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The Western Cape High Court ruled on Thursday that ‘screeners' at the Cape Town Home Affairs offices cannot refuse to accept the public's application forms that they believe are defective. The Western Cape High Court has ruled that screeners at Home Affairs offices who turn people away and refuse to take applications that they deem to be defective are acting unlawfully and outside the scope of their jobs. The case before court was brought by De Saude Sadat Darbandi Immigration Attorneys and a number of their clients who were turned away from Home Affairs offices. The applicants challenged a practice by the Department of Home Affairs to screen and then bar access to people who wish to file applications in terms of the Citizenship Act and/or Births and Deaths Registration Act. The focus of the case was specifically on Cape Town Home Affairs, but in her ruling, Judge Constance Nziweni said the general question was whether the department's screeners could turn people away if they believed their application was defective. Aggrieved members of the public, the lawyers and the Home Affairs officials all agreed that people are frequently turned away. The legal argument on behalf of the aggrieved members of the public was that Home Affairs screeners are not legally authorised to make any decisions on these applications. "The application is strenuously opposed by [Home Affairs]. The department refers to the process as a ‘screening' of applications prior to their acceptance, capturing and dispatching to the Pretoria hub. The department maintains that the screeners in Cape Town perform a bureaucratic or administrative function of screening applications in terms of checklists," Nziweni said. According to papers before court, attorneys from De Saude Sadat Darbandi alleged that each and every time it takes clients to file applications at the Cape Town office, officials at that office have irregularly and arbitrarily refused to accept the applications. This is not done in writing and only informal reasons are offered, which are “difficult to comprehend". They further argued that the screeners' job is to give advice on how to remedy a defective application. Arbitrarily turned away One of the applicants who was turned away was trying to do a late registration of her birth, but she was told only people with South African parents could apply. A man who held dual citizenship in Namibia and South Africa was turned away with claims that he was an illegal foreigner. Another man was turned away for not providing additional verification of his permanent residence permit. This is in spite of the fact that a copy of his permit was included in his application, and an original verification of the permit obtained from the department. Another person was turned away when an official stated she needed fingerprint clearance from the South African Police Service for her application, even though the law does not stipulate this. Two others were turned away after officials claimed that their parents wrongfully and fraudulently obtained permanent residence and/or citizenship. They were informed that they were illegal foreigners and were refused help. Another applicant was turned away when officials claimed she needed to bring a DNA test proving that her father is South African and a form signed by her father. Yet another was prohibited from submitting his citizenship application when an official told him that an investigation against him was under way, which rendered his application ineligible. It was alleged that he was not given the details of the investigation. It is also alleged that to this day, he has not been able to apply for citizenship. Home Affairs defends practice According to the department's court papers, the screeners are fully fledged Home Affairs officials who can perform these duties and also do walkabouts to ask if anybody needs help. According to Home Affairs, the existence of gatekeeping in Western Cape is necessary and a “rational practice that is intended to conserve time and resources for both the department and the public". Home Affairs also argues that it is legal for screeners to ensure applicants comply with checklists. The Home Affairs legal team said screeners play an important role in preventing officials in Pretoria from becoming overwhelmed with incomplete forms. “If the public is allowed to abuse the system by insisting that their non-compliant applications be taken in, that would result in undesirable outcomes for both the public and the department." Nziweni unpacked the justification for Home Affairs' use of screeners at its offices. “The department is an administrative authority that is responsible for a number of governmental and public functions. Conversely, the Constitution vests a responsibility to the courts to protect rights that are enshrined in our Constitution and to scrutinise government policies and procedures to ensure that they are predicated on constitutional values." She said it was undeniable that the department receives an overwhelming number of applications. “The screeners mitigate the burden by limiting the number of applications that may be presented to the Pretoria hub. The screeners are necessary and perform a valuable, sensitive and extremely important service to the department and members of the public. Screening is intended to enhance