The Committee was briefed by the Department of Home Affairs (DHA) on the National Council of Provinces (NCOP) amendments to the Border Management Authority (BMA) Bill.
The Minister of Home Affairs gave an overview of the BMA which would be established as a single implementation entity under a single executive / accounting authority. It would assume control of all ports of entry and borderline functions. The NCOP amendments meant that the South African Revenue Service (SARS) would continue managing the collection of customs duties at ports of entry when the BMA is established. Minister Motsoaledi and the Finance Minister agreed that SARS should continue performing this function, and amendments to this effect were proposed and the NCOP adopted these in December 2019. The NCOP amendments also require the BMA to enter into implementation protocols with SARS, the SANDF and SAPS within six months after the commencement of Act for co-ordination purposes. The NCOP amendments were welcomed by this Committee and it was eager to finalise the Bill.
Some Members argued that a coordinating agency would have been a better, more immediate structure entailing less duplication of responsibilities — as recommended by the Bill's Socio Economic Impact Assessment. The Border Management Authority was extremely expensive and a long term project.
The Minister explained that the Socio-Economic Impact Assessment had been rejected by Cabinet.
Auditor General South Africa (AGSA) reported on its performance audit on the immigration process for undocumented immigrants. It stated that integrated border management and control were key to the effective management of immigration. The audit revealed a backlog in registering new asylum seekers of seven months and in some cases 19 months. There was also a backlog in processing asylum seekers at independent bodies. If no new cases were received, it would take 68 years to finalise the backlog at the Refugee Appeal Board (RAB) and just over one year to finalise the backlog at the Standing Committee for Refugee Affairs (SCRA). There had been noticeable regression in the performance of the DHA in managing undocumented immigrants since the previous performance audit in 2007. Integrated border management and control were key to the effective management of immigration. There was no single national policy on integrated border management in SA. The Border Management Authority was established in policy in 2013, however the BMA Bill had not been passed. That ultimately contributed to a large volume of people entering the country illegally, or not exiting the country on time as required by visa or permit requirements.
In response to Members asking what the AGSA recommendations were, the Committee was encouraged to obtain and be briefed on the DHA Audit Action Plan in response to the 68 AGSA recommendations.
The Chairperson said the meeting was taking place a few days after the unfortunate remarks made by Dr Mbuyiseni Ndlozi that people staying in South Africa as refugees did not require documentation. The Chairperson distanced the Portfolio Committee from Dr Ndlozi’s comments. He found the comments misleading as they did not accurately reflect the position of the government of South Africa. It was a requirement of South African law for all individuals to be documented – that included nationals and non-nationals. It was impossible for anyone to travel from Cape Town to Johannesburg without documentation. The same was required for most transactions such as banking and purchasing property. Upon death, documentation was also issued. The Chairperson felt the comments by Dr Ndlozi were unfortunate and unexpected of a leader of Parliament and society.
Minister of Home Affairs opening remarks
Minister Aaron Motsoaledi hoped that the Department and the Committee would continue to work together as they had done so in the last calendar year
Minister Motsoaledi said Members were aware the Department had numerous ‘acting’ positions for many years including the position of Director General. The posts were subsequently advertised and the closing date was on 5 December 2019. The process of appointment was due to start soon. However, as per the relevant law, the term of the Acting Director General had lapsed on 28 January 2020 long before any new appointment could be made. They were advised to appoint someone for either a period of six months or until a candidate was appointed, whichever happened first. Therefore, the Deputy Director General of Immigration Services, Mr Jackie McKay, had been appointed as the Acting Director General. Mr McKay was in Namibia giving evidence in a court case on a matter of serious fraud and corruption which would be announced later. Therefore, the CFO, Mr Gordon Hollamby, was present in the meeting as Acting Director General. Mr Modiri Matthews would take over as Acting Deputy Director General. The Minister said the changes would remain for a few months until permanent appointments could be made.
Border Management Authority Bill: briefing and NCOP proposed amendments
Minister Motsoaledi pointed out the common security issues worldwide in border control:
• Criminal acts,
• Technical violations
• Transnational organised crime
• Terrorist threats
• Threats to the integrity of border management.
Globally, border management comprised of several elements:
• Immigration control
- Immigration service
- Specialised law enforcement / intelligence agencies
• Customs Control
- Custom control and VAT services
- Customs law enforcement
• Border Safeguarding and Surveillance
- Armed forces (army, navy, air force)
- Specialised law enforcement / intelligence agencies
• Inspection of Plants and Plant Products
- Plant health and phytosanitary inspection service
- Plant quarantine service
• Border Policing
- Cross-border policing and law enforcement
• Inspection of Animals, Fish, Animal Products and Foodstuff
- Veterinary, animal, fish and food inspection service
- Quarantine service
• Human Health Inspection
- Public health and sanitary inspection service
- Quarantine service.
Minister Motsoaledi outlined the key challenges facing South Africa’s border environment. At air level, there was limited surveillance capability and coverage over the country’s airspace and many small airstrips close to the borderline. He noted this area would not fall under the BMA’s responsibility. At sea level, it was transponder based. Large volumes of cargo passed through maritime ports of entry. The activity included illegal fishing; illicit movement of contraband and narcotics, maritime jurisdiction. It required a Vessel Monitoring System (VMS). On land, over 40m people moved through 72 ports of entry annually. SA had extensive land (4471km) and coast borders (3924km) and large numbers of ports of entry. There were seven transfrontier conservation parks; many informal border crossings; cross-border communities; inadequate border fences and patrol roads; strategic gaps in the borderline; wild-life poaching and illegal migration.
