#702Openline– Home Affairs withdraws directive on asylum applications

0:00You're with Climent Mania Teila. On 7.02. Let's walk the talk. Streaming on the Prime Media Plus app. DSTV Channel 856. 92.7 and 106.7. 6 minutes after 9 o'clock, Dume Lung, happy Friday. Welcome to the Climent Mania Teila Show. It's great to have you with us here on 7.02. I hope you're well this morning. All right, there's breaking news. There's no time to waste. We're going to get straight into it. I'm going to speak to the Minister of Homa for his Leon Schreiber in a moment because they have now revessed this directive. They've withdrawn a directive regarding the intake of asylum applications following these violent protests in Durban, in Soweto and other parts of the country. And guys, to be clear, violence is wrong. And I think that's where we've got to begin. When we are unhappy about things, you can't go around banning buildings and banning cars and putting people's lives at risk.

1:03We've got to be clear about that. That's not something that you can encourage or celebrate. That is wrong. It doesn't work for us. It doesn't work for the rule of law. But back to this directive by the Homa Fist Department. I'm actually, I was looking at a statement that was issued by the Homa Fist Department explaining it. And one line says, they attempt to practically implement the judgment immediately led to serious consequences that could not have been foreseen in the court order. I mean, really? The consequences could have been foreseen. That's exactly the conversation I had with the DDG of the Homa Fist Department. Remember to learn in Mavusa, the person who actually signed the directive. He spoke to us on Monday. And he even confirmed that the department is actually going to struggle here. Because remember the directive said, the department can no longer tend someone away at the door simply because they entered the country illegally. But he admitted that this is going to overwhelm the department

2:04because more illegal migrants may take advantage and go queue and claim to be asylum seekers, which is exactly what has happened. So it causes an administrative burden. So how does Homa Fist go and implement the directive when it doesn't have capacity to do so? There are always remedies that you know, so you can always maybe even go back to the constitutional court and see constitutional clarity or say, please, is it possible for us to have more time to make the application? Things like that are the things that could be considered. But it is a bit reckless to just go ahead with something when you've not even prepared, knowing exactly the backlog that you're dealing with. I do want to weigh in on this issue of, oh, the constitution is being attacked when people are clearly and merely just raising concerns about what may not serve us as South Africans. And I'm going to go back to that in a moment. Right now, though, I want to bring in Leon Schreiber, who is Dr. Leon Schreiber, who is the minister of Homa Fist joining me on the line now. Minister, thank you so much for making time for us.

3:06I really appreciate it. Good morning. Morning, Clayman. Always good to be with you. Why has this decision now been taken to withdraw this directive? Yeah, I think basically because we could see that the consequences of implementing were far more intensive than even we had predicted when we were making these warnings during the court process. So we had to really protect our operational capacity. I think the numbers that we were seeing were absolutely unprecedented. And in addition to that, unfortunately, there was also real consideration of the safety of our officials' climate. I think this is top of mind. But ultimately, I think the answer to your question is to protect the integrity of the Homa Fist process itself. I think it's important to say, of course, that this all emanates from a court process that started in the Western Cape High Court against the so-called good cause interview requirement

4:09for people who had not immediately claimed asylum when they entered the country. So previously, we were able to ask them, why didn't you immediately claim asylum? And then it says whether they had a good reason or not. That case was originally won by Homa Fist in the High Court. Then it was appealed in the Supreme Court of Appeal and in the Constitutional Court, vigorously opposed in both of those forums by Homa Fist. But ultimately, the Concord ruled unanimously that the good cause interview should not be done. And obviously, when the highest court in the land speaks, you have to take steps to implement it, which is what Homa Fist did. But what we're now saying is there are now new facts in terms of the scale of what this has caused that we also have a responsibility to take into account. OK, but, Minister, I could have told you that. And I'm just a layman who doesn't even know what the numbers look like at the Homa Fist department. So to argue that we really didn't foresee the serious consequences that could arise, I'm not sure if I take that. And let me put it this way.

5:10I interviewed the DDG of Homa Fist on Monday. Tulani Mavuso is the DDG. This is the person who signed the directive. He himself said to me on Monday, and I asked about the issue of capacity. He says, yes, we worried about the issue of capacity. This is going to cause an administrative burden. If you already know as Homa Fist that you're dealing with a backlog of people who have permits, who are reviewing their asylum applications, surely if you issue a directive like this, that's going to open the floodgates. Wasn't that obvious to Homa Fist? So I think one of the challenges is that we, some of this was canvased with the constitutional court. So as you say correctly, they were concerns, but despite those concerns, the court reached its binding judgment. So in that sense, you have to take that into account. You can't just ignore that. And I think secondly, those concerns were hypothetical.

