Electoral Amendment Bill: deliberations; Report on the review of permits, with Minister & Deputy Minister
12 July 2022
Chairperson: Mr M Chabane (ANC)
Tracking the Electoral Reform Legislation in Parliament
In this virtual meeting, the legal counsel of the Department of Home Affairs briefed the Portfolio Committee on Home Affairs on outstanding policy matters in relation to the Electoral Amendment Bill. The legal opinion discussed proposed amendments to the Bill. These amendments related to agents for independent candidates, amendments to the allocation of seats, retaining the requirement that independent candidates may only contest a single region, two ballots in elections for the National Assembly, and the filling of vacancies of independent candidates. The legal opinion also addressed certain queries raised by the Portfolio Committee of Home Affairs and Parliamentary Legal Services. The questions raised by the Committee related to the definition of ‘region’, the Commission’s role in setting the deposit and number of signatures required for independent candidates to contest elections, the Cooling-Off Period, and the proportion of regional and compensatory seats.
The members of the Committee noted that there were not many differences between the presentation from legal counsel and the discussions the Committee had been having over the past few weeks. The Committee was at the stage where everyone was on the same page, bar for a few issues. The presentation that was made spoke to most of the issues that had been debated in the Committee. There were only a few issues left that the Committee needed to decide upon. For example, whether the Committee wanted to go for the 300 to 100 split or the 200 to 200 split. Members noted the issue of the ‘cooling-off period’. The Committee needed to take seriously the presentation and the point that was made that the ‘cooling-off period’ might be unconstitutional.
The Committee Content Advisor recapped the bill clause-by-clause. The one matter that the Committee did not resolve was the contestation of regions. The Committee would deal with it in the next meeting and finalise that matter. The members had managed to deal with almost all the issues. The Committee would then be able to draft the A-List.
The Minister of Home Affairs briefed the Committee on the report on the review of permits that was conducted within the Department of Home Affairs. On 22 February 2021, the Minister established a Ministerial Committee to review the issuance of permanent residence permits, corporate visas, business visas, critical skills visas, study visas, retired persons’ visas, and citizenship by naturalisation between 12 October 2004 and 31 December 2020. The presentation noted that legacy systems were not yet modernised. The systems were not yet advanced enough to flag anomalies proactively. People worked in silos with their own systems that do not talk to other Home Affairs systems. Unscrupulous Home Affairs officials were found to have created fake users on the system. Deliberate by-passing of controls to manipulate visa/permit applications. A forensic investigation conducted by Nexia SAB&T, discovered key loggers on SITA and Home Affairs computers to gain access to Home Affairs data, i.e., stealing users’ IDs to access Home Affairs systems. Whistle-blowers described criminal modes of operation in the issuance of visas and permits. The review found evidence of individuals who were actively manipulating visa and permit applications, with the assistance of corrupt Home Affairs officials. Immigration processes were deliberately circumvented or ignored to fraudulently issue visas and permits. Records from 2004-2014 were not computerised and were still manual. Hence the Review Committee could only work with data from 2014 onwards. The Review Committee strongly recommended mandating an independent multi-disciplinary task team of experts to fully investigate all the anomalies, fraudulent applications, corrupt activities, systemic irregularities and maladministration identified in the report and to make appropriate recommendations for criminal prosecution, disciplinary action, removal from the system, system improvements, recalling of visas, and the tracing of offending foreign nationals for deportation.
Members supported all the proposals that the Department had articulated. The members noted with concern that the report pointed to a crisis. It pointed to the collapse of South Africa’s immigration system.
A Member noted with concern that what was seen in this report was a criminal syndicate that was operating as the Department of Home Affairs.
Members said the abuse of the laws, of the immigration system needed to be stopped. The recommendations need to be implemented, especially starting with suspending some of the visas that had clearly been fraudulently obtained.
The Chairperson noted that the Committee would closely monitor the implementation of the recommendations made in the report. The Department would come back to the Committee in the third term and provide an update on the work that had been carried out already.
The Chairperson welcomed all those in attendance at the meeting. The meeting was an important continuous conversation on the Electoral Amendment Bill. He noted that some members might be experiencing load-shedding and network issues. The Committee was going to deal with two items today, the Electoral Amendment Bill and then the permit report.
In the last meeting, the Committee had a consensus on almost all the issues. However, there were a few different views on some matters. The members needed to have a consensus on them so that the Committee could resolve all the issues that had been discussed. In today’s meeting, the Committee would focus on taking decisions on all the clauses that had been discussed so that the legal team could be allowed to draft an A-List. This needed to be done so that the Committee could conclude this process. The Committee had also requested the Department to look at the three areas which the Committee had raised. The Committee expected the Department to present and give a view on the issues raised by the Committee. The Committee would then receive a presentation from the Content Advisor to recap some of the issues that the Committee had a consensus on so that it could resolve the issues. Those issues would be recorded. Then the Committee would move to the Minister and his team, to provide a brief report on the investigation of the permits.
The apologies were read into the record.
The Chairperson invited the Department to brief the Committee on the areas that the Committee had requested.
Briefing the Department of Home Affairs on outstanding policy matters on the Electoral Amendment Bill
Adv Mitchell De Beer, Legal Counsel, DHA, briefed the Committee on outstanding policy matters on the Electoral Amendment Bill. The legal opinion discussed proposed amendments to the Electoral Bill. These amendments related to agents for independent candidates, amendments to the allocation of seats, retaining the requirement that independent candidates may only contest a single region, two ballots in elections for the National Assembly, and the filling of vacancies of independent candidates. The legal opinion also addressed certain queries raised by the Portfolio Committee of Home Affairs and Parliamentary Legal Services. The questions raised by the Committee related to the definition of ‘region’, the Commission’s role in setting the deposit and number of signatures required for independent candidates to contest elections, the cooling-off period, and the proportion of regional and compensatory seats.
The definition of ‘region’
Comments had been made that the use of the term ‘region’ to describe the multi-member constituencies that both independent candidates and political parties may contest, could be confusing since the area of the nine regions is synonymous with the area of the nine provinces. The legal counsel noted that there would be no problem with amending the term.
The Commission’s role in setting the deposit and number of signatures required for independent candidates to contest elections
Legal counsel reiterated its view that the question of the amount of the deposit to be paid and the number of signatures in favour of a person wishing to contest an election of the National Assembly or provincial legislature as an independent candidate should be left to the Commission as an independent and non-partisan body. It was ultimately a policy question as to whether the amount of deposit and number of signatures should be included in the Act or be left to the Commission to determine.
At present, the Bill stipulates that a former member of a political party may only contest an election as an independent candidate if he or she has not been a member of any political party for at least three months preceding the date of the nomination as an independent candidate. Legal counsel noted that it could be argued that such a restriction may well not be constitutional.
The proportion of regional and compensatory seats
At present, the Bill divides the number of seats in the National Assembly equally between regional and compensatory seats. Various comments have been submitted that it may be more appropriate for the compensatory seats to represent a smaller proportion of the total number (for example 25%) leaving the remaining seats as regional seats for independent candidates and parties to contest (for example 75%). This was ultimately a policy question.
The Chairperson thanked Adv De Beer for responding to the issues the Committee and other stakeholders had raised. He invited the Minister to comment if he had a matter to raise before members would comment on the issues. He had established that there were a few issues that the presentation differed slightly from the views expressed by the IEC around the ballots and participation in the regions. The Committee had taken a principled consensus on all the issues that had been raised. He did not think that the Committee, the IEC, and the legal counsel of the Department were far from one another. All the key issues that required the attention of the Committee had almost been exhausted. The Chairperson invited the Minister if he wanted to raise any other issue before the members commented. He would establish later if the IEC needed to comment. He noted that the IEC had already made its views on the issues that had been raised.
Minister Aaron Motsoaledi said that he viewed the presentation as near to what the Committee had elaborated upon over the last few meetings. The only difference between what had been presented today and the IEC was on the issue of contestation of regional seats. The presentation echoed what the Committee decided, which was also mentioned last week, that the independent candidates and the political parties in the regions were contesting for the same space and it would be extremely unfair for any other of the groups to start having multiple regions where they contested. The Committee had also agreed on that matter. He noted a second issue which was new but was necessary. These were the consequential amendments. He was not sure how the Committee was going to deal with them because they were being introduced. It was known for a long time that there were going to be consequential amendments. The question was at what stage would they be introduced and whether it would become a separate Act? The legal counsel had proposed that it became part of the omnibus Act and that amendments needed to be made. The Committee needed to elaborate on how it was going to deal with that. He discussed the Political Party Funding Act. The issues of amounts that were mentioned there appeared in the regulations. The presentation said that the regulations would have to be changed. The Committee would have to work around the clock because the regulations were done by the President. The changes in the Act needed to happen with an instruction from the National Assembly to allow the President to change the regulations. There were also consequential amendments. The Minister wanted that to also be dealt with.
