Civil Union Bill [B11-2018]: briefing; discussion on Gupta early naturalisation

Home Affairs

15 August 2018
Chairperson: Mr H Chauke (ANC)
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Meeting Summary

The Portfolio Committee on Home Affairs met to discuss the progress on the Gupta family’s early naturalisation, to receive a brief from Ms Deidre Carter on the Civil Union Amendment Bill, to hear about the challenges faced by stateless individuals to obtain naturalisation, and to table the document received from the Judge President of the Constitutional Court to appoint new judges as Independent Electoral Commission (IEC) commissioners.

Ms Carter provided a brief background on the Civil Union Amendment Bill, highlighting the fact that some state marriage officers were not prepared to solemnise the marriage ceremonies for same sex partners even though the state employed them to do so. Challenges that same sex couples faced at the hands of marriage officers included being insulted and called derogatory names because of their sexual orientation, and being denied their right to the solemnisation of their marriage. She questioned Section 6 of the Constitution on the grounds that it offended the rights of same sex couples to equality and human dignity as entrenched in Sections 9 and 10 respectively. She concluded by urging the Committee to expunge Section 6 of the Civil Union Act, and to recommend the approval of the desired motion to the National Assembly.

The Committee agreed that marriage officers could not insult or call persons derogatory names because on their sexual orientation or deny them their rights to the solemnisation of a same sex marriage. It was currently in support of the proposed Civil Union Amendment Bill, but it would have to pass it through a Parliamentary process, where  Parliament would engage with other stakeholders on the bill and also deal with technicalities around taking the repeal of the legislation forward, because it affected other legislation. Members agreed that the Committee had to use procedures that would not negatively impact on the timeframe to amend the bill. The Committee asked the Department of Home Affairs (DHA) to put in place mechanisms that would ensure that no same sex couple would be turned back from getting married. It also asked the DHA to proactively mitigate the fallout of labour issues that might occur when the proposed bill became law.

The Committee discussed the process of filling the IEC vacancies after it received the curricula vitae (CVs) of candidates recommended for the position by the office of the Chief Justice. The Chairperson advised Members to interact with their constituency to enable the Committee to table the shortlisted candidates for the three positions to Parliament, and agreed on the date to come to a consensus.

The Committee also discussed challenges faced by stateless individuals in obtaining naturalisation. Members said that the DHA did not respond to inquiries on citizenship for stateless persons, used a different rule for granting the Guptas citizenship, and did not alert citizens that they would lose South African citizenship if they received Mozambican citizenship. They argued that this was against the constitution, and mandated the DHA to explain this situation. The Committee requested that the DHA submit the requirements needed for citizenship and to clarify if a person should become stateless before or after the citizenship was awarded.

The Committee discussed the interim report on state capture, and agreed that it would present the report chronologically as the events happened, because the report had to be documented correctly for South Africans yet unborn. The Chairperson asked the Committee Researcher to confirm if the information received during the meeting of 14 August 2018 had verified affidavits before amending the report, because it had legal implications. The Committee stated that the report was a work in progress which would be presented after the Committee had completed the process, and discussed the process for the investigation and the proposed dates for the deliberations.

Meeting report

The Chairperson welcomed the Members, Ms Deidre Carter (COPE), the Department of Home Affairs and the Parliamentary Legal team. He said that the purpose of the meeting was to discuss the progress on the Guptas’ early naturalisation, to receive a brief from Ms Carter on the Civil Union Amendment Bill, to receive a brief on the challenges faced on naturalisation by stateless individuals, and to table the document received from the Judicial President of the Constitutional Court to appoint new judges as Independent Electoral Commission (IEC) Commissioners. The Committee had prioritised the amendment of the Civil Union Bill [B-11-2018] because the Constitutional Court had ruled that it was unconstitutional for the State to provide the benefits of marriage to opposite sex couples, but deny same sex couples the benefits of marriage. The Constitutional Court had given Parliament a deadline to sort out this issue, so the Civil Union Amendment Bill had been sponsored by Ms Carter. He invited her to table the Civil Union Amendment Bill to the Committee.

