Immigration Draft Bill; Gupta early naturalisation; Election of Chairperson
30 May 2018
Chairperson: Mr H Chauke (ANC)
The Portfolio Committee on Home Affairs received a briefing from the Parliamentary Legal Services unit on the amendments to Section 34 of the Immigration Bill, as well as an update on the progress by the unit on its research into the early naturalisation of the Gupta family.
Mr P Chauke (ANC), who had recently been appointed as a Member of the Committee, was elected as its Chairperson.
The Committee was told that on 29 June 2017, the Constitutional Court had declared sections of the Immigration Act, 2002 inconsistent with sections 12(1) and 35(2)(d) of the Constitution of the Republic of South Africa, 1996. That was because these sections of the principal Act did not allow for automatic judicial intervention when an illegal foreigner was detained for purposes of deportation, and did not allow a detained illegal foreigner to challenge the lawfulness of his or her detention in person in court.
The Members discussed amendments to Section 34 of the Immigration Bill, which focused on amending the Immigration Act, 2002, to insert a definition; to revise and align the provisions relating to the detention of illegal foreigners for purposes of deportation with constitutional principles; and to provide for further extensions of detention of an illegal foreigner in certain circumstances. The Bill also sought to provide guidance to immigration officers as to when they may arrest and detain an illegal foreigner for purposes of deportation. Members sought more information on the deadlines for the various tasks and processes the Bill would have to go through, as well as whether the Committee was limited to considering only the specific clauses pronounced by the Constitutional Court, or whether it had the leeway to extend its scope to the entire document.
The legal services unit reported that the Committee's request for foundational documents related to the early naturalisation of the Gupta family -- to both the Department of Home Affairs and the North West Education Department, among others -- had not been adhered to. The North West Education Department was implicated in the matter because the Gupta family had claimed their private donations to schools in the area had been used as one of the justifications for their value as potential citizens.
The Members complained that there was not much to say on the Gupta matter because most of the investigative processes had been delayed or were awaiting approvals. The Committee resolved to make a final decision on the need to undertake a full inquiry ‘later in the year’‚ most likely in August. The Members had expected to make a decision the previous day‚ but were told that the legal services unit required more time to gather additional information that would guide the decision to hold the inquiry. The Chairperson urged the unit to work diligently to get to the bottom of the Gupta citizenship saga. They were expected to look into work permits of employees at ANN7 and other Gupta-related companies, and all citizens granted citizenship under different Ministers, among other related matters.
Election of Chairperson
Mr Eddie Mathonsi, Committee Secretary, opened the meeting and proceeded with the election of the Chairperson. Mr P Chauke (ANC) was the sole nominee proposed and seconded. He was therefore declared the permanent Chairperson of the Portfolio Committee on Home Affairs.
Amendments to Section 34 of Immigration Bill
Ms Daksha Kassan, Parliamentary Legal Services, continued her briefing from the previous day, and briefed the Members on the amendments to the Immigration Bill.
The Constitutional Court on 29 June 2017 had declared sections of the Immigration Act, 2002, inconsistent with sections 12(1) and 35(2) (d) of the Constitution of the Republic of South Africa, 1996. That was because these sections of the principal Act did not allow for automatic judicial intervention when an illegal foreigner was detained for purposes of deportation, and did not allow a detained illegal foreigner to challenge the lawfulness of his or her detention in person in court.
The Department of Home Affairs (DHA) had experienced many challenges pertaining to the deportation of illegal foreigners within the maximum period of detention provided for in the principal Act. These challenges occurred, particularly in instances where the foreigner did not cooperate regarding the process of identifying their country of origin or nationality. In certain instances, the relevant authority of the country of origin or nationality of the illegal foreigner did not provide the necessary assistance regarding the identification of the foreigner, or the necessary documentation to facilitate the deportation process.
