Archive from February, 2016
Feb 10, 2016 - Business Permit    No Comments

Cape Town International Airport leads arrivals growth

08 Feb 2016 – Tourism Update
South Africa’s airports experienced a growth in international arrivals for 2015, with Cape Town International Airport ending the year with a notable 8,9% increase, compared with a growth of 6,5% at King Shaka International Airport and 5% at OR Tambo International Airport.
Martin Jansen van Vuuren, Director at Grant Thornton, said Cape Town had seen a growth in international arrivals due to an increase in direct flights to the city, such as the recent deal with Turkish Airlines. He added that more international flights, such as routes serviced by Kenya Airways and Ethiopian Airlines, were also rerouting to Cape Town.
Wesgro CEO, Tim Harris, said Ethiopian Airlines’ six times a week direct return flight from Addis Ababa was one of “the most exciting developments in 2015”, together with the non-stop daily flight from Istanbul on Turkish Airlines. He added that KLM/Air France had increased its frequencies to a year-round daily flight and that these increased international routes connected Cape Town to major global hubs with strong onward connectivity to Europe, North America, Asia and India.
Harris said establishing a direct route to North America was a priority for the Cape Town Air Access team and that capacities to and from the UK were also set to increase in 2016. “The next year holds great promise for air access, with direct flights to two more SADC neighbours taking off in the next few months and another connection with a major African hub under negotiation.”
In December, Cape Town International Airport handled 88 608 international travellers. Jansen van Vuuren said the airport was becoming more attractive to international travellers as it had the facilities and capacity to handle large volumes of travellers.
Colin Naidoo, Manager: Communications and Brand at King Shaka International Airport (KSIA), said the airport was well connected internationally, especially after Ethiopian Airlines commenced flights to and from Addis Ababa on December 16 and Qatar Airways began its Doha-Durban service on December 17.
He added that Turkish Airlines offered direct flights between Istanbul and Durban; Air Mauritius offered a Mauritius-Durban route; Emirates offered a Dubai-Durban route; and Proflight operated directly to Lusaka from KSIA.

