SELECT COMMITTEE ON SOCIAL SERVICES
IMMIGRATION BILL: BRIEFING BY THE DEPARTMENT
21 May 2002
Back to Parliamentary Hearings on Immigration Bill or Immigration Policy
Chairperson: Ms Jacobus (ANC)
Documents handed out:
Immigration Bill [B79B-2001]
Suggested amendments from the Department of Home Affairs for
technical or administrative reasons
Suggested amendment from the ANC (Appendix
1)
Suggested amendments from COSATU [See appendix 2]
SUMMARY
The Committee was briefed by the Department of Home Affairs on
the Immigration Bill, which has been passed by the National
Assembly after a lengthy process of deliberations and amendment.
MINUTES
Ms Jacobus (ANC) explained that the Committee would be briefed by
the Committee regarding the Bill, and following which the
Committee would then receive technical amendments from the
department. At this point she would give Members from the
different political parties the opportunity to suggest further
amendments. The Committee would then be ready to discuss the Bill
at length in their study groups, and that deliberations and
voting on the Bill would occur on Wednesday 22 May 2002.
Ms Jacobus explained to Dr Ambrosini that the Department could
begin by providing the Committee with a clause-by-clause briefing
on the Bill, and any comments. She pointed out that the Committee
had been engaged in a joint process and that they had fairly
exhausted discussions surrounding the Bill as the result thereof.
Mr Lambinon explained that the Department had made a few final
changes to the document, and that the document currently before
the Committee was the latest version of the Immigration Bill. He
noted that from the perspective taken by the Department, they
would be hoping to engage with the Committee concerning the Bill
at some stage. He added that they had engaged with other
Departments, and one of the major departments had been concerned
with the quota system.
Department briefing on the Bill
Mr Lambinon stated that Clause 1 made provision for the
definitions. In that regard, he pointed out that subsection iii
defined the Board, that subsection iv defined a Chartered
Accountant, that subsection vii defined a corporate applicant,
that subsection xviii defined an illegal foreigner, and that
subsection xxi provided a definition of marriage.
Mr Lambinon referred to the objectives and the structures of
immigration control, and explained that Clause 2 (1) (a) dealing
with the promotion of a human rights based culture, and Clause 2
(1) (b) dealing with the facilitation and simplification of the
permit process, were very important provisions.
Mr Lambinon moved on to deal with the powers of the department,
and referred the Committee to Clause 3. The focus would be on two
issues, namely the entry into the workplaces provided for in
Clause 3 (1) (a) and the inspection of public places in terms of
Clause 3 (1) (b). He pointed out that the department would be
hoping to engage the committee in that regard.
Mr Lambinon turned to the Immigration Advisory Board in terms of
Clause 4. He explained that the number of civil society
representatives had been reduced from 8 to 5, and that this was
an issue that possibly required further discussion. He pointed
out that Clause 5 dealt with the functions of the Board, and that
Cl 6, dealing with inter-departmental co-ordination, was another
area that could require further engaging. He stated that the
regulation making in terms of Cl 7 would be vital to the Act, the
Act being an enabling Act. He added that Cl 8, the adjudicative
and review processes, was a very important clause.
Mr Lambinon referred to admission and departure, and explained
that this was dealt with in Cl 9 of the Bill. He stated that the
real substance of the Bill could be found in Cl 10, the section
dealing with temporary residence permits. He explained that this
was followed in the Bill by specific sections relating to the
different types of permits, Cl 11 through to Cl 24. He noted that
the Department would be hoping to engage with the Committee on
the business permits, the work permits and the corporate permits.
Mr Lambinon explained that Cl 25 dealt with permanent residency,
and that this section was followed by sections dealing with the
different grounds upon which permanent residence may be
established. He added that the withdrawal from permanent
residence was dealt with in Cl 28.
Mr Lambinon moved on to exclusions and exemption in terms of
Clauses 29, 30 and 31. He emphasized the fact that enforcement
would be very important in immigration control, and turned to Cl
32 of the Bill. Cl 33 dealt with the inspectorate, and that
provision was made for the deportation and detention of illegal
foreigners in Cl 34. He noted that this was another provision
that could possibly require further debate. Ships were provided
for in Cl 35, and that the monitoring of exits and entries into
the Republic would be governed by Cl 36.
Mr Lambinon referred the Committee to Cl 37 dealing with the
Immigration Courts, and pointed out that he had no doubt that the
members were fully versed upon this issue. He stated that in
terms of duties and obligations, Cl 38 dealt with employment, Cl
39 dealt with learning institutions, Cl 40 dealt with
accommodation, Cl 41 dealt with identification, Cl 42 dealt with
the aiding and abetting of illegal foreigners, Cl 43 dealt with
the obligation of foreigners, Cl 44 dealt with the organs of the
State, and that Cl 45 would deal with other institutions.
Mr Lambinon pointed out the miscellaneous matters covered in Cl
46 through to Cl 48 of the Bill. He referred to the offences
provision in Cl 49, and noted that Cl 50 dealt with
administrative offences.
Mr Lambinon explained that from Cl 51 onwards, transitional
arrangements relating to the implementation of the Act had been
dealt with. He pointed out that the short title and the name of
the Act were covered in Cl 55.
Mr Lambinon stated that it would now be possible to interrogate
the document.
Ms Jacobus (ANC) directed the Committee to hold on to any
questions requiring clarification because the Committee would be
hearing a second presentation. She pointed out that the committee
would not be entering into any major discussion because this
would be dealt with in the study groups.
Dr Ambrosini stressed the fact that none of the comments to be
made by the Department were dictated by policy reasons, and
emphasized that policy decision-making was the duty of the
committee. He explained that he would attempt to highlight
difficult areas in the proposed legislation. He informed the
Committee that the Department had been involved in the process
until 8 May 2002. From that point, the process was carried
through the political sphere, and he explained that the
department was only able to see the product of the process on 15
May 2002, the day upon which the Bill was informally presented to
Minister Buthelezi. The Departments did have comments that it had
been willing to make at that time, but they had been unable to do
so as the result of policy reasons. The Department therefore
welcomed the opportunity to be heard by the Committee.
Dr Ambrosini explained that he would be proposing amendments and
considerations, and that he would list each of them.
Dr Ambrosini began with his first issue. He referred to Cl 1 (2)
and explained that there would be two relevant considerations in
that regard. He stated that Clauses 15, 18, 19, 21, 26 and 27
would have to be read first. The Department had understood these
to be clauses in which Chartered Accountants would apply. In that
regard, he said that there was a notion of exclusion in the
provision. Although, as he pointed out, he was dealing with a
technical issue, he firmly stated that it would not be possible
for the department to provide any other certification provided
for in the Act.
He gave the example of Cl 15 of the Bill that referred to the
Book Value of a company, and explained that most officials in the
Department did not have the training to allow them to understand
what the section was referring to. He pointed out that the same
situation applied to the other provisions that he had began by
referring to. The Department would have a duty to comply with all
legislative orders. However, he felt that as the Bill stood, the
Department would not be able to carry out the mandates, as it
would take time to produce the capacity.
Dr Ambrosini referred to Cl 3 (1) (e), and explained that the
provision had been inserted by the Portfolio Committee and he
would not be questioning the policy decision as the result
thereof. Nevertheless, he explained that from the point of view
of the Department, the provision had the ability to create a
loophole in the law. He stated that it would always be possible
to argue that there had been a procedural flaw in the process.
