BUSINESS UNITY SOUTH AFRICA
2 August 2004

PRESENTATION TO PARLIAMENTARY PORTFOLIO COMMITTEE ON HOME
AFFAIRS

INTRODUCTION

1. There are many things in the Amendment Bill that we welcome. The department, we believe, shares our view on the question of the legality of the 2% fee. Business recognises that the previous process was unsatisfactory. The current Act is a confused mixture of different philosophies. We understand the impediments the Director-General has to struggle against in the department. We also wish to express our confidence in the integrity of the Director-General and his intention to get the department right in terms of the turnaround strategy. Our only complaint is that we need a turnaround strategy in the first place. A turnaround strategy is only necessary when and because the department is going in entirely the wrong direction.

2. This is why the major issues we wish to raise refer to the processes of review and appeal,
to ensure that departmental officials act in terms of a fair and reasonable administrative procedure, with clear and secure time limits, including oversight by a court under the spirit and principles of our constitution.

3. The department has, unfortunately, over the years lost much of its credibility. It needs a long time and a lot of work to regain it. That is why we cannot support an emphasis on greater administrative discretion. The department cannot point to its record and say you can trust us. That is also not what the rule of law requires.

4. Generally, the position of business is that it would like a freer flow of skilled immigrants, who will not take jobs from South Africans, but accentuate the take up of domestic employment, and who will help to grow the economy to allow re-distribution to take place according to government policies.

5. We are aware of a massive skills shortage in innumerable areas and we need a critical mass of skills to drive the economy forward and to be competitive in the international arena.

6. Experience is a necessary part of acquiring those skills and frequently requires many years of work in a richly resourced environment which is unfortunately more commonly found outside Africa.

7. Those skilled persons employed here are effectively acquired free in the sense that the economic expenditure for them to acquire such training, expertise and experience have not been paid for by us but can utilised by us to assist our integration into the modem complex world.

8. This also necessitates an administrative framework which will put into effect government
policies in a fair and impartial way, in terms of the constitutional obligations to advance human rights and freedoms and take account of international laws and instruments.

9. In every international survey of which we are aware the introduction of migrants has increased local employment in the economy generally, and skilled migrants are estimated to increase domestic jobs by a factor of between 4 and 10.

APPEAL AND REVIEW

(a) The Amendment Bill extinguishes the right of appeal to the courts introduced by s8 of the
current Act.

(b) Our constitution guarantees the right to have any dispute that can be settled by the application of law decided in a fair public hearing before a court or where appropriate an independent and impartial forum. It is sometimes said that a purely administrative act is not subject to appeal or application of law but this is not completely correct. All administrative acts are subject to the principle of legality, which is itself an application of law, and any administrative act may be made subject to appeal. Baxter in Administrative Law quotes the Fund Raising Act as an example of what could be said to be a "purely" administrative act on the refusal of a fund raising permit. If the permit is refused the applicant acquires the right to appeal to an appellate committee.

(c) The Act also provide for arrested or detained persons to be brought before a court generally not later than 48 hours after arrest, and to have the right to a fair trial.

(d) It is a non-derogable right (ie it cannot be limited even under a State of Emergency) to
challenge the lawfulness of any detention in person before a court, which right is frequently rendered nugatory or trifling if a detained person is deported before fair trial can take place.

(e) These are some of the reasons that the appeal section 8 is in the current Act - that is, to bring it into line with the Constitution and the Promotion of Administrative Justice Act (PAJA).

(f) Under s34 of the Act an immigration officer may arrest an illegal foreigner and deport him or her provided that under 34(1)(a) he or she is notified of their right to appeal in terms of the Act. This is not amended despite the fact that there is no longer an appeal under the new amendments. There is still provision under the current Act for confirmation of detention by a Magistrates' Court within 48 hours of request but this allows only for a prima facie decision and not a trial.

(g) These issues are problematic but our main complaint is not limited to urgent issues of detention and deportation. The main complaint is that a detailed transparent process of appeal has been removed from the Act regarding matters of status carrying formidable consequences for any individual's life, resources and well being. It applies to work permits, visitor's permits, medical permits, retired person's permits, permanent residence, declaration as being undesirable or prohibited, production of documents and all other cases where the Department exercises an almost unfettered discretion.

