The South African Police Service provided responses to Committee questions on the declaration of the firearm amnesty. SAPS indicated that crime in the country was high, and providing amnesty to accept unlicenced firearms without risk of prosecution was not aimed at people who did not renew their licences, but aimed at lowering the circulation of unlicensed firearms in the country. While they had not done an investigation into the link between reduction in crime and previous amnesties, they believed that there was a reduction and that it was a step toward combating crime in the country. SAPS responded it has a plan of action for the amnesty which includes training, vetting and destruction of firearms received.
Members asked about litigation pending against SAPS and the ongoing administrative delays since 2017.
The Committee approved the firearm amnesty with the ANC voting to adopt the firearm amnesty declaration notice. The EFF abstained and DA voted against it.
The Department of Defence explained the Hydrographic Bill emanates from the need to grant legislative status to the office of the Hydrographer which has been in existence in the South African Navy for over 50 years. South Africa's international hydrographic and nautical charting obligations must be brought into law and provide for the appointment of the SA Navy hydrographer as the National Hydrographer. The Bill provides for the establishment of the Hydrographic Office; provides for the safety of navigation in SA's exclusive economic zone and internal waters; ensures hydrographic surveying is done accordg to international standards; provides for the appointment of the hydrographer as the national hydrographer and powers and duties.
The Department of Home Affairs responded to the public comments on the Border Management Authority Bill. Notably, it is now agreed that SARS is responsible for the customs function. There is now a provision for collective bargaining in the Bill. The Bill will apply to both goods and people, and that the BMA will be a public entity and be governed by the PFMA.
Firearm Amnesty: SAPS briefing
Major General Maropeng Mamotheti, SAPS Head: Firearms Liquor and Second Hand Goods Control (FLASH), briefed the Committee on the state of readiness to implement the amnesty. The delegation included Police Deputy Minister, Cassel Mathale; Lt Gen Sehlahle Masemola, Deputy National Commissioner: Policing; Lt Gen Nhlanhla Mkhwanazi; Divisional Commissioner: Operational Response Services; Maj Gen Mogoruti Ledwaba, DPCI Head: Serious Organised Crime; Brig Ledile Malahlela, Head Executive Secretariat: Office of National Commissioner; Brig Vishnu Naidoo: SAPS National Commissioner Spokesperson; Brig Bert van der Walt: Legal Advisor: SAPS Legal Services.
There had to be a punishment for the criminal use of firearms and a mechanism to establish monitoring and enforcement of firearms. One should be able to see the link between the Firearm Amnesty to the objectives of the Firearms Control Act. In the country there has been an increase in the number of serious crimes reported. These include crimes such as robbery and hijacking, which are generally committed with firearms. For this reason SAPS is trying to reduce the circulation of firearms.
Amnesty will only be valid if approved by Parliament. SAPS started in 2017 but the process has been delayed due to administrative reasons, so it could not be finalized. Recently, the amnesty process has been submitted through relevant offices to Parliament.
The idea is that people would be indemnified against prosecution for unlawful possession if they surrender their firearms. However, they can still be charged with any crimes committed with the firearms. To move forward with the implementation of an amnesty, a steering committee has been established to oversee implementation.
The objectives of amnesty is to reduce the number of illegally possessed firearms in the country. People will be given an opportunity to hand in unwanted firearms. This is intended to address crime and to protect communities so that people feel safe and have no fear for crime. There was an amnesty in 2005 and then again in 2010. So currently there is a gap of about 10 years since the last amnesty. There is going to be the destruction of these firearms six months after they are handed in.
SAPS has been involved in litigation with groups such as the South African Hunters Association, who took them to court when they were implementing the Firearms Control and challenged the constitutionality of the 2008 Amendment Act mainly due to firearm licence renewal in Sections 24 and 28. In July 2017 the court declared those two sections unconstitutional and that all firearm licences that expire would be deemed valid. People who failed to renew their licence are in illegal possession of their firearm were not to be prosecuted. Parliament was given 18 months to amend the Act.
Gun Owners of South Africa had also taken SAPS to court and obtained an interdict against SAPS in July 2018 that prevented the removal of firearms from owners whose licenses had expired, and prevented SAPS from filing charges of illegal possession of those firearms. SAPS is currently appealing this ruling. At no stage was the Minister interdicted from proclaiming amnesty.
