A streamlined, efficient and well-integrated civil service is the hallmark of a capable state, but South Africa has fallen in a number of areas, says President Cyril Ramaphosa.

Writing in his weekly open letter to the public, Ramaphosa said that the government’s key priority is to build a ‘capable state’.

“If we are to build a more capable state we have to seriously and urgently address the shortcomings in the organisation and the capacity of the public service,” he said.

Ramaphosa said that the view that the public service is bloated is misplaced. “Public servants include officials and administrators, but they also include doctors, nurses, policemen and women and teachers who play an invaluable role in keeping the wheels of our country turning.

“The real issue is whether – given its size, cost and needs of our country – the public service is performing as it should. The experience of our people is that in several areas, the state is falling short of expectations,” he said

The president said that there are some fundamental problems in the public service that the government is now working to fix. These include:

• The ‘political-administrative’ interface, where lines of accountability at the most senior levels of the state have become blurred. Political office bearers such as Ministers, MECs and Mayors often veer towards getting involved in administrative matters that should be the responsibility of professional public servants.

• Public service managers must be given the space, the means and the resources to manage.

• Senior appointments are sometimes made on political considerations rather than expertise. This severely limits the capacity and effective functioning of the state.

• As much as the ranks of our civil service comprise individuals committed to driving government’s programme of action, it has also over the years been associated with patronage. This is manifested through the appointment of people into senior positions based on considerations other than their capability to execute the tasks of the office they are appointed to.

Increased training

Ramaphosa said that the building of ‘a capable, ethical and developmental state’ is now among government’s foremost priorities.

“We want the public service to be oriented towards efficiency, performance and developmental outcomes.” The president said that the civil service should also attract high-calibre and qualified candidates.

“As one of the ways of achieving this, the National Development Plan (NDP) proposes a formal graduate recruitment scheme for the public service. Our people want the best and the brightest in society to serve them.

“The civil service must be seen as a career destination of choice by those who want to make a difference in the life of their country, and not merely as a comfortable 9-to-5 desk job or a place to earn a salary with minimal effort.

“Should some still harbour this view they should take advantage of opportunities to exit the public service to make way for those who are up to the task.”

Wage dispute

Ramaphosa’s comments come as government and public sectors workers gear up for a legal battle around an ongoing wage dispute.

The case focuses on whether the government has to pay almost R4o billion in salary increases to public sector workers. Business Day reports that the government wants the court to declare that doing so will be unlawful.

The increases the state agreed to pay as part of a multi-term wage agreement signed in 2018 were supposed to take effect on 1 April, but the government said it does not have the money to pay.

The issues are expected to come to a head in the coming weeks as workers gear up for the start of strike season in South Africa.

The Congress of South African Trade Unions (Cosatu) says it will begin mobilising for major strike action in the first week of October. The trade federation plans to go on a general strike on 7 October, with the protest focusing on corruption and perceived inaction by the government.

Public wages are set through bargaining with unions and agreements stay in force for three years. The current agreement is in place until March 2021.

However, in February the government asked to review the last leg of a three-year pay agreement because it said it couldn’t afford it.

The coronavirus pandemic has further exacerbated the country’s financial problems with unions and government now set for a showdown.

National Treasury plans on cutting R160 billion from the public sector wage bill over the next three years – a position that has been met with opposition from public sector trade unions

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News24 -  23 September 2020

 

 Former president Kgalema Motlanthe has bemoaned South Africa's treatment of undocumented immigrants.

Motlanthe said George Bizos had no citizenship and remained stateless for 31 years after the South African government denied him citizenship.

He said there is a rush to send the oppressed back to their troubled homes, rendering them stateless beings floating between borders.

Former president Kgalema Motlanthe has bemoaned South Africa's treatment of undocumented immigrants, saying the country largely excludes migrants from society.

While honouring the memory of renowned human rights lawyer, advocate George Bizos SC, the former president alluded to his dissatisfaction with how immigrants were treated by the government and South African society.

Motlanthe was speaking at Bizos' memorial service, organised by the ANC.

Bizos died at the age of 92 from natural causes on 9 September.

He said: South Africa's undocumented migrants, economic refugees and asylum seekers look for hope and opportunity in South Africa. Yet they have been largely excluded from our society. There is a rush to send the oppressed back to their troubled homes, rendering them stateless beings floating between borders.

Motlanthe said South Africa's treatment of immigrants exposed fault lines in society.

