The Department of Home Affairs (DHA), presented the submissions gathered from the public comments on the Refugees Amendment Bill alongside the Department’s response to the comments. Some of the clarifications given by the Department related to the definition of dependants, to which the Department clarified that the Refugees Act had been aligned with other existing pieces of legislation and was applicable to all persons currently living in the Republic.
On the issue of expanding the definition of marriage to include marriages concluded in terms of Islamic or other religious rites, the Department noted that the current definition of marriage sufficiently covers any marriage concluded in terms of foreign law, including marriages concluded in terms of Islamic law. At the moment, there was no South African legislation that recognized marriages concluded in terms of Islamic or other religious rites.
The Department also clarified issues relating to the change from 14 days to five days for asylum seekers to report to the Refugee Reception Office (RRO); cessation of refugee status; composition of the Refugees Appeals Authority (RAA); terms of office of RAA members; filling of vacancies within RAA; functions of the Standing Committee for Refugee Affairs (SCRA); spouse and dependants of asylum seekers and refugees; the granting of asylum seekers right to work and study based on the determination of cases on the merit; the provisions of the regulations in alignment with the Refugees Act; and several other general comments to which clarity was given. The Department also made technical and consequential amendments to the Bill.
Questions raised by Members of the Committee centred on the fate of asylum seekers that fail to report within five days based on valid reasons; the application period after an asylum seeker has reported within five days; the addressing of issues relating to biometrics; duration of processing the visa from the time an application is made; factors that would considered as valid reasons for failure to report within five days; recognition of Islamic marriages in South Africa and the implication of non-recognition thereof; refugees voluntarily returning to their countries of origins; the need for proof to back up compelling reasons for failure to report to an RRO within the required five-day period; the longest period that a refugee status could be accorded; implication of asylum seekers not having the capacity to feed themselves; the citizenship status of children born to asylum seekers in South Africa; and whether or not refugees in need of chronic disease medication would be catered for.
All MPs were in support of the Bill with the proposed amendments.
The Department thereafter, presented the briefing document on the Border Management Authority (BMA) Bill 2016. The Minister of Home Affairs said that the issue of border management was of utmost importance for the country, especially since a consideration of global trends shows that migration of goods and people was at its peak. There was a sense of urgency in ensuring that people gained access into the country in a legal and orderly manner, as well as preventing chaos in the country from allowing more people than the country can actually cater for.
The main issues affecting border management relates to migration flows, state of infrastructure, natural resource belts, disease hotspots, and piracy areas. Key challenges and risks facing South Africa’s border environment were highlighted. Other highlights include South Africa’s history and failure of fragmented border management; key features of the fragmented border management approach; consequences of the fragmented border approach; vision of the BMA; processes undertaken on the Bill till date; political mandate and principles informing the BMA Bill; and the intended benefits of the Bill.
Previous questions raised by MPs at the first presentation of the briefing document before the Committee were addressed. Other concerns raised by MPs focused on the increased challenge of stowaways; the challenge of insufficient capacity for the Department; progress report on issues raised during the oversight visit embarked on last year; deployment of the same people functioning in the different departments to the integrated BMA approach and the implications thereof; the need for the Committee to embark on tours to countries with border management agencies in order to get a proper understanding of the integrated system; the need for oversight visits to maritime borders; and the need for the Committee to engage with the South African National Defence Force (SANDF) on the over 200 informal airstrips not included as part of the border or mode of entry into the Republic.
The Chairperson welcomed everyone and acknowledged the presence of the Minister and Deputy Minister of Home Affairs at the meeting. She went on to note that the meeting had been rescheduled on two occasions for reasons such as ensuring that the Bill was not returned to the NCOP for failure to follow all processes.
When Members were asked for apologies, Ms T Mampuru (ANC, Limpopo) mentioned that Ms L Zwane (ANC, KwaZulu-Natal) would arrive at the meeting late.
Consideration of the Refugees Amendment Bill [B12B-2016]
The Chairperson recalled that the Bill was referred to the Committee on 15 March 2017 and a briefing was received at a Committee meeting on 22 March 2017. The Committee was expected to call for public hearings. An advertisement was placed on 02 June 2017 to close on 16 June 2017. The advert was placed in all 11 official languages. The Department of Home Affairs (DHA) responded to issues that emanated from the submissions made during the public hearings. This was followed by inputs from the parliamentary legal advisers and state law advisers. The Committee will therefore, deliberate on issues submitted by the public at the current meeting. She urged the parliamentary and state law advisers to advise the Committee properly on issues emanating from the public hearings, which affected the Bill.
Adv. Yolandé Van Aswegen, Principal State Law Adviser, proposed that the Department should present its submission comments on the Bill. This would be followed by a clarification of legal issues that may arise from the submission.
Mr Mkuseni Apleni, Director General (DG): DHA reiterated the point made by Adv. Van Aswegen.
Ms Hlengiwe Buhle Mkhize, Minister of Home Affairs, noted that the comments from the public emanated from people and organisations with good standing. The ministry and the Department took time to consider and interrogate the inputs from the public. However, there were independent persons that raised issues without considering other related pieces of legislation in the system. The Department however, assisted in providing guidance to such individuals.
Mr Apleni said that other inputs would be given by the legal advisers. He noted that the Department had some amendments it would be proposing based on the inputs received from the public hearings.
The Chairperson asked what the implication would be of proposing new amendments after the Bill had undergone other process and was due for finalisation?
