High Court finds spousal visa rules unconstitutional

9 June 2022 -  Groundup

Foreign parents of South African children should be allowed to remain in the country even if their relationship with their spouse ends

The Western Cape High Court has ruled that certain provisions of the Immigration Act and its regulations are unconstitutional.

• The Western Cape High Court has found that compelling foreign spouses and caregivers to leave the country if their relationship with their South African spouse ends is unconstitutional.
• Judge Mark Sher said the spousal visa rule was in conflict with parental duty and the rights of the child.
• Home Affairs opposed the case saying the rules were there to prevent foreigners gaining entry to South Africa through sham marriages.

A judgment by the Western Cape High Court means that foreigners who are parents and caregivers of South African children will be allowed to remain in the country after their relationships with their South African spouses come to an end.

Judge Mark Sher has ruled that certain provisions of the Immigration Act and its regulations are unconstitutional.

Among the applicants in the case before him were a 47-year-old German woman, who is a mother of two, a French baker who has become his three children’s sole guardian after his wife abandoned them, a British company executive, a Kenyan media researcher and a Swiss carpenter.

All had been residing and working in South Africa on “spousal visas”, which had been extended from time to time but were no longer valid because of the termination of their relationships.

They all have children who are citizens. “All have been dutiful and supportive parents and caregivers to their children, sharing parental responsibilities,” noted Judge Sher.

The applicants complained that because their relationships had ended, their temporary residence rights in terms of the spousal visas issued to them, had automatically expired. They were no longer allowed to work or live in South Africa and must “depart”, failing which they would be deported.

Should they wish to apply for any other form of visa, such as a visitor or relative visa, they would have to do so from outside South Africa. Visitor and relative visas also do not allow them to work in the country.

The applicants said this was an unjustifiable limitation of their constitutional rights and those of their children to dignity, equality and parental care. It also offended the “best interests of the child” principle.

“They point out that while their spousal relationship might have come to an end, their parental relationships have not,” said Judge Sher.

“In effect, the applicants have the Hobson’s Choice of either breaking the law by continuing to live and work in the country in order to maintain their parental responsibilities and relationships and contact with their children, or uphold the law by leaving the country, therefore breaching their parental duties and severing their contact and relationships with their children.”

“I am of the view that the effect of the provisions in issue results in a violation of both their rights to dignity as well as those of their children, and the children’s constitutional and parental rights,” the judge said.

The Minister and officials of the Department of Home Affairs opposed the application saying that the provisions were there to prevent abuse by foreigners who “entered into sham marriages” to obtain rights of entry, residence and work.

They denied that the provisions in the Act were discriminatory but said any rights limitation was justified and reasonable and commonly found in many open and democratic countries throughout the world.

But Judge Sher said the respondents had offered up very little, if any substance, about the infringement of parental rights and right to dignity. For example, they had not shown why it was necessary for foreign parents to leave the country and their children in order to regularise their status.

“In order to ensure that the country is not overburdened with additional South African children who are destitute and need to be provided for at state expense, the contribution which is provided by their foreign parents is surely a necessary and needed one, as long as they were working in the country lawfully at the time of the termination of their spousal visa.

“One can expect that they should, if possible, continue to be accommodated in the country so that they can continue to support their children and care for them, both financially and emotionally,” said Judge Sher.

He declared as unconstitutional sections of the Act that: require a foreigner who holds a spousal visa, who has parental responsibility and rights, to leave South Africa on the termination of the relationship; require such a person to make an application for a change in status from outside South Africa; do not allow a foreigner who may be eligible for a visitors or relatives visa to work in South Africa in order to discharge their parental rights and responsibilities.

Judge Sher suspended the declaration of invalidity for 24 months to enable Parliament to remedy the inconsistencies but ordered a “reading in” of the provisions in the interim.

One applicant, a Zimbabwean boxing coach, sought an order setting aside the declaration of him as an “undesirable person”.