On readiness for the firearm amnesty, SAPS is taking stock of what happened in the previous amnesties to identify challenges and risks experienced. The project plan has five phases and monitoring is a continuous process, but they will develop guidelines. The plan includes criteria for the appointment of designated amnesty officials. In each province they have identified centralized storage facilities. They conducted a risk assessment and 46 police stations have been identified for exclusion from the process.
Deputy Minister of Police, Mr Cassel Mathale, stated that the details on the storage facilities must be expunged from the presentation as it gives information to people with bad intentions. Therefore the Committee does not have that document today.
Maj Gen Mamotheti spoke about the communication plan which noted social media, radio and the SABC. Previously there were challenges with the process of destruction. An audit will be done by provinces and then they will destruct at provincial level. Currently amnesty officials are being trained on Integrated Ballistic Identification System (IBIS) testing. There are criteria for appointment. Those who have a criminal record should not be working with firearms and should not be involved in amnesty. There will be vetting. They are having workshops with provinces. SAPS will establish a call centre for the public to phone in around the amnesty. SAPS will indicate the operational hours as people cannot surrender firearms 24 hours a day. Reporting on monitoring will be done on a continuous basis and they will implement an open system. They will do a final report on destruction. There will be a debriefing to have an impact assessment and then look at what was learned to rectify for the future. Removal of illegal firearms is in the interest of public as firearms are used in crime. All South Africans must be involved and feel safe.
Ms Z Ncitha (ANC, Eastern Cape) asked about the nine centralized storage facilities for firearms. She asked if the buildings were secure and if the security of the buildings have been upgraded yet as this could be a problem. When do you expect a response from Public Works about upgrading. On page 17 of the SAPS response document, she asked what criteria they were referring to? There was no clarity on when they were going to start the amnesty as dates have been given and not adhered to. She asked for the number of those in attendance at the workshops and the successes thereof.
Mr G Michalakis (DA, Free State) referred to the SAPS response document where the first reply states that since 1994 public trust has been restored. He disagreed, saying that the public still have a lot of questions and SAPS has a long way to go before it can say public trust has been restored.
He said that SAPS acknowledges that there is a resource constraint but they deny loopholes in the Act. He proposed SAPS ensure everything is in place, that all the training, all the vetting is already in place before they ask for amnesty. There is a discrepancy on the date for this planned amnesty and asked for clarity.
He noted SAPS stated that it had never been interdicted against a declaration of amnesty. However, SAPS was interdicted against receiving unlicensed firearms. What effect will this interdict have on the amnesty process?
He said that the amnesty process did not guarantee that the firearms will not end up in the wrong hands because those guarantees cannot be given. Recently the Committee heard how the police service lost their own service weapons. So how can they look after masses of weapons, received in amnesty. He needed to be satisfied that they can handle this. The DA is in favour of anything to reduce crime in the country. However, the previous amnesty increased crime because the weapons ended up in the wrong hands. “So we need that guarantee.”
He asked the Deputy Minister if he is willing to say that he takes responsibility if any weapons disappear or land in the hands of criminals. If not, then he is not sure they can be confident that the weapons will not land in the wrong hands. He believed SAPS should first go back and when they are ready to give these guarantees come back. He is very worried about their preparedness. He has concerns if this will in fact bring down the crime rate.
Mr S Zandamela (EFF, Mpumulanga) said that if there was sensitive information in the document the Committee was awaiting, then SAPS is allowed to request a closed session to address some of the points. He asked what measures are in place so that the firearms do not get lost.
He noted the amnesty period was for six months for people to submit firearms. Surely there are hotspots where SAPS knows there are a lot of illegal firearms. What measures in place for the hotspots? What are the consequences for those who do not respond to the amnesty call?
Ms M Mmola (ANC, Mpumulanga) referred to the excluded police stations. Why are they excluded? She asked when the communication plan was going to be implemented. She asked for clarity on the point made about inadequate security and which police stations are not complying.
She noted in the SAPS response document that the Central Firearms Registry (CFR) still has a problem with accommodation and it has been like that for years. Is there no security?