(h) In this regard we note that the current s8 appeal provision has effectively been replaced by
an internal procedure allowing for withdrawal of delegated authority in a process which is not visible to any prejudiced person and lifted word for word from the old Aliens Control Act, produced during the previous regime's state of emergency in the 1980s. There seems to have been a failure of the imagination.

(i) What are the arguments against having an express, simplified process motivating a decision by giving proper reasons for the impending decision, allowing a short time for representations to be made, and allowing for a means of appeal to a competent court?

Some reasons have been suggested to Business.

(i) Appeals from administrative decisions are inappropriate or incompetent. Well, we have had appeals to an immigration appeal board since at least 1913 until, as far as we know, the Aliens Control Act came into being in 1991. Appeal to the High Court from tribunals of this sort are frequently provided as well, as it was from the old immigration appeal board on questions of law. Where the Director-General reviews a delegated decision under s3 of the Act he effectively takes the place of a tribunal and at least his decision should be appealable on the same principles as appeals from non-judicial administrative bodies, a common form of appeal. Here he clearly exercises a quasi-judicial function which cannot be a purely administrative decision.

There are probably over 20 administrative tribunals specially created to hear administrative appeals in South African law, sometimes with the right to further appeal to the High Court.

Australia instituted a court or tribunal of administrative appeal for immigration issues in 1975 with full powers of hearing de novo and wide appellate jurisdiction. The result was a dramatic reduction in the number of immigration appeal issues, not an increase. One important reasons was that immigration officers took more care over their decisions and their motivation for those decisions because they were aware they would be scrutinised.

Regarding the importance of appeals against administrative decisions Baxter on Administrative Law reflects the following:
"Neither departmental supervision nor procedural safeguards are sufficient to guarantee that administrative discretion will be exercised wisely. A right of appeal is an invaluable safeguard. The appellate body is able to exercise a calmer, more objective and reflective judgement."

(ii) PAJA attempts to protect persons affected by administrative action. It does offer
protection. It is an excellent Act. But this argument is subject to three main deficiencies - first, only review is provided for, secondly it only affects current existing rights or expectations, and thirdly it does not stand in the Immigration Act, which is the bible for immigration officials to refer to and abide by, and so becomes removed or remote from the daily experience of officials.

Regarding review, Joubert in Law of South Africa points out that "Supervisory jurisdiction by the courts (ie review), confined as it is to an application of the principle of legality, is often of mere peripheral importance. Practical necessity. has led to the creation of a wide array of tribunals of appellate jurisdiction." We do not, however, support a tribunal, which can be captive to the administration, but a court.
(iii) Legal scrutiny is inconvenient and time-consuming and must give way to the public good.

This is a self-destructive argument. It is common knowledge and has been conceded that the Department is under-resourced, often under-qualified, over-worked, with poor training processes and a history of ill-discipline and poor morale. Only half of the vacant positions can be filled. Is this the context in which to remove the judicial over-sight role of a court? It implies that many powers will continue to be abused but it is too inconvenient for officials to be called to account to deal with such issues.

So perhaps affected persons have to rely on the goodwill of the Department and its assurances that it will act fairly. However as we have said before, it has been conceded that the Department is going in the wrong direction and is on route to Rio de Janeiro instead of Cape Town. The Department has been found to have abused powers, misunderstood facts and law, and acted illegally or unfairly in hundreds of instances and court actions. We are absolutely confident in the integrity of the Director-General and his intention to try to remedy the position but since he has admitted he cannot fill even half the necessary vacant posts in an under-resourced and unruly department, he cannot give any assurances. That is why the role of clear internal review and the right to court intervention is the only solution. A few months ago we heard that the refugee database and IT system had collapsed. The Movement Control System was ancient. There was no
internal e-mail. Every port of entry and office was short of immigration officers and in many areas could not hope even to begin to address the challenges. Offices were dilapidated, under-equipped and depressing.

This is not a question of balancing human rights with the public interest. The public interest cannot be served by allowing officials to abuse their powers or make badly informed or arbitrary decisions, which the restricted power of review cannot adequately correct. The only solution is to improve the discretionary exercise of delegated powers by subjecting them to democratic checks and balances.

