Brothers linked to trafficking of 39 Mozambicans get jail terms for being in SA illegally

News 24 – 28 July 2022

Co-accused, Mozambican brothers Carlos Bernardo Guambe, 34, and Gabriele Bernardo Guambe, 32, were arrested a month ago and are linked to the alleged human trafficking.

• Two brothers have been given three-month sentences for contravention of the Immigration Act. 
• Carlos Bernardo Guambe and Gabriel Bernardo Guambe pleaded guilty to being in the country illegally. 
• The two are serving their sentence as they await their trial for their alleged involvement in human trafficking.

Two brothers who were allegedly caught trafficking Mozambicans into South Africa in June have been sentenced to three months imprisonment for being in the country illegally.

Carlos Bernardo Guambe, 34, and Gabriel Bernardo Guambe, both from Mozambique, were arrested in June for a human trafficking operation at a farm in Dullstroom, Mpumalanga, where 39 people - including seven women, nine children under the age of five, and 23 men - were rescued.

The brothers were charged with trafficking, and were then discovered to be in the country illegally. Additional charges of contravening the Immigration Act were then added.  

The brothers, who had previously abandoned their bail application for the alleged involvement in the human trafficking operation, appeared in the Belfast Magistrate's Court on Friday.

Mpumalanga Hawks spokesperson Captain Dineo Lucy Sekgotodi said the two were found guilty and each sentenced to three months imprisonment or a R5 000 fine.

She said they were serving their sentences alongside the 60-year-old Cornelis Johannes Uys and his son Cornelis Johannes Albertus Uys - their co-accused who are still awaiting their bail hearing.

While the two brothers were arrested in June, the father and son were only arrested in the following months.

She added:

When the Uys', who face charges of contravening the Trafficking in Persons Act [and] participating or conspiring to trafficking in persons, appeared before the Belfast Magistrate's Court on Monday for bail, they were remanded in custody and the case was postponed to 27 July 2022 for further bail hearing.

The modus operandi

According to Sekgotodi, the 39 victims were recruited from Mozambique and brought to South Africa in a taxi for job opportunities.

She said they had been transported from Mozambique to the South African border in a taxi. They then had to cross a river into South Africa, and were then taken by the taxi to Lydenburg in Mpumalanga. 

Cornelis and one of the brothers allegedly met with the taxi driver and paid him money in exchange for the victims, who were then taken to their farm for labour, said Sekgotodi.

She said they were rescued from a farm in Dullstrom by members of the Mbombela-based Hawks’ Serious Organised Crime Investigation, Flying Squad, and the departments of labour and home affairs. 

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New regulations make it tougher to hire foreign workers in South Africa – what you need to know

Businesstech - 28 July 2022

The Department of Employment and Labour (DEL) has published an annexure to South Africa’s immigration regulations, making sure that all work visa applications are vetted by the department first.

Labour and immigration experts at Cliffe Dekker Hofmeyr said that employers must ensure that they comply with new requirements to avoid any administrative delays in the processing of visa applications.

The new annexure clarifies “uncertainty” about the DEL’s involvement in the visa application process, now making it a critical step, said Cliffe Dekker Hofmeyr.

There is now a compulsory preliminary process to be followed before work visa applications are submitted to Visa Facilitation Services (VFS), which was not the case prior to the annexure.

Previously, an employer was required to register a vacancy with the DEL and had to interview all prospective candidates referred to them by the department. Under the new annexure, visa applications to fill the position must be submitted to the DEL for vetting.

The annexure deals with the following:

• A general work visa (GWV);
• A corporate visa;
• The renewal of an existing visa (to a GWV);
• The change of conditions or status of an existing visa (to a GWV);
• A permanent residence permit for foreigners who receive an offer of employment while in possession of a valid work visa.

According to Cliffe Dekker Hofmeyr, in terms of the preliminary process, the following steps must be taken by the client employer – and not the foreign worker – before a visa application is submitted to VFS:

• The employer must register the employment opportunity with the DEL by completing a registration form.
• After completing the employment opportunity form, the DEL will try to provide the employer with suitable candidates for placement. The client employer is required to inform the DEL whether any of its referred candidates have been employed.
• The visa application form must be completed and delivered to the relevant DEL provincial office, together with the respective supporting documents. When submitting the visa application, the client employer must also provide the DEL with its contact details and business address for purposes of future compliance audits.
• After the visa application is submitted to the DEL, a “visa finalisation notification” will be emailed to the employer after a recommendation certificate has been submitted by the DEL to the Department of Home Affairs (DHA).

In terms of the annexure, the DEL’s recommendation is not appealable, and an appeal can only be directed to the DHA, added Cliffe Dekker Hofmeyr.

