Draft Immigration Regulations: Informal Discussion; Committee Report on Eastern Cape Visit: committee programme

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
27 May 2003
DRAFT IMMIGRATION REGULATIONS: INFORMAL DISCUSSION; COMMITTEE REPORT ON EASTERN CAPE VISIT; COMMITTEE PROGRAMME

Chairperson: Mr H Chauke (ANC)

Documents handed out:
Draft Committee Report on Eastern Cape Tour of Portfolio Committees for Home Affairs and Social Development (available at Tabled Committee Reports once report is finalised)
Draft Committee Programme (see Appendix)

SUMMARY
Questions were raised about problems with the delivery of forms under the new Regulations and the dual process being followed by the Department. Since the Department officials concerned were unavailable, discussion was deferred to the next meeting.

The Committee agreed that the report on its visit to the Eastern Cape should be finalised. Recommendations would be combined with those of the Portfolio committee on Home Affairs and the final report presented at a joint meeting.

The Committee considered their oversight role and ways of exercising this. The problem of fraudulent marriages was raised as a priority.

MINUTES
Draft Immigration Regulations
Discussion
The Chair noted that Department officials who were able to respond to the Committee's concerns about the draft Regulations were currently out of the country. He suggested that parties engage on the draft Regulations and come up with recommendations. The Committee should identify key areas for discussion with the Department.

Mr I Pretorius (DA) asked if 2 June 2003 was the deadline for submissions on the draft Regulations.

The Chair replied that it was. The Committee should have a response from the Department by that date. However, there would be later opportunities for recommendations when the new Regulations were tabled in Parliament and during the second public comment period. At some point the Committee would have to engage with the Immigration Advisory Board (IAB).

Mr R Pillay (NNP) asked if it was reasonable for the Committee to continue with discussion on the draft Regulations. Would it not be better to wait until the officials concerned were available?

The Chair agreed. However, parties should engage on the draft Regulations before the meeting so that the Committee could make a proposal. The Committee should also look into how they could engage with the IAB. Regarding the Constitutional Court challenge to the current Regulations, he said he was not sure what the outcome had been. However, the Committee had already made their disapproval known, so there was no need to engage further on the matter.

Mr Pretorius responded that he thought that judgement had been reserved in the case. It was a highly complex matter and it would be difficult for the Committee to make a proposal on it.

Prince N Zulu (IFP) added that members had had an opportunity to raise questions about the Court challenge and the Minister had responded. Did the Committee need more on this?

The Chair responded that the Committee's responsibility is to ensure that the parliamentary process went properly. The Court process, of which the Committee had expressed their disapproval, was left to the Department. It was in the Committee's interest to make sure the Act worked.

Mr B Gilder (Director General) apologised for the unavailability of the two officials, who were at a South Africa-Botswana bi-national in Botswana. He had only been made aware of the meeting yesterday and had then ordered one official to return, but this proved logistically impossible. He confirmed that the Constitutional Court had reserved judgement.

Mr Gilder was excused to attend a Select Committee meeting.

The Chair asked if the Regulations published on 21 February had been implemented.

Mr A Goosen (Deputy Director: Temporary Residence Sub-directorate of Directorate of Migration) replied that they had.

The Chair asked about problems experienced with form availability at border posts.

Mr Goosen replied that there had been problems with the distribution of forms. All border posts and missions that had reported problems had since been supplied with the forms. Further, all the most important forms were available on the Web.

Prince Zulu asked if Mr Goosen could clarify the status of the various Regulations.

The Chair added that he had learned that because of the appeal the Department would continue implementing the Regulations until further notice and as long as the Court process continued. Could Mr Goosen elaborate?

Mr Goosen responded that the judgement against the Department held that the Regulations were not valid because they did not take into account Section 7 of the Act, which requires public comment. However, if one looked at the Regulations of 21 February, it was stated that they had been made in terms of Section 52 read with Section 51. The Department had appealed the judgement and so it is in abeyance. This allowed the Minister to implement the Regulations. The Court could still invalidate this. Indications were that judgement would be given in fourteen days.

Meanwhile, the Department was following the process prescribed in Section 7. The draft Regulations had been published on 25 April 2003 with forty days allowed for comment. Many comments had already been received and the Department had also made comments. The IAB would work through all these comments and try to accommodate them. Reasons would be given for any comments not accommodated. The Regulations would then be tabled and adopted.

Ms A van Wyk (ANC) noted that after the IAB was inaugurated Section 51 would fall away. Would this not affect the Court case, making it pointless?

Mr Goosen replied that he would prefer not to comment on this. However, his personal opinion was that the judgement would not go against the Department, especially since the Section 7 process had been started.

The Chair responded that Mr Goosen's view suggested confusion in the Department. Once the new process started, Section 51 would fall away. The Department was implementing Regulations that were being contested. Mr Goosen's view seemed to be that,since the Department was complying with Section 7, the Court would be lenient. If the Department was implementing Regulations that were found to be unconstitutional, then the work now being done would be worthless.

Chief P Mathebe (ANC) noted that the Department was following a dual process with the Court challenge and the implementation of Section 7. Would the Section 7 process have been an exercise in futility if the Court challenge was successful?

Mr Pillay stated that without the full complement of Department officials present, the current discussion was futile. He suggested that the Committee should call all the necessary people to avoid fragmenting the process. The Committee had an oversight role and the Department was accountable to it. There was no accountability at present.

