Archive from March, 2015
Mar 27, 2015 - Business Permit    No Comments

Minister of Home Affairs and Others v Johnson and Others; Minister of Home Affairs and Another v Delorie and Others (CCT 219/14) [2015] ZACC

25 March 2015 –
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
Today, the Constitutional Court handed down a judgment reiterating that it cannot determine an appeal against a High Court order granting temporary relief.
Mrs Egedal-Johnson and Mr Henderson are both foreign citizens, who held temporary residence permits while in South Africa. They are both married to South African citizens and have children with their respective spouses. On 28 May 2014, upon departing South Africa, Mrs Johnson (who had applied for renewal of her temporary permit before it had expired) was declared an “undesirable person” according to a new Immigration Regulation which came into force on 26 May 2014. Mrs Johnson had left South Africa with her baby but was denied re-entry into South Africa, while her husband remained in South Africa. Mr Henderson also departed South Africa on 28 May 2014. He had not applied for renewal of his temporary permit before its expiration date and was also declared an “undesirable person”. He was denied entry into South Africa, while his family remained in South Africa.
Mrs Johnson and Mr Henderson both launched urgent applications in the Western Cape Division of the High Court, Cape Town (High Court) against the Minister of Home Affairs and the Director-General of Home Affairs as well as two other employees of the Department of Home Affairs. The two applications were consolidated and heard together because they were based on similar facts and raised similar issues. Mrs Johnson and Mr Henderson requested the Court to suspend the declarations of undesirability and allow them to return to South Africa immediately. The applicants also requested the Court to declare the new Immigration Regulations constitutionally invalid. The High Court granted the parties the urgent interim relief requested and they were allowed to return to South Africa pending final determination by the Court of the relief sought regarding the constitutional invalidity of the new Immigration Regulations.
The Minister and the Director-General launched an application for leave to appeal in the High Court and the Supreme Court of Appeal, both of which were dismissed. In the Constitutional Court, the Minister and the Director-General lodged an application for leave to appeal in which they submitted that the decision negatively interfered with their duty to perform their administrative functions.
This Court found that the High Court order was temporary in nature and did not finally dispose of any factual or legal issues. Additionally, the temporary relief granted only applies to Mrs Johnson and Mr Henderson and not to other persons. Therefore, the Minister and the Director-General did not meet the requirements necessary for this Court to determine an appeal against the granting of temporary relief. The application for leave to appeal was dismissed with costs.
Edited by: Creamer Media Reporter

Mar 27, 2015 - Business Permit    No Comments

At last, this gogo will get her pension

March 25 2015 at 11:36am
By Mpiletso Motumi The Star
Johannesburg – The journey to get an ID and thus a pension has been a long one for Qomu Nala. The 62-year-old lost her document years ago and has struggled to rectify the situation.
She lives in a shack in Jabulani, Soweto, with her six children and nine grandchildren and washes taxis to earn a living because without an ID, she couldn’t get a pension.
The Department of Home Affairs failed to help Nala until The Star intervened.
“They said I was married to a man from Cameroon by the name of Youndjo. When I tried to correct this, they told me they were tired of people like me,” she said.
“I did not understand how this happened because I’m a widow.”
Home Affairs officials told her to produce the ID of the Cameroonian man and to bring an affidavit explaining the situation.
“I went through the same process even after I brought in the affidavit. I showed them my original marriage certificate to my late husband, Muntongelutho Nala,” she said.
Officials then told Nala the only way she could resolve the problem was to divorce the Cameroonian man, which meant taking both her ID and his to Home Affairs.
“I couldn’t understand why they would ask me for that when I don’t even know this person. Where would I even begin to find this man? And I do not have an ID, but they asked me to bring it in,” she said.
She was then sent to the Hillbrow Magistrate’s Court to file divorce papers there.
“The person who was handling my case went on leave and then my case was never resolved,” said Nala.
She could not afford to travel repeatedly to the different offices.
The Star then took up her case, and officials from the Department of Home Affairs head office stepped in.
Last week, Nala went back to the Phefeni office of Home Affairs and finally received a temporary ID.
Her fraudulent marriage was cancelled and her application for a pensioner’s grant was approved at the Orlando West South African Social Security Agency offices.
She will receive her first grant next month.
Home Affairs officials are also helping her get the correct identity papers for her children and grandchildren.
“I don’t know how to feel. It’s like the burden I have been carrying has just been lifted off me,” she said.
Nala said she would still wash taxis every now and again.
Home Affairs spokesman Mayihlome Tshwete said when people found themselves in situations like Nala’s with ID fraud, they needed to submit an affidavit with a case number to the department.
“Such a ‘marriage’ would be regarded as fraudulent and is of no force and effect. On the strength of the affidavit, the department then removes such a ‘marriage’ from the Population Register,” he said.
He urged South Africans to protect their identities by ensuring that all enabling documents were kept safe.
“The department reiterates its commitment to ending the practice of duplicate IDs, which continues to wreak havoc in the lives of those affected South Africans. This has the negative effect of denying those affected their right to engage in education, business and banking and denies them access to basic government services,” said Tshwete.
People affected by ID fraud should go to their nearest Home Affairs office. Identity numbers can be verified by texting the number to 32551.
The Star

