Refugees Amendment Bill: briefing by Deputy Minister; Director General’s Allegations: discussion

Home Affairs

10 March 2008
Chairperson: Mr P Chauke (ANC)
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Meeting Summary

The Committee received a briefing from the Department of Home Affairs (Department) on its proposed amendments to the Refugees Act. The presentation specified all the substantive and technical amendments introduced in the Bill. Members voiced their concerns about the extent of consultation, refugee smart cards and time frames. The Committee also scrutinised the Refugees Appeals Authority (RAA) and issues addressed in the Regulations. The Committee also briefly discussed the Committee’s response to the allegations made by the Director-General (DG) of Home Affairs.

Meeting report

Opening Address by Chairperson
The Chairperson announced that the Committee would finalise its programme and receive a briefing from the Department on the Refuges Amendment Bill. He indicated that the presentation would be lead by the Honourable Deputy Minister, Mr Malusi Gigaba, in the absence of the Minister. The Chairperson noted that the Committee was originally scheduled to deal with the Bill some time in May. However, it was only informed in the previous week that the Bill had to be finalised urgently. 

Committee Programme: Adoption
The Chairperson reminded the Committee that one of the issues raised by the Director-General in the previous meeting concerned the stability of the Committee programme. Unfortunately, there was no certainty in parliament with regard to set dates, as demonstrated by the acceleration of the present Bill before the Committee.

Furthermore, he stated that the Committee had postponed its workshop, which was scheduled to commence on the 12 and 13 March 2008 because Members wanted to participate in the Ministers Question Time. As a result, he proposed that the workshop be postponed until the Thursday, Friday, Saturday and Sunday of the current week. This suggestion was opposed by several Members and it was eventually decided that the workshop should take place in the first week of April.

The Chairperson briefly summarised the issues that would be on the agenda at the workshop. Some of the items related to the issues of accountability and oversight, xenophobia, integration and refugee rights.
The Chairperson guided the Committee through the entire annual draft programme, and asked Members to comment on it.

Members made a few minor amendments and adopted the programme. It was noted that this was a working document and subject to further adjustments.
Mr D Lowe (DA) expressed that the Committee had a record of being proactive and doing unannounced visits. He hoped that the programme would remain flexible so that the Committee could continue this practise.

Proposed Amendments to Refugees Amendment Bill: Briefing by Department
Opening Comments by Deputy Minister  
Mr Gigaba explained that the Refugees Act had been passed in 1998 and came into effect in 2000. Its principal aim was to give effect to South Africa’s international obligations towards refugees and asylum seekers. In an environment where most countries were closing access to their asylum systems and retreating from their international obligations, South Africa had been lauded for its progressive refugee policies. The UN High Commissioner for Refugees continued to praise the country’s policies and even divulged that Zimbabwean refugees in Zambia expressed a desire to return to their country, whilst those in South Africa conveyed a contrary view.

The Deputy Minister recalled that some time in the previous year, many in the country were calling on government to establish refugee camps to deal with the influx of Zimbabweans. Government adopted a position that this was not necessary, which was supported by the UN. He emphasised that in amending the Bill, government had no intention of diluting its international responsibility. He admitted that there was a disjuncture between the policy and its implementation.

The Deputy Minister articulated that the Amendment Bill provided for the dissolution of the existing Standing Committee for Refugee Affairs and the Refugee Appeal Board. These structures were replaced by a Refugee Appeals Authority, which would have to report on its activities annually. In addition, the Bill provided that each Refugee Office must have a RSDO. The Bill also provided for the repeal of certain sections; and effect certain technical corrections.

The Chairperson expressed dissatisfaction that the Department had not presented Members with a copy of the upcoming presentation.

Mr Gigaba explained that it was an oversight.

The Chairperson remarked that this was a tendency of the Department not to submit documents to the Committee. He hoped that it would not happen in future engagements.

Proposed Amendments
Advocate Tsetsi Sebelemetija, Acting Director: Legal Services, Department of Home Affairs, summarized broadly that the Bill sought to amend definitions; provide for delegation of powers; provide for matters relating to the establishment of Refugee Reception Offices; provide for the dissolution of the Standing Committee for Refugee Affairs and the Refugee Appeal Board; provide for matters relating to the Refugee Appeals Authority; provide for clarification and revision of procedures relating to refugee status determination; to provide for obligations and rights of asylum seekers; provide for repeal of certain sections; and effect certain technical corrections.
He outlined both the substantial and technical amendments introduced in the Bill. (See presentation).

Mr F Beukman (ANC) posed two questions. Firstly, he asked whether the proposed changes to the principal Act were a product of the processes introduced by the Task Team and the Intervention Team, and whether the amendments encompassed all the improvements the Department wanted. Secondly, he queried whether the Department had consulted with the Law Society and considered their input.

Mr Gigaba explained that the amendments were not happening independent of the re-structuring process within the Department. He maintained that the Department could not specify that it would never come back one day to seek further amendments because the process was continuously evolving. The current amendments were based on the country’s international obligations and advice received from different stakeholders. Finally, he stated that when the Department completed its turn around strategy, it may want to propose further amendments, which would more comprehensive than the current ones.

 Adv Sebelemetija confirmed that the Department had consulted and considered the input of the Intervention Team, the Law Society and other bodies.

Mr K Morwamoche (ANC) observed that the Department did not make any mention of the recommendations made by the Auditor-General (AG), with regard to refugee systems and the manner in which ID numbers were entered into the system more than once. The report also did not address the AG’s charges that the Department disregarded Regulations, regarding the time delay in the filling of forms.

