The Department of Home Affairs met with the Congolese Civil Society of South Africa (CCSSA), the Department of Home Affairs (DHA), and the United Nations High Commissioner for Refugees (UNHCR) via a virtual platform.
The CCSSA briefed the Committee on the issues facing legal and illegal migrants in South Africa. It requested the reopening of Refugee Reception Offices and improved efficiency of immigration services which will improve the lives of migrants. This engagement resulted from a memorandum the organisation submitted to the Speaker of the National Assembly. Members raised concerns about the presentation’s conflation of legal and illegal migration. They indicated that the concerns raised would be referred to the Department of Home Affairs to respond to.
The Committee Chairperson highlighted that Parliament and the Department are fully in support of any person or African brother or sister who enters South Africa if they fully recognise and appreciate the laws of the country. Like any other resident or citizen, when they go to other countries, the expectation is that they must adhere to the rules that govern that member state. South Africa has legislation and policies determined by the Department that must be implemented to the letter.
The DHA and the UNHCR presented the opening of refugee offices, the issue of statelessness, and the backlog project.
The Minister informed Members that it was difficult to say how many economic migrants there are in the country. No one comes to South Africa and states they are an economic migrant. They usually quote asylum laws because they know that that is in the Conventions and the Refugees Act.
The Deputy Minister said that the government needs to work on messaging that urges parents to register their children, even if they are going to be left with someone other than the parents.
He added that certain countries are dealing with adverse drivers that create negative conditions which force people to leave the country. People become asylum seekers because of human rights issues in their home countries. If countries of origin can also bear the responsibility of making sure that they deal with these adverse drivers, then the issue of immigration can also be dealt with. Immigration must be voluntary and not forced.
Members raised concerns about late birth registration and undocumented school children, migrants who are untraceable and unreachable because they have not updated their contact details, and the number of economic migrants vs asylum seekers and refugees in the country. The Members also asked questions about when the Cape Town refugee centre will be re-opened.
In addition, the Committee was briefed on submissions received on the Electoral Amendment Bill.
The Committee called for additional public submissions on the revised Bill after it made substantial changes. A total of 256 submissions were received. The Committee agreed to focus only on input that dealt with the specific clauses and issues advertised for public comment, and not the entire Bill.
The Chairperson welcomed everyone to the meeting.
Mr Eddie Mathonsi, Committee Secretary, said that on Human Rights Day the Congolese Civil Society of South Africa (CCSSA) marched to Parliament and submitted a memorandum. That is why the CCSSA is part of this meeting.
The Chairperson said that the memorandum was sent to the Speaker of the National Assembly, and she referred it to the Committee. The CCSSA was invited to speak to the Committee so that Members can listen to their issues. The Department of Home Affairs (DHA) is not going to respond to the presentation in this meeting. The CCSSA requested an audience and they have been provided with one. They will present and the Members will interact with them. The Committee will deliberate at a later stage on the issues that are raised in the presentation and will refer matters to the Department.
Presentation by the Congolese Civil Society of South Africa
Mr Isaiah Mombilo, Chairperson, CCSSA, made the presentation.
South Africa is not normally a xenophobic country. South Africa introduced an anti-migrant-isolation system in contrast to other countries, and South Africa prefers the integration programme to establish refugee camps. These decisions are in line with the spirit of Ubuntu. However, political statements and the violation of refugee and migrant rights are increasing. Between 2004 and 2008, the number of violations was very low compared to 2022, where it has become a common thing. Political will is the key to solving the fear caused by the anti-African movement.
The illegal status of immigrants is often caused by the services provided by the DHA and Refugee Centres. There is sometimes a large gap between the request of the asylum seeker and the final decision, which can take 10 to 15 years, during which that time an applicant can already have a family and a stable job. It’s easier for an applicant to return when s/he is a newcomer than after years of living in South Africa. When an immigrant’s application is rejected after such a long time, the children who were born in South Africa become illegal and they risk losing their education. The DHAs quality of service (speed; reduction in the waiting time for decisions; consideration of the situation of couples in which one of the parents is illegal; taking into account the situation of children; etc.) makes life more difficult for migrants.
Some of the requests made were:
-the reopening of refugee reception offices (RROs) across the Republic, and that the technological problems of the online application system are revisited so that the daily volume of online applications of refugees and asylum seekers can be effectively and efficiently processed
-Creating a safe environment for legal foreigners who are part of economic growth
-Making the Refugee Centers and immigration service more efficient because the huge delay of service increases the illegality of refugee and asylum seeker
-Negotiated terms & conditions for voluntary repatriation
The Chairperson said that there are a few principles that needed to be outlined so that there is an appreciation of the issues that Parliament is dealing with. South Africa is a signatory and participates in multiple international bodies that deal with refugee and migration issues. The Constitution governs South Africa. He cautioned that the Committee would listen to the issues presented and confer with the Department. Parliament and the Department are fully in support of any person or African brother or sister who enters South Africa if they fully recognise and appreciate the laws of the country. Like any other resident or citizen, when they go to other countries, the expectation is that they must adhere to the rules that govern that member state. South Africa has legislation and policies determined by the Department that must be implemented to the letter. He thanked the CCSSA for bringing this matter to their attention. He observed that the presentation mentioned the names of stakeholders. That may not be the Committee’s view to interact in that space. No South Africans should be xenophobic. We are all one. The principle of African unity is important but this should not work outside what governs member states. He reiterated that Members could comment on the presentation and matters will be referred to the Department.
