Section 34 of Immigration Act amendment; Naturalisation of Gupta family; Budget report
24 April 2018
Chairperson: Mr D Gumede (ANC) (Acting)
Terms of Reference: Portfolio Committee on Home Affairs Inquiry into Granting of Naturalisation to the Gupta Family
Committee Report on Annual Performance Plans and Budget Vote 5 of the Department of Home Affairs
ABP Draft Annual Performance Plans and Budget Vote
Lawyers for Human Rights v Minister of Home Affairs and others, CCT 38/16: Judgment declaring parts of S 34 of the Immigration Act invalid and inconsistent with the Constitution
Committee Report on on Budget Vote: Home Affairs
The Committee was briefed on the Terms of Reference (ToR) of its inquiry into the naturalisation of the Gupta family. The Committee heard the inquiry was structured into two phases – Phase One and Two. Phase One included collating documentation, site visits and conducting of interviews – this phase is already underway. Phase Two would consist of considering the outcomes of the fact-finding done in Phase One. Members were also provided with an updated timeline and possible limitations.
Members agreed that the Terms of Reference must be broad enough to ensure the Committee could probe whatever information it felt necessary – the Committee could not be constrained by its own ToR. There was also agreement that the ToR should make explicit reference to the fact that the Committee could summon any person it may see fit to assist in conducting the inquiry. Members asked some process questions but was advised by Parliament’s legal services to allow Phase One to take its course and from there further determinations could be made by the Committee. It was also suggested timelines may have to be revised as the exercise of the inquiry is not only about chasing the Gupta’s but also about helping to clean up the Department of Home Affairs (DHA)
Members mutually appreciated the genuine willingness of all parties in the Committee to get to the bottom of the matter. It was noted the mood of Parliament has completely changed - all Committees are gearing towards inquiries and investigations. Oversight is beginning to work.
The Committee was then briefed by Parliament’s legal services on the Department amending Section 34 of the Immigration Act in compliance with the Constitutional Court judgement of the 27 June 2017 –the Court confirmed a High Court ruling that declared Section 34 (1) (b) and (c) of the Immigration Act (Act No.13 of 2002) inconsistent with Section 12 (1) and 35 (2) (d) of the Constitution in that the Act does not allow a detained illegal foreigner to challenge the lawfulness of his detention in person in court within 48 hours. This declaration was suspended for 24 months to enable a process to remedy the defect - the Court has given Parliament 24 months to do so. The deadline is therefore 28 June 2019. The letter from the Minister to the Committee suggests that it should address this judgement by way of a Committee Bill. The Committee was taken through the process of initiating a Committee Bill.
The Committee was unimpressed that the Minister only brought this letter before it now given that the judgement was already passed in June 2017– this was an indication of the attitude of the Department toward the rights of individuals and the Constitutional Court. Members were also not pleased that the Minister or DG were not present to answer the pressing concerns of Members. There was also concern about the timeline to meet the deadline given that the Committee was dealing with its inquiry and faced a long recess. The Committee agreed it was the now responsibility of Parliament to ensure the Court order was complied with but also that individuals would have to be held responsible for only coming to Parliament with this matter now, one year since the judgement was passed. It was decided that the Minister and DG avail themselves to address the Committee on this matter and why communication was sent this late. The Committee could then decide on the way forward.
The Committee then considered its Draft Budget Vote Report on the DHA and the Committee’s Draft Annual Performance Plan (APP). After being taken through the Reports by the Content Advisor, members discussed funding of the Department, implementation of court rulings, ICT and filling of vacancies, in relation to the Draft Report. Also raised was the Border Management Authority, specifically costs thereof, audit outcomes and overall performance of the Department since 2014. The Committee adopted both Draft Reports with amendments.
Nomination of Acting Chairperson; Committee Agenda; Apologies
The Committee Secretary welcomed Members and informed them that they needed to elect an acting Chairperson for the meeting. The procedure is the same as the Committee’s previous meeting.
Ms H Mkhaliphi (EFF) asked for how long Members would have to constantly elect an acting Chairperson for the meetings.
The Secretary stated that the meeting of 20 March 2018 was the first meeting of the Committee where an acting Chairperson was elected. Technically, Mr B Mashile (ANC) is still the Chairperson but he has also been appointed as a Member of the Portfolio Committee on Labour. The Portfolio Committees of Labour and Tourism were also instructed to elect acting Chairpersons.
Mr M Kekana (ANC) nominated Mr D Gumede (ANC).
Ms Mkhaliphi and Mr A Figlan (DA) seconded the nomination.
The Chairperson stated that the agenda consisted of a number of items. He requested Members be mindful of time when making their contributions seeing that the list of agenda items was quite long.
Apologies were received were from Ms S Nkomo (IFP).