6:10I think we can all agree that we were all sort of trying to model what would happen in reality, but none of us actually understood the volumes until we actually could point to the fact. So I think this is important, just even if you look at it from a legal perspective, there is a distinction between hypothetically saying that something could go wrong, and actually seeing it go wrong. And we have a responsibility, I think, to act in good faith, which was what the department had done with that directive. I mean, just to emphasize again, and I want to get to this sort of disinformation side of this. We'll get to that. There's not a political decision. It was a dime, a dozen of these that are issued by the officials at an operational level. But of course, it was done in an attempt to comply in good faith. So what is important, climate, this is not a matter of homophys saying we're not interested in implementing what the court has directed.

7:11It's very important that we emphasize that aspect. There was a good faith attempt, but now it's no longer hypothetical, and that requires us to then adjust. And I really think, Minister, let me ask you this way, are we already not overwhelmed before even this directive was issued? Were we not already overwhelmed with asylum applications? Yeah, you're asking the wrong person, I want to do that. I see, and that's it. And my point, the reason I'm asking that question is, if already as a department, you're dealing with a situation where you already overwhelmed with asylum applications. You already overwhelmed with people who are appealing and reviewing the rejections of their asylum applications and they've got payments. You obviously, this is not hypothetical anymore. The data shows you that this is already overwhelming us. So when you open that door, of course, what's the next thing that's going to happen is that you're going to be flooded. It's not hypothetical. Yeah. You know what's the sad part of the whole thing? Is ironically in the last financial year, we had, for the first time, I would probably argue in decades,

8:13we had started to see some light at the end of the tunnel on the asylum backlog specifically. In some of the categories, we had reduced it by 20%. These are now cases that have been sitting there for years because of some very innovative steps we've taken because we don't have funding climate. We, you know, we had, at the start of this administration, there were nine human beings who were responsible for dealing with the asylum backlog. What we've done since is to form partnerships with the HALTing Borrow Association as well as the Capetown Borrow Association, where we've onboarded about 74 advocates who are helping us now on a part-time basis. And we're also working with the UNHCR in that regard and even the EU. And we were just starting to see traction. As I say, 20% reduction is really meaningful. And I think it, I mean, just at a human level, it is painful to just feel like you're starting to move and then having to be in a situation where that same system then gets overwhelmed. So I can hear what you're saying, Clemen,

9:15but I really want to say, if we had said to the constitutional court, I suspect, and I mean, again, this is a departmental decision, it wasn't my decision, but if they had said, you know what, we're not even gonna try to give effect to what you've said. I suspect you may have been said to us that that probably also would not be the right decision. But maybe the option then becomes the home affairs then goes to the constitutional court because it's allowed. You can seek constitutional clarity. You can go back and say, okay, constitutional court, we hear you and your directive, but this is not implementable in the current stance because we don't have capacity for it. And then you negotiate, is it possible that perhaps we go build capacity first before we can issue the directive? I would imagine that becomes the next step. Yeah, look, I'm not a lawyer, but I can hear these arguments being made that those things were ventilated in a hypothetical setting before the court already, if you were to suggest that before even trying. So I really do accept what you are suggesting in general claimant, but the truth of where we are now

10:18is that we now have facts which demonstrate the inability for us to fully do this right now in the way that initially was contemplated. And you are right that we should now move from that premise and we will be looking at what options we have to do so. Why do we not have, and I know that, I mean, as a country, we don't have necessarily a policy on refugee centers, right? We don't have refugees, not refugees centers, I mean refugee camps. But the problem with that then is it opened the door for people to just enter the country legally and you know how abused the system is. I mean, I was watching reporters interviewing people who were lining up yesterday, not single one of them out of the interviews I've watched and maybe I've missed others. Not a single one of them is a legitimate asylum seeker. It's a legitimate refugee. People who will tell you that, oh no, the situation at home economically is not okay and all sorts of reasons. And that's not going to fly in front of a committee reviewing that application. So that's going to be abused by people.

11:20So why don't we have these, and I'm not saying the refugee camps per se, but is there no system we can create where these refugee centers then are moved to the border posts? Now look, and just to say, I mean, there's a reason why the homophysed rejection rate is 95% on these applications. And I want to emphasize this as well. Some of the disinformation has suggested that the constitutional court said that these people must automatically get asylum status or even citizenship or even be allowed to vote. None of that is true. And so it's important to defend, even as we disagreed on the particular case, what the constitutional court actually said, they did not go into sort of those blanket documentation, anything like that. It's purely about the procedure of gaining access to the asylum system. But more broadly, what you are saying is, of course, the white paper, which was passed by cabinet and which we're currently developing into a bill is hugely important for the country because it addresses so much of what you've said.

12:22Yes, it includes relocating these reception centers to the ports of intrigues. And most importantly, claimant, something that I have really pushed hard personally is this first safe country principle, which we've seen applied in Europe, for example, and it works. It says that you cannot pick and choose just one destination in a region as your preferred point of making an asylum claim. If you pass through four other countries that are members of the UN Convention that are safe countries, you should be applying in those countries. And that is what we want to now bring into our law through the white paper process. But I think finally, you have to take into account, and I think this is where homophys gets an unfair rep, as much as we have trust me so much more work to do. But these things around the rights of asylum seekers are things that came through the courts, claimant. They are rooted in the South African constitutions, bill of rights, and they were interpreted, in many cases, through the constitutional court.