Ms L van der Merwe (IFP) aligned herself with the comments made by the Chairperson. She thanked the CCSSA for briefing Parliament on their issues. These are valid and they have taken note of them. The report will be sent to the relevant stakeholders to have a look at it and comment. She found it heartening that the presenter noted that South Africans are not xenophobic. She believes that South Africa is a very welcoming country for migrants. She also appreciated that he noted that South Africa had not erected any refugee camps at the various points of entry, which other countries have done. Asylum seekers and refugees are welcomed. However, she was concerned as in the presentation two issues were conflated. One of these issues is the rights of refugees and asylum seekers. These rights should be affirmed for those who are within the borders legally. The other issue is illegal migration. The Committee supports the Department in ensuring that the rights of migrants who are within the country legally are protected and upheld. Laws exist to curb illegal migration and this is true of every country. She found it perturbing that they were conflating the rights of legal and illegal migrants. The groups that were mentioned have a right to protest when they see that there are people within the borders who are not compliant with our laws. The Committee supports the rights of legal migrants, but they are also concerned about those who enter the country and break the laws. All who are in the borders of South Africa should enter legally and should comply with the law.
Mr T Mogale (EFF) said that it is very disappointing to hear that they have not made sure that South Africa feels like a safe place for migrants. The political environment at the moment is highly charged with xenophobic sentiments which contribute to making South Africa a divided place and affirming artificial boundaries. It is unfortunate to hear some leaders in government making statements that contribute to a climate of fear amongst fellow Africans. The Minister is guilty of some of these kinds of statements. This cannot be accepted. South Africa has a terrible past and some people had to flee the country. They found refuge in these African countries. They cannot allow a situation where fellow Africans, who have fled their countries because of political tension, are not welcomed. The government is taking a “half stance” toward immigrants currently. The government is also cajoling the African leaders creating these difficult political climates. He offered an apology on behalf of the non-Afrophobic, non-xenophobic South Africans. They understand the situation of Congolese immigrants and will do their best to ensure their rights are respected.
Mr A Roos (DA) said that Ms van der Merwe had covered matters very well. There are rights and responsibilities in these cases. There is a gap between being able to engage in good faith and in many cases, this causes animosity. In the past, asylum seekers and refugees have gathered outside UNHCR offices and, despite being engaged with them, they refused to follow the law and created situations of animosity. There are a number of organisations that represent certain groups and there is a lot of value in trying to come together in a larger forum where government and these organisations can engage with each other. This issue is very emotional and it can be difficult to get figures and statistics. For example, a DRC refugee must get through two countries to come to South Africa. Yet, Uganda is next to the DRC and it has one of the best refugee systems in Africa. In a forum with many organisations, one can begin to answer questions such as why people are coming across several different countries to South Africa, where there are allegations of xenophobia and violence. Why are people still coming here instead of Uganda, for example? Anecdotally, their refugee and asylum seeker system seems to be very receptive. Such a forum will also allow them to address diplomatic issues. In the presentation, there is a desire for the government to re-look at voluntary repatriation and how that can be facilitated, yet there are also claims of internal conflict and dictatorships in the same country. One would think that it would be one or the other. He encouraged the CCSSA to engage with other organisations to try and get a broader voice and consolidate that voice. He understood the rights element, but migrants also need to consider their responsibilities. For example, when refugees and asylum seekers gather outside the UN, there is an engagement and yet they refuse to go. What is their role in ensuring that this doesn’t happen, and that processes are not abused? Migrants need to engage with these issues in a manner that is lawful and that doesn’t contribute to animosity. They need to get to a point where they can have a sensible dialogue based on facts and where representatives from multiple organisations are present and can share. They need to be able to look at who is coming to South Africa, for what reasons, how many applications are being rejected, and what diplomacy issues are not being resolved and prevent people from going back to their home countries, etc.
Mr K Pillay (ANC) said that he would have appreciated a discussion around the presentation, rather than the presenter just reading word for word from the slides. All Members have already received the presentation and it would have assisted them to have a lead about what the main discussion points were. The Committee pursues African unity, but respect for all member states is absolutely central. The Minister is not guilty of anything. He implements legislation approved by Parliament and informed by the South African people. All of the Refugee Reception Centres are open, except for one being renovated. The system is moving very smoothly. During Covid, South Africa had certain restrictions and had to close certain centres. The online system is working very well. Refugee children are allowed to go to South African schools. There have been many times where discussions have been had between the Department and the Department of Basic Education to ensure that children are allowed to attend.