Judge Sher declined to grant this order. He said the man had been in the country illegally since 2012 and had shown a “blatant disregard for the law”.

“Although the Court’s sympathies lie with his child, assisting him would encourage and effectively grant a licence to foreigners to enter the country illegally, and to live and work here illegally until the moment when they have a child who is a South African citizen or permanent resident, which they need to support, which they could then use to legalise their stay.

“No country that functions in terms of the rule of law can endorse such a stance.”

www.samigration.com

Say hi to 'Sandton 2.0', as swanky suburb beefs up security with artificial intelligence

News24 – 07 November 2022

• Sandton's property owners and businesses were not idle as the pandemic shuttered stores and offices, and they were contemplating how to revive the suburb.
• High-tech security features to renew Sandton Central precinct have now been introduced, including number plate recognition.
• There are signs that activity is improving in precinct, while new security efforts also helped recently amid warnings of a potential terrorist attack.

While some were writing Sandton's obituary during the height of the Covid-19 pandemic when the work-from-home (WFH) phenomenon became the norm, others - like its property owners and businesses - were planning its revival.

From the rollout of 250 state-of-the-art security cameras with artificial intelligence (AI) features to combat crime, to piloting the use of batteries at major traffic light interchanges to keep traffic flowing during load shedding, efforts over the past two years have been under way to improve the value proposition of SA's financial hub, aiming to make it a smart city with world-class security.

The cameras, which were installed at all major intersections in partnership with Vumacam, have AI capabilities including numberplate recognition and the ability to spot suspicious behaviour such as loitering. In this way, cars, which may have been stolen and being used for crime in the area, can be identified, while security teams can be dispersed to investigate any suspicious loitering by would-be criminals. 

Now, there are also three tactical response vehicles available at any given moment to attend to any crimes, as well as a dedicated medic available 24/7 to help with accidents or any other life-saving emergencies.  

The neighbourhood's pilot project with the Johannesburg Roads Agency (JRA) to install UPS batteries at major intersections is also gaining momentum. Elaine Jack, precinct manager for Sandton Central, says the suburb is currently working on an agreement with JRA and that it hoped to "roll this out and power up all the critical intersections in Sandton".

She says the use of batteries is aimed at making Sandton as accessible as possible to tenants and others visiting or working in the area.

Interventions paying off 

Jack believes the interventions are working and delivering the desired results, with activity in the precinct improving, adding there has been a steady increase in traffic in the area in recent months.

"Of course, the buzz is definitely there. On a day-to-day basis you can see it improving."

Elaine Jack, precinct manager for Sandton Central

The interventions, including security changes, also had an important role to play in mounting a response to the alert issued by the US embassy about a possible terrorist threat over the weekend of 29 October, when Sandton was also hosting Joburg Pride.  

Jack said the precinct's proactive management and long-standing relationships meant that Sandton Central could respond swiftly with an effective community effort when faced with heightened security situations. For instance, in response to the security alert from the US Embassy, she said the precinct collaborated with the police, various private security companies, and the community policing forum and tapped into the advantage of the 250 CCTVs covering the precinct to monitor it effectively and respond to abnormal or suspicious activities promptly.

Starting in August 2020 when much of the area was a ghost town with large swathes of vacancies, the Sandton Central precinct, consisting of about 60 members across 143 buildings, took advantage of the lull to start looking at ways to significantly improve it, so it was ready for when life returned to some semblance of normality. The boundaries of Sandton Central, which consists of three separate city improvement districts (CIDs), stretch from Grayston up to Sandton Drive and extend to Rivonia Road, Wierda Valley and Katherine Steet. 

Among the high-profile members of Sandton Central are JSE-listed property groups Growthpoint Properties and Redefine Properties, as well as the JSE, Africa's largest bourse, and other top financial services groups in the area such as Discovery, Investec, Alexander Forbes, Old Mutual and Nedbank, among others. Law firms Webber Wentzel and Werksmans Attorneys are also members.

