Jan 19, 2015 - Business Permit    No Comments

South Africa: Returning Zimbabweans Battle With Bureaucracy

15 January 2015
By Tariro Washinyira
Zimbabweans who travelled to Zimbabwe before their Special Dispensation Permits were issued have complained of problems on their return to South Africa after the holidays.
In November Minister of Home Affairs Malusi Gigaba said Zimbabweans can travel freely during the festive season. See article here.
But some returning Zimbabweans have complained that their passports have been stamped with permission to stay for only three to five days.
On 12 August 2014, Gigaba changed the Zimbabwe Dispensation Programme (ZDP) which was launched in 2009 to Zimbabwean Special Dispensation Permit of 2014 (ZSP). ZSP online applications started on 1 October 2014, and closed on 31 December 2014. The department opened Visa Facilitation Services centres in Gauteng, Western Cape, Limpopo and Mpumalanga to administer the ZSPs. R870 is charged per applicant and the permits are supposed to take eight weeks to be issued. First applications were submitted on 1 November 2014.
Dickson Dlamini, 52, originally from Gokwe North, Midlands province in Zimbabwe, went home in December and returned on 31 December 2014 through Martin’s Drift border post. He was shocked when his passport and that of his travelling companion, which should only be stamped once since they are ZSP holders, was stamped twice. On the second stamp, the official wrote “expired 2014″. This has left Dlamini confused about how long he can stay in the country, and whether or not he can enter and exit multiple times.
Dlamini said, “I queried the immigration official decision twice and she told me that she is following instructions from her superiors. To me it is absurd, because only visitors should get two stamps. This will affect my truck business as I have to be in and out South Africa.”
His brother wanted to withdraw money at the bank but was told he could only do it at the ATM because his permit, submitted in November last year, was still pending. This is inconvenient to him because of the limit. He needed a bigger amount to cover the day to day activities of his business.
Taurai Dira (not his real name) crossed to Zimbabwe on 20 December 2014 via Beitbridge border post . On his return on 1 January 2015, he and other Zimbabweans with ZSP applications pending were told they should have returned before 31 December 2014 and were sent back to Zimbabwe.
When Dira returned to Beit bridge on 9 January 2015, he and his fellow Zimbabweans were about to be sent back by the immigration official but a senior Home Affairs official directed her to let them go.
He said, “The official who served me then stamped my passport and gave me 90 days temporary residence expiring on 9 April 2015 while my application is pending. I do not understand why they are confused because they have all the information in their system.”
Home Affairs did not respond to GroundUp’s queries.
But the chairperson of Zimbabwe Community South Africa, Ngqabutho Mabhena, said he had been in contact with the Department of Home Affairs.
“The former DZP holders who were given less than 90 days (3 or 5 days) at Beitbridge when they returned for Christmas should not panic. No one will be charged for overstaying in the country. This has been communicated to the management at the port of entry. There is no need to rush to any Home Affairs office or to the border to get the passport stamped.”
Several people have complained on the Facebook page of the Migrant Workers’ Association SA (MWASA) that their bank accounts have been frozen because of problems with their permits.
MWASA’s Butholezwe Nyathi said he had emailed the Home Affairs ZSP project manager Gerson Muti about the problem. “He asked us to email the names of the people with frozen bank accounts and the names of the banks that are freezing accounts so that he engages them.”
“We can’t gather all the names but we feel it is crucial that we have this issue addressed now because 31 December 2014, which was set as the expiry date for DZP, has passed. If the banks do not get another direct memorandum from Home Affairs, come end of January people’s salaries will be locked up.”
Nyathi said that last year the Department of Home Affairs had promised to send a memorandum to the banks about applicants whose ZSPs were being processed. He said he hoped to meet representatives of the banks soon to resolve the confusion.