He outlined the history and failure of fragmented border management. Since 1994 the country made gallant strides in demilitarising and deracialising the management of the country’s borders by introducing various capabilities to give effect to border management.The consequence of establishing these organs of state, e.g. immigration control, customs control, border policing, resulted in the emergence of a silo approach to border control, border law enforcement and border protection. Various structures were subsequently put in place to attempt to coordinate the mandates and actions of these distinct organs of state in the border environment:
• Border Affairs Committee Coordinating Committee (1996)
• National Inter-Departmental Structure (NIDS) (1997)
• Border Control Operational Coordinating Committee (BCOCC) (2001)
• Inter-Agency Clearing Forum (IACF) (2010)
From at least the mid-2000 various studies and reports had pointed to the failure of those structures to address the systemic and structural problems of the coordination model associated with a fragmented border management.It is against this background that Cabinet decided on 26 June 2013 to establish a Border Management Authority (BMA) (formerly Agency) in South Africa under an integrated approach.
Minister Motsoaledi explained the principles informing the BMA:
• BMA would be outcomes focused: balancing facilitation of legitimate trade and travel and security risks
• BMA will be established as a single implementation executive/accounting authority
• BMA will assume control of all ports of entry and borderline functions:
- ports of entry: Immigration control; human health inspection; biosecurity; inspections of animals, fish and foodstuffs, plants; border policing; and full custodianship for infrastructure at land ports of entry
- Maritime environment: BMA Coast Guard to patrol up to the extent of the Exclusive Economic Zone
- Land borderline: BMA Border Guard to patrol a 10km area from the international border
• Air border environment: The South African National Defence Force (primarily through the South African Air Force) will assume responsibility
• BMA will be established as a command and control organisation with management authority within all ports of entry and border law enforcement areas
• Border law enforcement functions will be ceded / transferred from relevant organs of state to the BMA
• The BMA will be established on the basis of primarily “frontline integration” of border law enforcement functions at ports of entry and the border law enforcement areas.
• A National Border Risk Management and Targeting Centre will be key to the functioning of the BMA
• The BMA will establish its own organisational culture, identity and conditions of service:
- A uniform organisational identity: One face, one brand, one uniform; and uniform conditions of service
- Ongoing learning and professional development
- Zero tolerance for all forms of corruption and unethical behaviour
- Employ public servant cadres of high integrity and a Batho Pele ethos
• The BMA will assume operational responsibility for port of entry infrastructure and maintenance: Differing approaches will be taken at land, air and sea ports of entry:
- Air and sea ports of entry must comply with the legitimate requirements of BMA to satisfy domestic security and functional requirements as well as international licencing requirements
- BMA will assume full legal and functional responsibility for land ports of entry infrastructure
• A new policy paradigm of integrated border management for SA
Minister Motsoaledi detailed seven intended benefits of the BMA:
• Creation of customer service efficiencies through streamlined, integrated operations at the ports of entry.
• A formalised relationship between the BMA and relevant organs of state to enhance security and management of the border environment.
• Improvement in shared information, risk profiling and mitigation and enforcement to create an integrated border environment picture.
• A focussed approach to the optimisation of port of entry operations and processes to enhance efficiencies through maximum compliance and minimum administrative costs and delays.
• Effective utilisation of financial, human, infrastructure and accommodation resources in the implementation of border management functions at a port of entry as an agent for multiple border management authorities.
• Improved sterility and integrity of port of entry and border law enforcement areas and processes.
• Improvement in management, discipline and transparency with a streamlined line of sight authority at a port of entry within a larger command and control organisational environment.
The NCOP amendments were explained:
• The amendments give effect to the Agreement between the Minister of Home Affairs and the Minister of Finance that the customs related functions performed by SARS are excluded from the Bill.
• The BMA must enter into implementation protocols with SARS, the SANDF and SAPS within 6 months after the commencement of section 27 for the mandatory co-ordination of their respective functions within the border law enforcement area and at ports of entry.
The DHA had immediate priorities for the BMA. Finalising the enactment of the BMA legislation was the most important enabling priority for the establishment of the BMA. The Department was finalising the draft Section 97 Presidential Proclamation that would transfer border law enforcement functions from other ministers to the Minister of Home Affairs. The Department was planning for the incremental establishment and roll-out of the BMA to designated ports of entry and key segments of the land borderline in 2020/21.
The Chairperson commended Minister Motsoaledi on acceding to the Committee’s call to urgently attend to the matter. Parliament wanted to finalise the Border Management Authority matter with speed of a Mirage. He had gleaned from the presentation that there were seven departments operational at the borders with 58 pieces of legislation governing them. Therefore, the BMA sought to bring about cohesion and coordination among those departments and legislation. That was the most important part of the BMA Bill.
Mr A Roos (DA) thanked the Minister for the presentation. He had tried to understand the BMA for a while because it had changed quite a bit since the beginning. It came in 2009 and then the idea was that everything would be integrated including the customs role. However, that had since fallen away. He noted that the BMA would not be involved in the air space but the South African Air Force as that was complicated. There would be a Border Management Coast Guard and that would involve shipping vessels and coordination with the South African Navy. Therefore he was not sure why it was complicated to get aircraft and operate them but it was not complicated to get a fleet of ships to operate in that space going into a field that the Department of Home Affairs had never been involved in. To his understanding the current functions were under the South African Navy who were under resourced. The land function under the South African Defence Force was under Operation Corona that had too few units and were also under resourced. People were already there with the mandate, uniforms and structure – but were under resourced. It did not make sense to take other resources, take ships away, get new uniforms and start building new structures. How would that be better than simply capacitating the existing structures? He did not understand the cost value.
Mr Roos noted that for these functions, Minister Motsoaledi said that these different entities would retain and implement their own policies. Since there was no common policy framework but a command and control structure instead, why did the command and control structure not simply have a coordinating agency. It made common sense to capacitate the existing units and to establish a Joint Operations Coordination Committee (JOCC). In the city there was a JOCC between SAPS and the Metro Police and together they did joint operations. It was a structure that sat on top of the physical entities to deal with challenges. Where there was BMA, SAPS still needed to be present within a 10 or 30-kilometre radius which was a duplication of persons. The South African Revenue Services (SARS) and the Department of Health are separate and would be there anyway therefore coordination would be needed regardless of the formation of a BMA.