"Population movement[s] are in constant motion and the ghost of the past now set the stage for the conflict of the present. Our response to migrants and refugees have exposed enduring and dangerous fault lines in our societies. Migration remains central to politics, economy, society and formation of culture on [the] African continent.

"This raises fundamental questions to our response as a nation, the politics of identity and the ideals of humanity. What started in the hope for a better future, these treacherous journeys to build a new life are often met with racism, segregation, xenophobia, discrimination and further violence. The critical question is, 'Are we treating these migrants differently to how Uncle George was treated?'" the former president said.

For more than a decade, South Africa has wrestled with the identity of being xenophobic, with many foreign nationals killed, attacked or blamed for the ailing economy.

In February, City Press reported that Home Affairs Minister Aaron Motsoaledi said its processes for undocumented immigrants were inadequate and this was exacerbated by budget cuts, shoddy systems and overburdened state machinery.

Last year, home affairs spent close to R42 million to fly undocumented immigrants to their countries.

Motlanthe said South Africa's approach to foreign nationals was denying

the country a bounty of legal minds such as Bizos. "However, given the opportunity to register into education, to apply their minds, skills and creativity, become professionals in their own right, would we not find a bounty of advocates, specialists, contributors and builders such as Uncle George?" he said.

Bizos – famously known as former president Nelson Mandela's treason trial lawyer and confidant – fled Nazi-torn Greece, his country of origin, at the tender age of 13. The family immigrated to South Africa.

Motlanthe said Bizos, who he affectionately called 'Uncle George', had no citizenship and remained stateless for 31 years after the South African government refused him citizenship on the grounds that he was not fit and proper.

Owing to his undiminished and relentless spirit, this challenge did not stop Bizos from being a loyal contributor and builder of South Africa, Motlanthe said.

www.samigtration.com

Face2 Face  -  21, 2020

For most Nigerian businessmen, holding a Nigerian passport raises a red flag and would often require extra documentation for validation. Nigeria is placed 95 on the annual Henley Passport Index which ranks the world’s passport according to the countries they can visit without a prior visa. Ranked 95, Nigerian passport holders can visit two fewer countries now than they could in 2010 without a visa.

Faced with such difficulties, wealthy Nigerians are buying citizenship in Caribbean nations to ease business travel, get elite education for their wards and have a second home for holidays.

St. Lucia, a small island in the Caribbean, has issued 60 passports to Nigerians under its Citizenship Investment Program (CIP). The program grants resident permit or citizenship to foreigners for a fee.

“That pricing model has resonated well with the Nigerian community,” said Nestor Alfred, chief executive of St. Lucia’s CIP office. “A lot of our Nigerian applications consist of families.”

Other Caribbean islands such as Dominica and St. Kitts and Nevis also offer investment migration programs with minimum costs of $100,000 and $150,000 respectively.

Citizenship by investment is estimated to be a $3 billion industry and it is believed that around 40,000 passports have been issued under the program. The program attracts high-net-worth individuals from poor countries or weak passport power.

Tari Best, a Nigerian logistics business owner, told The Economist that a Grenadian passport opens market opportunities for him. “We are treated as equals,” he said.

Henley and Partners, which advises people on how to acquire additional nationality, recently opened a new office in Nigeria. It also has offices in Johannesburg and Cape Town, South Africa.

“The reason we opened in Nigeria is because we saw significant potential in the market with growth in private wealth without global mobility for high net worth individuals,” said Paddy Blewer, public relations director at Henley & Partners. “What you have is a community of wealthy individuals who cannot travel without visas.”

Nigeria and South Africa account for 85 percent of Henley and Partner’s customers with Nigerians having a keen interest in Caribbean countries, the firm said.

An IMF report in 2016 on citizenship investment said: “Offering citizenship in return for investment has been a “win-win” for some small Caribbean states. The substantial inflows of funds from these programs have helped boost employment and growth. Inflows to the public sector alone in St. Kitts and Nevis had grown to nearly 25 percent of GDP as of 2013.”

St Kitts and Nevis is one of the pioneers of the Citizenship by Investment program, which it launched as far back as 1984 to help develop the country. The program has since been implemented by other countries as a means of generating revenue.

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The Criminal Procedure Amendment Bill seeks to **expunge certain criminal records that result from an admission of guilt payment.

