Hon Deputy Speaker, hon colleagues, hon members, the democratic government and democratic South Africa understand the value of immigration and acknowledge the immense contribution of immigrants to the development of our economy and the creation of wealth. In fact, our nation owes its diversity to the different waves of immigration that have swept through the country, although not always for good reason. Today we recognise this diversity as one of our greatest strengths.
As part of the global village, we would be short-sighted to underestimate the role that immigration can still play in the economic, social and cultural development of our country. However, our immigration policy has to be in line with our national priorities, of which job creation is one of the most important.
Tourism can also make a great contribution to our economy, so our visa regime necessarily has to enhance the growth of this sector. Analysis of trends has shown that the vast majority of external tourists come from our own continent.
The recruitment of critical skills will also be facilitated through the introduction of a critical skills work visa. We have also simplified requirements for the issuing of our student visas while our visa and permitting regime is going to be simplified for business and investors.
We recognise that South Africa has endless possibilities for tourists, investors, those with critical skills and students. Our beautiful shores are inviting; our spectacular landscapes, magnificent sunsets and legendary hospitality await all foreign nationals who come to our country legitimately. The South African government further recognises our commitment to the peoples of the Southern African Development Community, SADC, who paid a high price for supporting our struggle for liberation, and we are committed to working towards regional integration. This must include the free movement of people and goods and exchange of skills through academics, scholars, businesspeople and investors.
Having said this, we have to put some checks and balances in place to stop the spread of organised crime, trafficking in persons and corruption. We must discourage the abuse of our open immigration policy.
Let me now just touch on a few highlights of the amending Bill. Firstly, on the issue relating to immigration practitioners, those people who assist foreign nationals to get all sorts of permits from Home Affairs, our view is that they will, of course, continue providing advice to foreign nationals on immigration matters. However, the department would like these foreign nationals to apply in person for permits and not through the proxy of immigration practitioners. We will no longer be issuing permits and other documents to faceless applicants. We want to see them in our offices and know who we are giving the permit to. As far as the business side is concerned, it's neither our mandate nor intention to interfere there.
Another key element of the proposed legislation is that those who are issued with a visitor's visa and medical treatment visa will not be able to change the status of these visas while in South Africa. This is because the majority of people who come on a visitor's visa do not create any problems. They come, enjoy South Africa and they go back. But there is a critical mass that does create problems for us. They come on a visitor's visa, the next thing they are on a spousal visa, then the next thing they are on a relative's visa and they never want to go home. All we want is that if they want to change their status, they must go home and apply for the new status. That is the other element of change that we are introducing.
We also want to say something on section 23 permits. A section 23 permit is given at our ports of entry to people who declare themselves as asylumseekers at the port of entry. The law, as it stands now, says that after they have been given this permit they can stay for two weeks without going to the asylum centre. We are saying no. After they have received this permit, within five days they must report to the asylum centre, declare themselves and apply for refugee status. There is no port of entry in South Africa that is more than five days away from a refugee centre. We also say that these permits will be issued according to prescribed procedures, in order to make sure that we do not give these permits to people who are fugitives from the law.
In addition, we are saying that those who are habitual offenders in terms of immigration laws are now going to be subjected to higher penalties, if they are found guilty.
We also know that for too long now the abuse of the country's immigration policy in its current form has compromised our national security, in addition to tarnishing our international reputation. I need not remind you of the decision by the British and Swiss governments who introduced visas for South African nationals in 2009 when we had already enjoyed a visa-free regime from those countries. The legislation before you seeks to ensure that the system can no longer be abused, while discouraging corruption currently linked to the issuing of visas.
The other issue that this amending Bill seeks to address is the issue of the Department of Trade and Industry, DTI, having to give us a list of priority areas where we must facilitate the issuance of permits and visa. This is because the demands of the economy will change from time to time and we need to be in line with these changes. We need to be advised by the DTI and told what the priority areas are where we must facilitate entry into the country, especially when it comes to scarce skills.
We request that you vote favourably on the Bill before you because once it becomes law its implementation will ensure that we easily facilitate the entry into the country of foreign nationals who add value to our nation and its people while keeping out criminals who seek to compromise the reputation of our country.
I would like to conclude by thanking the chairperson of the portfolio committee, Mme Maggie Maunye, for the way she chaired all the proceedings of the portfolio committee while we were debating this rather difficult amending Bill. I would also like to thank all the members of the portfolio committee for their participation, their wisdom and all their contributions to the conclusion of this discussion of this amending Bill. Furthermore, I would like to thank all those who came for the public hearings and added value to the process of discussing the Immigration Amendment Bill. Thank you. [Applause.]
Deputy Speaker, hon Ministers, hon Deputy Ministers, and hon members, what has made the South African nation so diverse is the movement of people to this southern tip of the continent over the years. From the time of the hunter-gatherers to agro-pastoralists, Dutch settlers, English prospectors and indentured Indian labour, South Africa has been experiencing peopling waves. Our 1994 democratic breakthrough has seen us experiencing yet another wave of people who come to South Africa for diverse reasons. It is only reasonable and fair that the legislative arm of the South African state continues to amend the legal infrastructure regulating the influx of people across our borders.
Deficiencies in the current legislation led to, inter alia, foreigners entering as tourists and changing their status and conditions to those of permit holders, recipients of permits overestimating the length of their stay, child and human trafficking, and problematic persons being permitted to remain within the South African borders.
According to the African Charter on Human and Peoples' Rights, and I quote:
Every individual shall have the right to leave any country including his own ... This right may only be subject to restrictions provided for by law for the protection of national security, law and order, public health or morality.
It should therefore follow that any legal limitation on people's movement should serve the national interest and enhance national security. In this regard, the Bill we commend to the House amends the principal Act to provide, inter alia, for the following: the designation of ports of entry, the revision of provisions relating to visas for temporary sojourn in the Republic, the revision of provisions relating to permanent residence, the revision at penal provisions; and the repeal of provisions relating to immigration practitioners.
