Letter from Minister on Immigration Regulations court case, ID Campaign & Container project: discussion

Home Affairs

24 March 2003
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HOME AFFAIRS PORTFOLIO COMMITTEE
25 March 2003
LETTER FROM MINISTER ON IMMIGRATION REGULATIONS COURT CASE, ID CAMPAIGN & CONTAINER PROJECT: DISCUSSION

Chairperson:
Mr H Chauke (ANC)

Documents handed out:
Letter from Minister Buthelezi to Committee (Appendix)
Draft Committee Programme - first term 2003

SUMMARY
The Minister could not be present due to a prior engagement but submitted a letter responding to questions previously raised by the Committee. The Committee agreed that a meeting should be arranged between the Committee and the Minister as soon as possible.

The Committee adopted their draft programme for the first term. The Chair informed the Committee that he was meeting with UNISA regarding training for Committee Members.

MINUTES
Letter from Minister
In a letter addressed to the Committee Minister Buthelezi explained that he had a prior engagement that he could not reschedule. Another meeting would be set up.

The Committee considered the letter, which covered the following issues.

Court case on Immigration Regulations
The challenge to the Regulations in the Cape High Court related to whether the Regulations were correctly passed in terms of Section 52(1) of the Immigration Act. Alternatively, should they have been passed in terms of, and in partial compliance with, the provisions in Section 7(1) of the Act. The content of the Regulations was not challenged. The Court ruled that the Regulations were incorrectly passed in terms of Section 52(1) and should have been passed in terms of Section 7(1) and were therefore invalid. The Minister has noted an appeal to the decision and the hearing on the application for leave to appeal will be heard on 7 April 2003. The Court has still to hand down a written judgement.

Although Section 52(2) of the Act allows that the Regulations passed in terms of the Aliens Control Act continue in force, these would not work with the Act. The Court has suspended the coming into force of the Act, except for the provisions that had already come into force: Sections 4, 7 and 52. The Aliens Control Act and its Regulations remain in force in terms of the Court order, which lasts until the hearing on leave to appeal.

In spite of the appeal, the Minister has begun the Section 7(1) Regulation-making process. The process can thus move forward whatever the result of the appeal. The Minister has begun the process aimed at establishing the Immigration Advisory Board.

Identity document Campaign
Cabinet has approved the launch of an Identity Document Campaign in preparation for the next general elections. The Campaign will be launched in April 2003, with a special focus on rural areas. R15 million has been set aside for the Campaign. The Department is alive to the possibility that a number of eligible voters do not have the bar-coded identity document, but do not have sufficient precise information to determine the number and location of people involved. The Department has thus received draft needs assessments from its Regions. Plans are being considered for the distribution of uncollected identity documents.

The Department would liase with the Government Communication and Information Services (GCIS) on strategies to inform the public about the need to apply for identity documents well in advance of the elections. Understaffing would impair the campaign and the Department will seek permission to fill all vacancies in the Directorates of Identity Documents and Identification. Temporary and volunteer staff will be appointed where a need arises.

Container Project
The former Director General had not discussed the container project with the Minister. When it became public, the Minister enquired about the situation and uncovered a number of problems, including irregular actions. The Department of Public Works advised the Department that using containers was the least desirable of the options to bring services to rural areas.

Delivery of the Department's civic services is terribly skewed and reflects the patterns and imbalances of apartheid. This cannot be remedied by short-term measures. The Minister therefore launched the notion of devolving the delivery of civic services to the new system of municipalities. The Department has completed the project's basic investigation and the matter now needs to be carried forward in co-operation with the Department of Public Service and Administration. Unfortunately, meetings between the Minister of Home Affairs and the Minister for Public Service and Administration to launch the project have been cancelled four times in a row. The Minister hopes that the project will soon take off since this approach will ultimately solve the problem of unequal distribution of Home Affairs offices because municipal offices are equally distributed.

Absence of Minister
The Chair asked the Committee how they wished to proceed in light of the Minister not having been able to attend the meeting. The Clerk received the letter an hour prior to the meeting.

