The Department of Home Affairs is now giving appointments for refugees to apply for asylum only in 2025, even though they are required to present themselves at a Refugee Reception Office within five days of their arrival in the country. 

The legal team for a Somali family that has been harassed by law enforcement, refused medical assistance and given a date to apply for asylum 18 months down the line, has called on the United Nations High Commissioner for Refugees to intervene and support their court case against the Department of Home Affairs.

“We are legal ghosts,” Abdullahi Osman Shale said in an affidavit explaining the suffering inflicted on his family by the Department of Home Affairs.

The department is now giving appointments for refugees to apply for asylum only in 2025 �` even though they are required to present themselves at a Refugee Reception Office within five days of their arrival in the country.

Osman said his wife, Fatuma Salah, and his brother, Absame Ahmed Osman Shale, had suffered abuse since arriving in South Africa. 

The family came to South Africa after fleeing violent clashes in their hometown in wartorn Somalia.

Attorney Siseko Jali, who acted for the family, said he had more than 1,000 clients who are all desperate for an asylum application date.

“We are just going around in circles,” he said.

“As soon as we get one appointment system implemented by Home Affairs declared as unconstitutional they implement one that was previously interdicted by the court. We really need the United Nations High Commissioner for Refugees to step in here and help,” Jali said.

Refugees left vulnerable

The legal team for the family, led by advocate Lilla Crouse SC, obtained an agreement from Home Affairs that the family, who arrived in Gqeberha in December 2022, would be given an opportunity to apply for asylum on Friday, 21 July. However, this was refused and they have been allowed to stay in SA until their appeal is heard.

Osman said they were not only bringing the court case in their own interest, but also on behalf of many other asylum seekers who are “sitting in the same untenable circumstances as ourselves and who are unable or unaware of their right to approach [the court].

“These similarly situated persons are vulnerable as they more often than not lack means, support systems, family, friends or acquaintances in South Africa.”

He said many of his fellow refugees had a very “limited understanding of the Republic’s legal system. As a result of a lack of resources, they would rarely have access to competent lawyers and know which non-governmental organisations would be willing to assist them.

“This makes them more vulnerable and they are often propositioned for bribes, robbing them of what may be left with or what they brought with them.”

Osman said that being unable to submit an application for asylum made it impossible for him to find a job, access health services or open a bank account as he did not have any of the required documentation.

“We, like nearly all asylum seekers, are poor and desperately need to earn an income to sustain ourselves.”

He said they were not seeking an order that they must be given asylum, but merely that they be given an opportunity to submit their applications and be issued with papers that will legalise their stay while they wait for the outcome of their applications.

The Refugee Act states that an application for asylum must be made within five days after arrival in South Africa. But in practice, Osman said they cannot go to the Refugee Reception Office but “are forced to wait for more than a year-and-a-half” just for the opportunity to present themselves and ask for asylum.

“Access to a fair and efficient refugee status determination procedure is an essential safeguard to protect refugees and asylum seekers from abuse in South Africa. State parties to the Refugee Convention are required to provide access to such a procedure. I am advised that South Africa is a state party to the Refugee Convention and therefore has an obligation to provide a fair and efficient refugee status determination procedure,” he said.

Osman said the Department of Home Affairs, “through their inordinate delays in providing us access to the South African refugee system, have in fact violated several of our rights enshrined and protected in the Bill of Rights in the Constitution of the Republic”.

At the time of their application, asylum seekers who could access the Refugee Reception Office in Gqeberha were given appointments for April 2025.

“The current system for asylum seekers in Gqeberha, and possibly elsewhere in the Republic, is unable to cope with the number of persons applying and is thus fatally flawed and consequently unlawful. 

“Vulnerable asylum seekers, like us, must now wait for an unreasonable period before their applications for asylum seeker permits are considered. In the meantime, asylum seekers have nowhere else to go as they cannot return to their country of origin and are forced to remain in the Republic unlawfully and illegally,” he said.

In the second part of his court application, to be heard at a later date, Osman is seeking an order to have the system dealing with asylum seekers declared unlawful and unconstitutional. 

In this part of the application, the court will also be asked to order the department to compile a report on the current state of the asylum seeker system for scrutiny by a judge and to devise a lawful and constitutional system.

Salvaging a life from the ashes

Osman was born in Somalia on 1 January 1990. He came to South Africa in 2022 to apply for asylum and he, his wife and his brother arrived in the country on 24 October 2022.

