In this virtual meeting, the Independent Electoral Commission briefed the Committee on proposed amendments to the Electoral Amendment Bill. The Office of the Chief State Law Advisor also briefed Members on the proposed A-list.
In its presentation, the Commission highlighted that most of those issues had been settled and only focused on the few items without consensus.
There was agreement that the A-list was a true reflection of the deliberations and decisions of the Committee.
Notwithstanding this, the Committee mandated the legal teams to incorporate the Commission’s amendments and present a final A-list Bill that can be considered and adopted by the Committee on Thursday.
It was further agreed that the Commission would formulate a draft proposal in relation to Schedule 1A and this would be included in the revised A-list.
The Committee re-emphasised the requirement that independent candidates be represented by agents within a voting station to ensure fairness. Furthermore, the Committee resolved that the quota of such agents would be left to the Commission to determine in the regulations.
The Border Management Authority presented an update on the establishment of the agency. The Committee welcomed the assurance that the Authority has completed and signed implementation protocols with the South African National Defence Force and the South African Police Service. These were completed in May and June 2022 respectively. Those protocols would ensure coordination and collaboration in closing gaps relating to South Africa’s borders.
While the progress was commendable, the Committee highlighted the need to secure the necessary funding to ensure that achieving success was not compromised by lack of adequate funding. Regarding the resourcing of the Authority, the Committee called for the Authority to include cadets previously trained by the Department, with greater consideration of youth, women and people with disabilities.
Additionally, the Committee considered and adopted the President’s request to the National Assembly of a retrospective salary increase of 3% for the IEC Chairperson and other full-time Commissioners in terms of the Determination of Remuneration of Office Bearers of Independent Constitutional Institutions Laws Amendment Act, 2014 (Act No. 22 of 2014) for 2020/21.
The Chairperson welcomed everyone to the meeting. He mentioned a letter related to the matters under discussion.
He felt that the Committee must affirm its decision that it was not able to interact with other stakeholders at that point in the Bill process, but it noted the issues that had been raised. There were two processes of Parliament in deliberating on the Electoral Amendment Bill [B1-2022] – it would go to the Portfolio Committee (PC) in the National Assembly (NA), and the Select Committee (SC) in the National Council of Provinces (NCOP). The process was not ending with the Committee. The Committee took note of all the issues that Members had raised. It would outline the process it would be following with the non-government organisations (NGOs).
Mr K Pillay (ANC) chaired the meeting while the Chairperson was disconnected from the virtual platform.
Dr Aaron Motsoaledi, Minister of Home Affairs, issued an apology from Mr Tommy Makhode, Director-General, Department of Home Affairs (DHA).
Mr Mosotho Moepya, Commissioner, Electoral Commission (IEC), issued an apology from Ms Janet Love, Vice-Chairperson, IEC, and Judge Dhaya Pillay, Commissioner, IEC.
Ms L van der Merwe (IFP) noted that she would have to attend another meeting at 11:00.
Briefing by the IEC on additional amendments to the Electoral Amendment Bill
Mr Moepya introduced the presentation. It followed discussions that had been held with Parliamentary Legal Services (PLS) and the Office of the Chief State Law Advisor (OCSLA). Most of those issues had been settled. A few would be brought up in today’s meeting because those issues could not be settled in the discussion sessions. The IEC had listened to the Chairperson that morning; he said that there was an urgency to resolve those matters. The IEC wished to resolve those issues. As for the rest of the issues, those were resolved, aside from the ones that would be presented that morning.
Mr Sy Mamabolo, Chief Electoral Officer (CEO), IEC, handed over to his colleagues.
Mr Masego Sheburi, Deputy CEO, IEC, said that the presentation would not be introducing new matters. All of the matters contained in the proposals were submitted and considered by the Committee in its meeting on 22 July 2022. The OCSLA and PLS had been consulted on the text, and they did not find any matters objectionable. In the majority of instances, the IEC and the legal teams had been able to find one another. As he went through the presentation, he would indicate areas where stakeholders held divergent views. The IEC was making that submission in order to honour and vindicate the constitutional injunction that was imposed on it by a seminal Constitutional Court judgement. In that judgement, the Court held that free and fair elections were rendered negatory if no proper administrative arrangements were made to ensure the delivery of those elections.
The IEC presented its proposed changes. Four clauses were presented. It also presented new clauses to be inserted as indicated in the presentation (please see the attached document.)
1. On page 3, after line 28, to insert the following new clause after clause 3, and to renumber the existing clause 4 as clause 5, and subsequent clauses accordingly:
“Amendment of section 30 of the principal Act, as amended by s 12 of Act 4 of 2021
4. Section 30 of the principal Act is hereby amended by the deletion of subsection (6).”
Mr Sheburi added that the IEC proposed that amendment because if the current wording remained in South Africa’s statute, it went against what the Constitutional Court said, namely that proper arrangement must be made for the preparation of elections. If that clause remained on the books, then the IEC may be ordered to reprint ballot papers for an election at very short notice. If that implicated an independent candidate (IC), it was the view of the IEC that it was deleterious to the proper administration of the elections. It wanted to reaffirm the scheme in section 27, that the dates in the election timetable must count for something. If a person had not complied with the dates in the timetable, they should not have another opportunity to do so, other than those limited occasions that were dealt with in the requirement for candidate nomination.
11. On page 6, after line 21, to insert the following new clauses after clause 5, and to renumber the existing clause 6 and subsequent clauses accordingly:
“Amendment of section 58 of Act 73 of 1998, as amended by section 10 of Act 18 of 2013
8. Section 58 of the principal Act is hereby amended—
(a) by the substitution for the heading of the following heading:
“Appointment of [party] agents”;
(b) by the substitution of subsection (1) for the following subsection:
“(1) Every registered party or independent candidate contesting an election may appoint-
(a) [two party] such number of agents as prescribed for each voting station [or, if voting or counting at a voting station takes place in more than one room or separately enclosed area, two party agents in respect of each room or area]; and
(b) [four party] such number of agents as prescribed for each venue where the proceedings provided for in Part 3 or 5 of Chapter 4 take place.””
Mr Sheburi added that these new clauses were points where the IEC and the stakeholders were not able to find each other, but the meetings were conducted in a very collegial spirit.
With the matter of party agents, the IEC raised it for the following reasons. In 2019, South Africa had 48 parties on the national ballot. No voting station in the country made observation possible with that number of persons. Even if one were to use a big venue, all that one would achieve would be diluting the observation, in that party agents would be positioned far from the observation points they need to observe. Over time, the IEC developed practices that it had instituted with political parties in the party liaison committees (PLCs), where it had derived principles that informed areas where a voting station, because of its size or configuration, cannot accommodate the number of agents. There, the IEC implemented the following: Parties take turns observing, and the IEC ensured that there was at least a representation for each party. If all could not be represented at the same time, parties would take rotations of a certain duration. For example, one agent representing four parties would take turns observing at a voting station for a duration. After that, the agent would be substituted by other candidates from other parties, so that at all material times, the IEC had agents representing more than one party at the voting station, in accordance with the configuration of the station. If the IEC straitjacketed into numbers, what that would do in practice at the level of a voting station was that one would find obstinate candidates, who would insist that the law gave them the authority to be represented by two party agents, and the IEC could not amend their right to observe by way of regulation. The Bill should just deal with the principle that a candidate, be they independent or a party candidate, is entitled to be represented by a party agent, and that the details are dealt with by way of regulations.
He wished to indicate that late yesterday, the IEC was able to finalise a draft of Schedule 1A of the Bill. All the offices agreed to the draft, and the IEC asked that the draft circulated the previous day for the meeting be substituted by the updated draft that the IEC finalised with the OCSLA and PLS late in the evening. The only changes related to item 7(2)(a), 7(3)(d), 7(4)(b), and item 23. Those changes did not change the substance of the Schedule as it was circulated the previous day.
