Border Management Authority Bill [B9-2016]: Department response to submissions & deliberations

Home Affairs

14 September 2016
Chairperson: Mr B Mashile (ANC)
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Meeting Summary

The Committee Researcher and Legal Adviser from the Department of Home Affairs (DHA) took Members through the various submissions that had been presented at the public hearings on the Border Management Authority (BMA) Bill. The submissions had been grouped under broad headings related to the clauses of the Bill. General matters raised and discussed firstly touched upon the references to the SA Police Service (SAPS) and it was agreed that they acted under a constitutional mandate, whilst the role of the SA National Defence Force (SANDF) at the border would also remain. The Scalabrini Centre had made a submission that related to refugee rights but Members agreed that these submissions were misplaced because they did not have a bearing on the current context and substance of the Bill which was essentially to do with administrative processes around the establishment of a Border Management Authority, although all its officers would have to comply full with the Constitution and laws relating to human rights of all persons crossing the border. It was stressed that the Bill was framework legislation and the Department of Home Affairs (DHA) had specifically tried to avoid making the Bill into a list of requirements. Several suggestions on definitions were discussed and the Committee agreed that it was not necessary to incorporate suggestions about facilitating trade as that was not the function of the BMA. BUSA's submissions were already catered for. It was stressed that the BMA was the implementer only of policies formulated by the DHA. Transnet's submissions about the definition of airspace would be checked with the SANDF. DHA would look further into points raised by the Department of Justice about 10km zones, as would the issue of warrants. There was a suggestion that “the President” should be defined. It was suggested that the definition of “border law enforcement functions” could be tightened.

Submissions by the Durban Chamber of Commerce suggested that the Bill should not interfere with a zero-tolerance approach, and there was a discussion as to the powers of the BMA in relation to SAPS and metro police, and indeed all other state organs, working together. Under Chapter 3, the various options for establishing a board or not were discussed and Members agreed that whatever was established must be fully accountable to Parliament. Discussion around the appointment of and functions of the Commissioner stressed that the person would need to undergo training, but it was not necessary to prescribe that they should be from the police or military. The contract would be for five years, renewable once, and the Committee wished to see the terms of office being clearly specified in the Act and the right person appointed. Members expressed their concern that if the Commissioner were to be removed from office the process must be dealt with very swiftly, and it was suggested that reference be made in the Bill to performance contracts. Members did not agree with a submission from the Tourism Business Council that the officers must necessarily be trained in tourism-related matters although it was accepted that they would be “the face of” the country.

Members agreed that a way must be found to protect the Commissioner from undue influence by a Minister, and to find the right balance between independence and ensuring that the security of the state was not put at risk. It was suggested that careful records be kept of all written instructions. It was suggested that the current wide delegation powers should perhaps be narrowed. A good working relationship between Commissioner and Minister was essential. Members discussed the powers of entry search and seizure without warrant and the DHA made the point that similar powers were contained in other legislation. The necessity for a code of conduct for officials was stressed. Transnet had raised a concern that search and seizure could be used to frustrate its freight business but the Committee pointed out that the power would have to be exercised properly and operational desires could not take precedence over security issues. However, Members pointed out that it would be useful if the various role players could meet to find practical solutions that did take account of the legal position of the entities. Members did not see that there was a contradiction across clauses 18-20 as Transnet claimed.  Business Unity had proposed new clauses to specify details about roadblocks but the DHA pointed out that this had been discussed and not agreed upon at Nedlac and was felt to be an undue restriction on BMA. Arrests in respect of vehicles in ports were discussed.

The Committee agreed with a suggestion that there should be an inter-Ministerial committee headed by the Minister of Home Affairs, to which other affected ministers could be invited from time to time. There were provisions around harmonious working between organs of state. Business Unity suggested that all decisions of the Commissioner must be in writing and that reasons be made available, and the DHA responded that the processes were set out and judicial review could be sought. Members discussed points of entry and the DHA and Members were asked to consider if other pieces of legislation dealing with similar topics may need amendment. Clauses on confidentiality of information distinguished between informtion that could not be disclosed by officials because of their positions, and information that related to corrupt activity that should be disclosed, and Members stressed the need to protect any whistle-blowers. It was suggested that all arrangememts for transfer of staff must be in writing, limited to a certain period and agreed by all parties.

Meeting report

Border Management Authority Bill [B9-2016]: Deliberations on public submissions
The Chairperson reminded Members that the Committee had recently heard public submissions on the Border Management Authority Bill [B9-2016] (the Bill) and the discussion on those submissions may be seen as a continuation of the public hearings process.

