Browsing "Citizenship"

Pay up and your criminal record for some offences could be ‘expunged’, proposes new law

The Criminal Procedure Amendment Bill seeks to **expunge certain criminal records that result from an admission of guilt payment.

Justice and Correctional Services Minister Ronald Lamola said the     C**ovid-19 pandemic put the brakes on the introduction of the  legislation.*

* *The bill will be out for public comment next month.*

South Africans who have paid an admission of guilt fine for trivial offences will no longer have to worry about incurring a criminal record. That’s if Justice and Correctional Services Minister Ronald Lamola has his way with the Criminal Procedure Amendment Bill that seeks to expunge certain criminal records that result from an admission of guilt payment.

In response to ACDP MP Steve Swart’s written parliamentary question on when the government will introduce legislation preventing an admission of guilt fine from incurring a criminal record, Lamola said his department was addressing the matter through the amendment bill.

“The amendment bill has unfortunately been delayed because of Covid-19,”Lamola added.

At present, Section 57 of the Criminal Procedure Act (CPA), provides for the admission of guilt in respect of the offence and for the payment of a stipulated fine without an appearance in court.

Section 57A of the CPA provides for the admission of guilt and the payment of a fine, after appearing in a court, but before the accused has entered a plea.

“In terms of Section 57(6) of the CPA, where a fine was paid, the money, together with the summons or written notice to appear must be forwarded to the clerk of the magistrate’s court which has jurisdiction, and the clerk must complete the criminal record book for admissions of guilt, whereupon the accused is deemed to have been convicted and sentenced by the court in respect of the offence in question.

“The immediate practical effect of paying an admission of guilt fine is that the accused is excused from court appearance and upon completion of the formalities as prescribed in Section 57(6), deemed to have been convicted and sentenced by the court in respect of the relevant charge,” he said.

Lamola also said not all admission of guilt fines attracted a criminal record. “Section 341 of the CPA provides for the compounding of certain minor offences and for the payment of a fine in respect of minor offences [which] relate to by-laws and minor traffic offences. The payment of a fine in terms of Section 341 of the CPA does not attract a previous conviction.

“In short, the CPA allows magistrates to set an amount on the spot on the admission of guilt.”

“It is also worth noting that, since this is a judicial function, our department has had engagements with the chief magistrates to try to get uniformity on such fines. There appears to be uniformity within magisterial clusters, but not necessarily uniformity between clusters,” Lamola said.

In May, the National Prosecuting Authority declined to prosecute about 25% of lockdown offences Acting Deputy National Director of Public Prosecutions Rodney de Kock told the Portfolio Committee on Justice and Correctional Services that 25% of the dockets of lockdown offences were not enrolled.

For the majority of the offences, offenders were given a later court date. He said a draft legislative proposal, in the form of the bill, would revise the current admission of guilt fine “as provided for in the CPA”.

This will provide for:

* The payment of fines that do not give rise to a previous conviction;

* The payment of admission of guilt fines that do give rise to previous convictions;

* The expungement of certain criminal records that results from  admission of guilt fines;

* The expungement of criminal records that result from admission of  guilt fines that have been paid in respect of trivial offences  before the enactment of the proposed law;

* A process to identify and prescribe the offences, subject to parliamentary approval, that will be subject to the payment of fines that do not give rise to a previous conviction; and

* A bettered review process in respect of the payment of admission of  guilt fines that do give rise to previous convictions.

Lamola said the legislative proposal was at an advanced stage of completion and that a bill would be out for public consultation next month.

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ConCourt: Children Born in South Africa to Foreign Parents Can Apply For Citizenship

It has taken four years of legal battles – but now, if you were born in South Africa to foreign parents, you can apply for citizenship. It has been an “agonizing journey” for those who consider South Africa to be their only home.

The department of home affairs’ opposition to the court bid by five adults, representing others in a similar situation, for the vindication of their rights, was dealt a death blow by the Constitutional Court last week. The court simply ruled that it would not hear any further argument on the matter.

The department had not filed its papers in time, and it had not given good reason for this. What this means for Mariam Ali, Aden Salih, Kanu Nkololo, Caroline Masuki, Murphy Nganga and any others “similarly situated” is that their previous victory in the Supreme Court of Appeal (SCA) now stands.

