Congolese Community of South Africa submission; Border Management Amendment Bill: consideration; 2017 Programme

Meeting report

Opening of the meeting
The Chairperson said that the Committee would be deliberating on the Border Management Authority (BMA) Bill, as well as considering the unsolicited submission from the Congolese Community of South Africa (CCSA). With regard to the BMA Bill, the Committee had gone through all the amendments that had been proposed at previous meetings, and what was needed was to adopt them so that they could be incorporated in the BMA Bill prior to considering it clause by clause. With regard to the CCSA submission, he said that the CCSA had made a submission to the Speaker of Parliament, who had forwarded it to the Chairperson for consideration of certain aspects related to international migration policy. There had been a submission made by Mr Sono, complaining about the operation of the Department of Home Affairs. Finally, the Committee would be considering the first term 2017 Committee programme.

Consideration and adoption of the BMA Bill
The Chairperson said that Members should consider the adoption of the amendments made by the Committee to the BMA Bill. The amendment that had been made would affect the bill’s memorandum, as well as the long title. Members had considered the public submissions and had incorporated certain inputs in the bill. On the issue of customs, he said that the Department of Home Affairs (DHA) and the National Treasury had made several concessions with regard to revenue collection, and Members had deliberated on them. What had been agreed was that there would be one institution in the border environment that was accountable. Members had acknowledged that the revenue collection should remain with SARS, and the BMA should be in charge of security in the border environment. He said that in the clause 8(1), “5” ought to be in words and not in figures. On clause 13(1), the phrase “is subject” ought to be changed to “must be subjected”. The Committee had gone through the amendment at the previous meeting, but it was still open for comments.

Adv SueAnne Isaac, Legal Advisor: Parliament, said that there were minor amendments in respect of rewording certain provisions to conform to the amendments made by Members in previous meetings. The Long Title had been adjusted to accommodate the term “commissioner” and “annual reports.” She said that under clause 5, the number five had been changed from a figure to words. She had also reworked clause 13 to be in line with Members’ suggestions. Clauses 17, 25(3)(b), 25(3)(c), 25(4), 31(1) and 36 had been amended in order to conform to what Members had agreed on in their previous meetings.

Discussion
Mr M Hoosen (DA) sought clarity on why, under Clause 2, the Defence Force functions did not include maritime responsibilities, and was thus limited to border and air space protection.

Referring to the Constitution, the Chairperson responded that the Constitution spelt out the functions of the Defence Force, and the BMA recognised those functions.

Mr Hoosen said that he was happy with explanation. Referring to clause 5, he sought clarity on whether the BMA functions were limited to facilitation and managing the legitimate movement of persons and goods, and felt that the wording could be interpreted to mean that the BMA was not concerned with illicit goods and illegal movements. The statement should have been incorporated in the Preamble. He also sought clarity on why the border law enforcement area should be included, and what the term “border community” meant. He said that the border community should be defined. 

Mr D Gumede (ANC) said that there was a submission in which the issue of illicit or illegal activities was raised but it was agreed that it was the facilitation and management of persons and goods – as it was reflected in the Preamble – could be read to include illegal activities.

Ms Isaac responded that the question of combating illicit or illegal movement could be understood when the paragraph was read as whole, but not by reading a sub-clause in isolation.

The Chairperson said that the term border community referred to the people who stayed near or around the border, be it South Africa or neighbouring countries. These people could cross the border from time to time.

Ms Isaac responded that there was no precise definition of the term community provided by the dictionary. The border communities would refer to the people who stayed at the borders.

Mr Hoosen said that the criteria laid down under clause 7(1) were not tight enough to ensure a person with high skills and experience would be appointed to the position of commissioner. Even a teacher could be appointed to that position.

The Chairperson disagreed. He said that a candidate was required to be fit and proper, and his or her tertiary qualification ought to be appropriate to the post, as well as possessing a minimum of ten years’ appropriate senior management experience.

Mr Hoosen said that there was ambiguity clause 7(g) concerning successfully completing a process or failing to complete a process. He sought clarity on what would happen to those who failed to complete the appropriate security clearance. He felt that the clause should be reworded in order to avoid different interpretations.

The Chairperson disagrees, and remarked that there was no such ambiguity to address.

Ms Isaac explained that the clause referred to persons who were already employed and virtually refused to subject themselves to a security clearance, or they had been subjected to a security clearance but had failed. This category of people could not be appointed to the post of commissioner. There was no confusion about “successful completion.”

Ms M Hlope (EFF) sought clarity on whether people could be employed without security vetting and then be subjected to security vetting when employed.

The Chairperson stated that everyone would be subject to a security clearance, and given that people changed, they would be subjected to security clearances from time to time.


Ms Isaac responded that every officer of the BMA would be subjected to a security clearance prior to appointment.

Mr Hoosen, referring to the removal of Commissioner under clause 9, sought clarity on what the ground of “a loss of confidence” under clause 9(1)(e) constituted or meant.

The Chairperson responded that the Regulations to the BMA Bill would clarify the parameters of a loss of confidence.

Mr Hoosen commented that when it came to the framing of the regulations, the question of clarifying parameters would be forgotten.

