South Africa’s Home Affairs Minister Aaron Motsoaledi has told delegates of the National Council of Provinces (NCOP), the country’s upper chamber of parliament, of the reforms his department his championing to simplify how citizens apply for and obtain ID credentials such as biometric national ID cards and passports.

In a recent question-and-answer session with special delegates of the Peace and Security Cluster 1C of the NCOP, Motsoaledi said digital self-service kiosks installed at some Home Affairs offices to facilitate ID issuance were indeed helping to reduce wait time, according to information published on the parliament website.

Motsoaledi said as part of efforts to curb queues, Homes Affairs is piloting facial recognition self-service kiosks which will be deployed to their offices in all nine of the country’s provinces, while hoping that the State Information Technology Agency (SITA) will also improve its connectivity issues to make service delivery smoother.

“The heart of long queues is the SITA system that is always down. So, in the meantime, we are doing what we can,” said Motsoaledi as quoted.

The government official also explained the functioning of the Branch Appointment Booking System (BAPS) through which ID and passport applicants book appointments for the capture of their biometrics. With the BAPS, users spend less than 15 minutes at Home Affairs offices when seeking services, said Motsoaledi.

Responding to a question from a lawmaker on what Home Affairs has been doing to extend its services to rural and difficult-to-access communities, Motsoaledi said they have been using mobile teams to reach such areas.

Already, 100 mobile teams have been mobilized for that purpose and about 100 more are expected in the near future in order to boost their rural outreach capabilities, he said.

The minister equally briefed the NCOP delegates on the Home Affairs’ digital plan to strengthen and modernize its border management architecture, namely with the deployment of biometrics. The country has a plan to deploy biometrics for passenger checks in all of its airports in a project estimated at $5.2 million.

South Africa recently announced Home Affairs offices were extending their working hours on two weekends to allow more people collect their ID cards and passports ahead of a voter registration activity slated for November 18-19.

The High Court in Johannesburg has interdicted the Home Affairs Department from deporting th November 2023e mother (“TRS”), who is illegally in South Africa after her spousal visa from a previous marriage expired .

A mother’s bid to permanently relocate to Israel with her two children, with whom she shares joint custody with their father, has been put on hold while a court battle ensues around her looming deportation.

The High Court in Johannesburg has interdicted the Home Affairs Department from deporting the mother (“TRS”), who is illegally in South Africa after her spousal visa from a previous marriage expired .

High Court Judge Stuart Wilson had to interdict her deportation by the department after she was expected to report to its offices on Monday.

According to the judgment, the mother, after her spousal visa expired “unwisely obtained a fraudulent permit on which she relied for some time to remain in the country”.

“She was eventually found out, charged, convicted and is now subject to deportation as an illegal foreigner.

There is no suggestion that the third respondent, the minister, is inclined to revisit TRS’s status as an illegal foreigner, and I must accept, for present purposes, that she is liable to deportation at any time. It appears that the minister has agreed to stay his hand until October 30 (yesterday), but there is no guarantee that TRS will be allowed to remain in South Africa beyond that date,” said Judge Wilson.

The judge said the looming deportation of the mother, who intended to take her two boys with her while having joint custody of them with their father who opposes having them go with her, “is obviously a highly unsatisfactory situation”.

The mother, who holds Israeli and US passports, said she intended to return to Israel where she had “loving and supportive extended family” after experiencing an “emotionally volatile time” in South Africa.

The father, however, opposes her application to permanently relocate, preferring that all three of them remain in the country, but if her application was granted that the children remain.

“The question of whether (the mother) should be permitted to relocate to Israel with the children seems to me to be one of real complexity. As things stand, both she and (the father) play equally important roles in their children’s lives,” said Judge Wilson.

“I have no doubt that each of them has developed a close and loving bond with the children. Whatever happens in this case, the children are likely to suffer some detriment. If the mother leaves with the children, they will lose the closeness of a loving father. If she leaves without the children, they will be separated from their mother.

