Border Management Authority Bill [B9B-2016]: deliberations

Meeting report

The Chairperson began by asking where the Minister of Home Affairs, Mr Malusi Gigaba, was.

Mr Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs (DHA) said the Minister had delegated this responsibility to the Deputy Minister, Ms Fatima Chohan, because he had different engagements, it had been reported that she had fallen ill. The project manager was also ill. The Director General (DG) was abroad on official business. The Department had been requested to make a presentation on the basis of the inputs it had received.

The Chairperson said the Minister needed to be present. She was not sure how the Committee could finalise the Border Management Authority Bill in his absence. It was very important, as it had been the DHA that had been pressurising the Committee to finalise the bill. She wanted to remind the Members that they were politicians, and it was up to the politicians to decide. Administration could come only as a support. It seemed that they were being undermined as a Committee. She finally decided to take the presentation and check whether the Minister would be available by the end of the meeting to make the final call.

Mr M Khawula (IFP, KwaZulu-Natal) wanted to know if the Department had had a meeting with the South African Police Service (SAPS) and National Treasury (NT) to resolve the issues they had raised, as recommended by the Committee earlier, to make sure that the meeting was not left open-ended.

Border Management Authority Bill: Background

The Chairperson said she could not allow a question before the presentation started, but stressed it was a very important bill for the Committee, as it pertained to the inflow and outflow of goods in and out of the country. It had been a challenge for the departments at the ports of entry to coordinate with each other. As indicated several times at previous meetings, it was new legislation that they were introducing, not merely amending existing legislation.

The process had started in March 2017, with briefings in Pretoria, followed by a formal request from the Department, and after the bill had been referred to them by the National Assembly (NA), public participation had been called for. Submissions had been received from different stake holders. The Committee had also invited the NT, SAPS, the South African National Defence Force (SANDF), two universities and the Institute for Security Studies (ISS) to make presentations.

At the Committee’s previous meetings and engagements, especially with SAPS, the SANDF and NT, the issue raised was that there should be an “exclusive right” of the border management law enforcement officers to deal with issues. It was their view that boundaries could not be put around SAPS, because if the Border Management Authority (BMA) officials themselves were responsible for law enforcement, who could arrest them? SAPS still had to do their work as mandated by the constitution, and the Committee had recommended that the word “exclusive” should be removed.

There had also been an issue raised by the SANDF over private airstrips, as there were around 200 of them in the country. The ones that were located in the inner part of the country were not worrisome, but those that were closer to the borders were the areas of concern. What would happen when these airstrips were involved in bringing goods into the country? Who would be responsible for that? The SANDF indicated that they could bring a flight down only if they suspected something. Even if they made the aircraft land, they could not make an arrest as they did not have the power to do so.

There were also issues regarding the powers of BMA officials in relation to those of the SAPS. Why could SAPS not do what the border law enforcement officer was doing? There were some other issues as well that had not been addressed, which indicated that maybe it was a blessing in disguise that the Committee was not finalising the bill today.

Consolidated public comments received; Inputs by DHA

Mr Erasmus elaborated on the comments made on the bill, clause by clause, and the final responses of the DHA to each of them.

On the preamble, comments had been received from the Refugee Legal and Advocacy Centre (RLAC) regarding the absence of the non-refoulement principle. They noted that the words “asylum seekers” and “refugees” were not included in the definition section.

The Department’s response was that the BMA would be focused on border law enforcement functions emanating from several pieces of legislation, amongst which would be Immigration Act and Refugees Act, both of which adequately dealt with issues of asylum seekers.

The information for Security Studies (ISS) requested clarity on the actual extent of the border law enforcement area, and how the 10 km had been determined and established.

The response was the precedent which already existed in South African legislation -- that reasonable distance was determined according to the circumstances, such as the example of a hot pursuit that went beyond the 10 km radius.

Presentations had been received from Business Unity South Africa (BUSA), where they had mentioned that during engagements at the National Economic Development and Labour Council (NEDLAC), they had consistently opposed the establishment of a new agency/authority for a number of reasons. In addition, the key challenges that the bill purported to resolve, all related to the movement of people rather than the movement of goods. While BUSA acknowledged that there were serious challenges relating to the illicit movement of goods, measures to combat illicit trade should not be at the expense of efforts to facilitate legitimate trade.

