Immigration Amendment Bill: briefing by Department

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
3 August 2004
IMMIGRATION AMENDMENT BILL: BRIEFING BY DEPARTMENT

Chairperson: Mr H Chauke (ANC)

Documents handed out
Immigration Act 13 of 2002
Immigration Bill [B11-2004]

SUMMARY
The Director-General: Home Affairs took the Committee through a clause-by-clause analysis and explanation of the Immigration Amendment Bill. Some of the issues that came up during discussion included how public participation would be accommodated; the reasons for not employing the Constitutional definition of the term 'court' and why customary marriages have not been included in the definition of 'marriage'; whether the frequency of the meetings of the Immigration Advisory Board would be stipulated, who would be responsible for making that decision and whether the tenure of the Chairperson of that Board would be prescribed by regulation; how exactly inter-departmental co-operation would be ensured; whether the Department could assure the Committee that the amendment bill would not result in the same legal challenges as before; clarification of the phrase "special financial and other guarantees" and how this would be quantified if the chartered accountant certification requirement has been removed from the Bill.

MINUTES
The Chair stated that the Department would be taking the Committee through a clause-by-clause analysis of the Bill and its amendments.

Briefing by Department of Home Affairs
Clause 1: Preamble
Mr B Gilder, Director-General: Department of Home Affairs, took Members through the amendments proposed in the Preamble. He reiterated the statement he made to the Committee the previous day that the deletion in 1(c) did not signal the Department's intention not to conduct consultations with the public. It was felt that the provision did not serve any purpose in the Preamble.

Clause 1(d) was amended because the Department itself was not certain what exactly the current formulation in the Act meant. The reference to the Department's responsibility in monitoring border patrol posts was removed because the Department was not consulted properly when that responsibility was given to it, and the concurrent responsibilities of other government departments such as the South African National Defence Force (SANDF) and the South African Police Services (SAPS) were also not consulted. It has thus been replaced with a clause which recognises and affirms the special place of the SADC region and the continent in the Department's policy.

The word 'facilitated' has been added in 1(f) to indicate that the Department was not only concerned with preventing people from entering the country, but would also facilitate desired immigration.

Ms I Mars (IFP) sought clarity on the 'pull factor' referred to in 1(g).

The Director-General replied that 1(g) tried to address both the push and pull factors. Pull factors were those within South Africa that encouraged people to come to South Africa, one of these was the ease with which people could enter and remain in the country. The push factors referred to those factors outside the country, for example, the socio-economic conditions in our neighbouring countries which encourage people to enter South Africa. Government sought to address this matter through its bilateral engagements with neighbouring African countries.

Mr Swart (DA) asked how exactly the public participation process would then be included in the Bill if it is removed via 1(c).

The Director-General responded that a public consultation process was built into the legislation-making process via the public hearings. It must be remembered that, as far as the regulation-making process is concerned, the Immigration Advisory Board (IAB) would include representatives of civil society and this was thus one way in which broader interests would be accommodated in the formulation of regulations. Secondly, the Department proposed that regulations would be published as a matter of course for a period of approximately 3 weeks to allow the public to comment on the regulations. This is adequate consultation.

The aim of the amendment in 1(c) was to remove the laborious processes that the Act requires of 21 days for publication, receiving comment, responding to those comments, publishing for another 21 days and so forth. The Department's intention was thus to use the normal consultation processes government uses in making regulations.

The Chair stated that this matter must be flagged, because this very point was raised by a number of submissions.

Clause 2
The Director-General stated that this clause contained grammatical and editorial amendments which tidied up the definitions.

'admission' and 'border'
These definitions were made more grammatically correct.

'application'
This definition was deleted because it has become redundant.

'chartered accountants'
This definition has been deleted. The Director-General reiterated the statement he made previously that the Department's intention was not to remove the possible use of chartered accountants for the certification of certain matters in relation to the Act. They were simply being removed from the Act itself. The Department intends to use chartered accountants in the regulations for the certification process, because it would be difficult for the Department to certify the complex requirements for business permits.

