The Department of Home Affairs (DHA) and Parliamentary legal services advised the Committee on the retrospective application of the repeal of section 6 the Civil Union Act. They proposed that a new clause be inserted in the Amendment Bill that would make the transitional provision retrospective and prospective at the same time. The Members collectively agreed on the amendment of section 6, that the exemption from solemnising same sex marriages by DHA marriage officers should be valid for 24 months, so that in that period there could be training and sensitising of officials on the constitutional rights of same sex couples. Marriage officers who were currently exempted would continue to be exempted for 24 months. The Members further required the DHA to report on the process of phasing out after six months of the Bill’s enactment. A decision was made that the Civil Union Bill would be adopted only the following day, once the printers had printed the recently amended Bill.
The DHA briefed the Committee on its intention to extend the contract with Visa Facilitation Service (VFS) for 24 months after its termination, while undertaking a public-private partnership (PPP) process. VFS had made it clear it could and would not contract on a month-to-month basis, as proposed by the Committee, because of the impact on its leased facilities’ contractual obligations and its employment contracts with 200 South Africans, who needed security. This would mean Home Affairs would be left without those services, which was why it had opted for the extension of 24 months to push for the PPP process.
A legal opinion recommended the Department should proceed with the PPP process, instead of an open tender, and given the time it would take for the process to conclude -- up to three years -- the contract with VFS could be extended to allow sufficient time for the process to unfold. A lapse of continuity in the provision of services would likely contribute to a situation of failure and a breach of client service level agreements. In November, the DHA would publish a request for expression of interest calling for companies who were interested in the provision of the service. The Department also intended to appoint more than one service provider to manage its local and international operations.
The Members unanimously expressed disappointment that the Department had ignored the decision made by the Committee and adopted by Parliament in the Budget Review and Recommendations Report (BRRR). They reprimanded the Department for ignoring the Auditor General’s (AG) complaints about the corruption happening through the services of VFS. The main concerns were that VFS forwarded incomplete applications which had to be completed by the Department, which questioned the need for its services, it was a monopoly contracted for many years, and the company was associated with the Gupta family. The Committee requested an urgent investigation into the VFS operations, including the participation of the Department and the role it played, to be conducted by the Auditor General.
The Committee confirmed that the decision taken by the Committee and Parliament was not going to change. The contract would be on a month-to-month basis while working out a better solution. The Department was not going to sign a 12 or 24-month contract. If VFS did not accept the decision, “it must jump ship,” and if there was chaos, the State must resolve it.
The Committee was told that the changes in the executive authority had impacted on the conclusion of a contract with Fireblade Aviation over its private terminal at OR Tambo International Airport. A meeting had been requested with the directors of Fireblade next week to agree on the way forward. The Chairperson requested a final report and the signed agreement at the next meeting.
The DHA reported on the litigation cases it was dealing with, which included 156 immigration cases, 19 civic-related cases, 18 cases relating to tenders and contracts, and another various 57 cases. A problem was that South Africa was a constitutional democracy, and when a person comes in as an illegal foreigner, he remains in the Republic as such, hoping to evade the law. Once a person was caught out and detained at Lindela for the purposes of deportation and then cries for asylum in terms of South African laws, and the Constitution in particular, that person must be given the opportunity to apply for asylum, and have their status determined. Lawyers were colluding with corrupt officials to fix fees and share the proceeds.
Members commended the presentation, but said it had not addressed the Committee’s request for information about the costs of settlement in relation to lawyer times. The reason the report had been requested was because of the “shenanigans” in the State Attorney’s office, where a case that was supposed to cost R100 000 had ended up costing R1.2 million. The Chairperson suggested that much of the Department’s next budget should be directed towards inspectorates because of the amount of corruption and the number of people arrested on a daily basis. The law must be tightened to ensure that people followed the legal and proper processes when entering the country.
Chairperson’s opening remarks
The Chairperson acknowledged the Committee had received numerous submissions from organisations who still wanted to make oral arguments on the Civil Union Amendment Bill. The Committee had taken a decision to receive written submissions instead of public hearings. It had reviewed all submissions as part of public participation in terms of Rule 235, which provides an option to either conduct public hearings or receive written submissions. The argument that the process followed was unconstitutional may not hold water, as Parliament had done the necessary work to include the public. He recalled that in last week’s engagement, it had been agreed that legal services would go and deal the outstanding matter of the amendment to clause 6, to make sure that the rights of those who were exempted were not infringed in the process so that when the Bill was passed, it gives the state the right to solemnise those marriages. The Department and Parliamentary legal services were expected at the meeting to advise on the retrospective application of the Bill and on the amendment of clause 6.