the quality of services and increase efficiency, among other objectives. “Due to the early elimination involved in the screening process, significant time and costs are saved and not expended on a defective application. This does not imply, however, that the screening process should be a mechanism that creates a barrier to the accessibility of the public services system," she said. “The aim of the screening process is to verify whether an application satisfies all the checklist requirements prior to its submission to the Pretoria hub. Similarly, it entails making sure that members of the public have access to the services offered by the department's Pretoria hub. Thus, it is imperative that the screening should be administered by skilled officials. “In the context of this case, the screeners are intended to act as an intermediary between an applicant and the Pretoria hub to prevent and curtail unnecessary delays. Accordingly, this necessitates a process of screening through numerous applications. “In doing so, the officials are, in effect, the principal screeners determining what applications should or should not advance. Therefore, as mentioned previously, they wield considerable authority, insofar as it pertains to the determination whether or not applications of persons would be accepted, processed and reach their intended destination [Pretoria hub] for a decision." Unlawful screening Nziweni said it was of great concern that the screeners in Cape Town did not merely offer advice but took decisions to refuse applications. She pointed out that Home Affairs did not deny that its screeners were refusing to take forms from members of the public as they believed them to be non-compliant. Nziweni ruled that while the screening process might help with the early identification of defective applications, the screeners do not have the final word as to whether an application should be accepted for submission to the Pretoria hub. She pointed out that affidavits before court demonstrated that the screeners in Cape Town lacked certain levels of expertise to make decisions. She added that there is no legal explanation of whether a screener can refuse to take an application if it doesn't comply with their checklists. “Refusal to accept an application would be unfair and violate the rules of natural justice as it does not provide an applicant with an opportunity to respond to the screening officer's concerns. “Thus, it is pertinent to note that the screening officials have no discretion with respect to accepting or refusing the applications. Moreover, the negative effect of the refusal to dispatch the application to the Pretoria hub, is that the screening official does not owe the applicants any procedural fairness," Nziweni said. “The practical and functional advantages of having a screening body cannot be understated. Notwithstanding that, the officials cannot usurp the power that they do not have," she added. Nziweni suggested that when a screener finds an application to be defective but the member of the public disagrees, the application should be dispatched to the Pretoria hub, to a specific point that handles applications that are primarily viewed as being non-complainant. She made an order that officials' refusal to accept applications they deemed to be defective is unlawful. |
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"This case is fundamental to ensure that people are not returned to persecution, torture, violence or war,' said James Chapman, head of advocacy at the Scalabrini Centre. The Western Cape High Court has reserved judgment on a constitutional challenge by the Scalabrini Centre of Cape Town - an immigrant organisation - and Lawyers for Human Rights to amendments to the Refugees Act that are used by Home Affairs officials to arrest and deport asylum seekers. The court also extended an interdict that prohibits the department from deporting any foreign national in SA if the foreign national has indicated an intention to apply for asylum. The amendments to the Refugees Act that the court was asked to consider that persons who have "committed an offence in relation to the fraudulent possession, acquisition or presentation of a South African identity card, passport, travel document, temporary residence visa or permanent residence permit" can be excluded from applying for asylum. The amendments also exclude those who entered South Africa other than through a designated port of entry and failed to satisfy a refugee status determination officer that there were compelling reasons for such entry; and those who fail to report to the Refugee Reception Office within five days of entry into SA, even if they have a legal visa. "This [case] refers specifically to asylum seekers not entering the country through a designated port of entry and those who have not obtained a transit visa," said James Chapman, head of advocacy at the Scalabrini Centre. "This case is fundamental to ensure that people are not returned to persecution, torture, violence or war." According to papers before court supporting Scalabrini's case, the practice of arresting and deporting asylum seekers without transit permits "undermines the fundamental principles of both domestic and international human rights and refugee law". From November 2023, new asylum seekers without a transit visa were arrested, detained and deported without an