Relevant document: The GPS app that can give everyone an address
The Portfolio Committee on Home Affairs was briefed by the Independent Electoral Commission (IEC) on the country’s preparedness for the 2019 national and provincial elections, and deliberated on the amendments to Section 34 of the Immigration Bill.
First, however, the mother of a 13-year-old boy described how the Department of Home Affairs (DHA) had failed to issue the correct travel documents to enable her son to take part in two overseas soccer tournaments in Thailand and Dubai. The family believed the Department had been grossly negligent in repeatedly bungling his applications, and indicated that they planned to sue the DHA for R461 000 over his traumatic experience and for costs they had incurred. The Department said it would investigate the matter and report back.
The IEC reported that it was ready to preside over the general elections, which would take place between May and August 2019. It urged Parliament to speed up the processing of amendments to the electoral laws in time for the elections. The Electoral Laws Amendment Bill, once approved, would make provision for the electronic registration of political parties and the electronic submission of party candidate lists. The IEC wanted to remove restrictions on the registration and voting of mental health patients, and the Electoral Court to determine leadership disputes in parties. The proposed legislation would also deal with time frames to lodge objections on the voters’ roll.
On June 2016, the Constitutional Court had directed that the IEC must, by 30 June 2018, have obtained and recorded on the national common voters’ roll, all the addresses of voters that were reasonably available as at 17 December 2003. It had also directed it to obtain and record all available addresses for the relevant ward segments of the voters’ roll for purposes of municipal by-elections. The IEC had so far submitted progress reports in December 2016, June 2017 and December 2017, and the final report was due by 14 June 2018. It had asked the Constitutional Court for a 17-month extension to verify the addresses of those not recorded on the voters' roll, but reported that it had made significant progress.
The Committee expressed confidence that the IEC was credible and able to deliver free and fair elections, and stressed the call it had made earlier in the year for eligible voters to register to vote and to update their addresses on the voters’ roll. Members sought more information on the preparedness of the IEC to hold elections if Parliament were to be dissolved early, and whether the President had requested an early election. They asked about the provisions put in place to cater for illiterate people in respect of online voting, particularly the rural poor.
The Committee was told that in June 2017, the Constitutional Court had declared sections of the Immigration Act 2002 inconsistent with sections 12(1) and 35(2)(d) of the Constitution because they did not allow for automatic judicial intervention when an illegal foreigner was detained for purposes of deportation, and did not allow a detained illegal foreigner to challenge the lawfulness of his or her detention in person in court. The Members discussed amendments which focused on aligning the provisions relating to the detention of illegal foreigners for purposes of deportation with constitutional principles, and on providing for further extensions of detention in certain circumstances. The Bill also sought to provide guidance to an immigration officer as to when they may arrest and detain an illegal foreigner for purposes of deportation.
Complaint against Department of Home Affairs
Mr P Chauke (ANC) suggested that the Committee begin the meeting by dealing with the emerging issue of Mr George Maskini, and his experience in dealing with the Department of Home Affairs (DHA) and his inability to obtain a valid passport from the Department. He added that the family of Mr Maskini had initiated a court case against the DHA, and the matter had gained media attention.
Mr M Hoosen (DA) cautioned that there would be the risk of setting a precedent by choosing to discuss one case, while there were hundreds of others also against the DHA. He was against the lawyers of the various parties being present at the session.
Ms Bampendi Maskini, mother to Mr George Maskini, addressed the Members about her family’s predicament. The family believed that the Department of Home Affairs had been grossly negligent in repeatedly bungling Mr Maskini’s applications, and failing to issue the 13-year-old with the correct travel documents to take part in international soccer tournaments between 60 nations in Thailand and another later in Dubai. The family indicated that they planned to sue the department for R461 000 over George’s traumatic experience, and for costs it had incurred.
The family had come to South Africa in 2000 as refugees from the Congo, and in 2008 they had been granted permanent residency. Her two sons were born in the Republic of South Africa, but when the two applied for permanent residency, they had been told that they did not qualify, as they were not refugees. They were, however, granted permanent residency some time later, but they could not apply for a passport. George Maskini was granted a black travel document, indicated in it “South African Citizen”, instead of the green passport that is usually given to South African citizens. That document was therefore rejected at the airport when George attempted to travel to the first tournament.