Mr G Grobler (DP) pointed out that the notice of the meeting stated that the Minister and the Deputy Minister were to attend. Surely the Deputy Minister could stand in for the Minister? It appeared as if there was a communication problem.

The Chair responded that he had received a letter from the Deputy Minister the previous day stating that she would be unable to attend the Committee meeting.

Mr Grobler responded that although the matters were important, the Committee should be understanding. The Minister had received only a few days' notice and had a very busy programme.

The Chair said it was clear that the matters were critical but he took Mr Grobler's point.

Mr P Mathebe (ANC) thought it was proper that the Minister should be present. The Minister was given sufficient notice. The Committee should express their unhappiness with the Minister's conduct and the Minister must be present the following week.

Prince N Zulu (IFP) thought that it was odd to discuss the Minister's apologies as if the Committee did not accept them. The Minister had provided a written response to the questions and proposed that the Clerk and the Minister's personal assistant should liase to determine a date. This should be done.

Mr M Waters (DP) noted that the Minister had been given only five days' notice, but Ministers have commitments weeks in advance. Mr Waters expected the same respect for IFP Ministers as ANC Ministers get in other Committees.

The Chair ruled Mr Waters out of order. The matter should not be politicised. The Committee should do as Prince Zulu suggested and allow the Clerk and Minister's personal assistant to liase. The Committee could not do its work if it became partisan.

Mr Waters accepted the Chair's concerns and concurred with Prince Zulu's suggestion.

The Committee agreed that the Clerk and Minister's personal assistant would liase to set up a meeting as early as possible.

Committee Programme
The Chair outlined the future programme of the Committee:
-The Department would brief the Committee on HANIS (Home Affairs National Identification System) and legislation to be introduced on 1 April 2003.
-The Deputy Minister would brief the Committee on Civic Services on 8 April 2003.
-The Acting Director General will brief the Committee on transformation and restructuring on 15 April 2003.
-In the final week (5 to 9 May 2003) of the constituency period (22 April to 9 May 2003), a few Members would go on oversight visits to the Eastern Cape. The R33 000 remaining in the Committee's budget would cover this.
-The IEC will brief the Committee on the ID campaign, voter education and the voters' roll on 20 May 2003.
-The Committee would go on oversight visits to KwaZulu Natal, Limpopo, Gauteng and the North West in June/July 2003. Rather than have one large group do this, the Committee should break into small groups.
-The IEC and Committee would interact on readiness for the 2004 elections in August/September 2003.

Overseas trips should be put aside for a while since much of the work of the Committee is to be done within the country, with the coming elections.

The Committee agreed to the programme.

Training for Members
The Chair stated that he was meeting with UNISA on training to capacitate members to deal with the issues before it. UNISA would make a presentation, possibly at the next meeting, on this. Training would allow the Committee to deal with issues in an informed way.

Mr Grobler stated that this was a wonderful idea. The Department should give Members a concise version of the training given to overseas missions and Department officials on the Immigration Regulations.

The meeting was adjourned.

Appendix:

March 24, 2003

The Hon. Mr Patrick Chauke, MP
Chairperson of the Portfolio Committee of Home Affairs
National Assembly

Dear Chairperson

Re: Committee briefing

Thank you for your letter of March 18 inviting me to brief your Committee in respect of certain matters on Tuesday March 25, 2003 at 11h00. Unfortunately, I have a prior commitment for that day at that time, which I cannot reschedule. Therefore, we will need to find a mutually agreeable and convenient time for the briefing to be rescheduled, to which end I hope your Clerk of Committee may liaise with my Private Secretary.

However, I do not wish my temporary unavailability on the day you have indicated to hold back the important work of your Committee. Therefore, I thought to provide preliminary answers to the questions you raised in your aforesaid letter, which I am prepared to expand upon as the Committee may wish, either in response to written questions from Members to be directed to me or when I will be present before your Committee.

Therefore, I shall proceed to consider your questions.
1. Court case re Immigration Regulations
What was the outcome of the court case and what was the court ruling?
What impact does the ruling have on the Immigration Act?
Which Act is in place at present, the old Aliens Control Act or the Immigration Act?

