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HOME AFFAIRS PORTFOLIO COMMITTEE
27 March 2001
CONVENTION ON THE NATIONALITY OF MARRIED WOMEN; DEMOCRATIC ALLIANCE COMMITTEE PROGRAMME; VISIT TO DEPT OF HOME AFFAIRS, CAPE TOWN
Chairperson: Mr Mokoena (ANC)
Memorandum on the Ratification of the International Convention on the Nationality of Married Women (See Appendix)
Minister Buthelezi was unable to attend the meeting to discuss the Convention on the Nationality of Married Women. The Democratic Alliance presented its suggested committee programme. The committee then adjourned to the Dept of Home Affairs in Cape Town for a meeting with senior officials.
Minister Buthelezi was unable to attend the meeting as planned, but would be available on 8 May. Adv Malatji, the Department's legal advisor, was present to bring clarity to the Convention on the Nationality of Married Women.
The Chairperson announced that, due to the Minister's unavailability, an on-site visit to the Dept's Cape Town office had been scheduled instead. Mr Lekgoro (ANC) said advance warning would have been helpful in allowing members to formulate questions for Dept officials.
Mr Beukman (DA) noted he had prepared two case studies (complaints from the public about their treatment by the Department) for presentation to the Dept during the visit later in the day. The Committee discussed how and whether these materials were to be presented, or even distributed to committee members. The Chair noted it was preferable for such matters to be referred by Members of Parliament as individuals, rather than as Committee members. Messrs Lekgoro (ANC) and Kalako (ANC) supported Beukman's right, under the Parliamentary rules, to distribute the materials to the Committee. Mr Sikakane (ANC) and Prince Zulu (IFP) agreed with the Chairperson that the matter should be pursued privately. Finally the materials were distributed to the members.
Mr Beukman then outlined the proposed Democratic Alliance's committee programme:
- a presentation by the Dept Deputy Director General concerning the status of the Immigration Bill should be scheduled, preferably before the Easter recess;
- the Dept should also advise on the status of the HANIS project, and its newly created oversight body, to be chaired by Fink Haysom, as announced last week by the Minister;
- a workshop with the US Immigration Service on the proposed SA Immigration Service;
- customary briefings by the Minister and other senior officials;
- as part of the oversight function, conducting inspections of printing facilities, airports, border posts, and harbours, and unannounced visits at Home Affairs offices;
- conducting public hearings and workshops on refugee and electoral reform issues;
- liaising with the Minister of Local Government concerning proposed decentralisation of the Home Affairs civic service line functions.
The Chair said these proposals would be considered.
Mr Waters (DA) asked the ANC's current position on the proposed Immigration Bill. The Chairperson objected to this question, saying the ANC would advise when its work is completed. He also noted that it was not appropriate to impose a deadline on the ANC on this matter.
Mr Waters asked if the Chairperson was willing to wait indefinitely for the ANC to complete this task. The Chairperson adjourned the meeting and the Committee went to the Department's building.
Visit to Dept of Home Affairs, Cape Town
The committee reconvened in the Dept's Cape Town offices. They were welcomed by the Department's Western Cape Regional Director. The Regional Director asked her supervisors to summarise the responsibilities and current concerns of their bureaus. These are their comments:
Immigration Selection Board: Inadequate staffing, information technology and funding that result in the inefficient processing of applications, and a resultant backlog were mentioned. He also noted that many Cape Town lawyers are prone to take the Dept to court and to facilitate client abuse of the system with, for example, frivolous appeals of Dept decisions on 'sham' marriages. He said the cost of such litigation has been to cause Dept officials in Pretoria to make "bad decisions" in order to avoid court battles. He also suggested a specialised Immigration Service would facilitate efficiency in the integration of staffing and allocation of funds.
Permanent Residency: The primary available categories are work, investor, spousal/partner, sponsored family, and retiree investors. Many of these cases eventually go to the Immigration Selection Board, but there is a backlog because of staffing and funding shortfalls.
Work Permits: Generally, the first application for a work permit must be made from another country, although extensions can be applied for locally. Key criteria for evaluation are whether a South African worker can do the job, and whether additional jobs for South Africans are to be created by the applicant.
Refugees: The asylum procedure is often abused, and it is difficult to deal with high-profile political figures requesting refugee status. These may need to be dealt with specially. Most applicants are Angolan, Congolese, or Somali, and there is not enough staff or funding to efficiently handle the 200 - 400 new cases filed monthly in Cape Town.
Immigration Services: Abuse of asylum and other legal procedures by criminal elements, including Nigerian drug dealers, are problems. The speaker recommends the creation of a separate Immigration Service. This could be partially "self-funding" if it had property forfeiture enforcement power.
Airport Control: There is a major staffing problem, often resulting in only seven of eighteen immigration counters at Cape Town International Airport being staffed. There are only eleven immigration officers at ports of entry. The information technology systems also need to be updated. The burden of officials having to testify in court cases also impedes the efficiency of his officers.