As alluded to earlier, the use of the term "permit" for certain types of temporary residence permits creates a misperception for the recipient of the duration of such a permit. The international use of the term suggests a long duration. On the other hand the term "visa" is generally suggestive of a short duration. It is therefore proper to remove the ambiguity by referring to permits of an inherently short duration as visas, as the Bill intends.
The insertion of section 9A empowers the Minister both to designate and to withdraw the designation of any place which complies with prescribed requirements as a port of entry or exit. We deem it necessary that such powers vest with the Minister in order to ensure that only legitimate places are used for this crucial function of national significance. In order to meet our objective for South Africans to feel and be safe we cannot fail to exercise due care.
In this regard, it is fallacious to insist that those who enter the country should not be screened at the port of entry on the basis of a lack of capacity of the departmental personnel to effectively perform that function. While capacity as a necessary element of effective implementation cannot be gainsaid, security of citizens is paramount. It is common cause that South Africa's geographical location renders the Republic attractive, even to crime syndicates that find this country logistically convenient for their illegal trafficking of illicit goods. The envisioned screening can only serve national interests and security. The removal of section 46 erodes the role of immigration practitioners. We deem this development necessary for the enhancement of reliable records of immigrants. It is necessary that persons keeping permits or visas present themselves in person before the immigration officials and/or Home Affairs offices. However, the activities of immigration practitioners tend to impede personal contact with applicants as practitioners present only files to the immigration officials, thus inadvertently replacing applicants. Hon members will agree with us that without reliable statistics on immigrants we cannot plan appropriately.
It has been the practice of some asylumseekers, after being issued with their asylum transit permit and within the 14-day period of validity, to engage in unseemly activities or become dissipated and undetectable in local communities. In this regard, we ought to welcome the amendment to section 23(1) of the principal Act to reduce the validity period to five days. The onus is now placed on the asylumseeker to report to the nearest refugee reception office within five days. This will serve to curtail the propensity to engage in wrong activities and to disappear and be unaccounted for.
We want to commend to the House the amendment of section 15 of the principal Act to provide for the issuing of a business visa to a foreigner who intends to establish or invest in a business that is prescribed as being in the national interest. I want to submit to this House that doing business is a commendable act. However, business that seeks to amass profit at all cost while negating its responsibility to sustain the livelihood of its workers and the communities in its vicinity cannot be in the national interest. It is vital that those who seek to invest in our country be directed to invest in job creation and infrastructure developing sectors rather than those that serve to boost the sole interest of such business.
In the same vein, section 21(1) is appropriately substituted to make provision for the issuing of corporate permits to corporate applicants who conduct business in the sectors that are published in the Gazette from time to time.
In order to strengthen our knowledge of the identity of foreigners who enter our country, we ought to support the amendment that all persons in charge of conveyances should only enter the Republic at a port of entry. It is vital that such conveyances electronically transmit passenger information as prescribed to the director-general in respect of each person. This must also happen when conveyances leaves the Republic. Those who argue for convenience should first weigh the risk of inconvenience versus the risk of national insecurity.
It is vital, as alluded to earlier, that foreigners who enter the country should disclose their true intention for coming to South Africa up front. Provision to change one's status once in the country presented the challenge of people applying for visitors' or medical treatment permits only to later convert them to residence permits. We therefore welcome the amendment to exclude the holders of visitors' permits and medical treatment permits from changing their status while in the Republic.
The ANC government is committed to facilitating the easy entrance and exit of foreigners through our country for investment of financial resources in the economy, contributing to social and cultural development, investment of skills and experience in order to promote economic growth, and promoting tourism and facilitating academic exchange within the Southern African Development Community, SADC. However, it is in the national interest to ensure that foreigners entering the Republic under false pretences are precluded from changing their status and the conditions attached to their permits. We have declared this year the year of job creation and therefore everybody, foreigners not excluded, should ensure that decent employment is created.
Parliamentary processes were followed regarding the processing of the amending Bill. Adverts were published in print media, public hearings were held with stakeholders, all parties were given enough time to consult with their principals and no one was left out. So, we ask the House to support the Bill. Thank you, Deputy Speaker. [Applause.]
Deputy Speaker, the DA is well aware that South Africa receives by far the highest number of asylumseekers in the world. We will fully support well-informed policy and law that effects a workable migration regime - one that enhances both national security and economic development. The DA is disturbed, however, at the extensive changes this Bill proposes in the absence of a comprehensive migration policy. The department's strategic plan targets identifying policy options during the coming financial year, so a migration policy is still a few years away.
The Bill was introduced as necessary to make urgent technical amendments. It is, instead, far-reaching, and we believe it could well be seriously detrimental to this country's economic growth. We question the procedure followed in bulldozing this Bill through Parliament, hon Minister: no consultation was undertaken by the department; one week's notice was given by Parliament of the deadline for public submissions; immediately prior to committee deliberations on the Bill, the Minister held a press conference and made statements such as, "We are going to make all these changes" and "We are not going to change this". The Minister then made the same speech to the portfolio committee. Debate was seriously stifled by the Minister having issued direct instructions on what would not be changed.
This Bill removes the exceptional skills permit. It replaces it with a critical skills visa. An applicant for an exceptional skills permit was able to motivate why his or her expertise or skills were exceptional and why they would be of benefit to South Africa. Not so with critical skills. A list will be gazetted. 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.
With respect to the changes to the asylum transit permit or visa, the director-general "must" issue the visa if the person complies with the prescribed procedure. The Bill currently uses the word "may". The prescribed procedure is not known. Pre-screening for involvement in criminal activities is of course a requirement. At present, however, no other reason can be given for refusing an applicant an asylum transit visa.
Shortening the time period for refugees to report to a refugee reception centre to five days will only result in genuine asylumseekers being rendered illegal. It will not assist in managing the migrant problem.
