Legal grievances against the South African Department of Home Affairs, including contempt of court cases, are depressingly common.

Too frequently the minister has to apologise to a court, or to ask for more time, on behalf of the department.Most of the court cases involve the operations of the department regarding visas and permits for foreign visitors, immigrants and prospective refugees.Just a few months ago home affairs minister Aaron Motsoaledi said, in legal papers: “I would like to take this opportunity to extend my sincere apology to the Chief Justice, all judges of the high court and Constitutional Court, the President of South Africa, Minister of Finance, Lawyers for Human Rights and its legal representatives and the people of South Africa for the mess created by officials of the Department of Home Affairs.”

This particular mess was triggered by the minister’s failure to amend an unconstitutional law which allowed for the detention of irregular migrants for 120 days. The rotten state of the department is widely known. Two reports released in the last three years, commissioned by the minister and the presidency and led by senior and seasoned individuals, set out the problems in detail.

One, released in 2022, chronicled a backlog of visa, permit and status applications, evidence of fraudulent applications being first rejected, then accepted, and the system being used illegally.

The other found multiple failures in the provision of visas to senior business managers and experts.The issue of migration policy and its implementation has never been more pressing for South Africa. Immigration has grown relatively rapidly in the past 20 years.

The proportion of migrants to local people more than doubled from a relatively low level of 2.1% in 2000 to a moderate level of 4.8% in 2020, according to a study drawing on UN data.

The global average immigrant population is around 3.5% but countries like the US (nearly 16% in 2019), Australia and New Zealand are much higher. Côte d’Ivoire is the only country on the continent with a considerably higher percentage of immigrants than South Africa.Migration policy is likely to be a key issue in South Africa’s forthcoming elections. A leading journalist has argued that 2024 will be an “immigration election”.

Populist parties are expected to mobilise around people’s fears, while the government will continue to use immigration as an excuse for poor service delivery and joblessness.The reality is that the impact of migrants on the circumstances of poor South Africans is marginal, and far less important than the very poor performance of the economy and many governmental institutions.In a paper just published I examine the recent history of immigration policy in South Africa.

I argue that the challenges would best be addressed by improvement in the operations of the Department of Home Affairs.This should be accompanied by some modernisation of migration law to encourage the use of regular migration channels and discourage irregularity.The problems,The first of the two investigations initiated by the minister was headed by Cassius Lubisi, former secretary of the cabinet. The second was headed by anti-apartheid struggle stalwart Mavuso Msimang.

Their main findings were as follows.

Fraudulent documentation was used in 36,647 applications for visas, permits or status over a 16-year period. Of these, 880 were approved and 288 were pending. 4,160 of the fraudulent applications were first rejected, and then accepted after reconsideration.Systems that had been replaced were still being used illegally from time to time. The outcomes of such activities were suspicious.

In some cases applications were processed in zero days. The investigation found visa expiry dates issued beyond the legal limit.

The department’s databases for naturalisation and population registration didn’t correlate with each other.

The list identifying undesirable immigrants was “fatally flawed due to incomplete and missing crucial data”.

In some cases, files had been inserted illegally into the information system. This process would require “a highly skilled IT user with administrator rights to execute”.

There were multiple cases of “forum-shopping” by applicants. This is when an applicant applies for a range of unrelated permits in the hope that one of them will get through.

The department did not have systems that could identify multiple applications by the same person.

Possible fixes

The Department of Home Affairs recently issued a draft white paper which it said was aimed at addressing the problems that had been identified.

It proposed severely curtailing the rights of prospective refugees, restricting paths to citizenship, and strengthening the Border Management Authority and supportive institutions.

But, based on my findings, it is clear that these changes won’t solve the problems. Experts show that tighter restrictions lead to greater illegality, not less migration.

The most disappointing element of the draft white paper is that it makes no reference to recommendations made in the two reports on the problems at the department.

Recommendations of the reports included:

    major investment in and reorganisation of information systems

    the integration of the various population databases

    further forensic investigations to root out corruption

    hiring and training staff with skills and integrity.

The draft white paper also does not mention the need to modernise the colonial-style bilateral labour agreements which South Africa maintains with five regional neighbours Mozambique, Lesotho, Eswatini, Malawi and Botswana.

These countries, and Zimbabwe, are the greatest source of regular and irregular migration.

These agreements are no longer fit for purpose. Firstly, they impose tight restrictions on the rights of contracted migrants from other countries.

