In his opening remarks, the Chairperson reminded Members that the progress on the Border Management Authority (BMA) Bill was effectively on hold, as it was dependent on the outcome of meetings to be held between the Minister of Home Affairs, Minister of Finance and the Deputy President around roles and responsibilities, and particularly around the roles, respectively, of the SA Revenue Services and the Authority.
The second point noted before Members moved on to discuss the Bill was the letter from the Speaker of Parliament seeking the views of the Committee on how to approach the request from COSATU to scrap the BMA Bill entirely. Members were agreed that COSATU had already been given more than one opportunity to engage with the Bill at various levels, had indicated to the public hearings that it was not opposed in principle to the Bill provided some changes were made, and at no defined point had it ever raised a call to scrap the Bill. All issues raised by COSATU had been dealt with appropriately by DHA in order to improve the Bill. A letter had also been sent to National Treasury setting out concerns about the need to review workers' remuneration at border posts and National Treasury acknowledged that it was dealing with the issues.
Members then considered the Bill's text. They debated whether it would be appropriate, in the Bill itself, to define a quorum for the Inter-Ministerial Committee (IMC) decision-making. Some Members felt that it was essentially an advisory committee and would not need a quorum, others suggested that such matters be either left to the IMC itself or put in the regulations, but the majority felt that there was no harm in stating it upfront as a majority of members.
The DA made further suggestions relating to the dispute involving customs and the impact of the Davis Tax Commission, that there should be a clause to state specifically that the BMA would only facilitate the collection of penalties in the border environment. Other suggestions related to the limitations on the power of President when appointing the Commissioner and determining remuneration, by requiring consultation, and the DHA was asked for assurances that the BMA would be complying fully with international maritime law, laws on disclosure of confidential or personal information, and constitutional and legal requirements on tolls and fees. Members also discussed and decided that the maximum period of imprisonment should be 24 months, with the discretion left to the court to decide what would be appropriate. The EFF Member stated that she differed with opinions and would be submitting written proposals.
The Department then briefed the Committee on the reasons why its Annual Report had not been submitted, noting that it had appeared before the Standing Committee on Public Accounts also to explain the matter. Reasons had been given, and essentially related to disputes between National Treasury and the Auditor-General on how the revenue relating to foreign matters, which involved both the DHA and Department of International Relations and Co-operation (DIRCO) should be reported. Although National Treasury had made a ruling, on the basis of which financial statements were drawn and submitted in June, the Auditor-General did not agree and asked that they be re-drawn, which caused a delay.
Members adopted, with a few minor amendments, minutes of meetings on 16 and 30 August, 6, 13 and 20 September and 11 October. were considered and adopted. The report on the letter to the National Treasury was considered and adopted.
Chairperson's opening remarks
The Chairperson opening the meeting by noting that the progress of the Border Management Authority (BMA) Bill seemed to be on hold, pending the outcome of the meeting between the Ministers of Home Affairs and Finance and the Vice President. He alluded to letters that were sent by the Department of Home Affairs (DHA) to the Minister of Finance, and the Minister of Finance to the Committee, in respect of transferring the functions of South African Revenue Services (SARS) to the BMA.
He further noted that the Director-General of the Department of Home Affairs would be arriving late because he had been asked to brief the Standing Committee on Public Accounts (SCOPA) on reasons why the DHA had not yet submitted its Annual Report.
Border Management Authority Bill: Deliberations
Before turning to the Bill itself, the Chairperson reminded Members of a letter written to the Committee by the Speaker of Parliament, seeking advice on how to proceed with COSATU’s request to scrap the BMA Bill. He stated that the Committee had advised the Speaker on the Committee’s position. He took members through the letter. In sum, the content of the letter indicated that COSATU had engaged with the BMA Bill at various levels and there was no certain defined point or certain stage where COSATU raised its request for scrapping the BMA Bill. All issues that were raised by the COSATU were addressed by the DHA, and COSATU's input contributed to the improvement of the BMA Bill. COSATU appeared before the Committee and expressed that it was supportive of the Bill in principle, provided that certain matters were addressed
Mr D Gumede (ANC) said that the Committee should state clearly its position on COSATU’s request. The Committee did not agree with COSATU’s request on the basis that it had not, at any point, argued for a total withdrawal of the Bill at the relevant opportunities.
