Government Printing Works & IEC audit outcomes: AGSA briefing; Refugees Amendment Bill: Deputy Minister & Department briefing

Home Affairs

11 October 2016
Chairperson: Mr B Mashile (ANC)
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Meeting Summary

The AGSA briefed the Committee on the audit outcomes of the Government Printing Works (GPW) and Electoral Commission (IEC) on the 2015/16 Annual Reports.

The portfolio’s overall outcomes had been stagnant. GPW had no matters to emphasises. On the other hand, the IEC incurred irregular expenditure for the year ended 31 March 2016. This was as a result of non-compliance with the Preferential Procurement Regulations and the PFMA. The full extent has not yet been quantified and is currently disputed and will be completed by 31 March 2017.

When analysing the IECs predetermined objectives, the AGSA made the following findings:

-for 14% of the indicators sufficient and appropriate evidence was not provided, hence a scope limitation, further for 29% of indicators evidence provided was not valid, accurate and complete

- AGSA identified material misstatements in the annual performance report submitted for auditing. These material misstatements were on the reported performance information of Programme 3: Immigration Affairs. As management subsequently corrected only some of the misstatements, I raised material findings on the reliability of the reported performance information.

On compliance with key legislation, both entities had shortcomings in relation to procurement and contract management and expenditure management. The top three root causes of regression were slow responses by management, inadequate management oversight and lack of consequences for poor performance and transgressions. These root causes could be addressed though honouring the commitment made by the executive authority and implementation of the proposed commitment by the Portfolio Committee and management.

Members felt disappointed by the performance of the GPW and IEC especially their violation of SCM legislation. They sought clarity on the R43 million which was irregularly spent, what the concept “expenditure incurred in vain” and “no value for money” meant, what might be root cause of spending so much money irregularly, how irregular expenditure could be mitigated, whether the GPW had adopted internal measures relating to monitoring and evaluation, what kind of procurement should be classified as irregular expenditure, what the Committee could do to ensure that the financial problems are mitigated, and whether there was reputation risks analysis that was taken.

The Department of Home Affairs briefed the Committee on the 2016 Refugees Amendment Bill. The Deputy Minister stated that the tabled Bill was a third draft and requested the Committee to do its best effort to have more information on issues related to refugees and migrants so that it could draft a good instrument regulating the admission and stay of asylum seekers in the country. The Draft Bill was drafted in response to certain challenges including issues of abusing asylum system and corruption as well as ensuring that there was an increase in sufficiency of workforce. The Bill aimed to, among other things, re-organise the Refugees Appeal Board (RAB) in order to be effective and efficient. She noted that there were some things that went wrong with the previous two amendments to the Refugees Act (2008 and 2011 amendments) that were impediments to implement them. The 2016 amendment sought to bring into operation both 2008 and 2011 Bills and to amend the 1998 Refugees Act. The 2008 amendment dissolved both the Standing Committee for Refugee Affairs and the RAB and thus introduced the Refugee Appeal Authority (RAA). It entrusted the RAA with the power to deal with reviews and appeals. The 2016 Bill re-introduced the SCRA. Furthermore, there was cross reference that made the Bills non-operational even though they were appearing in the Statute Book. All these legal challenges ought to be corrected under the 2016 Bill. The 2011 amendment introduced, for example, the Status Determination Committee (SDC), in anticipation of fighting corruption. The SDC could be composed by three members who could decide whether or not an applicant was qualified for a refugee status.

The Deputy Minister stated that the Supreme Court of Appeal in the case of Watchenuka decided that asylum-seekers could work and study waiting finalisation of the refugee status and that this could be allowed in certain circumstances. With regard to the Watchenuka judgment, an asylum-seeker who would be unable to sustain themselves and their dependants, those asylum-seekers might be offered shelter and basic necessities provided by the UNHCR. Yet, the right to work would not be endorsed on asylum-seeker visa if one was able to sustain themselves, was offered a shelter and basic necessities by the UNHCR or seeks to extend the right to work, after failing to produce a letter of employment.

The Department stated that the grounds of disqualification from refugee status were expanded in order to limit the large number on undeserving individuals seeking asylum in South Africa. Grounds were expanded in terms of losing a refugee status. An Asylum-seeker (who is not in possession of asylum transit visa issued at port of entry in terms of section 23 of the Immigration Act, upon declaring intention to seek asylum in the Republic) ought to give reasons why he or she was not in possession of such a visa as this visa was a requirement. An Asylum-seeker is required to apply within five days of entry into the country. An asylum application would be rejected if found to contain false, dishonest or misleading information.

