Progress made to introduce consequential amendments to Electoral A/ B, Marriages A/B and amending Section 34 of the Immigration Act; with Minister

Meeting report

The Chairperson officially opened the meeting and welcomed all to the meeting. Apologies were acknowledged.

The Committee Secretariat reminded the Committee that on 16 October, the Chairperson had written to the Minister of Home Affairs to inquire about an update on the consequential amendments to the Electoral Amendment Bill and the Marriage Bill.

The Minister's response indicated that the Department of Home Affairs (DHA) was trying to get direct access to Cabinet to introduce the consequential amendments to the Electoral Amendment Act to Parliament. This was expected to happen in November. The Bill would be submitted to the Committee once the Cabinet approved the submission to Parliament and certification was obtained from the Office of the State Law Advisor.

Concerning the Marriage Bill, the Minister’s response highlighted that the Department had submitted the Bill to the State Law Advisor for a legal opinion before it was tabled before Parliament and Cabinet.

Input by Minister of Home Affairs

Dr Aaron Motsoaledi, Minister of Home Affairs, said that his writing to the Speaker had been a while ago, and there had been a lot of developments between then and now. He indicated that these issues were about processes from the Department ’s side, as all the bills must undergo extensive processes. The Minister assured the Committee that the bills were ready, and they were with the State Law Advisor, and a few technical issues were being attended to.

Mr Tommy Makhode, Director-General, DHA, advised the Committee that it should be referred to as the Electoral Matters Amendment Bill, and not a consequential bill. He echoed the Minister's remarks that the Department was currently awaiting the Office of the Chief State Law Advisor, which had already sent a preliminary legal opinion. The preliminary opinion indicated that its contents did not render it unconstitutional in terms of the context and scope of the entire Bill. Therefore, a few issues were being worked on before the final certification.

Update on Marriages Bill

Mr Makhode said that Cabinet had approved the Bill on 22 June, and it sought to rationalise the marriage laws about various types of marriages; to recognise marriages entered into with spouses regardless of religion, culture, sex, gender, sexual orientation or any other beliefs of the spouses; to provide for the requirements for monogamous marriages; to provide for the requirements for polygamous marriages; to provide for designation of marriage officers; to provide for solemnisation of marriages; and to provide for matters incidental thereto.

The closing date for the public to comment had been 31 August, and the DHA had received over 11 000 written comments from various stakeholders such as the Cultural Religious and Linguistic Commission; faith-based organisations, non-government organisations (NGOs); civil society organisations (CSOs), the Centre for Child Law (University of Pretoria), the National Education, Health and Allied Workers Union (NEHAWU), the Department of Justice and Constitutional Development, and the Centre for Social Justice (University of Stellenbosch). Following the closure of the submission date of written comments, the DHA proceeded to consider the written comments and revised the Bill accordingly. The revised Bill has been presented to the Minister, and it is currently with the State Law Advisor and would be submitted to the various clusters.

The Department was currently awaiting certification from the Chief State Law Advisor, who had already indicated that the Marriages Bill and the Electoral Matters Amendment Bill were being prioritised. However, what was important was the consideration of the preliminary legal opinion and the revision of the Bill accordingly.

The DHA had submitted the socio-economic impact assessment system (SEIAS) report to the Department of Planning, Monitoring and Evaluation (DPME), and was currently awaiting certification from the DPME. Once completed, the DHA would submit the required Cabinet Memorandum and the Bill to the relevant clusters.

Once Cabinet had approved the introduction of the Bill to Parliament, the Minister would sign off the required letters to the Speaker of the National Assembly and the Chairperson of the National Council of Provinces (NCOP). After this, the Notice of Intention to introduce the Bill into Parliament in the Government Gazette would be published, and then the Bill would be submitted to Parliament.

Update on Immigration Act

On the Amendment of Section 34 of the Immigration Act, Mr Makhode said that the Bill still needed to be processed through State Law Advisors. The purpose of the Immigration Amendment Bill was to give effect to the judgment of the Constitutional Court which was delivered on 29 June 2017. The Court had ordered that Section 34(1)(b) and (d) of the Immigration Act were inconsistent with Section 12(1) and 35(2)(d) of the Constitution.

Section 34(1)(b) and (d) provides that without the need for a warrant, an immigration officer may arrest an illegal foreigner and cause him or her to be arrested, deported, and that, pending deportation, may detain the illegal foreigner. The provisions further indicate that the foreigner concerned may at any time request any officer attending to him or her that his or her detention for deportation be confirmed by warrant of a court which, if not issued within 48 hours of such request, shall cause the immediate release of such foreigner.