13:23It is not something that there was a free for all and government ever decided to just grant these things. And so I say this advisedly because we must uphold the integrity of our judiciary. And I'm not saying this in any way to say that, that I've got an issue with that. But it's important to understand where it comes from, because if you allow it to become a situation of suggesting that individuals or political parties or whoever just willy-nilly decided this, then you are feeling the kind of problems which we are also seeing, which is probably a separate discussion on the violence and incitement that is taking place. And it is a separate discussion. And I started the show by even calling that out. And you're right, there are people out there who are literally using misinformation to try and cause chaos and lying about what this constitutional court ruling actually means. But I do think, Minister, you guys are failing us as politicians. And I say you, because you guys are now part of the G and U, you're failing us, because I remember

14:23actually being to the Minister of Home Affairs before you, at the time it was Aaron Muzwalei. He was also talking about the issue of face country principle. There are certain things, defects in our laws that could have been changed or the process started a long time ago and we stopped. And when you see South African being frustrated and then we're gonna start pointing fingers at them. But actually as a government, you have failed, because what you are telling us now is exactly what we were told 10 years, five years ago, and yet there's still no movement. Well, look, if we're gonna have an honest discussion about reform at home, as she says, I think it's important to say that this discussion cannot take place in the absence of the incredible reforms that have already been implemented and that are coming down the road. I mean, the irony claimant, I hope you would have seen our quantum leap event last week. If you look at what we've achieved, this is not on the immigration side, not on the refugee or asylum seeker side, through the electronic travel authorization platform. I mean, this is the best system in the world

15:26for automated bulletproof visa processing. And this directly addresses what the SIO report has flagged for us in the visa space. So I'm not talking about that side of the equation. And our intention is to expand that same principle of automated processing that removes the space for corruption and fraud that is able to verify documents and all of these issues without relying on paper-based processes. That work is very well advanced and is making a huge difference. So yes, I cannot speak for anything that happened before, Climand, it's just the reality. I can account for the past two and a half years. And I would point to many things that maybe you don't have time for right now, but the Green-Idee book I should mention, this is the draw card for illegal immigration in this country because it allows you to assume a South African identity and opens the door to so much of a fraud that we see. No administration has made more progress on doing away with that addressing that problem. So yes, there's a long discussion to be

16:28ahead about what we are actually doing and what we've done. And I would not agree that we can throw that baby out with the boss. And look credit to you for the work that you have done over the last two or so years. And I would like to bring you on the show and also give you credit for the work that you have done with fixing this immigration crisis because it is a tipping time bomb. Clarify something for me, Minister. Can you clarify that why any legal person might want to apply because that's what we're seeing? They come to apply for asylum even when they know that they're not going to get the status. That's the loophole here, isn't it? And I've got a call from someone, in fact, before I went on air who is in government, who says to me, the problem is that when we looked at the laws around the permits that we issue and someone is waiting for their review is that every country in the world has put a clause that says you can issue the permit subject to national interest. And as South Africa, we decided to adopt that convention

17:30without that clause. So we were just given a convention and resigned it. So even when we issue these permits, so if someone says, I'm from Zimbabwe because the economy day is not doing well and we say no, that you can be an refugee here. We reject your application. You still give them a permit. They can live in this country for years. But and the problem is because we don't say subject to national interest. It's almost like we're dishing out these permits and that's where the problem then becomes even bigger. Well, first thing I'm delighted, I'll thank you up on your offer because we shouldn't only speak when there's a problem. I agree. And you know, you know I've been trying to get you to come on the show, right? Do me a favor. We'll talk about it. But yes, what I can say, Clement, is, these things are complex and trust me, it took me some time to untangle a lot of how this works. So what you said now, if your refugee application is finally rejected, then you don't get a permit or status in South Africa, then you must leave the country

18:31and you may recall, Hermes is actually one constitutional court case earlier this year, which thankfully we were able to convince the court that someone whose application was rejected cannot just lodge a new application and restart the process. I mean, can you actually believe that there were people pushing for that? If we had not won that case, then it would have been a situation of literally over and over you can apply. It is extraordinary. So thankfully we did succeed in that case. So if your application is finally rejected, then you must leave the country and you don't get any of these rights that you've been in. But that's finally minister, sorry to come in there. That's finally. I think before that. Yeah, before that, there's a long process before that. In fact, there's a case for somebody else who sits on a committee that actually approves and rejects and assesses these applications, was telling me this morning of the record that you know that there's a case in 1996, someone applied for asylum. That met and he was rejected and then he appealed. Because of the backlog, the appeal was not even resolved by 2023.