Ms Hlope remarked that all clauses that allocated power to the President should be removed until incumbent president was removed from Office. She asked for clarity on the outcome about the two Ministers, along with the Deputy President.

The Chairperson responded that the BMA was supposed to do everything in the border environment, as per initial consensus. However, it had been agreed that it would facilitate the collection of revenue in terms of penalty fees. The work of SARS was protected, and would not be assumed by the BMA.

Mr A Figlan (DA) sought clarity on whether a meeting between the two Ministers and the Deputy President had taken place.

The Chairperson said there had been a meeting, and the issues were to be finalised between the two Ministers. He had been advised that there had been some exchange of documents between the Directors General (DGs) after the two Ministers had met with the Deputy President.

Mr D Gumede (ANC) remarked that Mr Hoosen had a capacity for rewording unclear clauses and proposed that he should avail himself to assist the legal advisor on those clauses of concern to him, instead of asking same questions in meetings.

The Chairperson remarked that political differences should be set aside in order to craft the law that would stand the test of time. Members should adopt a piece of legislation which would operate, irrespective of who would become the president.

Mr Hoosen remarked that section 17(c) gave too much power to senior officials to screen communications between officers and any other person. He said that the right of officers to privacy could be protected if such screening could be done, provided that there was a court order.

Mr Gumede said that if the intelligence agency needed to intercept their conversation, for example, they needed to have permission. He felt that the clause should be left as it was, since there were laws governing interceptions on phones.

The Chairperson agreed.

Mr Hoosen sought clarity on the funding of the BMA in terms of clause 23(c), but excluding revenue collected in terms of clause 5(c).

The Chairperson said that 5(c) referred to the compromise between the SA Revenue Service (SARS) and Department of Home Affairs. He remarked that the Bill could not respond to all concerns. Rather, Members had to work for the national interest and not for the satisfaction of their respective political parties. If Members did their work correctly and collectively, the Bill would be finalised by February 2017.

Mr Gumede expressed a debt of gratitude for those who had contributed to the development of the BMA Bill, and then moved the adoption of the amended BMA Bill.

Ms T Kenye (ANC) seconded him.

Congolese Community of South Africa: Consolidation of unsolicited submission
The Chairperson said that the Congolese was asking for the international migration policy to be scrapped. The Committee was busy with the Refugees Amendment Bill, and it was not clear which the bill the Congolese was referring to. Since they were refugees, it was assumed that they were referring to the Refugees Amendment Bill, 2016. The Congolese would be invited to make an oral submission, irrespective of the fact that they had lost an opportunity to submit their inputs on the Refugees Amendment Bill, 2016.

Mr Gumede said that he had read the Congolese’s submission, and there were political comments that could be addressed by the Executive, and not by Parliament. Those comments could therefore not be responded to by the Committee due to their political nature. Certain issues raised by the CCSA could be addressed to the Southern African Development Community (SADC) level. The Committee could not make a political statement on the issue of other countries interfering with affairs of other countries, for example. He did not have a problem on matters related to international immigration, but he viewed other issues as being outside the Committee’s mandate.

Ms Kenye said that the Congolese wanted the Committee to have a say over their national concerns, and did not take into cognisance that the DRC was a sovereign nation. Although South Africa was championing for human rights in Africa , the Committee could deal only with those issues where SA had jurisdiction.

The Chairperson said that he would be responding to the speaker in a letter in accordance with the feelings of Members on matters raised by the CCSA.

Consideration of complaint to DHA
The Chairperson said that a Mr Sono had written to the DHA with regard to children from neighbouring countries who attended school in South Africa. He he had now written to the Committee because the DHA was not responding to his request.

Mr Eddie Mathonsi, Secretary of the Committee, said that Mr Sono had told him that the provincial manager was arrogant and was not willing to assist him. However, the provincial manager had found that Mr Sono was assisting children from Lesotho. Mr Sono wanted them to get documentation from South Africa.

Mr Figlan asked why Mr Mathonsi had not referred the matter to the Director General of the DHA.

The Chairperson said that Mr Sono had wanted the Committee to look into his complaint, as the DHA was not assisting him. The Director General was the right person to respond to the complaint. It was difficult to allow the issuance of South African documents to non-citizens without meeting certain requirements. The Chairperson suggested that Members should find a time in 2017 to visit Mr Sono and those children to see for themselves if what Mr Sono was raising was valid and fundamental.

Consideration of the First Term 2017 Committee Programme
The first term 2017 Committee programme was considered and adopted.

Submission on blocking IDs
The Chairperson said that he had received a memo stating that the DHA was blocking identity documents (IDs) for unknown reasons. Usually IDs were blocked when the DHA suspected that an ID should be issued to foreign nationals. The Committee would be inviting the DHA to come and brief the Committee on the rationale behind blocking some IDs.

Mr Figlan seconded the Chairperson, and remarked that the blocking of IDs was not a one-off incident. Similar incidents had been reported to him in Gauteng. What was more problematic was when officials were chasing people who they assumed were foreigners, and did not tell them which documents they should bring forward in order to prove that they were not foreign nationals.

The meeting was adjourned.