George got a second opportunity to attend another international tournament, this time in Dubai, and was at the airport with his team mates when immigration officials and the Emirates airline crew told him his latest passport had been declared lost and stolen, and that he could not travel using it. That was despite the intervention of Deputy Minister of Home Affairs, Ms Fatima Chohan, who had personally issued him with those travel documents, and the family having prior to the day been assured by DHA officials that he would be allowed to travel. Ms Maskini added that a lot of people and well-wishers had donated to cater for her son’s trip, flight and expenses, but it had all gone to waste.
A new passport -- the third -- had been issued, but it had no visa because the previous passport that had been issued had contained the correct visa, but that passport had been cancelled. He was thus unable to travel.
George had another opportunity in September to attend another soccer tournament in the United Kingdom, but his mother said the family first wanted to be guaranteed that his travel documents would be in order, as they did not want him to experience the same trauma and disappointment again.
Home Affairs officials told the Committee that they would thoroughly investigate the matter and provide a comprehensive and detailed report to the Committee. They insisted that they were presently unable to respond to questions on the matter, as they were not fully versed with the details.
Mr M Kekana (ANC) said that only the Department should respond, and not the lawyers representing the various parties.
Mr Thomas Sigama, Acting Director General: Civil Services, DHA, replied that there was a procedure that was followed by the Department when issuing passports. They had received the information about George Maskini’s case only a day prior, and they would investigate and intervene appropriately. He requested Ms Maskini to provide the DHA with copies of all the documentation and permits in their possession, that they had received from DHA, to ensure all those documents were indeed legitimate.
Mr Yusuf Simons, Provincial Manager, Western Cape, DHA, added that there was a need for an investigation into the issue of George’s citizenship, because the ID number quoted in the documents indicated permanent residence and not citizenship. He needed information on all the various officials mentioned by Ms Maskini who had interacted with her at the Department. The report would include all that information.
Ms T Kenye (ANC) said that Parliament should not direct the DHA to issue travel documents to George Maskini because that would constitute interference, and should rather ought to allow the DHA to investigate and follow its procedures.
Mr Hoosen lamented that the Department of Home affairs was becoming the “Department of Horror Affairs,” and asked whether anyone in the Department had offered Ms Maskini and her family an apology, as it would be insensitive if they had not.
Ms N Mnisi (ANC) apologised to Ms Maskini and her family, and encouraged her to meet with the DHA to resolve the matter and help to correct the mistakes.
Mr A Figlan (DA) said that the DHA should apologise to the family and even write a letter to George Maskini and give him a valid passport as soon as possible, and not wait for September when the tournament was to take place. He also suggested and advised Ms Maskini that she ought to triple her claim against the Department.
Mr Kekana commented that accepting the various parties’ attorneys to attend the session had been a mistake. He encouraged the Department and the family to meet and resolve the matter. It was only one case, but there were many others that required the Department’s intervention.
Mr P Mhlongo (EFF), who is a member of the Portfolio Committee for Police, said he was worried that there was an attempt to convert a Committee of Parliament into a tribunal. The process that should have been followed was for the provincial organ of the DHA to compile a report on the matter; particularly because the various respondents were saying they were not aware of the particulars of the case, despite it being widely circulated in the media and newspapers. He complained that the DHA was inefficient and did not have proper systems in place.
Ms Mnisi said that the Committee was not there to judge, but rather to listen to the plight of the ordinary people. The Department should be allowed to investigate and provide a detailed report to the Committee, which could then discuss the report.
Mr Chauke summarised that it was evident that the Department had not prepared itself to respond to the issue. The Committee could not be silent while the Department was getting sued and matters were published in the press. Those who were found to be negligent should pay the settlements from the various suits.
The Chairperson concluded the discussion by apologising to Ms Maskini.