Ms M Modise (ANC) noted the presentation. She shared the same sentiments as the previous speakers and they will send the report forward for more deliberations.
The Chairperson did not want the Department to comment on the report in this meeting. The presentation mentioned persons and stakeholder names and this may not be fully correct to discuss with the Minister. At a later time, the Minister will respond and the Committee will inform the Speaker on how the Department and the Committee interacted with the issues raised.
Presentations by the Department of Home Affairs on the opening of refugee offices, statelessness and the backlog project
Opening remarks by the Minister
Minister Aaron Motsoaledi said that the refugee offices were not closed for any political reason. They were closed due to Covid. They were forced to close the offices, which happened in many parts of the world. It was not because the Department wanted to close off the borders to any asylum seekers or refugees. The offices have been opened so he is surprised at the calls to open the offices. The issue of statelessness has caused a lot of confusion and it often gets distorted. They will define the concept and discuss the issues addressed with the UNHCR. There is a common belief that Home Affairs has a backlog in processing refugees and asylum seekers in the country. This is not true. There is no backlog for those coming into the country for the first time to apply for asylum. The backlog concerns those who have been rejected and have appealed. These people are processed through the United Nations (UN) Convention of 1951, the UN Protocol of 1967, the UN Convention of 1969, and the domestication of these international conventions. Under the Refugees Act of 1998, asylum seekers are processed. After this process, some people appeal. This process is over-elaborated in South Africa. This is why there is such a large backlog. They met with the UNHCR to address this issue. They agreed on a joint plan which is funded by the United Nations.
Opening of Refugee Reception Centres (RRO)
The presentation was made by Mr Yusuf Simons, Acting Deputy Director-General: Immigration Services.
The offices were closed for a period of two years due to the COVID pandemic. Over this period, the asylum and refugee permits were extended through a Ministerial Directive. In April 2021, the Department introduced the online solution to work parallel with the Directive. From 3 May 2022, all services resumed at the five Refugee Centres except for the Cape Town RRO. The Cape Town centre is awaiting the completion of the new office.
The Department is embarking on strategies to recover full services in a manner that reduces the possibility of overcrowding that include:
Continuation of the online extensions to reduce volumes of clients that need to visit offices
Increase capacity at RROs,
Prioritize the reopening of CTRRO to newcomers
The presentation was given by Mr Thomas Sigama, Deputy Director-General: Civic Services.
On 8 December 2021, there was a march to the Department by the Consortium for Refugees and Migrants in South Africa (CORMSA) to demand South African birth registration for children of refugees and asylum seekers. Against this background, the Minister engaged the UNCHR Assistant High Commissioner for Protection. UNHCR agreed that South Africa is not obliged to grant citizenship to every child born in South African territory to non-South African parents, as they are not a signatory to the 1961 Convention.
The meeting between the Minister and the Assistant High Commissioner of UNHCR also agreed that the practice of South Africa issuing a Record of Birth to children born on South African soil but of non-South African parents is correct. The record of birth should be presented to the embassy of the parent’s country of origin and it is their responsibility to issue a birth certificate.
UNHCR and the Government of South Africa agreed that a common statement on the definition of a stateless person would be published. This has not yet been done.
The presentation was given by Adv Zilpha Raphesu, Chairperson, Refugee Appeals Authority of South Africa (RAASA).
The primary mandate of RAASA is to consider all the appeals made against the decisions of the Refugee Status Determination Officers (RSDO). This backlog is not a result of capacity constraints and incompetence of RAASA, contrary to the popular saying. Every failed asylum seeker appeals their rejection outcome because the system allows it. The legislature has created an unending bureaucratic ladder of appeal/review processes which are highly abused by failed asylum seekers and their legal representatives.
The Department and the UNHCR agreed on cooperation aimed at eradicating the backlog of appeal cases and preventing similar backlogs from recurring through the provision of capacity support to RAASA. The total cost of the 4-year implementation plan with 36 Members is R146, 784,364 million. In 2021 RAASA began allocating files to Members for streaming and recommendation of appropriate adjudication approaches towards the finalisation of each case. There are currently 131 190 total backlog cases.
Presentation by the United Nations High Commissioner for Refugees on the opening of refugee offices, statelessness and the backlog project
The presentation was given by Mr Igor Ciobanu, Deputy Representative, and Mr Jesus Perez, Senior Protection Officer, UNHCR.
The South African government requested support to address the large backlog of asylum appeals. In 2019, UNHCR funded an independent expert to assess the situation and propose a plan. The Minister accepted this plan and in March 2020, a four-year project partnership (2021-2024) was agreed and signed with two goals: 1) to eliminate the existing backlog of 153 000 appeals and 2) to introduce mechanisms to prevent new backlogs from forming. The agreed project plan emphasizes the importance of file digitization to efficient decision-making.