This is because one would not be able to establish a reasonable
suspicion on a routine basis. Thus he felt that standards would
have to be developed in an attempt to prevent the xenophobia
aspect.
Dr Ambrosini moved on to Cl 4 (2) (j) dealing with the
composition of the Board. He explained that the Board used to
consist of 8members from civil society. He went on to say that
the portfolio committee had added an additional member on the
government side. However, the position was currently such that
the civil society component had been reduced from eight members
to three members. Thus although there had always been a
preeminence on the government side, he stated that the position
had worsened.
Dr Ambrosini explained that as far as Cl 4 (3) was concerned, he
only had to point out that provision had not been made for the
Board to be convened at the request of the Minister and/or the
Director General. He felt that such provision would have to be
made in the event of possible emergencies or otherwise.
Dr Ambrosini referred to Cl 5, relating to the functions of the
Board. He explained that as the section originally stood before 8
May 2002, the formulation made greater provision for
administrative monitoring of the department. As a result, he
stated that the current formulation would have to be expanded.
Dr Ambrosini stated that Cl 6 dealing with inter-departmental
co-operation was a problematic provision. He pointed out that the
department only became aware of it on 15 May 2002, and that they
did not have any input regarding its conclusion. He explained
that although the provision sounded good, inter-Parliamentary
co-ordination would have to occur through the Board. However, the
position was currently such that there would be a difference
between the two organs. He felt that this would split
co-ordination and result in the possibility of conflict, and he
submitted that the Committee would have to delete the provision.
There was also a section that had been deleted. He explained that
the old Cl 6 ascribed all conduct to the Department in general,
and not to the Minister. This would be absolutely essential from
a technical and administrative point of view. Thus he suggested
that the clause would have to be reinstated in an attempt to
empower regional officers. He noted that the section had been
fundamental to the entire policy.
Dr Ambrosini moved on to Cl 11 dealing with the requirements of a
visitors permit, and explained that the amendment in that regard
would be exclusively technical. He referred to Cl 11 (1) (a) and
stated that the provision originally had an "and"
provision instead of the current "or" position. In
light of that, he explained that it would be important to
maintain the cumulative test. He referred to Cl 11 (1) (b) and
explained that although the old formulation provided an option,
the distinction had been collapsed. He stated that this would
have to be corrected in order to avoid future problems. He turned
to Cl 11 (4) and stated that there was another misunderstanding.
He firmly stated that he had no idea why the provision was
redrafted in the first place because the provision had a specific
purpose as it originally stood. He explained that the
visitor’s permit would have to be specifically made into a
multiple entry visa, at the discretion of the Department and not
upon the request of an applicant. It would be essential to
clarify the position because all the other temporary residence
permits were multiple entry permits.
Dr Ambrosini explained that with regards to Cl 13 (1) (a) making
provision for study permits, the option of the applicant had been
added into the test. Such a provision would not necessarily work
because not all the schools would have the option provided for in
Cl 13 (1) (b), that is, the ability to submit the application on
behalf of prospective student. He explained that it would not be
necessary to include that provision because it would apply only
to certain schools. The provision for the possibility of
obtaining a work permit while studying in terms of Cl 13 (3) (c)
would have to be amended. It had to be clear that full time
students would only be able to engage in part time employment.
However, the current reformulation did not clearly illustrate
that position.
Dr Ambrosini explained that although Cl 15 stipulated that it
would be dealing with business permits, the only references made
within the section were to investor’s permits. He agreed
with the saying that a name would only be a name, but stated that
in the context they would be dealing with two totally separate
issues. In that regard, he felt that a failure to correct the
provision could result in confusion.
He moved on to S 15 (5) and said that the provision was
problematic. He referred back to the multiple entry issue, and
explained that this provision could be taken to mean that
business permits are multiple entry permits. However, he said
that by virtue of the express authority, this would automatically
mean that all the other permits would not grant one multiple
entries, and felt that the position would have to be clarified.
Dr Ambrosini moved on to S 17 (1) (b) referring to medical
treatment permits, and explained that he had a technical error to
bring to the attention of the committee. He noted that although
the possibility existed that the department had misunderstood the
provision, they felt that the provision was not consistent. The
language had not canvassed the intention that the Department had
placed behind the provision, and the Department preferred the
adoption of the language used in the original provision.
Dr Ambrosini moved on to Cl 18 dealing with relatives permits,
and explained that the addition of "applicant’s
option" was unnecessary. Nevertheless, he stated that no
problems would result.
Dr Ambrosini explained that the work permit was a serious matter,
and added that it was the core of the Bill. Nevertheless, he
reminded the Committee that as a civil servant, he was not
looking at the policy reasons. In light of this, he stated that
the quota system provided for in S 19 (1) through to S 19 (3),
would have to be revisited. He explained that the department had
only seen the language used on 15 May 2002. He firmly stated that
under the present conditions and within the foreseeable future,
the Department would not be able to administer the mandate. He
pointed out that the Department would be able to learn, however,
the capacitating would require a transformation of the whole
department. As a result, although it would be possible to
implement the procedures, he could not say how successful the
outcomes would be. He noted that the same problems would apply to
Cl 19 (2) and Cl 19 (3).
Dr Ambrosini added that a more complex structure would be
necessary to establish a quota system because the current
position was such that no provision had been made for criteria or
parameters of the rule. He submitted that the Committee would
have to revert to the section as it stood on 8 May 2002 because
the Department would be able to conform to the mandate in that
form. He noted that the clause would thereby also connect the
‘brain drain’ and the ‘brain train’ problems.
Dr Ambrosini explained that a technical error had been made in Cl
19 (5) through the insertion of the word "abroad" into
the provision. He stated that this had changed the meaning of the
provision and that this would ultimately impact upon the very
nature of the Act. He explained that work permits were important
types of permits and that the result thereof is that companies
would not send unskilled workers to South Africa.
Dr Ambrosini moved on to the corporate permits governed by Cl 21
of the Bill. He explained that the Department had difficulty in
understanding what the provision concerned. He pointed out that
they had only seen the provision on 15 May 2002, and added that
the purpose of the provision was questionable. Licencing fees
were no longer used because of the more appropriate means test.
The intention had been confused. Thus he submitted that the
Committee revert to the old version of the corporate permit, in
which there would be equal treatment of all those affected. He
noted that as the provision stood, it would have the potential of
creating insurmountable problems with the thousands of workers.
Dr Ambrosini turned the Committee to exclusions and exemption and
referred the committee to Cl 29 (1) (c ). He explained that the
matter had been fully discussed in the Portfolio Committee and
that a policy decision had been made. Nevertheless, he stated
that the Department felt duty bound to present its position, and
the Department would not be able to implement the provision.
Dr Ambrosini referred to Cl 33 (1) and (4), dealing with the
inspectorate, and pointed out that the Department was concerned
with the terminology that had been used. He explained that the
section referred to inspectors and the inspectorate. However, the
unit was named the inspectorate. He suggested that the Act would
be better served by referring to the unit as the inspection and
enforcement unit.
Dr Ambrosini explained that the problems surrounding Cl 36 (1)
dealing with the monitoring of entries and exits into the
Republic had been covered.
Dr Ambrosini stated that the error in Cl 37 dealing with the
Immigration Courts was a technical error.
Dr Ambrosini moved on to Cl 53 relating to the transitional
provisions for the existing permits, and said that it was another
‘hot potato’. He explained that the clause had been
deleted by the Portfolio Committee. However, the Committee had
given the Department the opportunity to motivate the provision,
and he explained that it was in that regard that they were
currently raising the point.