19:33That person now has a family and children in this country. That's the loophole I'm talking about. Yes, no, absolutely right. And the problem is the capacity. So when you have nine people supposed to adjudicate those cases, that is how it happened. So this is why I'm saying it's easy to point a finger at homophys and I think it's fair to say that we have not shunned away from our responsibility to fix our systems. But it's not homophys that determines the budget, which says that homophys get nine people. I mean, it is unsustainable. So yes, that is many years that have been compounded and where that problem has emerged. So we must speed up the adjudication process. That is a key part of it. That's why we've brought in these 74 advocates, et cetera, as I've mentioned. And we're doing whatever we can within our really very constrained environment. But what I want to add to what you said earlier, which I think is a very important part of the discussion. The case law that has come through the courts, including the constitutional court,

20:34which has interpreted the rights of asylum seekers, in other words, people who don't have an outcome yet. That is grounded in the South African Bill of Rights, Kim. We have to be very honest about where these judgment emanates from. It's not the court making it up out of the sky. It's definitely not homophys making these things up. They are grounded in the constitutional framework of the country. And so it is important for us to, even as we have these debates and we try to deal with the problems, we have to understand that we must also protect our constitutional edifice. It would be wrong for me, for example, to say, basically, forget what the constitution says, or ignore what the bill of rights says. That's ultimately what every court judgment in South Africa is grounded in. And my oath is to uphold the constitution, as you know. So I think it is also a function of trying to be responsible in a context that is very volatile. And this is where this information comes in, climate.

21:35We have to talk about it because the reaction that you've seen here, if people really understood or were not subject to this information to say that what the court actually ruled is that everyone should have access to apply for asylum. Maybe it would be a different story from all this unbelievable line that has been going on suggesting, I took this decision or political parties took this decision or that the decision was to give people citizenship or refugee rights. None of that is true. And we have a separate problem that we must deal with as a country. We refer this issue to the IEC, but I don't think we can ignore the scale of this information on social media particularly. I agree more because this is where it leads. I agree. And we call it out where we can. And we must take it up, especially where legitimate organizations are also being involved in that disinformation. Can I provide a slightly different view from what you're saying about the Constitution Minister? I agree with you. We, in fact, all of us have a responsibility to defend the Constitution. That's the supreme, right?

22:37That we live in a constitutional democracy. But I do think that the Constitution is not a perfect document. It's a living document. In fact, even the founders of the Constitution allowed for it to be a living document because they knew that in 10 years, 100 years time, there may be defects or things in the Constitution that may not be saving South Africans all this country. That's why the Constitution has been amended several times over years. So I also worry about this blanket defense of the Constitution because then it suggests that, oh, what, are we closing the door then to the possibilities to amend it? I'm saying, let's open the door to, yes, defend what the Constitutional Court has said because the responsibility you have is you've got to implement their directive. But once you have said then as politicians, you must say, let's sit down. What are South Africans saying? Is this aspect of the Constitution that gives effect to this law, saving South Africans? And if it's not, it's your responsibility as as as as parliamentarians, as politicians to go to parliament, get enough votes, and change that Constitution.

23:38That's not any legal thing to do. Sure. No, it is not. Of course, when when we talk about some of these provisions, just at a technical level, I'm just thinking of the top of my head now that some of them might even be beyond a 2-thirds majority from not mistaken. Some of them actually are sort of 75% that threshold in parliament. So of course, you're right. So that's how the rules are set up. But by definition, then requires at least 66% or probably 75% of people in parliament to agree to this. So I'm just pointing this out because this is where I sometimes feel like the way that homophages positioned in the debate is actually not on a, that is not homophages' decision. I may have some views as an individual member of parliament. I'm one out of 400. And certainly, political parties could take views on what you've just said. But the prime responsibility I have right now

24:43is to comply with what is on the books to protect the Constitution as it stands, and to try and implement the reforms that will move homophages forward within those constraints. So it's not a matter of saying, we shouldn't have a discussion about. I mean, we're a democracy, we should discuss anything. But for the time being, this is my primary responsibility and I'm mindful of doing that in a responsible way. So that's probably why you might get that sense. It doesn't mean I'm not capable of thinking about a broader discussion. It's just trying to protect the interests and the oath as things stand. I see your statement suggests that you didn't know about this directive. Is that the case? Yes, it is the case. You know, sometimes things happen. In this case, I was not aware of the directive, which is important. I think to say it again to just counter the disinformation that somehow it was a political decision. That's the primary purpose. OK, here's my question.