Briefing by the State Law Advisor, consideration and adoption of the A-list of the Electoral Amendment Bill
Ms Suraya Williams, Principal State Law Adviser, OCSLA, presented. She was joined by her colleague, Ms Sarah Govender, who would co-present the A-list. The A-list would speak to the Amendment Bill. Where there were changes proposed to the Amendment Bill, the A-list would speak to that. Where there were additions, the A-list would also reflect those circumstances. The OCSLA would read A-list in conjunction with [B 1-2022].
The OCSLA presented: Proposed Amendments: Electoral A/B [B1—2022]
Ms Williams added that the IEC presented some proposed amendments that it wished to make to the Schedule as well as the Bill. The OCSLA had not included the IEC’s proposals in its A-list presentation.
The Chairperson noted what Ms Williams said.
He informed the Members that Ms T Legwase (ANC) was involved in an accident, but had managed to join the meeting. Ms M Modise (ANC) had to rush her child to the doctor, and would indicate if she wanted to participate in the meeting. A new Member, Mr T Mogale (EFF), would also indicate if he wanted to participate.
Members would be commenting on the IEC and OCSLA presentations. There would then be responses from the IEC, legal teams and the Ministerial Advisory Council (MAC).
The Committee had deliberated on all the issues reflected on the A-list; there were no new matters.
Ms L Tito (EFF) said that she would ask questions after Mr Mogale had asked his questions.
Ms A Khanyile (DA) felt that the issues presented were ones the Committee had deliberated on previously. She felt that her questions were covered at that moment.
Ms T Legwase (ANC) felt that it was important for the Committee to note the letter that the Chairperson mentioned in his opening remarks. One should say as a Committee of Parliament, Members were embarking on this process, and taking a directive that was from the courts. It worked hand in hand with those from the legal side, with the legal knowledge, and with different stakeholders. It would only be fair for the Committee to respond to the process that it was taking to try and deal with all the dissatisfactions that might be coming from members of the community, whether as NGOs or other organisations. It was also important to give an update through a response via letter on the process that the Committee was embarking on. What the Committee was doing was per the directive of the court and it was its responsibility as directed by the courts to be undertaking that process.
On the presentation made by the IEC, she wanted to agree with all the clauses from 1 to 4 and also on the paragraph about including the definition of “natural person”. She did not see a problem with it. She thought that clause 4, paragraph 10 was fair because in each and every election thus far, a timetable was always available and accessible on time. The Committee should not even open room for any individual that would want to contest the elections to derail the work of the IEC or to derail the elections by wanting to claim that they have not gotten information, and therefore, they would want to resubmit or make a submission after the closing date had already passed.
On the matter of party agents, she felt that the submission was also well-received, as it was agreed that it must be left to the regulations.
On the A-list, it was a true reflection of the deliberations of the Committee. She was going to suggest that the Committee adopt it, but she suggested that the Committee note the A-list until all the issues raised by the IEC were included in the A-list. With the A-list, she was satisfied to say it was a true reflection of all the deliberations that took place in the Portfolio Committee.
Ms M Molekwa (ANC) agreed with Ms Legwase on the IEC. She asked for clarity on the legal presentation. She felt that the statement presented may cause confusion, or any person could take advantage of that statement. She asked the legal team to clarify the point that said half of the seats filled by the ICs shall be referred to as the regional seats and half of the seats contested by the political parties shall be referred to as a compensatory seat. On this issue, the interpretation may be different, because each seat allocated to the independent or political party would be allocated in terms of the election result or outcome, and the number of voters by the independent or the political parties. She asked if the legal team could elaborate and put more emphasis on those points so that they would not cause confusion, or open a loophole for anyone to take advantage.
Ms van der Merwe wanted to comment on the letter that the Chairperson raised in his introduction. She said the Committee must thank all South Africans and communities for taking an interest in the process before the Committee. The Committee welcomed the inputs, and there was still ample opportunity for stakeholders to engage, for example, when the Bill went to the NCOP. The Committee had said before that it did not think that the process of electoral reform would end with the process that was before it. Hopefully in the future, it would be able to look at additional amendments and processes.
About the IEC proposals, she also did not see a problem with the inclusion of a “natural person”, as included there, and also with the submissions that the IEC made around the issue of party agents toward the end of the document.
With the A-list, she felt that it included a true reflection of the Committee’s discussions over many months around those issues. She wanted to thank the IEC and the Committee’s legal advisors for all the support that they had given the Committee up to now.
Mr A Roos (DA) was very happy that Ms Legwase was okay. He offered thoughts and prayers to Ms Modise with her baby in hospital, and hoped everything was fine.
On the letter referred to by the Chairperson, he recalled that he also raised this in the last meeting. The Members were quite satisfied that stakeholders had sufficient opportunity to engage. The Committee needed to ensure that such engagement was always a fair opportunity. It also needed to ensure that those with more resources did not get more of an opportunity to engage than those with fewer resources, e.g. those that got on buses and drove for several hours to come to a hearing in a far-flung town in the North West province. The DA was satisfied that the parties did have an opportunity to engage, and that there was also further opportunity in the NCOP process.
On the IEC proposals, the DA agreed with the initial additions and the addition of the natural person. With item 6, it was still the DA’s view that that 30% should be 20% but he recalled that the Committee had voted on that. It held that view on the basis that the Committee was talking about a less restrictive environment, and the law was now allowing independent candidates to participate in every province, to be less restrictive. In the DA’s view, 30% was a little bit higher than it needed to be. But nevertheless, the rest of that clause was acceptable.
On the omissions, the DA agreed as well. If one wants to be in a leadership position in Parliament, to run the country and hold the government to account, one should be able to get one’s lists right, and one should be able to get one’s numbers correct.
On the party agents, he was concerned that what was being proposed was very broad. His question was: what happens if there is now a very small tent arranged and somebody decides only one person can be there? Who determines that if there are absolutely no minimums? Unless he misunderstood that section, it looked like the Committee was saying that a number of agents would be prescribed. He did not know if that meant “at least one” or “at least a certain number”. The challenge could be that if one agent is prescribed, who will be that agent, and how would that reflect on the perceived fairness of an election if the one agent is a party agent of the incumbent ruling party? He believed that there needs to be some minimum there. Even if there is a rotation to ensure that, at the very least, if there is a representative of an incumbent party, then there are also representatives of the opposition in some form. He felt that it was “a little bit dangerous” to say that one could have some number of agents, and then there could be a determination that that might be one. In previous inputs by the legal advisors, if he remembered correctly, they suggested that there should be at least one. There should be some sort of an absolute minimum to ensure free and fair elections. His concern was that there was no minimum in the current form of the Bill. One could have no party agents as far as he understood it. He asked for the IEC's feedback on that matter and how it had considered that.
With the A-list, it seemed to be a correct representation of what the Committee had voted on and agreed to.
Mr T Mogale (EFF) had questions about the requirements for ICs. He felt that the threshold was very low. He disagreed with Mr Roos’s view that the percentage could be a bit lower. It needed to be set very high, because people were contesting to be in Parliament, so the bar could not be lowered for anyone. He felt that the Committee needed to set the bar very high. If one started at a minimal level, it would be more likely that a lot of people would be contesting as independents which was not, in his view, desirable. Then “any opportunist” could just come up and want to contest, and one could end up with “the longest ballot paper in the world”.
He also asked the IEC for clarity on the formula for compensatory seats. He then asked if he could ask the rest of his questions at a later stage after retrieving the relevant notes.