“At the tender ages of 1 and 3, either of these outcomes could be devastating for them. But just as potentially undesirable is a situation in which the mother remains precariously in South Africa to be with the children, with all the stress that would cause her, and which would likely be transmitted in some way to the children.

“Another possible outcome is that she is given leave by the minister to remain in South Africa permanently, but that she never really settled here, and is left in a state of anguish and resentment as a result. That, too, will clearly affect the children and their well-being,” said the judge.

While litigation in the matter continues, he said as the interdict was interim in nature, it “remained open to the minister or to the fourth respondent, the director-general, to apply to court for appropriate relief in the event that new circumstances arise which justify the interdict’s variation or discharge”

Minister Khumbudzo Ntshavheni says the government is concerned about the rise in food poisoning incidents. 

• The government wants to audit how many foreign-owned shops are operational in the country.

• It wants to allow traditional leaders to keep a register of foreign nationals present in communities. 

• Lawyers for Human Rights warned the proposal was dangerous because it could fuel xenophobia.

Foreign-owned spaza shops are set to face renewed pressure from the government as traditional leaders and municipalities may soon be expected to conduct audits and keep records of the number of foreign nationals in their communities.

Minister in the Presidency Khumbudzo Ntshavheni said on Monday that Cabinet was concerned about the rise in the number of reports of children being poisoned by consuming allegedly contaminated food from spaza shops, sometimes leading to death.

However, the link between the illness or death of children to food from spaza shops has not yet been proven.

Cabinet`s concerns were qualified during a briefing from a migration workshop, which concluded with outcomes that could spell a contentious time for foreign-owned businesses in townships and rural areas. 

The government wants to introduce `omnibus by-laws` to strengthen the hand of municipalities and traditional leaders in enforcing business by-laws.

It includes the inspection of spaza shops by inspection teams from labour, health, business development and home affairs. 

Another enforcement effort is to audit spaza shops in villages and townships by registering them with municipalities and traditional leaders, Ntshavheni said. 

However, this is being met with extreme concern by human rights groups. 

Lawyers for Human Rights described the announcement as deeply concerning, saying the government was shifting the blame.

Sharon Ekambaram, the head of the refugee and migrants` rights programme at Lawyers for Human Rights, said the proposals were unfairly focused on blaming foreign nationals.

She said it would reinforce the growing hostility against a minority. 

Ekambaram told News24: 

Where is the evidence and proof that all of the people who run spaza shops are undocumented [immigrants] or that they do not have the permits to run these businesses? Once again, this shows that the government`s stance is based on unsubstantiated [assumptions]. The fewer than two million foreign nationals present in our country cannot be the source of the ills we face as a country.

`There should be standards for everyone to comply. It can`t be only for foreign nationals. We can`t have laws that simply target them because that is racist and xenophobic, and goes against our constitutional values. Laws and concerns around the selling of expired food should be a concern for every business, even supermarkets, not just foreign-owned spaza shops.`

Ekambaram added that it was illegal to allow traditional leaders to keep lists of foreigners, and several court judgments had pointed to its illegality. 

She described it as akin to the apartheid government keeping a record of black people during apartheid. 

`It is categorically illegal, and there have been judgments handed down where you can`t even go and close off a community or go door-to-door asking people. It is unconstitutional to do that. The danger of this is that, tomorrow, it will give traditional leaders the same powers to keep an eye on ethnic groups. 

`Our Constitution and the Bill of Rights are very clear on the rights of everyone living in our country. You cannot just keep lists of people,` Ekambaram said. 

Meanwhile, the Congress of Traditional Leaders of SA welcomed the strengthening of traditional leaders` powers.

Its representative, Zolani Mkiva, described the proposals as `progressive`. 

`Traditional leaders have to be at the forefront of ensuring that their people are protected,` Mkiva said. 

On whether such targeted proposals were xenophobic, Mkiva said all businesses must be registered to enable a swift accounting mechanism when there were reports of deaths because of expired food.  

