Invalidity of sections of the Refugee Act; Marriage Bill public hearings planning; Electoral Commission A/B, One Stop Border Post Bill & PPFA Resolution Advert Update; Home Affairs BRRR (with Deputy Minister)

Home Affairs

22 October 2024
Chairperson: Mr M Chabane (ANC)
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Meeting Summary

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Scalabrini Centre of Cape Town v Minister of Home Affairs and Others

The Committee met to hear the Parliamentary Legal Services’ legal opinion on the implications of the Western Cape High Court’s Judgement on the Refugees Act and to receive updates on legislation before it or set to be tabled by the Department of Home Affairs.

Before hearing the presentation, the Committee expressed its concern about recent reports of alleged food poisoning at certain Spaza shops in the country, which has resulted in community protests. The Committee believed that these incidents further highlighted the need for the department to refine the White Paper on Citizenship, Immigration, and Refugees so it can begin drafting the bill to be tabled in Parliament.

Parliament’s Constitutional and Legal Services Office informed the Committee that the Western Cape High Court’s ruling that the Refugees Act, in particular sections 22 (12) and 22 (13), were inconsistent with the Constitution and invalid to the extent that it provides that asylum seekers who have not renewed their visas in terms of section 22 of the Act within one month of the date of expiry of the visa are considered to have abandoned their asylum applications. The Scalabrini Centre of Cape Town brought the application to the court.

The Parliamentary Legal Services recommended that the Committee invite the Minister to, as soon as possible, address the steps that the department proposes to take to address the judgement and correct the defect; the Committee, through its oversight processes, must stress the need for Parliament to have sufficient time to consider the bill that will address the concerns of the Constitutional Court; and that the Committee regularly review progress made by the executive after that.

The Committee noted the Parliamentary Legal Services’ recommendations and resolved to adopt them. Having done so, the Committee will invite the Minister of Home Affairs to provide his department’s response to the legal opinion.

After concluding its deliberations on the legal opinion, the Committee received an update from its content advisor and secretary on the progress made so far in preparing for the public hearings on the Marriage Bill. Members of the Committee were disappointed about the quality of the presentation, which gave the impression that the programme was running behind schedule.

Considering Members’ concerns, the Committee Chairperson said he would schedule a meeting with the public education office and the Committee support staff the following day to work on a detailed report and assess whether the hearings need to be postponed.

The Committee then deliberated on its Budgetary Review and Recommendations Report (BRRR). As certain additions to the report were proposed by the Members, it was agreed that the adoption of the report would be postponed to Friday.

Meeting report

The Chairperson welcomed everyone present at the meeting. The meeting was for the Committee to receive a briefing from Parliamentary Legal Services (PLS) on its legal opinion of the court judgement on the Refugees Act and updates from the support staff on various pieces of legislation.

Members were concerned by the recent reports of alleged food poisoning at certain Spaza shops in the country, which has resulted in community protests, and they were of the view that the security cluster may need to intervene to restore order. Members extended their condolences to the families whose children died during this period. These incidents further highlighted the need for the Department of Home Affairs (DHA) to refine the White Paper on Citizenship, Immigration and Refugees and draft a bill to be tabled in Parliament.

He said the Committee had learned much from its recent oversight visits at the Border Management Authority (BMA), the Government Printing Works (GPW), Home Affairs offices, the Independent Electoral Commission (IEC), and Lindela Repatriation Centre through its engagements with the officials of each institution and its own observations.

After that, he asked if any apologies were received.

Mr Eddie Mathonsi (Committee Secretary) said Ms N Bollman (DA) will leave the meeting early.

Mr Y Tetyana (EFF) said Mr T  Mogale (EFF) would arrive late to the meeting.

The Chairperson noted the apologies and invited the PLS to take Members through its presentation.

Constitutional and Legal Services Office (CLSO) briefing

Mr Lonwabo Sopela (Parliamentary Legal Advisor at the CLSO) took the Committee through the presentation.

This matter concerned an application brought before the Western Cape Division of the High Court by the Scalabrini Centre. The issue at hand was the implementation of the Refugees Act and its regulations, in particular the stipulation that where the asylum seeker's visa has not been renewed within one month of its expiry, the holder of that visa must be considered to have abandoned his/her application. Scalabrini Centre argued before the court that the undocumented status of asylum seekers, which resulted from the implementation of these sections, caused undue hardship since the asylum seekers are then considered and treated as illegal foreigners, subjected to arrest, detention and deportation.