opportunity to undergo a refugee status determination interview. They are arrested after a preliminary interview by immigration officials who assess whether they have a good cause for failing to enter SA through a designated port of entry and obtain an asylum transit visa at the border. "Most applicants are found lacking good cause, resulting in their arrest for deportation. This process effectively denies individuals access to the asylum system, leaving them vulnerable to prolonged periods of detention and then deportation to their home countries, where they face persecution, violence, war, detention or even death. This is in direct violation of the principle of non-refoulement, the cornerstone of refugee protection," said Chapman. In 2023, the former minister of home affairs Dr Aaron Motsoaledi said that 91 transit visas had been issued in two years, during which time there were close to 10,000 applications for asylum. Non-refoulement is a legal principle prohibiting states from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return to their home country, including persecution and torture. In February, Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition and the Helen Suzman Foundation (HSF) joined the case. In papers before court, the HSF's executive director, Naseema Fakir, argued that the law negatively affected the children of asylum seekers as they would either be returned to high-risk situations or be left behind when their parents were deported, leaving them stateless. The director-general of the Department of Home Affairs, Livhuwani Makhode, stated in papers before court that the application was misguided. He said the applicants cannot "simply ignore the Immigration Act". This Act states that a person who has an expired visa is an illegal foreigner and can be deported. This also applies to a person with no visa because they did not enter the country through an official port of entry. However, Chapman pointed out in his affidavit that ever since a provisional interdict was granted to stop the deportation of asylum seekers without valid transit visas, the system had been paralysed. He said the interdict did not require the department to accept new applications, so they just stopped doing so. "Asylum seekers are suffering great prejudice," he said. |
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Another aid superpower has fallen, taking with it all the indirect benefits South Africa accrued from do-good spending in its neighbourhood,. Until last Tuesday, the United Kingdom considered itself as an aid superpower. You could quibble about whether the numbers justified such a grand description, but the sentiment was sincere. During the toughest days following the 2008 financial crisis, a hard-nosed Conservative UK government resolutely held the foreign aid budget at 0.7% of national income, and it seemed genuinely embarrassed to cut that to 0.5% after a global pandemic demanded a torrent of money while shutting down big parts of the economy. Then, last week, the left-leaning administration slashed that 0.3%, which looks very much like a stretch target unlikely to be met as trade wars loom. But it is actually much worse than that. When the UK says "foreign aid", it includes spending on refugees, including domestically, on things such as hotel accommodation for people who reach Britain via small boats. Unless the government stops the flow of undocumented migrants (which it appears unable to do), the actual amount of money the UK will spend on feeding the hungry and healing the sick in places like southern Africa will be negligible. In rands-and-cents terms, the scale of the UK retreat from foreign aid is dwarfed by America's wholesale shutdown of do-good money, but perhaps more telling. Foreign aid was closer to the heart in the UK, perhaps still rooted in post-colonial guilt, and the decision to drop it was a more calculated and less populist one. Like the UK, the European Union must also finance a massive rearming in the face of a Russian threat no longer countered by assurance of American support, and that money has to come from somewhere. But the EU was already headed towards a policy of more mercenary foreign aid, quid-pro-quo rather than handout, and that trend will only accelerate. A glance at the G7 roster will tell you that Canada and Japan are left as the rich countries that can step in to save lives in poor countries. Even with the best will in the world – which they do not have – they could not fill the gap. There is still money in the pipes, but the taps have been turned off, and the era of foreign aid is over. Aid massively benefitted SA South Africa was never an aid-dependent country, and it will not feel the direct impact of the end of aid as acutely as many other countries will. People will die because there is less money for HIV prevention, but not as many will die in countries where the problem is acute hunger. NGOs and their suppliers will shut down, but not as many as in countries that act as aid hubs, where aid is a big sector of the economy. Though it was not a big aid recipient, the indirect benefit South Africa accrued from foreign aid to countries around it has been incalculable. Despite the claims by Donald Trump and Elon Musk, a lot of aid-funded projects have done a vast amount of good all over southern Africa. They have reduced the burden of disease, and so reduced