Terms of Reference (ToR) for Committee Inquiry of Naturalisation of the Gupta family
Mr Adam Salmon, Committee Content Advisor, stated that in the last meeting the Committee held, the Terms of Reference (ToR) were updated. Members should be familiar with the background of this matter which pertains to state capture, specifically naturalisation of the Gupta family. The inquiry follows an instruction by House Chairperson for Committees, Mr Cedric Frolick, for Committees to probe allegations of state capture. The Committee staff have updated the timeline related to matter and documents what has happened in the Committee thus far over the last few months. The most recent update is the updated ToR. A letter received from Oakbay provided more clarity on the document submitted in terms of its support for social investment. On 27 February there was a motion to solicit support from the parliamentary research unit and legal services to engage with the document submitted to the Committee. This process is already in motion along with verifying documents from the Department of Education as well as the Johannesburg Stoke Exchange (JSE), amongst others.
On 13 March 2018, the revised ToR were drafted, the Committee gave in its input and it was decided the matter would be expanded. Members agreed to expand the scope of the inquiry to the naturalisation of all members of the Gupta family as well as the naturalisation process in general.
Based on the legal parameters and responsibilities, it was then decided to expand the inquiry in two. Phase One is already being implemented and all relevant information is being submitted to the Committee on an ongoing basis. Site visits are being planned to various donation recipients. Interviews are being conducted with principals of schools and school officials as well as obtaining the relevant Standard Operating Procedures (SOPs) from the DHA relating to all matters concerning naturalisation. Phase One will also include interviews with relevant DHA officials in the North West and in Parliament.
Phase Two would be consideration of the outcomes of the fact-finding inquiry and determination of the steps to be taken in the inquiry. The expansion of the methodology would include:
-Written communication to the Department of Basic Education with respect to the names and contact details of the stakeholders identified in Phase One
-Individual communication, both telephonically and in written form, to all principals who received donations
-Written communication with business and government entities that might have relevant information
-Input from legal services on all letters drafted and submitted to role-players to determine whether they are legally compliant
-Primary data will be collected in Phase Two through consulting relevant individuals to establish SOPs
-Analysis of the relevant data which will be reported to the Committee in an interim report
-Invitations to relevant key informants sent out by the Committee Secretary
-Calling for relevant written information from the public or any additional information
In terms of matters to consider, there might be additional funding required for travelling to affected areas and advertisements related to the inquiry. The DHA indicated it had made verification of the investments stated in the relevant applications. The Committee is still waiting to hear how the DHA conducts this verification. The Committee considered the authenticity of the ID numbers of the attendees of the meetings hosted with the stakeholders at the schools mentioned in the report by DHA but this still needs to be verified.
A timeline was revised as follows:
- sending letters to confirm information of stakeholders employed by the Department of Basic Education has commenced
-Communication with business and government entities that might have relevant information is in process
-Individual communication, both telephonically and written communication, to all principals who received donations will commence once the ToR were approved
-Call for public submissions related to naturalisation will also commence following approval of the ToR -Going forward, written responses from the public and school principals will be solicited by 12 May 2018
-Interviews with key persons in the DHA will be conducted by the end of May 2018
-Identifying key informants by the Committee will be done by the end of May 2018
-The actual interviews with the relevant persons will be conducted in June 2018
-Analysis and compilation of the information received will take place whilst Members are in recess
-Submission of the Draft Report for Members’ consideration and soliciting their response should be completed by the end of July
Limitations identified include:
-Data collection, adverts, site visits and fact-to-face interviews which are subject to approval by Parliament
-Official correspondences dependent on political approval and signatures
-The fact that Parliament will be entering a long recess which delays processes
The way forward is for Members to give their input with respect to the ToR.
Mr Hoosen thanked Members of the Committee for their willingness to get this far with the matter. The matter has been raised for more than a year now and he appreciates that all Members of this Committee has shown a genuine willingness to get to the bottom of this matter. In particular, he wanted to mention that, as uncomfortable as it may be, the Committee has only made this progress ever since the removal of the former Chairperson of this Committee.
He appealed for the recirculation of the documents relating to the Gupta naturalisation process - this would also benefit Mr Chauke who is new to the Committee. The DG, Minister Gigaba and former Minister Mkhize appeared before the Committee on more than one occasion and answered some questions. He asked whether there were written records of those discussions where Gupta naturalisation was discussed and if so, if Members could have access to those documents as well. The reason behind his request is because when the Committee does start with the inquiry, some of the information in the form of the verbal reports and responses could be very useful.
On the Terms of Reference (ToR), he did not feel that one day is enough for the interviews to be conducted and that more days should be planned on the interviews. He wanted the principles of the ToR to be as broad as possible to allow the Committee to probe whatever information it felt is necessary in order to get to the bottom of the matter. He does not want to reach a point where the Committee finds itself in position where it cannot probe any further because it was constrained by the principles and the conditions of the ToR.