In terms of that order, the minister must accept their applications for citizenship and make a decision within 10 days.

The SCA declared that if you were born in South Africa to foreign parents who have not been admitted as permanent residents, you qualify to apply for South African citizenship upon becoming a major – if your birth was registered and if you have lived here all your life, irrespective of the date of your birth.

It also ordered the minister to enact the necessary forms to allow for such applications within one year. Pending this, he must accept applications on affidavit. The application, brought with the assistance of the Legal Resources Centre (LRC), was first set down in the Western Cape High Court.

It was argued that the centre’s clients had all complied with the Citizenship Amendment Act, which came into effect in January 2013. They were all born in South Africa to foreign parents and they had all turned 18, but their applications for citizenship under naturalisation laws were being refused.

In fact, they said, they were being told that such an application form did not even exist.

In that court, the minister argued that the act only applied to children born after January 2013 and could not be applied retrospectively. In fact, his lawyers argued, it did not even apply to children who turned 18 after that date but only to children born after that date.

Any retrospective application would create “an unnecessary flow of applications and burden the already strained resources of the department”. The Western Cape High Court ruling in favour of the centre’s clients was taken on appeal to the SCA by the minister.

There, the department of home affairs changed its argument. Retrospectivity was no longer an issue. Instead, it was argued that those affected should have put the minister on terms to deal with their applications and, if they were refused, they could then launch court proceedings to review and set aside the decisions.

“But this was untenable,” the judges said. “It is difficult to understand on what basis the minister could have made any decision. They were never given an opportunity to apply. They were just turned away.

“The argument is consistent with the ongoing attempts to frustrate and delay their application. It is not in the interests of justice to send them from pillar to post, simply because the minister adopted a supine attitude that the regulations will only be promulgated in due course.”

They were being treated unfairly, the court ruled, dismissing the appeal. Sherylle Dass, LRC regional director in Cape Town, said they had opposed the state’s application for leave to appeal to the Constitutional Court, saying it was an attempt to have a “second bite of the cherry” in spite of conceding the bulk of their submissions in the lower courts.

“Despite these concessions, some 10 months later, the state decided to change its stance. We believed it was an abuse of process. They plainly had no reasonable prospects of success and again it showed a total disregard for taxpayers, who have to foot the bill for these types of vexatious proceedings.”

She said that during those 10 months, when there was no indication of any appeal, the clients had submitted their citizenship applications but they were not dealt with.

“Following the dismissal of their appeal, we will now be demanding the adjudication of those citizenship applications and we will approach the courts if necessary, should a decision not be made within 10 days, in accordance with the SCA ruling.

“Our clients have had to endure a long and painful journey to obtain citizenship, with some of them all but giving up hope of being finally accepted by a country they have grown to love – the only country they have called home.

“A large part of this agonizing journey could have been avoided if decision makers within the department of home affairs exercised reason and caution by not arbitrarily abusing the court processes to delay and frustrate the exercise of the clear and unequivocal right of these applicants.

 

 

Minister of Home Affairs v Miriam Ali and Others [2018] ZASCA 169 (SCA) (Case no. 1289/17, Supreme Court of Appeal – Court Order Date: 30 November 2018)

2.1 The matter pertains to the interpretation of section 4(3) of the South African Citizenship Act 88 of 1995 (amendment that came into effect on 1 January 2013) in which the main issue was whether or not the section applies with retrospective effect and further is the respondents (on appeal) satisfy the requirements of citizenship by naturalisation. The question was whether in the absence of Regulations, the High Court was correct in directing the Minister to accept applications on affidavits as the order encroached upon the doctrine of separation of powers.

 

2.2 The Supreme Court of Appeal issued the order that:

 

“The Minister shall –

3.1 Within one year of the date of this order make regulations in terms of s 23(a) of the South African Citizenship Act 88 of 1995 (the Act) in respect of applications for citizenship by naturalisation in terms of s 4(3) of the Act;

3.2 Pending the promulgation of the regulation in 3.1 above, accept applications in terms of s 4(3) South African Citizenship Act 88 of 1995, on affidavit.”.

Why has his department not fully complied with the court order?

