National Council of Provinces - 26 August 2004
THURSDAY, 26 AUGUST 2004 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
____
The Chairperson of Committees took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS – see col 000.
NOTICES OF MOTION
Ms H LAMOELA: Chair, I give notice that on the next sitting day I shall move:
That the Council –
(1) wishes to thank and encourage the 14 young persons, representing different cultures of the Pinelands High School in the Western Cape, namely Lea Le Roux, Elroy Bell, Gino Okkers, Gadjiya Jephta, Alia Hendricks, Monique Hess, Kwezi Mayosi, Carri-Ann Little, Dominique Leibrand, Danielle Pemental, Shaney Fortuin, Ragdmat Pool, Shamiega Isaacs and Wafieka Isaacs who now, during cross-curriculum week for schools, are helping at G H Stark Old Age Home in Hanover Park, by feeding older persons and assisting in all ways possible to add to the wellbeing and comfort of these persons in the home; and
(2) sincerely appreciates this fine gesture of these youngsters and encourages all other provinces to follow their example.
Dr F J VAN HEERDEN: Mev die Voorsitter, ek gee kennis dat ek op die volgende sittingsdag sal voorstel:
Dat die Huis -
(1) kennis neem dat in die munisipale verkiesing van 2000 in Wyk 9, Emfuleni in Vanderbijlpark, die Vryheidsfront 80 stemme en die Demokratiese Alliansie 3229 verower het; en
(2) verder kennis neem dat in die munisipale tussenverkiesing in dieselfde wyk op 25 Augustus 2004 die Vryheidsfront Plus 846 stemme, die Demokratiese Alliansie 832 en die African National Congress 107 stemme verower het. (Translation of Afrikaans notice of motion follows.)
[Dr F J VAN HEERDEN: Madam Chairperson, I give notice that I shall move:
That the House – (1) notes that in the municipal elections of 2000 in Ward 9, Emfuleni in Vanderbylpark, the Freedom Front received 80 votes and the Democratic Alliance 3229; and
(2) further notes that in the municipal by-election of yesterday, 25 August 2004, in the same ward the Freedom Front Plus received 846 votes, the Democratic Alliance 832 and the African National Congress 107 votes.]
Ms J F TERBLANCHE: Chairperson, I hereby give notice that I shall move on the next sitting day:
That the Council–
(1) notes with dismay the parade of government Ministers, parastatal bosses and newly enriched ANC elite at the Athens Olympics;
(2) believes it is inappropriate for those earning and spending taxpayers’ money to flaunt their high living while too many South Africans continue to live in poverty;
(3) regrets that the Telkom CEO is one of those lavishing vast amounts of money to indulge himself and his political friends on his Olympic “gravy boat” at a time when the company he oversees is retrenching 4 000 workers; and (4) calls on the governing elite to show a little more humility in the face of the continued suffering of the people who pay their salaries.
Ms N D NTWANAMBI: Chairperson, on a point of order: I want to know if it is correct for a member to mislead the House when she has been briefed about Telkom’s situation and retrenchments? Is it correct for her to misrepresent Telkom here?
The CHAIRPERSON OF COMMITTEES: Hon member, I will ask the Table staff to assist in this matter.
ATTACK ON NCOP MEMBER MR WATSON
(Draft Resolution)
Ms D ROBINSON: Madam Chair, I move without notice:
That the Council –
(1) condemns the recent attack on one of our members, Mr Watson, in broad daylight when travelling to Cape Town International Airport on Vanguard Drive;
(2) notes that in this attack Mrs Watson was injured, the vehicle was damaged and Mr Watson’s briefcase, containing important personal documents, including travel vouchers, air tickets and his parliamentary access card, passport and driving licence were stolen;
(3) further notes that this crime hot-spot is a major link with the airport and exposes travellers to constant risk;
(4) calls for effective policing along this stretch of road, and the erection of visible warning signs to inform travellers of the risks; and
(5) expresses its sympathies to the Watsons on their ordeal and thanks to British Airways for the professional way in which they assisted the Watsons and got them onto their flight in time.
Motion agreed to in accordance with section 65 of the Constitution.
POOR PERFORMANCE OF NATIONAL CRICKET TEAM
(Draft Resolution)
Mr N M RAJU: Chairperson, I move without notice:
That the Council– (1) notes with deep disappointment the pathetic performance of the Proteas cricket team in losing the third one-dayer, and in so doing losing the eighth consecutive one-dayer and bringing disappointment to this Council;
(2) calls upon the United Cricket Board to get its house in order; and
(3) further notes with disgust that the president of the UCB, Dr Gerald Majola, like Nero, is fiddling while Rome is burning by his presence in Athens rather than being in Sri Lanka taking care of the problems besetting our national team.
The CHAIRPERSON OF COMMITTEES: Order! Is there any objection to the motion? [Interjections.] In the light of the objection, the motion may not be proceeded with. The motion without notice will now become notice of a motion.
IMMIGRATION AMENDMENT BILL
(Consideration of Bill and of Report of Select Committee on Social Services thereon)
The DEPUTY MINISTER OF HOME AFFAIRS: Madam Chairperson, hon members, in the past few weeks we have come before this esteemed House to present several Bills which needed immediate finalisation. From the outset, I should like to thank hon members for their understanding, co-operation and support, which has made it possible for us to finish much of the work relating to our outstanding pieces of legislation.
This level of understanding has meant even more to us at Home Affairs, given the important process in which we are engaged to turn our department around, so that it is better able to play its part in the pursuit of the people’s contract for a better life.
