Immigration Amendment Bill: response to submissions; Civil Union Amendment Bill; Refugee Centres opening delays; Statelessness; IEC Commissioners

Meeting report

Opening Remarks 
The meeting started with the Chairperson addressing the DHA delegation on the absence of both the Minister and Deputy Minister. He warned that the next time political leadership was not present DHA will be sent back and there would be no meeting. A formal written letter communicating the same will be sent to the Ministry.

Agenda
The Chairperson read out the agenda. The Committee would deliberate on the Immigration Amendment Bill: this bill was the initiative of the Committee because the DHA was not taking a decision and action on the amendment of section 34 as ordered by the Constitutional Court (CC). So, the Committee took it upon itself to then deal with the amendments to the Immigration Act and held public hearings where it heard from organisations and private individuals. In the last Committee meeting, it was agreed that the amendments to the Civil Union Bill as proposed by Ms D Carter would be affected. It was important to hear from DHA on the preparations to implement the proposed amendments. The Cape Town and Port Elizabeth refugee facilities were also a court order instructing the opening of the facilities. It was reported that failure to consider the status of asylum seekers leads to statelessness. The Department was expected to account why it was unable to process documents for asylum seekers. The Committee would come up with three names for the filling of vacancies in the IEC. Public comments were invited on the recommendations made by Chairperson of the interview panel, Chief Justice Mogoeng Mogoeng.

Briefing by DHA on the submissions and public hearings on the Immigration Amendment Bill

Mr Thulani Mavuso, Acting Director General, DHA, introduced the delegation including the Department of Public Works who were invited as the drivers of the procurement of the refugee centres. He then handed over to Mr Deon Erasmus, Chief Director Legal Services, to go through the consolidated comments received and responses by the DHA on the draft Immigration Amendment Bill.

Mr Erasmus provided perspective on what had been done and what needed to be done going forward. The Immigration Amendment Bill was indeed a Committee Bill and there had been submissions made to the Bill and the DHA would share its responses to the submissions. The amendment of section 34 will require a collaborative effort with the Department of Justice and Constitutional Development (DOJ & CD), South African Police Services (SAPS), and Department of Correctional Services (DCS) to make the implementation of the Constitutional Court’s direction seamless. There are a lot of role players involved and the amendments will have huge financial implications. The Department requested to make presentations after having engaged with the relevant role players and then amend the Bill accordingly.

Representations (oral and written) were received from seven organisations:
•             Consortium for Refugees and Migrants in South Africa (CoRMSA)
•             Lawyers for Human Rights
•             Refugee Legal and Advocacy Centre (RLAC)
•             Law Society of the Northern Provinces
•             University of Cape Town (UCT)
•             Corruption Watch
•             Scalabani Centre of Cape Town (SCCT)

The first amendment of the Bill proposes the inclusion of the definition of the Constitution to mean the Constitution of the Republic of South Africa, 1996. CoRMSA welcomes the continuing commitment of the South African Government to recognise the South African Constitution as the principal and supreme law of the Republic. Lawyers for Human Rights also agreed to the inclusion of specific reference to the Constitution. DHA noted these responses and added the reason for the inclusion of the definition was because the term is used in many parts of the Immigration Act but it is not defined. It is necessary to define it, as the Interpretation Act still refers to the 1993 interim Constitution.

The Refugee Legal and Advocacy Centre indicated it had taken note of the proposed amendments to section 34 to make arrest of illegal foreigners fair and in line with the judicial process. It agreed that detained foreigners must appear before a court of law within 48 hours from the time of arrest. This is in line with international processes and standards. RALC recommended guidelines be provided to guide immigration officials in the discharge of their duties regarding arrest. RLAC also indicated it welcomed the provisions of subsection 2 (c) which provide for the outcome of a prescribed interview and applauded the amendment. The Law Society of the Northern Provinces also indicated there was not enough emphasis or particularity providing guidance to immigration officers as to when he/she may arrest someone and this needed to elucidated in the Bill. UCT also suggested the amendment Bill provides some guidance to immigration officials in order to ensure that there is no unfretted and arbitrary exercise of discretion. UCT added a discretion whether to detain a person must always be construed in favorem livbertatis (in favour of freedom or liberty) and raised the concern that the amendment Bill does not set out clearly what questions will form the inquiry or what the immigration official will consider. DHA responded, minimum guidelines will be included in the Bill (i.e. discretion to be exercised in favour of freedom) and the minimum type of questions that must be considered at the prescribed interview (i.e. health of the illegal foreigner, family ties of the illegal foreigner, and if the illegal foreigner has a business). More questions that cannot be included in the Bill will be in the Regulations to be able to amend and add as they arise.

