Asylum Transit Visas, Refugee Directives

QUESTION 3399 / NW4083E


DATE OF PUBLICATION: Friday, 04 November 2011
INTERNAL QUESTION PAPER NO 36 of 2011


Mrs A T Lovemore (DA) to ask the Minister of Home Affairs:






(1) Whether she or any official of her Department has issued a directive or similar instruction or guideline (a) identifying non-refugee producing countries and (b) that persons from such countries approaching Refugee Reception Offices may not be allowed the opportunity to apply for asylum; if so, (i) what are the details of the directive or guideline and (ii) on what legal grounds was it issued;






(2) whether she or any official of her Department has issued a directive or similar instruction or guideline that persons who are not in possession of asylum transit visas (details furnished) approaching Refugee Reception Offices may not be allowed the opportunity to apply for asylum; if so, (i) what are the details of the directive or guideline and (ii) on what legal grounds was it issued;






(3) whether she has been informed that the Durban Refugee Reception Office does not accept applications for asylum from Bangladeshi nationals unless they are in possession of asylum transit visas; if so, what action (a) has she taken in this regard and (b) does she intend to take with regard to approximately 150 affected asylum seekers (details furnished)?


NW4083E






REPLY:






(1)(a)&(b) No.






(2) No.






(3)(a)&(b) No. However, the allegations were investigated. The Durban Refugee Reception Office (DRRO) confirmed that it does accept applications from Bangladeshi nationals, even, when they do not have Asylum Transit Visas. This practice is, also, applied to, all, other nationalities. However, the DRRO prioritises applicants with Asylum Transit Permits, followed by those without Asylum Transit Permits, or without any form of documentation.












http://www.pmg.org.za/node/26575


http://www.pmg.org.za/node/26575

Access of NGOs to Asylum Seekers

QUESTION 3760 / NW4550E


DATE OF PUBLICATION: Friday, 25 November 2011
INTERNAL QUESTION PAPER NO 41 of 2011


Mrs A T Lovemore (DA) to ask the Minister of Home Affairs:






(1) Whether her Department has ceased allowing representatives of Non-Governmental Organisations (NGOs), such as Sonke Gender Justice Network, to access asylum seekers at Refugee Reception Offices with the aim of assisting their integration into society; if not, what is the position in this regard; if so, (a) why, (b) when did this prohibition come into effect and (c) at which offices is this prohibition in effect;






(2) whether her Department implements any measures to assist with the integration of asylum seekers into local society; if not, why not; if so, what are the relevant details of such measures?


NW4550E






REPLY:






(1)(a) No. NGOs are allowed access into the Refugee Reception Centres, once, they have submitted formal written requests with sufficient motivation to do so. The requests will be carefully scrutinised, and permission will be granted to the NGO, if it meets the criteria. This is to ensure the protection of Asylum Seekers, and Refugees, and to regulate the operations of the Refugee Reception Offices to ensure that there is order, and efficiency in operations.






(1)(b)&(c) The provision for NGOs to submit a written request for access to the Cape Town Refugee Reception Office came into effect in August 2011.






(2) The Department’s mandate is to issue documentation to Asylum Seekers, and recognised Refugees to regulate their stay in the RSA. Presently, there are no measures in place by the Department to assist with the integration of Asylum Seekers into local society, as the current legal framework only requires the Department to give access to asylum procedures, and issue temporary Asylum Seeker Permits to sojourn in the RSA, pending the applicant’s status determination.









http://www.pmg.org.za/node/26575

Is Home Affairs cultivating xenophobia?

2010 08 05  The Star

W HEN we wake up to tempera­tures of -13°C in the south-east Free State it's hard to believe that anywhere in South Africa could possibly be colder. But the tiny Eastern Cape dorp of Molteno claims the lowest officially recorded temperatures. Those records were not an isolated blip - the mountainous Stormberg area is consistently so cold in winter that even hardy Nguni cattle do not thrive there. Unexpectedly, since farming communi­ties are famed for their hospitality, the weather has not been the only coldness experienced by Zimbabwean teacher Zwelani Ncube. A qualified English language teacher, he applied for a job advertised in October 2007, and was appointed to teach English at Molteno High School. Since then, however, Ncube has had noth­ing but the cold shoulder from officials of the Department of Home Affairs in his efforts to get a work permit. In fact, Judge Elna Revelas, who handed down a decision concerning Ncube last week, fornied the view that two officials in the Queenstown office did everything they could "at every possible opportunity" and on "personal and irrational considerations" to thwart Ncube. His problems began the day the school handed over the documents needed for Ncube's work permit application. His passport was confiscated there and then, and he was informed that he did not qualify because he had not submitted cer­tain documents - even though these were not on the list of documents required by the department. That was just the start. The two officials fingered by the court for irrational and even "malevolent" behaviour later went to the school and charged both the school and Ncube, whom they arrested. The principal and Ncube later informed the Molteno prosecutor they would defend the charges - but they were withdrawn "on the grounds that no transgressions of law had occurred". The prosecutor even wrote a letter con-firming the decision to withdraw charges, but Home Affairs officials refused to accept it and told Ncube that no work permit would be issued "until he could provide Home Affairs with the reasons for the with­drawal of the criminal charges againsthim". Novel grounds indeed for refusing a permit. When the school organised a meeting with the prosecutor, the principal, the sec­retary and a Home Affairs official, the offi­cial concerned lost his temper and insisted that both the school and Ncube pay a fine of R2 400. But when they tried to do so the police refused to accept the money, saying the charges had been withdrawn. In the months that followed, Ncube was repeatedly harassed: officials did not answer correspondence or return calls and repeatedly obliged him to travel to their offices only to send him away empty-handed. They constantly raised the question of the withdrawn charges, demanding that he explain why the charges were not pursued, and threatened him with deportation. As Judge Revelas put it, he was subjected to "continued unfair treatment" carried out in an "irrational and malevolent manner". Officials also threatened Ncube that he would "suffer" for having sought help from the Legal Resources Centre. An intricate set of legal challenges fol­lowed with applications in the Graham­stown High Court and a petition to the Supreme Court of Appeal. The school proved the post had indeed been properly advertised. Perhaps word of winter temperatures has spread, but just three applications were received - only one from a South African, and that application "was so poorly presented that it could not be seriously considered", as the court put it. Commenting on evidence showing that the school had complied with all the required steps, Judge Revelas noted that while South Africans should be preferred this did not mean that "any South African even lacking suitable qualifications should-be appointed". The end result has been that a full bench of the Grahamstown High Court has now ruled in favour of Ncube and the Molteno school, with Home Affairs officials, from the minister down to the Queenstown office, ordered to pay all the costs. As I read her judgment, I had to wonder whether the Department of Home Affairs isn't a breeding ground for xenophobia. What other explanation for how those two officials were allowed to devise and carry out a campaign of irrational, mali­cious actions against a foreigner - and get away with it?

