Refugees Amendment Bill [B 11–2008]: public hearings

Meeting report

Chairperson’s opening remarks
The Chairperson, in light of the recent media prominence of attacks on foreigners, raised the subject of xenophobia. The Committee was very much concerned and had been at the forefront of engaging with the community on the issues of integration, and acceptance of refugees and asylum seekers who were present in the country. The Committee had organised a number of activities under its leadership, including a seminar held in Parliament, attended by over 700 refugees, asylum seekers, and illegal immigrants. It was very disturbing to hear on the news that there were attacks that had led to the loss of life in Pretoria, and attacks on Somalis in the Western Cape. Members of the Committee had on he previous day agreed that the Committee should consider intervening, so the Committee would urgently arrange a visit those areas, to meet with the people affected, and engage with the community. The Committee condemned such attacks and did not want to see any recurrence.

The Chairperson wished to share the experience of the United Nations High Commission for Refugees in interacting with refugees in the country. He said that it would be a considerable advantage if a representative of the section of the Department of Home Affairs responsible for the affairs of refugees were present at the meeting. At the previous day’s meeting, the Committee had raised concern about the presence of the Department in these public hearings, especially those staff who were dealing with the implementation of the law itself. The Chairperson was advised that an official with responsibility for refugee affairs would attend later.

Refugees Amendment Bill: Continuation of Public Hearings
The Chairperson noted that the previous day’s meeting had been tiring and challenging, and that Advocate Deon Erasmus, Acting Chief Director, Legal Services, Department of Home Affairs, had some challenging issues to consider.

Consortium for Refugees and Migrants in South Africa (the Consortium) Oral submission
Ms Mpilo Shange-Buthane, Advocacy Officer, Consortium for Refugees and Migrants in South Africa, said that Lawyers for Human Rights (LHR) had covered the fundamental issues in their presentation the previous day. She also endorsed the submission that would be made later by the AIDS Law Project and Treatment Action Campaign. The Consortium for Refugees and Migrants in South Africa had an interest in ensuring that the rights of both South Africans and foreign nationals in the country were protected. Whilst the Refugees Act of 1998 (the principal Act) provided good policy, many challenges were found in the implementation of the legislation. These challenges should be considered in relation to the proposed amendments. The Consortium welcomed the turnaround strategy initiated by the Director-General of Home Affairs, and trusted that challenges, such as convenient access to refugee reception offices (RROs), security inside and outside RROs, and delays in processing applications for refugee status would be addressed. It was vital that during the transition period, strong partnerships be formed between the Government and civil society. This required an improvement in communications between the Department of Home Affairs (DHA or Department) and other government departments, and civil society. There was a need to progress beyond the adversarial relationship that prevailed currently between the Department and non-government organisations (NGOs), where the NGOs were regarded as constantly criticising the Department, which would attempt to defend itself. With the new changes at the Department, the Consortium had high expectations of a more co-operative working relationship.

Migration posed both opportunities and challenges for South Africa. The challenges included the spate of violent and xenophobic racist attacks on foreign nationals taken place across the country. These challenges were heightened by the rising number of Zimbabwean nationals in the country. An employee of the University of South Africa (UNISA) had reported that foreign nationals had received letters threatening attacks on them if they did not leave the area; this was similar to the threatening letters sent the previous year to Somali traders in Mpumalanga, which were followed up by attacks, and nothing was done to forestall them. Strong leadership by Government was needed to prevent such attacks and to produce a clear policy to manage the stay of large numbers of Zimbabweans and other nationalities who were in the country without documents, and to safeguard their rights in line with the provisions of the Constitution. The Consortium looked forward to working with the Department of Home Affairs and other government departments.

Discussion
The Chairperson asked Ms Shange-Buthane to give details of the day-to-day work of the Consortium.

Ms Shange-Buthane said that the Consortium was formerly known as the National Consortium for Refugee Affairs. It was currently based in Johannesburg at the University of the Witwatersrand. It was not part of the University, but was an NGO given accommodation by the University. The Consortium’s role was that of a co-ordinator. It was a membership-based organisation. Members included Lawyers for Human Rights, the UCT Law Clinic, the Red Cross, some of the community-based refugee organisations, and other organisations. The Consortium promoted information-sharing within the sector, because previously organisations had tended to work on their own without sharing their experience. The Consortium produced a newsletter every second week with information of benefit not only to the service providers but to the refugees and migrants themselves. Because of lack of funding, the Consortium had terminated its Roll-back Xenophobia campaign, but it was endeavouring to re-institute the campaign, possibly under a different name.   

Mr F Beukman (ANC) asked if the Consortium received any assistance from the Chapter 9 institutions, which had a duty to strengthen constitutional democracy. 

Ms Shange-Buthane said that the Consortium had extensively used the South African Human Rights Commission (SAHRC), which had advised the Consortium on how to take up matters arising from the attacks on foreign nationals. In collaboration with the SAHRC, it had formed a steering committee to try to forestall attacks as well as deal with those that had happened. The Department of Home Affairs Counter-Xenophobia Unit was also part of that committee. The Consortium was also exploring co-operation with the Public Protector in addressing the xenophobia issue.

Mr M Lowe (DA) said that the presentation had been concise and very useful. He mentioned that other government ministers had observed the need for a publicity campaign to deal with xenophobia, for it was becoming a major problem. Mr Lowe agreed but was concerned that whilst theories could be discussed, progress could not be achieved until realities on the ground were dealt with. Such realities were the tens of thousands of people crossing South Africa’s borders, because, to them, South Africa offered the hope of survival that they lacked in their own countries. They came from both the neighbouring Zimbabwe and other countries. The fact that there were so few job opportunities in South Africa had to be taken into account, as well as the inability to deliver services, even to South Africans, in many areas. Such realities created a climate for such threats and attacks. If those problems were not dealt with, then the contingent problem of xenophobia would continue. Beyond a publicity campaign it was necessary to deal with the problems of joblessness and poor service delivery, and the problems in other countries. He sought Ms Shange-Buthane’s view as to what should be done from a South African perspective.

