Gary Eisenberg, Eisenberg & Associates
In the latest edition of WWL: Corporate Immigration, Gary Eisenberg at Eisenberg & Associates discusses recent developments in the South African immigration market.
South Africa is currently on the brink of immigration reform. The country’s sixth national elections will be held on 8 May 2019 – a watershed moment following the resignation of President Jacob Zuma on 14 February 2018. During the decade of Zuma’s presidency, South Africa’s borders closed and our country was captured by a cabal of conspirators, including Zuma and the Indian Gupta brothers.
Zuma disliked courts and mistrusted the law. In 2005, Zuma was fired by President Mbeki as a consequence of a High Court having found a conspiracy of politicos guilty of corruption for unlawfully paying Zuma large sums of money. At a time when Zuma faced more than 700 counts of bribery, corruption and fraud, he decided, in the spirit of the ANC’s manifesto of “Submit or Fight” that he would ascend to the apex of political power, and would disarm the criminal justice system and the judiciary against him.
It came as no surprise that Zuma’s first order of business was to disempower the prosecutorial authority, denigrate the judiciary and empower the bureaucracy, including the Department of Home Affairs (DHA). This had the immediate effect of destabilising the immigration administrative process. The closing of our borders by a renegade DHA became the reality of foreigners and immigration lawyers alike. As Ray Hartley wrote in the Independent in 2016:
One of Zuma’s first acts [as president in 2009] was to re-organise SA’s intelligence structures into one department, which was to fall under the control of a new intelligence minister, Siyabonga Cwele.
A few days before Zuma became president on 9 May 2009, he publicly declared that he wanted to review the status of the Constitutional Court:
If I sit here and I look at a chief justice of the Constitutional Court, you know, that is the ultimate authority, which I think we need to look at, because I don’t think we should have people who are almost like God in a democracy
... Why are they not human beings? I don’t want to debate that now, but at the right time I’m keen to engage them before the issue becomes public.
Because ... you can have a judge of whatever level making a judgment (and) other judges turning it and saying it was wrong. (This) just tells you they are not necessarily close to God. And therefore we have to look at it in a democratic setting; how do you avoid that?
Fundamental to Zuma’s state capture project was the depreciation of the rule of law and the legal profession. Zuma’s deep contempt for the judiciary reached its zenith with the government’s refusal to arrest the Sudanese president Omar al-Bashir, who visited South Africa in 2015 and was subject to an arrest warrant issued by the International Criminal Court. As journalist Moshoeshoe Monare put it:
ANC secretary general Gwede Mantashe’s deep-seated antagonism towards the judiciary stems partly from his archaic view of the world, but also from sheer ignorance. After the Pretoria high court ordered the government to arrest Sudan’s President Omar al-Bashir, Mantashe said the Pretoria and Cape Town high courts have a negative attitude toward the government ... Mantashe’s dangerous paranoia makes him believe that anyone who disagrees with the ruling party wants it out of power. He believes the party is supreme and its power unquestionable ... Like the South African Communist Party (SACP), which he once chaired, Mantashe doesn’t see government as the temporary bearer of state authority; for them, winning elections means capturing state power and all its levers – including the judiciary ... They believe any talk of constitutionalism is liberal claptrap and a conspiratorial plot to frustrate the revolution. For them democracy means that the winning party is the principal political actor, eclipsing society and commandeering the state ... The rule of law, according to Mantashe, is a pretentious tool utilised by the judiciary to subvert democracy. Judges, journalists, civil society groups, or anyone who scrutinises and questions the exercise of power is the enemy of the revolution, a closet member of the opposition or part of the liberal conspiracy ... But Zuma and Mantashe are motivated by their desire to cripple the judiciary’s independence and bolster the exutive’s power. Zuma said: ‘The executive must be allowed to conduct its administration and policymaking work as freely as it possibly can. The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections.’
Since at least 2009, South Africa’s immigration system began operating under the aegis of Zuma’s ex-wife, home affairs minister Nkosazana Dlamini-Zuma, as a locus of independent power within the constellation of government departments.