  http://www.lrc.org.za/press-releases/1150-2009-10-21-mr-ncubes-battle-against-home-affairs-comes-to-an-end

Judge taken to task over asylum seekers

IN A strongly worded judgment, the Supreme Court of Appeal has affirmed the principles governing legal protection for asylum seekers in SA and censured a high court acting judge for flouting the "fundamental rules of litigation". While the government has often come in for heavy criticism by the courts for how it handles immigrants and asylum seekers, it is unusual for a judge to get the kind of tongue-lashing acting judge Nazeer Cassim received from appeal court judge Mahomed Navsa.

The judgment, handed down on Tuesday, concerned 19 Ethiopians who had walked to SA to escape political persecution in their country. Their journey took more than a year. On arrival in SA, they were arrested before they could apply for asylum. They spent more than a month in detention before Lawyers for Human Rights took up their case .
But Judge Navsa said the handling of the case by the high court was "disturbingly peculiar". The judgment includes pages of excerpts from the high court record. In one of the excerpts, Judge Cassim is recorded as interrupting the testimony of one of the asylum seekers, Yene Bula, to say: "No man you cannot just, I am not a child. Tell him I am not a child. I do not want to believe him if he is telling he walked at night from the border to Johannesburg by asking people, show me the direction of Johannesburg. This is not fairy tales, please."
Judge Navsa said: "Right at the beginning of (Mr Bula’s) evidence in chief, the judge started to make factual findings, indulged in pontification and was patronising".
"A judge is required to wait until all the relevant evidence has been adduced before making an assessment and reaching conclusions," he said. "Judges are impartial adjudicators. They do not enter the fray." He said statements by Judge Cassim on foreigners had the potential for "creating and heightening tensions between nationals and foreigners".
"If they are not prudent extra- judicially, they must be all the more unacceptable in court." Judge Navsa then went on to set out the approach that ought to have been followed. He said the laws governing asylum specifically required that a person who wanted to apply for asylum status should be allowed to apply, even if he had been arrested prior.
Also, if the government wanted to apply to court to extend someone’s detention in custody for not being legally in the country, it had to inform the person of that — in writing. The law on this was "peremptory".
"It involves the liberty of an individual and must be strictly construed," he said.

By Franny Rabkin - rabkinf@bdfm.co.za 

• http://www.lhr.org.za/news/2011/judge-taken-task-over-asylum-seekers

Relocation of the Home Affairs Head Office

Relocation of the Home Affairs Head Office to the Hallmark Building in the City Centre

We announced earlier this month that in line with government’s commitment to make services accessible to the people, the Department of Home Affairs will be relocating its Head Office operations to the Hallmark Building in the Pretoria City Centre. This also comes within the context of government’s commitment to express confidence in the City Centre while encouraging investment and economic opportunities.

In this regard, the relocation of our operations began this past weekend, Saturday 12 November 2011, with the movement of all IT staff and equipment. We are happy to report that the movement of Branch IT to the Hallmark Building was successful with no reported interruption in services.

We will continue the relocation according to our movement plan, in terms of which, we will in the coming week be moving the Counter-Corruption and Immigration Services Branches of the Department. This will be followed by the Internal Audit, Communications, Human Resources, Learning Academy and Finance Branches as well as the Office of the Director-General respectively. In terms of our plan, it is envisaged that the movement to Hallmark Building will be concluded on the 19 December 2011.

We reiterate that we do not envisage any interruption of services during our relocation because local offices will continue to operate as normal.


Issued by the Department of Home Affairs

Pretoria

0001



17 November 2011
www.dha.gov.za

Ncube versus Home Affairs

2009 07 27 'Mr Ncube wins battle against Home Affairs', LRC

Finally, the protracted legal battle that left Zwelani Ncube without an income, and his pupils without English instruction has come to an end. On 25 June 2009, the Zimbabwean schoolteacher gained an important reprieve before the Eastern Cape High Court in Grahamstown. The court refused to grant the Department of Home Affairs an appeal against the December 2008 judgment which granted Mr Ncube a work permit to teach English in South Africa. The court said that the applicants had no prospect of success. The December judgment had ordered the director general of Home Affairs to issue a work permit to Mr Ncube and for the Minister of Home Affairs to pay Mr Ncube R16 000 for loss of salary and transport costs to the Home Affairs offices in Queenstown incurred over eight months. This was the first time a court ordered compensation in terms of the Promotion of Administrative Justice Act 3 of 2003 (PAJA). The matter began after Mr Ncube, previously earning R150 in Bulawayo, was offered a job teaching English at Molteno High School in the Eastern Cape in November 2007, but could not teach as government red tape made it impossible for him to obtain a work permit. Eight months after he was supposed to start working, his application had still not been processed, and when Home Affairs officials finally got around to it, it was denied on ‘spurious grounds'. With the assistance of the Legal Resources Centre (LRC), Mr Ncube appealed against the negative decision. He launched an application in the High Court, seeking to either force Home Affairs to grant him the work permit or compel the Minister to decide on his appeal before the end of November 2008. He also sought an order that he be compensated for his loss of earnings and incidental expenses in travelling from Molteno to Queenstown Home Affairs office. However, the LRC was refused leave to appeal against the December 2008 judgment in relation to an order that the public interest firm pay costs ‘de bonis propriis'. That order was particularly disappointing on the heels of the Constitutional Court's recent judgment in the Biowatch case, confirming the principle that those seeking to enforce their constitutional rights against the state should in general not have to bear the costs. In refugee matters especially, such court costs are a serious deterrent to potential suits. Sarah Sephton, director of the LRC in Grahamstown, noted that costs in the Ncube matter have come to about R100 000 so far. The LRC now plans to petition a full bench of the court for leave to appeal, with the hope of resolving the case satisfactorily for Mr Ncube and other refugees like him seeking work in South Africa. http://www.lrc.org.za/index.php?option=com_content&view=article&id=1038:2009-07-31-mr-ncube-wins-battle-against-home-affairs-lrc&catid=84:other-news&Itemid=856

