Impact of illegal migration on cities: input from Joburg & Ekurhuleni Mayors, SALGA & Minister

Meeting report

Opening remarks

The Chairperson said the joint meeting had been called to discuss the challenges related to the management of undocumented or illegal migrants. It was fortunate that the meeting was taking place shortly after a remark by the Commissioner of the United Nations High Commission for Refugees (UNHCR). Issues of managing immigration affected all three spheres of government. Under section 40 of the Constitution, government was constituted as national, provincial and local spheres, which were distinctive, interdependent and interrelated. Sections 40 and 41 spelled out how the three spheres of government could work and cooperate. Cooperation and intergovernmental relations between local government and the Department of Home Affairs (DHA) seemed to be problematic. The meeting had been convened to discuss this. What could be achieved after the meeting was a progressive way forward on how to work together to solve the issue of undocumented immigrants. The meeting should produce fruits that would benefit all inhabitants of the country. He was hoping for positive inputs, comments and contributions. Solutions to the challenges should be found at this meeting.

The Chairperson welcomed mayors and their delegations. He acknowledged apologies from the Minister of Cooperative Governance and Traditional Affairs (COGTA) and her deputies for their absence, and the Minister of Home Affairs and his deputy for arriving late. He welcomed the DHA and South African Local Government Association (SALGA) delegations. 

The Chairperson said that it was a joint meeting. However, the Chairperson of the COGTA Portfolio Committee would not be able to attend the meeting, as she was unwell. 

Undocumented migrants: SALGA Briefing

Ms Thembi Nkadimeng, President, SALGA, said SALGA was participating in key structures on migration chaired by the DHA, and supported studies on migration, so it was contributing predominantly to the economic pillar of the framework. It had contributed to the position paper on the informal sector (2019) which called for municipalities to support the informal sector, which employed over three million (2018) people nationally, and to review by-laws and policies in support of the sector. It also lobbied for national legislative reform in support of the informal sector, allowing for the registration of all informal sector workers and the devolution of all support programmes designed to support the informal sector to district and metro level.

SALGA had made some observations on the position paper and, in particular, had noted the following at the dialogues that had led to the development of the position paper: Some residents were arguing that foreign nationals should close down their stalls and hand them over to South African residents. However, it was the same residents that rented out their garages or erected structures within their properties so that foreign nationals could operate and pay them. They even got to the extent of applying for a permit to operate a spaza shop and then gave that permit to foreign nationals so that they could conduct their businesses. In certain municipalities, the accusation was that certain foreign nationals approach South Africans and make a financial offer of a certain amount of money, and thus signed an affidavit to surrender their stall to them -- and many South Africans had done that -- or that they undercut on price, had more competitive strategies, or even sold illicit goods.

Another perception was that foreign migrants ‘steal’ jobs from South Africans. The evidence showed that foreign businesses also created jobs for South Africans through direct hire. When a comparison was undertaken between South African-owned and foreign-owned small, medium and micro enterprises (SMMEs) in Tshwane and Johannesburg, it was found that only 5% of the South African businesses employed only non-South Africans, and 30% employed both. Of the foreign migrant businesses, 12% employed only South Africans, whereas nearly half employed both South Africans and non-South Africans. In a study of cross-border shopping retail businesses in the inner city of Johannesburg, mostly run by migrant entrepreneurs, it was found that one-third of employees were South African. In 2013, the Gauteng City-Region Observatory’s representative survey had revealed that 80% of informal businesses in Gauteng were owned by South Africans, while 20% were owned by local and international migrants. A 2014 Southern African Migration Programme (SAMP) study involving 618 migrants and refugees in Johannesburg had found that 46% were asylum seekers, refugees or permanent residents; 20% held work permits; 12% held visitors’ permits and 12% had no documentation.

Ms Nkandimeng talked about challenges at the local government level. These challenges could be highlighted in the context of legal or policy, resources and implementation, data for migration, and cohesive communities.

In the context of legal or policy, involving understanding, promoting and regulating the economy:

• Many municipalities did not have up to date by-laws -- they struggled to develop by-laws aligned to the constitution and the relevant laws that could also deal with the challenges identified on the ground.
• Where they might have valid by-laws in place, most municipalities could not enforce the by-laws adequately (human resources) or equitably (qualitatively, ensuring constitutional alignment).
• Registering the informal sector in order to understand and develop support strategies was a costly and onerous task and one that required appropriate supporting legislation.
• The legal basis for registering the informal sector was not clear, creating confusion for immigrants and local government. Also, it did not cater for local government to perform its developmental role effectively due to the fact that a pre-constitutional law, the Businesses Act of 1991, forced a binary response, prohibiting or allowing trade in certain municipal spaces.

In the context of resources and implementation:

• Most municipalities did not have the resources to develop and implement appropriate strategies, plans and development programmes supporting the informal sector, including émigré communities,

In the context of data for migration (developmental local government):

• Most municipalities did not have access to the data required to effectively plan development based on migration, whether internal or international migration.
• To be truly developmental, national data sets for migration were needed more frequently, in order to plan and overhaul the budgeting system, which was backward looking at the moment.

In the context of cohesive communities (accountable local government):

• Municipalities did not have, as a matter of course, systems which allowed a two-way communication channel between the émigré communities, the informal sector and local government.