25:43My name is that. If you will. So if you didn't know about this directive, I mean, the news we're breaking the whole week, did you not pick it up? Because I think as Homa Fais, you also released a statement again explaining the directive. So did you still not know about it at that point? You see, I think it goes back to the reason why the department has now withdrawn it. The reason isn't necessarily because anyone thinks there's a problem with a directive that says implement what the constitutional court has said. The reason for the withdrawal is because over the last really two, three days, it has become visibly impractical to do so. So to be clear, I'm not angry because because because Homa Fais thought that it must implement a constitutional court judgment. Again, it goes back to what we were just discussing. It would be wrong of me to sort of say, you know, you shouldn't implement the concogeagement. But at the same time, I think where we have arrived also in our legal analysis of the problem is,

26:47you know, as facts change, then we should be able to acknowledge them in the process. Yeah, Minister, thank you for making time. I really appreciate you coming to engage. And I can't wait to have you on the show for an hour to talk more about the reforms that you've been looking at over the last two years. Thank you. Leon Schreiber, Minister of Homa Fais, it's 9.34. What's your reaction? I've got a lot of thoughts after that conversation. I'll share them, share yours as well. Give us a call or send us a WhatsApp voice. It's 22 minutes before 10 o'clock. This is the 7 or 2 open line. Let me first apologize to you for taking your time to speak to the Minister of Homa Fais. But as you can imagine, we're dealing with breaking news now. So we need to be agile and flexible. And I thought it's important to bring in the Minister of Homa Fais because they were busy defending and pushing the explanation of this directive,

27:48which I think was important because there was already misinformation going around. But I do think that Homa Fais acted recklessly here. They acted recklessly by taking that directive and implementing it when it knows that it doesn't have capacity to handle the numbers of people that are going to come. The Minister wants to suggest that this was hypothetical. Yeah, we could have known better. No, as it stands right now, Homa Fais is overwhelmed by applications for asylum. That's the fact that those are the numbers. That's not hypothetical. You are already overwhelmed with asylum applications. You're already overwhelmed with review and appeal applications for people whose asylum applications you've rejected. So why are you suggesting this is hypothetical? And then you go and you issue a directive that you know is going to open the floodgates, that you know is going to cause an administrative burden for the department. And then you come back later when you see that it's a disaster

28:50because people are lining up to come and take advantage of this. Many of them falsely so and then you come, oh, we withdraw it. In fact, I didn't even know as Minister. No. Government has to take accountability and listen to me when I say this. They are playing lip service. They will come in issue statements. They will withdraw these directives. They will hold press briefings after every second day. But they are playing lip service because at the end of the day, put your money with your mouth. Do you think government is going to put maybe one billion rent aside and give it to the border management authority and say strengthen our borders? Do you think government is going to take a hundred million rent and say, Homa Fais, make sure that you've got enough people who can deal with their appeals? Let's see if that's going to happen. But until government can put their money where their mouth is, then don't be swayed by their statements they released or the press briefings that they hold because that's meant to just appease you.

29:51What's going to help deal with the immigration crisis is sought out our borders, build proper infrastructure, capacitate Homa Fais so that it doesn't have only nine people that are dealing with appeals. That's why someone can appeal a rejection of their asylum in 1996 and they still have a permit in 2022 that allows them to live here. They already have a family. They already have children because they have a permit. So don't be swayed and moved by the statements and there with growers of their appeals. Call for your government and your parties to push for Homa Fais to be capacitated. Otherwise, this is just for vibes. Tulani, what are your thoughts? You calling us from Centurion? Hi. Hi, Clement. Clement, you know, I present at the incineration that this constitution cannot be changed or to a suggestion that something that just incinerate that we have a constitution and therefore we must live with it regardless of the shortcomings that it has. This constitution has got shortcomings.

30:52What Leon Shriver should be saying is that look, we realize that this thing has got shortcomings. Perhaps what we need to do, maybe this white paper is supposedly dealing with that particular eventuality. But that's exactly what they need to be doing. And I am yet to see or to hear somebody saying, one of these leaders from these countries saying this constitution of Sarataka is the best. All politicians are saying everybody is saying this constitution is the best in the world. If there is so much good wire and they are adopting it for their own countries, the last thing Clement is, they are Americans themselves. They have got the first amendment, the second amendment, the third amendment. Why can't we amend this constitution? We have amended it so in the past, do you, Danny? Yes, but let's continue to do so because as you correctly pointed out, it's a living document. When we realize that it's got shortcomings, let's amend it. And that's exactly what we need in the... That's it. And that's the conversation I was having with Bungani. Because he's a suggestion, then he's look at what the minister of... Kuman, kumuzo.

