From being too busy to blaming an intern to citing workloads and
wrong advice being given, the Department of Home Affairs filled
pages with explanations, and apologies in papers filed before the
Constitutional Court explaining why they didn’t file papers in two
years, in a case they now claim will “open the floodgates”, for
people wishing to gain South African citizenship to access
government grants.
On Thursday, 13 February 2020, the Constitutional Court heard an
application by Lawyers for Human Rights to confirm an order by the
Pretoria High Court that parts of the South African Citizen Act
were unconstitutional as it fails to recognise citizenship
acquired by descent in terms of the previous legislation.
The organisation represents a group of people, all born outside of
South Africa to a South African parent. They all claim to have
been deprived of their citizenship when the legislation was
changed and that this left them stateless as their births were not
registered in time �` but the law afforded citizenship to them
because one of their parents was South African.
The new law took this citizenship away because their births were
not registered before 2013 when the law changed �` as the new law,
as described by attorney Liesl Muller in papers before court, put
them in an unintentional “no man’s land”.
The four applicants are Yamikani Vusi Chisuse, 30, Martin Ambrose
Hoffman, 49, a 12-year old child and Amanda Tilma, 50. The
department denies in papers before court that they will qualify
for citizenship even if their citizenship by descent is reinstated
by a court order, saying that there are factual discrepancies in
their versions.
Lawyers representing the group first approached the Pretoria High
Court in September 2016. The matter was set down for a hearing on
May 2017, but home affairs failed to file an affidavit explaining
their position. They did indicate that the matter will be opposed.
The matter was postponed and the department was ordered to file
their papers within 20 days. This wasn’t done.
Two years went by. When Lawyers for Human Rights finally set the
matter down for hearing, the department asked the court for a
postponement to file their affidavit. This was refused and the
court heard the matter unopposed. This led to parts of the South
African Citizen Act being declared unconstitutional and the court
ordering that four of the applicants be given citizenship.
In an affidavit explaining their shocking handling of the matter
filed before the Constitutional Court, the acting director-general
for home affairs, Thulani Mavuso apologised to the court for their
handling of the matter, but asked the court to overturn the order
of the Pretoria High Court to send the matter back to hear
evidence.
Mavuso, the acting director-general of the department, said they
are now confronted by between 8,000 and 10,000 cases in courts all
over the country and receive 150 new cases a week. He said their
directorate of litigation only has five members and each needs to
handle 1,200 cases. “This workload makes it practically impossible
to perform the services with the efficiency required. This is due
to budgetary constraints in government,” he said.
He said he didn’t even know about the case before the Pretoria
High Court.
“I accept that the matter has not been dealt with properly by
officials of the department. On that score, the conduct of the
officials failed not only this court, but the applicants and
society at large. I accept that the state respondents and the
state attorney handled the matter in the most inefficient and
ineffective manner. This conduct undermines the legitimacy of both
the judiciary and the state.”
He said they accepted that the rights of the applicants in the
current case were “openly violated”, by the department and showed
disdain for the law. “I concede this is unacceptable.”
He said for the court to allow the applicants to claim citizenship
by descent will be “an insult to the Black South Africans and
architects of the Constitution of the Republic of South Africa”,
and have a disastrous effect on the country’s stability.
“The Citizenship Amendment Act seeks to put a final nail on the
racist, sexist and discriminatory 1949 Act and to correct the
legislative anomalies of the 1995 Act. The surviving provision of
the 1949 Act, which allowed children of foreigners to claim
citizenship of South Africa under the 1949 Act, had disastrous
consequences for the stable and democratic citizenship regime

in
South Africa. Moreover, the relevant provision of the 1995 Act,
which entrenched the 1949 Act, opened the floodgates for the
foreigners to claim citizenship in order to access the privileges
and benefits flowing therefrom. It is estimated that there are
approximately 17-million grant beneficiaries as opposed to 15.5-
million taxpayers in South Africa,” he added.
He said allowing foreign persons who desire to live and work in
South Africa to claim citizenship by descent may lead to
uncontrolled fraudulent citizenship.
“This is precisely the mischief the legislature intended to
address when it amended the 1995 Citizenship Act. South Africa is
today a great place to live in and many people in the world aspire
to live, work, or to be the citizens of South Africa. As a
result, many foreign nationals come to South Africa and stay in
the country illegally. No one can account for every undocumented
migrant,” he added. “The department has no idea how many illegal
immigrants are in South Africa.”
The applicants before court were born to South African parents in
Malawi, Zimbabwe and Ghana before legislation changed, but their
births were not registered.
According to Mavuso, they originally only realised that there was
a case about this issue when one of their officials raised a
concern over a cost order made against the department. He said the
notice of the hearing was served on an intern and nothing was done
about it.
He admitted that they received correspondence warning that the
matter will be set down on the unopposed role unless an affidavit
is filed. He said a few months after they defaulted on filing an
affidavit, the department’s junior counsel and the state attorney
were called into the deputy judge president’s chambers and
“severely reprimanded”. He said they were ordered to file an
affidavit within a month.
Mavuso explained that as part of their internal procedures, they
still had to interview the applicants as part of their internal
process, but officials couldn’t do it in time. The applicants were
then asked to come to home affairs to have their births registered
and the matter should be removed from the role. This was erroneous
advice he said, but nothing happened in any case and their
affidavit was also not filed in accordance with the court’s
directive.
He said when the order declaring parts of the law unconstitutional
was served, the official dealing with the matter was on leave. She
only returned 15 days later. He said the director of litigation
also resigned six months later. “This had a negative impact on
most of the matters in which he was involved.”
“The attorney of record is currently handling almost 700 pending
cases. This, however, cannot be an excuse for the conduct of the
state attorney and officials of the DHA in this matter.”
In papers before the Constitutional Court, Advocate Isabel
Goodman, acting for the applicants, explained that the case dealt
with citizenship by descent.
She added that the applicants acquired a right to citizenship by
virtue of their parenthood, but because of changes between the
various statutes, they have been deprived of their right and
ability to acquire citizenship, and the problem was that the law
did not preserve citizenship acquired by descent under predecessor
legislation. “The section only saves citizenship acquired by
birth. Those who acquired citizenship by parenthood under
predecessor legislation are, overnight, no longer citizens.”
She argued that the department could not offer any real
justification for these infringements and added that, in fact,
they didn’t even bother to file an affidavit despite a two-year
delay and an order directing it to do so.
A four-person legal team led by advocate Seth Nthai SC argued on
behalf of the department that none of the legislation conferred an
automatic right to citizenship. He added that the law does not
apply retrospectively. He said if the court believed the laws to
be unconstitutional, the law should be sent back to Parliament for
an amendment in line with the current policy considerations.
The Constitutional Court has reserved judgement. MC
www.samigration.com V.3011

