A State Law Advisor provided a legal opinion on the Border Management Authority Bill (BMA Bill) which had been requested following questions from a Member at the previous meeting. The concerns had to do with the functions of the Border Management Authority and whether this was necessarily depriving the SA Police Service of any or all of its powers because a Member had wanted assurance that unintended consequences would not follow from any wording. The opinion noted that all illegal and legal movement of people as well as goods would be controlled by the BMA, and the SAPS functions would be restricted to those mandates defined in terms of the SAPS Act. The SAPS would also intervene where was reasonably necessary. The Interim Constitution did not restrict the power to the police to control the border environment and thus new legislation could vest such power to another institution. It was also pointed out that certain functions were assigned to the Department of Home Affairs (DHA), to the South African Police Service (SAPS) and to the South Africa Revenue Service (SARS) and could be transferred also to other agencies by way of legislation. For example, the Immigration Act vested the power in an immigration officer to arrest an illegal foreigner, and so the power to investigate, search and seize was not exclusive to police officers. However, the distinction was clearly drawn that BMA would not take on the normal policing functions.
Members said that this had been their understanding but asked for comment from SAPS, who responded that it had in fact never argued that the border management and control was its exclusive mandate, although some mandates had been included under the Interim Constitution. The SAPS Commission had confirmed to the Director General of the Department of Home Affairs that it did not have concerns around the constitutionality of the Bill. There would be concurrent functions of the SAPS and BMA in the ports of entry and border environment,and whilst the functions should not be confused, they would run in parallel. The State Law Advisor also agreed.
The Chairperson noted that he had received a letter from COSATU, after COSATU had handed a Memorandum to the Speaker of Parliament during a protest against the Bill that took place on 7 October 2016. COSATU had always expressed concerns about the Bill and the Memorandum demanded the scrapping of the Bill, because COSATU believed that it would lead to many public servants being affected which would possibly lead to fragmentation of workers, downgrading of working conditions and to corruption. The Speaker had asked the Committee to respond to that demand. Members agreed that the Bill should not be scrapped. They pointed out that COSATU had not asked for this on the occasions that it had appeared before the Committee previously, nor in its engagements with the Department and at NEDLAC, and its demands now put the Committee in a rather awkward position. DHA indicated that it too would be very much opposed to COSATU's request.
DHA then summarised its new proposals in the latest draft of the Bill. The Preamble, certain definitions, and clauses 1, 2, 4, 5, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 23, 25, 26, 29, 31, 36 and 37 were amended. The insertion of a reference to the “Deputy Commissioner” had led to the need for consequential amendment of certain clauses, including making a clear distinction between a commissioner and an officer. In order to create more clarity, the phrase “a person” had been used instead of repeating the word “commissioner”. Members had no objections to the amendments and confirmed that they did improve the content of the Bill. They asked that the amendments be included in the next draft but noted that there was still to be a meeting between the Deputy President and concerned departments and that further report-backs would follow.
Border Management Authority Bill [B9-2016]: State Law Advisors briefing and clause by clause deliberations
Ms Yolande van Aswegen, Principal State Law Advisor, Office of the Chief State Law Advisor, provided her legal opinion on the Border Management Authority (BMA) Bill. She noted that all illegal and legal movement of people as well as goods would be controlled by the BMA, and the SA Police Services (SAPS) functions would be restricted to those mandated in the SAPS Act. The SAPS would also intervene where was reasonably necessary. She noted that the Interim Constitution did not restrict the power to the police to control the border environment, and so new legislation now could vest such power in another institution. Assignment of functions of management and control of border environment was not exclusive to police.
She added that certain functions were assigned to the Department of Home Affairs (DHA), to SAPS and to South African Revenue Services (SARS) and they could be transferred to another entity by means of legislation. The Immigration Act, for example, vested the power in an immigration officer to arrest an illegal citizen. The power to search and seize was not exclusive to police officers. In the ports of entry and border line environment, the BMA would assume the SAPS functions.
The Chairperson stated that that there were some pieces of legislation that gave power to certain institutions and persons to investigate, or arrest, or detain. However, there should be no legislation creating a “no zone” area for the SAPS or stopping it from performing its duties. He reminded Members that this legal opinion had been sought following concerns on that point by Mr M Hoosen (DA) and he asked whether he was satisfied with the opinion.
Mr Hoosen responded that he had two questions on which he wanted to seek clarity.
Mr D Gumede (ANC) said that he would like to ask SAPS if it concurred with the view of the State Law Advisor.
Maj Gen David Chilembe, Head: Border Policing, SAPS, said that he did agree for the most part with the legal opinion. SAPS noted that issues raised in the legal opinion had been solved between the SAPS and the DHA. When SAPS first briefed the Committee on the BMA Bill, the Committee advised it to engage with the DHA. The SAPS had never argued that the border management and control were exclusive to the police, but rather had pointed out that there some specific functions that could be carried out by the SAPS, and were set out as a mandate under the Interim Constitution. The concern had been that if the mandate was taken away, the SAPS would no longer be able to perform its duties in the border environment. The legal opinion had been sought out of context, based on the assumption (which was not correct) that SAPS had suggested that it believed itself to be the only institution that could perform duties in the border environment.
