Border Management Authority Bill: deliberations; Constitutional Court ruling on search and seizure without a warrant

Meeting report

Constitutional Court Ruling on search and seizure without a warrant
The Chairperson said there had been a Constitutional Court ruling which Mr Hoosen had submitted to him which had found that search and seizure without a warrant was unconstitutional. The ruling referred to the invalidity of sections 11(a) and (g) of the Drugs and Drug Trafficking Act which dealt with the powers vested in South African Police Services (SAPS) in search and seizure operations without a warrant. Mr Hoosen reminded him that the BMA Bill contained clauses which granted BMA officers search and seizure power without a warrant. In light of this, Mr Hoosen stated that he would appreciate it if the clauses in the BMA Bill on search and seizure be considered in light of the Constitutional Court ruling.

Accordingly he asked the Principal State Law Advisor if the BMA Bill was in line with the court ruling.

The Chairperson stated that he received the court judgment only that morning so had not read it yet to understand the reasons for the decision.

Mr Figlan stated that when he read through the BMA Bill, officers of the BMA had no power to search and seize but the police did. On that basis, the DA was seeking clarity on whether officers of the BMA would be given power to arrest, search and seize without the assistance of the police.

Ms Yolande van Aswegen, Principal State Law Advisor, stated that she too had received the case law that morning and managed to go through it quickly. She advised Members that the power to search and seize could be conferred on certain people (i.e. inspectors or officials) in terms of legislation. In most instances, it happened that it was the police that search and seize.

The case was about members of SAPS who received information from an informant that a large quantity of illegal drugs was kept at private property. Important to know was that illegal drugs were kept on private property and not public property. Based on this information, SAPS went to premises, searched and seized illegal drugs and arrested the person without a warrant. In the High Court, the Court found sections 11(a) and (g) of the Drugs and Drug Trafficking Act to be inconsistent with the Constitution because it was too broad. The more SAPS searched a private dwelling, the more the right to privacy was infringed. The Constitutional Court had to confirm such declaration of invalidity. The Minister of Police took the matter to the Constitutional Court. It applied section 36 of the Constitution to sections 11(a) and (g). It balanced the rights to determine whether limitation of the right to privacy was justified. It applied factors set forth under section 36 of the Constitution. It found that the right to one’s private home or the right to have own privacy was infringed. Section 11(a) and (g) did not specify the scope of search and seizure. The Constitutional Court referred to three cases which explained clearly the matter in question. Sections 11(a) and (g) was declared unconstitutional. The Constitutional Court had to determine whether the declaration of invalidity was retrospective or prospective. It was concluded that it was in the interests of justice and equity that the High Court’s declaration of constitutional invalidity operated prospectively.

The Principal State Law Advisor stated that it was important to note that BMA officers would be working on the border where they would not be entering and search private homes. The Constitutional Court also noted that there were exceptional circumstances where warrantless search and seizure could be exercised. That was when a person consented to the search or when a police officer believed that a delay in the application of a warrant would defeat the object of the search. This position was reflected in clause 19 of the BMA Bill, which also made reference to clause 18 that conferred power to search and seize on BMA officers.

The Chairperson asked if BMA officer could search and seize without a warrant because clause in the BMA Bill used the verb “may” as follows: An officer may, without a warrant, exercise any power. This was a bit problematic because the Court ruling was concerned with unlimited power conferred on a police officer to search and seize.

Mr Deon Erasmus, Chief Director: Legal Services: Home Affairs, referred the Committee back to the BMA Bill as introduced and said that clause 18 had referred to a warrant search and seizure whereas clause 19 referred to a warrantless search and seizure. The DHA received proposals from the Department of Justice and the Portfolio Committee on Home Affairs that clauses 18 and 19 should be collapsed. This was done. Accordingly, clause 18(2) provided safeguards of searching without a warrant. Clause 18(2) was consistent with the court ruling.

The Chairperson sought a clear distinction between clause 18(1) and clause 18(2).

Mr Figlan felt that there was contradiction between section 18(1) and 18(2).