  Justice and Correctional Services Minister Ronald Lamola said the     C**ovid-19 pandemic put the brakes on the introduction of the  legislation.*

  * *The bill will be out for public comment next month.*

South Africans who have paid an admission of guilt fine for trivial offences will no longer have to worry about incurring a criminal record. That's if Justice and Correctional Services Minister Ronald Lamola has his way with the Criminal Procedure Amendment Bill that seeks to expunge certain criminal records that result from an admission of guilt payment.

In response to ACDP MP Steve Swart's written parliamentary question on when the government will introduce legislation preventing an admission of guilt fine from incurring a criminal record, Lamola said his department was addressing the matter through the amendment bill.

"The amendment bill has unfortunately been delayed because of Covid-19,"Lamola added.

At present, Section 57 of the Criminal Procedure Act (CPA), provides for the admission of guilt in respect of the offence and for the payment of a stipulated fine without an appearance in court.

Section 57A of the CPA provides for the admission of guilt and the payment of a fine, after appearing in a court, but before the accused has entered a plea.

"In terms of Section 57(6) of the CPA, where a fine was paid, the money, together with the summons or written notice to appear must be forwarded to the clerk of the magistrate's court which has jurisdiction, and the clerk must complete the criminal record book for admissions of guilt, whereupon the accused is deemed to have been convicted and sentenced by the court in respect of the offence in question.

"The immediate practical effect of paying an admission of guilt fine is that the accused is excused from court appearance and upon completion of the formalities as prescribed in Section 57(6), deemed to have been convicted and sentenced by the court in respect of the relevant charge," he said.

Lamola also said not all admission of guilt fines attracted a criminal record. "Section 341 of the CPA provides for the compounding of certain minor offences and for the payment of a fine in respect of minor offences [which] relate to by-laws and minor traffic offences. The payment of a fine in terms of Section 341 of the CPA does not attract a previous conviction.

"In short, the CPA allows magistrates to set an amount on the spot on the admission of guilt."

"It is also worth noting that, since this is a judicial function, our department has had engagements with the chief magistrates to try to get uniformity on such fines. There appears to be uniformity within magisterial clusters, but not necessarily uniformity between clusters," Lamola said.

In May, the National Prosecuting Authority declined to prosecute about 25% of lockdown offences Acting Deputy National Director of Public Prosecutions Rodney de Kock told the Portfolio Committee on Justice and Correctional Services that 25% of the dockets of lockdown offences were not enrolled.

For the majority of the offences, offenders were given a later court date. He said a draft legislative proposal, in the form of the bill, would revise the current admission of guilt fine "as provided for in the CPA".

This will provide for:

  * The payment of fines that do not give rise to a previous conviction;

  * The payment of admission of guilt fines that do give rise to previous convictions;

  * The expungement of certain criminal records that results from  admission of guilt fines;

  * The expungement of criminal records that result from admission of  guilt fines that have been paid in respect of trivial offences  before the enactment of the proposed law;

  * A process to identify and prescribe the offences, subject to parliamentary approval, that will be subject to the payment of fines that do not give rise to a previous conviction; and

  * A bettered review process in respect of the payment of admission of  guilt fines that do give rise to previous convictions.

Lamola said the legislative proposal was at an advanced stage of completion and that a bill would be out for public consultation next month.

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It has taken four years of legal battles – but now, if you were born in South Africa to foreign parents, you can apply for citizenship. It has been an “agonizing journey” for those who consider South Africa to be their only home.

The department of home affairs’ opposition to the court bid by five adults, representing others in a similar situation, for the vindication of their rights, was dealt a death blow by the Constitutional Court last week. The court simply ruled that it would not hear any further argument on the matter.

The department had not filed its papers in time, and it had not given good reason for this. What this means for Mariam Ali, Aden Salih, Kanu Nkololo, Caroline Masuki, Murphy Nganga and any others “similarly situated” is that their previous victory in the Supreme Court of Appeal (SCA) now stands.

In terms of that order, the minister must accept their applications for citizenship and make a decision within 10 days.

The SCA declared that if you were born in South Africa to foreign parents who have not been admitted as permanent residents, you qualify to apply for South African citizenship upon becoming a major – if your birth was registered and if you have lived here all your life, irrespective of the date of your birth.

It also ordered the minister to enact the necessary forms to allow for such applications within one year. Pending this, he must accept applications on affidavit. The application, brought with the assistance of the Legal Resources Centre (LRC), was first set down in the Western Cape High Court.