Tabling of Civil Union Amendment Bill [B-11-2018]

Ms Carter said that even though she was affiliated to a party, the tabling of the Civil Union Amendment Bill to the Committee should not be viewed politically. In her brief, she recalled the challenges faced by same sex couples prior to the Constitutional Court ruling, included being characterised as abnormal, showing criminal behaviour and where excluded from the rights and obligations that applied to partners in a civil union, even though partners in same sex relationships functioned in the same manner as opposite sex couples. The Constitutional Court had ruled that it was unconstitutional for the State to provide the benefits of marriage to opposite sex couples, but deny same sex couples the benefits of marriage. The ruling had also declared that the situation infringed upon the rights of equality before the law, the common law definition of marriage was inconsistent with the Constitution, and had ordered the President to correct the defect through Parliament.

Consequently, Parliament had adopted the Civil Union Act 17 of 2006, which extended the recognition of marriage rights to same sex couples and provided same sex partners the right to enter into a civil partnership known as a civil union. The Constitution had therefore backed up the rights of same sex partners to engage in a civil union based on Sections 9(1) – equality; 9(3) – the state may not unfairly discriminate; 10 -- protection of dignity and rights; and 15(1) – the right to freedom of conscience, religion, thought, belief and opinion.

She observed that same sex couples complained that although the law allowed then to get married, and the state allowed them to get married, the state marriage officers were not prepared to solemnise the marriage ceremonies for same sex partners. She cited examples of challenges that same sex couples had faced at the hands of marriage officers in their bid to get married. These challenges included being insulted and called derogatory names because on their sexual orientation, and being denied of their rights to the solemnisation of a same sex marriage by a marriage officer.

Section 6 of the Civil Union Act empowered marriage officers to inform the Minister in writing of their objection to solemnise such civil unions, and the Department of Home Affairs (DHA) had revealed that only 28.6% of its branches had marriage officers who were willing to marry same sex couples under the Civil Union Act. She questioned Section 6 of the Constitution on the grounds that it offended the rights of same sex couples to equality and human dignity, as entrenched in Sections 9 and 10 respectively. Also, Section 6 appeared to be in direct conflict with the objectives of the Civil Union Act, and undermined the purpose of the Act, which was to remove discrimination on the grounds of sexual orientation and to uphold the constitutional rights of equality and dignity.

She questioned why a marriage officer, in the capacity of a civil servant, could object to solemnising the marriage of a same sex couple under the Civil Union Act, but solemnise a marriage for opposite sex couples that were atheist or Muslim. She therefore remarked that it was a violation Section 3(3) if a marriage officer could object only to the solemnisation of the marriage of same sex couples. Section 6 therefore limited the right of same sex partners to enter into a civil union, which could not be justified in an open and democratic society. She reiterated that the solution was to repeal Section 6 of the Civil Union Act, because it allowed a marriage officer in the employ of the state to object to the solemnisation of such a marriage on the grounds of conscience, belief or religion. Public participation hearings had supported the amendment of the Civil Union Bill and the repeal of Section 6.

She concluded by urging the Committee to expunge Section 6 of the Civil Union Act, and to recommend the approval of the desired motion to the National Assembly.

Discussion

 

The Chairperson appreciated Ms Carter’s inputs on the desired motion to amend the Civil Union Act, but said that the process to be followed would involve questions on clarity from Members and from representatives of the DHA. He noted that although the Committee had engaged in public participation but had not received comments from DHA. He asked for clarity on who “the state” was, and for the stage at which the state could intervene if an officer of the state objected to carrying out any duty based on conscience.

 

Mr M Hoosen (DA) congratulated Ms D Carter on her inputs and noted that the proposed Civil Union Amendment Bill would have an impact on the lives of some people. The question the Committee needed to answer was if Section 6 violated the rights of any South African, and if it did, it needed to be expunged with haste. He asked Ms Carter to forward the names of state officials who had insulted same sex partners, or called the individuals derogatory names based on their sexual orientation, to the Committee. The Committee could not be seen to encourage the practice where marriage officials insulted same sex partners based on their sexual orientation.

Ms H Mkhaliphi (EFF) asked the DHA to indicate if the DHA staff who had insulted same sex partners based on their sexual orientation, had received any punishment. She supported the desired motion on the proposed amendment Bill, emphasised that insulting same sex partners based on their sexual orientation was wrong, and said that the Committee needed to put measures in place to correct such practices, because South Africa was a progressive society.

