Immigration Amendment Bill [B5-16]: finalisation; Community Schemes Ombud Service & Sectional Titles Schemes Management Regulations

Meeting report

Deliberations and finalisation of the Immigration Amendment Bill [B5-2016]
The Chairperson said that the Committee had been briefed on the Bill and that submissions had been received on it. She asked Ms Daksha Kassan, Parliamentary Legal Adviser, to speak to the process on the Bill and the submissions that had been received.

Ms Kassan stated that the Committee had been briefed on the Bill on 25 May 2016. The Bill had then been advertised for comment up until 8 August 2016. Two submissions had been received on the Bill.
The first submission was from Mr Kagiso Happy Mocumi, and the second from Business Unity SA (BUSA).

Mr Mocumi wished foreign nationals who had overstayed their welcome in South Africa after the expiry of their visas, to be disqualified from entering SA. He also felt that foreign nationals coming into SA should be vetted and that targets should be set on the numbers of foreign nationals entering SA. Foreign nationals whose countries of origin were deemed unsafe to return to should be exempted from sanctions if their visas had expired. Where a foreign national was contributing positively to the development and economic growth of SA, such contribution had to be taken into consideration where a visa had expired. Ms Kassan said she felt that the Bill covered Mr Mocumi’s concerns.

BUSA had made a submission in relation to foreign nationals in the mining and agricultural sectors. BUSA was concerned about foreign nationals who were perhaps hospitalised for long periods of time while their temporary residence permits had expired in the meantime. It was felt that such foreign nationals needed to be accommodated. In as much as the Bill would list circumstances that would exempt sanctions from applying, there was also a need for a framework to be developed which would allow the foreign national to apply for condonation on good causes shown.
 
Ms Kassan noted that the Bill disqualified foreign nationals who had overstayed their visa validity period from entering SA again. When the period of disqualification had elapsed, then the foreign national could apply for a visa again. She added that the Act did provide that a foreign national in hospital could apply for an extension or for his/her stay to be regularised. Where the foreign national was disqualified from re-entering SA, such an individual could apply to the Director General of the Department of Home Affairs to set aside such disqualification under special circumstances. She felt that all BUSA’s concerns were accommodated already.
 
Coming back to Mr Mocumi’s concerns, she added that where a foreign national’s country of origin was unsafe, the person could always apply for asylum. Vetting did take place in the country where applications for visas to SA were made.

She concluded that most of the concerns raised by Mr Mocumi and BUSA were catered for in the Act and the Bill.    

The Chairperson asked the Department of Home Affairs how it felt about the submissions that had been made on the Bill.

Mr Jackson McKay, Deputy Director General, Department of Home Affairs (DHA), answered that the response given by Ms Kassan was the same as the DHA would have given. Most foreign nationals who found it unsafe to return home applied for asylum. Such foreign nationals were covered by the Refugees Act. He noted that SA had requirements when applications were made for visas. Vetting did take place. He felt that the setting of targets for foreign national numbers was a policy matter. The Department of Home Affairs was reviewing its immigration policies.

He said that the concerns of BUSA were covered by the Act. The mining and agricultural sectors had to apply to the Department of Home Affairs for corporate permits. In the past, corporate permits were valid for one year. However, they were now valid for three years. Foreign nationals ending up in hospital for extended periods could make application for their over-stay to be waived. There was thus no need for condonation, as application could be made to the DHA through the Director General to have the over-stay waived. Circumstances changed all the time, and he felt that it was best to capture exceptions to the rule in the Regulations, rather than in the Act.

The Chairperson said that the Committee could not simply pass the Bill. She wished the Department of Home Affairs to elaborate further.

Mr Tsietsi Sebelemetja, Director: Drafting, DHA Legal Services, said that it was required that persons had to apply for visas in person. It could no longer be done via agents. He reiterated that corporate visas were valid for three years. Visa/permit applications had to be made in the foreign national’s own country at South African missions. If a person was in hospital and the visa was to expire soon, application could be made for an extension of the visa. He noted that the Act generally covered the matters raised in the two submissions, with the exception of the policy matters.