The DA understands the concept of enabling legislation. However, this Bill is so heavily reliant on regulations that a true assessment of its impact is rendered well-nigh impossible. This is tantamount to giving the Minister a blank cheque to determine South Africa's migration regime - potentially unconstitutionally. We refer the Minister to the Constitutional Court judgment in Dawood and Another v Minister of Home Affairs and Others, where Judge Kate O'Regan declared particular immigration regulations constitutionally invalid based on exactly what we are saying here: that there was no guidance from the legislature, which is Parliament.
I had a desperate call last night from the United Nations High Commissioner for Refugees, who is very anxious about this Bill. [Interjections.] I suggest that the Minister speaks to them. Later in this debate, my colleague will provide further reasons why the DA cannot support this Bill and indeed objects to it in its entirety.
HON MEMBERS: Hear, hear! [Applause.]
Deputy Speaker, the Immigration Amendment Bill has been introduced with the ultimate aim of revising the provisions relating to the Immigration Advisory Board, streamlining the procedures for changing temporary residence permits to visas for those who are in the country for a short while and streamlining the determination of permanent residence.
The Bill will enable Home Affairs to create permits for those who have the critical skills that South Africa desperately needs. In the current information age, countries depend on the critical skills its highly educated people possess. Therefore we welcome the new critical skills category included in the Bill. The scarce skills list, however, will need to be monitored to determine whether it is in keeping with the six priority areas announced by President Zuma.
While the Bill has merit, some of the processes it will give birth to will create problems. According to the submission by Lawyers for Human Rights, the amendment to section 23(1) will give an individual in transit only five days to travel to the nearest refugee reception office to apply for asylum. Fewer individuals may therefore be able to make an application for asylum within the specified period of time. This may very well make internationally protected refugees vulnerable to arrest. Furthermore, the five permanent refugee reception offices are not likely to have the capacity to meet the overwhelming demand and the new law will in all probability create a fairly futile situation. Many asylumseekers will therefore be without proper legal status. It is therefore critical that refugee reception offices have the necessary staff capacity and skills to address the applications expeditiously.
The whole purpose of this Act is to encourage the legal and regulated crossing of persons across state borders and to decrease illegal activity. In this regard, the role of immigration consultants is vital and should not be discouraged in any way. People have a constitutional right to representation, and it is better to have clear regulation for immigration practitioners rather than seeking to exclude them.
We now come to a second difficulty: the pre-screening process at ports of entry, where an immigration officer will determine if the applicant has a prima facie claim to refugee status or not, is in direct conflict with the Refugees Act, accordingly to which only a refugee status determination officer has the lawful authority and expertise to determine who is a refugee in terms of the Act and international law. What qualification and experience will an immigration officer have to make such a determination? This has not been well thought out. As we see it, it will once again encourage illegal border crossing. Clarity must be obtained on how the pre- screening process will occur and whether this will conform to our laws.
Cope welcomes the inclusion of children carrying child passports in order to halt child trafficking. However, this is only a starting point in the fight against child trafficking. The tracking of unaccompanied children must receive the full consideration of the department.
A third difficulty arises with the imposition of duties regarding passenger lists on conveyances. Such a provision could lead to costly litigation for the department. Most laws have unintended consequences, and the laws that are contained in this Bill will fall into that category. However, seeing as the government is bent on pursuing its own advice, we trust that the department will have staff who are adequately trained to implement the provisions of this Bill without violating provisions in other statutes or in the Constitution.
A good immigration policy should work for all parties in a just and equitable manner. Cope therefore cannot support this Bill. I thank you, Deputy Speaker. [Applause.]
Hon Deputy Speaker, the Immigration Act is supposed to be as attractive and welcoming as possible to skilled migrants. The amendments of this Bill serve to make the migration regime more restrictive. With these amendments, South Africa will not be able to achieve the President's stated goals of economic growth. We also note that these amendments are a move towards managing, rather than controlling immigration.
The elimination of an entire class of professionals, that is the immigration practitioners, is not welcomed by the IFP. The reason for the above is that it is necessary to have competently trained and accountable persons assisting the public in procedural activities that flow from the Immigration Act. The removal of immigration practitioners will have the consequence of legitimising corrupt and unethical consultants. How will the Department of Home Affairs officials be prevented from receiving applications from syndicates involving persons illegally conducting their trade? The department will also have to respond to thousands of individual applicants and companies, and this will place a huge load on public resources.
The IFP also does not support the reduction in the asylum transit permit period from 14 days to five days. Asylumseekers need to be given a reasonable time within which to register for asylum status. While 14 days is a reasonable time, the five days places undue pressure on both the asylumseeker and the department to process the application. The unfortunate effect is that many asylumseekers will be made illegal due to time constraints and processing pressures.
The IFP concurs with other opposition party portfolio committee members: a discretional clause should have been included in the Bill on critical skills. This would allow for applications to be made directly to the director-general for a skill that is not listed, but can be sufficiently motivated as a critical skill which will be of distinct benefit to South Africa. The IFP does not support the Bill either. Thank you. [Applause.]
Hon Deputy Speaker and members of the House, this Bill is necessary and long overdue. We are living in a global village and an intertwined economic and political world system. However, our strategic opponents want us to believe that South Africa is in a socioeconomic vacuum. When we draft legislation and make amendments, we are informed by this dynamic world outlook, which requires constant responses in accordance with our Constitution, international law and the developmental needs of our country. This Bill spans national security, socioeconomic development, individual security or protection, business interests, cultural and people- to-people exchange or movements.
This Bill requires multifaceted approaches involving government interdepartmental co-operation so as to effect real control in order to deepen and defend the gains of the past struggles and advance our national democratic revolution, as we were mandated by our people. The amendment of section 15 prevents abuses of the provisions in the principal Act, where people would be applying for asylum and take about 14 days in the country. One would wonder what they would be doing for 14 days because initially they came in to seek asylum. Obviously, if they get that five days, they would be able to travel within the country and be able to reach that particular refugee reception office in time and be serviced immediately. [Interjections.]
