Lawyers for Human Rights
Lawyers for Human Rights

Agreed: SA flouting immigration laws a concern…for foreigners

By David Cote

In a recent statement, the parliamentary portfolio committee on home affairs released a statement titled “Flouting of immigration regulations a concern” in which it cautioned foreign nationals in South Africa not to commit crimes and put “in jeopardy the basis on which they are in South Africa”. The committee quoted instances of the mugging of SABC journalists to “alleged” involvement in the killing of police officers along the N3 highway near Johannesburg. The committee (or perhaps the chairperson) used these examples to “highlight the challenges of foreign nationals breaking laws of the country”.

It needs to be said that this trend among our government leaders to blame foreign nationals for crime is not rooted in fact but rather in fear. Foreign nationals are no more involved in crime than any other segment of our society. Allegations that asylum seekers enter for financial reasons are for government officials to determine, not the portfolio committee. Unfortunately, when crime is committed by non-South Africans, media reports usually mention the accused’s immigration status as somehow being relevant, which it is not. This creates the impression that it is mainly foreigners committing crime. Crime is a multi-faceted phenomenon, here and elsewhere, and attempts to put the blame on foreign nationals for the high crime rate does not detract from the failings of our society to deal with inequality and a criminal justice system under threat from a lack of resources and political interference.

Oddly, the portfolio committee, which is the watchdog of the department of home affairs, has not issued a single statement regarding the flouting of the Immigration Act, the immigration regulations, the Refugees Act, its regulations and the Citizenship Act by the department of home affairs on a near daily basis. Such “flouting” includes unlawful detention and deportation of asylum seekers and refugees, massive corruption at the country’s refugee reception offices, poor decision-making by the Refugee Appeal Board, unlawful blocking of identity documents, exceedingly high visa fees and the regular failure to abide by court orders, for example, to release unlawfully detained children or re-open refugee reception offices.

In fact, the portfolio committee was markedly silent when the Supreme Court of Appeal (SCA) handed down a judgment in March, severely criticising the home affairs director-general, Mkuseli Apleni, for misleading the court about: the decision to close the refugee reception office in Port Elizabeth, failing to abide by two courts orders requiring the office to be re-opened and, particularly significant for the portfolio committee, misleading Parliament about the opening of a new office at Lebombo, near the Mozambican border crossing at Komatipoort. Not a peep.

Stakeholders and refugee groups in Port Elizabeth have obtained two court orders in that city requiring home affairs to re-open the refugee reception office. The office was closed to new applicants with one day’s notice in 2011 after the director-general had taken a decision to close the office with no public consultation or consultation with the standing committee on refugee affairs as required by the Refugees Act. That decision was taken on appeal but the SCA refused to even hear the matter saying there was no prospect of success. While that appeal process was ongoing, the director-general made a “new” decision to close the office but did not inform the court or the community until four months later. That was also found to be unlawful by the high court the following year but that court order was ignored and the matter was taken on appeal. This time the SCA did hear the matter, dismissed the appeal and ordered home affairs to re-open the office by July 15 2015 and to submit monthly progress reports to stakeholders on the progress in re-opening the office.

The court was particularly critical of a misleading answer by home affairs regarding the opening of the office at Lebombo. When asked whether an office would be open at Lebombo and if so, when and how much would it cost, the home affairs minister responded: “No”. When confronted with this answer due to the central role that Lebombo is supposed to play in replacing closed offices, the director-general responded — quite blandly — that the answer was misinterpreted because an unspecified parliamentary convention only requires answers for the current financial year. The court did not buy this argument and found that misleading Parliament in this way was a dangerous precedent for our constitutional democracy. Parliament’s portfolio committee has not issued a single statement regarding the flouting of our Constitution.

Perhaps, despite this damning judgment, the portfolio committee’s failure to comment should not be very surprising. At a portfolio committee meeting on March 3 this year, the chairperson protected Apleni from answering any questions about the numerous court orders invalidating the various decisions to close refugee reception offices in Johannesburg, Port Elizabeth and Cape Town with no alternative offices opened. The director-general hid behind the “sub judice” rule (which is in and of itself mostly defunct after the SCA ruling in Midi Television) because he did not want to give contradictory statements from what he said in court papers. Contradictory? Can we therefore trust what he said in those papers if he is worried about contradicting himself? The chairperson also assisted the director-general by blocking any questions regarding how much the centre at Lebombo would cost. This centre, which has been on the cards since 2011 and which the director-general has rigorously pursued according to his court papers, apparently does not yet have a price tag. South African (and non-South African) taxpayers will apparently have to wait until it is built to know how much it will cost.

The role of a parliamentary oversight committee is to conduct oversight of a government department. When that government department blatantly lies to it and breaks the law by not abiding by court orders, the portfolio committee should have a thing or two to say about it. Rather, this committee issues dangerous statements in an environment of tense xenophobic violence and riot police dispersing law-abiding (foreign national) protesters in Durban. This is highly irresponsible and is, quite frankly, putting people’s lives as risk.

Commentary is the soul of a parliamentary democracy and while debating everyone’s concerns about the general state of crime in South Africa is important, we ask that the portfolio committee also express its concerns about the department’s unlawful activities and instead of shielding a director-general who has shown himself to be economic with the truth, ask him the tough questions and make him responsible for his actions. Then the committee will be playing the oversight role that the Constitution mandates it to.

David Cote heads the Strategic Litigation Programme at Lawyers for Human Rights.

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