Some of the successes of the Asylum Appeal Backlog Project include:
Great majority of new appeals officers are in post and based around the country
Engagement with UNHCR is open, positive and collaborative
Creation of a ‘Heritage File’ committee
Some of the challenges include:
Number of appeals decided to date remains low (450 decisions have been made, 284 incomplete files returned back to DHA)
Quality of interpretation is poor
Many files of interpretation are poor and must be sent back
UNHCR is encouraged to hear from DHA that Cape Town RRO – closed since 2012 – may soon reopen and serve the refugees and asylum-seekers of Western Cape and surrounding provinces once again.
UNHCR observed that in some RROs new asylum applicants are not issued with a Section 22 asylum seeker visa after registering their asylum claim. Instead, the permit is only issued once they lodge a notice of appeal against a first instance rejection. This can leave asylum seekers undocumented and at risk. UNHCR has raised concerns with DHA of reports of very high first instance rejections of new asylum applications, adding to the existing backlog.
The Republic of South Africa made a number of statelessness-related pledges in 2011, including with respect to the accession to the UN statelessness conventions. Although this pledge has not yet been implemented, South Africa remains committed to its implementation.
Ms van der Merwe thanked the UNHCR for supporting the DHA and the country. She felt very sorry for RAASA. The issue has been referred to as a backlog, but what it really is, is an untenable situation. There are issues with manual files, incomplete files, and the inability of RAASA to trace asylum seekers and refugees once they’ve integrated into communities. Yet they have to reach these appellants, as once RAASA reaches the court process, they will be found wanting. She is concerned that the system is failing. She is also concerned about the matter of endless appeals. A person seeking asylum is turned down, yet the legislation allows for continued appeals. Will the change in legislation actually deal with these loopholes? Many appellants can’t be traced. What is this percentage? Many of these refugees are economic migrants. What percentage of applications are economic migrants? RAASA said it has 25 staff members but it needs 36. When will these vacancies be filled? Recently there were discussions about people who cross the border into South Africa to access our healthcare services. The presenters mentioned that notices of birth are given to migrants. How many of these are issued per year? She has never heard the Minister make any xenophobic comments. She believes that the Minister seeks to ensure that he executes his responsibilities to the best of his abilities. The comments made earlier about the Minister are unfounded.
Ms M Molekwa (ANC) acknowledged the progress made so far and the effort put into dealing with the backlog. She hopes that in time the backlog will be an issue of the past.
Mr Roos said that the UNHCR’s contribution to South Africa has been immense. It is much appreciated. It is concerning that there are issues that cannot be solved because of updated contact numbers. He has travelled a lot and usually, people have to give their address at all times, update their information, and inform the authorities if they deviate from their travel plan. This needs to be considered from a legislative point of view. He does not know if there are any international law impediments against this. They cannot have such an onerous backlog and persons are not contactable by the authorities. This is something that really needs to be looked at. People need to be contactable and the government needs to know where they are. Costa Rica keeps track of exactly how many asylum seekers and refugees there are, right down to a granular level because they have a system that can track them. It is staggering that the Refugee Reception Office in Cape Town still isn’t open. It’s been four years. What is the timeframe now? How soon before it opens? Are there monthly payments going to the service provider? What is the extent of these payments? If it is going to make a significant difference, then it needs to open as soon as possible. The Minister said that there is no backlog on new applications. Is this true? The refugee status determination officers give a first instance rejection of asylum applications instead of a Section 22 asylum seeker permit. Why is this the case? In a previous meeting, he called for an e-verification system. Valid refugees and asylum seekers are entitled to certain health services, social development, etc.
How did these organisations certify the validity of these documents? Over a weekend, he was told that somebody had been arrested and that they had been incarcerated. An acquaintance brought their documents and they were made to wait until Monday for a DHA official to verify the authenticity of their documents. What processes are in place to verify documents and is there consideration for e-verification? Or does a Home Affairs official need to come during working hours and verify the documents? It seems like the Department is very behind in dealing with the backlog. Is this project going to be completed within four years? If not, what are the implications of this? How is this project going to be completed within this time period?
It is becoming apparent that they are not going to meet the plan to eradicate statelessness by 2024. In 2015, the Deputy Minister of Home Affairs said that Home Affairs is going to make screening more difficult for late registrations of births. Most of those who are registering births late are failed asylum seekers. In the school system, almost half a million South African learners are listed as undocumented. How will the DHA ensure that these children do not fall through the cracks? The late registration of birth process is onerous and people get to a point where they are 18 years old and are undocumented. As they become older, the chances of them meeting the requirement for late registration of birth are lessened. What is the Department’s plan for ensuring that South Africans who find themselves undocumented for various reasons do not fall through the cracks? The court has required that regulations be added to the Citizenship Act for potentially stateless children of undocumented migrants to be registered. Where is the Department with regards to these regulations?