 

Fake IDs a matter of survival

MIA MALAN - Nov 18 2011 00:00

'I'm going to show you the names of the children in the book where I record them," says Ncedisa Paul, while walking to her car parked on a dusty gravel road in the former Transkei. "I've got one case of a woman who 'sold' all five of her children. But now there's a big fight. She has obtained an ID book and wants them back."

Paul works for the Mentor Mothers project in Zithulele, a rural village near the Wild Coast holiday haven of Hole-in-the-Wall. Every day she visits young mothers in the area to advise them on their children's health.

Paul is referring to a mother who needed child-support grants for her children but did not have an ID book. It is impossible to obtain a government grant without it. Paul explains: "The mother then faked her children's clinic cards and birth dates so that they fitted in with the details of a neighbour who did have an ID book. The friend has been collecting the grants for several years now as if it's her own children. The biological mother gives the neighbour part of the grant and that way both of them make money."

Paul goes to great lengths to try to get people in Zithulele to understand that fabricating your children's information to get state money is fraud and that they could be jailed. But she acknowledges she is often fighting a "lost battle."

Obtaining an ID book in this isolated part of the country, where tarred roads are luxuries, is extremely difficult, particularly if one does not have money.

"You need letters from the chief and school you attended, and an affidavit from the police station. You also have to go to the nearest town, Mqanduli, about 60 kilometres away, to collect a form," says Paul. "All of this involves travelling and therefore taxi or bus fares. But nine out of 10 people here don't have a job and therefore most have no cash."

In an effort to solve the problem of "hiring out" IDs, Paul says the Mentor Mothers project has arranged for government social workers to visit the area on set dates with the necessary ID application forms. "But people still need to travel to their schools and the police station, something that many are unable to do. So many of our mothers still don't have ID documents," Paul says.

Thandeka Bota is the woman who "sold" her children. For the past few years, they have belonged to her neighbour -- on paper, at least. Bota receives a total of R1 350 -- R270 a child -- in child-support grants, of which she used to pay R250 to her neighbour who collected the grants.

But now Paul has helped Bota to obtain an ID book by writing a letter to the chief and explaining which police station to visit.

"The woman who has been collecting the grants is upset and does not want to 'return' the children, as she would then no longer receive part of the grant," Paul says. "She argues that, for years, she was good enough to help her out but, now that Thandeka has an ID book, she's suddenly a burden and she feels that's very unfair. It's a mess."

Families at war
Bota says the two families have since been "at war". The feuding parties, says Paul, have little understanding of the legal processes involved in getting the children re-registered with their biological mother. But to many people here survival is more important than the law -- being able to feed and clothe their children simply weighs heavier than the finer details of government administrative procedures. Almost everyone here is dependent on child-support grants.

"It is parents' main form of income," Paul says. "People are unemployed and few have completed high school, which makes finding a job even harder."

According to Paul, some women in the former Transkei have as many children as possible to increase their grant income, although she concedes that there are other reasons for unplanned pregnancies in the region, which are far more complex.

"More than 65% of the mothers we deal with are teenagers of between 13 and 19 years old. It's nothing strange to see a 15-year-old with two or three kids in this area. It's not even frowned upon."

The Mentor Mother co-ordinator visits the morning clinic at the local hospital twice a week to talk to patients about reproductive health matters, such as contraception, and the importance of ensuring that their children are well informed.

But, says Paul, parents often refuse to talk about "sexual matters" with their children. "One vehemently complained to me that a nurse insulted her by talking to her teenage daughter about contraception and menstruation in front of her.

"I explain to them that it's good for their children to know how to prevent getting pregnant, that they must talk about these things. But it's new to them. They are so resistant … "

Paul says most of the pregnant girls her organisation deals with drop out of school, never to return, and join the "never-ending circle" of poverty. "Schools here can be a two or three-hour walk from home for children. Even if girls are not pregnant, or are not mothers, this discourages youngsters from completing their education," says Paul.

But Mentor Mothers has recently managed to persuade two 15-year-old mothers to return to school. "It's only two girls, so I am sure many people would laugh. But, believe me, in this area, having just two girls go back to school is a big victory."

The only forms of recreation for children in the rolling hills of Zithulele are a few barren football fields that sport sagging wooden goalposts and grazing cattle. The boys play; the girls watch.

But shebeens are plentiful. In fact, each hill seems to boast an informal tavern, on which the names of popular brews are scrawled in paint that's peeling off. "Girls go to the drinking dens to escape boredom. There, they meet boys, or men. Things move from there," says Paul.

The few men of Zithulele who do have jobs mostly work on mines in South Africa's northern provinces. When they return to their home district to visit, says Paul, it's like a "gift from heaven" for the area's teenaged girls.

HIV/Aids
The community worker explains: "These men bring hope to the girls. The men are rich compared with the people here. The men buy the girls cellphones and clothes, or food for their families, and the girls provide the men with 'fun' in the form of sex. Drinking, of course, helps to facilitate the whole process."

Paul says the girls have "almost no knowledge" of contraception. And, although condoms are available at local clinics, no one uses them. "The girls are scared the guys will leave them if they use condoms. The guys say 'they don't want to eat a sweet with a paper'," Paul says.

The men return to the mines. "The girls are left alone with the babies," says Paul. "But it's the grandmothers who mostly take care of the little ones. Then the young mothers go back to the shebeens to look for more men who have a bit of money."