The Chairperson said that he had noted that the consequential amendments were introduced. The Committee would note them. The approach that may assist the Committee would be to complete the Electoral Amendment Bill and then have a process to deal with the consequential amendments. He raised caution so that the Committee did not delay the process that it had been engaged in. The Committee still needed to allow the legal team to draft the A-List. The focus of the Committee’s engagement needed to be within that structure. Adv De Beer had raised important key questions through the consequential amendments.
Adv De Beer said that he wanted to make something clear. The legal counsel included its amendments to the Political Party Funding Act into the Bill and into the opinion to get the process going. The legal counsel was not proposing that. If the Committee wanted to deal with it separately through another process, then those processes need to be done. It was included for the convenience of the Department and the Minister. The legal counsel was not suggesting that it had to be dealt with as an omnibus Bill.
The Chairperson said that the Committee would be structured on its process and how it was going to deal with the issues.
The Chairperson invited the members to comment.
Mr K Pillay (ANC) said that there were not many differences between the presentation received and the discussions the Committee had been having over the past few weeks. He wanted clarity on the ballots that were mentioned in the presentation. It was proposed that it was two ballots. He found difficulty in understanding how that would unfold. His understanding was that it meant that one of the legislature votes would be missing. The presentation said that one would vote for the region and for compensatory. There was definitely a missing point. He needed clarity on the submission of the two ballots.
He discussed the presentation in regard to one of the contentious views expressed on regional seats and residency, and how that space would be contested. He appealed to the Committee to look clearly at what had been presented now because it made perfect sense. Perhaps the Committee needed to zoom into that part of it, the part of the presentation that spoke specifically to the region and National Assembly.
He wanted clarity on a matter that had been raised in last week’s meeting by Mr Roos. The understanding was that independent candidates would not be contesting the compensatory, or the NA-to-NA. If that was the case, then the Committee needed to make sure that it was clear about it. Where exactly it was because then the Committee would be able to proceed on reaching consensus on this matter. He thought the rest of the presentation captured the discussions that the Committee had ensued over the last few weeks. He appreciated the presentation that was made.
Ms L van der Merwe (IFP) said that the Committee was at the stage where everyone was on the same page bar a few issues. The presentation that was made spoke to most of the issues that had been debated in the Committee. There were only a few issues left that the Committee needed to decide upon. For example, whether the Committee wanted to go for the 300 to 100 split or the 200 to 200 split.
She drew the Committee’s attention to what was said by Adv De Beer about the ‘cooling-off period’. She agreed that the Committee had taken a resolution on most issues. However, the Committee would have to take very seriously the presentation and the point that was made that the ‘cooling-off period’ might be unconstitutional. It might be unconstitutional to restrict former political parties, in this way, from contesting an election. As a caucus, this issue was debated during the week. Some members of her caucus felt that this was an unnecessary provision because independent candidates were asked to pay a deposit, to collect signatures and now the Bill was also introducing the matter of a ‘cooling-off period’. She knew that all the members agreed on this but since there was this advice that the Committee received she hoped the Committee would go back and possibly consider the issue of the ‘cooling-off period’ again. The Committee needed to decide whether it wanted the 300 to 100 split and the ‘cooling-off period’.
The Committee also needed to consider the policy issue of whether independent candidates would get a share of the equitable funding allocation or not. She was clear on all the issues that had been presented. She thanked Adv De Beer and thought that the legal counsel and the Committee were on the same page on most issues. She agreed that the IEC should be able to determine signatures and deposits. There was no way the Committee could expect an independent candidate to pay the same deposit as a political party. She was also happy with the advice the Committee got from Adv De Beer.
Ms M Molekwa (ANC) said that the presentation clarified most of the issues and covered most of the issues that the Committee had raised. She agreed with the members who spoke before her. Most of the comments raised covered her. She thanked the Minister for clarifying some of the issues, especially on the Political Funding Act.
Mr A Roos (DA) said thanked the Minister for coming to the party with regard to a lot of the issues that were discussed. It was appreciated. The Committee agreed that it was heading towards a constituency system and that it was an absolute necessity after the elections. What was presented today was very much along the municipal lines which struck the balance between direct accountability, which had come out in the public participation, as well as proportional representation. The proposals made in that regard were a step in the right direction. His one concern was still the seat allocation. The seat allocation in the region was presented as one round but it still remained two rounds. What he was talking about was to say that political parties and independent candidates had one seat quota calculation. Those seats were allocated. If any independent candidate had more than one seat worth of votes, then those should be discarded and then there was another round. He was not sure if he was misunderstanding that. Was it actually a two-round system? Instead of three rounds would there be a first-round where everyone was in the pot, political parties, and independents. Then afterwards the votes of the independents that made it were dropped and a recalculation would be made for a second round. Or was it indeed one round with remainders? Why was it necessary for two rounds? Why can a calculation of the results not be done and then allocate the votes proportionally, for independent candidates it would be limited to one seat and then the highest remainders would be used as discussed in the last meeting? The highest remainders would be used to work out who would come in next and for the future if an independent dropped off. That list would then serve as a top-up list. Why was it not just one round with one quota? The reminders would then be utilised for those who did not get a full seat. He had made the point last week of calling regions ‘multi-member constituencies”. This might be confusing going down the line because the Committee fully intended introducing constituencies after the next national election. If the name ‘region’ was changed to a ‘multi-member constituency’ then later bring in a ‘constituency’ that would get confusing. A change would be made that would later require another change to be made. It had been discussed last week that it was understood why the proposal was made to call it a ‘province’ instead of ‘region’. However, making it a ‘multi-member constituency’ was just confusing. The provinces were not really constituencies in the way that people understood constituencies. As it had been agreed that the country was going to a proper constituency system, his proposal was that it should just be left as ‘region’. There were consequential costs to these things. Training material had the word ‘region’ in it. Once these things were changed then the training material and other documents would need to be changed.
He discussed the three-month “cooling-off period’. He understood the view that it might be considered “unconstitutional. However, there needed to be a reasonable calendar for elections. It would be the same as saying that a person needed to register and the fact that a voter could not register after the closing of voter registration is unconstitutional, that it denied them the right to vote. The fact was that the voters’ roll needed to close off so that certain processes could happen. The three-month “cooling-off period’ was part of a reasonable electoral calendar. It needed to be closed off at some stage. Otherwise, right at the end, someone could change their mind. The IEC would not have enough time to change the processes in the background. He still advocated for 300 from the regions. The reason was given that this was much more suitable for a constituency system, that more seats were available to the regions for the sake of distribution amongst multi-member constituencies when the country had those.
Ms M Modise (ANC) said that the members had deliberated on almost all the issues that appeared in the presentation. The Committee had reached a consensus on most of the issues. She drew the Committee’s attention to one issue she felt that the members had not adequately dealt with. It was the issue of the independent candidates contesting in one region or in all regions. The Committee had not really dealt with the issue of what happened when the independent candidate contested in all regions. What happened to the votes that they garnered in the other regions? The Committee had not reached a consensus on whether all those votes would be aggregated. The Committee was still seized with that issue it needed to deal with. Otherwise, most of the issues had been dealt with and the Committee had reached a consensus on them.
Ms A Khanyile (DA) said that she was covered by the colleagues that had spoken before. She discussed the issue of independent candidates in various regions. When Adv De Beer made the presentation, he mentioned that maybe when the independent candidates contest in various regions they needed to indicate their preference of region. She wanted clarity. In Adv De Beer’s proposal, where an independent candidate has indicated that a region would be their first preference if they lost that region then were they going to lose all the other votes? Initially, she understood that independent candidates would get a seat in the region where they would have received the most votes.
She discussed the renaming of ‘regions’ to ‘multi-member constituencies’. She agreed with Mr Roos. The Committee had reached an agreement that it was going to leave ‘regions’ as it was. This would then be changed when the Committee prepared for the post-2024 national/provincial elections.
The Chairperson said that he would allow Adv De Beer to give a brief response. Then the Content Advisor would provide a recap of the Committee’s discussions, clause by clause so that the Committee could resolve the issues where different views had been expressed. Where there was a view expressed by the legal counsel the Committee would be able to isolate that and deal with it separately. He got a sense that on the matter of regions members still needed to thoroughly interact on that. Overall, there was an understanding that the Committee could resolve all those issues. The Committee would then note the presentation on the consequential amendments, which the Committee would not deliberate on in this meeting because it also had its own process to engage on before it was to be dealt with by the Committee. The Committee would outline that process later on after the Committee had dealt with the draft A-List. The Chairperson invited Adv De Beer to comment and respond to some of the issues that had been raised. Then the Content Advisor would provide a recap of the deliberations that the Committee had undertaken, clause by clause. The Committee would then resolve on the issues.
