ADDRESS BY MANGOSUTHU BUTHELEZI, MP
MINISTER OF HOME AFFAIRS
Cape Town: April 1, 2003

It is a pleasure for me to once again be before the Portfolio Committee on Home Affairs. At the outset, I wish to congratulate Mr Patrick Chauke, MP on his appointment as Chairman of this Committee. I regret that I was unable to oblige your request to be with you last Tuesday, March 25^th. Unfortunately, I had previously committed to deliver a lecture at Fort Hare University on the occasion of the 25th anniversary of the death of Robert Sobukwe. I tried to see whether my commitment could have been rearranged for the afternoon, but it was impossible. I hope Members of this Committee will appreciate the importance of the occasion and the fact that I had to be there, not only in my capacity as Minister of Home Affairs, but also because of my association with Robert Sobukwe and the fact that I was invited to deliver an oration at his funeral and spoke at the unveiling of his tombstone.

Therefore, I was taken aback in reading the report of Business Day and receiving other reports relating to the statement of one of the members of this Committee who, reportedly, criticised me for not being with you last week and indicated that I was in Ulundi attending to matters relating to the crossing of the floor. I do not know of any other Minister who would be treated in such a disrespectful manner by a Portfolio Committee, to the point of not accepting an apology. I feel particularly aggrieved by statements of this nature if I consider that I did not merely apologise, but went to the extra length of answering all the questions which had been put to me.

The same Business Day report indicates that one or more members of this Committee also saw fit to criticise me for never appearing before this Committee, indicating that I was not here at all last year. I feel very aggrieved by this statement. I appeared before this Committee every time I was asked to do so. Once I even appeared when I was not invited, because I felt I could make a contribution to the matter being discussed, and I was criticised for that. Last year I was before this Committee three times and each time I tried to make my presence felt by providing members of this Committee with extensive and substantive presentations. I hope that next year people will remember my having been here today.

At this stage I wish to pause here and talk to you not as a member of the Executive but as a fellow Member of Parliament. It could well be that some of you who are younger may not remember the internecine conflicts that took place between members of the UDF/ANC alliance and members of the IFP which cost us more than 20,000 black lives. When the interim Constitution provided that any party that garnered more than 5% of the votes should have a seat in the national Cabinet, it gave all of us as different parties a very difficult challenge in 1994. It was difficult for the ANC as the majority Party and for us in the IFP as one of the minority parties that had to make a decision to participate in the national Government. But both President Mandela and I decided that we should participate in the Government of National Unity for the sake of reconciliation and for the sake of consolidating peace and stability in our country. Some members of the ANC, who saw IFP members as dirt were against this, and some members of the IFP were also not keen for us to participate as wounds we had inflicted upon each other were still bleeding. But we decided to participate in spite of that.

When the then National Party walked out of the Government of National Unity, we as the IFP continued to participate in the Government of National Unity. This was the case until the expiry of the Government of National Unity. Even when the Leader of the National Party came to my office in an effort to influence me to quit the GNU, I did not quit.

When the President of the ANC, shortly after his election, President Mbeki, invited me to his office to propose that the IFP and the ANC should continue to cooperate in government even after the GNU's time had expired, I and the IFP agreed to continue to participate and we felt that the consolidation of our reconciliation as two parties that were major participants in the violent conflicts was still not complete. That is the only reason why I have been Minister of Home Affairs since 1994. As a matter of fact, when I decided not to take the position of Deputy President when our President was persuaded by the KwaZulu Natal leadership to ask me that if I accepted the Deputy Presidency, I should offer the premiership of kwazulu Natal to the ANC as some kind of quid pro quo, the President still feIt that we should continue to cooperate and that I should continue with my IFP colleagues to participate. I then suggested to the President that I was prepared to take any portfolio which he felt he wanted to give to me. It was the decision of the President that I should continue to serve as Minister of Home Affairs under him, as Head of Government and as the Head of State.

I had worked closely with the President when he was Deputy President, and what Madiba often told as a joke was absolutely true, that although he (Madiba) was the de jure President, Deputy President Mbeki (as he was then) was the de facto President. In other words, the President had the opportunity to remove me from Home Affairs in 1999, if he felt that I did not perform well in the five years I had served in that capacity. I am pained to remember how I have been badly treated by previous chairpersons of this Portfolio Committee and by some members of it in all these years. I can only conclude that they see me first and foremost as the leader of the IFP and not as a loyal member of the President's Cabinet. I have endured a lot of humiliations for the sake of reconciliation. I feel bitter and saddened by the fact that if this reconciliation falls apart, there will be members of this Committee who have contributed to it.

