Govt to oppose order allowing 22 Afghan nationals into SA

Home Affairs Minister Dr Aaron Motsoaledi believes a US Non-Governmental Organisation is trying to use the legal system to undermine and ambush South Africa’s sovereignty. Motsoaledi has reacted to an order by the High Court in Pretoria that government grants asylum to 22 Afghan nationals.

The order was issued on Friday after lawyers representing a United States-based NGO approached the court on behalf of the 22 Afghan nationals.

The NGO argued that the group might be victimised by the Taliban regime which took power in August 2021.

“On the 14th our officials in Beitbridge received a letter written by a firm of lawyers saying that they have clients that are coming, 22 of them. We are warning them that you must be given a transit visa to enter South Africa and apply for asylum, they never named the clients, they didn’t even mention where they came from. While the people there were still surprised, 22 people arrived and said they’re from Afghanistan and they want to enter the country, their lawyers have given us prior notice and they were carrying visa from Zimbabwe,” says Motsoaledi.

Government slams call to grant asylum to 22 Afghan nationals

Meanwhile, Motsoaledi says government will be opposing the court order.

“Yesterday they went to court to get an interim order that we must allow these people to come in, the return date is on the 7th of March but that court order has been granted that we must allow them in, but the judge realised that we were not in court. We were not in court because they manipulated the law and processes because they know that we are in Pretoria but they served a junior person in Beitbridge through an email and the person was in the field and only saw the email after 4 hours and after 4 hours they had already been in court and got the order but the judge realised that we were not there and allowed us that we can do something within 24 hours.”

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Home Affairs, New bill will allow IDs from age 10

JOHANNESBURG - In South Africa, you may only apply for an identity document when you`re 16 and above but, that`s about to change.

Cabinet has approved a new bill that will allow citizens to get their IDs at the age of 10.

The National Identification and Registration Bill of 2022 is now open for public comment.

The Bill also seeks to lay out an integrated digital national identification system, to keep a record of both SA citizens and foreign nationals.

Home affairs, minister Aaron Motsoaledi said, ``what the bill seeks to do is bring a new system called NIS, doesn`t change your nationality, but records, change the age on which people acquire ID documents, we want to move it to 10-years.`

`The rationale is that police at crime scene, use finger prints, so criminals use children...when a young child dies, they don`t take death certificate, so they don`t go and sell it and they live as an South African child that has died, so bill seeks to criminalise [that].`

Zimbabwean jailed for 15 years for possession of commercial explosives

A 40-year-old Zimbabwean man has been sentenced to 15 years behind bars for possession of commercial explosives.

The Musina regional court sentenced Luckmore Harunashe on Friday.

Hawks spokesperson Capt Matimba Maluleke said Harunashe and Zorodzai Ignatius Mukonzamariro, 31, were arrested on the N1 between Musina and Makhado in September 2022. Maluleke said the Beitbridge police task team was tipped off about a blue Toyota Condor transporting explosives.

“The task team members immediately reacted and the suspicious vehicle with two occupants was spotted, stopped and searched. On searching the vehicle, police found commercial explosives including 247 blasting cartridges, 1,250 connector capped fuses and seven detonating fuses valued at R70,000.”

Harunashe and Mukonzamariro, who was driving, were arrested and their case was transferred to the Hawks.

“The accused weren`t granted bail. During their trial, the court heard that Harunashe hired a vehicle driven by Mukonzamariro to transport his explosives from Zimbabwe to South Africa without a permit,” said Maluleke.

“Apart from the 15 years` direct imprisonment that was imposed on Harunashe, he was also sentenced to six months` imprisonment or a R20,000 fine for entering South Africa without a valid passport.”

Mukonzamariro was handed a six-month jail sentence, with the option of a R20,000 fine, for entering South Africa without a valid passport.

Another loose thread left hanging in South Africa

President Cyril Ramaphosa has again reaffirmed the government’s intention to introduce a remote working visa repeating a promise made a year ago to help solve South Africa’s growing skills crisis.

Despite the stated intention, however, the president has given no further details on the plan, nor any timelines associated with it. Meanwhile, repeated comments from the Department of Home Affairs on the matter show that zero progress has been made to make these visas a reality.

Responding to several parliamentary Q&As in 2022, Home Affairs minister Aaron Motsoaledi stated plainly that there are no provisions for such a visa in South Africa’s laws as such, there are no plans to launch one.

“The current visa categories are legislated by the Immigration Act No. 13 of 2002. In its current form, the Immigration Act does not make provision for digital nomad eVisa. Therefore, there are no plans to implement a digital nomad e-visa,” he said at the time.

This has become a sore point for those involved in South Africa’s tourism industry.

According to the City of Cape Town, it has been pushing for a remote worker visa since the lifting of lockdown, after the Covid-19 crisis wiped out the travel and hospitality sectors in the country.

“Since then, we have been lobbying for the introduction of a remote working visa because of its massive economic spinoffs for the industry. Our research shows that a special visa would help attract more international visitors, particularly ‘digital nomads’ who can work virtually from anywhere in the world,” it said.

The city said that working tourists tend to spend up to R50,000 during their stays and that over 40 countries around the world have already adopted these special visas to boost their own economies.

“If our visa system is not revised and improved, we stand to lose out to destinations with less arduous administrative platforms. Remote workers have exploded onto the travel scene and, according to one report of an incentive programme in Oklahoma in the USA, digital nomads generated nearly $20 million in additional local gross domestic product.

“With a special visa, South Africa stands to realise such gains,” it said.

