Border Management Authority; Afghan refugees; Muslim Marriages Bill; with Minister
07 March 2023
Chairperson: Mr M Chabane (ANC)
The Border Management Authority becomes a standalone Schedule 3A Public Entity as of 1 April 2023. It
key outcomes are to:
- Secure borders that protect national interests and enhance national security;
- Enhanced trade and socio-economic development;
- Strengthened cooperation with stakeholders within the border management environment.
- Ensure institutional excellence through good corporate governance and ethical leadership.
Committee members raised concern that nothing was mentioned about the coastal border guard. This has a massive economic impact as vessels switch off their transponders and plunder the ocean and disappear. They asked about the projected timeline for the one-stop border posts and the outstanding concerns encountered during consultations with staff who will move from four other departments to the BMA.
The Minister of Home Affairs gave a briefing on the 22 Afghan nationals seeking asylum in South Africa.
They travelled by bus through many countries – stating they are holidaymakers – but on arrival at South African border they claimed asylum. The port officials denied them entry. It was taken to court and the judge ruled that according to South African law, their asylum seeking status should be accepted and they be admitted. The Department of Home Affairs is seeking legal advice on appealing this.
Lastly the Minister gave feedback on the desirability of the Registration of Muslim Marriages Bill which is a Private Member's Bill. The Ministry believes that what Bill sets out to achieve can be achieved through the new Marriage Bill drafted by the Department and he provided reasons.
Minister of Home Affairs overview
Minister Aaron Motsoaledi said the Border Management Authority will become a standalone Schedule 3A Public Entity as of 1 April 2023. Since its establishment, the BMA has been a branch under the Department of Home Affairs. This meant the BMA Commissioner was reporting to the Minister and Director General, in the same fashion that Home Affairs branch managers do.
On 1 April 2023, this will change as the BMA will be controlled by ten Ministers who will form a statutory body to meet at least four times a year. This body will be chaired by the Minister of Home Affairs and supported by a technical team chaired by the Commissioner. The other nine Ministers controlling the Authority will be those of Health, Trade Industry and Competition, Police, Finance, Agriculture and Land Reform, Environmental Affairs, Fisheries, and Forestry, Transport, State Security, Defence.
This briefing will serve as a route map of how far the Authority is, highlight the challenges faced and provide an overall outlook.
Border Management Authority briefing
Dr Mike Masiapato, BMA Commissioner, said the BMA’s vision is to be a world-class integrated border law enforcement authority partnering for a safe and prosperous South Africa. This vision has been developed with all key stakeholders, including the four government departments that will be performing frontline work.
Its mission is to be a credible provider of highly efficient, integrated, well-coordinated, and technology-driven border law enforcement services that contribute to national security and socio-economic development by inculcating an ethical culture that empowers teams for service excellence. Key to the Authority's mission is being technology driven.
The key outcomes of the Authority are to:
- Ensure institutional excellence through good corporate governance and ethical leadership.
- Secure borders that protect national interests and enhance national security;
- Enhanced trade and socio-economic development;
- Strengthened coordination and cooperation with local and international stakeholders within the border management environment.
The breakdown of posts by salary level for immigration functions is mainly made up of Immigration Officers that will be on the ground at the ports, making up 79% of the posts.
The Department of Environment will bring in a total of 14 officials to the Authority, this is because there is no way South Africa can be protected from a biodiversity security point of view with only 14 officials. Most of the Biodiversity Officers are situated at OR Tambo International Airport, leaving the rest of the jurisdiction vulnerable.
Port Health is largely comprised of Environmental Health Professionals, the Authority had to ensure that the existing portfolios are translated into the BMA structure, whilst making sure all positions are accounted for.
Agriculture, Land Reform, and Rural Development Department officials coming into the BMA structure are predominantly Agricultural Food and Quarantine Technicians. These officials at the port that will ensure the quality of food at the ports for export fit into the export and/or import destination requirements.