He stated that it would be necessary to reorganize the system in
order to ensure that the law would be implemented within some
months. As a result, the Department would have to be able to
bypass certain procedures. He explained that the old Cl 53 had
given the Department the power to do this, in terms of Cl 3 (3)
and Cl 3 (5) of the Public Service Act. The Portfolio Committee
had relied on a letter that it had received stipulating that such
a provision would be unconstitutional. Nevertheless, he
emphasised that there was a difference between by-passing the
agreement and by-passing the process. He pointed out that it
would be an important section because it would empower the
Department to carry out its mandate.
Dr Ambrosini explained that Cl 57 in terms of the previous Bill
had been deleted by the Portfolio Committee. He suggested that
since that was the last item on the agenda that night, the
Portfolio Committee was tired at that stage. Nonetheless, their
understanding was that Cl 57 should not have been deleted, and he
felt that the deletion had been a mistake on the part of the law
advisor.
Dr Ambrosini then proposed the inclusion of a provision
empowering the Department to impose application fees for the
permits. He noted that the fees would not be unreasonable
nonetheless. He ended by outlining some technical issues.
Ms Jacobus concluded that it would be useful if he could provide
the Committee with a list of the technical amendments that he had
concluded his presentation by referring to.
Discussion
Mr Lubidla (ANC) confirmed that the major concerns held by the
Department surrounded the implementation of the legislation in
its current form.
Dr Ambrosini affirmed that position. He pointed out that the
Department felt duty bound to inform the Committee of the
implementation problems.
Mr Lambinon added that the concern was also shared by other
government departments that they had interacted with. He referred
to the quota system in particular.
Ms Vilikazi (IFP) emphasized the point that she had never dealt
with a Bill as criticized as the Immigration Bill. She stated
that she felt very embarrassed as a Member of Parliament. Thus
she felt that they would have to deal with the Bill accordingly.
Mr Makoela (ANC) wanted to know how the legislature could become
aware of implementation problems faced by the Department.
Ms Jacobus pointed out that there had been much criticism
surrounding many of the Bills enacted by Parliament. However, she
explained that loopholes would only become evident in the
implementation stage, and that no law would be cast in stone. The
result thereof would be the enactment of future amendments.
Mr Makoela (ANC) questioned whether the Department would return
to the Committee in the event of problems.
Ms Jacobus (ANC) responded affirmatively. She noted that the
Committee had been amending legislation since 1994.
Dr Ambrosini stated that a legitimate point had been raised.
A Member reminded the Committee of the important oversight role
that they were required to carry out.
Dr Ambrosini said that he hoped that the Committee would
interrogate them until they were satisfied with the Bill.
Mr Gouws (DP) enquired whether this meant that even if the
Department could anticipate problems, the committee would have to
await their occurrence before making any amendments.
Ms Jacobus stated that she had not intended to introduce such an
implication.
Ms Horne (NNP) wanted to know why the Committee would even pass a
Bill that could not work.
A Member called for a point of order, and reminded the floor that
the Chairperson had requested only questions of clarity. He noted
that it was the responsibility of the Committee to pass
legislation, and that amendments would inevitably be made at a
later stage.
Ms Jacobus sustained the point of order. The committee would have
to understand that their job was not merely to rubber stamp Bills
that had been passed by Cabinet. Their job would be to determine
if the detail within the legislation would meet the objectives
sought by the legislature.
Ms Vilikazi (IFP) agreed with the Chair. She explained that the
function of the NCOP would be to scrutinize Bills, and for the
Committee to add its views therein.
Ms Jacobus referred to Cl 40 dealing with accommodation issues
and stated that overnight accommodation had been deleted.
However, she explained that it was still referred to within the
Bill, and suggested that a technical amendment would be
necessary.
Dr Ambrosini stated that their position was that the overnight
issue could not be eliminated. He pointed out that no-one would
be able to define non-overnight accommodation.
Ms Jacobus asked whether any political parties wished to suggest
further amendments.
Mr Tolo (ANC) proposed that the Committee deletes Cl 19 (1)
because the phrase ‘quota work permit’ gave the
impression that they were dealing with a different permit. He
then proposed an addition to Cl 19 through Cl 19 (6), thereby
allowing the Department to issue work permits to persons
possessing necessary skills in the aim of empowering the economy.
Ms Jacobus repeated the amendment and explained that the ANC
proposed a deletion of Cl 19 (1), and the addition of Cl 19 (6).
She pointed out that the wording that had been suggested was
similar to the original Bill, and added that Cl 19 (1) had caused
some confusion.
Ms Jacobus (ANC) called for additional amendments.
Ms Vilikazi (IFP) supported the ANC. She added that she would
provide the Committee with the opinion held by the IFP during the
next meeting.
Mr Tlhagale (UCDP) stated that although his party would not be
submitting any new amendments, he would also express the opinion
held by his party during the next meeting.
Ms Horne (NNP) added that the same would occur with her party.
She pointed out that although her party did have its concerns,
there were no proposals to be made.
Ms Jacobus asked whether there were any new amendments. Should
members wish to bring forth further amendments, it would be most
appropriate to do this by the close of the day in order to
provide the members the opportunity to look over the proposals in
preparation for the next meeting.
Ms Jacobus (ANC) thanked the team from the Department.
The meeting was adjourned.
Appendix:
ANC Amendment
to delete Clause 19 (1)
insert a new clause 6 as follows:-
(6) Notwithstanding the requirements of this section, in
addition, the Department may, taking into account the skills
requirements of the economy, issue a work permit to persons
possessing specific skills or qualifications after consultations
with the Departments of Labour and Trade and Industry, provided
that the annual number of work permits so issued may not exceed
any prescribed quota.
Cross reference in the current subsection 2 in line 13 will then
become subsection (6)
Appendix 2
COSATU
CONGRESS OF SOUTH AFRICAN TRADE UNIONS
21 May 2002
Urgent Attention
The Chairperson
Select Committee on Social Services
National Council of Provinces
Re: finalisation of Immigration Bill
Dear Comrade Jacobus
The Immigration Bill, as redrafted by the National Assembly has
been placed before your Committee today for consideration. We
understand that the intention is to process the Bill through the
NCOP on Thursday 23rd May. Despite your Committee having been
involved in deliberations at the NA phase, we still believe there
are fundamental flaws in the Bill which require careful
consideration by the Committee. We would request that these
concerns as ouilined below, are brought to your Committee's
attention. J therefore request that this letter is distributed to
all members of the Committee.
COSATU is extremely concerned that the Immigration Bill passed by
the National Assembly last week retains the fundamental flaws in
the Bill initially drafted by the Department. The Bill in its
current form does not address any of COSATU's concerns as set out
in our submission presented jointly to Parliament with FED USA
and NACTU.
The amendments introduced by the Home Affairs Committee in
substance amount to little more than a rearrangement of the
Bill's original provisions, in the face of considerable
intransigence and obduracy by the Department, and in some cases
have further complicated existing problems in the Bill. This is
despite the Department's claims that the Bill has been subject to
a radical rewrite. Despite the impression created by the
Department in the media, intensive public hearings on the Bill
appear to have had minimal impact.
immigration policy has significant implications for local and
regional socio-economic development, the enforcement of labour
standards and the development of local skills. As these affect
the interests of both foreign and South African workers
immigration policy constitutes a major area of concern for
COSATU.