The Committee was presented with a document summarising each of the submissions on the various clauses of the Bill and the Chairperson led discussions on each clause.

References in the Bill to South African Police Service (SAPS)
The Chairperson stated the police have a constitutional mandate to undertake the policing in terms of the Bill and the SA National Defence Force (SANDF) would continue its work on the borders.

Scalabrini Centre
The Chairperson indicated that the submission from the Scalabrini Centre does not belong to discussions on this Bill; it is referring to the rights of the refugees to be implemented by the BMA.

Advocate Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs, agreed that it was important not to conflate the issues with matters that belonged with other legislation as that would demand that more topics be included in each Bill.

Mr D Gumede (ANC) stated the human rights issues should not be included in the border issues. People have to abide by the laws of the country, and laws would be implemented fairly. The human rights issue is a separate matter.

Mr H Hoosen (DA) said the movement of people is facilitated through the Migration Act, and agreed that this should not be included in the piece of legislation under discussion.

The Chairperson stressed that the Bill dealt with the establishment of an entity, how it is going to work, and how to introduce legislation governing its functions.

Mr Hoosen added that the Border Management Authority (BMA or the Authority) would essentially facilitate the movement of people and it is going to have powers of law enforcement. The Committee needs to make simple and clear statements in the legislation that will govern it.

The Chairperson added that the officers of the BMA will have the right to arrest a person who commits a wrongful act and take that individual to the police.

Adv Erasmus reminded Members that the Bill was essentially framework legislation. There would be further proclamations covering the specifics after this process.

Mr Gumede said this Act was akin to having metro police, because the BMA would be operating at the borders only. However, anything that it did must comply with the human rights and other requirements of the Constitution.

Adv Erasmus pointed out that what had been discussed was all indicated in the legislation already. When the Committee was dealing with these matters they would be covered by the Constitution and international and domestic laws.

Mr Elroy Africa, BMA Project Manager, Department of Home Affairs agreed and said that the Department of Home Affairs (DHA or the Department) had specifically tried to avoid creating a list of what could and could not be done.

Mr Gumede stated he supports the preamble as it is and proposed the Committee should adopt it as it stands.

The Chairperson noted that Business Unity, Business South Africa, & Tourism Council of SA had commented that the definitions in the Bill did not appear to seek to facilitate trade and fair travel. However, the Chairperson stated that the BMA is not going to act similar to the Department of Trade and Industry (dti) but would make sure that goods and people moved across the border in a legitimate way.

Mr Gumede said BUSA's points seemed already to be catered for.

Adv Erasmus pointed out there is no specific area where it is stated that the BMA is not facilitating free trade and travel.

The Chairperson maintained that the BMA is not a trade agency. Its duty would be to facilitate a security function and there would be conditions under which this would be done. If the cargo was accompanied by the right documents, that cargo would enter the country. It was the dti who facilitated trade. He proposed that Members should speak to their respective parties about the points of not burdening the BMA with other functions.

Mr Africa maintained that the BMA is not a policy organisation. DHA would deal with policy issues regarding the movement of people. The BMA is simply an implementing agency that would support the policies of the government. He repeated that the Bill is a framework only and does not go into details. That was why there would have to be a Presidential proclamation dealing with anything crossing the  borders. The BMA is also not a para-military unit.

The Chairperson asked if the Committee should disregard the BUSA and the Scalabrini Centre submissions.

Mr Hoosen said there is no reason to include the Scalabrini Centre submission, and the Committee should report that the points made by BUSA are already catered for in the Bill.

Transnet submission
The Chairperson noted the submissions of Transnet and suggested that Members ask for the input of the SANDF for the definition of “airspace”.

Department of Justice submission
Adv Erasmus stated that the Bill went through all the government departments before it was discussed.

The Chairperson said the input from the Department of Justice and Constitutional Development seemed to deal with small technical issues.

Mr Hoosen pointed out that there was a point about the 10km radius being problematic. The BMA operates within and outside the 10km radius.

The Chairperson asked whether the BMA officials would, in practice, be regarded as having acted illegally if they operated beyond the 10km radius in order to conclude the work they had started. He wanted to know if there should be no provision that caters for operation beyond the 10km radius.

Mr Hoosen stated that if a person was being chased or arrested within the 10km radius, that would fall to the BMA, but beyond the 10km radius from the border, SAPS could intervene.

Mr Africa stated there is a need to be as specific as possible as to where the BMA has to do its work. The reference to the 10km radius is taken from the existing legislation of SAPS. A further response on this could be forwarded to the Committee as the Department is trying to be specific in this matter.

