Archive from November, 2018

Home affairs committee adopts Civil Union Amendment Bill

The Portfolio Committee on Home Affairs in Parliament adopted the Civil Union Amendment Bill on Wednesday.
The bill, which will be presented to the National Assembly to pass, will afford same-sex couples the same rights as heterosexual couples.
“The committee is of the view that this amendment is a strong affirmation to the right of equality before the law and further prevents any discrimination on the basis of sexual orientation,” parliamentary communication service’s Hlomani Chauke said in a statement on Wednesday.
The purpose behind the amendment was to repeal section 6 of the Civil Union Act, which allowed a marriage officer to inform the minister that “he or she objects on the ground of conscience, religion, and belief to solemnising a civil union between persons of the same sex”.
“This infringed the right to equality before the law and the right not to be discriminated against by the state on grounds of sexual orientation,” Chauke explained.
The bill proposes a transitional period of 24 months for the Department of Home Affairs to enable officers an opportunity to be trained if it is passed.
“The amendment further requires that during the transitional period; the minister of home affairs must ensure that there is a marriage officer, other than a marriage officer who had been granted exemption through the principal act (the Civil Union Act), available to solemnise a civil union at every Department of Home Affairs office,” Chauke said.

SAQA to recognise qualifications of refugees and asylum-seekers

29 November 2018 – MSN

The South African Qualifications Authority (SAQA) has revealed its bold plan to recognise the qualifications held by refugees and asylum seekers.
Currently, migrants holding refugee and asylum permits were more likely to be blocked from continuing with their studies at South African institutions or finding employment, using their qualifications.
As they were often forced to suddenly flee their violent-torn countries, they were in a worse off than migrants who had planned their relocation to South Africa.
SAQA recognises the qualifications of foreigners arriving in the country for specific purposes such as studying or employment, but not those of refugees and asylum-seekers.
The authority now plans to change this and give the refugees and their asylum counterparts a lifeline.
Joe Samuels, SAQA’s chief executive, has invited public comments on the proposed law, detailing plans to recognise qualifications of refugees and asylum-seekers.
“SAQA is conscious that refugees and asylum-seekers do not migrate by choice and face unique challenges to meet all the application criteria for evaluation of their qualifications,” said Samuels.
“SAQA is committed to assisting asylum-seekers and refugees to overcome such challenges.”
The African Diaspora Forum welcomed SAQA’s intentions. The organisation said it would make a submission in support of the proposed law.
Vusumuzi Sibanda, its chairperson, told The Star that many educated asylum-seekers and refugees were forced into informal jobs, because their qualifications were not recognised.
Sibanda said it was amiss that laws did not prohibit refugees and asylum-seekers from being employed, but did not allow for recognition of their qualifications. Refugees and asylum-seekers were effectively blocked from participating in the formal economy and paying income tax.
“Asylum-seekers and refugees are allowed to work, but their qualifications are not recognised. This means they can only do jobs that do not consider their qualifications,” he said.
Sibanda added that the status quo explained why many were car guards in malls and spaza shopkeepers.
“A lot of them are running these spaza shops because their qualifications are not recognised,” said Sibanda.
“Some have qualifications in crucial skills and the country can now increase the pool of qualified artisans.”