Mr A Figlan (DA) observed that people had been killed because of their sexual orientation, and supported the desired motion on the amendment Bill. Based on the brief, some state officials had objected to solemnising same sex marriages based on their beliefs, but he remarked that no one had the right to judge another person. He also noted that some lawyers had volunteered to solemnise such marriages, and asked the DHA to confirm if this was legal.

Ms S Nkomo (IFP) remarked that individuals who were employed in state offices had no choice but to perform any function assigned to them. The law that gave state officers a choice to either object or perform their duties was wrong, and the Committee had received complaints on this in the past. The Committee was aware of the segregation that the Lesbian, Gay, Bisexual, Transgender and Questioning (LGTBQ) community had suffered in the past. She observed that common sense and the Constitution had laid the grounds for how things should be done. She expressed her support for the amendment and remarked that the Committee needed to amend the Act and support the desired motion to expunge Section 6 in the amendment Bill.

Mr D Gumede (ANC) supported the amendment Bill, stating that it was constitutionally correct, and commended Ms Carter for her inputs. The amendment of the Bill could lead to changes in labour relations, and advised the DHA to manage the resulting labour relations effectively.

The Chairperson asked the DHA’s Civic and Legal Services to make comments on its experiences concerning day to day operations on Section 3 – the state may not unfairly discriminate, 10 – the right to dignity and Section 15(1) -- freedom of religious beliefs and opinion in the Constitution.

Dr Aaron Ramodumo, Chief Director: Births, Marriages and Deaths, Civic Services Unit, DHA, said that Parliament gave the law to the DHA, but it had the role to interpret the law on a day to day basis. The legislation in question, Section 6, needed to be considered, but it would also affect some other laws and the Constitution itself. The legislation in Section 6 needed to be reviewed with caution because it was interwoven with other laws such as Section 15(A) and Section 9 of the 1961 Marriage Act.

The Chairperson asked the DHA to state how marriage solemnisations were carried out on a day to day basis.

Dr Ramodumo said that its office managers solemnised marriages via its procedures, because the DHA had strived to provide services despite any individual’s orientation.

Mr Deon Erasmus, Chief Director: Legal Services, DHA, said the Department had to follow the law when carrying out its day to day operations, as rights needed to be entrenched. The relevant laws that governed marriage solemnisation would form part of the deliberation that would unfold. The state had an obligation to perform a service, so an officer of the state employed for that purpose must provide such services. It was complicated, because judges were involved in the solemnisation of marriages, but the DHA would have to look at the functions of a marriage officer as defined in Section 2 and ensure that the functions were carried out by its officials. Marriage officers were appointed based on the Public Service Act, so lawyers would not be able to solemnise marriages because they did not have the legal standing in that respect.

The Chairperson asked the DHA to submit its regulations on the day to day operations of marriage solemnisations to the Committee. This would enable it to ascertain if the DHA had regulations that empowered marriage officers not to be available to solemnise same sex marriages based on conscience.

Dr Ramodumo said the DHA would provide the Committee with its day to day operations procedures and regulations for marriage solemnisation regulations.

The Chairperson said that the Committee was currently in support of the proposed Civil Union Amendment Bill [B 11-2018], but it would have to pass through a Parliamentary process where  Parliament would engage with other stakeholders on the bill ,and also deal with technicalities around taking the repeal of the legislation forward.

Ms Carter said that the Constitution was clear, and no official could be exempted from doing his or her duty based on conscience, so magistrates could not avoid performing the duty of solemnising marriages for same sex couples. Also, the state was defined in Chapter 10 of the Constitution.

Dr Ramodumo referred the Committee to Section 2 of the Marriage Act, and noted that Section 2(2) contradicted the Constitution because it allowed a magistrate to decide if he or she would solemnise a marriage based on conscience.

The Chairperson said that this contradiction showed that there was a need to overhaul the entire marriage system, based on what Dr Ramodumo had said. The Constitution accorded the Constitutional Court the right to make the final decision on an Act of Parliament, so it superseded any legislation. Hence, the Civil Union Act could be amended based on what the DHA had pointed out, and Ms Carter’s desire in the Private Bill, but the Parliamentary processes would take some time as any other consequences needed to be considered first.

