Johannesburg - A top Department of Home Affairs official is under fire for approving controversial Malawian fugitive and self-proclaimed Prophet Shepherd Bushiri and his family's applications for permanent residency.

Ronney Marhule, the department’s chief director for permits, has been charged internally for approving the Bushiris' permanent residency applications without proper compliance with standard operating procedures.

Marhule is accused of being party to the recommending and approval of Bushiri and his immediate family’s applications for permanent residency.

An internal home affairs investigation found that since March 2016, when Bushiri’s application for permanent residence was received, its approval has been done without proper compliance with the Department of Home Affairs’ standard operating procedures and in contravention of the Immigration Act.

The department’s evidence shows that the Bushiris’ applications were captured and granted by its officials using the incorrect section of the Act as a result of Bushiri and his wife Mary’s commissions or omissions.

According to papers filed at the Labour Court in Johannesburg, where Marhule was challenging the disciplinary hearing initiated against him, he and three other officials were enablers and facilitators who made it possible for Bushiri to obtain a permanent residence permit.

The department believes this allowed Bushiri and his family to be able to remain in South Africa and commit criminal acts which include fraud, forgery and money laundering charges they are facing and later skipping the country while out on bail.

Marhule hauled Home Affairs Minister Dr Aaron Motsoaledi and director-general Livhuwani Makhode to the Labour Court to urgently challenge the fact that the department had a legal representative in the disciplinary hearing while he did not.

His basis for approaching the court urgently was that he has demonstrated exceptional and compelling circumstances for its intervention in his incomplete disciplinary proceedings.

Marhule argued that because the department was allowed to be legally represented at the internal hearing he will suffer prejudice due to the fact that he does not have the financial means to secure his own legal representation.

Labour Court Judge Edwin Tlhotlhalemaje on Monday found that Marhule should have approached the court for urgent relief on or immediately after April 14, when he received the department’s application for legal representation in order to prevent the disciplinary hearing chairperson Chris Mudau from even considering the matter.

Marhule only approached the court on May 17, two weeks after Mudau made his ruling and that he became aware that the department was legally represented or intended to be legally represented on March 23.

He said Mudau had no powers to even consider the department’s application to be legally represented and that by doing so he acted ultra vires (beyond the powers).

”The applicant (Marhule) has not made out a case for the relief that he seeks. Other than the requirements of urgency not having been met, or the fact that it would not be competent for this court to grant the relief that the applicant seeks in the light of the ruling of the chairperson, the exceptional circumstances pleaded, in this case, are not of such a nature it can be said that the failure to intervene at this stage would lead to a grave injustice,” ruled Judge Tlhotlhalemaje on Monday.

In dismissing Marhule’s bid, the judge explained that alternative remedies remain available to him should he at some point deem it necessary to utilise the dispute resolution mechanisms provided for in the Labour Relations Act.

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President Cyril Ramaphosa has signed the Cybercrimes Bill into law, bringing South Africa’s cybersecurity laws in line with the rest of the world.

The bill, which is now an act of parliament, creates offences for and criminalises, amongst others, the disclosure of data messages which are harmful, says Ahmore Burger-Smidt, director and head of Data Privacy Practice at Werksmans Attorneys.

Examples of such data messages include:

• Those which incite violence or damage to property;
• Those which threaten persons with violence or damage to property;
• Those which contain an intimate image sent without the subject’s consent.

Other offences include cyber fraud, forgery, extortion and theft of incorporeal property, said Burger-Smidt.

“The unlawful and intentional access of a computer system or computer data storage medium is also considered an offence along with the unlawful interception of, or interference with data.”

“This creates a broad ambit for the application of the Cybercrimes Act which defines ‘data’ as electronic representations of information in any form.”

A person who is convicted of an offence under the Cybercrimes Act is liable to a fine or to imprisonment for a period of up to fifteen years or to both a fine and such imprisonment as may be ordered in terms of the offence.

Impact on businesses 

Burger-Smidt said that the Cybercrimes Act will be of particular importance to electronic communications service providers and financial institutes as it imposes obligations upon them to assist in the investigation of cybercrime.

This includes furnishing a court with certain particulars which may involve the handing over of data or even hardware on application.

“There is also a reporting duty on electronic communications service providers and financial institutions to report, without undue delay and where feasible, cyber offences within 72 hours of becoming aware of them.

“A failure to do so may lead to the imposition of a fine not exceeding R50,000,” she said.

Burger-Smidt said that the act will also have an impact on businesses, especially considering its overlap with the Protection of Personal Information Act (Popia), amongst other regulatory codes and pieces of legislation.

Popia, which deals with personal information, aims to give effect to the right to privacy by protecting persons against the unlawful processing of personal information.

“One of the conditions for lawful processing in terms of Popia is security safeguards which prescribes that the integrity and confidentiality of personal information must be secured by a person in control of that information,” she said.

