Electoral Laws Amendment Bill: briefing; Electoral Amendment Bill: MP briefing; Immigration Amendment Bill: consideration

Home Affairs

23 October 2018
Chairperson: Mr H Chauke (ANC)
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Meeting Summary

The Committee was briefed on the proposed Electoral Amendment Bill by a Member of the Democratic Alliance, who said the Bill would assist in stopping the disenfranchisement of South Africans who were living abroad. One of the objects of the Bill was to enable South Africans living abroad to vote for the provincial legislature, as currently they could vote only in national elections. Another objective of the Bill was to have South Africans living abroad vote on the production of a valid ID document only, as presently they had to produce both an ID and a passport when registering to vote. The Bill further proposed that voting stations overseas should not be limited to consulates, embassies or high commissions, allowing voters in remote areas to vote without traveling great distances.

The Committee asked for more research to be conducted on the proposed amendments. Members questioned why South African citizens living abroad who had no ties to a given province should be allowed to vote for the provincial legislature. What criteria would be used to guide for which province they would vote? There was also concern that production of a passport prior to registering to vote could be a way of assisting in dealing with illegal foreigners.

The Independent Electoral Commission (IEC) expressed concern that the Electoral Laws Amendment Bill had been delayed in reaching the Committee. It was the intention of the IEC to have the Bill processed during the current session of Parliament. The Bill was focusing on the elections next year and was aimed at providing for the use of all available resources necessary for the Commission to compile and maintain the national voters’ roll. The Commission described the clauses of the Bill, and the legislation which it was amending. One of the provisions catered for a different voting procedure for voters whose names appeared on the voters’ roll without addresses. The IEC reported that there were no additional personnel or communication implications envisaged as a result of the Bill.

Members of the Committee wanted to find out whether the Bill was meeting the conditions of the Constitutional Court order, and clarification on the data which the IEC would be seeking. They asked whether there were people with identity documents (IDs) who did not provide addresses. The IEC said it did not have the addresses of 1.6 million people, and clarified that people with no addresses were entitled to vote, but the IEC wanted them to vote in the right place.

The Parliamentary Legal Adviser said that most of the concerns raised by stakeholders concerning the Immigration Amendment Bill were operational, and did not have an impact on content of the Bill. One of the concerns raised had been that the Bill had to make it clear that a foreigner should be able to make representation and, where possible, should have an interpreter, otherwise due process would not have been followed.

The Committee expressed concern that the Bill served only to satisfy the court order, but did not solve the real issue. The main problem was the undocumented foreigners. The Committee resolved that since the Constitutional Court had given June 2019 as the deadline for the new laws, the PC should further engage with other stakeholders in a bid to resolve the issue of undocumented people in the country.

Meeting report

The Chairperson welcomed everyone and confirmed that Mr M Waters (DA) would be presenting on the Electoral Amendment Bill (B24-2018). The proposed Bill had been postponed for some time because the Portfolio Committee had wanted to link the proposed amendments with the amendments by the Independent Electoral Commission (IEC). The Committee had expected to have the Bill earlier in the year, but the process had dragged. He pointed out that every piece of legislation must be subjected to public participation and that the Bill was critical to IEC’s preparation for the elections. He confirmed that the Committee would later on look at the Immigration Amendment Bill, and thereafter at the budgetary review and recommendations report (BRRR). In the following week, it would be dealing with Fireblade, which was a portion of the airport being utilized by the Oppenheimer family. The matter was in court, but Members had a responsibility to look into it, and the Department of Home Affairs (DHA) would be called upon to explain further on the issue.

Electoral Amendment Bill (B24-2018): Briefing by Mr Waters

Mr Waters began by making reference to the Constitution of South Africa. He said that Sec 19 (3) (a) of the Constitution provided that every adult citizen had the right to vote in elections for any legislative body established in terms of the Constitution. The right to vote had been emphasised by the Constitutional Court, where it was said that the vote of each and every citizen was a badge of dignity and of personhood. He added that in Richter judgment (Richter v Minister of Home affairs and Others 2009), at Paragraph 53, the Constitutional Court had held that the right to vote and the exercise of it, was a crucial working part of the Country’s democracy.