Mr Hoosen asked the Chairperson to explain the procedures to be used in amending the Civil Union Bill, as it could affect the time frame for amending the Bill.

Ms Nkomo also expressed concern about the process and remarked that elections would soon take place, so the Committee had to consider the best possible process needed to amend the Bill.

The Chairperson said that a steering committee would be in charge of amending the Bill, but noted the concerns of Members. The DHA had to put in place mechanisms that would ensure that no same sex couple would be turned back from getting married. The Committee would not accept a situation where individuals were insulted and called derogatory names based on their sexual orientation, therefore such cases should be reported to the Committee.

Process for filling IEC Commissioner vacancies

 

The Chairperson said that in discussing the process of filling in vacancies of IEC Commissioners, the Committee would work according to the letter received from the Speaker, and the report that had been formally tabled to the Committee. The report contained the curricula vitae (CVs) of the candidates for the position. Some rules had been followed and at this stage not much alteration could be made to the list. He advised Members to interact with their constituency to enable the Committee to table the shortlisted candidates to Parliament.

Ms B Dambuza (ANC) said the Committee accepted the report tabled by the office of the Chief Justice, but she gave comments on the issues for consideration and recommendation to Parliament. The comments were that the Committee had to ensure that the shortlisted candidates were tabled to Parliament before it rises, and also that the Committee would not be able to start another process at this stage because some rules had been followed and not much could be done at this stage.

Ms Mkhaliphi said she thought the Chairperson would elaborate that the Committee received eight CV’s but would select three using the processing mechanisms. She asked for clarity on when the shortlisted three candidates would be tabled.

Mr Hoosen supported Ms Mkhaliphi’s call for clarity on the timeframe to present the candidates to Parliament.

The Chairperson asked the Committee Secretary to provide him with the letter that accompanied the report, but emphasised the need for Members to consult with their constituencies to ensure that the Committee came back with a joint decision.

The Committee agreed that the process of filling the vacancies of IEC Commissioners would be discussed on Tuesday 21 August 2018.

The Chairperson said the Committee did not want the IEC Commissioners’ candidacy to be subjected to a vote, because it would affect the validity of the process, and encouraged Members to work together to come to a consensus.

The Committee Secretary informed Members that a non-governmental organisation (NGO) had sent a submission on the report on candidates sent by the Chief Justice for IEC candidacy.

The Chairperson asked if the law made any provision for such communications.

Mr Gumede asked why the NGO had not sent the intervention on IEC candidates to the panel of Justices that had sent the report to the Committee, because the Committee might not be able to intervene at this stage.

Mr Hoosen commented that the correspondence sent to the Committee to intervene on the IEC candidates would amount to a waste of time, since the Chief Justice’s responsibility had been concluded. He was not sure that the legislation supported public engagement in the shortlisting of IEC candidates.

The Chairperson suggested that the information be circulated to each Member for perusal.

Mr Hoosen remarked that the Committee would not want to be seen as not considering the view of the public. He agreed with the Chairperson’s suggestion to circulate the information from the NGO to each Member

Naturalisation challenges faced by stateless individuals

 

The Chairperson invited Ms Mkhaliphi to table the letter she sent to the Committee to express her concerns on the challenges faced by individuals whose naturalisation had been delayed unduly by DHA officials.

Ms Mkhaliphi said she had initially sent the complaints received from people on the challenges they faced in the hands of DHA officials in receiving citizenship certificates to the Department, but she had not received a favourable response. She had therefore asked the Chairperson to intervene because the case was peculiar, as these two people were stateless. The two individuals had followed all the procedures needed to become citizens and had renounced their original citizenship as a requirement to receive South African citizenship, but to date could not enjoy the privileges of citizenship.

Ms Florette Mulowayi, a Congolese who had been rendered stateless, had taken her case to court and won. Despite the court judgment, the DHA had claimed that it did not have Ms Mulowayi’s records. It had also not responded to the inquiry sent on this matter.

Mr Raj Gusain, an Indian by descent, who was granted conditional citizenship, was awaiting a naturalisation ceremony and had been informed by DHA officials that his certificate might not be part of those who would participate in the next ceremony. She observed that the new requirement was that a naturalisation ceremony needed to be performed, yet it had not given a date when the ceremony would take place.