The next agenda item would be the briefing from DHA on what was to happen at the end of the contract with Visa Facilitation Services (VFS). The Committee had previously engaged the Department and the matter had then caught the attention of National Treasury (NT) and the Auditor General (AG), who had raised concerns about the contract. It must be noted that the Committee had already taken a decision and the decision had been adopted by Parliament under the Budgetary Review and Recommendations Report (BRRR).
Next would be the briefing on the litigation cases against the Department. The Committee had to resolve Fireblade not only on what was raised in the report, but the Department had until month end to finalise the Fireblade contract issue.
The adoption of the Legacy Report and the outstanding minutes would be the Committee’s work and done at a later meeting today because of limited time, and the Department did not need to attend.
Civil Union Bill
Adv Noluthando Mpikashe, Legal Advisor at Parliament, recalled that at the last meeting there were discussions about the retrospective application of the repeal of section 6 of the Civil Union Act, and she had advised the Committee that the courts had looked at the retrospective application of legislation. The courts had pronounced that legislation should not apply retrospectively, but should apply prospectively. The particular case of the facts of the competing rights of the Civil Union Act had not been tested in any court of law and only judgments on retrospective application had been considered. The Committee must note the Bhe judgment as important and of interest. Where customary law rights were found to be unconstitutional, the Court said one could strike a reasonable balance when dealing with retrospectivity. She read out paragraph 126 of the Bhe judgment. The Court said even if the order at the time would apply prospectively or retrospectively, it could lead to unfairness.
In the case before the Committee, there were competing rights between marriage officers who were given a right by section 6 of the Civil Union Act and the rights in terms of section 9 of the Constitution, not to be discriminated against. The proposal was to make the transitional provision retrospective and prospective at the same time. The exemption should be valid for 24 months in the hope that the Department in that period would be training and sensitising the officials on the constitutional rights of same sex couples. She read out the new proposed transitional provision clause, the effect of which was that the marriage officers who were currently exempted would continue to be exempted for 24 months. In the interim, the Minister must make sure that every Home Affairs office had a marriage officer who must solemnise same sex marriages so that no one would be turned away because there was no officer available to marry same sex couples.
The Chairperson welcomed the proposed new clause. Everyone was a client of Home Affairs, and all services should be provided to everyone. He agreed that the training of the exempted officials was necessary, as no none had absolute rights and as employees of the state, they had a responsibility to provide such services.
Ms B Dambuza (ANC) had prepared an argument on the court judgments that had been forwarded to the Committee beforehand, but she no longer saw the need to comment as she felt that legal services had observed the same -- that the facts the Committee was dealing with had never been tested in court. She agreed to the way forward and on the phasing out of the right.
Mr D Gumede (ANC) proposed the adoption of the amendment of the Civil Union Bill.
Ms Dambuza seconded the adoption, with a recommendation for the Department to come and report to the Committee after six months, because phasing out did not necessarily mean that it would wait for the 24 months. It was a phasing out and after six months progress should be reported on.
The Chairperson asked where in the Bill the transitional arrangement would be included.
Ms Mpikashe responded the amendment Bill currently had only two clauses. The transitional provision would be inserted after the first clause on the repeal of section 6 of Act 17 of 2006. There would be a new Bill printed to include the new clause, so the Bill was not adopted although the amendment of section 6 was agreed upon.
It was decided that the adoption of the Bill would be done tomorrow, 28 November 2018, at 13:00.
Ms D Carter (Cope) was applauded for working together with Parliament to honour the fundamental rights entrenched in the Constitution. The Chairperson commented that the time had arrived where everyone was equal before the law, and the rights must be exercised.
The Chairperson said arguments against section 6 had been raised at the initial adoption of the Act, but it was decided officials should be allowed to ease into it. However, the Committee would continue its efforts to shape marriages to ensure that as lawmakers it abided by the constitutional requirements of the country.
All the written submissions, both for and against the amendment, were appreciated and the Committee considered all the concerns that had been raised. It was guided by the supreme law of the country, that the state must not discriminate on sexual orientation, and this included officers of the state.