It was argued that the centre’s clients had all complied with the Citizenship Amendment Act, which came into effect in January 2013. They were all born in South Africa to foreign parents and they had all turned 18, but their applications for citizenship under naturalisation laws were being refused.

In fact, they said, they were being told that such an application form did not even exist.

In that court, the minister argued that the act only applied to children born after January 2013 and could not be applied retrospectively. In fact, his lawyers argued, it did not even apply to children who turned 18 after that date but only to children born after that date.

Any retrospective application would create “an unnecessary flow of applications and burden the already strained resources of the department”. The Western Cape High Court ruling in favour of the centre’s clients was taken on appeal to the SCA by the minister.

There, the department of home affairs changed its argument. Retrospectivity was no longer an issue. Instead, it was argued that those affected should have put the minister on terms to deal with their applications and, if they were refused, they could then launch court proceedings to review and set aside the decisions.

“But this was untenable,” the judges said. “It is difficult to understand on what basis the minister could have made any decision. They were never given an opportunity to apply. They were just turned away.

“The argument is consistent with the ongoing attempts to frustrate and delay their application. It is not in the interests of justice to send them from pillar to post, simply because the minister adopted a supine attitude that the regulations will only be promulgated in due course.”

They were being treated unfairly, the court ruled, dismissing the appeal. Sherylle Dass, LRC regional director in Cape Town, said they had opposed the state’s application for leave to appeal to the Constitutional Court, saying it was an attempt to have a “second bite of the cherry” in spite of conceding the bulk of their submissions in the lower courts.

“Despite these concessions, some 10 months later, the state decided to change its stance. We believed it was an abuse of process. They plainly had no reasonable prospects of success and again it showed a total disregard for taxpayers, who have to foot the bill for these types of vexatious proceedings.”

She said that during those 10 months, when there was no indication of any appeal, the clients had submitted their citizenship applications but they were not dealt with.

“Following the dismissal of their appeal, we will now be demanding the adjudication of those citizenship applications and we will approach the courts if necessary, should a decision not be made within 10 days, in accordance with the SCA ruling.

“Our clients have had to endure a long and painful journey to obtain citizenship, with some of them all but giving up hope of being finally accepted by a country they have grown to love – the only country they have called home.

“A large part of this agonizing journey could have been avoided if decision makers within the department of home affairs exercised reason and caution by not arbitrarily abusing the court processes to delay and frustrate the exercise of the clear and unequivocal right of these applicants.

 

 

Minister of Home Affairs v Miriam Ali and Others [2018] ZASCA 169 (SCA) (Case no. 1289/17, Supreme Court of Appeal – Court Order Date: 30 November 2018)

2.1 The matter pertains to the interpretation of section 4(3) of the South African Citizenship Act 88 of 1995 (amendment that came into effect on 1 January 2013) in which the main issue was whether or not the section applies with retrospective effect and further is the respondents (on appeal) satisfy the requirements of citizenship by naturalisation. The question was whether in the absence of Regulations, the High Court was correct in directing the Minister to accept applications on affidavits as the order encroached upon the doctrine of separation of powers.

 

2.2 The Supreme Court of Appeal issued the order that:

 

“The Minister shall –

3.1 Within one year of the date of this order make regulations in terms of s 23(a) of the South African Citizenship Act 88 of 1995 (the Act) in respect of applications for citizenship by naturalisation in terms of s 4(3) of the Act;

3.2 Pending the promulgation of the regulation in 3.1 above, accept applications in terms of s 4(3) South African Citizenship Act 88 of 1995, on affidavit.”.

Why has his department not fully complied with the court order?

2.3 The DHA was advised to approach the Constitutional Court (“CC”) as the Order of the SCA had the effect of encroaching upon the subordinate legislative powers of the Minister. The CC declined to hear the matter largely because the DHA delayed in launching the appeal proceedings.

What steps have been taken to fully comply with the order?

2.3 The draft Amendment Regulations to deal with the procedure and requirements for making an application have been prepared and finalised. However, the draft Amendment Regulations must be published for public comments before they are promulgated and due to the National State of Disaster, especially the period between 26 March 2020 and early July 2020, a decision taken was that the DHA may not be able to obtain the adequate public comments due to lockdown Regulations. The draft Amendment Regulations ha been gazetted for public comments.

2.4 The applicants have been issued with certificates for citizenship by naturalization.

By what date will his department fully comply with the order?

 The DHA will fully comply by 15 September 2020.

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