(iv) The newly amended provisions are adequate.

The proposed amendments to ss3(2), 3(3) and s10(9) of the Act are poorly drafted. S3 is copied directly from the old Aliens Control Act. One of the reasons given for the need for amendment to the current Act is that some of it is poorly drafted. It is self-evident that poor drafting cannot be remedied by more poor drafting. S3(2) says the Director-General may set aside or amend any decision delegated down the line. However it does not impose a duty even to consider such review if a currently existing right is not being abrogated. There are also no time limits. Nothing stops the Director-General and the Department from simply ignoring any representations if they are busy elsewhere or failing to consider them within the available time, and PAJA does not oblige this to be done either if the foreigner does not have a currently existing right. The same applies to a possible review by the Minister.

Although it appears that Home Affairs considers that PAJA does not apply in this case Business believes Home Affairs has not fully taken account of the fact that for PAJA to apply it is not only a right that must be demonstrated.

A legitimate expectation will also suffice and this may frequently be demonstratable.

The situation is also dire where a clearly existing right may be infringed or affected. In the absence of the old s8 appeal process, the only protection in the Act lies in s10(10) of the amended provisions. Under s 10(9) the Director-General (or a minor delegate down the line) may cancel a permit and instruct the holder to leave at any time. It can be 24 hours although the holder may have been in the country for years, have a job and own property and assets. There are no guidelines for exercise of this discretion which is why we say it is arbitrary. The holder's only remedy under the amendments is to make representations to the Director-General before the period given has expired, but the Act does again not say the Director-General is even obliged to consider them.

The Director- General will probably not even see the documents and find out what his own officials
have done before review expires. If the period is 24 hours or even 7 days the foreigner will clearly have no time to make representations which can be considered before he is arrested or deported. Here PAJA does come into action but PAJA is broad and generic. It is not intended to replace a particular departmental process of review or appeal. It only allows for the restricted review grounds of legality and is not an appeal.

The Act should oblige the Director-General to consider any representations made, set clear and reasonable time limits so that affected persons know their rights, and provide an appeal process. This is simply good law.

The same deficiencies expressed above are exhibited in the amended s8(1) and (2), which are simply examples of how rights apparently granted may be denied or frustrated. An "illegal" foreigner (which no court has yet pronounced illegal) found in the country is decided by an immigration officer to be illegal because he does not have a visible vaccination mark. The foreigner may request the Director-General to review the decision.

The request must be conveyed to the Director-General within 3 days. Within this time he will not even have seen his own officials documents or found out what is going on. There is no express obligation for the Director-General to consider the request and no time limit for him to do so. If the foreigners' conveyance is to depart he must be on it whether or not the Director-General has responded, even before the 3 days has elapsed. In other cases, the Director-General must receive the request by the 3rd day (which is unreasonable in any case) but the amendment says that the foreigner may be removed immediately if the 3 days have lapsed, whether or not the Director-General has yet set eyes on the representations or not. The Director-General simply cannot deal with the representation and make an informed decision.

This section goes beyond poor drafting and will lead to perpetual litigation. Business believes it will not pass Constitutional muster either bearing in mind section 195(1) and (2) of the Constitution, nor is it in line with PAJA.

The Act is the place to set out simple and fair procedures of review and appeal within the requirements and boundaries set broadly by PAJA.

We annex a redrafted and simplified section 8A for consideration wherein we propose that appeal be provided both where there is an apparent existing right to be in the Republic ex facie a permit purportedly issued by the Department, and when such right is applied for, but in the latter case the applicant may be deported and must prosecute his appeal from abroad.

PREAMBLE
Removal of the expressed desire for a constant flow of public inputs can lead to the impression
that the intention is to devalue the role of the public and move to a less inclusive and less accountable regime of immigration. Removing the reference to globalisation also suggests that
we can safely ignore it. We can structure the process of globalisation better to suit the country, but we can hardly ignore it. The same applies to the deletion of the obligation to prevent xenophobia both within government and civil society. The very fact of the proposed deletion sends mixed and unhappy messages. We are mystified as to why it was deemed fit to expunge it, when we are convinced that the intention remains in all these cases, and in fact that action is already being taken. However deletion prejudices the image of the Department domestically as well as to investors and visitors. We understand that the main reason for the deletion of public inputs was to eliminate the need for response by way of footnotes to public representations, to which the amendment should therefore be limited.