Asylum seekers can now apply for residence visas

27 November 2018 – GroundUp
Constitutional Court ruling overturns Home Affairs directive

The Constitutional Court has ruled that asylum seekers whose refugee applications have been refused, can apply for a visa. Archive photo: Ashraf Hendricks
If you are an asylum seeker and your application to be a refugee is refused, you are still allowed to apply for a visa. The Constitutional Court ruled this in a unanimous judgment handed down in October.
The case was brought by three asylum seekers whose applications for refugee status had been refused. They each then made applications for visas in terms of the Immigration Act.
Arifa Fahme applied for a visitor’s visa so that she could remain in South Africa with her husband and children. VFS Global, a company contracted by Home Affairs to process immigration applications, rejected her application because she was an asylum seeker. The company said that it cannot issue temporary residence visas to asylum seekers.
Kuzikesa Swinda and Jabbar Ahmed each applied for a critical skills visa. Their applications were rejected because their asylum applications were before the Refugee Appeal Board.
The main reason for all of the rejections however was a directive issued by Home Affairs in February 2016. This directive said that asylum seekers are only entitled to visas under the Immigration Act when they have been certified as refugees by the Standing Committee for Refugee Affairs. This effectively barred asylum seekers from applying for any type of visa.
High Court and Supreme Court of Appeal
Fahme, Swinda and Ahmed approached the High Court to set aside the directive. The High Court found that the Immigration Act and Refugees Act are complementary and not mutually exclusive. It found that the Immigration Act entitled foreign nationals to apply for a visa or permit.
The court reasoned that there was no reason to exclude asylum seekers from this definition. Also, the court found that denying Fahme the right to be with her family unjustifiably infringed her right to dignity. It ruled that Swinda and Ahmed should be entitled to critical skills visas if they otherwise met the requirements of the legislation.
Home Affairs appealed against the decision to the Supreme Court of Appeal (SCA). The SCA found in its favour. In a nutshell, the SCA found that it was impossible for the applicants to apply for permits in terms of the Immigration Act because such applications had to be made from outside the country.
The case then went to the Constitutional Court.
Constitutional Court proceedings
The Constitutional Court considered two main issues. First, whether an asylum seeker can apply for a permit or visa in terms of the Immigration Act. Second, whether the Directive should be set aside. PASSOP (People Against Suffering, Oppression and Poverty) joined the case as a friend of the Court.
Can an asylum seeker apply for a permit or visa in terms of the Immigration Act?
An asylum seeker is a person who has arrived in South Africa who asks to become a refugee. A person is eligible to be a refugee if they are fleeing another country due to persecution for their political beliefs or their membership of a particular social group. When a person enters South Africa as an asylum seeker they may be issued an asylum transit visa. This visa is valid for five days. During this period an asylum seeker must report to a Refugee Reception Office to apply for refugee status. If the application for refugee status is successful, the person is entitled to live and work in South Africa and may apply for permanent residence.
The Immigration Act allows any foreigner to stay in South Africa by applying for two categories of applications: temporary residence permits or permanent resident permits. The Act includes several different temporary residence visas such as spousal visas and critical skills visas.
An application for a temporary residence visa must be made at a South African embassy in the country in which that person lives.
The court found therefore that Ahmed and Swinda could not have applied for their permits in South Africa. Those applications had to be made from outside the country. The court found therefore that the SCA’s ruling in this regard was correct.
But the court then considered whether the directive should be set aside. It found that the directive imposed a blanket ban on asylum seekers from applying for a temporary residence permit or a permanent residence permit. The directive only enabled asylum seekers to apply for a permanent residence permit if they had been certified indefinitely as a refugee by the Standing Committee for Refugee Affairs.
The court then considered whether this particular interpretation of the Refugees Act and Immigration Act was justifiable.
It pointed out that unlike applications for temporary residence permits, applications for permanent residence permits do not have to be made from outside the country. Also, the court said, the Immigration Act entitled “any foreigner” to apply for a permanent residence permit and there was no reason to exclude asylum seekers from this definition.
The court noted that to request Fahme to leave the country and leave her family behind would be unfair and unjust.
For all these reasons the court found that to the extent that the directive imposed a blanket ban on an asylum seeker from applying for a permanent residence permit it was unlawful and must be set aside.
What about the applications of Swinda and Ahmed? The court said that unfortunately they were not in the same position as Fahme. Critical skills visas are a category of temporary residence permits visas and such applications can only be made from outside the country. However, the court pointed out that the Immigration Act entitles a person applying for a temporary residence permit to apply for an exemption from the requirements of the Act. This meant that Swinda and Ahmed were entitled to apply for an exemption in order to apply for their visas locally. The court pointed out that there was good reason to allow asylum seekers to apply for an exemption because they often do not have proper documentation and cannot return to their country of origin. The court found that to the extent that the directive imposes a blanket ban on asylum seekers from applying for a temporary residence permit it was unlawful and must be set aside.
Why this judgment is important
Having worked in a state institution assisting refugees and asylum seekers for more than a year, I have witnessed first hand their plight. The asylum system in South Africa is critically understaffed and under-resourced. Many asylum seekers are struggling to regularise their stay and have no proper documentation. They need this in order to open bank accounts, find employment, run their businesses and improve their quality of life.
This judgment provides an alternative avenue for them to make a home in South Africa by applying for permits in terms of the Immigration Act. Hopefully the judgment will be a reminder that South Africa belongs to all who live in it, whatever their background or immigration status.