He proposed one bullet point to be added to Phase One to allow for the Committee to “summon where necessary any person it may see fit to assist the Committee to conduct the inquiry”. If there is a case where new information arises, the Committee will have the authority to call upon relevant individuals. He also wanted to include this point because there might be a possibility that employees of the Gupta family were given preferential treatment. It is in the public domain that people employed by ANN7 were not granted proper documentation and given preferential treatment. If that is the case, the clause he proposed will give the Committee the opportunity to probe that.
Ms Dambuza wished to accept the proposal presented but with some amendments. The Committee needs to be specific with the objectives of the inquiry. From her understanding, the point is to ascertain whether there was any deviation of compliance or non-compliance from the legislation. The Committee needs to identify gaps within the legislation itself so that the legislation is improved to avoid future challenges. Another area is to ascertain if the Gupta family misled the DHA or the Minister for their application to be approved. Additionally, the Committee needs to ascertain if the Department conducted due diligence before approving the Gupta family’s application. On the issue of the people who are going to give evidence before the inquiry, the Committee needs to at least have an idea of the people who are going to be critical to the inquiry because they should be listed in the TOR.
Mr Kekana suggested the legal representative present at the meeting say something seeing to better Members’ legal understanding of the matter. Mr Gigaba is the key witness in this matter as he is the one who overturned the decision of the adjudication committee. The DG must also be called because he gave many contradicting statements. It would also be worthwhile for the Committee to get an economic expert to guide the Committee on the investment. The Committee also needed the records of the adjudication team because it took a decision which the Minister overstepped.
Ms Mkhaliphi said that the outcome of this inquiry is very clear- the Committee wants to establish if Minister Gigaba used Section 5(9) (a) of the South African Citizenship Amendment Act to grant the Guptas naturalisation. The Minister has been giving contradictory statements. Previously he stated that the Guptas are not citizens of SA – this was the last straw. The Committee was very confused by this. Even when he was the Minister of Finance, the Committee tried to meet with him. Some Members present at the meeting have been protecting him and telling not to come before the Committee. At least now all Members of the Committee have finally seen the light because South Africans are waiting to hear what is happening on the topic of the Guptas’ naturalisation. The country has laws and it is important to know that those laws were not manipulated by the Minister. Even former Minister Mkhize was asked about this and she responded that indeed, the Guptas were naturalised.
She is happy that the draft TOR mentioned section 56 of the Constitution because this section elaborates that anyone could be summoned to Parliament. As Mr Hoosen mentioned, section 56 will protect the Committee in the case that new information arises and the Committee wishes to summon more people. She is also happy to hear that the documentation previously submitted by the DG will also be included in the inquiry. She recalled that when she saw that document, she asked the DG if he verified it because there is no way that school shoes can cost R54 000. In that document it was stated that for 20 schools, the Gupta’s were giving R20 000 for lunch which she found hard to believe. The DG replied to her in that meeting that he did not verify that document. For the inquiry, that evidence should be presented and that it was not verified - it was a mere copy and paste which is a reflection of how the DG took the Committee for granted. She supported Mr Hoosen’s amendment in that the Committee should not be confined to what is stated in the TOR - provisions should be made that anyone can be called upon if necessary.
Ms Mnisi added that before anyone is called before the Committee, there should be approval by the Committee of a specific list of persons that will be called so that it was not just an open invitation.
Mr Figlan supported the TOR in principle but sought clarity on whether the adjudication committee would also be invited.
Ms Raphuti expressed concern about the dates which seemed to be very close to each other. This could limit the whole exercise. In terms of telephonic communication, this could be problematic because some schools are in rural areas and some telephones might not be operating. Face-to-face interviews are the better option. It is important that the public knows the blow-by-blow processes relating to naturalisation.
Mr Chauke stated that there is confirmation from Parliament that the Committee can proceed. The constitutional requirement of the Committee has been clearly defined. Much information has been provided and the Committee needs to summarise the information then identify key areas to determine who it wanted to call as witnesses. The objective of the inquiry is clear – the Committee want to see if the Guptas were granted citizenship fairly.
Everything around the Guptas starts or ends in the North West province. When dealing with the North West, one would be dealing with a sphere of government, the government of the North West in particular. When dealing with a school, one would be dealing with a principal of school in the North West province. Therefore key individuals become relevant - it starts with the Premier of that province. He suggested Members read “The Republic of Gupta” – the book is very important and paints the picture that it is not just issues of the family that need to be dealt with.
He agrees with Mr Hoosen that the Committee needs to expand its horizons with regards to the inquiry. The problems created in the DHA by the Gupta family were big with visas and work permits issued illegally. The DHA should provide a list of the people naturalised in the last 10 years.
Regarding face-to-face interviews, if the method of having an evidence leader is used then this leader would go out to interview individuals and extract statements that identify relevant persons that should come before the Committee. The evidence leader would be helpful because as the Committee could not be running around the country interviewing people.
The Guptas are currently fugitives if it was to be believed that the family has run away. They are criminals who are in possession of South African passports or ID books. Their passports should be stopped. Why was the Department not saying anything about the movement of these individuals? These criminals are enjoying themselves in Dubai still in possession of South African passports. The Committee must instruct the DHA to stop their passports.