She said these were two clear cases, but she was sure that more cases existed affecting those who did not have the resources to take the matter up with the DHA, so she appealed to DHA to state the process it used in issuing naturalisation certificates. Also, the choice of a naturalisation ceremony was not mandated by law, so the Committee should intervene and ask the DHA to state the clear requirements needed for naturalisation in the country.

The Chairperson recalled that a family had been paraded before the Committee because they did not have passports, and the Committee had received different complaints, so he mandated the DHA to sort out its issues. The DHA did not need to break the rules to address such matters, but should actually acknowledge such correspondence, especially when issued by Members. He asked the DHA to give feedback, particularly in the case presented by Ms Mkhaliphi.

Ms Dambuza expressed happiness that the Chairman had asked DHA to address the issue, because Members represented the public and made such inquiries on behalf of people because they had been elected to do so. She remarked that Members faced challenges in channelling these complaints to the DHA, so she urged the DHA to respond to the challenges faced by legitimate people on immigration matters. Also, if a court case had been won yet the DHA claimed they did not have the records of the person, then it needed to clarify if the lawyers that appeared in court were representing the DHA or not.

Mr Figlan agreed with his colleagues, and was of the opinion that the civic services department of the DHA had sort out its issues because when inquiries were sent to DHA it did not respond. Even when the Committee addressed the Director General (DG) or the Department on such issues, the DHA referred the Committee to a junior officer and the complaints were not resolved. He recalled the complaint of a Congolese child whose parents had permanent residency but could not take matriculation examinations because he had not received his South African identity document (ID) number.

Mr Hoosen said the DHA had to address the issues raised by Ms Mkhaliphi on citizenship, because all cases followed the same principle. The last time the DG of the DHA had appeared before the Committee to explain the Gupta citizenship situation, he had said they had not been asked to renounce their citizenship because the DHA did not want them to be stateless. It seemed that the DHA used different rules for the Guptas because the Guptas had not renounced their citizenship, but for ordinary people the case was different. Also, if a South African citizen took Mozambican citizenship, the person’s South African citizenship was revoked unless he applied for exemption. The DHA did not alert the person, but just deleted the person from the system and the person only found out when he went back to renew his passport. This was a constitutional issue, so he suggested that the Committee ask the DHA to submit the requirements needed for citizenship and to clarify if a person should become stateless before or after the citizenship was awarded.

Mr D Kekena (ANC) expressed his concern at the frustration of people faced with citizenship challenges after they had been rendered stateless, especially Ms Mulowayi, who had won a case in court. He agreed with Mr Hoosen that the case of the Guptas was treated differently because they were not rendered stateless before they received citizenship. He suggested that the Committee needed to fix a meeting to discuss the issues with the DHA.

Ms Nkomo said it was quite clear that people had issues over citizenship, because the Committee had made inquiries regarding several cases and the DHA had not responded. She recommended that the Committee engage with the DHA as a standing agenda item, or one that would recur at every meeting. She expressed her disappointment, as she herself had had inquiries that the DHA had not responded to. She noted the disrespect that Members faced when their interventions were passed between officers when making inquiries at DHA. She requested that the DHA should give Members a direct line to air such issues.

Mr Gumede appreciated Ms Mkhaliphi for raising the issue, as the DHA did not respond to civic inquiries. He remarked that the Committee needed to streamline the protocols to address civic issues, because Members represented the Speaker. He suggested that a new way to relate with the DHA on civic matters needed to be developed.

The Chairperson asked for the name of the Deputy Director General (DDG) responsible for civic services

Dr Ramodumo replied that it was Mr Thomas Sigama.

Mr Erasmus apologised on behalf of the DHA for the lack of response on inquiries to civic services by Members. He committed to giving feedback on the issues highlighted by Ms Mkhaliphi, and said that a dedicated email would be created in agreement with the Minister’s office to address such issues.

Dr Ramodumo agreed that there were serious issues, such as those as tabled by Ms Mkhaliphi. He promised to liaise with the official responsible for such cases.

The Chairperson observed that corruption was rampant at the DHA, and it seemed that its inspectorate division was not doing its work. He resolved that a meeting would be set up to address the issues, but advised that Members should always raise their issues through the Minister’s office.

