Home Affairs is under the public spotlight once again. This time, it is for our bilateral agreement with Zimbabwe which grants amnesty to Zimbabwean nationals illegally residing in South Africa. This story has dominated the news, overshadowing even the findings of the Public Service Commission that ranked Home Affairs second most corrupt for financial mismanagement, after the Department of Justice.
Having been the Minister of Home Affairs during the first decade of democracy, and having led the formidable task of reforming the entire body of immigration law and policy from the apartheid mould, I tread lightly when it comes to commenting on Home Affairs. I know the weight of responsibility that rests on the Minister's shoulders, and I am familiar with the conflicting interests and intense pressures that characterise the field of migration management.
I also bear the memory of my long and arduous battle to give South Africa an Immigration Act that could meet the needs of the 21st century, opening our doors to skills and investment, while closing them to clandestine and fraudulent entry. It was a tall order, prepared in a politically fraught environment and served to a Cabinet that initially made over 80 amendments; and then changed the Bill at the last minute, forcing me to warn Parliament, even as it adopted the Bill, that it was seriously flawed.
I recall hundreds of hours spent in drafting and redrafting the Bill, considering and accommodating public comments and concerns raised by Nedlac, the Law Society, organised business, trade unions and the State Law Advisors. Indeed, my Immigration Bill was the only piece of legislation in the history of our country to be sent to all government departments with the implicit instruction to find something wrong with it. And we answered every concern.
With every amendment, regardless of how minor, my drafting team would prepare extensive notes on the reasons for the change and its implications. We ended with hundreds of pages of publicly available notes, detailing our response to every input, whether accommodated or rejected. Cognisant of the impact our decisions would have on the economy of our country and the lives of people, we dared not make a single move without comprehensive explanation.
This painstaking process was foremost in my mind as I perused the latest Immigration Amendment Bill, introduced on Friday by the Minister of Home Affairs. Having put so much into it, I retain a fascination with our country's immigration law, and I found the proposed amendments rather interesting. Eager to understand the reasoning behind them, I obtained a copy of the Government Gazette which, in accordance with the Rules of the National Assembly, should contain an explanatory summary of the Bill.
What a disappointment to read in the Gazette nothing more than a duplication of the brief statement of intent printed in the Bill itself. No explanation. No background. No reasoning, nor justification. Nothing to give any idea of why these amendments are needed or what they are intended to achieve.
The problem with the Department not explaining its motives, is the space it leaves for the pundits to draw their own conclusions.
One of the aspects of the Bill that leaves itself open to wild speculation is the amendment to the corporate permit. This permit was designed to be negotiated by any large company or organisation directly with the Department, enabling them to issue a certain pre-agreed number of permits directly from their human resources offices. This unique system added enormous flexibility, satisfying the needs of South African industry and foreign investors alike.
Effectively, the corporate permit privatises the issuance of work permits and enables a reliable and suitable organisation to move the work permits allocated to it under the corporate permit from one foreigner to the other, thereby meeting its internal needs and enhancing labour market mobility.
Government supplies the procedures, forms and requirements which need to be verified and complied with, and monitors and controls compliance, as it would with one of its satellite offices. Non-compliance can see the privilege revoked.
When my Immigration Bill first made provision for corporate permits, it was hailed as progressive and visionary. The Centre for Development and Enterprise, in an April 2002 report, welcomed corporate permits as one of the key ways that the Bill "could ease serious bottlenecks in access to skills? (it) is a large move towards an immigration policy that is consonant with a dynamic open economy."
But now, without explanation, the new Immigration Amendment Bill intends to limits the scope of the definition of a corporate applicant to a juristic person established under the laws of the Republic which applies for a corporate permit, while excluding a juristic person established under the laws of a foreign country which conducts business, not-for-gain, agricultural or commercial activities within the Republic.
In addition, the Bill tasks the Minister with publishing in the Government Gazette from time to time specific sectors in which corporate applicants must conduct business in order to receive a corporate permit.
This limitation on corporate permits will have a fundamental affect on international corporations which operate in South Africa. Big names that are thinking of coming to our shores will need to think again, and consider what this policy shift means. The first name that springs to mind is Wal-mart.
COSATU has been less than complimentary over the retail giant's offer to buy Massmart, which represents Game, Builders' Warehouse and Dion Wired. It criticised Wal-mart for being a bad employer with a poor track record of respect for its workers. Surely it would strike fear into COSATU's heart to see Wal-mart become a corporate applicant, able to issue its own work permits and move them from one foreigner to another. Could the imminence of the Wal-mart deal have contributed to the haste behind the tabling of this Bill?
That, as I said, is the kind of wild speculation the Department leaves itself open to when it fails to accompany its decisions with reasons, motives and implications. Silence can be interpreted in a myriad of ways.
Yours in the service of the nation,
Prince Mangosuthu Buthelezi MP
Issued by the Inkatha Freedom Party, October 6 2010
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