Ms Nkandimeng proposed recommendations that local government should implement: These were that:

• SALGA, with its partners, should develop a model policy and by-laws that every municipality could use to speedily develop implementable by-laws.
• Municipalities needed to adopt relevant by-laws that were legally sound.
• They needed to Implement and enforce those by-laws equitably and within the ambit of the law and the constitution.
• SALGA should seek out models which existed in some municipalities to facilitate dialogue among émigré communities and locals.
• Municipalities should develop medium term plans and budgets for the municipal infrastructure grant (MIG) and Built Environment Performance Plan (BEPP) for infrastructure investment for the informal sector.

In cooperation with the three spheres, local government should:

• Provide the financial, infrastructural and technical support needed for the informal sector directly at local government level (metro and district).
• Revise the outdated 1991 Businesses Act, and develop a single piece of legislation that enables local government and incentivises the informal sector to register, and that clearly delineates the role that other spheres of government must play in documenting foreign nationals.
• Develop more frequent data collection on migration, allowing municipalities to plan for current and future populations.
• Revise the budgeting process accordingly, to be more needs-based and future-oriented.

Undocumented migrants: City of Johannesburg Briefing

Councillor Herman Mashaba, Mayor, City of Johannesburg, said the faced numerous inherited challenges, including a housing backlog of an estimated 300 000 units. Within the context of Johannesburg, illegal immigration compounded serious challenges in the provision of basic services and temporary emergency accommodation (TEA) to residents. As a City, they were expected to proactively plan and budget for the provision of basic services to all residents. It was required to proactively plan and budget for the provision of TEA, should residents be rendered homeless as a result of evictions or natural disasters. TEA ought to be provided to all rendered homeless, irrelevant of their status. The Department of Health was also required to provide health services, irrespective of the status of those seeking medical assistance. How was the City supposed to effectively plan and budget when they did not even know who was in their City? Tension was created between South Africans and foreign nationals when TEA was provided to foreign nationals while South Africans who were awaiting housing in terms of the official housing list were overlooked.

Undocumented foreigners found themselves victims of human trafficking and modern day slavery. Tension was further created between South Africans and foreign nationals as they competed for limited job opportunities.

Councillor Mashaba said that the City welcomed foreign nationals into Johannesburg and the country. However, it was important that all those who came to Johannesburg did so lawfully, and while they were there, they respected the laws of the Republic. The City encouraged foreign nationals from all over the world to lawfully visit the City, invest in its economy and help create jobs. Foreign nationals bought goods in the country, they established businesses, and stimulated economic growth. Foreign nationals contributed their skills and experience in sectors of economy where they were desperately needed. The City’s vision was to create an inclusive and prosperous city, where foreign nationals who were here lawfully could contribute to this vision.

The City’s Department of Social Development, through the Migrant Sub-Unit, assisted undocumented migrants through a variety of programmes. As part of these programmes, the Migrant Sub-Unit assisted undocumented migrants by facilitating engagement with the Department of Home Affairs (DHA), through Home Affairs employees who volunteered at the City, to assist them in acquiring the relevant documentation. In 2019, 363 illegal migrants were assisted. However, the Migrant Sub-Unit referred undocumented migrants who required legal assistance to non-governmental organisations (NGOs) such as Lawyers for Human Rights. For those undocumented migrants who had social issues, the Migrant Sub-Unit referred them to social workers. The Migrant Sub-Unit also facilitated Orientation Sessions between local South Africans and foreign migrants, with a view of creating better social cohesion between the two communities.  It ran the City’s Counter Xenophobia Programme. It also facilitated, amongst others, awareness campaigns with local religious leaders.

During July 2017, the City had housed over 600 undocumented migrants at the City’s Wembley Stadium facility. Their presence followed a fire at the Cape York building which rendered them homeless, and as was required, the City provided them with TEA. The current audit of the inner city facilities reflected 35 undocumented migrants being provided with TEA. The audits were conducted during the day, and many undocumented migrants left for fear of being detained. Most return after dark. The Department of Housing suspected that around 100 undocumented migrants resided at the abovementioned TEA facilities during the night. The DHA had not, despite requests to do so, been to the facilities to process the undocumented migrants. This had resulted in the Department of Housing spending a considerable amount of its annual budget on the provision of TEA to undocumented migrants. The unnecessary burden on the City’s fiscus could easily be curtailed by the DHA simply fulfilling its mandate and attending at the TEA facilities and processing the undocumented migrants.

Councillor Mashaba said that Group Forensic and Investigation Services had conducted an investigation into Reconstructiuon and Development Programme (RDP) housing corruption and counterfeit goods. The investigation into the Alexandra Renewal Project was still on-going. 128 cases of alleged fraud and corruption against suspects who had unlawfully benefited from the project had been registered with the South African Police Service (SAPS).  By September 2019, the investigation into the Alexandra Renewal Project had uncovered that 23 foreign nationals had been allocated RDP houses in Alexandra on the basis that they had fraudulently obtained South African identity documents in order to be allocated an RDP house. Group Forensic and Investigation Services, together with the SAPS and the Johannesburg Metropolitan Police Department had conducted four raids on nine different properties within the Johannesburg central business district (CBD) which had resulted in an amount of R40 million worth of counterfeit goods being confiscated by the SAPS.