DEFINITION OF CONVEYANCE
Conveyance, defined as any means of transport, equates what happens on a bicycle to what happens on a ship and will lead to uncertainty and confusion. Business feels it should be restricted to conveyance for reward as well, because the person in charge of a private motor vehicle has not authority to command her passengers as is required inter alia in s35.

DEFINITION OF PORT OF ENTRY
The word "move" should be expunged as redundant, confused or wrong. (The Director-General
has agreed to substitute it with "enter".)

DEFINITIONS
OF "PUBLISH" AND "REGULATIONS"
Since regulations must be published we cannot, with respect, see why interested persons should
not receive the information at the same time. Deletion means the public will be less well informed. Further, there is no reason to delete the definition of regulations when it is still correct under the new amendments. BUSA believes that regulations should be published seeking public comment within 30 days and that there should be a formal commitment that all comments should be diligently scrutinised and reported upon to the Minister.

THE
DEFINITION OF WORK
This change exemplifies the danger of partial or transitory amendments to an integrated document. The new definition means that an attorney who enters South Africa for 2 days to take a deposition must have a work permit which requires his or her job to be advertised, as with any photographer who wishes to photograph Table Mountain, or actors or persons auditioning for a play, or any other work of a temporary or part-time nature. Business sees no harm in allowing a professional photographer to take photographs for a week on a visitor's permit. We do recognise that there may be practical problems, but we have seen no evidence to suggest that the remedy here proposed is not worse than the ailment.

DELEGATIONS
UNDER NEW S3
These amendments do not compensate for the retrenchment of the rights to motivated reasons and
appeals conveyed in the current s8. Business also finds them of dubious value. No delegation is
irrevocable in any case. Accordingly, some of these provisions are redundant. However the question of when the delegator or the delegee become functus officio calls this putative delegation
into question.

In addition a judicial or quasi judicial power with a significant discretionary component requiring
skilled and careful decision-making is often not viewed as delegable at all, and Business is concerned with delegations of serious functions by the Minister or Director-General to less competent or careful officials than himself (quasi-judicial and judicial powers, ...cannot be trusted
to subordinates, eg Shidiack vs Union Government 1912 AD642). The Courts have also refused
to recognise the validity of delegations of wide and unguided discretionary powers. Decisions on
a motivated application concerning, for example, a putative or present right are not purely administrative but contain quasi-judicial exercise of powers.

THE
IMMIGRATION ADVISORY BOARD (ss4 & 5)
There is plenty of disinformation and misunderstanding of the role of the Board currently, which has no powers of any significance (executive or otherwise) except for the ear of the Minister if she wishes to tender it. Government officials preponderate on the Board and civil society will invariably lose any resolution put to the vote (which has already occurred).
The importance of civil society is further diminished by -
(a) increasing the ranks of government representatives which automatically devalues the contribution of civil society
(b) adding the interdepartmental liaison function where civil society has a lesser role to play
(c) providing for the Minister to choose the Board without calling for nominations
(d) removing the oversight and monitoring role of the Board - for the benefit of the Minister
(e) eliminating the Board's role in s31 exemption applications
(f) deletion of its entitlement to operate through committees limits the Board's ability to deal with complex and time-consuming issues
(h) terminating its right to advise the Minister on the implementation of immigration policy by the Department.
Of all of these, Business proposes that the last role should be re-instated. It refers only to advice to the Minister, gives no powers and is clearly of value to the Minister as an independent voice able to comment on the functioning of the Department in an impartial manner without in any way restricting its operations.
Business is confident but not absolutely certain that the right to terminate the tenure of the current Board members will not be used to remove any critical voices on the Board but endorses the view of Labour that this provision is unnecessary.
Business supports adding to the Board experts on human rights drawn from the South African Human Rights Commission.