“This is prescribed by Popia in order to prevent loss, damage or unauthorised access to or destruction of personal information.”

Burger-Smidt said that Popia also creates a reporting duty on persons responsible for processing personal information whereby they must report any data breach to the Information Regulator within a reasonable period of time.

“In light of the above, companies should be cognisant of their practices especially in dealing with data or information,” she said.

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New bill looks set to create serious challenges for skilled foreigners already working in S

Thousands of skilled people working in SA could face visa renewal challenges, or even be forced to leave the country, if their job descriptions have been cut from the latest SA critical skills list, which has just been released for public comment.

Despite warnings from experts in recent years the new bill on international migration, and the new critical skills list, look set to block foreign direct investment and skills flows to the country and create serious challenges for skilled foreigners already working in SA.

As the first amendment since 2014, the new list is long overdue. However, there is cause for concern that the first new list in more than six years is dramatically shorter than the list in force, with only 126 categories. If the list is approved in its current state foreigners whose skills are no longer included may be unable to renew their visas and find themselves and their families being forced to leave.

Designations that have been eliminated include agricultural scientists, corporate GMs, telecommunications & ICT solutions architects, security network specialists, database specialists, foreign language speakers for specialist language & technical sales support, a broad range of specialist engineers, biochemists, biological and environmental scientists, water resource scientists, astronomers and physicists. Doctoral qualifications acquired abroad have also been removed from the list, raising concerns about the new list’s impacts on academia and cross-border skills transfer and knowledge sharing.

It should also be noted that this new list does not match the department of higher education & training’s list of occupations in high demand, despite the two lists ostensibly being aimed at the same goal: the identification of skills SA needs but lacks. For example, the department’s list includes high-demand occupations such as psychologists, lawyers, social workers and dentists.

Importantly, the new list requires virtually all applicants to have academic qualifications, but does not make provision for work experience. This means the doors to the country are in effect shut to experienced businesspeople, foreigners with much-needed foreign language skills to support the business process outsourcing sector and enable international diplomacy and trade, and those working in new IT fields for which there are few formal qualifications.

In terms of the Immigration Act critical skills are those essential for the country but that SA lacks in the necessary numbers. Because of their desirable status, critical skills visa holders may bring their families with them, and they are explicitly not restricted to a single employer. In practice, those who enter the country on critical skills work visas now appear to be tied to particular employers or are only issued with visas valid for 12 months, requiring the holder to resubmit a full new application with all the required documentation 10 months later, two months before the expiry period.

So people with the critical skills SA needs must go through the burden and costs again to receive a visa that may now be valid for five years but will still be tied to one particular employer. In theory, the visa should be issued for a maximum period of five years without any specific employer annotated, regardless of whether an employment contract is submitted with the application. In practice this will make the critical skills visa little different from the usual work visa, which runs contrary to the legislature’s intention in creating the critical skills visa regime as set out in the act, regulations and skills list.

The aims of the act in providing for critical skills visas are to attract to the country rare and desirable skills that are not commonly available among the SA populace. In short, these visa holders are a benefit to SA and are not taking any South African’s job. In spite of this and contrary to input and contributions from a wide range of stakeholders, the new critical skills list still appears to be unnecessarily restrictive. This reinforces earlier concerns that the inputs by business and industry have been ignored in favour of those by the departments of home affairs, employment & labour and higher education & training.

A balance needs to be achieved between directly creating employment for South Africans and encouraging skilled people and business investors to enter the country, where they can create jobs, participate in skills transfer and help grow the economy. However, this will all be meaningless if these applications are not processed in terms of the Immigration Act and the regulations by properly trained administrative officers.

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Upon application to the Minister of Home Affairs, the Minister may under terms and conditions determined by him or her allow distinguished visitors or members of his/her family to be administered and sojourn in South Africa and or waive any prescribed (regulatory) requirements for good cause and/or grant any foreigner or category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist justifying such a decision.

S 31(2)(b) provides that the Minister may, upon application, grant a foreigner or a category of foreigners the right of permanent residence for a specified or unspecified period, when special circumstances exist justifying such a decision. The Minister may also exclude a foreigner or a group of ‘identified’ foreigners from such dispensation and may, for good cause, withdraw such right(s) from a foreigner or a category of foreigners. S 31(2)(c) provides that the Minister may for ‘good cause’ waive any prescribed requirement or form, in respect of any such application by a foreigner for the grant of permanent residence.

There are a myriad of circumstances that may arise wherein an applicant may apply to the Minister of Home Affairs to grant certain concessions in terms of section 31(2)(b) or under 31(2)(c) under the Immigration Act (the “Act”) that may pertain either to the acquisition of permanent residence “when special circumstances exist” or “for good cause, waive any prescribed requirement or form”.

The Minister is empowered in terms of the Immigration Act to “waive” any regulatory requirement or form.  A foreigner may apply for such waiver on the basis that “good cause” exists for the granting of such waiver.