Councillor Mashaba provided the Committee with a statistical analysis of arrests made over a four-year period from 2016 to 2019, that looked at all arrests made involving illegal immigrants and other related arrests of foreign nationals for various crimes. 7 841 arrests had been effected for various crimes.

The City and the South African Human Rights Commission (SAHRC) had engaged on the issue of undocumented migrants as a result of a complaint from the African Diaspora Forum. An engagement had been held between all three parties, and issues related to foreign migrants were ventilated. On conclusion of the engagement between the SAHRC and the City, a settlement agreement had been reached whereby the City agreed, amongst others, to host a social cohesion summit.  The City and the SAHRC had co-hosted a social cohesion summit at which different stakeholders were invited to participate. Invitations went to foreign nationals residing within Johannesburg; students from the University of Johannesburg and the University of Witwatersrand; South Africans living within Johannesburg; academics; the Executive Mayor, the Member of the Mayoral Committee (MMC) for Health and Social Development, the leadership of the SAHRC and several academics/experts, who spoke on the issue of migration.

For over three years -- and five Ministers later -- the City had continuously attempted to engage the DHA and the Ministers in good faith in the interests of the City and its residents, as well as intergovernmental relations as espoused in the constitution. However, this attempted engagement had come to very little. The City had met with Minister Gigaba in December 2016, and he had publicly committed to working together. Nothing had come of this public commitment. The City had written to Minister Gigaba on 17 January 2017 requesting an engagement. It had conducted a skills audit and become aware that some City employees had been issued fraudulent documents by the DHA. On becoming aware of this, it had written to Minister Gigaba on 18 January 2017, requesting his co-operation with regard to the City’s investigation. It had hosted a Mayoral Budget Lekgotla, where one of the topics to be discussed was “managing migration.” The City felt it would be prudent for the Minister and the Department to participate in the discussions, and had therefore written to Minister Gigaba on 3 February 2018, requesting his participation. Minister Gigaba never responded to any of the City’s correspondence.

On the appointment of Minister Hlengiwe Mkhize, the City had written to the Minister on 10 October 2017, requesting a meeting in order to discuss the challenges the City was facing regarding illegal immigration. This letter was simply ignored by the Minister.  When Minister Ayanda Dlodlo was appointed, the City had requested its lawyers to intervene. The lawyers had written to the Minister on 16 November 2017, demanding that the Department advise the City on the specific measures, plans and interventions which it intended putting in place to deal with the serious challenge of illegal immigration.

The City finally received a response from the DHA, which proposed establishing a joint committee to deal with the challenges of illegal immigration within Johannesburg. The DHA had thereafter sent the City the proposed terms of reference (ToR) for the joint committee, but the City had considered the ToR and rejected them on the basis that they were vague and wholly inadequate.

The City’s lawyers, on 9 March 2018, wrote to the Minister and the Director-General requesting a meeting to further engage on the proposed ToR. The Director-General accepted the meeting and after a considerable amount of diary re-shuffling, a meeting finally occurred, but nothing came of the engagement. On the appointment of Minister Siyabonga Cwele, the City again (on 10 December 2018) wrote to the Minister highlighting the City’s challenges with regard to illegal immigration. The City requested a meeting so as to further engage and hopefully renew the joint committee. The Minister never responded. Minister Cwele and the Executive Mayor met at the Randburg Home Affairs Office on an oversight visit. The Minister and the Executive Mayor held a brief meeting on the side lines. The meeting was very productive.

The City wrote to the Minister on 5 February 2019, requesting a response to the City’s previous letter. No response from Minister Cwele was forthcoming.

Upon the appointment of Minister Aaron Motsoaledi, the City wrote to the Minister on 7 June 2019, outlining the challenges the City faced with regard to illegal immigration. The City requested a meeting so as to find a joint solution to the challenges faced. No response was forthcoming. The Executive Mayor met the Minister at the funeral of a mutual friend and advised him of the challenges the City faced, as well as the lack of co-operation from the former Ministers. The Minister had committed to engaging and requested that the City send him all its previous correspondence to the DHA and previous Ministers. The City duly did so on 22 July 2019, but no response from the current Minister had been forthcoming.

Councillor Mashaba said that it was clear that the City had made every attempt to engage all five Ministers. It had done so in the spirit of cooperative governance as espoused in the Constitution, which required that the different spheres of government work together in good faith for the betterment of the people of South Africa. The values as advocated in the constitution appeared not to be ones that the DHA or the Ministers shared. It was essential to understand that the City was not calling for undocumented migrants to be immediately deported. The City was simply calling on the DHA to fulfil their constitutional mandate and ensure that all those who qualified for asylum or other permits were processed and provided with their papers timeously. Those that do not qualify should be returned to their homes.

The Supreme Court of Appeal had even found the Department to be in utter disarray. In the 2016 judgment of the Scalabrini Centre, Cape Town v the Minister of Home Affairs, the court had had the following to say:

“As regards the decrease in the number of asylum seekers and alleged improved efficiency in dealing with asylum applications, the Department overlooks the fact that according to its own records as at May 2015, there was a backlog of some 100 000 files which had not yet been decided by a refugee status determination officer; and a backlog of more than 100 000 cases which had not been decided by the Refugee Appeal Board. Save for a bald allegation that they were being addressed, the answering affidavit was silent on any progress made with these backlogs or whether they have increased since May 2015. Apart from this, the alleged efficiency was questionable.”