The Authority had to do some technical work to ensure the facilitation of the Proclamation No 86 of 2022 which brought the BMA Act into operation with the exception of about 10 sections. The Ministers, Directors-General, and Chief Financial Officers of the four Departments signed the joint submission on the Minister of Public Service and Administration determination of the exit of functions and resources from the four departments to BMA in December 2022. The DPSA Minister then approved the determination which was submitted to National Treasury for the reconfiguration of the 2023/2024 Budget for the shifting of R1.1 billion from the four departments to BMA and another allocation of R250 million to BMA.
Two rounds of staff consultations were conducted to relieve concerns expressed by staff moving from those departments into the Border Management Authority. These were attended by 1633 employees across South Africa, with only 306 officials who were not in attendance. The Authority will make efforts for one-on-one consultations with those that missed the consultative engagements. The integration agreement complied with the Labour Relations Act on the transfer staff in terms of sections 197 and 189. Transparency has been a key driver in the integration of all staff members coming into the Authority.
As part of the integration process the Authority had intensive interactions with Labour. The agreement was union membership and representation remains for all who will transition into the BMA.
In line with its outcomes, the BMA has a five-year target to ensure:
- The realisation of an Integrated good governance framework for the BMA established
- A fully realised Intelligence and risk capability established and implemented
- Six priority land ports of entry functional as secure trade- and travel-friendly one-stop border posts
- Eleven agreements with stakeholders signed and implemented.
The BMA has developed policies ranging from a Human Resources Strategy to Information Communication Strategy. The key was to ensure the integration of jobs and ensure they are not in silos. This is in line with the refined standard operating procedures.
From 1 April 2023 onwards BMA in managing the transition will include:
– Induction and training of all staff members on law enforcement approach,
– Activate shared service arrangement with DHA (financial, asset, facilities, legal);
– Implement the Easter Festive Season Operational Plan from 5-11 April 2023;
– Placement of staff into BMA permanent structure and harmonisation of their Conditions of Service;
– On-boarding of the additional 21 Border Guards;
– Finalising branding of transferred and newly procured assets.
Noting the progress to date, there has to be a launch date where the Minister of Home Affairs together with the Chief of the Armed Forces will launch the third law enforcement authority in the country where commissioning and ranking will take place. This is in line with section 199(3) of the Constitution.
Afghanistan Refugee Matter: update
Minister Motsoaledi explained that in August 2021 the United States announced its pull-out from Afghanistan after a 20-year presence. This resulted in the displaced Taliban returning to take over governance of Afghanistan. The US announced its justifiable worry that the Afghans working with the US governance for 20 years might be victimised by the Taliban and face possible persecution. The US stated it would be important for these officials to be relocated to the US where they will be given permanent status. This information is common knowledge.
In September 2021, to the country's surprise, a letter was received addressed to the President of South Africa, copied to the Minister of Home Affairs, Director General of Home Affairs, and the Minister of International Relations and Cooperation. The letter from a Roodepoort law firm stated they represent a US based non-governmental organisation (NGO). It informed that there are two plane-loads of people from Afghanistan who are in Pakistan en route to South Africa. SA is requested to facilitate their entry into the country, and South Africa must not worry about the cost for food and living conditions as the US NGO would incur those costs. All that SA is to do is find a place for the Afghans to stay as the duration of their stay is unknown, and some of them may be en route to the U.S.
The letter proceeded to lecture South Africa on its international obligations and the South African legal framework including the Constitution. The SA government was instructed to consult with the Pakistani government and inform it to facilitate the movement of these people from that country into South Africa.
Of course the Executive took offence and the matter was discussed with the Minister of International Relations and Co-operation and there was a refusal to further consider the contents of the letter. A statement was issued stating South Africa's discomfort at the matter and refusal to heed the letter contents.
On 15 February 2023, the Immigration Head of Beitbridge received a communique from another law firm in Melrose Arch, that was different from the 2021 letter. The letter simply stated that the firm is representing 22 clients – no mention of names or nationality – who will soon approach the Beitbridge border pos. The official was requested to facilitate their entry visas in terms of section 23 of the Immigration Act as asylum seekers.