Ms Kassan took the Members through the next procedures the Bill must go through before becoming law, including that if the Committee agreed with the content of the revised draft Bill, it would then be published for at least 30 days to allow for the public to make comments and suggestions. Subsequently, when the Committee returned from the recess period in August, they would then discuss the various inputs from the public.
Mr Deon Erasmus, Chief Director of Legal Services, DHA, said that the Bill addressed the Constitutional Court judgment to ensure that any illegal foreigner detained under section 34(1) of the principal Act, was brought before a court in person within 48 hours from the time of arrest. It provided that any detained illegal foreigner may not be held in detention for longer than 30 calendar days without appearing in person in court. The Bill further sought to provide guidance to an immigration officer as to when they may arrest and detain an illegal foreigner for purposes of deportation. It provided for further extensions of detention to be granted by a court beyond the maximum period of detention provided for in the principal Act, in certain circumstances.
The Chairperson said that the clause-by-clause analysis of the Bill had been deliberated upon in previous sessions, and thus there was no need to repeat the process.
Ms H Hlophe (EFF) suggested that the Committee should determine their programme in terms of specific dates and deadlines for the various tasks, as outlined by Ms Kassan.
The Chairperson queried what the deadline for the Bill to be published was.
Ms Kassan responded that the court deadline for the Bill was 28 June 2018.
Mr D Gumede (ANC) stressed that the Committee should nevertheless have its own deadline, in consultation with the National Council of Provinces (NCOP), to which the Bill would go before it was enacted.
Mr M Hoosen (DA) asked whether the Committee was limited to considering only the specific clauses pronounced by the Constitutional Court, or whether it had the leeway to extend its scope to the entire document.
The Chairperson clarified that the Committee could amend only Clause 34 of the Bill, which had been declared unconstitutional by the Constitutional Court. He added that for any other amendments to parts of the Bill outside of Clause 34, the Committee would first need to get the approval of Parliament.
Ms Kassan concurred with the Chairperson on that response.
Mr Hoosen asked the Committee to sit with the DHA to discuss the impact of the Immigration Act as it currently was, in terms of the numbers of deportations and the number of illegal immigrants.
The Chairperson agreed that the DHA ought to brief the Committee for it to execute its oversight role. He requested Ms Kassan to take the Members through the various clauses of the Bill, detailing what had been amended.
Ms Kassan responded that one key amendment that had not been mentioned earlier was defining the word “Constitution” to state “Constitution of the Republic of South Africa, 1996”.
Mr Erasmus interjected by adding that the amendments outlined by Ms Kassan had all been agreed upon by the DHA.
The Chairperson asked what DHA’s arrangement was with the Justice Department in terms of providing legal aid, or a state attorney, to an illegal immigrant in court.
Mr Erasmus answered that the person had a right to have his or her lawyers present in court and was guaranteed legal representation through legal aid, just as any citizen would be.
The Chairperson queried whether there was any chance that an individual could become stateless, were an embassy to deny that he or she was indeed its citizen.
Mr Erasmus conceded that such a scenario was possible, but there were other legislation and laws already available, outside the current Bill, to deal with that scenario and give the person some form of status.
Ms Hlophe asked how the Department dealt with the issue of corruption in the case of an individual bribing an immigration official.
Mr Hoosen noted that the Bill allowed the courts to extend the detention of an illegal foreigner indefinitely, even after the stipulated standard 30 days and the 90-day extension. He reported that the courts were still allowed to further extend the detention beyond these cumulative 120 days. He also said that the phrase in the Bill, “lack of cooperation”, needed to be defined to specifically detail what constituted cooperation. The Chairperson echoed this sentiment.
Ms T Kenye (ANC) wondered how the DHA detected the status of a person who became stateless.
Mr Gumede wondered whether the definition of the term “Constitution,” as outlined by Ms Kassan, should also include the phrase “as amended”, to note the fact that the 1996 Constitution had been amended.