Jack explains that Sandton Central, which traces its origins to the year 2000, is managed like a "nonprofit company" with it collecting CID levies from property owners and businesses to provide "supplementary and complementary top-up services in the public space". It was originally started to ensure that the precinct did not deteriorate like much of the Johannesburg central business district did in the 1990s.

In the last financial year for 2021/22, levies collected by Sandton Central amounted to R16 million in total, with generally about 67% of that going to security, 15% to cleaning and maintenance, and 18% to management and administration of the precinct. The rest of the levies go to special project, such as the UPS batteries for traffic signals, marketing and branding of the area.

Early this year the Sandton Central precinct also launched a campaign called #WFH Sandton, which stands for "work from here," and playing on the phrase "work from home," which entered the lexicon during the height of the pandemic. Landlords and businesses are now using it to showcase all of the new features introduced over the past two years to encourage people to return.  

Given rotational WFH and office schedules, Jack says that offices in the Sandton Central precinct are about 40% to 50% full on any given day, with the aim to get it to north of 70% over the short to medium term, taking into account the new hybrid working environment.

At the same time, a lot of companies are looking for quality office space, which Jack says is in abundance in Sandton, and means no one is going to be "running away" from the area any time soon.

Also providing support are the numerous amenities on offer, with Jack saying that the planned launch of the Rea Vaya bus service in the precinct will also go a long way to supporting the growth of the node. She says the construction of the last of the Rea Vaya stations in Rivonia Road is starting in November this year, adding that the affordable bus service adds to the "many existing public transport offerings for Sandton".

Jack says the precinct is also aware of new realities such as hybrid working environments, adding the plan is "not necessary about trying to get everyone back".

"It's more like showcasing there is this place that you can come to which is full of amenities and remind people what has changed because they have been away so long. You can come to work and engage with your teams, and you can also come here and do your 40-minute shopping, your 15-minute banking. We also need youth to be in the workplace to engage with more experienced staff [to learn company culture]. You can't do everything at home."

Security paramount

Property economist and University of Cape Town professor Francois Viruly says interventions such as the Sandton Central precinct's are in line with the movement the world is seeing towards "cities which have technologies embedded in the urban environment".

"We've talked about prop tech, which is the technology in the buildings, but the question is what happens when you leave the building, does everything stop? What evolution have we seen in [traffic lights] in the last few decades?  

"Their timing has improved, but if you think about it our cars have started getting smarter, which means the urban environment needs to start reflecting that as well."

Another phrase that he believes is increasingly growing in importance is the "the move to quality".

"To be successful in the property sector in the years to come you have to create an environment that competes against the online world. You have got to make it attractive for someone to leave their chair and leave their online world and come to you. There is a move towards quality and there is increasing pressure to create quality urban environments and quality buildings and workspaces. That is what is being done here, that is to look at ways to get you to leave your chair and come to them [urban environments]."

He emphasised that while properties must remain competitive in this market, this competitiveness relied on the quality of the urban environment.

Viruly says it is not "surprising" that interventions from Sandton Central precinct are taking place, in that the average economic life of an office building in South Africa is 30 to 40 years, adding that this is "roughly how long ago Sandton was built".

'Sandton 2.0'

"I think we are getting into a phase which we could call [it] 'Sandton 2.0', which is the reinvention of Sandton. In that sense it is not surprising what is happening. I think what has happened is that as I have often said Covid-19 has shown us the trailer of what life could look in the years to come. Maybe we won't be there immediately, but it has opened up new possibilities and I think that the urban environments are going to start reflecting that."

For property economist Erwin Rode, who heads up Rode & Associates, the large-scale moves to improve security in Sandton are to be welcomed, saying that security in SA is one of the biggest issues.

"We will be like London soon where you move and a camera takes a photo of you and I think it is necessary in SA. I think all cities must go that route," says Rode.  