Independent Electoral Commission: Preparedness for 2019 elections
Mr Glen Mashinini, Chairperson: Independent Electoral Commission (IEC), briefed the Members on the preparedness for the 2019 national and provincial elections (NPE). The elections were scheduled for between May and August 2019, as per Constitutional requirements. The IEC had five members and the seven-year term of one of its Commissioners, Judge Thami Makhanya’s, was expiring. The process of finding a suitable replacement was under way and in the hands of Chief Justice Mogoeng. Two other Commissioners’ terms ended in September, and notices had been issued. The process of short-listing candidates was already under way.
Ms Janet Love, Commissioner: IEC, said the term of provincial and national legislators would come to an end on 8 May 2019, after which the 90-day provision to conduct an election, as outlined in Sections 49 and 108 of the Constitution, came into effect. The exact date of the election was, however, the prerogative of the Head of State, but consultation with the President and Premiers was yet to be undertaken.
The elections would be the 25th anniversary of democratic elections in South Africa, so the IEC was focused on delivering a free, fair and credible election. It hoped, through the forthcoming election, to strengthen the legitimacy of the nation’s elected representatives and the democracy of the country.
The election timelines were planned as follows;
- 10-11 March 2018: 1st voter registration weekend and address capture;
- September 2018: Delivery of new voter registration devices;
- January 2019: Phased implementation of party funding legislation begins;
- February 2019: Final voter registration weekend;
- February-March 2019: Proclamation of election date by President and Premiers and publication of election timetable;
- March-April 2019: Candidate nominations;
- May-Aug 2019: Election.
The IEC had requested the Constitutional Court early last week for a 17-month extension to verify the addresses of those not recorded on the voters' roll, since the Court had in 2016 ordered it to verify and add the addresses of registered voters to the roll, with which it had made significant progress. The number of complete addresses added to the voters' roll had increased from 34% in 2016 to 72%, and was hoping to increase it to 78% by next month. The number of “no addresses” had decreased from 32% to 8%, and for post-17 Dec 2003, the shortfall was 1.2 million, representing 5% of the total voters’ roll. Incomplete and generic address had decreased from 34% to 13%.
Mr Granville Abrahams, Senior Manager: Electoral Matters, IEC, informed the Members that the Minister of Home Affairs, Mr Malusi Gigaba was considering the Electoral Amendment Bill. The draft Bill had been prepared and documentation was being prepared for the Cabinet before it was brought to Parliament.
The draft legislation made provision for the following:
- Removing restrictions for registration by mental health patients and voters with mental disabilities (Section 8 of Electoral Act);
- Giving the Electoral Court jurisdiction to hear and determine any matter relating to the interpretation of the Constitution concerning disputes about the legitimate leadership of the party;
- The possibility of electronic (online) registration by voters, and to provide for the electronic registration of political parties and electronic submission of party candidate lists;
- To amend the legislation to ensure registration of voters in the correct ward (rather than voting district);
- Expanding the potential venues for overseas voting; and
- Limiting objections to a voters’ roll to a clearly defined window period in the election timetable as well as establishing a voting procedure for voters without addresses.
A review of voting districts and voting station networks for the NPE 2019 was currently under way, with a scheduled completion date of the end of July 2018. The focus of that process was to establish voting centres rather than creating new voting districts (VDs), so as not to destabilise the voters’ roll. The Municipal Demarcation Board (MDB) was re-determining certain municipal boundaries and would provide final municipal boundaries for the NPE 2019 by August 2018.
All political parties would be invited to audit the NPE results system, as had been the historic practice. The system would also be subjected to an external audit to ensure integrity. The implementation of a new voter registration device, which included new hardware, software, and a new operating process shortly prior to the registration and elections, presented risks in terms of training, change management, and reliability. The current generation of hand-held voter registration devices, commonly known as zip-zaps, had been procured in 2007 and had reached the end of their lifespan of 10 years. They had limited functionality and were no longer supported, in that their software and hardware were outdated. Consequently, there were several technology updates under way to pave the way for how several processes would be carried out more efficiently.