Jan 19, 2015 - Business Permit    No Comments

Home Affairs officials not above the law

January 15 2015 at 04:00pm
Home Affairs staff act as though they’re exempt from the law, court judgments and the constitution, writes Carmel Rickard.
Johannesburg – It was a good start to the writing year: a strong, important judgment by a senior judge, expressing his concern about officials of the Department of Home Affairs, who act as though they are above the law.
But the responses from readers over the past week has taken me by surprise.
A few were angry with the people who took up the case – and with my report of the judgment as good news.
Others told of their own horrific experiences at the hands of departmental officials and cheered on lawyers who challenged the department’s violation of the constitution and its values.
If you missed it, this was the story of Edwin Samotse, sought by the authorities in Botswana for alleged murder. He escaped from his home country to South Africa, raising the question how South Africa should respond to Botswana’s request that he be extradited for trial.
Officials of the Department of Home Affairs had three blocks to sending him home, any one of which should have stopped them.
Our highest court says no one may be sent to stand trial in a country where the death penalty applies unless that country agrees not to seek or carry out the death penalty.
Second, the minister of justice and correctional services had issued a certificate barring Samotse’s surrender.
Last, the high court had, in this very case, ordered that he not be returned to Botswana.
Yet the unthinkable happened. Samotse disappeared and his lawyers found he had been extradited – against the law, against a court order and against a ministerial instruction.
For some readers, these are non-issues. He’s a killer, they say, and South Africa shouldn’t be protecting him.
This week I asked the lawyers closest to the case why they got involved in this controversial matter.
Samotse was represented by Legal Aid South Africa, while Lawyers for Human Rights (LHR) worked with Legal Aid SA, playing a key role as a friend of the court and an additional applicant in the matter.
Legal Aid SA’s chief legal executive, Patrick Hundermark, said his organisation took up Samotse’s case “because it is a crucial rule-of-law issue”.
“If you have officials who do not comply with the rule of law, who undermine it, then the way is open for ordinary people to act the same way and take the law into their own hands,” he said.
Achmed Mayet, who heads Legal Aid SA’s impact litigation unit, agrees: “Departmental officials took the law into their own hands when they extradited Samotse despite rulings of the Constitutional Court. The judges said there had to be an undertaking in writing not to seek or impose the death penalty (before there could be extradition). And Botswana refuses to give this undertaking.”
Mayet, who has been involved in similar cases, said Department of Home Affairs officials have shown “a pattern of ignoring the constitution and court judgments”. They wanted to deport Samotse regardless of the law – and they did.
“Some people might say we are defending criminals,” said Hundermark. “But at this stage, Samotse, for example, is merely a suspected criminal.” Like anyone else, he is entitled to a fair trial – and he may be acquitted.
The South African constitution protects “anyone in South Africa”, he added.
Once the highest court has found the death penalty is unconstitutional, that’s it, said Hundermark. “We are legally obliged to deal with the consequences.”
And the consequences are not always predictable. In addition to cases like that of Samotse, for example, Legal Aid SA is fighting the extradition of two South Africans to Botswana for trial because that country does not provide Aids treatment for non-Botswana citizens in its prisons.
If the men – one has Aids and the other a serious TB-related condition – were convicted and sent to jail it “would amount to a death penalty”, Hundermark said.
For David Cote of LHR, the Samotse case warranted involvement because LHR was “extremely concerned” by ongoing official action in direct contravention of two previous Constitutional Court judgments. “The rule of law was clearly implicated,” he said.
LHR was also concerned about the department’s initial attempts to deny responsibility for the illegal extradition.
But though more clarity emerged about who is to blame in Samotse’s case, Cote remains concerned that even the new protocols announced by the department won’t be enough to keep recalcitrant departmental officials in check.
* Carmel Rickard is a legal affairs specialist

The Star

Jan 16, 2015 - Business Permit    No Comments

SA’s dysfunctional work permit system – Mangosuthu Buthelezi

Mangosuthu Buthelezi
15 January 2015

IFP leader writes on the obstacles placed on employers trying to bring in skilled labour from abroad

