Refugees Amendment Bill; Border Management Authority Bill: adoption, with Deputy Minister

Home Affairs

07 March 2017
Chairperson: Mr BL Mashile (ANC)
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Meeting Summary

Amendment Bill. Prior to deliberation, the Department of Home Affairs noted that there were minor amendments to clauses 2, 3, 13, 14, 18 and 27. Amendments were made in accordance with the inputs from the Committee and Principal State Law Advisor. A new clause on transitional provisions was inserted. All amendments effected were technical. Members asked about technical changes in clause 27. Members moved for approval of the Bill which would be approved the following day.

The Committee considered the Border Management Authority Bill clause by clause. This was done after seeking clarity from Principal State Law Advisor and Parliamentary Legal advisor on whether they were satisfied with the amended version or whether there should be further amendments. The title, the preamble, all clauses as well as the Memorandum on the Objects of the Bill were adopted without further amendment.

The Democratic Alliance noted that it would support the Border Management Authority Bill provided that consensus was reached between National Treasury and the Department of Home Affairs on the collection of revenue in clause 5. A vote was taken on the clause and it passed without amendment. Members asked who the accounting authority of the Border Management Authority was, which type of public entity it was within the schedules of the ; about the power of the minister to appoint an unspecified number of staff; whether employees would be transferred within their rank from the Department to the Border Management Authority. The Deputy Minister of Home Affairs remarked that the approval of the Bill was a victory for the security of South Africans.


Meeting report

Refugees Amendment Bill [B12-2016]: further technical amendments
Mr Deon Erasmus: DHA Chief Director: Legal Services took the Committee through further amendments to the Bill.  Thesee were minor technical amendments to clauses 2, 3, 13, 14, 18 and 27. Amendments were made in accordance with the Committee’s and Principal State Law Advisor’s comments and inputs. A new clause on transitional provisions was inserted.

The Chairperson asked about technical changes made in terms of clause 27.

Mr Erasmus responded that changes made in clause 27 were in line with clauses 2 and 3.

The Chairperson said that these technical amendments should be inserted into the Bill so that it could be considered clause by clause later in the meeting.

The Committee agreed to this.

Border Management Authority Bill [B9-2016]: clause by clause deliberations
The Chairperson asked if the law advisors were happy with the amended version or if there should be further amendments to the Portfolio Committee amendments on the Border Management Authority (BMA) Bill.
Ms Yolande van Aswegen, Principal State Law Advisor, and Ms Sueanne Isaac, Parliamentary Legal Advisor, both responded that they were happy with the Bill.

The Chairperson stated that the Committee should proceed to consider the Bill clause by clause.

The Long Title was accepted.

Arrangement of Sections
Mr D Gumede (ANC) asked if there should be no commas or full stops.

Mr Erasmus replied that there should be no commas or full stops.

The Arrangement of Sections was accepted.

Clauses 1 to 4 were accepted without comment.

Clause 5
Mr A Figlan (DA) said that he was not supporting clause 5. He stated that clause 5 was still a problem given that no consensus had been reached between the National Treasury and the DHA on the collection of revenue.

The Chairperson responded that even though Mr Figlan held a different view, he was not disagreeing with the clause as a whole. The Chairperson agreed that collection of revenue had not been comprehensively dealt with. However, there were many remedies that could be invoked to resolve the differences between National Treasury and the Department of Home Affairs. There were three options. These options could be invoked as a legal recourse in situations where disputes arose. Members should note that the Bill was approved by Cabinet and that it was within the mandate of the Committee to decide on the fate of the Bill. The Committee had the power to legislate.

Ms D Raphuti (ANC) said that she did not understand why Mr Figlan was objecting. In previous meeting the Department of Home Affairs indicated that the BMA officers would facilitate the collection of the revenue. In other words, the Department of Home Affairs would not collect the revenue.

Mr Gumede said that the clause should be accepted irrespective of the fact that the Democratic Alliance was objecting. The Department of Home Affairs or BMA officials would not collect the revenue but facilitate such collection.

The Chairperson agreed. He said that he would put the clause to the vote if there was disagreement among members.

Six members voted for adoption and one member voted against.  Clause 5 was accepted.

Clauses 6 to 9 were accepted without comment.

Clause 10
Mr Gumede asked if section 10(1) referred to the Minister of Home Affairs. It only mentioned the Minister.

The Chairperson responded that the Minister meant the Minister of Home Affairs.

Clause 10 was adopted without further amendment.

Clause 11.
Ms B Dambuza (ANC) asked about the accounting authority. She remarked that accounting authority could be the department or entity or any other person.

Mr Mkuseli Apleni, Home Affairs Director General, responded that in the Public Finance Management Act (PFMA), the accounting officer was the Director General of the department. For its entities, the Chief Executive Officer of the entity was the accounting officer. The BMA Bill was aligned with the PFMA. Accordingly, it had an accounting authority who was the Commissioner.

Clause 11 was accepted.

Clauses 12 to 14 were accepted without comment.

Clause 15
Ms Raphuti, referring to the Criminal Procedure Act 51 of 1977 as mentioned in Clause 15, asked if laws that were in operation prior to the democracy were still operational.

The Chairperson responded that a piece of legislation remained operational until it was repealed.

Mr Gumede agreed. He noted that not all apartheid laws were oppressive.

Clause 15 was accepted.

Clauses 16 and 17 were accepted without comment.