Some of COSATUs main concerns with the Bill can be summarised as
follows:
1 labour standards Migrant workers continue to he subjected to
exploitative working conditions particularly within the mining
and agricultural sectors. It is therefore vital that suitable
mechanisms are in place to ensure that migrant workers rights are
not
violated. The Department of Labour must take full responsibility
to ensure enforcement of migrant workers' rights. Despite this
the Bill undermines the authority of the Department of Labour by
providing for the certification of labour standards by Chartered
Accountants (CA s). Apart from the fact that their training and
qualifications are of no relevance, CAs are likely to be biased
towards employers to whom they are contracted.
Further, in the redrafting process an anomaly has crept in which
can only be put down to a drafting error. Namely, that the new
Section 19(1) dealing with quota work permits (dealt with below),
contains no reference to compliance with labour standard despite
this being required in other work permits, such as the general
work permit and the corporate work permits. The intention could
not have been to provide that quota permits are exempt from this
requirement. This error therefore needs to be corrected.
2. Corporate permit: The introduction of the new corporate permit
system will mean that employers who are granted corporate permits
will in turn be authorised to issue work permits to foreign
workers. This is a delegation of a core departmental
responsibility, which creates opportunities for corruption and
abuse by employers. This will give employers the power to force
migrant workers to accept exploitative working conditions by
refusing to grant a work permit or by threatening to withdraw it
if it has already been granted. We are particularly concerned
that corporate permits are explicitly targeted at the mining and
farming sectors and at casual or seasonal labour. These are all
areas of the labour market, which consistently reflect appalling
labour standards. We believe that the responsibility to issue
work permits must remain with the Department of Home Affairs. We
were under the impression that this principle had been accepted
by the Joint Committee, and are therefore mystified as to why
corporate work permits have been retained in their current form.
3: Vulnerability of Work Permit holders : The Bill provides that
a general work permit will automatically lapse, if the work
permit holder (foreign worker) does not submit the necessary
certification on an ongoing basis. This provision effectively
penalises a worker for failing to provide certification, which
only an employer is able to provide. An employer wanting to
dismiss a migrant worker, need only withhold the certification
and may then carry out the dismissal on the basis that the worker
can no long work legally in the country. This provision is likely
to impact harshly on vulnerable, unskilled workers who are not in
a position to negotiate more secure contractual terms.
4 .Compulsory Deferred Pay: The Bill provides for the
continuation of the system of compulsory deferred pay. In
accordance with relevant bilateral agreements with other SADC
States, this requires the remittance of a portion of the earnings
of relevant migrant workers to the sending country. This system
has been the subject of substantial abuse and has impacted
harshly on the lives of migrant workers and their families. We
believe that effect should have been given to an earlier NEDLAC
agreement to initiate a consultation process involving relevant
NEDLAC constituencies, trade unions and collective bargaining
forums. The eventual aim would be to renegotiate relevant
bilateral agreements and may include developing systems of
voluntary (as opposed to compulsory) deferred pay.
5 The Quota System ': A quota system giving almost total
discretion to an old style Department which still retains many of
its apartheid-era characteristics, and is still influenced by
xenophobic and racial mindsets, is a recipe for problems. If any
quota system is to create a degree of sensitivity, as well as
stability and predictability in our migration policy, it needs to
include the stakeholders in its determination. When the quota
system was originally proposed in the White Paper, we raised
certain concerns, but indicated that if it was to operate
effectively, it would require thorough consultation through the
Nedlac processes, and the Immigration Board. As contained in the
current draft of the Bill, however, the quotas will effectively
be at the discretion of the Department, who will not be obliged
to consult with the stakeholders. The whole system will therefore
lack transparency and credibility, and could create serious
labour market instability.
It is unclear how the quota system will impact on the renewal of
current work permits, which although granted originally under the
Aliens Control Act will now have to be renewed in terms of the
new Immigration Act. We are currently seeking legal advice on the
matter. COSATU will strongly resist the implementation of any
measures which have the effect of undermining the security of
tenure of migrant workers.
6. Skill and quotas: COSATIJ recognises the need to address
skills shortages in the country, which includes in some instances
the need to import foreign skills. However, we believe that this
must be regulated in consultation with NEDLAC social partners and
the National Skills Authority. Special provision should be made
giving preference to applicants from other countries within the
Southern African region in line with initiatives to strengthen
regional social and economic development. Further, measures
should be put into place in order to further the achievement of
medium and long-term local skills development objectives and to
reduce the dependency on foreign skills.
We are concerned that the quota system envisaged in the Bill does
not reflect our recommendations above. It in effect provides the
Department of Home Affairs with the discretion to determine
quotas. (It is important to note that quota system proposed by
the Bill is not entirely new, but is reflected in BOTH the
original provisions and the new amendments.) No provision is made
for consultation with social partners and the National Skills
Authority, which are in a better position to assess needed
skills.
7 Discrimination against blacks foreigners from Southern
Africa(a: COSATU strongly believes that there is a need to
replace archaic, discriminatory legislation such as the current
Aliens Control Act (ACA) with more progressive immigration
policy. Unfortunately the attention on the Immigration Bill has
almost exclusively focused on addressing skills shortages in the
country. 1-towever, immigration policy must address a wider range
of considerations, of which skills is just one component. It is
widely accepted that the ACA has perpetuated discriminatory,
xenophobic practices, which have primarily been directed at black
foreign nationals. This calls for the introduction of an
immigration policy that reflects South Africa's democratic
transition. We do not believe that the Bill addresses these
broader concerns especially since it merely incorporates the
provisions of the ACA in many instances. For example, the Bill
allows for the arrest and 30-day detention period of an illegal
foreigner without a warrant and with out an automatic right to
brought before a court.
8 Regional southern Africa Development : The Bill fails to
integrate any linkage between
immigration policy and regional social and economic development.
This combined with its emphasis on "exceptional" and
"extraordinary" skills and qualifications, is likely to
have the effect of preferring white foreign nationals from
so-called developed countries over black
foreign nationals from within the Southern African region.
Provision should have been made ensuring protection from indirect
discrimination that is likely to happen in the administration
process applicable to the granting of permits.
The NEDLAC process, in large part due to the role played by the
Department, was problematic, both in relation to the Bill and the
White Paper on International Migration. This in turn has
translated into serious substantial flaws in the Bill. We are
concerned at reports that political
parties have acknowledged that the Bill is flawed and is likely
to be referred back to Parliament in the near future in order to
be amended. This, if anything, constitutes a valid motivation for
extending the parliamentary process in order to ensure
finalisation of an appropriate Immigration Act. This would have
been possible either through an application to the Constitutional
Court for an extension of the deadline or by passing amendments
to the Aliens Control Act as an interim
measure. The overall purpose of the Immigration Bill was to
overhaul the ACA and in so doing address current shortcomings to
immigration legislation. It is therefore illogical to have found
it necessary to replace it with equally flawed legislation.
We are not raising these issues frivolously, or to score
particular political points. We are genuinely concerned that if
they are not addressed, they will have serious negative
ramifications for the
country and the region. We stand available to discuss these
issues further with yourself and your committee, if there is any
way this can assist to move us forward.