Scalabrini submitted that the DHA had a duty to ensure that intending applicants who are not statutorily excluded are given every reasonable opportunity to apply for a visa and that a delay in applying for refugee status should not preclude and disqualify someone from applying.

The court found that the Act, in particular sections 22 (12) and 22 (13), were inconsistent with the Constitution and invalid to the extent that it provides that asylum seekers who have not renewed their visas in terms of section 22 of the Act within one month of the date of expiry of the visa are considered to have abandoned their asylum applications. As section 172(2) (a) of the Constitution mandates, the order of the High Court had to be confirmed by the Constitutional Court.

The PLS recommended that the Committee invite the Minister to, as soon as possible, address the Committee on the steps that the department proposes to take to address the judgement and correct the defect; the Committee, through its oversight processes, stresses the need for Parliament to have sufficient time to consider the Bill that will address the concerns of the Constitutional Court; the Committee regularly review progress made by the executive after that.

(See Presentation)

The Chairperson said the Minister may need to brief the Committee on its response to the legal opinion. After that, he opened the floor for discussion.

Discussion

Mr A Roos (DA) agreed with the recommendations made by the PLS, especially given that the court judgement said the DHA officials had a duty to ensure that applicants not statutorily excluded are given every reasonable opportunity to apply for their application.

During its oversight visit, the Committee saw the system in place and received a commitment from the Deputy Minister (DM) that the department would deal with the corruption at the refugee reception centres. He called for the Committee to support the legal opinion and process it speedily.

Mr Tetyana stressed that the department must be vigilant in how it processes such matters to avoid being taken to the courts and reminded of its responsibilities. He, too, supported the recommendations and suggested that they be adopted.

Mr S Ngubane (MK) expressed support for the legal opinion.

Ms L Ngobeni (ActionSA) expressed support for the legal opinion and asked that the Committee consider how best to address the legal status of children born in the country to illegal migrants. Due to their parents' status, these children cannot obtain birth certificates and other legal documents.

The Chairperson asked if any officials from the department were present.

Mr Mathonsi indicated that the DM was present.

The Chairperson informed the DM that the Committee will invite the Ministry to respond to the legal opinion and the issue raised by Ms Ngobeni.

Mr Njabulo Nzuza (DM of the DHA) said the department noted the issues raised by the Committee. Reforms are currently being implemented to address the challenges, especially those found in the refugee reception centres and the refugee and asylum seeker regimes. Once called upon to appear before the Committee, the department will touch on the steps it will take to comply with the court order and how it plans to address the challenges related to the birth registration of children born to illegal migrants in its database.

The Chairperson said the Committee resolved to invite the Ministry to present a detailed progress report on the court order and birth registrations. Afterwards, he asked the secretary and content advisor to update Members on the provincial public hearings related to the Marriage Bill.

Marriage Bill public hearings plan

Mr Mathonsi outlined that the Committee will conduct public hearings on the Marriage Bill, starting with Gauteng from the 8th to the 10th of November and then in KwaZulu-Natal (KZN) from the 20th to the 22nd of the same month. In Gauteng, the hearings will take place in the following municipalities: Ekurhuleni Metropolitan Municipality, the cities of Johannesburg and Tshwane, and Sedibeng District Municipality. In KZN, the hearings will take place in the following municipalities: Ethekwini Metropolitan Municipality, uMgungundlovu District Municipality, Ugu District Municipality, uMkhanyakude District Municipality and King Cetshwayo District Municipality. 

The support staff held a meeting with the other relevant Parliamentary units on the previous day, and another is set to take place next Monday. As required by the House Chairperson, Members were forwarded a form they must sign before the public hearings take place.

Mr Adam Salmon (Committee Content Advisor) said the support staff has been engaging with all of the municipalities to ensure that all the stakeholders who made submissions to the Bill are included in the debates set to take place at the public hearings.

The Chairperson reminded the support staff of the Committee’s request that they communicate with the speakers of the various municipalities and share the information pamphlets on the public hearings with Members.

Mr Mathonsi mentioned that the support team is drafting letters enabling the public education officers to approach the legislatures and municipalities on venue availability and other logistical matters. The letters for the Gauteng legislature and municipalities have been drafted and will be shared with the Committee after the meeting.

Touching on the information pamphlets, he said all the public education officers involved in the process have undergone training.

The Chairperson was disappointed that the support staff failed to prepare a detailed report on the public hearings.