demand on South Africa's health system. They have spurred primary production, which helped feed South African industry, and economic growth, which created markets for South African goods. They have deepened democracy and combated extremism, bringing to South Africa all the benefits of greater and more sustainable security in its neighbourhood. And nobody is coming to the rescue. Multilateral organisations mostly depended on the US and Europe to fund their aid projects. Multinational companies are increasingly disinterested in philanthropy. Russia and China have always been transactional and will continue to offer security in return for minerals and infrastructure in return for indentured servitude, respectively. Other players with money and resources that have long been isolationist or mercenary, such as the Gulf States, aren't going to change their ways in this environment. There is a fantasy among conservatives – especially in rich countries – that if you yank away aid and just trade on fair terms, then poor countries will somehow do better. Perhaps that, or a similar miracle, will happen. Realistically, though, South Africa needs to prepare for its neighbourhood to become poorer, sicker, and less stable in coming years, and decide what to do about that right about now. |
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Shortly after taking office in January, US President Donald Trump ordered a 90-day pause on foreign aid. - and asylum seekers in South Africa have received notices from the United States terminating their funding. - This comes after US President Donald Trump initially ordered a 90-day pause in foreign aid in January. - A human rights lawyer has said the cessation of this sort of funding will have a devastating impact. Just weeks after the United States invited Afrikaners to become refugees, the US Department of State's Bureau of Population, Refugees and Migration has cut off funding to civil society organisations providing services to refugees and asylum seekers in South Africa. Shortly after taking office in January, US President Donald Trump ordered a 90-day pause on foreign aid. A month later, and despite pending litigation, the Trump administration has started terminating most US foreign aid contracts and grants, Reuters reported. Organisations in South Africa that provide services to assist refugees and asylum seekers who migrated to the southern tip of Africa have not been spared. Refugee Social Services (RSS) and Scalabrini Centre of Cape Town confirmed to News24 that they received letters on Wednesday notifying them that funding from the US Department of State's Bureau of Population, Refugees and Migration had been terminated. "This award is being terminated for the convenience of the US government, pursuant to a directive from US Secretary of State Mario Rubio, for aligning with agenda priorities and national interest," the letter read. "The decision to terminate this individual award is a policy determination vested in the secretary of state." The United Nations High Commissioner for Refugees (UNHCR) told News24 that it was aware of reports that some organisations in South Africa had received notifications regarding the cessation of US funding. The UNHCR, which has also been impacted by the 90-day pause in US funding, said its biggest concern was the well-being and safety of the millions of refugees and forcibly displaced people worldwide. "Every day that this financial uncertainty continues will increase the impact on the lives of the millions of people that have fled their homes to find security." Helping the vulnerable Yasmin Rajah, director of the KwaZulu-Natal-based RSS, said the organisation had relied on the US for a grant to provide services for vulnerable refugees and asylum seekers. She said these particularly vulnerable migrants include the elderly, people with disabilities and those suffering from terminal illnesses who have limited support networks with no one to look after them. The services offered included counselling, safe spaces, and a small amount of money to cover medication, transportation to medical facilities, food, and housing. Following the cessation of the grant, Rajah said the RSS would have to consider retrenchments. She said the organisation was also scrambling to work out a way to continue caring for this vulnerable group of migrants. With the greatest concern being hunger, Rajah said RSS had reached out to faith-based organisations to provide food parcels to fill the gap, but this had not been nearly enough. She told News24: We didn't have enough notice to sort things out. Despite this, Rajah said the organisation was grateful for the support it received from the US as it had filled a "very significant gap". Devastating Jacob van Garderen, human rights lawyer and director at Public Interest Practice, told News24 that the impact of the funding cuts would be devastating. However, he said, perhaps less so in South Africa, where refugees and asylum seekers are not entirely dependent on humanitarian assistance for their survival, as the government allows integration so that migrants can get work and don't have to live in camps. "But still, organisations like Scalabrini and RSS, who deliver essential support to migrant communities, will [suffer] a severe impact on their work and support of services of these communities, [which] is always focused on the most at risk and vulnerable communities, such as children, women at risk, disabled migrants, etc," Van Garderen said. He said very few of these organisations, if any, would have the reserves to continue the work unabated. Internationally, the big concern is not just that the US government has done it (cut funding), but more the way in which they have done it, without prior notice or transition. He said it was difficult to escape the conclusion that the funding cut was meant to punish and decimate a humanitarian infrastructure. 