'conveyance'
This definition is a new insertion into the Bill.

'court'
The reference to immigration court has been removed, for reasons explained to Members during the previous day's briefing.

'customary union'
As explained to the Committee during the previous briefing, this definition has been amended to bring it in line with the Recognition of Customary Marriages Act rather than trying to provide a different definition in the Bill.

'deportation'
The reference to 'involuntarily' has been removed simply because not all acts of deportation were involuntary.

'immigration officer'
This definition has been tidied up to now refer simply to Section 33 of the Act.

'marriage', 'port of entry', 'ststus' and 'visa'
The formulation of these definitions have been improved.

'master'
This definition has been deleted and replaced with a person in charge of a conveyance in the definition of an 'owner'.

'publish' and 'ship'
These definitions were removed because they were unnecessary

'resident'
This definition has been removed because the different kinds of residents have been defined in the Bill itself.

'spouse'
As explained to Members, this definition was amended to refer to the definition as prescribed in regulations, rather than trying to define the term in the Bill.

'training fund'
This definition has been removed, as explained to the Committee during yesterday's meeting.

'transit visa'
This definition has been inserted into the Bill, for reasons explained yesterday.

'work'
Ms Dikeledi Tlhagale, Legal Advisor to the Director-General, stated that the definition of the term 'work' in the current Act has many loopholes. People would enter the country on a visitors permit and engage in business activities but argue that they were being paid abroad, or that they were employed abroad. The aim of the amendment was thus to tighten this provision. It now stipulated that any activity related to remuneration or any work-related activity could only be engaged in if the person has a valid work permit. The Department did not envisage that visitors would enter the country and work in South Africa on a visitors permit.

The Chair asked whether the Bill contained any definition of the term 'regulations'.

Ms Tlhagale replied that it would be redundant to define that term, because they were used contextually in Section 7 of the Act alone. The definitions section only contained terms which could be used elsewhere in different contexts.

Mr I Mfundisi (UCDP) proposed that the words 'deport or' be inserted before 'deportation'.

The Director-General agreed.

Mr K Morwamoche (ANC) asked the Department to explain why it did not define the term 'court' as defined by the Constitution.

Ms Tlhagale responded that the Magistrates Court was defined in terms of the Magistrates Court Act and the High Court was defined in terms of the Supreme Court Act. The only area of the Bill that referred to a court were those provisions in Sections 33 or 34 of the Act which referred to the issuing of warrants, which can only be issued in the Magistrates Court and not a High Court. Thus the term 'court' in Clause 2 was only defined for the purposes of the operations of this Bill, and was not defined on a more general basis.

Mr Morwamoche asked why customary marriages were excluded from the definition of 'marriage'.

Ms Tlhagale replied that the Director-General has already indicated that the current situation was that the regulations already tried to define customary unions of other States. The problem was that the Department could not do this because it does not fall within its mandate. In practical terms this meant that persons entering the country who were married according to customary rights would have to approach a Magistrates Court and request acknowledgement of the union, a certificate would be issued and they would then be able to approach the Department. The union would then be viewed as a customary union.

Mr Swart questioned whether the current definition of the term 'court' was too restrictive in limiting it to Magistrates Courts only.

The Director-General responded that, as Ms Tlhagale explained earlier, the Magistrates Court was the only court that the Act referred to, and it would thus not be restrictive at all.

Mr Swart sought clarity on the reference to the phrase 'permanent homosexual or heterosexual relationship' in the proposed definition of the term 'spouse', as that did not constitute a marriage. How exactly would they prove that they have a permanent relationship, he asked.

The Director-General replied that part (b) of the definition of 'spouse' stipulated 'as prescribed', and this meant that the regulations would then set out how the Department would determine the genuineness of such a relationship.

The Chair stated that the Committee appreciated the work and effort the Department put into these amendments. He stated that any issues or clauses in the Bill which Members expressed concern on would be flagged and considered in greater detail during the Committee's formal deliberations on the Bill.