The timelines may have to be revised. The exercise of the inquiry is not only about chasing the Gupta’s but also about helping to clean up the DHA. He agreed with the proposal to expand the ToR to not only deal with the Gupta family but to deal with what in the Department needs cleaning up.
The Chairperson stated that in terms of conducting interviews, staff of Parliament have been mandated to perform that function. He welcomed input by the legal section of Parliament.
Mr Siviwe Njikela, Senior Parliament Legal Adviser, outlined that the ToR explains the powers that Parliament has and the specific powers Parliament has in these types of inquiries. The architecture of the document has designed different phases and many of the comments raised by Members are bound to be answered in Phase Two of the process. Phase One is a fact-finding inquiry - there is already some information that the Committee has and the Committee can interview whoever it needed. Additionally, once the Committee reads more documents, this may lead to more documents and more names. Once that information has been collected, there will be a broad overview of the nature of that information and how valuable it is to reach the ultimate conclusion of the inquiry.
Following the outcome of Phase One, the Committee can determine the form of the inquiry. Issues of whether the Committee wants to have an evidence leader, whether it wants to attain more documents or call witnesses, stem from the findings of Phase One. At this point, it could not be said if the Committee required an evidence leader or not without the completion of Phase One. Once Phase One is completed, the Committee would then be liberty to say that the information that was collected is sufficient to make its recommendations. Alternatively, after collecting the information, the Committee can then make the call on whether it wanted to call witnesses and have a public inquiry. Many questions raised by Members today could not be answered until Phase One was completed.
He supported Mr Hoosen’s suggestion that the Committee not have a very prescriptive ToR which limits the Committee. It should be open so that the Committee has the liberty to take into consideration any evidence and witnesses that may arise. Naming witnesses at this stage is not an option. Legal services are willing to support the Committee in whatever way forward it sees fit.
Mr Hoosen appreciated the contribution made by the legal adviser. To a large degree, the Committee is already in an advanced stage of Phase One because it has a large number of documents to its disposal. Based on documents the Committee already has, he believes Members will make the determination there is a need of further inquiry. There are questions that need to be asked, for example, Mr Chauke raised the issue of investigating employees of Gupta companies and whether they were given preferential treatment. Those employees, especially heads of the companies, should be called as witnesses. He recently asked the Minister’s office how many employees of ANN7 the Department had granted visas to and its response was that it could not tell the Member. Issues such as these stress the need to call witnesses.
Mr Chauke was happy with the input by legal services and its commitment to support the Committee. The mood of Parliament has completely changed - all Committees are gearing towards inquiries and investigations. Oversight is beginning to work. Phase One is working, investigations are taking place and documents are being collected. Inputs made by Members really need to be documented because Phase One needs to be very thorough.
He felt that the Committee should immediately write to the Department to find out if any of the Guptas are in possession of South African passports and to ensure those passports are deactivated. The Guptas are fugitives and criminals. The ANC will ensure there is no stone left unturned when dealing with this matter. No one will be protected when dealing with this inquiry. Members should rest assured that the ANC will support this process to the very end.
Ms Mkhaliphi observed that since Mr Chauke arrived at the Committee, there is unity. She thanked the legal adviser for his clear input. With respect to limitations, she urged the Chairperson to clarify the issue of resources with the Chairperson of Committees so that the Committee can progress with the inquiry. Many resources will be needed for this inquiry. She agreed that Phase One is very crucial and the Committee should tread very carefully with this stage of the process. For the first time in the Committee, all political parties agree on the issue of naturalisation of the Gupta family.
The Chairperson stated there is full consensus that there should be an inquiry. There is also full consensus from the Committee on the ToR. The Committee has given Parliament a mandate to move on with the inquiry. Therefore the Committee shall have an inquiry and from time to time, the Committee shall meet to refine the ToR according to the need that arises.
Consideration of the letter from the Minister of Home Affairs on amending Section 34 of the Immigration Act
Ms Daksha Kassan, Parliamentary Legal Adviser, stated that Lawyers for Human Rights (applicant), acting on behalf of persons detained in terms of section 34(1) of the Immigration Act (the Act), brought an application against the Minister of Home Affairs (first respondent) alleging the procedures and safeguards governing detention of people suspected of being illegal foreigners under section 34(1) of the Act, were unconstitutional and invalid. In its argument, the applicant singled out section 34(1) (b) and (d). It contended that, by omitting to provide for automatic judicial oversight before the expiry of 30 calendar days, section 34(1) (b) and (d) was inconsistent with sections 12(1), 35(1) (d) and 35(2)(d) of the Constitution. The challenge against section 34(1) (d) was based on the contention that it did not permit a detainee to appear in person before a court and impugn the lawfulness of his or her detention.