Ms Aswegen explained that a BMA officer could still search and seize without a warrant in terms of section 18(1) if the search complied with the requirements of section 18(2). Clause 18(2) set forth the limitations. In order to issue a warrant, the court required that an applicant had to demonstrate enough evidence to convince the court why the search was necessary. There might be a delay in applying for a warrant or during such an application process, a suspect may skip the country. In situations like these, an officer might have a reasonable ground to search and seize if an officer believed that a suspect might take flight.

Mr Gumede said that he was happy to find that the BMA Bill was in line with the law.

The Chairperson stated that the meeting was challenged by early departure of Ms Hlope which had collapsed the quorum. That problem would not stop the Committee from doing its work but no decisions could be taken.

Portfolio Committee amendments to Border Management Authority Bill [B9A-2016]
Mr Erasmus took the Committee though the Portfolio Committee amendments to the Bill. He first noted that there were two issues that were still outstanding.

The Chairperson asked Mr Erasmus to take the Committee straight to the challenges arising from amendments and sought clarity on the outstanding customs issue.

Mr Erasmus responded that the parties concerned were yet to sit as a team and finalise the matter.

Mr Erasmus noted the Portfolio Committee amendments in the long title, preamble and certain clauses. The insertion of deputy commissioner and the omission of “power of entry, search, and seizure” and its substitution of “powers of entry, search, seizure, arrest and detention” had consequential amendments. The word “reporting” was substituted with “annual report”. Some definitions were included, including definitions of airspace, defence force, deputy commissioner and revenue.

Ms Kenye asked about the time of Commissioner and Deputy Commissioner would spend in the office.

Mr Erasmus responded that their time was spelled out in clause 8 of the BMA Bill.

The Chairperson stated that security clearance was a requirement and sought clarity on why being non-compliant should be subject to disciplinary hearing.

Mr Figlan, referring to security clearance, asked about the criteria in clause 7 of the BMA Bill. Why a Commissioner and Deputy Commissioner should be subject to security clearance only after appointment?

Mr Mkuseli Apleni, Director General: Home Affairs, responded that a person would be first employed and then go to security clearance. If the person failed to meet the security requirements, he or she would be subject to a disciplinary hearing. This was applied in the public sector. Any amendment could be made but should state that an appointment or employment would be subject to security clearance.

The Chairperson asked if his understanding was correct that the security clearance would take place after appointment and that it was a prerequisite. Mr Apleni agreed.

Mr Figlan stated that that approach was worrying because people might be employed and not go to security clearance. What would happen in such circumstances?

Ms Raphuti stated that the matter of security clearance was a challenge. The security clearance usually applied to senior officials and did not apply to subordinates and therefore she did not understand how the security clearance worked or how long it could take to get a security clearance certificate.

Mr Gumede stated that Members should bear in mind that they were discussing security risks. People were arrested and released because they paid bribes. That was not the kind of risks they were discussing. They were talking about the integrity of officials.

The Chairperson stated that security vetting should have its own legislation which should set out how security vetting should be done. These matters could be explained in more detail in the regulations to the BMA Bill.

Mr Apleni stated that most employees of the BMA would be transferred to it from other entities or departments. Most of employees might not be subject to security clearance. It should be understood that the security vetting was not a matter of concern to the BMA but to government. When a person went for an interview for a BMA job, he or she should be informed that they would be subject to security clearance, should they be employed.

Ms Raphuti asked if a person already in possession of security clearance would be subject to security clearance again, as this would be unfair.

The DG said that there would be no unfairness because a police clearance would be compulsory for everyone.

Ms Van Aswegen stated that there would a transition period of transferring workers to BMA. The security clearance might take too long to be issued and if it was made a prerequisite prior to appointment, it would have impact on the work of the BMA.

The Chairperson said that State Security ought to be effective and sufficient to ensure security vetting was done prior to appointment.

Mr Apleni agreed. He stated that no one should be employed in the BMA sector if not cleared by State Security but the problem was effectiveness of the State Security department.

Ms van Aswegen said that the Inter-Ministerial Consultative Committee (IMCC) ought to be designated by the President and not be appointed. In other words, the cabinet members for the IMCC ought to be designated.

Mr Erasmus said the wording of clause 25(3)(a) could be changed to state that the Cabinet members were designated or appointed by the President.

The Chairperson said clause 25(3)(a) was not a problem; rather clause 25(3)(c) should specifically state that another minister could be appointed if that department became relevant to the BMA.