Health workers in Zithulele and its surrounding villages say many of the girls also become infected with HIV.

Paul recently visited a hut where 14-year-old Zolelwa Sali had just given birth. "There the mother of this girl stood -- also pregnant," Paul sighs. "So were the girl's two sisters."

The hut is at the bottom of a hill. Rain streams through cracks in the structure. The family shares a single bed. On the day of Paul's visit, Sali is fortunate because it's her turn to rest on the bed, on which she now nurses her newborn baby.

None of the Sali family has ever had an ID book. Officially, they do not exist. Sali's two pregnant sisters, aged 19 and 22, wander around outside their tumbledown home.

"Both are infected with HIV," Paul says. "I'm not sure about the 14-year-old and the mother.

"You know, when I see situations like this, I just don't know where to start. You tell the people here, 'Please don't make crime; don't cheat with the grants.'

"[But] sometimes the words, they stick in my throat. Because what can I give them instead? A job? Food? Education? An ID book?"

Like the ubiquitous emerald hills of the former Transkei, there are plenty of questions to ask in Zithulele village. But the answers are like the spirits often invoked by the people here.

"They are invisible, like the ancestors," says Paul," But we know they are out there -- somewhere."

*Some names have been changed.



Sex education goes far beyond the basics
The highest rates of teenage pregnancies occur in the poorer provinces, such as the Eastern Cape, KwaZulu-Natal and Limpopo, according to the national education department.

Marion Stevens from Women in Sexual and Reproductive Rights and Health Associates attributes it largely to the fact that youngsters in underprivileged areas, without decent education, transport or housing, have little to aspire to.

"Such districts also have little recreation to offer and teenagers often end up having sex, often without meaning to, as they have little idea of how to manage new feelings and desires," she says. "Teenagers may also think that a baby will bring more meaning to their lives or let them 'graduate' as women, although the reality is that their already tough lives become much more challenging with a child."

Stevens says that there is also a serious lack of information. "Their poverty is increased by the poverty of information on how their bodies and sexuality work."

She says the onus is on the government to deal with privacy at rural clinics, where often the same nurse attends to an entire family and a teenager is not in a position to obtain contraception from a clinic as the nurse is likely to tell her parents.

She believes parents often think that sex education comprises "teaching your children how to have sex" and don't understand that it equips youngsters with information about their bodies, feelings and relationships. "We need better sexuality education training for teachers, which will help them first to deal with their personal sexuality issues and then equip them to share that understanding with learners and parents," she says.

The effects of migratory labour are well documented, says Stevens. "Many mines have invested in local HIV projects in the Transkei because of the increased HIV-infection rate associated with men not living with their families.

"But we also need investments in teenage sexual and reproductive health projects that will address the lack of comprehensive sexuality education among young people and the wider community."

Mia Malan works for the Discovery Health Journalism Centre at Rhodes University
Source: Mail & Guardian Online
Web Address: http://mg.co.za/article/2011-11-18-fake-ids-a-matter-of-survival

Prevention and Combating of Trafficking in Persons Bill

Prevention and Combating of Trafficking in Persons Bill: Department of Home Affairs submissions and further deliberations

Created 17 Nov 2011 - 12:53
Meeting Report Information
Date of Meeting:
14 Nov 2011
Chairperson:
Mr L Landers (ANC)
Documents handed out:

Department of Home Affairs Proposals [1]

Children’s Act No 38 of 2005 Chapter 18 [2]
Prevention & Combating of Trafficking In Persons Bill Working Draft [3]
Prevention and Combating of Trafficking in Persons Bill [B7-2010] [4]



Summary:
The Portfolio Committee on Justice and Constitutional Development met with officials from the Department of Home Affairs to discuss provisions on the Prevention and Combating of Trafficking in Persons Bill (the Bill) that were of direct concern. The Department of Home Affairs in its submission proposed that this Bill, taking into consideration the Immigration Act and Refugee Status Act, should have the objective of either re-uniting victims with their families or returning them to their countries of origin. Trafficking suggested that a person was removed unwillingly from his or her own country and Department of Home Affairs was of the view that such persons should be assisted in going back to their own countries and re-united with their families. Where victims were cooperating with law enforcement officials then the Minister of Department of Home Affairs, in terms of Section 31(2)(b) of the Immigration Act, and subject to any terms or conditions, may grant such a victim the right to stay in the country for a specified or unspecified period, without actually granting permanent residence. At the end of this period such a person would be re-united with his or her family and sent back to their country of origin. The rights that the cooperating victim would be entitled to would include the right to education, health care, housing and other rights set out in the Bill of Rights, but not the right to vote. Where a victim refused to cooperate then s/he had to be repatriated. A victim of trafficking should be given a three month visitor’s visa for reflecting and recovering. It was the view of the Department of Home Affairs that there was no need for the Immigration Act or Refugee Act to be amended through the Bill, but that there should instead merely be reference made to Section 31(2)(b) of the Immigration Act.

The Department of Home Affairs proposed that Clause 17 should be deleted, as the exemption mentioned there would be granted in terms of Section 31(2)(b) of the Immigration Act. A Member of the Committee pointed out that if the Department of Home Affairs’ request  was granted then the Sections in the Children’s Act that were copied into Clause 17 would also have to be deleted. Another Member expressed his concern that if Clause 17 was removed then there would be no provision that dealt with child trafficking because the whole of Chapter 18 of the Children’s Act was being repealed in the Prevention and Combating of Trafficking in Persons Bill. The Committee agreed that clause 17(1) should remain, but not clauses 17(2) and 17(3).