Yours truly,
Neil Coleman
Head COSATU Parliamentary Office
Cc Cde Jacob Zuma, Leader of Government Business
Kgalema Mothlanthe, ANC Secretary General
Zwelinzima Vavi, COSATU General Secretary
DEPARTMENT
OF HOME AFFAIRS
SUGGESTED AMENDMENTS
REQUIRED IN RESPECT OF THE IMMIGRATION BILL
FOR TECHNICAL OR ADMINISTRATIVE REASONS
IN THE NCOP STANDING COMMITTEE
May 17, 2002
Background
The Department of Home Affairs [D HA] was not involved or consulted in respect of the formulation of any of the amendments to the Immigration Bill after the DHA formulated the original B version of the Bill on May 8, 2002. Since then several options were created in respect of the B version and a broad range of amendments were then made to it by the State Law Advisors following discussions and negotiations among political parties. This led to a Completely new formulation of the B version of the Bill being submitted to the PCHA on May 15 without any inputs from the DHA. On that occasion, the DHA submitted a document containing several comments, mostly of a technical nature, which could not be considered due to the pace of the PCHA's deliberations. On May 17, in the National Assembly debate, Minister Buthelezi indicated that the Bill contains technical errors and problems due to the haste in its finalization and the lack of consultation with the line function with expertise on the matter.
Therefore, the DHA hereby submits amendments to the Bill which the DHA feels are necessary as a technical or administrative matter and not as a matter of policy. This document is a preliminary assessment of the Bill adopted by the National Assembly, as the DHA has not had the opportunity of studying in detail. In fact, this Bill is different from the one approved by the Committee on May 15 as State Law Advisors seem to have made some changes of substance. The DHA has not had the opportunity to fully analyse the reformulated version of the B Bill which was only submitted to it on May 15.
Legenda
Comments marked with [T] are regarded as technically necessary, while those marked with [A] are dictated by compelling administrative reasons.
[A][T] Clause 1[2]: The State Law Advisors seem to have not implemented the PCHA's instruction that some but not all chartered account's function be subject to this subclause. The requested detailed listing of the other subclauses had the purpose of including some and excluding others, otherwise it is meaningless However, this subclause should be deleted as it will enable the chartered accountant certification to be substituted by a the certification of any other person, imposing on the DHA the burden of "verifying the facts". This is an impossibility and, to the extent that it is possible, is totally self-defeating. The DHA would need to hire accountants to go through the books of the applicant or DOL's records, or study and assess business plans, et cetera, which could even be illegal as the duty is vested in the DHA itself. The DHA has no capacity, whatsoever, to perform this function. The DHA cannot determine the "book value" of companies in terms of clause 15, or the value and validity of foreign pensions or annuities in terms of clause 18, or perform the labour certifications set out in clause 19, 21, 26 and 27. We would need to build a completely new Department to do so. Moreover, the purpose of employing chartered accounts is to avoid building up and maintaining such capacity. The verification and evaluation of such facts by the DHA is likely to give rise to constant litigation that the DHA will not be able to sustain because of lack of in-house expertise. Similar current practices employed by the DHA have proven to be a failure. Finally, the language is confusing as the expression "in every such case" seems to apply to the chartered accountant's certification as well.
[A] Clause 3[1][e]: Allowing identification on the basis of "reasonable suspicion" would make the enforcement work extremely difficult and would open a wide loophole, as people can claim that it was not reasonable to ask them to identify themselves and the State's case against them would be dismissed on procedural grounds and irrespective of its merits. This would also increase criticism of xenophobia against the Department.
[A] Clause 4(2][j]: The reduction of civil society's representatives from 8 to 5 alters the policy underlying the Board's structure, purposes and aims, and contravenes undertakings made to stakeholders during the long consultation process in which the notion emerged that, albeit the Board is controlled by Government, the non-government component should be almost as representative. The problem is compounded especially after the Board has been increased with the addition of the Department of Defence. Given the variety of interests in the field of migration control, which go far beyond labour and business and include human rights groups, churches, family unification advocacy groups, regional integration advocacy groups, farmers representatives, etc., the reduction of civil society's representatives will force important role players to be excluded.
[A] Clause 4[3]: An advisory board must react to needs and circumstances arising out of the functions performed by the recipient of the advice. Therefore, the Minister and the Director-General must have the power to request that the Board be convened so as to seek its advice whenever necessary. The advice might be demanded for policy matters within the prerogative of the Minister or operational matters ordinarily dealt with by the Director-General. Therefore both should have the power to cause the Board to be convened.
[A] Clause 5: As compared to clause 5 in the B version of the Bill, the DHA wonders why the Board should not advise the Minister on the execution of other legislation connected with migration control, the administration of which may be delegated to the DHA. The DHA also wonders why the Board should not monitor the conduct of the DHA in respect of migration control, as that is the foundation on which any intelligent and well-informed advice can be provided. Similarly, the DHA wonders why the power to make recommendations to the Minister, which is typical of an advisory board, should be eliminated, which would render the Board less effective. Recommendations are formal actions containing specific details for their implementation. Clause 5[1][f] of the B version is preferable to 5[2] as it includes other legislation which, given the multi-disciplinary nature of migration control, may very well happen, even through regulations of other departments. Clause 5 of the B version read
5. Powers and functions of Board
(I) The Board shall --
(a) advise the Minister in respect of
[i]the contents of regulations made in terms of this Act,
[ii]the execution of other legislation connected with the implementation of this Act the administration of which has been delegated to the Department, or
[iii] any matter that is conducive to this Act's implementation;
(b) assist the Minister in the formulation of the policies of the Department implementing this Act.
(c) monitor the conduct of the Department;
(d) make recommendations to the Minister in respect of the implementation of this Act when necessary or expedient;
(e) as requested, advise the Minister in reviewing a decision of the Department in terms of section 8; and
(f) exercise and perform the other powers and functions ascribed to the Board by this Act or other legislation.
[A] Clause 6: The DHA does not believe that the new clause 6 is necessary and feels that it is legally unsound. During the process of policy formulation it was established that the Immigration Advisory Board would be the clearing house of inter-departmental coordination, which would take place through relevant subcommittees, of which ports of entry and border control would be one. This would enable other departments, such as the Department of Foreign Affairs [DFA], to keep some degree of involvement. The committee proposed in this clause has no powers and functions and yet it is provided for in statute. It is no more than a principle, but it will engender confusion as the same people will be required to sit in two bodies and two bodies will be seized with similar issues. The notion of cooperation is dealt with in paragraph (c) of the Preamble as a principle, in clause 2[1][i] of an objectives, and in clause 2[2][c], [d) and [l) as a function, the latter referring also to the provisions of clause 36 which call for further integration. The DHA feels that this committee will engender confusion and undermine the functioning of the system set out in the Bill.
[A][T] Clause 6 of the B version: The DHA feels that clause 6 of the B version, which was deleted, should be reinstated. This clause is technically necessary because the Bill vests powers in the "Department" rather than the "Minister" and it is necessary to specify the organ of such entity which can express such powers. Moreover, the DHA restates that clause 6 is foundational to the entire structure of the Bill and its deletion would create an entirely different piece of legislation. This section is necessary to indicate that the powers vested in the Department are exercised by the Regional Directors [RD]. RDs are intended to become the engine of permit issuance and law enforcement. The clause is essential to make the new system work as intended and bring about real improvement in service delivery. This cannot be done administratively as otherwise the Minister remains finally accountable for each and every decision, to the point that he or she may continue to be sued for any action of the Department. This responsibility should legally vest in the Regional Directors. Clause 6 reads:
6. Structure of migration control
(I) For purposes of this Act, the Department shall be structured in regions to be determined by the Minister after consultation with the Board and presided over by an official of the Department appointed by the Minister.