Ms Mmola spoke about the delays in the amnesty process and asked the Deputy Minister what the truth was. SAPS blamed it on administrative delays and then they said it was because of the change in ministers. What was the actual reason. If it was because they did not do consultation, SAPS should just say so. Will the amnesty start on the same date for the whole of South Africa. First they said 1 October then they say 1 January. What is happening?
Mr S Mfayela (IFP, North West) said that everyone here wants to see a firearm free country. The problem is that people want to feel safe with their firearm in their bedroom. If we hand in our firearm tomorrow, crime is still at a peak. The challenge is that in SAPS own system there are criminals. These firearms we are going to give up to SAPS are going to come back and kill us. You have to give us hope that this will not happen. Most of the firearms killing people are unlicenced.
Ms Mmola asked if SAPS had concluded the risk assessment? SAPS said they going to complete the training now they have conducted a workshop. How many SAPS members have been trained and how many attended and how many provinces got training?
Mr T Dodovu (ANC, North West) said administrative delays were blamed for not starting the amnesty. What specifically are you talking about when you say administrative delays? We were told this was supposed to start in 2017 and got delayed because of admin issues. Then we were told 1 October. Now 1 January. We have to unblock these delays. Statistics show that based on evidence much of the crime in the country is as a result of unlicenced firearms. We collect unlicenced firearms from people. What are we not doing right that makes the proliferation of these firearms continue unabated? There could be something we did not do right in 2005 and 2010, what can we do to make it better?
He does not think that SAPS is communicating effectively to the public about this, not even the date SAPS is going to start this. Just getting the information out there that there is a need to do this and to allay public fears is important. They must state the implications of surrendering firearms. For example, if you did not renew your firearm licence, SAPS must explain what the implications are and what happens if you want to apply for a new licence or renewal. The ordinary man in the street is in the dark.
Mr K Motsamai (EFF, Gauteng) made some comments in Setswana which were not interpreted. He said that they should have interpreters.
Mr Dodovu translated that Mr Motsamai is concerned as police are using the guns.
However, Mr Motsamai said that he was not saying that.
Mr A Gxoyiya (ANC, Northern Cape) said that the safety of our country is in all our favour. Armed robberies are at a high level. After getting these arms and destroying them, what are the measures to stop more guns getting into circulation? People surrender the guns then they get others. There are criminals who have legal firearms. And it is easier to get illegal firearm than legal firearms. Criminals do not then use the legal gun for a crime. How do you look into this? It is a complex matter. How do we make those excluded police stations that do not comply with the minimum standards, comply? How do we make them comply with minimum standards? In certain areas people must travel far to go and surrender guns. What provisions are made for such people living far from non-excluded police stations?
He said that in certain areas many police stations have an opening and closing time. This is a cause for concern in these high crime times. In the interest of crime prevention, are these police stations really working? That means those police stations are there for certifying documents and commissioning affidavits . Crime happens when police stations are closed at night. During the day criminals wait for the darkness.
The Chairperson said that they must look at the actual impact of firearm amnesty in terms of reported crime. In the previous amnesty, she was sure that lessons were learned. The constantly changing timeline is a cause for concern but the greater concern is what has changed between your presentation to Portfolio Committee and to this committee from October 2019 to January 2020.
Deputy Minister response
Police Deputy Minister Mathale said that SAPS never intended to present a date. Granting the amnesty is a process. It is now 30 October and the process is still unfolding as SAPS cannot implement until both Houses of Parliament support the amnesty. The parliamentary process explains why you find the January date now. Our wish was October. But our wish and reality are two different things. We hope both Houses will support this process and pass a resolution in support of the amnesty before January. The reason we are here is because we believe in what we are doing . The day we stop believing in what we are doing we will not be here. Amnesty must happen and it will happen according to how we have outlined here.
Firearm amnesty is used from time to time as the need arises. The law allows amnesty if you want to achieve a particular objective such as encouraging people to submit illegal and legal firearms they no longer want for disposal. We are not saying there will not be crime after people submit their weapons. The previous amnesties indicated a number of guns were destroyed. Amnesty is one tactic to get people to submit legal or illegal firearms. But there are other methods as from time to time SAPS raids hostels and we do get illegal firearms at roadblocks too, and we confiscate these. This is only one method we using to retrieve weapons in the country. Murder happens mostly with guns or knives. In this case we are focusing on guns.