The challenge brought to the Immigration Regulations in the Cape High Court ["the Court"] related to whether such regulations were correctly made in terms of section 52(1) of the Immigration Act, 2002 ["the Act"] or whether they should have been made in terms of and in partial compliance with the provisions set out in section 7(1) of such Act. The content of the regulations was not the object of the challenge. The Court ruled that such regulations were incorrectly made in terms of section 52(1) of the Act and should rather have been made in terms of section 7(1) of the Act and therefore such regulations are invalid. Furthermore, the Court ordered that regulations be made in accordance with section 7(1) of the Act.
I have noted an appeal to such decision of the Court. The hearing on my application for leave to appeal will be heard on April 7, 2003. The Court has not yet handed down a written judgement detailing the scant oral reasons it gave for its order on March 11. The written judgement is expected to be handed down either this week or next week.

In terms of the Court order, the Act would have come into force on March 12, 2003, but without its implementing regulations. Because of a saving provision in the Act, namely section 52(2), the regulations made in terms of the Aliens Control Act ["the ACA"] would have been preserved. However, the Act is incapable of being implemented without the regulations it requires, and the ACA's regulations cannot work together with the Act. Therefore, the implementation of the Court's decision would have led to complete chaos in the administration of migration control with irreparable consequences. Before the Act could come into force, in the evening of March 11, the Court made an interim order exclusively on the strength of the applicant's request.

This interim order suspended the coming into force of the Act, except for those provisions which had already come into force by that time, namely sections 4, 7 and 52. Moreover, the same interim order suspended the suspensive effect of the appeal which I had noted. In general, the noting of an appeal suspends the effects of an order of any court and therefore, in the absence of the Court's subsequent interim order, because of the appeal I noted, the Immigration Regulations would have come into force on March 12. Therefore, by virtue of the combined effect of the two parts of this interim order, the ACA remains in force and effect together with the ACA's regulations, while the Act is suspended from coming into force and the Immigration Regulations are prevented from coming into force by the suspension of the suspensive effect on the appeal on the order which declared them invalid. The interim order was originally made to last until March 17, but on that date it was agreed that it would be extended until April 7, when the application for leave to appeal is heard.

In spite of the Court's order having been suspended and my having appealed that order, from good measure of caution, I have already began complying with such order so as to avoid any further delay in the coming into force of the Act. On March 14, I formally began the section 7(1) regulation-making process by publishing in the Government Gazette and tabling in Parliament notice of my intention to make regulations as contemplated in that section.

By taking these steps, the process can move forward irrespective of the outcome of the appeal. In fact, as indicted by my Acting Director-General before this Committee, it was always my intention to begin the section 7(1) regulation-making process as soon as the Immigration Advisory Board [the "Board"] was operational, so as to ensure that regulations made during the transition in terms of section 52(1) of the Act would finally be replaced and/or complemented by regulations made in terms of the section 7. The present circumstances have presented additional momentum to accelerate the pace of this process.

I have already began the process aimed at establishing the Board. I had previously published in the Government Gazette a notice requesting interested parties to make nominations of those members of the Board who are to be selected in such manner in terms of section 4 of the Act. On February 26 I repeated such public notice and the time for nominations will close 30 days after that date. I have also written to all my Cabinet Colleagues who, in terms of section 4 of the Act, are required to appoint their representatives on the Board. Some of such nominations have reached me.

It is worth noting that interdepartmental consultation has accompanied many stages of this process for the past ten months. Those who have been appointed to the Board have in fact become the leading figures and prominent contact persons in this often complex process of interdepartmental coordination, which shows initial success in pursuing the purpose for which the Board was established. As soon as the public nomination period has closed, I will appoint all the members of the Board in terms of section 4 of the Act, and, complying with the prevailing praxis, I will bring such nominations to Cabinet for its concurrence.

2. ID campaign:
In view of the coming elections, what is the plan of the Department to roll out the ID campaign.

At my Department's behest, Cabinet has approved the launching of an Identity Document Campaign in preparation for the next general elections. Following preparations with the Department's regional offices, the IEC and other role-players, the Identity Document Campaign will be launched during April 2003 and will commence in the current financial year, as budgeted. The closure of the Campaign will be determined in co-operation with the IEC and other role players, as the period for registration on the voters roll has not yet been determined. The Campaign will place special emphasis in respect of rural areas.
The Treasury has set aside R15 million for this Campaign, which will be made available from the beginning of the 2003/2004 financial year.