The University of Cape Town indicated there was no mention in the amendment Bill on the use of a competent interpreter during the interview contemplated in section 1A of the draft amendment Bill. DHA’s upfront response was that it may not be possible and practical to provide interpretation services at the point of arrest as, for an example, a person may be arrested at his or her own premises and an interpreter may not be readily available at that point. Interpretation will however be made available when undertaking other processes after the arrest (when they appear in Court). It should be borne in mind that section 35 of the Constitution requires that a person must be given information in a language that he or she understands. The right in section 35 of the Constitution is not a right to an interpreter but a right to be provided with information in a language that one understands. UCT further submits the only provision in section 34(1)(c) of the draft amendment Bill regarding language only requires that the rights of an illegal foreigner be informed of their rights “when it is possible, practical and available in the language that he or she understands”. The Department needed to further discuss the submission because it found that sometimes it was not practically possible there and then, on ground, to provide an interpreter. It was considering removing the words “when it is possible, practical and available” in light of the provisions of section 35(4) of the Constitution.  UCT as well indicated the draft amendment Bill does not clarify what is meant by a lack of cooperation. DHA responded lack of cooperation entails, amongst others, not providing information as to country of origin or any other relevant information required in order to facilitate the deportation of the illegal foreigner. The Department will consider including in the draft Bill as a minimum, but also include in the Regulations other instances that may arise.

Corruption Watch accepted the prescribed periods of detention and applauded the reasonable measures put in place to ensure foreign nationals are not detained for excessive periods without just legal process taking place. DHA emphasised the court will determine whether or not, based on the information provided, the illegal foreigner should further be detained. The Department cannot prescribe to the Court as to how it should function in making its determination. The Court will make the determination based on the information provided.

CoRMSA was satisfied that section 34(b) was amended to make sure that the Court process and oversight is recognised and followed accordingly. It recommended that the words “ordinary court day” be clarified in the final amendment to prohibit an immigration officer from subjecting the detainee to the denial of access to justice based on the ambiguity of the phrase ordinary court day. DHA noted that ‘ordinary court day; was not defined in the Interpretation Act but the wording of the Bill in this regard is similar to what is stated in section 35(1)(d) of the Constitution. The Committee may want to include a definition in the Immigration Bill on the meaning of ordinary court day but the highest law of the land, the Constitution, already has that provision and is the supreme law. CoRMSA was further pleased with the amendments to section 34(1)(d) especially with the fact that the detainee will be offered an opportunity to appear in person before the court of law. However, CoRMSA indicated it was concerned about the “two further extensions of detention” based on the “lack of cooperation (from the relevant authority)” as this may subject the detainee to a further detention on a matter beyond his or her control. Some of the detainees are forced to leave their place of origin to another country for safety reasons and the relevant authority may be the cause of their forced migration. DHA responded that this seemed to be a case talking to asylum seekers. In this regard, the Refugee Act is applicable and asylum seekers need to follow the provision of the said Act, read together with its Regulations which provide protection in such instances. CoRMSA welcomed the proposed insertion on section 1(a) with the following recommendations to be considered; arrest and detention is carried out in accordance with section 35(2) (a to e) of the Constitution of the Republic. DHA pointed out there was already reference in the Bill to the constitutional provision.

Lawyers for Human Rights suggested that the term “to confirm” (in the changes to section 34(1)(b) and section 34(1A)) was too restrictive and should be replaced with “to authorise”. DHA responded that immigration officers have the power to arrest and detain an illegal foreigner for purposes of deportation in terms of the Act. The court therefore needs to confirm such detention within the 48-hour period following the arrest based on the information presented to court with counter arguments from the illegal foreigner. Part of the confirmation process is to analyse whether or not the detention was justifiable. The courts confirm the power exercised by the immigration officer in terms of the legislation. Lawyers for Human Rights were also concerned with the inclusion of two additional periods of 30-day detention in the case where a detainee or their country of origin is not cooperating and with the meaning of term “lack of cooperation”.

Scalabrini Centre of Cape Town provided that clause 2(c) does not adequately provide guidance to an immigration officer in matters of arrest and detention, and that clause 2(d), where the current formulation may lead to cases of extended arbitrary detention without judicial safeguards and oversight. SCCT recommended that clause 2 (c) be amended to provide more guidance to the immigration officer in line with the findings of the court and to ensure that the officers must exercise their discretion in favour of liberty. The clause should be amended to read, “An immigration officer may, where necessary, arrest and detain an illegal foreigner for purposes of deportation…” DHA reiterated that minimum guidelines will be included in the Bill on the discretion to be exercised in favour of freedom. The word “may” denotes a discretion to the immigration officer to arrest and detain, and this discretion will be guided as mentioned above. SCCT also submitted that the current Bill ensures an individual detained as an illegal foreigner is afforded the right to appear before a magistrate, however, clause 2(d) does not explicitly grant the same safeguard in regards to the extension of a warrant for 30 calendar days. It was the Department’s understanding that an illegal foreigner will be present during any court appearance by an immigration officer in respect of the affected illegal foreigner’s detention.