Visa Facilitation Service (VFS) contract
Mr Thulani Mavuso, Acting Director-General: Department of Home Affairs (DHA) briefed the Committee on what was envisaged to happen at the end of the contract between the Department and Visa Facilitation Service (VFS), and gave the background to the tender for the appointment of a business partner for global visa and permit operations in South Africa and abroad.
The Department had entered into two contracts with VFS. The first contract was entered into in 2010 to provide the services in missions abroad, and in June 2014 a new contract had come into effect to provide the services in the country. There was a decision taken by the Department at that time that the applications for permits and visas in the front offices were creating a huge challenge because the Department was not coping with the services provided in its front offices. There was also a huge loss of applications at DHA offices, where applicants would wait for a very long time for a decision to made and were not able to track their applications -- which were then not found. It had also increased corruption, as people would deliberately lose applications. The decision was taken that because DHA did not have the resources, it was not able to provide that service to foreign nationals who were seeking to apply for permits. The VFS service working abroad was extended to also be in the country. A procurement process was followed and concluded. The tender was awarded in 2014 and operations started in June the same year. The contract was coming to an end on 31 December 2018.
Mr Mavuso referred to the process followed prior to the expiry of the contract and the plans moving forward which had been initiated. The Department intended to extend the contract with VFS for a period of 24 months while undertaking a Public-Private Partnership (PPP) process. In November, the DHA would publish a request for an expression of interest calling for those companies who were interested in the provision of the service. Based on the legal advice received and consultations with National Treasury (NT), the DHA would in future manage its contract with a permitting business partner through a PPP (Regulation 16) process not a bid process. The Department was considering the appointment of more than one service provider to manage its local and international operations.
On 6 December 2017, the immigration services branch had made a request to the Bid Adjudication Committee (BAC) to give approval for an open tender process to commence for the appointment of the permitting business partner. On 17 December, a submission was made to the BAC and the decision to go to tender was approved. On 22 January 2018, the Chairperson of the BAC had signed the written approval for the immigration services branch to proceed with an open tender. Between March and April, the appointed members of the BAC had convened and undertaken a process of drafting the technical specifications for the tender.
During that period, a parallel process was initiated to request a further legal opinion as to whether the Department should proceed with an open tender process or defer to a PPP under NT Regulation 16. On 26 April, a legal opinion was submitted to the BAC wherein it was recommended the Department should proceed with the PPP process, and given the time it would take for the process, the contract with the current service provider, VFS, could be extended to allow sufficient time for the process to unfold. The legal opinion cautioned a lapse of continuity in the provision of services would likely contribute to a situation of admittance to failure, and a breach of client service level agreements.
On 8 May, the Department had presented the technical specifications to the BAC seeking approval for the publication of the tender. On 10 May, the BAC had advised that the technical specifications had not been approved because it was expected to improve on the mandatory requirements while making provision for the inclusion of pricing guidance to serve as a consideration for the bidders.
VFS was advised that the existing contract with the Department would not be summarily extended. It was indicated to VFS that the DHA was awaiting advice from NT on the options for extension of the contract. On 10 October, the Department had engaged with NT on how it should proceed, and on 18 October, NT had confirmed that the BAC should be conducting a participatory process for the appointment of a new service provider. NT had proposed the Department should do an analysis of all stakeholders in the market by publishing a Request for Information (RFI), and advise on the proposed specs for the procurement of a business partner.
On 26 October, correspondence was sent to VFS after having met with them, indicating that while the contract provided for the extension of services, the Department’s view was that it could extend the contract for only 24 months while undertaking the PPP process. VFS had accepted the proposal of 24 months. The Department was in the process of registering a PPP with NT, and would publish the RFI this month, in November.
The Chairperson asked if the contract for 24 months had been signed. He commented that the presentation did not consider the concerns that had been raised by the Portfolio Committee, and was silent on the recommendations made to Parliament and now adopted.
Mr Mavuso responded that the contract had not been signed. The new contract would be signed once the BAC had decided. He was aware of the BRRR, but had not seen the report and had only heard the Chairperson referring to it. The proposal made by the Committee had been discussed with VFS, who were very clear that a contract on a month-to-month basis would impact on the contractual obligations in relation to the leased facilitates where they were providing services, which were not on a month-to-month basis. Also, there were 200 South Africans employed by VFS, so they needed to be given certainty in terms of their employment contracts, so if the Department was opting for a month-to-month basis, VFS would rather not extend the contract and would have to move away. This would mean the DHA would be left without those services, and that was why it had opted for the extension of 24 months to push for the PPP process. It had taken into consideration the recommendations of the Committee and moving forward, more than one service provider would be appointed.