Mr Swart sought clarity on the reason for the inclusion of 2(b).

The Director-General responded that this was an oversight and would be deleted

Clause 3
The Director-General stated that Section 2 should be deleted because the Department was of the opinion that it did not add anything.

The Chair noted that no concerns were raised with this clause.

Clause 4
The Director-General stated that Section 3 of the Act was an area of concern not only for the Department but also for the IAB, and the Department's interpretation of it has had to be that the power would be delegated to the Director-General or the Minister who would then delegate it downwards. This was reflected in the amendment. Furthermore, as mentioned yesterday, wherever the Act refers to the Department would now be replaced with 'the Director-General', which needed to be understood within the context in which the amendment to Section 3 was being proposed. This provision did bestow considerable powers of review because both the Minister and the Director-General could review or change a decision taken by a member of the Department to whom the power was delegated.

The Chair noted that no concerns were raised with this clause.

Clause 5
The Director-General stated that the clause proposes the election of the Deputy Director-General of National Immigration within the Department as a member of the IAB via Section 4(2)(a)(i)(bb). The Department of Justice and Constitutional Development and the National Intelligence Co-ordinating Committee (NICOC) have been added to Section 4(2)(a)(ii) of the Act. The amendment to Section 4(2)(a)(vi) has been inserted in order to appoint members of civil society to the IAB, as the Department has removed the requirement for public nominations for representatives of civil society. As explained yesterday, Section 4(2)(b) stipulates that the Chairperson and deputy Chairperson would be elected from amongst the existing members of the IAB.

The amendment in 5(d) stipulates that the Department itself would provide the support staff for institutions established via legislation that fall under its mandate, as the current position in the Act was that the IAB would provide its own staff. The amendment was in line with the approach adopted in other similar institutions, such as the Refugee Appeal Board.

Ms Tlhagale explained that the amendment in 5(f) proposed the deletion of Section 4(8) because it was redundant, as that function would be executed by the National Treasury in any event.

The Chair stated that the Committee suggested yesterday that the Department of Health be included in Section 4(2)(a)(ii). This matter must be flagged for later discussion.

Mr Mfundisi asked where the frequency of the meetings of the IAB would be prescribed, if Section 4(3) were to be deleted.

The Director-General replied that Section 4(9) of the Act already stipulated that the IAB would meet as prescribed by regulation. It was for that reason that it was felt that Section 4(3) was redundant.

Ms Tlhagale added that the current Regulation 15 was much more detailed than the Act. During the drafting of the Bill the State Law Advisors (SLA) informed the Department that the contents of the regulations could not be included in the Bill, because it was limited to Section 4(3) alone. The problem was that Section 4(3) does not provide the IAB with much guidance as to how it should operate, and the Department felt that Regulation 15 was more useful. It was for this reason that the decision was taken to delete Section 4(3) and to rely on Section 4(9) which refers to Regulation 15.

Ms S Kalyan (DA) asked the Department to explain who exactly would prescribe how often the IAB would meet.

Secondly, Ms Kalyan sought clarity on the reason for the prescription of civil society representation on the IAB as is currently provided in Section 4(2)(k) of the Act. She requested the Department to provide any criteria it would use when deciding on such persons, even though that cannot be prescribed in the Bill itself.

The Director-General responded to both these questions by stating that to a large extent the composition of the IAB was a matter of policy, but in the Department's interaction with NEDLAC for example it was relatively open on this matter. The Minister's concern was that the representatives from outside government should not be prescribed in as much detail as was currently the case, instead the Minister should be granted the discretion to select people who would add value. The Minister was keen to consider representation from civil society, such as the South African Human Rights Commission and other bodies.

The Chair sought clarity on the reasons for legislating on the administrative functions of the IAB in 5(d).

The Director-General replied that, as was the case with other legislative bodies under the Department's mandate, this was the standard procedure in order to indicate where that body would get its administrative support from. There was a concern at policy level which was raised in the Cabinet processes around the Draft Immigration Regulations before the April elections as to whether the IAB, its staff or office bearers should be employed on a full-time basis and also what exactly the powers and functions of the IAB would be. The feeling was that it must be made clear that the support would be given to the IAB by the Department, as this was the case in other legislation such as the Refugee Appeal Board structure.