Ms van Aswegen said that there was difference between appointing and designating someone. Applying clause 25(3)(a) as it was would not give rise to unconstitutionality.

Ms Kenye asked if there would be any problem if clause 25(3)(c) was deleted. She did not grasp fully why other relevant Cabinet members should be designated.

The Chairperson replied that clause 25(3)(c) was agreed on in prior meetings and could not be scrapped.

Ms Raphuti said that designation and appointment was the same thing. They were synonymous. Lawyers were just playing with words and this was not helping the Committee. These two verbs should be defined to avoid confusion.

Ms van Aswegen proposed that she sit with the DHA and find a proper way of redrafting the clause in order to avoid confusion.

The Chairperson said that they should use either appointment or designated in order to ensure consistency and to avoid confusion.

Ms Raphuti said the IMCC should have a quorum which was not 50% plus one.

The Chairperson said that to have a quorum was just merely for the IMC to take a binding decision.

Mr Figlan said that all Cabinet members were responsible persons who should be allowed to define the rules regulating their meetings.

Mr Erasmus said that reporting was substituted with annual report under clause 32. This was to ensure that the BMA submitted an annual report to the Committee.

The Chairperson applauded this development.

The Chairperson said to the DG that when they meet as a team and discuss matters relating to customs they should report to the Committee about the direction that was taken as soon as possible. It would be difficult if the BMA Bill was scrapped.

Mr Gumede said that the DA should understand that the BMA Bill was all about to make everybody safer in the country. The Chairperson agreed.

Response from National Treasury on the budget for compensation of employees
The Chairperson noted that the National Treasury had responded to the Committee letter asking about compensation for funded positions in the DHA. The response was immediately sent to the DHA to consider and it was expecting the DHA to brief the Committee on that response. In the letter, National Treasury had noted that it was not aware of the problem and they would be available to engage with the DHA to sort out the problem. He raised concern that the Border Management Authority would have a great impact on the DHA workforce.

Mr Mkuseli Apleni, Director General: Home Affairs, acknowledged that he had received the letter from the Secretary to the Committee and would like to respond to the letter in writing with supporting documents. The DHA was surprised by the response from National Treasury stating that it was unaware of the problem. How could R50 million be deducted from the budget and go unnoticed? As a consequence, the DHA had lost 608 funded positions. For instance, the OR Tambo Airport had no manager and this was communicated to National Treasury. He appreciated the intervention of the Committee on the matter.

The Chairperson stated that the response from Mr Apleni might take five days and sought clarity from Members on whether Treasury should be invited to brief the Committee on the matter. It had to be borne in mind that the DHA had been upgraded to a security department. National security was a priority. People should not be crying foul that the DHA was not doing its work when it had not been given enough human resources or budget. A different approach should be considered when it came to the DHA given that it dealt with everybody within South African boundaries. It should be dealt with differently if government wanted it to do its job properly and not defeat its objectives.

In response to Ms Hlope asking if the letter from National Treasury would be distributed to Members, the Chairperson said that it would be made available to all Members.

Petition: Suspension of ID numbers on the HANIS
The Chairperson had received a public petition from Mpumelelo Mhlongo which was a complaint about the unilateral suspension of ID numbers in the Home Affairs National Identification System (HANIS). People’s ID numbers were being suspended due to the suspicion that they had been obtained illegally. Some of the victims had had the same ID number since the 1990s. The Chairperson asked the DHA if they had received the public petition.

Mr Apleni responded that he had received the letter and that he would like to respond to it in writing. The DHA would submit a report on how it dealt with the matter.

Parliament ICT on the use of the My Parliament App
Mr Zandisile Msitshane, ICT: Parliament, briefed the Committee on the My Parliament Apps.

The Chairperson asked why passwords had to be changed monthly and why passwords could last longer. Changing the password was leading to confusion. Members were forgetting their new passwords.

Mr D Gumede (ANC), Ms D Raphuti (ANC), Ms O Hlope (EFF), Mr A Figlan (DA), Ms T Kenye (ANC) all agreed that the changing of one’s password was frustrating and irritating

Mr Msitshane replied that passwords would continue to be changed in terms of ICT security. They would try to accommodate Members but staff had no option as their passwords would be changed from time to time.

Meeting adjourned.