Today we have returned at the instance of the President of the Republic, who in his state of the nation address at the opening of the third democratic Parliament committed government to finalising the immigration regulations within three months.
In pursuit of this, it was clear to us that we would have to effect certain changes to the principal Act in order to correct the fundamental flaws contained in the Act, to produce a sound immigration policy that would facilitate economic development, attract foreign skills and investment, and reflect our commitment to human rights and the security of those who live within our borders, both citizens and residents.
Such a policy should be consistent with our foreign policy objectives, particularly with regard to SADC and the continent, and it must be consistent with our commitment not to discriminate on the basis of gender.
In this regard, and precisely because in the medium term government intends developing and refining its immigration policies, this amending Bill we are tabling here today and the regulations which will follow represent a short- term intervention. We shall in due course come back to the House to make more comprehensive amendments.
We are pleased to inform this august House that we have in the short period afforded us engaged in extensive consultations. What this amending Bill therefore contains is a number of drafting and technical amendments, some of whose more noteworthy and progressive changes will make the principal Act more user-friendly and equitable, I have the honour herein to outline.
The preamble has been amended properly to reflect the purpose of the Act, and to emphasise the need for the country to attract scarce skills, and the role of the government in the development and growth of the region and continent.
A number of definitions have also been clarified. The definition of “marriage” and “customary marriage” will be brought into line with existing legislation.
Instead of “powers of the department”, in terms of the replacement section the Minister retains executive powers, and the power to take administrative decisions is vested in the director-general.
The amending Bill provides for the inclusion of the National Intelligence Co-ordinating Committee and the Department of Justice and Constitutional Development on the Immigration Advisory Board established by the principal Act, and requires that representation be at deputy director-general level, which will ensure accountability at a sufficiently senior level.
As far as the representation from civil society is concerned, the Minister will appoint one representative of organised labour and one of business, as well as up to five members of the board on the basis of relevant expertise. The operations of the board will be prescribed by regulation.
Amendments to the principal Act reflect the advisory nature of the board, and emphasise the role of the board in facilitating interdepartmental co- operation on immigration matters. The section that mandated the director- general to establish a liaison committee of departments involved in border control will be repealed, as it is felt that existing forums already serve that purpose.
A new section dealing comprehensively with regulations will remove the cumbersome requirements concerning public comments, which required the Minister to respond to each comment in footnotes to the regulations. The Minister will, however, under any normal circumstances, still be required to publish the regulations for public comment, including consultation with the Immigration Advisory Board.
Amendments have been made to section 8 of the Immigration Act to streamline the process of internal appeals and reviews of administrative decisions taken by officials in the department, and to bring it into line with the Promotion of Administrative Justice Act.
In order to bring the principal Act in line with other legislation, powers and functions are attributed to the director-general and not the department, as is currently the case in the principal Act.
The amending Bill completely repeals the mandate to levy fees such as for the Training Fund under the principal Act, as such a legal mandate falls under the Department of Labour.
In line with our conviction that the implementation of immigration law and policy should not be privatised and should always fall under the mantle of government, the requirement for a chartered accountant certificate has been removed from the Act, and foreigners or employers will now have to prove certain matters to the satisfaction of the director-general, which may include the submission of a chartered accountant’s certificate. These will be specified in the regulations.
While immigration law is a specialised field which requires specialised expertise, it is not appropriate to establish immigration courts under the law, and reference to such courts will be removed from the principal Act.
The principal Act prohibited the recording of entry into and departure from the Republic by citizens. In response to concerns of Statistics South Africa, the Reserve Bank and the SA Police Service, among others, an amendment will provide for such recording in order to simplify the process of determining which countries are visa-exempt and enable proper consultation by the Minister with other government stakeholders. Therefore two new sections have been inserted to deal with visas and transit visas.
While the principal Act provides for an asylum permit, the amending Bill refers to an asylum transit permit, which is to be valid for 14 days. This will enable an asylum seeker to report in person to apply for an asylum seeker’s permit in terms of the Refugees Act. If the asylum transit permit expires before the holder has reported to a refugee reception office, the holder becomes an illegal foreigner and will be dealt with as such in terms of the principal Act. This amendment is designed to protect bona fide asylum seekers, while at the same time discouraging abuse of the process.
Amendments to the principal Act will require a foreigner married to a South African citizen or permanent resident to wait for a period of five years before being able to apply for permanent residence on the basis of marriage. Foreign spouses will be entitled to a temporary residence permit which will allow them to work and study. This, amongst other things, will assist us to deal with the problem of the marriages scam.
Amendments requiring that police officers or immigration officers interview any person whose status is in doubt, before taking such person into custody, will ensure that the rights of citizens and noncitizens alike will be respected.
Madam Chair, I would like to close by thanking all the officials in the department, and especially the Minister, who unfortunately could not be here today because of a bereavement in the family, together with the state law advisers, who all worked so hard on these amendments, and who are poised to ensure that regulations are published without delay. I am sure that you will agree that these amendments will improve and streamline the operation of immigration management and control, as well as provide a basis for transparent and workable regulations as promised by the President.
I present the Immigration Amendment Bill, 2004, for your consideration. Thank you. [Applause.]
Ms J MASILO: Madam Chairperson, hon Deputy Minister, colleagues and friends, director-general and senior officials; the President, in his state of the nation address at the opening of the third democratic Parliament, committed government to finalising immigration regulations within three months. We are also aware that amendments to the principal Act were urgent to address serious problems the department was experiencing in the implementation of this Act.
