Thursday 31 March 2011

Uncertainty about Immigration Act Appeals

Section 8 of the Immigration Act, 13 of 2002, contains the core of the internal appeal and review processes of that Act.


Source: Chris Watters, Attorney Bedfordview
 
Section 8(3) of the Immigration Act [‘the Act’] lays the basis for the appeals with its stipulation that “any decision in terms of this Act [other than a decision refusing admission to the country or declaring a person to be illegal], that materially and adversely affects the rights of any person, shall be communicated to that person . . . and shall be accompanied by the reasons . . . ”   Section 8(4) then provides that an applicant aggrieved by a decision contemplated in section 8(3) may appeal that decision to the Director General. Section 8(5) says that the Director General shall consider the application contemplated in s 8(4) whereafter he can confirm, reverse or modify the decision. And then s 8(6) states that a person “aggrieved by a decision of the Director General contemplated in subsection (5)” may apply to the Minister for the review or appeal of that decision. 
 
On the face of it, the Act therefore would seem to allow for a double appeal for any section 8(3) decision. 
 
However in Ncube v Minister of Home Affairs [ECHC case no 2074/08, 8 December 2008] the Court found that there was a critical anomaly in this two-stage appellate mechanism.    Pakade J held that the Director General “ . . . is responsible for everything done including any decision taken by the Department. It follows therefore, by common logic, that he cannot review or sit on appeal against his own decision.”
 
The solution to this conundrum, in the opinion of the Court, is that “[a]ll the administrative decisions taken by the Department of Home Affairs in terms of the Act are taken by the Director General and the internal review or appeal thereon lies to the Minister.”   In a judgment refusing an application for leave to appeal [25 June 2009], Pakade J held further that “. . . the Director General is the administrative head of the Department and everybody below him is his assistant in the running of the administration of the Department.”   The Court concluded again that “an internal appeal against the decision of the administrative personnel cannot go to the Director General as that is deemed to be his decision. . . . that could never have been the intention of the legislature in enacting section 8(4) . . . The legislature could never have intended to concentrate the powers of administration and appeal to one person. That is an absurdity . . . ” 
 
The Court did not however indicate what it considered the intention of the Legislature to be with regard to section 8(4).   On the face of it, in terms of the Ncube judgment, section 8(4) of the Act becomes a dead letter. This has a further potential consequence for the appeal process. The wording of section 8(6) of the Act suggests that the right of appeal to the Minister of Home Affairs only arises where the Director General has exercised his appellate authority in respect of a section 8(3) decision and has rejected the appeal in question.
 
With the greatest respect, this judgment will inject considerable uncertainty into an appellate process where all too often there is much at stake and very little time to sort out technical details - a person has ten working days to submit the appeal. In addition, the Department is very quick to invoke section 7(2)(a) of PAJA requiring the prior exhaustion of all domestic remedies.     But the judgment does identify a significant flaw in the Act that was not resolved as part of the notoriously rushed Immigration Amendment Act, 19 of 2004. In the 2002 Act, almost all decision-making functions, outside of those vested in the Minister, were assigned to “the Department.”   The 2004 Amendment Act then changed the phrase “the Department” to read “the Director General” wherever it appeared in the 2002 Act.
 
If the Court in Ncube is correct then all appeals and reviews have to be directed, at first instance, to the Minister of Home Affairs. On the Ministry’s current workload it can sometimes take many months to just get an acknowledgment of one’s correspondence, much less a substantive response - where delays in excess of twelve months or more are not uncommon. To give him his due, appeals to the Director General are often disposed of considerably - if relatively - faster.   It is hard to see how the revised appellate mechanism, as found for in Ncube, could therefore work in practice. 
 
Of course in terms of section 8(3) the Minister may delegate most of the powers conferred on him or her in terms of the Act, to “an officer or category of officers” in the Public Service. But to delegate the section 8(6) function to anyone in the Department itself would then run foul of the Court’s concerns in Ncube because one would still have a junior official being asked to overrule a decision of the Director General.
 
A possible answer to the difficulty identified by the Court in Ncube is that sections 8(4) and 8(6) remain as a dual appeal mechanism for decisions not taken by the Director General.   The reality is that the legislature has in the Act, expressly placed considerable authority in the hands of persons other than the Director General.    For example, the power to detain and deport illegal foreigners [section 34(1)], is vested in “immigration officers.”  
 
Those decisions that are taken by the Director General - or those deemed to have been taken by him - must then be taken directly on review to the High Court just as one would have to with decisions taken directly by the Minister.   But this would be massively expensive and cannot auger well for the already overstretched court administration, especially in Gauteng where immigration-related cases occur on an increasingly regular basis.
 
But even this option has the difficulty that appeals against extremely serious decisions such as deportations would then lie to the Director General with a further appeal to the Minister whereas appeals on relatively minor issues such as the conditions subject to which a visitor permit is issued, would have to go to the Minister directly. All temporary and permanent residence permits are issued by the Director General or his delegate. This use of the Minister’s time would also therefore appear to be illogical. 
 
A related consideration arises from Clause (l) of the Preamble to the Act [which states that “immigration control is [to be] performed within the highest applicable standards of human rights protection”] as read with subsections 8(3) and (4) of the Act. In terms of these provisions, the overall policy of the Act would appear to have been to allow for a double appeal process for all section 8(3) decisions which would then be denied to a whole category of affected decisions on the basis of the Ncube ruling. 
A further consideration is that, as a fact, appeals submitted to the Director General in terms of section 8(4) of the Act can and do succeed (sometimes) precisely because there is, or there is supposed to be, a considered re-think of the matter as it makes its way from the decision-maker through different levels of officials to the Director General. 
 
But the concerns above aside, the Court in Ncube has, with respect, flagged the need for a careful re-assessment by the Legislature, as guided by the Courts and stakeholder groups, of a critical aspect of the Immigration Act.
 
http://www.roylaw.co.za/home/article/uncertainty-about-immigration-act-appeals/pageid/immigration-law
 
 

ID and Passport price hike

I still don't understand why the Zimbabweans under the special dispensation got their documents for free.  They are lucky they get fast-tracked for free while the rest of the (legal) immigrants wait....and wait... and wait....

****If you are having problems that are not being adequately addressed, phone the Home Affairs DG on his cellphone.  Read more here.****

 

Passport and ID costs soar

Mar 24, 2011 9:56 PM| By

From next week, South Africans will pay more to renew their identity and passport documents.




Photograph by: Bruce Gorton
The Department of Home Affairs yesterday announced that from April 1, it will increase fees for the reissuing of an identity document and temporary ID certificates from R20 to R140. A standard passport, now priced at R190, will cost R400.
Briefing journalists in Pretoria yesterday, Home Affairs Director- General Mkuseli Apleni said the increases were "reasonable" and had been approved by the national treasury. He said the increases were in line with the department's plan to recover the money it spends on reissuing documents when holders complain about errors - made by the applicants themselves or by the department - or missing information in their documents.
While he denied the increases - some prices went up by about 600% - were intended to boost the department's revenue, Apleni said it was costing the department more to reissue ID and passport documents because of errors.
He said the department has changed its procedures, and applicants for ID and passport documents will now keep a copy of their application form as proof the information they provided was correct.
Apleni said the tariffs will not apply to those who apply for an identity document for the first time, and those who change their surnames when they get married.
Other tariff increases that Apleni announced, include:
  • Childrens' passportsfrom R145 to R400;
  • Documents for travel purposes from R145 to R300;
  • Cost of an emergency travel certificate from R70 to R140;
  • Temporary passport from R90 to R180; and
  • Maxi passport from R380 to R600.
Apleni said new, additional security features were behind the cost increases for issuing passports.
He said the department had made progress in its effort to clean up the National Population Register, which was plagued by problems such as the duplication of ID documents, people sharing ID numbers and ID numbers which did not correspond with fingerprints.

http://www.timeslive.co.za/Politics/article986414.ece/Passport-and-ID-costs-soar?service=print

Wednesday 30 March 2011

Immigration Bill: Lawyers for Human Rights Press Release

Lawyers for Human Rights criticizes DHA's use of unlawful measures to exclude refugees from SA (press release)
The Department of Home Affairs has begun implementing one of the most controversial elements of the Immigration Amendment Billthe use of pre-screening procedures for asylum seekers at the border. While members of the Department have issued conflicting statements over what this provision will mean in practice, the Minister has stated that asylum seekers will be subject to the ‘first safe country’ principle, and that those individuals who passed through other countries where they could have applied for asylum will be turned away at the border.

Nothing in South African law currently provides for this practice, and our courts have ruled to the contrary, holding that an individual cannot be denied asylum in South Africa because he or she first passed through another country. But there are increasing reports of individuals being turned away at the border on this basis, without any proper determination of their need for asylum protection.