This judgement was hugely telling of the state of the DHA with respect to dealing with undocumented migrants. From the City’s experience with the DHA, very little had changed.

Councillor Mashaba concluded by stating that many people, through desperation borne out of political, social and economic instability in their countries, sought a better life in South Africa, and in Johannesburg in particular. As undocumented immigrants, many of these people made it past South Africa’s borders, but were forced to live on the fringes of society, in the shadows, and with limited protection. It was essential that the DHA cleaned up its act and ensured there was:

• identification of undocumented immigrants; and
• in the appropriate circumstances, legal documentation expeditiously provided to those who qualified.

This would protect those who wished to legitimately enter the country from criminal elements, including slum lords and drug traffickers, who abused their desperation and were able to evade the law. He called on the Committee to hold the DHA accountable and to ensure that they fulfilled their constitutional obligations.

Undocumented migrants: City of Ekurhuleni Briefing

Councillor Mzwandile Masina, Mayor: City Ekurhuleni, said the purpose of his brief presentation was to provide the Committee with a report on elements of criminality and attacks on undocumented foreign nationals during the period under review, and to highlight the impact of undocumented foreign nationals in the City. He highlighted the politics of migration, stating that the functional city-region was coterminous with the administrative borders of the region, as affirmed by the Municipal Demarcation Board, with 112 wards. The population had grown particularly rapidly, thanks to migration, to 3.379 million residents. This figure did not include foreign nationals, documented and undocumented. This rapid growth translated to forced urbanisation, which reinforced the spatial segregation instituted under apartheid. Meanwhile, population growth had been concentrated in a few locations and resulted in a strong spatial polarisation, urban sprawl and tracts of under-utilised land between the main urban centres.

This pattern of development not only reinforced existing inequalities, but generated high economic and environmental costs. If properly managed, however, the city’s potential for growth could be huge, with its direct implications for the community safety and security portfolio, in order to manage harmonious relations between the government of the city, its inhabitants and documented foreign nationals. Globalisation was increasingly testing the capacity of the regional economies to adapt and exploit their competitive edge, while also offering new opportunities for regional development. This was leading public authorities to rethink their strategies. Moreover, as a result of decentralisation, central government no longer had the sole responsibility for development policies.

Councillor Masina said that the City recognised that the need to pursue regional competitiveness and governance was particularly acute in metropolitan regions. Although they produced the bulk of national wealth, metropolitan economies were often held back not only by unemployment and distressed areas, but because opportunities for growth were not fully exploited. Effective metropolitan governance was called for if a functional region as a whole was to reach its full potential. The City believed that a polycentric city such as theirs required innovative territorial developmental strategies and a governance structure of a special type in order to meet the circumstances of a rigorous transformation of the physical structure, content and spatial patterns, with a special focus on measures aimed at increasing and intensifying an integrated governance model.

There had been various incidents of criminality reported from 2 to 5 September 2019. Arrests had been made by both the Ekurhuleni municipal police department (EMPD) and SAPS in the City. The City had joined efforts with the province to normalise the volatile situation. In that short period, 265 foreign nationals had been arrested for committing crimes. In addition to making the arrests, the City had provided shelter to displaced foreign nationals at DH Williams Hall in Katlehong and Tsholo Hall in Thokoza. The City, together with the DHA, had assisted in the repatriation of 379 foreign nationals to their respective countries.

Reflecting on impact of undocumented migrants, Councillor Masina said that the City was faced with complex socio-economic challenges, including:

• high youth unemployment, poverty and inequality;
• encroachment by foreign, undocumented immigrants and marginalisation of locals;
• the increased number of hawkers negatively impacting on the City’s capacity to enforce by-laws; and
• increased illegal mining activities.

Approximately 70% of all arrested illegal miners in the City were undocumented foreign nationals. The majority were from Zimbabwe, Lesotho and Mozambique.

There was an increased demand for unplanned service delivery by the City. Undocumented migrants had a negative effect. For example, they used municipal services without proper billing. In fact, illegal immigration brought undocumented workers, adding to overpopulation in the City. It brought unfair competition against locals for limited municipal opportunities and limited resources. Foreign nationals sold expired and counterfeit goods. They engaged in unfair trading competition, with excessively low prices. Their trading spaces were not kept clean, thus impacting on the City’s image and brand. The City had become overcrowded, which made the City unattractive to investors. There were increased levels of crime among local and foreign traders, and xenophobic attacks, which caused a lot of instability in the City, impacting the economy heavily.

There were challenges faced by the City when enforcing by-laws. Trading stalls and permits were allocated to City residents, who rented them out to foreign nationals. Forged permits were issued. One foreign national rented an entire facility, and rented it out to other foreign nationals in a syndicate. When conducting checks, foreign nationals claimed to be working for local community members. There was non-payment of rental fees to the City, and non-adherence to zoning guidelines. Overcrowding of facilities put a strain on maintenance. Most of the informal settlements had a significant number of undocumented foreign nationals which contributed to the challenges of informal settlements delivery.

Furthermore, undocumented migrants put a strain on the health system. Health expenditure by the City on foreign nationals could not be reclaimed from the concerned countries. Undocumented foreign nationals were involved in “medical shopping,” in that they could move from one health facility to the next, collecting medication. On top of this, there was an increase in the expenditure on paupers’ burials due to untraceable next of kin. The Department Health information system had no tool to capture information of immigrants. Manual tools were being used to capture this information, but they were not yet up to expectation.