On the implication of new amendments to be proposed, Mr Deon Erasmus, Chief Director (CD): Legal Services, DHA, replied that according to Section 75 (b) of the Constitution, the Portfolio Committee has to consider amendments raised by the NCOP, engage on such amendments, and either accept or reject such proposed amendments. However, such amendments would no longer return to the NCOP from the Portfolio Committee. Instead, the Bill would proceed to the House from the Portfolio Committee for final determination.
Departmental Responses to Public Comments received on Refugees Amendment Bill
Mr Erasmus continued by noting that the Department had considered comments from the public following the publication of the Bill for public comments. The Department thereafter, briefed the Committee on the public comments and proposed amendments to the Bill based on the comments received, some of which were technical, while the others were consequential. The Department received 13 submissions from reputable organisations. It then looked into the clauses highlighted in these submissions and gave its inputs against such comments.
The first comment received was in relation to the long title of the Bill that sought to withdraw already granted refugee status. The Department’s response to that was that the long title was a summary of the proposed amendments and there was nothing in the Bill that sought to withdraw already granted refugee status.
On definitions, a comment was received to delete the word ‘permit’ and replace it with ‘visa’ in section 1. The Department replied that the use of the word ‘permit’ was in line with the amendments effected to the Immigration Act of 2002.
Issues were also raised on the definition of ‘dependant’, one of which was that a legally adopted child would not be included under the definition. The Department clarified that the definition was wide enough to include legally adopted children. There was also the issue of education in relation to the definition of dependant. To this, the Department undertook to work with stakeholders to provide public education in line with the current definition. With regard to the definition of dependants excluding other family members, the Department clarified that the Refugees Act has been aligned with other pieces of legislation that were already in operation and were applicable to all people currently living in South Africa, be it a permanent resident, a refugee, or an asylum seeker. On the occurrence of a divorce between spouses, the Department pointed out that a spouse is an equal partner in a marriage, and could apply in his or her own right as a refugee.
A comment was also received on the need to expand the definition of marriage to include marriages concluded in terms of Islamic or other religious rites. The Department responded that the current definition of marriage sufficiently covers any marriage concluded in terms of foreign law, including marriages concluded in terms of Islamic law. At the moment, there was no South African legislation that recognizes marriages concluded in terms of Islamic or other religious rites.
One of the comments received on clause 2, section 4 of the Bill which focuses on exclusionary provisions regarding refugee status, was that additional exclusionary clauses should not have been included. The Department’s response to this comment was that all persons within the Republic were subject to the legislations operating in the country. In other words, legislations applicable to citizens and permanent residents should also be applicable to all other persons within the country. The exclusionary clauses were therefore, included to ensure that the sovereignty of South Africa was maintained. Asylum seekers do not need to obtain documentation through fraudulent means, as there were legal processes that could be followed to obtain such. A refugee can currently become a citizen of South Africa and therefore has to be of sound and good character in this regard.
On the suggestion that the proposed shortening of the period for reporting to the Refugee Reception Office (RRO) from 14 days to 5 days was too short a time period, the Department clarified that the change from 14 days to 5 days was in alignment with the Section 23 of the Immigration Act that provided for an asylum seeker transit visa. The issue of reporting and applying for asylum seeker status also arose during the deliberations by the Portfolio Committee and it was clarified that people need to report to the nearest RRO within five days. The application for asylum seeker status may take place thereafter, but the reporting must be done within five days. Clause 15 of the Bill would be amended to reflect this provision.
The comment received on the cessation of refugee status in clause 3 of the Bill, amending section 5 of the Act, was that any powers granted to the Minister relating to cessation of refugee status must be done in compliance with the Promotion of Administrative Justice Act (PAJA) and Section 33 of the Constitution. The Department replied that the principle of natural justice would apply in this regard; and every case would be determined with on its own merit. The Department however, disagreed with the argument that voluntary re-availment should be understood as return to the country of nationality or formal habitual residence with the view to permanently reside there. There would be prescribed circumstances where the Minister would implement this provision. The prescribed circumstances would be set out in the Regulations.
On the comment received on clause 6 of the Bill amending Section 8 of the Act (see slide 8 of the attached document), the Department pointed out that the courts have held that the decision of the Director General (DG) to disestablish a RRO was polycentric in nature, and was not subject to PAJA. In essence, there were policy considerations involved in this issue, hence the decision of the Supreme Court on the issue. However, it did not mean that the DG can take decisions as he or she wishes. The principle of legality and rationality would be applicable in this regard.
The comment received on the composition of the Refugee Appeals Authority (RAA) as noted in clause 7 of the Bill, was noted by the Department (see slide 9 of the attached document for details).
In terms of clause 9 of the Bill dealing with the term of office of RAA members, the Department clarified that the provision in clause 9 (dealing with Section 8D) was not related to the removal of members of the RAA but the term of office of RAA members.
As for clause 11 of the Bill that sought to amend Section 8F of the Act, the comments indicated that the Standing Committee for Refugee Affairs (SCRA) was currently overburdened with reviews, which resulted in lengthy periods to review decisions. The Department was therefore, advised to be cautious about adding more unnecessary administrative burden to the SCRA. It was also submitted that the DHA cannot legally restrict or regulate the right to work or study in this regard. The Department’s response to the above was that the functions given to SCRA currently exist in the principal act and were not additional. SCRA was expected to take into account the circumstances of applicants on a case-by-case basis in exercising its powers to determine work and study conditions. Reference was made to the Watchenuka case, where the court ruled that the applicants (the mother and son) should be allowed to work and study respectively based on the specific circumstances in which they had found themselves. The Court also ruled that circumstances should be determined on a case-by-case basis. However, the Watchenuka case was implemented using a blanket approach. Hence, the issuance of a section 22 asylum visa granted the approval of work and study but must be done using the court’s decision to use a case by case approach in order to determine each case on its merit
In regards to clause 12 that dealt with the filling of vacancies in RAA (see slide 11 for details of comments), the Department clarified that section 8B provides for filling of vacancies, as it allows the Minister to appoint RAA for six months or three months depending on the work to be done.