Ms Shange-Buthane said that the Consortium had already identified the challenge of addressing xenophobia while South Africans were also experiencing problems of their own, so it had begun a drive to collaborate with as many South African organisations as possible. These organisations were not limited to those dealing specifically with refugees, but included those dealing with other service-delivery issues in the country. This was aimed at improving matters not only for refugees but for everyone. The Consortium had experienced hostility from South Africans who claimed that the Consortium went out of its way to help foreigners but not to help South Africans who were having problems with the Government. This did not stop the Consortium from publicising the reasons for foreigners seeking refuge in the country, but it realised that, unless the problems facing ordinary South Africans were addressed, xenophobia would continue.

In Mpumalanga, the Consortium had met with South Africans who made a distinction between refugees and migrants. The South African residents agreed not to attack refugees, but they would attack migrants, as they claimed they were seeking the jobs which the South Africans themselves lacked. There was an onus on all concerned to improve service delivery in the country. 

Mr K Morwamoche (ANC) asked why Ms Shange-Buthane did not mention the recommendations from the Auditor-General, who had suggested many issues with regard to proper service delivery, non-linkage of computers, and duplication of personnel in order to make refugee centres more accessible and more effective.

Ms Shange-Buthane responded that she had not studied the report of the Director-General of Home Affairs, nor the Auditor General’s recommendations, but the Consortium would support any improvements that would assist refugees, especially in the reception centres.

The Chairperson said that obviously the Consortium’s main partner would be the United Nations High Commission for Refugees (UNHCR), and asked for its perspective on relations with the UNHCR.

Ms Shange-Buthane said a very close working relationship on all issues related to asylum seekers existed. UNHCR used to be one of the Consortium’s funders, especially of the Roll-back Xenophobia campaign. The UNHCR was part of the steering committee mentioned earlier.

Ms N Mathibela (ANC) asked why all the organisations in the field did not merge.

Ms Shange-Buthane responded that the rationale for the Consortium was to bring people together. Merging all organisations into one at the present time would not be feasible, because in the field of refugees and migrants there were many different issues which needed individual attention. Those specialised skills that each organisation individually brought to the network were still needed.

The Chairperson said that Ms Shange-Buthane had raised the issue of partnership with the Department of Home Affairs, and the issue of the refugee centres. The Amendment Bill spoke to that directly. The Director-General would, if the Bill were enacted, have more powers with regard to refugee centres in the country. The Committee agreed with Ms Shange-Buthane’s desire for a better working relationship with the Department of Home Affairs. The Committee also looked forward to a good relationship with the Consortium. He observed that Ms Shange-Buthane had not dealt much with the issue of migrants, but accepted that Ms Shange-Buthane might not wish to respond. He noted the point raised by Ms Mathibela around the multiplicity of separately-funded organisations in the field, and said that at some point they may have to join together, perhaps under the leadership of the Consortium or under the UNHCR. That would be further discussed in future.

Johannesburg Methodist Church (the Church): Oral submission
Bishop Paul Verryn, Bishop of the Central District of the Methodist Church of Southern Africa, said that South Africa was blessed with an outstanding Constitution. He had also noted several improvements in the Bill to the existing legislation. However, there was unfortunately a disconnection between the intention and the delivery. It seemed that there was little discussion between the Departments of Home Affairs, Justice, and Safety and Security. He believed it was essential that there was co-operation between these departments to match what was happening on a daily basis to the intentions of the Bill. If the police were victimising, hounding or abusing people that was a critical problem.

The Church’s experience in the inner city of Johannesburg was that, although the police were wary of entering the Church premises, on the streets of Johannesburg there was a vigorous campaign to arrest foreign nationals. The Church endeavoured to take newcomers, who numbered between ten and thirty each day, to the Department of Home Affairs as soon as they entered the building. However, at present appointments were only available about two months in advance, and no evidence was given to the applicant that he or she had reported to the Department of Home Affairs. Newcomers were therefore vulnerable to the attentions of the police, and liable to be charged, imprisoned for a time, taken to the refugee centre Lindela, and then deported across the border, often by then having acquired a criminal record.

The Bishop noted that some of the people subjected to this kind of treatment were exceptionally vulnerable. Some of them had medical documentation of evidence of torture in their home country, had escaped to South Africa, and then were arrested, thereby undergoing a second trauma, and then were deported, undergoing still more trauma. As a starting point, there had to be dialogue between the Departments of Safety and Security (DSS), and Home Affairs (DHA). Members would have heard the news of the court appearances of those who were recently arrested at the Church. One of the magistrates involved would no doubt be taken on review. The Bishop believed there had been shoddy, cynical and dismissive treatment of human beings, very reminiscent of the 1970s and 1980s.

The Bishop’s second concern was that refugees, asylum seekers or exiles were in a sense being systematically criminalised. This was partly a problem created by the press, but it was also a problem resulting from the attitude of the South African Police Services (SAPS) that the nexus of crime in South Africa lay in the refugees. They behaved discourteously to refugees as if they were criminals. He cited an incident the previous week in a shop belonging to the Church. There had been an altercation between the cashier and one of the customers, who then approached he police, who in turn arrested an Ethiopian, and three nationals of Mozambique. The Bishop contacted the Director-General for Home Affairs, who was told that the people who had been arrested were high on the list of criminals and had been sought by police. However, those four were released back into the city. The incident demonstrated the assumption that refugees were criminals.

The Bishop sensed from the amendment that the position of the judiciary would be diminished whilst the powers of the Department, in particular those of the Director-General, would be substantially increased. He was not sure that the increase in distance from the judiciary in evaluating refugee status applications was wise. He could see benefit from continuous and vigilant monitoring of the Department of Home Affairs. It was the Bishop’s experience that throughout the Department, from the lowest to the higher levels, there was corruption and bribery. The Church had an ecumenical refugee ministry and they had been monitoring for several months. The Church had given the Director-General a carefully documented presentation with suggestions that serious attempts be made to eradicate corruption in the Department.