This approach to asylum application the border officials are not used to as they are used to asylum seekers who are approaching the border running away from somewhere. An asylum application preceded by a letter from a huge legal firm giving instructions on what must happen was a first of its kind.
Indeed on 16 February 2023 a bus arrived at Beitbridge carrying 25 people, three of whom were American nationals who said they were part of an NGO. It is important to state that based on the documents received, these people were not stated to be part of the original 126 people mentioned in the 2021 letter.
One of the three Americans stated they are applying for asylum. The official was surprised why an American would apply for asylum; this was a first. The official asked questions and the Americans then stated they were applying for 22 Pakistani nationals on the bus. It was then realised that they were a part of the 15 February letter. One of the English-understanding people was requested to come into the port of entry where the person was carrying an Afghan passport that had a multi-entry visa into Zimbabwe for a 30-day period.
This raised the curiosity of the port officials and the Zimbabwean authorities confirmed the authenticity of the visa, stating that the people came from Afghanistan via Pakistan and Qatar and then into Zimbabwe – stating they are holidaymakers. Hence the 30-day visa on arrival.
Minister Motsoaledi noted the visa-on-arrival concern that had been raised last year in the Committee. South Africa easily issues visa-on-arrival for Europeans but in return these countries fail to do so for African nationals. At this stage South Africa does not issue visas on arrival; this is a process under discussion.
Be that as it may, it was surprising that a holidaymaker who went through all these countries and was even noted as a visitor in Zimbabwe, was now an asylum seeker. The port officials denied them entry. The following day they came back to the same port, armed with a court order stating they must be allowed into South Africa as an interim measure to allow them to make an asylum application. The court order stated a return date for the matter was 7 March 2023.
This was alarming for the department as no papers were served to the department. it appeared the papers were served to a port Official’s email. By the time this was seen and sent to Head Office by the port official, the matter had already been heard in court and the foreign nationals were granted an order to enter SA.
Fortunately, in the court order the judge wrote that the Department of Home Affairs is given 24 hours to come and anticipate the matter in terms of Rules of Anticipation. DHA took advantage of this ruling.
The foreign nationals insisted the order be implemented and said the Minister was in contempt of court for not allowing the order to go through. However, the judge did not agree, saying the best the court can do is to move the 7 March date to 20 February 2023.
On 20 February there was a court hearing and the judgment was released on 28 February 2023, which confirmed the first order for Home Affairs to allow the foreign nationals entry to apply for asylum.
During this period, the lawyers produced a document written in Arabic. The lawyers said it was a warrant from the Taliban. The Minister could not recall if the warrant was for arrest or not. The Department argued that as the document is not even translated nor authenticated, it cannot be accepted. According to the understanding of international law, the production of a foreign document must be translated into the official local language of the country it is submitted. In terms of the Vienna Convention, it must be authenticated at least by the Department of Foreign Affairs of the country of origin. The judge did not seem to budge on these requirements, stating that authenticity will be argued during the asylum application process.
Another issue raised in court which the judge declined as it was not contained in the affidavit was that the foreign nationals went into Pakistan and were followed and attacked by the Taliban, hence they left Pakistan.
The Department issued a statement that it will abide by the court’s ruling. Subsequently, after consulting various state stakeholders, it was clear that numerous people were not happy about the Department's concession to abide the court’s ruling and the expectation is to appeal the judgment. This is due to the fear that anyone from any part of the world who is fearful can run to the nearest South African border.
The Department wishes to seek external legal advice but it must start with the State Attorney. This takes time as it is a procurement process and as such to date, DHA has not received legal advice.
As it stands the foreign nationals’ 30-day entry visa into Zimbabwe expired on 19 February 2023. The Department understands that somebody in the US Embassy in Zambia arranged for them to go to Zambia on a visitor’s visa. This is where they are believed to be.
Last week the public engaged with the judgment on SAfm radio and the representing lawyers were asked why the foreign nationals chose South Africa to seek asylum after they travelled to so many countries. The response was they had studied all the laws of these countries visited by foreign nationals, and it appears South Africa is the easiest to enter. The caller asked why did they not seek asylum in the US as they were serving them for 20 years. This was the first time the Minister learned that the US refused entry of the Afghan nationals – no documents had stated this information.