Adv De Beer said that the suggestion on the number of ballots was not to say that there were only two ballots for both the elections to the provincial legislatures and the National Assembly. The proposal was that there should be two ballots for the National Assembly. There would be a third ballot for the election to the provincial legislature. There would be a National Assembly compensatory ballot and a regional ballot. Then there would be the provincial legislature ballot. He noted that independent candidates could not contest the compensatory seats. Those were only available for political parties to contest. He responded to the question about the rounds and highest remainder. He detailed the way legal counsel prepared its proposed amendments. In a sense, it was another round because one needed to deal with the fact that in this system there were additional votes for independent candidates. He had not considered or gotten his head around how the largest remainder method system would work. It was certainly something that could be considered. The drafting team would be guided by the Committee and the Department. He discussed what would happen if the Act would permit an independent candidate to contest multiple regions, the independent candidate ranked the regions of choice and the independent candidate did not get their top region. He provided an example of an independent candidate contesting in three regions. The independent candidate would rank those three regions. If the independent candidate did not get enough votes in their first-choice region but got enough votes for a seat in another region, then the independent candidate would get the seat in that region. The proposal was not that the independent candidate lost out but that they had to pick and choose. The independent candidates had to specify the ranking of the regions that they would get. Under the current system if one were to do that then the seats in the other regions would have to be disregarded. That was the legal counsel’s suggestion for the Committee to consider.
Recap by the Content Advisor and Parliament Legal Service on the deliberations on the Electoral Amendment
Mr Adam Salmon, Committee Content Advisor, briefed the Committee on the Electoral Amendment Bill deliberations, decisions, and outstanding issues. Mr Salmon recapped the bill clause-by-clause with the members having a discussion on each clause.
Members agreed in principle that independent candidates should be included in the concept of ‘party liaison committees’. The consensus was also reached that the terms ‘party liaison committee’ should accordingly be amended. The IEC proposed the term ‘political liaison committee’. The Committee was yet to decide on the proposal by the IEC or consider an alternate name.
The Chairperson said that the Committee had exhausted its interaction on some of the issues and needed to resolve the issues as presented by Mr Salmon. There were issues that needed to be resolved on.
Mr Pillay said that the Committee needed to move with speed as it had agreed on certain issues. He agreed that there was a consensus on the retention of the terms ‘province’ and ‘region’. He discussed the issue of the ‘party liaison committee’. The Committee had resolved that the name did not matter but that it has to be accommodative. In light of what the Committee had heard in previous weeks, he agreed with Mr Roos. There may be literature that was already produced and documents that may reflect ‘PLC’. It was important that the Committee found a word that was not going to make too many changes. He supported the proposal that the term ‘political liaison committee’ be used. It was still ‘PLC’, rather than ‘party liaison committee’. He thought ‘political’ was appropriate because independent candidates were entering the space of politics either way and everything revolved around politics. ‘Political liaison committee’ would be the preferred name.
Ms van der Merwe said that she still held the view that the Committee should have used the word ‘province’ instead of ‘region’ because ‘region’ remained confusing. Legislation should be made for the ordinary South African as people did not necessarily read documentation. She would not enter that debate again because the Committee had resolved on ‘region’. All of the members agreed on the word ‘political liaison committee’ simply because the abbreviation ‘PLC’ has already been used in documentation. She believed that the Committee should go with ‘political liaison committee’ as had been previously discussed.
Mr Roos agreed that the definition of ‘region’ be left as is. He supported the use of the term ‘political liaison committee’.
Ms Modise said that the Committee resolved on leaving ‘region’ as it was. The Committee also resolved on the ‘political liaison committee’. She agreed with the members.
The Chairperson said that that would be the carried decision of the Committee.
Residency and registration requirements for independent candidates
This provision states that in order for an independent candidate to be nominated to contest an election, they must be an ordinary resident within the region they are contesting, registered as a voter for that region or province concerned, and must sign a declaration confirming that his or her residential address is situated within the region or province in which the election will take place. The Committee was yet to reach a consensus on this issue. There were two proposals. The first proposal was that independent candidates should only contest one region and be required to be residents in that region for the regional seat in the NA and residents in the province for the provincial legislature. The second proposal was that no residency requirement and independent candidates should contest multiple regions for the regional seat in the NA. If there is no residency requirement for independent candidates, this should be the same for party candidates.
Mr Pillay said that the Committee agreed that a person could be a registered voter anywhere in the country. That was something that should be accepted it made perfect sense. It did not matter whether an independent candidate had an order of preference or not. Ultimately, it boiled down to whether the independent candidate attained enough votes in respect of the quota. The explanation given to the Committee by Adv De Beer made more sense in that it would be important for the independent candidates to rank the regions if they were contesting more than one. An independent candidate would only be able to get one seat and the others would fall away. That was the direction the Committee should take.
Ms van der Merwe said that she was of the opinion that the Committee should allow independent candidates to contest multiple regions. At the end of the day, independent candidates would only be able to take up one seat because they were only one person. She agreed with the ranking of the region of preference. That was a sensible proposal. She agreed with the ranking and supported proposal two.
Ms Khanyile said that she was in support of independent candidates participating in multiple regions and that they ranked the regions that they would be participating in.
Mr Roos said that he agreed with Ms Khanyile.
Ms Modise said that she had been sufficiently covered by Mr Pillay.
Mr Pillay said that it needed to be clear that the votes were not aggregated. This needed to be clear so that it did not create a challenge for the Committee after the election. The votes would not be aggregated. It would be that the candidates would have to attain the highest number of votes in a region not across all regions.
The Chairperson said that that had been dealt with by the Committee. It was a resolved position. Members had agreed on this proposal. The Chairperson would ask for the views of the IEC later on, on this matter.
There was consensus among members that a nomination for independent candidates should be accompanied by a prescribed number of signatures of voters in support of their nomination. However, an outstanding issue was the actual number of signatures required or the formula to be contained in the Bill. There were two proposals. The first proposal was that the Bill must state that signatures are required, including a means of verification, and that it be 50% of the quota for a seat in the previous election. The second proposal was that the Bill should state the exact number of signatures required, after being informed by the IEC.
The Chairperson said that in the report presented by the IEC there was an appreciation of the Committee to consider the verification process that had to do with electronic and other means that the IEC had proposed it would engage on. The Committee would leave that to the IEC. There was a resolve on the first option in terms of the issues that encompassed the process.
Mr Sy Mamabolo, Chief Electoral Officer, Independent Electoral Commission of South Africa (IEC), said that it was necessary that the IEC clarify the submission it had made last week. The proposal the IEC made last week was that the quantum of signatures must be on a percentage of an equivalent previous election. That was the first point that the IEC made. The IEC would only be in a position to deal with the quantum of those signatures and verify them if candidates submitted them electronically. The Bill should make that clear upfront. That was the submission. He thought that it was important that the nuances were pointed out clearly.
Mr Mosotho Moepya, Commissioner, IEC, said that there was a further issue that the Committee needed to deal with on principle. The IEC preferred an objective method. The IEC gave a range of percentages indicating the numbers. The Committee needed to agree on what is considered to be the most appropriate percentage that it may apply.
The Chairperson said that he did not want the IEC to get into the discussion space now. That was why he drew the Committee’s attention to the IEC’s last presentation. He was sure that members were going to articulate some issues that the IEC had raised. He wanted the IEC to make comments as the Committee finished the clauses so that the Committee properly dealt with the summary of the decisions. The Committee appreciated the IEC’s intervention.
Mr Pillay said that he would stand by his submissions made previously that signatures should be accommodated within the Bill. The deposit should be part of what the IEC was able to regulate because it may change from year to year based on the economic conditions of the country. When that happened, the Bill could not be brought back to Parliament all the time for the Bill to change. He emphasised that the Committee had gone through many proposals in terms of the percentages. He supported 50% of the quota for a seat in the previous election. The electronic system was one that may be preferred. Especially because if one was to take signatures it was not going to differentiate between who was registered and who was not. The IEC would have to go through every one of those signatures to confirm if they were registered voters. The support for an independent candidate needed to be a registered voter. An independent candidate could not just get signatures from anywhere. His view was that it should be 50% quota of a seat in the previous election.
Ms van der Merwe said that she supported the second proposal. The Bill should state the exact percentage of signatures. She disagreed with Mr Pillay that the Committee should be going with 50% of the quota of a seat in the previous election. She believed that it was far too high a threshold to meet. She argued for a lesser percentage, not 50%. She supported proposal two but then the Committee would need to look at a more reasonable percentage whether it was 10 or 15%. She emphasised a 50% threshold was far too high. The Committee needed to create an enabling environment for independent candidates to contest freely and fairly. The threshold should be between the range of 10 and 15%.
Ms Molekwa said that she agreed with Mr Pillay.