Mr W Skhosana (ANC) asked whether the term of office of the IAB and its Chairperson would be prescribed in regulations.

Ms Tlhagale responded that the IAB would map-out how often it would meet. The Act grants the power to the Minister to appoint the Chairperson as well as the power to dissolve the IAB in terms of Section 4(7), and she would be able to deal with issues of appointment in that manner. As indicated by the Director-General it was a policy decision made by the Minister as to the tenure of the Chairperson. The term of office of the Chairperson was not dealt with in the Act and it could thus be spelt out in the Bill if Members so desired.

Mr Erasmus stated that the regulations must pertain to issues that were of an administrative or procedural nature, and the issue of how the IAB would operate was clearly an administrative and regulatory matter and could thus be included in the regulations. An empowering provision within the Act was however needed to enable the Department to make those regulations. The current Act has a very wide regulation-making provision but it did not cover the specifics. The SLA looked very closely at regulations and as soon as they extended beyond the ambit of the Act they would be declared ultra vires.

Ms L de La Hunt, Legal Advisor to the Minister of Home Affairs, stated that it should be noted that the purpose of the IAB was to advise the Department and to function as an inter-departmental forum. It was not like the Refugee Appeals Board for instance which must be an independent from the Department because it made decisions, and in that case it would be desirable for the members to have security of tenure.

Clause 6
The Director-General stated that this clause proposed the insertion of a new Section 5 in the Act. The aim of the amendment was to simplify and clarify the role of the IAB. The clause proposes the deletion of Section 5(d) because, as mentioned during the briefing yesterday, the reference to 'review' fudges the role of the IAB as an advisory body by granting it certain review functions which was not the intention.

Mr Mfundisi sought clarity on the circumstances under which the members of the IAB could be removed from office, and asked whether these would be included in the regulations.

The Director-General replied that the current Act only referred to the term of office of the non-government members of the IAB. The Department was however open on this issue.

The Chair stated that this matter must be flagged for later discussion.

Clause 7
The Director-General stated that, as he mentioned yesterday, Section 6 of the Act served no purpose and thus proposed its deletion.

The Chair asked the Department to explain the manner in which inter-departmental co-operation was dealt with on a national level.

The Director-General responded that this was done at the Justice, Crime Prevention and Security Director-General's Cluster, which was the cluster to which the Border Control Co-ordinating Committee (BCCC) referred to yesterday reports. This was not legislated but the problem was that the government departments involved in border control were administering different pieces of legislation, and the Department's concern was that until there was proper consultation to finally resolve who is the lead Department responsible for border control, the matter of inter-departmental co-operation should be dealt with as part of the longer-term policy review process.

Until such time the current Section 6 served no purpose because, as mentioned yesterday, the liaison committee which the Director-General was required to convene already existed and was already functioning in terms of government's cluster system.

The Chair agreed and stated that this matter must be flagged.

Clause 8
The Director-General stated that Section 7 has perhaps been the one section that has led to the Department appearing before the Committee today. It was this provision which caused the controversy before the April 2004 elections, and it led to the need to review the Act itself. Fundamentally the concern was that in the attempt to deal with the Cabinet concerns with the regulations before the April 2004 elections and the Department's engagements with the SLA, the SLA were concerned in specific instances that because the Act was unusually drafted it did not properly provide for the making of regulations. The current Section 7(1) created the concern that the very wide-ranging power it bestowed would allow the Minister to create regulations that could, in theory, be of a nature that was not intended by the legislature. This Committee itself then expressed concerns with the draft regulations produced by the former Minister, as it sought to include provisions which the legislature expressly excluded from the Act.

The clause thus redrafts Section 7 to give a list of specific issues on which regulations may be made. The amendment also removed, as explained yesterday, the complicated and onerous public comment process in passing the regulations so that they could instead be drafted and processed in the standard manner employed throughout government.