The Chairperson asked BMA to elaborate on the auditing process with Auditor General South Africa (AGSA) as the Authority shared the financial management services of the Department of Home Affairs.
On the Afghan matter, has DHA or law enforcement authorities profiled the 22 Afghans wanting to enter SA? Was there confirmation on where they are? What are the prospects of it appealing the court ruling?
Ms M Molekwa (ANC) stated that considering the upcoming Easter festivities and cross-border movement that comes with it, will BMA be fully operational? Will the outstanding administrative processes not hamper the operations of the Authority?
Ms A Khanyile (DA) expressed appreciation for the great work done by the BMA team. What are the projected timelines for the one-stop border posts? What are the outstanding concerns encountered during the staff consultations, which could be a challenge to the people migration planned for April 2023?
The Minister's report is noted. It leaves a lot of unanswered questions particularly if they can masquerade as holidaymakers in other countries and suddenly on arrival at the South African border, they seek asylum. Is the Department able to furnish the Committee with details of their whereabouts?
Ms L van der Merwe (IFP) expressed concern and irritation over the blatant abuse of South Africa, South Africans, the Minister of Home Affairs, and the autonomy of South Africa as a whole. The NGO running to court to compel the law-based actions of the Department is infuriating. The American NGO telling South Africa about laws is upsetting. As it was not South Africa that was involved in a war in Afghanistan, surely, the US should take refugees emanating from Afghanistan. Will the SA government consider engaging with the US Ambassador to South Africa?
Noting the procurement issues for legal assistance, can the government not – on an urgent basis – be allowed to deviate from the procurement process to get the best legal support?
If the appeal is lost, how long does the Department think it will take to assess if the 22 foreign nationals are legitimate refugees or not, as it is known the system has a backlog? Will DHA be able to start the work now possibly, and use it for the Department's legal case?
On foreign nationals coming to South Africa due to its easy law, Ms van der Merwe noted the Department publicly saying South Africa might seek to withdraw from the Convention on Refugees and review citizenship, immigration, and refugee protection laws. What are the expected turnaround times?
On the BMA, Ms van der Merwe wished the Authority well and expressed the wish for South Africa to be able to manage immigration well, as the country has failed to do so since 1994. She asked these questions:
(i) The budget reportedly required R8 billion but the current budget allocation is R1.1 billion. What is the thinking on how this budget will be sourced considering the constrained environment SA operates in?
(ii) There is endemic corruption in the system when it comes to borders. How will the Authority be dealing with individuals that will be working there and are possibly involved in corruption? Is there going to be a review of individuals and an audit done?
(iii) Where will the immigration inspectorate function be incorporated into the BMA?
(iv) What is the stated protocol between SAPS and BMA regulations on crime prevention?
(v) What role if any will BMA play in fixing the porous borders between South Africa and Zimbabwe?
South African internal enforcement on border immigration is lacking. For example, Police Minister Bheki Cele recently mentioned the prevalence of foreign nationals and illegal migration, and how it impacts crime statistics. News reports have also been seen of Bangladesh nationals in human trafficking rings. Whilst the BMA is getting operational and South African borders are being fixed, what is the thinking on what will be done going forward to identify undocumented foreign nationals and ensuring illegal foreign nationals are deported to their countries?
Mr A Roos (DA) was still unable to determine why the Afghan refugees are being brought to South Africa via Pakistan, Zimbabwe and Zambia. The porous borders are indeed making South Africa attractive for illegal activities, and these need to be urgently resolved.
As legislators, there is a need to stay level-headed and see why the court allowed Afghan nationals into the country. The court simply told government to apply its laws; it is crucial to understand the local laws.
Section 30 of the judgment stated that the Home Affairs officials exceeded their discretion to refuse entry to an asylum seeker, based on South African regulations. The court said the port official 'created' the security risk ground as a ground for refusing entry, which is not provided for.
There is a 2001 North Gauteng High Court order which holds the use of the 'first safe country' principle. There is no first safe country principle in international law and the local courts have also prohibited the use of it.
