The Department of Home Affairs briefed the Committee on the bi-lateral agreement on the facilitation of cross border movement of the citizens of South Africa and Lesotho. This Agreement had been reached against the backdrop of
Members expressed concerns that the proposed border control mechanisms did not adequately address security concerns and the threat of illegal immigrants from other countries who used
The Minister of Social Development had advised the Committee that Regulation 8 of the Children’s Act was in conflict with certain provincial legislation. Section 3(2)(b) of the Act stipulated that conflict must be resolved in terms of section 146 of the Constitution. Section 146(1) provided that this section applied to a conflict between national and provincial legislation falling within the functional areas listed in Schedule 4. Section 146(2) provided that national legislation prevailed over provincial legislation in a matter that could not otherwise be regulated by the various provinces individually and where it was necessary that national norms and standards be created. The Committee accepted the legal opinion and adopted the regulations.
Election of a Chairperson
The Committee Secretary noted that the Chairperson was unable to attend the meeting. In terms of rule 92 of the NCOP Rules, an acting chairperson must be elected from the permanent members of the Committee. In accordance with that rule, the Committee Secretary invited nominations and Mr Tolo was subsequently chosen as chairperson.
Opening Remarks by the Chairperson
The Acting Chairperson commented that Members were busy preparing for the forthcoming elections and had had to be summoned from their constituencies to attend this meeting. In addition, he noted that the first item that the Committee had to consider was whether to ratify the Lesotho/South Africa Agreement on the facilitation of cross border movement of citizens. This Agreement still had to be ratified by the National Assembly. If the Agreement were not passed by the National Assembly now, the whole process would have to be restarted in the next parliament.
Ms F Mazibuko (ANC, Gauteng) informed the Committee that the NA would be having a plenary session on 24 March 2009, and could therefore still meet the deadline.
Mr Tolo cautioned that even though there was a possibility that the process would have to be redone, the Committee would continue with its work and not concern itself with the NA.
RSA/Lesotho Bilateral Agreement on Facilitation of Cross Border Movement of Citizens: Department of Home Affairs (DHA) Presentation
Mr Jackson Mckay, Deputy Director-General, National Immigration Branch, DHA, explained that the Agreement sought to facilitate the cross border movement of citizens between the two countries by simplifying the mutual travel procedures for citizens of both countries as well as to deliver an improved service regarding the immigration clearance of citizens that routinely crossed the border.
Ms Mari Greyling, Deputy Director-General: Port Control, stated that the Agreement had been reached against the backdrop of Lesotho’s unique situation as a landlocked country that was completely surrounded by South Africa. The Agreement would further the objectives of the Lesotho-RSA Joint Bilateral Commission of Cooperation (JBCC) particularly with regards to assisting Lesotho graduate from its Least Developed Status to that of Developing Country. A large percentage of Lesotho’s GDP was derived from migrant workers in SA. This dependency on South Africa was linked directly to the need to cross back and forth the SA border. The current process in terms of border control was not able to cope with the high volumes of travellers. The Department estimated that about 28 000 people crossed the border between SA and Lesotho on a daily basis. The effectiveness of the routine processing was therefore brought into question. The present situation in terms of border control was inadequate and encouraged a porous borderline whilst the high number of travellers raised service delivery considerations from the resultant long queues of compliant travellers.
The Agreement focused on the following objectives:
- To facilitate the movement of the citizens of the RSA and Lesotho;
- To reduce immigration formalities over citizens of both countries when they were visiting the territory of the other state
- To focus the department’s efforts on inspections, for example, in workplaces to detect illegal foreigners;
- To free resources and use them more effectively; and
- To reduce the opportunities for corruption within the SAPS and the DHA at the port of entry. This last point referred to travellers who bribed officials to gain entry despite the expiration of their 30-day permits.
The scope of the agreement was the 14 land border posts between the RSA and Lesotho; it only applied to citizens of the RSA and Lesotho who were in possession of valid national passports and only in respect of visitors and permit holders. Those permit holders would be people with permission to work or study in both countries and it would also apply to contract workers when they departed. However, when they arrived the DHA would have to activate their permits and therefore require them to report to immigration.
The proposed procedures would be that visitors produce their passports at a perimeter gate instead of at immigration for verification of their validity and authenticity. There would be no endorsement of passports at the border post and individual movements would not be captured. Permit holders would not have to report to immigration on arrival and departure.