The Chair asked whether the amended version would not give rise to the same difficulties as with the current Section 7.

The Director-General assured Members that the Department was satisfied with the proposed amendment. Concern has been raised with the removal of the public participation process from the current Section 7, but he reiterated that the Department plans to consult quite extensively in order for them to be implementable. Furthermore the proposed composition of the IAB would ensure that the interests of business, labour, civil society and other government departments would be taken into consideration. As indicated yesterday the regulations would then be published for public comment before they were enacted. The current public participation process was made even more onerous in view of the fact that most of the subsequent amendments to the regulations published would be of a very technical or minor nature, and did not warrant the entire public participation process again.

Ms Kalyan stated these were quite substantive amendments to the regulation-making process. She asked the Department to explain whether it has verified that the amendments proposed in fact closed the loopholes that existed before and which gave rise to the court case.

The Director-General responded that the issue which led to the court case "is behind us". The Department has since received comments from Directors-General of other government departments that the amendments complied with the normal regulation-making process employed by other departments. The legislation also included the IAB which would play an important role in ensuring that history does not repeat itself.

The Chair asked the Department to indicate the point at which it would bring the regulations before Parliament.

The Director-General replied that the requirement was that regulations be tabled in Parliament.

Mr Erasmus stated that his understanding was that regulations did not have to be tabled in Parliament as it was only legislation which has to be tabled. He stated that this matter should be looked into.

The Director-General stated further that the issue of immigration regulations has been very controversial and has gone all the way up to Cabinet itself, and Cabinet has set up a special committee of Ministers to look at this further. There was thus no way that the Department wished to rush through amendments even via the amended process. The Minister would want to consult the Committee on the first issue of the regulations.

The Chair stated that this clause would be flagged for later discussion.

Clause 9
The Director-General stated the current Section 8 in the Act was really intended as a section of general application in relation to adjudication and review procedures. The new proposed clause deals with specific circumstances and the Department was of the view that it provided ample review in general application. The amendment dealt with two issues: firstly, the admission of a person at a port of entry and secondly, the rights of a person who has been detected inside the country as being illegal.

The Chair noted that no concerns were raised with this clause.

Clause 10
The Director-General stated this clause contained mostly editorial corrections. The proposed amendment to Section 9(2) was aimed at addressing the concerns raised by the security and tourism industries and others that the current Act prevented the recording of entries and departures. The amendment to Section 9(3)(c)(ii) dealt with people who needed to cross the borders other than at the official point of entry, such as those in the trans-frontier parks, construction workers who were building border posts or game wardens who were chasing game across borders. It also removed the requirement to consult the IAB when granting an exemption in relation to the ports of entry.

The Chair noted that no concerns were raised with this clause.

Clause 11
The Director-General stated that, as mentioned during yesterday's briefing, the Department has not tampered much with the permitting system in place in the Act but it did propose some technical changes which would close the loopholes.

Mr Swart proposed that the words 'for revision of the notice' be added at the end of the proposed Section 10(10) in order to add clarity.

The Director-General agreed.

Clause 12
The Director-General stated that Sections 10A and 10B were new insertions that dealt primarily with visas. The current Act is relatively silent on visas, and these sections were introduced to cure the problems raised with visas. There was a distinction between visas and permits: a visa granted its holder permission to proceed to a port of entry and was not permission to enter the country.

Section 10A
The proposed Section10A(4)(a) dealt with an issue of contention around the current Act and the regulations because the current requirement for the Minister to grant visa-exempt status to any particular country or category of persons would be via regulation. This meant that the whole complex regulation-making process would have to be conducted, as referred to before. Other government departments have expressed the concern, particularly in Cabinet, that these decisions were really matters for bilateral negotiations between States. It was thus not merely a normal regulation-making process which required the public participation process.

The Chair asked whether the list of visa-exempt countries could be found in the regulations.