REGULATIONS (S7)
The express right to public involvement is terminated. Business questions how this is expected to lead to more effective regulations. Certain interest groups have knowledge, experience and a perspective that is lacking in the Department (as was evidenced by recent
litigation). Regulations should be published for 30 days at least once and the Act should oblige the Director-General and the Department to scrutinise such comments and to respond to the Minister.
It is proposed that s7(3) should provide for culpability to be proved in regard to any offence.
Strict liability is exceptional and universally considered to be bad law except in certain specific administrative areas.

SECTION 8 APPEAL PROVISIONS
These have been already commented upon.

ADMISSION AND DEPARTURE (s9)
s9(2) suggests that only citizens may be admitted. The comma should be deleted but the clause is
confused. A permanent resident is admissible on the same grounds. The words do not say what is
apparently intended, which is that a citizen has no limitations on entry save for the proviso, and
other provisos apply to residents and visitors.

TEMPORARY RESIDENCE PERMITS (s10)
S 10(8) entails that an applicant may not sojourn in the Republic pending a decision regarding
change of status even if his or her current status entitles him or her to stay. This should be rephrased to make the position clear, by adding at the end "save in terms of a valid existing permit
or authorisation". Unclear drafting is bad drafting.

S 10(9) provides for arbitrary cancellation of a permit and gives no guidelines for application of
such powers. In terms of the ILO and UN instruments regular migrant workers should have equal
rights to citizens. The sub-section also breaches constitutional guarantees. The possibility of
such arbitrary action exposes the value of the current s8 on rights of appeal to a court of law.
This is further dealt with under the comments on appeal and review supra.

VISAS
It seems to Business that s10A(4)(c) could valuably be preceded by "For good cause".

VISITOR'S PERMIT (s11)
Business sees no reason why a visitor's permit should only be renewable for a further single
period of 3 months. It is within the discretion of the Director-General in any case and there will
be thousands of cases when a visitor's permit should be granted for a longer period, and not
merely for limited prescribed activities such as charity or sabbatical as provided in s11(1)(b)(ii).
Visitors bring money into the country. Directives may be issued to prevent abuse. This
restriction does not facilitate administration of the Act in terms of Preamble paragraph (a).

STUDY PERMITS (s13)
1. In terms of our labour law, international instruments and the empowerment charters of various industries, foreign employees may not be discriminated against regarding the provision of training for matters such as skills development, health and safety, and career progression.

2. However under the current law, State Law Advisers have indicated to the Director- General that an employer may not even send his foreign employee on a training course in the scope of his employment (let us say a 1-month, full-time safety training course) unless the department issues a study permit or endorses the work permit for this purpose, or in some cases on specific application supported by documents, waives it.

3. This is contrary to the intention of Act to simplify procedures and streamline bureaucracy. As an example, in the mining context it means that whenever a safety training course is set up many hundreds of employees must gather their documents and be mobilised for an application to be made for each of them to effect an endorsement on the work permit, with its attendant delay of many months and perhaps even refusal.

4. Training is part of the obligations of an employer and Business feels it is clearly an
implied term of any employment contract.

5. There is no harm to be addressed here and requiring a separate study permit or endorsement in order to be sent for training by your employer is futile and pointless administrative excess if training or study occurs in the normal course of employment while in receipt of full wages.
6. Business proposes a new s13(4) reflecting a logical and manageable process in the
following form:
"s13(4) - The holder of a work permit may undertake full or part-time study or training approved by his/her employer as part of his/her employment in order to advance his/her skills or qualifications or as part of a career progression plan without the need for a study permit or endorsement provided:
(a) such study or training does not exceed 12 months in any period of 24 months.
(b) full contractual wages are paid to him or her by the employer during such period.
(c) the skills or knowledge to be gained are intended to be used in the business of the
employer."

BUSINESS PERMIT (s15)
S15(4) would not be affected by excising the words "to the satisfaction of the Director-General",
which imply a subjective and arbitrary evaluation.