2.3 The DHA was advised to approach the Constitutional Court (“CC”) as the Order of the SCA had the effect of encroaching upon the subordinate legislative powers of the Minister. The CC declined to hear the matter largely because the DHA delayed in launching the appeal proceedings.

What steps have been taken to fully comply with the order?

2.3 The draft Amendment Regulations to deal with the procedure and requirements for making an application have been prepared and finalised. However, the draft Amendment Regulations must be published for public comments before they are promulgated and due to the National State of Disaster, especially the period between 26 March 2020 and early July 2020, a decision taken was that the DHA may not be able to obtain the adequate public comments due to lockdown Regulations. The draft Amendment Regulations ha been gazetted for public comments.

2.4 The applicants have been issued with certificates for citizenship by naturalization.

By what date will his department fully comply with the order?

The DHA will fully comply by 15 September 2020.

www.samigration.com

 

These critical skills are in high demand in South Africa

The Department of Higher Education and Training has published its draft list of Occupations in High Demand which aims to establish the skills most in-demand across the country.

The significance of the list is that it will form the basis for the updated critical skills list by the Department of Home Affairs, which contains all the skills deemed in short supply in South Africa, said Xpatweb’s Marisa Jacobs.

Jacobs said that any person who fits the list’s criteria may qualify for a work visa, under the critical skills visa category, as per the Immigration Act.

While the last Critical Skills List by the Department of Home Affairs was published in 2014, and is currently under review, Xpatweb’s own data shows that there are a number of in-demand skills which are currently not covered.

Jacobs said that this includes:

  • Several categories of ICT specialists and engineers;
  • Foreign language speakers;
  • Chefs;
  • Winemakers;
  • Tobacco grades;
  • Tour guides;
  • Nurses;
  • Riggers;
  • Actuaries; and
  • Software engineers.

“There is a continued lack of critically skilled individuals available in South Africa and thanks to survey participants, we are able to guide the government’s critical skills list and help shape the decisions that will help local businesses reinvigorate the economy,” said Jacobs.

According to CareerJunction, the three most in-demand skills in the country at the moment are software developersmiddle/department managers and representatives or sales consultants.

Despite a decrease in hiring activity for software developers during the last four months, programming and software development skills remain the most in-demand skill set in the local labour market, the group said.

“Demand for managerial skills is showing consistent growth over the past two months. After a dip in demand in the second quarter of 2020, hiring activity increased by more than 60% since May.

“Aside from diminished recruitment activity in the current economic climate, recruitment activity for sales consultants and representatives grew by 30% since May 2020.”

High demand

Jacobs said that the skills list is important as an increasing number of skilled South Africans have expressed a desire to emigrate, meaning local companies need to recruit internationally for these critical skills.

“There is a growing concern among many South Africans that skilled people are leaving the country in droves, choosing to relocate to New Zealand, Canada, the UK, Australia and Mauritius to name a few, she said.”

Jacobs said that any discussion about emigration numbers is complicated by the fact that there is no official bureau in South Africa that collects emigration data.

“Resources from Stats SA, the United Nations International Migrant Stock database, and National statistics offices (NSOs) of foreign nations, however, suggest that upwards of 23,000 people per year are emigrating from South Africa.

“People who are emigrating are often skilled and experienced, which is why they can find work abroad. Skills are globally sourced for the economic benefit of those countries, and South Africa has to compete for scarce skills.”

www.samigration.com

Even with open borders, SA remains red-listed by many countries, and tourists may not come

 

  • South Africa is reopening its borders, at least partially, soon.
  • But that doesn’t mean foreign visitors will immediately stream into the country.
  • Despite relatively low and dropping new coronavirus case numbers, SA remains red-listed by many countries, which means quarantine for those who travel here when they return home.
  • SA now has to decide whether to accept risky tourists, as the tourism industry looks toward a multi-year recovery.

 

President Cyril Ramaphosa announced on Wednesday that South Africa will open its borders to internationally tourists in October – with some caveats.

But that doesn’t mean they will come. South Africa remains on many so-called red-lists as far as leisure travel goes, even as infection numbers drop.

Depending on the country’s specific system and requirements, this means that although South African borders may be open for leisure travel, those who come could be subjected to mandatory quarantines on their return.