“Throughout the years, millions of Somalian civilians have been internally displaced, and millions have fled the civil war and have sought refuge in safer countries.

“For many years, my family moved from one place to another within Somalia to find safety. Safety in Somalia is illusory because in every city the armed groups routinely carry out indiscriminate and targeted bombings of civilians. We could nowhere find lasting safety.

“During 2022, our last place of temporary residence was bombed during a fight that broke out in Mogadishu between al-Shabaab and Somali government forces. All our belongings and supplies were burnt to ashes.

“In the aftermath of the bombings and whilst we were trying to salvage from the ashes anything that may assist us in our survival, the al-Shabaab rebel soldiers returned to the community and began to forcibly take all male survivors and forced them to join the armed group. While this was happening, we went into hiding.

“There was no longer any place in Somalia that could provide us with safety as the civil war was beginning to intensify again. Due to this fear, we made arrangements and fled to South Africa to seek refugee status,” he said.

Osman added that when they arrived in South Africa, they received help from members of the Somali Association to trace his uncle who had fled to South Africa 15 years previously. 

“He invited us to Gqeberha where we would live with him,” he said.

“When we arrived in the Republic, our uncle advised that we needed to apply for refugee status at the Gqeberha Refugee Reception Office. However, when we reported to the said office, we were advised that asylum seekers who wish to lodge their asylum applications for the first time are required to send an email and request an appointment to apply for asylum.”

They asked a lawyer to help, but the first appointment they could get was 18 months away, in 2024.

“These appointments are a year-and-a-half in the future. This means 18 months in which we are undocumented and deemed to be illegal in South Africa, at a time when Somalia is every day in the news for yet further violent fighting. It seems that the political situation is getting worse. We cannot go back and we are illegally here.

“Our situation has worsened because [my wife] is now six months pregnant and requires constant medical attention as a result of her pregnancy. Our family support system is unable to financially support us as well as to take care of the prenatal medical needs of [my wife] for the next year-and-a-half wherein we are unable to access even the most basic of constitutionally guaranteed rights.”

He said they were afraid of being arrested because they were deemed to be illegally in the country. They were denied access to public hospitals and were unable to find work or open bank accounts. 

When their legal team asked why the appointments were so far in the future, the department responded that the Gqeberha Refugee Reception Office would remain under pressure until the Cape Town office was reopened.

“We have been legal ghosts in the Republic from the date that we came in and we will remain as such for the next 18 months,” Osman said. “We have to live a life on the run.”

He said they live in fear of the police, who often asked for bribes in return for not arresting them.

They were also refused access to state hospitals and Osman had to borrow money to seek care in the private sector for his pregnant wife.

The Department of Home Affairs has not yet filed papers responding to Osman’s legal action, but agreed to provide him with an immediate hearing for asylum.

The court has asked for the department to provide an affidavit by 31 August with an exact description of the current system to provide permits for asylum seekers, including details on when asylum seekers are given appointments and how many are waiting.

Jali said they would see what information was provided by the Department of Home Affairs and then plan on how to proceed with the court case

The government is blocking the potential that foreign workers can bring to South Africa’s stagnant economy. 

South Africa’s work visa regime is laborious, lengthy and inefficient. The process deters foreign investment, widens the skills gap and throttles productivity, economic growth and development.

Between 2015 and 2021, only 16,097 critical skilled-worker permits were approved by the Department of Home Affairs. At an average of just more than 2,200 a year, that amounts to a rejection rate of 52%, for an economy with a sizeable skills deficit. The business visa rejection rate over the same period is even higher, at 68%.

Some German companies have decided to sell their South African subsidiaries since they cannot get executive work permits. And despite the absence of skilled workers, technicians can’t get work visas, contributing to the construction and maintenance problems at the country’s electricity and transport parastatals, Eskom and Transnet. 

The home affairs and labour departments �` the two key players in this bureaucratic obfuscation �` seem impervious to how much they undermine the Presidency’s and other government efforts to attract foreign direct investment and grow the economy. Since the Cabinet’s 2020 decision to streamline the work visa process, there has been little indication of any movement.

Getting a South African work permit is laden with bureaucratic hurdles. Permits appear only to be granted through the critical skills process, which is based on the Department of Labour’s International/Cross-Border Labour Migration checklist. 

Home Affairs’s critical skills list of 140 occupations is incomplete �` just as any effort to document every skills deficit would be �` given the pace of growing economic complexity in a world of artificial intelligence and renewable energy. Regional organisations such as the Institute for Security Studies (ISS) and most academic institutions value a diverse staffing composition, which isn’t allowed under the current system.