Soweto News – November 20, 2018
OVER the years, many people have had serious problems trying to get their IDs from what many calls Horror Affairs.
However, the home affairs department now says the public is taking too long to collect their ID smart cards.
The department recently revealed they were facing a massive challenge ahead of next year’s general election as close to 410 000 smart cards remained uncollected at offices around the country.
Soweto regional Home Affairs manager Pearl Poto said close to 2 000 smart cards were lying at Orlando West Home Affairs. She said the department was calling on people who were eligible to vote to collect their IDs.
She said the IEC had set aside 26 and 27 January to allow first time voters to register and existing voters to update and check their registration details.
“This means if you don’t have a valid ID card, you won’t be able to vote. The difficulty with these smart ID cards is that people need to visit Home Affairs for them to be registered, activated and linked with biometric information,” said Poto.
She urged residents to collect their IDs or apply for new ones.
Meanwhile, Home Affairs announced on Thursday that over 180 000 Zimbabweans had applied for Zimbabwean Exemption Permits (ZEP).
Home Affairs spokesman Thabo Makgola explained the ZEP was meant to regularise the stay of Zimbabweans in the country for work, study and business.
“Applications for the ZEP were announced in September last year following the expiry of the Zimbabwean Special Permit,” he said.

OPINION: Ramaphosa’s meeting with German President speaks volumes

Business Report – 21 November 2018
JOHANNESBURG – The headlines following President Cyril Ramaphosa’s meeting yesterday with State visitor German President Frank-Walter Steinmeier speak volumes for the emphasis they place on what is most worrying for investors, world leaders and ordinary South Africans.

That undisguised concern is the looming prospect of expropriation without compensation (EWC) in a new phase of ‘land reform’ conducted by a state legally empowered to take private property without paying for it.

Not for the first time, the emphasis of those headlines – ‘no land grabs’, investors ‘reassured’ – reflect the president’s strenuous efforts to play down the risks and insist that whatever comes to pass will be lawful and orderly and thus hold no danger to investors.

The question that must arise is, simply, when is an assurance an assurance you can bank on?

To say that EWC will be introduced in a lawful way is not reassuring; South Africa can look back at a century of devastating dispossession enacted by law. Lawfulness does not convert bad policy into good policy.

Embarking on ‘orderly’ land expropriations without compensating owners is not reassuring either. Whether a mob or a department of state does the taking, the effect is indistinguishable – except for the fact that if the state does it, and does it legally, the scope for any appeal to justice is that much narrower.

Finally, to say that investors can and do feel assured as the economy is open for business and is a safe bet stands in flat contradiction to the data; less than 1% growth nearly a year after the promise of a ‘new dawn’, and mounting unemployment (9.7 million by the expanded version), with some 300 000 more South Africans finding themselves without a formal job since this time last year.

Whatever investors or foreign leaders say in public, the numbers express an inescapable truth.

And nobody is in any doubt that the gathering enthusiasm for expropriation without compensation sponsored by the ANC and led from the front by Cyril Ramaphosa is chiefly responsible for switching on the hazard lights. Property rights anchor investment and if you threaten them, you chase investment away. EWC cannot be championed as anything but an investment killer, for the simple reason that a threatened dilution of property rights places all investment at risk.

The danger of EWC goes well beyond farmers losing maize fields and cattle ranches. Property rights are indivisible, and if the precedent is set on land (as it was in the case of mining and water rights) then it can be expanded to wherever there is wealth to be extracted.

No investor is blind to this risk – or misled into thinking that taking property without paying for it really is the historical imperative on which land redress or the success of emerging black farmers depends .

If President Ramaphosa cannot by any measure be held solely to blame for the complex economic and policy deficiencies that lie at the root of South Africa’s plight, the same is not true of the low credibility of his reassurances to his country, world leaders and the foreign investors on whom the country depends.

Many may wonder if Germany’s President Steinmeier could really have come away from his meeting with Mr Ramaphosa feeling reassured given that their encounter followed only days after the ANC had put its stamp on a recommendation to tamper with the property protections in the Bill of Rights.

Are we to speculate that Mr Ramaphosa confided that he himself wasn’t in favour? Or that, as some of his supporters argue, EWC has been foisted on him by his rivals?
If either was true, it would mean the president had limited influence on the party he led, and that any assurances he chose to give could not carry sufficient weight to be credible.