The atmosphere is poisonous in which we are handling this amnesty. Since the promulgation of the Firearms Control Act there have been challenges with licences. People felt that the amnesty was aimed at people who did not renew their licence. No, that is not the target. There were court challenges around that. SAPS has not gone out to arrest people who did not renew their licences. The amnesty is intended to get people who have legal and illegal firearms to submit them. They must submit their weapons and apply for reissue of the licence and that will be done.
The Portfolio Committee took resolutions such as SAPS must look into Members whose licences expired and want to apply for renewal. SAPS discussed this but we must still meet and look at the legality. Currently, the amnesty as it stands is what will apply.
Lt Gen Sehlahle Masemola, Deputy National Commissioner: Policing, replied that SAPS has central storage in the provinces and one national storage facility. This is in two different buildings.
On communication, the answer is that we do talk to the public. Once the amnesty declaration is made, communication will start but we need a confirmed date first.
Assessment is ongoing by cluster commanders. This refers to assessment of security and safekeeping venues. As and when we destroy firearms, space becomes more available. We continually have to make sure provinces report on this so we know how we are going to move the firearms when the time comes.
On the interdict, the case is still pending. SAPS is saying that the objective is not to focus on people who want to renew their firearm licence. He said that firearms were not lost. In every basket of potatoes you find one or two rotten ones. That does not mean everything is lost so, yes, there are some criminals in the police force, but not everyone is. How long is it going to take to get the central storage? We have to take drastically improved measures compared to what was there in the past.
The list of stations that are excluded are available in the letter to the Committee. Those police stations who do not have storage at all, they have limitations. We are dependent on Public Works to create space. There are police stations especially in the Northern Cape that work limited hours. Currently, they have limited resources. The number of cases and complaints at such police stations are minimal and it does not prevent the community from accessing the police after hours.
On the operational plan, they never encountered a heist of firearms in the past while transporting firearms. They have never lost firearms in transit and do not expect it to happen.
On consequences and hotspots, before amnesty, there will be drastically increased operations in hotspot areas to encourage people to hand in firearms. After amnesty SAPS will target the hotspots that we know are there with a view to get the firearms in those areas.
Certain police stations were excluded was but all the provinces are involved. When there is a date set, all provinces will be involved. On criteria for minimum standards, he said police stations do comply with those minimum standards.
SAPS is dependent on Public Works to fix the CFR. If it were within our powers we would have fixed this office and many others long ago. There has been a meeting with Public Works and there is going to be another one. We do not know when the CFR will be fixed.
Are there criminals in our system? Yes, we do not dispute that we will have criminal elements in the police service but the majority are committed and do their work.
On the relationship between the previous amnesty and a decrease in crime – any firearm handed in means many lives have been saved. We never undertook a study to see if it led to a reduction in crime. We take it the more firearms and ammunition handed in, the more lives saved in the process.
Maj Gen Mamotheti continued and said that national is targeting commanders at provincial level for training. In 2017, 2018 and 2019 we did the same targeting. If we do not retrain them, it is going to be a problem. We do it to refresh the memory about the guidelines. The amnesty process lapsed, if we train them now and it is not going to be approved now, then we have to train them again. We agree that once a date is approved by Parliament, we have one week to get ready.
On the administrative delays, she jokingly suggested she cannot answer as she did not want to lose her job. This process has been coming from 2017 and they had to submit through the relevant process before it can go to the next step. If there is a new administration, they have to do a new application and start again. The declaration must be signed every time the amnesty process is not finalised. We have to submit a new application and then start again with a new process.
Brig Bert van der Walt, Legal Advisor: SAPS Legal Services, replied that in July 2018 a court order was granted. SAPS was granted leave to appeal on 7 December 2018. So that order is suspended. Heads of argument have been filed and the appeal process is on the way.
The Deputy Minister said that there were delays administratively. If you prepare documents and someone must sign it off, it is an administrative process. The delays were caused by admin and nothing else.
Mr Michalakis said that when one or two guns are lost, you cannot say it is not a failed amnesty. You need to make absolutely sure that that does not happen. SAPS has not satisfied him that this will not happen.
He referred to the training on amnesty in 2018 and asked why must people be trained again. If they have been properly trained why do they need to be trained again. If they understand, they are not goldfish, we should not need to train them again. The Deputy Minister indicated that SAPS is here to make a difference but are you confident enough in this whole process that if something goes wrong then you as political head will take responsibility.