The term “good cause” has never been defined, either in terms of legislation or by the South African judiciary.  In practical terms an applicant must demonstrate that there is compelling justification for the waiving of a regulatory requirement or form, and if the Department of Home Affairs (on behalf of the Minister) determines that a violation of a constitutional right, or an irrational consequence, will arise by a refusal to grant such waiver, waivers are normally granted.

A typical scenario necessitating a waiver under section 31(2)(c) would be where a specific requirement or form is applied to the Minister to be dispensed with.

Here are a few examples of waiver applications:

• A foreigner, sojourning in South Africa, has in the past submitted police clearance certificates from his country of residence of more than 12 months since his 18^th One of those countries is Saudi Arabia.  Since his last submission to the Department of Home Affairs of his Saudi Arabian police clearance certificate he has never returned to such country.  He now intends to apply for permanent residence in South Africa and will, in terms of Immigration Regulation 23(2)(e) require a police clearance certificate from Saudi Arabia.  Since he will not be able to acquire a new Saudi Arabian police clearance certificate without, at great expense and inconvenience, returning to that country physically to obtain one, he applies for a waiver from the aforementioned regulatory requirement in relation to a Nigerian ,USA or Saudi Arabia police clearance certificate if perhaps you have not lived there for 10 to 15 years and would have difficulty to obtain same .  Such applications have been largely successful.
• A refugee sojourning in South Africa in terms of the Refugees Act wishes to apply for a critical skills work visa in terms of section 19(4) of the Immigration Act. In terms of Ahmed and Others v Minister of Home Affairs and Another [2018], ZACC 39  an asylum seeker or refugee sojourning in South Africa must first apply for a waiver from the requirements of Immigration Regulation 9, which includes the requirement that any temporary residence visa applicant must submit his or her application in person to a foreign South African mission where such applicant ordinarily resides or holds citizenship.  Once the waiver from such requirement is granted only then may the asylum seeker or refugee proceed to submit an application for a temporary residence visa application in South Africa.  These waivers must ordinarily be granted otherwise a ruling by the Constitutional Court will be violated.

A regulatory waiver application made in South Africa may take anywhere between 4 – 7 months on average to be processed and adjudicated by the Department of Home Affairs.  In order to apply for a waiver the applicant must be in possession of a valid refugee or immigration status.

Mulowayi v Minister of Home Affairs is an appeal to the South African Constitutional Court from a decision of the High Court of South Africa dealing with the validity of a regulation amending the South African Citizenship Act 2010 ¹.

The legal issue to be determined by the Constitutional Court was on a narrow technical point.  The reason I chose to write about this case is because it touches on wider issues arising from South Africa’s citizenship regime — especially as they affect stateless people.

The statelessness question in Mulowayi 

In this case, the third applicant, Gaddiel, who is a child, was born in South Africa without a nationality.  He is stateless.  Gaddiel should have been substantively protected as a stateless person by provisions in South Africa’s Citizenship Act ².  The Act grants citizenship to a person who is not a citizen or national of any other country or has no right to such citizenship and who has been registered in accordance with relevant South African laws.

However, this substantive protection is only attainable if Gaddiel undertakes further litigation challenging the failure of the South African government to enact a process for Gaddiel to make an application under the Citizenship Act.  The lack of an application process under the statelessness provisions of the Citizenship Act had already been raised in an earlier case, Minister of Home Affairs v DGLR [2016] ³.  Despite the decision in DGLR, the Department of Home Affairs has taken no steps to remedy the omission.

The story of the Mulowayi family, and especially their son, Gaddiel, demonstrates the challenges so many stateless people face navigating complex administrative processes just to get access to basic rights that should already be available to them.

Statelessness in South Africa

I have written about the challenges faced by children in South Africa before arguing, as many rights groups have done, that legal identity should not be conditional on the status of the child’s parents ⁴.  The risk of statelessness in South Africa, especially to children, increased when South African authorities sought to limit those eligible to be registered at birth.  Children whose parents are foreign nationals and have no right to permanent residence in South Africa could not have their birth registered meaning they would struggle to establish their legal identity ⁵.  Denying children a birth certificate in a state where birth registration is so closely link to nationality is a serious problem.   It will impact not only those children being denied a certificate today, but future generations too ⁶.

Lack of a legal identity is one reason why so many children are now at risk of statelessness.  Another, aptly illustrated by Gaddiel Mulowayi’s case, is the lack of administrative process and administrative justice that allows those who are stateless to rely on existing laws offering those who are stateless, or at risk of statelessness, much needed protection. Gaddiel should be able to rely on South Africa’s well drafted and international law compliant provisions to acquire South African citizenship.  Yet the process by which he can do that has not been put in place.  Liesl Miller, a South African attorney who heads up the statelessness project at Lawyers for Human Rights sums up the problem of statelessness in South Africa:

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