Most of the submissions were critical of a number of aspects of the White Paper. Each submission was followed by a discussion. The Municipal Electoral Bill was briefly discussed.
The Chair, Mr D Mokoena (ANC) welcomed the members and those who would be making submissions.
Idasa: Southern African Migration Project (SAMP)
Mr Vincent Williams noted that SAMP's focus was on migration to South Africa. He stated that there were a number of procedural concerns regarding the process of producing the draft Bill. There was a lengthy delay between the publication of the draft Green Paper (1997) and the eventual White Paper and there is an apparent lack of continuity between the two documents. Confusion was created by the publication of the draft Bill and the process announcements by the Minister. He thanked the Committee for creating an opportunity for public participation.
Mr Williams drew the members' attention to a number of problems with the White Paper. There are claims that South Africa has reached its "carrying capacity" and cannot accommodate an increase in its population. He said that this claim ignores the variables that determine carrying capacity, such as economic growth. There are problems with the exaggerated number of undocumented immigrants that the Paper assumes. The assumption that undocumented immigrants are responsible for various social ills was disputed. The Paper argues that high unemployment figures require that immigration should be discouraged. He said that more investigation and research is required in this area.
Mr Williams said that SAMP supports the four principles set out in s 4 of the Paper, including the principle that a policy should be developed that is based on national self-interest and territorial integrity, open to forms of migration that benefit South Africans and that is sensitive to regional issues and needs.
He submitted, however, that further guidelines should be incorporated. For example, a new regime must be rights-based and constitutionally sound, there should be emphasis on research capability and it must be accepted that the relationship between migration and economic development is close.
Mr Williams noted that the Paper's focus is on "illegal immigration" as the issue which should drive the new policy. He argued that the approach should be broader - enforcement should come after policy. He said that, while there is widespread public hostility towards non-citizens and public input is vital in drawing up policy, the Paper should nevertheless promote a long-term immigration policy. He noted that the Paper demonstrates an intention to use neutral terminology but, in practice, it reverts to apartheid-era terminology. He questioned the use of this language.
Mr Williams noted that the Paper is silent on matters of gender. There needs to be a distinction between male and female immigrants in some respects.
Mr Williams said that SAMP agrees that there is a need for an implementable and effective policy. He argued that the framework in the Paper does not meet these criteria. He questioned the workability of the control mechanisms proposed. He also questioned the encouragement of members of the public to report undocumented immigrants. There are legal and ethical problems with these controls. He agreed that there is a need for administrative reform but noted that the roles of the military, intelligence services and police should be clarified. He stated that while it was important to consider labour needs, it is not clear what statistics are available.
Mr Williams noted that Lesotho was treated as a "special case" in the Green Paper but that it has been left out of special consideration in the White Paper. Regarding monitoring functions, he said that it was essential to draw on existing research and to develop new research capacity. He proposed that there should be more emphasis on training and service delivery.
He proposed that the committee that originally drafted the Paper should be reconvened to redraft it or, alternatively, a new committee should be constituted. He offered the assistance of Idasa and SAMP in this process.
Mr W Skhosana (ANC) asked whether SAMP was proposing an open-border policy throughout the SADC region. Mr Williams replied that SAMP is arguing that only Lesotho should be regarded as an exception. The Chair asked why Lesotho should be treated as an exception. Mr Williams said that given its geographical location and its interaction with South Africa, especially the Free State, there is a practical need.
Mr K Morwamoche (ANC) asked how Idasa and SAMP view border control. Mr Williams said that any policy should recognise state sovereignty. Every country should be able to decide who is allowed to enter. While there may be practical difficulties in applying it, the principle remains.
Mr M Lekgoro (ANC) asked about controlling migration within the community instead of focusing on borders. Mr Williams agreed that it is a waste of resources to focus on borders. He said that there is a need for internal enforcement but the mechanism in the paper is not supported. He submitted that there is a need to focus on voluntary compliance with policies and rules. He argued that the preoccupation with enforcement and control in the past has not worked.
Mr I Pretorius (NNP) noted that Mr Williams had mentioned the countries that are the major sources of immigration into South Africa. He asked Mr Williams to repeat these. Mr Williams said they were Zimbabwe, Lesotho and Mozambique and that most immigrants come from Mozambique.