Dear friends and fellow South Africans,
Having served as Minister of Home Affairs for the first ten years of democracy, I retain a keen interest in migration issues, particularly as they affect the economic growth and development of our country. I was therefore concerned when last year’s legislative amendments to the Immigration Act included a requirement that could only obstruct the entry of skilled workers and ultimately deter investment.
It seems that legislative amendments by the Department of Home Affairs, and delays in administrative justice by the Department of Labour, have ensured that skilled foreigners applying to work in South Africa face a long and uphill battle.
When the Immigration Amendment Act came into effect in May 2014, several immediate problems caught the spotlight. Some were ‘resolved’ by delaying implementation, such as the need to obtain full unabridged birth certificates when travelling with one’s children. Other problems, however, are escalating.
One such problem is the need for work visa applicants to obtain a certificate from the Department of Labour that effectively confirms that no South African could do what they are being hired to do, and that they are not going to do it for less money or under worse conditions than a South African would.
When I entered Home Affairs in 1994, immigration legislation required a complete transformation, for it was predicated on the apartheid mind-set of keeping everyone out unless they fit a narrow and racist description of “desirable”. The laws we inherited were woefully incapable of bringing skills and investment into a democratic South Africa at the speed and to the extent that we both needed and sought.
Among the many challenges and obstacles we were confronted with as we engaged immigration reform was the fact that the Department of Labour was ill-equipped to certify that each and every foreigner applying for a work permit had the required skills and would not be taking a job away from a South African. This had to be determined another way, which was more efficient and shifted the administrative burden onto the employer themselves.
Thus we inserted the requirement for an employer to prove that no suitable South African could be found to fill the position they intended to fill with an appropriately skilled foreigner. This was achieved by advertising the position. The mere fact that an employer would accept a greater administrative burden to employ a foreigner than they would to employ a citizen suggested that a need did in fact exist for the skills that foreigner provided.
Thus, under the legislation I piloted, the Labour certification was removed and work permits were expeditiously issued.
Unfortunately, the Department of Home Affairs has seen fit to bring back the requirement for a certificate from the Department of Labour, while retaining the burden on the employer to advertise and prove the need to employ a foreigner.
Unfortunately, again, the Department of Labour is still ill-equipped to provide certifications and is struggling to cope with a backlog of applications for certificates. Without the certificate, a work visa application cannot be submitted. Thus months are being added onto what is already a drawn out process. Not surprisingly, skilled workers move on, taking their skills where they are both needed and wanted.
But there is an added dimension to the problem at the Department of Labour. On 12 December 2014, the Johannesburg Regional Office of the Department suddenly stopped accepting applications. That section “closed”. A printed notice was simply placed flat on a counter-top saying, “Please note that submission of applications is closed and will re-open on the 12th January 2015. Thank you.”
Nevertheless, on 12 January 2015, applicants were turned away by security who explained that the relevant section was “still closed”.
In terms of administrative justice and the responsibilities of Government, one wonders how an office of a government department can summarily close, without any notice, for a full month, presumably for the holiday season. Is South Africa only interested in economic growth and development for 11 months of the year?
Work visa applicants have had to wait a full month just to be able to request a certificate, and will still need to wait while the backlog of certificates is processed before theirs can be issued. Only then can they apply for the actual visa at Home Affairs.
This, really, is the tail end of a lengthy process, considering that the position must first be advertised and applicants vetted, a police clearance certificate must be obtained, proof of qualifications must be evaluated by SAQA and translated by a sworn translator, and the employer must provide several written undertakings as well as a contract that is conditional on the work visa being granted.
It would be fair for skilled foreigners to question whether Government is intentionally obstructing their entry into South Africa. But it seems more likely that Government has simply fallen into the trap, yet again, of adding more bureaucracy in the misguided belief that it will close all the loopholes. In truth, the greater the administrative burden on Government, the less efficient the process becomes.
If we want greater economic growth and development in South Africa, we need to empower individuals and civil society, rather than deferring all power and responsibilities to the State.
Yours in the service of our nation,
Prince Mangosuthu Buthelezi MP
Issued by the IFP, January 14 2015