Discussion
The Chairperson said there was still a lot of work to be done. The Department was granted further time to consult with other key stakeholders as requested such as SAPS, DOJ & CD and Correctional Services. So, the Immigration Amendment Bill would not be finalised at the meeting as it would be necessary to invite all other officers of the law who are affected by laws regulating foreign nationals. A new regime had to be created to assist with the necessary amendments. The state must ensure that it complies with the court order.  He asked: “What is the international practice dealing with deportation, what does it dictate on undocumented persons?”

The deadline for the finalisation of the Immigration Amendment Bill was confirmed for 28 June 2019.

The Chairperson raised deep concern that all the matters for deliberation were court orders from the highest court. He reminded the Department that the Committee had requested a list of all its litigation cases and how much it spends on litigation. The matter of the refugee centres, again, was a court order. “The solution is simple, it’s to review the laws and make sure that every operation is done within the law”. There is a need to have a separate meeting and programme for the review of all legislation.

Mr M Hoosen (DA) raised two matters related to the submissions. The first was in relation to the period of extension. Previously, the Department gave the explanation that undocumented immigrants who refuse to cooperate as the main reason for extending the period of detention. “What is DHA’s experience with people who refused to cooperate? Was it a big problem of hundreds of people refusing to cooperate or an isolated incident?” That will give indication of the seriousness of the problem and the need to extend the period of detention. The second matter he raised was on asylum seekers in instances where genuine asylum seekers were unable to get any assistance because DHA could only schedule appoints in January and February next year. It is grossly unfair that the Department was not able to deal with asylum seekers who want to confirm their status and then get arrested during the period of waiting till next year. He asked if the law safeguards people genuinely seeking asylum and who the DHA cannot deal with, is there something that can be included in the law to protect them?

Ms D Raphuti (ANC) welcomed the presentation and submissions brought forward to the Committee. “We have to celebrate our Constitution which safeguards everyone in the Republic of South Africa”. In the amendment of the Immigration Bill security for all foreign nationals must be emphasised, and even for South Africans. Other people view South Africa to be non-accepting of foreign nationals but the Constitution safeguards them. Focus should me on security for everyone within the South African boarders.

Ms H Mkhaliphi (EFF) appreciated the presentation and that there will be on-going engagements with DHA. There are serious problems in the Department and even more serious was the number of courts cases it loses. This was why the Committee requested a report on all litigations.  The Committee needs time to engage and understand why court cases were lost. “It seems there is no legal department at DHA”. There is an outcry in the country, currently, about foreign owned shops selling fake goods. It had been correctly mentioned earlier the Committee needs to have meetings with other stakeholders, such as the Department of Health. Not everything will be resolved through the amendment of the Bill but the Committee also had to attend to the serve sale of fake goods by foreign nationals. She sought clarity on page 5 of the submissions around the proposed questions to be asked by immigration officials. DHA had responded that the questions will be included in the Bill, “does this not raise an expectation that all questions submitted would be included?” On page 20, DHA’s response on lack of cooperation was not saying anything. It must not be seen as though DHA is not doing any work itself, she warned. The Committee will go through the amendments and see how best to affect them.

Ms N Shabalala (ANC) suggested the Committee be given a week to go through the proposed amendments to determine the areas that have not been covered such as the challenge of control at the borders. Between KwaZulu-Natal and Mozambique stolen cars were passing through, “like nobody’s business”. There needs to be measures and controls to deal with people who cross the border illegally.

Ms T Kenye’s (ANC) first concern was with the term ‘foreigner’. Was it still relevant? The term foreign nationals should be used instead because foreigner does not sound well. She agreed that the words “when it is possible, practical and available” should be removed because the constitutional requirement for language interpretation refers to the 11 official languages and not languages spoken in other countries. The extension of 80 days to 120 days due to lack of cooperation does not make a difference if there is no clear programme that talks to the country of origin. What else can be done if a foreign nation denies a person? What happens after the 120 days have lapsed? What does DHA do when the asylum seeker becomes a refugee and then wants to go visit his or her country or family relatives? Does the status change?