Reasons for rejections are spurious, often based on ‘missing documents’ that were in fact supplied.

One of the 22 critical skills visa requirements is that the employer must prove that no citizen or permanent resident with the required qualifications, skills and experience is domestically available. The high cost of advertising and other requirements makes this an expensive exercise. 

For instance, a police clearance certificate has to be obtained in an applicant’s country of origin. Applying in South Africa is possible but costly. For a critical skills visa, a person’s qualification must be verified by the South African Qualifications Authority, which can take more than six months. Applicants must first register with a professional body in South Africa, which, outside of fields like law, engineering and medicine, is difficult if not impossible. 

Securing an application appointment (usually through VFS Global) can take up to three months. A prospective ISS employee recently arrived at the appointed time but was turned away because Home Affairs’s backlog was too great. Although critical skills applications are expected to take eight weeks, ISS sometimes waits a year or more. 

Even after a long waiting period there is no guarantee of success. Reasons for rejections are spurious, often based on “missing documents” that were in fact supplied. Home Affairs rejects many visas based on a “negative recommendation from the Department of Labour”. Applicants then have 10 days to appeal, but the only real recourse is an expensive legal challenge.

One prospective ISS employee could not travel for more than a year while his passport was being held as part of his skilled work permit application. Those applying through VFS could, in theory, get their passports back by providing a written motivation. 

Also, the certification of documents by a commissioner of oaths is valid for only three months. Those whose applications are not processed within this period are sometimes denied visas for expired documents or called to recertify and resubmit �` if they are lucky. 

Even short-term visitor and business visas are a problem. African and international organisations we work with now refrain from hosting events or meetings in South Africa, meaning the country loses revenue from the lucrative event and conference business. 

Online applications should be the norm, but the country’s IT system upgrade has been several years in the works.

Another major problem is that spouses of critical skills visa holders are not allowed to work in South Africa, requiring them to put their careers on hold. The only alternative for a spouse is to apply for permanent residence, which can take at least five years. 

Matter of urgency

A 2018 study by the Organization for Economic Cooperation and Development and the International Labour Organization found that immigrant workers may increase South Africa’s gross domestic product per capita by 5%. Similarly, a 2018 World Bank report found that immigrants in South Africa positively impacted employment and wages for locals, generating about two jobs for every migrant. 

South Africa must urgently reduce the time frames and simplify the procedures for obtaining work visas. Online applications should be the norm, but the country’s IT system upgrade has been several years in the works. Immigration regulations should also allow foreign spouses with dependent (spouse) visas to work in South Africa.

In 2022, former home affairs director-general Mavuso Msimang recommended that the 22 requirements for skilled work permits be reduced to eight, with a lower compliance threshold and a two-week time frame. 

Several years before, the 2017 White Paper on International Migration for South Africa stated that the “attraction and retention of skilled international migrants and business persons who contribute positively to the economy” is one of seven key outcomes. It confirms that the country can’t attract and retain sought-after international skilled and business persons, who play a role in promoting economic growth.

Neither Home Affairs Minister Aaron Motsoaledi nor Minister of Employment and Labour Thulas Nxesi appear willing to move forward. Instead, they have adopted a punitive approach to foreigners, skilled and unskilled alike. It is time for an upgrade

The National Treasury has reportedly written several proposals to reduce the number of government departments in South Africa.

According to the Sunday Times, a secret meeting was held in Stellenbosch, where several key figures discussed these proposals.

These include President Cyril Ramaphosa, finance minister Enoch Godongwana, and several top officials from National Treasury and the Reserve Bank.

If accepted, these proposals would reportedly save the government about R17 billion in spending but at the cost of lost jobs.

Examples of how the proposed cuts would work include:

• Closing the Department of Sports, Arts, and Culture and incorporating its duties into the Department of Basic Education.

• Closing the Department of Public Works and Infrastructure and requiring departments to manage their own buildings and assets.

• Merging the Department of Tourism with the Department of Trade, Industry, and Competition.

• Closing the Department of Women, Youth, and Persons with Disabilities and turning it into a division in the Presidency or the Department of Social Development.

• Closing the Department of Planning, Monitoring, and Evaluation and turning it into a division in the Presidency or the Department of Public Service and Administration.

Expectations are that other members of the ANC and the government would push back against a decision to cut the number of government departments.