Ms Mkhaliphi said she had made her inquiries through officials that worked with the Minister’s office. She agreed with other Members that a meeting be called to engage with the DHA on citizenship issues. She also appreciated that the new Chairperson understood that the frustration of people was due to the activities of corrupt officials at the DHA, because the previous Chairperson had always defended the DHA. She expressed happiness that the Chairperson had resolved that Members would engage the DHA on such issues.

The Chairperson proposed a more effective channel for Members to inquire on civic services.

Mr Riaz Moosa, Parliamentary Liaison Officer: DHA, suggested that the former process should be adhered to.

The Chairperson resolved that the Committee had a right to explore another means to get the DHA to respond to civic services issues.

Discussion on interim report on State Capture

 

The Chairperson invited Mr Adam Salmon, Committee Researcher, to address the Committee on the changes in the interim report of 14 August 2018 on state capture.

Mr Salmon said the interim report had been amended based on an affidavit submitted by a former employee of ANN7, Mr Rajesh Sundaram. The affidavit detailed some irregular activities of the Gupta family, which included claims of a joint venture with some officials; contraventions of South African labour law; the entry of Indian nationals as workers on tourist visas; and claims that these tourist visas were later converted to work visas after expiry. Amendments had also been made based on leaked Gupta emails related to the DHA, based on an affidavit submitted by the Organisation Undoing Tax Abuse (OUTA), and claims that some of the donations to North West schools had been overstated. He highlighted the gaps in information and issues of concern which raised some questions, and the accounting authorities and officials that needed to be invited to respond to questions from Members.

Mr Figlan asked why the former Minister of Home Affairs, Prof Hlengiwe Mkhize, was not mentioned in the report.

Ms Mkhaliphi asked for clarity on the consideration of exceptional circumstances for granting the Guptas citizenship, and asked Mr Salmon to confirm if he had removed some parts of the report.

Mr Salmon said some parts of the interim report of 14 August 2018 had been removed in the interim report of 15 August 2018 due to duplication.

Ms Mkhaliphi remarked that some information on the consideration of exceptional circumstances for granting the Guptas citizenship had been omitted in the amended interim report of 15 August 2018. She said the information had to be complete and authentic, as it would go into archives and be accessed by South Africans who were yet to be born.

Mr Salmon said if the references were included, the section omitted would be captured.

Ms Mkhaliphi argued that all the information in the interim report of 14 August 2018 was important, because the Committee was preparing for an inquiry. Therefore the removal of some sections was not proper. She remarked that a clear picture of the situation needed to be in the document.

Ms Dambuza said a Member had asked the Minister a question during the meeting and this question had been asked again at another meeting, and the Minister had given certain answers.

The Chairperson said the omitted paragraph did not cause any damage.

Ms Mkhaliphi remarked that the section had been removed, so the document would not be authentic anymore.

The Chairperson commented that it was in the “Annexure T,” but asked the Committee Secretary to put the section back.

Mr Salmon said the DHA had made written submissions which were captured in Annexure T.

Mr Mkhaliphi said some of the information was missing -- for example, the issue of passport had to be included and the fact that some Guptas were allowed to vote.

Mr Salmon asked for clarity on the issue of the passport.

Ms Mkhaliphi said that it was important to include the issue of the passports, because the Guptas were not supposed to have been issued South African passports.

The Chairperson said the Committee needed to be specific when addressing the issue of passports, because there were about 80 to 90 Guptas. The Committee needed to consider how many Guptas had been given passports and then look at the issue of how they had been granted citizenship. The Committee would request a breakdown of every one that was naturalised using a passport in the Gupta family based on the DHA system. The Committee would also investigate the nature of permits given to the Guptas, applications made for permanent residency, the Guptas that had received citizenship and how they had received citizenship. The DHA needed to submit documents to the Committee, and the accounting authorities must be prepared to answer questions.

Mr Hoosen noted that two documents had been created on the interim report on State capture, and the changes made by Mr Salmon had been underlined.

Mr Salmon agreed, and remarked that he could state the omissions.

Mr Hoosen asked Mr Salmon to detail the omissions.