Mar 27, 2015 - Business Permit    No Comments

Home Affairs bungle leaves boy in limbo

March 23 2015
By Kieran Legg – Cape Argus
Cape Town – What if there’s an emergency? What if the situation in Qatar changes drastically and the only option is to return to South Africa?
These are questions Shihaam Bawa asks herself frequently because new visa regulations and Home Affairs bungles have left her youngest child stranded in “no man’s land” as he cannot return to Cape Town.
Two years ago her son Yaqeen was born in the Middle East. The Cape Town family, who had relocated to Qatar for work, were overjoyed. But it was short-lived. While an application to obtain a passport from South Africa’s Department of Home Affairs was successful, they received the documents four months later. Moves to secure to an unabridged birth certificate were derailed when officials said they had lost the documents.
For the next 15 months Bawa said she was given the “run around” by officials at the embassy and at the department. She later resubmitted the application in August last year along with an application for the renewal of her own passport.
Three months later she had a new passport, but “frustratingly the unabridged birth certificate application had been lost again”.
This was after the Bawa family had e-mailed copies of the documents as well as tracking numbers for the mail bags containing the application.
“But they are still claiming it has not been received,” she wrote.
“My frustrations in dealing with them is that they can never give me a straight answer when I contact them for information,” she wrote in an e-mail to the Cape Argus. “I am given conflicting information all the time.”
When she phones she is kept on hold for hours, racking up a hefty phone bill.
“For months they have told (me) that the application is in process, then on my last contact with them regarding the status of the application, I was informed that it was not received.”
Before, an unabridged birth certificate was not a necessity, at least regarding to immigration. However, on June 1 the stakes will be raised as new regulations are set to come into effect requiring all children travelling to and within South Africa’s borders to have the certificate.
For Bawa, the date is looming over her family. “While life in Qatar is good and we are happy here, it is not home. It is very much a work assignment and we have no desire to make this home, nor would the laws here allow us to do so. SA is our home and will always be. Our house is there and our family too.”
The family travels to Cape Town frequently to visit relatives and allow their children to “experience home”. The change in the visa regulations regarding entry to the country threatens to squash any hopes of returning home. Bawa said if there was an emergency their youngest child, now 2 and half years old, will not be allowed to enter South Africa. His older siblings were able to obtain certificates in 2007 and 2010.
“Yaqeen will be stranded and not allowed to enter the country he considers home. Where should he go? What should he do? How are we expected to deal with this situation when we have been responsible and applied for an unabridged birth certificate when he was born in 2012, before the proposed law was even approved.
“The thought of physically being stranded in no man’s land is not a pleasant one and not a situation I would want to subject my family to,” she concluded.
Management at the Department of Home Affairs Western Cape offices were last week made aware of the Bawas’ struggles. Provincial manager Yusuf Simons and officials at the department said they would liaise with the Birth Centre.
By Friday, Bawa’s case was put on “High Priority”