RELATIVE'S PERMIT (s18)
Under s18 a relative's permit may now only be issued for a prescribed period, even if it is for an
ailing father of a citizen or permanent resident. This should be brought into consistency with s26
and 27. It contravenes the equality provisions of ILO and UN instruments regarding regular workers. We note that there is no provision for spouse and children of regular temporary workers,
which would have to be dealt with by exception. This also contravenes the equality provisions of
Article 7 of the UN Convention on the Rights of Migrant Workers, as does the restriction on geographical and employment mobility of temporary workers.

WORK
PERMIT (s19)
S19(2) does not convey the intention of the sub-section as we understand it. It should say that a
general work permit may be issued to a foreigner "whether or not he or she falls within a category, class or quota contemplated in subsection (1) etc". As it stands only a foreigner who is not defined within the category or class may seek a general work permit. This should be corrected as it holds enormous unintended consequences. It may be that the Director-General intends to interpret the section in the correct way but the words do not say what is meant. Plainly, they should.

In 19(2)(a) where there must be proof of inability to employ a person in the Republic with equivalent qualifications, the new draft now includes equivalent experience, which is correct.

However it is not only qualifications and experience but also competence and ability that must be
found. An IT security expert who is vitally necessary to prevent fraud, may have no qualifications
at all but skills at a high level. "Qualifications" can be defined to include these skills. Consider
for example an opera singer or sportsman. Being able to hit a high C is not a qualification but a
talent or a skill and without it a tenor may not be employable at all. This section and section
27(1)(a) should be congruent. Business believes that the Director-General has no objection to
including "skills".

Restricting inter-company work permits to 2 years with no provision for renewal does not take
into account international companies that may require special international expertise for particular
positions for a somewhat lengthier but not permanent period, especially at a high executive level
such as CEO or Chief Financial Officer of an international company branch in SA. A re- application opportunity will be acceptable, if this is allowed, but the lack of a renewal provision may lead this to be rejected as well.

Business also proposes considering an annual quota for low-skilled workers from SADC countries
to relieve some of the tension from illegal flows across the border.

CORPORATE PERMITS (s21)
Guidelines to determine the maximum numbers of foreigners should be provided. This
section is arbitrary in that it provides no assistance or checklist as to how to fix maxima.
The words "reduce or" should be deleted in s21(4)(a) because it is not possible to "reduce" corroborated representations. This is a hangover from the old provisions. We believe that the Director-General supports this deletion. Numbering is also wrong - the reference in sub-section 4(a) and (d) should read 2(c) and 2(b) respectively.

ASYLUM TRANSIT PERMIT (s23)
If an asylum seeker reports to a Refugee Reception Officer within 14 days but that officer negligently fails or deliberately refuses to issue an asylum seeker permit the asylum seeker lacks a
simple remedy. Business has been informed that at some offices asylum seekers are only processed on one day a week and those at the end of the queue may never be dealt with. It is also proposed that some ports of entry should be made Refugee Reception Centres, which falls under the Refugees Act, and we think the Director-General is in agreement.
DIRECT RESIDENCE (s26)
The change of "shall" to "may" requires explanation. "Shall" appears appropriate since
conditions for qualification for permanent residence are set out exhaustively and in (b), (c) and (d)
must be issued in terms of our case law.

Once more the words "to the satisfaction of the Director-General" imply a subjective and arbitrary
evaluation and should be deleted as they are unnecessary and suggest absolute discretion, which is incorrect but will be assumed to be the case by officers to whom delegated authority is granted.
This applies also to s27 "Residence on other grounds". See also comments underneath regarding
"Residence on other grounds."

RESIDENCE ON OTHER GROUNDS (s27)
S 27(a)(i) should include the comma and the words ", experienced or skilled" before the word
"citizen" in the last line to match up with s19(2)(a).
The second part of s27(b) lacks a subject clause and is grammatically obscure. S27(c)(ii) is one area where a chartered accountant's certification would make a great deal of sense. The Director-General, and especially officers to whom this function will be delegated, are not Financial experts. Furthermore the meaning of a financial contribution being "still invested" needs elaboration. Money does not remain static in a business sitting in the till; it is used up in the business, it is turned over with goods for sale, dividends may be paid and profits withdrawn because that is the purpose of a business. "Still invested" is ambiguous; that it has been duly invested would seem to be a better criterion.