The Chairperson noted that one of the submissions was that the Committee had decided to extend the terms of reference, and section 9 of the interim report on state capture dealt with information from the DHA.

Mr Salmon detailed the omissions in the interim report on State capture of 14 August 2018 as compared to that of 15 August 2018.

Mr Hoosen remarked that the document of 14 August was a Parliamentary document that listed the events that had happened in a chronological order.  He advised the Committee to put in every section as it appeared.

Ms Dambuza agreed. It was a sequence of events, so no part could be omitted.

The Chairperson agreed that as a Parliamentary record, it was a sequence that had to be captured in the manner it was originally recorded.

Mr Hoosen remarked that the records would be confusing if they were not captured chronologically.

Mr Salmon said he would recast the records as they were initially.

Ms Mkhaliphi asked for clarity on the status of the former advisor to Minister Malusi Gigaba‚ Mr Thamsanqa Msomi.

Mr Kekana said the Committee needed to confirm the information.

The Chairperson asked the DHA to confirm the status of former advisor, Mr Msomi, in writing.

Mr Kekana suggested the Committee needed to confirm the status of people who had entered the country through the lavish wedding at Durban.

The Chairperson said the matter had been investigated earlier, and should not be investigated by the Committee as it would enlarge the terms of reference.

Mr Salmon said that all the people who entered the country had applied for a visa, but the DHA had not inspected them on arrival.

Mr Kekana said he still insisted that the report be investigated, as the Guptas had brought in a lot of foreigners through the wedding.

The Chairperson said the Committee might not get the details, because the foreigners had entered the country through a private flight that had not landed at an international airport. Therefore the Committee might not need to concern itself with such issues.

Mr Hoosen said it was important to investigate the report, since it concerned issues of granting speedy visas to people.

The Chairperson said that the report on the landing of a commercial flight in Durban could be circulated amongst Members.

Ms Dambuza asked for clarity on whether the Committee wanted to focus on the Guptas alone, because the process in question was on early naturalisation, and Mr Imral Khan of Pakistani ancestry might also be implicated.

The Chairperson said the instruments of the investigation were to focus on a particular family on State capture -- the Guptas.

Ms Mkhaliphi said the DHA list would confirm if due process had been followed in according Mr Khan citizenship status, and take the next step.

The Chairperson agreed that when the Committee got the information, it would decide on the next step. The law provided that everyone that had been naturalised should be presented to Parliament.

Mr Hoosen noted that a change had been made on the new document, based on the submission he had made, and asked for clarity.

The Chairperson said the changes made were based on the Committee’s resolutions.

Mr Hoosen said he was not opposed to the changes in the new document, but he expected the Chairperson to make the changes in an open manner.

The Chairperson said all the other changes in the new document had been highlighted, but this particular change had not been highlighted.

Ms Nkomo expressed concern that Mangosuthu Buthelezi’s name had been captured without according him due respect, as he was already 90 years old.

The Chairperson asked what the law said about such.

Ms Mkhaliphi said he could either be referred to as “Honourable” or “Mr.”

Mr Kekana said “Chief” should be added.

The Committee agreed that some of the former employees who were mentioned in the report, such as Mr Msomi, needed to be invited.

Mr Hoosen said the chief executive officer (CEO) of the company that made donations to the schools needed to be invited as well. The letter that showed that the citizenship of Guptas had been renounced did not match the date that the citizenship had been awarded, so the Committee needed to investigate this claim.

The Chairperson agreed that the Committee needed to investigate their renouncing of Indian citizenship.

Mr Hoosen said the Committee needed to get the information and investigate when the renunciation was done. This would also involve inviting the official who had signed the renunciation of Indian citizenship.

The Chairperson agreed that the Committee needed to investigate how the renunciation was done, but the Committee would be able to invite only the Indian High Commissioner, as this would ascertain if Minister Malusi Gigaba should be invited or not. The Committee would also need a list of people who had attended the wedding, those who had received citizenship, how many went back to India and how many had remained in South Africa.

Mr Hoosen said that based on the information submitted, the chief operating officer (COO) of ANN7 needed to be invited, because ANN7 had promised to run Independent Electoral Commission (IEC) adverts.

The Chairperson asked Mr Salmon to confirm if the information given had been given under oath.