Members felt that the new measures were too harsh as they would infringe on the right to seek asylum as well as on the right to education and employment which were seen as component of the right to human dignity which the Constitution strives to protect and promote. Members sought clarity on whether the requirement to report to the refugee reception centres within five days was reasonably practical, on whether the Department was implying that refugees were in possession of travel documents so that they could be required to use the ports of entry, on what would happen if the Refugee Status Determination Officer grants a refugee status to an individual and the SCRA, upon review it, decided to withdrawal it, on the SCRA’s power to monitor and supervise decisions by the RSDO relating to granting asylum, on whether five days were reasonable, and on whether the DHA had enough human resources to deal with the influx of asylum-seekers, on the rationale behind revocation of the right to work and study, on the distinction between the verb “deem” and “consider”, on withdrawal of refugee status on the basis of criminality and the consequences thereof, and on whether it was reasonable to extend the period of applying permanent resident status to 10 years.
 

Meeting report

Welcome and Apologies
The Chairperson opened the meeting by acknowledging apologies from Mr M Hoosen (DA), Ms S Nkomo (IFP) and Dr C Mulder (FF+). He announced that Mr Nesi had passed on and requested those present to hold a minute of silence in honour of him. He also noted an apology from Mr Jackie McKay, Deputy Director General: Immigration Services.

Briefing by the Auditor General South Africa (AGSA)
Ms Lufuno Mmbadi, Senior Manager: AGSA, took the Committee through the presentation. She noted that the presentation would focus on the Independent Electoral Commission's (IECs) and Government Printing Works (GPW) annual audits report with a particular reference to three areas, including, fair presentation and reliability of financial statements, reliable and credible performance information for predetermined objectives and compliance with key legislation and performance management.

The portfolio’s overall outcomes had been stagnant. GPW had no matters to emphasises. On the other hand, the IEC incurred irregular expenditure for the year ended 31 March 2016. This was as a result of non-compliance with the Preferential Procurement Regulations and the PFMA. The full extent has not yet been quantified and is currently disputed and will be completed by 31 March 2017.

When analysing the IECs predetermined objectives, the AGSA made the following findings:
-for 14% of the indicators sufficient and appropriate evidence was not provided, hence a scope limitation, further for 29% of indicators evidence provided was not valid, accurate and complete
- AGSA identified material misstatements in the annual performance report submitted for auditing. These material misstatements were on the reported performance information of Programme 3: Immigration Affairs. As management subsequently corrected only some of the misstatements, I raised material findings on the reliability of the reported performance information.

On compliance with key legislation, both entities had shortcomings in relation to procurement and contract management and expenditure management.
Ms Mmbandi noted that the top three root causes of regression were slow responses by management, inadequate management oversight and lack of consequences for poor performance and transgressions. These root causes could be addressed though honouring the commitment made by the executive authority and implementation of the proposed commitment by the Portfolio Committee and management.

Discussion
The Chairperson stated that one needed to get a picture – after reading the Auditor General report - whether the GPW and IEC were regressed or stagnant. This could not be ascertained from the report. He sought clarity about what the phrase “absence of misstatement” meant and why the report was not speaking to the DHA performance. He remarked that the report should have indicated what the DHA supposed to perform but did not perform.

Mr A Figlan (DA) sought clarity on the R43 million which was irregularly spent.

Ms T Mnisi (ANC) referred to the root cause of decline in risk management and asked what the presenter meant by “expenditure incurred in vain” and “no value for money”. Secondly, she asked what might be the root cause of spending so much money irregularly and on how this irregular expenditure could be mitigated. Finally, she sought clarity on whether the GPW had adopted internal measures relating to monitoring and evaluation.

Ms D Raphuti (ANC) welcomed the presentation and expressed her concerns about the carrying out of procurement without the competitive bidding or quotation process. She felt that this was an area where the prejudices were exercised.

Mr D Gumede (ANC) expressed his disappointment with the performance of the GPW. It irregularly spent huge money in contravention of the law. Who should be responsible? He noted that in the previous year, the CEO was about to retire. What happened?

The Chairperson sought clarity on the recommendations made by the Portfolio Committee, on what kind of procurement should be classified as irregular expenditure and on what the Committee could do to ensure that the financial problems are mitigated.