Mr Roos referred to the Socio-Economic Impact Assessment and said it gave that option. The cost-effective option was to have a coordinating agency. He did not understand why the previous inter ministerial committees did not work and whether there were any consequences following. Mr Roos understood that 2010 was for the world cup specifically. Since the BMA was not going to integrate the departments at the border all that was needed was a JOCC as was recommended in the Socio-Economic Impact Assessment which was much more cost effective.
Mr Roos asked from where the money would come. It was reported when the Bill was before the NCOP that it would cost R6.5 billion per annum to operate the BMA. The current cost of employment for the Department of Home Affairs was R3.5 billion so it was equal to adding another entire department which was a spectacular change in scope and mandate for the Department. Had Treasury committed to that required figure? It was no use to start the BMA only for Eskom to ask for R5 billion as Treasury would give the money to Eskom and not to the Department. That would leave an established management structure that could not be implemented. Had the money been committed for the full implementation and ongoing costs?
Mr T Lekota (Cope) had one critical question about the South African National Defence Force (SANDF) which incapsulated the Navy, the ground forces, the Air Force and the South African Military Health Services. Those four components made up the SANDF and its constitutional mandate was to defend the country against any external dangers. Singling out some parts of the SANDF did not make sense. The responsibility of the SANDF was to defend the country from external threats therefore the Defence budget needed to closely mirror any work that had to do with protecting the borders. He agreed that functions carried out by SARS are things DHA cannot do. However, he needed to understand from which areas the SANDF would be excluded.
Mr D Moela (ANC) welcomed the well crafted presentation. He asked what the actual role of the border guards was as the Minister said they were to report crime to SAPS. That was the logical process to follow as the law required crimes be reported to the relevant authority. He asked the Minister to elaborate on the role of the border guards. Were their duties limited to searching and reporting people? Were there any serious financial implications flowing from the border guards. He asked how the border guards would be identified. Were there any requirements? He said that Members needed to move speedily to finalise the Bill.
Mr M Chabane (ANC) appreciated the work done by the NCOP. Members should consider accepting the NCOP amendments to the BMA.
Mr Chabane understood the budget allocation from the seven entities responsible for border management guard would be collapsed into one budget. He asked the Minister what the budgetary constraints were as the presentation said R84 million had been allocated for the 2019 MTEF. R3.8 billion was the amount that would be used until financial year 2030 so he asked for elaboration on that aspect.
He asked about the Memorandum of Understanding between the BMA and other departments particularly SAPS and the SANDF. In what areas would these two departments interact? What were the mitigating factors if the implementation protocols had not been considered by other departments?
In the previous presentation, it noted there were difficulties where departments indicated they were unable to collaborate on the BMA programme. SARS had been cleared from handing over its responsibilities but SAPS and SANDF still needed to be cleared. He accepted the NCOP amendments in order to move forward.
The Chairperson said that the Committee accepted the work done by the NCOP and the changes effected. He asked for clarity on slide 11 on the background to the BMA. He acknowledged what Mr Roos asked about the budgetary concerns but said that during policy formulation the budget was not considered. The policy had to be finalised first and the budget considered thereafter.
Minister Motsoaledi replied that he did not mean to sound sarcastic as he almost burst out laughing when Mr Roos spoke. Not because what Mr Roos said was laughable but because as en route to the Committee meeting he came across a viral social media post that explained the difference between China and South Africa. The post said that on a particular Sunday someone in China said, “boss we need a hospital” and the president gave an order the same day to build a hospital. On Monday the minister of health produced the specifications for the hospital, the minister of land affairs allocated the land and the minister of public works sent people to begin building the hospital. On Tuesday, prefabs were constructed by a private company. On Wednesday the minister of transport began transporting goods to the hospital. On Thursday excavations were completed and by Monday construction had been completed. The post then compared a similar scenario to the South African context where a hospital was needed in February. The Minister of Health called a press conference in February, and Health Summit in March where stakeholders complained about being excluded from the Health Summit. In response a second Health Summit was called. The Health Summit report is presented to Parliament on 20 May where the opposition rejects the report. On 20 June the ANC majority passes the report and the DA and the EFF institute court proceedings in the High Court. In July the court rules in favour of the DA and the EFF. On 20 August the State appeals the decision and in September the Supreme Court of Appeal upholds in favour of the State. In October the DA and the EFF appeal to the Constitutional Court. That reflected how the country was governed and why it was impossible for South Africa to build a hospital in eight days like China.
The Minister replied to Mr Roos about budget concerns that placing money as an impediment will not get things done in the country. That did not mean budget was unimportant, but he had been asked the question many times when the HIV/AIDS programme was started. That programme became the biggest in the world and increased life expectancy. The question was always posed: ‘Can the country afford it?’. Those questions were taken before the United Nations. Minister Motsoaledi answer had always been to ask if the country could afford not to. Could the country afford not to treat people and fight the disease? Similarly, his answer to Mr Roos was to ask if the country could afford not to secure the borders.
Minister Motsoaledi replied to Mr Lekota that the presentation spelled out the problems around border security. Could the country afford not to deal with the surveillance of criminal acts, technical violations, transnational organised crime, terroristic threats and threats to the integrity of border management in the country? He stood by his answer.