'It's cruel. It is not what you would have expected from the US, [which], for all its criticisms, has established itself as the largest donor of support to humanitarian action globally." Afrikaner refugee The decision to cut aid to these organisations helping refugees and asylum seekers comes less than a month after an executive order by Trump, potentially offering Afrikaners refugee resettlement in the US. In his 7 February executive order, Trump also authorised the secretary of state and the secretary of homeland security to take "appropriate steps" to prioritise "humanitarian relief", including "admission and resettlement through the United States Refugee Admissions Programme, for Afrikaners in South Africa who are victims of unjust racial discrimination". However, on 20 January, Trump signed another order suspending all applications for refugee status until the homeland security advisor submits a report regarding whether the resumption of refugees' entry into the US would be in the interests of the Western powerhouse. |
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On Friday, Home Affairs Minister Leon Schreiber confirmed in an X post that Percy Tshabane, the department's acting chief of director of employee engagement, had been suspended pending a thorough investigation into allegations that he solicited bribes to approve the payment of service providers. The official in question has been suspended and a full investigation is underway. Home affairs minister Leon Schreiber on Friday confirmed that Percy Tshabane has been suspended pending a thorough investigation. Noko Mashilo/Daily Sun City Press reported on 9 February that one lawyer, who identified himself as Mareng Mareng, had alleged that lawyers were being frustrated by the department's chief director responsible for legal. The lawyer also sent a whistleblower complaint to Schreiber's office, Parliament and the Public Service Commission. Two sources privy to the details revealed that shortly after the publication of the story, Schreiber appointed the law firm, Werkmans, to investigate the allegations. The source said: The lawyers found evidence in the form of a bank deposit and questioned Tshabane, who admitted that he did receive the money from the complaining lawyer. However, he said the lawyer was his brother and there was nothing untoward with him asking for financial help. On Monday, the law firm recommended that he be suspended, and he was on Tuesday. In one text message, purportedly from Tshabane to a lawyer, he asked: Are you winning? I only managed to get R2 000 and [I] am short of R3 000. Another lawyer told City Press that the chief director once asked for R5 000 for rent and, because they were owed more than R500 000, he gave him R10 000. According to the lawyer, Tshabane used various means to collect money from the service providers, including deposits into his bank account and cash drop-offs at his office. A senior official in the department of home affairs, who allegedly demanded kickbacks from service providers to approve their invoices, has been suspended. Noko Mashilo/Daily Sun In his earlier response, Tshabane told City Press that he was on leave from 17 December 2024 until 20 January 2025. He added: “Surprisingly, I received a call while on leave from an employee of one of the service providers who said he understood that I was holding on payments and they would not be paid. He mentioned to me a lot of things that were said and I indicated to him that we would only pay in April 2025.” Tshabane said that, on his return, he arranged an official meeting with the service providers in the office to explain what was delaying their payments, which they understood. He added that, since the legal fraternity was a highly regulated environment, he found it perplexing that the allegations were levelled against him. He said, if there were unreasonable delays or he was soliciting bribes, service providers could invoke a clause dealing with dispute resolution in the service level agreement or escalate it to higher authorities. He said: To this end, I deny having requested money from a service provider. I do not rule out being name-dropped by others when facing pressure from the service providers just to ward them off that the invoices are with Tshabane. Tshabane said he previously received an enquiry from a person purporting to be a journalist, with a foreign accent. "I suspect collusion as we are operating in a highly syndicated environment and any number can be ported." He denied ever sending messages to service providers and said the aggrieved parties should approach the counter-corruption and law enforcement agencies for further investigations. Tshabane could not be reached for comment this week as his phone rang unanswered. The department said the matter was internal and could not be discussed in the media. |