Jan 13, 2015 - Business Permit    No Comments

Anti-terror bill a threat to academic freedom, MPs tell Theresa May

• Alan Travis, home affairs editor
• • The Guardian, Monday 12 January 2015

Universities should be exempt from duty, home secretary told by MPs and peers on parliament’s joint human rights committee
Universities should be exempt from a new counter-terror duty that could seriously restrict academic freedom of speech, MPs and peers have told the home secretary, Theresa May.
The warning from parliament’s joint human rights committee comes before the second reading on Tuesday in the House of Lords of May’s counter-terrorism and security bill, which includes powers that could require colleges to ban extremist speakers from campuses.
A Home Office consultation paper issued just before Christmas says universities “must take seriously their responsibility to exclude those promoting extremist views that support or are conducive to terrorism”.
It says university staff will be expected to refer students at risk of being drawn into terrorism to external anti-radicalisation programmes and to challenge extremist ideas, including non-violent extremism, that can be used to justify terrorism.
The scrutiny report by the cross-party committee says extra safeguards to “protect fundamental liberties” are still needed in the bill, which is designed to tackle the threat of suspected British jihadis travelling to and returning from fighting in Syria and Iraq.
Home Office ministers have already indicated that they will include some form of judicial oversight of the home secretary’s new power to issue temporary exclusion orders designed to facilitate the “managed return” of those who are “believed to have engaged” in terrorism abroad.
But ministers have yet to spell out how the concession will work. David Anderson QC, the official terror laws watchdog, has proposed there should be a prior permission court hearing where only “obviously flawed” applications could be refused followed by a shorter and simpler review procedure after the orders have been imposed.
The MPs and peers on the joint human rights committee however go further and say the power to exclude a UK national for up to two years contains “a very real risk that the human rights of UK nationals will be violated”.
They suggest that a process of ‘“managed return” could be better achieved by requiring returning UK nationals who are suspects to provide their travel plans in advance on pain of a criminal penalty if they fail to do so.
But the MPs and peers also express alarm at the proposed extension of the Prevent counter-radicalisation strategy that would see a new duty placed on universities, schools, local authorities and others to “prevent people from being drawn into terrorism”.
Institutions that repeatedly fail to do this face the possibility of a ministerial direction enforced by a court order.
The committee said it was concerned about the implications for freedom of expression and academic freedom.
“Lack of legal certainty over the definitions of terms such as ‘extremism’ referred to in the draft guidance on the use of the power means that universities will not know with sufficient certainty whether they risk being found in breach of the new duty,” it said.
This legal uncertainty will have a “seriously inhibiting effect on bona fide academic debate” in universities.
The MPs and peers say universities should be removed from the list of authorities that the new duty will cover.
Dr Hywel Francis, Labour MP for Aberavon and chair of the committee, said: “As open and rigorous debate about ideas is itself one of the most powerful tools in the struggle against terrorism and the extremism which often breeds terrorism, this is surely counter-productive.”
The Home Office said most universities already had a clear understanding of their Prevent-related responsibilities, including the need to ensure and promote freedom of speech while having due regard for the welfare of students, staff and visitors.
“Institutions already demonstrate some good practice in these areas. We do not envisage the new duty creating large new burdens on institutions and intend it to be implemented in a proportionate and risk-based way,” officials say in the draft guidance.