Discussion
Mr M Khawula (IFP, KwaZulu-Natal) was not convinced that the concerns outlined by BUSA had been properly ironed out. BUSA had a concern that when a foreign national was hospitalised and the person wished to make an application for extension of a visa, the problem experienced was that the process was a lengthy one. Was there no other way in which the foreign national could be accommodated, since circumstances were beyond his/her control.

Mr McKay said that if a foreign national ended up in hospital and his corporate visa was about to expire, then the farmer or mine employing him could approach the Department of Home Affairs about the corporate visa nearing its expiration, and apply for its extension. A doctor’s letter from the hospital in question could accompany the application to the Director General of the DHA to extend the visa. The Director General would extend the visa if there was an exceptional circumstance. For example, where a foreign national landed up in hospital a day before his visa expired, he could also apply for a medical visa which was valid for six months. This was also allowed under exceptional circumstances.

The Chairperson asked, what if ten foreign nationals under a corporate visa got sick? How could one prevent that they be declared undesirable?

Mr McKay said that the corporate visa was to encourage the economic development of SA. It was granted to farms and mines that needed to source workers. Certificates were issued by the farmer or the mine. The Department could issue a corporate permit for 300 workers that were foreign nationals. Such workers would first be cleared by the Departments of Labour, Trade and Industry or any other Department, as the case may be. The corporate visa worker was always under the control of the employer. The employer was required to keep the Department of Home Affairs up to date regarding the foreign national worker. There was sufficient vetting when it came to work visas. Greater vetting was required on visas granted to tourists.

The Chairperson asked whether the names of the 300 foreign nationals would be attached to an application for a corporate visa. Would the 300 foreign nationals be vetted?

Ms L Zwane (ANC, KwaZulu-Natal) asked whether the amendments contained in the Bill were constitutionally compliant. She did not wish the Committee to be embarrassed by passing a Bill that did not pass constitutional muster. If vetting took place at the country of origin, what systems were in place to ensure that the information that had been received was correct? She asked how the Department of Home Affairs would authenticate the information received.

Mr McKay said that the DHA was confident that the Bill was constitutionally compliant. He said that there were systems in place for vetting. Foreign nationals applied at South African missions for visas, and various pieces of documentation had to accompany the application. These could include banking details and police clearance certificates. Vetting was done in the country where visa application was made.

Ms Kassan agreed that the Bill was constitutionally compliant. It was regulating foreign nationals who were staying in SA. The visa entitled a foreigner to enter a country for a certain period of time. The Bill covered foreign nationals who wilfully overstayed in SA. In the past, the only sanction was to make the foreign nationals pay a fine of R3 000 when they left SA. With the Bill, there was no longer only a fine, but the foreigner who wilfully overstayed would also be disqualified from entering SA for a certain period of time, depending on how often he/she was an offender. She noted that the constitution of SA gave only its citizens the right to enter SA. Foreign nationals were required to abide by the laws of the country.

The Chairperson asked who applied for corporate visas. Was it the mine or the farmer? In the past, applications for corporate visas were done by agencies. Where a foreign national claimed that he was hospitalised, how would the Department of Home Affairs validate the medical certificate provided by the foreign national? She asked that if the farm owner held the visa, was there perhaps exploitation of workers. Could the farm owner force workers to do as he pleased? She also asked how corporate visas contributed towards the increases in unemployment of local people, given that foreigners were given jobs. Were farm owners and mines exploiting people?

Mr McKay responded that some of the issues raised were policy issues. He explained that validation of a person’s sickness could be a letter from the hospital or the doctor concerned. The Department of Home Affairs did have inspectors that did validations with hospitals and doctors regarding foreign national patients. On the issue of unemployment of locals, there was a requirement that 60% of a workforce had to be South Africans. The remaining 40% could be foreign nationals. All corporate visa applications went through the Department of Labour. The DHA therefore took decisions in consultation with the Department of Labour. SA’s labour law regime applied so there should be no abuse. Every corporate certificate was attached to the foreign national’s name. A list of the workers was compared to the certificate issued in terms of the corporate visa.   