(2) The official referred to in subsection (I) shall --
(a) carry the primary responsibility of administering and applying this Act in respect of cases and applications, and may delegate his or her functions to other officials as prescribed;
(b) subject to this Act, express the decision making power of the Department in respect of cases and applications, and, in this respect, in his or her capacity, sue and be sued in the name and on behalf of the Department;
(c) when requested, personally or through his or her appointed officials, give reasons for a decision of the Department before the Minister or the Board; and
(d) through his or her appointed officials, represent the Department before a Court.
(3) The Director-General shall --
(a) ensure the uniform application of this Act;
(b) ensure the efficient and effective operation of the Department;
(c) liaise or interface with organs of foreign states or international institutions dealing with migration or law enforcement, and
(d) exercise and perform the other powers and functions set out in this Act.
(4) The Department may have immigration officers in missions to exercise the functions of the Department.
[T] Clause 11[1][a]: The substitution of the "and/or" at the end of the B version of this item with a mere "or" is problematic, as was explained to the State Law Advisor, because it no longer caters for citizens from a visa exempt country who have been placed on the so-called C-List requiring them to obtain visas because of security considerations or owing to their having defaulted on prior occasions on the terms and conditions of their stay. Case law is clear in stating that while the "and/or" drafting technique is not preferable, it is nevertheless permissible when there is a technical reason justifying its employment. The drafting of regulations will expand on the matter making its application clear. See below for the text of the subclause:
[T] Clause 11 [1][b]fails to understand the collapse of subsections [b] and [c] into one, as they serve different purposes as different options, as highlighted by the use of the "and/or" technique, which creates a matrix of permutations between [a] and [b]. The reformulation is incorrect and problematic for a variety of reasons. In its relevant part, clause 11 should read:
ii. Visitor's permit
(a) A general entry permit may be issued by the Department in respect of a foreigner who --(a)holds a visa; and/or
(b) is a citizen of a foreign state prescrihed from time to time; and/or
(c) provides the financial or other guarantees prescribed from time to time in respect of his or her departure,
provided that such permit --
[T] Clause 11[4]: The DHA does not understand the need to reformulate this clause from what it was in the B version. Its present formulation is very problematic as it gives the applicant the right to decide whether a visitor permit should allow multiple entries. This assessment must be left to the DHA and is based on the reliability and security risk profile of any applicant. It is also essential that the preexisting language be introduced to maintain the notion that a visitor's permit expires once a person departs, which is essential to maintain the notion that all other temporary residence permits allow multiple entries for as long as they are valid. It is essential that this subclause be rephrased in its original language which read:
(4) Unless otherwise specified therein, a general entry permit does not allow its bearer to be admitted more than once, provided that it may be prescribed that in the absence of such specification such permit may authorise multiple omissions from prescribed foreign countries.
[T] Clause 13[1][a]: It is problematic to give to the applicant the "option" of applying under item [a] or [b] because item [b] will apply only to a limited number of institutions of learning. Moreover, when item [bi applies, it will defeat the purpose of having an item [b] if applicants can choose also to apply in terms of item [a] even in respect of an item [b] institution, which will force the DHA to have a double system in place in respect of an institution of learning operating in terms of item [b].
[T] Clause 13[3][c]: The DHA does not understand the need to reformulate the preexisting subclause [4] eliminating the controlling criteria of part time work during study periods and full time work during vacations, as well as the advice of the registrar. Said subclause [4] previously read:
(4) The Department may authorise the adult holder of a study permit to conduct temporary full time work during vacations or part-time work, under specific terms and conditions, when so advised by the registrar or the designated official of the relevant institution of learning.
[T] Clause 15: Styling an Investor's Permit as a "business permit" is highly problematic. The expression "business permit" has a clearly understood meaning within South Africa and worldwide practice. The same meaning is used in international agreements such as the GATS under the WTO. Missions, travel agents and immigration officers may end up requiring people who are entering the Republic for business purposes and who would merely need a visitor's permit to comply with the provisions of this clause. It will also create the perception that we do not have an Investor's Permit. It will send out a message that we are somehow confused.
[T] Clause 15[5]: This clause is wrong as in terms of clause 10 all temporary residence permits entitle the holder to enter for as long as they are valid. The mention of multiple entries was necessary only in respect of a visitor's permit the validity of which would ordinarily expire upon departure because it is nothing more than an "entry" permit rather than an "activity" permit. Mentioning multiple entries in respect of this type of permit alone will, in law, create the conclusion that none of the others are multiple entry. If this language is kept it will mean by implication that all other temporary residence permits are not multiple entry, even though they are valid. Yet, it is intended that all temporary residence permits, except visitor's permits, be multiple entry.
[T] Clause 17[1](b)[iii]: One does not understand the
purpose of the reformulation of this clause because if the word
"accompanied" means "to stay with for the duration
of the sojourn" then it is covered by the expression
"guardian", for a parent can also be a guardian, and if
it does not mean that and only means being brought into the
Republic and left there, then it does not satisfy the need to
have a guardian at all times. All that is required is to have the
name of a guardian who is present in the Republic at all times,
which may very well be a parent. This clause is also inconsistent
with similar ones in the Bill which are drafted better.
[T] Clause 18[1][a]: The addition of "applicant's option" is pleonastic, and it would be better to delete it.
[T][A] Clause 19[1] to [3]: The provisions set out in the Bill to establish a quota system are technically insufficient. A quota system cannot work and will be highly problematic. If it is to be set out, much more complex provisions are required. Similarly, the labour certification system set out in subclause [3] is beyond the capacity of government at this juncture and will create an additional burden, the feasibility of which has not yet been studied. It is suggested that these 3 subclauses be substituted by the 5 corresponding subclauses in the B version of the Bill which read:
19. Work permits
(1) A work permit may he issued by the Department to a foreigner intending to conduct work, when his or her prospective employer has --
(a) received certification from a charttered accountant that the terms and conditions under which he or she intends to employ such foreigner, including salary and benefits, are not inferior to those prevailing in the relevant market segment for citizens and residents, taking into account applicable collective bargaining agreements and other applicable standards, as recorded by the Department of Labour, if any, provided that --
(i) a copy of such certification shall be conveyed to a prescribed office of the Department of Labour; and
(ii) such certification shall lapse if objected to for good cause by such office of the Department of Labour within 15 calendar days of its receipt;
(b) committed to
(i) pay a fee for such a permit prescribed from time to time as a ratio of such foreigner's remuneration, to be shown in the training fund; and
(ii) notify the Department when such foreigner is no longer employed or is employed in a different capacity or role; and
(c) submitted a certification from a chartered accountant of the job description and that the position exists and is intended to be filled by suc hforeigner.
(2) A work permit shall lapse if; within six months of its issuance, and within every year thereafter, its holder fails to submit to the Department certification from his or her employer's chartered accountant that he or she is still employed, of the terms and conditions of his or her employment, including the job description, and that such employer has made the payments referred to in subsection (I )(b)(i).
(3) Any increase of the payments referred to in subsection (l)(b)(i) shall be effective in respect of an existing permit only after five years and six months from when such permit was first issued, provided that subsequent permits issued to the same foreigner shall be deemed onework for purposes of this subsection.
(4) The Department may reduce or waive the payment referred to in subsection (l)(b)(i) --
(a) after consultation with the Departments of Labour and of Trade and Industry, if and for as long as it is satisfied that the employer concerned has in place an adequate training programme for citizens and residents; or
(b) when so requested by the Department of Trade and Industry in respect of foreign investments.
(5) Notwithstanding the requirements of this section, in addition, the Department may issue a work permit to a foreigner who has certain skills or qualifications which may be prescribed from time to time after consultation with the Departments of Labour and of Trade and Industry, provided that the annual number of work permits so issued for each category so prescribed may not exceed the quota so prescribed.