During a National Assembly session on Wednesday 23 March 2011, a member of the Democratic Alliance asked the Minister to provide assurances that she would stop this practice in order to bring South Africa in line with its human rights obligations. The Minister however refused to give such an assurance.

‘While heated debate continues around the proposed amendments to the Immigration Bill, the Minister of Home Affairs has rejected the important role that such debate plays in a parliamentary democracy by implementing some of the amendments without waiting for them to become law,’ said Kaajal Ramjathan-Keogh of Lawyers for Human Rights.

The Minister’s refusal to end this practice contravenes both domestic and international law. Said Ramjathan-Keogh: ‘Home Affairs is not above the law, and may not institute practices that fall outside of existing legal provisions, particularly when the practice is still being debated through the proper legislative procedure. Such procedures are meaningless if the Department chooses to circumvent them.’

Internationally, South Africa is bound by the UN and African Refugee Conventions, which prevent a country from returning an asylum seeker to a country where he or she may face persecution. The practice of turning away individuals at the border violates this non-refoulement principle. In January this year, the European Court of Human Rights found this same practice illegal, ruling that returning an individual to a country whose asylum system was deficient constituted ‘indirect refoulement.’

According to Ramjathan-Keogh, ‘Individuals are being turned away at the border without proper procedures, and risk being unlawfully returned to situations of grave human rights abuses.’

For more information, please contact Kaajal Ramjathan-Keogh at
kaajal@lhr.org.za  or Jacob van Garderen at Jacob@lhr.rg.za
http://www.lhr.org.za/news/2011/press-release-lhr-criticizes-dhas-use-unlawful-measures-exclude-refugees-sa



Tuesday 29 March 2011

Home Affairs Strategic Plan

****If you are having problems that are not being adequately addressed, phone the Home Affairs DG on his cellphone.  Read more here.****

Minutes taken by the parliamentary monitoring group, 15 March 2011


Department of Home Affairs (DHA) Strategic Plan and Budget 2011

Mr Mkuseli Apleni, Director General, DHA presented the Department’s strategic plan and budget for 2011. He noted that the Department’s achievements in the 2010/11 financial year included registration by the Department of 47 health facilities for its online birth registration, making a total of 192 health facilities connected overall. The Department had issued 337 328 Identity Documents (IDs) to people turning 16, and 811 864 to those over 16, from April 2010 to February 2011. The South African Citizenship Amendment Bill of 2010, the Births and Deaths Registration Amendment Bill of 2010 and the Local Government: Municipal Electoral Amendment Bill of 2010 had been assented to and signed by the President.

The Department’s turnaround times on the issuing of IDs had improved. There was a waiting period of, on average, 54 days for the first issue of an ID, 47 days for an ID reissue, 24 days for the manual processing of passports and 13 days for the live capture process for passports. The Department had contributed to the hosting of the 2010 FIFA World Cup, by issuing visas and processing visitors. The Department contributed to three of the twelve national outcomes, ensuring that all people in South Africa were and felt safe, facilitating a skilled and capable workforce to support an inclusive growth path, and providing an efficient, effective and development oriented public service and an empowered, fair and inclusive citizenship.

Mr Apleni noted that the key aims included a review of the policy and regulatory framework to manage economic migration. The Department also intended to develop policy options for managing the migration of skilled and unskilled migrants. The Department would focus on being a responsive, proactive and secure permitting regime, which was essential to managing economic migration. It would seek to facilitate the movement of regular travellers across neighbouring borders.

The Department aimed to ensure that children were registered within 30 days after birth. It would try to issue IDs to every South African of 16 years and older. It would ensure efficient and accessible service delivery to clients, integrate key systems and upgrade IT infrastructure for improved security and data integrity. It wished to ensure ethical conduct and a zero tolerance approach to corruption. It would develop and implement service delivery standards to improve operational efficiency and conduct a customer satisfaction survey.

Mr Apleni then turned to the “Who Am I Online” project. The Department had reached a settlement of the dispute with Gijima and other suppliers, subject to the fulfilment of various conditions precedent, in order to proceed with the modernisation of the Department’s IT infrastructure and systems. He reminded Members that the original bid by Gijima of R2.1 billion was approved, and a contract was signed, for delivery on the project in 2008. Concerns over escalating project costs (which reached R4.5 billion by 2010) coupled with lack of progress led to an investigation by the Department early in 2010. In April 2010 the Department notified Gijima, the prime contractor, that it regarded the contract as invalid, but Gijima disputed the repudiation of the contract. The Department, in order to avoid indefinite delays through costly and lengthy litigation, then entered into negotiations to amicably resolve the dispute and allow for the urgent completion of the project, in line with the Department’s original requirements and original cost estimates. The Department had established a risk management committee to prevent future recurrences of this nature.

Ms Rudzani Rasikhinya, Chief Financial Officer, DHA, tabled the Department’s budget. The Department had been allocated a budget of R5,46 billion for the 2011/12 financial year. The Department would allocate R1,78 billion for administration purposes. R3,09 billion was allocated to citizen affairs and R587,6 million for immigration affairs.

She pointed out that the budget for the forthcoming financial year was lower than the 2010/11 budget of R5.83 billion, because this had included allocations for the World Cup. The estimated amounts for revenue collection in the following financial years were set out (see attached presentation for full figures). The Department would aim to establish a trading account by 1 July 2011. It would seek to strengthen financial management and clear the audit issues, to achieve an unqualified audit report.

Discussion
Mr Mnqasela commended the Department on its presentation. He was especially pleased that the Director General would be heading up the Department’s administrative body.

Mr Mnqasela asked about the proposed tariff increases on applications for identity documents, and wondered if there could be exemptions for poor people who could not afford the new tariffs, and who had genuinely lost their identity documents.

Mr Apleni responded that the tariff increases on ID applications would not be enforced on first time applicants and that an exemption would still be in place for people who had genuinely lost their documents. The Minister of Home Affairs had the right to waive the tariff and that still remained in place.

Mr Mnqasela sought clarity on the slow progress of the Zimbabwean dispensation issue.

Mr Apleni said that the Zimbabwean dispensation issue would move faster after the issuance of passports to those Zimbabweans in the country who did not have them. After a meeting between the Minister and her counterparts, a deadline of July 2011 had been set for the dispensation to be fully implemented adjudication was ongoing for those who had passports. Another meeting would be scheduled with the Minister and the Zimbabwean representatives.

Mr Mnqasela said that the Department should monitor the scarce skills issue.

Mr Apleni responded that the issue of attracting people with scarce skills was being looked at by the Department of Economic Development and the Department of Labour was looking at quotas for scarce skills
.

Mr Mnqasela commented that the Department should seek to monitor the functionality and capacity of the seventy-two ports of entry in the country.

Mr Apleni replied that the Department would duly monitor ports of entry and assess the security measures at some of the ports. Corruption was an ever-present danger at the ports which was also ever-evolving, old techniques of monitoring no longer applied and the Department was working on ways to address the issue. The Department would work closely with the Hawks, SAPS and the National Intelligence Agency to fight corruption.

Mr Mnqasela asked that the Department must provide timeframes for those areas where it proposed to improve. He expressed satisfaction with the Department’s goal to address gender imbalances.

Mr Apleni noted that the Department would continue to address the issue of gender imbalances.

Ms Lovemore thanked the Department for its comprehensive presentation. She asked whether the Department’s Turnaround Strategy (TAS) was complete. She sought elaboration on the Department’s stated goal of seeking to robustly improve its management. She asked what had happened with the Department’s focus on fraud and corruption in the last two years.

Mr Apleni replied that the Department’s TAS was not complete and would not be complete until people everywhere were satisfied with the Department’s service. The TAS merely provided a building block for the Department to continue to improve its services. He reiterated the points that he had made when responding to Mr Mnqasela in regard to corruption.

Ms Lovemore queried the large number of identity documents that had not been collected from the Department’s offices by those who had applied, and asked why this was so, and what the Department intended to do about it.

Mr Apleni noted that many young people, especially those under the age of 17, saw little use for an identity document thus after having applied for one they failed to collect them. This was one of the reasons the Department held a large number of uncollected IDs in its offices.

Ms Lovemore also commented on the large number, around 45 000, of duplicate identity documents and asked over what period this had built up, and what action had been taken to remedy it.

Mr Apleni responded that the Department was working hard to address the issue of duplicated IDs, and said that the mobile phone number of the Director General was displayed, and that members of the public who were dissatisfied were invited to call him directly if they had problems which were not being adequately addressed.