Mr Pretorius asked how South Africa could get the co-operation and assistance of countries that are in a similar position, for example Germany. Mr Williams replied that this was an important point - South African policy cannot be developed in isolation. There has been movement towards a regional protocol but this process has stalled. Co-operation is necessary, but given the uneven economic development, it is difficult to establish a regional protocol that would apply equally. He commented that it was better to look at bilateral agreements but emphasised that migration was nevertheless a regional matter.
The Chair commented that the White Paper does address voluntary repatriation. He asked Mr Williams to comment on this. Mr Williams replied that these references apply to a context in which immigrants operate in a hostile environment where they voluntarily leave to avoid the hostility. SAMP's suggestion is that people should voluntarily comply with the regulations - there should be an understanding of why the rules exist.
The Chair commented that the rest of Africa looks at South Africa as the USA of Africa and as our economy grows, more people will be attracted. He asked whether the prosperity of the country could exist at the same time as imbuing the common sense in illegal immigrants to say that they should not be here.
Mr Williams said that people will always migrate to richer areas but government should look at the push factors that drive people out of their own countries. The policy should look at the region as a whole.
Mr Waters (DP) commented that the Paper speaks of an additional security service to be established to assist the immigration services. Mr Williams said that this aspect of the Paper is ambiguous. It speaks of an armed security service. Mr Williams asked whether a Home Affairs army is necessary and said that this was a dangerous prospect. He submitted that immigration officials should be customer-friendly.
Mr Skhosana asked about skilled immigrants. Mr Williams replied that it could not be denied that skilled people are needed, but what is meant by 'skilled immigrants' must be defined - it needs to be clear who is being spoken about.
Mr Mthuthuzeli Khaye
Mr Khaye thanked the Chair for the opportunity to present his views. He said he has been doing his own research and has been listening to people. He said that he was a citizen and not a lawyer and therefore his submission would be general. He noted that he would be going against the trend that migration is needed.
He commented that South Africa's policy has been very liberal and many immigrants have been allowed in, probably because of pressure from human rights organisations. He said that the impact on the indigenous population has been denied. He argued that there are many unemployed people for whom no one speaks. He stated that there are many cases of refugees who are arrested for having committed crimes a few months after entering the country. These immigrants work as hawkers and take the space that should rightly be occupied by indigenous people. The poor indigenous people of South Africa are marginalised and threatened and the debate around the issue takes place above their heads because it happens in English.
Regarding the arguments for attracting skilled workers, Mr Khaye remarked that there are many young people in South Africa who are studying and can be trained but corporations regard training as too expensive and so they import workers. He objected to this. He argued that skilled immigrants will leave later for greener pastures. He asked whether a message was being sent to South Africans that they are not worthy. He said that he was not sure that the government should be importing more skilled workers as unemployment grows.
He remarked that it is evident that South African industries are employing immigrants as security guards and these businesses originally said that they would promote employment. There is a similar situation in the hotel industry. He quoted a passage from "enterprise magazine" that speaks of the "squalor and stink" in the townships and said that many people have not seen any improvements in their standards of living. He said that the perception on the ground is that immigrants are taking South Africans' jobs.
He argued that the levels of employment are not going to increase and therefore that, with more people, there is going to be greater competition for jobs. This is going to foster tension. Addressing the brain drain, he asked why whites were leaving the country. He suggested that it was because they could no longer enjoy the privileges they enjoyed under apartheid and because they did not want to live under a black government.
He said that he had come as a messenger of bad news but that he had some suggestions. He pleaded that government should listen to the concerns of indigenous South Africans. He argued that government should reconstruct and develop its people at the same time as it reconstructs and develops the country. He stated that the police should be given greater powers to target criminals, whatever their origins. He commented that if the "Boers" could control the borders, the present government could also do so. He said that people need to be educated to create their own jobs and government should give more support to small business.
The Chair thanked Mr Khaye. He raised some preliminary issues. He noted that Mr Khaye's definition of "black" referred only to Coloureds and Africans but there was no reference to Indians. He said that the Committee did not welcome pejorative terms such as "Boer". (Mr Khaye apologised). He noted that the Committee is cognisant of the voice of the people. He asked what the role of "our white compatriots" is in South Africa's multiracial community.
Mr Khaye responded that whites had acquired skills in the apartheid era and their role was to transfer those skills.