The Department is alive to the possibility that a number of eligible voters, particularly in rural areas, may still be without bar-coded identity documents due to a variety of reasons, including the fact that many identity documents issued and forwarded to the offices of application were not collected by the applicants. However, we do not have sufficient precise information to determine how many of such people are involved and their territorial distribution.

Therefore, the Department has received draft needs assessments from its Regions, which will be finalized once priority areas have been agreed upon. At present, reports from regional offices are submitted on a monthly basis, indicating identity documents received, handed out and on-hand. Plans for the distribution of uncollected identity documents are under consideration in consultation with other role-players, such as traditional leaders. A communication strategy will be developed to ensure that the public is prompted to collect identity documents once finalized. Regions will also be reminded of the procedures to follow to ensure proper posting of data on the computer mainframe, so as to determine the status of identify documents finalized and posted. From Head Office we will be interrogating such mainframe for status reports and monitoring purposes.

My Department will be approaching the Treasury regarding the possibility of funding for free photographs, should a need be identified especially in rural areas. Departmental budget control offices will allocate a specific responsibility and objective code as well as a responsible officer to administer and reconcile expenditure regarding the Identity Document Campaign.

The Department's Communication Directorate will liaise with the Government Communication and Information Services to formulate coordinated strategies to sensitize the public to the need to apply for identity documents long ahead of the next elections, so as to avoid last minute congestion. The strategy and related plan will be made available once finalized. Identification of areas of need is in progress with Provincial Electoral Offices in order to give priority to needy areas, such as high schools, rural areas and others.

The major impairment in designing and implementing a successful Campaign, is my Department's chronic under-staffing. Permission will be sought from the Department of Public Service and Administration to fill all vacancies in the Directorates of Identity Documents and Identification, as well as in our Regions. Temporary and voluntary staff will be appointed where a need arises and will be done in accordance with Human Resources prescripts. It is extremely worrying that at this moment none of our crucial vacancies have been filled and, unless we receive the green light to do so, the Campaign will be in great jeopardy.

Selective permission will be granted for overtime work in the Directorates of Identity Documents and Identification and will be planned according to the number of applications received. Both Directorates have budgeted for overtime remuneration in the next financial year. Regions will also embark on selective extended working hours should there be overwhelming responses for identity document applications.
Provisioning Administration is involved with arrangements to meet the needs of the Regions to acquire additional vehicles during the Campaign, in order to reach rural or remote areas of the country where the need for identity document applications has been identified. Standard procedures will be followed in the hiring of vehicles as stipulated in the administration code.

3. Container project:
Why was the container project never implemented and what alternative plans were put in place to ensure service delivery in rural areas.
The container project was never discussed with me by my former Director-General, neither was it forwarded as a written submission seeking approval. When it became public, I enquired about the situation and found a host of problems, including irregular actions. Some of these problems are as follows:
1. A competent official was appointed as Acting Chief Financial Officer. On 27 May 2002, without any consultation with him, his appointment was terminated. The person appointed as from 1 June 2002 was inexperienced to perform such an important function.
2. The serious nature of the situation became apparent when on 3 June 2002 she was instructed to place an order for an amount of R12 435 507 for the conversion of 148 container offices. This amounted to more than R85 000 per office without water, power or washroom facilities.
3. No prescripts were followed. State Tender Board instructions were ignored. There was no Departmental Standing Tender Committee approval, neither was the matter submitted to the Departmental Control Committee for consideration.
4. Within 3 days of the order having been placed, a claim was already received for R1 865 326 for payment. There was no contract, no Departmental Standing Committee approval and no Treasury approval. Notwithstanding this, the then Acting Chief Financial Officer instructed to pay, which was fortunately reversed before payment. Funds for the containers had at that stage not even been acquired. How payment was supposed to be effected is unknown.
5. No offer nor conditions under which such containers were to be supplied for consideration in terms of Tender Regulation 21.2 existed. No exemption exists to following normal tender procedure.
6. No compliance exists as required by Chapter 16 of Treasury Regulations for a PPP investigation.
7. No Treasury approval exists for a Feasibility Study as required, neither was Treasury approval acquired.