The Bishop said also that it was necessary to understand what Conventions were being followed with regard to refugees. It was his understanding that the African Conventions were much wider, and gave a less rigorous distinction between economic and political refugees than the United Nations convention. In relation to refugees from Zimbabwe, it was sometimes inaccurate to try to distinguish between economic and political refugees. In Zimbabwe, a person perceived to be in opposition to the government would be denied food distribution and assistance. For example, the teaching profession in Zimbabwe had come under consistent and rigorous attack, as the Zimbabwean government’s perception was that this profession sought to undermine the position of the government. Many of those who approached the Church had been on hit lists and were advised to leave the country. When they came to South Africa, their primary aim was to earn in order to support their families. When they went to the Department of Home Affairs and said that they were economic migrants, their chances of obtaining refugee status became slim.

The Bishop finally noted that some asylum seekers, when being taken by the police to make application, were taken handcuffed. This was a violation of the Constitution and the Refugee Act,. The Church had met with the Director-General of Home Affairs, who agreed to convene a meeting with the Department of Safety and Security to achieve co-ordination and an end to victimisation, and also the possibility of engaging interpreters, who would hopefully not be corrupt.

Discussion
The Chairperson asked the Bishop how, in practical terms, the Church assisted the refugees, asylum seekers, and illegal immigrants with food, accommodation and other matters. The Chairperson noted that applicants came away from the Department of Home Affairs with no documentation to say that they had applied for refugee status. The Committee had wanted to meet with provincial directors of Home Affairs, since they dealt directly with these issues.

Bishop Verryn said that people came to the Church for shelter because it was an alternative to living on the streets of Johannesburg, which were violent and crime-ridden. The Church had had ambivalent success with soup kitchens. Many people in the building would be involved in preparing food and selling it at a reasonable price. 95% of the people in the building went out during the day to try to find some kind of piece-work to sustain themselves and send money back home. The Church also had a clinic, run by Médecins sans Frontières, which saw up to 80 people today. There was also a care facility to assist the physically weak and those discharged recently from hospital. There was a crèche upstairs, which took care of the babies in the building, to enable their mothers to go out to work. There was a pre-school in the basement of the building, and also an adult education unit. There were special classes in maths and science, specifically aimed at South African pupils. French and English were taught in the building, and there were many activities that the refugees had put together, such as reading clubs, chess clubs, karate clubs, soccer teams, volley ball teams and so on. In a sense the people in the building had created their own community. The Church also offered the diploma in theology of the Joint Board, for which several students were preparing. Latin American and ballroom dancing classes were offered.

Bishop Verryn noted that it was not that no help was to found at DHA, but that there was such a long delay. Currently, applicants were obtaining appointments for the end of May, which left a two- month period during which they were very vulnerable, having no documentation of any kind from DHA. The most that DHA had offered was to provide an applicant with a telephone number for the police to call if they arrested the applicant. This was not effective; he had heard of cases where police allegedly tore up people’s papers, on the basis that they were forged. Although there was some progress, he noted that the offices were very slow, and, in some places, intimidating and unfriendly.

Mr Morwamoche said that the Bishop seemed to be running his own government inside the church. He asked if he understood the laws of South Africa. He also had a concern with the Bishop’s interpretation of ‘refugee’. According to him, if one opposed the government of Zimbabwe, one automatically became a refugee.

Bishop Verryn responded that he was not as naïve as Mr Morwamoche thought concerning the law. Moreover he did not run a gangster parade in the church. Nor was he naïve enough to think that everybody who disagreed with the Zimbabwean government should be given refugee status. There were systems of evaluation in place. Sometimes, however, those systems were not adequate in understanding the nuances that people faced in their own countries. He was concerned that he detected in the question almost exactly what one faced over and over again, and that was basically the attitude that exiles were criminals.

Ms Mathibela asked if the Bishop had ever encouraged any of the Zimbabwean refugees to return home to vote, in order to increase the chances of removing the government to which they were opposed.

The Chairperson observed that Ms Mathibela was advising the Bishop to encourage refugees to join in politics.

Bishop Verryn responded that the Church had encouraged refugees to follow the procedures that were there. It cost money, however, to return to Zimbabwe. If the person who asked the question could provide a source of money to enable people to return to Zimbabwe, it might be helpful. However, it was dangerous for some people to return to Zimbabwe, even if they had the means, and there was no doubt that somebody who had medical evidence of torture would be putting himself at risk of being pursued by the authorities. The Bishop could not advise such people to return, even though many of them wanted to return, despite news that rigging of the elections seemed very much to be in evidence.

Mr Beukman asked the Bishop for his practical suggestions to improve the refugee reception centres and improve the regulations for the processing of applications to make them more user-friendly.

Bishop Verryn suggested that the Department of Home Affairs provide some sort of initial document of protection as soon as the applicant arrived at the Department. He also suggested that the processing be accelerated and be made much more friendly. The Bishop had visited reception centres and they had not struck him as the free, open, friendly places that South Africa was meant to be. He called for a “revolution of attitudes”. 

Mr M Sikakane (ANC) said that the Bishop had his sympathy. He disagreed with any abuse of human beings. It might be argued that if people were not wanted, they should be sent back home, but on no account should they be abused. He asked what the Bishop suggested the police should do when they encountered illegal immigrants with no documentation of any kind. He also asked how police officials could distinguish between applicants who had applied for appointments at DHA, and those who had not.

Bishop Verryn said that he was not suggesting that asylum should not be refused in cases where there was no genuine reason for granting it. However, that refusal should be done humanely and without abuse. He suggested some form of legislative censure of xenophobia, in the same way that legislative means had been found to address racism. When police came across somebody without documentation, he agreed that the police must regard that person as not having shown that he was legally present in the country. However, the person may have done everything to try to obtain the legal document, but be unable to have the document because of the bureaucracy. So it could be argued that the Department should issue a document confirming that the person was in the process of applying for status, and needed protection. To leave the person without any proof rendered him vulnerable.