Ms Mmbadi responded that irregular expenditure included expenditure incurred in contravention of enabling legislation as well as unauthorised expenditure. It related to how transactions were entered into. There was regression in transaction processes. If an entity had significant non-compliance transactions, they were often condoned. There had to be an investigation about how these transactions were made and if they were wrongfully transacted, there should be disciplinary action. If the transactions were condoned, they would be written off.

The AGSA noted that the GPW’s performance was regressed. With regards to R43 million, National Treasury was approached for condonation and the application was still under consideration.

The AGSA stated that internal audit was essential. It was established to prevent irregular and unauthorised procurement from happening. The AGSA recommended that the internal audit should be established so as to investigate the actual financial plan or whether an entity was complying with regulatory procurement framework. It viewed the internal audit as a preventive mechanism. The GPW did not have such mechanism.

The AGSA stated that recommendations made were loose recommendations. The Committee was also at liberty to suggest its recommendations.

Mr Gumede said that the Committee was dealing with the annual performance of two institutions - GPW and IEC - whose work were heavily dependent on their reputation and integrity. These entities ought to bear in mind that their reputation and integrity was dependent on how they were perceived. The GPW had to know that the security of the country was depending on its documents, whereas the IEC’s elections had to be credible. Was there reputation risks analysis that was taken? If yes, was the outcome of risks analysis dependable?

The Chairperson sought clarity on whether irregular expenditure included unauthorised expenditure.

Ms Mmbadi replied that there was no unauthorised expenditure incurred because all their allocations were approved by the Department of Home Affairs. On the question of integrity and reputation, the AGSA stressed that both entities were independent. Their integrity and reputation had relevancy and significance in their work. The risks analysis were conducted and were dependable.

The Chairperson remarked that the briefing of the AGSA would help members to engage with the IEC and GPW on the following day.

Briefing by the DHA on the 2016 Refugees Amendment Bill
Ms Fatima Chohan, Deputy Minister of Home Affairs, stated that the tabled Bill was a third draft and requested the Committee to do its best effort to have more information on issues related to refugees and migrants so that they could draft a good instrument. The Bill was drafted in response to certain challenges including issues of abusing asylum system, corruption and of ensuring that there was an increase in sufficiency of workforce. With regards to the Refugees Appeal Board (RAB), the Department was trying to reorganise it in order to be effective and efficient. There were some things that went wrong with the previous two amendments to the Refugees Act (2008 and 2011 amendments) that could not allow the DHA to implement them. The 2015 amendment sought to bring into operation both 2008 and 2011 Bills. The 2008 amendment dissolved both the Standing Committee for Refugee Affairs (SCRA) and the RAB and thus introduced the Refugee Appeal Authority (RAA). It entrusted the RAA with the power to deal with reviews and appeals. Furthermore, there was cross reference that made a bill non-operational. All these legal challenges ought to be corrected. The 2011 amendment introduced, for example, the Status Determination Committee (SDC), in anticipation of fighting corruption. The SDC could be composed by three members who could decide whether or not an applicant was qualified for a refugee status.

Prior to 2011, the finalisation of an application for refugee status could take about six years or more. This resulted in huge number of applicants. In 2011, the DHA set a benchmark of prioritising application of asylum to be finalised within three months. Over four years, the DHA managed to meet this goal. Efficiency was central to determination of refugee status. Corruption was a major issue. Asylum-seekers were using the corruption channel in order to secure asylum. To address this, the DHA introduced the SDC in order to fight against corruption. Three people formed a determination committee. However, there were no resources available to operationalise the 2011 amendment. Due to resources constraints, the DHA intended to move away from the SDC and return to a single refugee determination officer (i.e. the Refugee Status Determination Officer).

Ms Chohan stated that the Supreme Court of Appeal in the Watchenuka case decided that asylum-seekers could work and study waiting finalisation of the refugee status and that this could be allowed in certain circumstances. The 2016 amendment would amend and insert certain definitions and provisions. Asylum-seeking was problematic. The big problem arose from the fact that 90% of asylum applications were rejected. For that reason, the right to work and study was being reviewed because they were seen as incentives. Another problem was that courts had a tendency of assuming that all asylum-seekers had rights, including bogus asylum-seekers regardless of the practical consequences of judgements for the DHA. Courts were correctly guided by the Constitution when interpreting the Refugees Act and regulations. The country could not allow undocumented or bogus asylum-seekers to have rights. For them to claim rights, asylum-seekers ought to possess, at least, immigration visa. And immigration visa could not be applied for while staying in the country.