Ms Dambuza was disappointed with the presentation, because the Department had decided to ignore the Auditor General’s (AG’s) complaints about the corruption happening through VFS. There had been an inquiry and numerous meetings about VFS since September. The main concern was that VFS had forwarded incomplete applications to the Department, which questioned the need for its services. It came up sharply during the inquiry that DHA officials had had to do the work that should have been done by VFS, “meaning that the Department just babysits and gives the company money.” She commented that the service was not only costing the taxpayers, but also the citizens of the country who were directly paying for VFS services, and that was problematic when the Department then had to go and do the work for them.
Notwithstanding the implications of lapses, the acting DG should have gone to the office of the Committee Chairperson to explain the situation, based on the discussions of the Committee. She had repeatedly said 24 months was too much, and the Committee would not agree to 24 months. She made a request for an urgent investigation into VFS’s operations, including the participation of the Department and the role it played, to be conducted by the Auditor General, since it had already started. A report must be submitted after three or four months. The Committee was not happy with VFS and the position was not going to change. Based on the points raised by the acting DG at the meeting, the Committee should accept a 12-month extension and the outcome of the investigation would further guide the way forward.
The Chairperson confirmed a resolution had been taken, informed by the engagements with the Auditor General and adopted by Parliament. The argument of the leases and the employment of 200 people did not arise here. There were many competitors out there who were willing to provide the service and were being closed out. The Immigration Act had deliberately been amended to accommodate VFS after the Guptas had gone to the Department and presented their business case. “It was not acceptable, by the way, that a decision of Parliament was taken on the BRRR and the DG said, ‘no, I have not seen it, I have not come across the report.’ Then why are we engaging with the Department?” he asked. The engagements of the Portfolio Committee and the BRRR were supposed to be of interest to the Department, and it was a cause for serious concern if the Department had not seen the decision that had been adopted by Parliament. The Chairperson clarified, saying the Committee was not interfering in the procurement -- this had nothing to do with procurement, it was accountability. The decision taken by the Committee and Parliament was not going to change. He agreed a further investigation should be done, as recommended by Ms Dambuza.
Ms D Raphuti (ANC) said the tender process had not been followed when VFS was appointed. The Committee had found ambiguities, which was the reason why it had concluded the contract must be on a month-to-month basis. She was of the view that VFS was arrogant and not willing to listen to Parliament’s recommendation, and that “they were using a carrot and a stick in the pretense of employing around 200 people, when most of the work was being done by Home Affairs.” She therefore supported the initial decision and recommendation made by Ms Dambuza.
Ms S Nkomo (IFP) seconded Ms Dambuza’s recommendation, and also expressed her disappointment in the acting DG for not having seen the report. “Why was he not even there when the report was presented to the House?” she asked. She also agreed with the Chairperson that rescinding the recommendations made and adopted by Parliament would be disastrous. It could not be done because it was the correct recommendation for the Committee to make. The Department would have to suggest a way of rescinding the recommendation themselves, because the Committee could not do so. If the contract for a 24 months’ extension had been signed already, there was possibility of corruption and the Committee would need to act on that, and the people involved in the signing of the contract needed to be suspended. The Committee should not be put in a corner as if it did not care about unemployment. It did, but it would not accept that as an excuse to hide behind.
Mr A Figlan (DA) repeated what the other Members had raised, that a decision had been taken by the Committee and it could not change it now. He did not understand why everything was outsourced while there were people employed at the Department who were used by the company it to which it outsourced. He supported the recommendation for further investigation into VFS, because the Committee was of the belief that it belonged to the Guptas. He felt that the presentation did not assist the Committee, only the Department, because it wanted to extend the contract for another 24 months.