The government was of the view, however, that the establishment of a BMA was a priority to address multiple challenges in the management of the country’s borders. Various studies and National Intelligence estimates had highlighted these challenges. The government had spent six months deliberating on the BMA Bill at NEDLAC, and had held bilateral talks with BUSA itself. So, this matter had been dealt with sufficiently through the NEDLAC process. Also, the BMA would give effect to a basket of border law enforcement functions covering the movement of persons and goods. By improving and streamlining the management of border law enforcement, the BMA would directly support trade facilitation. The BMA would be informed by an integrated border management approach, which would ensure seamless command and control management in the border environment for persons and goods. The issue about funding would be clarified before the bill was finalised. The funding would come from different departments, depending on the functions.

The Public Service Coordinating Bargaining Council (PSCBC) had stated that the trade union’s position was that the BMA should be located within the public service, and they were against the creation of unaccountable agencies. The also said that the government should prohibit outsourcing being extended to any functions of the BMA.

Government had made a number of compromises during the NEDLAC process to address the concerns of labour. One key concession included the provision which required the BMA to undertake collective bargaining within the PSCBC. This had been included in the bill. This had addressed the concern of labour that the BMA would be diluting the organised bargaining power of labour.

Lawyers for Human Rights (LHR) had noted that there had been no costing attached to the bill, and they had been unable to find specific mention of the estimated cost of the BMA. They had also pointed out that the DHA’s White Paper on international migration suggested the establishment of detention centres along the border to house asylum seekers, pending the adjudication process of their claims.

The response was that the functions that would be executed would receive funding from different departments when those specific functions were transferred in Section 97. However, the government had clarified that the White Paper on international migration was a policy document and the BMA was not, and would not be, a policy maker, but an implementing authority. The issues raised would be dealt with when the Immigration Act was reviewed.

The National Education Health and Allied Workers’ Union (NEHAWU) had made it clear that they were opposed to the hollowing of state capacity through the creation of unaccountable agencies and the outsourcing of government functions.

Government’s view was that the BMA would be a state entity under the Public Finance Management Act (PFMA), and that there would be no “hollowing of the state capacity”. Furthermore, a detailed BMA business case had been undertaken to assess the advantages and disadvantages of various state institutional forms. The preference for establishing the BMA as a national state entity had been adopted by the Cabinet.

The Congress of South African Trade Unions’ (COSATU’s) areas of concern were the location of the BMA and the call to ban all outsourcing. COSATU’s position had been that the BMA must be located within the public service, and that was non-negotiable for the unions.

Government had responded by renaming it from an “Agency” to an “Authority” and locating it within the broader public sector and the PFMA. The outsourcing of border law enforcement functions was a non-issue for the proposed BMA. The word “exclusively” had come in precisely because of this issue. Firstly, BMA would be a full state entity accountable to Parliament via the Minister of Home Affairs. Secondly, the Bill made provision that collective bargaining of the BMA would take place in the Public Service Co-ordinating Bargaining Council (PSCBC). Thirdly, clause 4(2) stated that border law enforcement functions would be “performed exclusively by officers of the BMA.” The word “exclusively” had therefore been added following the COSATU concerns and the NEDLAC process. It restricted the functions of BMA officials to just border areas, and not to other places. It did not take away the classical policing functions of SAPS. The Department had had a meeting with the Parliamentary Legal Advisor, who had also suggested that the addition or deletion of the word “exclusively” would make no difference to the bill.

Locating the BMA outside the Public Service was informed by multiple considerations. The issue of salary harmonisation would be a long-term project within the BMA and would be guided by fiscal considerations. The president was required to consult the Minister of Finance in determining the salary structure for the BMA.

The Institute for Security Studies (ISS) had commented that while under the direction of the Minister of Home Affairs, the BMA would effectively be an additional/auxiliary police service, which lent itself to the creation of over-securitised zones within the Republic. It also remained unclear how, in practice, the facilitation of revenue collection by the BMA did not affect the exclusive responsibility of SARS to collect tax effectively.