Feb 5, 2016 - Business Permit    No Comments

Foreign parents barred from SA

04 February 2016 – Rand Daily Mail

Families torn as home affairs department denies foreign parents the right to stay with children
According to the status quo, the Department of Home Affairs will not grant foreign parents the right to settle permanently in SA with their minor South African children.
Section 27(g) of the Immigration Act entitles a foreigner to permanent residence in SA if he or she has a relative within the first step of kinship (including children and parents) who is a South African permanent resident or citizen. Regardless, home affairs has decided to withhold that right from foreign parents and their children.
The immigration regulations impose on the South African relative an obligation to sponsor the foreign applicant financially. It is not ordinarily possible for a minor child to undertake any obligation to its parent, let alone assume a financial obligation of support. Therefore, any permanent residence application made on this basis is refused by home affairs.
Home Affairs Minister Malusi Gigaba made these regulations even though they clearly limit the rights of family unity. This raises the question whether the minister consulted with the Immigration Advisory Board, as he was obliged to do in terms of the act, before making these regulations.
It is intriguing that the regulations, before the most recent amendments to the act in May 2014, did not require minor children to sponsor their parents for permanent residence.
The act, however, allows a foreigner to apply to the minister for a waiver from any regulatory requirement for “good cause”. A foreign parent of a minor South African child must, therefore, first apply to the minister for a waiver from the financial sponsorship obligation imposed on the child.
Such an application can take up to six months to be decided. If the minister grants such waiver, the parent can then apply for permanent residence, which may take another 18 months to be adjudicated. This is the unwarranted laborious two-step process that parents of minor dependent children must endure.
We have recently witnessed a steady pattern of refusals to grant such waivers on the basis that the minister could not find “good cause”.
The courts have rarely defined the term “good cause” to avoid constraining the discretion exercised by administrative decision makers. The High Court in Cape Town in 2003 defined “good cause” to be “dependent on the exercise of the court of a judicial discretion on the basis of all the circumstances of a particular case so as to achieve fairness between the parties”.
“Good cause” simply means “a good reason”, a particularly low onus, to be carried by the applicant. It is trite that the minister, or his lawful delegate within home affairs, must take into consideration constitutional imperatives in deciding whether good reason exists for the granting of regulatory waivers. At least “fairness between the parties” must be sought to be achieved.
Section 28(2) of the Constitution requires that, in any matter concerning a child, the child’s best interests are of paramount importance.
Section 28(1)(b) enshrines the right of children to parental and family care and section 10 of the Constitution protects the right to dignity of all people. The right to dignity has been defined by the Constitutional Court to include the right for a family and for spouses to live together without any undue interference by the state.
The Constitutional Court has ruled that “section 28 requires the law to make best efforts to avoid, where possible, any breakdown of family life or parental care that may threaten to put children at increased risk. Similarly, in situations where rupture of the family becomes inevitable, the state is obliged to minimise the consequent negative effect on children as far as it can.”
This is a settled principle in international law, supported by Article 19 of the African Charter on the Rights and Welfare of the Child and Articles 9 and 18 of the United Nations Convention on the Rights of the Child. These provisions are the source of section 28(1)(b) of the Constitution.
Notwithstanding existing constitutional norms, our immigration system as applied by home affairs is in jeopardy of bringing the rule of law into crisis.
The section 27(g) debacle is not an isolated phenomenon. It is allied to the rights of foreign parents, or foreign children of South African parents and foreigners married to South Africans, to remain in SA after their temporary visas have lapsed.
It occurs frequently in ordinary life that temporary residence visas lapse mistakenly or for compelling reasons.
No matter the degree of effort invested and inconvenience suffered by foreigners who find themselves illegally resident in SA and who voluntarily present themselves to home affairs to regularise their status, they are too often prohibited from remaining in SA to file their new temporary residence applications domestically, as well as to await the outcomes of those applications in this country.
My law firm represents a growing number of illegal foreigners who are not in a position to leave their families behind, some having just given birth to children who are South African citizens, in order to make their new visa applications from uncooperative foreign missions and to await the outcome of those applications abroad for months on end.
Home affairs has refused to allow those people to file their applications locally.
In practical terms, senior officials in home affairs are responsible for these decisions. SA no longer has an immigration policy, with border security seeming to be the principal driver and preoccupation of home affairs in its application of the Immigration Act and its regulatory scheme.
This makes it impossible for many foreign parents permanently to live with their South African minor children.
What is the purpose of such policies? What benefit does denying such rights to parents and their children bring to SA?
Are we seeing xenophobia more ruthlessly manifest without any rational reason?
Are the immigration officials who are responsible for refusing to grant these waivers even aware of the existence of these legal mandates?
It is as if home affairs management has simply lost its mind, as in a Kafkaesque play, where the minds of decision makers are poisoned with the cruelty of unbridled power. In the end, the value of our Constitution and its Bill of Rights to our public administration must be deeply questioned.

Feb 5, 2016 - Business Permit    No Comments

Family wins visa battle

03 February 2016 – Daily News
Cape Town – The South African husband of a Zimbabwean woman facing the prospect of being separated from her family indefinitely says a high court judgment in their favour handed down on Friday shows that the justice system works.
Last year, the Daily News’s sister paper the Cape Argus reported that Heath and Lea Stewart and their four children had turned to the Western Cape High Court to challenge a section of South Africa’s Immigration Act, which requires visa or permanent residence permit applicants – including spouses of South Africans – to make their applications outside South Africa and wait for the outcome outside the country.
The section would have required Lea to return to her home country to lodge the application and await the outcome. The family had moved to South Africa in May 2014.
Lea had entered the country on a 90-day visitor’s permit and returned to Zimbabwe in August 2014 to obtain a police clearance certificate, required for a spousal visa application in South Africa.
On her return she was issued with another 90-day visitor’s permit and started the process of applying for a spousal visa immediately.
On November 27, the couple was informed that the application had been rejected.
A letter of appeal was then sent to the Home Affairs director-general, but the appeal was rejected.
Their attorney, Craig Smith, said the judgment handed down on Friday was precedentsetting.
He said the judgment compelled the Department of Home Affairs to allow the spouses of South African citizens to apply in South Africa for a spousal visa in terms of section 11 (6) of the Immigration Act.
Home Affairs was ordered to issue Lea with a spousal visa in terms of this section of the act and “to afford her the right and liberty to apply for permanent residence” within three months of the judgment.

