Three departments briefed the Committee on the progress of the Border Management Authority (BMA) Bill, with a particular focus on the key risks and challenges, political mandate and principles informing that Bill.
The Department of Home Affairs (DHA) noted that non-secure borders could enable the trafficking of drugs, weapons, contraband, terrorist funding, material related to weapons of mass destruction, conflict minerals, wildlife and people. Common security issues at borders included criminal acts, technical violations, transnational organised crimes, terrorist threats and threats to the integrity of border management. South Africa was the first choice of country on the African country, for asylum-seekers and economic migrants, and globalisation and its attendant migration had heightened the challenges of border management for sovereign states globally. The point was made that South Africa had 76 ports of entry, and the possibilities of illegal entries by air and ports were also highlighted. Land borders were challenged even further by inadequate border fencing and patrol roads, strategic gaps, wild life poaching and illegal migration.
The need to establish an authority to manage the borders was first mentioned in the 2009 State of the Nation Address, and Cabinet took a decision in 2013 to assign the task of establishing this authority to the DHA. The BMA Bill was drafted, endorsed by Cabinet, and comments on the draft Bill were sought. The main principles were summarised. The Bill was outcomes-focused, intended to establish a single implementation entity that would integrate activities, control all ports of entry and borderline functions, establish a command and control organisation, and have operational responsibility for port of entry infrastructure and maintenance. The National Border and Risk Management and Targeting Centre would be established and would be key to the functioning of the BMA. A basket of border law enforcement functions would be ceded and/or transferred from relevant organs of state to the BMA. The DHA believed that the current bill had addressed constitutional concerns. However, there was still disagreement within NEDLAC on the establishment of BMA as an independent body, and disagreements still around security vetting and routine searches.
SAPS outlined the position followed by the Programme Management Office (PMO) and outlined the specific concerns of SAPS with the Bill. SAPS noted that the Constitution made reference to a single police service, and to the position of SAPS as one of the security services. In terms of the Constitution, SAPS believed that only SAPS was responsible for policing and security of the border environment (border control and transnational crime), and the powers assigned under this were described, as set out in the Police Act. SAPS maintained that there were specialised functions that could only be performed by SAPS, and thus that SAPS should continue to function at the borders as it was now. SAPS was concerned that the Bill was not specific enough on the services to be provided by SAPS, although the mandate of the Defence Force was set out. It was later pointed out that the police were a para-military entity that respected State hierarchies. If another entity was to be created under the BMA Bill, the Constitution would need to be amended.
NT outlined the position of itself and SAPS and stressed that any changes made by the BMA must not affect the position of revenue collection and the tax system. Whilst it supported the need for integrated and coordinated border management that facilitated secure travel and legitimate trade, all of which were critical to the functioning of the economy, it would be vital to ensure that the operational implications were fully understood and arranged to avoid any unintended consequences. Border management involved around 21 entities, but there should be seamless integration. The differing roles of DHA, who dealt with people movement, and SARS, who dealt with glow of goods, must be understood and, similar to the SAPS position, NT felt that more clarity was needed on what the BMA's functions and roles would be. In addition, the Bill did not spell out what resources and/or liabilities would be transferred to the BMA, and did not take into account some important studies, which were cited. NT also pointed out that the Constitution had entrusted tax policy and administration to NT and SARS, under the Department of Finance, and only the Minister of Finance could introduce customs or excise duties or levies, so that the BMA would not be able to attend to collections.
The Chairperson had asked that Members ask questions of clarity only at this point, but all Members noted the disagreement between the entities, and said that they were expecting the departments themselves to come up with solutions. It was not up to the Committee to reach agreement for them. It was stressed that the decision to establish the BMA was one taken at Cabinet and it was surprising that the executive officers were expressing concerns about the principle. Other departments with concerns were asked to approach the Committee. Some Members stressed the need for certainty on the roles and effective coordination. They asked for a briefing by DHA on procurement, assets available to the DHA, and clarity on recent court cases. Concern was expressed over how porous the borders were, whether it would be possible to track movement of asylum seekers, the position of the borderline guards and immigration officers, and whether the BMA members were likely to be armed, as well as the powers to the BMA Commissioner and the reporting lines. They wondered how this Bill would affect the principle of free movement of people. Questions were asked about the position of the Department of Defence, and a request was made for a detailed report on the main points of contention at Nedlac. However, the Chairperson reiterated again that it was not appropriate at this point to discuss the questions in depth and the DHA was requested to consider the points made by the other entities.