The Director-General responded that the Bill in fact proposes the removal of the list from the regulation-making process. The Minister would thus publish a list in the Government Gazette. The aim here was really to remove the decision as to which countries were visa-exempt from the public domain because, although the public may have value to add in suggesting which countries should be visa-exempt, the fact of the matter was that these matters were handled in bilateral negotiations.

Section 10B
The Director-General stated that, as mentioned yesterday, this amendment was the same as Section 10A except that it applied to transit visas.

The Chair noted that no concerns were raised with this amendment.

Clause 13
The Director-General stated that most of the amendments were editorial. Clause 5(c) stipulated that a visitors permit cannot be extended for more than one period of there months, so that the abuse whereby people use the visitors permit to remain in the country indefinitely is done away with. This was a point of concern raised in the submissions. If the person wished to remain for a longer period they could apply for one of the other permits which allows that.

Ms Tlhagale stated that the current Section 11(3) makes provision for illegal foreigners to be issued with visitors permits, and thus implied that a visitors permit could be issued to an illegal foreigner. The Bill now proposed that an illegal foreigner was someone who does not have a permit, and thus permits cannot be issued to illegal foreigners. However Section 32(1) of the Act addressed the unacceptable situation in which people would apply for a permanent residence permit knowing full well that they would not receive it, and then applied for a Section 11(3) permit just to remain in the country knowing full well that they would not qualify for any other permit. This was however not the actual intention behind Section 11(3) and it was for this reason that the clause proposed the deletion of Section 11(3).

The current Section 11(4) was now dealt with substantively in the new visas provision in Section 10A, and could thus be deleted.

The Chair stated that this matter must be flagged for further consideration.

Ms Kalyan sought clarity on the meaning of the phrase "special financial and other guarantees" in 13(c), and how it would impact on the exclusion of the chartered accountant aspect from the legislation.

Mr Willem Vorster, Assistant Director: Aliens Control, responded that no reference to chartered accountant was included in this section and the inclusion of the phrase "special financial and other guarantees" would be fully set out in regulations, as suggested by the inclusion of the word "prescribed" in the proposed Section 13(5). The phrase meant that the Department would have to ensure that a person entering South Africa has sufficient financial means and merely stipulating that they must have a certain amount of money in their bank account was not always applicable in every case. The words "or other guarantees" thus referred to the other evidence that could be adduced in a particular case to satisfy the Department.

The Chair asked whether the regulations would prescribe the specific amount of money that a person entering the country must have.

The Director-General replied that the regulations really prescribed a range of options such as a return ticket, proof of accommodation or invitation, sufficient funds, a credit card etc. He stated that the concern has been that the strict financial requirements discourage visitors from our neighbouring countries. Instructions have however been issued to relax these requirements somewhat for our neighbouring countries. There was thus discretion as to which of these to apply.

The Chair requested the Director-General to share with Members some of the Department's experienced in this regard.

Ms Kalyan asked whether the "special guarantees" dealt with one's health status, for example whether the person is HIV positive and the possible burden on the South African health sector.

The Director-General replied that the regulations address the issue of people who become a burden on the State and includes this as a consideration in granting entry and exit.

Mr Sibande stated that the problem was that illegal foreigners who were apprehended would far too often not be deported to their home countries but would instead remain in South Africa.

The Director-General responded that the Bill contained amendments which dealt with this concern.

Clause 14
The Director-General stated that Section 12 must be repealed because diplomatic permits actually fall with the Department of Foreign Affairs.

The Chair noted that no concerns were raised with this clause.

Clause 15
The Director-General stated that only technical amendments were proposed to Section 13 of the Act. The word 'Department' in 15(a) must be replaced with 'Director-General', as the Department forgot to effect this amendment.

The Chair agreed and noted that no concerns were raised with this clause.

Clause 16
The Director-General stated that these were largely technical and cosmetic amendments.

The Chair stated that the clause refers to both the Department and the Department of Foreign Affairs, and asked which of these government departments in fact had the authority to issue the treaty permit.

