A legislative amendment to give effect to a Constitutional Court ruling that sections of the Refugee Act are unconstitutional by denying asylum seekers' rights will be put before Parliament by March, the Department of Home Affairs has said.
On Tuesday, the department briefed the Portfolio Committee on Home Affairs on how it would respond to the ruling.
Last December, the Constitutional Court confirmed the Western Cape High Court's ruling, delivered by Deputy Judge 

President Patricia Goliath.
The Scalabrini Centre applied to the High Court for a declaratory order that subsections and the Regulations of the Refugee Act are inconsistent with the Constitution and invalid.
They argued the minister of home affairs - at the time it was Aaron Motsoaledi - the director-general of the Department of Home Affairs and the chairperson of the department's Standing Committee for Refugee Affairs created a system whereby asylum seekers, who failed to renew their visas within one month of the date of expiry, were deemed to have abandoned their applications for asylum unless they could satisfy the standing committee there were compelling reasons for their failure to renew their visas timeously.

They also argued this was inconsistent with international law, the Constitution and Refugees Act's principle of non-refoulement, meaning "one fleeing persecution or threats to 'his or her life, physical safety or freedom' should not be made to return to the country inflicting it".
Scalabrini also contended the impugned subsections were irrational and arbitrary and, therefore, unconstitutional, serving no legitimate government purpose in that they disqualified asylum seekers from the very system designed to protect them.

The courts agreed.
At a meeting last month, parliamentary legal services advised the committee it should invite Home Affairs Minister Leon Schreiber to brief the committee on what steps the department proposed to take to address the judgment.
The department notified the committee it is busy drafting the Refugees Amendment Bill, which is currently being consulted among the department's different branches.

The draft bill will then be submitted to the department's executive committee for approval to submit to Schreiber.
The department does not believe that it must submit the bill for public comment, as it is mandated by the Constitutional Court. It will also request the Presidency to waive a Socio-Economic Impact Assessment.

The department will request the Office of the Chief State Law Advisor to certify the bill, before it goes through the normal Cabinet process. The department was confident it would introduce the bill to Parliament by the end of March.
The Refugees Act was not the only immigration law to be found to be unconstitutional by the apex court last December.
The court found it is unconstitutional that the Immigration Act requires parents in South Africa on spousal visas to leave the country to reapply for a visa when theirs expire due to an end to their spousal relationship.

The court suspended the order of invalidity for 24 months, but ordered parents would be allowed to stay in South Africa while they apply for their new visas. If the legislation is not amended by the deadline, that provision would be read into the law.
Parliament's legal services advised the committee it would be preferable the legislation be amended to avoid a situation where the courts take over Parliament's legislative function.
Legal services also advised the department should brief the committee on how it intends to address the court ruling.