Ms Lovemore felt that the Department should have more concrete plans in place for asylum seekers and for refugee management pertaining to third country nationals, which was on the Southern African Development Community (SADC) agenda. She asked whether the Department’s proposed economic migration paper would be linked to any other tools.

Mr Apleni responded that the Department would look at the issue of asylum seekers and review its policies on refugee centres and their locations. The Strategic Plan was reviewed annually and, where there were unresolved issues, provision was made to address those issues in the following year.

Ms Lovemore asked where the money offered for repatriation was held, and if people received this in appropriate cases.

Mr Apleni assured Ms Lovemore that the repatriation funds were saved in a separate bank account from the Department and payments were made where applicable.

Ms Lovemore asked for an explanation of the trusted traveller programme, and said that the scarce skills permit was outdated.

Mr Apleni noted that the Department was looking into implementing a fingerprint system for people from Swaziland and Lesotho who worked in South Africa but travelled home frequently. That system would look to lessen the bureaucracy for the Department.

Ms Lovemore felt that the Department’s inclusion of a plan to conduct an audit on whether standard operating procedures (SOPs) existed was alarming. She commented that the waiting times for the issuing of ID’s and permits had gone up and steadily did so constantly.

Mr Apleni said that the audit on SOPs was proposed as part of the risk register and was essentially a mitigating factor so that the Department could improve its standard practices. The Department was trying to improve its timelines for ID and permit issuance, and was working constantly to improve this.

Ms Lovemore asked whether Gijima had a case in light of the Department’s settlement of the case on the “Who Am I Online” initiative.

Mr Apleni reiterated that the Department had sought an amicable resolution to the dispute with Gijima and had placed the national interest above its own in settling the case. He did not want to comment on whether Gijima had a strong case.

Adv Gaum said that the South African Police Service (SAPS) should get access to the Department’s database of fingerprints, and asked why this had not yet been done. He asked why the Department could not get DNA when taking in applicants.

Mr Apleni replied that the Department was working on linking the SAPS systems to the National Population Registry so that SAPS would have access to the fingerprints.

Ms S Rwexana (COPE) asked whether the Department had learned any lessons from the corruption around driver’s licences. She asked whether the proposed smart card system could not possibly be abused.

Mr Apleni replied that DHA would receive full information from the Department of Transport prior to implementing the smart card system. The smart cards would contain all the biometric information on a person, including driving license information, and the chances of fraud would be low.

Mr J Thibedi (ANC) asked whether the Department could combat corruption solely through the deterrent of vetting. He asked when corruption occurred, and whether this was most likely at ports of entry or further on in the system. He also commented that the Department should look at lessons from other countries when seeking to address the issue of scarce skills.

Mr Apleni replied that vetting was instituted at a payment level at the port of entry, and it was an effective way of monitoring corruption. The Department would work hard to combat corruption and was taking on lessons from other countries on how to combat the issue.

Ms P Maduna-Peterson (ANC) asked how the Risk Committee was constituted.

Mr Apleni replied that the Risk Committee was made up of external as well as internal people associated with the Department.

Ms H Makhuba (IFP) sought clarity on the fraud and corruption cases in the Department, asking in particular whether the perpetrators were Departmental staff or citizens, and why these cases took so long to process.

Mr Apleni replied that the Department of Public Service and Administration dealt with the corruption and fraud cases relating to the DHA. The main reason why cases were not more quickly resolved were the procedural practices allowed for employees prior to any disciplinary hearing.

Government Printing Works (GPW) Strategic Plan and Budget 2011/12
Mr Joe Engelbrecht, Chief Executive Officer, Government Printing Works, presented the strategic plan. He noted that the GPW aimed to optimise its production process, replace its outdated and depleted assets, and implement a technological migration, with a stronger focus on IT and electronic documents. It also wished to automate official gazette distribution and manage its resources. It would also look to implement a new structure and improve its marketing. Key projects included investigation and commissioning of a new security printing division, implementation of the ABC costing methodology, creating capacity to print passport visa pages in-house, and implementing new systems and developing a new facility.

Mr Rassie Barnard, Chief Financial Officer, GPW presented the budget. The GPW had budgeted R500 million for the 2011/12 Medium Term Expenditure Framework (MTEF) period. GPW would spend R161.9 million on asset replacement, R 52 million on new IT systems, and R48 million on its facilities. GPW asked the Committee to advise and assist it in obtaining the necessary additional funds that it required.

Discussion
Ms Lovemore commented that she was dissatisfied at having to pay to access some of the gazettes printed by GPW and asked if the fees were necessary. She also asked for what purposes the GPW needed additional funding.

Mr Engelbrecht responded that the GPW had two sources of revenue; one from the government when it required legislation and regulations to be printed, and the other from the private sector. The printing service had to finance itself. This was the reason that there were charges for accessing the gazette. The GPW had assessed the viability of producing and sending gazettes electronically to subscribers, save paper and postage costs. Access to the electronic gazettes would be free. The reason why the gazettes were not free at the moment was to prevent people from using the gazettes for their own profit.

Mr Barnard added that the additional funding was needed for the replacement and upgrading of dilapidated equipment.

Ms S Bothman (ANC) commented that GPW should have included explanatory notes to fully explain its planned expenditure and the proposed increases in certain expenditure areas, such as professional services.

Mr Barnard noted that the expenditure estimates were estimated expenditure for a particular financial year which did not take into account the previous year’s assets. The GPW could send explanatory notes on planned expenditure to Ms Bothman.

Ms Bothman asked what the production stores were used for and what they produced. She commented that there seemed to be more money dedicated to administrative staff, but less was being produced.

Mr Engelbrecht responded that professional services dealt with all the machinery and special projects that needed outsider input. This was equipment related and IT related. The GPW had made a profit of R93 million in the last year and estimated making a profit of R103 million in the next financial year.

Ms Bothman asked how the “transfers received” were used.

Mr Barnard responded that the transferred money was predominantly for the new passport facility which the GPW had had constructed.

Mr Mnqasela asked when the Committee could visit the GPW’s new printing facility.

The Chairperson responded that the Committee would have to decide when to conduct the oversight visit.

Mr Engelbrecht said the Committee was welcome to visit at any time.

The meeting was adjourned.


from
http://www.pmg.org.za/report/20110315-consideration-b-version-immigration-amendment-bill-briefing-departmen

Monday 28 March 2011

Must read for all immigrants



Anyone contemplating immigrating to South Africa should read the book "The Strange Alchemy of Life and Law" by Albie Sachs.  As foreigners, it is so difficult to understand the complexities behind the South African psyche, even after years of living here.

The landmark court cases cited in this book give an insight into South Africa's complex social tapestry, and as I read this book I had a better understanding of why South Africans think and behave the way they do.  If I had read this book before immigrating here, I might have changed my mind.

At least after reading the book I had a better understanding of the country that I live in.

Public Protector - there for you and me

Public Protector calls on civil society to report government service failure

Saturday, 12 March 2011
Public Protector Adv Thuli Madonsela has encouraged civil society to report service failure and improper conduct by organs of state, emphasising that her office does not focus only on matters involving high ranking government officials.
"You probably think we investigate corruption cases only because of recent events. The truth is 90 percent of the cases we deal with on a day-to-day basis involve ordinary people and are about delayed or denied services," she said, speaking at the launch of social justice NGO Khaya College’s Setsi sa Mosadi Centre in Johannesburg on Saturday.

The centre provides paralegal advice to women on a range of issues. It will also host a specialised domestic violence unit that will be run by the Centre for Applied Legal Studies.

The Public Protector told representative or various women’s groups attending the launch that her office has jurisdiction on cases where state organs disregard women’s human rights, adding that her office strives to resolve cases promptly.

She called on the public to trust her office with complaints as it is constitutionally obliged to deal with complaints without fear, favour or prejudice and is independent and subject only to the constitution and the law.

The Public Protector further congratulated Khaya College, saying it would go a long way towards helping the country achieve the vision of an inclusive society where all are treated with dignity and equal consideration regardless of gender, race or nationality.

She vowed to forge relations with organisations such as Khaya College to raise awareness about her office and make its services accessible to communities as envisaged in the constitution of the republic.


Issued by:

Kgalalelo Masibi
Senior Manager: Outreach, Education and Communications
Tel: (012) 366 7069
Cell: 079 507 0399
Email:
kgalalelom@pprotect.org
www.publicprotector.org http://www.publicprotector.org/media_gallery/2011/12032011.asp


Sunday 27 March 2011

The Public Protector is important! - Chief Justice Ngcobo

Chief Justice Ngcobo highlights the importance of the Public Protector (Ombudsman)Wednesday, 16 March 2011
Independent investigation of government action is an essential component of a strong constitutional democracy, Chief Justice Sandile Ngcobo said on Wednesday.