The Chairperson illustrated how far the Committee was in the Bill process. He noted that the Committee had deliberated on numerous issues, including considering consensus on the issues. The A-list articulates the proceeding of deliberations. The Committee had already dealt with the matter that Mr Mogale was raising. But it was good that he was raising that point when the A-list was being discussed, and he would be welcome to raise those issues when he returned to raise further points.
Ms Tito agreed with Mr Roos’s points on party agents. How did one determine which agent must be inside the voting station? She felt that the Committee might create a “fight” in terms of choosing who must be in and who must be out. She suggested having one agent for each party and IC inside the voting station.
Mr Pillay welcomed Mr Mogale to the Committee. It was very important for him to acknowledge that at the outset. He observed that the Committee had received a lot of criticism; that it had been stalling and delaying; and that political parties did not want to allow for the participation of independents. He felt that people “may be disappointed” when they saw that the Bill process had reached finality. He also appreciated the work of the Chairperson and all Members, and in particular, all of the political parties, for having reasoned and deliberated much on the Electoral Amendment Bill. He particularly appreciated that political parties were able to find each other not because they had an agenda, but because they appreciated and upheld the Constitution of South Africa and the rule of law. He wanted to request that the presentations made by the IEC form part of the A-list, and his proposal was for that to be done almost immediately, if possible so that the Committee would then be able to then adopt the A-list. In respect of the A-list, he agreed with all of the Members that all of the deliberations had been captured correctly. He wanted to propose that the Committee adopt the A-list with the inclusion of the IEC’s proposals. Perhaps the process was going to be that the IEC included its proposals and then the Committee adopted the A-list. Insofar as the way the A-list looked apart from the inclusion of the IEC, he was happy as a Member of the Committee to adopt it.
He also wanted to make a note for purposes of information sharing. While the Committee had already deliberated on and accepted all the items, he wanted to refer to clause 11 in terms of Schedule 1A item 4. Item 3(4) said that:
(4) A candidate—
(a) may be nominated on a party’s regional list for one region and the national list of a party but the same candidate’s name may not appear on more than one regional list for that party; or
(b) may be nominated as an independent candidate in more than one region.
He wanted Members to notice that while the Committee had accepted, deliberated and agreed that independent candidates would be able to contest more than one region, it had limited political parties to only a single region. He thought that that was an important point to note because while the Committee had deliberated on the inclusion of independents, it would also have to be fair to political parties that had already been contesting the space of elections.
He was hopeful that the Committee would be able to complete that process in the meeting if it could allow for the IEC’s comments and submissions to be included in the A-list, and if it could then agree that it could adopt it. He did not see the part about votes not being aggregated. Perhaps he had missed it. He still believed that there needed to be a part that says the votes are not aggregated.
On the timetable, he agreed with Ms Legwase that the Committee could not allow for any extensions. When there is a timetable that is accepted, all parties, be they independent candidates or political parties, must adhere to the time frames and it should not be open to anyone else.
With party agents, he did not want to delve into that too much. He reminded Members that one has voting stations across the country and all provinces. In most cases, and from local government experience, one does not have party agents, especially when it is independents. He suggested that the Committee may not want to be “hard and fast” on that. The principle of allowing agents were there, and the Committee could then allow the IEC to unpack that. The IEC could also work with that principle given the circumstances around those voting stations. He felt that the principle was there, and the Committee should accept it.
Mr Mogale added to his points. He asked about verifying the list that ICs have to present to the IEC. How would the IEC verify that, specifically whether they were legitimate people? How would the IEC verify that those people who have been spoken to by the independent candidate and who have appended their signatures to that list were legitimate? The requirement was that such people must just put their name, surname, identity number, and signature. How would the IEC verify without a cell phone number or an address of that particular person, for example?
On regional seats, the A-list said that the Commission must determine a fixed number of seats reserved for each region for every election of the National Assembly, taking into account available scientifically based data in respect of the voters and representation by interested parties. Could the IEC provide clarity on that particular clause?
The Chairperson requested the IEC to start, then the OCSLA would respond, and thereafter the PLS. The Committee would also ask the Council that was advising the ministry to comment if it wished to do so. There was consensus that the Committee must move to adopt the A-list. The PLS and the OCSLA would need to be excused from dealing with the matter of the A-list. The entities would return to the meeting, and the Committee would adopt the A-list.
Mr Moepya responded to Mr Roos and Ms Tito’s questions. He appreciated that having a minimum number of party agents was desirable. There were many reasons why it was not the ideal thing to do. One, if the IEC did put a minimum number, it inadvertently said that no voting could occur if there was no agent. That was not the best way to proceed. There were many instances where either late, appointed late, or not available, which would have the effect of stopping voting. Based on the context of how the matter was being discussed, based purely on the numbers, the IEC was saying that where it had a small tent, and many candidates, then for the presiding officer, the regulations would make it abundantly plain that there must be an arrangement that would facilitate the observation by party agents being meaningful. It was possible that even if one had an agent from each party, one would not be able to take them all at the same time. For example, where there were 48 candidates, it may well be that it would not be possible to have 48 people inside the venue. The IEC would rotate the agents, whether it was hourly or every two hours. The IEC was currently doing rotations. In ordinary circumstances, no party agent could be stopped; if there were two party agents at the station, then the presiding officer could not stop one of them. There was no bar on observation by party agents at the stations.
Mr Mamabolo talked about compensatory seats. The Committee had deliberated on the matter in previous meetings, and agreed that there would be 200 regional seats, and 200 for national to national compensatory seats. On regional seats, 200 must be distributed to the nine regions (provinces). That distribution has to happen on the basis of objective data related to voters. That objective data was the number of registered voters per province. The IEC would use that data to distribute the 200 seats proportional to the number of registered people in each province. The IEC would do that for every election, i.e. ahead of 2024. That distribution would happen, the IEC would invite political parties’ inputs, and the IEC would then make the final determination. That meant that in one election, the number of regional seats for Gauteng might differ from the next election depending on the number of registered voters. The more people one had on the provincial segment of the voters’ roll, the higher the number of regional seats, because of the proportional distribution based on the number of registered voters. The compensatory seats were the second group of 200. The Committee agreed that political parties would be the ones contesting the compensatory seats. However, in the calculation embedded in the current Schedule 1A, one would work off 400 instead of 200 seats. The reason for that was using a greater number was more likely to realise overall proportionality than if one was working solely off 200. It also gave one a smaller quota than would otherwise be the case, because one’s divisor was 400 rather than 200. The IEC would work off 400 and then subtract seats already gained in the regions. That would then give one a final allocation per party. That was intended to restore proportionality, because regional elections, by their very nature, had a distorting effect. Working off the figure of 400 was an endeavour for restoring overall proportionality.
On the verification of supporters for ICs, the IEC’s idea for verification was that it would provide a web-based tool where those supporters would have to be captured using an identification (ID) number. The voters’ roll would be the base against which the verification happens, and answers the questions of whether the person is registered in the right region; if they are registered at all; if their ID number is valid, etc. The independents could then keep a running tally. At the point where there was a close of nomination, independents ought to have captured the required number of signatures of supporters. The toll would also help independents realise whether the person who purports to be supporting them is a registered voter or not. The independents would be able to make that determination instantaneously, rather than on some future occasion. Independents could then determine whether or not they need more supporters. The IEC would keep discussing the amended regulations in the National Party Liaison Committee. That was a detail it would be dealing with.
Ms Williams responded to questions. She observed that when the OCSLA drafted the schedules to the Bill, it largely used the draft that the IEC presented and the presentation made to the Committee Chairperson. Schedule 1A was very technical in nature. It required a certain type of skill and expertise regarding electoral laws. That was a “minefield on its own”. The OCSLA was largely guided by the IEC. It did not have the skills to comment on the formulation of votes. It had considered the legal terminology to make sure that Schedule 1A was consistent with the terminology used in the Constitution. It had also considered that when looking at drafting form and style. Regarding the schedules, it deferred that to the IEC.