Mar 27, 2015 - Business Permit    No Comments

No ruling as yet on constitutionality of immigration laws

Nomahlubi Jordaan – Times Live 24 March, 2015
Two foreigners married to South Africans can remain in the country with their families for now after the Constitutional Court told the Department of Home Affairs it cannot appeal a temporary High Court order.
The court ruled on Tuesday on the department’s application for leave to appeal a Western Cape High Court decision granting temporary relief to two families separated by a new immigration regulation that came into effect at the end of May last year.
The foreign spouses of Brent Johnson and Cherene Delorie were stranded outside South Africa after being refused re-entry and declared “undesirable”.
Delorie’s Zimbabwean husband, David Henderson, was declared an undesirable person after leaving South Africa – where he has lived for seven years – to travel to Zimbabwe on May 28 last year, while Johnson’s Danish wife, Louise Egedal-Johnson, was declared an undesirable person after a family holiday to Namibia the same month.
Both their temporary residence permits had lapsed and the fact that they were declared undesirable prevented them, under the new regulations, from getting new temporary permits.
Egedal-Johnson was stranded outside the country together with the couple’s baby and Henderson was seperated from his wife and two children.
The two families’ applications for relief were heard together because the cases were similar. Both claim that the new immigration regulations regarding declaring people undesirable are unconstitutional.
The Western Cape High Court ordered that Henderson and Egedal-Johnson be allowed back into South Africa until their application to have the regulations declared invalid is heard.
The Department of Home Affairs then asked the Constitutional Court for leave to appeal against the High Court order, arguing that the High Court invaded its executive authority by, among other things, “creating a precedent that allows for internal remedies under the Immigration Act to be bypassed”.
The Constitutional Court, however, found that the order was only temporary and did not finally dispose of any factual or legal issues.
“The temporary relief granted was specifically directed at Mrs Johnson and Mr Henderson and there was no general suspension of the new legal dispensation in respect of other persons,” the court held.
Craig Smith, lawyer for both families, said both Henderson and Egedal-Johnson returned to the country after the High Court ruling and expressed their satisfaction with the Constitutional Court’s ruling.
Smith said a date was yet to be set for the Western Cape High Court to hear the challenge to the velidity of the regulations.
If the parties succeed in having it declared invalid, it will require the department to go “back to the drawing board” to redraft it, Smith said.
He said the new regulations impinged on foreigners’ rights.
“Many people have been separated as a result of the new law,” he said.

Mar 25, 2015 - Business Permit    No Comments

Foreign workers clean up in service industry

March 24 2015 at 12:02pm
By Nicolette Dirk – Cape Times
Cape Town – The influx of foreign employees in the hospitality industry has been blamed on South African employees not being up to scratch for these jobs.
This is according to some local restaurant owners in Cape Town, where the majority of staff are foreigners. The V&A Waterfront’s Cape Town Fish Market manager Rudi Vivier said his waiters comprised mainly Congolese and Zimbabwean staff, while locals mainly worked in the restaurant’s kitchen. Big Bay’s Cape Town Fish Market proprietor Laurens Badenhorst said that of their 16 waiters, only four were South African.
“Foreign waiters, especially from Zimbabwe, are usually better spoken and offer phenomenal service to customers,” he said.
Canal Walk’s Col’Cacchio operational director Riordyn Bubb said the high work ethic of foreign employees was the reason they were more readily hired. “Our waiters, especially the Zimbabweans, have a great mindset and are hard-working. They have the kind of personalities where they are able to keep our patrons happy and entertained,” he said.
Of the 12 waiters working at the franchise, only one is from South Africa, which Bubb said is also because South Africans generally don’t apply for jobs as waiters. “Of the 10 applications I receive daily, most are from foreigners. South Africans don’t really want to apply for jobs as waiters or managers in restaurants because most of them prefer to work in corporate.”
Camps Bay’s Primi Piatti general manager Craig Martin said when it comes to hiring staff, it has more to do with the best candidate than whether the applicant is foreign or local. Five of the restaurant’s seven waiters are from Zimbabwe, which Martin said is due to foreign applicants having a better level of education than locals.
“It is actually tragic that because of not having the necessary education, locals are not able to make more money. Where many Zimbabweans have to work hard to send money to their families, many locals have few expenses and are therefore happy to work in a position where they earn less money. This is tragic as they are not fulfilling their potential,” he said.
With most foreign applicants possessing at least a matric qualification, Martin said they are able to converse better with patrons and generally have a better etiquette than their local counterparts.
But the local staff who do show potential, he said, have received training for managerial positions. “I am originally from Scotland and have lived in South Africa for the past 10 years. Back home, most of the foreigners did the menial jobs, while locals were employed in the higher positions. In South Africa, it is the opposite because many locals don’t have the required skills.”
But SA Commercial, Catering and Allied Workers Union president Louise Thipe said the reason why foreigners are often preferred by employers is because they are not usually protected by a union. “Some foreign employees are threatened with dismissal if they want to join a union. Those without the required documentation are controlled by their employers, who threaten to go to the authorities if they don’t comply with their conditions.
“Without a union, foreigners can be paid a minimal salary because they don’t have us to negotiate this for them.”
Thipe said the fact that foreigners are better educated than locals is not always true, and many of them who do have tertiary qualifications are still paid very little.
department of labour project manager for Employment Services of South Africa Moraka Isaac Nong said the department had a protectionist and a globalisation stance for employing foreigners. “Recruitment and employment of foreigners is allowed only in instances where local citizens are not skilled or are in short supply.
“But recruitment of foreign nationals shall not deny the locals the opportunity to contest for scarce employment opportunities in the labour market.”
The department’s policy also prevented a build-up of a foreign labour pool by the employer community, from which the employers will pick and choose workers as and when they are needed. Nong said such a recruitment practice condoned unfair job reservation that favours foreign nationals over the locals.
But from a globalisation stance, the department does not have a policy blocking the recruitment of the critical and scarce skills needed for the country’s economy from anywhere else in the world, if the skills cannot be sourced from within the South African labour market.
He added that there have been confirmed instances where unscrupulous employers do not comply with the conditions of employment regarding a basic salary, and hire foreigners with the intention of paying them less than locals.
Cape Times