31:53Minister of... Kuman. Presidency. The minister in the presidency, kumuzo and Chavein were saying about the constitution. And look, I agree on the part that you don't want to inflame, right? Already there are tensions here. So you don't want to come across as if you are throwing the constitution out of the window. Honestly speaking, I don't think that's where kumuzo and Chavein was even coming from. I think kumuzo and Chavein was trying to explain that if there are defects in our constitution, right? The thing is that are not working in our constitution, that are not serving South Africans, you can amend it and change it. That's it. That's why the constitution has been changed in the past. Why? Because there are certain things that we're just simply not working. So this blanket defense of the constitution as if it's a be all that can be touched, I think is quite weird. The constitution is a living document. Yes, it's supreme. We must defend it and respect it. But equally so, when we are picking up that there are certain things there that are allowing,

32:55for instance, for our laws to open their floodgates, for people who are going to claim asylum even when they know they don't qualify, then we've got to change that. But now when you criticize those aspects, then you are seen as if all you don't know, you don't read the constitution, go read fast. That's ridiculous. We also read. We also have read the constitution. We know what the processes are. And nobody says that home affairs shouldn't implement the directive of the constitutional court. No, home affairs, of course, is bound to implement that because the constitutional court is the last line of defense. That's the highest court in the land. You can't go anywhere further. But also, you can go back to the constitutional court and see constitutional clarity. We've seen that in the past. If there's something as a department that you know is going to be difficult to implement or cause mayhem or cause challenges or not be implementable because you know, you know, if capacity, you can go back to the constitutional court and reason and say, we understand your

33:55directive, but help us understand. Is it possible for us, maybe, to build capacity first? That's a conversation you can have that has happened in the past. Why didn't they do it? Why didn't the home affairs department do that? If they're truly interested in trying to implement this in a way that's not going to open the floodgates. So let's look at our constitution, guys, when we criticize certain aspects of it, it doesn't mean that you're throwing it out. I do believe, by the way, that we've got the best constitution in the world. But this idea that the constitution and the law are two different things. I think it's flawed because the law and the constitution are very much linked. You cannot implement and come up with bills or laws that contradict the very principle of our constitution. You can't. So trying to separate our regulations and the laws and how we deal with immigration from the constitution is very followed because they too have to interlink.

34:55Our laws must always get their reference from the constitutional principle in this country. You are in Germany. You are in Germany. What do you say? Got it. Hi. Morning. How are you? I'm saying that the home affairs is bluffing us. I mean, how could they withdraw the directive from the constitutional court? The constitutional court is known to be the final heaven, the final say in every one. So if you're withdrawing it, it means that you're you're you're at against the the constitutional court. So they can't just withdraw. They have to be go to court and do it in court to to to for them to not to apply the the directive from them, the constitutional court. So I'm saying that the bluffing laws government knows that I mean, home affairs, no, no,

35:57no, that's they they've done something wrong. So they can't just withdraw without appealing and they can't appeal. And you can't appeal those are the constitutional court adjustment. Yeah. So I suspect to me, Sandy, the next step is they're probably going to go and seek constitutional clarity because you know, withdrawing the directive doesn't mean then that you're against the constitutional court ruling. I think, I mean, what's the point of implementing something that you just don't have capacity to implement? You're going to cause more problems. So I suspect what they're trying to do is let's see how we can build up capacity quickly. And then let's see how we can then implement this or go to the constitutional court to seek that constitutional clarity on how to deal with this. To me, Sandy, I'm in Jameston. Thank you. Is it okay? Law in Rosebank. What do you want to say? Hi. So good morning, Clemens. I am honestly, I am shocked that the the pace that reached this conversation is just been into the woods.

37:00You know, if you want to change the constitutional, if people want to change the constitution, it's perfectly fine. But do it three legal means? Join parties. Go to parliament. Go to court. We can't shout at the minister or the government for that. That's not their mandate. They don't have a mandate to make law. As your father doesn't have a mandate to make law. He doesn't have a mandate to make law. He implements law. They do their parliamentarians. Yes, parliamentarians make law. Is the minister not a is a member of parliament? He's part of the public administration, but is a member of parliament. He has to implement the laws that are legislator makes. Okay, look, is he not a member of parliament? He is a member of parliament, but he is also an administrator. So he's a political administrator. Yes. He can implement the if he could only do if he's wrong, was only that of parliamentary. Then surely he could just put his own policies there.

38:02No, but as there's a mere fact that he's a member of parliament means he is a law maker in this country, unless he's a minister and we do have ministers that are not members of parliament because I think there's an exception you can make. I think the president cannot point one or two if I'm not mistaken. I'll go and check. But when you are a member of parliament, you're a law maker. And okay, no, I think that's besides the point. So the point you're raising is if people want to change the constitution, follow the right process. If people truly believe that the law regarding the immigration or anything else is incorrect, then what is their duty? Their duty is to vote. I agree. Their duty is to go to the courts. Their duty is to try and get to that 65 or 75 whole. But if you're going to stand in front of buildings, threaten people and burn for the things that's wrong. That's wrong. That's wrong. That's wrong. That's why that's being condemned. But I agree with you in that people need to vote for the parties that actually are going

39:05to express your interest. If you think that the way that our constitution expresses or maybe the way that our laws deal with immigration and our laws, remember, link to the constitution. They get their reference from there. If you're not happy with that, that reference point in our constitutional principle, then vote for organizations that you know are going to be able to go in parliament and try and garner other support to try and change that aspect of the constitution you don't want. I'm just against this idea that the minute you start saying, but maybe this part of the constitution doesn't work. Then you're seen as if you are taking the constitution as if a constitution is this perfect document. If it was perfect document, it wouldn't have been amended many times over the last 33 years or so. Thank you for your call, Ukello in Rosebank. It's nine minutes now before 10 o'clock. I promise because I took so much time for you with the minister, I'll continue the open