On seats, she wanted to refer to item 7 in Schedule 1A, which spoke to insufficient names on the party list and independent candidates. She then referred to 7(2)(a), which read as follows:
“If an independent candidate has been allocated one seat in a region, and where he or she has received a number of votes in excess of the number of votes required for the allocation of that one seat, he or she shall forfeit the remaining votes.” 7(2)(b) read as follows:
“Where an independent candidate has received the number of votes to be allocated a seat in more than one region, he or she can only be allocated the seat in the region where he or she received the most number of votes and shall forfeit all excess votes received.” She pointed out that that was similar to what the IEC proposed. That provision accommodated the IEC’s concern.
Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, Constitutional and Legal Services Office (CLSO), responded to questions. He wanted to emphasise three points that had come out in the discussions. He started at the beginning of what Mr Sheburi said. The meeting on Monday 22 August with PLS, OCSLA and the IEC was indeed collegial and cordial. The entities were able to find each other on many issues, except on the points that the IEC raised. The IEC had to implement the Bill. PLS may have its ideas, but the IEC understood the practicalities and the realities of implementing an electoral law. PLS thus said that even if the entities disagreed on one point, the IEC must have an opportunity to put it to the Committee. PLS was glad that that deliberation had happened.
Secondly, PLS was happy with the A-list presented today by the OCSLA, which was also the outcome of the previous day’s meeting, and the past week’s work with the rest of the legal team. There seemed to be general consensus that the A-list reflected the decisions that the Committee had made. PLS accepted that the A-list had to be updated in line with what the IEC proposed in its presentation. The A-list would assist PLS with getting to the B-version of the Bill.
For him, there was an issue on which a decision needed to be made, namely the issue of agents. There seemed to be two proposals before the Committee on the issue of agents. There seemed to be a proposal in the A-list that there needed to be a minimum of one agent for every contestant. The IEC was proposing the wording of “every person is entitled to”, and the rest would be left to the IEC to regulate. PLS needed a decision from the Committee as to which wording it should go with to wrap that matter up. He was confident that PLS could have another meeting with colleagues on the A-list and wrap up that matter, so that it would be able to assist the Committee in adopting the A-list and move to the B-version. The PLS would then be able to present the B-version based on what had been agreed to.
Ms Telana Halley-Starkey, Parliamentary Legal Adviser, CLSO, did not have anything to add and indicated that her colleague, Ms Daksha Kassan, was not present in the meeting.
The Minister said the Department's legal advisors were not present in the meeting, but the Acting Head of Legal Services was present.
The Acting Head agreed with Adv Njikela’s remarks, specifically that the legal teams be given time to meet and discuss the A-list in respect of the matters where there was no convergence. It would then be possible to present a B-version covering the issues raised by the IEC. He would leave it to the Committee to advise on how to proceed.
The Chairperson observed that the Committee had dealt with the issue of agents’ participation. There was deliberation on that matter, and it considered the submission made by the IEC and resolved that. That issue arose from the A-list, and it was correct for Members to interact with it. The Committee decided to leave the matter of agents to the IEC to regulate. That was the guidance that the Committee received. He asked Adv Njikela and the OCSLA how the Committee could deal with giving time for IEC’s submissions to be incorporated into the A-list, which the Committee would then formally adopt.
The Chairperson said that the idea was to release the legal team, and have it come back at 13:30. He estimated that the Committee would be done with the other items on the agenda by then so that it could adopt the A-list.
Adv Njikela said that that was exactly what he was going to propose. While the Committee dealt with the other agenda items, the legal teams could perhaps be excused to clear up the outstanding issues.
The Chairperson asked Members to comment on Adv Njikela’s proposal.
Ms Legwase said the proposal was fine if it was doable by the end of the meeting. It depended on whether the legal team could compile the whole A-list, including the issues raised by the IEC.
Ms van der Merwe was not sure if it was doable for the legal team by 13:30. She suggested a Thursday morning meeting.
Ms Tito seconded Ms van der Merwe’s suggestion.
Ms Khanyile said that the legal team could guide the Committee on whether it would be able to do everything that day. If not, then the Committee could have another meeting that week if allowed. The DA had a caucus meeting on Thursday morning. She suggested that the Committee find a suitable time that week, if the legal team agreed that it would not be able to come back at 13:30 that day.
Mr Roos was covered by Ms Khanyile.
Ms Molekwa agreed with Ms Legwase.
Mr Mogale was covered by Ms Tito.
Mr M Tshwaku (EFF) agreed with his colleagues. He proposed to meet on Thursday, to give the legal team time to process the amendments. He agreed to have a meeting on Thursday. He thought it would be a relatively quick meeting since the Committee would be reviewing amendments to the A-list.
Mr Pillay raised a point on agents. For him, the IEC’s submission on wording was a better option for the wording in the A-list. Members agreed with the principle that every contestant was allowed an agent, and the rest would be regulated in terms of the IEC. He proposed taking the wording submitted by IEC, and then a correction could be made.
On aggregation of votes, he felt that the item presented by the OCSLA did not sufficiently cover it. The Committee had to ensure that it did not allow for any legal challenges or loopholes. It was fine to say that one got a seat based on where one received the highest number of votes. But the discussions within the Committee continued to remind Members that they must ensure that the line about not aggregating votes was in the Bill.
In light of the submissions from Members, he wanted to agree that the Committee not give the team such a limited time period, because it might be rushing things to come back at 13:30. He proposed that the Committee looks at an alternative meeting date. He also agreed that the meeting should be after midday, since most Members were part of caucuses on Thursday morning, and the Committee should look at meeting on Thursday afternoon. It would then deal with the item of adopting the A-list.
The Chairperson asked the legal team to give guidance on a timeframe. Members were cautious of not pressurising the legal team to finalise the A-list. There was not going to be a debate; there were just going to be a few changes. Once the Committee had adopted the A-list, what would be the time frame for the legal team to look at the B-list? The Committee's decision would be informed by whether the legal team could come back in that day’s meeting, or whether it would come back on another date. The Committee Secretary would assist with the process of getting meeting dates and items added. The Committee’s programme had already been authorised.
Ms Williams said that the OCSLA did not have the expertise to deal with drafting Schedule 1A. She felt that the IEC would be best placed to deal with that. She had heard Mr Pillay’s concerns. She proposed that the IEC formulate a draft proposal for the Committee's consideration that the OCSLA could include in the revised A-list.
With the time frame, the OCSLA was guided by the Committee. It would be available on Thursday.
Adv Njkela accepted the wisdom of the Committee that Thursday may be a realistic time if PLS had to consider the issues raised by the IEC and Mr Pillay. Thursday may be the most suitable time for PLS to present the final A-list to the Committee. He had checked with his colleagues while Members were speaking. It seemed that there was a consensus that Thursday may be a reasonable time for PLS to present a comprehensive A-list that covered all of the issues raised today. PLS would also need to consult with the IEC. PLS would have to arrange a meeting between that day and Thursday to ensure that all bases were covered.
Mr Eddie Mathonsi, Committee Secretary, suggested holding the meeting at lunchtime if the Committee was going to have a meeting on Thursday. He could apply for the Committee to have a meeting on that date.
Mr Moepya said that he had consulted with Mr Mamabolo and his technical team; the latter was happy to prepare between Tuesday and Thursday to present a revised A-list.
