Cooperative Governance and Traditional Affairs (Cogta) minister Nkosazana Dlamini-Zuma has extended the national state of disaster by another month.

Government declared a national state of disaster under Section 27(1) and Section 27(2) of the Disaster Management Act on 15 March 2020 – in response to the coronavirus pandemic.

While the state of disaster was originally set to lapse on 15 June, the act provides that it can be extended by the Cogta minister by notice in the gazette for one month at a time before it lapses.

In a directive published on Wednesday (14 October), Dlamini-Zuma said that the extension takes into account the need to continue augmenting the existing legislation and contingency arrangements undertaken by organs of state to address the impact of the Covid-19 disaster.

The state of disaster is now set to lapse on 15 November.

Push-back

The extended national state of disaster has faced increased scrutiny from business groups and political parties who want the prolonged coronavirus lockdown to end.

Earlier this week, the Democratic Alliance (DA) said that the state of disaster undermines democracy, oversight, and policy certainty, and entrenches what it called “bad science”, promoting a climate of fear in the country.

“Extending (the state of disaster) will be no more than a continuation of the government’s attempt to use bad science to promote a climate of fear that gives false legitimacy to the ANC’s growing authoritarianism,” it said.

The party said that under South Africa’s level 1 lockdown rules, harm and damage is still being done to certain sectors of the economy – particularly tourism and the alcohol industry. Lockdown also continues to interrupt education, with no benefits to society, it said.

Shifting power

The state of disaster is what gives power and effect to all current lockdown regulations, which are all being directed under the Disaster Management Act. By terminating the state of disaster, all current regulations – such as curfew and restrictions on gatherings and movement – would also be ended.

However, a late-night submission by the Department of Health on Tuesday (13 October) has made a move to shift some of these powers over to the Health Act, giving the minister similar capacity to implement these restrictions.

These amendments to the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions would allow health minister Zweli Mkhize to impose “necessary restrictions, relating to such notifiable medical condition” by the mere publication of a Government Gazette.

Restrictions may include:

• Complete or partial closing of any public place including a place used for public receptions, tourist activities or events or public recreation, amusement or entertainment activities or events;
• Prohibition of movements between districts and provinces of people;
• Prohibitions of the use of ports of entry;
• Imposing curfews for people to remain indoors; and
• Closing of educational institutions.

The DA said that an argument can be made that regulations need to be improved in this area, going the route of handing power over to cabinet with little to no oversight, and giving them freedom to infringe rights on any arbitrary whim they have, is not the way to go.

“During the past seven months we have seen the South African government tighten its grip on citizens more with some irrational and unnecessary limitations of their rights. This was done arbitrarily through a Covid Command Council that was accountable to no one else besides the executive.

“We have seen Parliament sidelined and relegated to a mere spectator all while massive decisions pertaining to the rights of citizens were taken. This was done in aid of our fight against Covid-19 – a legitimate global health disaster,” it said.

“We cannot allow this state of affairs to be normalized as though we do not live in a Constitutional democracy.

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One would think that living in Africa as an expat would be cheaper than living in Europe or America. Not necessarily so.

Intuitively, one would think that living in Africa as an expat would be cheaper than living in Europe or America. Not necessarily so! Calculation of expat pay has many nuances and considerations, part of which is the cost of living differences, as well as the hardship relativities between countries.

Much of Africa has relatively low prices for local goods and services. Just go to the markets in the cities and towns. Local traders offer great bargains, especially for locally grown and produced items. The majority of people live in modest homes, that are relatively cheap in the global housing market. Schools and healthcare is mostly government provided. The cost of living, for local people in Africa, is relatively cheap.

Africa also has some of the poorest and least developed countries in the world. Infrastructure tends to be sparse and poorly maintained. Western luxury goods and services are mostly imported, and only the elite can afford to buy them. For most local people in Africa, the cost of living tends to be relatively low.

Expatriates (expat) are people who voluntarily live outside their own country to take up a job opportunity that requires skills and experience that cannot be resourced locally. They therefore tend to be highly skilled and experienced professionals who are often highly paid in their home country. An expatriate is different to an immigrant in that they intend returning to their home country when the assignment has been completed and do not therefore consider themselves to be local in their host country.