He said: 

All businesses should register, and there is nothing discriminatory about that. If a South African is selling expired food, he is actually selling poison, so all spaza shops must be registered and monitored. The issue of the legality is a subjective notion because, if people are doing wrong things with the idea that the law protects them, that law is wrong. 

An Eastern Cape shop owner told News24 he was worried about all spaza shop owners being tagged as sellers of expired products.

Alex (who would only provide his first name), who is originally from Ethiopia, and has lived in South Africa for nine years, said he had a permit.

He found it unacceptable that some vendors were selling expired goods to consumers.

`I do not sell expired food. I throw away food that is not in good condition. It is not right to sell people expired food. My stock is kept up to date and I have a permit,` Alex said.

He added that he was not against legislation to control food safety, but he was worried about the unintended effects this could have on the movement of foreign nationals. 

In the meantime, the ANC recently echoed the political rhetoric of clamping down on foreign nationals in Gauteng, with the party`s leadership proposing restrictions on how many foreign nationals could be employed at one business in the province. 

ANC Gauteng leaders Panyaza Lesufi and TK Nciza said the party was concerned about unemployment levels in the province, and the proposed restrictions were seen as a move to strengthen the opportunities available to South Africans.

About 26,000 people have applied for a so-called 888 `golden visa` that grants residency to those investing between $5 and $15 million into Australia

For the agency charged with securing our frontiers and safeguarding social harmony, it`s an annus horribilis like no other. Australia`s controversial Department of Home Affairs is in crisis.

Thanks to dogged reporting by the press, the secretary of Home Affairs, Mike Pezzullo, has been suspended and his conduct is being investigated by Dennis Richardson, the former head of ASIO. Richardson is also examining allegations the department agreed contracts with figures in Nauru suspected of involvement in corruption.

Last month, the former commissioner of Victoria Police, Christine Nixon, found the Home Affairs visa system was being exploited by `criminal syndicates … involved in various serious criminal offending and activities for profit`.

There was some political motivation, but also much truth, when Home Affairs Minister Clare O`Neil recently inveighed passionately against the `rorts and loopholes that have plagued this system`.

A visa program for the super-wealthy

One rort, however, has not received public attention in the ongoing imbroglio, and that was the conception a decade ago of a bizarre and counter-productive visa program targeting the super-wealthy.

Thus far, a staggering 26,000 foreign nationals have been granted permanent access to Australia not because they were a great fit for the community and not because they brought with them much-needed skills or a dose of high culture. They were granted this precious gift simply because they were loaded.

Launched in 2012 by Chris Bowen, we were told the Business Innovation and Investment Visa would usher into the country a new font of working capital. The program required the investment of either $5 million or $15 million or the promise of great entrepreneurship and business activity, and it was branded the 888 Visa.

But rather than `triple fortune` (as the number promises in Chinese numerology), the 888 program was quickly exposed by the Productivity Commission as providing Australia a pitiful return.

All the way back in 2016, it found these significant investor visas may have actually crowded out other providers of venture capital; that, `perversely`, they may have brought people to Australia with `less business acumen` than would otherwise have arrived; and, overall, made a `trivial` impact, accounting for one-fifth of 1 per cent of total foreign investment. Hardly the `boost` Bowen had promised.

Perhaps most galling was the Commission`s discovery that tax concessions available under the program `could amount to the Australian community paying a small group of people to become permanent Australian residents … that is, Australian taxpayers would be effectively subsidising SIV applicants`.

`Golden visas` have been scrapped by most countries

At the time, the government said the introduction of golden visas �` as they`re known in the business �` was prudent; other attractive destinations were themselves seeking to lure the world`s high-rollers with similar schemes.

A decade on, Australia is now one of the few Western countries to still offer such a program.

Elsewhere, they have been terminated not just because they`re inefficient but also because they attract dirty money.

Britain`s golden visa arrangements were scrapped last year as part of a `crackdown on illicit finance and fraud`, in part because it was determined they had provided `opportunities for corrupt elites to access the UK`. Ten high-profile Russians who obtained such visas subsequently appeared on international sanctions lists after the Kremlin`s invasion of Ukraine.