While we believe that people have the right to representation, we also believe that people have the right of choice. We cannot channel particular representatives into one grouping, where we would be saying only certain people who are registered with the Department of Home Affairs would be the ones who are representing those particular people. However, we are simply saying that people will have a choice - do they need to be represented or can they deal with their cases as individuals, as they may want to do? That, we believe, is what the particular amendment around the issue of immigration practitioners is all about.
It is true that when we deal with an issue of trade there is a relevant department to deal with that. That is why we emphasise that we are not disallowing anybody who wants to trade as an immigration practitioner. All we are saying is that people must come to Home Affairs' offices and make their applications there. The issue of the backlog is another issue that will be addressed at the implementation point.
The following amendment, which speaks about the holder of a business permit who may conduct work which is related to the business in respect of which the permit has been issued, again has to do with the control of people who would be coming into our country on the pretext of doing and performing a particular business activity. Having arrived in the country, they then change that into something else, which is actually employment. At the end of the day, we are faced with a situation where we have to take into consideration that the person is already in our country and is already doing something that he was not actually allowed to do.
Lastly, when we argue the issue of asylumseekers coming into our country ...
... ke tlo kopa ho bua. Ha ngwanaka a tswa lapeng la ka ke le MmaTeboho, a balehela ha MmaDlamini mme ha a fihla, a fumana hore o tshwanetse a kene ka lengolo le itseng, a be a ikgethela ho tlola lerako, a kena ka hara jarete, MmaDlamini o tla tseba jwang hore ngwana enwa o teng ka hara jarete? Ya bobedi, le nna ke tla be ke sa tsebe hore ngwana enwa ha a baleha lapeng mane, o ile kae. Jwale, ntho e bohlokwa ke hore hang ha bana ba ka ba bona ngwana ya jwalo ka hare ho jarete ya bo bona, a batla dipompong tsa bona le dibapadiswa tsa bona tseo ba bapalang ka tsona, ngwana ya jwalo a tlalehwe ho Mme hore ho na le mohlankana kapa morwetsana eo ba mmonang jareteng mona, mme o ba tsekisa dibapadiswa tsa bona, ebile ha ba mo tsebe etswe le heke e ntse e kwetswe; ha ba tsebe hore na o kene le kae.
Taba eo e bohlokwa haholo hobane MmaDlamini, MmaTumelo le MmaTeboho, ba tla kgona ho buisana mmoho hore, helang MmaDlamini! ke bona ngwana wa hao mona, ho etsahalang? Ha eba ke hloka ho mo thusa, ke tla mo thusa empa ha ho sa hlokahale hore ke mo thuse, ke tla mo kgutlisetsa ho MmaDlamini hore ba ilo lokisa ditaba.
Ke dumela hore e hlakile, e jwalo. Ha eba ho sa etsahale jwalo, ntho e teng e nngwe hape e ka etsahalang. Ho ka etsahala hore ha ngwana enwa a tlola lerako, dintja tsa ka di mo lome hobane di sa mo tlwaela, ebile di sa mo tsebe. MmaDlamini yena o tla ntwantshetsa hore ntja tsa ka di lomme ngwanahae, empa e le hore le nna ke ne ke sa mmona ngwana enwa hore na o kene le kae. Ha ke mo tsebe. Ka mantswe a mang, re leka ho laola le ho tlisa seriti sa naha ya rona hore e se ke ya nna ya tsamaya e ntse e hoeletswa hohle mona hore ha e kgone ho hlokomela bana ba balehileng. Modulaqhowa ya hlomphehang, re rata hore re le ANC, re lokisa dintho tse jwalo ka Bili ena. Kahoo, re a e tshetleha ebile re a e tshehetsa hore e fete. Ntho e nngwe le e nngwe ha e tla ka diphetoho, e fumana mathata, empa ha e se e ntse e sebetsa, ke hona batho ba bang ba tla bona bohlokwa ba yona. Re ne re sa tsebe kajeno hore re tla be re dutse moo re sa tsubeng kwae teng. Ke a leboha, Modulaqhowa. [Mahofi.] (Translation of Sesotho paragraphs follows.)
[... may I express myself this way: When my child leaves my home as MmaTeboho, and runs to MmaDlamini's home and when he or she gets there, they find that they have to produce certain documents in order to gain entry, and then they decide to scale the wall and enter the yard, how is MmaDlamini going to know that the child is in her yard? Secondly, even I myself wouldn't know where the child fled to when they left home. Therefore, a crucial issue is that when my children see that child in their yard who wants to have their sweets and wants to play with their toys, they should report such a child to their mother and notify her of their presence, and that they are haggling with them over their toys, they don't even know them and that the gate is still closed yet they don't know how they got into the yard.
This is a very important issue because MmaDlamini, MmaTumelo and MmaTeboho will have a discussion and say, "Hey, MmaDlamini, I see that your child is here, what's happening?" If I have to help him or her I will help them, but if I don't have to I will send them back to MmaDlamini in order for them to sort out their problems.
I would like to believe that is the case, that it's like that. If it does not happen that way, there is another thing that could happen. It can happen that as the child goes over the wall, the dogs might attack and bite him or her because they are not used to them as they don't know them. On the other hand, MmaDlamini will blame me because my dogs will have bitten her child, and yet I wouldn't have known how her child would have gained entry in my yard. I don't know him or her.
In other words, we are trying to restore the integrity of our country in order to avoid it being criticised by everyone because of its inability to look after its escapees. Hon Chairperson, we as the ANC would like to say that we are trying to fix such things with this Bill. Therefore, we support it and that it should be passed. Everything that brings change is accompanied by challenges, but it is only when it is implemented that some people then realise its importance. We never knew that today we would be sitting in a no smoking area. I thank you, Chairperson. [Applause.]]