Councillor Masina stated that due to the increase in undocumented foreign nationals, the informal settlements were growing very quickly, which further increased the need for additional free services for environmental and waste management. The growth in informal settlements increased the scope of work for these free services and further increased the cost incurred by the City. The spreading of informal settlements further increased the rate of illegal dumping, which affected the residential aesthetics.

He concluded by stating what the way forward entailed. There was a need to focus on:

• Ensuring effective and consequential border management and controls.
• Effective relations between different spheres of government in order to improve the delivery of public services, which would require among other things to respond to the need to create “a decent work and sustainable livelihood.”
• Enhanced inter-governmental strategies to support the City in its efforts to deliver on its mandate.
• Regulating and enforcing the participation of foreign nationals in the formal sector of the economy.
• Broadening the localised law enforcement forum to include the EMPD, Home Affairs, Customs, SAPS and Immigration, including on-going joint operations on hijacked buildings.
• Reviewing of the Immigration Act – in order to address the abuse of waiver provisions.
• Considering the utilisation and integration of the City’s municipal courts as immigration courts, as provided for by the Immigration Act, which had not been established.
• Enforcement of labour law regulations, with a 70%/30% apportionment in favour of South Africans.
• An intergovernmental relations programme being implemented by the City of Ekurhuleni and Home Affairs’ migration department, with the aim of correcting the status of undocumented foreign nationals. This ought to be done in conjunction with the relevant embassies.

Undocumented migrants:  Briefing by Minister of Home Affairs

Dr Aaron Motsoaledi, Minister of Home Affairs, said he welcomed the opportunity to engage with the presenters, but would like to understand what Councillor Mashaba wanted the Department to do. Foreign nationals – whether documented or undocumented – lived under local government. Mayor Mashaba had met him at a funeral and complained about illegal migrants, and had told him that he had sent correspondence to him and that he was not responding to it. He had told Mr Mashaba that he had not received any correspondence from him. He wanted answers. He had advised him that he was new appointee in the Department and thus needed a time to familiarise himself with how the Department operated and to be updated on the progress of its programmes. When he met with Mr Mashaba, he would be briefed on immigration services. The briefing process was still under way.

The Minister said that Mr Mashaba was making a cry for the Committee to help. He felt that he was not cooperating with him.  He recalled that there had been a meeting to which he was invited, along with the Minister of Police, and Mr Mashaba had been invited with a view to discussing the issue of immigration. They were meeting to discuss what could be a solution, and a way forward. Mr Mashaba had not attended that meeting -- he had delegated someone. He recalled that subsequent to that meeting, they had written a letter to him requesting permission to start implementing the resolutions of the meeting.

The Minister said that a decent leader did not go around throwing tantrums. Mr Mashaba was saying something here and saying something else there. He was simply blaming the DHA for the problems in his municipalities.

Dr Motsoaledi said the core mandate of the DHA was twofold: To be a custodian of identity and civic status of citizens, and to manage immigration securely and efficiently in the interest of economic development and national security.  The South African Defence Force (SANDF) was charged with the responsibility of managing the borderline, and this included the prevention and detection of illegal crossing. The Department of Public Works (DPW) was charged with responsibility for the installation and maintenance of the borderline fence in order to prevent illegal crossing of people, animals and vehicles in places that were not designated as ports of entry. In the annual performance plan, the Department presented strategies of what it was going to do in relation to the porous borders. All stakeholders were in agreement that the country’s borders were porous and that illegal immigration was a major problem.

The Minister said that the number of asylum-seekers had started to flow into the country in 1994. The number of asylum-seekers had increased gradually -- until 2007, applications from asylum seekers were below 5 000 a year.  In 2008, there had been a collapse of the global economy, and the flow of immigration had drastically increased fivefold, and no one had been expecting such a huge number of asylum-seekers.  The number moved from 45 637 asylum-seekers in 2007, to 207 206 asylum-seekers in 2008 and to 223 324 in 2009. South Africa had not been expecting the global economy to collapse and had not expected that foreign nationals would be coming to seek sanctuary here.  In two years, 500 000 asylum-seekers had come to South Africa. There had not been enough officials to respond to this flow of immigration. On top of this, there were not enough financial resources to deal it.

Although the flow of immigration decreased in subsequent years, the borders remained porous. The question was:  What could South Africa do with its porous border? The DHA had a response to this question. For future border management, the DHA had established the Border Management Authority (BMA), which was at an advanced stage. The BMA would be established as a single implementation entity and would assume control of all ports of entry and borderline functions.  The BMA was a solution to the porous border.

The Minister said that the DHA had law enforcement capability. An inspectorate unit had been established under section 33 of the immigration Act, 2002. Between July and September 2019, 56 operations had been conducted by the unit. The majority of operations had been in Gauteng. As a result, 22 illegal foreigners had been arrested for deportation, and two employers charged for transgression of immigration law. Other foreign nationals could be arrested for committing crimes. In that regard, the Department of Correctional Services had provided the list of people who were arrested, tried and sentenced. If a foreign national was arrested for committing a crime, it no longer mattered whether he or she was documented or undocumented. After being convicted of a crime, a foreigner was declared an undesirable person and thus qualified for deportation. When undocumented foreigners were arrested and therefore held at the Lindela facility, ambassadors were called to identify them. Some were not identified, and stuck with the Department. Some were deported but returned back to South Africa.