- Among those technological improvements were the following:
- 38 000 new generation voter registration devices;
- A development of new applications for the new voter registration devices to be rolled-out;
- The development of a ballot paper tracking system to voting station level; and
- The enhancement of the online out-of-country and special vote application systems.
The securing of voting stations for registration weekend and elections would be concluded with a single contract starting on 1 July and ending on 15 Dec 2018. The voting station network was expected to grow to approximately 23 000 voting stations (from 22 612 in 2016), and emphasis was being placed on a further 4% to 5% reduction in the number of temporary voting stations from the current level of 1 182 -- there had been 1 495 in 2014. Current levels of temporary stations were viewed as being very close to saturation point, and further significant decreases were unlikely, given the available permanent facilities in various communities countrywide, especially in undeveloped/informal/rural areas. Provinces would employ both municipal outreach co-ordinators (MOCs) and democracy education facilitators (DEFs).
The current fiscal constraints presented challenges in respect of available resources – especially for additional areas of responsibility, including address sourcing and implementation of party funding legislation. The increasing use of litigation to resolve electoral disputes was placing an additional burden on resources, and fragile coalitions in several municipal councils had led to an increase in the number of by-elections and dissolved councils, which further diverted resources from the general elections. In addition, the highly litigious environment in which parties were increasingly turning to the courts to solve disputes rather than to mediation or dialogue, plus the increased contestation in recent years, had further exacerbated the tendency of losing contestants to object to decisions or appeal. The increase in litigation gave rise to a reduction in the certainty of the election results.
Reverend Bongani Finca, Commissioner: IEC, added that the presentation given had not factored in the possibility of an early dissolution of Parliament, and had rather assumed normal timelines barring any unforeseen circumstances.
Mr Mashinini said the IEC commissioners would be meeting with President Ramaphosa on Thursday to discuss the timetable and schedule for the 2019 elections.
Mr Hoosen insisted that despite the time constraints, Members should be allowed to ask the IEC questions.
Ms Kenye disagreed, saying there was a Parliamentary sitting at 2 pm, and therefore there was insufficient time to ask questions.
Mr M Waters (DA) concurred with Mr Hoosen that it would be unfair to not put questions to the IEC, seeing as they had travelled all the way from Pretoria. He was of the view that the time constraints had been occasioned by a whole hour that had been wasted in the morning, discussing the Maskini matter that had not been on the agenda.
The Chairperson directed that the Members could ask the IEC questions, but the IEC would have to provide written responses at a future date.
Ms Kenye asked what provision had been made for illiterate people with regard to online voting, particularly the rural poor.
Mr Waters queried whether the President had requested an early election and if so, on which date. If Parliament were to decide to dissolve itself, what would be the earliest time for the IEC to conduct an election? On voting abroad, he was glad to see the expansion of voting venues and wanted to know in which countries the IEC hoped to set up additional voting venues. Had the IEC decided to scrap the November registration weekend because of financial constraints -- how much it would cost to have a November voter registration weekend?
Mr Mhlongo asked whether there was any possibility of an early election. He requested a breakdown of the areas and provinces that the newly-registered voters hailed from. He expressed concern that the voters’ register could be flooded with immigrants, particularly because the large number of new first-time voters who were older than 60 years was irregular and suspicious. Democracy would be at risk were these issues not addressed, because poor management of the voters’ roll could lead to the rigging of elections.
Ms Mnisi said that it was common practice for some sparsely populated areas to be flooded with people on voting day.
She then raised a complaint with the Chairperson of Mr Waters repeatedly and rudely interrupting her, and frequently disrupting most of the Committee meetings he attended.
Mr Waters demanded Ms Mnisi withdraw her remark. referring to him as “Mr White,” which he said was his race and not his name.
Ms Mnisi agreed to withdraw the statement.
Ms Kenye asked about the trend on low youth registration numbers and turnouts, and wondered what strategies or mechanisms the IEC had to encourage more youth participation in elections. She wondered what made the turnout low in local government elections when compared to national elections. She queried whether the new election devices to be delivered in November would be ready for use by election day.
Mr Hoosen asked whether there had been any direct cyber-attacks on any of the country’s elections.
