Border Management Authority Bill & Civil Union Amendment Bill: briefings

Meeting report

Briefing on the Border Management Amendment Bill (BMA)
Mr Elroy Africa, Deputy Director-General (BMA Project Manager), DHA, said South Africa had an extensive border environment: land, air, and maritime. He outlined the key risks and challenges, political mandate and principles informing the BMA Bill and its development. He noted that insecure borders might enable the trafficking of drugs, weapons, contraband, terrorist funding, material related to weapons of mass destruction, transfer of “conflict minerals”, wildlife and people. Common security issues include criminal acts, technical violations, transnational organised crimes, terrorist threats and threats to the integrity of border management. He reminded Members that South Africa was the preferred recipient country on the African continent for asylum-seekers and economic migrants in Africa. Globalisation – which was seen as being at the root of migration – had heightened the challenges of border management for sovereign states globally.

Mr Africa informed the Committee the border management has been fragmented since 1994 with different structures in place, and around 2014/15 there were about 8891 officials from five state departments (Home Affairs, SARS, SAPS, Health, and Agriculture, Forestry and Fisheries) working at the country’s 72 ports of entry. But they had, amongst other things, different conditions of service and remuneration; competing priorities; lacking a single command and control structure; and different tools of trade and equipment.

Consequently, a higher volume of goods entered the country; there was poor border control-related service delivery; corruption and crime thrived in a fragmented management environment; inability to enforce a standard approach in dealing with border law enforcement transgressions; state agencies were working in silos and focusing on their own mandates; and there was an increase of undocumented foreign nationals within the country.

That was why the government decided to start the process of setting up a Border Management Agency which would include the ceding of functions from relevant organs of state. The Department of Home Affairs was designated to lead the BMA. During 2015, the cabinet endorsed the draft BMA Bill should be introduced to Parliament. The BMA Bill was informed, amongst other things, by the following principles:

• BMA would assume control of all ports of entry and borderline functions
• The establishment of a national Border Risk management and Targeting Centre would be key to the functioning of the BMA
• BMA would be established as a command and control organisation with management authority within all ports of entry and border law enforcement areas
• BMA would be established as a single implementation entity
• BMA would establish its own organisational culture, identity, and conditions of service

Mr Africa reported there were six phases for the proposed BMA roll-out. Currently, they were in the first phase until the Bill was passed. The first phase would finalise all the planning for the operationalisation of the BMA. Each phase would cover key activities and milestones; roles and structures to support and manage points of entries and land borders transitioned into the BMA; costing of each phase and the MTEF budget submission; maximum time frame for each phase; operating model functions; and proposed transition approach for the ports of entry. National Treasury provided the BMA with an allocation of R84m for the 2019 MTEF, and the BMA Bill was still in the NCOP.

Consultation on the Bill were held with the Public Service Council Bargaining Chamber, Nedlac, Labour and Business, and inputs were solicited from the Office of the State Law Advisor. From the public comments, it was clear the BMA Bill had addressed constitutional concerns; revised substantive provisions; revised its structure and outline; addressed drafting matters; and that the cabinet approved the policy direction.

He pointed out three substantive areas of disagreement with Nedlac.  Nedlac was of the view the establishment of the BMA was a privatisation of government functions, but the government insisted the issue was addressed in the revised Bill. Labour and business were of the view the security vetting process was ineffective and inefficient, but the government believed that security vetting was a necessity for all future BMA officials and employees. The business and labour sector were of the view that officials should only be permitted to search goods and person where there are reasonable grounds to believe that a warrant was likely to be granted, if applied for, and that the delay in applying for such a warrant would defeat the object. The government argued that routine searches at ports of entry, and within the border law enforcement area, could not be subjected to these limitations.

Some of the important revisions made to the BMA Bill by the Portfolio Committee on Home Affairs included, amongst other things, the following:

• The definition of “airspace”
• Revised provision relating to limitation of rights
• Improved drafting related to the provisions on the powers of entry, search, seizure, arrest and detention
• Insertion of a provision for the BMA to facilitate the collection of revenue within the border law enforcement area and ports of entry
• Insertion of a provision related to the terms of office of the Commissioner and Deputy Commissioner
• Insertion of a provision to deal with the appointment and functions of a maximum of two deputy Commissioners

The Bill, with proposed amendments, was presented to the relevant NCOP select committee in the Fifth Parliament. Key affected organs of state were directed to meet and discuss the Bill with a view to find “common ground”, and the Ministers of Finance, Police and Home Affairs were requested to attend a follow-up meeting of the Select Committee where the Bill would be finalised.