Mr Pillay said it is important to give credit where credit is due. He acknowledged the progress that has been made with online extensions. There is a phenomenal number of 87 478 in a period of seven months. This shows that the Department is heading in the right direction. They should also learn from this experience how to deal with different service units. On the online service, he asked if the Department experienced any system challenges and how these have been dealt with in terms of the extensions. He wants to know the particular methods of tracking and tracing the almost 24 000 that still need to be finalised. Some have been sent back to offices and others have been requested to email further information or documents. He raised concern that the progress of finalising applications is very slow. How long did it take for the 364 hearings to be done? Out of the 364, there were only 195 decisions. What is holding the DHA back from making the rest of those decisions? Particularly since there was such a small number of hearings that took place. How long do they envisage that the digitalisation of files will take? They have scanned around 1418 case files. This is a small number. Can this process be sped up? How can the UNHRC assist or aid in birth registration, seeing that High Commissioner offices are not assisting the process? It is the responsibility of that respective country to issue a birth certificate to a child if its parents are from that country. These countries are not doing this.
The Minister said that answering the question of how many economic migrants there are is very difficult. No one comes to South Africa and states they are an economic migrant. They usually quote asylum laws because they know that that is in the Conventions and the Refugees Act. He is not sure whether the Department has a definite number. The issue of economic migration is an extrapolation. They are extrapolating that some people are here for economic reasons, not for the reasons that are outlined in the Conventions or the Refugees Act.
Mr Simons said that Mr Roos contacted him about the person who was arrested for not having their asylum documents on them. The verification system is available for all government departments but, similarly to the banks, the police prefer to call in officials instead of looking at the system and verifying documents that way. If something like this happens over the weekend, an official needs to go out there and verify the documents. This is a problem, but the verification system has been made available to the police.
Mr Mandla Madumisa, Chief Director: Asylum Seeker Management, DHA, said they do not have an outright number for the number of economic migrants in the country. The rejection rate for the asylum regime is 95%. The people who apply are making applications under the international Conventions which might mean that they are economic migrants or have reasons for migrating other than what is outlined in the international protections. The renovations of the Cape Town Refugee Reception Centre are currently being done by the landlord. They will make the payment once they take over the site, which is supposed to be 30 September 2022. The required payments are for things like the data points, the desks, etc. Their work will begin parallel to the renovations, and they are expecting to begin some of their own installations. They will engage with the Minister and the Judge on the official opening of that office. They will communicate accordingly once those dates are confirmed. They think it will be around early next year. A question was asked about asylum seekers who do not receive permits. He is hearing this for the first time, which is difficult to respond to. Once someone applies for asylum and gets a decision, they must get a permit. Once this has been done, the applicant can then decide whether they want to appeal the decision. If it is granted, the person is supposed to receive refugee status right away and they can apply for an ID or travel documents. They sometimes struggle with the system but it is not a prevalent issue. They are now using a simpler platform and the work is moving faster. It will sometimes be down, but the system is stable overall. In the more remote locations, the system is slower, but they are working on having a backup to ensure its stability is similar to that of other locations. Currently, they only establish after the day has ended that the person who was asked to come to the office has not been serviced. They assume that the person has not shown up. However, they do not want to rely on assumptions. They have instructed the service provider to develop ‘on boarding’, a solution where each client who enters the gate must have his letter of invitation scanned. They have also come up with the solution of thumbprint scanners, so that they will know which clients are inside the building at any given time. They will be able to track who has checked into the building and how many have been assisted. With regards to the digitisation of files, the files of the clients who ask for extensions or who come to the office are scanned and sent to RAASA to receive. When RAASA requests files, they are not given a physical file. They are given a scanned file instead. They are required to scan files and then take them to quality assurance. The files that are digitised and finalised have already had their quality checked. The number of scanned files is above 20 000, but they have not included this in the presentation as they have not been quality-checked or finalised yet.
Mr Thomas Sigama, Deputy Director-General: Civic Services, DHA, said that the Department had put screening committees in all of its offices to deal with late registrations of birth. The regulations indicate that if someone registers within 30 days, there are no issues. The part that requires the screening committee is for those that register after 31 days, and late registrations of birth (those who register after 15 years or more). Two committees have been formed at a provincial level. One deals with registrations that are over 30 days but are less than one year, and the other deals with those that are over one year. These committees work daily, and they are being monitored. They have 110 mobile units that are being used to address the issue of undocumented children in schools. They have over 391 health facilities that are connected to dealing with this. There is a plan that in five years, they have to increase the number of these facilities, especially for those registering a high number of births. The facilities registering fewer than 50 births a month will be augmented. They will have to ensure that every child visits their mobile units and facilities and is screened and issued with the right document. They are not able to provide the number of birth certificates that are given to the children of migrants right now. However, most of the figures are quite minor and they need to consolidate the numbers. They can provide the exact number to the committee once they find out.