40:08line after 10 o'clock. So don't worry, I'll try to take as many calls from you as possible. Your voice, your station, your open line, walk the door with Kevin's money on 7 o'clock. Seven minutes before 10 o'clock. Is it cool VT soap in Cape Town? Good morning. Good morning, Kevin. Sure. Good morning, Kevin. Good morning, Kevin. Thank you for bringing this perspective because I was very much frustrated this morning listening to the different breakfast show about this idea that if you are questioning the ruling of a constitutional court, therefore you are taking the constitution. What we are saying is we understand that the constitutional court has the constitutional responsibility to ensure that the Africans complies with its laws and also international obligation. We are not arguing that. But what we are saying is we also need to ask ourselves whether we are balancing some of these obligations also with the realities that people are facing on the ground. And the reality is that, homophys is already under pressure and there is a lot of pressure.

41:14We know that they don't have enough resources. So all we are saying was to say maybe we need to look at that before implementing this directive. And what we see happening now as soon as that directive was made, they choose to be long to show that there is a lot of illegal immigrants in the country that homophys don't even know that they exist because those people didn't come from outside. Those people that were already in the country were just waiting for that to happen. As soon as that was made, we saw that they were accused of a long and they know what they are doing because there is a loophole here. What they are trying to do is you go to homophys, you do your application, you know that you are not going to be approved. But during the time when you make your application and the approver, during that time you will be given a permit and therefore you will be able to somehow not be late. You know, she would be so I'm going to explain this after 10 o'clock because you know, I tried to do a lot of research before even I talk about this issue.

42:16So what I've done is I spoke into someone who sits on the committee that reviews these applications and he was I mean, he can't come on air of course because he'll be in trouble. You know, he's not allowed to speak to the media but he was giving me background information and I can tell you that application system is rotten to the call. It is rotten to the call because and until we remedy that, we are still going to have people lining up and coming to claim asylum here because even when you reject them, you know, they were explaining to me that there are two instances, different kinds of rejections. There is a, and there is an unfounded rejection and there's a manifestly unfounded rejection. And based on both. So even when you can see someone is lying and playing games here, they are just across from Zimbabwe or Mozambique or Botswana and they are claiming asylum and they don't qualify they're playing games. You can still give them a permit to go live in South Africa and you say, okay, appeal.

43:17But when they appeal, you don't have capacity to go through though, they appeal process and the application. So what happens is you're giving them a permit to live in the country even for 10 years if they want to or 30 years if they want to as long as they've got a permit that says, oh, but I'm appealing. Even when you know that someone is appealing a decision that they know that there's no basis for that's a problematic thing. That's a rotten system and the fact that our government wants to play lip service and they're not fixing that system and overcapacitating homophage to ensure that their appeals are quickly sorted out. That's what I'm saying. Don't be swayed. They are press briefings and they are withdrawers. Ask the question of where's the money? Are you going to capacitate homophage? Are you going to have to give the border management authority a billion rent or a hundred million rent to try and sort out infrastructure there? That's where it begins. That's where it begins. Thank you. Shivutiso for your call. Tapo, you are in Pretoria. Hi. Hi, brother. Hello.

44:17Shosho, go ahead. Yeah. Yes, the thing about the judgment, this judgment of conquered judgment is quite flawed and it's calling for anarchy. I will tell you what I mean. This thing that does know that somebody who's not allowed to apply for asylum is a myth. It's completely misrepresentation. There is currently a process in the immigration act that allows the asylum seekers to apply. They say when you get to the gate, they're aligned. The borderline, they're the gate. You need to get the transit visa. Within six days you must go to the asylum center and apply for asylum seekers. That process is there to avoid anarchy. Not only is it there to provide for state security because you don't want people crossing the line. That you can't account for. Some of the people, the people who bomb people, they wear the bombs and they go to the stadium and they explode in the stadium.

45:19So that and the government is a state security, which is an enshrined in the constitution. State security is part of the constitution. It's within the human rights. What the constitutional court has done. They have, they have flew the state security out of the window and only allow Ana to prevail because when you say people can come through a border gate, of course, the territoriality is not said they can cross. But the minimum of this is they can cross because once you are in the country and you raise your hand and say I want to apply for asylum, the police should not arrest you regardless of where you can. They can't arrest you. Now I'm saying the comfort judge made this fraud. It's completely misplaced because it is asking for anarchy and it's putting some fabric of state security in Japan. And this is why I'm saying this judges are the constitutional court judges and not just those ones, all the judges. They give us ridiculous judgments, all the judges give ridiculous judgments all the time.