The Bill we have before us is fundamental in trying to regulate who comes into our country’s ports of entry and exit. All of us are aware of some of the difficulties that we have experienced before with the implementation of the principal Act. It therefore becomes imperative that this amending Bill ensures that the Department of Home Affairs has strong enough tools to control the flow of people to and from our shores efficiently and effectively.
Without the proper controls at our ports of entry, South Africa becomes vulnerable to crime syndicates, escaped convicts and all manner of undesirable and prohibited persons. At the same time, South Africa has the responsibility to provide a safe haven for those people, especially those on our own continent who seek asylum from wars, pain and torture, or who are otherwise forcibly driven from their homes.
Indeed, we need also to extend a hand of welcome, even to those who simply want to have a pleasant, memorable holiday in our country, and enjoy the many and unique natural habitats of wild animals or our rich cultural diversity. It is this careful balance between making welcome and control that this amending Bill, and indeed any immigration legislation, seeks to address.
As a new democracy of the African continent, we also cannot ignore all our political responsibilities to Nepad, the African Union, the SADC region, and more recently the Pan-African Parliament. Our immigration legislation therefore should make it possible for our continent to engage in an exchange of scarce skills, have those skills transferred from foreigners to our citizens, and provide for learning and training opportunities across our borders.
Therefore the preamble seeks to recognise the need to attract scarce skills, to transfer these skills and to outline the new role that South Africa plays in the SADC region.
The Bill also seeks to amend the composition, powers and representatives of the Immigration Advisory Board. This means that the Minister is now able to appoint five people to the board. This could mean that civil society representation could be increased in this manner. The Department of Justice and Constitutional Development and the National Intelligence Co-ordinating Committee have been added.
At the same time the powers of the board have been limited to a strictly advisory function which then allows the department to do their job without having to wait for an extensive consultation process to be completed before they can do what they need to do.
Without effective legislation, enforcing all the controls we envisage to keep our ports of entry secure becomes an extremely difficult exercise for our officials on the ground. We also sometimes unwittingly create loopholes for people to abuse our country’s generosity, and as a result our own people become targets for these foreign criminal elements.
A case in point has happened in Richards Bay recently. The Organised Crime Unit of the SAPS apprehended the leader of one of the main drug syndicates in that area. He was an illegal foreigner. He claimed the right to be allowed out on bail because of his marriage to a South African citizen. Research into the records of the department showed that on the very day that he was apprehended in Richards Bay, his “wife” supplied her residential address to the Department of Home Affairs as being in Inanda township. On being questioned, this drug dealer was not even aware of his “wife’s” home address. It was found that he had passports from his country of origin in various names, and South African ID documents in other names. It was also found that he had previously been apprehended and charged in Plettenberg Bay, but that he had skipped bail there. These are the kinds of foreigners we do not want in our country.
We are not saying that every visitor who presents himself or herself at our borders comes with evil intent, because we know that the majority of foreigners coming to South Africa have a genuine interest in our country and want to feel part of our unique democracy, but it is because of the minority, unfortunately, that we have to be particularly vigilant.
Without that vigilance with regard to our permits, visas, passports and other travel documentation, we lose all credibility with the international community, and our citizens who wish to travel abroad find themselves exposed to intense scrutiny and all their documents are examined with a fine-toothed comb at most international ports of entry. Already our Minister had an interview with her counterpart when there was suspicion that four South African passports were found in England and that these passports were intended for use in Al-Queda-related activities. It is my understanding that our travel documentation is still highly regarded internationally.
It is important that we have clauses in our legislation that create an environment that envisages a spirit of co-operation with our neighbouring states, such as some of the provisions contained in the preamble. Already within the SADC forum there are moves to put processes in place geared toward harmonising legislation in an effort to stop the abuse of the immigration system.
With regard to securing our job market against abuse by illegal foreigners, we need to understand that the entry of illegal foreigners into the job market has a major influence on the unemployment rate of South African citizens. Confidence tricksters have been able to take jobs that were intended in the first place for South African citizens and for which they were not even qualified. This has even placed the administration of government at risk. It is of utmost importance to remember that these confidence tricksters have even managed to get jobs in government departments.
In this regard there is the example of a person who came illegally to our country and obtained the position of a director in the National Treasury. He was in possession of two different false identity documents, and both his degrees by which he “qualified” for the post were forgeries of Unisa degrees. It was also found that a bank and a major corporation wanted him for fraud and that he was wanted in his country of origin for fraud to the tune of US$250 000. This is but one example of many such cases that were reported in the media recently.
This clearly shows that the tightening of measures to prevent this entry of illegal foreigners is of the utmost importance in the combating of crime. The strengthening of the Immigration Act is therefore not only of importance to the Department of Home Affairs, but will also assist the security community to combat crime in general.
Finally, some allege that South Africans are xenophobic. This is not true if one considers that we are tolerant of all the groups speaking 11 official languages, as well as others. We have always accepted immigrants into South Africa, if they enter our country through legitimate means and they add value to South Africa as a new democracy. However, it is the influx of illegal immigrants involved in crime and abuse of the women of South Africa in their efforts to become residents here that is unacceptable.
The amendments today therefore seek to do two things: Firstly, to facilitate the immigration of skills and qualifications, and secondly, to curb the abuse of our system, especially the abuse of our women and the smuggling of persons into our country.
Baditšhaba ba tla mo Aforika Borwa ba nyala bonnake le bokgaitsadiarona. Fa a sena go monyala, o a mo tlogela, o a mo tlhala a ba a tsena mo dipolotiking tsa makoko a a rileng. A ba a kgethiwa go nna mopalamente a tlhadile mme yo wa rona wa Moaforika Borwa. A tswelela pele. Re le bomme ba Aforika Borwa ra re, ka melao e e tseneng e, go a fela. Go fedile. Ba tlile labofelo mo palamenteng. (Translation of Sesotho paragraph follows.)