+27 82 373 8415, where are you now? check our website : www.samigration.com

+27 82 373 8415, where are you now? check our website : www.samigration.com

At 8am tomorrow morning, the Department of Home Affairs ground-breaking digital platform for the Trusted Tour Operator Scheme (TTOS), goes live for the first time. This platform will drive increased tourism from the major source markets of India and China by enabling vetted and approved tour operators to submit group applications for large tour groups from these two countries. This addresses a long-standing obstacle to tourism growth, whereby long queues, red tape and the inability to process group applications timeously led to inefficiency in the issuing of visas for tourists from these countries.To illustrate the scale of the change: before TTOS was created, there were only two South African missions in China, and only two missions in India, to serve the 2.8 billion people living in those two countries who wanted to come as tourists to South Africa. But under the new TTOS digital-first system, tourists from India and China who use approved tour operators will no longer have to visit a mission, will no longer fill in a single form, will not need to stand in a single queue, and will receive their visas digitally within three days.In 2023, South Africa only received 37 000 tourists from China and only 79 000 from India. By enhancing visa efficiency and security through TTOS, Home Affairs looks forward to enabling much faster tourism growth from these two burgeoning source markets.The Minister of Home Affairs, Dr Leon Schreiber, said: The fact that Home Affairs took the TTOS from conceptualisation to implementation in less than six months demonstrates our commitment to embracing digital transformation and to playing our role as an economic enabler to create jobs. Research has shown that for every twelve new tourists attracted by TTOS, we can create one new job in South Africa. This demonstrates the power of Home Affairs digital transformation agenda to create jobs. Minister Schreiber added: I want to acknowledge our in-house team of developers who built this system. I also want to thank the Minister in the Presidency, Khumbudzo Ntshaveni, as well as the Minister of Tourism, Patricia de Lille, for their support in rolling out this innovative new system in record time. This shows the power of collaboration through the Government of National Unity as we pursue our apex priority to grow the economy and create jobs. Please find the Ministers speech delivered in Parliament today, 11 February 2025, during the SONA 2025 Debate:Home Affairs walks the talk on digital transformation Madam Speaker,Digital transformation provides our country with a once-in-a-generation opportunity to leapfrog into the future.While countries like Brazil, India and Estonia have long embraced digitalisation to overcome problems, South Africa has continued to use manual, paper-based systems dating from the previous century, and allowed digital platforms that do exist, to decay.The Democratic Alliance therefore welcomes the Presidents embrace of digital transformation in his State of the Nation Address.But this must include urgent regulatory reform to the monopoly held by the State Information Technology Agency, which suffocates technological innovation.If this can be achieved, then the Presidents announcement creates an opportunity for our country to not only to leapfrog into the digital age, but also to harness digital transformation to achieve the apex priority of the Government of National Unity, which is to grow the economy and create jobs.This is our opportunity to re engineer government itself, where all the paperwork, all the queues,and all the fraud is replaced by secure online systems, available at a touch as the Presidentaptly put it.At the heart of achieving this, sits Home Affairs.The key to digitalising government, is the creation of a user-friendly digital identity systemt hat is biometrically secured against fraud.Think of the possibilities.A single, biometrically-verified digital ID for every person can eliminate fraudulent paymentsof social grants and NSFAS funding, make identity theft a thing of the past, create a securedigital wallet for IDs, passports, drivers licences, educational certificates and other officiald ocuments, and enhance the power of the South African passport to gain visa-free access tomore countries.Madam Speaker,These changes will not happen overnight.But we are working flat-out to deliver Home Affairs @ home as quickly as possible.In addition to building the first components for digital ID, over the next 12 months, theDepartment of Home Affairs, the Border Management Authority and Government PrintingWorks will pursue the following priority reforms:* Firstly, and for the first time, we will introduce the option to have IDs and passportssecurely delivered to the doorsteps of our clients, in the same way that banks alreadydeliver debit and credit cards.* Secondly, we will engage with banks and retailers to dramatically expand the successful pilot project that delivers Home Affairs services in some bank branches.This project works, but has been limited to only 30 branches for the past decade.I now want to expand it to hundreds or even a thousand bank branches, to enhanceaccess and inclusion and ensure that South Africans in both rural and urban areas canvisit their local bank branch to get a new ID or passport.* Thirdly, also as part of expanding access and inclusion, we are working to ensure thatevery person who is legally entitled to a Smart ID is able to get one, by fixing the ITblock that currently still forces naturalised citizens and permanent residents to use theless-secure green ID books.* And finally, as the President announced, we want to introduce an Electronic Travel Authorisation system to begin automating the visa process through Machine Learningand AI.At the heart of these reforms is a mindset shift that recognises that data is the currency of the future and that it is the individual that owns their own data.It is your ID, your passport, and your child s birth certificate.This means the job of government is not to act as a centralised gatekeeper.Instead, just like the job of a bank is to secure your savings while still granting you access toyour own money, Home Affairs is the custodian of data, and our job is to ensure decentralised,secure and efficient access for our clients to their own data.Finally, Madam Speaker, I want to acknowledge that South Africans are tired of emptypromises.That is why I conclude my remarks today with an announcement that shows how Home Affairs under the GNU is turning words into action.Bright and early tomorrow morning, our brand-new digital portal for the Trusted Tour Operator Scheme will go live.Through this portal, vetted tour operators will immediately be able to submit group visa applications to bring many more tourists from India and China to visit beautiful South Africa.The process has been digitalised from beginning to end, and tourists will no longer fill out asingle form, or stand in a single queue.To illustrate the scale of this change: before TTOS was created, there were only two South African missions in China, and only two missions in India, to serve the 2.8 billion people living in those two countries who wanted to come as tourists to our country.Going forward, tour operators will submit an online group application, and receive the outcomeof their application digitally within three days.Importantly, this system was built in-house, by harnessing the talent of the young people on Home Affairs software development team.I hope that, within a matter of weeks, Minister Patricia de Lille and I will be able to welcome the first airplane full of new tourists who would otherwise not have come to spend their money in South Africa.For every twelve tourists on that plane, one new job is created for the people of our country.This is Home Affairs demonstrating the power of digital transformation.Our commitment is to delivery dignity for all, both by giving people access to our civic services closer to where they live, and by driving job creation through visa reform.Because nothing on earth delivers dignity, like a job.Thank you.