Mr D Gumede (ANC) thanked the Department for the good and hard work it had done. The repositioning of the Department into a more security conscious Department was welcomed. He raised the concern that some asylum seekers or refugees could be criminals in their country of origin or economic migrants. Innocence should not be assumed; a genuine refugee would report exactly what they are running away from. Even though the discretion should favour freedom the Department should not neglect security and must work with the State Security Agency, he advised.

Ms D Carter (COPE) asked the Department if it keeps records of foreign nationals’ fingerprints when they enter the country and whether it verifies fingerprints when leaving the country. Is the DHA database linked with SAPS? She urged the Committee to move forward the finalisation of the Bill to before the end of the term. It would be a great legacy for the Committee. 

Ms C Dudley (ACDP) asked “where are we with biometrics?, how close? how far and how will it impact on this particular legislation?”  

Mr A Figlan (DA) asked if ‘may’ was enough to prevent wrongful doing in the provision that “an immigration officer may arrest and detain an illegal foreigner for purposes of deportation”.

Parliament’s Legal Service was satisfied that the Department raised all the issues that were raised during the public consultations especially on the vague clauses and certain provisions that had to be tightened up. The courts have ruled vague terms as constitutionally invalid. There isn’t a constitutional right to an interpreter, she confirmed, the Constitution requires explanation in a language the detained person understands which may even be (broken down) English. The Committee should consider the practical problems raised by DHA. 

Mr Mavuso confirmed the Department will submit the litigation report. He agreed on the review of legislation to make sure it is aligned to the Constitution. In most cases, there is usually a misalignment of the responsibilities and the financial means to carry out responsibilities. It was not always the case that departments are not willing to comply but rather a case of juggling the mandate and available resources. He explained that in most instances people take DHA to court to respond to unique circumstances. Without sounding controversial he made the illustration of a recent court case where a couple did not want to divorce when the husband changed his gender to female. In terms of the Marriage Act marriage is between a male and a female. The couple does not want to divorce because the marriage had not broken down. However, the system automatically dissolved the marriage when the gender of the husband was changed and the couple does not want to be married under civil union. They do not want the date of marriage to be impacted and want to remain married under the Marriage Act. This was an example of having to tailor make according to specific and unique cases.

Mr Mavuso emphasised that deportation was a last resort. In most instances when documentation cannot be issued the Department issues a letter requesting the illegal immigrant to leave the country voluntarily. It was practice not to resort to deportation but encourage leaving voluntarily.  People were usually arrested for deportation because they ignored the letter. Cases where the detention period had to be extended were growing. As part of delaying tactics persons mislead the Department about their country of origin which is difficult for DHA to confirm. The trends show that asylum seekers point of entry into the country are the northern borders and not the Western Cape or Port Elizabeth but DHA was following the court order to allow new applications and renewals in those areas. The Department of Health and SAPS need to tackle the sale of fake goods by foreign nationals. Work was being done on border control and to cap traffic of stolen cars passing between KZN and Mozambique. It was a borderline matter and there was an intervention in the area.

The DHA was open to discuss the correct terminology, between foreigner or foreign national, to be used in the Bill. He clarified that if someone is an asylum seeker they have not been confirmed as a refugee. Asylum seeking was the first step to determine the validity of the claim and then the status is changed to a refugee. Refugee status is usually granted for political or religious persecution. Although the UN is considering including environmental and economic threats this was not yet the law. The DHA was very weary of fugitives who claim refugee status and makes clear determinations whether a person qualifies for refugee status. A refugee cannot return to their country because it will mean the situation in their country of origin has changed. A refugee can travel to any other country in the world except the country of origin and refugee status will be revoked if a person visits the country of origin. However, it was not always possible to track because entry into country of origin can be from another country that does not share its database with DHA. He confirmed the records of entry of foreign nationals into the country were kept and the DHA was ensuring that all points of entry can capture fingerprints. Moving forward the new automated biometrics system will be introduced which will strengthen the capturing of biometrics for citizens. SAPS can verify the DHA database for fingerprints. The problem is that DHA and SAPS use different fingerprint scanners and had to be synchronised.

Mr Jackson McKay, Deputy Director General: Immigration Services, DHA, explained that most embassies assist DHA and verify their nationals so DHA can issue the documentation to travel back to their country of origin.  There were very rare instances where an embassy did not cooperate and even then, there is recourse. A regular occurrence was of foreign nationals trying to frustrate the process by lying about their country of origins knowing they will be released when no embassy has confirmed nationality after 120 days. When a person is arrested for deportation it means an investigation had already been done to check whether the person was an asylum seeker or refugee and if so the relevant legislation provides protection and the person would not be arrested for deportation. Those arrested for deportation are those where the investigation has confirmed to be illegal immigrants in South Africa. Failed asylum seekers are candidates for deportation. The law obliges anyone who claims asylum on arrest to be provided the opportunity to claim asylum and not be deported.

