BMA Bill: DHA & stakeholders on proposed amendments, with Deputy Minister; Child Justice Amendment Bill & IPID Amendment Bill: adoption

Meeting report

The Chairperson asked the delegation from the Department of Home Affairs to do their presentation.

Mr Njabulo Nzuza, Deputy Minister of Home Affairs, said that all the relevant legal teams had been working together to make amendments to the Border Management Authority Bill. An issue had been raised by SARS and National Treasury on clause 39 of the Bill. There was also an issue about the letter of agreement and the Committee had looked at this. The lawyers had met with the Parliamentary legal advisors and now the Department was ready to deliver the presentation on the proposed amendments to the Bill.

Briefing by the Department of Home Affairs

Definitions

Mr Deon Erasmus, Chief Director: Legal Services, Department of Home Affairs, made the presentation on the amendments to the Border Management Authority Bill. There was a need to define ‘customs related functions’. That was a definition that needed to be inserted into the Bill. The definition was taken from the Tax Administration Act, 2011. On page 5, between the definition of ‘Constitution’ and ‘Defence Force’, the following definition will be inserted: Customs related functions means the functions performed exclusively by the South African Revenue Service under (a) Customs and Excise legislation and (b) any Tax Act as defined by the Tax Administration Act, 2011 (Act No. 28 of 2011). A further decision was taken to remove the definition of ‘revenue’ in the Bill. On page 5 line 32 of the Bill the definition of ‘revenue’ will be deleted. A third amendment was the insertion, on page 5 line 33, of the definition of ‘South African Revenue Service’. It will be defined as ‘South African Revenue Service established by Section 2 of the South African Services Act, 1997 (Act No. 34 of 1997)’.

Application of Act

Clause 2 of the Bill dealt with the application of the Act. It can only affect subsection 3 of the Bill. On page 5 on line 44 the clause begins with ‘This’ and that will be deleted and replaced with: ‘Except where the Act otherwise provides, this Act does not apply to-‘. The reason for including ‘Except where the Act otherwise provides’ is because in clause 27 of the Bill, which deals with implementation protocols, there was already a provision that states implementation protocols must be entered into with SARS. The legal teams also looked at paragraph (a) of subsection (3) of clause 2. The paragraph currently states ‘the border protection functions exercised by the Defence Force’. To clean up the text and to remain consistent the word ‘exercise’ will changed to ‘performed’. At the end of paragraph (a) the ‘and’ will be removed. At the end of paragraph (b), which deals with the postal services, a semi-colon and the word ‘and’ will be inserted. A paragraph (c) will be inserted ‘the customs related functions performed by the South African Revenue Service’. The new clause 2 subsection (3) will now look like as follows:

2. (3) Except where the Act otherwise provides, this Act does not apply to-

(a) the border protection functions exercised by the Defence Force, including those performed in respect of the airspace of the Republic;

(b) postal services as defined in section 1 of the Postal Services Act, 1998 (Act No. 124 of 1998); and

(c) the customs related functions performed by the South African Revenue Service.

Functions of Authority

The next amendment was on page 6 under clause 5 of the Bill which deals with the functions of the authority. Paragraph (c) of clause 5 currently states ‘facilitated the collection of revenue within the border law enforcement area and at ports of entry’. The paragraph will be deleted from the Bill. Therefore, the old paragraph (d) will then become the new paragraph (c).

Funds of Authority

Page 12 of the Bill and it deals with the funds of the authority that is where the next amendment is. Clause 22 (c) will be changed to read as follows: The funds of the Authority consist of – any other monies legally acquired by it, subject to Treasury regulations and instructions made in terms of Public Finance Management Act.

Implementation protocols

The next amendment occurs on page 14, clause 27, of the Bill and deals with implementation protocols. Based on the mandate the Department had and its meetings with National Treasury and SARS, the legal teams agreed to insert new paragraphs (a) and (b) under subsection 4 of clause 27, which would read as follows:

27 (4) The Authority and the South African Revenue Service must;

(a) within 6 months of the amendment of the section conclude an implementation protocol in accordance with section 35 of the Intergovernmental Relations Framework Act, 2005 (Act No. 13 of 2005) for mandatory coordination of customs related functions in the border law enforcement area and ports of entry.

(b) If the Authority and the South African Revenue Service do not conclude an implementation protocol as required by paragraph (a) the Minister and Minister of Finance must determine the protocol.

This indicates that the implementation protocol is mandatory and that it must be done. The old clause 4 will then become the new clause 5.

Ports, points and places of entry or exit

Clause 39 (1) currently states that ‘The ports of entry at the commencement of this Act are-‘. This will be changed to ‘The ports, points and places of entry or exit at the commencement of this Act are-‘. This was done to ensure that the clause was aligned to the heading.

Discussion

Ms Sueanne Isaac, Legal Advisor, Parliament Constitutional and Legal Services Office, spoke on the proposed amendments to clause 27 (1).

The Chairperson stated that the members did not have the relevant documents in front of them and asked National Treasury to comment on the presentation.

Ms Empie Van Schoor, Chief: Director: Legislation, National Treasury, drew attention to clause 39, specifically subsection 2. National Treasury believed it should state that ‘the Minister may withdraw or cancel a designation, determination, appointment or prescription of a port, point or place of entry or exist under subsection (1)(b) and (c) in consultation with the Commissioner of the South African Revenue Service or the Minister of Agriculture, as the case may be’. Treasury wanted all the relevant role-players involved in the decision-making process of designations of ports, points or places of entry or exit.

Mr Lucky Molefe, Senior Manager, SARS, said that there needed to be an alignment between SARS, the Department of Home Affairs and National Treasury.