The applicant sought an order from the High Court declaring that section 34(1)(b) and (d) of the Act is inconsistent with the Constitution and invalid. The invalidity was said to be to the extent that these provisions permitted the detention of foreigners for a period of 30 days without automatic judicial intervention and an extension of the initial period of detention without the detainee appearing in person before the court that grants the extension.
The State filed papers in opposition of the claim. It disputed the contention that the impugned provisions were inconsistent with the sections of the Constitution on which the applicant relied. In the alternative, it denied that foreigners arrested and detained in terms of section 34 enjoy the constitutional rights which the applicant claimed were infringed.
The High Court held that section 34(1)(b) was inconsistent with section 35(2)(d) of the Constitution to the extent that it did not allow a detained foreigner to challenge the lawfulness of his or her detention in court or have the detention confirmed by a warrant of court. With regard to section 34(1) (d), that Court held that this section too was not in line with section 35(2) (d) because it did not permit a detainee to appear in person before a court when the request for extending the detention is considered. An appearance in open court, it was held, “bestows legitimacy on the detention and provided a certain measure of security and comfort to the detainee”. The High Court considered it unnecessary to determine the alternative claim based on the violation of the right not to be detained without trial, entrenched in section 12(1) (b) of the Constitution. Having concluded that there was a limitation of the rights guaranteed by section 35(2) (d) of the Constitution, the High Court proceeded to consider whether the State had justified the limitation. The Court evaluated the State’s evidence on justification and held that it fell short of the required standard. The High Court declared the impugned provisions to be inconsistent with the Constitution and invalid.
The Court, relying on its previous decisions, held that persons arrested for the purpose of deportation, in terms of section 34 of the Act, enjoyed the protection and rights entrenched in sections 12 and 35(2) of the Constitution. After an analysis of the impugned provisions, the Court was satisfied that the impugned provisions do limit the constitutional rights enshrined in sections 12(1) and 35(2) of the Constitution. On justification, the Court found the reasons advanced by the State were woefully short of justifying the limitation. The Court was not convinced that playing around with the wording of the impugned provisions, including reading-in, would sufficiently address the defects. Therefore, the Court held that a suspension of the declaration of invalidity was appropriate. According to the Court, this would enable Parliament to correct the defects and the Court has given Parliament 24 months to do so. The deadline is therefore 28 June 2019. However, in line with the principle that a successful litigant must be afforded appropriate relief, the suspension was accompanied by conditions which would protect the detainees’ rights in the interim.
The judgement also requires the Minister and Director-General (DG) to report to the Court as to whether they have complied with the order. The letter from the Minister to the Committee suggests that it should address this judgement by way of a Committee Bill. Should the Committee decide to address the defect by way of introducing a Committee Bill, the process would go as follows: firstly, the Committee must request or seek permission to introduce the Bill from the House. This would entail tabling a memorandum in the Assembly and the memorandum should set out the particulars of the legislation, state whether the Bill would have financial implications on the state and set out the views of the Executive of the object of the legislation. Secondly, if the Assembly gives the Committee permission to proceed with the Committee Bill, the Committee must prepare a draft Bill and a memorandum setting out the object of the Bill. Before introducing the draft Bill in the House, the Committee must publish the draft for public comments and the Committee must give the interested persons at least three weeks to make submissions. In view of any of the comments and submissions received, the Committee may adjust the draft Bill before introducing the final version into the House. Once it has been agreed upon, the draft Bill can then be sent to the Speaker.
Mr H Hoosen (DA) asked if there was a representative from the Department of Home Affairs (DHA) present at the meeting.
The Chairperson confirmed this.
Mr Hoosen would have preferred for the Minister or DG to have been present at the meeting because the ruling of the court was against the Minister and the DG. The judgement was passed in June 2017 – the Department was only coming to the Committee now with the matter which was an indication of the importance the Department placed on court judgements as well as the rights of individuals in the country. This was unacceptable. That is why he would have preferred to have the DG or the Minister present so that they could be held accountable. The DG and Minister could have written a letter to the Committee advising and bringing the matter to the attention of Members. Why has the Department taken a year to do this? The ruling of the court is that this matter should be resolved in 24 months. Parliament will be entering a long recess soon - chances for the Committee to meet the constitutional requirements are very minimal. The DG and Minister are showing disrespect to the Constitutional Court judgement which is not acceptable. He is doubtful that the representative from the DHA will be able to give a response to his statement.
This judgement should be a massive embarrassment for the DHA. When reading the judgement it sets out clearly how, during the Apartheid era, people were oppressed through detention without trial and this what the judgement speaks about. It is shocking that the DHA still has laws that continue to oppress people that were oppressed under Apartheid. In that court judgement it says that in 2013 and 2014, 131 000 people were deported with their constitutional rights violated. The Minister should personally issue an apology to the people whose rights were violated. This judgement is an embarrassment to South Africa as a country if this is going to be how people from neighbouring countries are going to be treated.