Mr McKay expressed that “the problem in South Africa is not migration; it is illegal immigration’. It is people entering the country through the proverbial hole in the fence that are problematic. So, it is critical for the Border Management Authority to be implemented as soon as possible to close the loophole of irregular entry into South Africa. This will drive down the number of people being arrested and deported. The return of asylum seekers and refugees to country of origin was a complex matter and not as simple as taking away refugee status upon visit to home country. There are cases where refugees could be allowed to return to home countries if they are not under threat to attend a funeral of family member.

Mr Erasmus responded that the Immigration Act refers to a foreigner and this could not be changed for the section being amended. This can be taken into consideration when reviewing the whole legislation and not just section 34. He clarified that what would be included in the Bill was the discretion to be exercised in favour of freedom because it will not change. The questions that need to be asked can be put in the Regulations so other questions that evolve may be included by merely amending the Regulation. The ones that always have to be asked will be put in the Act. He re-clarified what the Department meant by lack of cooperation. If a person does not cooperate they must be released upon the court’s decision and not the immigration officer’s discretion. 

The Chairperson agreed that border management was a big problem and indicated that the Border Management Authority Bill before the NCOP was not moving. This had to be taken up and engaged on that level.  The discretion to be given to immigration officials had to be scrutinised and cautioned against racism and stereotypes: “the darker you are the less South African you are”.

It was agreed DHA had to submit the litigation report to the Committee by 28 September 2018. An investigation also had to be done whether DHA has the (human and financial) capacity to deliver its mandated services. A proposal was made that the next budget meeting should be on services. Although DHA had a clean audit it was in a mess there had to be a plan in place to improve things particularly harmonising the systems.

DHA was instructed together with Parliament’s Legal Service to insert the comments made during the deliberation to a second draft Immigration Amendment Bill and allow more time for further consultations on the second draft with key stakeholders.  At a political level, everyone had commented and was happy with the amendments.

Adoption of motion of desirability of the Civil Union Bill

The Chairperson noted that the last time the Committee discussed and agreed there was a need to repeal section 6 of the Civil Union Act. The first consultations on civil unions revealed majority of the people were against it however the Constitution is the supreme law and out of it the Civil Union Act was then enacted. Since, the Committee had previously agreed to support the motion none of the members made comments. There was a mover and a seconder for adoption. After the adoption of the motion of desirability, the Bill will be advertised in the newspapers to get comments from members of the public and will follow the same process as the Immigration Amendment Bill. As a Private Members’ Bill, Ms Carter had done public consultations however Parliament was also still required to do public consultations and hear public comments. 

The motion was adopted and read, “That in the opinion of the Committee, legislation is desirable to repeal section 6 of the Civil Union Act, 2006 (Act No. 17 of 2006), which allows a marriage officer in the employ of the state to inform the Minister of Home Affairs that he or she objects on the grounds of conscience, religion, and belief, to solemnizing a civil union between persons of the same sex.”

Ms Dudley placed on record that the ACDP disagrees with the motion of desirability of the Civil Union Bill that was adopted. The African Christian Democratic Party was disturbed by this and clearly indicates Parliament and the Department’s intention to force officers of civil marriages to violate their conscience. The Bill if passed would allow civil servants who are marriage officers to be compelled to solemnise same sex marriages regardless of their religious beliefs. “We are in a society that professes to value freedom of belief and choice yet we are becoming more selective on who gets to choose and who does not. Our Constitution actually protects freedom of conscience, religion and belief. Members of Parliament have a duty to see that people are not compelled to act against their conscious in the course of their work and that they are not discriminated against on these grounds.  Significant number of South Africans are doubly concerned that this legislation is part of a broader agenda that intends to force churches and religious institutions to conduct civil unions in the name of marriage in their places of worship. More and more court cases are being used to harass religious bodies and there is huge suspicion that section 5 which protects marriage officers of religious organisations will be targeted in due course”.

The Chairperson sadly informed the meeting of recent communication that committee member Ms B Dambuze (ANC) had been admitted into hospital.

DHA update on PERRO and CTRRO court rulings and opening of Lebombo Refugee Facility

Mr Mandla Madumisa, Chief Director: Asylum Seeker Management, DHA, briefed the Committee on the delay to affect the Port Elizabeth Refugee Reception Office (PERRO) and Cape Town Refugee Reception Office (CTRRO) court rulings and opening of Lembombo Refugee Facility.