The Minister said that he was unhappy that his Department had been described as dysfunctional. It was not. The DHA was part of numerous law enforcement and crime combatting efforts in Gauteng, in addition to its own operations.  For example, “Operation O Kae Molao” was a weekly police operation that included members of DHA. In November 2018, following promises by the mayor to attend to issues of electricity in the community of Zandspruit, the DHA had been part of the enforcement operations that had resulted in 35 arrests, 29 deportations and six orders to leave the country.

The Minister said he had met with the Commissioner of the UNHCR, who had met with refugees and asylum-seekers. When they had heard that the Commissioner was in the country, they had protested. He had met them and said that South Africa had progressive refugee and immigration laws, but the major problem was the management of a huge and overwhelming number of asylum-seekers. Most of the asylum-seekers did not qualify for refugee status. Illegal foreigners were subjected to deportation. The number of undocumented foreigners deported was 33 399 in 2015, 23 004 in 2016, 15 033 in 2017, 24 266 in 2018, and 11 455 in 2019. The Department of Correctional Services had transferred 970 foreigners convicted of crimes to Lindela for deportation.   

The Minister said that children of undocumented or illegal parents were more vulnerable. However, children were innocent. He had met with the Minister of Basis Education and said that children of undocumented fathers should be allowed to attend primary and secondary schools. A directive on this matter had been issued by the Department of Basic Education (DBE). The Supreme Court of Appeal, in the case of Watchenuka and Another v Minister of Home Affairs, had ruled that asylum-seekers should be allowed to undertake work and education. The court had referred to documented asylum-seekers and not undocumented asylum-seekers. In the case of Somali Association of South Africa v Minister of Home Affairs, the same court had further said that asylum-seekers and refugees should be allowed to run (small) businesses. There were actually many laws and cases that were protecting vulnerable asylum-seekers and refugees. 

The Minister concluded by stating that the DHA was ready to meet with mayors and other stakeholders to find a solution to this problem. The issue of immigration could not be solved only by the DHA. Other stakeholders should come on board. The BMA was a solution to the porous border.

Discussion

The Chairperson said that the issue needed collective efforts for the challenges to be solved, and a progressive way needed to be found. It was unfortunate that one arm of government could take another to court.

Ms L van der Merwe (IFP) said that illegal immigration was a major crisis in the country, which was acknowledged by the President. The crisis was not something created by Mayor Mashaba. There were certain circumstances which were not acceptable. For example, she could not go to China and open a shop illegally and, when the shop was closed by the police for operating illegally, go and attack police officers. The spaza shops opened by foreigners were overwhelming. She sought clarity on whether the DHA had data on spaza shops run by Somalis, Pakistanis, Chinese, etc.  The borders remained porous and the BMA was a way forward, but what was happening in the meantime? The DHA was marred by incidents of foreign nationals getting documents through corruption. How many officials had been arrested? How many officials were serving sentences? The brief presentations had talked about undocumented migrants. Could the DHA provide the statistics of undocumented migrants? How many were there? When Dr Motsoaledi was Minister of Health, he had said that undocumented migrants put pressure on healthcare system.  Mr Mashaba was also stating that they put pressure on hospitals and clinics in Gauteng. Could he provide data on foreign nationals who used forged documents to obtain services?

Ms P Xaba-Ntshaba  (ANC) said that the Minister had indicated that there were many undocumented migrants who were living in the country, and that the crisis the country was facing was not caused by the inability to document them. The crisis was caused by the flow of migrants through porous borders. However, Mr Mashaba had a tendency of attacking the DHA every time he spoke to the media. He had become a crying baby. She asked he would stop crying. Every time a new minister was deployed to the DHA, that minister was attacked. It had become clear that the issue of immigration could not be solved by the DHA only. Other departments had to play their role. The problem implicated various departments, many of which were under the security cluster. The issue should be dealt at the security cluster level.

She said Mr Mashaba should not only cry that the DHA was doing nothing, but should rather demonstrate what he was doing in his city to solve the problem. What were the municipal programmes in which foreign nationals were involved?  Could he write to all concerned departments about what they were failing to do in their duties to address the issue of immigration? While he was crying about migrants, the people of Johannesburg were crying that he was billing them unnecessarily and exorbitantly. He was portraying himself as if he was only the person working in this government, but he was not in fact taking care of his own people.

Ms T Khanyile (DA) raised a point of order. She said the city’s billing system was not a matter tabled for discussion.

The Chairperson agreed.

Mr C Brink (DA) said that there should be a discussion between the DHA and the mayors -- a meaningful conversation. There was a lack of seriousness on the side of the DHA in dealing with illegal immigration. He sought clarity on what the terms of reference had entailed, and why they were rejected. 

Mr D Moele (ANC) thanked the Minister for what he had done in the short period of time he had been appointed as Minister of the DHA. The Minister could not deal with the issues involving migrants alone. All three spheres of government, relevant stakeholders and society should come together and join hands to find a solution. They could not be cry-babies. This would not help to solve the challenges. Coming up with good proposals would help the nation.