Deputy Speaker, while there are a number of positive amendments contained in this Bill, such as advanced passenger processing and the adding of human smuggling and trafficking to the list of crimes, the ACDP shares some of the concerns expressed by other members from the opposition.
As far as the work visas are concerned, we regret the lack of a regulatory impact assessment. As a nation we are confronted by a lack of skilled persons. Rather than assisting in obtaining such skilled persons from other countries, the Bill, in our view, makes it more difficult for companies to bring in such skilled persons. It makes sense to allow for a discretionary clause in terms of which someone could approach the director-general with an application where he or she possesses a critical skill that is not listed. This, however, was not agreed to.
The ACDP also cannot understand why, by the deletion of section 46, immigration practitioners have effectively been banned from representing people in immigration matters. In our view, this amendment may result in the Bill being unconstitutional and for these reasons the ACDP won't support this Bill. I thank you. [Applause.]
Hon Deputy Speaker, Ministers and Deputy Ministers of this House and hon members, this debate comes at a time when our economy is reeling at its inability to produce jobs, and it is a concern shared by many people of our country, including professionals and employer organisations. When he announced the idea of making this the year of job creation during his state of the nation address, President Jacob Zuma said all the departments in his Cabinet, including Home Affairs, would very much be in touch with the reality of creating jobs. However,what we see today, by the repeal of section 46 of the Immigration Act, as suggested in this current Bill, is that the principal Act, as it recognises this section, will no longer recognise the immigration practitioners.
We have received letters from a number of organisations in which they raise their serious disapproval, saying that this section should not be removed. We are talking about organisations such as Business Unity SA, Busa Lawyers for Human Rights, the Law Society of South Africa and, of course, the Forum of Immigration Practitioners of South Africa -Fipsa, the organisation representing all the immigration practitioners. They make a very strong point, saying, and I quote:
The repeal of section 46 of the Immigration Act is in effect eliminating the role of immigration practitioners, will in fact stifle economic growth in this country, and will further cause serious problems in terms of foreign investments and creation of jobs by major companies, some of which are national and some international.
Furthermore, section 35 in this Bill suggests that electronic passenger lists should be transmitted before travel. For instance, if you have a flight that is going to Gauteng, a list of all passengers should be submitted to the Department of Home Affairs, and the DG should first approve it before they fly. The reality is that this particular section is going to ground many flights and create a huge traffic jam on the ground. So, we cannot support it.
Abaqhubi beetekisi kuza kunyanzeleka ukuba xa bekhwelisa abantu erenkini baqale bacele okanye babuze kuMlawuli-Jikelele ukuba, "ndingamkhwelisa na lo mntu, ulungile na?" Ukuze aqale afumane incwadi ke etshoyo. Kwakhona, xa emothula eza kukhwelisa uMnqasela kuphindwe kuthiwe, "yiza nenye incwadi evela ku-DG". Ayibhadlanga loo nto ngoko ke asoze sikwazi ukuyamkela.
Sekela Somlomo, elandelayo ingxaki esiza kuba nayo yeyokuba ... (Translation of isiXhosa paragraphs follows.)
[The taxi drivers will be compelled to ask the director-general first when they take passengers at the taxi rank, "May I take this passenger, is he or she all right?" Then he will get a document that confirms that. Again, when the passenger alights from the taxi and Mnqasela gets on board, there will be this request, "Bring another document from the DG". That doesn't make sense and therefore we cannot accept it.
Deputy Speaker, the other problem that we will encounter is that ...]
... the department does not have the capacity to deal with such things. There was no consultation with the Department of Transport, and I am happy that the Minister is sitting there. He should be worried that we are going to have such measures, which are sure to create problems for the transport system in this country. [Interjections.]
The last thing I want to say is that I appreciate the support from all the opposition parties. They are being productive and developmental by not allowing the ANC to bulldoze this Bill through Parliament. We want this Parliament to reject this Bill.
HON MEMBERS: Hear, hear!
We cannot have such Bills in this country at a time when we need to create many jobs for the poor people of this country. I thank you. [Applause.]
Hon Chairperson, this Bill is essentially aimed at improving South Africa's immigration regime by addressing problems that the department has encountered through practical experience. It is not aimed at overhauling the entire immigration system. It is disingenuous to suggest that it is flawed because it does not attempt to redesign the immigration dispensation as a whole.
The hon Lovemore tells us that there is no coherent policy. Unfortunately, she does not indicate to us what is wrong with the present one. She suggests that the Bill may be detrimental to our economy, but once again, unfortunately, she does not motivate this. [Interjections.]
It has become clear to the department that certain provisions of the Immigration Act are being abused. Currently, foreign children are allowed to travel on the basis of an endorsement on their parent's passport. This means that the details of the child, which are endorsed on the passport of the adult person, cannot be matched against the child. This poses serious challenges in relation to the fight against human trafficking. We are therefore amending the Act to require minors to be in possession of a valid passport when accompanying adults, including their parents.
When asylumseekers arrive at one of our ports of entry, they are issued with an asylum transit visa for the purposes of applying for asylum in South Africa. As the law now stands, everyone claiming asylum has to be granted an asylum transit visa, which is valid for 14 days. This visa is abused by many people who are not bona fide refugees. We are therefore amending the legislation to subject the granting of this visa to a prescribed procedure and to make it valid not for 14 days but for five days only. This would enable the asylum seeker to travel to the nearest refugee reception office in order to apply for asylum.
The prescribed procedure will allow for a limited measure of so-called pre- screening to enable immigration officers to, for example, establish whether the asylumseeker is a prohibited person in South Africa or a criminal suspect in another country, and so on.
Originally, clause 15 of the Bill allowed the director-general, DG, to withhold an asylum transit visa from a person. This happens if it has been established at the port of entry that the person does not qualify to apply for asylum. The committee agrees that this is problematic, as the immigration officers at the ports of entry would not have the necessary training to make this critical determination.