Ms H Hlope (EFF) said that she preferred to read the COSATU’s demand before she could comment on it.
Mr M Hoosen (DA) seconded the Chairperson’s stance. He said that he remembered also that COSATU said it was not against the BMA Bill in its entirety.
Correspondence between DHA and National Treasury: Labour issues
The Chairperson stated that the Committee had sent a letter to the National Treasury and sought clarity on the progress of the matter that it had been asked to consider by the DHA.
Ms Gillian Wilson, Chief Director: Public Finance, National Treasury, agreed that National Treasury (NT) had received that letter and was busy formulating its responses.
The Chairperson stated that the letter was sent to National Treasury in early 2016, requesting the National Treasury to review the remuneration of workers of the DHA. The labour issues at the OR Tambo airport were an example of why this was needed. He added that poor human resources management was a source of long queues where there should be good service delivery, including biometrics capturing. That was very dangerous because the DHA was upgraded to become a security department, and needed to be competent to deliver. The workforce ought to be increased to deliver adequate services. Inadequate human resources at the ports of entry would create national insecurity.
Border Management Authority Bill [B9-2016]: Deliberations on the A & B Versions
The Chairperson stated that the Committee should decide on the quorum of the Inter-Ministerial Committee (IMC) that would be needed in order for the decision to be binding. He felt that legal advisers should provide an opinion.
Ms Yolande van Aswegen, Principal State Law Adviser, Office of the Chief State Law Adviser, stated that the IMC should create its own rules regulating its meetings.
Mr Elroy Africa, Project Manager: Border Management Authority, believed that the DHA would find a practical proposal to submit to the Committee. He suggested that the quorum should not be specified in the Bill, but rather dealt with under the regulations to the Act, once passed. The DHA had already spent considerable time in crafting the BMA Bill and the question of a quorum was left open because the IMC was a consultative committee. In other words, the Minister of Home Affairs would attend the IMC meeting for the purpose of receiving advice, and this was a forum where certain matters affecting other departments could be addressed. It was therefore not necessary to state a quorum, in his view, and particularly not in the main body of the Act, which would leave no scope for flexibility. The IMC ought to be able determine its own rules. If quorum was decided in the principal act, there would be no flexibility. If it were to be in the Act, the quorum could not be changed unless the Committee was advised about such change and approved it. This would be a long process and should be avoided.
The Chairperson stated that a quorum was not something that could be subject to change. The principal legislation could simply state that a quorum was 50% plus one, or a simple majority. It could even say that two ministers could meet on consultative matters. It was a matter of simply formulating a simple clause clarifying this.
Mr Hoosen understood that Members were concerned that something was missing, but he suggested that the number of the quorum was not a matter that could be discussed at Committee level. The discussions between the National Treasury and the DHA, as well as the discussion around the quorum, were matters in which he did not think there was any need for the Committee to become administratively involved. The Department, or the IMC, should rather be able to determine its own rules.
Mr Gumede felt that the DHA should sit down and decide upon on quorum, and it was not something for the Committee to decide. The Committee’s mandate was to make sure that the BMA legislation would create a sufficient and effective body.
The Chairperson did not agree. He pointed out that the IMC was a part of the principal legislation. He thought it was not simply a consultative forum but it was a body that could assist in resolving matters which the BMA could not resolve. He felt that deciding on quorum was not problematic as others understood it. It would assist if the IMC could, from the outset, be helped to know what form it should take. He asked for input from the legal advisers.
Ms van Aswegen agreed with the Chairperson. She suggested that the quorum should be stated as the majority of members of the ICM.
The Chairperson agreed.
Mr Hoosen seconded the Chairperson.
The Chairperson stated that the clause on the custom was still outstanding and that there was consequential amendment that could be effected should it be amended.
Mr Hoosen sought clarity on matters arising from questions posed by Members and the DHA’s answers, and asked whether Members would be given a chance to go through the BMA Bill clause by clause in order to consider or address any shortcomings that they might come across in the process.
The Chairperson responded that he was aware that the Committee requested answers from the DHA. Mr Hoosen could go through the Bill clause by clause on his own; the Committee was rather hoping to move the process forward and finalise it, provided that the meeting to be arranged with the Deputy President did not come to a different conclusion.