Former public protector Thuli Madonsela suggested the Portfolio Committee on Home Affairs should amend the Immigration Amendment Bill to make provision for assistance for those who could not afford lawyers. (Gallo Images/Sharon Seretlo) The Portfolio Committee on Home Affairs are working on the Constitutional Court-ordered Immigration Amendment Bill. `Everyone deserves justice, no matter who they are,` Thuli Madonsela told the committee as it listened to public submissions on Tuesday. The bill should provide for the detention of `any illegal foreigner` under the Immigration Act. Everyone deserves justice, no matter who they are, former public protector Thuli Madonsela reminded the Portfolio Committee on Home Affairs as it works on the Immigration Amendment Bill. The bill aims to ensure `any illegal foreigner` detained under the Immigration Act is brought before a court in person within 48 hours from the time of his or her arrest for the court to determine whether it is in the interests of justice to order further detention for purposes of deportation. This legislation is the result of two Constitutional Court rulings, the first dating back to 2017, and the second 2023, which found sections of the Immigration Act unconstitutional. The bill was introduced to Parliament last year, and the committee subsequently put it up for public comment. It received 378 submissions on the bill, of which 246, according to the committee`s content advisor, supported the bill, 120 submissions expressed mixed views on the bill, only supporting parts of the bill, and only 12 submissions opposed the bill in its entirety. On Tuesday, the committee listened to oral submissions from some of the entities that made submissions, including Stellenbosch University`s Centre for Social Justice, chaired by Madonsela .She welcomed the `initiative of the Department of Home Affairs to finally comply` with the Constitutional Court`s rulings, adding she believed the department responded correctly to the judgment, after the Immigration Act was `found wanting because it unfairly discriminated between citizens and foreigners in terms of access to justice`.` We believe that social justice is concerned with embracing the humanity of all through the enjoyment of all rights and freedoms, reflected in just equitable and fair distribution of all opportunities, resources, benefits, privileges and burdens in a society. Madonsela added: At the core of social justice is embracing the humanity of every person, so that nobody finds it harder than others to exist in society and nobody should bear more burdens than others. She said authority for this came from Constitutional Court rulings, which said social justice was a principle of ubuntu. Madonsela added the bill did not regulate foreigners, it regulated suspected foreigners, and suggested the committee should amend the bill to make provision for assistance for those who could not afford lawyers. Everyone deserves justice, no matter who they are,` she said. The committee also heard from the SA Human Rights Commission, whose commissioner, Aseza Gungubele, warned 19 working days for public comment might lead to the exclusion of vulnerable groups impacted by the bill. The commission also recommended the department `takes all reasonable steps in future to adhere to court judgments within time frames as this delay impacts on the foundation of democracy`. NGO Lawyers for Human Rights, which brought the cases to the Constitutional Court, which led to the amendment, expressed concern about the proposed amendment`s use of `interests of justice` for migrant detention .It said while `interests of justice` was flexible, it required precise definition and guidelines. The Constitutional Court has stressed the need for clear legislative guidance on discretionary powers, especially detention,` read its presentation The bill lacks this guidance, risking arbitrary detention and infringing constitutional rights.`