Secondly, they are based on patterns of migrant labour developed during the colonial period to support farming and mining. In some cases applications were processed in zero days. The investigation found visa expiry dates issued beyond the legal limit.

The department’s databases for naturalisation and population registration didn’t correlate with each other.

The list identifying undesirable immigrants was “fatally flawed due to incomplete and missing crucial data”.

In some cases, files had been inserted illegally into the information system. This process would require “a highly skilled IT user with administrator rights to execute”.

There were multiple cases of “forum-shopping” by applicants. This is when an applicant applies for a range of unrelated permits in the hope that one of them will get through.

The department did not have systems that could identify multiple applications by the same person.

Possible fixes

The Department of Home Affairs recently issued a draft white paper which it said was aimed at addressing the problems that had been identified.

It proposed severely curtailing the rights of prospective refugees, restricting paths to citizenship, and strengthening the Border Management Authority and supportive institutions.

But, based on my findings, it is clear that these changes won’t solve the problems. Experts show that tighter restrictions lead to greater illegality, not less migration.

The most disappointing element of the draft white paper is that it makes no reference to recommendations made in the two reports on the problems at the department.

Recommendations of the reports included:

    major investment in and reorganisation of information systems

    the integration of the various population databases

    further forensic investigations to root out corruption

    hiring and training staff with skills and integrity.

The draft white paper also does not mention the need to modernise the colonial-style bilateral labour agreements which South Africa maintains with five regional neighbours Mozambique, Lesotho, Eswatini, Malawi and Botswana.

These countries, and Zimbabwe, are the greatest source of regular and irregular migration.

These agreements are no longer fit for purpose. Firstly, they impose tight restrictions on the rights of contracted migrants from other countries.

Secondly, they are based on patterns of migrant labour developed during the colonial period to support farming and mining. 

Thirdly, they’re written up on the basis of an unequal relationship between countries of the southern African region.

Modern bilateral labour agreements have been developed. An example is the Canadian system.

It provides for long term arrangements with full labour and social rights for the duration of the multiyear contract, but no right to permanent residence for the workers or their families.

Modern Canadian-style migrant labour agreements would encourage more migrants to choose regular migration routes and fewer would try to evade or abuse the law.

The draft white paper gives the impression that the challenge of migration policy can be solved with tighter laws on refugees and citizenship.

In fact the fundamental problem is the corruption and inefficiency in the permits and visa section of the department, which the white paper hardly mentions.

The unfortunate conclusion that can be drawn from a reading of the draft white paper is that it was designed primarily to give the ruling party a narrative for the upcoming election, rather than to reform the migration governance regime.

This article, written by Alan Hirsch, was republished from The Conversation under a Creative Commons license. Read the original article here.

Parliament has been urged to be patient as investigations into visa and permit fraud at the Department of Home Affairs unfold.

Officials from the department appeared before Parliament’s Portfolio Committee on Home Affairs on Tuesday to provide an update about the progress made on the Lubisi report’s recommendations.The report emanated from a ministerial committee established by Home Affairs Minister Aaron Motsoaledi to review all the permits and visas issued since 2004.A multi-disciplinary task team (MDTT) was assigned to implement the report and has been operational since March 2023.

Visa, permit investigations

Briefing the parliamentary committee on Tuesday, forensic investigator Peter Bishop, who is part of the MDTT, reminded MPs the Lubisi report recommended that foreign pastors and prophets such as Shepherd Bushiri be investigated.

Bishop said the team has recovered data sets to run data analysis tests.

“A number of matters have been referred to the DPCI [Directorate for Priority Crime Investigation or Hawks] criminal investigation,” he said.The investigator told the committee that all permanent residence permits that were approved, but had been declined previously due to false documentation having been submitted were still being investigated.

All issued visitors visas status change to permanent residence permits while in South Africa as well as business permits, under age visas, work visas and study visas were also being looked at.

“All visa applications that were processed after hours, over weekends and public holidays on [the visa adjudication system] by Home Affairs official, each case needs to be investigated to avoid any manipulation of data,” Bishop continued.

Bishop said the same passport number used by multiple people was being investigated.Even passports that were processed and approved within a day or less will be under scrutiny.

Home Affairs legal opinion

Bishop further told the committee that the Department of Home Affairs received a legal opinion in November last year, which suggested that visas must be annulled in cases where applicants possess such a document obtained through fraudulent means and face deportation in terms of the Immigration Act.The holders of fraudulent permanent residence permits will suffer the same fate.