Therefore, the proposed changes include Clause 1 of the Bill, which provides that any foreigner who is detained for purposes of deportation must be brought before a court in person within 48 hours of his or her arrest for the court to determine whether to confirm his or her detention after having heard and considered any representations by the immigration officer and the foreigner concerned.

Clause 2 provides that a foreigner may not be held in detention for longer than 30 days without a warrant of a court, although the court may, on good reasonable grounds, after having heard and considered any representation by the immigration office and the foreigner concerned, extend such detention for an adequate period not exceeding 90 days.

The Bill still needed to go through proper processes before being brought back to the Committee.

Minister Motsoaledi added that the history of the Immigration Act was such that the judgment in the Constitutional Court was passed in 2017, and Parliament started this as a parliamentary bill in 2018. However, this was not completed, and the elections took place thereafter. There were procedures which should have been followed by Parliament when an election takes place before a bill is finalised, but unfortunately, this never took place, hence the Bill expired [lapsed].

There was then an agreement with the Portfolio Committee that the Bill must be an executive bill instead of a parliamentary bill. The Minister reaffirmed that the Department did not steer away from what was already being considered by the Fifth Parliament -- what was left were mere technicalities which were being attended to by the State Law Advisors.

Discussion

The Chairperson said there had been a lag, and there was a need for a timeframe that would guide the navigation of the bills that had been presented before the Committee. He then allowed the Committee to engage with the presentation.

Mr G Hendricks (Al Jama-ah) thanked the Chairperson for suggesting an oversight meeting with the Minister of Home Affairs so that his Private Member’s Bill did not delay the pressing Marriages Amendment Bill. There has been enormous progress achieved in the short period in addressing the key pressing issues, such as the registration of Muslim marriages in the National Population Register.

He clarified that Al Jama-ah was not a religious body, but a political party.

Mr K Pillay (ANC) welcomed the presentation and appreciated the work that had been done. He indicated that he seconded the Chairperson’s recommendation that there should be a timeframe so that the deliverables were achieved.

Ms L van der Merwe (IFP) said that the general processing of bills seemed to be taking far too long. However, the Committee welcomed the progress updates from the Department .

In agreement with Mr Pillay, she said there was a need for a clear roadmap regarding timeframes to ensure the deliverables were met.

It had been said that the timeframe for the Marriages Amendment Bill to be tabled before Parliament was April 2024, so if the elections were held in May 2024, was it not concerning that the Bill may be left unfinalised? Was there a quicker route that could perhaps be considered?

She said the Minister had indicated that the Immigration Amendment Bill had been left with some technicalities which were being attended to. However, general immigration reforms have been on the discussion table for a long time, with little progress.

It was concerning that the Department had to release illegal immigrants who were detained and had not been processed within the 48-hour window. This raised many questions and concerns, as the fight against illegal immigration and undocumented persons seemed to be an ongoing cycle with little impact.

Ms M Molekwa (ANC) commended the Department for the work that had been done, and agreed with the recommendation to have a timeframe on these issues.

Mr A Roos (DA) highlighted that it was a general challenge that the processing of bills by the DHA was long, and this had a heavy impact on society in various ways. Was there a way to capacitate the Department to be able to process bills quickly?

He agreed with the recommendation to have a timetable on the Electoral Matters Amendment Bill. However, that timetable would need to work backwards from the process of the Independent Electoral Commission (IEC) of South Africa, starting from when elections were declared and how much time was needed for the Bill to the time the Bill would be tabled. The concern was therefore around whether this would be concluded before the elections.

Referring to the Marriages Amendment Bill, Mr Roos said that in the Women's Legal Centre Trust judgment, the Court had given the President, Cabinet and Parliament 24 months to remedy the defects by amending existing legislation or initiating and passing new legislation within 24 months to recognise Muslim marriages. This did not suggest that a circular was going to meet the requirements of this judgment. Had the DHA sought a legal opinion on whether the proposed circular met the requirements of the judgment? In the case that the Bill was tabled in Parliament in April 2024 or lapsed, would the DHA approach the court concerning the matter of missing the 24-month deadline?

The court’s judgment on the Immigration Amendment Bill had been handed down in June 2017 and Parliament had had 24 months to correct the issues raised. He recommended that since there was always a legacy report at the beginning of every [parliamentary] term, court rulings should form part of that legacy report in the future so that these issues were attended to timeously.