On the functions of the standing committee treated under Clause 13 of the Bill, the summary of submissions indicated a need for careful re-consideration of the functions of the Standing Committee, as there seemed to be no obligation on the Standing Committee to monitor or review any decision taken by the Refugee Status Determination Offices (RSDO). It was also submitted that the clause did not provide adequate checks and balances on the decision-making powers of the RSDO. The Department’s response to this was that the SCRA was empowered to carry out quality assurance as provided for in clause 13 (see slide 12 for details). The Department has reviewed that there would be sufficient checks and balances in place in order to safeguard risks. A further comment was made to the effect that the onus placed on the SCRA to determine the period and conditions under which an asylum seeker may work or study, placed an unnecessary administrative burden on the Committee and may lead to further delays and inefficiency in the application process. The Department reiterated that the provisions regarding the determination of conditions had always been a function of the SCRA. Further comments were highlighted in this regard (see slide 13 of the attached document for the said comments and responses from the Department on same). On clause 14 of the Bill dealing with crime prevention and integrity measures, the submission made was to the effect that the attempts made by the Department to combat corruption in the asylum application process was admirable. However, no provision was made for the reporting of corruption in this regard. It was therefore, proposed that an internal corruption-reporting mechanism should be considered. The Department noted this comment, but also highlighted the fact that its counter corruption and security branch had processes and procedures in place to deal with corruption-reporting.
With regard to the comments received on clause 15, amending section 21 of the Act (see slide 14 for details), the Department noted the comments but also reiterated that the guidelines of the United Nations High Commissioner for Refugees (UNHCR) enjoins applicants to be honest and fully establish the merits of their application. The Department also clarified that the power of the DG to dictate categories of asylum seekers to report to designated offices was a discretionary power made available to the DG to ensure proper administration of the Act. Such power would only be implemented after taking into consideration a variety of issues, such as resources, possibility of influx of asylum seekers, and so on. The Department also noted the comment on the agreement with the Department for every applicant for asylum to submit his or her biometrics at the port of entry. On the comment that the provision of assistance to only certain categories of asylum seekers at given offices was discriminatory against other categories, the Department replied that reporting on particular days was connected to the availability of relevant interpretation services, and had nothing to do with discrimination of asylum seekers. The Department also clarified that applicants who are unable to apply within the five-day period would not be excluded from the refugee regime. Rather, a mechanism would be put in place to cater for such applicants to make their application after the five-day period. Also, the Department would not like to have a situation where individuals were in the country for long periods without any formal identification in terms of the Refugees Act.
On clause 17 dealing with spouse and dependant of asylum seekers and refugees, the submissions agreed with the Department that dependants ought to have the same visas as the principal applicant; and that when dependency ceases, the person may apply in the prescribed manner to be permitted to continue to remain in the Republic. These comments were noted by the Department.
The comment made on clause 18 that dealt with asylum seekers, highlighted the decision in the Watchenuka case to grant asylum seekers the right to work and study as an adjunct to their right to dignity. The Department reiterated that it sought to align the Bill with the court’s decision in Watchenuka case, which was to the effect that each case must be determined on its merit, and no blanket approach should be applied in granting the right to work and study to asylum seekers. The Department has also adjusted the provision to deal with concerns raised during the deliberation with the Portfolio Committee, thereby amending section 22 (8) (b) to include the words ‘or any other charitable organisation or person’ after the word ‘UNHCR’.
The Department’s response to the submission made on clause 19 of the Bill that dealt with detention of asylum seeker (see slide 18 of the attached document for details), was that the proposed amendment was of a technical nature, and also that the provision has always existed.
In terms of the comment made on Clause 23 (see slide 18 of the attached document for details), the Department indicated that the proposed period of ten years was in order. Persons granted refugee status would not be in limbo. Applying for permanent residence would not however, grant any new rights that a person with refugee status does not already enjoy. Persons with refugee status enjoy all other rights apart from the right to vote. However, once persons with refugee status obtain permanent residence permits, there would be naturalisation, and afterward citizenship.
The response of the Department to the comments made on clause 24 of the Bill (see slide 19 of the attached document for details) was that every decision made in regard to that clause would be guided by the principles of PAJA and the principles of legality in terms of the rationality test.
The first comment made on clause 27 of the Bill (see slide 19 of the attached document) was noted by the Department. The Department also noted that the concerns raised through the public submissions were misguided, as the withdrawal processes were subject to PAJA. However, a judicial review was possible in this regard. There was also a comment to the effect that the provisions of the section departed from those contained in regulation 17 of the Regulations made under the Refugees Act. The Department replied that the regulations constituted subordinate legislation and could not override the provisions of an Act. However, amendments would be made to regulations where necessary but such amendments would only be implemented after the finalisation of the Bill to be enacted as an Act of Parliament. Another concern that was raised on this clause was the inevitable consequence that would flow from the withdrawal of refugee status, which would be the expulsion of individuals from the Republic. The Department clarified that there were processes and procedures in place before such withdrawal would be carried out. It was only after a person has gone through all internal processes and was still found to be an illegal immigrant that such person would be dealt with as illegal foreigner in terms of the Immigration Act.