In lieu of an actual plan of action from Ramaphosa, the city is proposing an amendment to Section 11 of the Immigration Act, which relates to an extension of visas beyond 90 days for specific activities.

Through an amendment, the Act could include the following requirements:

• An applicant must provide evidence of employment abroad, as well as a sufficient income from such employment or own business registered abroad;

• Prohibit the applicant’s work activities in South Africa;

• Allow the applicant’s dependents to accompany them on application.

“If South Africa were to implement such strategies, we could indeed create a tourism-related job in every home in the country. Whether you’re in aviation, logistics, transportation, boat-building, hospitality, retail, design, or clean energy, tourism relates to your work because it brings clients to your door,” it said.

While South Africa has made no forward movement on nomad or remote work visas, some measures to address the skills crisis in the country were introduced in the last 12 months.

Most notably, Home Affairs published an updated critical skills list and moved to fast-track critical skill visas in the country. An apparent collapse of visa processing in August 2022 led to a significant backlog forming by the end of the year, however.

The backlog is only expected to be cleared up by June 2023

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High Court declares sections of Refugees Act unconstitutional

The Western Cape High Court declared sections of the Refugees Act unconstitutional. 

• Western Cape High Court Deputy Judge President Patricia Goliath has declared sections of the Refugees Act unconstitutional.

• According to the act, asylum seekers who do not renew their visas within one month of the date of expiry are considered to have abandoned their asylum applications.

• The judge said that the essence of the minister of home affairs’ argument was that most asylum seekers are not genuine and use the process to “avoid meeting the requirements of immigration laws”.

The Scalabrini Centre of Cape Town has won a significant victory against the minister of home affairs in the Western Cape High Court, which has declared sections of the Refugees Act unconstitutional. 

The sections in question provide that asylum seekers who have not renewed their visas within one month of the date of expiry are considered to have abandoned their asylum applications.

This, Scalabrini argued in its application before Deputy Judge President Patricia Goliath, meant that delinquent asylum seekers were considered to be undocumented, treated as “illegal foreigners”, without access to jobs and social services, and faced deportation.

Scalabrini launched a constitutional challenge against two sections of the Refugees Act as well as parts of the act’s regulations.

In her ruling this week, Goliath deemed these sections and regulations unconstitutional. This ruling, however, will still have to be ratified by the Constitutional Court.

Scalabrini’s core mandate is to assist and safeguard immigrants and displaced communities, including asylum seekers and refugees. It is also a member of the Consortium for Refugees and Migrants South Africa (CoRMSA) which comprises 26 organisations with similar objectives.

Scalabrini previously obtained an interdict against the minister, suspending the implementation of the relevant sections of the act and the regulation, pending the outcome of the constitutional challenge which then was heard by Goliath.

The organisation argued that those who did not reapply within the legislated time-frame were deemed undocumented. Even though they had a valid refugee claim, they could be sent back to their countries where they may face persecution, death, torture, sexual violence and other threats. It said that home affairs officials had a duty to ensure that people were given a reasonable opportunity to apply for a visa.

This, it was argued, violated the right to non-refoulement (a fundamental principle of international law which forbids a country receiving asylum seekers from returning them to a country in which they would be likely to be in danger of persecution).

CoRMSA, admitted as an amicus curiae (friend of the court) in the matter, made submissions about the impact of “abandonment rules” on asylum seekers, particularly their children and ability to protect themselves. The consortium said the provisions in the act were counter to the protective goals and purpose of domestic and international refugee law.

Goliath said the minister acknowledged that the abandonment provisions violated the Constitution, but argued that they were rational and justifiable due to the fact that asylum seekers behaved in a recalcitrant manner and failed to renew their visas in good time. This created backlogs and imposed an administrative burden on the department.

It was not disputed that it took, on average, five years for asylum seekers to be recognised as refugees, and therefore had to renew their visas between 10 and 20 times in that period.

“Asylum seekers are permitted to work, study, and use social services … Without a valid permit, they, as well as their children, become vulnerable to deportation.”

Goliath said the essence of the minister’s argument was that most asylum seekers were not genuine and used the process to “avoid meeting the requirements of immigration laws”. The abandonment provisions incentivised them to finalise their applications.

The judge said, however, that the provisions were certainly not in the best interests of affected children, as was required by law and international conventions and charters. “The provisions take effect automatically after the expiry of 30 days with no individualised regard to the impact of affected children,” she said.

“The mere fact that representations can be made to the standing committee, after the fact, once a child is already rendered undocumented for extended periods is of no use or assistance. This is aggravated by the absence of formal procedures to make representations, let alone any procedure to ensure that the voices of the children are heard.”

She said South Africa is obliged to establish systems and allocate resources to ensure “the international human rights law protection of refugees and asylum seekers”.

She said the provisions were clearly arbitrary because asylum seekers would no longer be deported based on the merits of their claims, but on external circumstances, such as the nearest refugee centre, the length of the queue there and the workload of home affairs officials.

“At the heart of [the minister’s] justification is an unlawful presumption and prejudgment that most asylum seekers have no valid claims and no interest in pursuing these claims. This violates the core principle of refugee law that asylum seekers must be treated as presumptive refugees, with all the protections this entails, until the merits of their claims have been finally determined through a proper process.

“The right to non-refoulement is of great importance in the overall constitutional scheme as it recognises human beings’ right to dignity.”

Goliath directed that the legislation be amended to rectify the defect and that the minister pay Scalabrini’s legal costs.

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