The Department of Home Affairs proposed that circumstances when a victim could be issued with a visitor’s visa could be inserted in the Regulations. It was also proposed that the recovery and reflection period must not exceed 90 days. Clause 21(2)(b) should be deleted because of the removal of the ‘letter of recognition’, since this clause referred specifically to persons who were issued with the letter as provided for in Clause 16(10). The Committee outlined its original thinking on Clause 21. The reference to the letter of recognition was deleted because the Committee wanted the 90 day period to commence the moment the letter of recognition was issued. The intention under Clause 21(2)(b) was that where an applicant had submitted false information, or his/her letter of recognition was withdrawn then the 90 day protection would fall away. The Committee wanted to tighten Clause 21(2)(b) so that those who did not qualify for the 90 day protection could not abuse it. A Member asked what would happen if the Department of Home Affairs took too long to issue a visitor’s permit, questioned whether time periods were needed and enquired about the status of the person during the processing of the permit. It was pointed out that it was not desirable for victims of trafficking to be considered to be illegal foreigners as well. Under Clause 21(5) it was agreed that  the words ‘granting of a non-renewable recovery and reflection period’ should be removed and replaced with ‘issued with a visitor’s visa’.

The Department of Home Affairs was of the view that the whole of Clause 23 should be deleted as no permanent residence should be granted to a victim of trafficking. The Committee responded that it had wanted to provide for victims who had testified, and because of that testimony their lives were in danger from the trafficking syndicate in their country of origin. It was agreed that Option 1 and 2 would be considered by the Department of Home Affairs and Justice and Constitutional Development. The Department of Home Affairs proposed, under Clause 31, that everything should remain except for Clause 31(1)(b), instead reference should be made to Section 31(2)(b) of the Immigration Act. Clause 31(1)(b)(iii) should read ‘to facilitate the issuance of travel documents’ as opposed to ‘to issue travel documents’.  The Committee proposed that where it was not safe for a child to be returned to their country of origin after the assessment under Clause 31, then Section 31 of the Immigration Act should apply, and the Director General of the Department of Social Development should make the necessary application to the Minister of Home Affairs. The Committee noted the National Prosecuting Authority’s complaints that the Department of Home Affairs processes took too long, and explained that an expeditious mechanism was needed to keep a person in the country, when his or her testimony was required, that the necessary permits or visas must be issued speedily, and that if that person was no longer needed, the permits could fall away. The Department of Home Affairs further proposed that the word ‘suspected’ should be removed under Clause 33(a)(i), but the Committee noted that this word was used because the clause applied to South Africans who had been trafficked to another country,  whose exact status was not known. It was agreed that that the technical issues in the Schedule would be dealt with after the other provisions, proposal and amendments in the Bill were finalised.

Minutes:
Department of Home Affairs comments on the Prevention and Combating of Trafficking in Persons Bill
Mr Mkuseli Apleni, Director General, Department of Home Affairs, noted that the delegation from the Department of Home Affairs (DHA) had been mandated by the Minister of Home Affairs to attend this meeting.

The DHA believed that the Prevention and Combating of Trafficking in Persons Bill (the Bill) should, in light of the Immigration Act and Refugee Status Act, have the objective of either re-uniting victims of trafficking with their families or returning them to their countries of origin. Trafficking suggested that a person was removed unwillingly from his or her own country and DHA was of the view that such person should be assisted in going back to the home country and reunited with his or her family.  Where victims were cooperating with law enforcement officials then the Minister of Home Affairs could, in terms of Section 31(2)(b) of the Immigration Act, and subject to any terms or conditions, grant such a victim the rights to reside in South Africa for a specified or unspecified period, without granting permanent residence. At the end of this period such a person would be re-united with his or her family and sent back to the country of origin. The rights that the cooperating victim would be entitled to would include the right to education, health care, housing and other rights in the Bill of Rights, except the right to vote. Where a victim refused to cooperate then he or she had to be repatriated. A victim of trafficking who was reflecting and recovering should be given a three month visitor’s visa. Section 32 of the Immigration Act allowed the Minister to grant a foreigner or a category of foreigners the rights of permanent residency for a specified or unspecified term, with certain conditions where special circumstances existed.

It was the view of the DHA that there was no need for the Immigration Act or Refugee Act to be amended via the Prevention and Combating of Trafficking in Persons Bill. The DHA proposed that  instead there should reference to Section 31(2)(b) of the Immigration Act. There had to be cooperation between the various stakeholder departments, including the development of protocols and a Memorandum of Understanding (MOU). There should be guidelines for the granting of temporary residence and return of victims.

Clause-by-Clause Deliberations
Clause 17
Mr Johan Erasmus, Chief Director: Legal Services, DHA, said that Clause 17 should be deleted as the exemption mentioned there would be granted in terms of Section 31(2)(b) of the Immigration Act.

Mr J Jeffery (ANC) said that children were a different category, and were provided for in terms of existing legislation specifically the Children’s Act of 2005. Given that the provisions of the Children’s Act had been in existence of six years, it may not be ideal to abolish them. In any event if DHA were to be granted its request then the sections in the Children’s Act would have to be deleted.

Dr M Oriani-Ambrosini (IFP) said that the difficulty with Clause 17 was that it provided an additional ground for a refugee status. It was not one of the grounds in the Refugee Act and Geneva Convention. The solution that DHA was proposing was difficult, as the exemption that existed in the Immigration Act was very difficult to obtain. A further problem was that it allowed for an assessment that DHA was not equipped to make. He therefore proposed that the provision should remain, but that the Court be asked to grant an order whereby the child was allowed to remain in the Republic, with set terms and conditions, having due consideration to the Immigration Act.

Mr Jeffery said that his reading of the Refugees Act was that it did not apply to trafficked victims in general. It would thus seem that the provisions in the Children’s Act which were the same as those in the Bill were wrong. It was possible to delete clause 17 if section 290 of the Children’s Act remained. 

Dr Oriani-Ambrosini said that he saw a difficulty with the coordination between DHA and the Department of Social Development (DSD), as the latter was not responsible for repatriation and the former was not equipped to make assessments of children, or even adults. A mechanism had to be developed that combined the powers of DHA with the assessment capabilities of the other departments.

Ms D Schäfer (DA) said that Section 31 only dealt with the repatriation of persons, and not the current status of persons who were covered by the Act.

Mr S Swart (ACDP) said that he was concerned that if clause 17 was removed, then there would be no provision that dealt with child trafficking. The whole of Chapter 18 of the Children’s Act was being repealed in this legislation.

The Chairperson asked the delegation from DHA to take note of what had been said by the Members.