Mr M Kekana (ANC) concluded from the presentation that the Department did not respect the Committee because the Committee had taken a decision a long time ago that the contract with VFS must be renewed monthly. He supported what had been said by the previous Members. The mandate of the new dawn was to face corruption and deal with it, and it was not a lie that VFS was associated with the Guptas. He reminded the Department that it was not equal to the Committee, and emphasised the oversight role of Parliament. The Department would be cleaned of corruption by force. VFS was a monopoly, and he suggested a reversion to immigration practitioners employed by DHA permanently. The Department should be given three months to conclude the monthly contract, and to employ immigration practitioners. Outsourcing must come to an end.
It was decided that the report of the Auditor General on VFS would be shared with the Department. The report had concluded that the Auditor General and NT were not happy that there was no tender process, and that there was corruption.
Mr Mavuso apologised for not having seen the final BRRR, but he had seen the draft report. He welcomed and supported Ms Dambuza’s proposal for a serious forensic investigation, because any wrongdoing by anybody must be uncovered and dealt with. He clarified that VFS services were not used by South Africans, but was used only by foreign nationals. VFS was the front-end office receiving the applications and the DHA officials were the backend and adjudicated the applications. When DHA officials were receiving the applications, they were prone to bribes. The process was changed for the front offices to accept the applications, and the back offices would do the adjudication.
VFS had improved the efficiency of the process because it was now a digital system and not paper-based, so applications were easier to retrieve. The duty of DHA officials at the back office was to adjudicate and not interact with clients. The former DG had told the Department to engage VFS to have a check list so that when someone applied, the boxes were ticked in order to ensure that the application was not rejected on the basis that it was incomplete. Cases of incomplete applications needed to be addressed because there was a standard operating manual with VFS, that all applications were to be complete.
He said that 12 months would have been ideal if there was going to be an open tender process, but a PPP process was very lengthy. It was difficult to complete even in two years, because there were a lot of stages to go through which could take up to three years.
There was a full tender process which had been completed and appointed VFS. The amendment of the Immigration Services Act to remove immigration practitioners had been taken afterwards. He informed the Members he would consider how this should be dealt with.
The Department did not want to rescind the decision, but it was following the clauses stipulated in the contract.
The footprint continued to be a problem. There was overspending of the salary bill. The DHA had lost 422 positions since the beginning of the financial year and was unable to fill positions because of the NT ceiling, which was eroding whatever savings the Department was making. 422 positions were too many. It would be a serious challenge for DHA to provide the services provided by VFS itself. The projected budget increase was very nominal -- it could not even cover the salary adjustments. He was currently faced with making a provision of R40 million for the operations in ports of entry during the festive period. R80 million was also needed in January 2019, when people had to go back. The DHA did not like to outsource, but the real reason for outsourcing was the lack of capacity to provide all the services, because its footprint was small.
The Chairperson concluded that the DG concurred with the concerns of the Committee and the report by the Auditor General, which meant the decision of the Committee was correct that the contract would be on a month-to-month basis while working out a better solution. The Department was not going to sign any 12 or 24-month contract. The decision taken by this Committee, which was decision of Parliament, was to extend the contract on a month-to-month basis. If VFS did not accept this, it must jump ship and if there was chaos, the state must resolve it. The decision would not be overturned. The Committee would not justify a monopoly on top of the other challenges identified. The capacity of the state needed to be resolved because if the outsourced company were to fail for any reason, the state would still need to take over the services. The concerns around the capacity of the state would also be included in the recommendations on the Gupta early naturalisation inquiry.
On the budget constraints, he said that it was about planning properly, and commented that the budget had increased over the years from R300 million to R1 billion.
The Auditor General would be called next week to give feedback on this engagement and finalise the terms of reference for the investigation. In January 2019, the Department ,together with NT, would be called before the Committee to brief it on the progress of the extension of the contract, and the PPP process.
The Committee would write a report on the decision taken at this meeting for the new executive authority, the Minister, so no one tried to deviate from the decision taken by Parliament.
Oversight reports: Fireblade Aviation and Desmond Tutu Refugee Reception Office
Mr Mavuso informed the Committee that the changes in the executive authority had impacted on the conclusion of a contract with Fireblade. There had been discussions with one of the executive directors of Fireblade. The MOU that was drafted had not been signed. A meeting had been requested with the directors of Fireblade next week to agree on the way forward. No date for the meeting next week had been set. At the last meeting with the Committee, the DHA had indicated the policy framework was in the draft stage, and that it was the Department’s priority.
The Chairperson requested a final report and the signed agreement be available at the next meeting.