Regarding the "open door" policy of allowing entry to people with skills, Mrs N Gxowa (ANC) noted that there have been problems with training local people. She commented that there are organisations that, for example, employ people with BScs as cashiers. She asked whether there has been any research to identify these people for training. Mr Khaye replied that there has not been research conducted here. He said that the most effective training occurs at the workplace but business denies this. The Chair commented that it would be interesting to know which companies are closing the door.
Mr Waters noted that Mr Khaye had said that South Africa cannot compare itself to countries such as the UK and USA. He stated that South Africa is participating in a global economy and must compete. He argued that South Africa cannot isolate itself. He agreed that the unemployment rate is high but submitted that attracting foreign skilled people would create jobs. Regarding Mr Khaye's comment concerning racists leaving the country, he said that blacks were also leaving and that it was really a question of leaving for greener pastures.
Mr Khaye acknowledges that there is a need to compete but he argued that new jobs are not being created. He asked how it could be determined that South Africa has attracted enough people to satisfy the international community.
Mr Waters submitted that by attracting a skilled engineer, for example, jobs would be created and not taken away. Mr Khaye argued that there are skilled South Africans who should be employed. The Chair interjected and said that Mr Khaye misunderstood Mr Water's point. He said that what was being argued was that the foreign engineer may bring capital to set up a business and create employment for these skilled local people. Mr Khaye said that he took this point.
Mr Pretorius said that he disagreed with some of Mr Khaye's points but he thanked him for being so frank - issues had been opened where the Committee may have been too sensitive. The Chair thanked Mr Khaye.
Human Rights Committee of South Africa
Mr Frankie Jenkins said that the focus of the presentation would be on the enforcement provisions of the White Paper (s 11). He doubted whether the Paper is workable as a policy document. He doubted the workability and desirability of the new structures and mechanisms proposed by the Paper, including the proposed Immigration Courts, special and roving interdepartmental task teams and judicial enforcement of immigration laws.
He asked whether it was a good idea to shift the responsibility of reporting undocumented immigrants to employers and educators and doubted whether the motives behind these reports would be pure. He noted that there would need to be enforcement of this mechanism and that there would possibly be criminal sanctions including imprisonment, which he opposed. He noted that the Paper was silent on who would train employers and educators to identify fraudulent documents. The paper is also silent on who should conduct the education campaign focused on the police, immigration officials, employers, educators, communities and state organs.
He noted that the Paper proposes to manage immigration as a crime. There would be a separate criminal procedure with separate courts. He raised a constitutional problem: The proposal suggests that the employer or immigrant before these courts will have the onus of proving his or her case. This is a reverse onus, which is controversial in criminal matters. But the Paper does not regard the person before these courts as an accused. The constitutional right to a fair trial is however only applicable to accused persons and therefore there would be no constitutional avenue to protect these people from infringements to their constitutional rights.
Mr Jenkins argued against the imprisonment of employers who do not report undocumented immigrants. He noted that the Correctional Services department is already overburdened and the prisons crowded. He submitted that the only permissible criminal sanctions should be fines.
He addressed the proposed private detention centres, which would be monitored by government. He stated that the Paper should provide a role for the Chapter 9 institutions to monitor these facilities whether they are government or privately managed.
He made a number of recommendations. He proposed that those who are to be educated in scrutinising documents and those who will be involved in general education should be identified. An assessment of the financial implications of the policy must be considered. The role of the Chapter 9 institutions must be considered. The proposed sunset clause should not be included as the attitudes that are cultivated will not disappear simply because the legislation is no longer applicable. The proposal that citizens must report should also be scrapped. He submitted that employers who hire illegal foreigners should only be fined and those charged should be presumed innocent. He concluded by saying that a new policy is required but the Paper is problematic.
The Chair stated that the Committee should visit places like the Lindela Repatriation Centre and Beit Bridge. The Committee must understand what is happening at the entry points. He noted that it had been discussed that cost estimates should be attached to all proposed legislation. He commented that Mr Jenkins' point concerning the cost of the proposed new institutions and mechanisms was a good one.
Mr Morwamoche asked whether, because he was not in favour of the imprisonment of employers who employ illegal foreigners, Mr Jenkins was advocating lawlessness. He asked what could be done if employees refuse to pay fines.