Mr Jeffery asked if a child victim of trafficking could make an application under the Refugee Act. He thought that the original clause 17(1) could remain, but reiterated that in this case there may be a problem with the Children’s Act. If a child victim was a witness in a case, then Clause 22 and 23 would apply. He asked if there was a lacuna in the law and if anything had to be done to fill it. There was no argument presented to say that child victims should be provided for, and should be able to stay. Clauses 17(2) and 17(3) did not apply because they were linked to the Refugees Act, which did not cover child victims of trafficking. 

Mr Apleni said that DHA would support the proposal for the retention of Clause 17(1).

Mr Erasmus said that it may well be that any application under clause 17(2) and 17(3) could be refused.

Mr Swart said that he agreed that this was an assisted application that may not succeed. He agreed with Mr Jeffery’s suggestion to delete clauses 17(2) and 17(3).

Clause 21
Mr Erasmus said that the DHA’s suggestion on clause 21 was contained in the document submitted by DHA. It was important to note that in DHA’s submission there was reference to a visitor’s visa in accordance with Section 11(1)(b)(4). The circumstances setting out when a victim could be issued with a visitor’s visa could be inserted in the Regulations. DHA also proposed that the recovery and reflection period must not exceed 90 days. Clause 21(2)(b) should be deleted, because of the removal of the ‘letter of recognition’, as this clause referred specifically to persons who were issued with the letter as provided for in Clause 16(10).

Mr Jeffery said that the reason why the reference to the letter of recognition was deleted was that the Committee wanted the 90 day period to commence immediately the letter of recognition was issued. The intention under Clause 21(2)(b) was that where an applicant had submitted false information, or where his or her letter of recognition was withdrawn,  then the 90 day protection would fall away. The Committee wanted to tighten Clause 21(2)(b) so that those who did not qualify for the 90 day protection could not abuse it.

Mr Swart referred to Clause 21(1) and asked if the word ‘must’ or ‘may’ should be used. The Committee also had to look at protocol and decision making so that the process on the ground may be swift and decisions were issued quickly.

Dr Oriani-Ambrosini said that at times victims would need certain undertakings, such as studying or finding a new job in order to recover, and this would not be possible through a visitor’s visa. A person who had been through so much trauma when trafficked could not be forced to leave and then face more trauma in the rebuilding of his or her life. The Committee had to consider this from a humanitarian perspective.

Mr Jeffery said that the Committee had agreed on the position that foreign victims of trafficking had to leave the country. The only category who would be required to stay would be those victims who were  assisting law enforcement authorities. The issue of victims studying and working was thus not applicable. DHA seemed to want to have provisions inserted in existing categories and not have new provisions introduced. The visitor’s permit was, for the most part, acceptable. The reflection and recovery period was set out for victims to consider whether or not they would assist law enforcement authorities, not other purposes.

Ms Amanda Ledwaba, Director: Law Enforcement,  DHA, said that she agreed with Mr Jeffery, and said that in the majority of cases a victim of trafficking would want to be re-united with his or her family and returned to their country of origin.

Ms Schäfer asked what would happen if the DHA took too long to issue a visitor’s permit. She wondered whether a time period for this should be specified. She asked what the status of the person would be during the processing of the permit.

Mr Erasmus said that if such a person was undocumented then he or she was regarded as an illegal foreigner in terms of the Immigration Act.

Ms Schäfer said that this was not desirable for victims of trafficking, and this issue would have to be addressed.

The Chairperson reiterated that the Committee was worried about the DHA’s delays in processing applications.

Mr Erasmus said that this was an administrative issue, which was usually not catered for in legislation.

Mr Apleni added that this was why the DHA wanted protocols and agreements in place between the various stakeholder departments.

Dr Oriani-Ambrosini said that this was not merely an administrative issue. There was a possibility that a foreign victim may be deported whilst his or her application was being progressed, if he or she did not have the necessary papers to stay in the country.

Mr Jeffery said that the Committee had already discussed this issue and reached consensus on it. With regard to the possible delays in processing from DHA’s side, he suggested that no discretion should remain with the Director General of the DHA and therefore the wording used should be “must”.

Ms Ledwaba said that the current position was that any person who had applied for a permit may not be deported until a decision had been taken and the outcome of the application has been notified.

Ms Schäfer asked if this was set out in legislation.

Ms Ledwaba replied in the affirmative.

The Chairperson asked in which piece of legislation this provision was to be found.

Adv Tsiyetsi Sebelemetja, Director: Drafting and Legal Services, DHA, said that the specific provision would be provided later to the Committee

Mr Apleni said that the discretion of the Director General of DHA should remain. The Bill could then say that a person may not be deported until she or he had been notified of the decision on the application. There may be circumstances where the Director General may have to apply his or her mind to issues.

Mr Jeffery said that the word ‘may’ could be used but then there must be a cross reference to the Immigration Act, so that a person may not be deported until informed of the outcome of their application.

Ms Schäfer said that she was still concerned about the wording. She wondered if the Director General of DHA should have the discretion to refuse, even if law enforcement officials had indicated that they needed a particular victim to remain in the country.

Mr Jeffery said that this was a policy matter and he had some sympathy for the view of the DHA. He thought that “must” was quite proscriptive, and did not cater for unknown circumstances. If the Director General of DHA made a mistake then this could still be challenged. Generally, there was no harm if it was discretionary.

Dr Oriani-Ambrosini said that it would make sense for a letter of recognition to be issued because that letter set out everything that would identify the victim, and it provided an indication of status as well.

Ms Ledwaba said that she did not see how a letter of recognition that was issued by DSD, which did not fall under the Immigration Act, could legalise a person’s stay in the country.

Mr Jeffery said that a letter of recognition did not give a right to stay, but only gave entitlement to certain rights and services. The Committee had been clear on the point that those who were trafficked should be repatriated, and that this Bill should not be used for illegal foreigners to stay in the country. It should be remembered that a letter of recognition was also issued to locals. All this confusion around the letter of recognition meant that perhaps Clause 21(2)(b) should be deleted.

Mr Erasmus asked if the Letter of Intent should be a requirement for the application of a visitor’s visa, and said that if it was not, then the letter of recognition should be done away with.