Mr Sebelemetja commented that there were many requirements for corporate visas.

The Chairperson placed the Bill before the Committee for approval, and it was approved.

Briefing by Department of Human Settlements: Community Schemes Ombud Service (CSOS) and Sectional Titles Schemes Management (STSM) Regulations
The Chairperson stated that the Committee had been briefed on the CSOS and the STSM Regulations on a previous occasion prior to Parliament closing for the August 2016 local government elections. The Regulations had been referred to the Committee by the National Assembly.  

As with the previous briefing, the present briefing was undertaken by Adv Seeng Ntsaba-Letele, Chief Director: Department of Human Settlements (DHS), accompanied by amongst others Dr Vukile Mehana, Chairman of the Board of CSOS, and Mr Neville Chainee, Deputy Director General: Strategy and Planning, DHS.

Adv noted that the Regulations spoke to various pieces of legislation. He

Adv Ntsaba-Letele kicked off the briefing with background on the real estate and sectional title scheme sector in SA, as well as background on the establishment of the CSOS. Before the formation of the CSOS, there had been no effective regulation. For example, there had been no quality checks and control over scheme governance documents, such as body corporate rules and home owners’ associations. There had also been a lack of education and awareness of consumer rights, as well as a lack of effective dispute resolution mechanisms. There were furthermore power imbalances between ordinary individual unit owners and body corporates/managing agents and home owners’ associations. The establishment of the CSOS marked the beginning of a new regulatory regime.

Benchmarking studies had been undertaken in Australia and Singapore on how the sector had been regulated. The Committee was also provided with insight into the public participation and consultations that had taken place on the Regulations. The CSOS Regulations, Levies and Fees Regulations and the Sectional Title Schemes Management Regulations were listed in the briefing document. Detail was also given on the levy formula and on the principles underlying the CSOS funding model. The rationale for CSOS Regulation included the need for cost effective dispute resolution, which allowed for affordable and reliable justice. Another reason was rapid urbanisation and the growth in the community schemes sector, which made up 25% of all residential properties in excess of R800bn, and approximately R11bn in annual levies collected by schemes.

Discussion
The Chairperson felt that the Select Committee had been left out on the process of acquiring knowledge such as the international benchmarking efforts on these types of schemes, whilst the Portfolio Committee had been taken on board.

Mr Chainee clarified that the Portfolio Committee had not been part of the international benchmarking exercise to Australia. The relevant processes had been followed with both the Portfolio Committee and the Select Committee. The DHS did not have a differential approach between the two committees. Nothing had been done intentionally.   

Ms Zwane shared the sentiments of the Chairperson. She asked whether it was the CSOS or the Department of Human Settlements that would be undertaking the consumer education.

Mr Chainee said that the CSOS budget did have an educational part to it. Part of its operational budget would cover education. Given issues of densification, there would be community schemes for households in the lower income bracket. Communities needed to be brought on board, and education was key.  

Mr Khawula agreed that the Committee had not been taken on board with the process, which had led to confusion during the previous briefing. The process had started long ago, but the Committee had not been taken on board. He asked what had actually triggered the need for this type of legislation and regulations. What was the problem that had necessitated the need for regulation and what was seen as the solution? He felt that there was perhaps too much regulation out there already. He asked that if the government grant to the CSOS was to be phased out, would the CSOS be self-sustainable? What were the timeframes for the phasing out and for the CSOS to become self sustainable?

Mr Chainee explained that the Department of Human Settlements, together with National Treasury, provided an establishment grant for CSOS. As time went on and levies eventually kicked in, then the grant would be reduced.

The Chairperson emphasised that the Committee to add value as best it could, and did not wish to rubber stamp legislation and regulations. She felt it to be an important issue which the Department of Human Settlements needed to address. The Committee needed to be included in processes. She asked whether the Regulations were constitutionally compliant. She referred to page 11 of the briefing document, and asked why all the radio stations that had been used for media exposure had not been listed in the document. She also felt that it was bad enough that there was overcharging by property agents, but now members of the public were being further financially burdened by additional levies. Was there not another way to collect funds other than additional levies on the public?