I accept the role of the Portfolio Committee to carry out an oversight role over us as the Executive. I do not question that in the least. But I have been treated by this Committee as a political doormat and no other Minister has ever been treated as I have been treated since 1994. I understand that today the Committee wishes me to provide answers to the questions that it put to me in writing when it invited me to attend last week's meeting. I provided written answers to those questions and suggested that perhaps Members of this

Committee could have written to me if they needed to have any expansion or elucidation in respect of my answers. I thought this could have taken the process forward more expeditiously. However, I have been informed that this Committee requests me to provide such answers personally, and I am pleased to oblige. Therefore, I shall proceed to answer each of the questions put to me in their order. The first question is:

1. Court case re Immigration Regulations

The challenge brought to the Immigration Regulations in the Cape High Court ["the Court"] related to whether such regulations were correctly made in terms of section 52(1) of the Immigration Act, 2002 ['the Act"] or whether they should have been made in terms of and in partial compliance with the provisions set out in section 7(1) of such Act. The content of the regulations was not the object of the challenge. As you know, section 52(1] of the Act relates to regulations made during the transition, while section 7(1] of the Act is the general provision prescribing how regulations are to be made.

My Department had interpreted these two sections as giving me the power to make regulations during the transitional period, without having to follow the provisions set out in section 7(1] of the Act. This was the same interpretation provided to you by the State Law Advisor when this Committee sought an opinion on the meaning of the two provisions. It was the same interpretation which the Speaker of the National Assembly and the Chairperson of the National Council of Provinces adopted in the affidavit they submitted in the litigation when they sought to declare the legislative intent of our Parliament in respect of this matter. We also interpreted the Act in this fashion because we received a senior counsel legal opinion guiding us.

However, the Court ruled that such regulations were incorrectly made in terms of section 52(1) of the Act and should rather have been made in terms of section 7(1) of the Act and therefore such regulations are invalid. Furthermore, the Court ordered that regulations be made in accordance with section 7(1) of the Act. I have noted an appeal to such decision of the Court. The hearing on my application for leave to appeal will be heard on April 7, 2003. Last Friday the Court handed down a written judgement detailing the scant oral reasons it gave for its order on March 11. The written judgement is being analysed by counsel representing us and I am advised that it is consistent with the reasons which were given on March 11 and which formed the basis on which I decided to note the appeal.

In terms of the Court order, the Act would have come into force on March 12, 2003, but without its implementing regulations. Because of a saving provision in the Act, namely section 52(2), the regulations made in terms of the Aliens Control Act ["the ACA"] would have been preserved. However, the Act is incapable of being implemented without the regulations it requires, and the ACA's regulations cannot work together with the Act. Therefore, the implementation of the Court's decision would have led to complete chaos in the administration of migration control with irreparable consequences. Before the Act could come into force, in the evening of March 11, the Court made an interim order exclusively on the strength of the applicant's request.

This interim order suspended the coming into force of the Act, except for those provisions which had already come into force by that time, namely sections 4, 7 and 52. Moreover, the same interim order suspended the suspensive effect of the appeal which I had noted. In general, the noting of an appeal suspends the effects of an order of any court and therefore, in the absence of the Court's subsequent interim order, because of the appeal I noted, the Immigration Regulations would have come into force on March 12. Therefore, by virtue of the combined effect of the two parts of this interim order, the ACA remains in force and effect together with the ACA's regulations. Moreover, the Act is suspended from coming into force and the Immigration Regulations are prevented from coming into force by virtue of the suspension of the suspensive effect of the appeal on the order which declared them invalid. The interim order was originally made to last until March 17, but on that date it was agreed that it would be extended until April 7, when the application for leave to appeal is heard.

In spite of the Court's order having been suspended and my having appealed that order, from good measure of caution, I have already began complying with such order so as to avoid any further delay in the coming into force of the Act. On March 14, I formally began the section 7(1) regulation-making process by publishing in the Government Gazette and tabling in Parliament notice of my intention to make regulations as contemplated in that section.

By taking these steps, the process can move forward irrespective of the outcome of the appeal. In fact, as indicted by my Acting Director-General before this Committee, it was always my intention to begin the section 7(1) regulation-making process as soon as the Immigration Advisory Board (the "Board"] was operational, so as to ensure that regulations made during the transition in terms of section 52(1) of the Act would finally be replaced and/or complemented by regulations made in terms of the section 7. The present circumstances have presented additional momentum to accelerate the pace of this process, and therefore the regulation-making in terms of section 7[1] has commenced in spite of the Board not yet being operational.