The draft Amendment Bill would work towards the following objectives:

All South African citizens be permitted to register to vote on production of a valid ID document only; currently South Africans registering abroad had to produce both an ID and a passport while registering, which was discriminatory.
The day designated for overseas casting of votes must necessarily fall on a weekend. South Africans abroad had to vote on a weekday, which was not a public holiday in their respective countries. This discriminated against voters because the voters had to take at least one day’s leave in order to vote,
South Africans overseas must be permitted to vote for the provincial legislatures. Every adult citizen had the right to vote in elections for any legislative body, and the position currently was that South African citizens abroad voted only at the national level and were not allowed to vote in the provincial elections. He added that in his question in the house to the Minister of Home Affairs, he had pointed out that public servants and their families and Members of the SA National Defence force living and /or working abroad had previously been able to cast their ballots for both the national and provincial elections since 1994. However, the position had changed and his question to the Minister was on what date the issuing of the national and provincial ballots had changed and what the reason for the change was, and what legal provisions had informed the change. The Minister in his reply had said that in 2013 the regulatory framework was amended to extend voting outside the Republic to all eligible South Africans, and an international segment of the voters roll was established. All voters outside of the republic were to be treated in the same manner, in that only a national ballot was issued for voting outside of the Republic. Mr Waters reiterated that as from 2013, overseas voters were disenfranchised of their provincial ballot paper, which was in contravention of Section 19 (3) (a).
Voting stations overseas must not be limited to consulates, embassies or high commissions, allowing for more remote voters to be able to vote without traveling great distances. The distances he referred to were prohibitive to the people casting their votes. He gave an example of 10 000 South Africans who live in Miami, Florida, USA, who have to travel to Washington DC which was a 14h 54 min drive over a distance of 1 695.7 km.There were also 9 000 South Africans living in Austin, Texas, who have to travel to Chicago, which was a 16h 9 min drive of 1813.1 km.
Vote counting procedures must properly account for differences in time zones when considering deadlines. In the 2014 general election, votes from Canada arrived too late in South Africa to be counted, and the IEC and the Department of International Relations and Cooperation (DIRCO) needed to ensure that overseas voting occurred in time to ensure all ballots were received and counted.

Discussion

The Chairperson asked whether the Bill would be dealing with persons temporarily out of the country.

Mr Waters responded that the Bill dealy with SA citizens.

The Chairperson commented that in South Africa, people also took responsibility and one would find a person living in Cape Town traveling to the Eastern Cape to vote for the provincial legislature in that area. He noted that it was up to the Committee to decide how to deal with the proposed amendment.

Mr DM Gumede (ANC) said that he did not have problems with the principles guiding the amendment. He noted that an identity document (ID) did not expire and that even if one did not intend to come back to the country, that person was still allowed to vote. In Islamic countries, Friday was a weekend but in South Africa it was not, and wanted further clarification on how that would be dealt with. He also asked for what purpose a person intending to stay in London would want to vote in Durban. He asked why the Bill was limited only to voting at the province, and why it was extended to voting in the municipalities. Why did the Bill focus on developed countries, and whether it had looked at time zones for a person who may be in rural DRC. He said that the time lag in other countries could be more.

Ms B Dambuza (ANC) said that in provincial governments, if one was registered in the Eastern Cape, unless one changed, one could vote only for the national elections and not the province. The proposed provision would not be fair for South Africans living in the country who were also forced to travel to different provinces to vote. The state could only provide what resources it had, and it was important to ask whether the IEC had the resources. On the documentation, she said that what was recognised was the ID, and that in some instances the passport may have expired and people may have left South Africa illegally. She asked how the Bill would ensure that people were not in other countries illegally.

Ms T Kenye (ANC) wanted to know how the provincial votes would be determined. She also said that it was not right, as there were citizens who had been out of the country for a long time and did not pay tax. The requirement for a passport may be used to assist with the illegal foreigners.

