or was the Department just granting their wish not to test the local market, and what was done when they did not want to test the local market. Could they indicate if that was for skill or unskilled labour and if there was substance to these demands?

Department of Labour mentioned employees did not want to follow the process. On one of the Committee site visits, one of the employees told them that they were being granted 30 days, and every time they went to the border they got renewals. She wanted this process explained, and why they allowed the employers to not follow the application process. Were they giving reasons, because the Committee was told that the process was difficult? She asked if that was the real reason they did not want to follow the application process or whether the Department of Labour was hesitant to renew those visas.

Mr Morotoba replied that strategy for unannounced inspections was discussed extensively as they needed to change the manner in which these were conducted. He had given the example of restaurants and construction sites.  It was true that the manner in which they had been doing it was not resulting in high impact. Also they had to do it jointly with Home Affairs and the police. Untargeted inspections done alone were not having an impact. For instance, when conducting inspections in Mpumalanga, there were no Home Affairs officials. There would have been a higher impact if Home Affairs had been present. Sometimes it was the timing of the invitation, they were not given advance notice or sometimes advanced notice was given but before the inspection could be done, there was no longer the element of surprise. At high level, with the police teams, they would find ways of making them high profile and make a greater impact.

The reasons in Point 4.2.7 ranged from a number of things. When someone did not want to do something, the quickest way to get around it was to say the process was difficult, they had fruit rotting and they had to get permits because they had exports to meet. Workers were good too because they studied the seasonal times, the best way to demand salary increases was when the employer was desperate and the fruit was going to rot. Whilst the systems may have been difficult, Department of Labour had done everything to make sure that people followed the system. Sometimes people went to the newspapers so they could get sympathy from the public and apply pressure on the system – that they had long applied for permits but were not getting them and their fruit was rotting.

In some cases, some employers may not want to contribute to a minimum wage. Department of Labour had sat with their colleagues at Labour Relations, because some employers applied for exemption and once exemption was applied for, if workers knew that the Minister had determined that this was the amount of money that workers were supposed to be paid, they would definitely refuse to work for a lesser amount. In those instances, farmers were then applying for permits to bring in foreigners to pay less because they had since applied for a variation. What they were basically doing was undermining the system by not paying the sectoral determination and bringing in foreigners and paying them less in accordance with their variation. In most cases, this loop was closed by Department of Labour to say that even where foreigners were brought in they had to be paid the same.

In some instances the farmers were not employing those people. There was a question about how they go about it. There was proof that it was not always the employers that was doing this, but the labour brokers were doing the recruitment and they sold those people to farmers. They took those people from one farm to another to do shift sharing and all sorts of things. There were private employment agencies or temporary employment agencies that did the transport and recruitment of these people from one place to another. Home Affairs was best placed to clarify the special dispensation because they had similar offices on the border with Zimbabwe. These were offices where under the special permit dispensation visa, they do 30 days, where farmers go to recruit. The issue was that they needed synchronise on this, because a farmer could use that system perpetually. 

The Labour Relations Amendment Act that was passed ensured equal pay for work of equal value and secondly the three months probation and then a person was deemed to be employed. If the issue was not addressed, it may be that the 30 days became 20 years where it was exploited on a daily basis. They were trying to fix a drum with many holes, and then another department punches another hole unintentionally and it gets a leak. It was a question of understanding what each department was trying to do. Home Affairs was also under pressure because of the large number of Zimbabweans, people from Lesotho and Mozambique. There were agreements dating back to when Mozambique was still a colony of France, and that also exempted Mozambicans from tax, and from a range of other things, which was an agreement unfortunately still signed by the previous government. It affected the labour market. The Department of Labour met with AgriSA when they say things were difficult, to try to resolve the issues. However, they had seen it in employment equity, some employers would just use 'difficult' as a way out. People could say that it was difficult because of 1, 2 ,3 and had gone to the Department of Labour to sort it out, they promised x, y, z but had not stood by that promise. It was too easy to say that it was 'difficult', generalising without being specific.

Ms van Schalkwyk (ANC) asked about the statement by Mr Morotoba that when it came time to conducting the blitz, the news is already out there. That took her back to the attitude of one of the immigration officers the Committee met in Mpumalanga, who simply told them he would not explore this because he did not want to make the famer unhappy since they were putting food on our tables. Perhaps that should be another entry point, immigration officers and inspectors who were in areas for long periods, fostering relationships with employers to such an extent that they do not conduct their duties due to their friendships with employers.

Mr Morotoba agreed there was a lot of work to be done to uproot corrupt officials within their ranks who continued to damage the image because they were not discharging their duties as they were supposed to. A typical example as indicated, without saying it was Home Affairs or Labour official, who did not want to bite the hands that may be feeding them. Those elements were within them. They were doing their best to track such elements to take them to task or remove them because they were damaging the image of the department and the work of other officials. He could not comment specifically on Home Affairs but perhaps they could clarify the steps that were there because he knew too that quite a number of Home Affairs officials were nabbed and dismissed.