Border Management Authority (BMA) Bill
Chairperson's opening remarks
The Chairperson welcomed Members back to the first Committee meeting after the local government elections. He noted that the Department of Home Affairs (DHA), the South African Police Service (SAPS) and the National Treasury (NT) would brief the Committee on the progress of the Border Management Authority (BMA) Bill. The Bill had been in discussion for seven years, and was taking very long to finalise. There had recently been some substantial developments. Members would only receive briefings on the Bill today, but not discuss it. They were asked to go back to their parties and discuss the Bill. One of the difficulties was that South Africa was affected by porous borders.
Department of Home Affairs (DHA) briefing
Mr Mkuseli Apleni, Director-General, Department of Home Affairs, said he would outline 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 Apleni noted that migration brought challenges related to public health, natural resources, lack of security, infrastructure and instability on the Continent and these challenges affect South Africa. He emphasised that there were 76 ports of entry. These included borders that were unmanaged or poorly managed, making South Africa vulnerable to illegal migration. Other challenges and risks faced by South Africa’s border environment were highlighted. With regard to air space, Mr Apleni acknowledged that there was limited surveillance capability and coverage over the country’s airspace. With regards to maritime ports, there was undetected illegal fishing and illicit movement of contraband and narcotics. With regard to land borderlines, there were inadequate border fencing and patrol roads; strategic gaps in the borderline, wild life poaching and illegal migration.
Mr Apleni noted that there were various structures that were put in place to coordinate the mandates and actions of various organs of states, including immigration control, customs control, border policing, and these resulted in the emergence of a silo approach to border control, border law enforcement and border protection. These structures lacked teeth and thus failed to address systemic and structural problems of the coordination model associated with fragmented border management.
Cabinet decided, on 26 June 2013, to establish the BMA Bill to address the problem that other various structures established to control and manage ports of entry and borders were toothless. These structures included the Border Affairs Committee Coordinating Committee, National Inter-Departmental Structure (NIDS), Border Control Operation Coordinating Committee (BCOCC) and Inter-Agency Clearing Forum (IACF).
Mr Apleni enumerated key features around the fragmented border management approach (see attachment)
Mr Apleni noted that the political mandate entrusted to the DHA to establish the BMA had been derived from the 2009 State of the Nation Address (SONA) and the 2013 Cabinet resolution, which endorsed this Bill.
Mr Apleni set out the principles informing the BMA Bill. The BMA would be outcome focused, established as a single implementation entity and on the basis of primary frontline integration,controlling of all ports of entry and borderline functions, and established as a command and control organisation. It would also assume operational responsibility for port of entry infrastructure and maintenance. The National Border and Risk Management and Targeting Centre would be key to the functioning of the BMA. A basket of border law enforcement functions would be ceded and/or transferred from relevant organs of state to the BMA. Enabling legislation was a priority in order to achieve these. In short, the BMA was seen as a new policy paradigm of integrated border management for South Africa.
Mr Apleni noted that the 2016 BMA Bill had now addressed all key concerns, including constitutional concerns, expressed on earlier versions, and this had resulted in revision of certain provisions. However there were some areas of disagreement in the National Economic Development and Labour Council (NEDLAC) process, including establishment of the BMA as an independent body, security vetting process and routine searches.
Mr Apleni gave an overview of how the Bill was structured. He finally set out the intended benefit of the Bill (see attached document for more details).
Maj Gen David Chilembe, SAPS Border Policing, took the Committee through presentation. He would set out the process followed by the Programme Management Office (PMO) to the establishment of the BMA, and provide some comments on the position of SAPS.