[Foreigners come to South Africa and marry our sisters. After marrying her, he divorces her, leaving her in the lurch and joins certain political parties. He is then elected as a member of Parliament after divorcing this South African woman. Life goes on. We, the women of South Africa, are now saying that, with this new law, all that is coming to an end. They got into Parliament for the last time.]
Madam Chairperson, the Select Committee on Social Services supports the Immigration Amendment Bill. I thank you. [Applause.]
Ms N M MADLALA-MAGUBANE: Chairperson, the Minister of Home Affairs has called on all South African women to check their marital status. For those of us who are not aware of this call, the need arose when people, especially young women, went to the offices of Home Affairs to declare that they were getting married, only to find that they were already married to someone and they did not even know about that.
Cabanga-ke mphathisihlalo, emthethweni usuwaziwa ngokuthi ushadile, ushade no``Mr so-and-so’’ ongakaze umbone ngisho nasejuteni. [Just imagine, Chairperson, in terms of the law, you are recorded as married to Mr so-and- so, whom you have never seen before.]
It then becomes a long process of unravelling this misdeed and finding out exactly what happened. Women discovering that they were married without their knowledge became more common over the past year, and all of us as women are vulnerable to this new phenomenon.
Laba besimame kutholakala sebebhekene nenkinga yesehlukaniso, behlukanisa nomuntu abangamazi nhlobo.[Then these women found themselves in the dilemma of facing a divorce action, having to divorce a person they do not know at all.]
All of us, but particularly those of us coming from Gauteng, like me, know how people wanting to gain quick entry into our country misuse our women. Unfortunately, sometimes these fraudulent marriages happen completely without the person’s knowledge.
In Bloemfontein, the SA Police Service uncovered a syndicate selling drugs. Of the seven illegal foreigners involved, six were married to South African citizens. Bail was given to these syndicate members because they were married to South Africans, and the conditions of their residence permits allowed them to apply for and be granted bail.
Once these men were out on bail, they continued selling drugs, putting a far larger portion of our population at risk than simply the women they married. In this case the women to whom they were married could not be found anywhere. Without permanent residence permits they would have continued to be illegal foreigners and deported immediately.
In my province these people gaining permanent residence through fraudulent marriages got even more creative than we anticipated. It was reported that in Tswane an illegal foreigner involved in a so-called 419 scam had a permanent residence permit. He had entered our country illegally and remained undetected for several years. Later, with the assistance of a corrupt Home Affairs official, he created a woman through the process of late registration of birth. Firstly, it is important to understand that this woman never actually existed. A marriage officer married him fraudulently to this nonexistent woman.
Sihlalo, ngisho ukuthi wabumba owesimame ongekho, elekelelwa ngumsebenzi womNyango wezaseKhaya. Ukuthi bakwenza kanjani lokhu, uSathane kuphela owaziyo. Lezi ezinye zezinkinga ezibhekene nalo mNyango wezaseKhaya. (Translation of isiZulu paragraph follows.)
[Chairperson, I mean to say that this person created a woman who did not exist, assisted by an official of the Department of Home Affairs. As to how they went about this, only Satan knows. Those are the problems faced by this Department of Home Affairs.]
Secondly, the facility of late registration exists because of our apartheid past and the failure of the apartheid government properly to register especially those in the remote rural areas, or because the information was recorded incorrectly on birth certificates, allowing a person to make an application for late registration.
In some cases these late registrations consist only of an application form, with very little information on the parents of these individuals. The accompanying affidavits are also forged. These affidavits are obtained through corrupt members of the SA Police Service; this corruption also needs to be uprooted by this department.
Finally, this person in Tswane, on the basis of this fraudulent marriage, then applied for a temporary residence permit, and subsequently a permanent residence permit, based on the fact that he now had a South African spouse. It was as easy as that.
We also need to understand that some women are used through enticement. Illegal foreigners lure them with promises of lots of money, and because they are poor, it seems to them that the offer of money for their signature on a marriage certificate is not a big deal. They then go with the illegal foreigner to Home Affairs and sign the marriage documents. Once the marriage transaction is completed, the two go their separate ways.
Abaphinde bahlangane neze. Owesimame uzuza imali engatheni ngenxa yendlala.Owesilisa yena uzuza ukuba yisakhamuzi esiphelele saseNingizimu Afrika.[They will never meet again. The woman receives a small amount of money just because she is poor. The man benefits by obtaining full South African citizenship.]
The new section 26B of this amending Bill will hopefully close this gap for easy access into our country through marriage. This section says that the director-general may issue a permanent residence permit to a foreigner who has been the spouse of a citizen or permanent resident for five years, and the director-general is satisfied that a good-faith spousal relationship exists, provided that such a permit shall lapse if at any time within two years from the issuing of the permit the good-faith spousal relationship no longer exists, except in the case of death.
We were concerned as a committee about how the director-general would know that a good-faith spousal arrangement exists, without peeping through the window …
… abone phela lokho okwenzekayo ekamelweni. Kube yinkinga-ke lokho ekomidini. [… to see what happens in the bedroom. That became a problem for the committee.]
We understand now that the officials of the department will arrange for interviews with the couple and they will then follow up with other interviews, at which both parties will be present. The ANC supports the Bill. [Applause.]