Mr Gumede wanted to know if the possibility of conducting search and seizure within the 10km radius inside the country, for example, between Cape Town and Durban, has been considered.

Mr Hoosen wanted to know if BMA officials would be able to search the houses and businesses within the 10km point of entry, without a warrant. He asked the Department to provide a written response.

Adv Erasmus indicated the Department is trying to come up with a definition to accommodate the different borders.

The Committee Researcher said input from the Department of Justice should be referred to the DHA for consideration.

Tourism Business Council of SA Input
The suggestion was that since reference is made to “the President” in clause 7, there should be a definition for “the President” 

Application of Act
The Committee Researcher asked Members to look at the definition of “border law enforcement functions” and suggested that the definition should contain a provision excluding the border law enforcement functions of the SANDF, or use a phrase other than “border law enforcement functions”.

Objects of the Act
The Committee Researcher informed Members that the Bill empowers the BMA to cooperate with other state organs in its work, and it needs to align its functions as stated in the definition and its objectives.

Functions of Authority
Durban Chamber of Commerce Input

The Committee Researcher informed Members that the concern of the Durban Chamber of Commerce is to ensure that the Bill does not interfere with its efforts of zero tolerance towards crime.

The Chairperson said the Durban Chamber is claiming zero tolerance but it is not helping to protect the borders in terms of illegal goods. If there was really zero tolerance, the BMA would not have needed to be established.

Adv Erasmus pointed out that when it came to criminal activity, the SAPS could go anywhere. The BMA can make arrests and call on SAPS.

Mr Gumede stated there is a paragraph that gives context to what is meant. When the Durban Chamber of Commerce made its presentation, there was not an awareness of the arrangements between the SAPS and DHA regarding law enforcement in the border management areas.

Mr Hoosen wanted to know if the same does apply to the metro police.

The Chairperson said metro police work the same way as the BMA, but they could not stop the SAPS from doing their daily work in areas in which the metro police operate. The same applies to the BMA.

Mr Hoosen asked if there is a provision in the Bill that prohibits the metro police from operating within the BMA area.

The Chairperson explained the BMA has to operate with other state organs, irrespective of the level of that particular organ of state.

Mr Gumede suggested that this should be flagged, the Committee be advised appropriately, and this should be included in the Preamble.

Mr M Figlan (DA) stated that the metro police safeguard the metro, but do cooperate with the SAPS.

Mr Gumede said there is no size that fits all. Municipalities are not the same. It is important to deal with the borders of the metros.

Chapter 3: Establishment of the Board

Mr Africa remarked that if BMA is going to be a public entity, it normally would have a Board. However, it would be possible to set it up similar to SARS. The most important point would be to ensure that there is accountability, so that the entity could present regular reports to the Parliament.

The Chairperson commented that if there was to be a Board, this could be seen as moving towards privatisation. The employees of BMA would see themselves outside of the state and he feared that this could lead them to embark on strikes. The existence of a Board could facilitate illegal enterprises with other syndicates for their own interests and this could sabotage the objectives of the existence of the entity. The Committee has to avoid having an “animal” that it could not control over time.

Mr L Mpumlwana (ANC) said the most important point was the security of the state and to ensure there is no entity that the state cannot take control of.

Appointment of Commissioner

Mr Gumede asked for clarity on the meaning of “prescribed training” that the Commissioner should complete before taking office. He wanted to know if the person has to come from the police, military, or if there is an academy that provides such a training.

The Chairperson explained it was not correct to state that the Commissioner should be a person who comes from the police or military. This was similar to saying the Police Commissioner should be drawn from the police ranks. He rather thought that this training referred to the relevant administrative aspects, negotiation skills, legal skills, and leadership skills. The Deputy Commissioner should be a person who comes from the SAPS ranks.

Adv Erasmus said a person who is to become a Commissioner should complete a prescribed form of training.

Mr Mpumlwana indicated that person must have the right level of basic education to be able to understand the kind of training he/she has to undergo.

Mr Gumede believed that military experience is needed because the Commissioner would be dealing with armed forces and the military training would assist in maintaining discipline.

Mr Mpumlwana did not think that there was any reason why renewal of contract of the Commissioner could not happen, so that the Commissioner should serve a five-year term and that could be renewed once.

Adv Erasmus stated that 10 years is the maximum and that was what was being done currently.

Terms of OfficeThe Chairperson asked if a 65 year old could be considered for the position of a Commissioner.

Mr Mpumlwana replied that it was not possible to discriminate on the basis of age, according to the Constitution. The age restriction should be removed, to prevent any challenge in a court of law.

