The Departments of Justice and Correctional Services and Home Affairs have hit a roadblock in the creation of the new Marriage and Divorce Laws in South Africa and if it isn’t resolved soon, the country will have a significant legislative mess on its hands. 

The Divorce Amendment Bill seeks to amend the Divorce Act of 1997 and provide a legislative framework for Muslim Marriages in South Africa.

The Constitutional Court ruled in June 2022 that the divorce act was unconstitutional as it did not recognise Muslim Marriages.

The ConCourt suspended the constitutional invalidity for 24 months from the date of the order to allow the Cabinet and the President to remedy the issues in the existing legislation. 

Although the court said that interim measures would be in place, the Bill has to be introduced before the suspended declaration of invalidity and interim measures lapse. 

At a portfolio committee on Justice and Correctional Services, the department said that the new Bill must come into force by 28 June 2024  otherwise, no divorce legislation will exist in South Africa. 

The ConCourt also noted that the Marriage Act is unconstitutional as it fails to recognise Muslim marriages as civil marriages. 

The Departments of Home Affairs and Justice and Correctional Services are thus working together to ensure that they both can remedy the errors in their respective amendments BIlls. 

However, although both parties wanted to align timeframes and policy approaches as far as possible, it has become apparent that the parallel timing of the two new Bills will not be possible. 

The Department of Justice and Correctional Services said the early rising of Parliament next year due to the national elections and the shortened time for Parliament to process both Bills has made it impossible to do both bills concurrently. 

Changes to the Bills 

Although the amendments to the Divorce and Marriage Acts are interlinked, not all of the changes align between the Acts. 

The new Divorce Act amendments primarily focuses on Muslim Marriages and includes the following five key amendments: 

• Insertion of a new definition of Muslim marriage recognised by the Constitutional Court Judgment to be part of South Africa’s common law.

• Amends section 6 of the Divorce Act by providing safeguarding mechanisms for minors or dependants of a Muslim Marriage.

• Amends section 7 of the Divorce Act by empowering a court to grant a divorce decree on the dissolution of a Muslim marriage to make an order with regard to the redistribution of assets.

• Amends section 9 of the Divorce Act to empower a court when granting a divorce a decree on the dissolution of a Muslim marriage to give an order that patrimonial benefits of a Muslim marriage be forfeited in stipulated terms

• Provides for the short title and commencement of the Act.

The proposed definition of a Muslim marriage in Section 1 of the Divorce Amendment Bill also includes a provision for a ‘family advocate’.

Whereas, the Marriage Amendment Bill also looks at several other areas relating to marriages and aims to combine the Marriage Act, the Recognition of Customary Marriages Act and the Civil Union Act under one legislative umbrella. 

Some significant proposed changes for the new Marriage legislation also include: 

• Enabling legal marriages for South Africans of different sexual orientations, religions, and cultures.

• Implementing strict age rules for marriage, aligning them with the Children’s Act.

• Aligning marriage, marital property, and divorce legislation to address matters of marital property and intestate succession upon marriage dissolution.

• Ensuring equitable treatment and respect for religious and customary beliefs as per Section 15 of the Constitution.

• Addressing the solemnisation and registration of marriages involving foreign nationals.

• Addressing the solemnisation and registration of customary marriages involving non-citizens, particularly cross-border communities or citizens of neighbouring countries.

Members of the public still have the opportunity to air any grievances in either Bill. 

The Department of Justice and Correctional Services said that written submissions on the Divorce Amendment Bill can be sent to divorce@parliament.gov.za by Friday, 8 September 2023. 

Written submissions on the new Marriage Bill can also be sent to the Department of Home Affairs by Thursday, 31 August 2023 at moses.malakate@dha.gov.za and agnes.molefe@dha.gov.za.

• The Department of Home Affairs has told Parliament that their officials irregularly facilitated SA passports for foreigners while the country was in lockdown.

• The department is also investigating nearly 300 000 unauthorised cross-border movements which were registered on its central management system.

• On Tuesday, MPs were briefed on the department’s effort to root out corruption in the issuance of visas and permits.

When the country was in the chokehold of the Covid-19 lockdown, rogue home affairs officials irregularly facilitated South African passports for foreign nationals.

On top of this, investigations into nearly 300 000 unauthorised cross-border movements are under way and over 3 000 retirement visas have come under the microscope.