There were a few general comments but all the general comments spoke to the issues already treated above.
The technical and consequential amendments proposed by the Department were highlighted with reasons (see slides 22 and 23 of the attached document).
The Chairperson asked for comments from the state law and parliamentary legal advisers.
Adv. Van Aswegen said that the comments received by the state law advisers were similar to those raised in the Department’s presentation, as most of the concerns raised were policy-based concerns. Many of the concerns that related to the PAJA were considered to be unfounded as the decisions taken in terms of the Refugees Act were subject to the PAJA. The state law advisers agreed with the Department on the application of the Watchenuka case, in dealing with each case on its merit. The state law advisers engaged with the Department on the proposed amendments and agreed with the said amendments as they were presented.
The Parliamentary Legal Adviser present at the meeting apologised on behalf of his colleague dealing with the Refugees Amendment Bill who was absent from the meeting. Her colleague had indicated to her that he had gone through the amendments and had spoken with the Department and was in agreement with the amendments proposed by the Department.
Mr M Khawula (IFP, KwaZulu-Natal) asked for clarity on what the fate of an asylum seeker who fails to report within five days for valid reasons would be.
Ms D Ngwenya (EFF, Gauteng) also sought clarity on whether the application period would remain the same after an asylum seeker has reported within five days or the application period would be changed.
Mr C Hattingh (DA, North-West) sought clarity on whether the issue of biometrics would be addressed.
Ms L Zwane (ANC, KwaZulu-Natal) asked for the duration of processing the visa from the time the application is made. She also wanted to know if the Department considered the submissions made by the Centre for Constitutional Rights (CER) and the South African Human Rights Commission (SAHRC).
As an addition to the question raised by Mr Khawula, the Chairperson asked for factors that would be considered as valid reasons. Are asylum seekers aware of other laws alluded to by the Act and is legal assistance was provided to them? Why are Islamic marriages not recognised by any South African law considering that there is the provision of recognition of all other marriages legally recognised by other countries?
On the issue of persons deciding to go back to their countries of origin voluntarily, during the Committee’s visit to Lindela, MPs were alerted to a trick used by asylum seekers to get themselves arrested every December in order to be taken back to their country free of charge, only to return to the Republic the following year. She remarked that this behaviour was understandable based on the long period of ten years provided in the Act. It was therefore, understandable that these asylum seekers loved to go back to their countries of origin but for the problems facing their countries.
In responding to the questions raised, Mr Erasmus began by stating that there were laid down procedures to be followed in terms of complying with the five-day rule of reporting to the RRO. In a situation where a person does not report within the five-day period, the inspectorate would investigate the reasons for such failure to comply. There were checks and balances in place to ensure compliance with the five-day period for reporting. The Inspectorate official would have the discretion to determine whether reasons given for not reporting within the specified period were valid or not. The reasons given would be subject to certain reviews.
Ms Fatima Chohan, Deputy Minister (DM) of Home Affairs, added that the last point on page 3 of the Bill (under clause 2 amending section 4 of the Act), provides reasons that may be regarded as ‘compelling reasons’ for failure to report within five days to include hospitalisation, institutionalisation, or any other compelling reason. These were some of the reasons that would be acceptable. Determining the validity of reasons was not completely discretionary; as it was guided by the legislation.
The Chairperson asked if the phrase ‘any other compelling reason’ was not too open?
Ms Chohan replied that the Department had considered having a closed list but the Portfolio Committee was not happy about it, based on grounds that some compelling reasons may not have been thought of by the Department at the moment. The Department would however, try to find further compelling reasons to include in the legislation, otherwise the reasons provided in the Act should suffice as categories of compelling reasons.
Mr Apleni added that in a situation where a reason such as kidnapping is put forward, proof of such kidnap would be required before accepting such reason as a valid one. It was therefore, proposed that the provision could be left open but proof must be produced to back up reasons in order to determine the validity of such reasons.
The Chairperson asked if the provision could be amended to state that proof must be produced to back up reasons.
Minister Mkhize said that it may be difficult in law to include requirement of proof in the legislation. However, she proposed that the section should include the phrase ‘as prescribed’, and the regulations should require that there should be some overt proof of such compelling reason.
Ms Zwane noted that the word ‘compelling’ was used twice in the section referred to by the DM to show that the importance of having a valid reason for not reporting to the RRO within the specified time.
She also agreed with the drafters on the provision of the five-day rule for reporting, as an increase in the number of days before application for asylum seeker status is made could enhance the risks of people disappearing into the country, as well as other risks that could emanate from improper management of asylum seekers in the country. She also wanted to know the longest possible period that a refugee status could be accorded.
The Chairperson also asked what would happen in a situation where the asylum seekers are unable to feed themselves altogether?
On the question raised about what happens after the five-day period lapses, as well as the duration for finalising the process after application, Mr Mandla Madumisa, Assistant Chief Director (CD): Asylum seeker manager, said that the Department is required to finalise an asylum seeker application within 90 days. The 90-day period is broken down depending on the outcome of the first adjudication of the asylum. Once adjudication is done and it is found that the decision is unfounded, the Department would allow applicants to appeal within 30 days, after which the case would be referred to the appeal board to consider the representation, as well as a date for a hearing. It was expected that the entire process would be completed within the 90-day period but the challenge has always been with the number of members of the appeal board. Nevertheless, the Department was hopeful that the 90-day requirement would be complied with. As for cases relating to review, once a decision has been taken by the RSDOs, the Standing Committee is expected to issue a decision within 14 days, after which an aggrieved person would be allowed to appeal the decision before a judicial review. It is however expected that the two different decisions be finalised within the 90-day period. As for uncontested decisions, which amounts to the granting of refugee status, such decisions could be reached and refugee status granted after two days of application, and after the process of adjudicating the claim has been completed.