Mar 25, 2015 - Business Permit    No Comments

Panel to advise Gigaba on visas

13 Mar 2015 04:53 PM –

The Department of Home Affairs tweeted this photo of the panel of experts, who met on Friday to discuss innovative ways to issue visas.
Home Affairs Minister, Malusi Gigaba, on Friday met with a panel of experts for input on how best to implement South Africa’s new immigration policy.
Home Affairs Spokesperson, Mayihlome Tshwete, told Tourism Update the meeting was attended by various organisations, ranging from law firms to consultancies. Industry associations that have been lobbying the Department of Home Affairs to review new visa regulations were not invited to the meeting.
The discussion was also taken to Twitter, where Gigaba called on people to send suggestions on how the department could efficiently issue visas, using the hashtag #VisaInnovation.
According to Tshwete, one of the views that came through was that the current system was “quite efficient” given that 90% pf the Global 20 countries did not require visas to visit South Africa. However, he added that there were areas of administration where the department could improve.
Tshwete said the Minister gave an instruction to this panel to advise him on all elements of the immigration policy and he also asked for different ideas on how the policy could be implemented. According to him, the panel has been given terms of reference by the Deputy Director General and will report to the Minister before he delivers his Budget vote speech in May.
• getoverit • 7 days ago
What gets me is the surprise that we show when government does something that works against tourism! Get used to the idea that we have a junior cabinet minister representing tourism and his colleagues take absolutely no notice of him or his views of the industry. Either that, or he simply cannot stand his ground in cabinet arguments.
Grant Newton • 8 days ago
Wow! The arrogance of Home Affairs is mind-boggling… to think they would put a panel together that excludes the industry most affected by their ridiculous new VISA regulations. Does the minister even know the meaning of the word TOURISM???

Margarita • 8 days ago
Sounds like there is not much hope there…
Trevor Hewett • 8 days ago
Legends in the industry … every single one …. sure they understand our industry better than we do!

Article 2
Tourism trade shut out of visa meeting
16 Mar 2015 – By Tessa Reed – Ken Mayer –

Industry associations that have been lobbying for a review of new visa regulations were excluded from a panel discussion on how best to implement South Africa’s new immigration policy