Ms Kassan reiterated that there was a proposal to add a clause specifying a maximum of two further court extensions for the detention period, each of which should not exceed 30 days.
Gupta family’s early naturalisation: Progress on research
Mr Adam Salmon, Research and Legal Services: Parliament, told the Members that the Committee's request for foundational documents -- to both the Department of Home Affairs and the North West Education Department, among others -- had not been responded to. Permission to conduct interviews with DHA staff had also not been granted. The North West Education Department was implicated in the matter because the Gupta family had claimed its private donations to schools in the area were used as one of the justifications of their value as potential citizens.
The previously established timelines would have to be pushed back by a month because of the various delays occasioned by the activities of Parliament. It would cost between R50 000 and R100 000 to place a newspaper advertisement calling for public comments on the Bill.
The Committee needed to approve expenditure to cater for the legal advisors and support staff to conduct interviews at the DHA in Pretoria. These activities had previously been scheduled for between 5 June 2018 and 8 June 2018, but because of the various delays, would have to be rescheduled for the recess period.
The Chairperson announced that the DHA would take the Members on a visit to the OR Tambo international airport, to ensure the national entry points were not for sale to the rich and powerful. He added that the matter of the Gupta family being allowed to land their plane on an air force runway was for the Security Committee to deal with, and not the Committee on Home Affairs.
Mr Hoosen said there had been a noticeable delay in the process since the budget votes earlier that month. He maintained that it felt as if the Department was "dragging its feet" in providing the necessary paperwork to Parliament. He reminded the Committee that the instruction from Parliament in June last year had been not just to probe the naturalisation issue, but all aspects of "state capture" at the DHA. The inquiry must be broadened to include issues of how some employees at Gupta-owned companies had received their permits, as well as the alleged involvement in the blocking of other companies' attempts to set up a private terminal at OR Tambo International Airport.
Ms H Mkhaliphi (EFF) said there should be no excuse for the DHA not providing the requested information.
The Chairperson supposed that the embattled North West Premier, Mr Supra Mahumapelo, or a provincial Member of the Executive Committee (MEC), may need to be called to account for how the schools were involved.
Mr M Kekena (ANC) requested details from the DHA on the involvement of the North West Government and the various other departments in the matter. He proposed that the Minister for Home Affairs, Mr Malusi Gigaba, be called to the Committee to give clarity on the various queries.
Ms N Mnisi (ANC) complained that there was not much to say on the Gupta matter, because most of the investigative processes had been delayed or were awaiting approvals.
The Chairperson requested the DHA to give more information on the issue of how the Gupta family had received citizenship. This information should not be generalised, but should rather detail the circumstances per person (each family member individually). He asked the Members to agree on timelines, and if the DHA was unwilling to provide the information, subpoenas should be sought and issued.
Ms Hlophe proposed another meeting, because the update that had just been presented was insufficient and did not qualify to be a detailed report.
Mr Hoosen asked that the Committee look into all citizenship applications that had been approved by DHA, and not just the one of the Gupta family. He suggested that once the information and documentation from the Department was available, it be circulated to the Members even while they were on recess, instead of them having to see the documents on the day of the meeting.
The Committee resolved to make a final decision on the need to undertake a full inquiry “later in the year,” most likely in August. The Members had expected to make a decision the previous day‚ but had been told that the Parliamentary Legal Services unit required more time to gather additional information that would guide the decision to hold the inquiry.
The Chairperson urged Parliament's research and legal services unit to work diligently to get to the bottom of the Gupta citizenship saga. He complained that the progress was too slow and the report was a “work-in-progress”, and urged that the research should be complete by the time the Members returned from their recess in August. They were expected to look into work permits of employees at ANN7 and other Gupta-related companies, and all citizens granted citizenship under different Ministers, among other related matters. He requested legal services to research the full history of the Gupta family applications for citizenship, going as far back as the 1990s if need be.
The meeting was adjourned.