Stateless SA man left in limbo after parents never registered his birth turns to court for help

News24 |  03 Jan 2023

Pretoria - A young man left in legal limbo after his parents never registered his birth has appealed to the Gauteng High Court, Pretoria, for help.

The Department of Home Affairs had simply ignored his plight over the past nine years to be registered as a South African citizen.

Tebogo Khoza said since he turned 16 in 2013, he had tried in vain to be registered as a South African. He said he was born here and has never left the country since birth. While the department said it would assist him, nothing came of it.

Lawyers for Human Rights assisted him in his legal bid not to be rendered stateless.

Khoza was orphaned at the age of 9 and lived at a youth centre in Limpopo. He stayed there until he reached the age of 18.

According to South African law, he should have access to citizenship and documentation.

When he turned 16 he made his first attempt with the help of the centre to register his birth and apply for an identity document.

The designated case manager from the Department of Social Development who handled his matter made no attempt to register his birth or obtain documentation for him.

Due to the fact that his birth was never registered, an immigration investigation officer from the Department of Home Affairs was assigned to investigate his case.

A report was submitted two years later by the investigating officer, which concluded that Khoza was indeed born in South Africa and did not have citizenship anywhere else.

Despite this, the department refused to process his application for citizenship or provide him with vital documentation to enable him to access services and live productively in society.

Lawyers for Human Rights said through no fault of his own, Khoza had been deprived of birth registration and citizenship since birth.

It said this case highlights the failure of South Africa’s legal framework to adequately address the issue of statelessness.

“The South African Citizenship Act makes provision for children who are born in South Africa, and would otherwise be statelessness, to acquire citizenship by birth.

“The act also makes provision for children born in South Africa from non-citizen parent(s) to acquire citizenship through naturalisation if they have lived their whole lives in the Republic until the age of 18,” said Nothando Shongwe from the organisation’s Statelessness Project.

However, South Africa had not established or published regulations that prescribe the administrative process to follow for submitting such applications, she said.

“The Constitutional Court in Chisuse v Director General: Department of Home Affairs emphasised that citizenship goes to the core of a person’s identity, their sense of belonging and security of person.

“Deprivation of, or interference with, a person’s citizenship affects many aspects of their private and public life, including that of their family,” Shongwe said.

It was argued in court that in failing to ensure that Khoza is documented, he, together with thousands of others in the same boat, are rendered stateless.

“All human beings have an inherent right to human dignity. Yet being undocumented results in people being treated in the most inhumane manner.”

Shongwe added that Khoza finds himself in legal limbo, and this had a range of negative impacts on his life. It had resulted in continued prejudice as he could not study, work, get married, obtain a driving licence, open a bank account or access any social assistance.

Khoza said in his affidavit that he recently had a child, but his name could not appear on the child’s birth register as he was undocumented.

“This causes me a great deal of stress as I am not legally recognised as the father of my child,” he said. He also wants to marry his partner, but being undocumented, he cannot do so.

He has received many job offers and development opportunities over the years, but once again he is hampered in accepting these due to his lack of legal status.

The court meanwhile reserved judgment in this case.

www.samigration.com

South Africa: Consular Posts Processing Long-Term Visa Application

Fragos | 03 Jan 2023

As an update to the withdrawn centralized processing of long-term visa applications, consular posts are now processing and issuing long-term visa applications that were included in the centralized adjudication process at the Department of Home Affairs between January 12, 2022 and August 31, 2022.

Consular posts are also processing applicants still awaiting an outcome of applications submitted after September 1, 2022, when the centralized adjudication process was withdrawn. Applicants will be contacted via telephone when a decision has been made on their application and must obtain the approval or refusal outcome at their nearest consular post. Applicants who applied for their visas at VFS centers will receive an outcome on the online portal.

The Department of Home Affairs has not yet confirmed the new visa processing times

www.samigration.com

New Zealanders’ path to Australian permanent residency eased by ditching income and health checks

The Guardian |  03 Jan 2023

Move expected to help clear backlog of about 11,500 applications and could ease process for up to 300,000 Kiwis

Australia will lower requirements for New Zealanders to obtain permanent residency. Photograph: Lisa Maree Williams/Getty Images

The Australian government has lowered the bar for New Zealanders who have applied for permanent residency.

Under changes announced by the home affairs department, New Zealanders who applied on or before 10 December for a subclass 189 visa will no longer face hurdles related to income, period of residence and health conditions.

The move, enacted by regulation, will help clear a backlog of about 11,500 applications, slashing wait times from two years down to six months or less.

The chair of Oz Kiwi, Joanne Cox, which represents New Zealanders in Australia, said she was hopeful the new streamlined system would be expanded to ease the process of obtaining permanency for up to 300,000 New Zealanders.

In July the Australian prime minister, Anthony Albanese, promised to announce improved pathways to citizenship and permanent residency by Anzac Day 2023, declaring his government didn’t “want people to be temporary residents forever”.