Addressing the African Ombudsman and Mediators’ Association (AOMA) needs assessment workshop at the University of KwaZulu-Natal in Durban, Chief Justice Ngcobo said this was the value of a constitutionally-defined Public Protector or ombudsman.

He said the importance of the role of such institutions was especially clear in many countries throughout Africa, where there was often a desperate need for basic human needs such as food, drinking water, health care, housing, education and social security.

"Our countries cannot bear the improper allocation of government resources. Having a Public Protector, or Ombudsman, with a mandate to investigate and publicly report in government administration is essential," Chief Justice Ngcobo said.

Ombudsman from all over Africa commenced with the workshop following the launch of the African Ombudsman Research Centre (AORC) on Tuesday. It aims to validate the research conducted to establish the needs of ombudsman institutions in the continent.

The research found, among other things, that there was comparatively little knowledge about the institution of the ombudsman in the continent. It also found that there was a pressing need for information sharing and research as well as effective training, primarily on the practical aspects of operating an ombudsman office.

Chief Justice Ngcobo said, like courts, the work of the ombudsman was crucial to the people’s realisation and enjoyment of their fundamental human rights. This was particularly critical in countries emerging from divisions, oppression and colonialism.

"Good governance and the equitable distribution of resources is the only way for our people to one day enjoy the promise of equality and human dignity we make in our constitutions," he said.

He added that, in order to be fully effective, ombudsman institutions needed to be independent and accessible and accountable to the public.

The workshop will end on Thursday, where AOMA will issue a communiqué during a press conference outlining the resolutions of its Executive Committee meeting, which preceded the AORC launch on Monday.

Issued by the African Ombudsman and Mediators Association
For more information, contact:
Oupa Segalwe
Manager: Outreach, Education and Communications
Public Protector South Africa (AOMA Secretariat)
072 264 3273


www.pprotect.org
http://www.publicprotector.org/media_gallery/2011/16032011.asp

Saturday 26 March 2011

Immigration Bill: Human rights activists' perspective

****If you are having problems that are not being adequately addressed, phone the Home Affairs DG on his cellphone.  Read more here.****

Immigration Bill given thumbs downILHAM RAWOOT | JOHANNESBURG, SOUTH AFRICA - Mar 25 2011 00:00 The Immigration Amendment Bill, passed by Parliament this week, has been l
abelled inhumane, ill-conceived and draconian by lawyers and human rights activists, who say that asylum-seekers and refugees will be hard hit by it.

"The Bill favours the rich at the expense of the vulnerable," said Fatima Khan, the director of the University of Cape Town's refugee rights project. "The amendments are harsh and unnecessary." Khan said the Bill allowed for asylum-seekers to be pre-screened at South Africa's border, in spite of the fact that immigration officials were not qualified to do this. "They should be allowed into the country and properly screened," she said.

Sheldon Magardie, the regional director of Lawyers for Human Rights, was angry that border officials would be empowered to deport people at the border "there and then". "The effect will be that persons with valid asylum claims at the border risk being immediately deported to countries where they may be tortured or killed," Magardie said. "This new procedure violates the spirit of South Africa's international legal obligations under the Convention Against Torture and the 1951 United Nations Convention Relating to the Status of Refugees."

Roni Amit, the senior researcher at the African Centre for Migration and Society, emphasised that the High Court ruled in 2006 that pre-screening was a violation of constitutional rights. "There is a perception that people are abusing the system," said Amit. "But rather than addressing abuse in the home affairs department, they're targeting people coming into the country."

Complaints
Critics also complain that the law empowers Home Affairs Minister Nkosazana Dlamini-Zuma to reduce the number of days given to asylum-seekers to report to an immigration officer for asylum status from 14 to five.

"It's cruel," said Khan. "The minister has no idea how vulnerable asylum-seekers are, especially females. Women are sometimes raped by gangs and left lying at the border for days.

"What is she going to do with these people who take more than five days? Is she going to deport them? Is she going to imprison them?" Said Magardie: "You can't have a one-size-fits-all approach. You can apply for asylum only at refugee reception offices in the main towns. Someone coming from the border will probably take more than five days to reach a big town."

There are measures dealing with cases of abuse in the Refugee Act as it currently stands, she said. The increase in criminal penalties was a further problem in the new law, said Magardie. "The minister has increased penalties from fines to jail sentences of up to 15 years for infringements. That is disproportionate."

A provision allowing for advanced passenger processing (APP), to give home affairs access to airlines' passenger lists, appeared to violate privacy rights. Said Magardie: "Home affairs is a creaking bureaucracy which cannot cope with large-scale violations of the integrity of the population register and identity theft. How this new and additional database maintenance responsibility for APP will be handled is a mystery."

Democratic Alliance home affairs spokesperson Annette Lovemore said the processing of the Bill was another concern, as the ANC used its majority muscle to force it through in the teeth of the unanimous rejection by opposition parties. "It was bulldozed through," Lovemore said. "The department did not consult at the drafting stage and gave a one-week submission deadline for public submissions for a very complex Bill. There was no robust debate."

Lovemore objected to the stipulation that foreigners wishing to establish businesses in South Africa must, within a year of being granted a visa, meet a certain unspecified "target". "Exceptional skills permits have also been eradicated and replaced with critical skills permits, making it harder to work in South Africa. "The overall effect is that it's going to make migration harder," said Amit. "It contains language that makes it harder for people to apply for visas of any kind."

Dlamini-Zuma told the media this week that immigration policy "has to be in line with our national priorities, of which job creation is one of the most important". Abuses of South Africa's open-immigration policy had compromised national security and tarnished the country's international reputation, she said.
Source: Mail & Guardian Online
Web Address:
http://www.mg.co.za/article/2011-03-25-immigration-bill-given-thumbs-down




Friday 25 March 2011

ANC uses muscle on immigration bill

ANC determined to push Immigration Amendment Bill through the National Assembly

WYNDHAM HARTLEY
Published: 2011/03/23 08:02:16 AM
CAPE TOWN The ruling African National Congress was forced to use its majority muscle to push the Immigration Amendment Bill through the National Assembly yesterday following rejection of the measure by all the main opposition parties.
The bill has attracted considerable criticism with its provisions that change the law for asylum seekers, particularly the one that now requires foreigners in SA to return to their home countries in order to change the status of their visas.
Home Affairs Minister Nkosazana Dlamini-Zuma angrily rejected opposition arguments that the bill would harm SA’s image abroad, that SA would fail to attract scarce skills, and that the bill was arguably unconstitutional for banning immigration practitioners from lodging visa and permit applications on behalf of their clients.
The Democratic Alliance (DA), the Congress of the People (COPE), the Inkatha Freedom Party and the African Christian Democratic Party (ACDP) all said during debate on the bill that they would oppose it.
Ms Dlamini-Zuma insisted that the ANC would not place on the statute book a law that was not in the best interests of the country. She said for those who obeyed the rules, the bill would make it easier to get a visa; but it also toughened up the measures that applied to those who did not abide by SA’s rules.
DA MP Annette Lovemore said the party fully supported measures that created a workable migration regime "one that enhances both national security and economic development" but was disturbed "at the extensive changes this bill proposes in the absence of a comprehensive migration policy". She accused Ms Dlamini-Zuma of "bulldozing" the bill through Parliament.
"This bill removes the exceptional skills permit and replaces it with a critical skills visa. An applicant for an exceptional skills permit was able to motivate why his or her skills or expertise were exceptional and why they would be of benefit to SA; however, this is not the case with critical skills. A list will be gazetted and a person with a skill that is not listed will simply not qualify. Based on the department’s dismal record with other similar lists, we believe that this change will only serve to keep critical skills out."
ACDP MP Steve Swart said "while there are a number of positive amendments … such as advanced passenger processing and adding human smuggling and trafficking to the list of crimes disallowing entrance … we share concerns as to the far-reaching implications of other amendments contained in this bill".

http://www.businessday.co.za/articles/Content.aspx?id=137877

Thursday 24 March 2011

Human Rights Report Card

CENTRE FOR CONSTITUTIONAL RIGHTS HUMAN RIGHTS REPORT CARD

The Centre for Constitutional Rights takes pleasure in presenting its third annual Human Rights Report Card indicating where, in our opinion, South Africa has been making progress with regard to human rights and where it has been regressing. We have once again awarded the following grades for human rights in this year's report card: A = Excellent; B = Good; C = Average; D = Poor; and E = Very Poor. At the same time, the +, = and - signs are used to indicate whether things are getting better, staying the same or deteriorating. We have also included last year's grade for comparison.