The Minister explained that the NCOP amendment had been fashioned by Finance Minister Mboweni and himself. In May, the two ministers were informed about the problem with customs by the NCOP after which they immediately began to meet regularly. They jointly decided to propose the amendment to the NCOP. During that consideration the NCOP advised that something be added about the SANDF and SAPS. Their amendment was limited to customs and Mr Mboweni was heavily involved in the process, he understood the budgeting processes and from where the money would come. The Department of Home Affairs would wait for the Bill to be passed to ask for R3 billion. A phased approach had been followed. Minister Motsoaledi added that the seven departments at the borders such as the SANDF already had a budget, likewise the Department of Health and the other departments. He asked the BMA Project Manager in the DHA for the budgetary figures.
Mr Elroy Africa, BMA Project Manager, replied that currently it was R3.8 billion with a future anticipation of R10.3 billion per year for the problems mentioned in the presentation.
On the Air Force, Minister Motsoaledi did not quite understand Mr Roos’s point. The Minister was not referring to airports but to airspace. The Department of Home Affairs did not control the airspace as that was the Army’s jurisdiction. The Minister referred to Major Mandisa Mfeka, South Africa’s first black female combat pilot who explained to everyone that her job entailed policing the country’s airspace. The Department could not acquire that kind of skill and that what would be a duplication of duties. The Department operated at the airports, they checked passports and took fingerprints. Similarly, the Department was not responsible for policing the country’s sea ports. The Minister asked Mr Africa to explain the different sea zones.
Mr Africa explained the sea zones of the country as shown on slide 9. The international conventions dictated that a country with an ocean adjoining it, that ocean was divided into three zones. The first zone was the territorial zone depicted by the yellow band in the presentation. All the laws of the country were applicable in the territorial zone. The second zone was the contiguous zone in which not all the laws of the country apply but a subset of laws. The last zone was the exclusive economic zone where fewer laws apply but South Africa had a responsibility to the country to protect the economic activity taking place in that zone. The SANDF currently patrolled all three zones.
The Minister said the BMA could not take up those responsibilities as that would be a duplication.
The Minister assured Members that Treasury had given the green light hence why the amendments were sent to the NCOP by Mr Mboweni and himself.
In response to Mr Lekota, the Minister said there was a difference between Border Management and Border Defence Force. What Mr Lekota referred to was Border Defence which the Department of Home Affair had no capability to handle. The only thing the Department could do was manage the border. The Minister referenced a video he had seen on social media of women holding babies while crossing the border through an opening in a fence. He had called Minister of Defence, Ms Mapisa-Nqakula, and asked her to address the incident. Ms Mapisa-Nqakula would then instruct her border guards to advise the women to enter the country through the Lebombo Border post which was only a few kilometres away.
The Minister refuted NGOs who claimed that people seeking asylum did not have the liberty to do that. The law was clear and should be applied. The applicable law was the 1951 Refugee Convention. If a person arrived at the border post and communicated an intention to apply for asylum or refugee status, they could not be refused entry but instead must be issued with a five-day permit. That documentation required them to reach a refugee reception centre in five days where the process for proper documentation would begin. The Refugee Convention required asylum seekers to present themselves at a refugee reception centre within a reasonable period upon being allowed entry into the country. The Department decided that in South Africa a reasonable period would be five days. There was confusion about whether a person was documented or not but when a refugee arrived at refugee reception centre, they would be issued with a section 22 permit to allow them to stay in South Africa for a period of three to six months while applying for asylum. That itself amounted to documentation.
Undocumented immigrants were those for whom DHA had no record anywhere. The four Zimbabwean men who killed a policeman in Diepsloot were an example of undocumented immigrants. After their arrest the police could find no record of their documentation and approached the Department of Home Affairs. The Department checked all ports of entry and refugee reception centres and could find no records of the men. There was no sign that they ever entered the country. That was no way to govern the country. Those men where undocumented. The five-day permit and section 22 permit amounted to legitimate documentation. Border Management made sure people went through the legally recognised channels and not through illegal crossings.
The Minister also dismissed utterings that the Department criminalised immigrants. He referred again to the video of the Zimbabwean women crossing the border illegally and remarked that the Department of Home Affairs had come under fire as a result. There was a voice on the video of a person saying he was partner to the crime that was being committed. The person was aware he was committing a criminal act. The Minister, in response to Mr Moela, repeated that the border guards were responsible for such policing.
On the border guards, the Minister added that there were people already doing that job but unfortunately the fight was right inside the country such as the fights that broke out in townships over counterfeit goods. Mr Modiri Matthews, Acting Deputy Director General: Immigration Services, Department of Home Affairs, was the boss of immigration inspectors who checked the documents of individuals around the country and arrested those without documents, sending them to Lindela. Thus their work would simply be extended to the borders as well as once inside the country – the proverbial horse would have already bolted. One of the biggest challenges was that there were only 650 border guards so those four Zimbabwean men could not be stopped before entering the country. Their presence was only realised after the death of the policeman. In comparison, SAPS deployed 700 policemen at OR Tambo International Airport alone.
Once the BMA had a full complement of border guards in 15 to 20 years’ time there would be 21 000 of them that would ensure the security of the borders from cross border crimes, illicit cigarettes, theft, terrorism etc. The Minister was confronted the previous week by Free State Members of the Executive about an unmanned border gate and people were letting cattle and cars enter Lesotho. The owners of the cars and cattle were getting poorer and poorer and they blamed the State.
Mr Africa responded to Mr Chabane about the collapsing of the budgets of the seven organs of state. The conceptualisation of the BMA was that seven organs of state would be affected, and the intention was that their budgets would be transferred to BMA. The bulk of the money calculated for the BMA was not new money. However, some new money would be required for the establishment of new systems.