Ms H Mkhaliphi (EFF) said that she was not sure why the Portfolio Committee on Cooperative Governance and Traditional Affairs (COGTA) had been invited to attend. The meeting seemed to be between the mayors and the Minister. These were leaders who could have met somewhere else and resolved their differences. Based on their presentations, the mayors appeared not to know the reasons why they had been invited. The Members from the COGTA Committee were merely wasting their time. They could have attended to other important matters. They would talk to their Chairperson, who was not in attendance, and raise this issue with her. She had listened to Councillor Mashaba with his cry about foreign nationals, and it seemed that foreigners were limited to fellow Africans. That was wrong. Foreigners should not be limited to fellow Africans. Fellow Africans should not be referred to as criminals or as illegal. That argument could not be accepted. He could have briefed the Committee on what could be done to address the issues at hand and what the intervention of the Committee could be to address the challenges he was facing. He believed that the DHA should be held accountable for the immigration crisis. Yes. The DHA had to play its own role, but there were other departments that should be held accountable.

The DHA, on the other hand, understood that the BMA should be an intervention. The BMA had long waited to be approved by the National Council of Provinces (NCOP). While waiting for the BMA, what had the DHA been doing to address these presented issues? Members should not be told that there were a lot of foreigners and that the DHA and the cities had difficulty in serving them. They should remember that the borders were not set by Africans, but were colonial. The three spheres of government should deal with criminals and not nationalities. Criminals were nationals and foreigners alike. Referring to foreigners as criminals was self-hate. The issue of singling out foreigners should be discussed, because South Africa had progressive policies regulating international migration. Xenophobic statements were inciting xenophobic violence, which was affecting South African people.

She understood the fact that people were frustrated because they were not employed. However, their frustration could not stand in the way of establishing a united Africa. A united Africa was a solution. One African currency was a solution. Criminals – such as drug dealers – should be arrested and prosecuted. It did not matter whether a criminal was a South African, a Zimbabwean or a Nigerian. What mattered was to enforce the law.

Ms T Khanyile (ANC) sought clarity on why it had taken three years for the meeting between the DHA and the City of Johannesburg to happen. Did the DHA agree that xenophobic violence could have been avoided if they had responded to Mr Mashaba’s request?

Mr A Roos (DA) asked how social cohesion would be promoted and how xenophobic violence could be prevented? What strategies were in place to ensure these objectives were achieved? Presenters were in agreement that undocumented migrants had approached the DHA offices and instead of helping them, they had been turned away. The DHA should elaborate on this. He asked how cities, as local government, were adopting and imposing by-laws on foreign nationals without informing the DHA. He felt that the UNHCR had a role to play in addressing the issue of undocumented migrants, and what role it had played in addressing the crisis. What did the DHA need to solve the problem of undocumented migrants?

Mr J McGluwa (DA) said that all departments under the security cluster should have been invited to assist in finding solutions on how to deal with the issues raised by the mayors and the President of SALGA. He felt that the brief presentations had been lacking on how issues of social cohesion could be addressed or promoted. They had failed to speak to the Vision 2063 and how such a Vision would be implemented. He asked for further clarity on what had been done to deal with Alexandra Renewal Project.

Mr M Hoosen (DA) wondered what the purpose of the joint meeting was. Why had the COGTA Committee been invited? He did not understand why the Minister and the mayors could not meet, and had decided to meet before joint committees. Both the DHA and the cities were in consensus that illegal immigration was a crisis. It was therefore embarrassing that leaders could not meet to discuss a problem that they both identified as such. What the cities of Johannesburg and Ekhuruleni were experiencing was experienced by other cities. It was not the first time that these issues had been raised. The issues of undocumented migrants could not be resolved by the establishment and operation of the BMA. The BMA would focus on safeguarding borders, while the country was sitting with more than a million illegal migrants. The cities were talking about the immigrants who were already in the country. How did DHA intend to resolve the issue of addressing undocumented migrants? The question of safeguarding the borders was a question to be responded to by the defence force. Why was the Department of Defence not invited for the discussion, because it was responsible for safeguarding the borders? The borders were not safeguarded – because he had crossed the border into Mozambique and come back without anyone noticing him. It could not continue like that. There had been a genuine attempt by the City of Johannesburg to engage with the DHA, but in vain. Why could they not sit together and discuss these issues?  

Ms D Direko (ANC) said that all stakeholders should engage in immigration discussion in order to resolve the matter. She asked what the DHA was doing to solve the issues raised by the cities, and what they expected from the Committees towards solving the challenges faced by local government.  SALGA had made good recommendations, which should be implemented. The mayors had complained about the DHA’s failure to act in certain circumstances, but had not provided plans on how to solve the matter. They had talked about challenges, but these could not be addressed by the Minister of Home Affairs alone. Many issues could be addressed at cities or municipal level, and some could be solved at the provincial level. Mayors were aware of the corruption that was going on. Fighting against corruption and prosecutions of corrupt officials were essential as a way forward.

Mr B Hadebe (DA) welcomed all the brief presentations, and summarised them so that Members would understand why they had been invited and the issues that they were dealing with. He highlighted the key issues identified by each presenter. He felt that it would not help to point fingers at who had failed in their duties, but the mayors and the Minister should rather engage each other on matters as a government. There should be an active intergovernmental relationship. He agreed that he did not see the reason why the Committee on COGTA had been invited to the meeting, as nothing relating to COGTA was being discussed.