In Portugal, meanwhile, half of all golden visa recipients have come from the 30 nations with the worst reputation for money laundering. Concerns that illicit funds made up a significant portion of the 5.8 billion euros ($9.7 billion) it garnered have now prompted its closure.

In Greece, 3 billion euros in offshore funds poured into real estate via its golden visa scheme (much of it from China), distorting Athens`s property market. One Greek cabinet minister had warned that `a lot of it comes from illegal activities … arms trade, smuggling or trafficking`.

Chinese money flooded Ireland through its special investor visa, now also shuttered. Earlier this year, the Irish police launched an investigation into intelligence that multiple Chinese investors had used the same pot of money to game the visa program.

Analysis from the ABC`s experts

Do 888 visas post a risk?

These risks are not unknown to Australian decision-makers. The same Productivity Commission inquiry included warnings that 888 visas carry with them the `potential for money laundering and other nefarious activities`. Surely similar advice has been provided to the government over the years since.

But we are none the wiser. Since their introduction, there has been almost no public accountability by Home Affairs for the effectiveness of the 888 visas. We have never been told how many were issued, nor to whom until now.

Extracted using Freedom of Information, the raw data is stunning, including the headline figure of 26,000 successful applicants. It shows that from its inception in 2012 until May of this year, more than 20,000 Chinese nationals, including those from Hong Kong and Macau, have been granted golden visas to live in Australia.

A path to Australian citizenship

It`s likely thousands of these visa recipients have since obtained Australian citizenship.

By contrast, the British scheme had granted only 2,500 golden visas to Russians over a 14-year period.

Here, China was by far the greatest source of applications, greatly overshadowing the remaining 6,000 or so that have been granted. Considerable numbers applied from Bangladesh (221), Iran (777), Malaysia (1,049) and Vietnam (1,321).

What is stark about the data is that so few applications were rejected  at a rate of less than 2 per cent (522).

Last year, The Australian reported that not a single applicant from China for the $5 million investment visa had been rejected based on a character assessment.

I checked if that remained true of the entire 26,000 cohort, and it does. Home Affairs confirmed there has not been a single refusal of a 888 visa application under the good character provisions of the Migration Act.

And here is why. Section 501 provides for the denial or cancellation of a visa for those convicted of a serious crime. But what about the very many applicants who hail from the very many countries including China  where bribery and corruption are significant features of the criminal justice system?

The act says an applicant can be blocked `if the minister reasonably suspects` they have been involved in certain criminal activity, from people smuggling to war crimes.

But that provision  the ability to deny a visa on the basis of reasonable suspicion  is profoundly silent on white-collar crime. It says nothing about money laundering or the proceeds of graft and corruption.

Just consider for a moment how many people, particularly from poor and developing nations, are sufficiently remunerated to be able to drop $15 million on a foreign visa.

Golden visas were most often granted to people from these five countries in 2018.(Supplied: Moelis)

Australia needs to wake up

My FOI also produced the tiniest sliver of insight into how rigorously Home Affairs has policed the program. Of the 26,000 applications, the department has opened only 11 investigations into the good character provision. The first was not launched until the seventh year of the program.

Clare ONeil has said publicly that the scheme is under review. Why it hasn`t been scrapped already is apparently tawdry internal Labor politics; how to do so without bringing a blush to the cheeks of Chris Bowen, now energy minister?

Over the past decade, the currents of dark money that circulate the globe have been, for the first time, exposed. At home, recent inquiries into the casino and gaming industries have revealed how vulnerable we are to industrial-scale money laundering and the criminal enterprises that fuel it.

Australia needs to ask itself: what money comes for free?

Finally, the Constitutional Court has awoken from its slumbers and dealt properly with legal representatives who abuse the court process and are deserving of an adverse costs ruling against them. 