Mr Lowe thanked the Bishop for his contribution. He asked why it was so difficult for Zimbabwean refugees to find employment as teachers, when many of them were appropriately qualified, and there was a known shortage of maths and science teachers in South Africa. He asked if the Bishop could expand on his criticism of the Bill in relation to the discretion to the Department rather than to the judiciary. He noted that it was almost an urban legend that foreigners were largely responsible for crime. He asked if many people, in the Bishop’s experience, were actually involved in crime, rather than just going out and searching for piece-work. He asked if, in the event of a change of regime in Zimbabwe, many of the Church’s residents would return to that country, thus diminishing the Church’s problems in accommodating such large numbers. He asked the Bishop to be specific as to what changes in the law he would like to see to address the issues that he had raised.

Bishop Verryn said that the Church had been assisted in putting a list of all the teachers in the Church’s care, and their qualifications, on to the websites of Departments of Education throughout the country. The Church had obtained recognition of their qualifications. Maths and science teachers were beginning to be employed, particularly in Natal. However, it had to be faced that there were limited employment opportunities in the country, and so a large number of teachers were working as cleaners and newspaper vendors.

Bishop Verryn said that he would like to see a strict time limit being observed by the DHA for processing applications. For example, a refugee should report to the DHA within a week of arrival. By the end of that week a refugee should be provided with some kind of evidence that he had reported to the Department, including an official notice that he could show the police, stating that until he had been properly evaluated, he should not be harassed. He recommended setting up an inspectorate to conduct surprise visits to Home Affairs offices.

Mr P Mathebe (ANC) thanked the Bishop for the good work he had done and was continuing to do. He asked what measures the Church applied to ensure that it assisted only bona fide refugees and asylum seekers, and not criminals. Secondly he said that it was wrong to pre-empt the election result in Zimbabwe. Thirdly, he thought Ms Mathibela’s question merited a more serious response -perhaps the possibility of obtaining funds from international organisations did exist to enable Zimbabweans to return to their country.

Bishop Verryn apologised to Ms Mathibela, and said that the question of funding was so vexed that money was an enormous issue. He noted that the Church had no means of scrutinising newcomers to detect criminals. The Church operated an open door policy.  However, it did not take long for people who misbehaved to be detected. In such cases they would be expelled from the building. The Church was on the point of signing an agreement of partnership with the police. In principal, there was absolutely no problem with the raid on the Church’s premises. He had no objection to the police entering the building to check for criminals. He was also aware that the Church was vulnerable. The building was easily entered and was at risk from mischief makers. The Church had its own security measures, including searches for weapons on entry to the building. There were rules in the building in order to build a community on the right lines. If someone was out of order, the Church did not hesitate to call the police. With so many people in residence, it was not surprising that incidents justifying police intervention occurred from time to time. Some of the Church’s experience with the police had been quite outstanding.

The Bishop noted that there were various house rules. Applicants should be engaged in education in some way. No smoking, particularly of dagga, was allowed in and around the building. There were rules against drinking of alcohol in or outside of the building, against stealing and against sex between unmarried couples in the building. The building must be kept clean; and all residents were required to attend a church service at 19h00 every evening. 

The Chairperson noted that some 1 200 would attend the evening service.

Bishop Verryn acknowledged that it was a good evangelical instrument. However, he quipped that a number of people might already have fallen soundly asleep because they rose very early each day to look for work. The church service was really a vehicle for disseminating community news. This included employment information, such as availability of seasonal farm work. 

The Chairperson asked what government policy the Church was following to deal with the transport of seasonal farm workers. He asked who paid for the transport of refugees in the care of the Church to places of seasonal agricultural employment.

Bishop Verryn said the Department of Labour and the Commission for Conciliation, Mediation and Arbitration (CCMA) were in partnership and had spent some time in the building interacting with the refugees and explaining their rights with regard to labour. The Legal Resources Centre had placed an intern in the building. Therefore the Church had measures in place to check labour abuse. 

The Chairperson asked what arrangement, if any, the Church had with the Department of Home Affairs with regard to illegal immigrants, who, according to the Immigration Act, could not be harboured by any person or organisation. On the other hand, given that there were no similar facilities elsewhere, the Chairman could envisage that the Department would view the Church as a partner in its endeavours to manage refugees.

The Chairperson also asked if the Church had any relationship with the Department of Education with regard to the classes it offered in various subjects.

The Chairperson suggested that getting arrested was a free means of transport home to Zimbabwe for the Christmas holidays. He believed that the Church was almost empty over Christmas.

Bishop Verryn denied that the Church was nearly empty over the Christmas holidays. From November 2007 to January 2008, occupancy rates had been higher than average, but the Church did not know the reason for this.

He said that it was very important for the Committee to know how the Church sustained its operation of providing shelter to more than 1 200 people. The issue of harbouring illegal immigrants was very dangerous. He asked how the Church could protect itself, when applicants to DHA were subject to such lengthy delays before obtaining any documentation on their status at all. For this reason, he was very conscious of the need to take newcomers to the Department of Home Affairs as soon as possible after their arrival at the Church. The Church had spent considerable sums of money on transporting newcomers to the Department to minimise the risk of being charged with harbouring illegal immigrants. The Church hoped that the partnership with the Department could be further strengthened.

The Chairperson asked if any of the Church’s residents arrested in the recent police raid had been criminals.

Bishop Verryn said that the police found no firearms and no drugs, and nobody who had been arrested remained imprisoned.

United Nations High Commission for Refugees (UNHCR): Oral submission
Mr Abel Mbilinyi, Deputy Regional Representative, UNHCR, commended the Chairperson’s opening remarks on the topic of xenophobia. Mr Mbilinyi was himself concerned that there was a trend towards attacking even second-generation migrants, even those of African origin. He commended the work of the Committee, in co-operation the Department, to improve the conditions for refugees. A meeting was being held in Pretoria between the City, the Department and the UNHCR to discuss ways of combating xenophobia in the capital city. He was happy that the Department, at the highest level, was addressing the issue, and that the Minister had invited the UNHCR together with its partners to work on this issue. There was a history in South Africa of working to combat xenophobia and racism, for example South Africa’s hosting the summit on racism in Durban. There was much that could be done to sensitise people to the need to live at peace with those who needed protection.