On the implementation protocols with other departments, Mr Africa explained that the BMA would be an implementation entity and would still need to coordinate its work with policy organisations such as the Departments of Agriculture and Health. The implementation protocols would also help at an operational level, at the frontlines. In the land border environment, the police would still patrol at those border areas and they would need a clear modus operandi of how the border guards and police would work together and share information. If the implementation protocol did not work at a technical or organisational level then the Bill made provision for two structures. One was a technical structure of Directors General and Department Heads who would work together, and the Bill refers to them as a Border Technical Committee. The second structure being the most important one was the Inter-Ministerial Consultative Committee. That committee was mandatory in terms of the Bill and would be the deadlock handling mechanism that would deal with all policy issues that could not be resolved at a technical level inclusive of the implementation protocol.
Mr Njabulo Nzuza, Deputy Minister of Home Affairs, took Members back to the basics of why this Bill encountered many delays particularly in the NCOP. The major contention was SARS has the functions of collecting customs duties for imports and checking export declarations and is responsible the many complicated collections. SARS already had tested systems in place to deal with those functions. It was always preferable for a State to have one revenue and tax collecting agency to avoid multiple reconciliations. Hence it made sense to remove the SARS functions from the BMA. DHA is mainly responsible for the movement of people in the border environment. That entailed policing the entry and exit of individuals. Border management encapsulated something more than the management of people entering and exiting the country. Border management dealt with the creation of a secure environment, infrastructure and resources necessary to run the border. It went beyond managing the ports of entry. That was why implementation protocols with other departments were necessary. DHA could not develop radar to check the airspace and flights as that was the responsibility of the SANDF.
The Minister referenced the slide about what had happened since 1996 and is still happening. Currently there was the coronavirus and so there was an Outbreak Response Team which encompassed all departments. During the height of the Ebola outbreak it was very important for incoming people to be screened. There would be an outcry if people were not being screened because a machine was not operational. The Minister recalled when he travelled through OR Tambo International Airport and could not get screened. He was informed that the Department of Health official operating the machine had stepped out to the restroom. It may sound unreasonable not to expect officials to go to the restroom, but an international flight had arrived and DHA had reported to Parliament that each individual would be screened. Other people would not have waited but the Minister waited. He looked for Health head official in charge for two hours to address the situation. In contrast, the BMA would have a commander who was not necessarily from Health but would ensure everyone was at their stations. The Minister would be able to phone and inform the commander that there was no health official at the screening station. The problem would be immediately resolved. However the commander could not instruct health officials on the policy for the coronavirus. Coordination always happened but a command structure was needed for officials to work better.
The Chairperson said the explanation was satisfactory.
Mr Chabane said he had had the same confusion as Mr Roos. He was now convinced that there was a guided contribution to the amendment from Treasury and the DHA. He had two questions. On Lindela, he asked about the building being bought. What were the plans for it so that the people who were there, the African people, would not be all over the country. He also asked about the new Regulations in place.
The Minister replied that he got more convinced during December that the BMA with a commander was required. He relayed a story about a young man with two children he had encountered at Kopfontein border post who was trying to enter Botswana but one of his children was denied entry, so it meant they all had to go back home. Fortunately, the Minister was present and drove them back to the mother to get a letter of consent from the other parent. The child’s biological father was absent and did not appear on the birth certificate, so the child was ultimately allowed to cross the border. If there had been a commander, the family would have been allowed to cross immediately. That demonstrated that immediate decisions needed to be taken at the border which needed command structures.
The Chairperson said Mr Chabane’s questions were not on the agenda as the BMA was under discussion. Perhaps they would fall under the following agenda item.
Mr Roos thanked the Minister about the story about the hospital in China. China was building a hospital in response to a specific outbreak which he thought was incredible and he hoped South Africa could learn from China. The story reinforced the sensibility. Mr Roos said the Minister mentioned two things consistently which was that the coordinating person was required which Mr Roos felt was just as easily done with an agency at a much lower cost. Secondly, for people coming over the border he agreed it was critical which was why time was of the essence. If uniforms were acquired, assets transferred, and authorities established then the Minister's story illustrated how long that would take and disruptive it would be. The Socio-Economic Impact Assessment revealed a cheaper option. Any extra money could be allocated to the SANDF to capacitate it. It could happen immediately and not in 15 years.
Mr Roos also asked if the BMA would take over Operation Corona in its entirety from the SANDF.
Would there be a coastguard, vessels or any DHA officials going into the waters?
On the Socio Economic Assessment, he asked what the estimated cost of the Agency or coordinating body was. Comparatively, what was the estimated establishment costs of the BMA in the first 15 years?
The Minister felt it was clear Mr Roos did not want the BMA to be established and no matter what was said he would remain unconvinced. Mr Roos over-exaggerated some issues by trying to imply that until the BMA was established nothing would happen at the borders which was not true. Mr Roos implied that the Bill would be passed but work would only commence in15 years when the Minister said that it would be a phased-out approach and the last phase would be carried out in 15 years. He found it unfair for Mr Roos to distort the facts by implying nothing will be done for 15 years.
On the Socio-Economic Impact Assessment, the Minister said ‘cheaper’ does not necessarily mean efficient and effective. He felt, perhaps, that Mr Roos should have used a better word like ‘affordable’. The Minister exclaimed that the DHA was not in the business of putting up cheap structures to run the country. He emphasised that cost effective and efficient methods were preferred.
The Minister quoted Einstein who defined insanity as doing the same thing over and over and expecting a different result. He attributed that to Mr Roos’s questions. The slides depicted that since 1996 what Mr Roos suggested had been tried and failed.
Mr Roos asked for his specific questions to be answered.
The Minister and Mr Roos interjected one another but the Chairperson intervened and asked Mr Roos to let the Minister finish his response as he could have been coming to the answers. The Chairperson noted Mr Roos’s position but asked that Mr Roos not dictate how the Minister answered the questions.
The Minister pointed out that before Mr Roos asked his specific question, he made utterances about the Minister contradicting himself, so he wanted to explain that it was untrue that he had contradicted himself about the impact assessment which Mr Roos found to be a cheaper option.