Clause 18
The Chairperson informed members about the letter he received from Mr M Hoosen (DA) concerning powers of entry, search and seizure of which copies were distributed to members. After perusing the letter, he found that his contention was no different to the content of clause 18.

Mr Gumede asked if Parliament, which was not far from border, could be searched by BMA officers. Parliament was within 10 kilometres from the Waterfront implying that it was one of the premises within the border law enforcement area.

The Chairperson felt that there should be a Memorandum of Understanding stipulating situations in which they could search with or without a warrant. BMA officers could not search private premises without a warrant. They could not go around searching private houses.

Clause 18 was accordingly accepted.

Clauses 19 to 25 were accepted without comment.

Clause 26
Ms Dambuza asked about the power of the Minister to appoint an unspecified number of staff and felt that failure to specify a number might have financial implications. The clause should be more specific. A phrase “not more than” should be inserted.

The Chairperson noted that the Minister could appoint individuals to advise the Minister on certain matters as a need arose.

Mr Apleni responded that rates of payment were decided by National Treasury.

Ms S Nkomo (IFP) agreed with Ms Dambuza. The clause should clearly state the number of individuals that could be appointed and that their compensation would be coming not from DHA but rather from the BMA.

Mr Gumede noted that, for the purpose of future interpretation, the Committee understood that the accounting authority ought to act under certain guidance.

The Chairperson agreed. When the Minister appointed someone, it should be agreed on whether the compensation would come from the BMA or DHA.

Clause 26 was accepted.

Clauses 27 to 31 were accepted without comment.

Clauses 32
Mr Gumede, referring to annual reporting, asked under which PFMA schedule the BMA accounting officer would be accounting.

Mr Apleni responded that the BMA would be accounting under Schedule 3. He referred to clause 4 which stipulated that the BMA was established as a national public entity, as contemplated in Part A of Schedule 3 of the PFMA.

Clause 32 was accepted.

Clauses 33 to 37 were accepted without comment.

Clauses 38
Ms Raphuti asked if employees would be transferred within their ranks and whether there would be incentives to encourage them to work for the new entity. There ought to be a spirit of excitement, if transferred.

Clause 38 was accepted.

Clauses 39 to 41 were accepted without comment.

The Chair asked if the BMA Bill would remain 2016 or whether short title should be referred to as 2017.

Mr Apleni replied that there was no need to amend the year as an Act number for 2017 will be allocated.

The Memorandum on the Objects of the Bill was accepted without comment.

Border Management Authority Bill: adoption
The Chairperson put the Bill to the Committee for adoption as a whole.

Ms N Mnisi (ANC) moved for adoption; Ms Raphuti seconded her.

Mr Figlan remarked that the DA remained deeply concerned about the collection of customs which remained unresolved. He was however not for or against the Bill until the DA caucus defined its position on the Bill.

Mr Gumede said that Members were supported by the rules of procedure for adoption of the Bill. He seconded the adoption of the Bill.

The Chairperson noted that the Border Management Authority Bill was adopted.

The Committee adopted its report on the Bill.

The Chairperson provided a summary on the processing of the BMA Bill. When the BMA Bill was submitted to the Committee, the Secretary wrote a letter to all departments and requested them to make comments. Three departments had problems with the BMA Bill: Department of Defence, Department of Police and the National Treasury. The concerns raised by Defence and Police were resolved. The concerns raised by National Treasury were not resolved. Consequently, the Committee consulted legal advisors on how it could deal with the matter. The Committee acted under legal advice when it proceeded with the adoption of the Bill. The Bill would be submitted to the National Assembly and then it would pass to the NCOP for consideration and adoption.

The Chairperson asked if the Committee should debate the Bill in the National Assembly or whether it should merely declare the adoption of it.

Ms Nkomo supported a debate on the Bill. The debate would result in informing the public about the work Parliament was doing. The people would know that Parliament was concerned about national security.

Ms Raphuti commented that the debate would bring confidence to the public if they see that Parliament was committed to addressing issues of insecurity.

The Chairperson concluded that the BMA Bill would be debated.

Mr Apleni, on behalf of the DHA, thanked the Committee for its work that improved the Border Management Authority Bill. He noted that he had learned a lot from the Committee’s work and that he had had a fear that the BMA Bill would not pass. He reiterated that the BMA Bill was all about ensuring a proper management of the ports of entry.

Deputy Minister of Home Affairs, Fatima Chohan, thanked the Committee for the time it invested in the Border Management Authority Bill. The Committee should be congratulated on the adoption of the Bill because the Bill was not for the Department of Home Affairs but for the protection of South African children. She noted that the implementation of the Bill would require a budget. The budget could not be allocated without approval of the Bill by Parliament. They were not expecting a big bang implementation of the Bill; rather its success was dependent on collaborative implementation. There would be further agreement that would be concluded to ensure the smooth operation of the Border Management Authority. The approval of the Bill was not the victory of the Department but of South Africans.

The Chairperson commented that there was one cabinet, one government and one ruling party. Therefore, there was no doubt that the BMA would do its work.

Refugees Amendment Bill: final Portfolio Committee amendments
The final version of the Portfolio Committee amendments with the technical amendments presented earlier was given to the Committee.

Mr Erasmus went through the changes again to see that the Bill reflected those changes.

The Committee accepted the amendments.

The Chairperson remarked that since there was no reservation or objection, a clean version of the amended Bill would be considered and adopted the following day.

The meeting was adjourned.


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