Litigation cases against DHA
Before leading the presentation, Mr Mavuso asked for guidance on how to proceed. There were 156 immigration cases, 19 civic related cases, 18 cases relating to tenders and contracts, and another various 57 cases. To provide details of each case would have resulted in a very lengthy presentation which was why the Department had provided a spreadsheet. It was not out of disrespect, but was a worksheet that was used to monitor all the cases.
The Chairperson responded that the Committee did not want to intervene or discuss the merits of the cases but wanted to know the number of cases before the Department and how much it was costing it. This was informed because there was a company that was suing the Department for R700 million. The Committee had then taken an interest in establishing the costs of litigation against the Department.
Mr Mavuso said litigation at DHA was the responsibility of Advocate Deon Erasmus , Chief Director: Legal Services. Mr Kabelo Mogotsi was head of litigation. Legal services had three areas of focus: drafting and legislation, commercial contracts, and litigation. All reported to the Chief Director: Legal Services, who in turn reported to the acting DG. Legal Services within the Department was responsible for the management of litigation against the Department. Line functions, immigration and civil services, were the main sources of litigation against the Department.
When someone went to court and sought a particular relief, in some instances they would indicate the amount they were suing the Department for. This was included in the contingent liability as a potential liability that may occur if the outcome was not in favour of the Department. The Department currently had a contingent liability amounting to R2.074 billion in civil claims. The amount was mostly made up of contracts and tenders which were in dispute, including the R700 million law suit. Last year, the contingent liability had been R1 billion, and in the 2009/10 financial year the contingent liability had been R6 billion, which had been brought down to R1.2 billion in 2011/12 after settling the matter with Gijima.
Mr Mavuso highlighted some of the cases brought against DHA. In the first case the Democratic Alliance (DA) sought the following orders:
declaring that section 6(1) of the South African Citizenship Act was inconsistent with the Constitution and invalid from the date of 6 October 1995; and
declaring that all persons who had lost their South African citizenship in terms of section 6(1)(a) of the Act on or after 6 October 1995, were South African citizens. The matter was still in court and had not been finalised.
The Chairperson interrupted the presentation and advised Mr Mavuso to deal only with the problems and challenges that had led to litigation, without going into the details of the cases.
The contract cases were mainly old contracts dating back to 2009 and 2010, where people were suing the Department in relation to certain services where there were disputes. It would be impossible to enter into any settlement agreements unless the court pronounced on the settlement, because if someone sued the Department and it entered into negotiations, on what basis would the claim be settled, because the previous leadership did not agree with the concerns raised by the service providers because of contractual dispute. This was the position the Department was taking -- that all the matters must go to court. The more the case was delayed, the more likelihood of witnesses moving and the leadership at the DHA changing, which then compromises the whole case. Most of these cases were IT related. In cases where SITA was involved, it gets cited as a respondent in the case, together with DHA.
There were people who take the Department to court to make a decision, where they had applied for section 26(a) permanent residence and the application was brought on the basis of marriage to a South African. The Department tries to adjudicate these applications within eight months, but in most instances adjudicators cannot finalise the application because the inspectors must go to the families and interview, and only upon the report from the inspector could the adjudicator make a decision. Due diligence and the volumes of the applications were the reasons adjudication takes so long. The Department gets thousands and thousands of applications for permanent residence annually.
Other instances where people take the Department to court, were for blocking their IDs because they had acquired citizenship in an irregular manner and go to court for the Department to remove the block. People who had been arrested and deported but had ID documents during the Department’s investigation, would also litigate against the Department. There was another case where a child born out of permanent residency citizens in South Africa had to follow the status of the parents, in terms of the law, but when they turn 18 they could take a decision whether they were assuming South African citizenship if they had remained in the Republic their entire life. In this case, the courts wanted the DHA to issue South African citizenship to a child who was born out of permanent residence, which the DHA was contesting. It cannot be that a child must follow the status of the parents if the parents become citizens, the child must become a citizen. Once the child was a major, then the law makes a provision for citizenship but not while the child was still a minor. These were the types of cases the DHA deals with regularly.