The Minister asked Mr Africa to answer Mr Roos’s specific questions as they were highly technical.
Mr Africa replied that the current mandate of Operation Corona was border protection which involved protecting the country from military threats. Secondly, they were responsible for border control which involved checking people moving through the border line. The BMA was intended to take over the border control aspect of Operation Corona. The BMA would not be responsible for military aggression and border protection.
On the BMA coast guard, Mr Africa said it was part of the envisioned future but was dependent on multiple factors such as costs and resources. From a planning, technical and cabinet point of view, the BMA coast guard was envisioned long-term.
On the coordination model, Mr Africa said it was important for Members to know that the findings of the Socio-Economic Impact Assessment were presented to Cabinet who rejected the recommendations. That could not be debated and for reasons outlined by Dr Motsoaledi the BMA approach had been adopted.
Mr Africa said that the projected costs for each phase of the BMA could be given at the next meeting. Fifteen years from the BMA’s establishment the envisioned annual costs would be R10.3 billion per annum.
The Chairperson thanked the NCOP for work it did. The Bill would go through the parliamentary processes. The speed at which the Minister pushed the BMA Bill was also commended as it needed to be finalised speedily.
Auditor General SA Performance Audit: Home Affairs immigration processes of illegal immigrants
Mr Kevish Lachman, AGSA Business Executive, stated that the first performance audit was done in 2000 and identified a significant number of findings. During the follow up audit in 2007, there was an improvement on several items. In the 2018 follow up audit, a major regression was identified in most areas previously reported on.
Integrated border management and control were key to the effective management of immigration. There was no single national policy on integrated border management in SA. The Border Management Authority was established in policy in 2013, however the BMA Bill had not been passed. That ultimately contributed to a large volume of people entering the country illegally, or not exiting the country on time as required by visa or permit requirements.
The outstanding fines owed by airline companies increased from R4.2 million to almost R17 million between the 2000 and 2007 audits. In 2018 the system had deteriorated, and the value of the outstanding fines was not available. The number of persons declared undesirable due to overstaying had increased.
Mr Lachman explained that the contract with the service provider of the Lindela holding facility provided for a minimum threshold. DHA had to pay an amount equal to that threshold, irrespective of the actual number of detainees. The graph on slide 9 indicated that the threshold was exceeded only once in 29 months. That increased the effective average daily cost per person by 454% compared to the actual cost.The pricing annexure of the contract could not be provided by DHA for audit purposes.
The audit revealed a backlog in registering new asylum seekers of seven months and in some instances 19 months and it could not quantify backlog. There was also a backlog in processing asylum seekers. If no new cases were received, it would take 68 years to finalise the backlog at RAB, and just over one year to finalise the backlog at SCRA.
Mr Lachman revealed that DHA did not know how many of the 946 314 inactive section 22 applicants (as at 31 December 2017) were still in the country. That was because the various systems such as the National Immigration Information System, Movement Control System and National Population Register were not integrated. Similarly, Home Affairs did not always know when undocumented immigrants were released by the Department of Correctional Services, to effectively plan and coordinate their deportation.
The outcomes of the performance audit had been shared with Home Affairs management, the executive authority and relevant independent bodies.
On the cost of the holding facility being R690 per day per person, Mr Roos asked how that came about, how it increased by 450% and what that figure was made up of. According to his calculations, it was R21 000 per month. He asked how that could be the amount spent on an individual being deported when a South African only gets R1 600 per month in grant money. He had heard that UN would help with the Refugee Appeals Board to have more personnel get through the backlog. He asked if that commitment would happen What impact would that have because a 68-year-old backlog was an obvious crisis. He also asked why the deportation budget was reduced.
Ms A Khanyile (DA) welcomed presentation but expected recommendations on how the DHA could address the challenges. Members could use those recommendations to carry out their oversight duties in ensuring DHA was complying with the recommendations. As it was indicated that the report had been discussed, she asked for the outcome of the discussions on the audit. That statement alone did not give Members insight.
On the backlogs for registering new asylum seekers, she recounted the Committee’s oversight visit to the DHA Desmond Tutu Refugee Centre in October the previous year. During the visit Members were told that some asylum seekers attached fraudulent documents to their applications. If their applications were unsuccessful, they would appeal using the same fraudulent documents. Ms Khanyile wanted to know why the Department had not opened criminal cases against those individuals.
On the Department not having its own information system and having to rely on captured information that included noticeable errors, Ms Khanyile asked if there were any consequences for the service provider tasked with capturing the information. If there were consequences, what did they entail and if not, she wanted to know why.
Mr Moela echoed Ms Khanyile that recommendations from the Auditor General were needed for Members to carry out their oversight duties. DHA could not be helped without recommendations about its challenges.
Mr Chabane asked the AGSA team for its impression of the BMA now that it was going ahead.
He felt the framework of the audit did not give a clear indication of the progress and improvement in the Department since its last audit. Members needed to measure the performance of the Department as indicated in the APP. The audit was not a good report without that and it would allow Members to conduct their oversight work.
Mr Chabane returned to his questions about Lindela. What were the areas of concern with the Lindela facility in its governance work? He felt the report could have spoken to that. He reiterated that recommendations were important for the Committee to do its oversight work.
Mr Chabane referred to the audit which stated that DHA could not provide the contract's pricing annexures. He did not understand the threshold aspect. If the threshold was not met, were they still required to pay? What were the cost implications in terms of the Public Finance Management Act (PFMA)?
Mr Chabane said there could be passive corruption and raised his earlier reference to Lindela. What was the contract management process?
The Chairperson said the Minister would respond to the Lindela questions later and AGSA to respond first.
Mr Sipho Ndaba, AGSA Corporate Executive: Specialised Audit Services, replied that the audit team would answer questions from an audit perspective but could not answer questions on behalf of the Department.
Mr Corrie Pretorius, Senior Manager: Performance Auditing, AGSA, replied about the pricing annexures and costing of Lindela. He referred to Chapter 3 on page 33 of the audit which covered the Lindela holding facility. The chapter dealt with the housing of undocumented individuals and the report referred to the 2007 contract. There was a graph illustrating the contract with the service provider up to 2019. The service provider had since been liquidated. The graph showed a horizontal line of a threshold of 2 500. According to the contract irrespective of how many people were housed at the facility, the Department had to pay as if there were 2500 people. If that number was exceeded, then they would pay R124.49 per head. That price seemed reasonable at face value but looking at the utilisation of the facility, the 2500 threshold was exceeded only once. The audit team then calculated the actual average amount spent on an individual housed at Lindela per day which came to R690 per person per day. That was 450% more than R124.49 visible in the contract as the facility was under-utilised during that period.
On the Lindela management information systems, Mr Pretorius reported that DHA did not have their own management information housed at the facility in 2018. Only the contractor had such a facility which was not a strong system. The report indicates that the electronic information was only kept for a period of three months. One had to manually sift through documents to access information older than three months.
On the recommendations, Mr Ndaba said the detailed audit report contained recommendations after each section reported on and he referred to page 26 as an example. He added that from an audit perspective the AGSA could not dictate policy. They could only give recommendations which DHA would use to produce an action plan. The Department could share the audit action plan. The audit team also checked the audit action plan to ensure it accorded with the recommendations.
Mr Lachman said the detailed audit action plan had also been discussed by the DHA audit committee who would exercise oversight at that level. The Audit Action Plan would also be presented to the Committee for Members to exercise oversight.
On the asylum backlog, he said it also came down to the challenges in the systems and processes. Mr Pretorius drew Members attention to page 42 para 6.1which referred to the Departments previous audits. During the 2000 audit asylum seekers did not always apply for asylum within the described period as discussed by the Minister . In 2000 it was found that some asylum seekers had been in the country for up to 11 months before applying for asylum. In 2007 the DHA did not know how long it took an asylum seeker to make an application at the Refugee Reception Office after entering the country. In 2019 the DHA still did not know how long it took an asylum seeker to apply for an asylum after entering the country. In addition. The DHA did not verify the purpose of entry of new asylum seekers against the movement control system as the DHA systems were not integrated. There was a time period that a refugee had to wait before being processed at the Refugee Reception Office. There was a seven-month backlog of that process. The major causing factor for that backlog was the availability of interpretation services. Many of the refugees entering the country were from Nigeria, Ethiopia, Pakistan, Bangladesh and the DRC and could not speak any of the local languages. Thus, interpretation services were required in very scarce languages which delayed the process time. In addition, the refugees reporting to the office were abusing an electronic registration system that had been piloted at one of the offices. The electronic system allowed the individuals to make their own appointments to be registered and they would pick the date the furthest away up to 19 months from the date that they reported to the machine. So that slip of paper allowed them to stay in the country legally until the date of the appointment.
Mr Lachman said the interpretation services were stationed in Gauteng. Centres around the country needed those services therefore there was always a challenge in getting interpretation services to every centre.
Mr Lachman noted that many of the other questions asked by Members were contained in the Audit Action Plan compiled by DHA. When the periods of 2000-2007 and 2007-2018 were analysed, a regression was observed and very little improvement. The regression was contained in the report. Information was unavailable from DHA such as what penalties were due by the airlines. The DHA had spoken a lot to the progress with the BMA Bill. He repeated that there were challenges with the pricing annexures.
The Chairperson asked for a deeper analysis of how the BMA addresses those issues.
The Chairperson brought up Mr Chabane's comment about passive corruption in the Lindela contract considering the PFMA. He asked for a comment from the audit team.
Mr Ndaba replied that the contract disadvantaged the Department. It was discussed with the Department which had committed to the changes required. The audit could not pronounce whether the contract was fraudulent. The Minister could comment on that. The performance audit was not a forensic investigation.
On the deeper view of BMA requested by the Chairperson, Mr Lachman said the audit team could give an analysis once the Department implements it.
Mr Ndaba added that audits were conducted in reference to policy and it was not the auditor’s job to dictate policy. Once the BMA became law, they could audit it.
The Minister accepted the very serious outcomes of the audit and confirmed that 65 recommendations were produced upon which the Department created an Action Plan. He confirmed that some of the findings were to do with the Department's information systems which were outdated. Cabinet decided that DHA was not only a document issuing department but was also responsible for the security of the country and the economy. Therefore, DHA underwent serious change due to the policies passed by Cabinet. One of these was to modernise the new immigration policies to deal with some of the challenges. He admitted that some of the systems were not integrated which was true for immigration and South Africans. The National Population Register would be consulted for documentation status of everyone. It would only record South Africans so non-nationals would not be recorded. The system also did not integrate other systems from the Department of Justice and Correctional Services. Immigrants had their own information system.
Both systems would be abolished and the National Information System (NIS) would be established to integrate information from both systems. The system that stored biometrics was called the Home Affair National Information System (HANIS) which would be abolished and replaced with the Automated Biometric Information System (ABIS). ABIS could store multiple items from fingerprints to facial recognition. When a person entered the country, their facial biometrics would be captured and when they returned to South Africa they would be identified by facial recognition. That would establish E-Gates which would not require customs officials. The current system details the existence of individuals but does not have information on where to find them if they overstayed in the country. The entire operation was called the modernisation of the Home Affairs systems.