Mr Madumisa started with background on the Department’s policy position to close Refugee Reception Offices (RRO) located inland and away from the identified ports of entry. The decision was informed by the fact that 90% of asylum seekers enter the Republic through the northern borders and find themselves commuting deep in the country without necessary papers, which exposes them to all manners of vulnerabilities. There have been various reasons for the opening and closing of centres since the policy position taken in 2011. More serious, the Department of Labour declared the PERRO was unfit for human habitation. The Department submitted that the policy decision was taken as an executive prerogative on whether to close or open offices, location, financial implications, plight of the clients, availability of suitable accommodation through DPW, effective management and service delivery amongst others.

The Supreme Court of Appeal (SCA) ruled on the closure of the PERRO and instructed DHA to reopen the office. The Department missed the deadline to appeal the matter to the Constitutional Court and its application for a condonation was dismissed. Following the ruling of the CC, the Department was given until 11 November 2015 to indicate its readiness to restore refugee reception services in Port Elizabeth, and thereafter provide a report every month in complying with the order. The Court understood the complexities of finding suitable accommodation to receive asylum seekers and held the relevant authorities can always approach the court to extend the period should it turn out to be too short. Three years later the office has not, yet, opened. The Department was complying with the monthly progress reports to the court in the implementation of its order. It started the process of finding an office in Port Elizabeth as far back as 2012.

Late 2016 a prospective landlord was found; however on 30 January 2017 after learning that asylum services would be provided at the premises, through a litigation threat from his neighbours, the landlord withdrew the facility. The DPW mandated to provide office accommodation had to start the process from scratch, eventually a landlord was found in December 2017 and planning meetings for renovations started immediately after. The office structure was handed to DHA on 31 May 2018, and the Department immediately started to deploy its own equipment, systems, furniture, etc. The facility is operational only for existing clients, who had applied before the closure, and preparing to receive new asylum applicants by end of October 2018 as agreed with Lawyers for Human Rights. PERRO had 62 officials and currently there are only 22 officials working at the centre with only two Refugee Status Determination Officers. DHA is also affected by the ceiling on the compensation of employees spending in government by National Treasury. An alternative to deploy on rotation basis officials from other centres that are currently receiving lesser volumes are being considered to meet the deadline. This option, being the only available option will cost an estimated R450 000 per month to fund secondment, whilst R4 million per year will be required to fund critical posts for the functioning of the office. The amount excludes renting and operations costs of running the office.

Scalabrini Centre took the decision by the DHA to close CTRRO to the Western Cape High Court in 2016 and the judge found in favour of the Department. Scalarbini then appealed the High Court decision and the SCA granted in their favour. The DHA appealed the matter to the CC, and on 6 December 2007, the CC dismissed the appeal on basis of prospects of success and directed the Department to comply with the 2017 Supreme Court Order and provide monthly reports from end of December 2017. The Department missed the first deadline in terms of complying with the monthly reports but had ensured full compliance of the order going forward. The DHA engaged the DPW Western Cape Regional Office mid December 2017 advising them of the judgement. Considering the reduction in volumes the Department believes the funding and filling of posts should not delay the opening of the Western Cape Regional Office once suitable accommodation has been secured.

The Lembombo Processing Facility has been on the Annual Performance Plan since 2016/17. Prior 2016/17 the Department working with DPW had to secure suitable land to build the facility in Lebombo. The appropriate land was secured in 2015/16. In 2016/17 a feasibility study, including financial model, for building asylum processing facility was completed and submitted to Minister for approval. The Department took the feasibility report to NT requesting that the construction of the facility be considered through a Private-Public Partnership (PPP). The process for PPP requires strict compliance with Treasury Regulation 16, a process that will culminate with the appointment of the preferred bidder around 2020 and construction is envisaged to start in 2021/22 depending on whether there will be delays and getting approval in each stage of the Treasury approval.

The Property Portfolio Manager from DPW head office presented on the procurement of Cape Town Refugee Office. The DPW had commenced with the procurement process which was two-fold. The first option was a state-owned property in Maitland and in the interim park homes are considered for immediate occupation while working on a permanent building. The other option is a tender process to purchase private property which was underway and should be finalised in October and will then allow three months for tenant installation.  Once the DPW has handed over the building for tenant installation DHA must install IT equipment and furniture which will take a further 8 weeks. If all goes according to plan the new centre should be open in April 2019 if the tender process option to procure the building is followed. If the other option is followed, state building in Maitland, it should take a shorter period.

Discussion
The Chairperson asked DHA if there was a reason it was not able to file the Constitutional Court appeal on time. What are the implications of reopening the centres? What is the effectiveness of these offices? Are the systems to be installed going to be in sync to deal with the current challenge?