Ms M Tlou (ANC) commented that the leaders should go back and engage among themselves, because the Members could not be invited to come and babysit them. They should come to the Committee when they were in need of the Committee’s assistance or intervention. 

Mr G Mpumza (ANC) said that it had been unwarranted and uncalled for to qualify the DHA as dysfunctional.  All spheres of government should cooperate and find a way of dealing with challenges.

Ms M Kibi (ANC) said she did not agree with Mr Mashaba’s presentation, which had portrayed foreigners as criminals. Had he compared this data on foreigners with data on nationals in order to come to his conclusion? The presentation did not refer to the percentage of illegal migrants who had been apprehended to indicate that such a percentage should cause alarm.  Why had the City engaged with the DHA through lawyers, instead of finding strategies on how to deal with the issue at hand?

Mr J Maake (ANC) said that Mr Mashaba had thought that this was a forum that could help him to engage with the DHA. As spheres of government, the City and the DHA should go and find a solution to the challenges and report to the DHA on 27 November 2019 on how they intended to deal with the challenges. It was not the duty of the Committee to find an operational solution, but for the Executive to find a solution.

Ms G Opperman (DA) asked why the DHA was not capturing the qualifications of refugees and asylum-seekers so that they could fill the skills shortage gaps in the country. She asked what mechanisms were in place to prevent future xenophobic violence.

Mr M Chabane (ANC) said he felt that the joint meeting had been a better forum for Members to understand and appreciate the challenges faced by cities or municipalities. Councillor Mashaba should appreciate the work the DHA was doing, and thus not qualify the DHA as dysfunctional. This qualification would not help the Committee to guide the Department. The SALGA should help them to meet half way, because it had provided good recommendations. There was a need for SALGA to look at crimes committed by illegal foreigners and how they affected the community.

The Chairperson welcomed all comments, inputs and suggestions from Members, but added that there was no time to respond to all the questions. He asked presenters to respond to the Members’ concerns in writing.

Presenters’ responses

Ms Nkadimeng said two issues had been raised relating to her brief presentation. She asked whether issues were visible to a naked eye, or whether many of them were based on perceptions. In fact, foreign nationals had to cross a crocodile-infested river to get to South Africa. Those districts alongside the borders were not raising all these issues. It should be underlined that all migrants could not always use ports of entry. The BMA would not succeed in ensuring that immigrants made use of ports of entry. Many issues of illegal immigration should be dealt with at the local level. There were more than 250 mayors in South Africa, and they could not all be writing to the Minister to come down to inspect issues relating to illegal immigration. Writing to, or having a meeting with, a Minister was not a proper way of dealing with all these challenges.

Mr Mashaba said that he was pleaded for an intervention from the Committees, and appreciated the opportunity of engaging with the DHA. He was looking forward to meeting with the Minister.

Mr Masina commented that he felt that he had been ambushed. He did not share the same view as Mr Mashaba because he believed that there were other institutions in the security cluster that needed to be engaged to find a solution to the matter. If borders were not crossed, South Africa would not be able to implement international and regional policies on free trade, free movement, labour migration and integration of the economy. Crossing of the border should be legal.

Minister Motsoaledi said that he believed that he should not have had to use this forum to engage with the mayors. The issues were not tied to him. There were issues that needed to be dealt by different departments at the local, provincial and national level. These were issues affecting the whole country, and not only the City of Johannesburg. He said the DHA would provide answers to questions in writing.

The Chairperson commented that this had been very important meeting, as more information on challenges caused by undocumented migrants had been shared. The recommendations of SALGA should be given adequate consideration. It had become even clearer that all spheres of government were needed to cooperate to deal with the impact of undocumented migrants on service delivery and social cohesion. The recent violence had taken place in municipalities, and SALGA could facilitate engagement with other spheres of government to ensure that the plight of poor and smaller municipalities was not overshadowed by events in the large metros.

The Chairperson added that conducting raids on undocumented migrants would amount to little if the BMA was not implemented to secure the country’s borders. The BMA was going to consolidate all the seven departments operating in the border posts and the border line. It would also simplify the 58 pieces of legislation which were applicable to the borders. The joint meeting was not about the dysfunctionality of DHA, but about the challenges faced by local government in addressing issues of international migration. The Committee had been called upon to contribute to finding a solution to the problem. Dealing with illegal immigration could not be translated into discriminating against a particular group of immigrants.

The DHA should meet with municipalities through SALGA to strengthen their cooperation and report back on the proposed solutions. However, the deadline was not 27 November 2019, as Mr Maake suggested. There was a need to ensure that government solved the underlying factors which contributed to violence in poor communities. These included fighting poverty, reducing unemployment and enforcing the laws of the country, especially the labour laws.

South Africa had signed free trade protocols which needed to be implemented. There were a huge number of of foreign nationals who were operating small businesses in remote rural areas. This was an issue to be raised with the Department of Small Business and the DHA. The work done by the City of Ekurhuleni to assist foreign nationals who wanted to go back to their home countries was welcomed. The DHA was urged to continue with its law enforcement operations which had seen it conduct 56 raids between July and September. However, he referred to the recently signed African Continental Free Trade Agreement, to which South Africa was a signatory, and said that effective border control and management would boost the aspirations of this and other international agreements that sought to boost cross-border trading.
 

The meeting was adjourned.