Mr Roos said that the Committee discussed this at length last time. In other countries, it was often a sliding scale. The bigger the election that the independent candidate participated in the more the number of signatures they were required to get. He noted that unfortunately, the Committee did not receive the information in a way that would have really helped it determine what a fair percentage would be. There were some percentages mentioned. At the end of the day if the independent candidate was serious and wanted to contest the election and be able to get a seat then it should be expected that they were able to get 50%. He did not have a problem with that. He noted that the electronic means of verification was critical. The technicalities of that could be worked out by the IEC. The signatures would need to be submitted electronically.
Ms Khanyile said that she was covered by Mr Roos.
Ms Modise said that she was covered by Mr Pillay.
The Chairperson said that there was agreement on the 50%. He noted that the issue of physical verification had been raised. The IEC would comment on that later. Members were in agreement on the 50% quota for the previous elections.
There was consensus reached that independent candidates should pay deposits. The consensus was reached that the Bill should indicate that the IEC can determine that independent candidates and parties pay different amounts and that these should be stated in the regulations in consultation with the PLC. A Committee resolution was required.
Mr Pillay said that the consensus was correctly captured. There was just one addition that the deposit should differ from a region to national. The view of the Committee had been captured correctly.
Ms van der Merwe said that consensus was still there.
Mr Roos said that there was a consensus. He knew that the Committee was not discussing the consequential amendments, but the Committee needed to be sure when it looked at those that there was not an unfair situation where there were a lot of concessions, but independents would get all of the benefits at the same scale. That was something that needed to be looked at overall.
Ms Khanyile said that she was in agreement with the clause.
Ms Modise said that there was a consensus.
Ms Molekwa said that there was a consensus.
Ms L Tito (EFF) said that there was a consensus.
The Chairperson said that the Committee carried the resolution on the matter.
This provision requires a prescribed declaration from the independent candidate, confirming that he or she has not been a member of any political party for at least three months preceding the date of nomination. A consensus was reached on this matter, but clarity was sought regarding whether the IEC would have enough time to verify and process signatures. A consensus was reached regarding the current 3-month ‘cooling-off period’. A Committee resolution was required.
The Chairperson said that there was a view that was previously raised that the IEC might not know whether an independent candidate was a member of a political party. He would get the IEC’s impression later on.
Mr Pillay said that he agreed that it should remain and that the Committee had resolved the matter.
Ms van der Merwe said that she had articulated her views earlier when she responded to Adv De Beer. Her caucus had reflected on this matter and felt that because an independent candidate was already being asked to pay a deposit to garner signatures that there were certain thresholds to stand as a candidate. She did not think it was necessary to also impose a ‘cooling-off period’. Considering the views raised by Adv De Beer about the constitutionality of the clause she argued that it was not necessary. However, she noted that the Committee had reached a consensus on it, but she did not think that it was necessary.
Ms Molekwa agreed with Mr Pillay.
Mr Roos said that he agreed with the three-month ‘cooling-off period’.
Ms Khanyile said that she was covered by Mr Roos.
Ms Modise said that consensus was reached in the previous deliberation.
Ms Tito said that the three-month “cooling-off period’ should remain.
The Chairperson said that the Committee resolved on the ‘cooling-off period’.
National Assembly allocation
This item provides that half the seats (200) in the National Assembly are filled by independent candidates and party candidates contesting the nine regions (regional seats), and half (200) of the seats are filled by party candidates (compensatory seats). A consensus was required on whether this ratio should remain or should change to 300 regional seats and 100 compensatory seats. There were two proposals. The first proposal was 200 regional seats and 200 compensatory seats. The second proposal was 300 regional seats and 100 compensatory seats.
Mr Pillay said that he would remain with the view he had right from the start of the Committee’s deliberations. He supported the split of 200 regional seats and 200 compensatory seats.
Ms van der Merwe said that she supported the second proposal.
Mr Roos said that he supported the second proposal.
Ms Molekwa said that it should remain 200 regional seats and 200 compensatory seats.
Ms Khanyile said that she supported there being 300 regional seats and 100 compensatory seats.
Ms Modise said that she supported the first proposal which was 200 regional seats and 200 compensatory seats.
Ms Tito said that it should remain the same.
The Chairperson said that the Committee had deliberated on this matter and there was a view that the Committee should support the first proposal. The majority proposed option one, 200 regional seats and 200 compensatory seats.
Allocation system for regional seats
These items in the Bill proposed a three-round system when allocating regional seats. There were two proposals. The first proposal was a three-round seat allocation system as contained in the Bill. Three rounds where the first two rounds allocated independent candidates seats and the third-round allocated party seats. The second proposal was to retain the existing seat allocation system as contained in the Electoral Act and expanded to include independent candidates, using the highest remainder.
The Chairperson said that when the Committee was deliberating it had requested the IEC come to the Committee to present the formula and details. That was done. Comments were sought from the IEC and follow-up issues were dealt with. The Committee resolved to use the droop formula. He was just recapping the understanding of the deliberation and process that went into these issues.
Mr Pillay said that he was concerned by the Content Advisor’s capturing of the first proposal. He did not think that the first proposal as a three-round allocation system was correct. The proposals from the deliberations and discussions were for a single round using the droop quota system. He was in support that the Committee use that system. The Committee asked for a presentation from the IEC to understand the highest average versus the highest remainder. The Committee could make use of both systems. One could look at a certain number of seats and look at the highest average. He proposed that the first five should be at the highest remainder. Thereafter, the highest average could be used. Then that would accommodate fairly for all participants. He supported a single round using the droop quota. Thereafter, the highest remainder would be looked at. He supported using the highest remainder and then after the first five using the highest average.
Ms van der Merwe said that she agreed with proposal two. The Committee had agreed to do away with the three-round seat allocation. The Committee agreed on the single round using the droop quota. She supported the second proposal.
Ms Molekwa said that she was covered by Mr Pillay.
Mr Roos said that he supported proposal two.
Ms Khanyile said that she supported proposal two.
Ms Modise supported the single round droop system and using the highest remainder method. After the highest remainder was used then the highest average could be used.
The Chairperson said that that informed the Committee’s decision.
Mr Roos said that the important item to note on proposal two was that an independent candidate could only get one seat. Otherwise, on the existing system, they would be able to get multiple seats.
This item provides that the IEC must produce separate ballot papers for the election of members of the National Assembly and of members of the provincial legislature. A consensus was reached regarding three ballot papers being used. A Committee resolution was required.
Mr Pillay said that he needed to correct the Content Advisor. The presentation that was made did not speak to the province. It spoke to the NA. He agreed that consensus was reached on the three ballots.
Ms van der Merwe said that she agreed.
Ms Molekwa said that she agreed.
Mr Roos said that he agreed.
Ms Khanyile said that she agreed.
Ms Modise said that she agreed.
The Chairperson said that the Committee resolved the matter.
This item provides that in the event of a vacancy in a legislature in a seat allocated to an independent candidate, the seat in question will not be filled until the next election. A consensus was reached that an independent candidate’s vacancy should be filled by the next highest available candidate or political party. A Committee resolution was required.
Mr Pillay said that he agreed consensus had been reached.
Ms van der Merwe said that she supported the proposal.
Mr Roos said that he supported the proposal.
Ms Molekwa said that she agreed.
Ms Khanyile said that she agreed.
Ms Modise said that she agreed.
The Chairperson said that the resolution was carried by the Committee.
The Committee agreed and supported that Independent Candidates should also be allowed to appoint agents on their behalf to observe election proceedings. However, the Committee questioned how this should be done and is yet to resolve this question. There were two proposals. The first proposal was that an independent candidate could appoint one agent per venue where elections, counting, determination or declaration of the final results takes place. The second proposal was that as per the Local Government: Municipal Electoral Act, independent candidates may appoint a number of agents for the election equal to one or more agents per voting station if voting at the voting station takes place in more than one room or separately enclosed area; and two agents per venue where the counting procedure was performed at a venue other than the voting station.
Mr Pillay said that he agreed agents should be allowed. He supported the proposal of one agent.
Ms van der Merwe said supported independent candidates having agents available to them. Her worry was when there was counting in different venues of the voting station. She did not think that one agent would suffice. She supported proposal two, to allow for two agents per venue or at least more than one. Independent candidates needed representatives in all counting stations.
Ms Molekwa said that she agreed with Mr Pillay on proposal one.
Mr Roos said that he supported proposal two.
Ms Modise said that she supported proposal one.
The Chairperson said that these were reasonable submissions on the agents that needed to represent the independent candidates. The IEC had drawn experience in terms of the participation of voting sites where candidates needed to be presented. Members needed to consider the status quo that had been used in the local government elections, which had been sited. One or more agents should be included for fairness as a principle, for independent candidates. The Committee would resolve on proposal two so that independent candidates were given an opportunity for fairness. Political parties had agents in all the voting stations where there was counting and the voting process. The Committee would carry proposal two in the principle of fairness and fair participation in the elections.
Mr Salmon said that was the last point that was captured. The only remaining issue was when the Committee would have the A-List prepared.