South Africa continues to be a functioning multiparty constitutional democracy. The Bill of Rights assures its citizens the full spectrum of human rights. However, some important rights have been diluted by legislation, government practice or by government failures in implementation and service delivery. During the past year South Africans have continued to enjoy most of the constitutional rights to which they are entitled. However, proposed legislation and government initiatives raise very serious concerns with regard to some core rights such as freedom of expression; property rights; important aspects of the right to equality; and freedom of trade, occupation and profession; labour relations; and the right to freedom and security of the person.
1. Equality: Grade: E= 2010 Grade: E=
Equality before the law and the right to equal protection and benefit of the law
  • The decision of the newly appointed National Director of Public Prosecutions, Adv Menzi Simelane, to drop all investigations into the arms deal has raised doubts concerning the independence of the National Prosecuting Authority and its ability to exercise its functions "without fear, favour or prejudice."
  • The continuing liberty of President Zuma's close associate, Mr Schabir Shaik, after he had been released from his 15-year prison sentence, supposedly because of terminal illness, seriously undermines the principle of equality before the law.
Full and equal enjoyment of all rights and freedoms
  • According to the 2010 United Nation's Development Programme's Human Development Report South Africa's GINI coefficient, which measures inequality in societies, is 57.8 on a scale where 0 equals absolute equality and 100 equals absolute inequality. This places us 162nd of the 169 countries that were assessed.
  • In practice, poverty, unemployment and poor service delivery deprive many South Africans of their right to full and equal enjoyment of all rights and freedoms.
Freedom from unfair discrimination
  • The ongoing imposition of unconstitutional demographic representivity continues to lead to unfair racial discrimination. If the proposed amendments to the Employment Equity Act are implemented removing provincial demographics in the implementation of employment equity, it is estimated that 1.3 million Coloured and Indian workers could lose their jobs through unfair discrimination.
  • Continuing gender discrimination undermines the equality of women - particularly in the rural areas. According to the UNDP, South Africa had a gender inequality index of 0.635 in 2008, placing it 82nd out of the 169 countries that were assessed.
  • South Africa is one of the world leaders in respect of women's representation in government. Women comprise 44% of members of Parliament, 43% of the Cabinet and 40% of local government councilors.
  • Gender inequality remains. According to a 2010 study by the Medical Research Council, 86.7% of men and 57.9% of women endorsed the statement that "a woman should obey her husband" and 53.9% of men and 29.8% of women agreed that "the man should have the final say in all family matters".
2. Human Dignity Grade: C= 2010 Grade: C=
  • The human dignity of many South Africans continues to be impaired by failure to make progress with the realisation of other rights and specifically the right to equality.
  • The human dignity is seriously impaired by degrading levels of poverty and persistent unemployment. In 2008 48% of the population were below the R524 per month poverty line index, down from 58% in 2000. The unemployment level in terms of the broader definition of unemployment is 35.9% and among black South Africans it exceeds 40%.
  • Poverty was alleviated by the payment of assistant grants amounting to R80 billion to 14 million South Africans in 2009/10.
  • According to critics, the proposed Employment Equity Amendment Bill; the draft Security of Land Tenure Amendment Bill and the raft of Labour Law Bills could threaten millions of jobs, with dire consequences for human dignity.
  • Human dignity is also impaired by crime, inadequate education and poor service delivery.
3. Life: Grade: E= 2010 Grade E=
  • More than 17 000 South Africans were murdered during 2009/10. This gives South Africa a murder rate of 34.1 per 100 000 - one of the highest in the world - but is a considerable improvement on the 66.9/100 000 rate in 1995 and the 37/100 000 rate in 2008/2009.
  • 5.7 million South Africans have HIV/AIDS - the highest number in the world - with approximately 1 000 new infections per day. The Actuarial Society of South Africa estimates that 190 000 people died of AIDS during 2010. Fatalities were down from 257 000 in 2004, primarily because of the successful roll-out of the world's biggest antiretroviral programme.
  • Between 2009 and 2010, the infant mortality rate increased from 43 per 1 000 live births to 47 per 1 000 live births, seriously affecting the right to life of infants. In the Eastern Cape the threat was substantially higher than elsewhere.
  • The proposed amendment of section 49 of the Criminal Procedure Act that expands the right of the police to "shoot to kill", will further threaten the right to life.
4. Freedom and security of the person Grade: D= 2010 Grade D=
  • The very high continuing incidence of assault, sexual offences and child abuse seriously undermine the right to freedom and security of the person.
  • The proposed amendment of section 49 of the Criminal Procedure Act, the so-called "shoot to kill" provision, also undermines the right to security of the person.
  • According to the Independent Complaints Directorate's latest Report 860 people died in police custody or as a result of police action in the past year, thereby posing a serious threat to the right to freedom and security of person.
  • South Africa has one of the highest rape rates in the world. The official statistic of 138.5 sexual offences per 100 000 people seriously underestimates the actual rate, since in surveys, one in three men admit to having raped a woman.
  • The number of detainees in our prisons continues to increase without the corresponding increase in facilities, thereby substantially reducing our ability to provide effective rehabilitation to the offenders. The right to freedom and security of person is thus increasingly undermined by the number of un-rehabilitated offenders.
  • The recent constitutional court hearing in the Glenister matter that there is a duty to establish and maintain an independent body to combat corruption and crime should greatly improve the fight against crime
5. Slavery, servitude and forced labour Grade: A= 2010 Grade A=
  • There are few instances of slavery, servitude or forced labour, apart from instances of the so-called "white slave trade".
  • This right should be further enhanced when the recently tabled draft Prevention and Combating of Trafficking in Persons Bill is made into law.
6. Privacy: Grade: B= 2010 Grade: B-
  • The privacy of citizens is generally respected. Sufficient legislative safeguards exist with regard to state interception of written, telephonic and electronic communication.
  • The right to privacy was, however, undermined by amendments to the Regulation of Interception of Communication-Related Information Act (Rica) that came into effect in July 2009. The amendments require operators to obtain the full name, address and identity number of customers buying SIM cards for prepaid services.
  • The action of the police in searching Mr Chumani Maxwele's premises without a warrant seriously undermines the right to privacy.
  • The unlawful raid by the South African Police on the office of the Public Protector without a warrant undermines the right to privacy.
7. Freedom of religion, belief and opinion Grade: A= 2010 Grade: A=
Freedom of religion, belief and opinion is widely enjoyed by citizens and organisations.
8. Freedom of expression Grade: C- 2010 Grade: C-
  • There is general freedom of expression within the limits set by the Constitution.
  • The arrest of Mr Chumani Maxwele for making a rude gesture at President Zuma's motorcade and the subsequent defence of the police action by the government, constitute serious breaches of freedom of expression.
  • The arrest of Sunday Times journalist Mzilikazi wa Afrika, who worked on a story that alleged police commissioner General Bheki Cele had leased new police headquarters for R500m without following the normal tendering process, undermines the freedom of the media and of expression.
  • The failure of the government to constrain or condemn the actions of Mr Julius Malema in singing songs calling for the killing of (white) farmers constitutes a clear abuse of the freedom of expression.
  • The proposed Protection of Information Bill will seriously affect investigative journalism and thus undermines the freedom of the media.
  • The proposed Media Appeals Tribunal will also seriously undermine freedom of the media.
  • The recent finding that the SABC Board interfered with editorial independence and blacklisted certain commentators shows how seriously the independence of the public broadcaster and the right to freedom of expression has been undermined.
9. Freedom of assembly, demonstration, picket and petition: Grade: B= 2010 Grade: B=
This right is generally enjoyed, although certain strikes and demonstrations have turned violent, infringing the rights of others.
10. Freedom of association Grade: A= 2010 Grade: A=
This right is universally and freely enjoyed.
11. Political Rights Grade: C= 2010 Grade: C=
  • South Africa is a fully-fledged constitutional democracy enjoying universal adult franchise, a national common voters' roll, regular elections and a multiparty system of democratic government.
  • However, effective control of both the legislature and the executive lies in the hands of those who control the majority party. The ruling party applies a policy of cadre deployment which gives its politburo control over all government leaders, including the country's President.
  • The South African Communist Party, a registered political party, continues to hold more than 70 seats in the National Assembly under the aegis of the African National Congress without having contested any election in its own name.