Mr Salmon said the information was contained in the affidavit submitted on 14 August 2018.

The Chairperson asked Mr Salmon to listen to what Mr Hoosen was saying, and to confirm if the information received had been verified.

Mr Salmon said the information had been received by Ms Berenice Paulse, Parliamentary Senior Researcher, and he would confirm this with her.

The Chairperson asked Mr Salmon to confirm the information.

Mr Figlan asked if the information was part of the information submitted to the Committee.

Ms Nkomo said whenever a Minister was invited, the DG that served under the Minister should be invited.

The Chairperson said the Committee would deal with the Ministers first, and would invite the DGs later.

Ms D Raphuti (ANC) asked if the Department of Labour was aware that a large number of foreign employees were employed at ANN7, and asked if these employees had South African IDs and if they were still in South Africa or not. She also requested the IEC to provide information on the Guptas who had been registered to vote.

The Chairperson said for anyone to appear on the IEC voters’ list, they would have been captured in the population register which was administered by DHA. The Committee needed to confirm if the information given by other people would be considered, because the Committee might not have time to investigate all the claims.

Mr Hoosen said Members had talked about the terms of reference at a previous meeting.

The Chairperson said he was trying to outline the approach, as the process needed to be a clearly approved one.

Mr Hoosen sought clarity on the gaps in information still requested. He asked if the DHA had received a certificate of allegiance from the Gupta family, because the Committee would need to request it. Also, the provision that if the father did not want citizenship it should be revoked, but this had not been followed in this case as the Guptas had received it.

The Chairperson said the Committee had dealt with the scenario in its last meeting, so the citizenship should be revoked, but the Committee needed to look at the discretion used by the Minister to grant citizenship to the Guptas. The Minister also needed to answer questions, as stated in the report. He outlined the process that the Committee would follow.

Mr Hoosen appreciated the process that the Chairperson had highlighted for the investigation, and said that most issues would be resolved if the documents were provided, but suggested that the names of people to be invited remained as it was.

The Chairperson said anyone who appeared on the list would automatically be invited by the Committee if they were needed to clarify issues.

Mr Hoosen said anyone could also be called, apart from the people in list.

The Chairperson said the Committee could issue summons to anyone who failed to appear before it. Also, anyone who appeared would have to take an oath.

Mr Kekana said the Committee should seek legal opinion outside Parliament on the answering of questions.

The Chairperson asked the legal adviser to state the hierarchy of Parliament on legal opinions.

Ms Nkomo said she supported getting legal opinion outside Parliament, because the answers given to questions had implications.

Ms Dambuza said although she agreed with other Members that the Committee should seek legal opinion outside Parliament, she pleaded that they should allow the process to get to a certain level before they sought it.

Mr Kekana said the Committee should close all the gaps, because the Minister might say he would not answer certain questions based on the powers allocated to him by his office.

The Chairperson said the Committee would follow the law in all aspects of the investigation.

Mr Gumede said the discretion of the Minister had been qualified under exceptional circumstances at previous meetings.

Mr Kekana said the issue was a legal matter, and the Committee needed to be sure that it was fighting a battle that it could win.

Ms Mkhaliphi said she agreed with Mr Kekana, because she recalled that when the Committee had asked the DG a question, he had replied that the Minister had taken the decision after consulting a committee.

Mr Siviwe Njikela, Senior Parliamentary Legal Adviser, said obtaining legal opinion outside Parliament was not a problem. The Committee had to establish the legal question to be asked, as discretion depended on factors, so it was a question of timing. At this stage of establishing the facts, getting a legal opinion outside Parliament would create confusion.

The Chairperson said the Committee should start the process of fact finding first, and ensure that the officials invited were placed under oath.

Mr Kekana asked for clarity on the notion of the Minister’s discretion.

The Chairperson said Mr Kekana should engage with the legal advisers to get clarity, because it was not a problem yet. The Committee would seek legal opinion outside of Parliament at the proper time.

Mr Kekana agreed with the Chairperson’s resolution.

The Chairperson said the Committee would consider if the Minister, in applying the law for the naturalisation of the Guptas, had applied it properly. He asked Members to familiarise themselves with the question, as they would be the ones who would ask the invited officials questions.

The meeting was adjourned.

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