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'Guptagate', ports of entry and the Department of Home Affairs

6th May 2013

By: Chris Watters

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Amidst all the dust and fury of the Guptagate saga, little seems to have been said about the possible role of the Department of Home Affairs – or yet another errant official – in all of this.
You only have to go to the Department’s website for confirmation that Waterkloof Air Force base is not an official port of entry.   OR Tambo [International Airport] is, Lanseria is – but not Waterkloof.

This is relevant because section 9(1) of the Immigration Act provides that “no-one” may enter the Republic other than at a port of entry.

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However section 9(3)(c) of the Act, creates two possible exceptions. 

In terms of the first option, a person may enter South Africa other than at a port of entry if the Director General has issued a certificate – to that person – authorising the use of an entry point other than an official port of entry.   And for good cause, the Director General may withdraw that permission.

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The second option is that the Minister of Home Affairs has the power to exempt an individual – or a category of persons – from entering the country other than via an official port of entry.  And again, the Minister may withdraw that exemption, albeit on the recommendation of the Director General of the Department.

So, did any of this happen?  And if so, where is the documentation and who made the requests – and when?

But the Act goes on to require that an immigration officer must still interview any such person.  So who summoned Home Affairs to Waterkloof?

But where this gets really interesting is the fact that unauthorised access to the country – and/or helping someone to access the country unlawfully are criminal offences carrying a range of penalties – some as high as a four year sentence.

Section 49(1) provides that entering South Africa in contravention of the Act is a criminal offence for which a fine is issued or a period of imprisonment not exceeding three months.  Based on the Department’s media releases, not one passenger was investigated for having contravened this section.  Why?  Persons who have run foul of the immigration authorities at OR Tambo will know that in practice, not infrequently the rule is that you are guilty until you prove yourself innocent.

Section 49(2) of the Act provides that anyone who “knowingly assists a person to enter or remain in” the country in contravention of the Act, commits an offence and is liable to a fine or a period of imprisonment not exceeding one year.  So whoever ‘masterminded” – or aided and abetted - the Guptagate scheme should be looking over their backs and checking their current account for bail, one hopes.

And then section 49(14) stipulates that anyone who assists another to enter the country in contravention and in doing so commits any fraudulent act or makes a false representation “by conduct, statement or otherwise” shall be guilty of an offence and liable to a fine or a period of imprisonment not exceeding four years.

Its hard to see how these sections could not have been contravened given that the starting point that Waterkloof is not a port of entry, is going to be common cause.

If the investigations are as real as is being made out, we will presumably – and hopefully - soon hear of persons being charged in terms of the Immigration Act.

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