  • The arrest of Mr Chumani Maxwele for allegedly making a rude gesture at President Zuma's motorcade and the subsequent insistence by the police that Mr Maxwele should write a letter of apology to the President are serious contraventions of the right to free political activity.
  • Despite the Constitutional Court finding that all South African citizens have the right to vote, the failure to adopt legislation giving effect to this right means that the right to vote of South Africans living abroad is still impaired. This is disturbing in the light of the impending municipal elections.
12. Citizenship Grade: B= 2010 Grade: B=
  • Citizenship rights are generally acknowledged and enjoyed.
  • The dysfunctionality of the Department of Home Affairs in quickly and effectively issuing passports, IDs and other documents hampers enjoyment of this right.
13. Freedom of movement and residence Grade: A= 2010 Grade: A=
This right is freely enjoyed.
14. Freedom of trade, occupation and profession Grade: D- 2010 Grade: D-
  • Although the freedom is formally available, high unemployment of 35.9% effectively deprives millions of South Africans of this right.
  • Unbalanced affirmative action increasingly prevents some South Africans from practising the trade, occupation or profession of their choice.
  • The proposed raft of labour Bills - The Basic Conditions of Employment Act Amendment Bill, Labour Relations Amendment Bill, Employment Equity Amendment Bill and the Employment Services Bill, will seriously impact on the right of people to choose to work for labour brokers or pursue other forms of atypical or temporary employment.
  • The ban on labour broking under these bills will also infringe the right of labour brokers to pursue occupations of their choice.
  • Increased state control and interference in the activities of professional bodies, particularly the legal profession (from which judges are chosen), is a cause for concern.
15. Labour relations Grade: A- 2010 Grade: A-
  • This right is generally enjoyed. However the four draft Labour Bills propose far more rigid labour laws.
  • Moves by the South African Democratic Teachers Union to declare a single union in the education sector would deprive other small unions in the sector of their labour rights.
16. Environment Grade: C- 2010 Grade: C+
  • South Africa's power stations are 8th worst in the world in terms of carbon dioxide emissions.
  • The rising levels of acidic water in the abandoned mine shafts located in and around Johannesburg, coupled with our limited water resources, pose a serious threat to the environment.
  • Some fisheries and other natural resources are under serious pressure.
  • Poaching remains a serious problem, with 71 Rhinos having been poached this year.
  • On the other hand, South Africa is a world leader in many areas of conservation.
  • 75% of South Africa's sewage treatment plants are not up to green drop standard, which is broadly equivalent to international standards. Only 3.8 % of the total plants enjoy green drop status.
17. Property Grade: C- 2010 Grade: B-
  • Property rights are increasingly under threat.
  • The proposed draft green paper on land reform would limit the freehold property rights of South Africans and would seriously restrict foreign ownership of property.
  • The effective expropriation of some mineral rights has seriously undermined property rights.
  • The draft Security of Tenure Bill will have as yet immeasurable implications for the property rights of farmers.
18. Housing: Grade: B+ 2010 Grade: B+
By 2009/2010 the government had built more than 3 million houses and another
930 000 were in the planning stage. 76.2 of South African households lived in formal dwellings, 13.5% were still in informal dwellings and 10.4% were in traditional dwellings. Nevertheless, there remains an unacceptably large backlog of 2 million homes.
  • Problems continue to exist with housing lists.
  • The poor quality of workmanship in many of the RDP houses undermines the right to access to adequate housing.
19. Health care Grade: D+ 2010 Grade: D-
  • South Africa spends approximately 8.5% of GDP on health services. Public health expenditure amounts for 4.6% of GDP and private health expenditure the remainder.
  • Private health care - enjoyed by 16% of the population - is generally of high world standard, but public health care is relatively poor despite increases in expenditure. Service in many clinics and state hospitals remains unsatisfactory and there is a dire shortage of nurses.
  • The most serious health threat remains HIV/AIDS which also has a negative impact on tuberculosis rates and infant mortality. Between 2009 and 2010 the number of people with HIV/AIDS increased from 5.7 million to 5.8 million people.
  • The government is actively considering the introduction of a National Health Insurance Scheme, but there is still no consensus regarding the model and funding of the scheme which would require an estimated additional 10 000 general practitioners and between 7 000 and 17 000 specialists.
20. Food, welfare and social security Grade: B- 2010 Grade: B-
  • The Government has succeeded in providing access to electricity water and sanitary services to 72% of the population.
  • The number of people receiving social grants increased to 14.1 million in 2009/2010 - 28% of the population - which is not sustainable indefinitely.
  • The fact that more than 90% of the 5.9 million hectares of land the state has bought for emerging farmers are no longer productive poses a threat to our food security.
  • Critics claim that the proposed Draft Security of Tenure Bill might further threaten food security through the creation of agri-villages and through negatively impacting on commercial productivity.
21. Children: Grade: D= 2010 Grade: D=
  • The ample children's rights guaranteed by the Constitution are largely unavailable in practice to millions of children.
  • Child abuse is widespread.
  • In 2009/2010 there was a 14.5% increase in child murders.
  • There was a 42.3% increase in attempted child murders.
  • There was a 36.1% increase in all sexual offences.
  • There are tens of thousands of child-headed households and street children.
  • 36% of our children do not have access to running water.
  • 39% do not have adequate sanitation at home.
  • 18% of children live in households where children go hungry.
  • Over 9 million children live off child grants, which are mostly used to support other members of the family.
22. Education: Grade: E+ 2010 Grade: E+
  • Despite enormous allocation of funds education since 1994 has been a disastrous failure.
  • Although there was a nominal increase in the number of pupils who passed with grades good enough to proceed to higher education, the figure remains unacceptably low at 23.5%.
  • Only 15.1% passed the mathematics paper with 40%.
  • South African children fare very badly in international literacy and numeracy tests - even when compared with results in the poorest African states.
  • The Global Competitiveness Report revealed that South Africa is ranked 130th out of 139 countries in so far as the quality of our education system is concerned. The quality of our maths and science education places us 137th.
  • There are, however, indications that the government plans a more concerted and realistic approach to education, particularly at junior school level.
  • Indigenous language speakers do not have adequate access to education in the language of their choice at any level of education.
  • 78% of schools don't have libraries.
  • 87% do not have computer centres or centres that are not stocked with computers.
23. Language and Culture Grade: D= 2010 Grade: D+
  • The outlook for language rights has remained largely unchanged due to the failure of PANSALB to actively promote and develop the 11 indigenous languages.
  • English remains the de facto single official language.
  • Many black South African children are being deprived of the right to adequate basic education in their mother tongue.
  • Afrikaans education, both at schools and at universities, is under pressure.
24. Cultural, religious and linguistic communities Grade: B= 2010 Grade: B=
Cultural, religious and linguistic communities are generally free to pursue their interests, although the state has tried to impose requirements for demographic representivity in community-based charitable organisations.
25. Access to information Grade: D- 2010 Grade: C=
  • Although the right is granted by the Constitution, it is often difficult or impossible to obtain relevant information from the state.
  • The proposed Protection of Information Bill will seriously limit access to information from organs of the State - including government departments and parastatals.
26. Just administrative action Grade: C- 2010 Grade: C=
The increased decline in service delivery and standards, particularly in some of the poorer provinces, has made it difficult for some people to claim their right to just administrative action. Fortunately, the courts generally uphold this right when they are approached.
27. Access to the courts Grade: C= 2010 Grade: C-
  • The courts are theoretically accessible. However, many citizens who do not have the resources to appoint lawyers find it difficult to press their claims unless they are assisted by legal resource centres or legal aid.
  • The unacceptably high backlog at the Courts and delays further deprives people of this right, as does the dysfunctional criminal justice system, which often results in cases being thrown out.
  • The successful litigation mounted by an individual - Mr Hugh Glenister - with regard to the abolition of the Directorate of Special Operations (the Scorpions) is a heartening example of effective access to the courts.
28. Arrested, detained and accused persons Grade: D- 2010 Grade: D=
  • The current average overcrowding rate in South Africa's prisons is 143%.
  • 188 prisons countrywide are overcrowded, and more than 20 of these have an occupancy rate of more than 2 offenders per bed.
  • Overcrowding is a serious state of affairs as it leads to the growth of gangsterism and contributes towards the high level of recidivism.
  • Awaiting trial prisoners are subjected to unacceptable delays due to the collapsed criminal justice system.
Issued by the Centre for Constitutional Rights, FW de Klerk Foundation, March 18 2011