All affected parties holding fraudulent visas or permanent residence permits should be informed about about the revocation of their documents, according to the legal opinion.

“Once adequate notice has been given, the applicants with fraudulent visas or permanent residence permits should be added to [the prohibited person list] and deported,” Bishop explained.

For applicants who became naturalised citizens fraudulently will also be strip of the naturalisation rights by the minister.The MDTT has found that 45 000 visas and permits were issued fraudulently between 2014 and 2021, Bishop revealed.At least 50 Home Affairs officials were identified in the disciplinary referrals by the department.

Two officials have been referred to the Hawks for criminal investigation.There are 33 officials who might be referred after their disciplinary hearings.Bishop further highlighted that 27 charge sheets have been finalised, five disciplinary hearings are proceeding, 10 disciplinary matters have proposed dates set down, 12 disciplinary matters have been concluded and nine officials have been dismissed.

“One official has been dismissed and is subject to an appeal and two officials resigned when notices were served on them.”

More than 307 000 instances, Bishop said, of potentially implicated individuals in unlawful or irregular activities relating to the processing of visas and permits were flagged by the MDTT during investigations.Corruption, After the presentation members of the committee expressed concern over the speed of the MDTT’s investigations.

MPs were also worried about the Home Affairs officials who are still employed by the department, saying this placed the investigation at risk and, therefore, could lead to further problems in the processing of permits and visas.

Meanwhile, Home Affairs Minister Deputy Njabulo Nzuza emphasised that work has been done to deal with the “rot and corruption” within the department.

“I must alert the committee that in our approach we must always remember that fighting corruption also comes with [financial] costs in terms of investigations.

“There will be time delay issues as well as system and process change costs. If you look at the recommendations, they are quiet clear in terms of the system changes that we must effect.

“We must also remember that there will always be criminal procedures that will have to be followed, which means that when we are dealing with corruption we are not just dealing with a person doing something wrong and then you cut them off from work.

“There are processes that you have to follow to the level where-in you ultimately get a conviction of that person. That’s when you can say justice has been done and that process is delicate and it has a lot of legal issues,” the deputy minister told MPs.

Nzuza asked the committee to be patient as investigations continue rather than having individuals “walking off just because of a procedure that might not have been followed”.Motsoaledi stressed it was “not automatic” that an official will be suspended, while they are being investigated.

“It depends on the type of investigation [as to] how will that person affect the investigation. There are serious cases where we actually do suspend [Home Affairs officials].”

The minister also said the investigations were looking to things that happened over “a very long time”.

“Remember that with the Lubisi report, we asked them to start as far back as 2004. From 2004 until now, that’s 20 years [so] events that took place [in this period] cannot really be finalised in a short space of time.”

In January, the court declared that the placing of markers by the Department of Home Affairs against identity numbers or identity documents resulting in the blocking of identity numbers in the absence of fair administrative process as unjust and irregular administrative action that is inconsistent with the Constitution and invalid.

The department was taken to court by Phindile Mazibuko and two Lawyers for Human Rights and LegalWise South Africa with the Children’s Institute as an amicus curiae.

DA MP Angel Khanyile wrote to Motsoaledi asking whether his department had put a timeline in place to comply with the judgment.

In his response, Motsoaledi said the court judgment granted his department a period of 12 months, from January 16, 2024, to March 1, 2025, to determine whether any identity number against which markers have been placed and which to date remain marked, correctly reflect the particulars of the person to whom the identity number was assigned.

He said the department was to also obtain court orders authorising the identity numbers of the affected persons to remain blocked prior to any investigation or inquiry having been finalised.

Motsoaledi said an internal audit and verification process determined the numbers at 697 000 out of the 700 000 blocked IDs.

“Of these 160 000 letters have been sent to clients in line with the principles of administrative justice as outlined in the Promotion of Administrative Justice Act, wherein clients have to be notified before the cancellation or deletion of the identity number of the client, and will be allowed to make representations to be considered by the department once all the relevant internal processes are concluded.

“The remaining 537 000 letters are being processed by the department and mainly include illegal immigrants and duplicates,” he said.

Thousands of people cannot access healthcare or education after Home Affairs decided in 2012 to block their ‘suspicious’ identity documents. 

In 2012, the Department of Home Affairs embarked on a mass drive to block South African identity documents in a bid to address fraud and misrepresentation, which had resulted in duplicate IDs on the National Population Register.