Mr Jeffery said that the letter of recognition was something in which essentially the DHA had no interest. It gave a victim no rights under the Immigration Act, but merely catered for rights to services.

Adv Sebelemetja agreed with Mr Jeffery. The deletion of Clause 21(2)(b) would not necessarily do away with the letter of recognition, as it was still provided for under Clause 16, which related to DSD and not DHA services.

Ms Lowesa Stuurman, Researcher, South African Law Reform Commission, said that there had to be a distinction made between the situation where a foreigner was a victim of trafficking, and an assessment where a person was found not to have been a victim of trafficking. A victim of trafficking would have to be repatriated, as provided for in Clause 31.

Ms Ledwaba agreed with Ms Stuurman.

Clause 21
Mr Erasmus said that the next submission from DHA was that Clause 21(4) should be deleted.

Mr Swart said that, in relation to Clause 21(4), the question was whether DSD could finalise its investigation within 90 days. There may be a need to extend this period.

The Chairperson said that clause 21(4) essentially covered a request from DSD to the Director General of DHA, for an extension where the investigation was not concluded in the stipulated time, and nothing was automatic.

Mr Erasmus said that in that case a proviso should then be included in Clause 21(1) for the extension.

Adv Sebelemetja informed the Committee that the visitor’s permit could be extended for a further three months, but not beyond six months.

Mr Jeffery said that the wording should be changed from “three months” to “six months” or “a further 90 days”.

Adv Marshal Mokgatle, Deputy Director, National Prosecuting Authority, asked DHA if the time periods should be the same for a victim of trafficking and an illegal foreigner.

Mr Erasmus said that the legislation for DHA provided for a three month renewable period, which would also not extend further than six months. It was not possible to make the pieces of legislation different.

Mr Jeffery referred to Clause 21(2) and Clause 31, and said that he was worried that these clauses provided that two Directors General, heading different departments, would be conducting similar investigations.

Mr Erasmus proposed that, under Clause 21(5), the words ‘granting of a non-renewable recovery and reflection period’ should be removed and replaced with ‘issued with a visitor’s visa’.

Mr Lawrence Bassett, Chief Director: Legislative Policy, Department of Justice and Constitutional Development, agreed that this would make sense.

Mr Bassett also noted that at the last meeting the drafters were requested to delete clause 21(5)(a), and asked if perhaps DHA wanted to add something on this.

Ms Stuurman suggested that clause 21(5)(a) should be retained, so that it would not be used by law enforcement officials as a bargaining tool to force victims to assist in investigations

Mr Erasmus agreed that it could remain.

Clause 23
Mr Erasmus said that DHA was of the view that the whole clause should be deleted, as no permanent residence should be granted to a victim of trafficking.

Mr Jeffery said that the Committee wanted to provide for victims who had testified and, because of that testimony, their lives would be threatened by the trafficking syndicates in their country of origin. The new Clause 23 provided that the National Director of Public Prosecutions (NDPP) may apply to DHA, on behalf of such a person.

The Chairperson pointed out that ‘may’ was used and therefore this was discretionary.

Mr Apleni said that he would not like to be obstructive, but felt obliged to point out that the DHA was in the process of de-linking the issuing permanent residence from the number of years that a person had been lawfully living in the country. DHA wanted to have a discretion to question why a person was needed in the country, despite what they were doing here, and to ascertain what benefit would accrue to the country by having such a person. If victims wanted to apply in terms of Section 31(2)(b) of the Immigration Act, then there was no problem.

Mr Jeffery explained that clause 23 would be deleted and the Committee was only considering Option 1 and 2 on the next page.

Mr Erasmus said that DHA would then consider the options, together with the drafters, and come back to the Committee on this point.

Clause 27
Mr Erasmus said that the words ‘and the visitor’s visa contemplated in Section 21(1)’ should be inserted after the word ‘recognition’.

Clause 31
Mr Erasmus proposed that everything should remain in this Clause, except for Clause 31(1)(b), where instead there would be a reference to Section 31(2)(b) of the Immigration Act. Clause 31(1)(b)(iii) should be reworded to read: ‘to facilitate the issuance of travel documents’, as opposed to using ‘to issue travel documents’. 

Adv Sebelemetja said that DHA would facilitate where all factors had been considered and it was safe for the child to be returned to his or her country of their country of origin.

Dr Oriani-Ambrosini said that the Committee and the departments may not have properly considered the conditions that victims faced. Some child victims of a very young age were trafficked and forced into prostitution. In such circumstances the discretionary power of the Minister was not ideal, especially given the DHA’s history on performance. A clear process where social workers and DSD were involved should be provided for in the Bill.

Mr Apleni said that DHA would facilitate the issuing of travel documentation, based on the assessment by the Director General of DSD, since assessments had nothing to do with DHA.

Mr Jeffery said that where it was not safe for a child to be returned to his or her country of origin, after the assessment under this clause, then Section 31 of the Immigration Act should apply and there should be an application made by the Director General of DSD to the Minister of DHA.

Mr Swart said that he agreed with this proposal. He suggested that the drafters consult on the best wording.

Mr Bassett asked if the suggestion was that clause 31(1) in the Bill should be linked with Section 31(2)(b) of the Immigration Act.

Mr Jeffery confirmed that this was correct.

Mr Erasmus said that DHA would work with the Department of Justice drafters, to draft the necessary wording.

Mr Jeffery referred to Section 31(2)(b) of the Immigration Act and said that the National Prosecuting Authority (NPA) had complained that the process took too long, from the side of DHA.

Ms Ledwaba replied that this was an administrative problem, and the NPA should explain where the requests were being delivered. She pointed out that she had received requests herself, although they should have been delivered to the Minister of Home Affairs. The proposed Memorandum of Understanding and protocol arrangements should correct this problem.

Mr Jeffery said that if this was an administrative issue, it should be the responsibility of the Director General, not the Minister, who was the political head. The Director General should, in addition, have the power as the process would be speedier.

Mr Erasmus said that delegation by the Minister to the Director General was provided for in legislation.

