Municipal Electoral Bill, Identification Amendment Bill: voting; Foreign Spouses Ruling: briefing

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
12 June 2000
VOTING ON MUNICIPAL ELECTORAL & IDENTIFICATION AMENDMENT BILLS; FOREIGN SPOUSES COURT RULING

Relevant Documents:
Municipal Electoral Bill [B35-2000]
Identification Amendment Bill [B33-2000]

SUMMARY
The Municipal Electoral Bill was passed with amendments and with the Democratic Party abstaining. The Identification Amendment Bill was approved as is with the Democratic Party voting against it.

The Committee was briefed on the Constitutional Court upholding the Cape High Court's ruling that Section 25(9) of the Aliens Control Act (1991) is unconstitutional. The Cape High Court had ruled that foreign spouses of South Africans should automatically receive temporary residence permits, even if their previous permit had expired. Prior to the ruling such application could only take place from outside the country. The Constitutional Court upheld the decision with a qualification: there should not be an automatic entitlement to a temporary permit. While the spouses should not have to leave the country to apply, their application should be considered on its merits and could be refused by Home Affairs. Another Cape High Court decision had ruled that the Department must make such a decision within 30 days.

MINUTES
Local Government: Municipal Electoral Bill
Mr Mokoena, the Chair of the Committee, set the context of the vote on the Bill. He stated that the Bill had been tabled in Parliament on 9 May. Discussion within the committee was followed by public hearings on 5 June and a preliminary vote on 9 June. The Bill will be discussed in the National Assembly on 20 June.

A clause by clause vote followed, with the majority of clauses being unanimously accepted by all parties. Objections were raised on the following clauses:

● The Democratic Party (DP) objected to clause 7, sections (2) and (3).
● The DP objected to clause 17 and 23.
● All parties agreed that the wording in clause 50 (1) should be changed to the following: "The hand of a voter must be marked by drawing a short line on the voter's left thumb and left thumb nail with visible inedible ink." Section 50(2) was removed as a result.
● On the agreement of all parties it was decided that the title of clause 52 should now read "Sealing of ballot boxes".
● As a result of the changes made to clause 50 (1), clause 47(5)(b) was reworded and now reads "mark the hand of the voter as described in section 50;"
● Section 55 on special votes was objected to by the African National Congress (ANC) and as a result was removed from the Bill. The DP voted in favour of the section.
● Section 56 was also objected to by the ANC and subsequently removed, with the DP voting in favour of the clause.
● Clause 47(1) was reworded on the advice of the state law advisors and now reads "A voter may vote - ". This change was objected to by the DP.
● The changes to clause 79(1) and 82(2) as proposed in the amendments from the last meeting were approved.

For the entire bill, the vote was as follows: the ANC, United Democratic Movement and Inkatha Freedom Party voted in favour (10 members) and the Democratic Party abstained (2 members).

Identification Amendment Bill
The goal of this bill as described by the chair was to standardize the identification requirements used for the voting process. It is an amendment to the Identification Act of 1997. The Bill would lead to the green bar-coded identification card replacing all other forms of voter identification.

An objections was raised on the following clause:
The DP objected to clause 2.

The Bill was approved without amendments and with the Democratic Party voting against it.

Constitutional Court ruling on Aliens Control Act
Mr David Ramagalela, a senior legal advisor from the Department of Home Affairs, briefed the Committee on the recent decision by the Constitutional Court to clarify a decision made by the Cape High Court. The decision related to section 25(9) of the Aliens Control Act (1991) which the Cape High Court had ruled as unconstitutional.

The challengers to the Act were South African citizens whose spouses were not citizens and who were attempting to gain permanent residency status. Section 25(9) prior to the ruling had prescribed that such applications could only take place from outside the country. Section 25(9) stipulated that exceptions could be made for spouses and other disadvantaged groups, allowing the opportunity to obtain temporary residence permits (Section 26) which enables an individual to apply for permanent residence status from within South Africa.

The challenge was brought by those individuals who did not have a Section 26 permit and who were required to leave South Africa to apply for their temporary residence permit. The Cape High Court ruled that requiring spouses to leave South Africa constituted a violation of Section 10 of the Constitution that provides for the right to dignity and family. The Court ruled that spouses should automatically receive temporary residence permits, even if their previous permit had expired. This decision was made in September 1999. As it dealt with a matter of constitutionality it was sent to the Constitutional Court.

The Constitutional Court upheld the verdict from the Cape High Court but with a qualification. This qualification stipulated that there should not be an automatic entitlement to a temporary permit. While the spouses should not have to leave the country to apply, their application should be considered on its merits and could be refused by Home Affairs.

To clarify, Mr Ramagalela noted that one needs a temporary residence permit to apply for permanent residence status in South Africa.

Mr Waters (DP) asked what people are supposed to do for the 18 months it takes to process their temporary residence permit seeing that they cannot work without one.
Mr Ramagalela replied that a different Cape High Court decision had ruled that the Department must make a decision within 30 days.

Discussion followed on the reality of receiving a response within 30 days. Mr Waters noted that because of the process followed by the Department of Home Affairs it was actually technically impossible for the Department to give a response within 30 days.

The Chair, Mr Mokoena (ANC), made a comment about the level of service delivery within the Department of Home Affairs. He noted that it is the responsibility of the committee not only to make laws but also to ensure that the Department is implementing the law in the manner and direction that the committee sees fit.

Mr Sikakane (ANC) made the suggestion that individuals be issued temporary work permits pending the decision of the Immigration Selection Board regarding permanent residence status. This would enable them to support themselves and their family while waiting for the decision.

Mr Ramagalela concluded the discussion by updating the Committee on the progress of the amendment to the Aliens Control Act that was required within 2 years as part of the Constitutional Court decision. The amendment is "in the pipeline" of the Department but moving slowly because many areas of the Act were deemed potentially unconstitutional by the Department's law advisors.

The Portfolio Committee will be briefed by the Deputy Director-General of Home Affairs about the proposed amendments on 14 June.

The Chairperson concluded the meeting with a brief summary of the Committee's upcoming study tour of the provinces in the first week following the winter break. The focus of the study tour will be migration and the tour will visit the most active immigration areas of the country: the Northern Province, the North-West Province, Kwa-Zulu Natal, Johannesburg and Cape Town.