To persuade an expat to take up an international assignment in a country that may be regarded as less attractive than their home country, they need to be offered a better or at the very least a similar, quality of lifestyle, safety and security. This applies to the house they live in, the car they drive, the shops they frequent, the restaurants they dine at and the schools that their children attend. In Africa expatriates pay a premium for “international” brands ideally from their home country, and they tend to make use of premium service providers such as up-market medical practices, international schools, and most prefer to live in exclusive, secure accommodation in order to maintain the quality of life to which they are accustomed back home.

Many of the goods and services required by expatriates must be imported as they are not available locally. The cost of importing and transporting the international standard of goods that expatriates expect to purchase in the cities in this region makes it extremely expensive to maintain the lifestyle that they are used to. For most expatriates in Africa, the cost of living tends to be relatively high.

The cost of living in Africa is both low for local people and high for expatriates. It depends what is measured – local goods and services or imported goods and services – this determines the Cost of Living Index (COLI).

A cost of living comparison involves using a Cost of Living Index (COLI) as a numerical way of comparing the cost of living at an identified standard of living, either over time, or by comparing the cost of living in different geographical locations. When comparing the cost of living between different locations the difference in the cost of living is expressed as an index by dividing the cost of living in Location A by the cost of living in Location B.

The cost of living index indicates the difference in the cost of living between the two locations. In the below graphic, the COLI for the most expensive cities in Africa is the result of dividing each location’s cost of living by the cost of living in New York NY (USA) using 13 basket groups. New York therefore has a COLI of 100 for global comparison purposes.

The graphic illustrates that all African cities’ locals have a lower cost of living than New York locals but that expats in African cities would probably have a higher cost of living as they would import the goods and services they are accustomed to from a first world country. This is why expatriate pay is such a complex subject.  Add to that the consideration of hardship differentials and the uniqueness of every home and host location – certainly not a simple calculation if you are trying to retain these expatriate skills. www.samigration.com”

The Constitutional Court said two subsections of the South African Citizenship Amendment Act could be read so that those born to a South African parent, in or outside SA, could acquire South African citizenship.

The Constitutional Court on Wednesday ordered the department of home affairs to register the births of four people that it declared were South African citizens, and that they be issued with IDs.

However, the court refused to confirm orders of the high court in Pretoria, which had declared that two subsections of the South African Citizenship Amendment Act of 2010 were constitutionally invalid.

The Constitutional Court reasoned that the 2010 act could be read in a constitutionally compliant manner so that those born to a South African parent, in or outside SA, acquire or retain South African citizenship.

Five people who were born in various countries in Africa from 1969 to 2006 brought an application before the high court in 2016 in which they sought an order that they be declared South African citizens.

The department had failed to recognise their citizenship but did not provide adequate reasons for this denial.

The five each provided evidence before the high court that one of their parents was a South African citizen at the time of their birth. The high court accepted the applicants’ submissions, with the exception of those of one applicant.

Apart from an application to be declared South African citizens, the five also sought an order declaring two sections of the 2010 Amendment Act to be unconstitutional.

The department failed to respond to the application, resulting in the matter being set for hearing in May last year on an unopposed roll.

The court granted four of the five people the relief they sought; that they be declared South African citizens, that the department register their births, enter their details into the population register, assign them South African identity numbers and issue them South African identity documents and/or identity cards as well as birth certificates.

In addition to this, the high court declared the two sections unconstitutional.

According to the constitution, the Constitutional Court must confirm any order of invalidity made by the high court, before that order has any force.

In a unanimous judgment written by justice Sisi Khampepe, the court said the high court provided sparse reasons for its findings of constitutional invalidity.

“This seems to have been a consequence of the (minister of home affairs and the home affairs department's) dereliction of their responsibility during the proceedings in the high court.

“Regardless, it is still incumbent on a court, operating within our constitutional dispensation, which embeds the separation of powers principle, to provide full reasons before declaring legislation to be invalid,” Khampepe said.

Khampepe said this was unfortunate and hoped that failure to provide reasons when legislation was declared invalid did not become a regular practice by lower courts. She said an interpretation of the 2010 act that only operates in favour of those born after its commencement is the one which is at variance with the constitution.