The Chairperson asked how the clause 39 would affect the Minister of Agriculture.

Mr Erasmus replied that based on the discussions there had never been any issues with the Minister of Agriculture. The Department of Agriculture was happy to leave the wording as it was stated in the Bill.

Ms Isaac referred to clause 27 (1) and said there was no timeframe in which the implementation protocol needed to be entered into. Timeframes needed to be reasonable. The other amendments that were looked at all incorporated other institutions that held an important role at the borders. There needed to be mandatory protocols between the Department of Defence, the South African Police as well as SARS. The amendment to clause 27 will contain the inclusion of the Department of Defence and the South African Police Service. The Parliamentary legal advisors viewed clause 27(4) as follows:

27 (4) The Authority must;

(a) within 6 months of the amendment of the section conclude an implementation protocol in accordance with section 35 of the Intergovernmental Relations Framework Act, 2005 (Act No. 13 of 2005) with the Defence Force, the South African Police Service and the South African Revenue Service, for mandatory coordination of customs related functions in the border law enforcement area and ports of entry.

(b) If any of the protocols of subsection (a) are not concluded the Minister and the relevant Cabinet Minister must determine the protocol. 

The Chairperson asked for clarification on clause 4(2), which states that the ‘border law enforcement functions within the border law enforcement area and at ports of entry must be performed exclusively by the officers of the Authority’. Why was the word ‘exclusively’ used? It seems to exclude and prohibit other security institutions, like the police, from performing law enforcement.

Ms Isaac replied that the Border Management Authority had a specific mandate and authority and that its powers were limited. It would not decrease the powers of other law enforcement agencies.

The Deputy Minister responded that the word ‘exclusively’ only applied to border law enforcement. It does not apply to all law enforcement. The word ‘exclusively’ was used to prevent any subcontracting of border law enforcement occurring in the future. This, however, does not prohibit the police, and other security agencies, from performing law enforcement.

Mr I Sileku (DA, Western Cape) asked how one would define ‘reasonable time’? What was the reasonable time in which the organs of the state needed to enter into implementation protocols? Everyone had a different understanding of reasonable time.

Mr E Mthethwa (ANC, KwaZulu Natal) said that the costing of the implementation of this Bill was bothering him. He wanted to know the costing of the Bill.

Mr T Dodovu (ANC, North West) recalled that the two complex issues that were discussed in the previous meeting were the implementation protocol and the role of SARS with regards to the Border Management Act and whether they will continue performing their exclusive function. What were the other outstanding issues that needed to be dealt with? What other outstanding issues prevented the finalisation of this process?

Mr A Gxoyiya (ANC, Northern Cape) noted that issues had been raised in respect of clause 39. Did clause 39 only apply to current ports of entry? Clause 30 gave the Minister exclusive power to declare any ports of entry. Clause 39, however, allowed the ports of entry as designated by the Commissioner of the South African Revenue Service and the Minister of Agriculture to still exist. He wanted clarity on the connection between clause 30 and 39. He hoped that the Bill, with all the amendments factored in, would be finalised soon.

Mr Erasmus responded to the question on reasonable time and explained that it depended on the specific circumstances that prevailed at that point in time. It might be a couple of weeks, a month or a couple of months. Reasonable time all depended on the circumstances.

Addressing Mr Gxoyiya, he clarified that there was a link between clause 39 and clause 30. Clause 30(2) states that ‘Any withdrawal or cancellation of a designation, determination, appointment or prescription referred to in subsection (1) of any port, point or place of entry or exit, may only be done with the approval of the Minister’. This means that the Commissioner of SARS can still designate certain ports of entry, through Customs legislation, but would have to do it with approval of the Minister. Should there be disagreement during the consultation process there are internal processes and procedures, which ultimately end up with the President having the final say.

The Deputy Minister asked the Director General to go through the process of what happens when a port of entry is declared.

Mr Thulani Mavuso, Director General, Department of Home Affairs, said that the responsibility to declare ports of entry was the responsibility of the Minister of Home Affairs. Various factors are taken into consideration during that process. Some ports are designated as commercial ports and others are ports that deal with a movement of people. The Department of Home Affairs had no issues working in consultation with SARS and the Department of Agriculture with regards to the issue of designation of ports of entry.

The Chairperson thanked the Department for their inputs and said that all the amendments were in line with the points members of the Committee had raised in previous meetings. The Chairperson asked the Department to answer the question of what the costing of the Bill would be.

Mr Elroy Africa, Project Manager: BMA, DHA, replied that the Department had done costing. In 2014/15 the Department did a thorough assessment of all the organs of state working at points of entry. The current costing of all border law enforcement is in the region R8,8 billion. The Department also compiled the Border Management Authority Road Map and that Road Map states what is needed over a 15-year period to establish BMA. Fifteen years after the establishment of BMA the Department is estimating it will cost the State R10,3 billion per annum to keep the BMA operational. The Department had done thorough costing with regards to the Bill.

The Chairperson once again thanked all those that presented the amendments. She said that the various legal teams would meet to take into account the issues raised in the amendment process.

Consideration and adoption of Child Justice Amendment Bill [B32B-2018]

Mr Gxoyiya moved to adopt the Bill without amendments.

Ms M Mmola (ANC, Mpumalanga) supported the motion to adopt the Bill.

The Bill was passed unanimously without amendments.

The Committee adopted its report on the Bill.

Consideration and adoption of Independent Police Investigative Directorate Amendment Bill [B25-2018]

Ms M Mmola moved to adopt the Bill without amendments.

The Bill was supported unanimously and passed without any amendments.

The Committee adopted its report on the Bill.

The meeting was adjourned.