The Chairperson interjected and stated that Maj Gen Chilembe did not understand the root cause of the legal opinion. It had been based on the question asked by Mr Hoosen, not the concern of SAPS. Mr Gumede had asked that SAPS should comment on its own position and view on the opinion just presented.
Maj Gen Chilembe responded that the SAPS agreed with the submission of the DA, as well as the legal opinion. However, the legal opinion, instead of strengthening the work of the SAPS in a border environment, seemed to suggest that the BMA would outright remove the policing function of SAPS.
The Chairperson reiterated that the Committee understood, from the briefing, that the border functions were not exclusive to the SAPS but that other institutions shared in the work. The SAPS could not be removed from the border environment due to the number of illegal activities taking place there.
Ms van Aswegen stated that section 36 in the existing Act was very broad and contained the words “when reasonably necessary”. If the constitutional mandate of the SAPS had to be included in the BMA, it ought to be specific on that point. She did not imply that the SAPS had no mandate to be in the border environment and agreed that it must be there, as one of the institutions. It did have a function in border management.
The Chairperson stated that the key part of discussion was whether this was an exclusive function.
Mr Gumede sought clarity on how the BMA stood in comparison to, for instance, the position with the Traffic Law Enforcement, Provincial Police and Metro Police. Was there any differences? If so then he would like to hear what was the difference?
Mr Hoosen noted that the legal opinion largely dealt with the principle of exclusivity, and that it was clear to him. However, he did want to know whether SAPS, BMA and other institutions might be regarded as having the same power to exercise the same functions in the border environment,unless the SAPS Act had been amended to remove those specific functions. If the Bill was to be approved in its current form, would this necessarily lead to the revision of the SAPS Act or the Constitution?
The Chairperson stated that in his understanding the SAPS would its work in terms of the SAPS Act and border officers would carry out their tasks in terms of the BMA Act, the Immigration Act and other enabling legislation. The BMA officials could not assume the powers of the SAPS.
Mr Mkuseli Apleni, Director-General, Department of Home Affairs, referred to the letter from the SAPS Commissioner and stated the Commissioner had agreed that the BMA Bill was not unconstitutional. The SAPS Commissioner stated that the BMA Bill did not affect the SAPS work as they would continue to carry out its classical policing functions within the current legislative environment. Concurrent functions would apply between the SAPS and BMA, at the ports of entry and in the border environment. There would be no confusion of functions between the SAPS and BMA. For example, an immigration officer had power to arrest a person who violated the immigration policy, for example, by failing to have the necessary visa, but would not have the power to arrest that same person for driving a car without a licence for that specific duty fell to the SAPS.
Ms van Aswegen agreed that there would be concurrent functions in a border post environment. There would be also exclusive functions of the SAPS. The BMA Bill also did not impose upon or affect other enabling legislation governing other types of police. She was not sure what was the specific wording of the legislation regulating the metro and provincial police . There would be a proclamation stating what the role of the SAPS and the BMA would be.
The Chairperson believed that the Committee had now dealt with the Bill quite extensively and the Members seemed to be happy about the conclusions.
COSATU correspondence: Protest against the Bill 7 October 2016
The Chairperson stated that he had received a letter from COSATU following on the Memorandum that was handed to the Office of the Speaker of Parliament, during the protest on 7 October 2016. In that, COSATU demanded the scrapping of the BMA Bill because COSATU strongly believed that it would lead to large numbers of workers' downgrading of working conditions and corruption. The Speaker wanted the Committee to respond to that demand or to be advised on how the BMA had been dealt with. COSATU had also engaged with the Bill at Nedlac level and had participated in discussions on it during the public hearings. Clarity had been provided by the DHA. It was COSATU who had suggested that the name of Border Management Agency should be changed to the Border Management Authority, and the reasons had been presented. The question of fragmenting workers was resolved at the NEDLAC level. Members should know that the public was concerned about the porous borders and that the BMA was initiated as a response to that problem. The BMA was at its final stage and the COSATU contributed its inputs to improve the BMA Bill. It had been given the opportunity to be heard and their inputs had brought about a comprehensive change to the content of the BMA Bill. It was very unfortunate that COSATU wanted the BMA Bill to be scrapped. He wondered if this response was now appropriate and whether DHA had received the memorandum to the Speaker.
Mr Apleni responded that once the Memorandum had been submitted to them, the DHA had to respond. He reminded Members that when DHA had come to this Committee after engaging with NEDLAC, there had been an issue around establishment of the BMA, and COSATU supported that the BMA should be established as a government department. That was the main issue. The DHA found this problematic, believing that it should rather be established as an independent entity. The DHA would respond to that.
The Chairperson stated that a response should be given to COSATU relating to its contribution to the drafting of the Bill and to the responses provided by the DHA at the NEDLAC level and at the Committee level. Emphasis should be placed on the opportunity given to COSATU to be heard. COSATU should bear in mind that the security of nation was a responsibility of every citizen and that ought to be achieved bearing in mind the constraints on the financial resources available.
