Latest news with #PromotionofAdministrativeJusticeAct
Daily Maverick
21-05-2025
- Politics
- Daily Maverick
Home Affairs sent back to drawing board on Refugees Act after legal setback
The Department of Home Affairs has been forced to reconsider its approach to amending the Refugees Act after legal advisers rejected its proposed changes to controversial sections that had been ruled unconstitutional. The Department of Home Affairs (DHA) must go back to the drawing board to align the Refugees Act with the Constitution, following advice against its proposed approach to sections 22(12) and 22(13) of the legislation. This emerged during a meeting in Parliament of the Portfolio Committee on Home Affairs on Tuesday, at which Home Affairs Minister Dr Leon Schreiber and other DHA officials updated the committee on progress in amending sections of the legislation that courts had ruled were constitutionally deficient. In 2023, the Scalabrini Centre took the DHA to court over amendments made to the Refugees Act in 2020, specifically the introduction of sections 22(12) and 22(13). These sections provided for the 'automatic abandonment' of asylum applications if an asylum seeker or refugee failed to renew their permit within one month of its expiry. In practice, this meant that if an asylum seeker did not renew their visa, the DHA could presume they no longer wished to seek refugee status or apply for asylum, and could be subject to deportation or required to leave South Africa. Scalabrini brought the case before the Western Cape High Court, arguing that the provisions infringed constitutional rights, including the rights to life, dignity, and freedom and security of the person. The organisation cited the practical and systemic challenges that applicants face at the DHA when attempting to renew their permits. Earlier this month, the court declared the provisions invalid and unconstitutional. Following the judgment, the DHA consulted the Refugee Appeals Authority and the Standing Committee for Refugee Affairs. Both bodies supported the subsections declared constitutionally invalid, recommending their retention but proposing that the period for renewing an expired visa be extended from one month to 180 days, in line with the Promotion of Administrative Justice Act. However, the Office of the Chief State Law Adviser (OCSLA), which provides legal counsel to the executive and all government departments, declined to issue a preliminary certificate for the draft Bill. It said the DHA's approach to the judgment and its attempt to amend the legislation failed to address the fundamental reasons that sections 22(12) and 22(13) were declared invalid, which were: The provisions were arbitrary, as their introduction meant asylum seekers could be deported not solely on the merits of their claims but due to external circumstances. The provisions did not account for external factors that might prevent the renewal of asylum visas, such as the location of the nearest Refugee Reception Office (RRO), the length of queues at RROs, or the workload within these offices. The DHA has concluded that any amendments to the Act will need to be addressed through a supplementary white paper at a later stage. DHA pivots on legal challenge approach The DHA's next attempt at amending the Act is likely to comply with constitutional requirements, if Schreiber's address to the portfolio committee is any indication. Schreiber noted that Home Affairs was among the most litigated departments in government, if not the most, and that this was something the DHA aimed to change. He stated that the department no longer viewed litigation as something that must always be opposed at any cost, adding: 'We are looking at cases in a much more merit-based way, considering whether there are prospects of success and certainly not making decisions to oppose matters for the sake of it.' Discussing the department's approach to legal challenges, Schreiber said the DHA's decisions were always anchored in legal advice, constitutionality and the requirements of the law. 'We have a high mountain to climb in terms of re-establishing the rule of law in this space of Home Affairs — whether it is civics, immigration or the asylum management system — and we cannot do that unless we ourselves are leading by example,' said Schreiber. He emphasised that ensuring the DHA's operations and functions aligned with the Constitution was not merely about improving the department's image, but also about reducing costs. 'The contingent liability that comes from legal exposure, as well as the day-to-day cost of spending so much money on legal cases, is in and of itself, in the current budget environment, a very clear reason for us to focus on this area and make sure we reduce the burden of legal cases on this department,' he said. DM
Eyewitness News
20-05-2025
- Politics
- Eyewitness News
NPO challenges constitutionality of directive making mediation compulsory
JOHANNESBURG - A non-profit organisation (NPO) challenging the constitutionality of a directive making mediation compulsory says there is no capacity for the exercise. Gauteng Judge President, Dunstan Mlambo, introduced the practice in April in an attempt to reduce the backlog in cases in the division. The Personal Injury Plaintiff Lawyers Association (PIPLA) says there are between 250 to 300 road accident fund matters on the court roll per week in the Gauteng division. It argues that there aren't enough mediators to handle such a caseload and wants the Constitutional Court to declare the directive unconstitutional. The association is sceptical that mediators would have the resources to cope with a growing caseload that the high court, with settled systems and judicial officers, has continuously struggled to keep up with. The protocol provides that as a minimum requirement for approval as a mediator, one must have had at least five previous matters in which they have acted as a lead mediator. This, PIPLA argues, further limits the pool