Maj Gen Chilembe noted that SAPS was established by the Constitution as one of the security services, and as a single police service. SAPS alone was constitutionally responsible for policing and security of the border environment (border control and transnational crime). SAPS functions, as assigned under section 13(6) of the Police Act, No 68 of 1995, for borders included search, seize and arrest without a warrant. Its personnel were therefore deployed at all 72 ports of entry (land, sea and air). Their functions included specialised functions that could only be performed by SAPS and could not be ceded to other departments
Maj Gen Chilembe concluded that the final establishment of the BMA should take into account the constitutional mandate assigned to SAPS, and thus enable it to continue its current function at borders. He cautioned that, in its current form, the BMA Bill was capable of to various interpretations, since it failed to mention the services that would be provided by the SAPS. The BMA Bill acknowledged the mandate of the SA National Defence Force yet ignored the mandate of the SAPS.
The Chairperson commented that some points had been noted in both the presentations that would need further discussion between SAPS and DHA. he picked up from presentation which would attract further discussion between the SAPS and the DHA. The departments who had a role to play should assist each other in the establishment of the BMA and try to avoid any conflict. The Committee was not well placed to change the decision of executive because it was presumed that all decisions had been taken after proper consideration. The decision to establish the BMA was taken in the presence of the Minister of Police at Cabinet, so that the chances of changing the Bill to accommodate SAPS' demands were limited.
National Treasury (NT) Briefing
Mr Ismail Momoniat, Deputy Director General: Tax Policy and Financial Sector Regulation, National Treasury, noted that NT and the South African Revenue Services (SARS) supported the objectives as outlined in paragraph 1.1 of the Memorandum on the Object of the BMA Bill. This was the need for integrated and coordinated border management that facilitated secure travel and legitimate trade. T recognised this objective as critical to the functioning of the economy and economic growth. It was necessary to consider how this objective could be achieved without risking or fragmenting the existing tax system. This was something that DHA must pay serious attention to; it could not ignore these issues.
Mr Momoniat noted that there was on-going engagement between the NT and DHA on operational implications to ensure the BMA Bill did not lead to unintended consequences and fragmentation of tax administration and collection. As it stood, the border management involved at least 21 entities, and management should operate as an integrated seamless operation for its users. He emphasised that borders were critical to deal with flow of people (primarily a DHA function) and the flow of goods (primarily SARS function).
Mr Momoniat commented that the BMA Bill did not spell out the resources that would be transferred to the BMA, even though some details of resources needed were researched in various studies. The BMA would take a number of years to become fully operational. These studies made some important points that should be taken into account during parliamentary hearings on the Bill. The studies included the Davis Tax Committee Report, the GTAC Study and the Socio-Economic Impact Assessment.
Mr Momoniat also stated that the current version of the Bill did not address all issues. For example, it failed to state which sections of departments would be transferred to the BMA, what budget would be needed, or what liabilities were to be transferred to BMA, so that there was no certainty whether divisions and personnel transferred to the BMA would move across with or without their current budget allocations, and it was necessary to have certainty to avoid financial problems. There might be a problem of salaries for the employees of the MBA.
Mr Momoniat reminded Members that the presentation was focussing primarily on tax and revenue and that it did not deal with budget challenges nor with the PFMA challenges, which could not be assessed until the NT had more detailed information. Tax policy and tax administration were entrusted to the NT and SARS, under the Department of Finance. Within the constitutional framework, only the Minister of Finance could introduce customs or exercise duty or levy, as these could only be imposed in terms of a money bill. Tax administration and collection were governed by the Tax Administration Act of 2001. SARS was established as a separate entity from the Department of Finance, and the 1997 SARS Act established SARS as a unified customs/excise and tax service in order to respond to an inefficient and fragmented collection value chain. The collection of the revenue and tax were therefore a key of the function of a sovereign state.
Mr Momoniat stressed that it was not possible to split the setting of tax or levy from administration and enforcement, given that any gaps would lead to tax evasion and avoidance. Only NT/SARS could jointly determine tax policy proposals and drafting of legislation. There was a strong link between tax and customs. Customs collected multiple revenue streams in terms of tax and customs legislation and was integral to protecting the overall tax base. He emphasised again that certainty was needed on all issues around collection of revenue and NT remained concerned that the existing tax system should not be disturbed.