Mr H Chauke (ANC) noted that once legislation is passed by Parliament, it is no longer the Minister’s legislation. If whatever is passed has been found to be unconstitutional, Parliament would have to take the blame. The fact remains that South Africa is a working democracy making laws that comply with international standards. With that, there is going to be instances of contestations which will be referred back to Parliament. It is the responsibility of Parliament to make sure there is compliance with the findings of the High Court or the courts in general. It would have been ideal to have high level representatives of the DHA at the meeting to be able to demonstrate its commitment to comply with the court order. He wanted to hear the response of the Department on the judgement and to find out, along with clear timelines, what work had been done to respond to the judgement. If it was true that a whole year has passed and nothing has been done, then someone has to be accountable.
The Chairperson believed that the Department needs to account – this was a sentiment expressed by the DA and ANC.
Ms B Dambuza (ANC) thought the Department should have come before the Committee and provide an explanation. As Parliament, the Committee should consider the letter because it is a matter that is going to affect the public. She appealed for the Committee to agree on the process in terms of the rules of Parliament to ensure the Bill is processed.
Ms Mkhaliphi agreed that the Executive should have been present at the meeting. The Deputy Minister could have come if the Minister was busy because this is a matter of importance. It is not fair that the DHA’s representative to be responsible for giving a response when it should be the Executive doing so.
This is not the only matter problematic to the Committee regarding immigration. Even last year, the Committee indicated it wanted a full presentation from the immigration section of the DHA. Even former Minister Mkhize made some pronouncement about the movement of people in Africa of which the Committee was not privy to that information. The amendments that need to be made deal with people from Africa – this is a fact which cannot be ignored. This matter should be dealt with as a matter of importance. The Committee is unsatisfied with the fact that this matter is taking long to be resolved. There should be a day whereby the DDG, responsible for the immigration section, comes and presents all cases that are important to the Committee.
Mr Kekana concurred with the need to allocate a day to deal with the matter. In addition to that, the Committee needs to write a letter to the Minister informing him of the Committee’s disappointment and that he must start to take the Committee very seriously. What is taking place is a game of disrespect and the Minister should never ever do that to the Committee.
Ms D Raphuti (ANC) was worried about the deadline. The judgement does show that South Africa’s democracy is in process and that the Constitution is really working. Those that will be coming to the country must respect the law and be law abiding citizens. With any freedom there must be responsibility.
Ms T Kenye (ANC) proposed that the DG and Minister avail themselves the following week to address the Committee seeing that the deadline is 24 June 2019.
The Chairperson urged Members to be realistic when it came to the deadline because it would not be able to be met. Next Tuesday was a public holiday but perhaps there could be another remedy such as asking for a temporary exemption.
Mr Chauke proposed the Department be afforded an opportunity to talk to the Committee and thereafter the Committee could make a recommendation.
Mr Figlan stated that the failure is not with the Members but with the Department. It would be better to call an urgent meeting with the Minister very soon, even if the meeting is on a Saturday.
Mr Hoosen said that the court judgement, paragraph five, refers to all undocumented immigrants, who were detained at the time of the judgement, must appear before the court within 48 hours. The Minister was supposed to file an affidavit to confirm that the Department met that requirement – did the Department in fact comply with, specifically, paragraph five and seven of the judgement? By what date was the affidavit filed?
The Chairperson stated that it was clear that, in principle, Members did not disagree with the court judgement. The DHA has to explain to the Committee what the reason was behind it receiving this communication so late. He believed that Chairperson Mashile should write a letter to the Minister and the DG to account for the delay of the execution.
The Chauke asked whether it was only junior officials from the DHA that were present at the meeting. He expected someone from the Department to at least address the Members.
The Chairperson stated that Members indicated that senior officials need to be called in to account - the official present at the meeting is not senior enough to account for why the Department has taken this long to respond to the matter.
Consideration and adoption of the Budget Vote Draft Report of the Portfolio Committee on Home Affairs of the Department of Home Affairs
Mr Adam Salmon, Committee Content Advisor, said that the Draft Report was compiled based on the meetings and work of the Committee. The mandate of the Department of Home Affairs has been highlighted in terms of its role both in terms of civic and immigration. The Annual Performance Plan (APP) of the DHA has also been highlighted in terms of its priorities. Emphasis in that section is the establishment of the Border Management Agency, complete modernisation programme, updating of the key port entries, review of the immigration policy and improved client experience through leadership.