Mr M Hoosen (DA) said that the question should be whether South Africa wanted to make it easy for South Africans abroad to cast a vote. The intention of the drafters of the constitution had been to try to make it as easy as possible, and the Committee should address that concern. The IEC had previously increased the number of voting stations and had allowed persons incarcerated in prison to vote. The people in prison did not pay tax, but had the right to vote. He added that because of resources, some of the things may not be capitalized, and the IEC should respond on whether the proposals were in line with the Constitution and whether the proposals could be achieved.

The Chairperson commented that the Committee may have to consider looking at the regulations that governed the Act, rather than look at amending the Act.

Ms D Raphuti (ANC) commented that the analysis given by Mr Waters had been ambiguous, since it was only about numbers. She asked whether the people living abroad were patriotic. She agreed that there was a right to vote, but asked whether the people living in the foreign countries were working to benefit the country. She advised that more research needed to be done on the amendments being proposed.

The Chairperson commented that the majority of people overseas may be more in transit. He observed that the countries mentioned in the research had more white South Africans, and asked what had informed the research presented. He added that the right to vote was not absolute, and was limited to what could be afforded.

Mr Waters responded that the figures were derived from the census carried out in those countries. He could not present any figure from India and Thailand, because no census was carried out in those countries. He had requested the information from DIRCO, but had not received a reply which could add to the research presented.

The Chairperson asked whether Mr Waters had researched Lesotho and Mozambique since a large number of South Africans were living in Lesotho and Mozambique. He added that there were more South Africans living outside the territories, but within the region. The majority of South Africans living in Namibia had not renounced their citizenship.

Mr Waters responded that he could not get information since Lesotho, Mozambique and Namibia did not conduct a census. The formula on voting stations was based on the consulates and embassies. In the UK, the embassy was in London, but there were many South Africans who lived outside London. He pointed out that there were several registration weekends within the country, and when people within the country wanted to travel from one province to another, it was the people’s choice, unlike the people overseas who had no choice. He agreed with Mr Gumede that IDs did not expire, so people could register to vote, but the system automatically kicked them out if the people were not citizens.

The Chairperson asked what determined the need to use two documents, the ID and the passport.

Mr Waters responded that it was different in every country. Some countries give temporary ID numbers. He added that it was discriminatory when South Africans abroad were required to produce two documents, whereas the other South Africans in the country had to produce only one document. The Deputy Minister, in her note of reply in February, had said that there was an intention to amend Section 11 of the election regulations of 2004, so that South African citizens who intended to apply to vote abroad would not be required to produce a passport.

The Chairperson said that if one had permanent residency, the person lived in that place permanently. He asked if the Bill was advocating that where the passport had expired but one still had his/her ID, then that person should still vote.

Mr Waters responded in the affirmative. He clarified on the question about voting over weekends. It did not mean one should vote on a particular day, but that the IEC should accommodate the different time zones. On the addresses, he said that one could apply to get the provincial ballot wherever one was, and that the last official address in South Africa could be used as a guide. It was not the work of the government to follow up on illegal people in other countries. Regarding whether weekend voting in overseas countries would deter people from voting in South Africa, he responded that the President could call for an election on any day, including a Saturday, and that in itself could boost the turnout. He said it was irrelevant whether people paid taxes, and that there should be inclusivity as opposed to exclusivity. He did not know whether the people overseas were patriotic or not. Some people went for work experience, and it was not up to the Committee to decide. The Constitution said that as long as one was a citizen, he/she should be allowed to vote.

The Chairperson asked whether there would be a cost for opening the embassies over the weekend.

Mr Waters responded that the embassies could always get around it and give the staff a day off on a Monday.

Ms Raphuti commented that the amendment Bill was very selective and not inclusive, and that Mr Waters should do further work on it.

The Chairperson commented that the proposed amendments helped the Committee to look at the future.

Ms Kenye asked for more clarification on her earlier question about illegal foreigners.

Mr Waters said that the amendment was not selective and that it was giving life to the Constitution. On illegal immigrants, he reiterated that it was not for DHA to determine who was in another country illegally -- it was for the authorities in the other countries.

Mr Hoossen asked whether the amendment would be extended only to the countries mentioned in the presentation.