Mr Mogotsi added that one of the challenges in litigation were asylum seekers, detentions in Lindela, and people who have been retained for the purposes of deportation and found to be illegal immigrants in the Republic. As soon as they are detained, they get lawyers to bring applications where they claim asylum and cannot be deported if they are now asylum seekers. The law relating to asylum seekers was very relaxed, and once the person claims asylum they must be included before they are excluded. The person must be given an opportunity to apply for asylum, be determined and only then does action on the order to deport take place. There are quite a lot of them and it creates a lot of problems, because once a person claims asylum and approaches the court to be released on this basis, it takes a long time for the person to be deported. The process was very long.
The Chairperson asked if this had not been addressed by the recent amendments to the law. He advised the DHA to make further proposals for an amendment to the law to solve the problem, because it should not have to go through all of this. People must get the service. If they were to stay in the country they must, and if they were to be deported, they must be deported. What were the legal challenges? Which areas of the law had the DHA identified that need to be changed? What was it that the DHA could do to avoid some of these cases, instead of waiting on the courts?
Mr Mogotsi responded that the problem was South Africa was a constitutional democracy, and when a person comes in as an illegal foreigner, he remains in the Republic as such, hoping to evade the law. Once a person was caught out and detained at Lindela for the purposes of deportation and then cries for asylum in terms of South African laws, and the Constitution in particular, that person must be given the opportunity to apply for asylum, and be determined. That was where the problem was, because it was a very labourious process. It goes from one stage to another up to a point where a person goes to court, where people were suing the DHA. By law, the person had six months within which to approach the law to review. The DHA’s experience was that people brought applications for judicial review knowing that the application would be heard after six or seven months, if lucky, because it could take up to three years before review proceedings. This was because review proceedings by nature were not urgent applications, so they were not heard on an urgent basis. This was what asylum seekers want, because it gives them an opportunity to remain the country.
Even if the court decides in favour of the DHA and against the asylum seekers, they could still go to a higher court to appeal and it becomes a very laborious process. By the time the Department was satisfied that the person did not have any legal recourse, one cannot find the person in the Republic -- the person was gone. The detentions in Lindela were a very serious problem. People bring litigations opportunistically, get an attorney to release them and apply for review, and the DHA will not hear from the attorney afterwards. There were review applications as old as seven years that were not going anywhere.
The other challenge was the DHA gets a lot of reviews for the decisions of the Standing Committee on Refugee Affairs and Refugee Affairs Board which decides on the appeals. In the Durban High Court in particular, where there were a lot of reviews challenging section 27(c) of the Refugee Act. When a person has been in South Africa for five years, they could apply to be declared an indefinite refugee. Then due to the backlogs, people take the DHA to court.
The Chairperson asked how the Department planned to resolve the backlogs. What was the solution?
Mr Mavuso responded that the biggest problem was how the Refugee Affairs Board had been created. It was not envisaged that the number of applications would be so many, which was why the legislation provided it sits as a quorum to hear the cases. Currently, there were three people sitting on the board, so the decisions made when there was no quorum get subjected to reviews. The DHA was busy with the regulations, and once they were finalised and in effect, the requirement to sit as a quorum would be reduced and there would be additional members of the board.
Adv Erasmus indicated that in the contingency liabilities list the DHA had submitted, about 154 of the 234 cases related to unlawful arrests and detentions. There was one case that had gone to the Supreme Court of Appeal, where the claim had been for around R100 million between 12 or 13 plaintiffs, and the court had found in favour of the Department. The case had then gone to the Constitutional Court, where the claim had been brought down to around R53 000 between all the applicants. It was found they were illegally in the country. There were between 25 000 and 30 000 court cases relating to applications.
On the backlogs, he responded there was no way to determine how many court cases the DHA would get in a year. The DHA had to deal with them as they came.
Lastly, he mentioned that there was a good working relationship between the line functions in litigation and legislative drafting, should there be a need to amend legislation. The amendment to the Immigration Act, based on the immigration policy that was being finalized, was an example of this.
Mr Mavuso concluded that one of the other areas where the DHA struggles was when someone arrives at a point of entry airport, and they already carry fraudulent documents. In most instances, there were lawyers already waiting to quickly get an order to get the person admitted into the country. The Department had to spend money defending these cases, which was why the legal costs were not only for contract cases but also for other day to day cases.
The Chairperson asked if this was one of the gaps identified in the law?
Mr Mavuso referred to Mr Mogotsi’s point on constitutional democracy -- once they arrive in South Africa, they have rights protected by the Constitution.