The Australian government has temporarily paused new applications for 189 visas while it considers “future migration and citizenship pathways for New Zealand citizens in Australia, reflecting the close ties between our two nations”, according to the home affairs department website.

This means that during the period of the pause, from December to July 2023, all existing applications will be finalised. This is a fast track that acknowledges “that this group of New Zealand citizens are long-term residents of Australia, have been working here and contributing to Australia’s economic recovery during the Covid-19 pandemic”.

Conditions, such as the income threshold of $53,900 and the bar on people with certain medical conditions gaining permanent residency, will be waived.

New Zealanders will be able access the benefits of permanent residency more quickly, including the National Disability Insurance Scheme, social security payments and automatic acquisition of Australian citizenship at birth for their children born in Australia.

Cox said the existing system was “unfair”, allowing freedom of movement between Australia and New Zealand but then subjecting New Zealanders to the same conditions as other applicants for permanent residency.

Cox said the conditions on the 189 visa, such as medical checks, were “nonsensical” for those who were already “eligible for Medicare and paid the Medicare levy”.

“At the moment, we say we can ‘permanently reside’ in Australia rather than be ‘permanent residents’,” she said.

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“It’s all good … until something goes wrong. If you have an issue like a disabled child or if you’ve committed a crime that makes you eligible for deportation, then it’s not all sunshine and roses.”

Cox said a cohort of up to 300,000 New Zealanders lacked a “pathway to permanency” due to changes made by the Howard government in 2001, and the limits on the 189 visa which acted as a “screening tool” barring those on lower incomes.

Then there are wait times, with only half of applications finalised within 21 months.

“We’re aware of people who applied in November 2020 and Jan 2021 who are still waiting to be approved for their 189,” she said.

“Those people should already be citizens now, they’ve already done their one year of residency … but they were stuck in this backlog.”

According to the regulation’s explanatory statement, the measure would “support workers from New Zealand living and working in Australia on a permanent visa to support economic recovery.

“Applicants are still required to meet public interest criteria, including those relating to character, national security and Australian values.”

www.samigration.com

Winding up an estate still takes longer than before the pandemic - what you can do

News24 – 29 December 2022

The timelines for winding up an estate have improved since the peak of the Covid-19 pandemic but are still likely to take longer than before Covid, as pandemic backlogs and other problems persist.A year was a good expectation for an estate where the deceased left a sound will and the estate was dealt with by an experienced executor, Angelique Visser, Fiduciary Institute of Southern Africa (FISA) National Councillor, says.

During the pandemic, however, timelines deteriorated, making it common for any estate to take two years to wind up, FISA reported last year. Increased deaths during the pandemic were responsible for much of the delays, but the offices of the Master of the High Court (the Master’s Offices) also took much longer to issue the letters that appoint executors, approve the estate accounts and authorise the distribution of estate assets to the heirs.

Bank delays frustrate estate professionals

Recently FISA has expressed its frustration with delays caused by banks and banks have admitted they too were slowed up by Covid and are still catching up.

To wind up an estate, the executor of the estate needs information about, among other things, your deceased family member’s bank accounts and investments. The accounts then need to be closed and the balances or investments transferred into a bank account in the estate’s name.The executor also needs the tax certificates for those accounts in order to file the deceased’s tax return and the estate’s return.

Ian Brink, chairperson of FISA, said banks are dragging their feet on these three tasks.He says banks have different procedures which they sometimes change without consultation, leading to confusion among bank staff, as well as much frustration for FISA members trying to help families wind up estates.

Months to respond

Visser says practitioners are now able to obtain a letter of executorship from the Master’s Office within two to three weeks, but then battle for three to four months for a response from some of the banks. She says she has approached the senior management of several banks for assistance but there has been no improvement.

Aneesa Razack, chief executive officer of FNB Fiduciary, says Covid-19 negatively affected the industry’s processes for winding up deceased estates. In addition to the increase in deaths, there has been an increase in fraud and administrative hurdles that are frequently beyond the control of executors and/or banks, she says.

Razack says banks are working through the Banking Association of South Africa with the Chief Master's Office to address the challenges and minimise the adverse impact on the families of those who have died. FNB is also trying to shorten the time it takes to wind up estates by increasing its capacity to help its clients and improving the processing of smaller estates using digital platforms, she says.

Two weeks to close account

Graham Mcpherson, head of Nedgroup Trust, says once the correct documents have been submitted, it takes 14 days to close an account and pay any money into the estate account.

Delays are primarily due to outages on the Master’s Office portal that banks and estate practitioners use and the need to get all the necessary documents from different parties, Mcpherson says. All of this has been compounded by the large volumes of estates currently experienced, he says.

During the peak of the pandemic the Master’s Offices worked at 50% capacity and closed frequently when staff became ill. The offices and the Department of Justice’s computer system also suffered a ransomware attack in July 2021.