Mr Waters responded it would not, and added that the reason other countries were not included in the presentation was because he could not get the figures on the number of South Africans living in those countries.

The Chairperson commented that the Committee may have to face the reality that the amendment may not be possible in the current situation, since the IEC was looking at the coming elections.

Electoral Laws Amendment Bill (B33-2018): IEC briefing

Ms Janet Love, Commissioner, IEC, said it was the intention of the IEC to ensure the Bill was processed during the current session of Parliament, and it was unfortunate that the Bill had been delayed in reaching the Committee.

The Chairperson asked why there had been a delay. When had the IEC finalised and tabled the Bill before the executive, and had the Bill gone via the Cabinet?

Ms Love responded that IEC had submitted its proposal in April 2018.

Mr Deon Erasmus, Chief Director: Legal Services, DHA, responded that consultations had had to be done with the Deputy Minister. He did not have information on when the Bill had been received and when it was finalised. He confirmed that the Bill had gone via Cabinet, and he would confirm the dates to the Committee.

The state law legal advisor reported that the state law office had received the Bill for final certification at the end of September 2018. It had had issues with certain provisions over which it had engaged with the IEC and the DHA. The state law office had sent the Bill to the IEC on 7 October, and had then certified the Bill the previous week. He reiterated that the state law office had not delayed the Bill.

The Parliamentary legal advisor confirmed that the Bill had been received last week and that the office of the Parliamentary legal advisor would be advising the Committee henceforth.

The Chairperson reminded Members that the Bill was an urgent amendment.

Mr Sy Mamabolo, Chief Electoral Officer: IEC, clarified that the Bill amended three pieces of law:

  • Electoral Commission Act.
  • Electoral Act.
  • Municipal Electoral Act.

He said that the Bill was focusing on the elections next year and was aimed at providing for the use of all available resources necessary for the Commission to compile and maintain the national voters’ roll. There was a need to employ technology and provide for electronic submission of party registration applications.

Some of the issues the Bill addresses include:

  • provision for exclusive jurisdiction;
  • clarifying the electoral timetable;
  • providing for the chief electoral officer;
  • providing for voting procedures for voters without addresses. He commented there was a lot of debate on whether the provision dealing with addresses was constitutional or not.
  • Prohibition of the use of public finances.

Clause 1 of the Bill amends section 5 of the Electoral Commission Act, to clarify that the Commission may use all available sources of data to obtain information necessary to compile and maintain the national common voters’ roll.

Clause 2 amends section 15 of the Electoral Commission Act, to authorise the Commission to regulate the application procedure for the registration of parties to contest national and provincial elections. (The envisaged procedure may include electronic submission),.

Clause 3 amends section 15 A of the Electoral Commission Act, to authorise the Commission to regulate the application procedure for the registration of parties to contest municipal elections in a particular municipality.

Clause 4 amends section 20 of the Electoral Commission Act, by inserting subsection 2A to empower the Electoral Court to hear and determine any dispute relating to the constitution or founding instruments, membership and leadership of any party registered in terms of the Electoral Act.

Clause 5 inserts a new section 21A into the Electoral Commission Act, to provide for the prohibition of the use of the name and its acronym, logo, designs or electoral material used or owned by the Commission.

Clause 6 revises section 7 of the Electoral Act, to empower the Commission to make regulations regarding the application procedure for registration as a voter.

Clause 7 amends section 8 of the Electoral Act to make provision for a voter to be registered on the segment of the voters’ roll for a voting district of his or her choice within the ward where he or she was ordinarily resident.

Clause 8 amends section 11 of the Electoral Act, and deals with consequential amendments related to clause 7.

Clause 9 amends section 20 of the Electoral Act, in order to clarify that the election timetable may include any matter authorised in terms of the Electoral Act.

Clause 10 revises section 24 of the Electoral Act, to clarify that the voters’ roll to be used in an election must be the one certified by the chief electoral officer for that election. It further makes provision to clarify that the cut off date for the registration of voters for an upcoming election must be the date of proclamation of an election date.