South Africa’s bloated cabinet

While any move to cut the number of government departments would be met with resistance, it is clear that South Africa is wasting money on a bloated cabinet and each ministry’s linked government department.

An analysis by Daily Investor has shown that President Ramaphosa’s newest cabinet is larger than those of much bigger and wealthier countries including the United States, Germany, Japan, and the United Kingdom.

In March 2023, Ramaphosa added two new ministers to his cabinet the Minister for Electricity and the Minister for Planning, Monitoring, and Evaluation.

This took the total number to 30 ministries, which is significantly more than many of the world’s most dominant economies.

Examples include:

• Germany, 15 ministers

• Japan, 19 ministers

• United Kingdom, 22 ministers

• USA, 24 ministers

Leon Schreiber, the DA’s shadow minister for public service and administration, has argued that the bloated cabinet has cost taxpayers billions of rands.

He has also promoted the DA’s plan for the government, set out in its Vision 2019 document, which includes a cabinet of only 15 ministries.

According to Schreiber, this could save nearly R5 billion per year

AI data is polluted by a set of myths from the age of “enlightenment”, including biases that lead to discrimination based on gender and sexual identity. 

• Bad data does not only produce bad outcomes. It can also help to suppress sections of society, for instance vulnerable women and minorities.

• Algorithms generally need to be exposed to data often taken from the internet in order to improve at whatever they do, such as screening job applications, or underwriting mortgages.

• But the training data often contains many of the biases that exist in the real world. 

Bad data does not only produce bad outcomes. It can also help to suppress sections of society, for instance vulnerable women and minorities.

This is the argument of my new book on the relationship between various forms of racism and sexism and artificial intelligence (AI).

The problem is acute. Algorithms generally need to be exposed to data  often taken from the internet in order to improve at whatever they do, such as screening job applications, or underwriting mortgages. 

But the training data often contains many of the biases that exist in the real world. For example, algorithms could learn that most people in a particular job role are male and therefore favour men in job applications.

Our data is polluted by a set of myths from the age of “enlightenment”, including biases that lead to discrimination based on gender and sexual identity.

Judging from the history in societies where racism has played a role in establishing the social and political order, extending privileges to white males in Europe, North America and Australia, for instance  is simple science to assume that residues of racist discrimination feed into our technology.

In my research for the book, I have documented some prominent examples. Face recognition software more commonly misidentified black and Asian minorities, leading to false arrests in the US and elsewhere.

How AI is filtering millions of qualified candidates out of the workforce

Software used in the criminal justice system has predicted that black offenders would have higher recidivism rates than they did. There have been false healthcare decisions.

A study found that of the black and white patients assigned the same health risk score by an algorithm used in US health management, the black patients were often sicker than their white counterparts. 

This reduced the number of black patients identified for extra care by more than half. 

Because less money was spent on black patients who have the same level of need as white ones, the algorithm falsely concluded that black patients were healthier than equally sick white patients. 

Denial of mortgages for minority populations is facilitated by biased data sets. The list goes on. 

Machines don’t lie?

Such oppressive algorithms intrude on almost every area of our lives. AI is making matters worse, as it is sold to us as essentially unbiased. 

We are told that machines don’t lie. Therefore, the logic goes, no one is to blame. 

This pseudo-objectiveness is central to the AI-hype created by the Silicon Valley tech giants. 

It is easily discernible from the speeches of Elon Musk, Mark Zuckerberg and Bill Gates, even if now and then they warn us about the projects that they themselves are responsible for.

There are various unaddressed legal and ethical issues at stake. 

Who is accountable for the mistakes? Could someone claim compensation for an algorithm denying them parole based on their ethnic background in the same way that one might for a toaster that exploded in a kitchen? 

The opaque nature of AI technology poses serious challenges to legal systems which have been built around individual or human accountability. 

On a more fundamental level, basic human rights are threatened, as legal accountability is blurred by the maze of technology placed between perpetrators and the various forms of discrimination that can be conveniently blamed on the machine.

Racism has always been a systematic strategy to order society. It builds, legitimises and enforces hierarchies between the haves and have nots.

Ethical and legal vacuum

In such a world, where it’s difficult to disentangle truth and reality from untruth, our privacy needs to be legally protected. 

The right to privacy and the concomitant ownership of our virtual and real-life data needs to be codified as a human right, not least in order to harvest the real opportunities that good AI harbours for human security.