1 have already begun the process aimed at establishing the Board. I had previously published in the Government Gazette a notice requesting interested parties to make nominations of those members of the Board who are to be selected in such manner in terms of section 4 of the Act. On February 26 I repeated such public notice and the time for nominations will close 30 days after that date. I have also written to all my Cabinet Colleagues who, in terms of section 4 of the Act, are required to appoint their representatives on the Board. Such nominations have now reached me and I will be applying my mind this week to finalise the appointments of the members of the Board.

It is worth noting that interdepartmental consultation has accompanied many stages of this process for the past ten months. Those who have been appointed to the Board have in fact become the leading figures and prominent contact persons in this often complex process of interdepartmental coordination, which shows initial success in pursuing the purpose for which the Board was established. As soon as the public nomination period has closed, I will appoint all the members of the Board in terms of section 4 of the Act, and, complying with the prevailing praxis, I will bring such nominations to Cabinet for its concurrence.

Even though the matter does not exactly fall within the scope of the question which has been put to me, because it is somehow related to it I feel I must mention that I have received the documentation which this Committee sought to request of the State Law Advisor conveying an analysis of the regulations as they relate to the Act. My Department will be answering such comments made in due course. However, the relevance of such comments obviously varies depending on whether the regulations will come into force by virtue of the appeal against the court decision which declared them invalid, or will come into force in whatever new shape the process might formulate them in, once the procedure set out in section 7[1) of the Act is completed.

In fact, as noted by the State Law Advisor in his opinion, the regulation-making power set out in section 7 is broader than the one set out in section 52 of the Act. I do not wish to engage this Committee in respect of each of the issues raised by the State Law Advisor, as each of them needs to be dealt with critically and analytically. However, I must point out that there are differences of views which will need to be reconciled, through discussions, once a more comprehensive understanding is reached on a variety of issues as they relate to each of the matters raised in such documentation.

At my Department's behest, Cabinet has approved the launching of an Identity Document Campaign in preparation for the next general elections. Following preparations with the Department's regional offices, the lEC and other role-players, the Identity Document Campaign will be launched during April 2003 and will commence in the current financial year, as budgeted. The closure of the Campaign will be determined in co-operation with the IEC and other role players, as the period for registration on the voters roll has not yet been determined. The Campaign will place special emphasis in respect of rural areas. I was in communication with the Chairperson of the IEC, Dr Bam, on Friday and she is sending me an urgent draft memorandum which I will channel as is my duty as a conduit Ministry of the IEC to Cabinet.

The Treasury has set aside RI 5 million for this Campaign, which will be made available from the beginning of the 2003/2004 financial year.

The Department is alive to the possibility that a number of eligible voters, particularly in rural areas, are still without bar-coded identity documents due to a variety of reasons, including the fact that many identity documents issued and forwarded to the offices of application are not collected by the applicants. However, we do not have sufficient precise information to determine how many of such people are involved and their territorial distribution. l will be asking the Department for an inventory of this.

Therefore, the Department has received draft needs assessments from its Regions, which will be finalized once priority areas have been agreed upon. At present, reports from regional offices are submitted on a monthly basis, indicating identity documents received, handed out and on-hand. Plans for the distribution of uncollected identity documents are under consideration in consultation with other role-players, such as traditional leaders. A communication strategy will be developed to ensure that the public is prompted to collect identity documents once finalized. Regions will also be reminded of the procedures to follow to ensure proper posting of data on the computer mainframe, so as to determine the status of identify documents finalized and posted. From Head Office we will be interrogating such mainframe for status reports and monitoring purposes.

My Department will be approaching the Treasury regarding the possibility of funding for free photographs, should a need be identified especially in rural areas. Departmental budget control offices will allocate a specific responsibility and objective code as well as a responsible officer to administer and reconcile expenditure regarding the Identity Document Campaign. The Department's Communication Directorate is liaising with the Government Communication and Information Services to formulate coordinated strategies to sensitize the public to the need to apply for identity documents long ahead of the next elections, so as to avoid last minute congestion. The strategy and related plan will be made available once finalized. Identification of areas of need is in progress with Provincial Electoral Offices in order to give priority to needy areas, such as high schools, rural areas and others.

The major impairment in designing and implementing a successful Campaign, is my Department's chronic under-staffing. Permission has been sought from the Department of Public Service and Administration to fill all vacancies in the Directorates of Identity Documents and Identification, as well as in our Regions. Temporary and voluntary staff will be appointed as soon as we get the green light, where a need arises and will be done in accordance with Human Resources prescripts. It is extremely worrying that at this moment none of our crucial vacancies have been filled and, unless we receive the green light to do so, the Campaign will be in great jeopardy.