Clause 11 amends section 28 of the Electoral Act, in order to deal with technical amendments by making reference to the specific provisions of section 27 that the chief electoral officer must notify any party of its noncompliance therewith. It further introduces a requirement for the chief electoral officer to notify the relevant parties where a candidate’s name appears on multiple party lists, and to afford such parties an opportunity to substitute that candidate and re-order their party lists.

Clause 12 amends section 38 of the Electoral Act by the deletion of subsection (5) (Aa), which requires that the identity document of a voter must be stamped as proof of voting, as the requirement was no longer feasible with the introduction of identity cards. Clause 12 also provides for a different procedure for voters whose names appear in the voters roll without addresses.

Clause 13 inserts section 38 A in the Electoral Act, and provides for a different voting procedure for voters whose names appear on the voters roll without addresses.

Clause 14 amends section 40 of the Electoral Act, to align the circumstances under which a voter may be issued a new ballot paper to those provided for in section 49 of the Local Government: Municipal Electoral Act.

Clause 15 amends section 41 of the Electoral Act, in order to provide for the circumstances under which an agent may object to a voter whose name appears on the segment of the voters’ roll for the voting district in which the voting station was located.

Clause 16 amends section 86 of the Electoral Act, in order to limit the class of persons who may apply for accreditation to provide voter education for an election to juristic persons only.

Clause 17 amends section 87 of the Electoral Act, to prohibit the use of public funds, except those allocated to a party in terms of the Public Funding of Represented Political Parties Act, 1997, for the purpose of a political campaign.

Clause 18 amends the election timetable contained in schedule 1 to the Electoral Act, to provide for additional compulsory steps to be observed in preparing for an election.

Clause 19 amends section 6 of the Local Government: Municipal Electoral Act, to mirror the provisions of section 24 of the Electoral Act relating to the voters’ roll to be used in a municipal election.

Clause 20 amends section 11 of the Local Government; Municipal Electoral Act, in order to clarify that the election timetable may include any matter authorised in terms of the Local Government: Municipal Electoral Act.

Clause 21 amends section 51 of the Local Government: Municipal Electoral Act, to provide for the circumstances under which an agent may object to a voter whose name appears on the segment of the voters’ roll for the voting district in which the voting station was located, and the decision of the presiding officer regarding a special vote.

Clause 22 amends section 67 of the Local Government; Municipal Electoral Act, to mirror the provision of the Electoral Act relating to the use of public funds.

Clause 23 amends the election timetable contained in schedule 3 of the Local Government; Municipal Electoral Act, to provide for additional compulsory steps to be observed in preparing for an election.

Clause 24 deals with the short title and commencement of the Act.

Mr Mamabolo added that there were no additional personnel or communication implications envisaged as a result of the Bill. Most of the amendments proposed by the Bill were related to normal operations in the elections. The financial implications had thus been taken into account when compiling the budget for the elections. He added that the IEC had consulted the National Party Liaison Committee, and the Bill would give effect to sections 1 (d),19.46 (1),105 (1) and 157 of the Constitution of the Republic of South Africa.

Discussion

The Chairperson sought more clarity on clause 1 regarding the on sourcing of data. He observed that the voter’s roll and population register were with the Department of Home Affairs, and asked the IEC to be more specific on the other data being sought. He said that the amendments proposed that the Local Government Municipality Electoral Act align with the Electoral Act, and asked the IEC to talk more on the synchronization. He asked if the IEC only consulted the National Party Liaison Committee and if any consultation had been done at the local government level. He asked why there was a provision for a different procedure for voters whose names appear in the voters roll without addresses, and wanted to know whether the provision had anything to do with the Constitutional Court judgment. He referred to voter registration in the ward within a voting district and asked why it was difficult for the IEC to allow a voter to vote in a different ward within a voting district, rather than forcing people to go to different stations.