Ms Kenye asked if the new PERRO was being leased? Is there a recruitment strategy for officials even though there are financial constraints? She commented that secondment of officials was very expensive and asked if there were no financial constraints in the CTRRO? Should the DHA not be leasing in the meantime instead of waiting for the construction of Lembombo?

Ms Mkhaliphi acknowledged the DHA’s positive response in reopening the offices. Did the DHA apply for extension of the court order? Staff shortage is a general concern and how is this being solved considering the financial challenges?

Ms Shabalala asked if other towns were being targeted, why was there only mention of three centres? Is there information on the number of undocumented persons in South Africa? How many park homes are needed?

Ms Raphuti expressed her dissatisfaction with the DPW’s presentation. Where are the state-owned properties? The use of park homes indicates the DPW was not working on the matter urgently. This was an emergency and the Department must push to see the matter through. In her view, Public Works was holding all the departments’ hostage.

Mr Hoosen sought clarity if the court orders were reopening for new applications and not that centres were completely closed? The presentation created the impression that the offices were closed but they were not as they were open for renewals. It takes forever for an asylum seeker’s application to be determined which is the real problem. The Department was running an impractical system. How does the DHA deal with the log-jam of asylum applications? Why did it take the DPW four years to secure a building since the Department of Labour declared the PERRO inhabitable? What was being done in the meantime?

The Chairperson recommended the consideration of standalone Home Affairs offices. Home Affairs is a national security point and the security of information at the DHA should be prioritised. DPW will be invited soon by the Committee to deal with office accommodation for DHA. Why must the DHA spend R10 million per month for LINDELA instead of owning it?

Ms N Mnisi (ANC) supported the call for the DPW to come back to report further on the leasing of office accommodation.

Mr Erasmus responded that the documents for leave to appeal were submitted to the State Attorney’s Office who failed to submit the documentations to the Constitutional Court on time.

Mr Mavuso recalled the policy decision to close centres was taken for various reasons. Yes, the systems in the offices will be in sync and talk to one another, applications will be able to be viewed and processed from any centre in the country. When someone has been given refugee status they should not be going back to asylum offices for renewals and can go to normal Home Affairs offices. The Department was of the view that there won’t be optimum use of the offices because the Cape Town PRO is currently operating at 37% of the approved establishment. He was happy that the Members raised the discussion on office accommodation and stressed the need for Home Affairs to have purpose built facilities and not be moving from landlord to landlord. This will deal with security concerns as well.

Mr McKay reminded the Members that everything was going well until the courts closed the offices in Maitland and Langa because it was a nuisance. Even when DHA complies with the processes and obtains the requisite approval offices still get closed for being a nuisance because of the number of African migrants. This was only happening in the Western Cape and more offices were needed in the northern borders instead of applicants having to go all the way to Cape Town or Johannesburg. The court ordered the reopening of centres for new comers and applications. There are just over 700 immigration inspectors nationally which is less than the number of police officers at OR Tambo International Airport alone. So how can there be any impact on the management of migration? he rhetorically asked. There is no capacity to police migration as there is lack of human and financial resources.

Statelessness

Mr Mavuso relayed that the EFF wrote a letter regarding two families that were said to be stateless because the DHA had not made a decision on their naturalisation. The one case was finalised on 13 August 2018 and the family was handed their naturalisation certificate. Before any person can be issued with a naturalisation certificate they must issue the DHA with a letter of renunciation from their country. This was the cause for the delay. The second case had not been finalised as the application was still being reassessed. In the past, there was no naturalisation ceremony but to comply with legislation there are naturalisation ceremonies for the Minister to satisfy that the pledge was taken to honour and serve the Constitution of the Republic. He clarified the difference between a stateless person and an undocumented person. A person who had been refused asylum was not stateless but undocumented. Even South Africans born here can be undocumented persons but they are not stateless. DHA was not aware of any stateless persons in South Africa and the only way to know was for the person to come out and identify themselves as stateless.

Discussion

Ms Mkhaliphi expressed her disappointment in the DHA not responding to her letter. There was no response for two months until she wrote to the Chairperson.  The explanation provided indicates that the naturalisation ceremony was the problem as some people have had to wait for up to two years for the Minister to confirm the ceremony date. The Act does not require the ceremony and it was not necessary. The court had given the Department till 4 August 2018 to deal with the second family’s case but DHA had still not responded. When the Member followed up, the DHA said it did not have any information or details on the case.

The DHA replied that it is dealing with the case and had met with the family to get the background and the Public Protector had also set timelines for the case to be resolved.

The Committee requested a comprehensive report on the matter within seven days.