of existing mediators, while the requirement that a claims manager from the road accident fund also be present during the process is a factor that further acts against the directive, as there aren't enough officers to participate in such a process. The organisation asks the Constitutional Court to declare the directive invalid to the extent of its inconsistency with the Constitution and, if necessary, review the directive and set it aside under the Promotion of Administrative Justice Act. VOLUNTARY MEDIATION The Gauteng High Court handles about 50% of the cases litigated in the country, while the number of judges in the division has not increased since 2008. Section 173 of the Constitution stipulates that the Constitutional Court, the Supreme Court of Appeal and the high courts each have the power to protect and regulate their processes and to develop the common law, taking into account the interests of justice. But PIPLA argues that it is impermissible to use this provision to compel parties to participate in compulsory mediation. It adds that courts can only encourage and facilitate mediation, but not direct parties to participate in what should be a voluntary process. The organisation says compelling parties to engage in such an exercise would achieve nothing but to add to the costs borne by the parties and damage the perceived effectiveness of the alternative dispute resolution process. In its request for a declaration of constitutional invalidity, the organisation says the directive constitutes an unacceptable and unjustifiable limitation of litigants' rights to access the courts.
IOL News
06-05-2025
- Politics
- IOL News
Minister Schreiber faces mounting pressure over Phil Craig's citizenship status
Parliamentarians want a comprehensive report from Home Affairs Minister Leon Schreiber on the immigration status of the Cape Independence Advocacy Group's Phil Craig Image: Supplied Home Affairs Minister Leon Schreiber is under pressure to provide a comprehensive report to Parliament on the immigration status of the Cape Independence Advocacy Group leader Phil Craig. This comes after the home affairs portfolio committee met yesterday to consider Craig's citizenship amidst his advocacy for the secession of the Western Cape to form an independent republic. Committee chairperson Musa Chabane expressed dissatisfaction with Schreiber's report, labeling it a 'by the way response' to all the issues that have been raised. 'We must refer back this matter to the minister to give us a comprehensive detail on all matters involved on this individual,' Chabane said. Craig has been subject of parliamentary questions with MPs wanting to know the details of his citizenship, especially whether he was naturalised person or permanent resident in the country. Schreiber has also been asked whether he will initiate a review of Craig's dual citizenship. In his written responses, Schreiber referred MPs to the Promotion of Administrative Justice Act and the Protection of Personal Information Act and in at least one response stated that departmental records do not show any application for naturalisation from Craig. This has not stopped recent calls for Craig's deportation and denial of his South African citizenship. ActionSA MP Lerato Ngobeni strongly condemned Schreiber's vague answers, drawing parallels to the recent case involving Miss SA contestant Chidimna Adetshina, when it emerged her mother was undocumented. 'There is absolutely no way we can accept half hearted reports from the department, particularly the minister, who has the power to confer or accept somebody's plea citizenship or lack thereof. I doubt that Mr Phil Craig passes the citizens' test,' she said. Ngobeni also said the committee should push Schreiber to give an unequivocal response as Craig's application sits on his desk and his thoughts around affording him citizenship in the country. Video Player is loading. Play Video Play Unmute Current Time 0:00 / Duration -:- Loaded : 0% Stream Type LIVE Seek to live, currently behind live LIVE Remaining Time - 0:00 This is a modal window. Beginning of dialog window. Escape will cancel and close the window. Text Color White Black Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan Transparency Transparent Semi-Transparent Opaque Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps Reset restore all settings to the default values Done Close Modal Dialog End of dialog window. Advertisement Next Stay Close ✕ 'The interesting thing about Phil Craig is that he is applying to be a citizen of a republic he does not believe in. We don't currently have a Republic of the Western Cape in this country,' she said. Ngobeni also said Schreiber should receive a letter that indicated he needed to come back and account "the very same way everybody went after Chidima when her matter was on the table". EFF MP Thapelo Mogale echoed Ngobeni's sentiments that a strong message should be sent to Schreiber as it was unacceptable that the committee had to wait. 'This matter has been raised for over a month with the minister. In the previous meeting, two weeks ago when he was supposed to come and respond, he did not attend that meeting. We understood that he was in Lesotho for a bilateral meeting but until now we don't have a clear answer as to the status of this particular individual in South Africa,' he said. Mogale noted that President Cyril Ramaphosa's spokesperson Vincent Magwenya said in an interview that Craig was a permanent resident. 'When we ask the minister as members of this committee through written questions to provide clarity on the status of this person, the minister tells us about PAIA and POPIA Acts and all those things that limit our access to this information. 'We want to know whether this guy is a permanent resident of South Africa, if he applied for citizenship, whether that citizenship will be given or not,' he said. MK Party's MP Sihle Ngubane said Schreiber should not take them for a ride on the issue of Craig.