Mr Mbilinyi commended the Department of Home Affairs for following a consultative process in regard to the Refugees Amendment Bill (the Bill), which the UNHCR greatly appreciated. He noted that in many other countries the government would simply present new legislation as a fait accompli, without any consultation.

Mr Mbilinyi said that the question arose what in the Refugees Act had required changes. The Act was, in general, a good law. Implementation was quite a challenge, but that said, there was always the potential for improvement, such as the removal of the confusion between the Standing Committee and the Refugee Appeal Board by unifying the two bodies, as now contained in the Bill, to create one entity to deal with refugee appeals. He commented that the unification of the two bodies would require more detailed specification. The Standing Committee was dealing mainly, in the view of UNHCR, with reviews of abusive and manifestly unfounded cases, to deal with them quickly, and remove the person from the system as quickly as possible, rather than letting the matter drag on for years. While UNHCR believed that that kind of procedure should remain, it was not clear that this kind of procedure was provided for in the Bill. There was a provision that talked of abusive and fraudulent claims, but he cautioned that care was needed to ensure that the abusers and defrauders should not enjoy the same kind of advantages as any other person whose genuine claim to refugee status had failed and was being appealed. 

UNHCR believed that the consolidation of the appeal process was a positive change. However, since the existing Act was in most respects a good piece of legislation, it proposed an approach of ‘do no harm’ to the good aspects while seeking to improve only those in need of improvement. 

UNHCR had no quarrels with the definitions. The UNHCR was happy with the provision to include a valid marriage conducted in terms of the laws of a foreign country. This was in line with the practice in South Africa that a marriage was governed by the law of the country in which the marriage took place.

UNHCR disagreed with the Bill’s replacement of Section 6 of the Act with Clause 2A. The UNHCR proposed that the old section 6(1)(a-e) should be retained as presently stated, and reference to the Immigration Act, 2002, should be removed from the clause.

In general, UNHCR welcomed in clause 3(a) inclusion of persecution based on gender as a ground for recognition as a refugee, noting that South Africa would be one of the first countries in the world to include such provision in its legislation. However, given the wide meaning that UNHCR used to define ethnicity of race, it preferred deleting the word ‘tribe’ from the clause as it was redundant.

UNHCR had noted that in practice the DHA had not applied the concept of derivative status as provided for under Section 3(c) of the Act. This had created a situation whereby the principle of family unity was jeopardised. UNHCR urged that this anomaly should be clarified in the regulations.

UNHCR urged further that Section 38 of the Act should be amended to include a subsection in which regulations should provide in the manner in which spouses and dependents who were outside the country at the time the principal applicant applies for asylum could be reunited in South Africa. This would give effect to the concept of derivative status as envisaged in section 3(c) of the Act.

UNHCR agreed with the proposed amendment, set out in clause 5 in the Bill, to Section 4(1) of the Act, which would align the Act with the United Nations (UN) and Organisation of African Unity (OAU) Conventions.

UNHCR urged that training of officials, as provided for in the Act, should be retained, contrary to the changes proposed in clause 10 of the Bill.

UNHCR recommended that provision be made, by changing clause 11, relating to the proposed Section 8C of the Act, so that urgent appeals heard before a board with a reduced quorum, mainly to prevent people from illegal deportation, and to reduce the backlog of pending appeals. Membership of the appeals authority should be enlarged and regional appeals authorities established, working under the chairmanship of the national authority.  The National authority’s powers should be strengthened.

The position of refugee reception officer (RRO) had been abolished by clause 15, and replaced with a refugee status determination officer. This position, in the view of UNHCR, would be essentially a queue manager, with little productivity, thus adding to the delays. It agreed that a designated person should be in place to manage queues. However, that person’s function should be separated from that of the person designated to determine status.

The Committee needed to give considerable thought, in the light of sections 10 and 14 of the Constitution, to the Bill’s proposal in clause 14, to insert a new section 21B with regard to good faith spousal relationships. Investigation of the existence of a good faith spousal relationship for a period of two years would entail invasion of privacy and would be labour intensive. The Director-General could not be expected to enter the bedrooms of everyone and ask intimate questions. UNHCR acknowledged that there was good intention to ensure that people did not engage in marriages of convenience, but considered that this proposed new section should be deleted.

The renewal of asylum permits was a cumbersome procedure. In regard to Clause 15, UNHCR recommended that the standard period of renewal permits should be clearly spelt out in the amended Act, preferably an extended period. Instead of renewing, it would be better to determine status immediately. There would be no harm in deleting Section 22(7) of the Act regarding failure to return a permit, because this was already covered by Section 37. The UNHCR was ready to co-operate with the Department of Home Affairs in finding ways of accelerating the processing of applications.

With reference to clause 19 of the Bill, UNHCR thought that this needed clarification of what appeared to be a typographical error confusing Immigration Act with Refugees Act. In its current form it might create confusion to those determining refugee status.

UNHCR urged that the former Section 27(g) of the Act be retained to clarify the legal status of health care institutions that provided care to asylum seekers and to avoid criminalising assistance.

UNHCR noted that the removal of Section 27(g) would remove the right to primary education. The international Conventions gave a universal right to primary education of children, irrespective of status. Failure to deal with this in the amended Act could be construed as meaning that a child could be deprived of education.

In regard to Clause 21, setting out a proposed new Section 27A, UNHCR proposed that the validity of documents issued to refugees should be for a period of not less than three years and preferably of five years. There were more advantages to both sides to giving a longer period.

It was also proposed that documents issued to refugees should be aligned with other documents legally issued to foreigners in the country.

With reference to clause 30, it was pointed out that all offences in Section 37 attracted the same punishment and UNHCR suggested they should be rationalised, so that the more serious offences should attract greater sentences.

Discussion
Mr Lowe commended Mr Mbilinyi for his knowledge of the Act. He noted that the situation in South Africa was far from ideal, as South Africa had porous borders, and a Department of Home Affairs that was in many respects dysfunctional. He asked why Mr Mbilinyi was wanting to do away with the requirement of proof of the existence of a good faith spousal relationship. He pointed out that many countries believed this was necessary and in South Africa, with the situation just outlined, this was more so. Secondly, he asked if the Swiss example was a little impracticable in South Africa’s situation, and asked for further clarity. In a perfect world, anyone coming to South Africa should have free access to health care, but he wondered if this could be justified now in South Africa, where even citizens were often constructively denied health care because of the lack of health care facilities, despite the Constitutional provisions.