The most significant overseas contributors to local tourism come from the United States, United Kingdom, Germany, The Netherlands, and France. Although South Africa’s coronavirus situation is improving, none have yet placed SA on list of countries that do not require at least self-isolation upon return.

That could be an issue, says South African Tourism CEO Sisa Ntshona.

“Home-country quarantines are a barrier.

But he is hopeful, considering the rapid change in new infections reported in South Africa.

“According to UK criteria we were in the red zone last week, but we’ve now moved into the amber or yellow zone, and projections are that we are going to move into the green zone within the next two weeks,” says Nsthona.

The methods used to determine these red zones or lists vary from country to country.

The United Kingdom and Germany, for example, use a variety of factors to determine a country’s status – but primarily looks at the infection rate over the previous seven days, to arrive at an estimation of active cases.

In the case of the United Kingdom, infection levels must be below 20 new cases per 100,000 of the population over the previous seven days. In Germany, this figure is 50 new cases per 100,000 over the last week.

According to the most recent data, South Africa is reporting approximately 18.58 new cases per 100,000 per week – well within Germany’s threshold, and just under the United Kingdom’s.

Even so, most countries that the South African tourism sector is heavily reliant on have yet to ease restrictions.

According to the German mission in South Africa, at present, “given the Covid situation in South Africa, Lesotho and Eswatini, these countries currently do not belong to the list of countries, where travel restrictions could be eased”.

The same is true for the United Kingdom – which has dropped isolation requirements for residents returning from some 66 countries – but still requires them for visitors from South Africa.

The Netherlands has a slightly softer stance; that country’s government “strongly advises” travellers returning from several destinations, including South Africa, to self-quarantine at home or in temporary hotel accommodation for 10 days upon arrival in the Netherlands.

These zones are a moving target, which Ntshona says makes planning difficult.

“This calibration is done on a weekly basis, so all of this can change if suddenly numbers spike up,” he says.

Because of this much of his organisation’s focus will be on countries in Europe that are a relatively easy night flight away.

“Many people argue that South Africa is a long-haul destination, but we’re arguing that it’s an overnight flight away, especially for Europe. So we are now looking to position ourselves as an overnight flight destination, so we can get into the shorter term type of booking,” says Ntshona.

Ntshona also says that given the constantly shifting patterns of Covid-19 infections, it may well lead to travellers taking more spontaneous trips.

But with many European Union countries allowing relatively unrestricted internal travel – and with no requirement to self-quarantine upon return – it may prove a difficult sell to get these visitors to venture further than a regional trip.

Nsthona believes these issues are not insurmountable, but require countries to remain agile as Covid-19 infection numbers rise and fall.

“We’ve seen the turmoil between the UK, France and Spain, where UK tourists were already in Spain, and then suddenly were subjected to a 14 day quarantine on return because of Spain’s changing status. That complicates plans,” he says.

Ntshona believes South Africa could be in many countries’ green zones by early October.

“We’ve already seen the likes of Switzerland move us into the green zone as well, so essentially we’re moving into the right space,” he says.

According to Switzerland’s Federal Office of Public Health, South Africa is no longer on that country’s mandatory quarantine list, as of Monday.

South Africa, in turn, will have to decide whether to welcome visitors that may bring a resurgence of the virus.

“The question is, is South Africa as a country willing to accept that travellers from red zones, who bring their own risk?” asks Nsthona.

Even with open borders, and the possible arrival of some international visitors, there’s little chance of recovering anything close to the usual international traveller spend in South Africa.

“We’ve estimated that it will take us 24 to 30 months in order to restore to 2019 levels of activity, so it’s a two and a half year recovery,” he says.

Business Insider – 16 September 2020

www.samigration.com

Flying internationally from South Africa – here’s what to expect

The Airports Company South Africa (Acsa) has welcomed the country’s move to a level lockdown and says that it is prepared for the gradual lifting of restrictions on international flights but has warned that passengers will need to jump through extra hoops if they plan on travelling.

Addressing the nation on Wednesday evening (16 September), president Cyril Ramaphosa said that the government will gradually ease restrictions on international travel for business and leisure from 1 October – subject to certain containment measures.