Chief K Morwamoche (ANC) agreed with Mr Pillay. He asked if the Regulations could be implemented while sub judice.

The Chair responded that the Director General had said that all senior officials would be at the next meeting.

Chief Mathebe stated that the person that had authorised the dual process should also attend.

The Chair responded that the Minister had been called and had made his position clear. The Committee should assist in addressing the confusion by making recommendations to Parliament.

Ms Van Wyk asked that the Department brief the Committee on its submission to the IAB on the draft Regulations.

The Committee agreed to carry over discussions on the draft Regulations to the next meeting.

Report on visit to Eastern Cape
Discussion
The Chair stated that the report was still in draft form. He proposed that members that had participated in the study tour should meet to finalise it and table it at the next meeting. Going through it, he could see a great deal had not been captured. Once this process was complete, there would be a joint meeting with the Portfolio Committee for Social Development to adopt the report. The Committee would make comments and recommendations on the report, which could then be combined with those made by the Social Development Committee.

Chief Morwamoche concurred with the Chair's suggestion. The draft report had been compiled by the clerk for the Social Development Committee, who had accompanied them on the tour. This could explain the omissions.

The Chair responded that the clerk had fallen ill on the study tour and had been hospitalised.

The Chair noted that only ANC members of the Committee had gone on the tour. The Social Development component had included an IFP member, though he was not a member of that Committee. This was not because other parties had had other commitments, not because they had been excluded.

Committee Programme
Discussion
The Chair asked that the Committee look into the programme. The meeting on 3 June would have to be expanded considerably to accommodate discussions on the draft Regulations.

The identity document (ID) campaign was to be intensified in June. The Committee should invite the directorate in charge of the campaign to brief them on this. The Committee should also ask for more resources for the campaign.

Mr Pretorius noted that the Minister had mentioned a request to Treasury for funds for the free issue of identity documents, including photographs. The Committee should support this.

The Chair responded that he would check with the Speaker's Office on how to approach this and then write a motivation for the necessary resources.

As part of their oversight role, the Committee still had to visit the Department's head office and the Independent Electoral Commission (IEC) head office. At the previous meeting, the Committee had divided into smaller groups, each focusing on a target area. The Committee should try to design a programme for oversight to be tabled for adoption. It was important to target the provinces, especially rural areas, and make sure things did not collapse after the Committee had finished their visit. Follow-up was essential. The Committee should consider calling Regional Directors for this. Although, currently, the focus was on KwaZulu-Natal, North West Province and Gauteng, members should suggest other provinces needing attention.

Prince Zulu said that any visit to the Department's head office would need to include the Home Affairs National Identification System (HANIS). The Minister had said in his speech that he had been uninformed about aspects of HANIS. The Committee should look into this.

Ms M Maunye (ANC) suggested the Committee visit the Government Printing Works.

The Chair agreed, noting that the Auditor General had indicated there were problems at the printing works. The Committee should try to accommodate as many areas as possible. They should communicate with the Director General on areas of interest so that the Department could ensure that officials were properly briefed with the necessary information available.

The Chair had written to the Ministers of Home Affairs and Justice on the Electoral Bill, asking for a date when they could meet jointly with the Portfolio Committees for Home Affairs and Justice. When he had contacted the Justice Department, they had said that the Bill was a Home Affairs Bill. He was concerned that the Bill would end up being rushed through at the last minute.

The Chair raised the problem of illegal marriages. The Committee should raise this concern and come up with ways to close any loopholes in the Act. For example, the form currently in use did not even require witnesses. This could be addressed by requiring witnesses with valid South African identity documents. Illegal immigrants that paid citizens to marry them further complicated the matter.

Mr Pillay responded that the Committee would need to exercise its oversight role in this matter. Regional Directors should be called to account. Such fraudulent marriages would be less likely if accountability was enforced.

Chief Morwamoche stated that only civil marriages were abused. Customary marriages required the presence of parents and traditional leaders.

The Chair responded that during a visit to Rustenburg he had spoken to the Director who had raised the problem of traditional leaders helping illegal immigrants to obtain identity documents. It is not just civil forms that were at fault. Study tours helped to identify such issues and expose corruption.

Prince Zulu commented that there was not a single case of fraudulent customary marriage. Further, one needed more than just a note from a traditional leader to register for an identity document. Regarding fraudulent marriages, he had never heard of a marriage officer being arrested for such marriages.

Chief Mathebe stated that the Director in Grobblersdal had experienced problems around letters from traditional leaders about changing birth dates. The Department required a birth certificate for this, but many people did not have these. The regional offices did not know what to do and the responsible person should be called to clarify the matter.

The Chair responded that if the Committee identified a loophole, they could recommend an amendment to close it. The problem of marriages had to be prioritised.

Chief Mathebe stated that birth dates also affected eligibility for pensions.

The meeting was adjourned.

Appendix:
DRAFT COMMITTEE PROGRAMME AS OF 27 MAY 2003

PC on Home Affairs Draft Programme

B.

Possible Public Hearings:
Public hearings on Electoral A/B
Public hearings on Film and Publication A/B
Alteration of Sex Description Status
(Dates of hearings depend when Bills are referred but we expect to deal with the above 3 this year).

1. Film and Publication A/B
2. Electoral A/B
3. Refugees A/B
4. Alteration of Sex Description Status
5. Identification A/B
6. SA Citizenship

1. List of Acts overseen by Committee: