Undocumented, unmarried fathers cannot be excluded from their children’s birth certificates 

The CItizen | 19 Jan 2023

Gqeberha High Court judge said regulation was “irrational” and unconstitutional. 

A South African birth certificate and Identity document. 

A regulation preventing the naming of a foreign, unmarried father who is in South Africa illegally on his child’s birth certificate is unconstitutional, the Eastern Cape High Court in Gqeberha has ruled.

Judge Mbulelo Jolwana said the regulation, which provides that a foreign father of a child born out of wedlock must submit a copy of his valid passport, visa, permit, permanent residency, ID document or refugee identity document in order to be registered, was not only irrational but was contrary to the best interest of the child.

It was also at odds with the Births and Deaths Registration Act which imposed no such rule.

Case study

The matter before Judge Jolwana was brought by the unmarried biological parents of a young child. The mother is South African. The father is Bulgarian and his visa has expired.

Officials at the Department of Home Affairs refused to register him as the father on his child’s unabridged birth certificate, saying he was no longer legally in the country and because he was not a South African citizen, he had to undergo a paternity test.

The couple launched a court action for an order compelling the department to include the fathers name on the birth certificate and challenging the constitutionality of the relevant regulation.

READ THE FULL JUDGEMENT HERE

Judge Jolwana noted that the Minister of Home Affairs had initially opposed the matter, citing the father’s illegal presence in the country and that the regulation “made it impossible” to include the father’s name on the certificate.

During the hearing, his lawyers made a “180 degree turn” and conceded the issues, claiming that the regulation actually did not apply in this matter.

But the couple said the constitutional issue still needed to be aired given that it was a matter of significant public interest.

Lawyers for the minister said that given their capitulation, it was not necessary and the issue was now “moot”.

But Judge Jolwana said they had not explained their earlier stance and their “change of tack” and it called for an explanation.

“It is impossible to appreciate what informed this sudden change and it makes it even difficult to resist the temptation to conclude that the sudden change of mind was in bad faith, designed to cripple and disable the court from enquiring into the constitutionality of the regulation … which continues to bedevil children born in similar circumstances as the child in this matter.

“As can be gleaned from [the minister’s] affidavit, every day in all Department of Home Affairs offices throughout the country, those seeking the registration of their details in the birth records of their children are turned away if their fathers happen to be illegal foreigners,” the judge said, noting that there had been no concession regarding the constitutionality or otherwise of the regulation.

“Rights of citizens cannot be subject to the whims or attitudes of the attending officials in government offices … courts must act when rights, especially the rights of children, are allegedly being undermined.

“The court cannot ignore the fact that there may be literally thousands of other children who are treated no differently from this child, even as we speak … an inquiry into the constitutionality of this regulation is a matter of public importance.”

Judge Jolwana said neither the Constitution nor the Children’s Act distinguished between children on the basis of the citizenship of their parents.

The couple, he said, contended however that the regulation discriminated against their child, who was a South African citizen, because of the circumstances of birth.

In the matter before him, the fact that the father had been unable to renew his visa “has nothing to do with the child and his right to have the identity of his father officially recognised”.

Judge Jolwana said the regulation was “irrational”, noting that it had not gone through any parliamentary process and flew in the face of international instruments dealing with the rights of children.

The Act itself made no distinction between local and foreign fathers – those legally in the country and those that are not.

Unconstitutional

He declared the regulation to be unconstitutional and ordered the minister to pay the costs on a punitive scale, noting the last-minute about turn.

“For them to force people such as the applicants to approach court, only to admit that they were wrong from the onset, is troubling,” the judge said.

What does this mean to you 

There are 2 parts to this  question

1) child is just born and birth needs to be registered with DHA  

2) child is born , birth already registered , birth certificate issued and father now wants to be included on birth certificate.  

In case 1) no  problem he simply register as before being illegal except for 1 thing bearing in mind he is illegal so the question is post birth registration does civic affairs hand him over to immigration to be prosecuted as an illegal foreigners 2) to add father is called an insertion of natural fathers particulars and given its a citizenship amendment it takes  up to 1 year.

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Please email us to info@samigration.com

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Police versus home affairs: A turf war is brewing

City Press – 18 January 2023

It’s only been a few months since the formation of the much-vaunted Border Management Authority (BMA), but there is already a tense stand-off between the new force and the SA Police Service (SAPS).

The specialised BMA force was established in terms of the Border Management Authority Act with the specific mandate to protect ports of entry into South Africa.

Launched in July last year, it boasts 200 members, with another 400 to follow in the coming months.

However, City Press understands that the SAPS top brass are refusing to remove their officers from the notorious Beitbridge border post between Zimbabwe and South Africa, which is known to be so corrupt that the movement of illicit goods and the trafficking of people is commonplace.

BMA sources told City Press that border guards at Beitbridge were getting resistance from police officers who previously had the responsibility of protecting the port of entry. The officers are allegedly reluctant to hand over access control operations to the new guards, who have the same powers that the police do under law.

It is believed that the resistance stems from the fact that some of the entrenched officers have interests in the transportation of illegal goods and immigrants between Zimbabwe and South Africa.

A well-placed source said: 

We have good reason to believe that some of the taxis and buses that transport undocumented people coming from Zimbabwe into South Africa are owned by SAPS officers. The border guards are clamping down and, when they do so, they are finding huge resistance from the police officers.

A senior immigration officer at the department of home affairs said the police officers were “reluctant to get out and let the border guards take over”.

Another official stationed at the Beitbridge border said it was an open secret that there were police officers working at the post who live above-average lifestyles.

“Some openly brag about the size of the homes and number of taxis and buses they have here in Limpopo. So, it would be of no surprise that the kind of shift and relocation of people required to have a full takeover of border security is shaking everyone with one illegal arrangement or another,” said the official.

IMMIGRANTS COME THROUGH BOTSWANA

Speaking to City Press this week, Home Affairs Minister Aaron Motsoaledi said the BMA guards were already making an impression in collaboration with other law enforcement authorities.

Motsoaledi said he had not been made aware of the icy relationship between the police and border guards.

The minister said he was eagerly awaiting the deployment of 400 more border guards, after receiving information that Botswana was fast becoming the new hotspot for smuggling and moving undocumented immigrants.

Motsoaledi said:

Their operations at Beitbridge are so effective that people who are coming into the country illegally are now running to enter through other border crossings, such as the one between us and Botswana

He said there weren’t many guards at that border, “since we didn’t have problems with Botswana”.

“When we deploy border guards, most of them are sent to Beitbridge because that’s where the problem is. It was just last week that I was informed that people who are coming in illegally are now using Botswana. So, that’s why we need to increase guard numbers so that they [immigrants coming into the country illegally] don’t find any place where we don’t have enough border guards. That’s why I’m eagerly awaiting the deployment of the 400 border guards.”

POLICE INSIST THEY BELONG AT THE BORDER POST

Police spokesperson Brigadier Athlenda Mathe said the police and the border guards were working well together at all 72 ports of entry across the country. She insisted that SAPS officers would remain at their respective posts.

Mathe said:

The SAPS took a decision that the functions performed by the police at the ports would not be transferred to the BMA, which means that police at the ports will continue to be present to perform policing duties as mandated by the Constitution in terms of section 205

“It must be mentioned that, as things stand, the police, in cooperation with the other departments that are deployed at the ports, are working to curb cross-border crimes as per their mandate. The police are not working alone at the ports.

“So, police officers will continue [to work] at border ports to execute their mandate alongside the other departments, including the guards of the BMA. The deployment of the guards is not to replace the police at ports.”

BMA IS THE ‘THIRD ARMED FORCE’

Motsoaledi disputed this, saying that the BMA Act gives the commissioner of the border authority the same status as the commissioner of police, and gives BMA guards the same powers as the men and women in blue.

He said that “South Africa has a third armed force”, in addition to the police and the defence force.

“The only difference is that the police commissioner covers a bigger pool of resources across the country, while the BMA commissioner focuses on crime fighting as well as border security and management at our ports of entry.”

Motsoaledi said Justice and Correctional Services Minister Ronald Lamola had given the border guards a certificate declaring them a crime-fighting unit in their own right, meaning that they are a law enforcement agency.

“Before that, they could only stop you at the border and they could only arrest you in the presence of the police. If there were no police officers, then they couldn’t make an arrest.”

COMMISSIONER HAILS BREAKTHROUGHS

BMA commissioner Mike Masiapato confirmed that the increased visibility of the border guards had led to, among other things, the interception of 5 433 undocumented travellers.

After the undocumented travellers were processed and had had their fingerprints taken, they were deported to their home countries.

Masiapato said that, since the deployment of the border guards last year, a total of 29 stolen vehicles had been recovered and handed over to SAPS detectives for further investigation.

Masiapato said:

Border guards further intercepted undeclared cash to the value of R488 163 across ports. That was also handed over to the SAPS for investigating in connection with money laundering

Motsoaledi said they were waiting for the finance minister to issue an allocation letter to the BMA to start the recruitment process of the next 400 border guards.

“We know that the finance minister announced the allocation. We are now simply waiting to receive an allocation letter from National Treasury and, once that comes through, we will kick-start the process of recruiting the people who are going to take over the posts.”

He said another milestone achieved by the BMA since its inception was getting warring trucking companies at Beitbridge and at the Lebombo border post between South Africa and Mozambique to work together for the first time during peak travelling season.

“The commissioner and the trucking organisations had lengthy meetings, whereas in the past, instead of cooperating, they would compete with each other and stop each other from operating. In essence, they were pulling each other back and didn’t realise that everyone was losing,” Motsoaledi said.

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A smuggler maps out how he gets undocumented immigrants into SA

City Press – 18 January 2023

Thulani Mujuru* became a transporter of both goods and immigrants, documented or undocumented, across the Beitbridge Border Post.

He realised that he could assist his fellow Zimbabweans seeking access to South Africa – but who did not have the required documents to do so – to live their dream of working in the rainbow nation.

Speaking to City Press in the Johannesburg CBD, the self-proclaimed entrepreneur opened up about how his business of assisting undocumented immigrants cross the border had given him access to the money he never had, which he was “willing to take risks for”.

The Zimbabwe national shared:

From Zimbabwe to South Africa, I charge R2 000 per person. That R2000 includes the crossing fees charged by law enforcement and officials who must be bribed at different points of the journey.

The 38-year-old explained that while he received customers through word of mouth with bookings made telephonically, he relied a great deal on border-jumping guides called Impisi, who know which routes are safe to travel on, and on which days and at which times the routes have police or soldiers patrolling them. This helps to ensure his “customers” successfully gain entry into South Africa.

He told City Press:

The customer gives me R2 000. I then arrange with Impisi, who I pay R300 or R350 per person and he is the one who guides my customers, taking them from the beginning of the journey until I meet up with them in South Africa, and they have successfully evaded any obstacles.

Mujuru told City Press that there were usually three possible routes illegal immigrants could use when embarking on their illicit journey, explaining that each of these three “safer” routes required payments to those with the necessary powers to either grant or deny the desperate immigrants entry into South Africa.

“The safari lodge route – where people will travel through the Limpopo River; the new bridge route – which connects South Africa and Zimbabwe; and the old bridge route with the railway line – the Alfred Beit Road Bridge.”

He said each of these routes had various points “where police, soldiers or security officials had to be paid, adding that some migrants who cannot or want to avoid paying bribes in cash opt to cross the river”.

Mujuru clarified: 

Everything starts on the Zimbabwean side of the border at two specific garages, right at the Beitbridge border – either the Caltex or Engen garage – where people who need to cross the border, illegally or legally, meet me, for instance, as their transporter.