What initially started as 29,000 IDs having markers placed against them quickly escalated to more than one million by 2020.

 It resulted in people like Khanyi Mkhwanazi having their dignity and citizenship stripped from them, propelling them into statelessness.

“What is happening is so unfair. My father was a South African and I am married to a South African, but now Home Affairs is telling me that I am an illegal immigrant,” Mkhwanazi said in an emotional interview.

Mkhwanazi is a 50-year-old mother and grandmother whose troubles with Home Affairs started in 1990.

Although she was born and raised in Eswatini, her father was a South African who hailed from Mbuzini, a small village bordering Eswatini and Mozambique.

When apartheid was coming to an end, Mkhwanazi’s father took her to a makeshift Home Affairs office in Mpumalanga to apply for her ID, which was never issued.

Mkhwanazi spent time going back and forth between Swaziland and Mbuzini, but she permanently relocated to South Africa in 2002 when she got married.

She applied for permanent residence and citizenship, both of which were granted.

But later, when she went to register her business, she discovered that she could not because Home Affairs had blocked her ID, claiming she was an illegal immigrant.

“I can’t do anything. I literally can’t do anything. I’m stateless because I can’t open a bank account. I can’t start a business,” Mkhwanazi said.

“I’m working as a chef now, but if the Department of Labour comes to my [place of work], I fear I will be fired and arrested.”

Mkhwanazi said she dreamt of starting several businesses, from an early childhood development centre to a small takeaway shop, but these dreams had been dashed because Home Affairs had rendered her stateless.

As we speak now, my daughter is suicidal. She cannot get a job because of this ID mess.

“All that has been shattered because of one thing. I do not want to work for someone else for the rest of my life, but my life is stagnant. How would I move forward? Because to do anything in South Africa, you need an ID,” she said.

Desperate to have her South African ID unblocked and having exhausted every other avenue, Mkhwanazi said she was willing to take a DNA test to prove that she is indeed South African.

“My father passed away, rest his soul, and my aunt is gone too. I have no one I can turn to but my [half-]brother, so if they want DNA, they can match my brother’s DNA with mine.

“But besides that, I’ve been married to a South African for more than 20 years. Does that not count for something?” the mother of two asked.

Generational curses

The consequences of Mkhwanazi having her ID blocked are not felt by her alone, but extend across three generations.

She brought her daughter, Mai Bvutula, to South Africa when she got married in 2002. However, because Mkhwanazi’s ID was blocked, Bvutula has not been able to obtain an ID herself.

“As we speak now, my daughter is suicidal. She cannot get a job because of this ID mess. She can’t even get Sassa [grants] to support herself and her children,” Mkhwanazi said.

“So now I am stateless and my daughter and grandchildren are too, and it’s all because Home Affairs cannot be straight with us.”

Bvutula’s state of despair has driven her to consider the unthinkable.

“She once said to me: ‘You know what, Mama, when I’m with my kids, I feel so overwhelmed because I’m alone and I’m not working. I can’t get any social help. I feel like I can kill my kids.’

“That’s the damage this whole situation has done to my kids,” Mkhwanazi said.

Actually, I’m just useless because there’s just nothing that I can do to progress or to make my kid’s life better.

“This has affected my four grandchildren so badly. Because my daughter doesn’t have an ID, their births have never been registered. They cannot be accepted into school because they don’t have birth certificates.”

Mkhwanazi explained that all but the oldest grandchild had been excluded from obtaining an education.

Thanks to the intervention of a social worker, Sinethemba Skylar Bvutula started attending school for the first time in 2023 at the age of eight. Missing the foundation phases of early childhood development, Sinethemba went straight to Grade 2, which Mkhwanazi said could not be good for a child’s development.

Hope for the future

Though Home Affairs had unblocked more than one million IDs by 2023, hundreds of thousands of people are still affected by the practice and cut off from the system, rendering them unable to access healthcare services and education, to get a job or even open a bank account.

The High Court in Pretoria brought relief to thousands of affected people when it handed down a landmark judgment on 16 January declaring the practice unconstitutional.

Although the court ordered the department to unblock IDs that have been unfairly blocked, many people are still waiting, living in limbo but eager to get on with their lives.

Mkhwanazi said she had hopes that Home Affairs will unblock her ID soon so that she, her daughter and her grandchildren could go on with their lives.

