A sad indictment of heartless South African Home Affairs…

When a judge, writing in July 2015, says the treatment of an individual in a case he’s been hearing is one of the worst since the advent of democracy, you pay attention. Who is this person who has been treated so badly? What happened, and who was responsible for abuse that shocked even a hardened judge? Emeka Christian Okonkwo is a Nigerian trader. It’s an undisputed fact that he’s in South Africa quite lawfully. He had a little shop in East London where he sold cellphones and gold chains for which he was properly licensed. But on 3 August 2012 his world turned upside down: He was summarily picked up and detained by officials of the Department of Home Affairs, long a byword for high-handed abuse of individuals and of an equally high-handed disregard for the law.

 

They pretended that they had a warrant for his arrest – a blatant lie as it turned out. Then they locked him up in Fort Glamorgan prison, turned their backs and walked away. For 75 days he languished there, completely cut off from family and friends. No one except the officials who incarcerated him knew where he was. He wasn’t charged or taken to court. He wasn’t told why he was being locked up or what he was supposed to have done wrong. In fact, as Judge Phakamisa Tshiki said later, those who locked him up never had any intention to take him to court, and it was the clearest case he had seen of malicious arrest and detention. Okonkwo might still be there if it hadn’t been for an alert prison warden – someone who should be nominated for a human rights award – who took an interest in this man, imprisoned for no apparent reason. Thanks to that intervention Okonkwo was ultimately simply let go, without ever having appeared in court or being informed of what sin he was supposed to have committed. But the abuse of Okonkwo continued even after his release. Not surprisingly he sued the Department of Home Affairs, but did the department admit its officers were culpable and offer to make amends? No way. They fought the case as though some high principle were at stake, forcing Okonkwo to go through every legal hoop until the matter was about to be heard as a full trial. Only then, with court dates settled and the matter about to proceed, did they cave in and admit that his arrest and detention were unlawful and that they were liable to pay damages of whatever amount a court found appropriate, as well as his legal costs. When the question of the actual damages was argued, the two parties couldn’t agree on the appropriate compensation he should be awarded and the issue had to be decided via a full-blown trial. Okonkwo was the only witness. The department, despite fiercely defending the matter, led no evidence whatsoever. Okonkwo told a sorry tale of how his life as fallen apart as a result of his unlawful detention. His wife and child are both lost to him. She left him and his child has gone, too, because he couldn’t take care of them while he was locked up. The arrest in his shop was made more humiliating as it was witnessed by his family, neighbours and others. His experience in the cells was not only humiliating, it was terrifying as well, with other prisoners attempting to rape him.

 

For 75 days he had no bed, he couldn’t eat the food provided, there was competition for the toilets. The whole place stank. Perhaps the most outrageous part of the whole story, however, is the two-part argument put up on behalf of the department to explain why Okonkwo should be paid far less in damages than he claimed: The court was ‘dealing with public funds’, said counsel for the department; moreover the court had to weigh up what was appropriate to award as damages considering Okonkwo’s ‘standing in society’. The implication of the second part of the argument was that he was a nobody, a mere Nigerian trader, and he should therefore be satisfied with less compensation than would be awarded to an important person. Such an argument speaks volumes about the department’s understanding of the Bill of Rights and the guarantee of equality in our Constitution. As for the first part of the argument, that public funds that would be used to pay damages to Okonkwo – there is a solution to the problem, namely that the responsible officials pay the damages out of their own pocket. In the end Judge Tshiki, who heard the case in the High Court, East London, called the way the department handled the litigation ‘reprehensible in the extreme’, awarded Okonkwo damages of R750 000 plus legal costs. There’s deep irony to the timing of judgment in this case. It was delivered 800 years, to the very month, after the signing of the Magna Carta, that charter which has so fundamentally shaped our views of human rights over the centuries, and which is one of the influences that led ultimately to such other documents as South Africa’s Constitution. Here, for example, is Chapter 39 of the Magna Carta: No man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgment of his peers or by the law of the land. For 800 years that has been a touchstone by which a government could be judged. In the case of Okonkwo, however, you see a man taken and imprisoned, dispossessed of his family not to mention his financial losses, completely without sanction by the law of the land.

 

It’s a damning indictment of the Department of Home Affairs, its officials and the broader government that continues to allow this department to behave as though the Constitution did not exist. Actually, since our money will pay for this atrocity, it’s also an indictment of the public.

 

Unless we speak up, urging that officials who flagrantly defy the law pay for their misdeeds out of their own pockets, and that legal action is taken against them where appropriate, we are unavoidably complicit in their crimes. That, at any rate, is my view. and in this, the first of what will be a fortnightly column, I put it forward for debate. My intention in A Matter of Justice is to highlight judgments and other legal issues through which we can see more clearly where we’ve come from and where we’re going. My hope is that these columns, with the discussion that hopefully follows, will help contribute to a better understanding and appreciation of our Constitution as well as the democratic society, founded on the rule of law, that we want to create.

 

Okonkwo v Minister of Home Affairs & another

Article written by Carmel Rickard

 

 ‘Not all diplomats understand new visa rules – EWN – 3 June 2015

Provincial officials say the new policy has derailed an Indian tour group’s plans to travel to the country.