The next section of the Draft Report provided an overview of the Department’s budget - it covers both the Department’s presentation and analysis of the performance by the parliamentary research unit in terms of what is achieved and what is not achieved. The DG mentioned 21 percent of the Department’s target was at risk of not being achieved but if the Department pushed, this could achieve it. There are some concerns around limited staff and budget limitations which may prevent the Department from achieving this target. In terms of an overview of the expenditure of the key programmes of the DHA, R3.6 billion was allocated for citizen affairs and immigration affairs – this was an increase whereas other programmes has decreased due to the fact that the DHA is working with a tighter budget. National, continental and global priorities will be covered in the Committee’s Annual Business Plan. For the budget allocation, the main priorities are to reduce wasteful expenditure and address the Auditor-General’s recommendations with respect to the Annual Report. It is significant to note that all programmes have been reduced significantly - an almost 11 percent reduction after inflation. With respect to Immigration Affairs the primary allocation is to admission services and a significant amount is allocated to immigration and border management. Given the new legislation coming up, allocation to immigration affairs is likely to increase. On the Electoral Commission, the key concern is that the Commission was underfunded for the ICT platform upgrade and the address harvesting initiative. Other matters have to be reprioritised such as in-house training and other less important matters. On Government Printing Works (GPW), the programme is generally doing quite well so this was not much of a concern for the Department. The key concern is that the programme is having a huge infrastructure upgrade project which will increase revenue. The GPW is still lacking a full-time Chief Executive Officer (CEO) which is a matter of some concern.
Consideration and adoption of Draft Committee APP
Mr Salmon stated that much of the content is the same as the previous year. The five strategic goals emerge from Parliament. Pertaining to the updated situational analysis, the National Development Plan (NDP) priorities have not changed. The main priorities in the long term include confronting the triple challenges of poverty, inequality and unemployment, acquisition of skills needed for economic growth, building a capable state, fighting corruption, improving regional development through the Southern African Development Community (SADC) and other regional bodies, transforming society and overseeing electoral participation.
By the end of the 2019 period, government needs to make progress in ensuring all people in SA feel safe and free and create and retain decent employment and national building. In terms of priorities raised during the 2018 State of the Nation Address (SONA), the main areas are encouraging investment, creating jobs, infrastructure development, addressing corruption and improving service delivery efficiency. In terms of encouraging investment, the main priorities for the DHA are to encourage the attraction of scarce skills that includes online visa applications.
There is the outstanding matter of refugee reception offices that were ordered by the court to be re-opened in Port Elizabeth and Cape Town. Port Elizabeth was outstanding from 2015 so the DHA is in contravention of that order and in Cape Town it was said to be reopened in March 2018 but this was still not done. There are some indications from DHA of taking steps to reopen the Cape Town refugee reception office but nothing has been said about Port Elizabeth.
Mr Hoosen observed there was a decrease in expenditure allocation to the immigration department. This has been an ongoing chronic problem in the Department – while funding depends on the allocations from Treasury, priority allocation was done by the Department. Another observation was in relation to two court matters – the Department not implementing the order to reopen the refugee reception centres is another indication that the DHA has no respect for court rulings.
Ms Mkhaliphi said that the ICT system is a matter not been addressed by the Department because people have complained about this and it has not been captured in the APP. There was also the challenge of not being mobile – she remembered the DG saying the Department did not have cars that are supposed to help people in rural areas but that it is a matter that cannot be fixed because it is quite expensive. The long queues are also problematic. The Department must prioritise people.
Mr Salmon indicated the State Information Technology Agency (SITA) has been captured under “SITA” in the Draft Report.
The Chairperson clarified that on the ICT recommendation, the services should be changed because SITA is incompetent.
Mr Chauke noted the Department achieved 87% of its targets. The Department has a staff compliment of 10 000 people but are short of 400 people. Priority should be given to filling up vacant posts. The Ministry stated that priority should be given to long queues - this could be solved by filling vacant posts. The Committee should recommend the Department prioritise filling vacant posts.
Mr Figlan noted that Members have raised these very recommendations before to the DHA particularly the shortage of staff and the official for immigration. It is a matter of figuring out how to incorporate the oversight that Members have done on the border posts at the ports of entry in order to have a workable DHA. The long queues will continue because of the staff shortage – at the same time there is a shortage of money to employ new staff which means that the Committee needs to come up with a plan to see how it will push the Department.
Mr Salmon responded that the matter on filling vacant posts has been captured in the Report.
Ms Raphuti was concerned about citizen affairs which takes about 47 percent of the overall Department expenditure. However the budget in that area is being decreased which led to inadequate feedback. The citizen affairs budget should be revisited because the Member has received a plethora of complaints from the community in that regard.
Mr Salmon replied that the recommendation of updating Smart ID cards was broadened to key rural areas besides Matatiele. The matter of reopening refugee centres in Cape Town and Port Elizabeth would be added as well as prioritising the role of fully functioning mobile offices.
Ms Dambuza emphasised that the Draft Report should not single out one area because there are so many areas that have the same problems – she referred specifically to Matatiele which was just one example that related to the rural set-up. She requested for the Committee staff relook at the observations and recommendations particularly to clean up the Report in terms of sequencing. She was willing to work with the staff to fix this.
Mr Salmon said that he would ideally have liked the Committee to adopt the Draft Report today. If the recommendations related to structure, this could be fixed. If the changes related to content, the Committee could not adopt a Report if additional content was added after today and Members did not see it.