46:20I'm saying I'm saying my brother, you have me out. It's obvious. It can be all the judgments. I'm just saying. I'm just saying. I mean, this is obvious. I can't say the whole all million judges judgment. I was worried about all on your statement because I think we must still be responsible here, right? We can be passionate and as angry as we want and I understand that frustration. I'm equi-frustrated. But please, let's still be within the framework of rationality in that it's not all. You can't argue that. You can point to specific judgments that you disagree with. But also don't then question even the judges unless you've got reason to, right? So even with the constitutional court, that's a judgment. There are so many constitutional court judgments we don't agree with. Who was that guy who killed Chris Haney? Remember that guy who killed Chris Haney that the constitutional court ruled that that home affairs or whatever the government department that was involved must just release him?

47:21Many of us disagreed with that, but we still respect that we are a constitutional democracy and we believe in the rule of law. You accept that those judges know better than you and I. You take it, right? And the parties that also disagree have an opportunity to go change their laws to avoid the same thing happening again. All the constitutional court justices are doing is interpret the constitution. That's all they do. That's their responsibility. They judge every case against what? The constitution. So pointing fingers as the at them is not going to help us. And thank you for your contributions on the 702 open line. So on the open line, we started off with an interview with the Minister of Homophares Dr. Leon Schreiber because I wanted him to explain this directive now that has been withdrawn because the question is then what's the next step? And there are certain issues that we put to the DDG already on Monday about the issues of capacity and the Minister says while hypothetically they didn't think that homophares would be

48:26overwhelmed. I'm sorry, I don't buy that. I don't buy it because as it stands, homophares is overwhelmed with asylum applications. So if you open the door and issue a directive like that, how could you not foresee that you are opening the floodgates and more and more people are going to come through? But he says he sees that point. So now they're looking at how to still comply with the constitutional court's ruling but have the capacity for it because they can see that they just simply do not have the capacity to deal even with the overwhelming numbers that they have at the refugee centers. So because I took most of the time on the open line speaking to the Minister of Homophares, I just want to bring in some of your WhatsApp voice notes that have come through maybe two or three calls as well. And then I'm going to introduce my guests who are joining me this hour to continue on the same topic. But I want us to just come down a little bit because tensions were high in the first

49:27hour and then have just the rational conversations about even immigration and asylum applications. What's working? What's not working? How do we remedy what options are even available for the homophares department? So shall we start with some WhatsApp voice notes on 072721702? Good morning, Clement. Clement, this thing of asylum seekers does not make sense. How can we have the people from paradise, from Pakistan, from Ethiopia, from Nigeria, applying for asylum in South Africa? How is that possible? Because people have the neighboring countries. They should go there and apply for asylum, not here in South Africa. Good morning, Clement. I was just speaking here. I just want to speak about this issue of asylum seekers. For what I saw, Clement, for the past two days, I don't think those people are genuine asylum seekers. Why are they only men who are queuing to seek the refugee status in South Africa?

50:27Where are their wives? Where are their kids? Are they not affected by the old peg home? Those people, Clement, they are just having a loophole in our constitution and they are abusing our systems. Those people are not genuine. There is no way you can have the refugee status in South Africa when you're left with your kids home, you're left with all the women's beg home, but you are running away from wall. So, Clement, and I don't know why, it's so difficult for a government to amend this immigration law. Thank you, Clement. Good morning, Clement. My name is Clement. I agree with you. We start Clement for early talk with the minister there. He's one of the parliamentarians and he's the same as the people. So you were pressing him there on the questions and I was happy to listen to his side of story,

51:35but I also wish that they can try to amend this constitution and they will ask for too many liberals there. So that's why I think they can come together as parliamentarians to change it with immediate effect. I don't see problems there. Thank you very much. Thanks. You are calling us from mid-range. Good morning. Good morning Clement and listen as yes. I think I'm going to echo the previous caller as you were asking, how can we remedy this now? Clearly there is a problem. First remedy is what Aaron Matoldi told us before he was removed as homoafase minister. Let us pull out of that UN Convention. If we fix our constitution then go back with the restrictions now. Go back and join when we are out of the refugee conventions and all that. We pull out, fix the constitution and close the proposed, go back to them and say this is the conditions that will allow refugees on.

52:38Like other countries they have done. The map where all most of these Afghan countries they don't have all this because they joined the convention with restrictions. I think that they want to. I got a shock of my life when I was told this morning that most of the countries have actually put a clause on that convention. Can you hear us, Zakes? Zakes, we've lost Zakes there. But Zakes is suggesting that pull out of the convention. As I said, I got a shock this morning when I found out that we, most of the countries have put a clause in that convention when it comes to payments which says subject to national interests. And apparently in South Africa we just adopted it without any clause. So it's almost like it's a free for all. And that's the suggestion that I got this morning from someone in government who called me to explain why this is a problem. It's now 15 minutes after 10 o'clock.