The Chairman noted humorously that Mr Lowe implied that everything was falling apart. It was important not to give the impression that nothing at all was being done, but rather create a more positive impression.

Mr Mbilinyi called for reasonable fees at health care facilities. He noted that it was dangerous to withhold treatment of contagious diseases in refugees, because lack of treatment created the risk of infection being transmitted to local people, and basic human rights being withheld. Moreover, the Constitution should not be applied selectively. The right to healthcare in the existing Act could be retained without harming the infrastructure of the country. Removing mention of access to primary education would expose South Africa to international challenge.

Mr Beukman was in agreement that appeal boards could consist of one member when necessitated, but with the proviso that the member be legally qualified.

Mr Mbilinyi agreed that if an appeal board consisted of one member, then a legal qualification would be necessary.
 
Mr Beukman also asked if there were examples of countries where non-government organisations and churches helping refugees worked together with the government as part of the regime. In South Africa, in practice there was a whole coalition involved in helping refugees. He asked if they should remain outside the Act.

Mr Morwamoche corrected the statement that the DHA had many problems: it was a department that had many challenges. He asked who was responsible for monitoring compliance with the convention.

Mr Mbilinyi praised the idea of thinking of challenges rather than problems. He explained that UNHCR had two functions; to co-operate with the Government, and to advise the Government when necessary. It was not a visible function but UNHCR was engaged on it on a daily basis.

Mr Morwamoche said that in an appeal, the matter was governed by urgency. Without urgency, one would not succeed.

Mr Morwamoche said that the work of the Department of Home Affairs was hampered by delays in embassies’ identification of their nationals at the reception centres.

Mr Mbilinyi said that the role of embassies in protection of their citizens should be distinguished from that of identification. As the Chairperson mentioned, many refugees would feel intimidated by visits from embassies. The only exceptions would be voluntary repatriation and deportation to the wrong countries. 

The Chairperson commented that refugees did not want to meet embassy officials, because in many cases they were escaping from their governments.

Mr Morwamoche wanted advice with regard to the crossing of international borders.

Mr Mbilinyi suggested following the example of East Africa.

The Chairperson said that the issue of documentation became very critical. Also some countries took a very long time to issue passports. The Committee had visited neighbouring countries to review the SADC protocol to facilitate movement of people and goods.

Mr Mbilinyi said West African countries had in the past some freedom of movement. Perhaps South Africa’s requirements for documentation were too strict.

Mr Mathebe observed that it was mostly churches and similar organisations that were helping refugees. He asked how UNHCR helped refugees physically and practically in South Africa, in the absence of refugee camps.

Mr Mbilinyi said that the UNHCR had been in South Africa for more than 15 years. Its first role was purely technical – to persuade South Africa to ratify conventions. Its second role was to assist in the repatriation of Mozambique nationals. Thereafter, South Africa began to receive refugees. By 2000 there were about 30 000 asylum seekers in South Africa. UNHCR worked with the Department of Home Affairs on a backlog project fully financed by UNHCR. In the later years, South Africa had become more attractive and about 100 000 asylum seekers arrived. Again UNHCR assisted the Department. The UNHCR had a network of 13 refugee organisations. However, since asylum seekers had a right to work and study, UNHCR limited its work to extremely vulnerable people and assisting asylum seekers to integrate into the country. Its work did not touch directly the majority of asylum seekers. Assistance was rendered largely through the UNHCR’s partners such as the NGOs. UNHCR, as a United Nations structure, did not want to substitute itself for the South African Government or the NGOs. South Africa had a smaller number of refugees than many countries.

The Chairperson asked why the good faith spousal relationship requirement should be dispensed with for refugees, while it was in place for other applicants for residence permits by virtue of the Immigration Act, 2004.

Mr Mbilinyi believed that he had demonstrated that the requirement was administratively too cumbersome.

The Chairperson asked the Department of Home Affairs for information on the requirements of the Immigration Act, 2004.

Mr Tsietsi Sebelemetja, Acting Director: Drafting: Legal Services, Department of Home Affairs, asked that the DHA provide the Committee with the information later.

Mr Mbilinyi gave the example of Sweden, which practised the good faith spousal relationship, Here, social workers would keep tabs on and follow the lives of couples for two years, but it had been challenged in the European Court. Though he was raising it in the context of refugees, he was not sure that nationals were happy with it.

In terms of the limitation period for determining refugee status, he said that it should be possible to determine it within 180 days.

The Chairman acknowledged that there was nothing wrong with the existing law, but streamlining was required. The Committee would deliberate later, in detail, clause by clause, and then engage with the Department of Home Affairs.

Legal Resources Centre (LRC) Oral submission
Mr William Kerfoot, Attorney, Legal Resources Centre, which had helped refugees and asylum seekers since 1996, submitted that only a very short time had been allowed for submission of comments. There were far reaching amendments that were by no means of a purely technical nature.

The one constant theme in the public hearings had been the disjuncture between what was set out in the Act and the implementation of it. The Bill would not solve the problems of the DHA. The role of officials and of the police evoked memories of the past, including the former influx control commissioners, who enforced appalling laws in appalling conditions. He condemned the criminalisation of asylum seekers, who were often treated worse than criminals who had committed rape or murder. The problem of refugees had been a problem of many years standing.
Mr Kerfoot himself had pleaded with DHA to extend the validity of Section 22 permits to six or nine months. The Department had failed to observe the very basics of legality and the principles of the Refugees Act, 1998. Refugee Status Determination Officers (RSDOs) were, in Mr Kerfoot’s experience, not well trained or oriented to the situation of refugees. However, in Cape Town the backlog project, which utilised contract staff, had enormous success, and he hoped that the Department would build on that achievement. 