The Chairperson said that since there was not enough time to get verbal responses from the IEC officials, written responses would be preferable. He emphasised the need for the Municipal Demarcation Board (MDB) to conclude their process of municipal boundaries, to enable the Commission to conclude its preparations. He commended the progress in updating addresses on the voters’ roll, but said that more effort still needed to be made to capture all addresses as directed by the Constitutional Court in its ruling. The Committee was aware of the acute fiscal constraints that affected not just the IEC, but also the entire Government in general, but emphasised the need for the Commission to plan better to ensure that the little they had was being spent as optimally as possible.
Mr Hoosen asked for the Chairperson’s indulgence in allowing the IEC to respond to the one question on early elections.
Mr Waters said that in other Parliamentary Committees that he had served in, like the Finance Committee, a seven-day limit was imposed for all replies. He suggested the same to be done in this case.
The Chairperson agreed, and directed the IEC to provide written responses to the Member’s questions within seven days.
Amendments to Section 34, Immigration Bill: Briefing
Ms Daksha Kassan, Parliamentary Legal Adviser, briefed the Members on the amendments to the Immigration Bill.
The Constitutional Court on 29 June 2017 had declared sections of the Immigration Act, 2002, inconsistent with sections 12(1) and 35(2) (d) of the Constitution of the Republic of South Africa, 1996. That was because these sections of the principal Act did not allow for automatic judicial intervention when an illegal foreigner was detained for purposes of deportation, and did not allow a detained illegal foreigner to challenge the lawfulness of his or her detention in person in court.
The DHA had experienced many challenges pertaining to the deportation of illegal foreigners within the maximum period of detention provided for in the principal Act. These challenges occurred particularly in instances where the foreigner did not cooperate regarding the process of identifying their country of origin or nationality. In certain instances, the relevant authority of the country of origin or nationality of the illegal foreigner did not provide the necessary assistance regarding the identification of the foreigner, or the necessary documentation to facilitate the deportation process.
Mr Deon Erasmus, Chief Director: Legal Services, DHA, said that the Bill addressed the Constitutional Court judgment to ensure that any illegal foreigner detained under section 34(1) of the principal Act was brought before a court in person within 48 hours from the time of arrest. It provided that any detained illegal foreigner may not be held in detention for longer than 30 calendar days without appearing in person in court. The Bill further sought to provide guidance to an immigration officer as to when they may arrest and detain an illegal foreigner for purposes of deportation. It provided for further extensions of detention to be granted by a court, beyond the maximum period of detention provided for in the principal Act, in certain circumstances.
The Chairperson said that the clause-by-clause analysis of the Bill had been deliberated on in previous sessions, and thus there was no need to repeat the process.
Mr Hoosen asked for clarity that the first amendment specified, that one could not be held for more than 48 hours without appearing in court, and wanted to know what was different in the second amendment that had just been presented.
Mr Erasmus responded that DHA had 120 days to present the illegal foreigner in court and deport him, but for them to conduct the deportation, they required to confirm address details with their countries of origin. Nevertheless, in practice they were often unable to obtain those details from the illegal foreigner’s country of origin within 120 days, and therefore ended up having to release the illegal foreigner and not deport them.
Mr Mhlongo recommended the Department’s legal unit should meet with the state’s national security cluster, to exhaustively deal with the matters in the amendment that would affect national security.
Mr Hoosen queried when the matter of the Gupta family, which was on the agenda, would be discussed.
Due to time constraints, the Committee resolved to reschedule the matter on the naturalisation of the Gupta Family for the following day, 30 May, when they would receive a detailed report from the Parliamentary Legal Services on the initial information they had gathered, and whether there were grounds to institute a full inquiry into the matter.
The Chairperson summarised the deliberations, and announced that there was a Cvil Union Amendment Bill, introduced in the National Assembly, which had been referred to the Committee as a private Members’ Bill.
He announced that there would be another session the following day at 9 am to finalise the matters on the agenda they could not get to, particularly the issue involving the naturalisation of the Gupta family.
The meeting was adjourned.
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