Mr Kekana agreed with what had been reported, but it was not what the Committee wanted. When the Committee first made requests for a report on litigation, the Committee wanted to know the costs of settlement in relation to the lawyer times, and the Committee had struggled to obtain the information. When the current Chairperson came into office, this blockage had been unblocked, and he expressed his gratitude to the Chairperson. The reason the report was requested was because of the shenanigans in the State Attorney’s office, where a case that was supposed to cost R100 000 ends up costing R1.2 million. He made reference to a case last week in the High Court, where a member of the police who was responsible for cases of detained unlawful immigrants was using one attorney, and fixed fees to share amongst themselves. This was the main reason the report was requested. As Members of Parliament, they wanted “to follow the money.” He proposed that the Committee provide specific terms of reference on what the report should include, such as the cost of settlement verses litigation costs.
Mr Figlan sought clarity on who was doing the blocking of identity documents (IDs). What was the reason for blocking them -- was it because of corruption? He wanted to know, because two years ago his brother-in-law’s ID had been blocked and he personally had to go to the Home Affairs office in Barrack Street, Cape Town, to provide proof that he was not the Mr Ngoma’s coming from Zimbabwe. The problem was that the DHA had made a decision to block a South African who could sue the Department. The mistake was always coming from DHA officials. He reminded the Department he had previously raised concern on the corruption happening within the Department at the Desmond Tutu Refugee Reception Office, where DHA officials were working with an outside syndicate operating Saturdays and Sundays giving money to the foreigners. He had still not received a response from the Department, and this was why it keeps losing money. DHA’s budget was not only for the litigation department -- it was for the whole of DHA. He also requested a status report on what was happening in Bombela.
Mr M Hoosen (DA) supported the point raised by Mr Kekana without repeating them, and reminded the DHA that those were the concerns the Committee had raised previously, and requested the Department give them priority. It should be celebrated that when people came to South Africa, they could protect their rights using the Constitution even though it came at a cost. He looked back to the time when people were thrown into jail without having any opportunity to defend their rights. His concern was that the Department did not have a plan on how it could reduce the propensity for the damage that it caused. He understood why the Department “complains” about how liberal the courts were in protecting the rights of asylum seekers and refugees, but he still felt that the DHA should be prepared for these eventualities. He was not assured that the Department was being visionary in its plans to make sure that the R2 billion did not grow to R15 billion in five years time.
The Chairperson informed the Members that the new Minister was expected to attend next week’s meeting, since the Portfolio Committee had not yet met with him, and would not go into recess without having met him. The Deputy Minister and acting DG were also required to attend to brief the Minister on the matters before the Committee and the Department, including those discussed and raised in this meeting, as well as a plan on how the DHA was going to operate in December to prevent chaos during the Christmas period.
Ms Dambuza made final observations on the report presented by the Department and pointed out inconsistencies, and insisted that the quality of the report should be improved. She also requested the costs of the Mulowayi family case in June, where the court granted in favour of the family over the matter of statelessness. This was related to the point made by Mr Kekana, about the double ring trading. The Department was instructed to come clean on exactly when it happens, because it was clear there had been an escalation of costs. Finally, she wanted to know who the owners of the company contracted to print IDs, passports, etc, were.
The Chairperson suggested that much of the Department’s next budget should be directed towards inspectorates because of the amount of corruption and the number of people arrested on a daily basis. The law must be tightened to ensure that people followed the legal and proper processes when entering the country.
The meeting was adjourned.
- Civil Union Bill: deliberations; Visa Facilitation Service (VFS) contract; Litigation; Committee Reports: Fireblade Aviation; Desmond Tutu RRO; Legacy 1
- Civil Union Bill: deliberations; Visa Facilitation Service (VFS) contract; Litigation; Committee Reports: Fireblade Aviation; Desmond Tutu RRO; Legacy 3
- Civil Union Bill: deliberations; Visa Facilitation Service (VFS) contract; Litigation; Committee Reports: Fireblade Aviation; Desmond Tutu RRO; Legacy 2
- Committee Report on Fireblade Aviation at OR Tambo International Airport and Desmond Tutu Refugee Reception in Gauteng Province,
- Committee Report on Civil Union Amendment Bill [B11-2018]
- Committee Report on Electoral Laws Amendment Bill
- DHA - Status of Litigation matters
- DHA - Tender for Appointment of a Business Partner for Global Visa & Permit Operations in South Africa & Abroad
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