Department Legislative Programme: briefing

Home Affairs

08 April 2003
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Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
8 April 2003
DEPARTMENT LEGISLATIVE PROGRAMME: BRIEFING


Chairperson: Mr H Chauke (ANC)

Documents handed out:
Department Legislative Programme for 2003 (Appendix)

SUMMARY

All the Bills on the programme are currently with the Acting Director General. The Identification Amendment Bill seeks to provide a fingerprint-based identification verification system for Government Departments and private institutions. The Committee expressed concern at significant delays in introducing the Bills on the programme - the Acting Director General would be asked to explain this at the next meeting.

The Films and Publication Amendment Bill seeks to address child pornography and Internet crime. The Marriage Amendment Bill corrects obsolete provisions in the Marriage Act (25 of 1961) and addresses the problem of fraudulent marriages.

The Constitution of South Africa Second Amendment Bill lays out the electoral system for the 2004 elections - implementing the minority report of the Electoral Task Team. The majority report is to undergo a process of public comment before a system is devised for the 2009 and later elections.

The Alteration of Sex Description and Sex Status Bill provides mechanisms to alter the sex description of persons in the population register when they have undergone a sex change operation.

The Committee was concerned about the Department pursuing losing legal action and will seek a briefing from the Law Advisors on this with a view to tabling a report on it in Parliament.

The Committee was informed about a study tour to the Eastern Cape and progress on arranging training for the Committee on immigration matters. The Committee will look into anti-xenophobia adverts currently being flighted on SABC1.

MINUTES

Briefing by Department

Identification Amendment Bill
Mr K Mogotsi (Director: Legal Services) briefed the Committee. The Identification Amendment Bill results from the envisaged introduction of HANIS (Home Affairs National Identification System). The Bill seeks to provide a fingerprint verification identification process. Government Departments and institutions in the private sector, such as banks, will use the Department's database to verify identity by means of fingerprints. Submitted fingerprints will be compared with those in the database to confirm identity. This will assist in combating fraud in housing subsidies, social grants and UIF payments.

Discussion

The Chair asked what the likely timeframe for the submission of the Bill was.

Mr Mogotsi replied that the Department had intended to submit the Bills by April, but there had been glitches so the timeframe has changed. The corrected version of the Bill was submitted to the Acting Director General on 7 April 2003, so Legal Services had performed their task. From there it would be submitted to the Minister and then to Parliament.

The Chair asked if a June or July submission seemed likely.

Mr Mogotsi replied that this was possible. He hoped the Bills would go forward soon since they are urgent.

The Chair asked what the blockage was if Legal Service's work was done.

Mr G Grobler (DA) asked what dates Legal Services had proposed to the Acting Director General.

Mr Mogotsi replied that the process worked as follows: Legal Services drafts the Bill or Amendment Bill, prepares them for submission with a Cabinet memorandum and then submits this to the Acting Director General. Legal Services does not propose dates for tabling of Bills - they cannot prescribe to the Minister - but merely highlight their urgency.

Mr Grobler suggested that a letter be written to the Acting Director General asking for the proposed dates. The Committee needs clarity for their programme.

The Chair responded that the Acting Director General was to be present, but had had other commitments. A letter would be sent asking the Acting Director General and Mr Mogotsi to attend the meeting the following week.

Prince N Zulu (IFP) asked where the blockage is. It must be unblocked. The same problem had been raised in another Committee the previous day.

Ms A van Wyk (ANC) asked if Mr Mogotsi could indicate where the Bills are in the process.

Ms I Mars (IFP) noted that the programme envisaged presenting the Bill to Cabinet in February. Would the corrected Bills have to go back to Cabinet?

Ms Mogotsi replied that all the Bills on the programme and their Cabinet memos are with the Acting Director General. He noted that the Films and Publications Bill, the second on the programme, had been prepared when the previous Deputy Minister was still in office. Legal Services have fulfilled their duty.

Ms M Maunye (ANC) suggested that Mr Mogotsi be allowed to continue his briefing and that the Chair follow up on the blockages.

The Chair responded that the Committee needed to invite the Minister and Acting Director General to explain this so that the Committee can amend their own programme to account for this. Nothing from the Department is currently before Parliament. The consultation on the Bill between the Department and other Departments and Institutions was good.

Mr Mogotsi responded that the blockage was not the Minister. He is not involved until he receives the Bills from the Acting Director General. The problem lay either with Legal Services or the Acting Director General. This is not to imply though that the blockage is the Acting Director General.

The Chair asked who decided that Amendments were needed if not the Minister.