What is distressingly credible is that South Africa’s intensifying efforts to assure everyone that everything will be all right is only confirming the very real danger we are facing.
Being honest about just how bad eroding property rights will turn out to be for all South Africans has to be the first essential step towards averting the disaster that threatens us.

South Africa: Audit Outcomes Show Home Affairs On Track

Sa Gove News – 24 November 2018
The Department of Home Affairs has noted the 2017/18 Consolidated Audit Outcomes of National and Provincial Governments, released by Auditor-General Kimi Makwetu on Wednesday.
The department said it views the audit outcomes as an empowering instrument that points to what needs to be done to improve internal controls, resulting in reliable financial statements, credible reporting on service delivery and compliance with legislation.
The department was not in the list of the top 10 national departments contributing to unauthorised expenditure, and does not feature on the list of top 10 contributors to irregular expenditure, or among those flagged for fruitless and wasteful expenditure.
Home Affairs Acting Director-General Thulani Mavuso said the department will continue improving on aspects of financial management needing attention.
“We eye a clean audit for which we have mobilised for all hands to be on deck. As recommended in the report, we will do even more to plan, check and act for better results,” Mavuso said.
Although the number of auditees that obtained unqualified audit opinions decreased from 301 to 295 since the previous year, and from 299 since 2014/15, Mavuso said the department obtained an unqualified audit opinion in 2017/18, as it did in 2016/17.
Mavuso highlighted that in the year ending 31 March 2018, Home Affairs spent 99.9% of its allocated budget. The department also achieved 86% of the 28 targets in its annual performance plan, which is a 2% improvement from last year’s 84%.
The department has further registered 772 035 births within 30 days of birth, against a target of 750 000; issued 8 049 permanent residence permits, of which 7 810 were finalised within the set target of eight months. This included critical skills, general work and business visas, and finalised 6 684 critical skills work visas, 5 935 of which were finalised within four weeks.
“This shows sustained commitment to delivery against shrinking budget allocations,” Mavuso said.
However, Mavuso admitted that the department’s budget of just over R7 billion, which includes the IEC allocation, remains a huge challenge in meeting its constitutional obligations of servicing 57 million citizens plus millions of foreign nationals who visit South Africa annually.
“Our footprint of 412 offices is inadequate, and we are working with the Department of Public Works and National Treasury to address this matter.”

Home affairs: MPs commit to working with Gigaba’s successor to solve queue problem

Chairperson of Portfolio Committee on Home Affairs Hlomani Chauke has welcomed the appointment of Siyabonga Cwele as the new minister of home affairs.
The committee said it was of the view that the appointment would bring innovations to resolve some of the challenges facing the department, Chauke said in a statement on Friday.
Cwele was moved from the telecommunications portfolio to home affairs when President Cyril Ramaphosa shuffled his Cabinet on Thursday. Stella Ndabeni-Abrahams, previously Cwele’s deputy, is now minister of communications and telecommunications.
President Cyril Ramaphosa has announced changes to the National Executive at the Union Buildings, Pretoria.
Cwele fills the gap left by Malusi Gigaba’s resignation, following a raft of findings against the former beleaguered minister that he lied under oath.
Chauke said one of the key challenges for the new minister will be to resolve the lingering challenge of long queues at service points across the country.
“In addition, the intermittent challenges with server downtime that hampers the rendering of services must be urgently resolved. Also, the committee has emphasised the need to address the ever-increasing legal liabilities facing the department,” he said.
Resignation ‘not an admission of guilt’
“The implementation of measures announced by the President to increase tourism numbers and cut red tape to facilitate investment is paramount.”
Chauke said the committee had committed itself to work with Cwele to find workable solutions to the challenges facing the department.
Gigaba resigned from Cabinet last Tuesday following mounting pressure for Ramaphosa to give him the boot.
“I did so after a long period of sustained and vitriolic public attacks on my integrity. I wish to state that my resignation is not an admission of guilt on my part,” Gigaba had said.
He also resigned as a member of Parliament on the same day, but this was only announced three days later on Friday, November 16.
On his resignation from Parliament, Gigaba said: “It was indeed my honour and privilege to have been of service to our people in this high office.
“I am also grateful that my organisation afforded me this honour.”