The Chairperson stated that only question she wanted clarification on was whether there were any instances where Department of Labour used the corporate visa in relation to vulnerable workers, farm workers, entertainment industry, construction workers. They should be able to tell the Committee whether they seldom or often use the corporate visa when scarce skills are not involved. She was talking about farm workers. At which stage were they told that the workers were not able to work and they could get foreigners, and what was done, and was there a list? In terms of the labour brokers, or the agencies that work illegally, what do they do? They have the list of people and go from farm to farm. Did they get the permits and go with the bulk of names to Department of Labour and go to Home Affairs or vice versa. Where did they get this list, because that was when the corporate visas would kick in because if it was bulk, it was more than one.

Mr Morotoba asked Members to turn to slide 27, they were given statistics on the total number of corporate applications received from 1 April to 31 May 2016. It was 61 in total covering a total of 9073 workers, of those, 6905 were recommended positively whilst 2168 were not supported. The request was submitted by various companies, some of them may include private employment agencies doing applications on behalf of farmers. They had also listed sectors - agricultural sector and workers mainly from Zimbabwe, Lesotho, Namibia and Botswana. This was picking of maize etc. In construction it was mainly companies in projects where they were recruiting engineers, project managers, artisans, builders and those largely were found from Korea, United Kingdom, Germany, Thailand, Mozambique and the United Arab Emirates.

There were statistics in terms of provinces, how many were received and how many were recommended and not recommended, in terms of corporate. In this corporate section, there were also farms. These were in relation to farms in Mpumalanga as well, and he had asked the office to check the names of the farms and specifically if those farms did apply through the department and the reasons for their success. In Mpumalanga, the total number of applications was four and the total number covered were 562 and 487 of those were recommended. If the numbers were as high as indicated then it could be that the Department of Labour would have to verify because they had to agree that in some cases, depending on reasons known to the applicants, there were instances where people went directly to Home Affairs because that was beyond Department of Labour. What was given by the Department of Labour was given to the Auditor-General when he came to audit and wanted specific files, including all the certificates recommended to Home Affairs. This information could then be verified. If there were farms in Mpumalanga where numbers were higher, then they may need to follow up to check up on authorisation of those certificates.

The Chairperson said she was not getting what she asked. How did DOL come up with the bulk of names. Did they get the bulk of names and take it to Home Affairs and ask them to give these people permits. The 400 spoken about, that were to be given permits, how was that number reached?

Mr Morotoba stated that the numbers would normally be in the application by the farmer or the agency working on behalf of the farmer. They would say for instance that they had a certain place or certain work that needed to be done, they had searched for people to do this work and they could not be found. They provided proof and then the Department of Labour did not just take that information. It sent its inspectors to verify, and they searched on their database and if they found people they would refer them, and it was only in those instances where they could not refer people or where they did not find people, they would then say to Home Affairs they could go ahead and grant the permits.

The Chairperson stated that this was clear and Mr Morotoba should agree with Home Affairs that they do this. Her worry was that they were relying on the farmer or the private agencies. There were lots of people looking for jobs. Regarding local people not wanting to work on farms, she said that local people were not going to work on a farm in the type of houses the Committee saw in Mpumalanga that had sewerage problems, where they would work longer than normal hours, without uniforms and without UIF. Local people would complain and go to trade unions, and of course employers were not going to want them. The Department of Labour should not agree that people did not want to work. Once an advert was posted, they should go see that no one would sleep in those conditions. Those famers had people in the departments and in the trade unions. The whole thing was well worked out by the farmers, and government departments could not be a partner in that. She did not want to hear that South Africans did not want to work. South Africans knew their rights, they did not need permits, no one could threaten them and they did not want to work in those conditions. Where conditions were acceptable, South Africans would go there. Those workers without permits were the ones that were going to be threatened because nobody would ever hear about them again because they were here illegally. The conditions on the farms and where people stayed had to change with immediate effect. One could not expect them to work with bright minds when they lived in such conditions. As a government department they should not be saying that South Africans were lazy and did not want to work. No one wanted to work in those conditions, and if those farmers went outside the country as they were protecting their own profits. And if the workers do not dance to their music then they threaten those workers with the police. The department should know that. She hoped that, from this meeting, they take the Committee seriously when it came to these farms. They spoke about announced and unannounced visits, but as she was talking to them, they could deal with all those issues as Parliament, and with the direct access to Home Affairs, they would do it. It would be a clamp down. She did not want to hear about South Africans not wanting to work. The Department of Labour had to find out why they did not want to work.

The Committee was grateful for having both departments under one roof, because as they were doing further oversight they would not be faced with those Home Affairs officials. They would be sure that when they got there they would get the best, dedicated soldiers doing their work. That was what they were asking for.  The meeting was adjourned.

The apologies received from Mr I Ollies (DA), Mr D America (DA) and Mr M Plouamma (AGANG).