The DHA had responded by citing Section 199 (3) of the Constitution, which permitted the establishment of armed organisations or services in terms of national legislation. Currently, there was no “direct” collection of revenue at the ports of entry, but there was compliance monitoring and enforcement to check if the goods at the port corresponded to the ones already declared beforehand. The BMA would therefore just do checks and balances in order to ensure that the goods were paid for, and there would be an obvious coordination between the relevant entities in this regard.

BUSA had expressed concerns that the BMA would not have the necessary financial and human resources to facilitate the movement of legitimate goods. This was in contrast to SARS, which was highly efficient in managing the cross-border movement of goods.

The government had responded that the BMA, as the single border law enforcement entity, would be established in an incremental manner, thus minimizing and mitigating the potential challenge of disrupting existing border control functions.

The United Nations High Commission for Refugees (UNHCR) had recommended that there should be concerted efforts made to ensure that independent and oversight monitoring mechanisms were in place.

The BMA would be subjected to the Constitution, and the SAHRC, as a Chapter 9 institution, had a constitutional mandate over all organs of state in relation to the protection of human rights. This did not need to be specifically mentioned in the bill.

The Refugee Legal and Advocacy Centre (RLAC) was of the opinion that it was essential for all prospective employees to undergo an assessment on refugee law and international law, considering the fact that refugees and asylum seekers were victims in need of international protection.

The government responded that to specify specific areas of training was an operational matter, and border guard officers would need to undergo training in a range of areas. Subsequent regulations to be issued in terms of the bill could consider specifying areas of training.

The Western Cape Government had pointed out that no obligation was placed on an officer who seized goods to provide the person from whom the goods had been seized with a receipt for the goods, as proof that they had been seized, or when they had been seized or by whom.

The government had noted that this submission related to operational matters. Relevant legislation, such as the Customs and Excise Act, would guide the issuance of a receipt for the goods seized.

Discussion

The Chairperson again asked if a meeting had taken place, as directed by the Committee, involving the DHA, NT, the SANDF and SAPS. If so, what had been the outcome? From the Committee’s side, it had been decided to take out the word “exclusively”. From the presentation, it was clear that there was a lot of arrest, detention and law enforcement which was done by SAPS, so a meeting with SAPS was inevitable for clarity on issues. SAPS had made it clear in their presentation that they wanted a clause that clearly stated that SAPS could continue doing what they did.

Mr Erasmus said he was not sure if the meeting between the Commissioner of Police and the DG had taken place. He had not been a part of it.

The Chairperson said that it had not taken place, which was why these issues were coming up at a time when the bill was supposed to be finalised.

General Khehla Sitole, National Commissioner: SAPS, said that he supported the bill and the model. A meeting had taken place, but only between SAPS and the DHA. It had not included the other role players, as directed by the Committee. The issues which were not necessarily coming together or creating an operational misunderstanding still remained unresolved. The first one was the use of the word “exclusively.” When “security” was attached, the meaning changed completely. Given the direction of the Committee, they did not want to argue about it, and would support its removal.

Other issues were concerning unconventional policing methods, such as those in which, if a crime gets committed, SAPS is not supposed to tell the DHA. SAPS could execute an operation, but the DHA was not entitled to know. However, now SAPS could not conduct unconventional policing in the border management area, as it was now the territory of the DHA. It would be worse if people inside the BMA were part of the organised crime network. When it came to detention, those people would be under police control, but if the detention was unlawful, the blame would be put on the police.

When people were investigated and arrested, there needed to be a lot of background information. A lot of synergies were required. If public violence broke out on the border, should SAPS deploy public order policing or not? It would not be their mandate, but they did have the capacity. In the case of high profile interventions, if an armed group of criminals came, should the National Intervention Unit (NIU) or task force be called or not, because it was in their area? He welcomed the directive from the Committee to have a meeting to resolve this issue amicably, because when the operations were discussed in depth; the framework would need to be amended.

Ms Yanga Mputa, Chief Director: Tax Policy Unit, National Treasury, apologised on the Minister’s behalf. He had wanted to address the Committee on the issues related to revenue collection and customs and excise. He had requested if he could have a session where he can come and address them on these issues. The officials had been talking, and on 17 April 2018 the DG of the NT had written to the DG of the DHA to arrange a meeting between the two Ministers.

