Anti-Corruption Unit; Ruling on Foreign Spouses

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
20 October 1999
ANTI-CORRUPTION UNIT; THE HIGH COURT RULING ON FOREIGN SPOUSES: BRIEFING

Documents handed out:
None

SUMMARY
The Anti-corruption Unit (ACU) of the Department of Home Affairs gave a briefing on the functioning, composition, effectiveness and successes of the Unit. Questions by members however, exposed certain weaknesses of the ACU as well as the need for a follow-up meeting.

The recent Cape High Court judgement, which has granted protection to foreign spouses of South Africans at risk of deportation while their applications for permanent residence are processed, was also discussed. Policy needs to be made on the refunding of the R10 000 application fee for a permanent residence permit which was deemed unconstitutional for foreign sposes of South Africans. Interim regulations will have to be introduced and the Aliens Control Act will have to be amended accordingly.

MINUTES
Anti-Corruption Unit of the Department of Home Affairs
Mr Rabone Moripe, who heads the Anti-corruption Unit (the Unit), gave a background on the functions performed and how the Unit is linked to the Department.

He said that central to the functions of the Department was the recognition and awarding of status to persons in the South African geographical area. The outcome of such status would have implications for all persons in South Africa. The Department was prone to attempts at dodging established procedures and thereby obtaining counterfeit rights. The escalating appetite of foreigners to settle in South Africa and benefit from the real and perceived opportunities in our country has escalated the problem. Documents such as temporary and permanent residence certificates, work permits, birth certificates and identity documents have accrued a significant monetary value which in turn has invoked a lively interest amongst all sorts of imposters.

The situation was further aggravated by the fact that organised crime syndicates, and other unscrupulous elements, even with international underground connections, have involved themselves often with a marked degree of creativity and professionalism in this field. He stated that their strengths were apparent over almost the whole spectrum of departmental functions.

Their ingenuity seemed to be boundless which emphasized the responsibility of the Department towards protecting legitimate rights and opportunities of legal South Africans and bearers of authentic documents from all forms of abuse.

He said that the Department was one of the largest public employers in the country. The nationwide personnel reflected the composition and problems that our society faced. Officials were constantly exposed to temptation by criminal elements who lured them with offers for illicit profits which were proportionately high to their income.

He said that the daunting context in which the Department needed to face the challenges of criminal activities targeted against them was complicated by insufficient capacity with service delivery. Procedures were lengthy, and often not sufficiently customer friendly. People were often required to stand in long queues, or to bear the inconvenience of administrative malfunction. He said that it was his belief, and that of the ACU, that a morally impregnable corps of officials would render crime syndicates ineffective.

He said that the total restructuring of the Department had included corruption management, hence the establishment of the ACU. In April 1998 Cabinet approved the Unit, essentially to confront the professionalism of the syndicates. He said that both the scope and magnitude of corruption demanded advanced skills and equipment. The staffing of the ACU included seconded officials from the South African Police Service (SAPS) and the National Intelligence Agency (NIA).

He explained that the ACU had the status and capacity to access relevant information from any official. The Unit was under the direct control of the Director General of the Department, and was supported at the highest executive level. He explained that if matters required policy consideration, the Minister and Director General of the Department had to be consulted.

Mr Moripe explained that the ACU was serious about ending all forms of corruption. In this reporting year a clear message was sent out by the ACU to this effect. He said that for the six-month period ending September 1999, 43 Home Affairs officials had been charged. He pointed out that 40 officials were found guilty and 3 not guilty. He said that 18 Home Affairs officials and 8 members of the public were arrested.

He said that the figures compared favourably with the last financial year where 91 officials were charged, 82 found guilty and 9 not guilty. He pointed out that between 1 July 1999 and 30 September 1999 there had been a decline in the number of cases.

He stated that it was a great advantage to have persons in the Unit from the SAPS and NIA who have the investigative and adjudicative know-how to speed things up and to improve efficiency. He said that the ACU was composed of ten officials; two being from SAPS, two from NIA and six from the Department. The organisational structure of the Unit was a "stand-alone" and it reported to the Director General.

He said that the Department was dealing with corruption and criminal elements pragmatically. The Department was nevertheless aware that inadequate resources and insufficient delivery compounds the problem. He hoped that a speedy resolution of these issues would enable it to give even greater impetus to its fight against crime and corruption.

Questions and Comments
Mr Pillay of the DP wanted to know what the scope of authority was to access information, in terms of secret and confidential documents.
Mr Moribe indicated that if any document was needed in the investigation of a corruption case, the ACU could access it regardless of whether it was secret or confidential information.

Mr Skhosana of the ANC inquired about the constitution of the ACU staff. He was particularly concerned that six out of the ten members of the ACU were members of the Department. He wanted to know how efficient this was, since in essence, this amounted to these six persons investigating themselves.
Mr Moripe was of the view that this was a fair and necessary composition since he argued that the ACU needed people who have an understanding of the workings, composition and processes of the Department of Home Affairs.

The next member referred to the 40 officials of Home Affairs found guilty. He wanted to know what their ranks were. He also wanted to know whether the six members of the Department as well as of the ACU had included the erstwhile Director General, Mr A Mokoena.

Mr Moripe said that firstly he did not have a breakdown of the ranks of the officials found guilty but offered to provide this information for the member in due course. He said that the six departmental members of the ACU did not include the Director General.