Ms H LAMOELA: Madam Chair, hon Deputy Minister, hon members, director- general and friends, people travel the world over in search of various opportunities, some of which include job opportunities, business and sightseeing. Some enter a country for asylum purposes, since democracy is not implemented in all countries of the world. Sportspeople enter a country and stay for a short period before they leave again.
Although the amendments to the principal Act are urgent, also in order to address critical problems identified through the controversial process around the immigration regulations, as well as the experiences of the department since the principal Act became operative, it must not be seen as a quick-fix, aimed mainly at enabling implementation of the Act and in keeping with the presidential deadline in the state of the nation address in April of this year.
The constitutional democracy of our country is being exploited by illegal foreigners. Too many innocent South African women have fallen prey to opportunistic foreigners offering so-called employment prospects, only to find themselves married without their permission or caught in a business- type marriage to enable their foreigner husbands to gain permanent residence in South Africa.
The DA calls on all members of this House to encourage young female constituents to check their marital status and to support the Department of Home Affairs in its national “Know your marital status” campaign.
In keeping with international trends, the proposed amendment to record both the entry and exit of South African citizens will go a long way to enhancing our internal security, especially in view of recent allegations that citizens from South Africa were connected to terrorist organisations.
The proposed amendments in respect of transit and asylum transit permits are welcomed, as are the suggested stricter conditions for the application of permanent residence by foreigners on the grounds of marriage to South African citizens.
Because of the uncertain economic and military situation in many parts of Africa, South Africa has become a popular destination for foreigners and continual care should be exercised that the necessary control mechanisms are in place to ensure that they are here legally. We support one of the main objects of the amending Bill, which is to attract scarce skills to the country.
It is the DA’s considered opinion that civil society plays a vital role in keeping the checks and balances. There has not been sufficient motivation for diminishing the role of civil society, and the DA would like to urge the Minister to revisit this aspect in the interests of transparency.
The biggest concern, though, is whether the department has the capacity to implement the Bill once enacted. We have heard recently how understaffed the department is. It is our hope that funds will be made available to enable the staffing of the department for the purposes of implementing this piece of legislation. The DA supports the amending Bill. I thank you. [Applause.]
Rev E ADOLPH: Chairperson, members of this House, the diversity of South African society, the injustices of the past and the difficulties created by injustice, intolerance, inequality, poverty and crime still haunt the fragile society of our new democracy. We all understand and experience that currently.
However, we are optimistic and we have hope for this country, because of the miracle of our new Constitution. Our Constitution is already proof that the majority of South Africans, irrespective of colour, creed and background, are more than willing to put the past behind them, and to build a new nation based on mutual acceptance, respect and tolerance, as portrayed in the Immigration Amendment Bill.
The changes contained in the Bill, we realise, are rather technical in nature. The ID supports such amendments, because they will enhance the efficiency of the department in managing and controlling the influx of foreigners. We are cautious about people who come into this country illegally and rob our indigenous people of jobs.
On the one hand we have to deal with the dichotomy of xenophobia. South Africa is indeed a home for Africa, on the one hand, and on the other hand we need to safeguard, with regulations, job opportunities for our own people in this country. That is what this Bill tries to emphasise.
We are also very encouraged by the participation of civil society and the NGOs in making the rules and regulations in terms of the new amendments. This is hope for us. There are still many questions and details that need to be worked out, and the courts will have to provide considerable guidance, but we have confidence in our Constitution, which is a solid and acceptable point of departure for all of us.
We have to be mindful of the reality and the legacy of xenophobia in South Africa. To this end we need to adopt a spirit of flexibility and move away from ideological thinking, and rather be more tolerant of people in this country.
Our policy and willingness to join hands across the awesome divides in constructive co-operation for the benefit of all people living in South Africa need to be commended. Therefore the ID is grateful to the national Minister of Home Affairs for starting the “Know your marital status” campaign. She needs to be supported and encouraged, and all other sectors should help to assist her in this regard. Our people should not be abused, especially our women, to find all of a sudden that they are married to foreigners. That is a disaster.
We need scarce skills in our country, yes, and the amending Bill seeks to refine this scenario.
There will still be many questions with regard to combating xenophobia in South Africa, but we believe that in the spirit of ubuntu we shall overcome. Therefore we have to safeguard against illegal foreigners who will eventually rob our people of their job opportunities.
We support this Bill and we want to allay the fears of all our countrymen: Don’t be scared of xenophobia. Thank you.
Mr J O TLHAGALE: Madam Chairperson, hon Deputy Minister and my colleagues, the purpose of this Bill, as already indicated by the hon Minister and other speakers, is to address a number of defects and weaknesses in the principal Act. These shortcomings were a source of concern to the department itself, and to other stakeholders, in its implementation.
The new provisions will enable the Minister to delegate some of his powers to a director-general as head of the department. This is most welcome and will facilitate the implementation process of the Bill.
However, on a more serious note, this Bill, as good as it seems to be, will not achieve its objective if the necessary infrastructure is lacking at the areas of implementation. The Department of Home Affairs up to last year was inadequately provided in terms of office accommodation and transport in the North West. However, I hope that, with the turnaround strategy that the department has propounded recently, my fears may be addressed.
The functions of the Immigration Board, which are advisory, are spelt out clearly and are subordinate to the authority of the Minister. The UCDP is in total agreement with this arrangement. Very often some boards are a law unto themselves and they usurp functions which they were not delegated to perform.
The preamble sets out in no uncertain terms very clear procedures to be followed in the acquisition of transit visas and residence permits by foreigners seeking such documents for entering the Republic, and the UCDP supports this Bill. I thank you. [Applause.]