Ms Tlhagale responded that the clause merely makes provision for the Department to issue the permit. If they were issued by the Department of Foreign Affairs that department would still have to comply with the prescribed requirements set by the Minister. The Department of Foreign Affairs would thus use the Department's regulations to issue the permit.

The Chair stated that this issue must be flagged for further consideration.

Clause 17
The Director-General stated that the amendments were largely editorial and technical. The chartered accountant certification has been deleted but, as explained earlier, the regulations may well include chartered accountant certification as proof for certification of business permits.

Mr Swart stated that the figure of R2 million which would have to be invested here was problematic as a blanket rule.

The Chair stated that this issue must be flagged, as this concern was raised in the submissions.

Clauses 18, 19 and 20
The Director-General stated that these clauses contained purely technical amendments.

The Chair noted that no concerns were raised with this clause.

Clause 21
The Director-General stated that Section 19 has been a somewhat controversial provision in the past, and the Department has not meddled with it too much apart from proposing technical amendments which seek to clarify the category of permit.

The Chair noted that no concerns were raised with this clause.

Clause 22
The Director-General stated that essentially technical amendments were being proposed in this clause.

Mr Swart stated that one of the submissions suggested that foreigners who receive permits to establish businesses in South Africa must also provide training and fund training to South Africans apart from the standard contributions to the training funds of the Department of Labour. He asked whether this was a realistic inclusion in the Bill.

The Chair urged Members to not be influenced by the submissions at this stage, but stated that the matter would be flagged.

The Director-General replied that the Department did not prescribe any requirements on this matter, as it did not fall within the Department's mandate.

Clause 23
The Director-General stated that the amendments proposed here merely tightened up the vagueness in Section 22 of the Act.

The Chair noted that no concerns were raised with this clause.

Clause 24
The Director-General stated that this was a new addition to the Act.

The Chair noted that no concerns were raised with this clause.

Clause 25
The Director-General stated that this was the provision referred to earlier by the Chairperson. It was a straightforward amendment.

The Chair noted that no concerns were raised with this clause.

Clause 26
The Director-General stated that this amendment merely included undesirable persons.

The Chair noted that no concerns were raised with this clause.

Clause 27
The Director-General stated that the clause proposed the deletion of the current Section 26(a)(ii) but the matter was still before NEDLAC, and it would be finalising its view on this matter this afternoon. The Department's drafting team was however of the opinion that this matter fell within the Department of Labour and thus the Department could not legislate for that department in this Bill.

The Chair stated that this matter must be flagged.

Clause 28
The Director-General stated that this clause contained largely technical and clarificatory amendments.

Mr Swart proposed that the proposed Section 27(f) instead require the funds to be deposited into a "trust account under the auspices of the Director-General", because the current formulation suggests that the funds will be paid into the Director-General's private account.

The Director-General responded that this concern would be noted.

Ms Kalyan asked whether the use of the phrase "to the satisfaction of the Director-General" in this clause was objective enough.

The Director-General assured the Committee that this would be prescribed by regulation.

Ms Kalyan suggested that if that was the case, the words "as prescribed" should then simply be inserted in Section 26(c)(ii).

Mr Vorster responded that the fact of the matter was that 'minimum net worth' was not an actual fixed amount but was instead based on a variety of factors, and thus a blanket rule or single requirement could not be set by legislation. The Bill this enshrined the principle that the applicant would have to show the Director-General that everything they bring to the table qualified as net worth.

Clause 29
The Director-General stated that 29(b) makes an important amendment which empowers the Department to withdraw the permanent resident permit of a person who has contravened the offences listed in Schedules 1 and 2 of the Act.

The Chair noted that no concerns were raised with this clause.

Clause 30
The Director-General stated that the amendment essentially seeks to clarify the difference between 'prohibited persons' and 'undesirable persons'. Section 29(1)(f) has been inserted to deal with the very real problem with people who have acquired fraudulent documentation, and they should also become prohibited persons.

The Chair noted that the Committee was unable to go through the entire Bill as initially planned, but encouraged Members to go through the remainder of the Bill on their own.

The meeting was adjourned.