We concluded that the pre-screening should be limited to matters of fact that can easily be established at the port of entry. An example would be whether someone is a prohibited person within South Africa, and we have provided the Minister with the authority to prescribe these limited matters.
Instead of supporting this substantial amendment, the opposition found new reasons to oppose the new provision. They are unhappy that Parliament will not decide on the content of the regulations, as the hon Lovemore has pointed out. She also pointed out that the validity period of five days is not long enough, as Home Affairs might delay the processing of applications, and that it is problematic to require asylumseekers to report to the nearest refugee office and not to any office of choice.
All three these objections are invalid. We do not want refugees to dwell in the Republic. They must go straight to the refugee reception office to report there, and five days is indeed long enough for that. The Bill does not say their applications have to be processed within five days; they only have to report to the relevant office within five days. And why should we not tell them to go to the nearest office? I suppose they will even be told at the port of entry where that office is and how to get there.
The term "permit", as opposed to "visa", has led the courts to problematic interpretations, as they seem to regard all permits as instruments that do not necessarily only allow a temporary stay in our country. Therefore, to clarify the position, we are now making a clear distinction between temporary instruments, all of which are being called "visas" and the only remaining permanent instrument, the permanent residence permit.
We really do not understand how it can be suggested that the Bill was bulldozed through Parliament. For three days, our committee listened to public submissions. Indicating quite clearly how seriously we took cognisance of the public submissions we received, we have made some very substantial amendments to the Bill.
Originally, the Bill prescribed that business visas may only be issued to foreign businesses prescribed to be in the national interest. We found this formulation to be too restrictive and feared that it might inhibit business activity. Foreign businesses are required to make a substantial capital investment in South Africa and will be pushed out by the market if they are not viable. Rather than having lists of foreign businesses that are allowed, which lists may not be accurate or may be out of date, we opted to list those businesses that are undesirable. We went further, in line with our job creation drive, and expect these foreign businesses to employ a prescribed percentage or number of South African citizens or permanent residents.
The Bill originally proposed the deletion of section 22(b) of the Act. This section makes provision for exchange visas for foreigners who are under 25 years of age and have received an offer to work for no longer than a year. The committee retained this visa, but excluded offers for undesirable work, as this visa allows young people from other parts of the world to be exposed to South Africa. It also allows young South Africans to be exposed to different cultures.
Clause 21 introduces mandatory advance passenger processing and the submission of passenger name record information by owners or persons in charge of conveyances. Concerns that have been expressed relate to the protection of private information, that international standards may not be met, and that this system will also apply to domestic flights.
Data protection measures should not be a concern, as Parliament is currently considering the Protection of Personal Information Bill. Our advance passenger processing system is also in full compliance with the International Civil Aviation Organisation's standards and it has been used successfully, also on domestic flights, during the Soccer World Cup. It is not correct to suggest that it will necessarily apply to taxis and the like, hon Mnqasela, as the Bill refers to "prescribed conveyances" and taxis have not been prescribed, as nothing can be prescribed prior to the Bill becoming law. The system will go a long way towards apprehending people who have entered the country illegally, are wanted for crimes committed, are prohibited, etc.
The repeal of section 46 of the Act does not mean that immigration practitioners are banned. No issue with unconstitutionality therefore arises, hon Swart and Mnqasela, and no stifling of economic growth. Their clients will continue to consult them and they will continue to advise their clients. However, the department will introduce a new risk-based method in dealing with applications for visas, and this procedure will require direct interaction with clients. This applies to South Africans, so why not to foreigners?
The Minister dealt with the sentences. There were concerns that the increases are too harsh, disproportional, and so on. Once again we listened to public submissions over three days, and we have reduced the sentences. Concerns have come to our attention that the sentences are not necessarily a deterrent, but the length of sentences is still obviously one of the deterrents available to the state, as recognised by our common law.
The Department of Home Affairs has also assured us that no one who has made an application to the department will be guilty of an offence if there are delays on the side of the Department of Home Affairs.
In the last instance, I want to deal with this matter of the blank cheque that has allegedly been given to the Minister. Obviously, in any Bill, as members would know, there are substantive provisions. As far as some of the provisions are concerned, it is left to the Minister to make regulations. I would like to suggest that none of the matters where we allow the Minister to make regulations are very substantial matters. Our committee and Parliament are not there to micromanage the Department of Home Affairs - or any other department, for that matter. So, it is quite obvious that in certain circumstances we allow the Minister to make regulations and, as a committee and as the ANC we really do not have any problems with the matters that have been left to the Minister to make regulations on.
This Bill improves our immigration regime and we can therefore support it. I thank you. [Applause.]
Chairperson, I thank all the people who participated in the debate. However, I would like to correct a few inaccuracies. Firstly, I was accused of having bulldozed the Bill. This Bill was introduced to Parliament by us last year, and the scheduling of Parliament's work is Parliament's business. As hon Gaum says, they have taken into account a lot of public hearings because there were public hearings.
Secondly, with regard to what hon Lovemore was talking about, the department was asked to come and respond to each issue that was raised during the public hearings, and we went to respond. I don't know what she expected us to say. I don't know whether she expected us to come and say, "We accept everything. Thank you very much, good bye." We are not going to do that, even in the future. So don't expect us to do that. [Interjections.]
No, we are not making a mockery. We have to say ... [Interjections.] Why do you ask us to respond? [Interjections.] We have to respond and say, "We think this is reasonable; this is unreasonable because of a, b, c and d." So, if you think you are going to govern by default when you were not elected, you are not going to get it here. [Applause.]
Hon Gaum also addressed the issue of two weeks changing to five days. It is very clear. I don't think I want to respond to that. [Interjections.]
But you can't trust him!
I will trust him, not you. I also want to respond to this issue of immigration practitioners. You know ...