[T] Clause 19[6]: The requirement that the relevant foreigner be employed "abroad" defeats the purpose of an intra-company transfer in most cases and, to a certain extent, covers a field which in the B version of the Bill was dealt with through the general entry permit. The DHA did not have the opportunity to check the matter because of the limited time within which it had to react to this proposal, but suspects that this contravenes applicable WTO stipulations.
[T] [A] Clause 21: The present reformulation of the corporate permit is highly problematic and intrinsically contradictory. There is no clarity on what its function would be. A corporate permit was intended to work against the aggregate amount of licensing fees which would otherwise have to be paid if the same applicant employed the same number of foreigners with a regular work permit. That created a negotiating environment with a number of incentives and disincentives, which was finalised to developing "adequate" training programmes, which are those finalised to reduce the employers dependence on foreigners and transfer skills from foreigners to nationals. Additional difficulty is created by the fact that when approved by the PCHA the present reference in clause 21[4][a] to "subsection 2[d]" was then in fact one to "subsection 2[e)", which obviously no longer existed because it was deleted. On their own initiative and for no apparent reason, the State Law Advisors changed it to "subsection 2[d]". When confronted with the fact that subsection 2[d] was referred to in clause 4[d], for no apparent reason, they changed subsection 2[d] to "subsection 2[c]", which does not seem to make sense. The DHA elicit the meaning of these provisions. Moreover the word "Government" in subsection [4] has no meaning in law and is wrong and inoperable. There are also seemingly insurmountable problems in respect of the issuance of the required permits to mine workers in terms of this clause. It is suggested that the entire clause be reconstructed as it originally was in the B version of the Bill which read:
21.
(I)
Corporate permit
A corporate permit may be issued by the Department to a corporate applicant to employ foreigners who may conduct work for such corporate applicant.
(2) After consultation with the Departments of Labour and of Trade and Industry, the Department shall determine the maximum number of foreigners to be employed in terms of a corporate permit by a corporate applicant, after having considered --
(a) the training programme provided by the corporate applicant for citizens and residents and/or the financial contribution offered by the corporate applicant to be shown in the training fund
(b) the certification prepared by a chartered accountant on the basis of the relevant prescription or information of the Department of Labour, if any, that at any given time the relevant foreigners are employed on terms and conditions not inferior to those offered to citizens and residents or prevailing in the relevant market segment, taking into account collective bargaining agreements and other standards, if any;
(c) the undertaking by the corporate applicant that it will --
(i) take adequate or prescribed measures to ensure that any foreigner employed in terms of the corporate permit will at any time comply with the provisions of this Act and the corporate permit; and
(ii) immediately notify the Department if it has reason to believe that such a breigner is no longer in compliance with subparagraph (i) above;
(d) the financial guarantees posted in the prescribed amount and form by the corporate applicant to defray deportation and other costs should the corporate permit be withdrawn, or certain foreigners fail to leave the Republic when no longer subject to the corporate permit; and
(e) corroborated representations made by the corporate applicant in respect of the need to employ foreigners, their job descriptions, the number of citizens or residents employed and their positions, and other prescribed matters.
(3) In the prescribed form, the holder of a corporate permit may issue authorisations to the foreigners referred to in subsection (1) to be admitted subject to such foreigners agreeing to the terms and conditions of the corporate permit.
(4) The Department may withdraw or modify the corporate permit for good and reasonable cause, mutatis mutandis subject to section 19(3).
(5) In consultation with the Minister of Trade and Industry or Minerals and Energy or Agriculture, as the case may be, the Minister of Labour may designate certain industries, or segments thereof; in respect of which the Deportment may --
(a) reduce or waive the requirements of subsection (2)(a) and (e); and/or
(b) enter into agreements with one or more foreign states and set as a condition of a corporate permit that its holder --
(i) employs foreigners partially, mainly or wholly from such foreign countries; and
(ii) remits a portion of the salaries of such foreigners to such foreign countries;
(c) apply this subsection in respect of foreigners required for seasonal or temporary peak period employment; or
(d) waive or reduce the requirement of subsection (2)(d) under special conditions.
(6) The Department may reduce or waive the payment referred to in subsection (2)(a) when so requested by the Department of Trade and Industry in respect of--
(a) foreign investments, or
(b) industries or businesses when special economic circumstances exist.
(7) The holder of a corporate permit may employ foreigners in terms of section 19.
[A] Clause 29[1][c]: This subclause has been eliminated. The DHA must stress the necessity of this subclause which relates to extraordinary situations where citizens of a country are prevented from entering the Republic, in cases such as war or a medical epidemic, or international sanctions against the country concerned. Without this provision, such bar could not be imposed. This provision can only be activated with the advice of the Immigration Advisory Board on which all relevant Departments are fully represented, and is not a ministerial action but the result of a regulation. The subclause reads:
29. Prohibited persons
(1) The following foreigners do not qualify for a temporary or a permanent residence permit:
(c) citizens of certain foreign countries prescribed from time to time;
[T] Clause 33[1] to [4]: The consultation requirement with the Board, previously provided for in the B version and now eliminated, has the purpose of ensuring coordination with the law enforcement agencies represented therein. The expression "inspection and enforcement unit" is standard and preferable to "inspectorate". There is no problem in using the word "inspectorate" in the rubric but the text of the clause should express the notion that this is the enforcement branch of migration control. Enforcement goes beyond inspections and is the overall function of ensuring compliance.
[T] Clause 36(1]: The DHA is concerned by the expression "with the assistance of, or through other organs of the State", which may make illegal the actions taken by the Department in respect of border control, such as arresting those who cross borders illegally, if such actions are taken by the Department alone and not with the assistance of or through other organs of the State. The DHA also believes that the expression "and administer and manage ports of entries" in the B version was important and worth retaining by adding it after the word "Republic" on line 4 of page 25.
[T] Clause 37: The third paragraph must be marked as subclause [3] and the word "must" changes to "shall".
[A] Clause 53 of the B version: Clause 53 of the B version was deleted. On May 15, it was discussed in the PCHA that this clause could be re-inserted in the NCOP if the DHA could satisfy members of its necessity. As amended in the PCHA, this clause read:
53 Restructuring of Department
(1) Notwithstanding any other law, within nine months of the commencement of this Act a new organizational diagram for the Department shall be prescribed which shall redefine ipso facto the terms and conditions of employment and the job descriptions of anyone employed in the Department, provided that --
(a) such persons' remuneration and other benefits shall neither be diminished nor worsen; and
(b) any party aggrieved by the application of this section, may, in the prescribed manner, appeal to the Minister who, in his or her discretion, may take suitable action to protect such party's rights and pursue the ends of justice and fairness, including, inter alia, changing the relevant regulation or portion thereof.
(2) In performing the function set out under subsection (1), the Minister shall take into account the --
(a) need to restructure the Department to enable the function of immigration control to operate as set out in this Act;
(b) need to provide the function of migration control with the necessary ancillary and support services and functions in order to perform its functions in terms of this Act; and
(c) recommendation of the Department for Public Service and Administration, if any.
The DHA was not afforded the opportunity to justify its necessity in law and policy during the past deliberations. This clause is necessary to enable the DHA to implement the Bill within a matter of weeks rather than years. As soon as the Bill is adopted there will be a public outcry for its expeditious implementation. Furthermore, without this clause it is impossible for the DHA to switch from one system to the other without having to shut down for a considerable period of time, either as a whole or in part, which would be unthinkable.