It seemed like the changes to the Immigration Amendment Bill were short. Therefore, why had it taken so long to bring the Bill before Parliament?

Why was the DHA facing litigation from persons facing deportation since 2009? What was the nature of these cases?

Mr Y Tetyana (EFF) asked the delegation from the DHA to inform the Committee of the number of bills that the Department had been able to pass. This was important to know so that the Committee did not have the impression that the Marriages Amendment Bill was going to have passed all the tests in April 2024, as the process seemed to be long.

Mr M Lekota (COPE) thanked the Department for the update on the progress.

Adv B Bongo (ANC) appreciated the update provided and the work done by the DHA. Noting the concerns raised by the Committee, he said it would be important to have a proper roadmap on how to proceed with the issues brought before the Committee by the Department .

Ms M Modise (ANC) appreciated the update provided by the Department, and agreed with the recommendation put forward by the Committee on the timeframes and deadlines that were to be met by DHA. She suggested that the Committee Secretariat assist as a matter of urgency to draw a roadmap so that there was a clear way forward until the end of the term.

The work that the Department had done was commendable and, understandably, these processes sometimes took time to be completed.

The Chairperson requested that Mr Hendricks write to the Committee indicating the formal withdrawal of the Private Member’s Bill, so that this was on record.

Mr Hendricks responded that his party had withdrawn his Private Member’s Bill so that Muslim marriages could be registered on the National Population Register. There had been extensive meetings as there had been an assurance that a few clauses in the Private Member’s Bill would be accommodated in the new [Executive] Bill. He indicated that the correspondence to the Committee would be initiated, as per the Chairperson’s request.

Responses

On the Marriages Amendment Bill, Minister Motsoaledi reminded the Committee that a decision was taken in 2019 that the marriage regime of the country needed to be changed for various reasons. The fact was that there were many Marriages Acts which did not fit the country's constitutional democracy. In the process of attending to this, that was when the Women's Legal Centre went to court regarding Muslim marriages. There had been engagement with Mr Hendricks to work through these issues, especially Muslim marriages.

Minister Motsoaledi agreed with the Committee that the processing of the Marriages Amendment Bill had little time left due to the extensive consultations and processes in the last four years.

Concerning the registration of marriages, Minister Motsoaledi said that all marriages should be on the National Population Register. It was a grievous fault that the Act passed in 1961 was the only recognised Act. Things had changed with the introduction of the National Population Register in 1986.

The DHA had been working with Mr Hendricks and made various provisions, such as having a desk at Home Affairs that would help guide on the process of registering Muslim marriages.

April was the maximum time. However, the DHA was trying to move the finalisation of the Bill to be faster. If this was expedited without any issues, then the Department would be able to conclude this before April.

Concerning the consequential amendment to the Electoral Amendment Act, Minister Motsoaledi said that the Department was eagerly waiting - as the Committee might be aware that this amendment had been challenged in court. The DHA had been waiting seven weeks for the Constitutional Court to make a judgment.

The amendments, such as the Political Party Funding Act, the Electoral Amendment Act, the Electoral Commission Act, the Elections Communications Act, and the Financial Management of Provincial and National Parliament, were accurate, and most of the issues were technical. The one that would need the Committee’s attention would be the Political Party Funding Act, because it was already in court.

Regarding immigration reforms, Minister Motsoaledi said that it had been mentioned previously that the DHA was trying to overhaul the immigration system of the country. It had been working on the White Paper for the past 24 months as there was no policy on immigration but only laws on immigration, with no overarching policy. It would not be possible for an act about immigration to be processed in the current session of Parliament, but the White Paper would certainly be passed. The White Paper would be the foundation of the acts that would come in the next Parliament. This was indeed a work in progress.

There were instances where police raided areas without informing the Department . This created problems, as the DHA had few immigration officers around the country, which then caused delays in the processing of illegal foreigners within 48 hours. Law enforcement had therefore been asked to inform the Department when conducting the raids.

The Chairperson said that the issue with the police was an issue that would be looked at. The DHA Minister and the Minister of Police or the Commissioner would have to be invited to appear before the Committee so that the issues confronting these two departments were attended to. The Committee must be thoroughly briefed.

There must indeed be a timeframe developed, specifically addressing the issues that had been put before the Committee in the meeting. The timeline should be in line with what had been presented by the DHA.

Committee minutes

The Committee adopted the minutes of 17 October and 20 October, with amendments.

The meeting was adjourned.