Ms Kalyan (DP) wanted to know what the role of the ACU was in investigating Mr Mokoena, the Director General. Mr Moripe said that since Mr Mokoena was his immediate superior, Mr Moripe had spoken to the Public Protector who had taken over the investigation.

Ms Kalyan also wanted to know whether persons who were arrested with regard to misconduct were suspended and/or receiving salaries and what had happened to them. This question was not addressed.

Mr van Jaarsveld (NNP) wanted to know how many cases of transgressions there were in the Eastern Cape. He also said that he had heard of one person suspected of gross misconduct in Port Elizabeth and wanted to know how far the investigation was. He also wanted to know what the main transgressions were with regard to counterfeit documents. Finally he reiterated Ms Kalyan's question about what happened to the people who were found guilty.

With regard to the number of transgressions, Mr Moripe promised to forward the information to the member. He however declined to speak about the Port Elizabeth matter since he said that it would be improper. He did not answer the other questions.

The next member wanted to know whether the 200 plus cases under investigation at the moment by the ACU included the investigation of immigration officials. Mr Moripe said these cases did include them.

Mr M Lekgoro (ANC) said that he was not impressed with the presentation. He expected something more tangible, seeing that Home Affairs was one of the departments most hit by corruption. He said that the Unit did not have the capacity to deal with large scale corruption because there were only four persons in the Unit assisted by six persons in the Department itself. There seemed to be broad consensus that ten persons were indeed far to few to deal with the kind of corruption taking place, despite the successes claimed by Mr Moribe. The majority of committee members were agitated that most of their questions relating to specifics and statistics were either being avoided or brushed aside.

One member, in Mr Moripe's defence, did however point out that some of the questions on specific cases and statistics certainly went beyond the scope of Mr Moripe's brief. He said that Mr Moripe was only asked to speak about the way the Unit operates in general terms amongst a few other things.

Other members felt that Mr Moripe should nevertheless have been clued up on the specifics and statistics of certain issues which arose directly from his discussion of, for example the 40 officials found guilty of corruption as well as what the main transgressions of these corrupt officials were and whether they were still receiving salaries or whether they were suspended and so on.

There was nevertheless consensus that ten people could not even begin to deal adequately with the corruption in a department such as Home Affairs. Furthermore there was also consensus that Mr Moripe should at some future date address the unanswered concerns of various members. There was serious objection by some members with regard to officials of the Department investigating themselves.

Judgement on protection of foreign spouses briefing
Mr Sam Mogothi and his colleague Ms Judith Mashabani from the Department addressed the members on a judgement, which had a relatively serious bearing on the Department. Mr Mogothi started explaining the facts of the cases in question but the Committee urged him to concentrate on the judgement.


She first explained that for a person to apply for an immigration permit, he has to be in possession of a temporary residence permit. She explained that if you do not have a temporary residence permit then the conclusion would be reached that you either entered the country illegally or, after entering the country legally, you let it lapse and you became illegal.

The Judgement of 21 September 1999 concerned three applications by South African citizens, married to foreigners. The Cape High Court ordered the Department, to issue a temporary residence permit to any foreign non-resident spouse of a South African citizen, and to extend it when necessary until the spouse had applied for immigration. If a foreign spouse's permit had expired, the Department was ordered to extend it until the spouses had submitted applications for immigration and there was a decision made.
It also ordered that the payment of a non-refundable fee of over R10 000, payable before the processing of any application for immigratio,n was inconsistent with the Constitution and therefore invalid. The Department was given three months to correct this regulation.

Section 25(9b) of the Aliens Control Act, which required a foreign national spouse who was in South Africa illegally to return to his country of origin and apply for a permanent residence permit from there, was also declared unconstitutional.

Ms Mashabani explained that the Department had indicated to the court that it would, for the three month period, wave the payment of the fee in respect of foreign spouses who were lawfully in the country and residing with their spouses. However she indicated that the Department was appealing against certain portions of the judgement.

Questions by members
Ms Kalyan wanted to know whether the judgement applied to all those persons who have applied for immigration but did not have the money to put down and for future ones as well in respect of foreigners married to South African residents.

Ms Mashabani said that the judgement applied to everyone. She explained that the inconsistency of the regulations with the Constitution had to be rectified and in the meantime the Department was forced to waive the fee in respect of applications for immigration.

Ms Kalyan asked whether persons who had already paid the fee, but whose applications were not heard before the judgement, would be refunded.
Ms Mashabani said that as yet, nobody had been refunded. The Department was going to set up policy which would clarify various scenarios, for example, what would happen to the fees paid by persons whose applications have not been heard, or have been heard but have been refused or have been heard and granted and so on. There had to be a uniform policy in the light of the judgement, to deal with the potential difficulties and anomalies, which could easily arise in respect of the refunding of fees paid.

Mr van Jaarsveld wanted to know how much time there was to change the legislation with regard to the fee payable. He asked if the Department would appeal and if so, what the process was. He also asked what the function of the Committee was in changing the legislation should the issue need to be addressed by the Committee.

Ms Mashabani said that the Department would have changed the regulation regarding the fee by December 1999. She said that the Aliens Control Act would have to be amended accordingly.

Mrs Capa, the Chairperson, summed up by saying that the Department would put new regulations in place as a short-term arrangement to address whatever the court wanted of the Department. It would then proceed in trying to speed up the amendment of the Aliens Control Act so that everything would eventually be permanently solved. On this note the meeting adjourned.