Jan 12, 2015 - Business Permit    No Comments

South African government declares war on Zimbabweans

Times LIVE | 10 January, 2015 15:44
The Department of Home Affairs has launched a crackdown on illegal South African passport holders intending to enter or leave Zimbabwe through the Beitbridge border post.
According to Limpopo Mirror, the operation, which started on New Year’s Day, mainly targets Zimbabweans who are in possession of South African travel documents after having allegedly acquired national IDs fraudulently.
An official at the Home Affairs department at Beitbridge, who declined to be named, confirmed the ongoing blitz to Limpopo Mirror.
“There is nothing new about the exercise; it is a just routine operation that Home Affairs conducts every year, especially after the festive season, to flush out foreigners who fraudulently acquired South African passports. There is a special team which was deployed to Beitbridge by our head office to conduct the exercise,” said the official.
One of the affected Zimbabweans using a South African passport said that when he arrived at the immigration counters, a female official started questioning him.
“She then took my passport and gave me a form to complete, saying she doubted whether I was a genuine South African. I was ordered to go back to Zimbabwe.”

Jan 12, 2015 - Business Permit    No Comments

Home Affairs officials forced to respect the law

Published in: Legalbrief Today
Date: Friday 09 January 2015

For many years, officials of the Department of Home Affairs have ‘acted as though they are governed by a different system to the rest of us, flouting court orders with impunity’, says legal commentator Carmel Rickard, in an analysis in the Cape Times.

However, she argues that following the ruling in Samotse and Another v Minister of Home Affairs and Others by Judge Eberhard Bertelsmann, the department’s officials ‘might finally begin to respect – or at least not flout – our supreme law’. The case involved Edwin Samotse – a Botswana citizen – wanted in his home country on charges of having killed his girlfriend. He was extradited to Botswana without an undertaking in writing that the death penalty would not be sought in his case, and the officials who deported him did so despite a clear non-extradition order issued by SA’s Minister of Justice and Correctional Services. They also ‘blatantly ignored’ an interdict by the Gauteng High Court (Pretoria) as well as other previous court decisions spelling out that extraditions were illegal without the required undertaking not to seek the death penalty. Acting for Samotse, Lawyers for Human Rights went to court in August. In December, Bertelsmann delivered a decision examining a report on how the illegal extradition was allowed to happen and another report on what would be done to prevent such a thing happening again. A new system will ensure better communication between the department’s dealing with a suspect being sought by another country. Officials of the Department of Justice – responsible for issuing an order that the person not be extradited – will communicate directly with its counterparts in the Department of Home Affairs. The SA Human Rights Commission will be informed of each such case and invited to consult potential deportees to ensure their fundamental rights are not unlawfully infringed. Furthermore, every immigration official will undergo a six-week training course on lawful arrests, lawful search-and-seizure, prevention of fraud and corruption, and giving evidence in court, among others. Officials will also be given a booklet on the approved procedures and key court decisions affecting immigration officials.
Full analysis in the Cape Times
Samotse and Another v Minister of Home Affairs and Others (60113/2014)

Jan 12, 2015 - Business Permit    No Comments

Zimbabwe: No U-Turn On SA Permit Deadline

The Herald – By Lovemore Mataire and Thupeyo Muleya
South Africa is unlikely to extend the deadline for submitting Zimbabwe Special Permits applications for over 40 000 people who missed the December 31 deadline, Zimbabwe’s ambassador to South Africa Isaac Moyo said yesterday.
This comes as South Africa on Tuesday started deporting Zimbabweans who have been staying in that country illegally.
In a telephone interview, Ambassador Moyo said although he was yet to meet top South African Home Affairs officials, indications were that they would not extend the deadline.
“Indications are that their decision is final and they will not extend the deadline. Our Minister of Home Affairs Cde Kembo Mohadi made a similar request the last time he met with his South African counterpart, but they told him that the deadline would not change. So yes, I will meet them just to get a clearer picture of what’s going on but I don’t see them changing.”
Ambassador Moyo castigated dubious organisations purporting to represent Zimbabweans in South Africa, saying their actions complicated diplomatic efforts by the embassy.
At least 40 000 Zimbabweans who missed the deadline to apply for the Zimbabwe Special Permits risk deportation if the South African government does not change its mind.
It approved the new permit on August 6 last year following engagements with Zimbabwe’s Minister of Home Affairs.
Its Department of Home Affairs started processing online applications on October 1 and stopped on December 31 last year.