Mr Gigaba argued that most of the matters raised by the AG were mainly operational and did not need to be included in the legislation, but in Regulations.  Additionally, he disclosed that all the concerns were being addressed as part of the turn around strategy.

The Chairperson countered that the Committee needed to scrutinise the Department’s response to the issues raised by the AG, because all the Department’s disclaimers were around these issues.

Mr Morwamoche raised two additional issues. Firstly, he expressed concern that the State law advisers continued to disregard the House of Traditional Leaders, and deemed it unnecessary to consult this structure on the Bill. He claimed that traditional leaders played a role in helping refugees obtain documents.Secondly, he claimed that the Bill was not user-friendly due to its structure and numbering.

Adv Sebelemetija indicated that he would clarify any unclear aspect (of the Bill), personally with the Member.

Mr Gigaba commented that the Member raised a valid point regarding the role of traditional leaders.

Adv Sebelemetija explained that it was State Law Advisors decision, and not that of the Department’s, to not table the Bill in the House of Traditional Leaders. Furthermore, he mentioned that the Department was engaging with traditional leaders on other matters, such as the customary Marriages Act.

The Chairperson confirmed that traditional leaders assisted refugees in securing documents and played a key role in the refugee system. Consequently, he announced that the Committee would engage with them, to learn and understand their experiences.

The Chairperson enquired about the refugee smart card project.

The Deputy Minister replied that the Department discontinued issuing the cards because there was a problem with the system. The contracted company could not deliver the quality of service the Department wanted. Equally, he conceded that there were serious process flaws within the Department. It was hoped that the system would be reintroduced in a few months.

The Chairperson stated that the Committee needed to determine why this initiative collapsed and how much was spent on it.

Mr P Mathebe (ANC) sought to ascertain whether the Bill prescribed a specific period within which an application would be dealt with, and in the event that an application had been rejected, if there was a prescribed time period for one to file their appeal.  

The Deputy Minister explained that there was “work taking place”, to comprehensively address the issue of systems, processes, people and IT. The current process was old and tedious, and by its nature created backlogs. During the entire process, no person within Refugee Affairs was able to give an applicant a specific date for an interview to confirm their status and finalise their application. In response to this, the Bill itself tried to re-organise the process by putting the RSDO first in line when a person first applied. It was expected that this would eliminate the backlogs.

 Adv Sebelemetija replied that the time period should be included in the Regulations because it concerned processes rather than substantive issues. Furthermore, he clarified that the Refugee Appeals Authority would have the flexibility to determine its own rules for all matters pertaining to the appeal process.

The Chairperson questioned whether the Department would manage to reduce the backlog if there was only one RSDO per refugee office.

Adv Sebelemetija clarified that the word at least appeared before the word one. This implied that a minimum of one RSDO was required. This number would be reviewed on a continuous basis and would be determined by the DG.

Ms N Mathibela (ANC) examined whether the systems within the different offices were linked so as to enable an individual who had made an application in one province to proceed with their application in another.

Adv Sebelemetija indicated that the process was largely manual and if a person applied in one province and moved to another, there would be delays in the system because the applicant would have to wait for their forms to arrive or re-apply. Currently, the electronic system was not able to pick up an application, regardless where a person applied. The Department was currently piloting a system to address this.

Mr Beukman noted that the Department did not specify what qualifications and experience a RSDO should have.

Adv Sebelemetija clarified that this would be outlined in the Regulations.

The Chairperson asked about the role of parliament in the appointment of the appeal authority. He also wondered about its independence and composition.

Adv Sebelemetija explained that the Refugees Appeals Authority consisted of a Chairperson, who may appoint any such number of members that would be able to determine an application. With regard to the appointment of members, the Department had made it possible that the Minister would have due regard to their qualifications and expertise. Finally, he stated that the RAA would be held accountable to parliament because it would be required to produce an annual report, which would be tabled to parliament by the Minister.

Mr Beukman argued that the Committee needed an assurance in Act that there would be speedily handling of appeals.

The Chairperson flagged this point and noted that Bill still had to go through the entire parliamentary process.
The Deputy Minister recognized that the Bill was before the Committee and could be worked on further. However, he hoped that it would not be changed to such an extent, where a future technical amendment would require an amendment to the Act.  He maintained that some of things were matters of process and could be dealt with in the Regulations. In addition, he commented that the Department would respond to all the issues raised by the Committee in future engagements.

The Chairperson mapped the way forward and the process the Bill would forward. He voiced scepticism regarding the Department’s readiness to implement the Bill.

The Chairperson thanked the Department for their input, and they left the venue

Discussion on DG’s Allegations
The Chairperson asked the Committee whether they wanted to raise any issues regarding the DG’s allegations in the previous meeting.

Mr Lowe stated that he had written a letter to the speaker to investigate the allegations that the Director-General had made.

The Chairperson commented that the Committee had resolved to first review the minutes of the meetings, and then respond to the allegations. Nevertheless, he maintained that it would be “wrong” if any Member of the Committee was involved or engaged with any suspended official from the Department. He claimed that the Department had never briefed the Committee on the case, let alone the charges against the officials. He therefore disputed that the Committee received any such information from the Department that could be relayed to the suspended officials. He reiterated that the Committee would review the minutes of the meetings, and subsequently decide how to proceed. He contended that the allegations were serious and that the Committee might have to consult with the parliamentary legal advisors.

The meeting was adjourned.


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