Ms H Mkhaliphi (EFF) asked for more information on Clause 1. What data was being sought and from where would it be sourced? Clause 2 authorised the IEC to regulate the application procedure for the registration of parties to contest national and provincial election, and she asked what the current status was. She expressed agreement with Clause 4, and said that the IEC should even be empowered to disqualify parties which had disputes relating to the constitution, membership or leadership of the party. She concurred with the Chairperson on Clause 13, and asked if the amendment would be in contravention of the Constitutional Court judgment. She asked the IEC to clarify more on the procedure for voters with no addresses. She expressed concern that public finance could be used by the ruling party, and asked the IEC to share more information on this.

The Chairperson commented that even political parties outside government could use public funds.

Mr Hoosen added that the use of data from all sources needed to be looked into. He gave the example of private tracing agencies in the country and people who did not want to declare their addresses. He cautioned that the IEC should not rely on data which was incorrect. He asked why it was necessary that only the IEC did voter education, as the political parties could also do that.

Ms Dambuza asked whether the regulations had been drafted, since the regulations could have an impact on the running of the elections.

Mr Gumede wanted to know what would be used to prove one had already voted, since the Bill was removing stamping of the ID as proof of voting.

Ms Love responded that the provision concerning addresses in the Bill was to respect what the legislation required and what the court was taking forward. People with no addresses were entitled to vote, but the IEC wanted them to vote in the right place. The people for whom the IEC had no record of an address would be asked to declare the address and the officials would be able to interrogate the responses given. It had been happening, but it needed to be properly encoded in the legislation and to make what the court had decided on a reality. She added that in one ward one could have more than one voting district -- this could be because of the size of the population. The idea was to ensure the Act gave meaning to political boundaries, not administrative boundaries. She clarified that the application procedure for parties was to provide for that to happen online, to enable more registration take place.

Mr Mamabolo added that the IEC wanted to complement the available public data, and that it had to make an assessment of the data to ensure it accords with the data on the voting role. The Bill was to provide for the lawful use of such data.

The Chairperson wanted to know whether there were people with IDs who did not provide addresses. He asked the DHA to talk to the Committee about the population register.

Mr Erasmus responded that section 88 of the Identification Act required the DHA to capture information on the place of birth, particulars of marriage, together relevant documentation, a picture of the individual and gender. If one changed the address and did not update it, the DHA would never know.

Mr Mamabolo added that the IEC did not have the address of 1.6 million people, and the issue was whether the 1.6 million were registered in the correct segment of the voters roll. He confirmed that the IEC analyses the data from the DHA. On the issue of addresses and the proposed amendment by Mr Waters on South Africans living abroad, he said that before 2009 only certain categories of South Africans abroad were able to vote at the provincial level. The principle was that the group comprised persons who were in government service, and were temporarily out of the country. In 2013, an amendment had been passed and any citizen outside the country was allowed to vote, provided notification was sent to the chief electoral officer 15 days after the proclamation. The amendment also created an international segment of the roll, for persons ordinarily resident out of the country. Section 33 had been amended in 2013 to limit voting to the national ballot for the reason that the people outside the country did not have a nexus to the province by way of ordinarily residence .Similarly, within the country, if one was in Gauteng, he/she did not have a nexus with KZN.
 
The Chairperson asked whether the constitutional court order applied to the international segment.

Ms Love said that the addresses of international voters were required. The reality was that there was no intrinsic connection of association for South Africans abroad with a particular province. The IEC was identifying people who had no link to the province and limiting them to a national election, and that was how it was treating the people inside the country. It was administratively very difficult for an individual coming from Gauteng to vote at a provincial level in Cape Town. There would also be a legitimacy problem in the sense that the elections reflected the will of the people living in that province.

Mr Waters said that pre-2013 government officials had been allowed to vote at the provincial level but instead of progressively advancing on that, the IEC was disenfranchising South Africans living abroad.

Ms Love said that the issue about public servants being accommodated was because the government officials were temporarily out of country. The logic of which province to locate them was the place the officials were found in terms of government service, which was Gauteng, which was not necessarily a correct logic. That the segment of the roll of a particular province was not based on ID numbers.

Mr Hoosen wanted to know whether South Africans living abroad could be accommodated if they were able to give the IEC information in advance, identifying which province the South African living abroad was coming from.