The first phase of the capture of South Africa’s borders and its immigration system began with Dlamini-Zuma’s deployment of cadres as enforcers of a restrictive immigration policy narrative. In 2010, with the centralisation of decision-making on all immigration and citizenship applications, a new approach to immigration control was predicated on the fabricated scourge of human trafficking. This phase morphed into legislation with the enactment of stringent immigration legislation in 2014, effectively closing our borders to foreigners.
The patterns of gross inefficiency and maladministration in the DHA’s handling of citizenship and immigration applications are inextricable from the “designed chaos” that has been widely observed in the country. Compliant applications have frequently been rejected; appeals and ministerial exemption applications have been stymied by red tape, to the extent that corruption often seemed the only remedy for those desperate enough. Secretary-general of the South African Council of Churches, Bishop Malusi Mpumlwana – in his report on the May 2017 Unburdening Panel hearings – cautioned that what appears to be chaos and instability in government “may well be a systemic design of the madness that ills our political environment – a chaotic design”. Likewise, investigative journalist Richard Poplak observes:
The political sewerage never stops flowing long enough for us to grasp complexity, a situation that should never be confused with commonplace chaos. The mess has been carefully curated: the intention is to disassemble the administrative state, and replace it with a perfectly calibrated extraction machine.
The system of immigration administration in South Africa based itself on a dangerous duality of standards of administrative justice, while the DHA complex of bureaucrats and cabinet ministers remained firmly entrenched. This complex artificially manipulated policies, procedures and access to efficient decision-making for purposes other than preserving the integrity of the legislative apparatus. The closure of the borders to everyone created an opportunity to modulate their opening to those willing to pay a higher price.
One such example is the politically preferential treatment granted to a senior member of the Popular Front for the Liberation of Palestine, Leila Khaled, who was invited to South Africa in February 2015 by the anti-Israel Boycott Divestment and Sanctions campaign to participate in a roadshow. Khaled is clearly a “prohibited” person in terms of our immigration legislation: she belongs to an organisation that furthers its objectives through crime, including the hijacking of planes.
Malusi Gigaba, at that time home affairs minister, went to the airport as part of her welcoming committee. The only way that Khaled could have lawfully entered South Africa was for her prohibition to be lifted by the director-general with “good cause”. By all accounts, this was not done, and her entry was facilitated by the DHA complex without any public explanation. Gigaba’s role in facilitating Khaled’s entry outside the scope of the normal legislative constraints cannot be gainsaid.
In June 2015 al-Bashir escaped an international arrest warrant by departing the country through Waterkloof Airforce Base with the full knowledge of DHA director-general Mkuseli Apleni and Gigaba. Apleni conceded in court papers that, among the batch of passports belonging to the delegation that left Waterkloof, al-Bashir’s was not examined by immigration officers. This is an indisputable case of political rent-seeking at the behest of the executive authority, with the full cooperation of a willing complex of officials.
This complex was supported by rank-and-file officials planted in positions of influence and practical usefulness. Gideon Christians, first secretary of consular affairs in New Delhi – where most of the Gupta-related visas applications were received – recently had charges of corruption and fraud laid against him by the non-profit Organisation Undoing Tax Abuse, which aims to challenge corruption.
Evidence now in the public domain includes emails showing that a senior Gupta associate asked a second DHA operative, Major Kobese – the coordinator of foreign consular missions at the DHA’s head office in Pretoria – and other officials to exercise lenience in processing and expediting visas for the benefit of Gupta businesses or family members. Christians’ deployment to New Delhi was, in Kobese’s words, “outside the normal recruitment process”.
While Christians and Kobese remain untouchables within the DHA, Zuma and Gigaba were forced to resign in February and November 2018 respectively. Cyril Ramaphosa immediately assumed the presidency. Ramaphosa – a lawyer, billionaire and labour union leader – was Nelson Mandela’s first choice for President. Ramaphosa inherited a momentum of immigration reform from his predecessors in the form of a White Paper on International Migration. But Ramaphosa’s appointment of previous state security minister Siyabonga Cwele as Gigaba’s replacement creates a disturbing chill on a post-Zuma immigration regime.