He says security measures like the ones being introduced by Sandton Central prevented "degeneration, which is an absolute necessity".

Property developer Chris Renecle, who heads up Renprop, said technology interventions especially on the security front are "definitely needed in all work CBD areas" in the broader Johannesburg area and these moves in Sandton are positive.

He said any landlord who wanted to keep their tenants had to investigate using this kind of technology and security and also get more involved in their precincts.

Renecle says similar interventions are also taking place in other prime office and residential nodes such as Rosebank and Rivonia.

He said the technology has improved dramatically in recent years, adding that in the group's own residential developments in Rosebank, for instance, it is making use of biometrics that employ facial recognition for owners. This makes it impossible for people to slip past reception.

www.samigration.com

Whistleblower gunned down after flagging dodgy multimillion-rand home affairs tender

News24  07 November 2022

• Marumo Eric Phenya was gunned down just three weeks after he reported a conspiracy to commit murder case.
• The murdered whistleblower flagged tender corruption at the Department of Home Affairs.
• He uncovered irregularities involving a company that provided IT solutions to the department.

Businessman Marumo Eric Phenya was killed in a hail of bullets after receiving death threats when he blew the whistle on a dodgy multimillion-rand tender at the Department of Home Affairs.

Last month, Phenya was found dead in the driver's seat of his bullet-ridden white Land Rover in Roodepoort. 

The 57-year-old, who was on his way home after dropping his children at school, came under attack around 07:30 by two men at the traffic lights on Hendrik Potgieter Road. They fired 10 shots from a 9mm pistol before fleeing the scene on foot.

Phenya continued driving until his vehicle came to a standstill on an island on the side of the road, where police found him.

The incident is being treated as a possible assassination. His killers remain at large.

Phenya's death comes three weeks after he opened a case at Honeydew police station relating to conspiracy to commit murder.

Gauteng police spokesperson Brigadier Brenda Muridili told News24 that Phenya opened the case on 31 August 2022.

"The family is finding it very difficult to come to grips with this tragic and violent loss," said Chad Thomas on behalf of the family.

Thomas, who works for IRS Forensic Investigations, said Marumo received death threats after the company he worked for flagged alleged tender irregularities.

"Mr and Mrs Phenya received threats via telephone, and men arrived at their house when they were not home. These threats were reported to SAPS," said Thomas.

Foursight IT Business Solutions, of which Phenya's wife is a director, was contracted to provide IT solutions to the home affairs department.

They reported an alleged dodgy deal involving another IT company with links to a senior government official working at the department.

Thomas said the government official was suspended, pending disciplinary proceedings, at which the Phenyas were testifying.

The spokesperson for the department, Siya Qoza, told News24 it had appointed a forensic investigating firm to probe a complaint by the whistleblower, which was wrapped up last month.

"The forensic investigating firm submitted its final report to the department on 6 September 2022. A case was opened with the police ... Disciplinary action was also instituted against the employee," he said.

Qoza said the employee, whose name is known to News24, was placed on precautionary suspension, but he later resigned.

"The department has placed a marker on his profile, which means that he won't be able to re-enter the public service."

The criminal investigation is still under way.

www.samigration.com

Zimbabwe braces for influx of citizens as special permits expire in SA 

News 24. 07 November 2022.

• The Zimbabwean government has set up subcommittees to handle returning citizens.

• A majority of Zimbabweans do not qualify for other visas in SA, the government said.

• The Gauteng High Court is yet to hear two challenges against the cancellation of the ZEP.

The Zimbabwean government says most people living and working in South Africa under the  Zimbabwean Exemption Permit (ZEP) system do not qualify for critical skills permits, and it is preparing for an influx of returning citizens.

The permits were meant to end on 31 December 2022, but the Department of Home Affairs extended them by a further six months, to give Zimbabweans more time to apply for other visas.

By end of October, fewer than 10% of ZEP holders had applied for the available mainstream visas.