The Chairperson said that one matter that the Committee did not resolve was the contestation of regions. It had been raised by Ms Modise. The Committee would deal with it in the next meeting and finalise that matter. He invited the IEC, the Parliamentary Legal Advisor, and the State Law Advisor to comment on some of the issues. The Committee had managed to deal with almost all the issues. The Committee would then be able to draft the A-List. The Chairperson wanted all of the stakeholders to comment so that when the Committee came back to deal with the A-List it was able to deal with some of the issues. The Chairperson asked if that was in order with the members?
Mr Roos said that he was happy with the process.
Ms Modise said that she was fine with it.
Ms Khanyile said that she was happy with the Chairperson’s guidance.
Mr Pillay said that he was happy with the Chairperson’s guidance.
The Chairperson invited the IEC to comment on the issues.
Mr Moepya said that there were five issues he had noted. The first issue related to the ranking of regions by independent candidates. He drew the Committee’s attention to the fact that this was not a thing that happened with political party candidates. He did not know how the ranking would apply if it was to be done to political parties because there were advantages and disadvantages. There was an issue of equal treatment. Perhaps the easiest and fairest would be to look at where the independent candidate won the most votes. The IEC would leave that matter with the Committee. It needed to consider how ranking would work for one set of candidates and not for the others. There was the issue of practicality that the IEC needed to worry about. The second issue related to the quota that had now been agreed at 50% of seats obtained in a previous election. This means the IEC had to align registration requirements for political parties that were registering. Currently, political parties registered in the National Assembly with only 500 signatures. If independent candidates were going to need 15 000 or 16 000 signatures the IEC would need to adjust the registration requirements for political parties in the national, provincial, local and regional spheres. The third issue was the ‘cooling-off period’. The IEC looked at the practicalities and did not look at the policy principle. The IEC had indicated that it did not know who was a member of which party. There would have to be a way to indicate if a person who the IEC had received as an independent candidate had been a member of a party or not. That information was currently not available. He had been persuaded having listened to Adv De Beer that there was that constitutional issue, but it was a policy principle. The IEC was asking the Committee to help it consider how it was going to tick that qualification when it checked the qualification of candidates. He discussed the issue of droop versus hare quota. The IEC had heard the Committee loud and clear. Mr Pillay raised an issue about using a combination of the highest remainder and the highest average. This was a new issue, and the IEC did not understand how it was going to work. The IEC may have to go and look at it. He did not know if it was necessary up to five. This was a matter that would be best considered carefully before it was finalised. He discussed the issue of agents. It was simpler, more practical, and fairer where a station was streamed. For example, where a station had multiple voting points. It was important that every candidate or party was able to be represented. To have one agent per facility was not practical.
The Chairperson said that the IEC needed to come back to the Committee on the key issues raised like the droop quota and the ranking. That was the framework resolution in terms of how the Committee was to proceed. The Committee would also pay attention to the constitutional matter that was raised by Adv De Beer in terms of the ‘cooling-off period’. Members were paying more attention to that. In the next session, the Committee would look at it when the A-List was being brought to the Committee. When the Committee was going to adopt a report that was going to be presented to the NA, all the issues that were raised would have been dealt with and clarified. The Chairperson invited the Parliamentary Legal Service and State Law Adviser to comment.
Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, said that he had nothing to add at this moment. He appreciated the guidance that the Committee had given. The legal team would start the serious work that needed to be done in terms of the amendments that needed to be made. He noted the point the Committee still needed to come back to with regard to multiple regions. The legal team appreciated the guidance that the Committee had given today.
Ms Sarah Govender, Senior State Law Advisor, Office of the Chief State Law Advisor, said that there was nothing to add. The legal team would just await clarity regarding the one outstanding issue. For now, they had received clarity regarding the proposed A-List.
The Chairperson thanked the members and all stakeholders. The Committee had come closer to concluding the process. The Committee would then take up issues once the A-List had been drafted. The issues that would impact the IEC would be paid attention to by the Committee. The Committee had resolved all the issues and how it was to move forward. There were constitutional issues that were raised that the Committee may need to pay more attention to. The Committee would communicate its attitude to it in its next meeting.
Mr Salmon said that the legal team might need more than a week to prepare the A-List because of the complexity of the issues. He proposed the Committee aim for next week Friday’s meeting rather than next week Tuesday. The Committee needed time to apply for a special meeting and for the legal team to prepare the A-List.
The Chairperson said that was noted. The Chairperson invited the Minister and his team to present on the matter of the report on the permits. The Committee had noted over a period of time the urgency of this report. The Committee had taken a decision last year that there must be an investigation on this area of the Minister’s responsibility. The Minister was here to give the Committee a brief. Two issues were agreed to. The Minister was to present the summarised version because the report would need a full Committee meeting. In the third term, the team would come back and deal with the full report. In the course of this work, there would be investigations were carried out. Law enforcement agencies would also need to interact with the report. The Committee did not want to compromise that process.
Briefing by the Minister of Home Affairs on report on the review of permits that was conducted within the Department of Home Affairs
Minister Aaron Motsoaledi, Department of Home Affairs, and Dr Cassius Lubisi, member of the Ministerial Committee, briefed the Committee on the report on the review of permits that was conducted within the Department of Home Affairs. On 22 February 2021, the Minister established a Ministerial Committee to review the issuance of permanent residence permits, corporate visas, business visas, critical skills visas, study visas, retired persons’ visas, and citizenship by naturalisation between 12 October 2004 and 31 December 2020.
The purpose of the review was to establish whether the issuance of permanent residence permits, business visas, corporate visas, critical skills visas, study visas, retired persons visas, and citizenship by naturalisation was done according to legislative prescripts, in particular, the Immigration Act and related legislation; to determine the irregular nature and patterns in the issuance of visas and permits in extracting information from system data at DHA, and to make recommendations.
Findings – Overview
Legacy systems were not yet modernised. The systems were not yet advanced enough to flag anomalies proactively. People worked in silos with their own systems that do not talk to other Home Affairs systems. Unscrupulous Home Affairs officials were found to have created fake users on the system. Deliberate by-passing of controls to manipulate visa/permit applications. A forensic investigation conducted by Nexia SAB&T, discovered key loggers on SITA and Home Affairs computers to gain access to Home Affairs data, i.e., stealing users’ IDs to access Home Affairs systems. Whistle-blowers described criminal modes of operation in the issuance of visas and permits. The review found evidence of individuals who were actively manipulating visa and permit applications, with the assistance of corrupt Home Affairs officials. Some of these internal and external actors have been identified. Immigration processes were deliberately circumvented or ignored to fraudulently issue visas and permits. Records from 2004-2014 were not computerised and were still manual. Hence the Review Committee could only work with data from 2014 onwards.
Based on the findings by the Review Committee, a thorough deep-dive analysis, and detailed forensic investigation needs to be undertaken. Certain visas will have to be withdrawn, some people might have to be deported and criminal prosecution might have to be instituted. This will also include internal disciplinary action.
Therefore, the Review Committee strongly recommends mandating an independent multi-disciplinary task team of attorneys/advocates, forensic investigators, specialist analysts, and ICT system experts to fully investigate all the anomalies, fraudulent applications, corrupt activities, systemic irregularities, and maladministration identified in the report and to make appropriate recommendations for criminal prosecution, disciplinary action, removal from the system, system improvements, recalling of visas, and the tracing of offending foreign nationals for deportation.
The Chairperson thanked the Minister and Dr Lubisi for the detailed report. The Chairperson invited members to comment and raise issues by the task team. Members of the task team would then be invited to comment and respond. The Minister and Deputy Minister would then be invited to comment if there was any other matter to raise. The Committee would be informed by the issues raised by members and then formulate how it was going to carry the report forward.