Ms Mmola said that SAPS must not talk about change in ministers as the reason for the administrative delays. They did not come to the Committee prepared. There are unresolved matters from the past. They were supposed to prepare. In the Fifth Parliament, concerns were raised that is why we sent SAPS back as they did not do things such as consult stakeholders and they were taken to court. SAPS must tell us the truth. Some of the things are not correct. If you cannot do something, you must say you cannot. It was not about the change in ministers, it was about consultation and they went to the Portfolio Committee and were not prepared. SAPS must not take advantage of people who are new in this portfolio and do not know about the circumstances as she used to serve on the Police Portfolio Committee.
Mr Dodovu said that he is worried about these administrative delays impeding the process and the General made an unprovoked comment about being afraid to lose her job. The amnesty is of national importance. He hoped this process is fast tracked. Only Parliament can approve the amnesty and we are here to listen to the the SAPS submission. For this to happen, this is the process in which it must happen. No one should be intimidated to provide us with right information.
Deputy Minister response
Deputy Minister Mathale agreed that they do have instances of police officers who commit murder by killing their wife, children and themselves but that is not reflective of SAPS. We have men and women who are competent and take their work very seriously. When amnesty is in place, people must be encouraged to dispose of unwanted firearms at their disposal and the firearms will be kept safe. Where it is needed, we will make arrangements to collect the firearms from people.
General Masemola made an unfortunate comment during the answer session that people in the department are threatened with losing their job for speaking the truth. We were not aware of this threat. We will take that back to the department. If anyone feels threatened before presenting to the Committee then that is a serious matter. Members of the police service must understand that we are safe in the Committee and not ill at ease.
The process commenced in 2017 and could not be finalized due to admin delays. For some reason she said something else. Anything said that is not in line with what is in the document presented is not the situation. We are here because we are convinced about the matter before you. We are confident that we have mechanisms in place for the Committee to support an amnesty program with that understanding.
On the other concerns Members raised, we agree. Between Public Works and SAPS we will go back and ensure this is resolved so when amnesty comes we will not come back and complain about the same thing. One rotten potato can lead to loss of life, we agree. Therefore those participating in this process go through screening.
If we training someone now, and then next month they must be trained again, that means we must look at the training we provide. You must still be fit next month if trained this month.
Lt Gen Masemola replied that SAPS is a large organization and SAPS members are coming and going out and there are promotions and resignations, so they keep them trained all the time. If the amnesty is implemented, people must take firearms to the police station, SAPS will not be stopping cars. In response to Mr Motsamai, each police station has a designated amnesty official to receive those firearms.
SAPS has prescribed minimum standards that are known by all police members. Giving out details to the public might be a bit problematic. He agreed SAPS has lost firearms and he agrees that one lost is too many but SAPS is better prepared now. Before there was no process for how long a firearm may stay at a police station before it goes to central storage. SAPS is better prepared now. The Minister has said that SAPS must separate amnesty from court challenges that have nothing to do with amnesty. Amnesty here is out of the Act. The court process relates to people that did not apply for licences. Those who did not renew licences can reapply through amnesty if they wish. If the court process gets concluded, the court will determine what happens there. Let us allow the law to take its course as far as that is concerned. Support the amnesty is the call we make to members of the Committee.
Firearm Amnesty: Committee approval
Mr Gxoyiya said he was confident that SAPS is ready with systems in place. The Committee should give SAPS the go ahead. He moved to approve the firearm amnesty application. Mr Mfayela seconded this.
The Chairperson asked if there were any objections. She noted that the DA objected, the EFF abstained and the ANC are in favour. He said that the Committee Report on the firearm amnesty was adopted. He thanked the Police Deputy Minister and Department officials. The amnesty is only valid if approved by Parliament and the conditions specified under which amnesty is provided. The delegation was excused.