Mr M O ROBERTSON: Madam Chairperson, hon Deputy Minister, hon members, the ANC has spent a great deal of time over the past few years trying to create an ideal piece of legislation that will deal effectively and efficiently with immigration control in our country.
We have had to state quite emphatically on more than one occasion to the powers that be in the Department of Home Affairs that we disagreed with the processes and sections envisaged in the principal Act. We even tried to create checks and balances in the principal Act, especially under the provisions contained in section 7, that would ensure that before regulations are made, the department comes back to the committees of Parliament and engages with them and the public to ensure complete and total transparency. As we all know, this did not happen in the way we envisaged.
Even now we are sensitive to the fact that this amendment brought to Parliament will only serve to kick-start the process of formulating a transparent and democratic framework in which South Africa can begin to engage with other countries on immigration matters. Needless to say, we are by no means completely satisfied that all aspects of immigration have now been covered by this amendment, but we welcome the efforts made by the department to try to remedy an impossible situation. We have, in our committee deliberations, encouraged the department to come back so that together we can further interrogate the intricacies of immigration matters even after the passage of this amending Bill before us.
The ANC is particularly encouraged by the removal of the provision in section 2(2) of the Act, which levied a percentage of salaries of foreign work permit holders for training purposes. Such a training levy is already within the ambit of the Department of Labour under the provision contained in the Skills Development Act, and we saw it as inappropriate in immigration legislation. We welcome the relief that the lifting of such a burden brings to foreign workers, even while the department has assured us that the provision was never implemented and the training account is still at zero.
The issue of chartered accountants being at the centre of most permit applications has also been removed by the present amendment. Of course the ANC welcomes the financial relief this removal brings, especially to our poor neighbours, who had to try to find money to pay a chartered accountant before their applications for permits could be approved. The principal Act was effectively privatising the normal function of the department. The ANC felt that the retention of a chartered accountant certificate should be retained for those requiring business permits. The extent of research needed to investigate all the finances of a business owner would place a heavy burden on the staff of the department.
Of course, for all the other categories of permits the department needs to be sufficiently staffed to undertake the large numbers of applications that will now begin to make their way directly to the department. We understand that already in the turnaround strategy the department is focusing its attention on immigration matters. The deputy director-general for immigration may already be appointed, but we will wait in anticipation for the formal announcement from the department.
The ANC was horrified to hear that our airports and harbours were being undermined by illegal foreigners in transit to other destinations by gaining quick access into our country, after which they simply disappear. It seems that the department did not have an effective mechanism dealing with people in transit. Now the new section 10B will oblige people who are travelling to other destinations and want a short-term stopover in South Africa to apply for a transit visa. Without this transit visa they will not be able to enter our country.
Similarly, illegal foreigners were presenting themselves at our borders seeking asylum. Again, they abused this opportunity to enter the country illegally and the department experienced difficulties in tracing them. With the amendment of section 23, asylum seekers now have to obtain an asylum transit permit from the director-general at the port of entry, which will give them 14 days to present themselves to a refugee reception officer at a refugee reception office. They will then have to apply for asylum in terms of section 21 of the Refugees Act.
This is not an ideal solution, because the asylum seeker, even with the asylum transit visa, may still disappear after the 14 days have expired. Hopefully, with the intended expansion of the refugee reception centres envisaged by the department, all the ports of entry will have such designated areas in the not-too-distant future. In addition, we anticipate that the long-term policy review process will interrogate this matter further.
The ANC is also conscious of the fact that we seem to be attracting some prohibited and undesirable persons into our country. We certainly do not wish to become the “dumping ground” for the world’s crime syndicates. It is our wish that these amendments will bring to to an end the illegal activities of crime syndicates or individuals found guilty of committing serious crimes in their countries of origin. They must find it extremely difficult to enter and depart from our country. They must find it impossible to exploit our women to enter our country.
Finally, the amendments begin a process of creating an immigration policy that facilitates tourism and brings investments into our country, while at the same time discouraging international crime. The ANC therefore supports this amending Bill. Thank you. [Applause.]
The DEPUTY MINISTER OF HOME AFFAIRS: Chairperson, thank you to all hon members, firstly, for supporting the amending Bill, and secondly, for the positive comments that they all made.
Ours is a Bill thrust along positive lines. It proceeds from the premise that we seek to promote economic development, attract scarce skills and investments, and ensure commitment to human rights and the security of our citizens. Thereafter we begin to worry about undesirable elements who will seek to exploit these objectives that we set for our immigration legislation, in order also to gain entry into our country.
I want to make this point: What we are trying to do is to establish legislation that is Africa-friendly and Africa-focused, legislation that does not make it easy for a big European thug to enter our country and difficult for a genuine asylum seeker from the African continent to do the same. The reality that we face is that in many instances the faces of the people who enter our country illegally are African, people from neighbouring African countries and other parts of our continent, but there are other people who enter our country and commit much more serious crimes. They are European, they are Asian, they are Latin-American. They have the money to buy their way into the country, to buy their stay in the country, and if they are caught they can fly themselves out of the country. They can buy a return ticket immediately and buy their way back into the country.
These are the people who are causing much more serious problems for our immigration processes than the people who we now and again catch on the streets of Johannesburg and in other parts of our country.