A further area where a chartered accountant's certification would be advantageous lies in s27(e)
and (f) on retirement, regarding the right to a pension or a minimum prescribed net worth. The
Director-General and his delegees are not financial experts able to evaluate these entitlements and
their "satisfaction" should not be relevant.

Of course the Department may develop its own capacity to verify these facts but Business feels
that it would be convenient and more secure to use such accounting certification in these limited
few cases.

WITHDRAWAL OF PERMANENT RESIDENCE (s28
)
The amendments to section 28(b) reflect a conservative throwback. The old section 28(a) and (b)
should be left as they are with minor amendment, as indicated hereafter. It is neither fair, proportionate nor constitutional to deport a person who has been a permanent resident for 20 years
who now commits such a crime in his 20~ year. Furthermore to include schedules I and 2 together is inappropriate because Schedule I is specifically designed to be differentiated from Schedule 2 in that it enumerates more serious offences such as murder, rape or robbery. Schedule 2 includes bestiality, which is archaic as a reason to withdraw permanent residence in preference to other offences. Malicious injury to property or theft in Schedule 2 may be of a trivial nature but still entitle draconian punishment in terms of the amendment. These Schedules should be revised and Schedule 2 offences should, as in the current Act, require repeated offences, for example 3.

PROHIBITED PERSONS (s29)
Trafficking in persons should be included in s29(1)(b). Until it is properly criminalised it can be made a statutory offence under the Act. In any event the common law is not static and trafficking may already be considered a common law offence, composed as it is by a
number of components most of which are already criminal actions.
S29(1)(f) is inadequate. It should require criminal intent. Many persons are the innocent victims of fraudsters. It would be entirely unconstitutional to penalise an innocent person and indeed convict him for an offence under s49 of the Act when he has, for example, been defrauded by an agent acting in connivance with an official in the Department, as has frequently been the case. The fraudulent document must in addition have been used to gain entry to the Republic or gain some benefit in the Republic or it is otherwise irrelevant to SA authorities.

The purpose of making specific conduct a statutory offence is not to dispense with criminal requirements of culpa. This is not our law. Statutory offences also require culpa unless there is a clear reason why strict liability should apply as an exceptional remedy which is nonetheless frowned upon by the rule of law.

UNDESIRABLE PERSONS (s30)
Presumably these are not grounds for withdrawing a previously issued permit save for persons
who have been ordered to depart for other reasons (para (e)). It would be unfair to evict an insolvent, who is in possession of a permanent residence permit, by virtue only of his insolvency,
which is a normal and acceptable risk of business. This should be clarified, and the Director- General has indicated he will consider it.

INSPECTORATE (s33)
The proviso at the end of s33(4) authorising service by leaving a copy of a notice at the last known address (which may be 10 years out of date) hardly constitutes fair warning of an obligation to appear to give evidence or to produce a thing, and entirely inadequate to constitute an offence under s49(15). It is also a deficiency under the current Act and should only constitute an offence if it is proved that it was duly received. S35(4) is retained from the current Act and also imposes strict liability which may be unconstitutional and should be corrected.

IDENTIFICATION (s41)
For identity purposes a person is to be detained in terms of s34. which is not appropriate to detention purely for purposes of identification and lacks a proper means to assist the person to
prove identity or to contact family members or others for this purpose.

ORGANS OF STATE AND OTHER INSTITUTIONS (s44)
In the view of Business the provisions of s44 still transgress constitutional provisions relating to
medical and health services in that they constitute an indirect breach of the constitutional rights of
foreigners to such treatment. Requiring hospitals and other institutions to report status or citizenship will inhibit illegal foreigners from seeking medical treatment with adverse effects
upon public health, contagion or infection of others. A tubercular illegal foreigner will not seek
treatment if he will be exposed and deported, leaving him to infect every citizen or regular
resident he comes into contact with, which is a clearly foreseeable consequence in defiance of his
constitutional rights. This also poses a serious threat to policing. It is even more relevant regarding AIDS. The law of contract has been excluded by the amendments with no reason given and it appears incorrect as the law of contract should not be affected by the fact of a foreigner's irregular
residence status.

