State policies are at odds with investment drive
While the president Ramaphosa is wooing investors, government ministers and their departments make life difficult for potential backers
I am an attorney who often advises and assists Brazilian investors who want to set up shop in SA, and as such I operate in the trenches of President Cyril Ramaphosa’s investment drive. While Ramaphosa actively encourages investors to invest, for which he must be lauded, his ministers and their departments still go about making things as difficult as possible.
A few years ago the department of home affairs all but took away work visa applicants’ right to be assisted by professionals when they abolished immigration agents. Though the department did not take away visa applicants’ right to be assisted by attorneys, in practice home affairs officials started to refuse to deal with attorneys, ignoring that attorneys are not immigration agents.
It is now standard practice for SA consulates worldwide to refuse to accept any visa application from an attorney on behalf of a client. They also refuse even to interact with attorneys when the consulate raises issues with the application that require specialist knowledge.
The latest assault on people’s right to legal representation came from the SA Qualifications Authority (SAQA). It is SAQA’s task to evaluate foreign qualifications to allow foreigners to apply for, among other things, critical skills visas. Since September 16 they refuse to interact with what they call “third parties” (read: attorneys). When I took this up with SAQA, the reply was that the decision to remove attorneys was “a board-approved policy”. The SAQA CEO was abroad and couldn’t comment on my concerns.
We live in troubling times when a government institution removes the constitutional right to legal representation by means of a board decision. Such a decision is irrational and likely illegal and, since SAQA operates under the precepts of the SA Qualifications Authority Act of 1995, the decision is open to be overturned by a high court in a review application for infringing various constitutional rights (such as the right to equality and the right to just and fair administrative action).
SAQA’s website states that the reason for this decision is “to ensure that qualification holders (QHs) are the prima facie owners of their applications and the outcomes thereof, including the protection of their private details and improved communication between them and SAQA. For this reason, SAQA will interact directly with QHs, and involve third parties only when they are the parents or legal guardians of the affected QHs.”
Underneath that, you have to tick a box confirming that you have read and understood the above notice and will comply with its content. This way you sign away your right to an attorney there and then. SAQA is thus saying attorneys potentially misrepresent their clients’ qualifications and cannot be trusted to protect their clients’ confidentiality or communicate with their clients. I wonder on what basis they come to that conclusion.
Imagine applying that reasoning to all areas where attorneys act on behalf of clients. There is no difference between denying anyone the right to legal representation when dealing with SAQA or home affairs and denying legal representation to anyone in court. Just because you’re dealing with an administrative body rather than a court does not make anyone is less entitled to legal representation.
Or imagine the surprise a busy foreign director of a multinational would get when the upmarket law firm it had hired to assist with a visa application tells her she will have to apply to SAQA for an evaluation of her MBA and PhD herself. Investors hire lawyers (often at stratospheric rates) to get things done on their behalf, because they have neither the time nor the knowledge to do it themselves. How will they view SA as an investment destination when they’re told that they cannot use lawyers and have to deal with bureaucrats themselves? One would have thought that with SA’s dire skills shortage, SAQA and the state would facilitate the process of applying for SAQA evaluations, rather than making it more difficult.
There is a saying that someone who represents him or herself in legal proceedings has a fool for a client. That seems to be exactly what home affairs and SAQA want: people who don’t understand their rights and don’t know how the procedures work, and are thus are more inclined to make mistakes an experienced attorney would avoid, thereby making it easier for the authorities to refuse visa applications or foreign qualification evaluations.
Denying ordinary people the right to legal representation isn’t the only way in which the state erodes our rights. In other administrative spheres legislation creates many internal appeals against government decisions, often before committees that do not have the knowledge or expertise to deal with the legal matters with which they are confronted. Anyone whose rights have been affected must first exhaust time-consuming internal appeals (often without the right to legal representation) before they can finally approach a court, resulting in lengthy delays and infringements of basic rights.
There is one cynical conclusion one can come to about this erosion of our right to legal representation, namely that the state’s ultimate aim is the effective denial of our rights. The individual is just not equipped to stand up to the state, and even large corporations with deep pockets cannot always defend themselves against the state machinery without lawyers. By taking away our right to legal representation the state is removing the only people who can defend our basic rights. This must be stopped.
• Myburgh is a South African attorney and member of the Brazilian Law Society