Ms van der Merwe thanked Dr Lubisi for the presentation and the good work that was being done. Listening to the presentation she could understand why it took such a long time for the Committee to get to this point. She supported all the proposals that Dr Lubisi had articulated. She thanked the Minister for putting together the team and for starting the work of identifying all the wrongs that had been done. She thanked the Minister for doing great work. The Minister was being lauded for the good work that he was doing. The Committee continued to support him in the work that he was doing in this regard. However, she was quite shocked. She thought that the report would be bad and that the reason why it was taking so long for the report to be released was that the content of the report would be devastating to the Committee. This was in fact the case. The report pointed to a crisis. The Minister inherited a poisoned chalice. The report pointed to the Department of Home Affairs being in crisis. She had often said that the Department was facing a full-scale immigration crisis. Looking at this report combined with the prevalence of fake passports, fake IDs, and daily reports of illegal migrants being involved in crimes, whether it was the hijacking of buildings or the trafficking of children. It pointed to a very serious problem with South Africa’s immigration system. It pointed to the collapse of South Africa’s immigration system. It pointed to a crisis. She felt very anxious. It felt like there was no light at the end of the tunnel. It was like there was no solution to the many problems that were currently confronting the Department. The report painted a very dark picture. The corrective measures that Dr Lubisi presented should be taken on board. She directed a question at the task team. The presentation noted that 44% of study visas might be fraudulent and 38% of critical skills visas have gone to Zimbabwean nationals. What was the estimated percentage of visas that might possibly be fraudulent? It might possibly be as high as 50%. What was the percentage of visas that could possibly have been fraudulently obtained? There was a mention of the Department’s systems not being integrated, and people working in silos. Legacy systems had not been integrated. There needed to be a single-entry retrievable tool. She wanted to know from the Department, by when would it be able to integrate all of these systems? How long would it take for the digitisation of the files? The presentation spoke about the unscrupulous Home Affairs officials. Some of the cases had been handed over to the Hawks. How many Home Affairs officials was the presentation talking about? It always felt like the surface was being scratched off the extent of the corruption within the Department. Was there merit in reviewing all of the staff that dealt with immigration matters? She was wondering about the 38% of critical skills visas that went to Zimbabweans. What were the critical skills that they were offering the South African economy? Was there any information on that? She discussed the 44% of study visas that went to Nigerians, Congolese, and Zimbabweans. Was there any monitoring tool? She had heard about the fake documents. The Department should check whether these individuals were studying at various institutions. If not, the visas should be suspended. She had never heard of people being able to obtain retirement visas before retirement age. It pointed to not only the gaps in legislation but also the immediate corrective measures that could be taken in terms of suspending these study visas and retirement visas. She heard Dr Lubisi speak about spending visas and deportations. Her worry was that the Department did not have money for deportations. She discussed the issue of submitting documents that were fraudulent. South Africa, as a very nice country, still allowed people to reapply once they had tried to defraud the State. It was absolute madness. The Department needed to put a stop to that. The country was not for sale. Currently, the situation was that there were corrupt Home Affairs officials that had sold the State to a variety of illegal individuals who were not legally permitted to be within the borders of South Africa. The picture Dr Lubisi painted of a person entering South Africa as a visitor, then deciding they wanted to be an asylum seeker, then applying for a work visa, then saying they were married to a South Africa was madness. The country was not for sale. The abuse of the laws, of the immigration system needed to be stopped. The Committee pledged its support to the Minister. The recommendations needed to be implemented especially starting with suspending some of the visas that had clearly been fraudulently obtained.
Mr A Shaik Emam (NFP) agreed with Ms van der Merwe and also could not see the light at the end of the tunnel, particularly with Home Affairs. That was until he started interacting with the Minister and the DG and officials in the different Home Affairs branches. He had to admit that the progress made in the last couple of years was a lot more than the progress made in the last 20 years in the country. He congratulated the Department on the progress that it had made. The fact that the Department had identified all of the challenges that Home Affairs was facing and wanted to put measures in place to deal with them said a lot about its commitment to solving the problems that it was faced with. He discussed the issue of permits. He condemned any attempt by anybody to try and suppress any investigation. He had heard in the presentation that those implicated in acts of criminality or corruption were trying to stop the investigation. This must not be allowed to happen. The Committee needed to do everything in its power to help the Department root out criminal elements in its ranks. He noted that a lot of applications got rejected or delayed because there were agents that were working with officials, and they wanted to be paid. The going rate for a work permit in South Africa was between R30 000 to R35 000. The officials either delayed these processes or did not issue them. Suddenly when one worked through the agents or unscrupulous immigration lawyers the permits would get approved. Some of the information provided said that certain permits were provided in one single day. That could not be possible but yet it was being done. These were some of the problems that the Department was facing. He saw some of the measures that the Department was talking about putting in place. He noted that the banks had a system that if anybody went into a bank account of a particular individual they would be able to pick it up. Nobody would be able to go into the bank account of another person without logging in and the bank being able to pick it up. That was why nobody would be able to give you information about a bank account of somebody else. That was how difficult banks had actually made it. He discussed the issue of the integrated system. Surely there had to be a system in place that when someone came into the country, even on a tourist visa, it tracked these people and whether they left the country after two or three months or not. More often than not people were coming into the country and staying in the country. They were not leaving the country. He was surprised that the Department did not have a system that was linked to SARS, the Department of Social Development, and local authorities. There were foreigners conducting business in this country and licenses were approved by the local authority. Illicit financials were the order of the day. All of the monies were leaving the country. There should be one integrated system where if someone’s ID was punched in it would tell the Department everything about that person. He was glad that the Department was looking at something of that nature. There had also been complaints about embassies in different parts of the country issuing visas. There were allegations of a whole lot of corruption with people paying money to come into the country. That was another thing that the Department needed to look at. He discussed the issue of study visas. What was the position of these institutions that were found to be on the wrong side of the law? What was the Department going to do about them? It could not be difficult to identify who the culprits were. The Department had identified some of these corrupt officials. If the Department looked at all the worked permits issued within the last two years it would be able to see which officials issued it. The Department could then be able to identify one or two of them that had unlawfully been approved then it would be able to identify the criminal elements. That should apply to all the other permits that were approved in the country. He discussed the issue of cohabitation and life partnership agreements. What was happening was that someone was coming in and entering into a life partnership agreement. The moment that agreement was approved then they got divorced or were being naturalised. It was being used as a way of beating the system. He thanked the Department. It had come a long way in identifying the challenges it faced. The Committee should give them full support in trying to limit the challenges that they had and create a more satisfactory service to the public.
Ms Khanyile appreciated the report that the Committee received. It was detailed. How many visas had been fraudulently obtained according to the investigation that had been done? Was any action going to be taken against the suspended officials or officials who were found to be in the wrong? Were they suspended already or was that part of the recommendations? She discussed the issue of applicants submitting fraudulent documents. She noted when the Committee conducted oversight at Home Affairs in 2019. When the Committee went to immigration it was one of the issues that were raised by the former DDG. One of the things causing them to have a backlog was that there were people applying for visas and submitting fraudulent documents. It was unclear whether the Department was in a position to report those people to the SAPS to be able to charge them criminally. Did the Department have that option for them?
Mr Roos agreed with Ms van der Merwe. South Africans were almost numbed by these things and this bad news. However, it always came as a shock as to how bad things were. What was seen in this report was a criminal syndicate that was operating as the Department of Home Affairs. One of the really concerning things was that the Department was not talking about something that had happened in the past and had been dealt with. These persons who had done these things were sitting in the Department right now with the ability to continue to do this while the Committee continued to investigate, and the Hawks were on the matter. It needed to reach a point where there was an investigation, and it took a long time because there was a lot to uncover. It also needed to reach a point where after such an investigation, hotspots were identified where there were serious concerns. Those need to be zoomed in as a matter of urgency as opposed to undertaking a long investigative process and only then beginning to do that. His understanding was that certain names had been given to the Hawks in terms of investigations. What were the timeframes involved in that? Had all of the names implicated been given to the Hawks to investigate? Were there certain priority areas that had been looked at? What measures were being put in place this very second to stop the persons that were in there to continue what they were doing? How was the Department dealing with the situation now where there was a massive security risk in the Department? What were the timeframes the Department was looking at in terms of the investigation? When would persons actually be prosecuted and removed from the Department that were part of this criminal syndicate that was operating under the cover of Home Affairs? This created an environment of suspicion against persons that wanted to come into the country legally. Because of the system that was in place which allowed criminals to abuse the system then persons who were legitimately here, who legitimately wanted to do business, and who legitimately wanted to retire here were unable to do so. The Committee needed to get a strong indication that there were immediate measures put in place. What were they? What were the timeframes for persons to start being prosecuted and removed from the Department? What was the longer-term view of the task teams investigation?
Mr Pillay said that it was important to note that the Committee, as well as the Minister, often came under fire when ordinary citizens of the country begin to raise issues that they thought were not being addressed. The Committee needed to give credit where it was due when it found that through the various sting operations that had already taken place. By having to receive this report today the Committee appreciated why the report was a bit delayed. If this was a summarised version he was worried to think what the full report was going to be like when the Committee received it in the third term. He did not want to delve too much into the specifics because the members would be given an opportunity to unpack the report and be able to zoom in. He noted there was mention of officials who were subjected to disciplinary hearings. He also heard that someone had resigned. The process with officials had already begun. He had also heard through some of the submissions that the Department had taken certain steps to address some of the issues. For example, digitalising documentation and records. He supported the recommendations of the report. He emphasised that the Committee should get the Department to come back and present an implementation plan in terms of how it was going to be addressing all of the recommendations, with clear timelines and timeframes. The Committee would then be able to come back monthly or quarterly to reflect on where the Department was. A parallel process was running with the Hawks in terms of further investigations and criminal cases that had to be lodged. The things that there was already evidence of needs to be dealt with while the Committee was waiting for the Hawks investigations. The Committee needed to give a pat on the back to the Minister. This report and task team coupled with the BMA could only be beneficial to the country. The country was finally going to be addressing and clamping down on its porous borders. Those people who thought that South Africa was just free for all, that anyone could get into the country, and nothing was being done about it must think again. The Department was going to be clamping down on this and measures were being taken to address this. The work that was being done needed to be applauded.