The principle obliges the country to individually assess an asylum seeker before sending them to a third country. As much as there is no general first safe country principle, some countries have implemented specific treaties or legislation to prevent abuse of the system. An example is the European Union Dublin Convention, the Canada-USA third country agreement with the Americas, or Australia's third country principle. Even in these cases, the states are still obliged to carry these principles in a manner that protects the rights found in international law.
There is a need to look at the legal frameworks, as foreign nationals are granted entry to South Africa on a technicality that the court correctly ruled that those persons needed to be able to come in. Yet something is wrong when persons are criss-crossing several different countries to come to South Africa and seek refuge here.
Mr Roos appealed to BMA to not just focus on Beitbridge. For instance on the eSwatini side it takes about five minutes to come into South Africa, yet from South Africa into eSwatini it is taking about 40 minutes. When people try and take photos, officials to threaten them and tell them to delete the photographs. Lebombo border has similar complaints about the other side being much faster than the South African side. With complaints about generators and only one official available to assist. BMA must look into addressing these challenges. How much has been spent on BMA to date? It is important to understand what the public is getting.
What border management roles remain in the Department of Home Affairs organogram, or have they all gone to BMA?
There is still nothing mentioned on the coastal border guard, yet there is a massive economic impact, with Chinese vessels which switch off their transponders, go into the South African waters to plunder the ocean. There is a massive cost in terms of environmental impact, tax revenue and job losses. It is the South African fisherman who is at the end of the day subject to tighter fishing quotas. There is a national fishing maritime strategy that says SA will incrementally procure ports and coastal and oceanic domains. Can the BMA Commissioner take the Committee into confidence about what the incremental operationalising is going to look like and when it is going to start?
The Commissioner mentioned unions – what is stopping unions from closing borders at will?
Mr B Pillay (ANC) asked BMA for the projected timelines for the one-stop border post, and what is the regional structure of the BMA organogram.
Seeing there are several Ministers involved, will BMA still report to the Home Affairs Portfolio Committee?
On the recent developments with the Afghan refugees, the Minister has been doing all he can do about the matter. It seems South Africa is now a free for all, and South African laws need to be strengthened. Can the Minister share how these laws will be strengthened as South Africa needs to protect its citizens?
The Committee must get a proper and full briefing on how immigration processes can be tightened and the protection of citizens and the country as a whole is achieved.
Border Management Authority response
BMA Commissioner, Dr Mike Masiapato, replied that the shared services model between DHA and BMA is about attaching assistance from the Department. The Home Affairs person will be deploying a function based on BMA processes. The audit will be on the protocols and prescripts followed by BMA and not about the individual doing a task. In terms of the auditing, there will be no confusion. The shared services model is well-represented and National Treasury knows about it.
On the administrative challenges affecting Easter holiday operations, in December 2022 BMA used a model that separated modes across the ports – this was efficient for traffic and corridor management. BMA will deploy the same strategy for the upcoming festive season. The reported challenges are unlikely to affect operations on the ground.
On staff transition concerns, BMA has consciously placed employee salaries as a top priority to ensure all systems are meticulously up to date.
According to the five-year target, everything should be running well. The request for proposals (RFP) is expected to be out by April, and it will allow all supply chain processes to kick in.
Corruption by port officials will be mitigated by vetting all officials on the ground and having continuous lifestyle audits. Over and above these an integrated work model will close vulnerabilities for corruption and fraud.
The top four problematic ports are Beitbridge, Lebombo, Maseru, and Ficksburg Bridge; hence more effort is placed on these ports. The Authority is not focusing only on Beitbridge.
The power supply issue is being addressed and BMA has backup power supply at all ports, these should mitigate challenges posed by power failures.
Dr Masiapato stated that BMA’s political principal is the Minister of Home Affairs. When the Chair of the Home Affairs Portfolio Committee calls BMA on specific substance issues, there may be a need to call an inter-parliamentary committee. The Committee may be better suited to guide BMA on this.