Mr Momoniat noted that SARS was preparing for implementation of the new Customs Acts, with a particular attention focused on the extensive systems developments required to further enhance and modernise current platforms. He was of the view that the BMA Bill should indicate how the recommendations of the Davis Tax Committee would be taken into account, and how the powers of SARS and BMA would be maintained separately. He asked what exactly an “integrated approach” meant, as it was capable of different interpretations.
Mr Momoniat concluded by stating that the BMA Bill was a framework bill that spelt out a vision. It did not express in clear terms whether it applied to SARS or not, or what activities would it affect or not. This created uncertainty for SARS and customs administration. He asserted that the integrated approach to control and management borders was essential and felt that the integrated management approach ought to be unpacked. To avoid a fragmentation of tax administration and revenue collection, the BMA Bill ought to provide certainty to SARS. NT/SARS were only entities that could only legislate any change to SARS functions. No other institution should take on mandate of the SARS.
The Chairperson thanked Mr Momoniat for his presentation, and stated that his presentation had touched on some relevant concerns that the Committee had to consider. He asked that NT and DHA engage in order to try to produce suggested wording for the BMA Bill that could address all concerns including tax matters. There would be some problems as matters moved forward. He felt that it would be most important to close the porous borders. Seven years had passed in trying to settle this Bill, without a tangible result to date, and he urged the parties to hold meaningful engagement to reach a consensus and to have the BMA Bill address unsecured borders. Both the SAPS and NT should engage with the DHA. He noted again that Cabinet had decided that the BMA should be established. The Minister of Finance and Minister of Police were among those who took a decision, so he found it surprising that administrators disagreed on the establishment of the BMA. He said these administrators should find a way of resolving their concerns in order to respond to the public outcry over porous borders. SARS work was cutting across all departments. For that reason, the NT ought to find a way in which all concerns could be addressed, for the Committee to move on with the BMA Bill.
The Chairperson summarised that in September, the Committee would hear comments from the public. It appeared that there might be other departments/entities that might be affected, and if so, he urged that they should also come forward and brief the Committee.
The Chairperson then asked Members to ask any questions of clarity. He reminded them that they should not debate or discuss the content at this stage.
Ms P Kekana (ANC) commented that although the main reason for establishing the BMA was to secure borders, there were other fundamental issues that ought to be resolved. Concerns raised by SAPS and NT were valid and legitimate. They could not be overlooked for the sake of having secured borders. Borders would be secured when the role of SAPS and SARS were certain. Collections of revenue ought to be done in an orderly way.
Mr D Maynier (DA)was of the view that the root problem that Parliament was attempting to resolve with this Bill was the position where multiple entities were dealing with border management. He asked if it was possible to define how different entities could be coordinated in a more efficient manner. He sought clarity on the numbers of BMA personnel who would either be recruited or transferred to this body. He also asked that the DHA brief the Committee on procurement related matters. He wanted to know why was it important to create new BMA Guards? What assets or resources did DHA have its disposal to ensure that borders are controlled and managed efficiently? Did the DHA have vessels to control maritime borders? He noted from the presentations that both SAPS and NT would support the BMA Bill provided that their concerns were noted and they were able to form part of the BMA. He wondered then what would be the implications of their incorporation?
Ms D Raphuti (ANC) welcomed the presentation. He sought clarity from SAPS on the findings of the court in the case of Abdul Rahim & Fourteen Others v The Minister of Police Case No 965/2013. She felt that the number of personnel proposed by the DHA was not enough so that it would not be an easy task for the BMA in securing borders. The BMA was needed and should not be seen as any threat to the police work.
Ms T Kenye (ANC) expressed her concern about the increasing number of asylum-seekers who gained access to South Africa illegally, especially those who then would go back to visit their families in their home country through the same porous borders. They were able to come and go undetected. She asked how asylum-seekers’ movements could be tracked and traced? What would be the position of borderline guards? Should the BMA become fully operational, what then would be the role of an immigration officer? She noted the mention of disagreement at NEDLAC and asked what the DHA intended to intended to do to convince the parties at NEDLAC and help them to reach agreement.