Wednesday 23 March 2011

Changes to Labour Laws

Changes to Labour Laws

In the very different, but related field of labour law, there are similar battles being fought, as no less than four pieces of labour legislation are proposed to be amended and going through the parliamentary process at the moment. It has been widely reported that one of the drafts is likely to lead to certain racial groups being seriously prejudiced and, for instance, that coloured workers in the Western Cape are threatened with losing their jobs by the thousands.

Other critical issues raised by industry stakeholders (Source: APSO) are:
  • All fixed-term employees will be considered permanent unless the employer can prove otherwise
  • Temporary employment will effectively cease to exist; the only options being permanent or justified fixed-term contract
  • The triangular employment relationship is repealed, effectively prohibiting the use of Temporary Employment Services as an intermediary
  • Requirement to pay fixed-term employees the same wages & benefits as permanent staff
  • Joint and several liability for sub-contractor (employer) and client company in respect to any unfair labour practice within an outsourced or subcontracted environment
  • All vacancies and placements will have to be reported, as well as reasons why referred candidates (from Public Employment Services) were not successful, to be given to the Department of Labour within 14 days
  • Fines ranging from 2% – 10% of turnover for non-compliance with the Employment Equity legislation
From Imcosa's March Newsletter

Tuesday 22 March 2011

immigration amendment bill

****If you are having problems that are not being adequately addressed, phone the Home Affairs DG on his cellphone.  Read more here.****

Immigration Amendment Bill 2010

Since November of last year, we have been closely following and involved in the parliamentary process around the Immigration Amendment Bill of 2010. The Forum of Immigration Practitioners of South Africa (FIPSA), as well as the Law Society of South Africa, the Legal Resources Centre, several law firms, the Centre for Development Enterprise (CDE) and many others, presented their comments on the Bill to the parliamentary portfolio committee on Home Affairs during the public consultation process. The criticism in relation to the most important issues was almost unanimous. In response to the public comments, the committee has asked Home Affairs to review certain aspects of the Bill. During the three committee meetings since the public consultation, there was much heated debate between ANC and DA members, as well as the Home Affairs team present. Every meeting was presented with further amendments, some of which have brought significant and critical relief from the original Bill’s proposals. On 8 March, the committee voted on the Bill and adopted it in its latest amended form.

What You May Have Heard About, But Has Subsequently Been Withdrawn from the Bill or Amended
  • Removal of waiver option for Business Permits: The original Bill proposed the removal of the option to reduce or waive the minimum investment of R 2,5 million, which would have meant that every applicant for a business permit had to invest at least R 2,5 million and that no exceptions to this rule would have been possible. This proposal has in the meantime been withdrawn and the waiver option will therefore stay.
  • The restriction of Business Permits to certain industries, to be prescribed by the Minister from time to time: The restriction has been removed and instead an exclusion clause has been inserted, in terms of which businesses in certain industries will be excluded, which industries will be prescribed.
  • The restriction of Corporate Permits to certain industries, to be prescribed by the Minister from time to time: The restriction has been removed and instead an exclusion clause has been inserted, in terms of which corporates in certain industries will be excluded, which industries will be prescribed.
  • Removal of work option for under 25-year-olds under Exchange Permit: The provision has been re-inserted and instead an exclusion clause has been inserted, in terms of which work in certain industries will be excluded, which industries will be prescribed. It is quite apparent that the above changes are really targeting strip clubs employing foreign “exotic dancers”, which have caused Home Affairs much embarrassment and negative publicity.
  • The prohibition of changing temporary residence status or conditions of permit or even extending a permit from within the country (or rather, allowing it only in “exceptional circumstances” and after approval from the Minister, which is practically equivalent to a prohibition): This restriction has been changed to only apply to holders of visitor’s and medical treatment permits, which is a relief, but in its current form will still affect working spouses of South Africans, children and spouses accompanying a permit holder, as well as holders of short-term authorizations to work wishing to change to longer-term permits. These persons will have to interrupt their stay, leave the country and apply from their home country. They will have to await the outcome of such application (with processing times of up to 3 months) until being allowed to return to their homes in South Africa. Exceptions will be made in “exceptional circumstances”, which are to be prescribed in the Regulations. After much heated debate on my side with the official responsible for the drafting of the Bill, at least the requirement for an exception to be granted by “the Minister” has been removed, which should make it more accessible.

Problematic issues that the current proposal includes
  • Removal of section 46, which provides that advocates, attorneys and registered Immigration Practitioners may represent applicants before the Department of Home Affairs. The concern is that the removal of section 46 will lead to the legitimization of corrupt and unethical “consultants”, taking away from foreigners the tool to differentiate bone fide practitioners from illegitimate ones, putting them at risk of being exploited and defrauded. Further, Home Affairs will have to communicate with and respond to thousands of individual applicants and companies instead of a controllable, reachable group of professionals who have expert knowledge of the immigration field and are able to disseminate information to their networks of clients, thereby ensuring that procedural and policy changes are complied with and that the system runs smoothly. Immigration is too complex a field for a call centre to be able to manage all enquiries with any level of significance or required expertise. This is expected to lead to inappropriate applications, negative decisions and a flood of appeals and/or court cases, making the process even slower and more unpredictable. In my capacity as Vice Chairperson of FIPSA, I formulated a letter that was sent out to large and influential clients of Immigration Practitioners country-wide, in a bid for support against the planned removal of section 46. About 40 signed letters by leading businesses, chambers of commerce, research bodies and major non-governmental organisations were presented to the committee’s chairperson and were discussed at the last committee meeting, but the ANC-dominated committee could not be swayed and insisted that the time for public input had passed. They will, however, be used once more in the next phase of the Bill, involving the National Council of Provinces and parliament’s National Assembly, and we again thank all those who have contributed to this action.
  • Application in person: The proposed section will require all applications to be submitted in person, where applications can currently be lodged by courier or through attorneys, advocates and immigration practitioners or their staff. As most readers will know, it is a common occurrence for counter staff at offices of Home Affairs and at foreign missions to give poor or incomplete advice. Furthermore, there are language and cultural hurdles to be overcome. Many clients have reported to us their frustrations with Home Affairs and come to us for assistance due to their negative experiences there (e.g. repeatedly standing in lines for many hours only to be turned away yet again). Poor advice over the counter leads to inappropriate and incomplete applications, rejections, appeals, a clogging up of the process, a waste of government resources and a deterrent of foreign skills, investment and other much-needed benefits to South Africa. Immigration Practitioners have been shouldering the negative and tedious parts of the immigration process for their clients in order to ensure that the latter’s experience of coming to South Africa is a positive one, but will now be prevented from doing that.
  • Job creation by Business Permit holders: The Bill proposes that Business Permit holders, instead of having to employ at least 5 South African citizens or permanent residents within 2 years from receiving the permit, will in future have to create a certain (to be prescribed in the Regulations) number and percentage of jobs for South Africans and permanent residents within 12 months. There exists great uncertainty around what this number and percentage will be.
  • Effective abolishment of exceptional skills permit (replaced by the critical skills permit, whereby the quota work permit was abolished): Persons currently qualifying for this permit include successful sportspeople, artists, musicians, scientists, academics and other persons who have had an extraordinary impact in their fields. Very often other types of work permits do not apply to these sought-after individuals, or are extremely onerous in their requirements. Also, it is probably impossible to anticipate or predict all the different industries and fields in which exceptional skills may be needed in South Africa. Hence, no list will be able to capture all of the country’s needs, which are also ever-changing. South Africa will be losing an important tool to attract highly valuable individuals.
  • Reduction of parliament’s control in respect of immigration policy: A number of changes proposed in the Bill will have the effect of parliament not being involved in critical questions of immigration policy. This includes all criteria attached to work permits, including intra-company transfer, critical skills and general work permits. These are all to be prescribed by Regulation. Since the amendments to the Immigration Act of 2005, Regulations do not need to be presented to parliament for comment anymore. The result will be a much-reduced oversight role of parliament.
  • Overstaying: In future, any person who has overstayed the validity of his or her permit for a certain (to be prescribed in the Regulations) number of times, may be declared “undesirable”, which means that they do not qualify for any future visas or permits. No differentiation is made in the Bill between voluntary and involuntary (e.g. as a result of incapacity due to illness) overstaying, and no exemption is provided for persons who overstay as a result of delays on the side of Home Affairs. This creates major uncertainty and again a dependency on the Regulations, over which parliament has no control.
From Imcosa's March Newsletter

Monday 21 March 2011

home affairs update: imcosa

The Department of Home Affairs’ statements relating to the number of temporary residence applications in the backlog change on a weekly basis. The latest, dated 21 February, speaks of a former backlog of 48 000 files, which is now said to be down to 24 323.

Astonishingly the statement spins it as if the centralization of the adjudication process, initiated by the Minister last year, was implemented as a result of an existing backlog and as if it presented the solution to such backlog, whereas in reality it was the cause of it (due to the centralization, the average processing time for temporary residence applications shot up from 4-6 weeks to 6 months and longer)! Note also that in about November 2010, the figure was said to be 17 000, and in December only 5 000. This suggests that things are getting worse, but may also mean that the figures are getting more accurate. Be that as it may, whilst IMCOSA still awaits some results from July of 2010, we have been receiving results on a few more recent applications in as little as two months, which is encouraging and shows that our work is on the right track. Also, the ratio of errors in the permits that are issued has improved slightly. In one court matter the Department has admitted to having lost or misplaced hundreds of applicants' files. The same has happened with some of IMCOSA’s files, but we have fortunately been able to resolve the relevant problems successfully.

