SOUTH AFRICAN
POLICE SERVICE
INPUT BY THE DIVISIONS DETECTIVE SERVICE AND OPERATIONAL RESPONSE SERVICES OF THE SOUTH
AFRICAN POLICE SERVICE ON THE IMMIGRATION BILL, 2001
1.General Comments
Overall, the Bill creates some confusion with regard to line function
responsibilities on the one hand, the Bill leaves the impression that
traditional line functions of other State Departments are to be taken over by
the Department of Home Affairs. This is especially so in view of the
powers/functions that are to be delegated to the Department, the transfer of
members and equipment to the Department and the liaison function of the
Director-General of Home Affairs. On the other hand, other definitions of
"immigration officer" and "officer" provide that other
persons, apart from officials of the Department of Home Affairs may also be
tasked to enforce the Bill.
It is noted that the Bill does not create any powers for the South African
Police Service per se in respect of migration control border
control/illegal foreigners. The Bill is silent on these functions and responsibilities
of the SAPS and creates uncertainty in respect of the future role of the SAPS
in respect of the Bill. There is a general impression that the Department of
Home Affairs may in future usurp traditional line functions of the SAPS and
other State Departments, drawing from the budgetary resources and capacity of
existing line functions. It goes
without saying that uncertainty in respect of roles/functions may create the
potential for inter-departmental conflict in stead of inter-departmental
co-ordinate which is vital far effective migration control. It is essential
that an', uncertainties be clarified as soon as possible to ensure that all
stake holders buy into the process and that the various Departments work
together in achieving the objectives set out in the Bill.
Specific comments:
2 Ad Clause 23(1)(b): Prohibited persons
According to this clause, foreigners against whom a warrant has
been issued or a conviction secured in the Republic or a foreign
country with which the Republic has regular diplomatic relations in
respect of genocide, terrorism, murder, drug trafficking,
money laundering or kidnapping, do not qualify for a
temporary or a permanent residence permit.
It needs to be noted that the above formulation excludes foreigners who
are being prosecuted/investigated 'for certain offences but for whom an arrest
warrant has not been issued. In this regard one needs to, for instance,
consider the possibility of persons who are being investigated for certain
offences but who have not yet been formally charged for these offences.
It is unclear why the clause is limited to foreigners of a "country with
which the Republic has regular diplomatic relations…" It is submitted that
any foreigner of any foreign country who has committed certain offences should
be disqualified for a temporary or permanent residence permit.
it is unclear what criteria were used to compile the list of offences set out
in this clause. What about other serious offences such as fraud, theft,
sabotage, etc? It is submitted that any list of offences should be prescribed
in the Regulations issued in terms of the Bill to simplify amendment thereof,
if and when necessary.
3. Ad Clause 28 Immigration Advisory Board
The above clause establishes an Immigration Advisory Board (lAB). The
lAB is given advisory powers in respect of policy formulation and regulation
making (Clause 32). No provision is made for representation on the lAB by other
crucial Departments such as the South African National Defence Force and
Intelligence. The Bill ignores the role of intelligence without which the
detection of crime within ports of entry/borders and effective migration
control are impossible.
It is suggested that the reference to Department for Safety and Security in
clause 28(1)(e) be substituted for the South African Police Service.
4 Ad Clause 29 : Objectives and
functions of migration control
According to this clause, specifically clauses 29(1)(h) and (i). the
Department of Home Affairs's objectives shall be the control of the borders of
the Republic to ensure compliance with the Act and administration
of the ports of entry. The function with regard to the administration of the
ports of entry is not specified in the same manner as border control. Although
it is not clear what is meant with the term "administering", it is
proposed that clause 29(1)(i) be specifically amended to read as follows:
"In the administration of this Act, the Department shall pursue the
following objectives:
(i) administering the ports of entry to
ensure compliance with this Act".