Ms Love said that even though the information could be given to the IEC in advance, the IEC would not want to accommodate the South Africans abroad. It was not an issue of principle, but an issue of capacity.

The Chairperson said that everything must be in line, and that South Africa ran the best election machinery in the whole world. The Committee appreciated the IEC. The public would comment on the Bill. Members would go to the Assembly and vote, since the goal was to have free and fair elections. He sought clarification on the synchronization, and asked why the IEC had not made available the body of the two other Acts.
 
Mr Erasmus clarified that the Bill was a general laws amendment Bill, and amended the three acts in one Bill.

The state law advisor confirmed that the amendment bill was amending the three principal acts, which was within the law.

The Chairperson asked whether bodies with an interest in the Electoral Municipalities Act had been consulted.
Ms Love said that the process earlier referred by Mr Mamabolo was the process being used at local government. She clarified that the three pieces of legislation were affected by the amendment. The clause amended the Electoral Act and the IEC wanted to amend the other Acts at the same time so that it did not have to go through the process another time.

Mr Erasmus added that it was for the National Council of Provinces (NCOP) to decide if the Bill affected the provinces in reference to Section 76 and Section 75 of the Constitution.

The Parliamentary Legal Advisor said that according to rule 286 4 (a) of National Assembly rules, permission from the House would have to be sought if there was something which was not in the Bill which the Commissioner wanted permission from the Committee to include.

Ms Love said that where it involved a different subject matter, the rule would apply. However, the subject matter the IEC was seeking to include was already in the Bill.

The Parliamentary Legal advisor confirmed what Ms Love had clarified, and said it was correct that the subject matter was covered in the Bill.

The Chairperson commented that the Committee had to satisfy itself that all laws had been followed. He
asked where the IEC stood with the court order. He cautioned that if IEC had not met the court order requirements, someone may contest the voters’ roll in court.

Mr Mamabolo responded that the Constitutional Court had asked the question of what functional value an address was. The address was used to assist in placing a person in the correct geographical location in which that person was ordinarily resident. Wards were smaller than districts. The possibility of making an error in a voting district was higher than the wards. A voting district was an administrative entity and not a political entity of registration, and that was how the IEC was dealing with the issue. The IEC had 82% of the addresses, and the Bill was introducing section 38 A to deal with persons for whom it did not have address.

The Chairperson asked whether the IEC had identified the remaining areas.

Ms Love responded that IEC had the list of people broken down into wards, and it was currently engaging and trying to draw on all data.

Mr Mamabolo said that the IEC could not guarantee that there would be no challenges. It was introducing a structured process to deal with objections, as it did not want to deal with objections just before or after the elections.

The State Law advisor confirmed that it had raised the issue of the court order. Its position was that the DHA needed to capture all addresses in the voting roll. If moving forward there would be people without addresses, there was no foreseeable problem so long as there was no attempt to circumvent the court order.

The Chairperson said that the remaining questions would be answered as the process went forward. The Committee would have to outline the process. There was public participation and there was an NCOP process.

The Committee Secretary confirmed that the Bill would be advertised and be given two weeks prior to finalising.

Mr Adam Salmon, Committee Content Advisor, confirmed that there would be consolidation of submissions for consideration by the Committee.

The Chairperson said that there would be a need to interact with the NCOP component. The Committee would write to the Speaker, and political parties would help with their Members at the NCOP.
The Chairperson asked if the appointment of commissioners had been finalised.

Ms Love responded that the process had passed through the Presidency, and had to go through the Department.

Mr Erasmus said that there had been a submission and the appointment of the vice-chairperson, and that he would follow up on the matter.

The Chairperson requested that he send a formal response to the Committee before the end of day.

Immigration Amendment Bill, 2018: Consideration and deliberation

An official from the DHA reported that the Department had engaged with the departments on the Section 34 amendment. The Constitutional Court had ruled that all people detained had to be brought before court within 48 hours. Prior to that, it had been the deportee who could ask that his deportation be confirmed by the court. He added that the court had directed that the laws be introduced within 24 months.

The Chairperson commented that the Committee wanted a report on the outcome of consultations, and not the background on the Bill. When the consultations were done, there must have been a record, and he was concerned that the DHA did not have such a record.