The Department confirmed that it was aware of the trick adopted by people to be returned to their countries of origins free of charge in December. Although the proposed amendments did not address this issue, DHA’s operations at centres limit finalisation of cases around the end of the year, in order not to place additional burden on the fiscus. This was because the Department was aware of the notoriety of people or nationalities that approached the centres for processing around the said period. It was also a period known to be abused by returning citizens. It was for this reason that many decisions were not processed around November or early December. Instead, the Department focuses on its reports and other areas of administration within that period.
On the question of what the longest period for refugee status was, it was pointed out that an applicant is usually granted refugee status for an initial period of four years. The Department generates reports in relation to specific political circumstances of countries offering refugees. This was part of the Refugee Protection Regime. If circumstances in any particular country changes, DHA would then consider a process of reviewing the decision of refugee status. This can be done within the four-year period but the norm was to align the review closer to the end of the four-year period in order to determine whether such applicant’s refugee status would be reviewed or whether a withdrawal of refugee status process would be embarked on based on a change in the circumstances of such applicant’s country of origin.
Mr Erasmus continued by noting that the issue of biometrics has been addressed by the Department.
He also noted that the Department considered submissions made by SAHRC and CER.
On the issue of asylum seekers getting awareness on other legislations, he pointed out that when asylum seekers arrive at RROs, non-governmental organisations (NGOs) would be present together with various Departments to engage on various issues and provide assistance and guidance on applicable legislations for those issues. For example, the Department of Social Development (DSD) would provide guidance on legislation affecting destitute children.
On the issue of Islamic marriages, the definition of legal marriage recognised under South African law was explained to (see page 3 of the Refugees Amendment Bill). The definition recognises marriages concluded under foreign laws. In a case where a marriage concluded in terms of Islamic law in a foreign country is tabled, the Department would consider other specific provisions to be complied with in terms of that specific country for such marriage to be considered a legal marriage. If such marriage is accepted as a legal marriage in that country, it would be accepted as a legal marriage in South Africa.
On the issue who cannot feed themselves, Deputy Minister Chohan said that this was a subject of ongoing discussions with the UNHCR. Envisaging the process of screening would show that once refugees arrive at the refugee centre, the Department would investigate whether they are able to sustain themselves for a period of four months, either through friends and family as seen in the Bill. However, if it became apparent that a person could not cope and needed assistance immediately, the UNHCR in South Africa would find various NGOs to provide shelter, accommodation, food and other essentials to such person. DHA was working on a programme with the UNHCR to enable it transfer such persons immediately after identification, from the refugee centres to such shelters where their basic needs would be taken care of. The Department was still in the process of discussing the mechanism of the entire process but it was of the opinion that this was the solution to handling such situations.
The Chairperson asked if NGOs were always present at the refugee centres and if there was an arrangement for NGOs to create awareness on other laws amongst asylum seekers. In the case where there was no arrangement, how was the situation at the refugee centres handled?
Ms Zwane asked if children of refugee seekers born in South African would be entitled to South African citizenship.
Ms T Mpambo-Sibhukwana (DA, Western Cape) wanted to know if refugees in desperate need of chronic disease medication would be catered for.
Still on the issue of Islamic marriages, the Chairperson sought clarity on what would be done in a case where a couple gets married in South Africa using Islamic law however they then relocate to another country that does not recognise Islamic law and then have to return to South Africa due to a crisis in the country to which they relocated. As their marriage was not recognised in their country of origin neither was it recognised in the country to which they relocated, what marriage law would be applicable in such a situation?
In responding to the questions raised, Mr Apleni said that one of the proposals brought forward by the Department was the establishment of a Refugee Processing Centre. The operation of the centre would be such that the centre would have a facility to accommodate people. For people that came from low risk areas, the facility would be built in a way that the UNHCR, Red Cross, SCRA, RAP and other relevant bodies would be present at the facility. There have been problems with the duration of time it takes to reach a decision due to the low capacity of SCRA and RAP. This means that people could be in the country for three years before a decision is reached, resulting in the inability of people to sustain themselves. The Department was aware of the damage has been caused by people coming to complain about refugees starting up businesses in townships. It therefore, approached the National Treasury to consider vulnerable groups in the social grant as it would be cheaper to sustain such persons than address the damage caused by providing for such vulnerable group of persons. The Department stated that even though UNHCR could take up the responsibility, the lack of system would affect this. There was a need for a system to be put in place to deal with these cases within the shortest possible time.
The Citizenship Act was clear on the issue of citizenship of children of refugees. It provides that if one of the parents of the child were South Africans, that child would be South African. But if this was not the case, the child would adopt the status of his or parent during the time when the parent was a refugee. Such child would enjoy all other rights apart from the right to vote, since by nature, the refugee status was not a permanent status, as the intention was for the parent and the child to return to their country of origin when peace returns to such country. However, if within the four-year period, the status of the parent changes or the child attains the age of 18, the child has a choice to take up the citizenship of South Africa or to go back with his parents to their country of origin.