Mr Gumede agreed with Mr Mpumlwana.

The Chairperson maintained that the right person must be appointed, irrespective of age, and serve his/her term. If she/he performs, his/her contract must be renewed and serve only two terms.

Mr Mpumlwana commented that the drafters of the Bill should be clear on whether a Commissioner, after serving two terms, could still come back after a break for a certain additional period.

Removal of the Commissioner from office

The Chairperson stated there should be provision for a time limit pertaining to the investigation of a Commissioner. He explained that if the Commissioner was to be suspended for any reason, there would be appointment of an Acting Commissioner, who would receive less pay than the person suspended, but this would still run contemporaneously with the suspended person continuing to draw a salary, although they might be sitting at home for two or three years.

Mr Mpumlwana asked if this matter could be flagged to await for the response of the Department. The terms of suspension must be based on the regulations.

Mr Hoosen suggested a reference to the performance contract should be included in the Bill and agreed that the DHA should report back to the Committee on the issue.

Service Conditions and remuneration of Commissioner

The Tourism Business Council of South Africa made a submission that officers should be trained in tourism-related matters.

The Committee Researcher said that submission was not in fact related to the clause under discussion. However, the Tourism Business Council had indicated that tourism should not be delayed or affected.

Mr Gumede said the drafters and the Committee need to be sensitive to trade and tourism. Their concerns could be accommodated in the Inter-Ministerial Committee.

The Chairperson indicated that officers should be trained in the work they would be doing at the borders. There was, in his view, no need to single out tourism. The BMA is not a tourism entity, but tourists would be dealing with the BMA personnel. Not all officers are going to be armed.

Mr Mpumlwana stated that any person working at the border acts as the face of the country. That is why they should be concerned about tourism. This means some officers are to be trained in customer care.

Functions of Commissioner
The Chairperson stated that if the Commissioner is reporting to the Minister, a way must be found to ensure that these people are able to work together, and to protect the Commissioner from being put under pressure to take illegal directions or instructions from the Minister.

Mr Hoosen said the Department should be given a chance to come up with a solution with regard to legal and illegal directions. He agreed that not all Ministers give legal directions.

The Chairperson pointed out that the Committee had to be very careful that it did not create a component that could put the security of the state at risk; he pointed out that the Commissioner is to be independent.

Mr Gumede indicated that the Commissioner should take written directives, for audit purposes, from the Minister. At the end of the day, the Commissioner has to run the entity and account.

The Chairperson agreed that the daily work of the entity rests with the Commissioner. The Commissioner will be at the level of a Director-General.

Mr Hoosen suggested that safety mechanisms should be put in place so that there is no repeat of what the Guptas had done when they landed at a Defence Force airport.

Delegation by Commissioner
The Committee Researcher pointed out that the provision contained in the Bill seems to be very wide and it is suggested that consideration be given to limiting the delegation to officials of a more senior rank or level.

Adv Erasmus stated that a delegated function could not be delegated again to another person. It has to be delegated only to the person who can do it best.

The Chairperson stated the Commissioner could delegate so that work gets done, and the delegation power was a tool to ensure that this happened.

Appointment of Officials
The Chairperson stated again that the Minister must work well with the Commissioner to ensure there are no surprises between them.

Powers of entry, search and seizure without warrant
The Chairperson asked that Members agree that officers must be trained to be able to make an assessment and be able to act appropriately.

Adv Erasmus indicated there are provisions to allow for arrest, with or without a warrant.

Mr Hoosen stated there must be provisions for search and seizure, because such provisions were currently included. He asked the Department to send written responses to the Committee on this point.

Abuse of power by officials
The Committee Researcher indicated that this relates to the disciplinary code of conduct for the officers.

The Chairperson said the entity or component must have a code of conduct for officers in its regulations, even if this was related to the Public Service Commission laws.

Powers of entry, search and seizure with warrant
Mr Hoosen stated he finds it difficult to understand this part, because “classical policing” still remains with the SAPS.

The Chairperson said there might be a need for classical policing in the border areas.

Adv Erasmus pointed out that the power of arrest is not exclusive to SAPS. The Immigration Act also talks about search and seizure and arrest. It allows arrest by immigration officers and metro police.

The Committee Researcher informed the Committee that Transnet had raised a concern that the stop and search provisions of this Bill would allow for the Transnet trains and trucks to be stopped for spurious inspections, just to frustrate them.

The Chairperson responded that Transnet should understand that there were circumstances where it would be perfectly logical and desirable that a train or truck should be stopped for the purposes of searches. The BMA must not be prohibited from doing its work.