Feb 4, 2016 - Business Permit    No Comments

Business losing patience with sloppy, costly legislation

03 February, 2016 – The Times

The folly of parliament passing poorly drafted legislation has cost thousands of jobs, seen state entities lose billions and caused both a run on pensions and a huge decline in international visitors.
Now the state wants to dilute even further vital regulation impact assessments with a new assessment that places ”national security and social cohesion” above the economy and jobs.
South African business leaders in Johannesburg yesterday criticised the government over a lack of transparency of controversial bills that had huge economic impacts.
At the SA Chamber of Commerce and Industry, the Black Business Council, Small Business Project and Tourism Business Council criticised the government over its apathy in ensuring that internationally recognised Regulatory Impact Assessments were done on proposed legislation, bills and passed laws.
RIAs are designed to improve regulatory efficiency, looking at, among others, the effect of proposed legislation on economic growth, job creation and equality. They are conducted by economic companies contracted by industry and government.
The criticism comes after the World Bank’s Economic Update report, released yesterday, spelt more bad news for the country, forecasting GDP growth of 0.8% for 2016, down from 1.3% in 2015 and the lowest growth rate since 2009.
It follows similar projections by the IMF of 0.7% GDP growth.
With a raft of controversial bills, including the Promotion and Protection of Investment Bill, Expropriation Bill and Private Security Industry Regulation Bill about to be passed, critics are calling for a thorough examination of their potential impact.
The RIAs are, says Chris Darroll, Small Business Project CEO, being phased out in favour of socio-economic impact assessments.
The new assessments follow the government’s announcement that a committee, headed by former president Kgalema Motlanthe, would review previously passed laws.
Darroll said RIAs help underpin the government’s capacity to effectively implement laws.
“Very little is known about these new assessments and how they will be implemented.”
Darroll said implementing regulatory oversight half-heartedly, or testing laws retrospectively, was never going to be as powerful as “ensuring that every piece of potentially contentious legislation is scrutinised through the lens of a thorough, quality, rigorous and internationally recognised RIA.
“By firmly institutionalising proper oversight over policy-making processes we can restore investor confidence.”
Proper evidence, she said, was key to unpacking the need for and developing policy.
“Evidence ensures we are not adding unnecessary bureaucracy for both the private and public sectors. It ensures laws are enforceable, don’t disrupt service delivery or increase the burden of red tape, especially for small business.”
Zuma’s economic adviser, Bheki Mfeka, failed to respond to e-mailed questions on the socioeconomic impact assessments.
Laws that drew condemnation from the briefing were the government’s Immigration Act and Visa Regulations, which required children travelling to and from the country to have unabridged birth certificates with visa applicants having to apply in person at a South African embassy for biometric processing. The new Tax Laws Amendment Act, signed into law last month by Zuma, also came under fire. It will require compulsory annuitisation of two-thirds of provident fund savings on retirement.
Mavuso Msimang, Tourism Business Council chairman, said the visa regulations issue would have cost the South African economy R2.6-billion last year and 5800 jobs, with airline data showing a 40% decline in children travelling to South Africa and ticket sales down 20%. “Only after extensive engagements, widespread pressure from stakeholders and media attention was a commission established to investigate the regulations’ impact.
“This investigation saw the rescinding of the biometric requirements and limiting the need for unabridged birth certificates to South African citizens.
“All of this took time, money and energy which could have been better invested in growing our tourism sector and creating jobs.
“Had a proper RIA been conducted ahead of the regulations development, these unintended consequences would have been avoided.”
On the tax amendment legislation, Black Business Council CEO Mohale Ralebitso said while the amendments were drafted with good intent, government, by signing the Act into law, could have unintentionally created negative consequences