Mr Africa mentioned there were key concerns over the BMA from National Treasury and SARS. Concerning National Treasury, interactions took place after the cabinet approved the bill in 2015 and during the 2016/17 parliamentary process. Their proposal was to exclude SARS, customs and revenue collection from the BMA establishment process. With regard to SARS, interactions preceded and post-dated the submission of the BMA Bill to cabinet and Parliament in 2015 and 2016, respectively. Similar to National Treasury, their proposal was to exclude SARS, customs and revenue collection from the BMA establishment process. Even though political and technical interactions on the BMA Bill took place between 2016 and 2018, the concerns from Treasury and SARS were not resolved.

Mr Africa informed the Committee on the intended benefits of the BMA. First, there would be a formalised relationship between the BMA and relevant organs of state to enhance security and management of the border environment. Second, Customer service efficiencies would be created through streamlined integrated operations at the ports of entry. Third, there would be a focused approach to the optimisation of port of entry operations and processes to enhance efficiencies through maximum compliance and minimum administrative costs and delays. Fourth, there would be effective utilisation of financial, human, infrastructure and accommodation resources in the implementation of border management functions at a port of entry as an agent for multiple border management authorities. Lastly, there would be improvements in shared information, risk profiling, mitigation, and enforcement to create border environment picture.

Since the start of the 6th Administration, the Ministers of Finance and Home Affairs have interacted on the Bill and it was agreed that SARS and the customs function should be excluded from the BMA, and this should be reflected in the BMA legislation. These proposed amendments would pave the way to fast-tracking the finalisation of the BMA legislation and the establishment of the BMA. National Treasury and the Department of Trade and Industry would remain the policy and legislative authorities on all matters pertaining to tax, revenue collection, trade, customs and cross border goods movement; and SARS would retain its full mandate on customs and related revenue-generation powers, functions and duties in the border environment.  An implementation protocol needed to be concluded between the BMA and SARS to formalise the integrated and collaborative border management relationship between the two organs of state in the border environment.

Finally, he stated the Department was ready to support Parliament in finalising the enactment of the BMA legislation. The Department was also finalising the draft Section 97 Presidential Proclamation that would transfer border law enforcement functions from affected ministers to the Minister of Home Affairs and the Department was preparing for the incremental establishment and roll-out of the BMA to designated ports of entry and segments of the land borderline in 2020/21.

The Committee was given an overview of the BMA Bill (2016), chapter by chapter and clause by clause.

(See document)

Discussion
Mr S Mfayela (IFP, North West) wanted to know how the country was currently coping on the borders, so that as Members they could understand the situation before Parliament passes the Bill.
Mr Africa replied the country does not yet have a BMA, but there was only fragmentation they were trying to coordinate. The BMA was trying to address the consequences of fragmentation.

Mr I Sileku (DA, Western Cape) asked if there were political parties that were against the Bill and wanted to know if their concerns were taken note of.

Mr Africa said the DA and EFF did not support the Bill for reasons only known to those two parties.

Mr S Zandamela (EFF, Mpumalanga) enquired if the NCOP was going to be updated with progress seeing that the Bill was a Section 75 one and would go straight to the National Assembly. He also wanted to know what was going to happen to the current employees because 21 000 employees would be recruited to join the BMA once the Bill was passed.

Mr Africa stated even if this was a Section 75 Bill, the NCOP was required to give input though there would be no functions done by the provinces. The NCOP would be kept informed at all times about the progress of the Bill. He added that the employees recruited would come from other relevant departments like SAPS because they have been designated to perform the functions they would be recruited for.

Ms M Mmola (ANC, Mpumalanga) wanted to establish how the insufficient budget of the SANDF was going to be addressed because the army was visible in the borders even though it was not mentioned in the presentation.

Mr Africa replied that the proposed Bill was quite clear on the roles that would be played by the SANDF. The BMA would not encroach on the work of the SANDF.

Mr E Mthethwa (ANC, KwaZulu-Natal) remarked that the BMA was going to face resistance from other departments like SARS, SAPS and SANDF. He wanted to know the views of the Ministry around this matter, saying cooperation was needed in terms of search and seizure because that would need the services of SAPS. He enquired if the transfers of employees from other organs of state was not going to cause gaps in the BMA’s salary structure and affect the ranks the employees had in their former departments. Finally, he asked if it was practical to state that the BMA would be up and running by next year seeing that the roll-out phase was still on Phase 1.