Affairs and others v Lawyers for Human Rights the Constitutional Court, it was held that the Director-General of Home Affairs pay 25% of applicable costs in his personal capacity and that the fees of the minister’s former legal representatives should be disallowed. Leave aside the extraordinary behaviour of the DG who appears to have kept his own minister in the dark.

This column is about lawyers. 

According to the court, the minister’s sometime legal representatives “inexplicably approached the court on an urgent ex parte basis for an order that, pending an application to the Constitutional Court or the enactment of remedial legislation in respect of s34 (1) (b) of the Immigration Act, a High Court order remain valid to the extent that it set aside the provisions that a detainee request that his or her detention be confirmed by a court and be replaced with a provision granting an automatic right that a detention be confirmed, by a detainee appearing in person in court”.

The high court also declared s34 (1)(d) of the Act to be constitutionally invalid to the extent that it provided for an extension of the period of detention without affording the detainee a right to appear in court in person at the time the request was made.

On 29 June 2017, the Constitutional Court confirmed these declarations of invalidity and set a timetable of 24 months for amending legislation to be enacted by Parliament. Significantly, it refused to confirm the high court’s reading of words which would have rendered s34 constitutionally valid pending the attempt by Parliament to so amend the Act. 

True to form, Parliament failed to meet the deadline set by the Constitutional Court. The minister then launched an urgent application to the Constitutional Court to revive that part of the 2017 high court order which had been set aside by the Constitutional Court and which would have left s34 effectively in play. The minister also launched a similar ex parte application before the high court.

The Constitutional Court found that the then legal representatives for the Department of Home Affairs “had inexplicably” approached the high court on an urgent ex parte basis for an order that pending the application of this court or the enactment of fresh legislation envisaged in the 2017 order, s34 should remain operative. They also approached the Constitutional Court on an ex parte basis in an attempt to revive the high court’s 2017 order.

In both cases, they failed to join the applicant, Lawyers for Human Rights. 

They also failed to mention four decisions of the Court that unequivocally held that, while the Court can extend a suspension order before the period of extension expires, it had no power to do so upon the expiry of that date. It also strongly opposed Lawyers for Human Rights’ intervention application by “bizarrely using the inexcusable failure to join LHR by contending that LHR was not party to the proceedings and had no standing to make damning statements”.

The Constitutional Court stated that legal practitioners are “an integral part of our justice system. They must uphold the rule of law diligently and professionally. They owe a high ethical and moral duty to the public in general and in particular to their clients and to the Court.”

Drawing on an article by Constitutional Court Judge Owen Rogers writing extra curially, the Constitutional Court noted that in England, ethical rules governing solicitors and barristers explicitly state that it is improper for a legal representative to make a submission which cannot be regarded as properly arguable. Australian jurisprudence similarly suggests that it is improper for a lawyer to present an argument that he or she knew was bound to fail.

In conclusion, the Court held “that the legitimacy of our judicial system, particularly the courts will fall into disrepute if the shockingly poor conduct of litigation as in the present instances is allowed to go unchecked. The egregious and multiplicity of the shortcomings in the conduct of the legal practitioners in the present case warrant an exceptional order.”

That order was to the effect that these legal representatives were not entitled to charge legal fees for the “services” rendered.

There have been many cases in the past which, at least on a reasonable basis (even on the standard of an average LLB student) legal arguments have been advanced that palpably have no merit other than to postpone an inevitable adverse outcome against a litigant.

All too often, arguments in court have been targeted at the press or the public at large rather than at the courts to gain political mileage for a client without any recourse to a justifiable legal argument. To date, the court has failed to mulct legal practitioners who have conducted themselves in this fashion. 

It is significant that the Court has taken this step in this case. It needs to go further in cases in which similar conduct, as described in the judgment based on the ethical responsibility of lawyers and comparative precedent, takes place.

One waits in anticipation for the first time that our apex court will award costs de bonis propriis against a recalcitrant legal practitioner for effectively wasting the time of the court in order to perpetuate an unjustified Stalingrad legal strategy. Or is this precedent as it applied the facts to its order confined to “non-Stalingrad” cases?