Consideration and filling of the vacancies of the Electoral Commission of South Africa

The Chairperson briefed the meeting that the matter of Electoral Commission vacancies was referred to the Committee for consideration after the Chief Justice submitted a shortlist of eight candidates and their curricula viate to the National Assembly for consideration to fill three forthcoming vacancies. The Committee had met on 15 August 2018 and the Chairperson tabled the report of the shortlisted candidates to ensure that Committee Members consult with their political parties. The Committee met again on 21 August 2018 and it was agreed that there should be public comment on the shortlisted names.

Mr Adam Salmon, Content Advisor for the Portfolio Committee on Home Affairs, summarised the public comments. Between 21 August 2018 and 24 August 2018, the Committee received 32 submissions mostly individual comments and a lengthy submission from My Vote Counts. Most of the submissions, 23 out of 32, were in favour of Ms Maletlatsa Moncia Ledingwane and highlighted her relevant education and experience and good standing in her church. Four submissions were in favour of Rev Bongani Blessing Finca for his experience in the IEC, strong moral standing, and his involvement in social justice. Two submissions were in favour of Dr Nomsa Praisy Masuku to bring a youth perspective on the Commission. Others favoured were Mr Mosotho Simon Moepya, Judge Dhayanithie Pillay and Ms Liepolllo Lebohang Watseba Pheko.

Discussion

The IFP, in absentia, submitted the following names without comments: Mr Mosotho Simon Moepya, Rev Bongani Blessing Finca and Judge Dhayanithie Pillay.

Mr Hoosen for the DA submitted: Judge Dhayanithie Pillay on the legal requirement that a judge had to be appointed, Dr Nomsa Praisy Masuku and Ms Bernedette Muthien for gender equity.

Ms Mkhaliphi for the EFF submitted: Judge Dhayanithie Pillay, Rev Bongani Blessing Finca for his fourteen years of service in the IEC and Ms Liepolllo Lebohang Watseba Pheko for her youth and vast experience.

Mr Gumede for the ANC submitted: Judge Dhayanithie Pillay, Dr Nomsa Praisy Masuku, and Mr Mosotho Simon Moepya.

The Chairperson read out the names of the three candidates to be recommended to fill the vacancies in the IEC that will be tabled to Parliament:

1. Judge Dhayanithie Pillay
2. Mr Mosotho Simon Moepya
3. Dr Nomsa Praisy Masuku

Ms Mkhaliphi objected to Mr Mosotho Simon Moepya as it would be incorrect to recommend him because of the case brought against him by the Public Protector which he did not challenge in the court of law. To appoint him through the back door would be an injustice. It must be taken into consideration that corruption is a serious problem in this country and he was implicated in corruption court cases and when he was acting CEO he resigned because of the corruption case. He has never cleared his name.

Mr Gumede responded by reading page 3 of the recommendations made for Mr Mosotho Simon Moepya by the interview panel consisting of Chief Justice, the Public Protector, Chairperson of the South African Human Rights Commission and the Chairperson of the Commission for Gender Equality; “during the process leading to the interviews we received negative comments about Mr Moepya’s candidature based on the Public Protector’s report entitled ‘Inappropriate Moves’ issued in 2013 in which the Public Protector recommended the Electoral Commission should consider instituting disciplinary proceedings against him. Additionally, there were allegations leveled against Mr Moepya that he allocated funding to Advocate Tlakula, the then Chairperson of the IEC, without authorisation. In dealing with these allegations Mr Moepya provided us with a very detailed written response as well as proof of his communication with the office of the Public Protector. We are aware that the Public Protector not only acknowledged receipt of the document that it accused him of not having sent and that it also apologised for the way in which it treated him. In the documents that he provided to us we were satisfied Mr Moepya fully cooperated with and submitted all the information requested by the Public Protector. He came across professional and a man of integrity. He would if appointed make an excellent Commissioner of the Electoral Commission”. This was the reason the ANC submitted Mr Moepya. It did not choose Rev Finca because of his age.

Ms Shabalala said based on the clarification provided and motivation from the panel Mr Moepya should be appointed.

Mr Hoosen preferred the Committee to go the House without different political views. The importance is for IEC Commissioners to not only be impartial but they must also seem to be impartial and expressed the same objection as the EFF. The view in the public domain is that Mr Moepya is not suitable from the public submissions made to the panel and appealed for a compromise to appoint Rev Finca instead.

It was agreed that the three names, including Mr Mosotho Simon Moepya, would be proposed and Members would have the opportunity to debate further in Parliament.

The report of the Portfolio Committee on Home Affairs on the filling of a vacancy in the Electoral Commission of South Africa, dated 28 August 2018 was adopted. 

The meeting was adjourned.