Mr Chainee stated that the levies payable towards the CSOS would not place an undue burden upon households. He conceded that there was abuse in the payment of levies, which resulted in conflict between management agents and households. A distinction needed to be made between the different types of levies. There was firstly the levies charged by management agents, and secondly the levies payable to CSOS which were to be used to protect the rights of households. The maximum amount payable for the CSOS levy was R40.

Adv Ntsaba-Letele spoke about the need for the CSOS. Prior to the CSOS, there had been no regulation in the sphere. The industry itself was self-regulating. The reality was that in the sector there were parties who were unhappy and felt that they were not getting a fair deal. Given SA’s historical background, people entering the sector lacked knowledge about how the sector was governed. Only after purchases were made did they learn that levies would have to be paid. The CSOS would ensure that the levies that were paid would be used for their intended purposes. She emphasised that the rules that governed people needed to be constitutional. The aim of the CSOS was to add value. Stakeholders were in agreement that there was a need for regulation in the sector. She pointed out that there was a waiver attached to levies where in the event that the consumer could not afford the payment of the levies, a case could be made to the Minister. The CSOS would consequently check on whether levies charged were used for their intended purposes.

Mr Khawula asked whether hostels fell within this sector and were covered by the CSOS.

Mr Chainee responded that 200 000 households fell within the sectional titles sector. It affected about one million people. It was expected that a larger number of households would enter the space. Prior to the CSOS, there had not been a cost-effective non-judicial conflict resolution mechanism. There had been a need to consider having an ombud. Sectional titles and communal living spaces like community schemes, had to be overseen. The CSOS would be given the ability to deal with disputes at redeveloped hostels.

Mr C Hattingh (DA, North West) felt that it was not just one million people that would be affected but rather four to five million people. He asked what the estimated budget for the CSOS was. How had the budgeted figures been calculated? What if the budgeted amount was insufficient, or there was a surplus of funds?

Mr Bryan Chaplog, Chief Executive Officer, Estate Agents Affairs Board said that a professor had come up with a model for the figures. Consultation had been done in all provinces and had been covered in different publications. He said that the Act gave the CSOS the power to cover hostels.
  
The Chairperson agreed that the Committee needed to know what the estimated budget of the CSOS was. She also asked how the CSOS was structured. 

Mr Chainee responded that the Department of Human Settlements had submitted figures previously, which had formed part of the Annual Performance Plan and the Strategic Plan.

Mr Hattingh said that the Department of Human Settlements could provide the Committee with the figures so that they could be circulated to Members.  

The Chairperson said that budget projection figures would be useful to the Committee.

Mr Chainee agreed to submit the figures to the Committee within the next seven days.

The Chairperson said that the Committee dealt with nine government departments and it was thus of utmost importance that Members be kept well informed. She placed the Regulations before the Committee for approval.

Mr Khawula observed that there were too many issues in the Regulations that were still open ended.

Mr Hattingh, representing the DA, did not approve of the Regulations. However, Mr Khawula gave his approval. The ANC approved of the Regulations. The Committee, by majority vote, approved of the Regulations, notwithstanding its concerns. The Regulations were thus approved, with concerns.

Mr Hattingh said that greater clarity was needed on how the levy figure was arrived at. He simply could not sign a blank cheque.

Ms Zwane noted that the Committee had already approved the Regulations.

Ms T Mampuru (ANC, Limpopo) said that the Committee needed to be treated with respect.

The Chairperson read out the Committee Report on Desirability, which stated that the Committee approved of the Regulations with concerns. She added that the Committee did not simply wish to rubber stamp the Regulations and other pieces of legislation. The Committee needed to be taken seriously.  The Committee had serious issues with the Department of Human Settlements.

Mr Mehana appreciated the fact that the Committee had assented to the Regulations, not withstanding having concerns on them. It allowed the process on the Regulations to move forward. All efforts would be made to address the concerns of the Committee on the Regulations. He apologised if the Committee had been offended in any way.

The meeting was adjourned.