The White Paper was approved by the Zuma cabinet in March 2017 and purports to provide a policy framework that “will guide the comprehensive review of immigration and related legislation” in South Africa, and will result in draft amended legislation in March 2019. The White Paper rejects South Africa’s existing immigration management system because it fails to adequately protect South Africa in terms of international best practices (a holistic, risk-based compliance management system). This is a disappointing endeavour as the ruling ANC has, since 2004, enjoyed unfettered control of immigration policy in South Africa. The White Paper refrains from posing the obvious question: why has Home Affairs not been able to transform itself in the past 15 years into the type of organisation the White Paper purports to describe?
One of the principal links between government and civil society is the role of lawyers representing foreigners seeking entry and immigration status in South Africa. The White Paper identifies legal practitioners and the court process in abusing systemic loopholes at the expense of government, and in the driving-forward of policy. Lawyers holding powers of attorney from their clients are often disregarded and maligned by DHA officials processing applications, especially in foreign South African missions. There is little doubt that the Zuma-era antipathy towards legal representation and the judicial process finds its place within South Africa’s immigration bureaucracy.
The White Paper fundamentally misconceives the role of lawyers as the collective representation of civil society, and the litigation process, in the shaping of immigration policy. The White Paper fails to acknowledge that the litigation process ensues only when the possibility of negotiating workable solutions with the DHA has failed. In order to achieve a comprehensive approach to border management, which includes the coherence of both government and civil society representation, the attitude of DHA officials must be purged and transformed into a constitutionally sensitive disposition towards human rights and service delivery.
The White Paper proposes that permanent residence and citizenship be “de-linked”. It argues:
In South Africa controls are weakened because there is currently a linkage between certain temporary residence visas ... and permanent residence permits ... which, provided certain conditions are met, effectively creates automatic qualification for [permanent residence permits] and subsequently for citizenship. Thus one of the main criteria used to qualify for permanent residence is the period of stay in the country, irrespective of the type of temporary residence visa initially issued, or purpose of entry.
It concludes by stating:
There is a misconception that immigrants have a constitutional right to progress towards permanent residency or citizenship status ... The current approach does not allow the granting of residency or naturalization to be used strategically.
The White Paper seeks to replace permanent residence permits with temporary residence visas in order to dispel a misconception that immigrants have a constitutional right to progress towards citizenship status on the basis of a number of years spent in the country.
This is an irrational approach. There exists no such misconception at all. Cogent policy re-formulation cannot be based on a bid “to dispel a misconception”. There is a legislative framework in place that allows a foreigner in possession of permanent residence status to apply for citizenship by naturalisation, after demonstrating ordinary residence in South Africa for a minimum of five years. In order to achieve citizenship on this basis, a bureaucratic process is concluded by which the underlying permanent residence permit is verified to assess its bona fides; police checks are completed; and compliance with the legislative scheme is ensured. De-linking residency and citizenship can easily be accomplished by amending section 5 of the South African Citizenship Act in a way that de-emphasises or removes any link between the period of ordinary residence in South Africa and an expectation of citizenship. Re-formulating immigration policy to achieve this end is overkill by any standard and a dangerous pretext for tightening border control even more.
The need for a new international migration policy in South Africa, and the production of the White Paper, together constitute nothing more than a concession that South Africa’s endeavour to constructively, compliantly and effectively manage international migration since 1994 has been an unmitigated failure. The very same individuals – at least since 2004 – responsible for the inadequacies highlighted by the White Paper are its current authors. The White Paper does not reveal its sources or its true authors, so we may legitimately rely on the assumption that DHA management, including the complex of officials involved with Zuma-era state capture, are responsible for the analysis and conclusions drawn in the White Paper. The White Paper concedes their guilt that, with all their resources available during the past 14 years, they were unable to adopt international best practices codified by the World Bank almost a decade ago.
Ramaphosa’s cabinet should keep the White Paper in abeyance until such time as South African policymakers have conducted the necessary research and analysis, and are able to arrive at their conclusions, in a rational empirical manner after national elections.
Parts of this article first appeared in Gary Eisenberg’s piece “A parallel shadow regime has hijacked control of SA’s border”, published in the Sunday Times (South Africa) on 20 May 2018.