Ms D Raphuti (ANC) stated that the issue was about national security and not the bread and butter that was the main concern of refugees and economic migrants. She urged that the BMA and the Bill could not be scrapped.
Mr Gumede stated that workers’ rights were human rights. Members should have the same understanding of the meaning of public services and they should have clarity on what it entailed. Not all Members were aware of how the Public Bargaining Council operated because they did not understand all labour related issues. There was a problem of outsourcing workers. It was not wise to hire foreign companies to guard South Africa’s borders. Raising the issue of whether the BMA should be scrapped was one method used by the COSATU to initiate negotiations on certain matters.
The Chairperson stated that the COSATU was making a request now after it had already been given an opportunity to brief the Committee on the BMA Bill. The request could not be entertained because it was placing the Committee in awkward position. The NEDLAC report should be used to substantiate its response. COSATU could petition the President not to sign the BMA Bill into an Act. The State should jealously guard and protect its borders against undesirable people.
Proposal of the DHA to amend the BMA Bill
The Chairperson stated that there was a letter written by the DHA to the Minister of Finance, and the Minister of Finance had written to the Committee. These two letters would form the basis for the deliberations.
Mr Apleni summarised the idea behind and the moves to establish the BMA. He outlined the vision of the Cabinet, and how the BMA was envisaged to function. An integrated approach had been set out by Cabinet. The DHA believed that the BMA was in line with the Cabinet vision. The Department's position was that the BMA Bill should proceed.
Mr Gumede remarked that attention should be paid to a real risk of various entities controlling or collecting tax and customs. His understanding was that that 99% of tax and customs would be collected by SARS and 1% by the BMA. All entities agreed with the establishment of the BMA in principle, and the integrated approach was supported and no longer at issue. He asked if it was correct that only 1% of revenues would be collected by the BMA at ports of entry.
Mr A Figlan (DA) said that the letter from the Minister of Finance referred to giving the BMA some time to see how it functioned before the SARS functions could be transferred to the BMA. He sought clarity on whether the Committee should not wait for an outcome of the meeting between the Deputy President, the Minister of Finance and the Minister of Home Affairs.
Mr Apleni responded that the bulk of taxes and customs were paid through Electronic Funds Transfer (EFT). What would be paid on the ports of entry were fines and penalties for non-compliance.
The Chairperson sought clarity on Mr Apleni’s statement of making payment through EFT. He asked if he meant to imply that in the case where people were complying with the law, no tax and customs could be collected at port of entry, but only fines could be collected?
Mr Apleni agreed.
Mr Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs, took the Committee through his presentation on the revised Bill. He noted that the wording was amended to omit the phrase “that facilitates secure travel and legitimate trade” in the Preamble. It now included a reference to the Deputy Commissioner. The phrase “and detention” was added in after “power of entry, search and seizure”.
Under clause 1, terms airspace, defence force, deputy commissioner, and revenue were defined. Clause 2 was amended to include the phrase “including those performed of the airspace of the Republic; and”. Other clauses that were amended included clauses 4, 5, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 23, 25, 26, 29, 31, 36 and 37.
With regard to clause 14, the Chairperson sought clarity from changing the wording from “an officer” to “a person”.
Mr Erasmus responded that it was amended in order to facilitate interpretation. The Commissioner could be confused with an officer; therefore the term person would avoid such confusion.
The Chairperson indicated that the Committee would need the assistance of the State Law Advisors in order to ascertain whether there were any further repercussions. He sought clarity on whether the BMA would report to the Committee and if so, under which legislation.
Ms Sueanne Isaac, Parliamentary Legal Advisor, stated that “a person” was appropriate instead of repeating the word “commissioner”. The Deputy Commissioner ought to meet the same requirements of the Commissioner in order to be appointed.
The Chairperson asked for assistance from the legal advisors in crafting clear objectives for the Bill. There would always be problems if there was a stand-off between two Directors General and there the Committee would have to intervene.
Mr Hoosen said that there were issues raised in respect of clause 13, pertaining to the process of appointment of officials and asked the DHA to further comment on that. He sought clarity on whether the Commission would have the same powers as the Minister, and asked for comment on removing a part of clause 19, on which he had commented.
The Chairperson replied that the parts on which Mr Hoosen commented were deleted prior to his questions. He sought clarity on security vetting even though he supported the position of the DHA.
Mr Erasmus said the question was what could happen when the person did go through the process of security vetting. In regard to a detained person, the detention could not go beyond 48 hours even though there might other legislation directing otherwise.
Mr Hoosen sough further clarity on the detention, especially arresting illegal migrants for deportation.
Ms Isaac responded that section 35 of the Constitution said that an arrested person must be brought to court within 48 hours. Detention ought to be reasonable. Detention might not be exactly 48 hours.
The Chairperson said that the clause on detention should then specifically refer to section 35 of the Constitution. He stated that these amendments should be included in the next draft of the Bill. Members should wait for the outcome of the meeting with the Deputy President, which would determine the position of the BMA.
The meeting was adjourned.
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