CAPE TOWN – Western Cape Economic Development MEC Alan Winde said it has become evident not all South African diplomatic officials stationed abroad understand the new visa regulations.

Provincial officials said the new policy has derailed an Indian tour group’s plans to travel to the country after a child in the group wasn’t granted a visa because of confusion around the unabridged birth certificate requirement.

This is despite the fact that both parents’ details appear on an Indian passport.

Winde said it’s up to Home Affairs to ensure all officials are up to speed with the new rules.

“Home Affairs need to establish that every single one of our embassies and consulates are up to speed, double check that everybody understands what the process is.”

Minors from visa-exempt countries are required to have an unabridged birth certificate when entering the country.

IMPACT ON TOURISM

On Monday, the tourism industry described the new regulations as impractical and an extra burden which will lead to disinvestment.

It affects tourists who want to travel to South Africa as they must now personally visit South African embassies abroad while minors need an unabridged birth certificate.

Single parents will also need to provide affidavits of consent from absent parents when travelling with a child.

The Home Affairs Department’s Mayihlome Tshwete said there have been concerns over unabridged birth certificates, but this has now been resolved.

“We’re able as a government and as home affairs to now read birth certificates that are not translated.”

The South African Tourism Services Association (Satsa), which represents more than 1,000 companies, said it will consult members and decide how to challenge the new regulations.

Satsa’s David Frost said the new regulations mean chaos.

“People in Bulgaria are totally oblivious to this and when they arrive in Frankfurt, South African Airways (SAA) asks them, ‘Where is your birth certificate ‘and they don’t have any. They have a prepaid non-refundable holiday and they’re put on a plane and sent back to Bulgaria.”

He said the tourism industry will suffer severely.

At the same time, some role players in the tourism industry are considering challenging the new visa regulations in the courts.

Frost said, “I think they are making it up as the go along. There is no best practice internationally. We are the only country in the world that is introducing this and you would think if it was such a light bulb moment more sophisticated countries that have been dealing with child trafficking for many years will go down this route. This is actual lunacy.”

Visa rules may be reviewed – Radebe

Cable Car ImageJune 1 2015 – Sechaba ka’Nkosi Business Report  

INDEPENDENT MEDIA The cable car to the top of Cape Town’s Table Mountain. Tourism has taken a knock with South Africa’s visa regulations. Photo: Adrian de Kock

Johannesburg – The government was considering reviewing the controversial visa regulations, Minister in the Presidency Jeff Radebe said.

Radebe told a World Economic Forum (WEF) pre-briefing in Johannesburg on Friday that the government had been inundated with calls for a review amid fears that the regulations might stifle growth, particularly in the tourism and hospitality industries. He said the government had prioritised the revision of the regulations as a matter of extreme urgency.

“We are looking at all issues that have been raised pertaining the visa regulations,” said Radebe. “Despite the noble intentions of these immigration policies, they have had an unintended consequence which needs to be addressed.”

The WEF begins its three-day 25th forum on Africa in Cape Town from Wednesday to discuss among other issues harnessing the informal economy, migration and combating the rise of terrorism on the continent.

The government’s change of heart on visa regulations comes amid fears that the country and the tourism industry, in particular, stand to lose nearly R7 billion as big markets such as China and India cancel their bookings to South Africa.

Last week reports emerged that Air China had cancelled the launch of direct flights to South Africa over the regulations.

Radebe said the regulations would form part of the government’s reforms on migration policy to ensure that South Africa remained the number one tourist destination in Africa.

Reformed policy

“That matter is on the agenda and we are working very closely with the tourism minister in order to ensure that at the end of the day when we come up with these new reformed immigration policy it will take into account all the concerns that have been raised by the industry,” Radebe said.

“We will make the changes as soon as we can get all the information because it is a matter that we are dealing with as matter of extreme urgency. That is why now we are relooking at the whole matter of visa regulations.”

WEF Head of Africa Elsie Kanza said the meeting should also look at how far Africa had progressed regarding its infrastructure development programmes.

Kanza said the meeting would provide Africa with an opportunity to share with other continents on how the migration policies could be enhanced.

“What we are also seeing is a strong interest in the underlying causes of migration that force people to leave their countries to seek a better life elsewhere,” said Kanza. “If you look at the way people have handled migration, it has to talk to human rights and has to mitigate the impact that these have on people’s movements from one area to the next.”

Kanza said the visa regulation problem in South Africa was an issue that needed more than just addressing the policy, but it also had to look at the full integration of the African continent into one economic powerhouse.

Kanza estimated that such an integration would cost more than R600bn.

“A challenge to fast track integration is the fact that many developing countries actually lack connecting infrastructures, that is why this is a critical topic and that is why we will have a full session on that,” said Kanza.

“Closing the gap on infrastructures will cost about $50 billion (R600bn),” she said.

The regulations with respect to minors travelling – South African Immigration

Here is a great document referring to categories of travel and what the requirements at port of entry will be South Africa Regulations in respect with Minors Travelling.  For further information on the matter please contact us tracy@relocationafrica.co.za.Travel with minors

South African Immigration Regulations are Crippling Language Schools

Click to read the article published in the Cape Argus on how the South African immigration regulations are crippling the Language Schools Language schools.  Email us for all your immigration requirements tracy@relocationafrica.com.