Mr Mogotsi replied that line function officials write to Legal Services proposing amendments. For example, the Director of HANIS might propose changes to the legislation dealing with identification. There is then a meeting between Legal Services and the line function officials. Amendments or Amendment Bills are then drafted based on this. The Minister is not involved at this point. These are then submitted to the Acting Director General and he informs the Minister. New legislation must come from the Minister, but amending and editing came from line functions.

The Chair asked where the Law Advisors came in.

Mr Mogotsi replied that the State Law Advisors certified legislation. Once new legislation has been drafted, it is submitted to the State Law Advisor. The wording and constitutionality of the Bill is checked. If everything appears in order, the Bill is certified.

The Chair asked who worked with the State Law Advisor on this.

Mr Mogotsi replied that he forwards legislation to the State Law Advisor for certification.

The Chair asked if the amendments had been certified.

Mr Mogotsi replied that they had.

Films and Publications Amendment Bill

Mr Mogotsi stated that this Bill should have been passed a long time ago. The Bill seeks to address child pornography and cyber crime. It prohibits child pornography on the Internet and places a duty on Internet service providers to provide mechanisms to prevent children accessing pornography on the Internet. The Bill makes the creation, production and distribution of child pornography offences.

Discussion

The Chair asked if the Bill is with the Acting Director General.

Mr Mogotsi replied that all the Bills are.

Mr Grobler noted that the Deputy Minister, the previous Chairperson of the Committee and Ms Van Wyk had gone on a study tour around these issues. Could the Committee get a report on this to assist it in dealing with the Bill?

The Chair agreed that when the Bill came before the Committee all the relevant information, including a report on the study tour, should be available.

Marriage Amendment Bill

Mr Mogotsi stated that investigation and research by the Law Commission highlighted the need to amend the Marriage Act. The Amendments were necessary to update the terms used in the Act, which was so outdated that it still referred to the 'Union of South Africa'. The Bill would make diplomats ex officio marriage officers, provide means to deal with changes in the names of denominations and the amalgamation of denominations, and provide a standard form of marriage. It provides that objections must be lodged in writing at least twenty-four hours before the marriage takes place. The minimum age for marriage would be eighteen for both genders. The requirement for identification would be either positive identification or the provision of an affidavit attested to before a Department official.

Discussion

The Chair raised the issue of fraudulent marriages. These mostly involved disadvantaged women. Although they could cancel such marriages at Department offices, the perpetrator of the marriage is not pursued.

Mr Mogotsi responded that investigations had shown that women often colluded in these marriages and received payment. In terms of current law, you do not have to apply for a residence permit outside of South Africa if you marry a citizen. In the case of marriages to foreigners, officers must ascertain that the foreigner was legally in the country.

The Chair noted that the Committee on the Status of Women and Children wished to discuss these matters with the Committee. He saw nothing in the budget to educate people around these matters.

Constitution of the Republic of South Africa Second Amendment Bill

Mr Mogotsi explained that during 2002, Cabinet resolved that a task team should look into a new electoral system for the 2004 election and beyond. The team was convened and submitted its final report in March 2003. This contained two proposals: the majority report proposed a multi-member constituency system with a compensatory national list; the minority proposed continuing with proportional representation and party lists. Cabinet approved the minority report for the 2004 elections. The majority report is to undergo public consideration for the 2009 election and beyond.

Discussion

The Chair asked if the Bill is before the Acting Director General.

Mr Mogotsi replied that it is.

The Chair stated that the Bill was needed urgently so that the situation with the Local Elections, where the Bill was tabled only two months in advance, was not repeated. The legislation was needed to move forward and should be prioritised.

Chief P Mathebe (ANC) asked if the Bill had gone through all the necessary stages and been certified before reaching the Acting Director General.

Mr Mogotsi replied that it had.

Chief Mathebe stated that the Acting Director General must come before the Committee as a matter of urgency.

Mr Mogotsi agreed. He had a discussion with the Acting Director General who had thought that the Bill should be presented by the Justice Department since it was a Constitutional Amendment Bill not an Electoral Bill. Mr Mogotsi explained to him that the Bill dealt with Electoral matters and was thus a Home Affairs Bill.

The Chair agreed that the Acting Director General must take the Committee through this. The Bill is a top priority.

Alteration of Sex Description and Sex Status Bill

Mr Mogotsi stated that the Bill follows the recommendations of the Law Commission made in 1995 and had thus been delayed for seven years. It seeks to provide a legal mechanism for persons that have undergone sex change operations to apply to the Director General to have their sex description in the National Population Register changed. If the Director General does not agree to such an application, the Bill allows an appeal to a Magistrate. Such appeals are held in chamber, not in open court. If the Magistrate is satisfied that the Director General has acted unreasonably then an order can be issued that the change be effected.

Discussion

The Chair asked what guided the Magistrate in such appeals.