She said she fears the department will not fix the mess it created when it started to block IDs indiscriminately, but she will never give up hope.

“Some time back, I used to feel like I [was] stateless. Actually, I’m just useless because there’s just nothing that I can do to progress or to make my kid’s life better. There’s just nothing I can do.

“But as an adult, you come to a point like, no man, this is not the end of the road,” Mkhwanazi said.

Home Affairs Minister Aaron Motsoaledi said the visa corruption was sophisticated. 

• According to Home Affairs Minister Aaron Motsoaledi, sophisticated officials are behind visa corruption.

• Several irregularities were uncovered with the issuing of visas to Chinese nationals.

• So far, 28 matters have been referred to the Hawks for further investigation and 94 matters are being considered for possible referral.

Investigations into violations of visa regulations has found that more than 3 000 Chinese nationals applied for South African visas and permits from a `nodal point`, and nearly 500 came from applicants who used the same address.

On top of this, another 477 applications came from Chinese nationals who applied for visas using addresses that were vacant (vacant erven), and 75 came from those who listed addresses that did not exist.

Details of these were shared by the multi-disciplinary task team the Department of Home Affairs had appointed to investigate corruption in the issuing of visas, permits and identity documents.

The task team, chaired by former top civil servant Cassius Lubisi, briefed the Portfolio Committee on Home Affairs on Tuesday.

Forensic investigations specialist Peter Bishop, who is part of the task team, told the committee a preliminary analysis of available evidence led to the identification of an address as a nodal point referred to in at least 3 193 applications for various visas or permits by Chinese foreign nationals.

Two officials, who were stationed at the Beijing Mission in China, have been linked to these cases. 

`The task team performed further data analysis and uncovered a further 187 applicants, warranting immediate further investigation as this number is rapidly escalating as further investigations are undertaken by the task team,` Bishop said.

`Relating to the broad identified address, certain specific addresses utilised: 477 appear to relate to vacant erven whilst in respect of other addresses, 75, appear to be non-existent. Further investigation is ongoing. In certain instances, the same address was utilised by up to 488 applicants, being highly unusual,` Bishop said.

The task team conducted a data analysis into three identified applicants, the following was established:

• links with at least eight DHA officials;

• links with 115 other foreign nationals;

• links with 17 South African nationals; and

• links with 34 businesses.

`Due to the extensive networks related to these three identified applicants, both intra and extra the DHA, a high likelihood exists that syndication related to irregular and/or unlawful activities may be uncovered as investigations related thereto progress,` Bishop said.

Furthermore, 115 instances in which officials were implicated in potentially unlawful and irregular activities were uncovered.

There were 78 instances in which questionable medical reports had been submitted and 76 in which questionable radiological reports had been submitted.

Regarding retirement visas and permits, the initial investigation focused on 3 530 retired person visa applications and visas issued.

During this process, it is alleged that similar documentation was used in retirement person visa applications.

`On the face of it, such individuals appear too young to be retiring. Preliminary findings to date have identified a number of officials involved, with three department officials appearing to have processed the bulk thereof,` Bishop said.

Regarding disciplinary matters, 27 charge sheets have been finalised and submitted to the department.

Five disciplinary hearings have commenced and are proceeding while 10 disciplinary matters have proposed set down dates.

Twelve disciplinary matters have been concluded, nine officials have been dismissed and one dismissal is the subject of an appeal.

Two officials have resigned.

Home Affairs Minister Aaron Motsoaledi said the visa corruption was sophisticated.

`This report came about with [Shepherd] Bushiri. While we were working on fixing things, there were 14 officials who had asked us to not investigate their errors. They did not see their errors as corruption. This people have covered their tracks very well. The sit and plan which mistakes they should not make,` he said.

IFP MP Liezl van der Merwe said the department was dragging its feet in investigating matters.

She said:

If applicants supply fraudulent information, why don`t we just block them. We do not have the capacity to investigate all these matters. Officials have also resigned, and we don`t always investigate it further. This is not right.

DA MP Adrian Roos said the corruption stemmed from years ago.

`The time that has been spent on the investigation could have been used to reduce the visa backlog. I have also not seen, allocations to IT projects that seek to upgrade the system. There are several red flags,` he said.

Bishop said the department sought legal advice and it was recommended that in cases where applicants had obtained visas through fraudulent means, the visas must be annulled.

`Upon the annulment of their visas, these individuals should be deported,` Bishop said.