On the question of chronic medication, Mr Erasmus said that the Bill of Rights and the Constitution provide everyone with the right to basic health care. This issue also delved into the realm of the Department of Health (DoH), where certain procedures and processes have been put in place to address issues such as this. It was in this regard that DoH’s interaction would be required to address medical referrals.
With regard to the issues around Islamic marriages, it was noted that it would be impossible to legislate on every circumstance that could arise. However, in the case of the scenario painted by the Chairperson, the person who has concluded his or her marriage in terms of Islamic law can apply in his or her own right, in alignment with the current legislation. The Civil Union Act was also available in South Africa. It was not only for same sex marriages. It could also be applied by parties who do not want to be married under the Marriage Act, for instance.
On the issue of vulnerable applicants that came from war-torn countries, Minister Mhikze said that debating such issues in terms of human rights bodies to which South Africa was a member state to might not make the referral of such persons to NGOs a simple issue. This was because the country could find itself in a situation where the rights of such vulnerable persons are violated. She therefore, proposed that at an implementation level, technical teams would need to carefully consider all options. It was particularly important to do so because refugees were overseen by the United Nations and countries were scrutinized on how they take care of them, not only with regard to vulnerability during the assessment phase, but also during their stay as residents in the country. The Department has a responsibility to ensure that refugees are well taken care of during their stay in the country. However, a balance should be struck as there are South African citizens that also needed to be taken care off. The submissions made by high level human rights bodies would be considered in this regard in connection with what the Bill provides in terms of vulnerable persons.
The Chairperson expressed satisfaction on the proposed establishment of a Refugee Processing Centre. She noted however, that this proposal was not mentioned anywhere in the Bill. No mention was made on when the centre would be established. She raised a concern on having NGOs establish and take control of the centre as the Department had no control over NGOs, and neither did the government.
She also raised a concern on the relationship between DHA, DoH and DS, noting that the DoH was under severe constraints. There were a number of issues emanating from different provinces. This was because South Africa was bordering different countries. A number of people come into the country and are processed. Once such persons are sick, they approach the DoH without knowing what to expect. The Department itself had no knowledge of what to expect in terms of the number of people coming in. This raised a concern on the need for improved relationship between the relevant departments.
Finalisation of Bill
Ms Zwane moved for adoption of the Bill.
All MPs were in support of the Bill with the proposed amendments.
The Chairperson read the report of the Committee on the Refugees Amendment Bill [B12B-2016]
“The Select Committee on Social Services having considered the subject of the Refugees Amendment Bill [B12B-2016] National Assembly, Section 75 referred to it, reports that it has agreed to the Bill with amendments.”
The report was accepted.
Briefing on the Border Management Authority (BMA) Bill, 2016
Minister Mhkize noted that the issue of border management was of utmost importance for the country. A consideration of global trends would show that migration of goods and people was at its peak. There was a sense of urgency in ensuring that people gained access into the country in a legal and orderly manner, as well as preventing chaos in the country from allowing more people than the country can actually cater for. The importance of the BMA Bill was emphasized, while she expressed hope that the process of implementing relevant clauses would fast track the achievement of the desired objective.
In presenting the briefing document, Mr Apleni recalled that the Department had interacted with the Committee in March 2017. Questions were sent to the Department afterward, and responses have been provided to such questions.
The Chairperson confirmed that MPs had received responses to the questions raised at the previous interaction between the Committee and the Department on the document. She asked that the document be presented yet again without delving into much detail, after which responses could be given to questions previously raised.
Mr Hattingh observed that the document was marked ‘confidential’. He sought clarity on the implication of such inscription on the document.
Mr Apleni clarified that the document was labelled ‘confidential’ at the initial stage when it was being presented. He noted that the document was exactly the same as what was presented in March.
He continued by noting that the purpose of the briefing was to provide an overview of the BMA Bill 2016 as approved by the Portfolio Committee on Home Affairs.
Border management is a global problem. The main issues affecting border management relate to migration flows, state of infrastructure, natural resource belts, disease hotspots, and piracy areas. These issues have increased over the years.
The architecture of the ports of entry into South Africa was highlighted (see slide 7 of the attached document). South Africa has 72 ports of entry in total: 53 land borders; six rail borders; ten air borders; and nine maritime borders.
In considering the vulnerabilities in the border environment, it was pointed out that South Africa has an extensive border environment in terms of land, air, and maritime. South Africa has 1.2 million square kilometres of airspace; 4 471 kilometres of land borders; 3 924 kilometres of maritime borders; and shares borders with six neighbouring countries.
Some key challenges and risks facing South Africa’s border environment were highlighted (see slide 9 of the attached document). South Africa’s history and failure of fragmented border management was also alluded to (see slide 11 of the attached document for details). The key features of the fragmented border management approach were highlighted (see slide 12 of the attached document). One of these key features was the lack of a single management, command and control structure in the border management environment. The consequences of the above-mentioned fragmentation approach were outlined (see slide 13 of the attached document).
The political mandate and principles informing the BMA Bill were traced (see slides 15 to 18 of the attached document). Emphasis was placed on the principle of ensuring full custodianship for infrastructure at land ports of entry. One of the biggest problems facing the border environment was the different departments in charge of different borders. For instance, the Department of Public Works (DPW) was in charge of land borders, while the Ports Authority was in charge of maritime environment, and the South African Defence Force was in charge of air space. Pleas had to be made with each department or authority in charge of the different ports of entries before space could be created, instead of the other way round.
The vision of BMA was highlighted (see slide 19 of the attached document).
The processes undertaken on the BMA Bill date were outlined (see slides 21 to 25 of the attached document). Overall, the Cabinet approved policy direction and outcomes remain unchanged.
