Home Affairs: The long and
winding road to holding public service officials accountable
Daily Maverick
- 7 September 2021
Home Affairs Minister Aaron Motsoaledi has written
to his Cabinet colleague, Arts and Culture Minister Nathi Mthethwa, asking him
to take disciplinary action against his director-general, a former Home Affairs
official linked to the Gupta naturalisation saga.
The Home
Affairs minister has tried to make it easy for the arts and culture minister by
even supplying the recommended charges. “You don’t escape disciplinary
proceedings by going to different departments,” Home Affairs Minister Aaron
Motsoaledi told MPs on Tuesday.
Disciplinary
steps against officials who had failed to do due diligence and verify the
accuracy of information on which the 2015 early naturalisation to Ajay Gupta
and family were part of the remedial actions, according to the Public Protector
report published on 7 February 2021.
Malusi
Gigaba, home affairs minister at the time, was cleared of abusing his statutory
discretion to grant early naturalisation – the focus fell on officials – but he
was busted for failing to table the names in Parliament as is required by law.
No names
were mentioned during Tuesday’s parliamentary home affairs committee meeting, but
the ministerial reference to the director-general was clear, as was the Public
Protector report that named former home affairs director-general, now Arts and
Culture Director-General Vusumuzi Mkhize, as being among a handful of officials
involved in the Gupta naturalisation debacle.
Mkhize
remains in the top echelon of the public service – unlike former home affairs
DG Mkuseli Apleni, who in July 2018 left for the private sector.
“We have
started disciplinary proceedings against officials named in the Public
Protector report. One of the officials is deceased,” Home Affairs
Director-General Tommy Makhode confirmed to MPs. “We are on course to finalise
that matter.”
The
relevant officials had been approached for their responses to the Public
Protector report and its recommendations for remedial action. And Home Affairs
is getting assistance with the chairperson and initiator for the proceedings
from the office of the State Attorney as “some of the people involved are SMS
[senior management service]”.
Later,
Motsoaledi reconfirmed the suspension of five officials over the irregular
residence permits issued to Pastor Shepherd Bushiri and his family. This came
to light after he skipped bail in a R100-million-plus money laundering case and
fled to Malawi.
No permanent
residence permit applications have been processed since March 2020 when the
Covid-19 State of Disaster was first declared. In June 2021, Motsoaledi
gazetted that the processing of applications would resume on 1 January
2022.
Daily
Maverick has reported
that this suspension has left ordinary permanent residence applicants in limbo,
with their daily lives being severely affected..
The
backlog in applications stands at 33,700, according to Home Affairs, and
pressure is on as the Presidency has prioritised a policy and regulatory review
for skilled immigration.
On
Tuesday it emerged that, aside from this regulatory and policy review that
brings together Home Affairs, Labour and Employment, Trade, Industry and
Innovation and Higher Education, Motsoaledi has established a review of permits
issued since 2004.
“We are
looking into everything that is a permit since 2004,” said Motsoaledi, listing
permanent resident permits, “corporate permits, especially in mining”, study
permits, business visas and retirement visas.
This task
team is headed by former Presidency DG Cassius Lubisi and is expected to submit
its report by the end of 2021.
This comes
on the back of a whole host of legislative reviews and potential changes which
ultimately could include a one-stop law to encompass civics like IDs, births,
marriages and death certificates, immigration matters like visas and permanent
residency and refugee affairs.
It looks
increasingly implausible for Parliament to meet the Constitutional Court’s June
2022 deadline for the new electoral law. The average time Parliament takes to
adopt a law is two years.
Closer at
hand is legal advice on how to deal with the ministerial discretion to grant
early naturalisation in exceptional circumstances. The Public Protector’s
remedial action proposed “A descriptive framework for ‘exceptional
circumstances’, which does not encroach on the minister’s discretion, but allows
for a guideline to facilitate a fair and uniform approach”.
Motsoaledi
told MPs the matter was still with the legal unit, and he anticipated that
“when it comes back from the legal unit, it’s just my gut feeling, their advice
will be to amend” that section of the Immigration Act.
All that
is a lot going on.
As part
of the Jacob Zuma administration’s legacy, Home Affairs since 2017 is part of
the security cluster in government, alongside defence, police and state
security. The decision to shift Home Affairs out of the governance Cabinet
cluster was taken in 2016, as a Cabinet statement on 1 March 2017 reaffirmed
Home Affairs’ repositioning “within the security system of the state so that it
contributes to national security…”
In 2017
Home Affairs released a 31-page discussion paper which weaves together national
security, the authority of the state, managing identity and matters economic –
including the department raising its own funds by leveraging, for example,
identity verification services.
On
Tuesday Motsoaledi confirmed Home Affairs as central to the security cluster
during the briefing to MPs on what the department calls counter-corruption and
security, effectively anti-corruption measures that includes working with
police and Hawks to bust syndicates.
“If
anything goes wrong in Home Affairs, the whole country is lost,” the minister
said. “The security services depend on Home Affairs to do their work. The
lawyers depend on Home Affairs to do their work… The university and the schools,
they all depend on Home Affairs.”
In his
briefing to MPs, the minister seemed to let off some steam over the slow pace
of disciplinary proceedings, light penalties, recourse to courts and the
Commission for Conciliation, Mediation and Arbitration (CCMA) – and how public
servants seemed to protect each other in disciplinary proceedings.
Because
in disciplinary proceedings civil servants were “prone to making each other
favours”, Motsoaledi said he welcomed Public Service and Administration putting
together a panel of retired judges for disciplinary hearings. “There’s no
chance of anyone trying to bribe them.”
The CCMA
also seemed to spark frustration; Motsoaledi outlined how the commission had
ordered the reinstatement and back pay of a junior employee who had released
illegal immigrants about to be deported.
Banks
also came in for a ministerial drubbing. They may say they want to fight
corruption, but they make it difficult to get information by citing client
confidentiality, said the minister.
No MPs asked
whether such difficulties were not perhaps a case of Home Affairs not getting
its ducks in order – it was a very conciliatory committee meeting.
Not a
word was said about the Constitutional Court judgment that the electoral law
must allow independent candidates to contest provincial and national elections.
MPs of the home affairs committee were meant to have been briefed in late
August about the ministerial task team looking into such changes and new
legislation, but that meeting was postponed.
It looks
increasingly implausible for Parliament to meet the Constitutional Court’s June
2022 deadline for the new electoral law. The average time Parliament takes to
adopt a law is two years.
On Friday
the parliamentary home affairs committee will be briefed by the Electoral
Commission of South Africa on its readiness for the 2021 local government
elections
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