Mr Hoosen stated that he would like to table certain issues which might lead to further amendment of the BMA Bill.
Mr Gumede repeated that the Committee had deliberated on the BMA Bill for quite some time and sought clarity on whether Mr Hoosen had a particular objection on any specific clauses. The Committee should go through the BMA Bill clause by clause so that a member could raise his or her concern. In this way, Members could state which clause they felt was vague or uncertain and how that clause could be rectified.
The Chairperson agreed and called upon Mr Hoosen to table his suggestions.
Mr Hoosen stated that his suggestions would not change the content of the BMA Bill. He sought clarity from the Chairperson on whether he should rather e-mail his suggestions to Members.
The Chairperson responded that he thought not; the Committee would rather give Mr Hoosen the opportunity to be heard.
Mr Hoosen stated that the first issue related to a dispute involving customs and sought clarity on the Davis Tax Commission findings.
The Chairperson stated that the tax and revenue collection at the border would remain with SARS. The BMA would facilitate the collection of revenue which would be transferred to SARS.
Mr Africa stated both the Ministers of Home Affairs and of Finance had resolved the issues related to tax and revenue collection. The BMA would not get involved in collection of tax but only with tax-related penalty fees.
The Chairperson stated that ports of entry ought to be looked at critically in that the BMA ought to be empowered to control and manage the borders. The fundamental question was whether two entities were needed in the border environment – and it seemed to be that they were not. An integrated approach was followed, meaning there would be establishment of a single structure for integrated border management. That structure would also account to Parliament. It would submit quarterly and annual reports to the Committee. Due to multifaceted control of the border it was difficult to hold different role players in the management of borders to account.
Mr Gumede agreed with the Chairperson and remarked that tax evasion was breaking the law.
Ms Hlope sought clarity on the progress of the deadlock between the DHA and National Treasury and on whether the Committee had deliberated on that matter.
The Chairperson responded that this had been done on several occasions. There were letters from Minister of Finance advising the Committee not to discuss matters in relation to customs, which resulted in referring the matter back to Cabinet. The matter was currently before the Deputy President and the Committee was waiting for a direction on that. However, the DHA had made it clear that the BMA would facilitate the collection of penalties at the ports of entry. The penalties collected would go straight to SARS.
On that note, Mr Hoosen sought clarity on whether Members could agree with him that the Bill should specify that the BMA would only facilitate the collection of penalties.
The Chairperson pointed out that the functions of the BMA were articulated under clause 5. He felt that the manner in which clause 5 was crafted was sufficient. The issue raised by Mr Hoosen could be revisited after the clause on customs was dealt with – he reiterated that this would depend largely on the outcome of the meeting with the Deputy President.
Mr Africa responded that the question raised by Mr Hoosen would be responded to by the legal advisers. He pointed out that clause 5 did largely answer the question and the role was also covered in clause 38(2). It was clear that the BMA would not handle the SARS’s mandate.
Mr Hoosen sought clarity on the appointment of the Commissioner. He felt that the President was given too much power, which ought to be curtailed in order to protect the integrity of the office of the BMA Commissioner. Some safeguards were needed.
The Chairperson responded that BMA was not like a Chapter 9 institution and the Committee should guard against creating another such institution. The question was: how did Members expect the executive to account for the bodies being created, and the Director General of DHA had already cautioned against trying to create a similar institution to a Chapter 9. Clause 7(1) talked about safeguards and the criteria that a person should meet in order to be appointed as a Commissioner. Several requirements were set out in the clause.
Ms D Raphuti (ANC) felt that the Chairperson should give Mr Hoosen a chance to state how the clause could be amended, in order to respond to his concern.
Mr Hoosen said that the BMA was actually a security entity and therefore more precautions were needed.
Ms T Kenye (ANC) agreed with Mr Hoosen.
The Chairperson stated that precautions had already been taken. For instance, the position of Deputy Commissioner was considered, so that he or she could liaise with various stakeholders on the question of national security.
Mr Gumede stated that, as it stood, the BMA should be revisited with issue of accountability in mind.