“It is this narrow, prospective-only interpretation that strips citizenship rights from a great number of people in the most unfair and unjustified manner.

“It is that interpretation which would render the operation of the 2010 amendment retrospective by wiping out citizenship that existed under the previous acts without replacing it with another form of citizenship, and by taking away citizenship rights without retaining those previously-acquired rights,” Khampepe said.

Khampepe ordered the department to pay the costs of the four.

A number of tax and financial groups have issued warnings over a new draft bill which will introduce changes for South Africans looking to take their retirement funds out of the country.

Under the current system, members of preservation funds and retirement annuity funds may withdraw from such funds if they formally emigrate from South Africa for exchange control purposes and their emigration is approved by the South African Reserve Bank

However, changes in the draft Taxation Laws Amendment Bill (TLAB) will effectively phase out the concept of emigration for exchange control purposes.

The amendment will mean that South Africans emigrating from the country will only be able to make a withdrawal when a retirement fund member has ceased to be an tax resident and has remained so for a consecutive period of at least three years.

The change has come under fire as the TLAB was the subject of public hearings in parliament on Wednesday (7 October).

Impractical and draconian

“The proposed requirement that an individual be non-resident for a period of three years prior to being entitled to access retirement funds is impractical, draconian and will present administrative difficulties for both SARS and taxpayers,” said professional services firm PwC in its submission.

The firm said that where an individual permanently departs from South Africa, the proposed rules could – depending on the particular circumstances of that individual – result in considerable financial hardship for an extended period of time before retirement funds are available.

“Under the current rules, a person who emigrates is entitled to withdraw their retirement funds immediately. Under the proposed rules, they would now need to wait for at least three years before being able to do so,” the firm said.

“Retirement funds are frequently required by emigrants to make emigration financially viable and the proposed rules will severely impact this.”

As an alternative, PwC recommended that the proposed three-year residence rule should be replaced with another ‘more practical rule’.

“For example, it could be linked to a person ceasing to be ordinarily resident in South Africa – as opposed to necessarily not tax resident,” it said.

The opposite of modern

In its submission,  Tax Consulting SA said that the amendment is at ‘cross purposes’ to its intended goal of a more ‘modern’ exchange control system.

It highlighted that under the new system , retirement benefits will effectively be locked in and will be inaccessible to the individual in question for a minimum period of three years, even after they have left South Africa permanently.

This restriction will only be lifted once the taxpayer in question is able to prove they have been non-resident for an uninterrupted period of at least three years.

“By any measure, this new test is the opposite of modernisation and a step back towards locking in retirement funds after becoming non-resident for tax and exchange control purposes,” it said.

“Furthermore, if the test is to be based on residency, it is not clear why withdrawal is subject to a period of three full years. If the taxpayer has ceased residency, why impose a punitive lock-in of this extent?,” the firm asked.

Tax Consulting SA that the proposed amendment will do away with a well-established process that allows emigrants to freely expatriate their retirement benefits with one that is far more restrictive and less transparent.

www.samigration.com

Italian teenager Sara Passarini has lived in Australia for half of her life, but it could be 2062 before she finds out if she will be accepted as a permanent resident here.

By that time, Ms Passarini, 18, will be in her 60s. Her mother, Helen Johnson, who is also waiting on the outcome of the pair's visa application, will be more than 100 years old.

When Ms Johnson applied for a remaining relative visa for her and her daughter in 2012, the processing time was about 10 years.

Since then, the waiting time has ballooned out to five times as long.

The Department of Home Affairs has confirmed to nine.com.au the current processing time for remaining relative visas is about 50 years.

Fleeing a volatile and dangerous family situation, Ms Passarini and her mother moved from Milan to Perth when she was nine-years-old.

"It happened very suddenly. My mum told me we were going about an hour before we left for the airport and I had to leave everything I had known behind," Ms Passarini told nine.com.au.

The pair joined Ms Johnson's mother and three siblings, as well as seven nieces and nephews.

Once in Australia, Ms Johnson enrolled to study and swapped from a visitor to a student visa, with the intention of qualifying for a permanent skilled visa once her studies were complete.