Mr Mogotsi replied that the legislation gave procedures and requirements, including medical reports from the doctors that performed the operation and from an independent doctor. The Magistrate will be guided by whether these have been fulfilled and may call for additional oral evidence.

Chief Mathebe asked if the Bill provided for possible physical inspection for verification.

Mr Mogotsi replied that this would be humiliation.

Prince Zulu asked if the Director General receives all the information that the Magistrate does.

Mr Mogotsi replied that the applicant has to supply the information to convince the Director General. There had to be an appeal process though, especially since there might be a Director General that regards the matter as an abomination because of religious or other views.

The Chair stated that the legislation was interesting. It is good that South Africa has laws such as these in place.

Mr Mogotsi noted that the legislation had been drafted in 1995. The Director General had bounced it to the Justice Department. The matter had to be settled by the Ministers based on the involvement by the Director General of Home Affairs in the process.

Departmental Court Action

Mr Grobler noted that there were no provisions for any amendments to the Immigration Act, which seemed a possibility given recent events.

The Chair responded that MPs could follow a process to suggest amendments. The Committee should hear what the Department has to say on the matter.

Mr Magotsi noted that the Department was constantly attacked in Court, even when it should not be in the firing line. He cited the case of the lesbian couple that had recently won a case against the Department to have both of them entered as parents on the children's registration. The judgement was actually against a Justice Department Act. South African is a democratic state and must change with the times.

The Chair asked what the position would be if the father of the babies registered in that case were to demand rights over the children.

Mr Magotsi stated that this could not happen in the case given the conditions of sperm donation. Donors' identity is withheld and they undertake not to make any claims over children resulting from their sperm.

The Chair noted that the Department had lost in court again on 7 April 2003. The intention is to appeal to the Constitutional Court. The Committee had previously suggested that the Department not continue with the case since it reflected badly on the Department to continue fighting a losing battle. The matter should be taken to Parliament.

Chief Mathebe suggested that the letter to the Acting Director General ask that he brief the Committee on the outcome of the court action and on the Department's intended action.

The Chair responded that the Law Advisor should brief the Committee on this. The Committee could then prepare a report and table it in Parliament.

Study Tour and Training for Committee

The Clerk informed that Committee that the Chair of Committees had approved the study tour to the Eastern Cape and that five Members could go on it.

The Chair added that he had written to Social Development about the tour so that they could address matters with them, such as birth registration and the ID campaign.

The Clerk informed that Committee that he had received a letter from the Southern African Migration Project on training the Committee in immigration matters. The course is four weeks long and held in Johannesburg. He asked the Project if it would be possible for a course of shorter duration to be given in Cape Town since it was not practical for the Committee to spend four weeks in training in Johannesburg. He had just received their written response and had not yet had time to read it. It appeared, though, that they were proposing a ten-day course, which he would try to have reduced to five days. A week could then be set aside in October for Members to attend the course.

The Chair stated that this was a work in progress. The Foreign Affairs Committee are interested in joining the training sessions.

Committee meetings outside Parliament and outside Cape Town

The Chair stated that he was looking at having some Committee meetings outside of Parliament and outside of Cape Town, such as a meeting in Hillbrow. The Committee should take its work to the people so that they can contribute.

Prince Zulu noted that when the Chair had raised this idea in another Committee, it had not received a friendly response. He wondered why since municipalities and provinces took their work to the people.

Anti-Xenophobia Advert on SABC1

Ms Mars drew the Committee's attention to anti-xenophobia adverts currently being flighted on SABC1. She did not know who was flighting them and had alerted the Department to one in particular. In the advertisement a Ugandan woman states that Home Affairs was to send her to Lindela (Repatriation Centre) and that she would rather die than go there.

Ms Van Wyk responded that the Committee should try to find out who is flighting it. They could contact the SABC and find out. The Committee could view the advertisements and be briefed by the group responsible for them. The Committee needs to know where the advertisement came from.

The Chair asked the Clerk to check with the SABC.

Ms Van Wyk asked that the Clerk request copies of the Advertisement from the SABC so that the Committee could view it.

The meeting was adjourned.

Appendix:
LEGISLATIVE PROGRAMME FOR 2003: DEPARTMENT OF HOME AFFAIRS

The Department intends submitting the following Bills by 2003:

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

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

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

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

3.Marriage Amendment Bill

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

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

4. Constitution of Republic of South Africa Second Amendment Bill
A Bill has to be drafted to regulate the 2004 elections on the National Assembly and provincial legislatures.

The proposed bill seeks to amend the Constitution of the Republic of South Africa, 1996 as proposed by the minority report of the Electoral Task Team and thereby retaining the present proportional representation system.

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

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

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

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