Ms Daksha Kassan, Parliamentary Legal Adviser, confirmed that she had been invited for the consultations. Most of the concerns raised had been operational and did not have an impact on the content of the Bill. She had highlighted the proposed amendments to the Bill.

The first proposal related to the definition of what a court day was. The definition to be included in the Bill of what a court day was would be picked up from the definition provided in the Magistrates Act. Further discussion would take place with the DHA to discuss if the 48 hours expired after the court day. For consistency, the Bill may have to say “non-court day” instead of “outside court day.”

Another concern highlighted was that the Bill had to make it clear that a foreigner must be able to make representation and, where possible, he/she needed to have an interpreter, otherwise due process would not have been followed. She added that the right to be informed in the language he/she understands did not mean it had to be the foreigners’ own language -- passive understanding of English would suffice. She added that the term “lack of cooperation” was broad and it may result in a foreigner being punished for lack of cooperation from the agency. She confirmed that the term “lack of cooperation” would be dealt with in the regulation. To address the concerns that the foreigner must understand proceedings, the information to be contained in the interview would be included in the regulations.

Discussion

The Chairperson said that the problem was not foreigners, but the undocumented people. The police arrested and thereafter released the same people. The government had a responsibility and needed to know what happened to the people after being released from prison.

Mr Erasmus said that the court had ruled that the government not having funds was not an excuse. On the need to have courts closer, the Department of Justice on being consulted had said that its budget had been cut back and it was not possible to provide more courts. On the question of getting more detention facilities, the response from SAPS had been that its budget was depleted and it was not able to get more facilities.

The Chairperson requested the DHA to present to the Committee a report on weekly deportations. He said that the Bill may be adopted to satisfy the court judgment, but it would not have addressed the problem of undocumented people in the country.

Mr Gumede proposed that the Committee should hold a seminar for all stakeholders.

The Chairperson asked at what level the consultations had been done.

An official from theDHA responded that it had been at the chief director level.

The Chairperson requested for the names of the chief directors and a report on the engagement with stakeholders. He noted that the court had given the DHA until June next year, and the Committee could use the time to deal with the “after” part, which related to the question of what happened after the 90 days, or it could table the amendments as approved.

Ms Kenye wanted clarification on what “lack of cooperation” meant, and said that it was possible for the foreigners not to divulge their countries of origin.

Ms Dambuza asked why the Committee was not involving public participation.

The Chairperson responded that the Committee had called for public hearings and for further consultations with all stakeholders, including the police. The Committee may want to invite the executive authorities, as the illegal immigrants issue was a serious matter. He confirmed that the Committee had from now until early the following year to consult with the other stakeholders.

Ms Raphuti said she supported the proposal, and that she respects the foreign nationals who present themselves to the DHA .She agreed with the Chairperson that the problem of undocumented foreigners was a challenge, and that the Committee needed to look at the issue in a critical way. The illegal immigrants go to the courts, and the courts rule in their favour. The European foreign nationals should also be looked at, along with Africans, for it to be an inclusive approach.

Mr Hoosen said that with two million undocumented people, if the Committee implemented the law as it was and the government did not have money, it would be a challenge. The Committee needed to find a long time broader solution.

Mr Gumede proposed that the Committee adopted the law, defective as it was, and that as it moved forward it would find a solution. It would do further consultations on the concerns about what happens after the 90 days.

The Chairperson said that the DHA was looking at the concerns of the court, and the Committee could get political heads together. It would write to the DHA and raise the concerns. It may also have to engage other committees. He said that the Bill was currently addressing the right of individuals to appear before court -- but after that, what happened? The inspectorate, who were the immigration officers, did not have the capacity to take the people to court.

DHA performance: BRRR report

The Committee Secretary informed Members that they had until Friday to adopt the report.

Mr Hoosen said that he was worried Members would rush through it.
 
Mr Salmon clarified that only procedural changes would be made to the report.
 
The Chairperson said that the Members could go through the report and have it adopted after the sitting later in the afternoon.

The meeting was adjourned.


 

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