Internal Control: This deals with violators of the Aliens Control Act, together with police agencies. Limited staffing, funding, and training leaves officials at a disadvantage in dealing with well-funded criminal organisations (ie Russian and Chinese) who can manipulate the legal system. The cost of repatriation is onerous, ie up to R50 000 to take one Nigerian back to Lagos.
Citizen Services: Because of the problems with dealing with all the foregoing issues with limited human and other resources, civic affairs line functions suffer. In Khayelitsha, for example, people come in from the Eastern Cape, where the backlog is even worse, just to get birth certificates. There is a serious staffing problem in Wynberg, although the Regional Director commented that "rich white people don't want to stand in queues". The Paarl office has only 4 staff officers.
The meeting was adjourned.
NATIONAL ASSEMBLY AND NATIONAL COUNCIL OF PROVINCES
EXPLANATORY MEMORANDUM: RATIFICATION OF THE INTERNATIONAL CONVENTION ON THE NATIONALITY OF MARRIED WOMEN
1.Purpose of Memorandum
The purpose of this memorandum is to set out the history, purposes and consequences of the International Convention on the Nationality of Married Women (the Convention) and to highlight some of the most important provisions thereof, with the view to obtaining Parliament's approval for the Republic of South Africa to ratify the Convention as contemplated in section 231(2) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) (the Constitution).
2. Objects of the Convention
The Convention was done at New York on 20 February 1957 and entered into force on 11 August 1958. The objects of the Convention are to recognise that conflict in law and practice with reference to nationality arises as a result of provisions concerning the loss and acquisition of nationality by women as a result of marriage, of its dissolution, or of the change of nationality of the husband during marriage, and to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to sex. South Africa signed the Convention on 29 January 1993.
One of the purposes of the United Nations is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion. Married women over the years have not always enjoyed the same protection as to loss, and acquisition of nationality than their husbands. As there is no justification for discrimination on the basis of gender, the Convention was adopted to promote gender equality.
4.South African legislation
Section 9 of the Constitution enshrines the equality of all persons and the right to equal protection and benefit of the law. In terms of this section no person or the state may unfairly discriminate against anyone on the grounds of, inter alia, gender or sex.
5. Provisions regarding ratification
5.1 In terms of Article 4 of the Convention, the Convention is open for signature and ratification by any State Member of the United Nations. The instrument of ratification shall be deposited with the Secretary-General of the United Nations. Article 6(2Y provides that for each State ratifying the Convention, the Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification.
5.2 Section 231(2) and (3) of the Constitution provides that all international agreements which require either ratification or accession shall bind the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces.
5.3 South Africa signed the Convention on 29 January 1993 which should now be ratified. Cabinet approved that steps be taken to request Parliament's approval to ratify the Convention.
6. Summary of Provisions of the Convention
6.1 Articles 1 to 3 of the Convention provide that neither the celebration or dissolution of a marriage between a national and an alien, nor the change of nationality by the husband during the marriage shall automatically affect the nationality of the wife; that neither the voluntary acquisition of the nationality of another State, nor the renunciation of its nationality by one of its nationals shall prevent the retention of its nationality by the wife of such national; that the alien wife may acquire the nationality of her husband through specially privileged procedures, but subject to such limitations as may be imposed in the interests of national security or public policy; and that the Convention shall not be construed as affecting any legislation or judicial practice by which the alien wife of one of its nationals may, at her request, acquire her husband's nationality as a matter of right.
6.2 Articles 4 to 12 deal with the signing, ratification, accession and denunciation procedures and, inter alia, stipulate that any State may make reservations to any article, other then articles 1 and 2. The Convention is equally authentic in Chinese, English, French, Russian and Spanish.
7. Comment by interested parties
7.1 The State Law Advisers (Department of Justice) and the State Law Advisers (International Law) of the Department of Foreign Affairs indicated that the provisions of the Convention are not in conflict with South Africa's domestic law and international obligations.
7.2 Since the Convention supports the same values as the Constitution and is also in line with the principles embodied in the South African Citizenship Act, 1995, wider consultation was not deemed necessary.
It is recommended that Parliament approve of the ratification of the Convention in terms of Section 231 of the Constitution.
Once the Convention has been ratified by Parliament, an instrument of ratification will be submitted to the Minister of Foreign Affairs for her signature who in turn will deposit it with the Secretary-General of the United Nations.
RATIFICATION OF THE INTERNATIONAL CONVENTION ON THE
NATIONALITY OF MARRIED WOMEN
MADAM SPEAKER/MR CHAIRPERSON
I HAVE THE HONOUR TO REQUEST PARLIAMENT'S APPROVAL TO RATIFY THE INTERNATIONAL CONVENTION ON THE NATIONALITY OF MARRIED WOMEN.