BMA Deputy Commissioner, Ms Jane Thupana, replied that the Authority will prioritise harmonisation as it relates to salaries, although other areas require harmonisation such as policy matters. Over time these will be addressed.
Deputy Commissioner Thupana explained that there is an application process for the work of BMA to be recognised as an essential service per the Labour Relations Act.
BMA will continue to put a business case to National Treasury for the needed budget allocation. The Authority is also relying on the Committee's assistance and support on this. If the work of BMA is going to be using the current baseline for budget allocation, the Authority will take over 10 years to realise what it is set to achieve. More funding is needed to improve the porous borders, and it is senseless to save money on budget when in the long run you can lose the country through porous borders.
Deputy Commissioner Thupana replied that R163 million has been spent to date on operationalising BMA.
Department of Home Affairs response
Director General Tommy Makhode responded that the process used by the State Attorney to get the best legal counsel is quite frustrating as it works on a quotation system. Some of the best legal minds in the country do not respond to a quotation system. Ways of circumventing this process are underway to bring on board the recommended senior counsel for the Afghan matter.
As part of the transitional measures for BMA/ Home Affairs, National Treasury gave measures to the Department to continue to provide support to BMA in finance, procurement, information technology, and human resources until BMA has full capacity.
On the whereabouts of the Afghan, it is tricky to answer with certainty as DHA has no mandate beyond the South African borders. However, in the last response with the Chief Immigration Officer in Zimbabwe on 19 February, she indicated that they were at a hotel in Zambia
Home Affairs Minister response
Minister Motsoaledi responded that the situation at the Office of the State Attorney may not be clearly understood by many. Prominent Senior Counsel appear to be forbidden from touting for work, like attorneys. Professionally they do not respond to requests for quotations. It is unclear why the State Attorney insists on still issuing quotations. When asked, State Attorney responds that it is in the Public Finance Management Act. The counsel that responds are usually the junior professionals who are not too concerned about their reputation.
To resolve the Afghan matter, the Department has considered approaching the American embassy in South Africa, yet the matter remains tricky as the American embassy has not at any point contacted South Africa about Afghans seeking asylum. These have been the actions of an American NGO; the US Department cannot be held responsible for NGO actions as they fall outside the realm of government. It is not to say in the future the US embassy may not be contacted.
If Afghan nationals are permitted entry into the country, they will go to refugee reception offices. These reception centres have no backlogs whatsoever. The backlogs that exist are for those people who applied for asylum and were rejected by the Refugee Determination Officer based on non-qualification. They then appeal; the process is quite elaborate and the South African government is working on changing it.
The United Nations gave South Africa R143 million to hire lawyers to assist with the backlog. The issue is that even if there are no backlogs in the application process, it is known all the people applying may subsequently appeal and even courts say the process is an unending ladder.
The ruling party in its current and previous national conferences decided South Africa must pull out of the United Nations Refugee Convention. When the UN Convention was established in 1951 and countries acceded to it, many of them put up certain reservations usually based on economic, religious, or political grounds. South Africa was not a party to this Convention as it was still an apartheid state. The Convention acceded to by South Africa in 1996 and no reservations were deposed.
Minister Motsoaledi said he thinks this was a weakness from the South African side. The suggestion is not to completely reject the Refugee Convention, rather it is to be allowed to depose reservations in the same manner as other countries did. India is one country that has refused to accede to the Convention.
India does take refugees; however, it is not bound by any convention. South Africa is demanding to be allowed to have reservations about the Convention. The South African Ambassador to the United Nations has requested to discuss the matter with the Secretary-General – and there does not seem to be much enthusiasm about the matter.
Whilst it might be true that the port officials created their own decisions on security matters whilst the law provides otherwise, as the judge ruled on what is in the Act. It is however important to state that security is an important consideration for officials at the border. The mistake made was that from 1994 the Department of Home Affairs was considered a document stamping office and not a security department. Perhaps as a result the Department finds itself in this position. In many other parts of the world, this department is considered part of security such as the US Department of Homeland Security. It is only now that the Department of Home Affairs is considered part of the security cluster and has moved to the Justice, Crime Prevention and Security cluster from the Administration cluster. There is a need to overhaul all migration issues and regard them as security. It is as a result that border officials are reminded that they are security officers.