But as it stands, the innovators are far ahead of us. Technology has outpaced legislation.

The ethical and legal vacuum thus created is readily exploited by criminals, as this brave new AI world is largely anarchic.

Blindfolded by the mistakes of the past, we have entered a wild west without any sheriffs to police the violence of the digital world that’s enveloping our everyday lives. 

The tragedies are already happening on a daily basis.

It is time to counter the ethical, political and social costs with a concerted social movement in support of legislation. The first step is to educate ourselves about what is happening right now, as our lives will never be the same. 

It is our responsibility to plan the course of action for this new AI future. Only in this way can a good use of AI be codified in local, national and global institutions

The National Treasury has reported told president Cyril Ramaphosa that South Africa will have to hike value-added tax (VAT) by 1% or 2% if it wants to keep the R350 Social Relief of Distress (SRD) grant going.

According to the Sunday Times, this message was among many delivered at a top-level meeting called by the president this week, following the release of a Treasury memo to various departments warning of budget cuts.

South Africa has effectively hit its budget limit, with revenues not meeting the February budget expectations, while government spending has continued to balloon far beyond what was planned. To avoid financial collapse, sacrifices now have to be made.

On top of proposals to freeze hiring and new projects, new cost-cutting measures that have emerged in Treasury’s plan reportedly include cutting down the number of departments in government.

This has been a long-held intention of president Cyril Ramaphosa, who promised back in 2018 to slim down his cabinet.

Ironically, the president introduced two new ministers this year instead.

Difficult choices

While there has been a clear focus on direct cost-cutting, austerity measures are not popular among politicians  and put a severe strain on electioneering tools ahead of an important national election in 2024.

Ramaphosa hinted earlier this week that he was not in favour of budget cuts, saying that they were “not necessarily” the answer to South Africa’s financial woes.

However, he was reportedly told at this week’s meeting that huge trade-offs would have to be made somewhere.

For instance, if the government wants to keep the popular R350 SRD grant going, it will need to raise R42 billion  or R55 million if it is raised to R450. This would require VAT to be hiked by 1% or 2%, respectively, the Sunday Times reported.

The SRD grant, initially implemented to offer some relief to the multitude of jobless South Africans impacted by the Covid-19 pandemic, has been extended several times.

The current end date of the grant is March 2024, but the political reality is that the grant has become a de facto basic income grant for the unemployed, with around 8 million recipients. To kill the grant would be an incredibly unpopular move a huge risk ahead of the 2024 elections.

But the budget shortfall won’t be solved by one or two measures, with the Sunday Times listing a host of social and other programmes that would need to be shut down to save money.

Government was warned

Finance Minister Enoch Godgonwana warned in May that South Africa would need to make some significant trade-offs to address its fiscal challenges and restore public finances.

At the time, he warned that the ballooning government wage bill was the key concern.

Now, the Treasury sits with a much tighter budget, expanding government spending, and a growing debt problem where national debt is on track to hit R6 trillion by 2025.

Economist Dawie Roodt noted that the budget deficit is rooted in:

• The salary bill for civil servants being larger than budgeted because they received above-inflation increases. This is set to continue with an election year in 2024.

• The government gave more money to failing SOEs than expected. This will continue, especially with the state taking over a large part of Eskom’s debt.

• South Africa’s tax collections are under pressure because the economy is not growing.

• Income from mining is declining because of a downturn in the commodity cycle and problems with South Africa’s rail and port services.

“South Africa’s fiscal deficit for 2023 is set to be between 6% and 6.5% of gross domestic product (GDP), much higher than the minister’s expected 4%,” Roodt said.

He added that Godongwana said the government wants to stabilise South Africa’s debt level at 70% of GDP, but it has already increased to 72%.

The economist noted that the country only has four options to address the budget shortfall and the growing debt burden none of which are easy or popular.

• Grow the economy. However, South Africa’s current macroeconomic policies will not lead to economic growth.

• Spend less money. However, spending less money on people is not politically palatable and, therefore, unlikely  especially with elections around the corner in 2024.

• Increase taxes. However, the country already has an alarmingly narrow tax base, with 1.12% of taxpayers paying 30% of total personal income taxes and 4.4% of corporate taxpayers paying 95% of total corporate income taxes. If this increases, the tax base will collapse as many will simply leave.

• Privatise state-owned enterprises. The government can sell state-owned companies before they are worthless. However, this is also unlikely, as many public servants, unions, and politicians have a vested interest in SOEs.