However, Ms Johnson's deteriorating mental health meant she had to stop studying.

"This meant my mum had to apply for a different visa, and the only one left we were eligible for was the remaining relative visa," Ms Passarini said.

The pair has lived in Australia on bridging visas ever since.

Ms Passarini finished high school last year and now hopes to go to university, but to do so would cost her about $90,000 in international student fees. (Supplied: Sara Passarini)

Despite not being a permanent resident, Ms Passarini, who finished Year 12 last year at High School, said she adapted to life in Perth quickly and soon came to call Australia home.

"Australia is definitely my home. I speak English now better than I speak Italian," she said.

"I've done the majority of my schooling here. I've got all of my friends here. I don't see myself living anywhere else."

Applicants for the remaining relative visa are eligible for Medicare and can in some cases work, however usually with strict limitations.

The family had endured severe financial hardship over the years because of their visa status, Ms Passarini said.

Ms Passarini is classed as an international student and the family needed to pay high fees for her to attend her public primary school and high school.

"We've had a lot of financial struggles. It was about $63,000 for me to get through school here. My family in Italy helped because I had to finish high school, I had to get that qualification," she said.

Ms Passarini is now working two casual jobs as a delivery driver, but said she desperately hoped to go to university next year.

However, as an international student, the fees for a degree would cost about $90,000.

"I want to go to university and have a career. But I will have to pay triple the amount of university fees as my friends, and I'll have to pay it upfront because I'm not entitled to a HECS loan," she said.

Ms Passarini said she felt trapped by her visa situation.

"I feel like I'm being pushed into a mould that isn't who I am, all because of decisions adults made for me when I was a kid," she said.

"But I don't hold any grudges I just want to be able to study and be free to make a future for myself."

Ms Passarini has started a petition appealing for her to be granted permanent residency. (Supplied: Sara Passarini)

Ms Passarini has started an online petition calling on Home Affairs to grant her permanent residency.

"To have to wait for 50 years is just not fair. They may as well not offer the visa at all, it just gives people false hope. I think something definitely needs to change, not just for me but for others in my situation," she said.

A spokesperson for the Department of Home Affairs declined to comment on Ms Passarini's case, saying: "The Department does not comment on individual cases."

Why is the wait for a remaining relative visa so long?

The remaining relative visa belongs to the "other family visa" category, along with the aged dependent relative visas, which also have a 50-year waiting period.

Under the Department of Home Affairs' migration planning levels for the 2019-2020 financial year, other family visas were capped at 500 places, down from 900 the year before.

The low numbers of visas granted in the category look unlikely to change for the current financial year.

While last weeks's budget announced a large increase in the number of partner visas accommodated in this year's migration planning levels, once they are taken out of the equation, the number of visas in the family stream appear to have decreased.

The Department of Home Affairs declined to answer nine.com.au's questions about how many people are currently waiting for a remaining relative visa application to be processed.

However, a spokesperson for the department said: "The number of applications received each year for Remaining Relative visas outstrip the number of places available for each migration program year."

Sanjay Deshwal has been a migration agent based in Sydney since 1996.

Mr Deshwal said in the past 25 years he had seen the waiting times increase exponentially for remaining relative visas.

"I have a case where we put in a remaining relative visa application in 2012. At that time it was showing eight to 10 years wait before the visa would be granted," he said.

The case involved a Sri Lankan woman whose mother, brother and sister were all Australian citizens, he said.

"She was left in Sri Lanka with one 25-year-old son. Unfortunately, her son died in a car accident last year. She is the only one there and now it is showing up to 50 years wait," Mr Deshwal said.

"So it is very cruel. It's cruel for people to wait for so long."

Mr Deshwal said he had noticed that over the years the number of visas allocated to the other family visa category under the government's planning levels had reduced while some categories, which charged higher application fees, had grown.

For example, the number of places for the contributory parent visa, which comes with a $50,000 application fee, had increased, he said.

"The government seems to be focussed on getting money. On one side, we cannot blame the government because the economic situation is so hard, and a large number of people want to come, but definitely it puts a lot of pressure on people waiting for years and years."

 

www.samigration.com