Ms N Mnisi (ANC) said that the Border Management Agency (BMA) is a challenge because it is an entity that ensures South African borders are secure. This was supposed to be priority but she does not understand why it has not been prioritised or funded.
Mr Salmon said the difficulty is that the BMA Bill has not been finalised. If the Bill has not been finalised then money cannot be allocated. Nonetheless, the Draft Committee Report recommends that money should be allocated as soon as possible.
Mr Chauke, being fairly new to the Committee, sought clarity as to whether the DHA had a clean audit from Auditor-General of SA (AGSA). Was there no wasteful and fruitless expenditure? If the audit was clean then he is comfortable but if there were issues then the Committee should make recommendations pertaining to that.
The Chairperson understood Ms Dambuza’s recommendations to be related to the structure of the Report and not on altering the substance. He agreed with Mr Chauke that the Committee should comment of the position of the AGSA – did the Committee researchers find any irregularities with the audit?
Mr Salmon clarified that matters relating to the AGSA’s recommendations are currently captured in the Annual Business Plan have not been captured in the Draft Committee Budget Vote Report.
Mr Kekana asked whether the Department achieved a qualified or unqualified audit.
Mr Salmon responded that the Annual Report was unqualified - improvements were made but it is not a clean audit yet. The recommendation that the Department pays closer attention to its audit action plan was made in the Annual Business Plan.
Mr Kekana asked for clarity on the Department’s performance from 2014 to date.
Mr Salmon responded that information was included in the overview of the AGSA – the document could be redistributed to Members.
Mr Kekana said that the only tool the Committee can use to check if the DHA is performing or not is through checking the Department’s performance annually. Since Members do not have that information at that moment, he was unsure of adopting the Draft Report. Members first needed to check how the Department is performing and if it was not performing then the Committee needs to have a very serious conversation with the Ministry. He suggested that Mr Salmon allocates at least five minutes to check on the DHA’s performance as of 2014 before the Committee adopts the Draft Committee Budget Vote Report.
Ms Dambuza recommended that on the Draft Report Business Plan of the Committee, when dealing with the issue of appointing a CEO, it should be included that the Committee would oversee this appointment. Additionally, the Committee needs to engage with what motivated National Treasury to ensure the DHA is funded properly. The Report states that there will joint meetings with other Committees - DHA falls under the security cluster so issues like the BMA affects Portfolio Committee on Defence. On study tours, there is a 2030 agenda and so the Committee needs to be specific in terms of what it will be looking at in the study tours. With the free movement of people in Africa, the Committee needs to identify key countries and have a clear mandate. The Committee was also supposed to go to Russia and Germany but the Committee needs to be clear on its objectives.
The Chairperson noted that the border management is no longer an “agency” but an “authority”. Border control is a priority. The Bill will include the BMA and different capacities to control these situations – this will be applicable not only on the border line but up to 10km from the border. He suggested the Committee adopt the Draft Reports.
Mr Chauke stated that Ms Dambuza made a very important recommendation about specifying an area of focus for the financial year. The Committee needs to prioritise the SADC Protocol on free movement of goods and persons. The issues that the Minister is dealing with now, which are the ports of entry and privatisation like the Oppenheimer arrangement, are areas this Committee needs to take an interest in. In the meeting that the Committee will have with the Minister, these issues could be also be of priority.
Mr Hoosen agreed with the sentiment that there should be better management of South African borders. The Committee supported, in principle, establishment of the BMA but nowhere in the document does it state how much it is going to cost to do so. The Committee is entering this completely blind, so essentially it was saying yes to something that it did not know the cost of. He expected the Department at this point to at least give the Committee some indication of the estimated costs for the BMA. Notwithstanding, as the DA, he was overall satisfied with the contents of the budget.
Mr Chauke asked whether the issue of the BMA was presented to the Committee with costs.
Ms Mkhaliphi said it was presented without costs.
Mr Chauke suggested the Committee supports the principle of the BMA and then invite the DHA to give the Committee a presentation on the breakdown of the cost.
The Chairperson asked if Members were ready to adopt the two Draft Reports.
Ms Raphuti moved to adopt both Draft Reports with amendments.
Ms Kenye seconded Ms Raphuti’s motion.
The Chairperson stated that based on the discussions, Members broadly agree with one another.
He informed Members of an invitation from the United Nations Human Rights Council (UNHRC) to attend its parliamentary workshop on the role of the South African Parliament in preventing statelessness and protecting stateless persons in SA. It would take place on 10 May 2018 at the Fountain Hotel. Members were invited as individuals. The workshop will provide insight on international migration and circumstances that cause push and pull factors of migration.
Mr Chauke added a Member of Parliament was included on the panel. He believed the Committee should be represented and suggested a Member was designated to attend. He did not want it to be a loose invitation as it was important for the Committee to be represented.
The Chairperson agreed.
Ms Dambuza seconded the suggestion. She noted the Home Affairs Deputy Minister would be attending.
The meeting was adjourned.