Hydrographic Bill: briefing by Department Of Defence
Hydrography is an applied science that deals with the measurement of oceans. It is a speciality that South Africa has and not many countries have this specialty. South Africa is a signatory to international conventions on maritime safety. The Hydrographic Office aims to give support for safe and efficient navigation, just as a road has stop signs and robots, so too, when ships sail they need such information. People responsible to provide such information are hydrographers. For example, a certain spot could be unsafe and that has to be mapped out. The South African Hydrographic Office is a service within the South African Navy. The Office has been providing such services since the early 1950s. The Department has consulted with the Department of Transport since 2010 and the parties agreed that there needs to be a formalized structure so that the country can be fully compliant. Thus, the Bill was drafted.
The objects of the Bill are to establish a Hydrographic Office, to provide safety and navigation in the waters of the Republic, to ensure that surveying is done with all requirements accepted internationally, and to set out the powers and duties of the hydrographer.
Captain Theo Stokes is currently the only South African hydrographer. He addressed the Committee and said that ships use trade routes. It is the South African Navy’s responsibility, through the Hydrographic Office to ensure that any ships with cargo coming in do not run aground. They assist mariners to arrive safely, and without this the cost of insurance would go up. South Africa is one of 92 states that are part of the Hydrographic Organisation since 1955.
Currently, the Hydrographic Office is in Silvermine and it is tasked with producing nautical charts. They produce this using acoustic measurement devices to measure the sea floor and they also do research for environmental protection.
Lt Col K Mashego, DOD Legal Advisor, with Captain Stokes assisting, went through the clauses of the Bill:
Clause 3 establishes an Office within the South African Navy. The Chief of the Navy will consult with the hydrographer and there must be agreement between them. In 1954 the South African Navy took over the capability and guides the seat of Office in the Navy.
Clause 4 sets out that the information must be clear, well researched, and can be shared with any person. There is the exclusive economic zone where activities such as mining can take place. The Hydrographic Office must collect hydrographic data and display this information on nautical charts.
Clause 5 noted the Hydrographic Office is still within the Department of Defence.
Clause 6 deals with how the Office is controlled and managed, in accordance with this legislation and the Defence Act. Two Acts govern the Hydrographic Office.
Clause 7 provide for the powers and duties of the hydrographer. The Portfolio Committee replaced the word “beach” with “seashore”. This is because they decided to use language that has already been used elsewhere. This legislation must not be different from legislation and laws applicable internationally.
Clause 8 deals with submission of hydrographic data about a navigational danger. The Portfolio Committee made substantive changes. Before the clause stated any person in charge of information, but it was decided that a person might know that it is crucial information to the hydrographer and it was putting too much strain on that person. It now states any person "identified by the hydrographer".
Clause 9 provides for a list of survey marks to establish geographic control by the hydrographer.
Clause 10 is on archiving; the Defence Department has its own archive and this makes archiving easier.
Clause 11 sets out that copyright, for example of nautical charts, vests in the state.
Clause 12 limits civil liability. The clause was previously voluminous and it was restructured. It states that in the event of gross negligence or a willful act, the Hydrographic Office or its employee is held responsible. No civil action is possible if the nautical chart has not been produced and sold by the Hydrographic Office.
Clause 13 deals with funding. It can raise income, but it does not have access to the revenue collected as it goes to the National Revenue Fund. It receives funding as appropriated by Parliament via the Department.
Clause 14 deals with cooperation between stakeholders on areas of interest.
Clause 15 deals with annual reporting by the Hydrographic Office to the Chief of the Navy.
Clause 16 deals with regulations by the Minister.
Clause 17 is about transitional arrangements and it notes that the Office already exists and does not have to be established.
Clause 18 is the commencement clause.
Mr Michalakis said that the Department of Defence was one of the most neglected when it comes to funds and said that he did not want this to happen to this unit. He asked how the panel felt about the clause about the income they generate. He asked if they get enough from Treasury to function.
Captain Stokes replied that money gets defrayed via the Department, and then comes to the Hydrographic Office. It is an internal process. He stated unequivocally that he is fully funded.
Mr Michalakis said that he would like an opportunity to go through the Bill more when they meet again.
The Chairperson said that they are getting up to speed with the Bill and thanked the panel for the presentation. She said that it was interesting to meet South Africa’s only hydrographer.
Ms Ncitha asked for clarity on the structure of the unit and the funding. If they can fund themselves, must Parliament budget for them?
The Chairperson replied that the Department through the Ministry can address the structure and budget. She stated that South Africa should not have only one hydrographer.