The Chairperson said that he wanted to get the attitude of the task team on three issues, particularly on the period that they were tasked to investigate. It was indicated that there were manual documents that the task team was not able to analyse. They had investigated documents from 2014 to date. The essence of the investigation was to draw attention to the entire system that was involved. He noted what Mr Roos and My Pillay had highlighted in terms of the tight network of these corrupt activities both inside Home Affairs and the external forces. The investigation identified countries where people had benefited from corruption. The Department had been struggling with the manual data from post-1994 to date. Was there a lot of work that needed to be done? The Committee should not zoom in on a particular period and build a narrative that suggested that it was only this period that there was this maleficence. Even pre-1994 there was a tight network. He noted that it had been characterised by Mr Roos as syndicates. The people who were part of these syndicates seemed to be comfortable within the system of Home Affairs. The recommendations and programmes of Home Affairs needed budgets and money so that the recommendations were implemented. The Committee knew that in other Departments there had been a cut in resources. What was the Department’s attitude? This was a key investigation that had been able to expose weaknesses in the system. What was recommended here the Department needed to be able to implement so that it was able to correct these matters. It appeared that the report may need to find a way into the security cluster. The report involved security measures. There needed to be collaboration in terms of cracking the process so that it became easier. The Department needed to identify certain issues that aligned with other Departments. The Chairperson invited Dr Lubisi and the task team to respond to the issues raised by members. The Minister would then be invited to comment. The Committee would then propose how to deal with the report.
Dr Lubisi noted that many of the questions were questions directed to the Department about what was going to happen, how the report would be implemented, and matters of disciplinary action. He would not attempt to answer those questions. The Minister and Department would be in a better position to guide on how those questions would be responded to. He thanked the members for the insightful comments and questions that had been put to the task team. It was heartening that the Committee had engaged with the report in this manner. He responded to the question on the percentage of visas that were fraudulent. It was difficult to answer. The task team did not delve too much into that question. It was very difficult to say. It was difficult to issue a general statement around the percentage of visas that were fraudulent. All the task team could say was that in the data reviewed from 2014 to 2021, it could only estimate that there were 45 000 fraudulent visas during that period. Whether this was the full picture the data needed to be tested. A deep dive investigation was needed. That would provide a much better picture than the task team currently had. This was purely provisional and could not be relied upon as a scientific figure. He responded to the question about study visas and whether the people who applied for study visas were actually studying. As a part of the application to obtain a study visa one had to submit an acceptance letter and other evidence from the university or institution where the person was studying. Without that the approval could not happen. When people faked documents from institutions was a different matter. That rested with the matter of verification. The task team did not get a sense of the data maybe because it did not look hard enough to answer that question. The task team did not delve into whether these people just got acceptance letters and just disappeared to not study afterwards. The task team did not look into that at all. The task team just looked at the fact that one of the requirements was that the applicants did need evidence from the institution they were claiming to want to study in. That was the only thing that gave the task team confidence that many of the applicants were studying. He noted the broader evidence of the number of foreign nationals in South African institutions did suggest that they probably were studying. He noted that Mr Shaik Emam raised a number of issues that resonated with what the task team had found. He responded to the question of what should be done to institutions that were involved in wrongdoing with regard to study visas. The task team did not find any institutions to be doing any wrong with regard to study visas. The task team did not look at that question at all. The task team looked at individuals who were applying for study visas rather than looking at the institutions. He thought that the rest of the questions were directed at the Department of Home Affairs regarding implementation plans and timeframes, criminal syndicates, what measures needed to be put in place, and other matters relating to how long it would take to integrate systems. These were matters that needed to be answered by the Ministry and the Department.
Prof Somadoda Fikeni, ministerial committee member, said that he would be brief in reinforcing what Dr Lubisi had already raised. It needed to be kept in mind that by the time all of these investigations were invoked, the situation globally and continentally was projected to be getting worse. He noted the global pressures, climate change, declining security, the reversal of democracy, and the issue of food security due to the war in Ukraine. By the time the work was done there may be a situation post-Covid-19 that has grown to be far more complicated and compounded than when the review of permit issues was started. The Department should be trying to solve what had happened and what was projected to be the worsening situation. Europe was tightening its own immigration. The US and other countries in the continent were tightening their own immigration, digitising, and modernising. He emphasised that this was not just an administrative issue. As the Minister often said, it was a multi-disciplinary, multi-departmental work that needed to be done. Home Affairs could do one part. If a person with one type of visa ended up working but the Department of Employment and Labour may not be doing the inspections then there would be situations where non-critical skills were listed everywhere, for example, the people in the security industry. Because of the complex nature of this, there might be a need to look at how different Departments and different Portfolio Committees converge to deal precisely with this multi-disciplinary nature of work. As the presentation indicated, there was one part that needed law enforcement. There may be one part where there were laws, but they were not enforced. There may be another part where there are laws such as the retirement visa where there were gaps. Then there was the issue of how all of these would be prioritised, sequenced, and resourced. That was the most critical element.
Mr Peter Bishop, ministerial committee member, responded to the question of the name of officials handed over to the Hawks. He reiterated what Dr Lubisi said. The task team had identified many names. It was important for the members to understand this was a review using data analytics that had flagged many anomalies in the data which the task team tested by looking at actual files to see whether the data that it was flagging as suspicious was actually correct. The task team found that. That was why the recommendation of the multi-disciplinary team was so critical. This needed to be looked at so that a proper case file could be built for criminal investigations to be handed over and for disciplinary actions to be done. The task team found a lot of areas where the data logs and the audit trials were actually switched off by officials or were totally erased from the system. That would make it difficult to use data to identify who was involved with what. That meant a physical review of certain of the files. The Department had prioritised certain matters that had been handed to the Hawks that needed urgent attention. The investigative team would have to look at the deep dive and start sorting out the issues that needed investigation, investigate them fully and hand that over to law enforcement for further action. He discussed the study visas. There was a lot of work to be done around that because there was no obligation in terms of the Act for institutions to report on the outcomes of studies by foreign nationals to Home Affairs. That may be something that needed to be looked at going forward. In 2016 when the directive for waivers was issued by the then Minister, the task team did not know how many of those candidates who applied to study actually only registered or registered, studied, and finalised. That needed to be reviewed to see whether any of those PRPs were legitimately issued. He discussed how the task team would deal with problems going forward. It would have to be a collaborative effort between Government and other Departments as had been highlighted and alluded to by the members. Firstly, the Department would have to get rid of the rotten apples. Secondly, the Department would have to tighten the internal systems and digitise. Then the Department needed to make it more difficult for these types of activities to take place. It would never be stopped in its entirety, but the Department would make it more difficult for people to just target the system with impunity, which the task team had found.
Deputy Minister Njabulo Nzuza said that this report had given the Department a chance to understand system deficiencies not just in terms of IT systems but also in terms of processes that the Department followed. It identified where the Department needed to make improvements to ensure that those things did not happen again. It also indicated where the improvement of the IT systems was required. Mr Pillay had dealt with the issue of digitisation. The Department ought to look at the segregation of the system of promotion when it came to visas. Where when an individual applied for a certain visa then it opened a gateway where the person was able to qualify for a certain number of visas. The Department needed to look at all visas separately and according to the merits of that particular visa. The Department needed to deal with the progression system of visas. The Department remained committed to fighting corruption. The Department was going to fight up until it got it right and got rid of all the bad apples in the system.
Minister Motsoaledi said that he would ask at least two people from the Department to respond to some of the questions. He noted the matter of ABIS. The Committee was aware of the ABIS programme that the Department had spoken about and how it was disturbed by the corruption that happened in SITA through EOH. The Department had brought this matter to the Committee through forensic audit. The Department told the Committee that it needed to get a new company to start because there was going to be no integration of systems without ABIS. He noted that the steps had been taken and charges laid. The Department did not wait for the report today. Immediately after picking up some of these issues, the Department took action.