Specific comments were then given. Mr Kerfoot said it was unclear why the new section 1A(e) was inserted. Unless there was a particular reason for its inclusion – which should be clearly stated – the Centre would propose its deletion to avoid confusion.

Amendment of Section 4(1) constituted a significant and undesirable change, which could take the power of decision away from the courts and place it exclusively in the subjective hands of an administrative decision maker, whose decision would be subject to review only on the grounds of gross irregularity.

Whereas the Standing Committee had previously had the powers to ‘formulate and implement procedures for the granting of asylum’, this power was not granted to the new Refugee Appeals Authority, and such its procedures were not therefore subject to independent scrutiny, even by the legislature. Granting of individual unfettered discretion to the Chairperson of the Refugee Appeals Authority was neither necessary nor desirable and checks should be provided for as part of the procedure.

With regard to the insertion of Section 21A, it would help to clarify the procedure after the asylum seeker permit had been granted. In regard to the rights of children and the mentally ill – for instance bodies such as the Centre for Child Law - should be actively consulted on this clause to see whether it complied with national and international best practice.

With regard to the insertion of Section 21B, the LRC enquired if more than one spouse could be recognised under this section.

With regard to the amendment of Section 22(1), LRC submitted that the replacement of the Standing Committee, which was a semi-independent body, with the Director-General or her delegates suggested an intention by DHA to introduce greater control by the Department over policies and conditions imposed in relation to asylum seeker permits. This was undesirable.

With regard to the repeal of Section 25, the cancellation of the automatic review was seen by LRC as a negative step. Although efficiency was clearly a concern, it would appear to relate to an underlying desire to decrease the opportunities for asylum seekers to have their circumstances considered. The Centre submitted that instead of these changes, it would be better to capacitate the relevant authorities to perform their functions in an efficient way. It was unacceptable for a system that had been criticised for its inefficiency (by the judgment in the Tafira case) to be simply jettisoned. This was indicative of a desire to sweep the problem under the carpet rather than deal with it constructively.

LRC recommended that a review of detention should be carried out by a High Court rather than a Magistrate’s Court, to ensure greater respect of the rights of asylum seekers. Perhaps a later amendment aimed at improving the training of magistrates, as suggested by the Chairperson, would enable detention reviews to be returned to the Magistrate’s Courts.

It was a cynical misrepresentation to suggest that the ‘main objective’ of the Refugees Amendment Bill was to substitute definitions. The changes were not merely of definition, and in fact primarily related to two substantive changes - the decrease in judicial oversight of the process and the increase in control by the Director-General and his or her appointees. This was particularly disturbing in the light of the Ruyobeza case where the court was at pains to promote the independence of the Standing Committee.

LRC also felt that amending legislation to bring it in line with ‘departmental and government policies’ did not appear to be the appropriate way to deal with such issues in a dysfunctional Department. Simply replacing non-functioning institutions with new ones was no guarantee that the structural problems would disappear.

Discussion
Mr Mathebe objected that it made no sense to complain of long queues whilst at the same time suggesting recourse to the time-consuming processes of recourse to the High Court. He asked if it was not the case that Magistrates were well trained, and indeed trained to the same standard as judges. Often a magistrate would have the benefit of 30 years experience, in comparison with some judges who had only ten years experience.

Mr Lowe commended the Legal Resources Centre on a constructive and succinct submission. He agreed that it was not good enough to replace one set of unsatisfactory rules with another. It was a theme that was recurring regularly. He said that Mr Kerfoot had made a good case for doing away with biometrics; however, he asked him what the alternative was. He gave Switzerland as an ideal example, expressing his favour of the use of biometrics, and noting that the Refugees Amendment Bill was introducing a progressive measure in providing for the use of biometric testing.

Mr Kerfoot said biometric testing might be acceptable if applied equally and not in a discriminatory manner. To apply such testing only for refugees would be unfair and a disaster.

Mr Morwamoche agreed with Mr Mathebe’s objection to involving the High Court, saying that it was user-friendly only for the rich, not for the poor, and offered the traditional courts as an alternative.

Mr Kerfoot replied that not many people were held in detention and it would not be a problem to conduct hearings of appeals against detention in the High Court. If there were delays, they would not be comparable to the delays in issuing documents. As the Chairperson had suggested, training of magistrates could be upgraded. 

The Chairperson said that the Committee would study the Centre’s proposals. The biometric testing was expected to be implemented for South African citizens in due course. He advised the Department to take account of the serious issues raised.

The Chairman noted that existing immigration legislation mandated the Department of Home Affairs to combat xenophobia, and thus the Committee was involved. Although it had been involved in planning the workshop, there was a need for the Committee to involve itself with the communities visibly. 

Mr Lowe supported the Chairperson’s initiation of discussion.

AIDS Law Project and Treatment Action Campaign. Oral submission
Ms Fatima Hassan, Senior Attorney, AIDS Law Project, submitted that while the AIDS Law Project and Treatment Action Campaign (ALP and TAC) supported certain aspects of the Bill, it had concerns about some of the objectives and provisions, as well as about significant omissions that specifically related to health and social services. A number of organisations, including Lawyers for Human Rights, the Legal Resources Centre, the South African Council of Churches, and Wits Law Clinic, had endorsed the AIDS Law Project and Treatment Action Campaign’s submission. Given the short period of only 16 days for comment, ALP and TAC chose to deal only with questions around access to health and social services for refugees and asylum seekers. Their decision not to comment on all aspects of the Bill should not be seen as in any way supporting or endorsing all the objectives and or remaining provisions of the Bill that were not directly addressed in their submission.

ALP and TAC opposed the removal of the ‘right to health services’ contained in Section 27 (g) of the Act, and wanted the provision to be retained and strengthened. It was deplorable that refugees were denied access to life-saving treatment, in particular for HIV/AIDS, because they lacked South African identity documents, or using the excuse that the hospital concerned had no budget for their care.

The provisions that purported to deal with children were weak and required significant strengthening.

The Bill as it currently stood made an unnecessary distinction between ‘refugee’ and ‘asylum seeker’, in a manner that might lead to the violation of the rights of asylum seekers.