The Chairperson said that the Committee’s decision process was based on consulting Members and stakeholders so that the Committee’s decision became collective in the end. The Committee moved from this meeting that it had considered the A-list that reflected the deliberations of the Committee. It moved from this meeting that the submission of the IEC presented today needed to be consolidated into the A-list. There was a matter about the wording that needed to be affirmed. There were issues on the regulations that would be dealt with in the regulations. There were decisions that the Committee had carried, both in consensus and voting in its deliberation. Members had provided the guidance that when the Committee meets on Thursday, it would look at the issues that had been included into the A-list, and adopt it, so that it was on record. It needed to pay attention at that point to ensure that it had exhausted all of the deliberations that the Committee had been dealing with. It did not go on recess; it interacted with the Amendment Bill. He appreciated the collective work of the Members and stakeholders who had contributed. There was another layer of the consultation process of the Political Liaison Committee, where the IEC interacted on related matters. He felt that some of the issues would find expression at that level, where consultation would happen. The Committee Secretary would inform the committee of the next meeting date; he had proposed meeting at 13:00 for the Committee to finalise the A-list. Political parties needed to meet in the morning for party caucuses. The Committee would meet on Thursday to finalise the A-list and adopt it, and then proceed to the B-list.
The Chairperson thanked the Minister and Deputy Minister, and the advocates who were assisting the legal team. He also thanked PLS and the OCSLA.
Ms Williams requested clarity on the process. Mr Pillay raised a concern about the aggregation of votes. When the IEC submitted its proposal on the aggregation of votes to the OCSLA, should the OCSLA include it in the A-list?
The Chairperson said yes; that was the understanding of the deliberation, and the decision taken previously by the Committee.
Briefing by the Minister of Home Affairs and Commissioner of the Border Management Authority (BMA) on the implementation of the BMA
The Minister introduced the DHA delegation: Dr Mike Masiapato, Commissioner: Border Management Authority (BMA); Major-General (Maj-Gen) David Chilembe, Deputy Commissioner: Operations, BMA; and Ms Jane Thupana, Deputy Commissioner: Corporate Services.
Dr Masiapato said that the Agency is incubated as a Branch of the Department of Home Affairs (DHA). By 01 April 2023, the BMA will move out of the DHA and be a Schedule 3A standalone entity responsible for the country’s borders.
In July, the Agency welcomed the first cohort of young men and women who have undergone a rigorous selection process, including interviews, physical training and orientation, who will serve as Border Guards. They were deployed within the vulnerable segments of the borderline for law enforcement purposes.
This recruitment process will increase substantially going forward as the BMA assumes responsibility for five streams of functions performed by various government departments at the border.
All the Border Guards were subjected to vetting and a lifestyle audit before their employment was finalised.
The Agency has assessed the borderline and identified areas that are vulnerable. The land border line in South Africa is 4 773 kilometres and it has been divided into ten segments. Not all segments are problematic. The Agency has identified five problematic segments. That is the border line around Beitbridge with Zimbabwe, Lebombo and Khosi Bay with Mozambique and Maseru with Lesotho.
Dr Masiapato said that a lot of work had taken place with National Treasury, particularly on the capacitation of the BMA and the allocation given to the branch in the current financial year. Currently, there are discussions in view of the upcoming financial year.
With the legal stream, Dr Masiapato said that the draft proclamation had already been given to the OCSLA. The OCSLA had already given the BMA the go-ahead. Everything that had been done was according to the book, and the respective ministers had signed the draft proclamation. The documents were currently with the President to look at and sign. Once the President signed, then the functions would be officially moved into the branch within the department, that is the BMA.
With the financial workstream, the chief financial officers from the respective departments identified the finances that must follow people as people follow functions into the BMA. That stream also dealt with people’s salaries, the operational cost, and other issues related to the financials.
With infrastructure, according to the BMA Act, section 38, the BMA was expected to take ownership of the infrastructure in the land ports. There were currently 53 land ports in total. At that point in the current financial year, the BMA had identified 31 ports audited by the Department of Public Works and Infrastructure (DPWI). The BMA expected to transfer those ports by 1 April. The balance of 22 ports would be audited in the next financial year, With the view to those coming through in 2024.
Dr Masiapato noted that the BMA would have a National Targeting Centre (NTC), which would be an intelligence outfit guiding the work of the BMA in border management. Each port would then have a Port Targeting Centre (PTC), of which those PTCs would then link to the NTC from a system point of view. Arising from that, the slide on page 18 of the document represented some of the activities that the BMA would be advancing. The BMA would have a commander for the NTC. There would be lots of activities done at a pre-port level, which would be intelligence-led. It would then be able to identify problematic individuals or cargo that needed to be dealt with before the arrival at the port (pre-port intervention). There also had to be activities that the BMA would do at the port (port intervention), and there would also be post-port intervention activities. In that instance, the BMA should be able to identify individuals who are undesirable, or who were wanted by other global communities. The BMA should then be able to hand such individuals over to Interpol for the purposes of facing particular consequences. At the same time, if there was anything domestic, such individuals would have to be brought to the Directorate for Priority Crime Investigation (DPCI) and other structures. For those that were in South Africa illegally, the DHA Inspectorate would have to address that, and get such people deported. This model would be used for assisting the BMA to deal with all of the issues it faced.
Ms Molekwa appreciated the presentation. She also wanted to note the “sterling work and progress so far”.
Ms Tito asked about the status of cooperation with SARS, excluding customs functions, given the BMA legislative mandate to manage the legitimate movement of goods.
Mr Roos said it was good to see the deployment of the 200 border guards. He felt that gave people confidence that something was happening. He asked about the approach and how things would work long-term. Dr Masiapato mentioned that the multi-agency approach had not worked; it had created fragmentation, etc. The current situation seemed to be that some roles were fully integrated, while others were managed under implementation protocols. When the BMA talked about the single command and control, would there be a situation where the SAPS and the SANDF, etc. around border posts reported to some sort of BMA structure in terms of command and control? How integrated would that be? Would the BMA only play a coordinating role? When the Bill was being discussed, there were some concerns about the mandate of the SAPS and the SANDF, and how that would all work together. What did the BMA mean by a single command and control? Would these entities have persons that reported to the BMA around border functions? Or would the BMA coordinate the entities’ functions?
The SAPS, the SANDF and the Navy had large budget cuts, and a lot of their infrastructure was getting old. Had funding for implementing the BMA over the entire implementation life cycle been secured yet from the National Treasury, or would it be taken on a year-by-year basis? If funding for the whole implementation had not been secured, could the BMA give the Committee an idea of the amounts that were at risk that had not been secured? What were the unfunded mandates or plans? What were the items that were then under threat? If that funding did not come in, then what items would be deferred?
On the border guards, the focus was on staff at the moment, which was understandable. Was there an integrated plan for surveillance, particularly force multipliers? The Committee did not see much on the Navy and the maritime borders. The maritime borders were a massive area, but there was a complete focus on the land borders. Smuggling and illegal fishing were happening on the maritime borders. There have been calls recently in those areas for an integrated plan for surveillance in South Africa. As many people as the BMA were putting on the ground, that needed to be supplemented by force multipliers such as technology, aerial surveillance, etc. What were the BMA’s plans on that surveillance to supplement the border guards, etc. that were being appointed?
Ms Legwase asked if there had been engagement with stakeholders such as organised labour. If yes, were there any concerns that had been raised that could be a challenge in the rollout of the BMA?
Were there any administrative functions that the BMA would be sharing with the DHA, in order to save costs on unnecessary duplication?
She recalled that there was the issue of vigilante groups organised by farmers. How was that issue resolved? Farmers were dealing with that issue themselves to prevent undocumented migrants committing crimes on their land.