The unaffected categories would be third country nationals, irrespective of status in the RSA or Lesotho and airport users for flights between the RSA and Lesotho. Another category that would be excluded was that of people wishing to cross the border legally at places other than the 14 border posts. The risk factors identified by the Department were document fraud and what the Department referred to as ‘stop list’ cases. This would be people who were prohibited in terms of the Immigration Act.
The ways that the Department would mitigate this risk would be to shift their focus from the port of entry to the inspectorate division of the Department and to improve co-operation and exchange of information at all levels between the two states. The Committee was urged to support the ratification of the Agreement.
Ms H Lamoela (DA, Western Cape) was pleased that the Department intended to stamp out corruption. However, she expressed concern about document fraud, especially given that roughly 28 000 people crossed the border between SA and Lesotho on a daily basis. She asked how the Department intended weeding out corruption within its ranks. She stated that Parliament passed budgets for its own citizens and did not factor in those extra people.
Ms Mazibuko noted that in terms of the Agreement, visitors would be required to produce passports at a perimeter gate to verify validity and authenticity. She envisaged a “nightmare situation” where a person would simply flash a passport and would be allowed to proceed. In addition, she complained that many foreigners bypassed the border posts and entered the country in droves in order to take advantage of the child grants and other social benefits. She said that Lesotho was the architect of its own problems because it had wanted independence all those years ago. Otherwise it would still have been part of the Union of South Africa.
The Chairperson commented that the Communist Party of Lesotho were of the view that if they came into power in Lesotho, they would collapse the borders and become part of South Africa.
Ms Mazibuko asked the Department to elaborate on the objective: “to free resources and use them more effectively”.
Ms Greyling explained that this was reference to the human resources of the Justice, Crime Prevention and Security cluster departments which would be freed up if the Agreement was implemented.
Ms N Madlala-Magubane (ANC, North West) noted that one of the objectives was to reduce the opportunities for corruption. However, she believed that the Agreement would have the opposite effect.
Ms Madlala-Magubane asked what constituted “fast lanes”.
Ms Greyling explained that the fast lanes referred to the automated gates where there would be electronic checking of fingerprints against passports.
Mr Tolo believed that the Agreement had good intentions. However, he argued that it might magnify the corruption that existed within DHA. He found it problematic that one is not even going to check at ports of entry but only at perimeter gates.
Ms Greyling admitted that her presentation was too brief and did not elaborate on the implementation aspects of the Agreement. The implementation of the Agreement was dependant on the development of an Implementation Framework. An important aspect of the Framework dealt with the security of an enabling document. DHA was looking at implementing biometric recognition systems at the perimeter gates to root out corruption.
Ms Mazibuko enquired to what extent the DHA would monitor the technology.
Ms Greyling explained that in order to ensure that the system of automated checks was not abused, DHA planned to do a formal enrolment of individuals to determine whether a person was undesirable. Only those that qualify would go through the automated checks.
Ms Madlala-Magubane noticed that the report was silent on whether Lesotho nationals, who came to South Africa to work, would be required to report at immigration offices for medical examinations.
Ms Greyling clarified that in terms of the Agreement, first time visitors would be required to undergo a medical examination. However, they would not be required to do so for subsequent visits.
The Chairperson addressed two issues. Firstly, he complained that the country’s borders were “too porous”. As a result, he asked the Department what it was doing to tighten the points of entry. Secondly, he examined whether there would be a trial period to test practical details of the Agreement.
On the first issue, Mr Mckay explained that the responsibility for border control was a police function and that they would be better placed to respond to such a query.
In response to the second matter, Ms Greyling confirmed that there would be a trial period. No country could embark on such an exercise without conducting proper tests and piloting the system.
The Chairperson noted that the UK government had recently enforced visa restrictions on South Africa due to the lack of security of the South African passport. Accordingly, he asked whether the Department had developed security features and other mechanisms to ensure the security and integrity of the South African passport.
Mr Mckay replied that the South African passport was one of the most secure documents in the world.
This response provoked much laughter from Members of the Committee.
Mr Mckay pointed out that the passport had Level 7 security. He explained that the UK issue had to do with the issuance of the passport and not the passport itself.
The Chairperson expressed frustration that the Department had been busy with a turnaround strategy for the past five years and yet not much had materialised from this exercise.
Ms Mazibuko voiced concern that if the Agreement were ratified, the Department would have problems implementing it.