Only after the employer receives the notification from the DEL it can submit the work visa application to the DHA. The turnaround time for the DEL to process a work visa is said to be 30 working days. However, the department currently faces a backlog.

Zero-tolerance stance

The DHA announced at a recent Xpatweb conference that it has the mandate to address immigration in South Africa. It urged employers to ensure that all expatriate staff are in possession of legally obtained and issued work visas.

The department’s approach has been necessitated by years of employers failing to comply with the provisions of the Immigration Act through the consistent employment of illegal foreigners without valid work visas, said Cliffe Dekker Hofmeyr.

Under the Immigration Act, employers are prohibited from employing illegal foreign nationals. The new zero-tolerance approach by the government means that employers who are found to have contravened the Immigration Act will be shown ‘no mercy’.

Cliffe Dekker Hofmeyr said that employers must make a good faith effort to ascertain the status or citizenship of any foreigners they intend to employ, not to contravene the Immigration Act.

This could be done by:

• Verifying the validity of prospective employees’ work visas, refugee or asylum permits through either the Department of Home Affairs or a third-party service provider such as the Managed Integrity Evaluation Services; or,
• Conducting an immigration audit of all current foreign employees.

An illegal foreign national under the Immigration Act is a foreigner whose status does not authorise them to be employed by a particular employer. Or any foreigners on terms, conditions and/or in any capacity other than the capacity provided for based on their status, said Cliffe Dekker Hofmeyr.

If an employer is in contravention of the act, it is guilty of an offence and liable to either a fine or imprisonment upon conviction, the firm said.

The DHA said it is currently working its way through businesses and arresting illegal ex-pats and relevant company representatives.

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Massive visa fraud uncovered in South Africa: minister

Businesstech - 26 July 2022

Home affairs minister Aaron Motsoaledi says that a ministerial committee reviewing permits and visas in South Africa has uncovered deep-rooted corruption within his department when it comes to handling certain types of visas.

He said that insiders in the department had aided applicants in gaming the system, and had often directly flouted the country’s laws in issuing student and retirement visas to foreign nationals looking to enter the country.

In a column published by the City Press, Motsoaledi said he was compelled to launch the committee and investigation after high-profile cases involving foreign pastors showed that they had been in South Africa on false or invalid visas.

When the investigations started, he said, certain employees within the department pushed back and protested. This only pushed the department to dig deeper, he said.

What the committee found was that various forms of visa fraud were taking place, including:

• Home affairs officials creating fake users on internal systems
• Deliberate interference with visa processes and applications
• IDs were stolen to access the systems
• Both internal and external manipulation of  applications
• Processes were circumvented or ignored to issue visas and permits fraudulently

Motsoaledi said the fraud was particularly egregious when it came to issuing permanent resident permits (PRPs), which were in many cases awarded without applicants meeting the requirements. This includes the PRPs being awarded before the five years in the country requirement was up, or spousal approval with fake certificates.

There were also cases where previous applications had been flagged for fraud, but then approved the second time. Instead, these cases should have been handed over to authorities for further investigation, the minister said.

Worryingly, Motsoaledi noted that it wasn’t only department fraud that was allowing applications to slip through but also that applicants had learned to game the system. The minister highlighted a scheme called “forum shopping”, where applicants juggle various visas for five years so they can stay in the country and then apply for a PRP.

“One enters the country to visit. Suddenly, one applies for asylum or a work visa. One then applies for a waiver of their asylum status or a change to their work visa conditions as they have a life partner living in South Africa. And one then applies for a PRP after the five-year period has expired,” Motsoaledi said.

The minister also highlighted issues with applications for study visas, where courses or colleges are vague or unidentifiable, and retirement visas, where people are being granted access long before retirement age.

“There were instances in which applicants younger than 25 were approved to retire in South Africa. Retirement visas were then changed to other visa types,” he said.

The minister said that it has been recommended that an independent multidisciplinary task team of specialists and experts be set up to fully investigate all the anomalies, fraudulent applications, corrupt activities, systemic irregularities, and maladministration.

“This is because, clearly, there will be a need for criminal prosecution, departmental disciplinary action, removal of certain names from the country’s databases, system improvement, recalling of visas and the tracing of offending foreign nationals for deportation,” he said.

Other prominent recommendations include the review of legislation and regulations that have gaps that enable some of these activities to occur, and that the technology be reviewed to make it impossible for these activities to occur.