Ms Khanyile asked what role the BMA had played in repairing the porous (and often non-existent) border fence between South Africa and Zimbabwe, as witnessed by the Committee in 2021.
On border policing and ports of entry, Dr Masiapato mentioned that much work had been done at Beitbridge and other ports of entry. Her question was on Lesotho. Dr Masiapato mentioned that a lot of work had been done on the issue of illegal migrants around the area and firearms. All were aware of the incident involving zama-zamas that happened in Krugersdorp. What measures were in place to ensure that a similar incident did not happen again?
Dr Masiapato also mentioned that the BMA tried to stop people from their point of departure if they were not desirable for entering South Africa. Were these people who had been stopped from coming into South Africa documented persons? Was it possible to identify undocumented persons that were undesirable for entering South Africa?
Mr Pillay said that the BMA had come a long way. It was important for the Committee to acknowledge the strides made in ensuring that that was a smooth process.
He heard that the BMA was currently just three people, and that the BMA did not exist, but there was a plan for it to come into existence. With time frames, what specific timeline did the BMA envisage in order for the BMA to say it was functional and operational?
To what extent would the administrative functions of the BMA be shared with the DHA, in order to save on costs of unnecessary duplication?
He appealed for the Committee to be invited to the launch of the BMA. He felt that it was important for the Committee to be on the ground and part of that.
The Chairperson said that it was evident that the constraints to implementing some of the programmes lay in the budget allocation. That issue was raised previously in the scope of the BMA vis-a-vis the budget allocation. That would contribute to some of the programmes not being fully implemented, and would be shown in the annual performance plan (APP) with the targets to be met in the financial year under review. He wanted the Committee to emphasise that, since in the financial year 2023/2024, full integration would be in 2023, at the end of the financial year. Did the BMA think that would be an obstacle to executing some of the key programmes, given that South Africa was looking forward to that new initiative and the security threats on the borderlines? Ms Khanyile emphasised the oversight visits the Committee carried out to two border lines. Would the budget allocation in the next financial year be sufficient? He did not think that the budget was sufficient for the BMA to fully integrate the work it planned to carry out. It was something that the Committee needed to emphasise so that it did not come and raise issues where the BMA made targets and did not meet those. It also did not want the BMA to come back to look for funds. The Minister needed to take up the matter of the budget implications. The Committee needed to get a full picture of the Minister’s understanding of the budget implications.
On the border guards, sufficient vetting was conducted with those guards who had already been deployed in various areas. Recently, Dr Lubisi and his team presented a “scary” report relating to the issuance of permits and visas. He had highlighted that “syndicates” working in the Department and there were threats at the borderline. Such threats included syndicates that smuggled people and various things. What mechanisms were in place to monitor the border guards to ensure they would not be vulnerable to crime-related matters? It was important to raise that matter, so that one did not have a scenario where, for example, the BMA found that over the next two years, of the 200 border guards, almost 60% were linked to criminal syndicates. What were the monitoring plans?
He noted that the Department had a youth cadet programme. He was unsure where the programme was, and where those young people were. He was raising it both in the context of the BMA recruitment period, and the DHA’s new initiative to employ 10 000 youth. The DHA had invested in those young people – what programme were the youth part of, and what was the plan to integrate the youth into the system, so that the investment the DHA put into them was not lost? The government had taken a deliberate call to employ those young graduates who did not get employment. That employment initiative was new. Additionally, what was the attitude of the BMA towards employing youth, women and people living with disabilities?
Dr Masiapato responded to Ms Tito’s question on the implementation protocol between the BMA and SARS, in relation to the fact that SARS was excluded from integration in the BMA. At the same time, section 5, paragraph B said that the BMA was responsible for facilitating and managing the legitimate movement of trade and services in the South African border law enforcement area and port of entry. That sounded like a “double mandate issue”, but it was clear in section 4(2) of the Border Management Authority Act that: “Border law enforcement functions will exclusively be done by the Border Management Authority, and the border guards in particular”. This meant that when it came to facilitating the movement of persons and trade and enforcing the law in a port of entry, or a border law enforcement area, the BMA would be responsible for that. The presence of SARs in the port was more technical in nature. The presence of SARS inside the port was not necessarily to do border law enforcement, even in terms of trade facilitation. SARS’ presence was more technical in nature, which involves being able to look at the declarations that would have been done by the traders vis a vis the goods that they were exporting or importing, etc. But the BMA would ultimately be doing border law enforcement. In the longer term, when the country was stabilised on those particular issues, it became clear that that particular function, done by SARS inside the port itself, could still be done in the office. For now, it was “not much of a problem”. The technical aspects and responsibilities were defined in the implementation protocol. This protocol indicated that the border guards would do the law enforcement aspect. This meant that if there was anybody who had subverted the legal requirements around the provisions of the law, then the border guards would deal with that. However, the guards would still be doing that alongside colleagues from SARS operational on the ground. The work was complementary and not necessarily competitive. The responsibilities of each entity were clearly defined in the implementation protocol.
Mr Roos had asked about the timelines for integration. Dr Masiapato reminded the Committee that he had spoken about the work of the legal workstream in identifying the functions. The BMA had taken the functions to the OCSLA. The intention was for the OCSLA to look into whether that process was compliant with the relevant legal prescripts. The OCSLA had already given the BMA its approval that the BMA had done things by the book. Everything was now with the President. Because the President was still to consider the issues and ultimately sign, then at the point of his signing, the functions would then be moved into the BMA. The full integration, i.e. at the point of convergence between capacitation and integration would be by 31 March 2023, and full integration itself would be by 1 April 2023. The BMA was not yet operating as an integrated entity; hence it was still using the coordination model as far as the operational work was concerned.
On the SANDF and the SAPS, the roles of those entities were in the implementation protocol between the BMA and the SANDF, and the implementation protocol between the BMA and the SAPS. With land borders, the BMA said that the border guards would take over the responsibility regarding access control. The border guards would be doing border law enforcement. Practically, if one looked at the port of entry itself, one did not have the SAPS stationed permanently inside a port of entry. However, should a crime happen inside the port, the BMA should be able to activate the SAPS; the nearest police station should be activated. If somebody was killed inside a port, then that was a crime scene. The dead body would have to be administered, and on that basis, the SAPS would then come and take over that responsibility. If one went to OR Tambo International Airport, one would see that it had the port side and the commercial side (e.g. shops, etc.). With the access control area of the port at OR Tambo, one would not necessarily need the SAPS there. But one would still have the SAPS doing classical policing on the commercial side. The implementation protocol defined the manner of the relationship between the BMA and the SAPS. If people went to a land border such as Beit Bridge, for example, and said that they were going to strike at the port entrance, the border guards were not meant to deal with issues of public order. The SAPS public order policing unit would then be called in to manage that particular environment. If, for example, the border guards intercepted a stolen vehicle that might have been hijacked somewhere in Gauteng, and it was intercepted at a border, the border guards would then activate the SAPS to come and deal with that as a crime issue. The detectives would investigate who was the owner of the car and what happened to the owner, etc. The only thing the BMA was trying to resolve as part of the model was to have the SAPS sitting in the port doing access control. That kind of work was not a policing function, and then the BMA would be responsible for that part. No command and control needed to be happening between the BMA, the border guards and the SAPS. It was just about the border guards activating the SAPS when there was a need to do so.