“Those who cross illegally and I then meet our Impisi for that day at a certain point of the Limpopo River. The Impisi tells us which route we will be using, and I give him his money.”

The routes

According to the transporter, the way things are done varies from trip to trip:

Sometimes I as a driver could decide to go with my people the illegal way to keep an eye on them and a second driver will wait for us on the South African side, or I will be the one who legally enters South Africa using my passport and then wait at the Shell garage on the South African side.

Asked about which Shell garage he was referring to, Mujuru answered: “There is only one, just after the border.”

The first point, which is still on the Zimbabwe side, will have soldiers, police and maybe security officials. That is at the river, where one’s journey will begin.

“The Impisi negotiates payment to these law enforcers to be allowed to continue with their journey with those crossing the border illegally. Most of the time, the Impisi will be charged R100 per person, which I give to him to give to law enforcement officials.”

“Once that R100 is paid, the journey continues. There is always a possibility of finding unexpected police who we will need to bribe, so the journey is unpredictable. But with each step, we part with something,” Mujuru said, adding that he tried to ensure that he “did at least four trips a week for the money”.

Migrants travelling from Zimbabwe use this botched border fence to enter South Africa. The fence cost taxpayers R37-Million:

He explained that should the safari lodge route be used to enter South Africa, those making the trip would travel across the Limpopo River on makeshift pontoons made from tubes and poles and would have to pay extra to those steering the pontoons.

Once this amount is paid, migrants and their goods are shipped until they reach the South African side of the river, where they will have to make their way through a veld.

Mujuru explained:

In all instances, customers will then make their way through the bushes on the South African side with the intention of safely reaching the Shell garage, which is before Musina, and meet their transporter there.

The transporter and his customers will then begin the unpredictable journey into the “heart of Johannesburg”.

According to Mujuru, throughout this journey, he and his customers could be stopped by police “who we then have to pay them so they let us go”.

“The drive takes over five hours because we might get stopped a lot.”

What experts and officials say 

According to immigration specialist at Webber Wentzel Bianca Rutherfoord-Jones, South African border officials have a difficult job monitoring foreign nationals wishing to enter the country.

“The borders at our neighbouring countries are currently an issue and we have seen that the minister of the department of home affairs is attempting to tighten the borders and root out corruption at the borders,” Rutherfoord-Jones told City Press.

“The home affairs minister has spoken out about corruption in the department and we consider this to be a major weakness in addressing the issue of foreign nationals entering and remaining in the country illegally.”

Meanwhile, spokesperson for the minister of home affairs Siya Qoza told City Press that for the 2021/22 financial year, the Maseru, Lebombo and Beitbridge ports of entry recorded the highest number of deportations, respectively.

Mujuru said: 

I don’t think people are scared of crossing the border illegally because money is what talks. People know that those officials are hungry for money. So, you bring the money, and off you go.

How much is it worth?

While Mujuru charges R2 000 per person for illegal entry into South Africa, he explained that he was left with less than half of that at the end of each trip:

What I am left with by the time I reach my destination is probably about R500. It’s not worth it, but I have no option. This is a chance I have to take because it is better than nothing.

“Six years ago, when I started, I charged R1 500. So there has been an increase of R500 in six years and the only reason there was an increase was because of Covid-19. Many of us do this and the more you charge, the more customers will approach others who offer the same service. The competition is high.”

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Foreigners are paying over R20 million to knock down bungalows in Cape Town

Businesstech | 15 January 2023

The demand for residential property in Cape Town is still underway despite holidaymakers heading home, says Basil Moraitis, regional manager for Pam Golding Properties in the Western Cape.

“We’ve experienced a busy festive trading season on the Atlantic Seaboard with sales to the value of R200 million concluded during December (2022) alone, including high-end sales from R20 million upwards.”

“The lifestyle and natural scenic beauty of Cape Town, particularly the prime Atlantic Seaboard coastal strip between Table Mountain and the Atlantic Ocean, resonates with home buyers around the country and globally.”