The ALP and TAC opposed the Bill’s proposed removal of the existing Section 6 of the Act, which expressly incorporated international treaties and declarations into the interpretation of the Act.

The ALP and TAC were concerned about the health conditions at immigration centres, in immigration queues and police holding cells. There was an on-going risk of the spread of TB, including drug-resistant TB, and other public health problems, not only amongst inmates, but among the staff of these centres and the surrounding community. Moreover, there was concern that inmates could not seek outside medical help without clearance from the DHA.

Mr Regis Mtutu, International Campaigns Co-ordinator, Treatment Action Campaign, submitted that conditions at the Musina detention centre were similar to those at other centres, but the ALP and TAC had visited Musina in person, and witnessed many abuses and violations of health rights, set out fully in the written submissions. Musina’s hospital was not well equipped to deal with the influx of refugees, in particular those suffering from HIV/AIDS. The centre was situated at an army base but was under the control of the Department of Home Affairs. There was no evidence of the availability of running water. There were no medical facilities on site. There was immediate danger of the spread of treatment resistant tuberculosis. There was lack of due process in deportation procedures. The ALP and TAC had not been given sufficient time to interview all detainees by the police. Young women were subject to sexual assault while crossing the Beit Bridge border and when they first arrived in South Africa.

The ALP and TAC appealed to the Committee to conduct an unannounced visit, and investigation into access to health services in particular, to the Musina detention centre and to investigate the unlawful detention of children and alleged abuse carried out by officials in the employ of South African Police Services and the National Defence Force.

The ALP and TAC was also concerned with the inhumane conditions encountered by people when entered asylum application queues at Refugee Reception Offices (RROs). Many spent days in the queue without access to shelter, water, sanitation or food for fear of losing their place in the queue. The Bill regrettably did not seek to address the health situation and health risks in these queues nor included minimum standards for queuing.

Discussion
Mr Beukman said that many of the issues were policy issues that also fell within the Security cluster, but the Committee appreciated the information. He asked about synergy with the Chapter 9 institutions. He asked if those institutions were not working. The Chairperson had taken a lead with conducting oversight.

Ms Hassan said that even the SAHRC independent external monitoring of the detention centres had been stopped. No response had been received from them on their recent activities with regard to refugee rights. Such Chapter 9 institutions and NGOs should be allowed access to the centres. It was important to accommodate an additional funding for refugee care in the hospital budget, and the Committee was requested to intervene with the Department of Health.

Mr Lowe said that the presentation was very clear and specific. There was a lack of the means to implement the legislation at the ground level. He asked if the ALP and TAC took up the complaints against the police with the Minister.

Ms Hassan said that only a few of the officials were involved in the sexual abuses. The Church was seeking to engage in restorative justice by way of an approach modelled on that of the Truth and Reconciliation Commission. The City of Cape Town police had begun a training programme to assist them render help to refugees.

Mr Mtutu said that it was very difficult for refugees to initiate action against the police. It seemed that there was some kind of collusion between Home Affairs and the police to deport refugees who were determined to pursue cases against the police.

The Chairperson said that the Committee had been satisfied on a previous visit to the Lindela centre, but now heard bad news about the Musina centre. He asked for more information.

Ms B Mkhwebane-Tshehla, Director, Department of Home Affairs, confirmed that the DHA was not involved in the Musina centre. It was administered by the South African National Defence Force and the South African Police Services. Moreover, South Africa did not keep refugees or asylum seekers in detention centres, but instead had a policy of integration.

Ms M Maunye (ANC) said that Home Affairs did not appear to know what was going wrong, and it was the Department responsible for people entering the country.

Mr Beukman said that he assumed that the statement on page 13 of the submission that the Musina centre was apparently under the control of the Department of Home Affairs was incorrect.

The Chairperson said that it was necessary to call someone to account.

Mr Lowe expressed outrage at Home Affairs’ non-involvement in a refugee crisis; it should not be left to the defence forces.

The Chairperson noted Mr Lowe’s comment.

Ms Mathibela asked about the role of the DHA when irregularities were happening in remote areas, and how it dealt with those who crossed the border at non-official crossing places.

Mr Morwamoche supported the idea that someone should come to account to the Committee. He was happy with the Department of Home Affairs response thus far. He was also happy that the presenter had raised these issues. 

The Chairperson asked ALP and TAC how they came to know about the problem.

Mr Regis said that information had been given by Zimbabweans and by the Musina police commissioner, also by some individuals from the South African National Defence Force.

The Chairperson asked if the Department of Home Affairs was involved.

Mr Regis replied that according to the people there, the Department was involved.

The Department said that it was essential to state the correct facts.

Ms Lee Anne de la Hunt, Special Adviser to the Minister of Home Affairs, confirmed that the Department did not run any centre at Musina or anywhere else.

Ms Hassan said that she would send by email a full copy of the organisation’s report on its visit to Musina. They were not allowed to take photographs. It was inconceivable that the Department did not know what was going on. It was unclear to any member of the public who exactly was in charge of in running the centre, thus the use on page 13 of ‘apparent’. The ALP would try to get photographs from another organisation that wished to remain anonymous, for fear of prejudicing its relationship with the Department of Home Affairs.

The Chairperson acknowledged that there seemed to be some kind of illegal centre dealing with illegal immigrants. The Department of Home Affairs would have to be involved. There were certain standards to be observed. 

The Chairperson resolved that the Director-General be required to provide information about the involvement of the Department in the Musina centre to the Committee by Friday 28 March 2008. The Committee was mindful of its oversight role with regard to human rights and took the matter very seriously. The Cluster would have to take up with the police the issues raised, even up to the level of the Ministry. The Committee condemned the abuse of children and women.

The Chairperson observed that a major theme of the hearings had been the need for fair and equitable implementation of legislation that was essentially good. The Bill itself contained relatively minor amendment but was concerned with a major issue.

The Chairperson noted that the public hearings were now concluded, but the Committee would meet to deliberate the clauses of the Bill in detail, taking into account all the submissions received, with the aim of completing its deliberations by mid-May. The Chairperson thanked all those who had given oral submissions.

The meeting was adjourned.