There were three substantive areas of disagreement in the National Economic Development and Labour Council (NEDLC) process. These disagreements were highlighted (see slide 23 of the attached document).
An overview of the BMA Bill was highlighted (see slides 27 to 55 of the attached document).
The intended benefits of the BMA were also highlighted (see slides 56 and 57 of the attached document).
On the first question raised by MPs at the previous briefing which sought clarity on how the BMA would address issues of numerous unofficial and informal places of entry and exit along South African land borders, Mr Apleni said that borders were imposed on South Africa and some of those borders involved chiefs and tribes split on different sides of the border. Hence in order to curb this, informal border crossings were established where fingerprints were captured from people on both sides. The Department was mindful of this problem and was working towards addressing it.
On the question of how BMA would address the challenge of trans-border migration, the Department was working with the Department of Agriculture, SANDF, the South Africa Police Service (SAPS) and Customs. However, once the coastguard was functioning optimally, it would be easier to deal with this challenge.
In response to the question around the proposal to bring together or integrate the functions of the BMA into a single common approach, the Department noted that there was no one organisation to deal with issues of corruption. It was for this reason that an integrated approach was needed in order to gather the experiences and stories about the happenings on the coasts.
On the question of what capacity exists in the Department to review the BMA, it was noted that the BMA was a new organisation without a capacity in the DHA. Rather, it had its capacity in all the departments integrated in the functioning of the BMA.
On the question of the existence of similar border management entities on a global scale, the Department replied in the affirmative. Similar entities existed in the Americas and Asia, but there was no such other entity in Africa. Africa however, has a one-stop border management system, and not an agency.
With regards to the issues raised around what would make BMA different from other similar government entities that were performing poorly, it was pointed out that the management and monitoring of the BMA would determine how effective the agency would be. The BMA was clear on what it wanted to achieve and was also covered by clear legislation. This would also be an entity that would not outsource.
On the question of why airspace was excluded from base mandate, and why there were numerous small airstrips that were unsupervised, the Department explained that SANDF was still dealing with the airspaces alone but it understood that the airspace included those small airstrips.
On the question of whether the 9000 envisaged Border Management staff was enough, the Department replied that part of the border guard’s responsibility is to patrol the entire land border line and unofficial border crossing. This number is not enough. SANDF did not have the capacity to cover the stretch of the entire land borderline which was approximately 4400km. However, the need for more border guard staff would be built into the budget proposal to be submitted to the National Treasury over a three-year period. Currently, the Department is estimating a sum of R2.8 billion sitting on various proposals, but over a period of three to five years the Department was considering an estimate of R10 billion to be used in funding the BMA, which was not previously funded.
The Chairperson noted that the Committee embarked on oversight visit to KwaZulu-Natal (KZN) in the past week. The Committee observed some of the challenges alluded to by the Department in the presentation. For example, although the number of maritime ports was highlighted, no mention was made of the over 70 fishing ports without control. She asked for how such fishing ports were controlled.
She also referred to the issue of goods, noting that during the xenophobia crises, the ad-hoc Committee on this issue visited one of the cities in eThekwini, and discovered that the area was restricted against South Africans. The area was controlled by foreign nationals. Similar cases were found in Johannesburg and Durban. The source of the conflict was the existence of numerous containers in such streets; and the inability of South African small businesses to compete with the foreign business owners who acquired their goods directly from the ship to their businesses, making it cheap for them to do business, whereas South Africans do not have access to such sources for business. It was also noted that some companies that were often exempted due to their long-standing business relationship, were sometimes used to smuggle illegal products. However, it was only products to which an agreement has been made with the companies.
Mr Khawula agreed that there were areas of concern that the Department should pay attention to. One of such areas of concern was the increased challenge of stowaways which was causing a huge problem, especially because of the challenge facing the Department in terms of capacity, which has affected the effectiveness of arresting people who come in unlawfully through stowaways.
Ms Mampuru asked for progress report on the issues raised during the oversight visit embarked on last year.
Mr D Stock (ANC, Northern Cape) referred to the key features of fragmented border management approach and the challenges facing the Department in relation to the border management posts, particularly in terms of shifting responsibilities or pointing fingers at other officials when a problem arises.
He confirmed that he was quite conversant about what the BMA seeks to achieve; which is to integrate all the functions in one in order to have a single common approach. He however, wanted to know if the same people functioning in different roles would be deployed into the integrated BMA approach and the process of deploying such people. He opined that it might be problematic to deploy the same people, as the same result might be gotten at the end of the day.
The Chairperson indicated and emphasized that the issues being raised around the BMA Bill were not centred around the DHA. Rather, they were issues affecting the safety of the country. It was unsafe to have a country that was free for all. Starting with the airspace, she noted that a presentation from SANDF would be necessary to provide details on the over 200 informal airstrips that were not included in the ports of entry, as this created an impression that the undesirable people were poor people. This was because it was only rich people that utilised informal airstrips.
It would also be necessary to embark on a tour to examine countries that have implemented border management agencies in order to consider the effectiveness of such agencies in such countries in comparison with countries without the agencies.
She noted that the Committee had previously requested an arrangement of oversight from the Department in order to assist the Committee in getting proper understanding of what takes place in maritime space, as the Committee had knowledge of the happenings within land borders and air space. She restated the request and stressed the need for the Committee to embark on oversight of maritime borders in order to get an insight into the operations at the maritime ports.
The Department was asked to explain the concerns of the National Treasury.