On integration with Correctional Services, the Minister said every week he was presented with a list of immigrant inmates who had served their prison terms and needed to be deported. The country had to deport immigrants who committed crimes which ranged from murder to rape and armed robbery. Two weeks ago, Correctional Services sent a list to the Minister with 1550 names of immigrant inmates who had served between one month and 20 years for various transgressions. The Minister was surprised why the list was 1550 instead of the usual 50 names per week. Upon investigation he was told that some of the inmates benefited from the Presidential Pardon. In the modernised system Correctional Services system would be integrated with the DHA so that such things would reflect in both Departments. The same confusion took place with divorces where people discovered their divorces were not recorded in the system. Once a court annulled a marriage it would immediately be reflected in the new integrated system.
The Minister said there was a huge debate about Regulations passed in the Government Gazette on 27 December 2019 which came into operation on 1 January 2020. Some of the Regulations were a response to the findings of the Auditor General. The Refugees Act had many weaknesses which needed to be amended through Regulations. One of the weaknesses explained the backlog which was mentioned by the Standing Committee for Refugee Affairs and Refugee Appeals Board. The Regulation prescribes that the Chairperson of the board must be a lawyer while the other four members did not have to be lawyers. It compelled the members to have a quorum of three people including the Chairperson who was a lawyer to hear any matter. That meant the other members could not sit alone which created a backlog. The new Regulation required all five members to be lawyers so that they could each individually sit and hear matters just as is done by Judges in the justice system. They would sit together only for complex cases. If each member heard cases the backlog would be cleared up. The second amendment allowed the Minister to unilaterally add or remove members from the board depending on the level of work. This was important because the DHA encountered the backlog in 2008. 45 000 people sought asylum in 2007 and 200 000 people sought asylum in 2008. The system was not designed to handle that many people. In 2009 the numbers increased to 220 000 people and the DHA had never recovered since. Therefore, the laws needed to be changed in order to change the system to address the backlog.
The Minister explained that the UN High Commission for Refugees had promised to help but had not sent any funds to the DHA. The Minister said other countries had been helped but South Africa was at a disadvantage because they did not place people in camps. In other countries refugees in camps get health services and education provided to them by international agencies. The Minister did not know when the help would come and the public belief to that effect was misplaced. No money had been given by the UNHCR, but it had asked how much the costs were and a budget was being drawn up. Despite that, a process had been instituted that would clear the backlog in four years. In addition to the five members of the Standing Committee for Refugee Affairs, retired judges will be employed to clear the backlog.
On the deportation budget, he said it has not reduced but every department item suffered budget cuts.
On the fraudulent documents submitted by asylum seekers, the Minister said criminal cases were open against those applicants. However, he added that fraud was encouraged by the rules in place which overwhelmed the Department. At some stage there were 8700 individuals who defrauded the green barcoded Identity Document. That was one of the reasons DHA introduced the Smart Card ID’s that was difficult to defraud due to the materials it was made of. It was impossible to take all 8700 individuals through the court process where they would simply be charged a fine or 3000. Under the new Regulations any person who defrauded an ID would be deported instead of prosecuting individuals. They would forfeit their right to apply for refugee status. That was a preventative measure.
On consequences for service providers who submitted information with noticeable errors, the Minister did not sure whether they had done it deliberately or whether it was due to the systems. The consequences would depend on whether there was fraud.
In response to Mr Chabane’s question about Lindela, he accepted the issue picked up by the AG which had also been raised in a letter to him by the Human Rights Commission. it was unfortunate that the DHA entered a contract with Lindela which had the effects listed on page 33. Lindela had a capacity of five thousand, the contract stipulated that the DHA would pay as if there were 2500 and a fee of R124 would be paid for individuals in excess. The numbers rarely exceeded 2500 people, but the contract was binding. It was difficult to change the contract because Lindela belonged to BOSASA and when it came under public scrutiny the Departments it serviced requested Cabinet to allow the termination of the contracts. The DHA was not able to terminate its contract with BOSASA because there was no other facility in the country that could accommodate them. The DHA asked the Department of Correctional Services for facility which could not be provided at the prisons were 130% full. The SANDF had also been asked for an old military barrack but non were available. The DHA had to stay with BOSASA until the contract expired in November 2020. Upon the liquidation of BOSASA the contract with DHA was reviewed and the liquidators said a new contract could be negotiated. The liquidators agreed to give DHA a first right of refusal when they decided to sell the Lindela holding facility which was exercised. The Department had a rental contract with BOSASA and a contract for services it received from BOSASA. Since the Department had acquired the property, the only contract that remained was the service contract which would expire in November 2020 after which all the issues would be corrected.
The Minister said he accepted there was regression from the previous audits. That was as a result of budget cuts. There were 800 immigration officers and 150 had been lost which resulted in the regression in the performance audit outcomes. It was understandable because of the economic climate of the country.
Mr Gordon Hollamby, DHA Chief Financial Officer, said the Department had accepted the audit findings and the report had been discussed by management. An Audit Action Plan had been developed and the Department could report on the progress against the Action Plan. The UN High Commission for Refugees had donated some laptops and chairs to assist in clearing the backlog.
The Chairperson thanked Auditor General South Africa for the work they had done with the DHA and noted the recommendations. He asked for the Audit Action Plan so the Committee could monitor the implementation. He thanked the Minister for the amendments to the BMA Bill so it could be finalised speedily which this Committee approved, and the matter would be debated in the National Assembly. He also welcomed the Regulations and felt it would address some of the issues highlighted by AGSA. The media was thanked for its presence as it also held the Committee accountable on behalf of the public. He thanked everyone for their contribution and adjourned the meeting.
- Border Management Authority Bill [B9B-2016]
- AGSA presentation- Follow-Up Performance Audit of Immigration Process for Illegal Immigrants at DHA
- AGSA Report- Follow-Up Performance Audit of Immigration Process for Illegal Immigrants at DHA
- DHA - Border Management Authority (BMA) Update & Overview of BMA Bill, 2016
- Media Statement: Bill to Rationalise Management of South Africa’s Borders Nears Completion
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