THE OBJECTS OF THE CONVENTION, WHICH ENTERED INTO FORCE ON 11 AUGUST 1958, ARE TO GIVE RECOGNITION THAT CONFLICT IN LAW AND PRACTICE WITH REFERENCE TO NATIONALITY ARISES AS A RESULT OF PROVISIONS CONCERNING THE LOSS AND ACQUISITION OF NATIONALITY BY WOMEN THROUGH MARRIAGE, ITS DISSOLUTION, OR THE CHANGE OF NATIONALITY OF THE HUSBAND DURING MARRIAGE, AND IN THIS REGARD TO PROTECT WOMEN AGAINST UNFAIR DISCRIMINATION BY RECOGNISING AND PROMOTING UNIVERSAL RESPECT FOR, AND OBSERVANCE OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOM FOR ALL WITHOUT DISTINCTION AS TO SEX.
ONE OF THE PURPOSES OF THE UNITED NATIONS IS TO PROMOTE AND ENCOURAGE UNIVERSAL RESPECT FOR AND OBSERVANCE OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOM FOR ALL, WITHOUT DISTINCTION AS TO RACE, SEX, LANGUAGE OR RELIGION. THESE FUNDAMENTAL FREEDOMS AND RIGHTS ARE NOW ALSO FIRMLY ENTRENCHED IN OUR CONSTITUTION.
DISCRIMINATION AGAINST WOMEN ON THE BASIS OF THEIR SEX HAS
BEEN A REALITY IN MANY SPHERES OF SOCIETY TRADITIONALLY
DOMINATED BY MEN. IN TERMS OF THE BILL OF RIGHTS, CHAPTER 2 OF THE CONSTITUTION, THE STATE MAY NOT UNFAIRLY DISCRIMINATE DIRECTLY OR INDIRECTLY AGAINST ANYONE ON, INTER AL/A, GROUNDS OF SEX OR GENDER. WOMEN, ON AN EQUAL BASIS WITH MEN, ARE THEREFORE NOW CONSTITUTIONALLY PROTECTED AGAINST UNFAIR DISCRIMINATION. THE COMMISSION ON GENDER EQUALITY, PLAYS AN IMPORTANT WATCHDOG ROLE IN THIS REGARD.
THE CONVENTION BEFORE HONOURABLE MEMBERS RECOGNISED IN
1957 ALREADY THAT MARRIED WOMEN'S POSITION IN REGARD TO
NATIONALITY WAS COMPROMISED IN MANY WAYS AND AIMED AT
ADDRESSING 'SUCH DISCRIMINATION AGAINST WOMEN.
IN TERMS OF ARTICLE 4 OF THE CONVENTION, IT IS SUBJECT TO
RATIFICATION AFTER IT HAS BEEN SIGNED BY. A MEMBER STATE.
SOUTH AFRICA SIGNED THE CONVENTION ON 29 JANUARY 1993 BUT
HAS NOT RATIFIED IT YET.
SECTION 231(2) AND (S) OF THE CONSTITUTION PROVIDE THAT
INTERNATIONAL AGREEMENTS WHICH REQUIRE RATIFICATION OR
ACCESSION SHALL BIND THE REPUBLIC ONLY AFTER IT HAS BEEN
APPROVED BY RESOLUTION IN BOTH THE NATIONAL ASSEMBLY AND THE NATIONAL.COUNCIL OF PROVINCES. SUCH RESOLUTION IS THEREFORE SOUGHT UNDER THIS SECTION OF THE CONSTITUTION.
THE STATE LAW ADVISERS AND THE INTERNATIONAL LAW ADVISERS
HAVE DECLARED THAT THE CONVENTION IS NOT IN CONFLICT WITH OUR DOMESTIC LEGISLATION OR OTHER INTERNATIONAL OBLIGATIONS.
I THEREFORE REQUEST PARLIAMENT TO APPROVE RATIFICATION OF THE CONVENTION IN TERMS OF SECTION 231 OF THE CONSTITUTION.
ONCE THE CONVENTION HAS BEEN RATIFIED BY PARLIAMENT, AN
INSTRUMENT OF RATIFICATION WILL BE SUBMITTED TO THE MINISTER
OF FOREIGN AFFAIRS FOR HER SIGNATURE, WHO IN TURN WILL DEPOSIT IT WITH THE SECRETARY-GENERAL OF THE UNITED NATIONS.
DEPARTMENT OF HOME AFFAIRS
SUBJECT: RATIFICATION OF THE CONVENTION ON THE NATIONALITY OF MARRIED WOMEN (THE CONVENTION)
To recommend submission of the above-mentioned Convention to Parliament.
2.1 Cabinet, on 1 2 May 1 999, approved submission of the Convention to Parliament for ratification.
2.2 In terms of section 231(2) of the Constitution "an international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces,
2.3 For this purpose an explanatory memorandum to the National Assembly and National Council of Provinces; notices for both houses; a certified copy of the Convention and a draft address to the aforesaid houses are enclosed for your consideration please.
3.1 It is recommended that Minister submits the Convention to Parliament in terms of section 231(2) of the Constitution for ratification.
Documents submitted to Parliament
MINISTER OF HOME AFFAIRS