Border Management Authority Bill: Deputy Minister comments
Deputy Minister of Home Affairs, Mr Njabulo Nzuza, noted the Minister was in China. He said that the Border Management Authority (BMA) was going to be a public entity. It will deal with 72 ports of entry which will include airports, maritime, and land ports of entry. Currently it is not only Home Affairs involved, but also the South African Defence Force (SADF), South African Police Service (SAPS), Agriculture, and the South African Revenue Service (SARS) to co-ordinate all these functions and put them under one border management. Public participation on this Bill is finished.
Nedlac had raised the concern of the agentification of the state. In other words, there was a concern that the border would be run by agents. The Deputy Minister said that this will not be the case as the BMA will be a public entity under state control.
The Bill has been presented to the Portfolio Committee and a concern raised was that clause 4(2) of the Bill does not talk to law enforcement, but only to border law. The Deputy Minister stated that the Bill does not take away any authority from SAPS. The word exclusive was used to protect the state from outsourcing functions, so that they cannot get in private companies to conduct border law enforcement. In other words they cannot sub-contract security providers.
In clause 5, the request was to include SAPS. The Department's view is that if they single out SAPS they would have to list all the agencies specifically and they would have to keep amending and changing that as laws change. Parliament said the day before this meeting that the Bill must be revised specifically on the matter of SARS and customs. The Deputy Minister said that DHA agreed that revenue must remain the responsibility of SARS so it is removing the customs function out of border management. He state that they have written agreements with SAPS, but with the other departments they have not made arrangements on the Bill yet. It is very important to finalise this Bill and that they had to build capacity to establish it.
Border Management Authority Bill: responses to submissions
Mr Deon Erasmus, DHA Chief Director, Legal Services, read the document. Some of the points raised were:
• On Clause 4, DHA had bilateral with Business Unity South Africa (BUSA) and has had engagement with NEDLAC. Government spent six months deliberating on the BMA Bill with NEDLAC. BUSA said that functions related to goods should not be in the BMA and should be kept separate. Border law enforcement is both for people and goods, so it is also for trade facilitation. Those issues relating to goods in respect of SARS will be dealt with by SARS, so SARS is not an issue. However, goods are going to be in the BMA.
• It is necessary to secure the country’s borders and the Public Service Commission stated that BMA should be in the public sector.
• BMA can undertake collective bargaining.
• BMA will not outsource government functions. The BMA will be fully managed by the Public Finance Management Act thus it is in the public sector.
• There is a white paper on migration about housing asylum seekers. This is a policy document of the Department of Home Affairs. Currently this white paper has no impact on the BMA.
• NEHAWU is opposed to the hollowing out of state capacity to agents. As indicated, it will be a state entity subject to the PFMA.
• Currently there is a lack of single command and control at the border, so Cabinet decided to establish the BMA for an integrated border approach. The BMA will be fully accountable to the State and Parliament and it will have the capacity for collective bargaining. The country needs effective border management and BMA will be part of the armed services, but only the border guard will be armed forces. The administrative personnel will not form part of the security arm.
• There is a clause that deals with implementation protocols and coordination with other organs of state.
The Chairperson asked for an explanation about the challenges that arose from the different departments on the BMA Bill.
Deputy Minister Nzuza replied that they have an agreement with SAPS. They have had interactions with the Defence Force. All concerns have been incorporated and they have dealt with the SARS concern as well. The collection of revenue will remain with SARS. The scope of revenue collection is taken out of the Bill. There is a technical committee of all these departments as at a technical level they must ensure they work as a unitary government.
Border management is the responsibility of DHA as they are in control of designated ports of entry, however private air strips fall into the Department of Transport’s responsibility.
The Deputy Minister had to leave and Mr Erasmus continued to read the responses (see document).
Mr Dodovu asked where the process of the BMA Bill is now. This is a very important Bill dealing with a big problem in South Africa of illegal immigrants and the negative implications of that. He asked that the Department of Home Affairs must please not jeopardize this Bill and after it is passed they must manage it in such a way that it addresses the fundamental problems in the country. It must not be one of the sad stories that the country has. The process must be guarded from a constitutional perspective. Its constitutionality must not be able to be challenged. He was envisioning a situation where they were integrating all the different departments, to consolidate everything and address the pertinent problems.