These are the realities we have to deal with, because in responding to the reality of illegal immigration into South Africa, we must not create a problem, create the wrong impression that it is only Africans who enter the country illegally and commit crimes. Yes, some of them do, some of them commit very serious crimes, but the main problems we have do not emanate from the African people who enter South Africa. We have to be able to deal with these things, because in how we then respond, we may create xenophobia, by creating the false impression that Africans enter South Africa to commit crime and to steal the jobs of the people of our country. We therefore have to be guarded in how we deal with these things, and this legislation tries to assist us in dealing with precisely those challenges.
Of course, much of the work that we will need to do will not be done by legislation on its own. There are a whole lot of things we need to do in Southern Africa, in co-operation with other Southern African and African countries, to ensure that we deal with problems of crime, but above all else, to ensure that we all utilise our immigration legislation in a manner that will lead to common development and growth in our countries.
The second point I would like to make is that we are trying very hard in the department to deal with the challenges of corruption. There is new energy that we are injecting into the department. There is new focus, a new urgency that we are trying to inject, to try to deal with the different things we have to deal with, whether you are dealing with matters of civic services or with matters of immigration, and any other thing that our department has to deliver as a service, either to South Africans or to foreigners who seek legally to enter our country. And dealing with corruption is one of those things, so that we ensure that the problems caused by those who enter our country for wrongful purposes are dealt with by putting in place proper systems, but on the other hand by ensuring that the type of public servant that works in the Department of Home Affairs is not the public servant who was employed in the Department of Home Affairs of Jan van Riebeeck and Dr Simon van der Stel … [Laughter.] … but a new type of public servant who works for the new government that came into power during the previous decade.
The question was raised about civil society. I would want to bring this to the attention of hon members. The principal Act made provision for nine civil society nongovernmental representatives. There has not been a drastic reduction in the amending Bill, because it says that the Minister will appoint one person from labour, which, as we know, is a very large constituency, and will further make provision for one appointment from business, which is also a very large constituency, and five other representatives of civil society, selected on the basis of particular interests that they represent and which have a bearing on our immigration. To that extent we do not think that there is a major problem, because you may select one hundred, only to find that they represent the minority in society. The issue is not so much to have a huge advisory board, but to have an effective and representative advisory board. It does not matter how many or how few they may be.
I would also want to thank the hon Tlhagale for his comments on infrastructure. As hon members know, we are looking at various things which relate to our ports of entry and immigration. These would include putting up IT infrastructure at our ports of entry. That IT infrastructure would include quite advanced IT, also at refugee centres, to enable us to record the people who enter our country and the people who leave our country. We would have to train our staff that work in those centres, and we would also have to combat corruption at those centres, working alongside the state security agencies.
And so we hope that with all these mechanisms, we will be able to deal with problems of corruption, and ensure that the infrastructure we put up is quite good and effective infrastructure, to enable us in the next few years to improve drastically on the types of services that we offer to those who seek to enter our country, whether as refugees, or to seek employment, or coming here on holiday. But the infrastructure must also enable us to apprehend those who unlawfully enter our country and to deal with them according to the laws of the country.
But as I said earlier, the most important thing for us is to ensure that the immigration legislation we introduce is friendly towards the African people from the SADC region, as well as from the African continent as a whole. Therefore, the messages that we communicate must be that the immigration legislation we are introducing is designed along positive lines.
There are other things in the principal Act to which we would still want to come back and deal with, some of which relate to the fact that a person of my complexion, walking along the road in Johannesburg … [Laughter.] … can be stopped and taken to Lindele. The security agencies will not make the assumption that I am from Limpopo or from northern KwaZulu-Natal. They will look at me once and think that I am from Ivory Coast or Nigeria or so. [Laughter.] These are some of the problems that we still need to deal with, first in the legislation, but also with regard to our immigration officers. We must train them to be able to think carefully about these things.
There are other challenges posed by children who are being trafficked into various countries, of which South Africa is a target, for sexual exploitation or other reasons. When those children are taken away from their original countries, their travel documents and other documents are taken away by the thugs that are transporting them into South Africa. When you apprehend those children, they have no documents whatsoever. And the child will be petrified to tell you, no, I was brought into this country by a person I don’t know. This person instructed me never to expose them, to disclose who they are, and I have no documents.
Now, if you were told that information, you would then be able to deal with that child in a particular fashion, not as a person who broke the law willingly. And so these are all the types of things and programmes that we are still trying to put together in order to have a proper immigration regime, to have a proper system of dealing with foreigners who come into our country for all manner of reasons. Thank you very much, Chairperson and hon members. [Applause.]
Debate concluded.
Bill agreed to in accordance with section 75 of the Constitution.
The Council adjourned at 15:08.
__________
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
WEDNESDAY, 25 AUGUST 2004
ANNOUNCEMENTS
National Assembly and National Council of Provinces
- Introduction of Bills
(1) The Minister of Finance
(i) Government Employees Pension Law Amendment Bill [B 15 -
2004] (National Assembly - sec 75) [Bill and prior notice of
its introduction published in Government Gazette No 26676 of
16 August 2004.]
Introduction and referral to the Portfolio Committee on Finance of
the National Assembly, as well as referral to the Joint Tagging
Mechanism (JTM) for classification in terms of Joint Rule 160, on
26 August 2004.
- Draft bills submitted in terms of Joint Rule 159
(1) Financial Services Ombud Schemes Bill, 2004 and Securities
Services Bill, 2004, submitted by the Minister of Finance on 15
July 2004. Referred to the Portfolio Committee on Finance and the
Select Committee on Finance.
(2) Petroleum Products Amendment Bill, 2004, submitted by the
Minister of Minerals and Energy on 16 August 2004. Referred to the
Portfolio Committee on Minerals and Energy and the Select
Committee on Economic and Foreign Affairs.