The bill was like a framework, but when it came to operations, if those issues were not dealt with there would be unintended consequences. Similar to the SAPS, all that NT had requested had been to exclude the customs and excise functions of the BMA. She commented the point raised by Mr Erasmus, that the BMA would not do any revenue collection, but revenue collection was not just revenue collected at the border. NT had to follow the goods, because the goods were the actual money, one had to do a risk assessment of the goods. When the goods came into the country, NT needed to check that were they well charged, and whether the VAT, customs and excise had been collected for those goods. Custom duties, VAT and excise constituted 30% of the total revenue, so to the Department it mattered a lot, and they were concerned about it.

The Chairperson responded that the bill had been in process for eight years. The expectations of Parliament were that these issues should have been resolved. The Minister had been invited to the previous meeting, but he had not attended. The official from the National Treasury had been very arrogant and disrespectful. There had almost been an exchange between him and the Deputy Minister of Home Affairs. Members would have to decide if another chance should be given for a meeting to take place, because it would be a fruitless exercise if the Executive did not agree to the bill.

Brig Gen Mlindeli Sibango, Chief of Staff: Joint Operations, Department of Defence and Military Veterans, said that they had never had a meeting the DHA, much as they had been looking forward to it. The decision to remove the word “exclusively” was fully supported. The BMA might have boundaries, but SAPS had none when it came to their mandate.

Ms Yolande van Aswegan, State Law Advisor, responded to COSATU’s comments, and said that there was nothing unconstitutional in the bill. Whether the BMA existed inside or outside the public service, it was a policy decision that the Department should make. According to the Department, there had been extensive discussions during the NEDLAC process, where COSATU had also been present. She said it was not wrong for the BMA to be inside or outside the public service. The removal of the word “exclusively” would not make any change to the effect of clause 4. It would still mean that some functions would be confined to BMA officers in border areas. Who performed the duty there would be subject to the proclamation. The wording of the proclamation would be very specific, indicating where and when the functions would be transferred. Functions of each and every department would be enlisted in the Memoranda of Understanding (MoUs). It was difficult to incorporate all of it in a framework bill.

Ms L Zwane (ANC, KwaZulu-Natal) questioned why the directive that the Chairperson had given for the three departments to meet had not taken place, and why the bill had come back to the Committee without any changes. Why was there such a rush? It had long been an issue, but the Committee was not going to rush. If the word “exclusively” was not removed or another phrase was drafted around it, they would not pass the bill.

Mr Khawula said that the absence of the Minister, Deputy Minister and DG was a cause for concern and suspicion. They were supposed to approve whatever was presented to them. Their absence made him uneasy. Further time should be added to the process, rather than jeopardising the security of the country. He urged the Committee to work towards quality rather than rushing towards an irrational bill. The meeting had to take place.

He had asked about the role of the Commissioner, and this was still unanswered

The Chairperson said that in the world of lawyers, there was nothing wrong and right as long as they could defend it, as shown by the input of the state law advisor. She had stated that there was nothing nothing unconstitutional or wrong, whether the BMA was kept outside or inside the public service. That was not advice. As a state law advisor, she was supposed to give the Members advice.

She urged the Department of Home Affairs to open themselves up and be objective. The inputs should not be to win or lose the case, but to come with a credible bill. Fundamental issues were not operational. For example, there were the issues that the National Commissioner had raised, that the arrested people would be taken to SAPS if there was a wrong arrest, and SAPS could be sued.

They intended to finalise the bill because there was no time. She reminded Members that the bill did not belong to the DHA, but to the entire South Africa. She urged the state and Parliamentary law advisors to help finalise the bill. She had allowed this meeting to take place. The Committee had already asked for the word “exclusive” to be removed, but it was still there. All it was saying was to allow the police to do their work without any boundaries. Very genuine issues had been raised by COSATU, like the government did not have money, they did not want to pay people exorbitant salaries. Therefore it had been was requested to keep the BMA in the public service.

She asked if two weeks would be enough for the directed meeting to take place. Mr Erasmus responded that he would consult the Minister’s diary and get back to the Committee.

The meeting was adjourned.