IOL News
06-05-2025
- Politics
- IOL News
Parliament demands answers from Minister Schreiber on Phil Craig's immigration status
Parliamentarians want a comprehensive report from Home Affairs Minister Leon Schreiber on the immigration status of the Cape Independence Advocacy Group's Phil Craig Image: Supplied Home Affairs Minister Leon Schreiber is under pressure to provide a comprehensive report to Parliament on the immigration status of the Cape Independence Advocacy Group leader Phil Craig. This comes after the home affairs portfolio committee met on Tuesday to consider Craig's citizenship amidst his advocacy for the secession of the Western Cape to form an independent republic. Committee chairperson Musa Chabane expressed dissatisfaction with Schreiber's report, labeling it a 'by the way response' to all the issues that have been raised. 'We must refer back this matter to the minister to give us a comprehensive detail on all matters involved on this individual,' Chabane said. Craig has been subject of parliamentary questions with MPs wanting to know the details of his citizenship, especially whether he was naturalised person or permanent resident in the country. Schreiber has also been asked whether he will initiate a review of Craig's dual citizenship. In his written responses, Schreiber referred MPs to the Promotion of Administrative Justice Act and the Protection of Personal Information Act and in at least one response stated that departmental records do not show any application for naturalisation from Craig. This has not stopped recent calls for Craig's deportation and denial of his South African citizenship. ActionSA MP Lerato Ngobeni strongly condemned Schreiber's vague answers, drawing parallels to the recent case involving Miss SA contestant Chidimna Adetshina, when it emerged her mother was undocumented. 'There is absolutely no way we can accept half hearted reports from the department, particularly the minister, who has the power to confer or accept somebody's plea citizenship or lack thereof. I doubt that Mr Phil Craig passes the citizens' test,' she said. Ngobeni also said the committee should push Schreiber to give an unequivocal response as Craig's application sits on his desk and his thoughts around affording him citizenship in the country. Video Player is loading. Play Video Play Unmute Current Time 0:00 / Duration -:- Loaded : 0% Stream Type LIVE Seek to live, currently behind live LIVE Remaining Time - 0:00 This is a modal window. Beginning of dialog window. Escape will cancel and close the window. Text Color White Black Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan Transparency Transparent Semi-Transparent Opaque Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps Reset restore all settings to the default values Done Close Modal Dialog End of dialog window. Advertisement Next Stay Close ✕ 'The interesting thing about Phil Craig is that he is applying to be a citizen of a republic he does not believe in. We don't currently have a Republic of the Western Cape in this country,' she said. Ngobeni also said Schreiber should receive a strong letter that indicated he needed to come back and account 'the very same way everybody went after Chidima when her matter was on the table'. 'There is absolutely no way that we can tolerate people who want to be in this country to divide it and also to advocate for some kind for some balkanisation of our country. It is absolutely unacceptable. We need to make the minister to understand that, without any fear or favour,' she added. EFF MP Thapelo Mogale echoed Ngobeni's sentiments that a strong message should be sent to Schreiber as it was unacceptable that the committee had to wait. 'This matter has been raised for over a month with the minister. In the previous meeting, two weeks ago when he was supposed to come and respond, he did not attend that meeting. We understood that he was in Lesotho for a bilateral meeting but until now we don't have a clear answer as to the status of this particular individual in South Africa,' he said. Mogale noted that President Cyril Ramaphosa's spokesperson Vincent Magwenya said in an interview that Craig was permanent resident. 'When we ask the minister as members of this committee through written questions to provide clarity on the status of this person, the minister tells us about PAIA and POPIA Acts and all those things that limit our access to this information. 'We want to know whether this guy is a permanent resident of South Africa, if he applied for citizenship, whether that citizenship will be given or not,' he said. MK Party's MP Sihle Ngubane said Schreiber should not take them for a ride on the issue of Craig.