Mr Apleni added that DHA was in the process of making many changes to try to speed up processes. The DHA was included in this Bill. If law enforcement officials needed someone to be in the country to assist in an investigation, then this must be fast tracked.

Ms Kamogele Lekubu-Wilderson, Director: Victim Support and Specialised Court Services, Department of Justice and Constitutional Development, suggested that instead of protocols there could be provisions inserted in the Regulations for the fast tracking of applications from the NPA and South African Police Services (SAPS).

Mr Jeffery said that he was not convinced by DHA’s arguments. He thought that the Committee must ensure that it provided for an expeditious process in the primary legislation and not in the Regulations, protocols or MOUs. He asked that DHA should look further at the possibilities.

Mr Apleni agreed that DHA would reflect further on the matter.

Mr Swart said that if the main concern with Clause 31(2)(b) was with the delays and if the Committee was attempting to resolve this through visitor’s permits, he was worried that certain rights may be taken away from the victims. If the NPA was having problems with delays, in relation to the issues covered in clause 31(2)(b), then it was likely that the issuing of visitor’s permits might also be delayed. The Committee had to address the issue of delays, and this could perhaps be done in the Regulations. It was an administrative issue.

Mr Erasmus referred to Section 11(1)(b)(iv) of the Immigration Act, and said that this provided for a person to stay for three years. The DHA could not go beyond this period, and this was where the Section 31(2)(b) exemption was applicable. If a case went beyond three years then this would be a problem. That was the reason why the DHA preferred the exemption.

Mr Jeffery said that the Committee wanted an expeditious mechanism that would enable South African Police Services (SAPS) and the NPA to keep a person in the country if he or she was needed for the investigation or prosecution. The Committee also needed an expeditious mechanism for the issuing of the necessary permits or visas.  The Committee further wanted to ensure that when that person was no longer needed, his or her ability to stay would fall away.

Mr Erasmus noted all these points.

Clause 33
Mr Erasmus said that the DHA proposed that the word ‘suspected’ should be removed from Clause 33(a)(i).

Mr Jeffery said that the clause was in relation to South Africans who have been trafficked to another country and the word ‘suspected’ was used because it would not be clear whether they were victims or not. The requirements were set out in the Palermo Protocol.

Ms Stuurman said that she was concerned that a foreign country would repatriate a South African citizen, based on that country’s own processes, which may not be adequate for declaring that a person was indeed trafficked. If the word “suspected” was deleted, then by default that would mean that a person was a victim, despite any flaws in the assessment process. Such a person would also have access to benefits that were in fact meant for real victims of trafficking.

Mr Erasmus proposed the insertion of ‘parents or legal guardian’ instead of ‘child protection organisation’ under Clause 33(a)(iii).

Mr Jeffery said that the reason for the use of ‘child protection organisation’ was that parents may be involved in the trafficking themselves.

Clause 44(5)
Mr Erasmus said that Clause 44(5)(a)(i) and (ii) should be deleted as there was no need to publish directives, and this would be costly.

Mr Jeffery said that the provision was included because the public had to have access, and there was a lot of public interest in the Bill.

Adv Sebelemetja said that the DHA’s Directives were accessible if requested. Publication in the Gazette would cost R1 000 per page.

The Chairperson said that in this case they should at least be published on the DHA website.

Adv Sebelemetja agreed.

Schedule 1
Mr Bassett said that the technical issues in the Schedule would be dealt with after the other provisions, proposal and amendments in the Bill were finalised.

The Committee agreed that this would be acceptable.

The meeting was adjourned.

·         Justice and Constitutional Development
Copyright © Parliamentary Monitoring Group, South Africa

Source URL: http://www.pmg.org.za/node/29758
Links:
[1] http://www.pmg.org.za/files/docs/111115dhasubmissions_0.pdf
[2] http://www.pmg.org.za/files/docs/111115childrenact.pdf
[3] http://www.pmg.org.za/../../../../../../files/docs/111102workingdraft.doc
[4] http://www.pmg.org.za/../../../../../../files/bills/100316b7-10.pdf


From:

http://www.pmg.org.za/report/20111115-deliberations-prevention-and-combating-trafficking-persons-bill

Sexy dancers plead to be allowed to stay in SA

Nov 18, 2011 | NASHIRA DAVIDS

Mavericks, a "gentleman's revue bar", has asked the Cape High Court to help it hold on to its exotic dancers.

 

 Kim Kitty from Kim Kitty and the Kittens performs a trapeze act during Sexpo at Gallagher Estate in Midrand. Picture: JAMES OATWAY

The director-general of the Department of Home Affairs, Mkuseli Apleni, has cancelled Mavericks' corporate permits and certificates that allowed it to help bring exotic dancers to South Africa.

Yesterday, several stern-looking, manicured dancers filled the benches of Judge Siraj Desai's courtroom.

Mavericks' lawyer, Advocate Anton Katz SC, argued for an interdict against the department pending the outcome of a review of Apleni's October decision.

The department found Mavericks had displayed "blatant disregard" for the law, but Mavericks' owner Shane Harrison denied this in court papers.

He said he was told of the decision on October 21 and instructed that all foreign dancers he employed had to leave the country by November 4.

"The ability to procure sufficient numbers of foreign nationals who are qualified as exotic dancers is absolutely essential to [Mavericks'] business. Few exotic dancers translates directly into few customers, and consequently to a dramatic loss of income and inevitable financial collapse," he said.

For [Mavericks], the decision is catastrophic."

Three dancers, Diana Gorgos from Moldovia, Irina Yatsenko from Russia and Patrizia Meynet from Italy, also filed papers, pleading to stay in South Africa.

Yatsenko said she was getting married next month and has a 10-year-old daughter she believed would have a better education and opportunities in South Africa.

Meynet said she had bought a house and owed about R1-million for it.

But Apleni said Mavericks had flouted the rules and most of its dancers were "illegally employed".

Immigration officer Mzukisi Witbooi said he had found 12 foreigners working there illegally.

The matter was postponed to Monday.
http://www.timeslive.co.za/local/2011/11/18/sexy-dancers-plead-to-be-allowed-to-stay-in-sa?service=print