In exciting news for digital nomads, South Africa will launch a new digital nomad visa featuring two categories: a remote working visa and a critical skills visa. These visas aim to attract remote workers and skilled professionals globally as part of South Africa’s efforts to position itself as a global hub. Once put into action, this move will establish the country as only the fifth African nation offering this kind of visa to people who spend long periods working in different countries. V.5338
Click here for full article

The Home Affairs official was accused of selling passports at R3,000 to foreigners A 34-year-old former Department of Home Affairs employee will spend the weekend behind bars after being arrested on fraud and corruption charges. Malusi Mlondo appeared briefly in the Durban Specialised Commercial Crime Court on Thursday and was remanded in custody. V.5329
Click here for full article

Home Affairs Minister Aaron Motsoaledi said the arrest demonstrated the department`s zero-tolerance against corruption. • A Department of Home Affairs employee in Limpopo was sentenced to an effective eight years in jail for fraud and corruption. • NPA spokesperson Mashudu Malaba-Dzhangi said Amos Ngwenyama accepted R1 000 to fraudulently issue a birth certificate. • Minister Aaron Motsoaledi said the sentencing demonstrated the department`s commitment to tackling corruption. V.5330
Click here for full article

A United Kingdom (UK) citizen - who laid a criminal charge of corruption against a Home Affairs official who wanted R60 000 to renew the retirement visas of him and his wife - is still waiting for the police probe to show results. He is also still waiting for the visas he applied for in 2022. A United Kingdom (UK) citizen - who laid a criminal charge of corruption against a Home Affairs official who wanted R60 000 to renew the retirement visas of him and his wife - is still waiting for the police probe to show results. He is also still waiting for the visas he applied for in 2022. V.5331
Click here for full article

With just a few weeks to go until the 2024 elections, the Department of Home Affairs has publicized the nation`s identification document (ID) process. The department acknowledges the critical role of voter identification in facilitating participation and ensuring electoral fairness. Delays and inefficiencies at Home Affairs have historically impeded the democratic right to vote, particularly affecting those in rural areas. V.5332
Click here for full article

SAUDI VISA FOR AFRICAN CITIZENS South Africa is not among the countries exempt from Saudi Arabia visa requirements, therefore a Saudi Arabia visa is required. South Africans need a current visa to travel to Saudi Arabia lawfully. South African citizens can obtain a Saudi electronic visa. Saudi Arabia is located in the Middle East. The eVisa is an electronic visa that permits citizens from approximately 50 countries to travel to Saudi Arabia for tourism. V.5333
Click here for full article

I recently renewed my passport at Home Affairs in a bank branch and was very impressed with the service and quick turnaround time. The Department of Home Affairs (DHA) and major banks first launched the option to do Smart ID card and passport applications via select bank branches in 2016. It has slowly grown to around 30 locations, including branches from Absa, Discovery Bank, FNB, Investec, Nedbank, and Standard Bank. V.5334
Click here for full article

The Department of Home Affairs (DHA) has spent over R412.95 million in legal fees since the start of the 2018/19 financial year - with over R117.69 million of this spent between 1 April 2023 and 29 February 2024. This was revealed by the Minister of Home Affairs, Aaron Motsoaledi, in a recent written response in parliament. DHA has seen an exponential increase in the amount that it spends on litigation, with the current amount for 2023/24 (note these figures are until the end of February, several months short of the full financial year) nearly 16 times that of the amount spent in 2018/19. V.5335
Click here for full article

Short on time? Here are the highlights: • Following recent announcements from British Columbia and Ontario, Nova Scotia becomes the latest Canadian province to declare how its quota of study permit applications for 2024 will be distributed across sectors and institutions • As in Ontario, private institutions and language schools stand to be the most negatively affected by the distribution arrangement, but some public universities will also see significant reductions in study permit applications • All Canadian provinces have now distributed their allocation of study permit applications for 2024, and all are now also issuing provincial attestation letters (PALs) V.5336
Click here for full article

We asked the major contestants of the 29 May elections about immigration. Illustration: Lisa Nelson Today’s questions and answers to the major political parties deal with immigration. We emailed our questions to the ANC, DA, EFF, IFP, FF Plus, ActionSA, PA, MK Party, and RISE Mzansi on 13 March and sent follow-up queries to those who did not respond. Some have still not responded. Answers are very lightly edited for grammar and typos. Does your party support continued extensions of the Zimbabwe Exemption Permit (ZEP)? V.5337
Click here for full article