Mr Salmon mentioned that he took the public education officers through the entire Marriage Bill and the summary of the detailed submissions during a recent training workshop. The pamphlets, which were sent back to the public education office for revision on the Committee’s instruction, have not yet been returned.

Ms Modise-Mpya expressed her dissatisfaction with the report back provided by the Committee support staff, as it gave the impression that they were running behind schedule. By now, the support staff should have drafted a clear plan for where each public hearing will be held. These delays, she stressed, will hamper Members’ ability to adequately mobilise communities to attend and participate in the hearings, thereby going against the Constitutional requirement for Parliament to conduct an extensive and thorough public participation process.

In addition, she was surprised that the public education office did not attend the meeting and present the work it has done so far to prepare for the public hearings. In her opinion, the support staff and public education were setting the Committee up for failure, and she urged both to go back to the drawing board and prepare a proper presentation.

Mr Roos was also disappointed with the developments. He highlighted that this was not the first time this had happened, as the Portfolio Committee on Home Affairs was the only committee not to go on an oversight visit in the last term. Given that not enough work had been done to prepare for the hearings, he proposed that the Committee delay the starting date until all the preparations were finalised.

Ms Ngobeni shared the other Members’ frustrations, especially considering the important role public participation plays in the democratic process. She asked for a breakdown of the demographics of the stakeholders who are set to be invited to the hearings. She suggested that young people, including university students, be invited to the hearings.

Mr Mathonsi said the letters will be sent to the Chairperson for approval later today so they can be sent to the legislatures and municipalities.

Mr Salmon apologised on behalf of the support staff for not providing a more detailed account of what work has been done so far. The support team has had extensive meetings with all the relevant units in Parliament, and the public education process is underway in both provinces, with the only outstanding matter being the securing of venues, as some of them are still being evaluated on their health and safety compliance. Final details on the process will be shared with Members towards the end of the week, giving them two weeks to mobilise their constituencies before the hearings.

The Chairperson said the support staff must accept its failure to have not prepared a comprehensive report for Members as they were informed about what was expected two weeks ago in a Committee meeting and at a MANCO meeting a few days after. Nonetheless, he said he would schedule a meeting with the public education office and the Committee support staff the following day to work on a detailed report and to assess whether the hearings need to be postponed.

Regarding the letters, he stated that he, as the chairperson, did not need to approve them because the Committee had already given the go-ahead on the entire process in a previous meeting.

Electoral Commission Amendment (ECA) Bill, One Stop Border Post (OSBP) Bill & PPFA Resolution Update

The Chairperson asked the support staff to update Members on the ECA and OSBP bills.

Mr Mathonsi said the ECA, Marriage, OSBP, and Immigration Amendment Bills are before the Committee. The support staff has not yet received the purchase order for the advertisement of the Immigration Amendment Bill (IAB). However, it received one for the advertisement of the National Assembly (NA) resolution on the Political Party Funding Act (PPFA).

On a separate note, he recommended that the Committee consider calling the Minister to make a presentation on the ECA and OSBP Bills.

The Chairperson noted the updates and said the Committee may have to consider receiving a briefing on the ECA Bill sometime in the next term due to the tight schedule. He asked the PLS if it had considered the implications of the NA resolution on independent candidates.

Ms Modise-Mpya recommended that the Committee draft a thorough plan to process the bills.

Ms S Khojane (PA) agreed with Ms Modise-Mpya’s proposal.

Ms B Machi (IFP) also supported the proposal.

Ms Telana Halley-Starkey (Parliamentary Legal Advisor at the CLSO) said that Section 8 (2) of the PPFA provides that political parties may not accept a donation from a person for a certain threshold for that financial year. It did not include independent candidates. However, Section 9 (1)(a) was amended to include independent candidates and representatives in the disclosure of donations. She believed that the department could provide greater insight into the matter.

The Chairperson asked that the PLS obtain more information on the matter and present its findings later.

Ms Halley-Starkey clarified that the upper donation limit only applies to political parties, not independent candidates. However, a disclosure threshold exists for political parties, independent candidates, and representatives. She advised that if a move is made to amend Section 8 (2) to include independent candidates, it must be done before the NA resolution is advertised.

The Chairperson asked Members how the matter should be approached.

Mr. Roos agreed that the Committee should be provided with a brief on the matter before making any decisions.

Ms F Muthambi (ANC) said if the Committee decided to propose an amendment to Section 8 (2), it could use that opportunity to address all of the other defects highlighted by stakeholders during the public participation process.

