A parallel, shadow regime has hijacked control of SA’s borders

20 May 2018 – Sunday Times
Malusi Gigaba’s Border Management Authority Bill would be a silent coup, seizing powers from other departments for the use of top home affairs managers
Contrary to common belief, South Africa’s borders constitute the most valuable of all state assets on the country’s balance sheet. Their capture is tantamount to the control of South Africa’s sovereignty.
All immigration systems aim to protect the physical and legal parameters that define a country’s sovereignty. In South Africa’s case, the extent to which our borders are modulated to enable the influx of foreigners is controlled by the Department of Home Affairs, with executive authority vested in Minister of Home Affairs Malusi Gigaba.
It is increasingly clear that the department’s managerial “complex” — which might be said to extend from the minister to an established group, including director-general Mkuseli Apleni, deputy director-general Jackson McKay, and the chief directors of its directorates, such as the immigration inspectorate, counter-corruption and legal services — does not operate solely within the ordinary legislative and constitutional framework. It appears to operate also in a parallel, shadow decision-making realm.
The home affairs complex has captured South Africa’s borders in a quiet coup that has escaped the scrutiny of the public protector and observers.
Control of our borders was ultimately wrested by the Department of Home Affairs from more than 18 state departments and parastatals, including SARS, by Gigaba’s championing of the Border Management Authority Bill. When the bill was debated in parliament in May 2017, DA spokesman on home affairs Haniff Hoosen called it “one of the worst pieces of legislation that has come before the house”, and an attempt to create yet another entity that could be captured by the greedy and corrupt in power.
The department’s legislative mandate gives it responsibility for little more than passport control at ports of entry. Should the Border Management Authority Bill be passed by the National Council of Provinces this year, it will place a monopolistic control of all border-related matters — including defence, policing, customs revenue collections and VAT rebates, and the movement of all goods and the 40 million people entering and exiting the country — in the hands of home affairs.
Alongside the growth of a shadow state within the constitutional democratic structure, a second tier of our borders’ modulation has taken place, outside of the mundane implementation of immigration legislation. This has been achieved by the home affairs complex and its “fixers” and “enforcers” embedded in the home affairs bureaucracy.
While various home affairs ministers — including Nkosazana Dlamini-Zuma and Gigaba — have been publicly (and loudly) preoccupied with the eradication of corruption from the ranks of the department and civil society, this was nothing but a ruse to divert attention from the creation of a shadow decision-making authority within the department.
The extraordinary stagnancy with which home affairs management pursues corruption cases brought to its attention reveals that this is nothing more than a veiled reluctance to enforce its “zero-tolerance” policy.
The first phase of the capture of our borders and immigration system began with Dlamini-Zuma’s deployment of cadres as enforcers of a restrictive immigration policy. In 2010, with the centralisation of decision-making on all immigration and citizenship applications, a new approach to immigration control was predicated on the fabricated scourge of human trafficking. This morphed into the enactment of stringent immigration legislation in 2014, effectively closing our borders to foreigners.
The pattern of gross inefficiency and administrative bungling in home affairs’s handling of citizenship and immigration applications is inextricable from the “designed chaos” that has been widely observed. Compliant applications are frequently rejected; appeals and ministerial exemption applications are stymied by red tape to the extent that corruption often seems the only remedy for those desperate enough.
The system of immigration administration now predicates itself on a dangerous duality of standards of administrative justice while the home affairs complex remains entrenched. This complex has artificially manipulated policies, procedures and access to efficient decision-making for purposes other than preserving the integrity of the legislative apparatus. The closure of the borders to everyone creates an opportunity to modulate their opening to those willing to pay a higher price.
One such example is the politically preferential treatment granted to a senior member of the Popular Front for the Liberation of Palestine, Leila Khaled, a “prohibited” person in terms of our immigration legislation. Gigaba himself went to the airport as part of her welcoming committee. The only way Khaled could have lawfully entered South Africa was for her prohibition to be lifted by the director-general with “good cause”. Her entry was facilitated by the home affairs complex without any public explanation.
Later that year, in June 2015 and against a court order, Sudanese President Omar al-Bashir escaped an international arrest warrant by departing from South Africa through Air Force Base Waterkloof. His passport was not examined by immigration officers. This is an indisputable case of political rent-seeking at the behest of the executive authority, with the full cooperation of a willing complex of officials.
If this is the benchmark for administrative justice, how can ordinary people — including foreigners subject to the Immigration Act — be held to a different standard? How can a regime of law exist with integrity when access to administrative justice is only possible through a shadow decision-making authority outside of the rule of law?
This principle cannot be more poignantly articulated than in the celebrated words of US Supreme Court Justice Louis Brandeis: “If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.”

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