International travel will only be allowed through the main border ports or through OR Tambo International, Cape Town International, or King Shaka International.

Acsa said it is still awaiting official regulations and directives from the Department of Transport which are set to be published in the coming days.

However, it reiterated comments by president Cyril Ramaphosa and warned that travellers need to be absolutely certain of their eligibility to fly and that they are in possession of valid visas to enter or re-enter South Africa before booking flights.

It added that the following requirements will need to met:

  • On arrival, travellers will need to present a negative Covid-19 test result not older than 72 hours from time of departure;
  • All travellers will be screened on arrival and those presenting with symptoms will be required to have Covid-19 test; and
  • Where necessary, travellers will need to enter mandatory quarantine facilities at their own cost.

“People wishing to travel across borders should monitor our ACSA website for airports and airlines operating during Level 1 and the airline web sites for availability of flights,” it said.

“We expect the number of international passengers to grow gradually as this is an important step on the road to recovery. We greatly look forward to once again welcoming international visitors to our international airports and to South Africa.”

The list 

The list of countries that will be allowed for international travel is likely to be limited when travel restarts again on 1 October. Ramaphosa said that the list of permitted countries will be published at a later date and the country’s selected on the latest scientific data.

While not mentioned in his address, reports indicate that travel will likely focus on regional travel, including neighbouring countries and parts of Africa.

Tourism minister Mmamoloko Kubayi-Ngubane has indicated that her department is focusing on creating a ‘regional travel bubble’.

“Our next step is to work towards the reopening of international travel,” she said in a media briefing on 4 September. “We are monitoring the risk of the virus spread and we are satisfied with the current downward trend of new infections, if sustained, can fast-track the reopening of regional borders soon.”

In this way, through regional coordination with our regional partners, we could create a regional travel bubble, she said.

“Africa land markets form the bedrock of tourism in South Africa. This region alone accounts for 71% of international arrivals. This would give a further boost to the recovery efforts of the sector.”

“The rise in domestic tourism together with regional travel will help us build confidence for global travellers so that when we eventually open all are borders, we will be able to attract traveller as a safe destination.”

What it will be like to fly 

Government already has strict rules in place for domestic travel, with clear regulations for both airports and airlines.

Passengers are allowed inside the terminal buildings and that temperature screening will be conducted at terminal building entrances before any passenger is allowed entry. No passengers will be allowed inside the terminal buildings without masks.

All the airports have markings on the floor for social distancing of 1.5 metres. This will be applicable at check-in counters, security checkpoints and airport lounges.

All airline check-in agents will wear face shields and the counters will be installed with protective screens. Check-in counters will also be frequently sanitised.

The check-in process is as follows:

  • Passengers should check-in online before going to the airport;
  • Online check-in can be done at the screens in the terminal building;
  • A limited number of check-in counters will be open and physical distancing rules will apply in these queues;
  • Using a check-in counter will take longer.

The security checkpoint process is as follows:

  • Passengers will scan their own paper-based or mobile device-based boarding pass to the scanner at the security checkpoint;
  • Passengers should remove any metal and electronic items from their person before entering the security queue;
  • These items must be placed in the tray at the security scanner;
  • This process will minimise the need for security officers to conduct physical pat-downs at the checkpoint.

The boarding process is as follows:

  • Physical distancing rules apply for queues to board an aircraft;
  • Passengers must scan their own boarding pass at the boarding gate;
  • Boarding will be done in a controlled manner with passengers travelling in the rear seats of the aircraft boarding first. Passengers with tickets for Row A, for example, will board last;
  • Masks must be worn for the duration of the flight.

The following measures will apply inside the cabin of the aircraft:

  • No catering will be allowed:
  • No magazines on board;
  • The last row will be reserved for isolation of suspected cases.
  • All aircrafts must be disinfected before entering into service and after each flight.

The disembarkation process will be as follows:

  • Masks must continue to be used when disembarking and moving towards the baggage carousels;
  • Physical distancing rules will apply at the baggage carousels;
  • Crowding close to the baggage carousels will not be permitted

 

www.samigration.com

Briefing to resolve Cape refugee issue delayed to mid-October

Cape Town – The matter of the refugees currently housed in two tented camps in Cape Town took a turn on Tuesday after Parliament’s portfolio committee on home affairs was forced to postpone a briefing to discuss the issue.