Mr Gumede remarked it would be important to have an agreement as to how to beset approach the concerns of Transnet and others about the logistics of the operations. There should be agreements between the different role players. A practical arrangement should be made and perhaps incorporated into law.

Mr Africa stated that Transnet is an organ of state. The role of BMA related to border law enforcement. The comments by Transnet did not appear to take cognisance of the issues of the law. The BMA would implement an operational protocol.

The Chairperson also stated that he did not see a contradiction in Clauses 18, 19 and 20, such as Transnet claimed.

Routine searches and seizure
Business Unity South Africa proposed the insertion of a new Section 20(2) and 20 (3), which would, amongst others, deal with the date on which the roadblock is authorised, the approximate duration of the roadblock, and the place and object of the proposed action.

Mr Africa stated this is an issue on which the parties could not agree, as reflected in the Nedlac report. The DHA felt strongly that there should be no such limitations on the work of the BMA. The Commissioner would be aware of the existence of a roadblock because it would have been approved by the Commissioner.

Powers relating to vessels within maritime borders
The Chairperson commented on illegal activities on vessels and stated that the BMA officers should be able to make arrests. How this would be done would be determined by the wording of the proclamation. The BMA officers must be given a right to inform the captain of the vessel of the illegal consignment, and their intent to make an arrest.

Detained or arrested persons and seized goods
The Chairperson agreed with the submission made by Katleho Mogase that the Inter-Ministerial Committee must be replaced by a Ministerial Committee that is headed by the Minister of Home Affairs, with representatives from all affected departments, and also with citizen involvement. The DHA had listed all the departments to be involved and that this should include Ministers whose departments are directly affected by the work of the BMA on a daily basis. The Ministerial Committee should also be able to specifically invite any affected Ministers where there is something that frustrates his/her department. For example, if DAFF is affected, DAFF should be invited, although it would not be necessary for DAFF to be present on a daily or regular basis. The Ministerial members actually serving on the Committee should be regulated to those affected on a daily basis - such as SAPS, SANDF, Department of Home Affairs.

Implementation of protocols
The Committee Researcher informed Members that this clause makes provision for organs of state to cooperate and work harmoniously.

Review and Appeal of decisions
Business Unity South Africa proposed the insertion of Clause 30(6) to state that every decision of the Commissioner must be in writing, and the reasons must be made available to the affected party.

Adv Erasmus said it is important to exhaust internal remedies first and then provide written reasons. There is a process set out in the Act and judicial review processes could also be followed.

The Chairperson added that when a person is not happy with a decision, internal processes should allow that person to voice discomfort, lodge and appeal and go to court.

Designation of points of entry
Mr Africa said Clauses 31 and 40 deal with points of entry and place of entry. The Minister of Home Affairs is the only executive member who can designate these two areas.

The Chairperson asked Members to look at any other possible pieces of legislation that may need to be repealed or for processes to be followed to ensure that there were not too many executives designating those places and points of entry.

Contraventions around confidentiality of information
The Chairperson said there were two points in relation to this. Firstly, this had to do with  corrupt activities within the institution, and, secondly it was  about selling of information, which would leave the institution open to attack. He said officers would not be allowed to give out information willy-nilly.

Adv Erasmus indicated that officers could not give out information acquired during the exercise of their functions or authority. However, any information related to corruption should be reported to the officer specifically designated to deal with such matters. Those reporting fraudulent activities are protected by the law.

Mr Mpumlwana stated the problem lay with the interpretation, when matters were referred to the courts.

Mr Africa stated that concerns raised at Nedlac were around interpretation and that the Bill might be undermining the rights of whistleblowers. He said that it would be necessary to fiond a balance. The organisation had to protect the information that the BMA would need to handle, and it must also protect the rights whistle-blowers.

Transfer of employees from one state organ to another
The Chairperson pointed out that transfers must be recorded in writing, should happen within a specified period, and that they could not be on-going. The employee must sign the transfer letter, and the process has to be followed by negotiation.

Mr Mpumlwana wanted to find out if labour disputes would be referred to the Labour Court instead of the High Court, which could address any matter.

The Chairperson maintained that because this was a labour matter, it would make perfect sense to refer matters to the Labour Court to speed up processes, instead of using another court. He noted that the DHA knows what informed its decisions and would present its case when it met with the Committee. Lastly, he proposed that Members should engage with their colleagues in their respective parties, and bring any further submissions to the Committee before engaging with the Department.

The meeting was adjourned.

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