I took cognisance of the recommendation of the Department of Public Works which carries that line function responsibility and has the necessary expertise in dealing with issues such as the provision of offices to ensure delivery in rural areas. The Department of Public Works advised us that amongst the various options available to ensure service delivery in rural areas, the utilization of containers was the least desirable.

There is no doubt, as I have often indicated in Parliament, that the delivery of my Department's civic services is terribly skewed and unbalanced and reflects the spatial patterns and imbalances of apartheid. In fact, while by and large, all our citizens have an equal or similar need for civic affairs services, the distribution of our offices and related capacity is such that we have the least amount of resources where the majority of the peoples' lives and the needs are the greatest. This imbalance cannot be remedied by short term measures or gap-filling solutions.

Within the present paradigm, the problem cannot be solved. It is also of little avail to consider the transfer of resources from one area to another, as such transfer is often more costly than establishing new offices and obviously causes a lowering of service standards in certain areas. We have opened new offices in many rural areas, but we are heavily limited in moving in this direction by our dramatic under-funding and under-resources. We have 1,500 vacancies on the basis of a 1995 establishment which we are not authorised to fill because of the existing moratorium. We are also not authorised to reformulate our establishment on the basis of present needs and future challenges, which would highlight a much higher number of vacancies.

For this reason, after extensive investigation, in 1999 I launched the notion of devolving the delivery of civic affairs services to the new system of municipalities established in December 2000. The initial inter-departmental consultations in this respect took place at the end of 1999. I then wrote to my colleague, the Minister for Provincial and Local Government, to ensure that this important aspect of devolution would be taken into account in the formulation of the list of central Government functions which are being delegated to municipalities together with relevant resources and capacity.

When I introduced the Immigration Bill to Parliament, I made provision for a clause, clause 55(2)(a), which was linking the unavoidable restructuring of the migration line function of my Department, along the lines contemplated by the needs of migration and the Immigration Act, to the need of restructuring civic services through devolution to municipalities. However, this clause, which would have given great impetus to the process, was deleted by this Committee in its deliberations.

On different occasions I have related to Cabinet the need to move forward on this project, which was one of those announced by the President in February of last year. My Department has completed the project's basic investigation and the matter now needs to be carried forward in a co-operative effort between my Department and the Department for Public Service and Administration. However, unfortunately, meetings scheduled between myself and my colleague, the Minister for Public Service and Administration to launch this co-operative effort have been cancelled four times in a row.

I hope that this project will soon take off by means of the envisaged pilot projects which, by necessity, are meant to take place in municipalities with the largest capacity. In fact, the entire devolution project is envisaged to be implemented in a progressive manner beginning with municipalities with greater capacity, moving towards those with less capacity. Eventually, this approach will solve the problem of unequal distribution of our offices across the territory, as municipal offices are equally distributed across the territory.

In the meantime, the capacity which we save in urban areas, both in terms of offices which we may close down, when services are assumed by the relevant municipality, and in terms of offices we do not need to open, can be utilized to open new offices in rural areas. At the same time, I have instructed that, throughout the development of this process, maximum effort be made to devolve civic affairs functions to traditional authorities, which are often the best situated, equipped and competent to reach out for, and serve the maximum number of people in rural areas.

It must be stressed how the completion of the HANIS project will make it possible to devolve the delivery of civic affairs services to organs of State, or even to agencies of the State, without jeopardizing the integrity of systems, security, efficiency, reliability, service quality and any aspect of our fight against corruption.

I hope that the foregoing will be of assistance to you and your Committee. At present I have an impossible schedule, but if you need me to come in person in spite of this explanation, I shall re-arrange my schedule in order to come. It is only now that I am I unable to do so.

Yours sincerely,
M.G. BUTHELEZI, MP
MINISTER

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