Briefing by the DHA on the 2016 Refugees Amendment Bill
Mr Deon Erasmus, Chief Director: Legal Services, DHA, took the Committee through presentation. He noted that the 2008 and 2011 Refugees Amendment Bill were not in operation as yet, although they appeared on the Statute Book, due to certain challenges that were discussed by the Deputy Minister. The 2016 Refugees Amendment Bill sought to provide, among other things, measures to combat fraud and corruption in refugee reception offices, in the SCRA and in the RAA, for the re-establishment of the SCRA and to confer additional powers on SCRA, and for the withdrawal of refugee status in respect of categories of refugees. Some changes were made to definitions: the definition of dependant was amended, immediate family was removed, permit was changed to visa, the definition of SCRA inserted whereas the SDC was omitted.

Mr Erasmus noted that the grounds of disqualification from refugee status were expanded in order to limit the large number on undeserving individuals seeking asylum in South Africa. Grounds were expanded in terms of losing a refugee status. An Asylum-seeker (who is not in possession of asylum transit visa issued at port of entry in terms of section 23 of the Immigration Act, upon declaring intention to seek asylum in the Republic) ought to give reasons why he or she was not in possession of such a visa as this visa was a requirement. An Asylum-seeker is required to apply within five days of entry into the country. An asylum application would be rejected if found to contain false, dishonest or misleading information. With regard to the Watchenuka judgment, an asylum-seeker who would be unable to sustain themselves and their dependants, those asylum-seekers might be offered shelter and basic necessities provided by the UNHCR. Yet, the right to work would not be endorsed on asylum-seeker visa if one was able to sustain themselves, was offered a shelter and basic necessities by the UNHCR or seeks to extend the right to work, after failing to produce a letter of employment.

Discussion
The Chairperson sought clarity whether the requirement to report to the refugee reception centres within five days was reasonably practical and if the DHA was implying that refugees were in possession of travel documents. What would happen if the Refugee Status Determination Officer granted a refugee status to an individual and the SCRA, upon review, decided to withdrawal it?

Mr Figlan sought clarity on the SCRA’s power to monitor and supervise decisions by the RSDO relating to granting asylum. In addition, he asked if the five day requirement was reasonable, and if the DHA had enough human resources to deal with the influx of asylum-seekers.

Ms Mnisi sought clarity on revocation of the right to work and study and remarked that it was a constitutional obligation to respect human dignity of all people and that studying and working were components of human dignity. The DHA was not considerate in requiring asylum-seekers to apply within five days. With regards to clause 8 of the Bill, she sought clarity on the distinction between the verb “deem” and “consider”.

Mr Gumede said that members should bear in mind that they were representing the public and that they should ensure that immigration was well controlled and managed. This would require making distinction between genuine asylum-seekers and bogus asylum-seekers on the one hand and asylum-seekers and economic migrants on the other. Parliament was custodian of taxpayers and ought to ensure that the revenue was well utilised for the sake of national security. South Africa could not be allowed to be in a situation where everyone was regarded as a refugee. It ought to be accepted that some refugees were economic migrants and this ought to be taken into account. Education and work should be afforded to genuine refugees. There was a need to have an effective asylum system to regulate the flow of refugees. Accordingly, the current asylum system needed to be adjusted radically in order to address the persisting issue of non-manageable asylum seeking. Adjustment ought to be made in light of the international refugee law and constitutional law. South Africa could not support all economic migrants. The Committee ought to ensure that the 2016 Bill provided an effective tool to manage asylum-seekers and economic migrants. Efficiency and quality of the decision ought to be improved. Submissions on the Bill would be entertained to ensure that the content of the Bill was improved.

The Chairperson sought clarity on the withdrawal of refugee status on the basis of criminality. Does a crime change the status of a person fleeing from a civil unrest? Why was the DHA stating that it was the duty of the UNHCR to provide essential basic necessities of life to asylum-seekers? Did employment include informal employment like car-guarding? What would happen if asylum-seekers were employed though brokers? Who will take the blame? Was it reasonable to extend the period of applying permanent resident status to 10 years? How will the DHA deal with an asylum-seeker who it finds in Bloemfontein holding an expired refugee status? How will the DHA determine that children were, for example, adopted?