Mr Apleni said that a consensus had been reached on the challenges facing the Bill. On the issue of goods, the challenge was the absence of an integrated mechanism to address the issue. The main concern raised by the South African Revenue Service was the use of goods at borders to collect tax. A consideration of the goods in this perspective painted a problem-free picture. However, this does not address the issue of illicit goods. It was for this reason that the Department upheld the view of an integrated approach in dealing with various challenges facing border management. It was expected that the BMA would solve the issue of integration among various relevant departments. There were no-go areas. An inter-ministerial committee on migration chaired by the Minister of Performance, Monitoring and Evaluation and Deputy Minister for Home Affairs has been established to deal with intergovernmental relationships, including provinces and municipalities. The Department was working together with the Committee to resolve these issues. No-go areas were in KZN, Gauteng and Western Cape.
On the issue of tours to other countries, the understanding of the Department was that the Committee would visit Germany. The visit was however postponed due to other issues.
On the issue of stowaways, it was pointed out that the office of Home Affairs situated in Richards Bay for example, was located in a place where no control could be exercised over any situation. In Cape Town, the Department was contesting over the trans-border issue, due to the fact that ships report to the tower upon arrival but it was difficult for the Department to acquire information from the tower to its centre. It would have to beg for such information or produce a document before any information is given. It was for this reason that the BMA Act was necessary, in order to deal with issues of stowaways. DHA was incapacitated, as it had only 750 inspectorate officials throughout the country. The Department has however, proposed a repositioning for itself in order to ensure that it is understood as a security department.
On the issue of Beit Bridge, six ports of entry would be added here. There was no other thing that could be done in terms of infrastructure for Beit Bridge because many things had been tried with little or no success. The Department had gotten NT’s approval to look at how the ports could be revamped to state of the art status.
Agreements have been reached on Port Saint Johns.
In responding to the question raised by Mr Stock, it was noted that one of the issues that the Department did not agree with the Union on was the matter of vetting. As for the Bill, it was proposed that the vetting of people in these areas could not be five years. Such vetting had to be dependent on an issue, as well as on a polygraph test that had to be conducted alongside. The people would be transferred and afterwards then all other processes would be followed. If such processes and requirements were not met, the persons could remain in their countries, but if the conditions were met, they would be vetted. Integrated structure still remained the real issue to be addressed.
On the view of the National Treasury, the understanding of the Department was that the main issue was the separation of goods into the tax process, which would fragment the process. DHA’s view on this issue was that the tax process on those goods began from the country of origin, where they were paid for through Electronic Funds Transfer (EFT). By the time those goods arrive at the port, the same staff would just check to confirm that the goods complied with the goods for which tax had been paid. The Department believed that as long as this did not touch the revenue, it would be able to achieve success.
Minister Mkhize said that it was in the interest of everyone to find ways of ensuring that the Bill was finalised as soon as possible. She noted that the comment made by the Chairperson and Mr Stock summarised the issues. The Department’s aspiration was to achieve an integrated coordinated port thereby managing migration through South Africa’s ports. However, the reality of the problem was that there were historical decisions that should be understood in order to achieve this goal. There would be need for people to give out their identities. This was because the police and military would still think in their usual manner, thereby creating a loophole in the interim where the risks would be through the hands of the police; and sometimes through military or through the officials of DHA.
The issue of capacity within the Department was a major problem which created huge risks, leading to loopholes. As long as obvious risks existed, there would be people that would capitalise on such risks to create problems on port bases that are controlled by foreigners in our country.
On the question of the difference that would be made, she noted that a visit to the ports shows that everyone would attribute the control of the ports to syndicates. This was regardless of the fact that the DHA was present, together with the police and military. The difficulty in intervening decisively and timeously was yet another loophole, as the continued knowledge of syndicates are known would create awareness on the roles played by such syndicates in assisting people to enter the country illegally through other countries.
As the Department considers the finalisation of the Bill, it would be helpful to have different committees engage on the issues yet to be addressed. Coordination was very important but the question to be asked was what it would take for people to cooperate and coordinate. There were a number of things to be considered in finalising the Bill as a matter of urgency in order to minimise the risks that South Africans would be exposed to. The maritime side was a major risk. It was important to strengthen the inter-ministerial committee and other technical teams at an official level.
It was also important to consider carefully other things that would only be achieved after cooperation with feeder countries had been achieved through the Department of International Relations and Cooperation. Tough discussions often arose in areas where countries succeeded in managing their borders between countries; particularly countries that produce high numbers of migrants, as well as countries that received high numbers of migrants. Usually, countries from both sides make commitments to secure the borders in order to ensure that the burden was carried by both countries. The BMA Bill was therefore important and urgent. It also called for real inter-ministerial and inter-departmental cooperation.
The Chairperson suggested that the Committee should set aside two days to finalise the Bill. MPs could ask questions later. She however, indicated that Bills take a long time in government before being brought to Parliament, resulting in limited time for Parliament to engage on Bills. It would have been ideal for the Committee to have a proper understanding of the issues surrounding the Bill. The Bill would be approved if things go according to plan. Funding was another issue that should be addressed.
The meeting was adjourned.
- Refugees Amendment Bill [B12A-2016]
- Refugees Amendment Bill [B12B-2016]
- Border Management Authority Bill [B9A-2016]
- Border Management Authority Bill [B9B-2016]
- Border Management Authority Bill: Department of Home Affairs presentation
- Refugees Amendment Bill: responses by Department of Home Affairs presentation
- Report of the Select Committee on Social Services on Refugees Amendment Bill [B12B-2016]
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