Adv Raphesu said that the legislation allows for endless appeals. In the past, after the rejection of an application, the Department would issue a 14-day permit which gave the migrant time to leave the country. The courts were not happy with this. They did not think it was fair that a migrant, after living in South Africa for years, had to leave in such a short period of time. This has helped to create the endless appeals process. At the end of the day, this is how the appeals process works and no legislation deals with this issue differently. RAASA holds hearings to determine whether the person making the application is a refugee or an economic migrant. Other than this, they cannot determine whether someone is an economic migrant or not. When the claim is made, the person claims they are an asylum seeker. They should have the vacancies filled by October. In the past, when the digitalisation project started, they did not want to risk having incomplete files because of the adjudication body. They are provided with the files by the government. When migrants renew their Section 22 permit, they are also issued a date for a hearing and these files are sent straight to RAASA. Once they are given a date, the file should be ready on the other side. They have devised means to get hold of asylum seekers and are seeing the significant process in getting hold of them compared to when the project started. It is a challenge, but they are working on it. They have found ways to prevent people from not arriving and acknowledging their notice of hearing. The asylum seeker has to come through to extend their Section 22 permit. If they are required to come through and acknowledge receipt of their notice, they must go to RAASA before government will grant the extension. In terms of the rules of court, they employ a domicilium citandi et executandi whereby an asylum seeker would have used the contact details that they have provided the government with. It is the responsibility of the asylum seeker to obey the laws of South Africa, including informing the Department when their contact details change at all times.
They are working on a system where they are engaging with the asylum seekers and their community representatives for the seekers to come to RASSA and provide their contact details. This system has been working. She is unsure whether there is a backlog of new applications, but they will assign staff to deal with the new appeals so that there is no recurring backlog. They are hopeful that the backlog project will be completed within four years. Now that the obstacles that created the backlog are out of the way, they should be able to finish it on time. They are trying their best. With the new recruitment, they should be able to forge ahead. Initially, it may have seemed like the progress was slow because of the challenges outlined. However, they are now seeing progress. She received 20 decisions from the previous day that she needs to review. The process of review is done to assist members in determining whether their decisions are sound. These members are still in the process of training. Up until a time comes when the members can be fully independent, they use a review process so that mistakes are not made. They identify where members lack training, offer training, and brief them along the way. She is hopeful that they will see a great improvement in the future as most of the hurdles are out of the way.
Mr Livhuwani Makhode, Director-General, DHA, said that there is a clear timetable that has been set by Judge de Wet as to the re-opening of the centre in Cape Town. On 25 June 2022, she visited the centre, as well as last week. The site is being handed over to the DHA at the end of September to ensure that the installations can be finalised.
Mr Njabulo Nzuza, Deputy Minister of Home Affairs, said that the office footprint of the Cape Town office is a very good one and one that they should think of implementing elsewhere. The risk of completing the renovations is on the owner. It is an interesting model they need to investigate further for their other civic offices. They have just returned from a tour around the country where they promoted birth registration and urged parents to ensure they register their children within 30 days. This does not mean that after 30 days, the children can no longer be registered. Almost 840 000 have been registered out of one million births annually. This shows that progress is being made. One of the projects they took up when they came into office in 2019 was the issue of making sure that they have a strong presence in hospitals. This has helped them to increase their birth registration figures. Covid interrupted the Department’s financial capacity to roll this project out to more hospitals, but the situation is improving. When they go out and interact with communities, it gives them a picture of what is happening on the ground. They noticed that one of the root causes of late birth registration is the issue of parents, particularly fathers, who are not present. Many children are left alone at home with a grandmother and the parents disappear. The parents are not around to ensure that the birth of a child is registered. The government needs to work on messaging that urges parents to register their children, even if they are going to be left with someone other than the parents. Certain countries are dealing with adverse drivers that create negative conditions which force people to leave the country. People become asylum seekers because of human rights issues in their home countries. If countries of origin can also bear the responsibility of making sure that they deal with these adverse drivers, then the issue of immigration can also be dealt with. Immigration must be voluntary and not forced.
The Minister said that the digitisation project is very important so that digital files can be created and organisations like RAASA do not have to go through what they are going through now. It isn’t just RAASA that deals with this, but other civic centres where people change their name or marital status and this is usually a nightmare to do. If one looks at the various comments made by the Committee and by Dr Lubisi’s team, recommendations have been made to amend the legislation so that the endless appeal process can be dealt with. The courts have told Adv Raphesu that the government has made a bureaucratic ladder of appeals and has allowed people to climb on it. The immigrants holed up in the Methodist Church in central Cape Town had ringleaders. One of these ringleaders is still in jail and is awaiting trial. The other two were deported after 13 years in South Africa and during these 13 years, they were climbing this bureaucratic ladder. They did not need any international protection. They were just using this as an excuse to be in South Africa. This was proven true when the Magistrate decided that they should be deported. One of them has returned home and has formed a political party. He clearly cheated to be in this country. A person who needs international protection cannot go back to their home country and form a political party. The bureaucratic appeals ladder doesn’t help anybody, it just complicates matters.