Members of the travel and tourism trade were not invited to a panel discussion on Friday, where Home Affairs Minister, Malusi Gigaba, sought input on how best to implement South Africa’s new immigration policy.
None of the associations that have been engaging with the department on visa regulations since new regulations were first announced last year were invited to the meeting. These include SATSA the Tourism Business Council of SA (TBCSA), the Board of Airline Representatives of SA (Barsa) and the Airlines Association of Southern Africa (AASA).
TBCSA CEO, Mmatšatši Ramawela, said the meeting came as news to her on Monday morning. However, she told Tourism Update that based on feedback given to the TBCSA by the Department of Home Affairs on Monday, the panel was looking at visas from a technical perspective and it was not looking at tourist visas.
Members of the travel and tourism industry have, however, been unable to meet with the Minister of Home Affairs, since October last year, despite the Minister establishing a task team, which was supposed to look at the new regulations with a view to balance the need for security in a way that does not negatively impact tourism.
David Frost, SATSA CEO, said there had been no consultation with the travel and tourism industry, despite the fact that a task team was set up last year, specifically to look at the regulations. “There has never been a properly constituted task team meeting since October.”
Chris Zweigenthal, Chief Executive of AASA, also confirmed that no meeting of the task team had taken place since October. “The TBCSA arranged one informal meeting with the DHA in October 2014 but, to date, this task team has not been formally convened by the DHA and we have not met since then,” he said. “We are urgently awaiting the convening of the task team with all affected stakeholders as envisaged by the Minister.”
According to Frost, SATSA will be communicating directly with the Deputy President regarding the panel. SATSA will be asking for a suspension of the regulations pending the review, so that a fair and equitable review can take place.
June Crawford, CEO of Barsa said, to Barsa’s knowledge, none of the tourism and travel industry associations that had been working through the TBCSA with the Department of Home Affairs since the Immigration Regulations were announced last year, were invited. “This is despite the comprehensive research that industry has generated on the impact that these immigration regulations will have on the sector and South Africa’s economy, and our continued efforts to engage with government, both through the Department of Home Affairs and Department of Tourism,” she said.
“We are disappointed that the TBCSA has been unsuccessful in securing a meeting for the industry task team with the Department of Home Affairs and that despite the indications that a meeting would take place, a panel has been established without the tourism sector’s involvement or knowledge,” said Crawford.
“With the appointment of this panel and their alleged focus being input on how best to implement the new Immigration Act, we also see no moves on the horizon for the full review that was promised in the State of the Nation address recently,” Crawford cautioned.
Frost emphasised the view that there were better alternatives to the regulation that include the requirement that children travel with an unabridged birth certificate. Frost said he recently attended a workshop on child trafficking and exploitation hosted by the UNWTO World Tourism Network on Child Protection at ITB in Berlin. The workshop was also attended by senior representatives from Interpol.
“When I mentioned what we were doing, people looked at me with shock and horror,” said Frost. He said that it was clear from the workshop that there was a more sophisticated, multipronged international effort that goes into addressing the issue of child trafficking and exploitation.
Ramawela said the TBCSA was eagerly awaiting an announcement from the Deputy President, who would be convening the review of the visa regulations.
At the time of publication, the Department of Home Affairs had not released the names of the people on the panel, or the organisation they represent, despite having been asked for these names since Friday last week.
This story has been updated since it was first published.

Mar 23, 2015 - Business Permit    No Comments

South Africa: Home Affairs Consulted Labour On New Office Hours (Tshwane)
20 March 2015
Pretoria — The Department of Home Affairs says it has continuously consulted with labour representatives regarding the imminent implementation of the new operating hours of its offices.
This follows media reports which claim there were no proper consultations with labour representatives in the implementation of the new Home Affairs opening and closing hours.
Earlier this month, the department introduced new office hours to improve services to the public.
Office hours will be from 7.30am to 4.30pm, including a 30-minute lunch break. However, opening and closing hours for serving clients will be from 8am to 4pm.
The new opening and closing hours for the public will be operational from Monday, 23 March 2015.
Home Affairs Director-General Mkuseli Apleni said throughout the whole process, continuous consultations with labour unions took place with a view to attaining their buy-in, while ensuring that the best interests of the employees are taken into consideration.
“As a department, we have made it clear that this new intervention will be critically beneficial to the members of the public. Though there might be differences of opinion on certain matters pertaining to the new arrangement with representatives of labour, we have agreed that we will proceed to operationalize the new hours with effect from Monday, 23 March 2015,” said Apleni on Friday.
The Director-General reiterated the department’s commitment towards the operationalization of the new opening and closing hours and warned against deliberate disruptions from officials.
“Any official who attempts to deliberately disrupt the new arrangement will be dealt with according to the department’s disciplinary processes,” said Apleni. –