An estimated 180 000 ZEP holders will be affected by the 30 June 2023 deadline set by South Africa.

"Cabinet would like to inform the public that mass deportations of undocumented Zimbabweans were expected from South Africa following the expiry of Zimbabwe Exemptions Permits, which South Africa had granted them," Zimbabwean Information Minister Monica Mutsvangwa told journalists in Harare.

She added:

Most ZEP holders do not qualify for the outlined critical skills visas, hence the low uptake.

The Zimbabwean government had set up a committee to look into the transport and logistics of returnees, documentation, security, reintegration support, health, education and resource mobilisation, Mutsvangwa said.

The government would allow those returning to bring as many households appliances as they could without paying duty, but they would only be allowed one duty-free vehicle each.

Currently, there are two cases yet to be heard by the Gauteng High Court in Pretoria before Judge Colleen Collis and two other judges. 

Simba Chitando of African Amity mounted a legal challenge against the home affairs department over the cancellation of the permits. The Zimbabwe Immigration Federation is also challenging the department.

www.samigration.com

SA's dismal e-Visa service may soon get professional help – but it could take a while

Luke Daniel , Business Insider SA

07 Nov 2022

• South Africa's e-Visa system was launched to make applications easier and quicker through an online platform.
• But the system has been marred by delays and technical challenges.
• VFS Global, which already works with South Africa's Department of Home Affairs to facilitate the processing of visa applications, could soon be roped in to help the ailing system.

South Africa's e-Visa system, meant to simplify the process for travel to the country, has been marred by delays and technical challenges. Now, the Department of Home Affairs (DHA) is in talks with a private company, already heavily involved with visa admin, to help out.

"The decision to introduce the e-Visa was informed by observable benefits of this system. It is reliable, client-friendly, and convenient for visa applicants, airlines, trading partners and Home Affairs officials," announced Minister Aaron Motsoaledi in December 2019.

The testing phase of South Africa's e-Visa system, which included Kenya, China, India, and Nigeria, was due to be completed by March 2020. Two years later, President Cyril Ramaphosa announced that the e-Visa system had been officially launched to include 14 countries.

But the e-Visa launch was met with criticism from potential travellers and South African tourism businesses.

The online platform was unstable and difficult to navigate, a far cry from a world-class system which would be inviting to tourists, said Rosemary Anderson, national chairperson of the Federated Hospitality Association of South Africa. The same concerns were voiced by IBN Immigration Solutions, which said its branch in Kenya had tried to use the online system, with no luck.

Foreign tourists trying to use South Africa's e-Visa system have described it as "slow, unreliable, and inefficient" in several online complaints, some as recent as August. More recently, Tourism Minister Lindiwe Sisulu admitted that the expansion of the e-Visa system was hamstrung by a huge backlog and needed "a lot of work".

VFS Global, which already works with South Africa's DHA, along with more than 60 other governments around the world, to facilitate the processing of visa applications, has confirmed that it is assisting in developing a better e-Visa system.

"Many governments and ministries, they are also looking to digitise their visa services. They want to move out of the physical application pack [and are] getting into the e-Visa space, and we are already there as a market leader in terms of providing an end-to-end e-Visa solution," said Hariprasad Viswanathan, VFS Global's head in Sub-Saharan Africa, during a media briefing on Wednesday.

Viswanathan added that the company had already developed functional e-Visa systems for several countries, including the United Arab Emirates (UAE). He also confirmed that VFS Global was planning to test a new and improved e-Visa programme in South Africa.

"We are in the process of doing a pilot," Viswanathan told Business Insider SA, adding that while VFS Global was engaging the DHA on a new pilot programme, the process was not at an advanced stage and no timelines could be given.

"We have still not implemented that [as] we are waiting for official approvals from the department of home affairs. We're still in progress with them. Once we've implemented [the pilot], we could tell you how soon it can be expanded. With our expertise, we do feel that it will be a simple process… [but] we are not able to provide the complete details around its implementation."