IT problems

The Master’s Offices are now open but continue to be plagued by computer problems, the recent FISA conference heard. Martin Mafojane, the Chief Master of the High Court, said the Master's Offices do not have stable and reliable IT infrastructure resulting in the offices’ portal frequently being unavailable to professionals dealing with estates.

He said the offices fall within the Department of Justice and Constitutional Development which has now realised that rather than relying on contractors, it needs to recruit competent, qualified and skilful people to provide the tools that the offices require.

Confidence lost

Bongiwe Adonis, assistant manager at the Cape Town Master of the High Court, said the Master’s Office realised that practitioners and the public had lost confidence in it and that it needs to modernise its systems.

Online registration of deceased estates and trusts is one goal, and the aim is to have a user-friendly system like the South African Revenue Service’s eFiling system, enabling registration of an estate from anywhere in the world, she says. But we are not there yet, an in the meantime, members of FISA, the Legal Practice Council and the South African Institute of Chartered Accountants can use a self-help system available at the Master’s Offices to register estates, she says.

The Master’s Offices have committed to processing applications registered this way within 10 days, Adonis says.

Estates that are not registered on this self-help system – for example when documents are couriered to the Master's Office have a 21-day turnaround time from the time, she said. If the timeline is not met, the Master’s Office must explain the delay, she says. Information is also being pulled from the Department of Home Affairs so that dependants can be identified and fraudulent activities minimised, Adonis says. With these and other initiatives, the Master’s Offices are headed towards better and improved services by 2025, she says.

You can help

Both Standard Bank and Nedbank said delays in dealing with deceased’s accounts are often a result of families not knowing what documents must be submitted when and by whom. Both banks provide step-by-step assistance helping you to understand the process and requirements, they say.

Standard Bank’s Ross Linstrom encourages families and executors to contact the bank as soon as possible for assistance and guidance. If emergency access to the deceased’s finances is required, this can be arranged if the necessary information is provided to the bank, he says.

www.samigration.com

Zimbabwean citizen Gibson Tawodzera kicked out of SA may return, court rules

Pretoria News – 30 December 2022

Pretoria - A Zimbabwean citizen who had been kicked out of South Africa and deported back to Zimbabwe has received an early Christmas gift.

At the time, Home Affairs had, out of the blue, 13 years after his South African wife had died, insisted that the marriage was all along a sham.

The Gauteng High Court, Pretoria has now ordered the department to allow Gibson Tawodzera back into the country and reissue him with his permanent residency permit.

He approached the court after Home Affairs told him that his marriage was non existent and he could not remain in the country.

Tawodzera entered South Africa in 2000 and two years later he married Bongiwe Sombudla, a South African citizen. The director-general of the department issued Tawodzera with a permanent residence permit in 2004.

In terms of the emigration law, as it then read, Home Affairs could issue a permanent residence permit to any person who is the spouse of a South African, provided that the department was satisfied that “a good faith spousal relationship exists”.

The 2005, the Immigration Act was amended, which made it more difficult to obtain permanent residence in South Africa. It required a foreign spouse to have been married to a South African citizen for at least five years.

Sombudla died in 2006, but her husband nonetheless retained his permanent residency status. This was because his marriage had been terminated by her death and not because they had separated.

Almost 13 years later, in March 2019, Home Affairs sent a letter to Tawodzera recording that he acquired permanent residence by marriage, but alleging that “it appears that the marriage was fraudulent”.

The letter went on to allege that Tawodzera’s permit “was therefore issued on a misrepresentation” and that he was now a foreign national who was in the country illegally.

This was the start of Tawodzera’s long and fruitless struggle with the department in a bid to try and convince them that he and his wife loved each other and that her death was the only reason why they were apart.

The court had criticised the conduct of the department on various levels, including that it never once mentioned why it deemed the marriage to have been a sham.

The department said that Tawodzera’s permanent residence permit was invalid because it was obtained in breach of the Immigration Act.

It was argued that acquisition of permanent residency by marriage was only possible if the applicant had been the spouse of a citizen or permanent resident for five years.

The department argued that Tawodzera was married to Sombundla for less than four years before her death. He could accordingly not have lawfully acquired permanent residence, they said.

But Judge SDJ Wilson said Tawodzera’s permanent residence permit was granted under a more generous regime than now applies.

The highwater mark of the respondents’ case seems to be that Tawodzera’s permanent residence permit was invalid because his marriage to Sombundla was a sham. But the department had produced anything to substantiate this – not to Tawodzera or the court, the judge said.

Tawodzera was arrested last year for being in the country illegally and before he was deported. The prosecutor at the time told the court that no one from Sombudla’s family knew of his marriage. But the judge now remarked that there is no evidence substantiating it.

The judge said under these circumstances, Tawodzera must be allowed to return to South Africa, where he had been staying for 20 years and had made a living for himself.

www.samigration.com