Mr Jenkins replied that the HRC was not advocating lawlessness. He said that the policy is not workable and the HRC it trying to facilitate its workability. He emphasised that there is not enough space in the prisons and that by imprisoning employers, they would be stopped from employing people. He said that fines can be enforced by existing methods of attaching assets.
Mr Waters commented that, for example, the Refugee Act required R15 million for its implementation and that so far only R5 million had been allocated. It was therefore a "non-starter". He asked whether there had been any analysis of the costs of implementing this policy.
Mr Jenkins replied that he had not conducted any research - his focus is on refugees and asylum-seekers. He said, however, that the Department is on the brink of collapse and that it must be certain that any proposed legislation will be able to be enforced.
Mr Pretorius asked whether Mr Jenkins had researched the position in other countries and whether the policy was "on par" with international practice. Mr Jenkins said that the compilation of a register of foreigners employed and living in the country is common place in foreign countries as is the fining of employers who employ illegal foreigners. He stated that he had not come across a positive obligation on employers to report illegal immigrants. He submitted that the concept of 'reporting' in the Paper needs to be defined.
Ms C Gcina (ANC) asked how private detention centres would operate. Mr Jenkins replied that the administration and management of these institutions would be undertaken by a private firm who would have to tender for a contract. The Chair remarked that these would be privatised mini-prisons. Mr Jenkins agreed and added that the government has an obligation to monitor these institutions because it has a responsibility to uphold human rights.
Business South Africa (BSA)
The Chair introduced the delegates: Mr V Esselaar, Mr K Warren, Mr J Liebenberg, Mr Laubscher and Mr H Makupula.
Mr Esselaar delivered a brief introduction of BSA - it is a confederation of 19 business and employer organisations and is a member of the Pan African Employers' Confederation as well as the SADC Employers Group. It is also the South African business representative in the ILO.
He said that immigration is a matter of grave concern and South Africa's attitude towards the outside world is very important. He said that BSA feels that there should be an open and integrated approach. While there are problems with the White Paper, he commended the team that drafted it for its brave and controversial proposals. He stated that the primary issue of disagreement is the proposed levy as the prime process for control of legal immigrants. He submitted that the levies are a self-defeating compromise. Businesses will naturally prefer citizens for practical economic reasons.
Mr Esselaar submitted that the problem of illegal immigration is out of control - it cannot be solved and the problem must be outgrown. He argued that South Africa should open its borders to skills to the benefit of all South Africans. He said that economic self-interest justifies a benevolent policy towards skilled and entrepreneurial migrants who are able to contribute to South Africa's growth.
Mr Esselaar submitted that South Africa's neighbours must be involved in developing immigration policy. They should understand the implications of South Africa's legislation.
Mr Esselaar addressed the issue of the expansion of skills in more detail. He said that the market is not a "zero sum game" with a finite pool of employment. He submitted that the market grows exponentially with the introduction of new skills. He added that skilled persons are also consumers. He emphasised that BSA wants a more liberal migration policy for skilled people. He noted that BSA was not advocating entirely free movement of skilled immigrants but there should be free movement as far as economically and politically feasible. He said that there is concern over the economic mobility of persons who do not have skills. The flood of unskilled migrants may negatively affect growth and development.
He said that the shortage of skills is a major factor inhibiting South Africa's growth. He noted that South Africa has lost a mass of skilled people and that a critical mass of skilled people is required. He cited examples of countries who have benefited from attracting skilled immigrants and noted that there are countries, for example Germany, who are currently attempting to attract skilled immigrants. He said that capital must be attracted and that in order to get the money it needs, South Africa must attract the people who have it.
Mr Makapula briefly addressed the issue of work permits. He submitted that permits should be granted if the employer provides a good reason for wishing to employ a foreigner. The reasons should be based on a number of factors, including why a South African Citizen should not be employed, the befits that will be derived from the employment of the foreigner and whether there are shortages of skills which the foreigner possesses.
Mr Laubscher added that the issue of migration is complex - it requires a multidisciplinary approach involving a number of government departments. For example, there are a number of labour issues and matters of trade and industry and these departments should be involved.
The Chair remarked that there were no female delegates. Mr Esselaar said that he regretted this. Mr Liebenberg added that there are female delegates who make presentations to other committees.