Selective permission will be granted for overtime work in the Directorates of Identity Documents and Identification and will be planned according to the number of applications received. Both Directorates have budgeted for overtime remuneration in the next financial year. Regions will also embark on selective extended working hours should there be overwhelming responses for identity document applications.

Provisioning Administration is involved with arrangements to meet the needs of the Regions to acquire additional vehicles during the Campaign, in order to reach rural or remote areas of the country where the need for identity document applications has been identified. Standard procedures will be followed in the hiring of vehicles as stipulated in the administration code.

The container project was never discussed with me by my former Director-General, neither was it forwarded as a written submission seeking approval. When it became public, I enquired about the situation and found a host of problems, including irregular actions. Some of these problems are as follows:

I took cognisance of the recommendation of the Department of Public Works which carries that line function responsibility and has the necessary expertise in dealing with issues such as the provision of offices to ensure delivery in rural areas. The Department of Public Works advised us that amongst the various options available to ensure service delivery in rural areas, the utilization of containers was the least desirable.

There is no doubt, as I have often indicated in Parliament, that the delivery of my Department's civic services is terribly skewed and unbalanced and reflects the spatial patterns and imbalances of apartheid. In fact, while by and large, all our citizens have an equal or similar need for civic affairs services, the distribution of our offices and related capacity is such that we have the least amount of resources where the majority of the peoples' lives and the needs are the greatest. This imbalance cannot be remedied by short term measures or gapfilling solutions.

Within the present paradigm, the problem cannot be solved. It is also of little avail to consider the transfer of resources from one area to another, as such transfer is often more costly than establishing new offices and obviously causes a lowering of service standards in certain areas. We have opened new offices in many rural areas, but we are heavily limited in moving in this direction by our dramatic underfunding and under-resources. We have 1,500 vacancies on the basis of a 1995 establishment which we are not authorised to fill because of the existing moratorium. We are also not authorised to reformulate our establishment on the basis of present needs and future challenges, which would highlight a much higher number of vacancies.

For this reason, after extensive investigation, in 1999 I launched the notion of devolving the delivery of civic affairs services to the new system of municipalities established in December 2000. The initial inter-departmental consultations in this respect took place at the end of 1999. I then wrote to my colleague, the Minister for Provincial and Local Government, to ensure that this important aspect of devolution would be taken into account in the formulation of the list of central Government functions which are being delegated to municipalities together with relevant resources and capacity.

When I introduced the Immigration Bill to Parliament, I made provision for a clause, clause 55(2)(a), which was linking the unavoidable restructuring of the migration line function of my Department, along the lines contemplated by the needs of migration and the Immigration Act, to the need of restructuring civic services through devolution to municipalities. However, this clause, which would have given great impetus to the process, was deleted by this Committee in its deliberations.

On different occasions I have related to Cabinet the need to move forward on this project, which was one of those announced by the President in February of last year. My Department has completed the project's basic investigation and the matter now needs to be carried forward in a co-operative effort between my Department and the Department for Public Service and Administration. However, unfortunately, meetings scheduled between myself and my colleague, the Minister for Public Service and Administration, to launch this co-operative effort have been cancelled four times in a row.

I hope that this project will soon take off by means of the envisaged pilot projects which, by necessity, are meant to take place in municipalities with the largest capacity. In fact, the entire devolution project is envisaged to be implemented in a progressive manner beginning with municipalities with greater capacity, moving towards those with less capacity. Eventually, this approach will solve the problem of unequal distribution of our offices across the territory, as municipal offices are equally distributed across the territory.

In the meantime, the capacity which we save in urban areas, both in terms of offices which we may close down, when services are assumed by the relevant municipality, and in terms of offices we do not need to open, can be utilized to open new offices in rural areas. At the same time, I have instructed that, throughout the development of this process, maximum effort be made to devolve civic affairs functions to traditional authorities, which are often the best situated, equipped and competent to reach out for, and serve the maximum number of people in rural areas.

It must be stressed how the completion of the HANIS project will make it possible to devolve the delivery of civic affairs services to organs of State, or even to agencies of the State, without jeopardizing the integrity of systems, security, efficiency, reliability, service quality and any aspect of our fight against corruption.

I hope that the foregoing is responsive to the scope bf the enquiry of this Committee and may assist it in its further deliberations.