The real danger comes from zealous officials who are intent on the diligent implementation of intrusive and illogical government regulations. Such officials have the ability to disrupt the lives of citizens and to cause havoc in the affairs of businesses. The officials concerned invariably believe that they are working in the public interest but seldom stop to consult those whose lives and businesses they affect or to consider the unintended consequences of their actions.

So it is with our Minister of Home Affairs, Mr Malusi Gigaba, and his current drive to reform our visa system. He wants to ensure that South Africa has the most up-to-date and effective system available to control the entry of foreigners into our country.

It is important to note that the new system will apply only to citizens of countries that require visas – and will thus not affect visa-exempt travellers from the 77 countries – including most of the countries in Europe, North America, Australasia and southern Africa – from which the vast majority of our visitors come. Notable exceptions are China, India, Russia, (all BRICS partners!), and a number of North African, Middle-Eastern, south Asian and African states. Applicants from these countries will have to apply in person for visas and for biometric testing at South African missions overseas – regardless of the fact that they might have to travel thousands of kilometres to do so.

The new regulations will also require all visitors below the age of 18 – including those from countries that do not require visas – to be in possession of their own passports and unabridged birth certificates. If they are not, they and their families will from 1 October not be permitted to board flights bound to South Africa. South Africans below the age of 18 will also need unabridged birth certificates if they want to travel overseas – and it might take up to one year to obtain them.

The goal of combating human trafficking is praiseworthy. However, in setting this requirement, the Department of Home Affairs is constructing one of the world’s most onerous entry control systems. Although applicants for visas for many other countries are also required to apply in person, South Africa will be the only country that requires travellers under the age of 18 to be in possession of unabridged birth certificates.

It is not surprising that the new regulations have caused widespread alarm:

Despite this outcry, DHA Director-General Mkuseli Apleni insists that “there has been general support” for the new system.  Minister Gigaba is determined to proceed regardless – even though he admits that “the (visa-issuing) offices we have at the moment are insufficient.” Prospective tourists will just have to “take the pain” of complying with new immigration regulations while the system is “being perfected”.

What makes all this even more bizarre is the capricious manner in which Home Affairs deals with visa and permanent residence applications.

On the one hand, applicants for permanent residence have been forced to approach the courts to prevent the DHA from splitting up their families by refusing to allow mothers to rejoin their children in South Africa. In another case, a woman – who is a doctor – was informed after four years that her application for permanent residence had been turned down because she had been given a speeding fine in the USA in 2008.

On the other hand, with a single wave of its rubber stamp, Home Affairs has extended the permanent residence status of 260 000 Zimbabweans for a further three years.

Biometric testing will, as DHA claims, no doubt promote our national security by tightening entry control over travellers from countries that require visas. But how effective will the system really be when one considers that it will not be applied to the millions of visitors who come from visa-exempt countries?

All this is taking place in a country with notoriously porous borders. The government does not know to within a million how many illegal aliens there are in the country. And yet it makes it extremely difficult for bona fide foreigners with critically needed skills to obtain permanent residence!

Theoretically our Constitution protects us against capricious administrative behaviour. In terms of section 33 “everyone has the right to administrative action that is lawful, reasonable and fair.” The Promotion of Administrative Justice Act (PAJA) stipulates that administrative actions can be reviewed by the courts if, among other reasons, they are procedurally unfair – or were taken arbitrarily or capriciously; or if the action was “so unreasonable that no reasonable person could have so exercised the power or performed the function…”

We must hope that affected people will make use of their right to have the new visa regulations and birth certificate requirements reviewed by the courts. In 2001, the Constitutional Court struck down similar immigration regulations that separated families. It is essential that Ministers, Directors-General and officials should be reminded that they are the servants – and not the masters – of the people. If their administrative actions break up families; if they undermine the economy and place irrational burdens on citizens and businesses – they must be consigned to the wastepaper basket.

By Dave Steward, Executive Director of the FW de Klerk Foundation

Photo credit: GovernmentZA / Foter / Creative Commons Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0)