Feb 1, 2016 - Business Permit    No Comments

Judgment opens wider visa vistas

31 January 2016 – Weekend Argus
Cape Town – A precedent-setting judgment focusing on South Africa’s new immigration regulations could see foreigners with tourist visas who are living here with South African partners being given spousal visas without having to return to their home countries to apply for the documents.
On Friday, a judgment handed down in the Western Cape High Court found that Zimbabwean Lea Stewart, 40, whose husband and four sons live in Cape Town, did not have to return to Zimbabwe to apply and wait for a spousal visa from SA. Instead it was ordered that she be granted one in South Africa.
Immigration lawyer Craig Smith said it effectively meant foreigners married to or in a permanent relationship with a South African citizen or permanent resident holder, could apply to change the conditions of their visa to a spousal one without having to return to their home country. They also do not have to wait in their home country for the outcome of their applications.
The judgment said the Stewart family arrived from Zimbabwe on May 14, 2014 and set up home in Cape Town.
Stewart entered the country on a 90-day visitor’s visa. The new immigration regulations came into effect about two weeks after they arrived and they had not had any forewarning the laws would change.
Before their arrival they had enquired in Harare about how to obtain permanent residency for Stewart. “They were advised that she would first require a ‘spousal visa’ before she could apply for permanent residency, and that both visas could be applied for once she was in the Republic,” the judgment said. “Should this advice have proved to be correct, the present application would be unnecessary.”
Stewart and her husband believed she needed a certificate from police to apply for temporary residency, so she returned to Zimbabwe in August 2014 to get this document. When she returned to South Africa she was given another 90-day visitor’s visa.
Stewart began applying for a spousal visa on her return, but her application was denied and she applied to have this reviewed. This was also denied.
“This decision was based on the fact that she did not qualify for a temporary residence permit… because she was not permitted to change the conditions of her current visitor’s visa in terms of (a section in terms of an) Immigration Regulation,” the judgment said.
Stewart tried to appeal this too. The judgment said the Immigration Act made provision for a foreigner to apply to change the status of their visa, but not the conditions of their visa. Stewart and her family claimed that a section of the Immigration Act was inconsistent with the constitution.
The judgment found that Stewart was entitled to be granted a spousal visa.
The director-general of Home Affairs was also directed to issue Stewart a visitor’s visa and allow her to apply for permanent residence within three months. Home Affairs was ordered to pay the family’s costs.
Weekend Argus

Feb 1, 2016 - Business Permit    No Comments

Weak rand causes car rental increases

29 Jan 2016 – Tourism Update

The weakening will result in higher rental rates, but the industry is anticipating an increase in car rentals from the international market.
The weak rand is expected to result in in higher car rental rates, members of the industry have warned.
Commenting on the latest Tourism Business Index released by the Tourism Business Council of South Africa (TBCSA) last week, Marc Corcoran, President of the Southern African Vehicle Rental and Leasing Association (SAVRALA) said that although overall performance of the industry was good over the holiday period, the industry will face a difficult operating climate in 2016 as the depreciation of the rand will impact on new vehicle pricing, which is .
Deon Ragunath, GM: Operations at Hertz Rent a Car and Martin Lydall, Chief Commercial Officer at Europcar South Africa, said the current rand/US dollar exchange rate has resulted in a vehicle price and interest rate increase.
Lydall said that while the increase of Europcar’s rental costs will depend on contracts and forecasted demand growth, the car rental company is expecting an average of 10% increase to be implemented across the board.
“General economic pressures have had an increasingly negative impact on cost and rising operational and accident costs have increased the cost base dramatically. The depreciation of the rand has added up to 20% to our cost base,” said Lydall.
In spite of the price hike, both Europcar and Hertz are anticipating to see an increase in car rentals from the international market due to the weak rand.
Ragunath said that Hertz has noted an increase in demand for car rentals from the international leisure market and has experienced double digit growth in 2015 compared to 2014.
However, Lydall said Europcar did not notice any major increase in demand from the international leisure market, but expects to see double digit growth within 2016 aided by the relaxation of visa regulations, the recovering US economy and persistent low oil prices.