Coastal border problems are indeed a reality. The BMA Act says the Authority must be operational at the air, sea, and land ports – even the coastal borderline. The land border line in South Africa is about 4 700 kilometres. Whilst the coastal border line is about 2 900 kilometres. BMA is not operational at the sea coastal line due to the huge financial, personal and equipment requirements. The Authority and Department do not have a single boat, not to mention other sophisticated equipment, to protect South African assets. In the meantime, this has been left in the care of the army, until BMA is fully operational and fully resourced.
Chairperson closing comments to BMA
The Chairperson in closing said the Committee noted and affirmed the work and efforts of BMA. The work of BMA is supported by the Committee. The concern remains about budget allocation and the effect this will have on improving the porous borders in the country.
The matter of the Afghan nationals has been noted, alongside the proposed legal changes to immigration laws for the Committee to interface with. The Committee takes exception to the conduct of the process that was taken by the Afghan nationals. Parliament must be interested in the matter. The DHA process to undertake an appeal receives support from the Committee and it undertakes to oversee the urgency of securing a legal team on this. The Committee takes exception to the NGO trying to manage the affairs of the Department of Home Affairs and manipulate the system. Steps must be taken to avoid similar occurrences. It is important for the Department to profile the 22 Afghan nationals to safeguard and protect the interests of the community.
Registration of Muslim Marriages Bill (Private Member's Bill) feedback
Minister Motsoaledi explained that the White Paper on Marriages in South Africa dealing with the new marriage regime is being discussed and finalised. Three weeks ago Parliament endorsed the Department to seek public comment on the One Stop Border Post Bill and the Identity Management and Registration Bill. The new Marriage Bill was also to be introduced, which going to be an omnibus Bill covering all problem areas, including the non-legal recognition of Muslim marriages, Jewish marriages, Hindu marriages, and certain traditional marriages particularly those of the royal family. Unfortunately, the Bill was not passed by the Cabinet committee as certain areas needed follow-up between the Departments of Justice and Home Affairs. In these areas surrounding divorce, it seems there is a fine line between developing marriage legislation and divorce – it seems they interact somewhere. Subsequently, a letter requesting a meeting with the Justice Minister has been sent and is awaiting further developments.
On the Private Member's Bill – Registration of Muslim Marriages Bill – the Minister believes what that Bill sets out to achieve can be achieved through the new Marriage Bill. Most areas are similar, but two areas seem to be problematic:
(i) the humiliation experienced by Muslim married parties as the death certificate notes the spouses as never married, yet they were married through Sharia law. The Minister shared that he only learned about this in 2019, upon the passing of his mother. As the national population register came into being in 1986, before that marriage certificates were not in any database. People who were married before 1986 were then called to register their marriages. However, it seems there was no campaign to have people register their marriages. The Department’s solution was the issuing of a circular that any person married by Sharia law or Muslim ritual requesting a death certificate must bring in evidence of their marriage and have it immediately registered on the national population register, so a death certificate must be registered. The Minister avoided issuing a call for people to register their marriage as they do so only when one spouse passes away.
(ii) Matrimonial Property Act raises certain property issues. Many South Africans are not aware of this and often get married without any ante nuptial contract. South African law takes the view that if you do not choose a marital property regime it is assumed it is in community of property. The new Act proposes this should not be the case. All marriage parties, irrespective of marriage regime, must be made to choose the nature of the marriage regime (in community of property; out of community of property; with accrual; out of community of property without accrual). This often requires a contract, which is administered by laws, and many people do not have access to lawyers due to affordability issues. The new Act is set to have a pro forma form where people will be told the types of marriages that exist and they will make a choice and it forms a contract of their marriage regime.
Chabane, Mr MS
Khanyile, Ms AT
Legwase, Ms TI
Molekwa, Ms MA
Motsoaledi, Dr PA
Pillay, Mr KB
Roos, Mr AC
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.