The Chairperson noted the Member’s concern but appealed to the Committee to nevertheless ratify the Agreement. He argued that the Department had introduced the Agreement with the best intentions and in the interest of the country. He suggested that the incoming Committee should be advised to monitor the implementation of the Agreement.
Ratification of the Agreement
The Committee voted in favour of ratifying the Agreement.
Ms Lamoela (DA) stated that she did not have a clear mandate from her party on this matter.
Legal Opinion on the Draft Regulations to the Children’s Act
Mr Mukesh Vassen, Parliamentary Legal Advisor, noted that in terms of Section 3(3) of the Children’s Act, the Minister of Social Development must submit all regulations that affected a province, to the NCOP for approval. The Minister advised the Committee that Regulation 8, if approved, would conflict with three provincial Acts. Section 3(2)(b) of the Act stipulated that conflict must be resolved in terms of Section 146 of the Constitution. Section 146(1) dealt with a conflict between national and provincial legislation falling within functional areas listed in Schedule 4. Section 146(2) provided that national legislation prevailed over provincial legislation in a matter that could not otherwise be regulated by the various provinces individually and where it was necessary that national norms and standards be created.
Draft Regulations to the Children’s Act: Letter by the Minister of Social Development
Mr Pierre du Preez, Legal Services, DSD, explained that the Minister of Social Development had identified three provincial Acts that were in conflict with Regulation 8 of the Children’s Act. Section 12(9)(a) of the Act provided that circumcision of male children older than 16 (and younger than 18) may only be performed if the child had given consent to the Minister in the prescribed manner. The Minister pointed out that Regulation 8 provided that consent by a male child older than 16 years (and younger than 18 years) to circumcision must be in a form substantially corresponding with Form 3.
The Ministry had found three provincial Acts that were in conflict with Regulation 8:
1 Section 7(1) of the Eastern Cape Health Standards in Traditional Circumcision Act of 2001 provided that the parent or guardian of a prospective initiate must, in respect of a prospective initiate below the age of 21 years, complete and sign a form.
2 Sections 3 and 4 of the Free State Initiation School of Health Act of 2004 provided that the minimum required age for the initiate to be accepted at an initiation school was 16 and that the parent of a prospective initiate below 18 must authorize that the child be initiated.
3 The Northern Province Circumcision School Act of 1996 provided that no person below the age of 12 could be admitted to an initiation school and that a person below the age of 21 could only be admitted with prior consent of his or her parent or guardian.
These provincial Acts would have to be amended.
The Chairperson supported the legal opinion, which argued that national legislation should take precedence because it created national norms and standards in respect of male circumcision.
Mr du Preez referred to Section 146 of the Constitution, which stipulated that national legislation prevailed over provincial legislation, if the former created national norms and standards.
Ms Lamoela questioned whether the Department had the capacity to implement the regulations.
Ms Agnes Muller, Manager: Children’s Act, DSD, stated that the Department had already started implementing most aspects of the legislation.
Ms Lana Petersen, Parliamentary Liaison Officer, DSD, sought clarity on who would instruct the affected provinces that their respective Acts must be brought in line with national legislation.
Ms Mazibuko clarified that the Minister of Social Development must use the MinMec forum to inform the provincial MECs that the affected legislation must be amended.
Adoption of Regulations
Members believed that the regulations were proper and formally approved them without any dissent.
Adoption of Committee Reports
The Committee adopted their Minutes dated 22 October 2008 and 11 November 2008 without amendment.
The meeting was adjourned.
- Agreement between the Government of the Republic of South Africa and the Government of the Kingdom of Lesotho
- Ratification of RSA/Lesotho Agreement on the Facilitation of Cross Border Movements of Citizens
- Ratification of RSA/Lesotho Agreement on Facilitation of Cross Border Movements of Citizens; adoption of Draft Regulations
- Legal Opinion on the Draft Regulations to the Children’s Act
- Draft Regulations to the Children’s Act: Letter by Minister of Social Development
- Research Unit Report on Agreement between Republic of South Africa & Kingdom of Lesotho Agreement on Facilitation of Cross Border Movement of Citizens
- RSA-Lesotho Agreement on Facilitation of Cross Border Movement of Citizens
- Republic of South Africa & Kingdom of Lesotho Agreement on Facilitation of Cross Border Movement of Citizens
- We don't have attendance info for this committee meeting
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