Guptas show what home affairs can do

I was admitted in 2013 as a permanent resident under the categoru of “exceptional skills” and have been ordinarily resident in South Africa for more than five years, as required by section 5(1)(c) of the South African Citizenship Act of 1995 (as amended). Despite complying with the legislation, my application for naturalisation was turned down in September because of the regulation requiring 10 years of ordinary residence, which the department of home affairs incorrectly interprets as 10 years as a permanent resident.

Legislation always trumps regulation, and the public protector recently gave the department three months to align its 10-year ordinary residence regulation to the five-year ordinary residence period stipulated in the Act. The matter will be heard in court in May.

When he was the home affairs minister, Malusi Gigaba granted early naturalisation to Ajay Gupta and his family in May 2015 under section 5(9)(a) of the Act, which states that “the minister may under exceptional circumstances grant a certificate of naturalisation as South African citizen who does not comply with the requirements … relating to residence or ordinary residence in the Republic”.

In 2013, the department told Parliament’s portfolio committee on home affairs that section 5(9) (a) would cover people “with scarce skills seeking naturalisation” and the 10-year process may discourage them.

In 2017, former home affairs minister Hlengiwe Mkhize said the Guptas were granted early naturalisation because of their “business investments and social partnerships”.

I lodged an early naturalisation motivation in 2017. Given the legal contention about the ordinary residence period, I included a letter asking the minister to waive the ordinary residence requirement for me, letters of support from executives of some of the country’s most reputable corporates, magazine articles about my company’s effect on the growth of the small, medium and microsized enterprises sector, testimonials from several of the hundreds of small business owners I have taken on sector-specific global exposure trips, and a letter from the South African Revenue Service attesting to my company’s good standing.

Section 5(9)(a) is a necessary piece of legislation. The regulation requiring 10 years as an ordinary resident is onerous and not in line with international best practice. Highly skilled businesspeople who have the flexibility to live anywhere in the world are discouraged from living South Africa.

As I learned, the section 5(9)(a) process entails an official at the citizenship section preparing a submission with supporting documentation, which is then sent, one by one, for signature to various senior officials and legal services. If one of those officials is not satisfied, they may send it back to the citizenship section for amendments. The submission is then sent out again, one by one, to the same officials, restarting the round-robin signature process. Finally, the submission goes to the minister.

Understanding how the process works, I take issue with how the department adjudicated the Guptas’ appeal. In June last year, the Sunday Times published extracts from emails between an official at the citizenship section and Sahara Computers chief executive Ashu Chawla, showing how fast the Guptas got their papers. On April15 2015, the official asked Chawla for supporting documents for the Guptas’ appeal for early naturalisation to complete the submission. On May 30 2015, Gigaba signed an official letter granting the family early naturalisation. This means the department adjudicated the Guptas’ appeal for early naturalisation, including the painfully slow roundrobin approval process, in just over a month. Applicants without political clout, like me, have been waiting five times as long for the same type of appeal to be adjudicated by the same officials.

On March 6, Gigaba told the media that “the Gupta family was not favoured. The application and appeal was not expedited”. If indeed their appeal was not expedited, Gigaba has set the standard that all such appeals should be adjudicated in just over one month.

I implore the portfolio committee on home affairs to monitor closely how quickly and fairly other early naturalisation requests, including mine, are adjudicated in the upcoming weeks.

I am confident Gigaba will demonstrate that the section 5(9)(a) process is indeed meritocratic and that, under his stewardship, senior officials will promptly adjudicate appeals that, under the previous two ministers, languished for too long.