On BUSA's concerns, the problem is to block illicit trade coming into South Africa. It will be governed by a state owned entity, under the PFMA. When the BMA is in place they must recruit the best of the best. The BMA should work as well as SARS works, this institution must be like that. He asked about the illegal immigrants already inside the country. We have so few immigration officials, how do we locate these people. We need a mechanism to clean up those already in the country.
Mr Zandamela asked about people who got inside the country and never went back. What happens to those already in the country? He suggested that officials must be rotated so that they did not stay in a position longer than five years. When they get too familiar, that is when corruption starts.
Mr Gxoyiya said that entry into the country is easy without any documents – it is a terrible situation. Cooperation between the different departments is still needed. They must look at the people who come into the country and those who go out. He has heard from Musina municipality that the main problem is illegal immigrants putting strain on them.
DHA must not brush off the worker concerns. They must look at the lessons learned from other situations and ensure that there are measures in place for a smooth transition. He asked what specifically was resolved at NEDLAC. From an operations and administrative perspective, “we must be safe.”
The Chairperson said that it is important to give an indication of budget implications to implement this Bill.
Mr Mfayela noted that SA shares borders with other countries and asked if we should not do some awareness raising with those countries so that they can assist.
The Chairperson said that government invests so much money, our first step should be to secure the border. Once you know you have a secure border line, you can be confident in deportation because when you deport, you deport for good.
Mr Thulani Mavuso, DHA Acting Director General, replied that inspectors also investigate the good faith of people looking for permanent residence through marriage. Some people get paid monthly to do this. There is corruption and it is true that if you are not rotating officials, they get familiar with the turf. It does create a security risk so they can look into rotation. They will follow all processes necessary to ensure the BMA Bill becomes a shining example.
He mentioned Public Works. The BMA needs to have infrastructure at the actual points of entry, that is what they envisage. They have learned from Canada, which they looked at as it has a similar model.
Those employees who would be transferred, they should not be worse off than they were before transfer.
On the meeting with neighbouring countries, they have met with Namibia and Zimbabwe to improve border infrastructure. There are protocols that need to be agreed to.
On SARS, the Department of Home Affairs has agreed that the customs responsibility is still with SARS.
The Chairperson said DHA should provide full responses in writing to Members' questions.
Mr Erasmus replied that the workers is a sensitive issue. Clause 37 in the Bill deals with that. When transferred, people must not be worse off than they were. There is a whole process for dealing with that before someone is transferred.
Mr Africa said that measures are built in to protect workers.
From a constitutional point of view, they have at least two independent legal opinions and the state law advisor as well says that the Bill is constitutionally compliant. They have been very careful about that.
On the budget, two to three years ago they did a costing of what border enforcement costs. The state is currently spending about R3.8 billion throughout all departments. Then they asked what budget BMA will need in 15 years and it will need R10.5 billion. They need 21 000 staff members for BMA and currently they have 9 000. So they are doubling.
Most money for BMA will come through the transfer so those staff must come together with the budget. The budget is transferred but DHA will also need new money to establish this entity. DHA spoke to National Treasury and gave them three scenarios: Maximum money needed; Least money needed; Middle scenario.
Based on that, National Treasury gave them an allocation of R16 million on the assumption that Parliament had already finalized the Bill. Over the three-year MTEF the allocation is R84 million. This does not meet the minimum scenario and they said they will work with it. They will give a projected cost each year.
Mr Zandamela asked if there have been engagements with municipalities to relocate people along the border.
The DG replied that they have, especially in Limpopo. Along the border you get taxi ranks and they bring unwanted problems with their counterparts. The Minister has spoken to the local councillors. The biggest concern was that there was a mosque on the border, some people want to stay there and trade at the border, but the border must not be contaminated. They do not want human settlement around points of entry.
The Chairperson concluded by saying that they need written agreements with SARS and other Departments. There was a need for a coordinated approach to managing the borders.
The meeting was adjourned.
- SAPS briefing; Hydrographic Bill & Border Management Authority Bill: Departmental briefings 1
- SAPS briefing; Hydrographic Bill & Border Management Authority Bill: Departmental briefings 2
- SAPS briefing; Hydrographic Bill & Border Management Authority Bill: Departmental briefings 4
- SAPS briefing; Hydrographic Bill & Border Management Authority Bill: Departmental briefings 3