As the Department of Home Affairs (DHA) continues to unravel a litany of illegal and irregular actions, the figures paint a clear picture of corruption running deep within the government’s most important departments.

On Tuesday, Parliament’s Committee on Home Affairs was briefed on the progress made by the department to investigate the illegal issuing of visas and other documents.

Former top civil servant, Cassius Lubisi, chairs a task team established to review all permits issued since 2004 - the year in which the Immigration Act came into operation.

Forensic investigations specialist Peter Bishop, who is part of the task team, told MPs they uncovered transactions on the movement control system (MCS) that were created by the irregular users.

Bishop said:

Investigation has commenced, and 285 427 matters were identified for further investigation and action, ostensibly involving unauthorised DHA users that processed movements across South African borders.

He also said some DHA officials allegedly assisted foreign nationals to obtain South African passports irregularly.

This occurred during the height of the Covid-19 lockdown. 

“So far, 111 matters have been identified for further investigation,” he said.

Bishop said there was a significant increase of applications for retirement visas between 2016 and 2018. 

He said an investigation into the issuance of retirement visas had commenced.

He added that 3 530 visa matters were identified for investigation `relating to retirement visas or permits for young applicants, work or a spousal relationship visa to entitle the applicants to work in South Africa`.

Bishop also reported that visa applications were rejected due to fraudulent documents submitted but then new applications were approved.

“All 4 160 applications that were rejected due to fraudulent documents submitted but applicants later applied for other visa and permit types which were approved,” he said.

Regarding this, he said 10 matters were under investigation; and six criminal referrals were en route to the Hawks.

Bishop also said investigations into missing visa or permit control numbers had started.

According to him, 1 115 visas were ostensibly issued to foreign nationals, where it appears that certain visa labels may not have been issued by the DHA.

Deputy Home Affairs Minister Njabulo Nzuza said criminals and syndicates were not sitting back.

He said:

When we improve our systems, they also try to improve ways in which they can break our system. Our fight is consistent, and our approach is now that we always have to be a step ahead. This panel has really helped to be steps ahead and prevent some of the things that occurred.

He also said the notion that only junior officials were being targeted was skewed.

“The organisational structure of home affairs, the majority [of the] people that you employ are at junior level. As you go up in the ranks, you have fewer and fewer people. In the permitting division, we had a chief director and we dealt with that matter. 

“You have to deal with that one chief director or deputy director-general responsible. This is why it seems like we are less interested in deal[ing] with the top structure because we have less officials to deal with. You deal with one, you deal with the problem,” he said.

ANC MP Bongani Bongo said the department needed to move with visa and permit applications as there were several outstanding.

He also said the only officials targeted for disciplinary proceedings were the “extremely junior ones”.

“They are not talking about the officials of the higher levels. Big instructions involved directors and DDGs,” he said.

DA MP Adrian Roos said the longer investigations took, the more the department’s capacity to produce legal visas and permits were limited.

It was found that an estimated 45 000 fraudulent visas were issued between 2014 and June 2021. 

• The Department of Home Affairs continues to smoke out corrupt officials within its ranks.

• Officials at South Africa`s missions in Ghana and China were caught issuing fraudulent visas.

• On Tuesday, the Portfolio Committee on Home Affairs was briefed on the progress made in rooting out corruption.

The Department of Home Affairs swooped in on South Africa`s missions in Ghana and China after foreign deployment officials were caught irregularly issuing visas.

It was found that an estimated 45 000 fraudulent visas were issued between 2014 and June 2021.

On Tuesday, the Portfolio Committee on Home Affairs was briefed on the progress made by the department to investigate the illegal issuing of visas and other documents.

Cassius Lubisi, the former director-general in the Presidency, chairs a task team that was established to review all permits issued since 2004 �` the year in which the Immigration Amendment Act came into operation.

Forensic investigator Peter Bishop, who is part of the task team, said fraudulent issuance of visas and permits was uncovered at the Ghana mission in Accra.

`One official has been suspended and charged, and is undergoing a disciplinary hearing, which will sit again on 15 August 2023. A referral has also been made to the Directorate for Priority Crime Investigation [the Hawks] in this matter,` Bishop said in his presentation.

Two other officials were suspended at the mission in China, he said.

