How Motsoaledi `interpreted` an old law with no legal help to help the Emirati president land

Source: News24, 08/05/2023

• Aaron Motsoaledi `interpreted` legislation, without obtaining a legal opinion, to allow the Emirati president and his 680-strong entourage to enter SA.
• The Border Management Act required the designation of an entry point to be gazetted, to allow 30 days for public comment.
• Motsoaledi applied the Immigration Act instead, which doesn`t have this `onerous` requirement.
Home Affairs Minister and self-admitted legal layperson Aaron Motsoaledi `interpreted` legislation, so that the Bulembu Airport could be designated a temporary entry point into South Africa, in time for the visit of the Emirati president, Sheikh Mohamed bin Zayed al Nahyan, and his 680-strong entourage.
Motsoaledi briefed the Portfolio Committee on Home Affairs about the unannounced, private visit by Al Nahyan last month, which raised eyebrows, and drew comparisons with the Gupta family`s infamous landing at the Waterkloof Air Force base in 2013.
Motsoaledi said this comparison was `unfortunate` and insisted that the entry of the `the ruler` â€` as he and some MPs referred to Al Nahyan â€` into South Africa was all by the book.
For Al Nahyan and his entourage to enter the country at Bulembu Airport, outside Bisho in the Eastern Cape, it had to be declared an international entry and exit point.
`I understand the ruler was told it was not possible to land in any airport in the Eastern Cape,` Motsoaledi responded to a question on why the Emirati party didn`t land at Gqeberha`s Chief Dawid Stuurman International Airport, which is already an entry point.
Bulembu was assessed - and it was found that, with a few minor upgrades, it would allow the sheik`s planes to land there. Al Nayhan paid for the upgrades.
On 7 April, Motsoaledi received a request from Eastern Cape Premier Oscar Mabuyane to declare Bulembu an international airport for Al Nahyan`s visit.
`The Eastern Cape Province has received a request from the United Arab Emirates Embassy, dated 28 March 2023, for Diplomatic Overflight and Landing Rights Permit for the Abu Dhabi Presidential Flight scheduled to arrive at Bulembu Airport in Bisho on 12 April 2023 and depart on 12 May 2023,` reads the request from Mabuyane.
On 12 April, after Motsoaledi `duly applied his mind to all the facts before him`, he declared the Bulembu Airport a point of entry and exit until 12 May.
There are two pieces of legislation at play here: the Immigration Act of 2002, and the Border Management Act of 2022.
Section 9A of the Immigration Act reads: `The Minister may, in the prescribed manner, designate any place in the Republic, which complies with all the prescribed requirements, where all persons have to report before they enter, sojourn or remain within, or depart from, the Republic.`
There also is an accompanying regulation, from the Immigration Regulations of 2014, of which regulation 8 reads: `The designation of any place as a port of entry in terms of section 9A of the Act shall be made by the Minister in writing. A designation of any place as a port of entry shall be published in the Gazette.`
However, section 30(3) of the Border Management Act (BMA) reads: `The Minister must, prior to an approval in terms of subsection (1) or (2) [to either designate a point of entry, or withdraw such a designation], publish a notice in the Gazette for public comments for a period of not less than 30 days.`
The BMA doesn`t distinguish between a temporary and a permanent designation, neither does it waive the requirement of 30 days for public comment for a temporary designation.
Had the designation of Bulembu been gazetted on 12 April, Al Nahyan and his entourage would not have been able to enter the country there.
In his presentation to the committee, Motsoaledi stated: `The minister was convinced that the applicable and relevant provisions were section 9A of the Immigration Act, read with Regulation 8 of the Immigration Regulations, 2014, and not section 30 of the BMA Act.`
The DA`s Adrian Roos said the BMA states the minister `must` publish a notice in the gazette for public comment.
`I don`t see anything there particularly, giving exceptions to that. There`s the word there, `must`.
`We still haven`t received an indication, that I`m aware of, that this took place. So I just need clarification, was it published in the government gazette?` said Roos.
`The importance of this, chair, is that the minister said people went overboard and jumped to conclusions, etc. But if you have this process where if you publish this in the government gazette, no less than 30 days before it happens, then people just have an opportunity to satisfy themselves that the various measures are in place.
Roos added:
So, the situation is here because this area in law was not complied with.
The DA`s Angel Khanyile added: `We do know that the minister was supposed to publish a notice in the government gazette and we have looked for that notice, and we have not found it, because the public was supposed to comment for a period of 30 days.`
Motsoaledi said: `Chairperson, perhaps this is an issue of the interpretation of laws.`
He said both the Immigration Act and BMA were passed by Parliament as legislature.
`I am not a lawyer, but I know there is something called interpretation of statutes. And the first principle of the interpretation of statutes is to look at the aim, in other words, the legislature, when they enacted this law, apart from what you read and what is written there, the legislature had certain objectives and aims in mind.`
According to Motsoaledi`s layperson`s interpretation of the legislation, the BMA applies when a permanent port of entry is applied.
`So, honourable members, there was no gazetting for 30 days. And the legislature, again, could not have meant that,` Motsoaledi said.
`Can you imagine that, every time someone must come to South Africa, a head of state, or somebody who is going to look for medical care, or somebody who for some reason or other is unable to enter the country through the designated ports of entry, wants this designation, and we have got to go and gazette for 30 days. Honourable members, that will be very onerous, very difficult public administration, and I think South Africa will be a very difficult country to visit and do business with or be neighbours with.`
Roos asked whether Motsoaledi obtained a legal opinion on the matter.
Motsoaledi responded: `No I didn`t. And I`m not questioning what the BMA is saying. I am aware that the word permanent does not appear on the Act. I`m aware of that.`
He added that he had asked himself, `what the aim of the legislature was`.
Motsoaledi said he understood a complaint had been laid at the Public Protector, but he was yet to receive an official letter from the office that it would investigate the matter. Yet, he and some ANC MPs were adamant about deferring Parliament`s oversight duty to the Public Protector.
`If we misinterpreted that law, let that be left to the interpretation of the Public Protector. And then I think the committee will take it up from there,` said Motsoaledi.
However, the chairperson of the committee, the ANC`s Musa Chabane, said they couldn`t `auction` their responsibility to the Public Protector.
The committee will write an official letter to Motsoaledi, detailing a list of documents it requires, and he will then, again, appear before the committee.