It is submitted that the Department of Home Affairs cannot be
exclusively responsible for border control/administration of the ports of
entry. The administration of ports of
entry presupposes a collective process during which different functions have to
be fulfilled by different stake holders. It is essential that these functions
be separated to enhance integrity management. The Bill should clearly state
that the powers of the Department will relate only to the enforcement of the
Immigration Bill and that such enforcement will not impact on the powers and
functions of the South African Police Service. or any other Department for that
matter. A possible wording in this regard could be.
This Act shall not be cons trued so as to infringe upon any power,
function or duty which-
1. relates to the combating, prevention or investigation of any offence; and
2 is generally bestowed upon the South African Police Service in terms of any
law".
The motivation for this proposal is that the South African Police
Service has certain functions to perform as provided for in section 205(3) of
the Constitution of the Republic of South Africa, 1996 (Act
No 108 of 1996). Due to the increase in cross border
criminal activities the SAPS's role in respect of border control cannot be
ignored.
The Bill is not clear on the future border control functions of the SAPS (and
the SANDF). This is especially relevant in view of the provisions of clause 59
which provides that certain individuals employed by Government Departments,
such as the SAPS and Defence will ipso facto become employees of the
Department of Home Affairs. Sub-clause (2) further provides that equipment held
by the above Departments can be transferred to Home Affairs. Although the Bill provides for consultation,
it is rather mandatory. It is not clear from the Bill which personnel and
equipment will be transferred. The Aliens Control Units of the SAPS have been
closed down. At present the functions of these former Units are performed by
general detectives or Organised Crime Investigations.
Apart from being technically problematic, the formulation of clause 59 creates
a lot of uncertainties/concerns pertaining to resource implication labour
practice and line function responsibilities which need to be thoroughly assessed.
At this point in time it is impossible to comment in detail on this clause in
view thereof that the Division Detective Service and the Division Operational
Response Services. as far. as could be ascertained, have had no discussions
with the Department of Home Affairs on the impact/objectives of the Bill.
The Deputy Director-General of Home Affairs and the Special Adviser to the minister of Home Affairs informed this
office at a meeting held -the office of the Deputy Director-General on 3 August
2000 that the Bill would be discussed with the various stake holders and
Government Departments. Despite
specific request to be consulted in the drafting phase. it appears as if
no such discussions. at least with Divisions in the SAPS which are affected by
the Bill. took place.
Having said the above, all that can be proposed at this point in time is that
clause 59 should possibly be red rafted/deleted once the exact impact of
thereof and the Bill in general, has been consulted with the SAPS. It is, for instance,
not clear why members of the SAPS cannot be. if necessary, departmentally
transferred or seconded to Home Affairs.
Another issue of concern is clause 29(2)(k) which provides for the outsourcing
of any of the Department's functions to private persons. This opens the door
for problems. legal uncertainty and corruption. It will also require
substantial training and proper control measures.
5. Ad Clause 30W : Powers of
Department
This clause empowers the Department to enter into agreements with other
Departments, at the expense of those Departments, to boost its capacity. It is
suggested that this clause should reflect a consultation/negotiation process
and should be in consultation with the relevant accounting officer of the
Department concerned.
6. Ad Clause 31: Structure of migration control
Sub-clause (3)(c) provides that the Director-General (of Home Affairs)
must liase/interface with foreign bodies dealing with. inter alia.
terrorism, arms and drug trafficking foreign smuggling contraband and organised
crime. This clause leaves the impression that law enforcement with regard to
the above functions. is the responsibility of Home Affairs. Investigation of
these offences is primarily the responsibility of the SAPS. Although it
is appreciated that border control/administration of ports of entry mav involve
the issues set out above. it is submitted that the key functions or- Home
Affairs relate to migration control. It is accordingly suggested that the
liaison function of the Director-General be performed in conjunction with the
SAPS to ensure co-ordination and purification within the respective line
functions and ambit of responsibilities. Alternatively, the clause should be
deleted in l toto or the references to terrorism. arms and drug
trafficking. etc. should be deleted.