Mr Africa assured the Committee there would be no resistance faced because all the issues have been thrashed out. The proposed Border Guard had its responsibility with regards to the crossing of ports of entry. The SANDF and SAPS would continue to do their work. Clarity has been reached with SARS. Furthermore, the transferred employees would not be demoted or be worse off. The basic conditions of employment would be the same for all recruited employees. These matters have been thrashed out in the legislation. He added there would be a revision of timelines when it comes to the rolling out of phases.

Ms Z Ncitha (ANC, Eastern Cape) observed there was no reason to discuss the Bill because it appeared there were unresolved matters between SARS and the Department and these would have implications for the Bill. She wanted to establish how many staff members were in the system, currently, seeing that plus minus 21 000 people would be recruited. She also wanted to know what the way forward would be to avoid resistance from trade unions going forward because Nedlac had raised three negative areas. She remarked that sea workers were complaining of being seriously abused and suggested that legislation should be able to address labour laws that were not applicable to the sea.

Mr Africa stated unresolved matters did not exist at this point. They have agreed to disagree with Nedlac, but at government level there have been agreements. He reported there were 8000 officers from the different departments, 300 personnel at OR Tambo Airport, and 1000 from Home Affairs Department.

The Chairperson thought that by now the Department would have reached an agreement of some kind with SANDF and SAPS, especially when you consider Clause 18 of the Bill which dealt with search and seizure. He also asked who was responsible for the regulation of private air strips.

Mr Africa assured the Committee there were engagements with the SANDF and SAPS. There was an agreement with SAPS on the Bill. The police would continue their role on border management. The Bill was quite clear the air space management would be retained as the responsibility of the SANDF. Before the Bill was brought to Parliament, there was an engagement with the SANDF. It was agreed the BMA would not affect the SANDF mandate on border protection. The BMA would be responsible for border control and arrest all those crossing the borders illegally. The BMA and SANDF would co-exist. In addition, the BMA and SAPS would also co-exist in terms of duties. For example, at the airport, the BMA would do its work, but if a person was murdered, the police would do their duties. He noted they have taken lessons from other countries as well because if you do not have one centre of command in one environment, things get disintegrated.

Mr Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs, pointed out that there was a provision in the Bill regarding the duties of BMA, SARS, SAPS, and SANDF. He added that the Department of Transport and its entities was responsible for the regulation of private air strips.

Mr Mthethwa commented that the matter needed to be managed thoroughly by all stakeholders involved in the management of the country’s borders. He wondered whether technology would be put to use in the management of the borders.

Mr Africa admitted technology would be used because it would not be easy to use 100% warm bodies to manage the border line. Technology would be used together with the electric fence. The biggest challenge was the border between Zimbabwe and Mozambique, the Botswana one being the longest.

Mr Sileku was concerned if there would be a budget to ensure what was envisaged is done. He further suggested that people recruited to the BMA should be vetted to avoid corruption.

Mr Africa reassured the Committee funds would be transferred from all the relevant departments. They would be moving functions with funds. He pointed out the BMA would have its own organisational culture and audit trail. Fragmentation was the only thing that was causing problems because there was no single commanding structure, and that everyone would be vetted.

Mr Zandamela requested the Committee be furnished with actual operations because the introduction of the Bill was there to meet existing challenges.

Mr Africa indicated that once the BMA was formed, there would be one structure. Each port of entry would have a designated officer or port manager. Everything would be standardised and there would be various operations.

The Chairperson hoped the Department and National Treasury reaches an agreement that would ensure the BMA sees the light of the day, and that the confirmation from SAPS would be received with regard to the clarification of roles.

Briefing on the Civil Union Amendment Bill
Ms Noluthando Mpikashe, Parliamentary Legal Advisor, briefly informed the Committee about the principle behind the Bill. The Bill sought to repeal Section 6 of the Civil Union Act. The Bill was taking away the right of officers who were refusing to solemnise marriages of same sex couples. Once the Bill is passed, all officers would have the right to solemnise marriages of same sex couples.

The Chairperson indicated that the Bill was referred to the Committee and there has been no public participation on it. The Committee would call for public comments because it was currently a Section 75 Bill.

Members did not ask any questions on the Civil Union Bill.

The meeting was adjourned.