Mr Thulani Mavuso, Deputy Director-General: Institutional Planning and Support, Department of Home Affairs, discussed the integration of systems. The Department had developed an eco-system to deal with the issue of systems not talking to each other. It was something that was raised as a huge risk to the Department. The Department intended to develop a National Identification System (NIS). The ABIS project was a precursor to the NIS. At the time the Department did not have the funding to develop that particular system. The Department was even funded by SAPS because of the requirements needed for biometrics in order for them to process criminals. SAPS agreed to fund the Department to develop that system. That progressed to be the NIS. The ABIS had been delayed as the Minister had indicated. The Department was currently in phase one, it was at 99% completion. The Department expected that by next month it should have completed phase one based on the company that it was working with. The NIS was supposed to get information of all persons in South Africa. This included citizens, permanent residents, asylum seekers, and tourists because the information would be portioned differently on the NIS. This was the system the Department wanted so that when matters arose as Dr Lubisi had presented then the Department should have just gone to one system if it had already been in place. He noted that in the area of immigration the Department had developed the Biometric Movement Control System (BMCS). On arrival or on the application for a visa when people took their biometrics, those biometrics were pushed to the NIS so that even if someone was a tourist, if they committed a crime or did anything, the Department should be able to identify that. If someone arrived in the country the Department put that information in the NIS as an asylum seeker. Tomorrow they could not claim late registration of birth or any other category because their first arrival in the country would have been digitally recorded. He noted that from 2014 onwards was when the Department started to digitise files through VFS. In the past, people used to apply for permits in the offices and those applications would be lost. The hard copy files were difficult to trace. Since the Department employed the services of VFS all the applications were digitised, were in the system and the Department was able to trace any application. The NIS and BMCS should be able to eliminate these issues. That was the ideal eco-system that the Department wanted to create in order to mitigate that particular risk that had been identified. The absence of this has led to a situation where some of the legacy systems were not decommissioned. They would operate side by side with other systems because of the lack of an integrated system. This was a very important report that propelled the Department to finalise this area because it was a quite vulnerable area where it was not able to have a single view of the client. This was the model that the Department had created. Immigration needed to be managed at the level of foreign missions where people applied. Immigration needed to be managed at the level of the port of entry as part of border control. Immigration also needed to be managed domestically at the level of enforcement for when it did patrols and check those who were refugees. Using biometrics, the Department was then able to find these people through the BMCS and the NIS. This was the eco-system that the Department wanted to develop.
Adv Conny Moitse Deputy Director-General: Counter Corruption and Security, Department of Home Affairs, said that the Department had already dismissed six officials in the past financial year in matters relating to the issuing of permits. There were four officials that were on suspension. There were officials going through a Departmental trial. She echoed the sentiments of the Minister that the Department was doing a lot of work in this space and there were a lot of changes that were going on in terms of consequence management. The Department had cases that it was investigating on hand.
Minister Motsoaledi said that the Department was going to complete phase one next month. This issue was delayed by the EOH process which the Committee knew about. To do ABIS, the Department would first have to migrate all South Africans who were on the National Population Register to ABIS. The Department had everyone’s biometrics and photos. That information needed to be migrated to ABIS in order to add facial recognition, iris recognition, and thumbprint. When Mr Mavuso said that the Department was 99% completed, the last time the Minister checked the Department had migrated 48 million South Africans into ABIS as part of this process. ABIS would have facial recognition and fingerprint. The manner of the corruption in Home Affairs was such that a South African would come in, write their names, and fill in their fingerprints but their photo was pushed aside when their photo was supposed to be taken. Then a photo of a Pakistani national was taken instead. Under ABIS that would not be possible because the fingerprint, the facial recognition, and the photo had to go together. The Department was looking forward to no longer having to investigate those matters because the system would not allow those situations to arise. Ms van der Merwe has said a mouthful. Things that would make someone cry. That the country was not for sale. He agreed with Ms van der Merwe full heartedly. There were South Africans who really believed that this country was for sale. There were attacks that the Department endured almost on a daily basis about human rights not being observed and that the Department was going against the law and that the Department did not want to integrate into the continent. Some of the people who were making those comments were beneficiaries of this system. For example, Mr Shaik Emam mentioned the issues of immigration practitioners and immigration lawyers who were unscrupulous people. Immigration practitioners charged up to R75 000 per individual promising them permits in the Department. The Department had done away with the system of immigration practitioners. The Department did not recognise them. No practitioner could come into the Department and apply for a permit on behalf of somebody because the level of corruption was very high. That had been stopped. Home Affairs had no legal backing to abolish immigration practitioners. While the Department did not recognise them, they still existed and people still went to them. These were some of the people who were attackers in the media. The Department had received a letter a few weeks back about an immigration practitioner who charged somebody R75 000 promising them a permit. The person wrote to the Department because they did not get the permit because the person did not qualify but they paid R75 000. The Minister saw that immigration practitioner attacking the Department on TV, calling himself an immigration specialist and an expert. The media did not understand the difference between these people. The immigration practitioner went on and said how the Department was doing wrong things but basically, the immigration practitioner was talking about his own livelihood. The Department was going through these types of attacks almost every day. The Department was busy charging people already. The Department was not waiting. The task team was recommending a multi-disciplinary committee. The Department was in the process of putting this committee together. The Department needed advocates, attorneys, data analysts, researchers, and other experts. Once the committee had been put together they would start preparing dockets. Some of the officials were clearly criminals. There were those where the Department needed to prepare a docket. Such dockets could not be prepared by officials in the Department, even for internal disciplinary because some of them were related to each other as colleagues. Immediately the multi-disciplinary committee would start preparing dockets. It would start tracing some of the people who needed to be deported. At one stage he mentioned on TV that he was going for the crocodiles and that he did not want to be chasing lizards. There were crocodiles within the system, people who were targeting the system on a daily basis and tried all sorts of tricks. Some of them were experts in ICT. The Department was targeting them, and this was why it wanted experts in the multi-disciplinary team in cyber security, in ICT systems. Some of the people the Department was targeting were not small names. It was a pity that the Department could not mention names today but very soon they would come to the fore. The Department would be going for them because the country was not for sale. The Department would never allow the country to be for sale. People came in and just did what they wanted to because there was no consequence management. There were now consequences. He assured the Committee that within a very short space of time there would be big names tumbling.
The Chairperson said that the Committee had now received the report. Members had commented and raised issues and advised on how certain issues would be handled by the Department. The Committee appreciated the work that the task team had done. The task team had identified areas that both the Department and the Committee may need to look at. He thanked the Minister for establishing this task team to address the issues that the members and public had on the outlook of the Department. The report exposed what members of Parliament and members of society had been having concerns about. The issue which was central was whether there was an appetite to respond to the recommendations and make sure that they were implemented. Collective responsibility needed to be taken to reshape the course of action within Home Affairs and work against external forces that were disrupting the work of the Department. The Committee would oversee that these matters would be implemented. As the Committee moves forward it may need to look backwards in terms of how the Department needed to go deeper into the issues that had already been raised, which started in 2014. A more detailed account needed to be given of what went wrong. There needed to be an intervention that assisted the Department to move forward. He noted the manual documents that had not been tested as legitimate in the system. He appreciated the comprehensive work and the intentions of the Department. When the multi-disciplinary team ventured into the Department it would further test the system and indicate whether it was indeed working. The Committee was taking the inputs of the Department. The Committee would monitor closely on the recommendations and their implementation. The Department would come back to the Committee in the third term and provide an update on the work that had been carried out already, informed by the recommendations. The Committee approved the recommendations. These were clear recommendations that needed to be implemented. The Committee also took note of the areas of legislation improvement that the Committee needed to interact with, that Dr Lubisi had highlighted. The Committee would also closely look at those areas so that it enhanced and affirmed or assist to consolidate the practicality in terms of the recommendations that had been proposed. It was clear that the Committee needed to work closely with the Border Management Authority, to look at their plans to implement the recommendations that had been presented. Prof Somadoda highlighted that it would be important to work with other Departments around this area, particularly within the security cluster so that areas which may be beyond the Department would be able to be covered up in terms of the work that needed to be put in place. The ICT system was quite an important area where the Committee and the Department had been interacting, including SITA. Areas that were not noted by the Department would be tracked, which were exposed as weaknesses within the Department. The Committee thanked the Minister and the team for giving the Committee this report. The Department would come back in the third term with a detailed plan of action that would have been already implemented. The Department did not need to come back and ask the Committee to approve a plan of action or timeframe. The Committee wanted the Department and the task team to provide progress and the difficulties that it would be confronted with in the course of action when the recommendations were implemented. One of the critical issues was the budget. The Department required resources to be able to sanction some of the recommendations. There would need to be systems within the Department to complement what Mr Mavuso had raised with the Committee.
The Chairperson thanked the members for having dealt thoroughly with the two items before the Committee. The Committee would closely monitor and track progress on the issues that had been raised.
The meeting was adjourned.
- DHA: Ministerial Committee Reviewing Permits And Visas
- Media Statement: Home Affairs Committee Makes Substantive Decisions On Electoral Amendment Bill
- Electoral Amendment Bill: Legal Opinion on Public Comments, Proposed Amendments & Committee Questions
- Electoral Amendment Bill: Deliberation Decisions & Outstanding Issues
Chabane, Mr MS
Khanyile, Ms AT
Legwase, Ms TI
Modise, Ms M
Molekwa, Ms MA
Motsoaledi, Dr PA
Nzuza, Mr NB
Pillay, Mr KB
Ramolobeng, Ms A
Roos, Mr AC
Shaik Emam, Mr AM
Tito, Ms LF
van der Merwe, Ms LL
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.