National Council of Provinces
- Messages from National Assembly to National Council of Provinces in respect of Bills passed by Assembly and transmitted to Council
(1) Bill passed by National Assembly on 25 August 2004 and
transmitted for concurrence:
(i) National Energy Regulator Bill [B 9B - 2004] (National
Assembly - sec 75) (introduced as Energy Regulator Bill [B 9 -
2004] (National Assembly - sec 75)
The Bill has been referred to the Select Committee on Economic and
Foreign Affairs of the National Council of Provinces.
- Referrals to committees of papers tabled
The referral of the following papers on 24 August 2004 to the Select
Committee on Labour and Public Enterprises for consideration and
report, replaces the incorrect referral to the Select Committee on
Security and Constitutional Affairs and the Joint Monitoring Committee
on the Improvement of the Quality of Life and Status of Women for
consideration and report on 5 August 2004:
(a) Decisions of the 1999 Beijing Congress - Universal Postal Union
(Final Text of the Acts signed at Beijing), tabled in terms of
section 231(2) of the Constitution, 1996.
(b) Explanatory Memorandum to the Decisions of the 1999 Beijing
Congress - Universal Postal Union.
TABLINGS
National Assembly and National Council of Provinces
- The Minister of Environmental Affairs and Tourism
Report and Financial Statements of the National Botanical Institute for
2003-2004, including the Report of the Auditor-General on the Financial
Statements for 2003-2004.
- The Minister of Arts and Culture
Report and Financial Statements of the Nelson Mandela National Museum
for 2002-2003, including the Report of the Auditor-General on the
Financial Statements for 2002-2003.
- The Minister of Science and Technology
Report and Financial Statements of the National Research Foundation
(NRF) for 2003-2004, including the Report of the Auditor-General on the
Financial Statements for 2003-2004.
National Council of Provinces
- The Chairperson
Notice received from the MEC for Housing, Local Government and
Traditional Affairs in the Eastern Cape Province regarding the
intervention in the King Sabata Dalindyebo Municipality, in terms of
section 139(1)(a), (b) and (4) of the Constitution of the Republic of
South Africa, 1996 (Act No 108 of 1996).
The notice is referred to the Select Committee on Local Government and
Administration for consideration and report.
COMMITTEE REPORTS
National Council of Provinces
-
Report of the Select Committee on Social Services on the Immigration Amendment Bill [B 11B - 2004] (National Assembly - sec 75), dated 25 August 2004:
The Select Committee on Social Services, having considered the subject of the Immigration Amendment Bill [B 11B - 2004] (National Assembly - sec 75), referred to it, reports that it has agreed to the Bill.
CREDA PLEASE INSERT REPORT - Insert No 2 from “ATC0825e”
THURSDAY, 26 AUGUST 2004
ANNOUNCEMENTS
National Assembly and National Council of Provinces
- Introduction of Bills
(1) The Minister of Finance
(i) Government Employees Pension Law Amendment Bill [B 15 -
2004] (National Assembly - sec 75) [Bill and prior notice of
its introduction published in Government Gazette No 26676 of
16 August 2004.]
Introduction and referral to the Portfolio Committee on Finance of
the National Assembly, as well as referral to the Joint Tagging
Mechanism (JTM) for classification in terms of Joint Rule 160, on
26 August 2004.
In terms of Joint Rule 154 written views on the classification of
the Bills may be submitted to the JTM within three parliamentary
working days.
(2) The Minister of Minerals and Energy
(i) Petroleum Products Amendment Bill [B 16 - 2004] (National
Assembly - sec 75) [Explanatory summary of Bill and prior
notice of its introduction published in Government Gazette No
26648 of 4 August 2004.]
Introduction and referral to the Portfolio Committee on Minerals
and Energy of the National Assembly, as well as referral to the
Joint Tagging Mechanism (JTM) for classification in terms of Joint
Rule 160, on 27 August 2004.
In terms of Joint Rule 154 written views on the classification of
the Bill may be submitted to the Joint Tagging Mechanism (JTM)
within three parliamentary working days.
- Bill passed by Houses - to be submitted to President for assent
(1) Bill passed by National Council of Provinces on 26 August 2004:
(i) Immigration Amendment Bill [B 11B - 2004] (National
Assembly - sec 75)
TABLINGS
National Assembly and National Council of Provinces
- The Speaker and the Chairperson
Report of the Secretary to Parliament for 2003.
- The Minister of Labour
(a) Report and Financial Statements of the Services Sector Education
and Training Authority for 2003-2004, including the Report of the
Auditor-General on the Financial Statements for 2003-2004 [RP 126-
2004].
(b) Report and Financial Statements of the Bank Sector Education and
Training Authority for 2003-2004, including the Report of the
Auditor-General on the Financial Statements for 2003-2004 [RP 39-
2004].
(c) Report and Financial Statements of the Insurance Sector
Education and Training Authority for 2003-2004, including the
Report of the Auditor-General on the Financial Statements for 2003-
2004 [RP 50-2004].
(d) Report and Financial Statements of the National Productivity
Institute 2003-2004, including the Report of the Independent
Auditors on the Financial Statements for 2003-2004 [RP 140-2004].
National Council of Provinces
- The Chairperson
Statement from the MEC for Local Government, Housing and Traditional
Affairs in KwaZulu-Natal regarding the investigation into the
Ntambanana Municipality, KwaZulu-Natal in terms of section 106(3) of
the Local Government: Municipal Systems Act, 2000 (Act No 32 of 2000).
The statement is referred to the Select Committee on Local Government
and Administration.