Ms Chohan underscored what Mr Gumede said. National security was important. Distinguishing between asylum-seekers and economic migrants was important too. Economic migrants could make use of the immigration policy which provided a mechanism to stay in the country for those who were in need of employment, trade, or education. It was unfortunate that economic migrants tended to use the asylum system in cases where they could not secure visas. The Refugee system was a concession that South Africa made because it had a desire to contribute to the global commitment to care about humanity. All countries were made to accept the burden of refugees in terms of international obligations and South Africa bore a moral obligation to meet its international obligations.

On the question of adopted children, Ms Chohan responded that parents would be required to prove whether children were their dependants in order to fight against human trafficking. If there are no documents to prove this, they ought to make use of an affidavit. She stressed that it was a requirement that asylum-seekers make use of ports of entry. The Bill provided a new approach towards the admission of asylum-seekers. If a person arrived at a South African border and expressed his/her intention to apply for asylum, he/she should be granted a section 23 visa. The person ought to report to the refugee reception office within five days. Five days was optimal taking into account that the person was not screened for security purposes. After five days, he/she would be in contravention of the Immigration Act. Indeed, all people could not use the ports of entry if they were persecuted in their home countries, especially those from neighbouring countries. This could not apply to those who came from further afield. However, if the person had compelling reasons why they entered South Africa illegally, they could make their case and would be heard. If that individual could not make a case for using a port of entry, he/she would be arrested. The question arose as to why people from countries that were not neighbouring with South Africa could not use ports of entry.

Ms Chohan felt that 10 years was reasonable taking into account foreign practices. On the question of withdrawal of refugee status, it was a matter that could be dealt on a case by case basis. If a refugee committed a serious crime and was found guilty, he/she would go to jail. If he/she was a migrant, a visa would be revoked and the person would be deported upon completion of sentence. In cases of refugees, their sentences could not be reduced and they could not be granted parole because such individuals would pose a danger to the community. Upon release, refugee status ought to be revoked and they should be afforded another kind of legal status.

Once a refugee was granted asylum, the SCRA could not review the status. The SCRA would review cases that were rejected. There was a concern why asylum-seekers could not apply for asylum at Musina refugee reception centre and thus apply for it in Port Elizabeth or Cape Town. This was abusing asylum system because there was no clear reason why they should apply in Cape Town or Port Elizabeth for asylum.

On the question of work and study, Ms Chohan stated that the dignity of the people was an essential right in the Constitution. But no one had the right to come to South Africa and work and study. The Watchenuka judgment was about a single mother who had to wait for many years for her application to be finalised. During the consideration of her application, she was not allowed to work and her son could not study. Since the handing down of that judgment, many things had changed; an asylym-seeker could not wait five or six years for finalisation of his or her case. In Musina and Durban, an asylum-seeker could get response the same day. It was not all asylum-seekers who could not support themselves. Some asylum-seekers are well resourced. Why should they be allowed to work if they would be afforded shelter or support themselves? The shelter would be provided by UNHCR. If the UNHCR was not willing to support asylum-seekers whilst staying in shelters, they would be allowed to seek employment.

With regards to informal employment and trade, Ms Chohan stated that informal employment and trading was not regulated in the country. The Immigration Act regulated a study visa and a work visa for formal education and employment respectively. Informal trade and business were areas that were needed to be tightened up. Formal and informal trade and business ought to be registered. The DHA could not stop people from doing things which were not regulated in South Africa.

Ms Chohan noted that assisting asylum-seekers was a humanitarian act that could not be done by the UNHCR alone.

On the question of distinction between “deem” and “consider”, it was noted that it was the State Law Advisor who suggested that the word deem should be used in substitution of the word consider. It was not the DHA who came up with that suggestion. The State Law Advisor acknowledged that she had seen the Bill and noted that the word “deem” was appropriate and had been used in existing Bills and Acts.

The Chairperson sought clarity on whether the verb “deem” had a similar meaning of the verb “consider”.

The Chairperson remarked that the expansion of RRO worked in the interest of the DHA and its reduction led asylum-seekers to lodge grievances with courts because they could not have access to such services in their areas.

The Chairperson appreciated the briefing and said that the Committee would communicate with the DHA to seek more clarity in order to understand the conceptual context of amendment of the Refugees Act. This would enable to engage with submissions.

The meeting was adjourned

 

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