... kunabantu abaningi abanezincwadi zemvume, kodwa uma ubuza ukuthi bazithole kanjani lezi ncwadi ngoba abanazo izimfanelo ezidingekayo ukuze babe nazo. Athi umuntu: "angazi nami nganikeza laba bantu bangenzela." Siphinde sibuze ukuthi sizathu sini owasinikeza ukuze uyithole? Athi umuntu: "angazi, yibona ababhala konke, mina angazi lutho." [Ubuwelewele.] Yebo, kunjalo. (Translation of isiZulu paragraph follows.)
[... there are many people with permits, but it is strange how they got them because they do not meet the necessary requirements. A person would say: "I also don't know; I gave it to these people and they did it for me." And we further ask: "What reason did you give in order for you to get it?". A person then says: "I don't know. It's them; they wrote up everything; personally I don't know." [Interjections.] Yes, it's true.]
That's why ... sithi ababelulekele ngangxanye. Kodwa, lo muntu ofuna incwadi yemvume, akazizele yena ukuze uma kukhona esingakuzwa kahle simphenyisise. Manje simatasatasa sinikeza izincwadi zemvume kubantu esingabazi noma bakhona yini lapha eNingizimu Afrika noma basazofika. Ngakho-ke, angeke sikuvume lokho. [Ihlombe.] (Translation of isiZulu paragraph follows.)
[... we say they should advise them aside. But the person who wants a permit must personally come so that we can thoroughly investigate him or her. At the moment we are issuing permits to people, but we don't know whether they are inside the country or whether they are still coming. Therefore we can't accept such a situation. [Applause.]]
You must understand that we, as the ruling party, also have the interests of South Africa at heart, not only the DA or opposition. So, why would we do things that were detrimental to South Africa? [Interjections.] They are not. [Interjections.] So, that is going to remain, and we are going to reinforce it.
Every South African who wants a passport comes to Home Affairs, but foreigners don't have to come to Home Affairs. We don't see them. Every person who wants an identity document comes to Home Affairs. So, why should the nationals have to come to Home Affairs, but the foreigners don't ever have to appear there? It's not going to happen. [Applause.]
I also just want to say that the advanced passenger processing is something we have already implemented during 2010. It is just that it was voluntary; it was not in the law. Now we are putting it in the law. We were able to process 2,3 million visitors, and we took three seconds to process them. The reason for that is that all you need is to scan their passports and it tells you whether they are on the police list, the Home Affairs list or the Interpol list. It's something that was successfully implemented, Mr Mnqasela. So, we are not going to relent. And the airlines came to the party voluntarily. Since it was not in the law, we could not force them. They came voluntarily, and it was successful.
I just want to say that in any case we didn't expect the DA to vote for progressive legislation. [Laughter.] In their previous life: you can go back and look at the records: they never voted for any education transformation laws in this country. They opposed every single one of them. [Interjections.] Go to the health laws ... [Interjections.] In your previous lives, before you were recycled ... [Interjections.] ... you opposed every single health law, including free treatment for children under six. You opposed that policy. [Applause.] [Interjections.] Yes, he stood up here and opposed it. [Interjections.] I am not fabricating this, he was the spokesperson. He opposed it. [Interjections.]
Who's he?
So, there is nothing new; it's all more of the same. You don't want progress in this country. [Interjections.] You opposed the labour laws. What is it that you support? [Interjections.] So ... [Interjections.] It's expected, especially now because you think you are going to ... [Interjections.] You what? [Laughter.] I didn't hear what you said. Repeat it.
Ooh, uyasaba nokukhuluma, uma ufuna ukukhuluma nami ngiqonde ngqo emehlweni, ungahlebi lapho. [Ihlombe.] [Ubuwelewele.] Uyabona nje ukuba kuya ngabo ngabe siyabhema la kule Ndlu. Ngabe asisabonani intuthu ingaka! Ngiyabonga. [Ihlombe.] [Ubuwelewele.] (Translation of isiZulu paragraph follows.)
[Ooh! You are even scared to speak out. If you want to talk to me, you must look me in the eye; don't whisper over there. [Applause.] [Interjections.] You see, if it was up to them, we would be smoking inside this House. We would not be in a position to see one another with the smoke clouding the place! I thank you. [Interjections.] [Applause.]]
Debate Concluded.
Hon members, that concludes the debate. Are there any objections to the Bill being read a second time?
Madam Chair, on a point of order.
I would like to know if there are any objections to the Bill being read a second time.
I am raising a point of order, Madam Chair.
Well, raise it. It's all right.
I request you to verify the quorum before you put the question to the House.
I think we should, if there is a division asked for, put the question and we will determine the number of people in the House electronically.
Madam Chair, you need to have a quorum before putting a question to the House. [Interjections.] The House is not competent to answer a question unless there is a quorum. [Interjections.]
According to Rule 26, we need to ask the question, and if a division is being asked for, we will ring the bells for five minutes. [Interjections.] Mr Oriani-Ambrosini ...
Madam Chair, you are quoting the wrong Rule.
Mr Oriani-Ambrosini, will you please take your seat?
These procedures may be unconstitutional. [Interjections.]
Will you please take your seat?
Chairperson, I rise on a point of order: I request the Chair to protect us from the member's incompetency and lack of understanding of the Rules, please.
Seeing that there are objections to the Bill being read a second time, I would like to know, first of all, which parties are objecting and ...
Madam Chair, on a point of order, and with respect, it does not work like that. You put the question and we will decide whether we want to divide or not. We have indicated by saying no ...
But if you had let me finish my sentence, that is exactly what I was going to say.
But we had already indicated that we are objecting by saying no.
Okay, so, are you asking for a division of the House?
Only after you put the question, Madam Chair. [Laughter.]
Okay, I now put the question. Those in favour will say "Aye". The Ayes have it ... [Interjections.] [Laughter.] ... and those against ... [Interjections.] [Laughter.]
Madam Chair, it is not for me to indicate to you how you should do your job.
I understand that and I do apologise. It's the first time that I am faced with this scenario.
May we wish you better luck in the future, Madam? [Laughter.]
Question put.