The scheduled meeting between the committee, the City, the South African Human Rights Commission (SAHRC), the Department of Home Affairs and the UN High Commissioner for Refugees (UNHCR) to discuss the situation was scrapped after MPs rejected the late submission of presentations by all the groups except for the UNHCR.

The City did not submit a report and its representative, Mayco member for community services and health Zahid Badroodien, said: “We must express the confusion with which we received the invitation.

“The confusion for us is that as a local authority we have very little responsibility over refugees per se, so it was not very clear to us what you were requesting in a report from the City.”

Acting chairperson of the committee, Mosa Chabane, praised the UNHCR for submitting its report on time, but was “perturbed” by the lateness of the others.

“It is concerning that the City appears to want to absolve themselves from the matter, when the committee was unequivocal that a collaborative effort was necessary to deal with the issues of the refugees at the Green Market Square,” said Chabane.

“We are cognisant that all spheres of government have specific roles and responsibilities.

“However, we were clear that the relevant stakeholders must work together to resolve the matter.

“It is in this context that the committee expected a briefing from the City, but the City’s attitude undermines intergovernmental relations and the standing of the portfolio committee.”

Members of the committee were unanimous in their condemnation of the the City, the SAHRC and the department. The standing rule in Parliament is that presentations be sent to MPs at least 48 hours earlier.

The Department of Home Affairs’ report was received on Monday. Home Affairs Minister Aaron Mosoaledi apologised for the tardiness.

“I wasn’t aware that my report was received late … even though I had given instructions for the report to be sent. If they sent it late, I wish to apologise profusely. I have always respected the committee,” said Motsoaledi.

The committee has resolved to defer the matter to mid-October to get a comprehensive report individually and jointly from all relevant stakeholders on the matter.

www.samigration.com

SA’s borders open on 1 October. Here’s what we know about the rules for tourists.

 

  • South Africa’s borders will open for tourists – inbound and outbound – on 1 October, President Cyril Ramaphosa announced on Wednesday night.
  • But there are caveats, including that some countries may be red-listed based on their coronavirus statistics.
  • Those arriving need to show a recent negative test for Sars-CoV-2, and should install a government contact-notification app.
  • Here’s what we know about the rules for international travel into and out of South Africa under Alert Level 1.

South Africans will be able to go on holidays abroad and inbound tourists will be welcome again from 1 October, President Cyril Ramaphosa announced on Wednesday night.

South African missions abroad will be opening for visa applications, he said.

“We are ready to open our doors again to the world and invite travellers to enjoy our mountains, our beaches, our vibrant cities, and our wildlife game parks in safety and confidence.”

But there will be some caveats.

Only three airports will be open to foreign travellers: Johannesburg’s OR Tambo, Cape Town International, and King Shaka outside Durban. Overland travellers will be restricted to one of the few border posts that remained open during lockdown.

Travel to and from some countries may be restricted, Ramaphosa said, “based on the latest scientific data we can get on those countries”. He did not provide details of the metrics South Africa may use for such red-listing.

Travellers will have to present, on arrival, the result of a negative coronavirus test less than 72 hours old. If they can not do so, they “will be required to remain in mandatory quarantine at their own cost”.

Everyone arriving will be screened, and those who show any symptoms of Covid-19 will also be required to stay in quarantine until they test negative for the virus again.

Travellers “will be asked” to install the South African government contact alert app, Ramaphosa said.

SA remains red-listed by some countries – despite meeting delisting criteria

The methods used to determine “red zones” or lists of those required to quarantine, vary from country to country.

The United Kingdom and Germany, for example, use a variety of factors to determine a country’s status – but primarily looks at the infection rate over the previous seven days, to arrive at an estimation of active cases.

In the case of the United Kingdom, infection levels must be below 20 new cases per 100,000 of the population over the previous seven days. In Germany, this figure is 50 new cases per 100,000 over the last week.

According to the most recent data, South Africa is reporting approximately 18.58 new cases per 100,000 per week – well within Germany’s threshold, and just under the United Kingdom’s.

Even so, neither country has yet removed South Africa from its red lists.

www.samigration.com

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