The Eisenberg Newsletter

Text Box: Corporate permits (section 21 of the Act) are the answer when it comes down to South African-based employers seeking to employ large numbers of foreigners. The concept of a corporate permit emanated from the previous Minister, Dr MG Buthelezi and his advisors. It is surprising that the current Minister has not sought to rid the system of this instrumentality, given the enmity which followed Buthelezi’s ouster from Cabinet. Although such program is employment based, it is dependent on the direct support of the Departments of Trade & Industry and Labour. Trade & Industry’s mandate is to support inflows of foreign capital – human and financial. Labour will invariably support the employment of foreign workers if it is satisfied that an equivalent or larger number of South Africans will be employed as a consequence and that wage rates will not be lower for foreigners. Eisenberg & Associates cautions however, that although the Department may issue a Corporate Permit and the specific number of work permit authorization certificates approved for a Corporate Applicant, it may not be in a position to process the actual work permit applications. The Cape Town Regional Office has expressed its concern, for instance, that Head Office has requested the payment of the usual work permit application fee of R1520 for each corporate worker, even though no such fee is prescribed. Although the value of the corporate permit application scheme may be negated by administrative incompetence, we believe that the processing side of corporate worker applications will normalize shortly.

Text Box: Collapse of Home Affairs Administration: Threat to President Mbeki’s Credibility

Text Box: The administrative centre of the National Immigration Branch of the Department of Home Affairs has collapsed. The lack of responsiveness of the Office of the Director-General, Mzuvukile Jeff Maqetuka, of the Deputy-Director-General (while he, Arthur Fraser remains on suspension), and of the Minister Nosiviwe Mapisa-Nqakula, is plaguing the implementation of the Immigration Act. Applications remain pending with the Minister for extended periods—in some cases, in excess of one year, and requests for clarification and guidance conveyed to Pretoria by Home Affairs officials employed at offices within South Africa and those posted at mission abroad remain unanswered. This administrative paralysis poses a severe threat to President Thabo Mbeki’s concept of the African Renaissance and his appeal to the international community to pay more attention to the African continent. In April 1998, the then Deputy-President Mbeki, at the United Nations University, asked his audience: what is it which makes up the genuine African liberation? He argued that a necessary component of liberation is “the struggle to give real meaning to such concepts as transparency and accountability in governance, as part of the offensive directed against corruption and the abuse of power”. In his state of the nation address in February 2004, President Mbeki expressed his abhorrence for “those in the Public Service who see themselves as pen-pushers and guardians of rubber stamps, thieves intent on self enrichment, bureaucrats who think they have a right to ignore the vision of batho pele, and who come to work as late as possible and knock off as early as possible”. It is altogether arguable that the depleting strands of good governance within the Department of Home Affairs poses a grave challenge to the political orientation of this country’s leadership and it’s credibility in the international arena, and domestically. Neither the Director-General nor the Minister seem, incredulously, to be aware of the severity of the impasse, or when challenged appear to be in a state of confusion and denial. Examples of the lack of good governance are ample, and include: The non-publication of the visa code, preventing nationals of foreign countries to understand whether, to what extent and how they are subject to visa requirements for purposes of entering South Africa The non-publication by the Minister of essential regulations for the functioning of South Africa’s employment-based immigration system Delaying decisions on questions of policy and on specific cases for unreasonable periods of time Insufficiently educating immigration decision-makers at all levels, a phenomenon which has lead to enumerable mistakes in the application of law