Moraitis said that the post-pandemic market had been driven mainly by primary homebuyers and international buyers looking for a place in the sun during the Northern European winter.

The area is starting to see investors returning to the market and looking at hospitality products for Airbnb as stock levels reach their lowest point in a decade.

He said that high-end buyers of luxury homes in the price bracket north of R20 million are active in the area.

Given its prime location, world-class homes and exceptional lifestyle, the Atlantic Seaboard consistently attracts a high proportion of cash buyers – not surprising due to its appeal for a more well-resourced, affluent buyer demographic, added the regional manager.

The topography of many prime areas of the Atlantic Seaboard is located in a narrow bank of steep sites, increasing the value of the properties purely due to land scarcity.

“It, therefore, follows that the feasibility of developing and selling these properties depends on buyers with cash resources who choose to invest in unique luxury or trophy properties offering spectacular views and the lifestyle that goes with it.”

“This is why this segment has always drawn international and upcountry buyers with cash – and increasingly of late, German buyers.”

“Covid has turbo-charged this trend with people wanting to live their best lives now and in the place that makes them happiest.”

Moraitis added that international buyers see the value offered by the area’s properties as significant alongside offering a compelling lifestyle.

Pam Golding listed the following areas as those that have seen substantial interest:

• Camps Bay
• Clifton
• Green Point
• Cape Metro
• Constantia

Camps Bay properties have also seen an increase in interest, said the regional manager.

“The Clifton bungalows are again very much in demand by upcountry buyers looking for a specific and unique lifestyle offering.”

The entry-level price for a bungalow is currently R20 million for a knockdown. “We have recently sold two such bungalows on Fourth Beach, both of which are to be demolished for new state-of-the-art homes,” said Moraitis.

Beyond large stately homes, luxury apartments are also very much in demand, with convenience and centrality to the main city as a top selling point.

The region of Green Point is also very much in demand, with its convenient location close to the central city and main arterial routes in and out of the Atlantic Seaboard, making it a firm favourite for families and professionals.

In Green Point, the price points from around R2 million up to R20 million make it easier to get into this market, said Moraitis.

Holiday rentals in the Cape Metro have also soared, said Arno de Wit, Pam Golding Properties rentals manager for the area.

“We experienced a boom in holiday rentals over the festive season as local and international visitors returned in their thousands. We concluded several holiday lets over December with five of our most recent including:

• Seven-bedroom villa in Constantia let at R30,000 per night x 17 nights
• Four-bedroom house in Green Point let at R135,000 per month for a three-month lease period
• Four-bedroom villa in Camps Bay let at R25,000 per night x 10 nights
• Four-bedroom villa in Camps Bay let at R15,000 per night x 11 nights
• Three-bedroom house in Silvermist Estate in Hout Bay let at R8,000 per night for seven nights.”

Among long-term rentals, according to Pam Golding Properties, it recently let a five-bedroom home in Claremont Upper in Cape Town’s Southern Suburbs for R170 000 per month, while their highest asking rental currently available is R290,000 per month for a 10-bedroom home in Constantia

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City of Cape Town tourism industry recovers to pre-pandemic levels: Vos

18 January 2023 - @SABCNews

The City of Cape Town says tourism to the city has recovered to pre-pandemic levels. Mayoral Committee Member for Economic Growth, James Vos, says Cape Town International Airport reported a recovery of 72% in domestic visitors and 98% in international visitors last year compared to the December 2019 festive period.

Vos says this has been a great boost to the municipality’s economy. Vos says they will now continue focusing on the City’s Inclusive Economic Growth Strategy which aims to expand on the city’s existing economic growth policies around investment, small business development and workforce expansion initiatives.

“Our focus will be on business retention and expansion, especially in the industries of green energy, manufacturing, tourism, financial services and business process outsourcing. As well as the development of the informal traders’ sector through our support programmes, workforce development.”

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