`Precautionary suspension letters were issued on 6 June 2023 in matters related to irregular issuance of visas. Both members` foreign deployment has also come to an end. A draft charge sheet [has] been prepared and [a] charge sheet in respect of one official served, and notice of disciplinary proceedings against [the other official] was served. Disciplinary proceedings in respect of one official commenced on 8 August 2023,` he said.

Bishop also said they identified challenges in the Gupta family`s early naturalisation matter.

In 2018, it emerged that former Home Affairs minister Malusi Gigaba had approved the early naturalisation of Ajay Gupta`s family despite Ajay refusing to let go of his Indian citizenship.

Gigaba had, on several occasions, publicly stated that Atul Gupta was not a South African citizen, only to later say that Atul was a citizen and that it was Ajay who had not been naturalised.

In 2021, the Public Protector`s office ordered the director-general of Home Affairs to take action against department officials involved in the naturalisation of Ajay and his family.

This was in relation to the officials` failure to exercise due diligence by verifying the accuracy of the information contained in the motivation for early naturalisation.

On the positive side, Bishop said administrative processes were currently being reviewed by the task team based on available evidence `to plug any gaps in pursuing disciplinary charges`.

Regarding the Sheperd Bushiri matter, the task team supports the Hawks with the ongoing criminal investigation and disciplinary matters of four officials.

`These disciplinaries were delayed for two years and are now being unblocked,` Bishop said.

More recently, 11 new finalised matters are expected to be submitted to the home affairs director-general for consideration and submission to the Hawks investigation.

ANC MP Asnath Molekwa said the department should continue pursuing the major cases.

She said: 

We hope that the Bushiri case will be sorted out very soon. We need closure of the report and this matter. 

DA MP Adrian Roos said the issuing of fraudulent documents had a negative impact on the economy.

`Visas promote tourism and economic growth. I see that, in some cases, charges are being laid against officials for fraudulent visa issuance. We expect this due to the threat to national security. It appears that some people undergo disciplinary action for this. Disciplinary action can be a lengthy process, as we have been seen before,` he said.

President Cyril Ramaphosa’s Operation Vulindlela says that three big changes for South Africa’s visa regime are almost ready to be presented to the public for comment.

These measures should go a long way to assisting businesses to draw critical skills to the country, while also making it easier for these skills to actually get here.

This is part of a comprehensive review of the visa regime and immigration changes, it said, which the Department of Home Affairs (DHA) will gazette in August for public comment.

The three key changes include:

• Creating new visa categories for remote workers and start-ups;

• Establishing a points-based system for work visa application routes;

• Introducing a trusted employer scheme.

These three changes would work alongside reforms that have already been implemented, the group said, which includes expanding visa waivers to more countries and publishing a revised critical skills list for priority positions.

“Operation Vulindlela reforms to the visa regime achieved a critical milestone with the completion of the work visa review and publication of a detailed implementation plan by the DHA,” it said.

Among the coming changes, the group said that other key policy and process updates that will be introduced include streamlining document requirements for work visa applications to ease the burden on applicants.

These changes which are currently awaiting approval by the Office of the State Law Advisor before they can be published for public comment.

In addition to the coming changes and those already in place  Operation Vulindlela said that the DHA is also expanding its visa waiver programme to additional countries. 

South Africa currently waives visas for visitors from about 132 countries and is in negotiations to extend this to a further ten countries. 

“Where countries do not have a visa waiver, they have been included in the eVisa system rollout,” it said.

South Africa’s eVisa platform currently covers 34 countries, up from an initial 14 countries. This means that visitors from 164 countries potentially up to 174 have or will have eased access into South Africa, accounting for countries with access to the eVisa platform and those where visitor visas have been waived. 

Over the next quarter, the group said that it will support the implementation of the recommendations made in the work visa report.

“Operation Vulindlela will continue to work with the DHA to ensure that these reforms are implemented swiftly and to a high standard,” it said.

South Africa’s current visa regime has been described by immigration companies as being a nightmare to work with, while the processes have been called chaotic.

While a backlog peaking at over 62,000 at the the start of the year and only expected to be cleared by mid-2024 workers have not been able to enter the country, and businesses have been unable to draw in the necessary skills.

The promised reforms of expanded visas, easier processes, and new systems have been welcomed however, doubts remain about the efficacy and ability of the DHA to implement them.