On the SANDF, the constitutional mandate of the SANDF was very clear. It was responsible for border patrol, border protection, and ensuring the country’s territorial integrity. There is a 4 772 km border line; there could not be any shortage of work. The BMA and the border guards would then take care of the borderline's vulnerable areas. Those were the areas where there was too much civilian activity, people stealing things, and illicit goods moving in and out, etc. Those areas were already identified, and the BMA and the SANDF identified those areas. The border guards would be stationed in those areas. The SANDF would do patrols, meaning that they would be moving up and down the border, and to mountains, etc. The SANDF would be strategically deployed in those areas. Dr Masiapato reminded the Committee of the integrated nature of communities with neighbouring countries. The border guards would be going to such integrated areas. Soon, the BMA would be doing a programme where the border guards would be deployed at formalised crossing points (previously informal) to ensure that criminals did not take advantage of those areas. Those issues were central to the work that the BMI was supposed to be doing. He was aware that it was a parliamentary question that needed to be responded to.
On the command and control between the SANDF and the border guards, the SANDF could not be commanded by the border guards. The SANDF was an apex structure in the country and therefore the issue was the relationship – the border guards would be strategically deployed in those vulnerable areas, and then the SANDF would do the high mobility deployment. The two entities would interact when anybody needed to be activated. For example, if the SANDF intercepted illegal migrants in an area that was not vulnerable, the SANDF then had to apprehend such people and hand them over to the border guards. The border guards would be carrying an immigration function, so at that time, the guards would be able to administrate, fingerprint, deport etc. such people. The BMA Act gave the BMA a radius of 10 km from the border or 10 km from the port where it could deport people straight away without having to take them to Lindela. Similarly, if another force from another country came into a vulnerable segment, and wanted to overpower the border guards militarily, then the border guards would activate the SANDF. That was why there would be communication channels between the two, and that was the nature of the relationship that the BMA was talking about. A problem area that the BMA was trying to address was a situation where the SANDF was “running after illegal immigrants” in the vulnerable segments. That was compromising the integrity of the SANDF. That was an area that the border guards would be operating in.
On the budget being secured for the rest of the BMA’s establishment, it had not yet been secured. The BMA was engaging year by year with the broader principle of incremental capacitation of the BMA as it went along. That meant that it was now in the MTEF discussions with National Treasury and the rest of the stakeholders. In that discussion, it was looking at the next financial year. It spread its requirements into the three outer financial years. The BMA was engaging in terms of an increase of funding as it went along; this was also dependent on the nature of the finances that the Treasury was able to put on the table.
On the integrated surveillance plan, the BMA was saying that technology needed to be procured in that particular environment of border management. Those were the latest mechanisms deployed by other nations for border management. The BMA agreed on that. That was why part of its financial requirements for next year was to also get some finances to bring in technology to assist the border guards as a force multiplier in dealing with the various issues.
On the sea, for now, the BMA was not yet moving into the coastline. The BMA would be in charge of the maritime ports, then when it was stabilised, it would look at the coastline. At the current moment, the coastline is still the full responsibility of the Navy.
In response to Ms Legwase’s question, Dr Masiapato said there had been engagement with organised labour. The BMA had said that labour was critical for integration. That was why the BMA went to the Public Service Coordinating Bargaining Council (PSCB), where all labour sat, and it started engaging with labour. It gave labour the model and layout of the BMA, as well as everything about the establishment of the BMA. In that conversation, labour understood everything. The BMA then agreed that it was to go and engage staff; it would have to do that collectively with labour. Outside of that discussion, the BMA also did bilateral talks with various forms of labour. The previous Friday, the BMA had discussions with the National Education, Health and Allied Workers' Union (NEHAWU) and others. The previous day, the BMA had discussions with the South African Police Union (SAPU). The BMA had engaged with those stakeholders and was preparing for that journey. The BMA had not found anything from labour that could “derail” the BMA. The only thing the BMA could pick up, even as it was still engaging with staff, was that the staff was anxious to hear the BMA’s presentations and plans. Labour was ready to be part of that process.
On whether the BMA would share administrative functions with the DHA, as part of the normal public entity-mother department principle, there would be sharing of administrative responsibilities, including through secondments in some instances, until the BMA was fully grounded.
On vigilante groups, there had been groups doing patrols of their farms. One thing that the BMA knew, with the deployment of the border guards, was that all were starting to appreciate the intervention, and the groups appreciated the movement of government to start addressing those issues, especially in those areas where people were vulnerable. In those areas, people were also crossing the border and stealing from farms as well. Once the BMA stabilised those functions, most of those issues would stabilise. It had a mandate in terms of section 5(c), that the BMA must cooperate with the farmers in the border environment as it did that work. Those conversations were starting to take shape, particularly those led by the border guards (the chief border guards in particular).
On fixing the border fence, the BMA was not yet there. The BMA had identified 31 ports that it was busy auditing, and that it would have to transfer. The remaining 22 ports would be audited in the next financial year, with the view of bringing that work through in the 2024/2025 FY. The issue of the border fence was still under discussion. The BMA believed that section 38 gave it the responsibility to be in charge of the borderline. It was still going to engage, because everything it did was guided by the PFMA in particular. It ensured that everything it did was compliant with all of those issues as it stood.
On addressing the issues related to Krugersdorp, the Minister and the Director-General were involved in the process of strengthening border management. The Immigration Inspectorate was working with the SAPS and will intensify its work. The Inspectorate had started to identify those who were problematic, those who were in South Africa illegally, and those who needed to be deported. The contribution of the BMA and the border guards was to make sure that those people did not walk back into the country, as it used to be the case. That was the “biggest game changer” of the entire situation.
He had spoken about the Advanced Passenger Processing System (APPS). That was referring mainly to air travel. Most of the jurisdictions had that system, and the BMA did have that system.
The Minister asked Dr Masiapato if he could leave that question to him (the Minister).
On the timelines until the BMA is fully functional, 1 April 2023 was the date for the main area of work.
On the invitation to the BMA’s launch, the Minister would touch on that matter.
On budget constraints for the BMA’s discussions in MTEF, it was putting together those financials, but it was still getting some messaging here and there that the fiscus was very much constrained. It did not have a response yet that said that all the requirements it put out were rejected per se. It had been putting together those proposals and would be assisted by the Committee and the Minister as it went along.
On the vetting of the border guards, the BMA did intensive vetting, which was done mainly by the state security agency. The BMA had made the border guards take an oath to pay allegiance to the Constitution and ensure that the guards would not be easily corrupted. The BMA had also created smaller teams, with a Chief Border Guard, a Senior Border Guard, and the guards themselves, to make sure that there was closer supervision of their work and the accountability to deal with those types of issues. The BMA was still going to be doing a closer audit on the border guards’ lives, to make sure that they would not be likely to be easily corruptible. Once the BMA was in charge of the environment with the infrastructure, it would be able to do rotation, so that the guards were not “getting used to the environment and creating challenges”.
Ms Jane Thupana, Deputy Commissioner: Corporate Services, BMA, responded to questions. On employing women, the BMA still had a small number of women at that moment particularly because it's targeting for that period had been towards people who had been trained in the sector. E.g. these were people with firearm competency, who had largely been trained in the security sector. That was why the BMA found fewer women, given how women enter the country's sectors at the moment. Its statistics showed that only 18% of the border guards were women, meaning 36 out of the 200. In leadership, there were more women, because there were 31% women in leadership, with one woman being a Chief Border Guard and two being Senior Border Guards. The BMA was looking to deliberately increase the numbers in its future recruitment, specifically the numbers of women and youth. The BMA would recruit younger people, with prerequisites being that a person is a South African citizen and has Matric. The BMA would provide extensive training. There would be a minimum of six months’ training, with an extension to nine months. Recruits would be taken through intensive training before they would be deployed. The BMA was already entering into agreements with other organisations and departments in the security sector that had training institutions and already had programmes. The BMA was looking at upscaling its programmes so that it was able to deliberately attract youth and women and to make sure that it balanced its figures targeting those groups in particular.