The provisions of this clause enable the Department to undertake its restructuring without having to comply with the relevant provisions of the Public Service Act. However, it does so without giving a blanket exemption, but creates procedures and mechanisms for two things. First, to ensure that the provision is not abused and therefore the Minister's discretion is narrowed by specified criteria and, second, to ensure that no one is adversely affected by its application and everyone has the opportunity to be heard.
This provision was widely discussed in Cabinet and in the end it was adopted on the basis of substantive re-formulations made at the request of the Minister for Public Service and Administration who recognised the necessity of this provision within the framework of aims and objectives of the Bill. Without this provision it will not be possible to redefine job descriptions, reorganise offices and change statutory qualifications and duties within the required time frame.
It must be appreciated that the Bill does not only bring about a large legislative reform, but also a very significant administrative one. At present, because of the legacy of colonialism and apartheid and the insularism on which they were based, we do not have a system of immigration control which is up to par, either from a legislative or an administrative viewpoint. The reform of the underlying administrative structure is going to be very significant and vastly necessary. There is no hidden or ulterior agenda in this process but only a real need to get the system up and running without total destruction of the function, which would cause South Africa's international image to suffer.
Comments on the letter from the Minister for Public Service and Administration:
The above captioned letter was referred to in discussions in the PCHA on May 15, and, therefore, the DHA feels obliged to provide a technical perspective on it. In its closing paragraph, the letter points out that the Minister made inputs in the formulation of clause 55. The letter concedes that clause 55 does not derogate from the Labour Relations Act [LRA] but bypasses the Public Service Act [PSAJ. It is silent in respect of the contention of the DHA that bypassing the PSA and possibly other ancillary legislation is a necessary condition if one is to adjust the existing administration to the requirements set out by the new permitting procedures in the Bill.
While not addressing the merits of the matter, which one hopes are conceded, the letter raises an issue of constitutionality in respect of section 23[5] of the Constitution relating to the right to engage in collective bargaining. However, the letter itself shows how such concern does not arise, as the quoted sections of the LRA identify collective bargaining as relating to the formulation of "uniform rules, norms and standards that apply across the public service" or "apply to terms and conditions of service that apply to two or more sectors, none of which fall within the matters covered by clause 55.
Clause 55 does not deal with two or more sectors nor does it set uniform norms that apply across the Public Service. It respects the general norms that apply within the Public Service and the conditions of employment, but enables employees to be transferred and job descriptions to be changed within the parameters and the framework of such uniform norms and standards, but without complying with the PSA and other ancillary legislation in respect of each case. Therefore, it is not a matter of collective bargaining, but individual determinations. Therefore, the letter is incorrect in stating that "a likely construction of the proposed clause 55 is that it excludes any collective bargaining". This was the main thrust of the argument and by it falling away the exceptions do not seem to arise.
The letter is also incorrect in stating that anything in clause 55 "excludes other remedies in terms of the LRA", as the letter itself indicated that the LRA is not affected by the amendment. Furthermore, a decision of the Minister is fully able to be reviewed in court. There is nothing in the Bill which excludes the rights of judicial review, while clause 37 of the Bill is clear that the Immigration Courts have jurisdiction over any matter arising in the implementation of the Bill. The statement in the letter relating to the possibility of exclusion of judicial review is outright unfounded.
The letter proceeds to indicate that the exclusion of the PSA would be "bad legal policy". However, it would be even worse policy to cause the collapse of a function pending its restructuring. Once again, in response to paragraph 4.4 and 4.5, there is nothing in clause 55 which would trigger the application of collective bargaining agreements. Similarly, it is fantastic to read clause 55 as allowing the Minister to undertake the exercise twice, as this power is clearly indicated to be a transitional one to be exercised within nine months in respect of "a" new organisational diagram, which would not allow this to be changed again in this fashion. Therefore, the "contrary intention" appears very clearly. Section 3 of [5] of the PSA quoted in the letter identifies the power of the Minister to restructure the Department but fails to highlight that this power is "subject to the provisions" of the PSA, which create significant burdens in respect of a restructuring of this magnitude, also taking into account the Public Service Regulations which would otherwise apply.
[T] Clause 57 of the B version: This clause has disappeared even though the DHA did not understand that the PCHA had agreed to delete it. It seems that its deletion was performed by the State Law Advisors in error. Some political parties were inclined to maintain it and no one requested its elimination. There was also no voting on it in spite of voting having taken place in respect of any other item which was contentious. Therefore, the DHA verily believes that the deletion of this clause was an error of the State Law Advisors. It is important to restate this clause to avoid a procedural flow in the adoption of the Bill. The clause reads:
57. Monitoring of borders and law enforcement
Notwithstanding any other law, in order to enable the Department to exercise the functions set out in sections 33(3) and 36(1) and any delegated function referred to in section 36(2), within 42 months of the commencement of this Act in consultation with the Director-General, the Secretary for Defence and the National Commissioner of the South African Police Service, as applicable, it shall be prescribed that-(a) certain individuals employed in such departments become ipso facto employed in the Department
redefining their respective terms and conditions of service and job descriptions as prescribed, provided that --
(i) their remuneration and other benefits shall neither be diminished nor worsen; and
(ii) provision be made for them to be appropriately trained or reconditioned to perform the functions contemplated in this Act; and
(b) certain equipment held by such departments be transferred to the Department
Originally the option of deleting this clause was tied to issues about clause 36 which have been fully solved and therefore the option to delete it should have fallen away. This clause relates to both section 33, in respect of which there is no proposal for its deletion, and section 36 in respect of which the option of deletion existed and was then overcome. The two issues are separate. For instance, this clause would apply to a possible SAPS Aliens Control Unit to be brought within the scope of section 33, which was never controversial. It is an entirely enabling provision as it can only be actioned through consensus of all departments concerned.
As it relates to section 36, this clause is necessary to the notion of border monitoring and control set out therein. This provision is necessary to ensure an enabling mechanism which will enable the departments concerned to bring about the required transformation without having to comply with the laws which apply, for instance to the decommissioning of military equipment or transfers. This provision will come into force only once there is preliminary agreement on the way forward and its promulgation will be held back until that time.
[A] Final addition: In its May 9 submission, the DHA requested the addition of a provision but its proposal was not considered or discussed. The DHA also proposed it in its May 15 submission which was also not considered. The DHA wishes to resubmit the need for the following provision, without which it may not be empowered to charge the simplest of fees customarily associated with the issuance of any visa or permit.
"48bis Fees
The Department may impose such reasonable fees and user charges as may be necessary or expedient in connection with any application or any other of its activities under this Act."
GENERAL TECHNICAL PROBLEMS
The words "Department" and "Minister" have been erroneously italicised throughout the Bill even when they refer to departments and ministers other than those of Home Affairs, which are those defined. Similarly, the word "Court" has been italicised inappropriately in places, such as clause 37. The same applies to the word "applications" in expressions such as "applications of this Act". The original drafting of the Bill avoided the expression "application of this Act" to avoid confusion and employed the expression "implementation of this Act" whenever appropriate.
The definition of training fund and the provisions relating to the inclusion of "training fees" in it needs to be assessed against the fact that the training and licensing fees previously associated with work and corporate permits have been eliminated, unless the DHA's submission for their reinstatement is considered
If the DHA's submission for the reinsertion of the former clause 6 relating the restructuring of the Department is considered, then the definition of "mission" will need to be taken into account.