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Hire foreigners illegally, 'face the music' warns Nxesi as road freight blitz puts 11 behind bars

Fin 24 – 26 July 2022

• Eleven undocumented foreign workers were arrested in a government 'mega blitz' on the road freight sector in the North West province - adding to more than 200 foreign drivers already arrested this year for operating illegally. 
• This comes amid rising tension in the trucking industry which is believed to have cost the economy some R300 million. 
• The 'blitzes' are part of a bigger government crackdown on non-compliance with labour laws, though the inter-ministerial committee on trucking and logistics also has an 11-point plan to try to deal with tensions in the road freight sector. 

Over 50 contravention notices were issued and 11 undocumented foreign workers arrested in a week-long blitz on the road freight sector in Potchefstroom, North West, the Department of Employment and Labour has said.

The crackdown, which wrapped up this week, is part of a series of so-called 'mega blitz' inspections the department is carrying out across the country to ensure compliance with labour laws. According to government, the manufacturing sector will be up next.

The road freight blitz was a joint effort between the Department of Home Affairs (DHA), the South African Police Service (SAPS), and the National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI).

A spokesperson for the Department of Employment and Labour said among some 180 employers who were inspected, the 50 notices issued included a range of offences from underpayment to illegal deductions, safety violations, and the hiring of undocumented workers. One of the employers risked employees' lives with a violation of the Occupational Health and Safety Act's regulations on electrical installations, said Inspector General Aggy Moiloa.

'Most' employers underpaying

"What we discovered during these inspections is that most employers are underpaying their employees, making illegal deductions, and failing to provide their employees with payslips and employment contracts.

"We have since issued them with contravention notices, and we expect them to correct this within the time frames specified," said Moiloa.

Roadblock blitz

Earlier in the week, four undocumented foreign nationals were arrested at a roadblock along the busy N12 route. This followed the arrest of seven others on Wednesday at a local company.

All are due to appear in the Potchefstroom Magistrate’s Court.

While it was the workers who were arrested, Employment and Labour Minister Thulas Nxesi said employers who hired undocumented workers would "face the music".

"We have already found that several truck drivers are undocumented – are not paid in terms of the collective agreements and are not registered for the unemployment insurance fund. We are warning employers to ensure that they abide by the labour laws or face the music," he said.

Several ministers had last month committed to intensifying their attention on the employment of undocumented foreign nationals, he added.

The minister's remarks on exploitative labour practices have an unlikely ally in local truckers, who have complained that foreign nationals are often favoured for jobs because they are easier to exploit. The road freight sector has seen rising unrest over a period of years, which has intensified in recent months, as truck drivers protest the hiring of foreign workers.

In June, the Road Freight Association wrote to President Cyril Ramaphosa in desperation to ask for urgent intervention as protesting truckers blockaded some of SA's key cargo routes.

While the N3 was a major target, the letter also highlighted delays on the N17, N11, N2, R59, and R74.

Amid the shutdown, motorists were also warned to avoid the N12 in the North West – in the area where four of the abovementioned workers were arrested – as truckers blockaded the road in protest against the hiring of foreign drivers.

It has been estimated that the truck driver protests have cost the SA economy up to R300 million.

At the end of June, the inter-ministerial committee on trucking and logistics – which comprises the ministers of transport and home affairs, police and labour – said over 200 foreign truck drivers had been arrested since the beginning of the year for operating unlawfully.

The committee was formed in 2019 in response to protests in the trucking industry. The committee said it had an 11-point action plan, one of which was to enforce visa requirements and other regulations, as well as labour laws, in the sector. 

www.samigration.com

Critical Skills Work Visa

SA Migration 26-07-2022

The Critical Skills Visa South Africa is for skilled workers whose occupation is on the Critical Skills Visa List for South Africa. This list reflects the occupations that are in demand in South Africa.

The newly published "Skills or qualifications determined to be critical for the Republic of South Africa in relation to an application for a Critical Skills Visa or Permanent Residence Visa"

This category of work visa may be issued to an applicant who falls within a specific professional category or specific occupational class determined by the Minister by notice in the Government Gazette. This is done after consultation with the Minister of Labour and the Minister of Trade and Industry.

If an applicant falls within one of the professional categories listed on the critical skills list and also has the appropriate post qualification working experience in that profession then such applicant may qualify to apply for this category of work Visa.

The applicant also needs to where applicable register with the relevant South African professional accreditation body regulating that industry as stipulated by Minister of Home Affairs. Such body must also confirm the applicant’s skills, qualifications and working experience.

Furthermore, such applicant’s qualifications need to be evaluated relevant to a South African level. An applicant for a Critical Skills Visa may enter South Africa on such visa without having secured a job offer first. It is, however, required of the applicant to confirm employment with the Department of Home Affairs within a period of one (1) year upon arrival in South Africa, failing which, the Visa would automatically lapse.

The Critical Skills Work Visa is tied to an individual and not to an employer so under this Visa a person can leave from one employer to the next without obtaining a new work Visa.

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