He thanked the Members for noting that he had been accused of something unfounded. Sometimes “missiles are thrown against you for reasons unknown.” He has not done anything wrong. He is simply applying the laws of the country without fear, favour, or prejudice. If he is misapplying the law, there are remedies within the South African legal system. The present backlog is not on new applications. It has been caused by appeals. If a backlog on new applications has been created, it is a result of Covid and is something that can be quickly fixed. There is an e-verification system and the police did not have to put that person in jail for the whole weekend.
There was a similar situation at Diepsloot and there was uproar. A journalist called him and asked if there needs to be a national dialogue around whether immigration and police officers could ask anybody for documentation. They ambushed the President and said that this is an old apartheid method, as one police officer asked somebody to give the word for ‘elbow’ in Xitsonga to see if they were South African. This is not DHA policy. They have a 2010 legacy project where police have the right to stop anybody and ask them about documentation. It does not have to involve the production of physical documentation like during apartheid. People do not have to walk around with their documents in their pockets. But it does mean that people can be checked occasionally. They can phone a 24-hour service provider and all police officers must know this. They can prove that they are there legally through the National Population Register or the NIIS, which can be done on the spot. It is a pity if someone is arrested and DHA officials have to come and check their documents. This should not happen. The backlog project should be finished within four years and they are trying their best to complete it within this timeframe. It is being monitored very closely. If they realise that they are not going to make this deadline, they will amend it accordingly.
The Deputy Minister has clearly outlined the problems that they have with documenting people, even South Africans. They have opened centres in hospitals to do this and have opened mobile centres. However, this issue is also informed by social problems. He is not giving an excuse, but providing a view of what is happening socially. He once went to Eldorado Park, where they set up mobile centres and many people came. The service is clearly needed. One of the boys that came had won a scholarship or a competition to go to the US for soccer, but he couldn’t leave because he didn’t have a passport. The mother could not be found. The people who approached the Minister were so concerned about this boy’s future that the Minister spoke to the police and immigration officials to go and find the mother. They found her and brought her in. While she was in the queue, she disappeared and could not be found. The boy was very upset and they had to call social workers. This often occurs when children cannot be documented because of their parents. Some parents do not care or have particular social issues like alcoholism and addiction. They are trying their best to deal with these issues. The issue of ambassadors helping their nationals get birth certificates is an issue they raised in their high-level meeting with the Deputy Commissioner for Protection. They have made six or seven agreements. These agreements say that United Nations will convene a meeting with all ambassadors in South Africa to discuss this matter with them and ensure that these countries eventually take responsibility for their nationals. The burden shouldn’t be on South Africa’s shoulders alone. The foreign countries also have a role to play. He is still waiting for the United Nations to convene this meeting, which he would appreciate very much.
Mr Ciobanu said that during a high-level dialogue, there was a discussion regarding the involvement of ambassadors and the documentation of newborn babies. They remain committed to this issue and have meetings with the regional bureau to organise these meetings and discuss issues pertaining to the documentation of children. They are dealing with a number of abuses of the refugee system. This is a phenomenon that is happening, from one side. On the other side, if they are a genuine person who is protected by South Africa, this may create difficulties in approaching embassies for documents because they are requesting international attention. In any case, a meeting will take place. They will try to do it before the end of the year. They had a meeting with the Director General of Home Affairs and they discussed a national plan. They will continue with these discussions. He thanked the DHA for the positive interactions documenting those who want to return home. They have repatriated 168 people to the DRC and are currently discussing with the Burundi office to repatriate 200-250 people.
The Chairperson thanked the DHA and the UNHCR for their positive work and progress. The officials must not the issues that were not properly answered as the Committee will be following up on these questions. They will also do walk-ins of the Refugee Reception Offices to note any issues. Turn-around time is critical but he is confident in this because of the presentation. The Committee will follow up on some of the issues raised today.
Submission Summary on the revised Electoral Amendment Bill
Mr Adam Salmon, Content Adviser, presented the summary of new submissions. The Portfolio Committee on Home Affairs called for additional public submissions on the revised Electoral Amendment Bill A-list (B1A of 2022) on 6 September. A total of 256 submissions were received. Several organisations made submissions, including 70s Group, Centre for Societal Advancement, Civil Society, Defend Our Democracy, and Dear South Africa.
The submissions stated:
Defend our Democracy
This organisation believes that the fundamental problem with our current electoral system is that members of Parliament are not chosen directly by the people. They want a system that allows the electorate to directly elect representatives and to be able to directly hold them accountable for decisions they make and the oversight they conduct. Parliament must reshape the electoral system in the interest of the public, through electoral reform that is credible, fair, and inclusive, and that promotes greater public accountability and responsiveness from elected representatives. The current Bill as it stands, and the system that it proposes, have not been tested anywhere in the world before. The Bill is complex and does not result, in general, in proportional representation. It goes against the underpinning of the democratic and constitutionally prescribed principle of equality where every person’s vote is of equal value. The current Bill privileges political parties and further disadvantages independent candidates by making them compete on an unequal footing with political parties. This submission was endorsed by 56 organisations.