In the meantime, Home Affairs’ public relations machine is working hard and newspaper articles quote the Minister as reporting on wonderful changes and improvements to the “old” processes, and on making things easier for skilled immigrants and investors. Nothing could be more removed from reality. I am happy to concede that there have been improvements in the processes since the middle of last year. However, looking at the depth of the crisis that existed then, the current situation is still considerably worse than prior to the centralization. Neither the new processes nor anything contained in the proposed changes to the laws is designed to make things easier for applicants. It was with some outrage that I read the Department’s statement of 21 February, in which the things that had been “improved” are listed. The list includes the 48-hour processing time for extensions of temporary residence permits as something that exists and functions. A survey of more than a hundred Immigration Practitioners registered with FIPSA (Forum of Immigration Practitioners) nationwide showed that not a single one had received an outcome for an extension within 48 hours or heard of anyone having received one.

Our battles on behalf of our clients continue here.


Court Action Against Home Affairs

The court application against Home Affairs by a group of immigration companies on behalf of about 600 of their clients in a bid to press the Minister and Department to finalize long overdue applications, is ongoing and the matter is expected to be heard in court within this month. We would like to reaffirm that IMCOSA is taking part in the legal proceedings in the best interests of our clients.


Update from Imcosa

Wednesday 16 March 2011

Refugee Amendment Bill: Home Affairs' perspective

South Africa: Refugee Amendment Bill to Streamline Application Process


15 March 2011
Pretoria The Refugee Amendment Bill will not only streamline the application process for those seeking asylum in South Africa, but will also simplify and make it more efficient, Home Affairs Minister Nkosazana Dlamini Zuma said.
Speaking ahead of the voting on the Bill in the National Assembly on Tuesday, the minister said the Bill would also make the application process more credible.
"We should not subject those genuinely seeking asylum to long protracted processes. At the same time, we would like to be firm and very strict with those who are abusing the asylum system knowing very well that they are not refugees," she explained.
South Africa had an unwavering and steadfast commitment to protect refugees, the minister added.
In terms of the current legislation it is up to a Refugee Status Determination Officer, a very junior person sometimes working alone, to determine whether a person qualifies as a refugee or not.
Home Affairs is now proposing that committees decide on the status of applications.
Members of these committees will have different expertise - be it in national affairs, international relations, politics or current affairs - required to adjudicate such matters.
"They will make decisions efficiently while restoring the integrity of the process," Dlamini Zuma said.
She explained that an application for asylum can have one of three possible outcomes: acceptance, rejection as manifestly unfounded or rejection as unfounded.
If the reasons for application are outside the internationally accepted reasons for granting asylum status, an application is considered manifestly unfounded and according to the proposed amendments will be reviewed by the Director-General.
If the director-general supports that original determination the applicants will be deported.
If during the interview, an applicant's case is found to be without merit; evidence of persecution is absent and their account not entirely truthful, such applications are declared unfounded and applicants have the right to appeal.
"As things stand an appeal process may take years to finalise. We are now proposing an Appeals Authority which can meet simultaneously in groups at different centres to consider applications which will go a long way towards expediting processes.
"The implementation of such proposals will cut short the waiting period and it will be easy to reconcile the findings of the committee as well as the determination of the DG in terms of the decision taken. Those who appeal unsuccessfully will be deported to their countries of origin," she said.
The amendments will also allow for the child born to an asylum seeker to be registered in terms of the Births and Deaths Registration Act, provided the birth certificate is submitted at a Refugee Reception Office in order to have that child included as a dependent of the asylum seeker or refuge.
Dlamini said she hoped that members of the House would vote in favour of the proposed amendments as it would ensure that South Africa upheld its commitment to human rights, and its international obligations.

http://allafrica.com/stories/printable/201103160112.html

Wednesday 9 March 2011

fast-tracking at the expense of quality

The department is saying one thing, but the reality is something else - my attorney has advised that the department (Pretoria hub) is not talking to members of the public/attorneys.  The reports should also get input from applicants and their attorneys.  Fast-tracking applications will inevitably result in a compromise in quality of adjudications.  The question is how many of these applications are being rejected for reasons that are not in line with the immigration act, only to be successfully appealed at a later date...


Home affairs ‘making headway’ in permit backlogs
LOYISO LANGENI
Published: 2011/02/22 07:14:27 AM

CENTRALISING the process for foreigners to apply to the Department of Home Affairs for a variety of permits had reduced the backlog from 38039 to 13677 outstanding applications, the department said yesterday.
The delay in processing work permit applications in particular has in some quarters damaged SA’s reputation as an attractive destination for scarce skills from abroad. Permit applications lodged with the department’s regional offices took months, and in some cases years, to process due to the absence of a coherent and sophisticated IT system.

The applications — for study permits, work permits, business permits, and temporary and permanent residence permits — did not include applications by undocumented Zimbabweans under the special dispensation, which required them to apply before the end of last year.

"Through centralisation (in Pretoria), the d epartment has assumed full control and accountability over all permit applications submitted at all our regional offices across the country," department director-general Mkuseli Apleni said yesterday.

"In this regard we also have implemented a filing system where all permits are held according to provinces, offices, category and date."

Mr Apleni said the backlog should be completed by next month as the department dealt with 1600 applications a day on average . An in-house courier service has also been established by the department to accept and dispatch all permit applications in time to their recipients.

Other innovations include upgrading the department’s IT system to allow applicants to track their applications online.

The turnaround time for processing a temporary residence permit is now four weeks, and six months for a permanent residence permit.

So far, t he department has processed 66000 of the 275000 applications by Zimbabweans who have applied to legalise their status in SA. The department plans to address this deficit by the end of June.

Home Affairs Minister Nkosazana Dlamini-Zuma is meeting her Zimbabwean counterpart in Pretoria today to discuss the plight of undocumented Zimbabwean nationals in SA.

Ms Dlamini-Zuma will also give feedback about the special dispensation for Zimbabwean nationals to legalise their stay.

http://www.businessday.co.za/Articles/Content.aspx?id=135002

Minister's promise expires

we are now  a week into March, backlogged applications are still outstanding and the department (Pretoria Hub) is not talking to the public/attorneys....

Home affairs backlog ‘over soon’.  Home Affairs gives assurance that bulk of backlog in work will be cleared by end of February.


LINDA ENSOR
Published: 2011/02/21 06:22:52 AM

CAPE TOWN — Home Affairs Minister Nkosazana Dlamini- Zuma has given an assurance that the bulk of the backlog in work and other permits would be cleared before the end of this month and that no further backlogs were expected , because of new systems in place.


The permit system for foreign workers and students would be streamlined significantly to make the process easier, she said.


The Department of Home Affairs is facing a number of class- action lawsuits by frustrated applicants for permits who have waited for an official response to their applications for a long time, in some cases as much as a year.


The minister told journalists during a parliamentary briefing on the governance and administration cluster on Friday the department would maintain the current centralised system of processing applications sent up from regional offices, but would keep a close and daily tab on the numbers received and dispatched.


This would eliminate the delays in getting the applications to Pretoria.


She said the government was committed to easing the entry of people with critical skills, students and tourists. For example, the requirement that businesses provide a police clearance for their prospective employees for the previous 20 years would be waived, with this being left to the discretion of the credible companies that employed them.


Also, instead of granting work or study permits for only a year , longer permits would be issued to cover the length of the critical skills work contract or the period of study so that people would be able to plan their lives.


This would reduce the burden on the department and remove opportunities for corruption .


"We are developing a system that is going to make it very easy to get a permit. At the same time we are going to put (in place) quite strong measures for those who are high risk, for those … abusing our system," Ms Dlamini-Zuma said.


"We are cleaning up all these things. When we are ready we will announce it, but it is going to be a very easy system for genuine business people, critical skills people and students. But we are going to get very tough with those who abuse our system."


A meeting in Pretoria today and tomorrow with the Zimbabwean ministers of home affairs, responsible for the issuance of passports, will try to sort out the delays in the finalisation of the permit applications by Zimbabwean nationals living in SA.


A total of 275762 applications had been received.


Yesterday, home affairs spokesman Ronnie Mamoepa said this would be the third meeting between Ms Dlamini-Zuma and the Zimbabwean m inisters , Kembo Mohadi and Theresa Makone.




http://www.businessday.co.za/articles/Content.aspx?id=134879