Mr Hoosen, referring to the remuneration of the Commissioner, sought clarity on who would determine his or her remuneration. He also sought clarity on the maritime law and asked whether the DHA was satisfied that BMA would not be in conflict with public international law, with any laws relating to non-disclosure of confidential or personal information, and whether it would be justified in demanding or a toll or fee. He also wanted Members to receive an assurance that a 12 months period of imprisonment was not inappropriate.
Mr Africa firstly referred to clause 10(1) and 10(2) and responded that the Ministers of Finance and of Home Affairs ought to be consulted by the President around the determination of the Commissioner’s remuneration and other benefits. They also ought to be consulted on the appointment of the Commissioner. In relation to complying with public international and maritime law, he responded that the DHA worked together with various stakeholders in order to make sure that the BMA Bill was consistent with existing public international law frameworks, and that obligations arising from public international law would be discharged. He stated that penalties under clause 36(5) also included the offence of disclosing information improperly. He added that the period of imprisonment could not exceed 12 months.
Mr Gumede was of the opinion that judges should be given latitude to decide on such matters.
The Chairperson sought clarity on clause 36(5)(b), in respect of liability in relation to a fine or imprisonment, and sought clarity on what penalty could be imposed. He asked whether a fine and imprisonment could be imposed and sought more detail on the period.
Ms van Aswegen responded that period of imprisonment was not a fixed one for 12 months. The penalty should be proportionate to the crime. The punishment could range from one to twelve months. The court had discretion to decide on the proper sentence to be imposed, which would be up to a maximum of twelve months.
Mr Hoosen stated that in the case involving a loss of life or lives, a 12 months’ period of imprisonment would not be appropriate, and he would prefer to see something more stringent.
Mr Gumede said he also would not object to that but he suggested that Members be given some time to reflect on this point around the sanction.
The Chairperson agreed that 24 months could be stated; the judges would still have discretion to impose an appropriate sentence.
Mr Gumede sought clarity on whether Members were differing on any clauses.
The Chairperson responded that they were not. All Members were working to produce a version that would effectively address the problem of porous borders and ensure that national security was enhanced.
Mr Hoosen stated that Members should go through the final version clause by clause with deliberations on each.
Ms Hlope said that there were several points where she disagreed but she would put her points in writing.
Delayed submission of DHA Annual Report
Mr Mkhuseli Apleni, Director General, Department of Home Affairs, briefed the Committee on the reasons for the delay in submitting the Department's Annual Report. He had given these reasons also to the Standing Committee on Public Accounts (SCOPA), as well as setting out those reasons in a letter sent to SCOPA. The delays were linked to the problem of collection of revenue between the DHA and the Department of International Relations and Co-operation (DIRCO), and DHA had asked that National Treasury take the lead in finding a solution. National Treasury now had to craft an accounting policy which the DHA could utilise to develop its Annual Report to deal with these issues.
DHA had been advised that the revenue collected by the DIRCO could be deposited into the account of National Treasury and should also be reflected in the financial records of the DHA. On the basis of this suggestion, the financial statements had been drawn and submitted in June 2016.
However, the Auditor-General believed that this was incorrect as the money was not actually collected by the DHA. These comments prompted further discussions and agreement between the concerned departments, and the DHA had then to revisit its report and then report on the basis of that second agreement.
The Chairperson stated that it seemed like the Annual Report would not be tabled to the Committee by the due date, and that would have an impact on the work of the Committee. He did not feel that there was anything to discuss at this stage but the points were noted.
Adoption and consideration of Committee minutes
The Committee considered the minutes of previous meetings and resolved as follows:
16 August 2016 – minutes adopted
23 August 2016 - adopted with a minor amendment.
30 August 2016 - adopted with a minor amendment
06 September 2016 - adopted with a minor amendment
14 September 2016 - adopted with a minor amendment
20 September 2016 - adopted with a minor amendment
11 October 2016 - considered and adopted.
Committee Report on the letter to the National Treasury
The Chairperson stated that seven recommendations were made to the National Treasury and he briefly took Members through those recommendations.
Mr Hoosen sought clarity on how the recommendations were arrived at, since he did not offhand recall having deliberated on them.
The Chairperson stated that recommendations were drawn from the Committee’s discussions and deliberations, and Mr Gumede agreed that this was his recollection also.
The meeting was adjourned.
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