Independent Candidates Association
This organisation believes that the bill as it stands is fundamentally flawed. Clause 31(B)(3)(a) ensures that vacancies that have been created by independents are filled by a recalculation. The current amendment bill fails to pass the test of constitutionality and fulfils the Constitutional Court’s sentiment that the vote of each citizen is a badge of dignity and personhood. Clause 57A Item 1 and Item 5 of Schedule 1A result in the quota for an independent candidate to be awarded a seat being higher than for a party. This violates the right to equality. This violates the principle of proportionality and the calculation of seats in the NA appears to disproportionally favour large political parties.
One South Africa
The Bill proposes that a completed prescribed form must be attached to the nomination of an independent candidate confirming that the candidate has submitted names, identity numbers and signatures of voters who support the candidate, totalling at least 30% of the quota for a seat. The figure that has been proposed is unfair. Based on the figures of the last political election, political parties are only required to obtain 1000 signatures in comparison to the 12 900 signatures required by independent candidates. This is an unfair differentiation as the signature requirement is supposed to serve the same legitimate purpose for all those contesting elections. Additionally, the Bill proposes that vacancies for independent candidates are filled through a recalculation. It is unconscionable that a Bill would propose a recalculation method that could potentially result in an independent candidate being replaced by a political party. This is a form of disenfranchisement. There should instead be a running mate system, whereby an independent candidate can nominate a potential replacement before the election.
The Chairperson appreciated everyone who made submissions. The closing date for submissions was 16 September 2022. They need to be firm in their process. They are not re-starting public hearings. They asked for submissions on certain issues outlined in the advert deliberated by the Committee and informed by the oral and public engagement. The stakeholders engaged with the Parliamentary legal service, content advisers, counsel, and these engagements were related to the Minister. He fully agrees that they should draw on all submissions and put them into one space. They need to align these submissions with what the Committee has resolved to be a process to solve public submissions which closed on 16 September. He is emphatic on this issue. They need to be focused on the point that the House has directed them to do with this extension of submissions. He is not suggesting that they become closed off to any view that has been expressed in this meeting. However, when the Committee has to deliberate, it must have those standard areas it has already dealt with and agreed to. It is clear that they may not deliberate on these issues today as other Members have already left the meeting due to network issues or the house sitting that is about to start.
Further, they are pressed for time. They need to deal with this Bill, and present it to House (National Assembly), and the NCOP also needs to be given the chance to interact with it. They cannot deliberate on these submissions in this meeting. He asked if they could request an extra day to deal with this matter so that they deliberate and work on the adoption of the Bill. He is seeking proper guidance on the way forward with this process. They also need to interact with the various stakeholders mentioned and the team that advises the Minister to have a fair look at the issues raised.
Mr Salmon said that he has just received an additional submission from Dear South Africa and will include this in the summary before sending it to the Members. There is also a provincial legislative programme to deal with the submissions. They will meet with the stakeholders, DHA, and parliamentary legal services to respond to the submissions. He will provide a full submission summary to Members.
The Chairperson said those who sent submissions after 16 September should not be considered. The Committee should also only consider submissions that respond to the Committee’s request. They cannot deal with other issues that have a source outside the Committee and what it decided to re-advertise.
Mr Roos agreed with the Chairperson. It would be helpful for the summary to be aligned with the different areas of the changes. It has been presented as being from different institutions and organisations. It would be more helpful if the summary outlined the advertised changes, and then what the submissions are on these specific changes.
Mr Pillay agreed. They need to be mindful of time. It was a lengthy presentation and there were many submissions. It must allow for Members to be able to go through the summary and understand it, and then be able to deliberate on it. They need to finalise the Bill. They also need to stick to the clauses that they spoke about in the Bill. During the processing of the Bill, they made substantive changes, hence calling for more submissions from the public. They cannot go back to the entire Bill, they can only focus on these substantive changes and clauses.
The Chairperson concurred. They will inform the Members that were not in the meeting. He thanked all who were present in the meeting.
The meeting was adjourned.
- Media Statement: Collaboration Between DHA And UNHCR Critical In Eradicating Asylum-Seeker Backlog
- Submission Summary on Revised Electoral A/B [B1A of 2022]
- DHA Statelessness Presentation
- DHA: Refugee Reception Centers
- UNHCR Presentation
- LHR: Statelessness in SA Presentation
- LHR: Refugee & Migrant Rights Programme
- DHA: Appeals Backlog Presentation
- LHR Submission
- Congolese Civil Society of SA Presentation
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