Shall we start again? I now put the question. Those in favour will say "Aye".
HON MEMBERS: Aye!
And those against will say "No".
HON MEMBERS: No!
I think the Ayes have it.
Madam Chair, the DA would like to call for a division.
Seeing there is a division being called for, the bells will be rung for five minutes. Is that better, Mr Ellis?
Division demanded.
The House divided:
AYES - 177: Abram, S; Adams, P E; Bhengu, N R; Booi, M S; Borman, G M; Boshigo, D F; Botha, Y R; Bothman, S G; Burgess, C V; Cele, M A; Chabane, O C; Chikunga, L S; Chohan, F I; Coleman, E M; Cronin, J P; Cwele, S C; Dambuza, B N; Daniels, P N; Davies, R H; Diale, L N; Dikgacwi, M M; Dlakude, D E; Dlamini, B O; Dlamini-Zuma, N C; Dlulane, B N; Dube, M C; Fihla, N B; Frolick, C; Fubbs, J L; Gasebonwe, T M A; Gaum, A H; Gcwabaza, N E; Gelderblom, J P; Gina, N; Goqwana, M B; Hanekom, D A; Holomisa, S P; Huang, S-B; Johnson, M; Kekane, C D; Kenye, T E; Khoarai, L P; Kholwane, S E; Khumalo, F E; Khunou, N P; Komphela, B M; Kubayi, M T; Landers, L T; Lekgetho, G; Lishivha, T E; Luthuli, A N; Mabasa, X; Mabedla, N R; Mabudafhasi, T R; Mabuza, M C; Madlala, N M; Madlopha, C Q; Magazi, M N; Magubane, E; Magwanishe, G; Makhubela-Mashele, L S; Makwetla, S P; Malale, M I; Malgas, H H; Maluleka, H P; Maluleke, J M; Manamela, K B; Manana, M C; Mandela, Z M D; Manganye, J; Manuel, T A; Martins, B A D; Mashatile, P; Mashigo, R M; Mashishi, A C; Masilo, J M; Masutha, T M; Mathibela, N F; Matlanyane, H F; Matshoba, J M; Maunye, M M; Mavunda, D W; Maziya, M; Mbili, M E; Mdaka, M N; Mdakane, M R; Mfeketo, N C; Mjobo, L N; Mkhize, H B; Mkhulusi, N N P; Mlambo, E M; Mlangeni, A; Mmusi, S G; Mnisi, N A; Mocumi, P A; Mohale, M C; Mokoena, A D; Molebatsi, M A; Molewa, B E E; Moloto, K A; Moni, C M; Motimele, M S; Motsepe, R M; Motshekga, M S; Motsoaledi, P A; Mthethwa, E M; Mtshali, E; Mufamadi, T A; Muthambi, A F; Nchabeleng, M E; Ndabandaba, L B G; Ndebele, J S; Ndlanzi, A Z; Nelson, W J; Newhoudt-Druchen, W S; Ngcengwane, N D; Ngcobo, B T; Ngcobo, E N N; Ngele, N J; Ngwenya, W; Ngwenya-Mabila, P C; Nhlengethwa , D G; Njikelana, S J; Nkwinti, G E; November, N T; Ntapane, S Z; Ntuli, B M; Ntuli, Z C; Nwamitwa-Shilubana, T L P; Nxumalo, M D; Nyalungu, R E; Nyekemba, E; Nzimande, B E; Oliphant , G G; Oosthuizen, G C; Pandor, G N M; Petersen-Maduna, P; Phaahla, M J; Phaliso, M N; Pule, D D; Radebe, G S; Ramodibe, D M; Ramokgopa, G; Schneemann, G D; Segale-Diswai, M J; Selau, G J; Sibanyoni, J B; Sibhidla, N N; Sithole, S C N; Sizani, P S; Skosana, J J; Smith, V G; Snell, G T; Sogoni, E M; Sonto, M R; Sosibo, J E; Sotyu, M M; Suka, L; Sulliman, E M; Thibedi, J D; Thobejane, S G; Thomson, B; Tinto, B; Tlake, M F; Tobias, T V; Tsebe, S R; Tseke, G K; Tsenoli, S L; Turok, B; Twala, N M; Van der Merwe, S; van Rooyen, D D; van Wyk, A; Xaba, P P; Xasa, T; Yengeni, L E; Zulu, B Z.
NOES - 70: Blaai, B C; Boinamo, G G; Bosman, L L; Cebekhulu, R N; Coetzee, T W; Davidson, I O; De Freitas, M S F; Dreyer, A M; Du Toit, N D; Dudley, C; Ellis, M J; Farrow, S B; Figlan, A M; George, D T; Harris, T D; James, W G; Kalyan, S V; Kganare, D A; Kilian, J D; Kloppers- Lourens, J C; Kohler-Barnard, D; Krumbock, G R; Lebenya-Ntanzi, S P; Lorimer, J R B; Lotriet, A; Lovemore, A T; Marais, S J F; Masango, S J; Mazibuko, L D; Mbhele, P D; McGluwa, J J; Michael, N W A; Mnqasela, M; Mokgalapa, S; More, E; Morgan, G R; Motau, S C; Mpontshane, A M; Msweli, H S; Mubu, K S; Ndlovu, V B; Ngonyama, L S; Njobe, I M; Oriani-Ambrosini, M G; Pretorius, P J C; Rabie, P J; Rabotapi, M W; Ramatlakane, L; Robinson, D; Ross, D; Schfer, D A; Schmidt, H C; Selfe, J; Skosana, M B; Smiles, D C; Steyn, A; Steyn, A C; Stubbe, D; Swart, S N; Terblanche, J F; Tolo, L J; Trollip, R A P; Van Dalen, P; Van de Linde, J J; Van der Westhuizen, A P; Van Dyk, S M; Van Schalkwyk, H C; Waters, M; Wenger, M; Zikalala, C N Z.
Question agreed to.
Bill accordingly read a second time.