Mr P Mhlongo (EFF) supported the suggestion for further consultation and discussion processes between the entities to resolve their differences, and suggested that each of the entities and departments should present the points of disagreement and their positions. He asked if the members of the BMA would receive military training or be armed, and if the government was essentially turning to “militarisation of borders”. What could be the power of the BMA Commissioner, and to whom would that person report? He was of the view that the term in office of the BMA Commissioner should not be renewable. He made the point that South Africa, in 2005, had signed the SADC Protocol on free movement of people, and during the previous AU Summit there had been emphasis on free movement of people. He asked then how security would be tightened with the free movement framework?
Mr Y Carrim (ANC) agreed with those who supported a meaningful discussion to resolve differences. He commented that the BMA Bill had been in the pipeline for seven years. Administrators should not give the Committee problems, and he suggested that as a starting point, administrators should be mindful of the fact that they were working for one state and thus move on to reconcile their conflicts. If need be, the Committee should give guidance to them on how their conflict of interest could be reconciled.
Mr D Gumede (ANC) noted that a lot of work had been put into the presentations and in improving the BMA Bill, and there seemed to be a good progress. The establishment of the policy behind the BMA Bill lay with the Executive but not Parliament. The Committee would only approve a policy which was clear and consistent. He wondered why the DHA could not sit with the SAPS and NT and find a coordinated model in which they could operate. Approval of the BMA Bill would result in other scenarios for the SAPS, which had obvious skills, so the problem was really how these could be transferred to the BMA.
Ms T Tobias (ANC) also encouraged engagement between governmental entities and said that there was a need to build good relationships. She said that she would like to know whether the Department of Defence was involved in the negotiation processes. A detailed report on NEDLAC disagreements was needed, to isolate the points of contention. Some issues might be resolved in the public comment process.
The Chairperson stated that points of clarity raised by members were out of his framework of asking clarity. He made clear that it was not a time to discuss the Bill. The DHA should go back and consider issues raised by both SAPS and NT and bring to the Committee something which is less or more finished.
Mr Apleni stated that the system was one based on hierarchical structures, and only a Minister could take a decision on policy. The administrative arms had to implement it. He himself had not come up with the decision to establish the BMA, but he agreed that this was taken by ministers of various departments, including Departments of Defence, Police, Finance and Home Affairs. If other departments were not happy with the decision, they must go back and discuss the issues with their ministers and indicate if their decision was difficult to implement, and seek advice from them on how to proceed. The system which applied presently was not working at all. Borders were porous and South Africa paid a high price for this, particularly incurring loss because of illicit activities, including illicit mining and poaching. He reiterated that this decision was taken by the Cabinet and it outlined issues that ought to be dealt by the BMA. It was agreed by the Cabinet that the BMA would incorporate DHA but not the police.
The Chairperson remarked that the problem was the structure of the Bill and its uncertainty on certain issues. The Cabinet decision was not at issue. The Committee felt that the discussion between governmental departments was taking too long.
Mr Momoniat agreed that there was a Cabinet agreement for establishing the BMA, and the NT was simply arguing that there were some technical issues that were needed to be addressed. The Bill was a framework which could spell out what the duties of SARS were or how the role of SARS would be performed, in clear terms. However, good intentions could not solve a problem if there was not a clear process of how it would be resolved.
Lt Gen B Zuma, SAPS, remarked that the police was a para-military entity which was well disciplined and which respected the hierarchies of the state. There were internal discussions aimed at seeing how the decision of the Cabinet would be implemented. SAPS looked at the Constitution, which, in its view, had stipulated that there ought to be a single coordinated police. This Bill seemingly intended to introduce a new armed agency, operating as a policing structure and in the view of SAPS, this was only possible if the Constitution was amended. If not, the BMA ought to fall under the Department of Police.
Mr Maynier sought clarity on whether the intelligence services would be incorporated in the BMA operations, and whether this was covered by the BMA Bill.
Mr Apleni responded that the issues related to intelligence activities were covered by the presentation documents.
The Chairperson reiterated that today's briefings had essentially just been presenting an overview of the BMA and its progress, and now Members must go back and discuss the Bill in their political parties. He reminded the presenters that there was still more to be done to resolve their conflict and speak with a single voice. It was not the duty of the Committee to mediate the disagreement between the SAPS, NT and DHA over the control of the BMA.
The meeting was adjourned.