Ad Clause 36 : Investigations
This clause provides for the establishment of an investigative unit in
the Department of Home Affairs, with a "commissioners as the head of such
unit. The unit's functions are to be executed by the said
"commissioner" or" commissioners", assisted by "officers".
The term "commissioner" should be defined in clause 1.
It is unclear why a distinction is made between "officers" and
"immigration officers". The officers of the Department of Home
Affairs will be responsible for the monitoring. enforcement and investigation
of immigration issues as set out in the Immigration Bill. It is proposed
that all of these officers be referred to as "immigration officers"
in order to avoid confusion and to promote uniformity.
8. Ad Clause 37: Deportation and detention of illegal foreigners
Sub-clause (2) of this clause refers to a "working day". This
terminology is confusing and it is suggested that it either be defined, or that
it be substituted for the more acceptable term "court day".
9. Ad Clause 39: Border
Control
Clause 39(2) provides that the Department may receive a delegation
from. inter alia. the Department of Safety and Security enabling
and mandating it to exercise powers/functions exercised under any law by
such Departments', relating to the control of movement of people or goods
across the borders.
The delegation of powers and mandates between Departments referred to in
clause 39(2) is not acceptable, especially in respect of the South African
Police Service which functions in terms of a mandate derived from the
Constitution. The South African Police Service Act, 1995 and the National
Strategic Intelligence Act, 1994.
The SAPS is empowered by Section 13(6) of the South African Police Service Act,
1995 to set up road blocks within 10 km from any border between the Republic
and any foreign state for purposes of control over the illegal movement of
people or goods across the Republic's borders, The enabling legislation does
not provide for delegation of powers to other entities such as the Department,
Section 15 of the latter Act makes it clear that powers conferred on the
National or Provincial Commissioners can only be delegated to members/persons employed
by the SAPS or to a board/body established by or under the South African Police
Service Act or provincial legislation regarding functions of the SAPS.
Delegation of legal powers is only possible if the enabling legislation, (such
as the South African Police Act, 1995 and the Criminal Procedure Act, 1977) is
amended.
10.Ad clause 44: Identification
This clause compels a person to identify himself/herself to an
"officer" or a "police officer".
The clause makes a clear distinction between officers of the Department of Home
Affairs and officers of the SAPS. No other clause provides for such
distinction. The distinction/roles of
the various Departments should be addressed throughout the Bill.
11. Ad Clause 50 internal
auditing
Clause 50 ( 1) provides for the establishment of an internal
anti-corruption unit in the Department that shall comprise of 'specialised
members seconded from time to time and on a rotating basis by the National
Commissioner of the South African Police Service."
It is submitted that this clause should, likewise, reflect a
consuttation/negotiation process with the National Commissioner of the SAPS.
The provincial anti-corruption units of the SAPS are presently limited to five
units. (Cape Town. Johannesburg. Port Elizabeth, Durban and Polokwane.) The current restructuring of the Detective
Service and the integrated approach pertaining to the combating of organised
crime may in future absorb these Units into other structures of the SAPS. The only other source from where
"specialised members" may be drawn is the Commercial Branch of the
SAPS which also has to cope with limited human resources.
12. Ad Schedules
Schedules 1 and 2 respectively refer to section 26(1) and (2) of the
Act. There is no sub-clause (1) and (2) in clause 26. It is suggested that the
Schedules be amended to refer to clause 26(a) and 26(b) respectively.
It is submitted that the offences said out in these two Schedules should also
contain the offences referred to in clause 23(1). It is once again not clear
what criteria where used to list/identify these specific offences. It is
furthermore suggested that these offences be identified in the Regulations to
simplify amendment thereof, if and when necessary.
13 Conclusion:
It needs to be reiterated that the SAPS is committed in assisting the
Department of Home Affairs to take the process forward. The above input should
be seen as a constructive attempt to facilitate the process and to ensure an
effective law that not only sets out the powers and functions of the Department
of Home Affairs but also addresses the role of other stake holders. such as the
SAPS. in no unclear terms.
DIRECTOR: LEGAL COMPONENT: CRIME OPERATION