Ms Halley-Starkey clarified that the Committee was not discussing amending the PPFA; it was discussing the advert set to go out regarding a call for submissions on the NA resolution. She advised that the Committee ask the department to present the reasoning for not including independent candidates in Section 8 (2) of the Act.

The Chairperson said MANCO would process the advertisement process and that the Committee would revisit the discussion on Section 8 (2). After that, he asked the content advisor to present the Committee’s BRRR report.

Home Affairs BRRR

Mr Adam Salmon took the Committee through the report.

The Chairperson asked when the Committee is expected to adopt the report.

Mr Mathonsi said by 25 October 2024.

Mr Ngubane proposed a small wording amendment to the report.

Ms Khojane indicated that the report should include the Committee asking the officials at Lindela whether its food suppliers were South Africans. If they were not, that would have to be looked into.

Mr Roos was pleased that the Committee has ensured that many of its recommendations have been implemented, as this used to be a challenge.

He made several recommendations. First, he said the report should indicate that there is currently a review of the GPW’s current information technology (IT) governance framework – as part of the department’s modernisation initiative – following the Auditor-General of South Africa’s finding that it was not implementable. Second, the DHA committed to tighten controls to reign in irregular expenditure, which had increased to a five-year high of R600 million in the 2023/2024 financial year. Third, it was mentioned that the register of inspections of enforcement operations was not prepared on a timely basis, meaning that some of the inspections could not be accounted for. He said increasing the number of internal enforcements at spaza shops and elsewhere was important.

Fourth, he said the report should reflect the poor processing of visa applications and the DHA’s statement that these have since improved to 100%. Five, he said the report should note the Committee’s disappointment with the poor maintenance of printers, which resulted in staff sitting idle for several years, book binding services being performed manually, and security printing work being outsourced to service providers.

Six, he said the report should include a recommendation that the IEC should report to the Committee on assessing the 2024 elections report when it is ready.

Ms Modise-Mpya said the report must note that the senior manager at the Tshwane Refugee Reception Office was not present during the Committee’s oversight as he was attending a meeting with the Minister.

She proposed that the recommendations section of the report include that AGSA should present a comprehensive report on the DHA so the Committee can get clarity on the overall management of the department and that the Committee call for a forensic investigation into some of the issues highlighted during its unannounced oversight visit at the GPW; that the Electoral Reform Consultation Panel (ERCP) focus on voter education; and that Committee should determine when the IEC 2024 elections report should be presented.

She suggested that the report be adopted on Friday once all amendments are included.

Mr Tetyana supported the proposal for a forensic investigation into the GPW's operations. He suggested that it should also investigate why only the DHA, the Limpopo Provincial Department of Basic Education, and the South African Police Services are using the GPW to print their documents and not other departments and entities. In his opinion, there seemed to be an issue of incapacity in the GPW's senior management.

He also recommended that the report reflect the Committee’s concerns with the consistent network challenges caused by the State Information Technology Agency (SITA) infrastructure at the DHA.

The Chairperson said the Committee resolved three matters. One, it resolved that the DHA and its entities must be exempted from SITA given the challenges each has raised since the Sixth Parliament. Two, this exemption may have to extend to the entire security cluster. Third, it resolved to assist the GPW in improving its operations and management stability.

He asked that the Committee be provided with a separate report on the unannounced oversight visit at the GPW that details Members’ observations, what the entity’s officials reported, and AGSA’s findings.

The committee will have to consider other issues, such as the BMA’s request to be given a proper office and its point that the current Border Management Authority Act prevented it from performing certain functions, the issues around the voter management devices, and voter education.

During a recent MANCO meeting, the PLS was asked when it believed it would be suitable for the IEC to present its 2024 election report. This was important as the IEC will soon have to draft its plan for the 2026 Local Government Election.

He added that the Committee will work on the outstanding issues of the BRRR the next day.

Mr Roos said the report should also note that the Committee was awaiting the submission of the ERCP report, the list of the mobile units for the coming month, and the GPW figures discussed last week.

The Chairperson suggested that the department include the Special Investigating Unit’s report on the Tshwane Refugee Reception Centre in its presentation to the multidisciplinary task team.

DM Nzuza noted the Committee’s request.

The Chairperson asked if there were any outstanding matters.

Mr Mathonsi said the Committee still had to adopt its outstanding minutes.

The Chairperson said that would be deferred to Friday’s meeting when the draft BRRR will be adopted. After that, he closed the meeting.

The meeting was adjourned.

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