INTERNAL MONITORING AND CONTROLS (s47)
The explanation given that s47 is repealed since it is obsolete, is not understood. An internal anti-
corruption unit to deter corruption, abuse of power, xenophobia and dereliction of duty seems an
excellent idea not satisfactorily dealt with in any other provisions. This explanation, as well as
that on the annual report, is, with respect, not entirely convincing and calls for reconsideration. It
is public knowledge that mismanagement and corruption occur in the Department, requiring
special and visible measures to combat these phenomena. Business has been appraised of the fact that an anti-corruption unit has already been established and indeed upgraded, so the reason to remove this obligation is not understood.

OFFENCES (s49)
A number of provisions should be adapted in s49 to meet the requirements of the rule of law and
constitutional principles. Offences require culpability, either by negligence or intention, and
while this is specifically provided in some cases it seems to have been inadvertently left out in
others. This should be clarified by the necessary insertions in s49(l) and (2), s49(6), 49(9) and
49(15).

Section 49(8) should be deleted as it refers to the chartered accountant's certification that has
been removed from the Act (unless the accounting certification is replaced in any section).

UN CONVENTION ON RIGHTS OF MIGRANT WORKERS AND ILO INSTRUMENTS
AND DRAFT GUIDELINES
There does not appear to have been any attempt to bring the Act into compliance with the above
instruments. Articles 7 and 16 of the UN instrument are especially relevant. Inter alia a migrant
worker should not be detained in custody while awaiting trial, as a general rule, and consular and
diplomatic authorities should be informed if she requests it.

Attention must be paid to the problems that detention may pose to members of her immediate
family. The migrant worker should not bear the costs of verifying any infraction of provisions
relating to migration. There are measures relating to juveniles and equality with nationals. The
costs of expulsion shall not be borne by the migrant worker although she may be required to pay
her travel costs.

Migrants should enjoy access to vocational guidance and training equally with nationals in terms
of article 45, and shall not lose their residence on mere termination of their jobs unless it is an
express condition of residence. They should also enjoy unemployment benefits, which is not
granted under SA law at present. Under the ILO 1975 Convention on migrants a regular migrant
worker shall not be regarded as illegal by the mere fact of her loss of employment and should be
entitled to seek alternative employment. Her geographical mobility may not be compromised or
limited.

ANNEXURE

SECTION 8A

(1) Before making a determination adversely affecting the rights of any person the Department the Director General shall notify him or her of the contemplated determination and related motivation, that he or she shall have 14 days or such further period as the Director General may, on good cause, permit as being reasonable, to make representations in respect of the contemplated determination and that should he or she fail to make the representations within the time allowed such contemplated determination shall become final, subject to subsection (2).
(
2) Within 20 calendar days or such further period as the Minister may on good cause permit
as being reasonable, of being notified of the content of the final determination, the person aggrieved by an adverse determination may appeal against it to the Minister who may confirm, reverse or modify such determination.

(3) Within 20 calendar days or such further period as the Minister may on good cause permit
as being reasonable, of being advised of the modification or confirmation of the determination by the Minister, a person adversely affected may appeal to the High Court, which may confirm or amend the determination in accordance with its rules.

(4) If no appeal is submitted within the time provided for in subsections (2) and (3) or the
right of appeal is duly waived, the determination shall become effective.

(5) Any person adversely affected by a determination shall be notified in writing of his or her
rights under this section, and of any other prescribed matters, and if such person's right to enter or sojourn in the Republic appears ex facie a permit purportedly issued by the Department of the Director-General, may not be deported before the relevant decision has become effective. Notwithstanding the above applicants for a permit who do not claim such existing rights may be deported and shall prosecute the appeal from abroad.

(6) Notwithstanding subsection (1), as soon as notified to the person concerned in terms of
subsection (5), the determination of an immigration officer refusing a person entry into the Republic shall be effective for the purpose of subsection (1), and for purposes of deportation, subject to subsections (2) and (3).

(7) The Director General may, on good cause, request a person making representations or
submitting an appeal in terms of this section, to post a bond to defray his or her deportation costs, if applicable.

(8) For purposes of this section, a determination shall mean any decision or finding by an official of the Department affecting either a person's status or a condition of her or his residence and includes a decision to remove or deport a person.