Mr Waters addressed the reasons that should be considered when allowing a work permit. He asked how it would be determined whether there is a lack of skills in a particular area. As far as skilled immigrants are concerned, he asked whether an approach of "come one, come all" should not be adopted.
Mr Liebenberg replied that, ideally, there should be free movement of skills in and out of a society. He said, however, that he understood why the government wants restrictions. Regarding the reasons for granting a work permit, he said that what BSA is suggesting is that employers should discuss proposed appointments with government and should be able to provide reasonable reasons why they want to employ foreigners. He added that the ideal was also to allow the free movement of unskilled workers throughout the SADC region but that it was unreasonable to expect government to allow this.
Mr Esselaar added that it should be a question of supply and demand. Mr Waters asked how the demand is to be determined. Mr Esselaar repeated that all BSA is proposing is that the employer should be able to provide reasonable reasons (on the basis of the grounds set out) for wanting to employ a foreigner. It is only business who can determine what skills are required. The BSA is arguing that if the employer presents a good case, government should issue a permit.
Ms Ngcina urged business to address unemployment and remarked that immigration will affect the employment of locals. Mr Esselaar acknowledged that business must provide training but submitted that skills are required to create the jobs for which people can be trained. It should be established that the people who are attracted have the capacity to create jobs.
Mr Mukupula cited the example of the Nqura harbour project in the Eastern Cape. He said that special skills would be required from the traditional maritime countries. He submitted that a critical mass of skills and finance is required in order to create jobs "downstream".
The Chair asked in what way the White paper prevents a Nqura-type project from happening. Mr Skhosana asked how the Paper prevents the sustaining of such projects.
Mr Esselaar replied that emotion and sentiment of the business community is important and it is very easy to scare investors off. He submitted that the proposed levies will scare investors away.
Mr M Kalako (ANC) commented that, as business people, BSA members travel around the world and can assess the attitudes towards South Africa. He said that Mr Esselaar's implied suggestion is that South Africa is perceived as ideologically - rather than needs-driven.
Mr Esselaar said that as far as he was aware only Singapore has a levy and it is in a very different and privileged position. Mr Laubscher noted that in Ireland, to attract skills, the government provided labour grants rather than charging a levy. Mr Makupula added that the levy adds to other labour costs and taxes. He said that South Africa is not attracting skills and capital and that the barriers to foreign direct investment in South Africa are very high. These barriers add to the difficulty that South Africa is geographically distant from the countries from which it wants investment.
The Chair thanked BSA for an interesting perspective.
Municipal Electoral Bill
The Chair noted that there were rumblings from traditional leaders who are arguing that they are not adequately recognised. He stated that if it comes to a push, the elections might have to be delayed. Mr Pretorius noted that the Constitution allows for a 90-day extension of the 5-year period of office. He commented that there should have been a 6-month extension as provided in the Interim Constitution.
Mr Waters asked whether the President had not met with traditional leaders. The Chair responded that he had, but the meeting had ended inconclusively.
The Chair noted that a letter had been sent to the NCOP proposing a joint meeting the following week concerning the White Paper and the Bill. He added that the NCOP's assistance is required. He informed the members that the meeting would take place on Wednesday 24 May, from 9h30 - 13h30 in V454.
He noted that Mr Y Carrim, the Chair of the Portfolio Committee on Local and Provincial Government, had been invited to brief the Committee on the Local Government Municipal Systems Bill and the Structures Bill. He would brief the Committee at 10h30 on Tuesday 23 May. The IEC would brief the Committee from 11h30 on the same day.
Mr Groblaar addressed the problem with traditional leader. He noted that the problem was confined to one province and asked whether there was not provision in the legislation for the elections to be delayed in one province alone. Mr Skhosana said that there are traditional leaders from other provinces involved.
Mr Pretorius said that the problem with traditional leaders lay in the Structures Bill. The problems have arisen because of how the borders have been devised. He said that the borders were set using computers and not after a physical assessment. The members discussed examples of problems that have occurred because of the system of demarcation and the fact that it is driven by population numbers.
The Chair noted that only three chapter of the Electoral Bill had been discussed. He said that the remaining chapters had to be discussed before the IEC briefing on 23 May. It was agreed that the Committee would meet on Monday 22 May at 17h00, probably in M46. The question of public comment on the Bill was discussed and the Chair said he would investigate whether there will be time to conduct public hearings - they may have to happen during constituency week.
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