On disabled people, she observed that the BMA’s recent deployment had been for the border line border guards, whose work would extend into the bush, and vulnerable segments. That was an area where disabled people would not be strategically deployed. As the BMA increased its numbers, it would surely consider bringing in more disabled people. Within the ports of entry, there were areas where such people could be meaningfully and gainfully employed.
The Chairperson said that in the context of people living with disability, Members understood that the BMA would be raising numbers within the overall structure of the BMA with youth, women and people living with disability. He was sure that the Members understood that not all people would be deployed in the type of area that Ms Thupana had highlighted. Members were raising the matter of the numbers of certain groups in the context of the overall BMA structure.
Major-General (Maj-Gen) David Chilembe, Deputy Commissioner: Operations, BMA, responded to questions. Mr Roos mentioned the integrated plan in the maritime environment, and what force multipliers the BMA was putting in place in those areas. In that environment, the BMA was using the multi-agency approach, whereby it was looking at the issue of Operation Phakisa. Its Border Management Operational Committee (BMOC) was chaired by the BMA, and the National Border Management Centre (the BMCC) monitored those plans. From the ground, whenever an operation was planned, it was sent to the BMA, and it then looked at that plan.
On the budget, the rationale for the establishment of the BMA was that the budget that was with the government agencies related to border control was going to be transferred to the BMA in order for the BMA to do its functions. There were constraints. The Chairperson had raised the issue of whether there was any evident constraint regarding that. The National Macro Organisation of Government (NMOG) was dealing with that issue. Two weeks ago, the Treasury called the BMA and all of the other security structures to a meeting where the BMA presented all of the budgetary constraints. Treasury also gave the BMA some orders to complete to ensure that it did not have a problem with that.
Ms Khanyile asked which people the BMA was stopping in those areas, and if the BMA was able to check passports, etc. the BMA had deployed the border guards in the vulnerable segments. The vulnerable segments were areas such as informal crossings that people were using as informal ports of entry. The BMA was stopping everybody there. The border guards were making sure that nobody was coming into the vulnerable segments. People were instead being directed to the formal ports of entry where they were supposed to go through.
On the duplication of shared functions, Dr Masiapato mentioned the SLA that was signed between the BMA and the Director-General of the DHA.
On whether the border guards might be involved in corruption in the near future, during the onboarding process, the BMA took the border guards through awareness programmes. It also took the guards through examples of what they would encounter, because the environment sometimes challenged people. During the onboarding, the BMA took the guards through examples of how they would be challenged regarding matters of corruption. In the future, the BMA planned to embark on a programme with the National School of Government, which had a programme on anti-corruption initiatives. It would engage the latter so that the BMA could go to every segment and take guards through the awareness programmes. The DHA also had counter-corruption initiatives that were looking at those issues that related to anti-corruption methods that the BMA could put in place.
Mr Njabulo Nzuza, Deputy Minister of Home Affairs, answered questions about recruitment and cadets. He assured Members that the recruitment of the 200 border guards was conducted at a local level, which meant that preference was given to people from the area. The DHA could not inject many new people into the system because most of them were within the security cluster since there was a need for the guards to “hit the ground running”. In the next recruitment phase, DHA would take newer and younger people, who would undergo proper training in the entire process.
The cadet programme was from the previous administration, which involved the placing of young people in various areas of the DHA environment. Some people were in immigration, some in permitting, etc. The DHA was currently running a DHA capacitation programme, where it was undergoing massive recruitment of people due to the amount of money it had received to enable it to hire more people. Some of the cadets had already been hired through that particular process, and it was anticipated that more would be hired. More would be hired because in the main, people had the necessary skills, experience and qualifications, and the DHA had taken the recruits through a specific process, in which it had invested. It would not be good for the DHA to let go of the people it invested in. It was happy that most of those people had been incorporated, and it would be incorporating more people in the course of its capacitation programme. People would not just be placed in the BMA, but also in the entire DHA environment.
The Minister said that when the DHA met Members, especially about the BMA, there were questions that were repeated. He was not sure if the reason is because the DHA had not explained the answers thoroughly.
On SARS and the BMA, SARS was doing customs work. That work was not only about which goods passed in and out; it was also about tax. Customs work was tax work. That money that SARS accumulated every year in order to send it to the fiscus came from many sources. One of those sources was the borders. One could not have that under the BMA. The BMA was not a tax collection authority. The collection of taxes, and how much tax must be levied for particular goods would be done solely by SARS. With the BMA’s role, for example, if one went to Kopfontein, there was a drive-through x-ray machine on the Botswana side. Every truck that was carrying goods drove through that x-ray machine. The BMA would be able to see what was inside there. If something undesirable was brought in, the BMA would stop it. He reminded Members of an “embarrassing picture” at the Lebombo border post, which was posted on social media, where a truck that was going past was carrying a lot of brooms. Somebody suspected that there was something else there, and when they checked, there was a stolen car there being moved into Mozambique. That sort of check would be done by the border guards. If that car legitimately had to cross into Mozambique, then the decision of what levies must be paid on that car would be taken by SARS.
On the relationship with the SANDF, the Minister gave a practical example. Long before the BMA came into being, members of the public would have seen somebody who had cut a border fence going through that fence illegally into South Africa. Many people would take photos and send them to the DHA. The Minister would immediately conduct the Chief of the SANDF, and tell him that people were crossing into South Africa illegally. He wanted to state that the SANDF was reluctant to act because it did not regard people coming in illegally as the enemy. Its job was “to find the enemy”. That was the job of border guards; their job was border law enforcement. The SANDF said that it was there to protect the country, not to “stop somebody who sneaks in to buy a loaf of bread and sneaks out again”. That would be done by the border guards. The SANDF would keep its job of protecting the country.
On the Navy and maritime borders, one needs a lot of equipment to operate in the maritime environment. People came in ships to steal South Africa’s fish. The border guards did not have that capacity. That capacity was with the Navy, and the DHA would keep it like that. It would not be a quick process to give the BMA maritime capacity.
On vigilante groups, the Minister said that he knew that the group doing that activity “was AfriForum”. The state was the only entity that had the authority to bear arms and use them. Any other entity that wanted to bear arms needed to get permission from the state. For example, security companies needed to apply for permission from the state, because the only entity in law that could bear arms and “use them on human beings” was the state. It could not be any other entity. The DHA could not allow that at the borders.
On infrastructure, this was a big problem. The Minister recalled that when the Chairperson went to Lembombo, he was angry with the DHA when he found toilets that were dirty, not being maintained, and not working. If one went to OR Tambo International Airport and any other airport, the host of infrastructure, e.g. maintenance, was ACSA. If one went to a seaport, then the Transnet Port Authority was in charge of infrastructure. The DPWI was responsible for infrastructure at land ports. The DHA had problems with such infrastructure, which the Committee saw itself. Another example of infrastructure problems was the border being closed because those responsible forgot to renew the contract of the person who must maintain the water pipes. All of that work would be taken over by the BMA. The BMA would not depend on the DPWI to do maintenance work at the borders, and to maintain infrastructure. Such maintenance would include the border fence. Before the transfer, that work would still be done by the DPWI. The DHA was “very eager” to take over the job of maintenance.
On the APPS, this was a 2010 World Cup legacy issue. Many people believe that nothing was left by the 2010 event in South Africa. For the DHA, the event left it with a very important legacy. There was a fear in 2010 that many people would fly in from many parts of the country purporting to come and watch soccer, when they were actually coming to “invade the country”. A system was invented at the time. The DHA had a centre in Pretoria which worked 24 hours a day. It had an Advanced Passenger Processing (APP) system. Any plane that departed from any part of the world could not land in South Africa before the pilot sent the passenger manifest. A passenger manifest is a list of all passengers on a plane bound to South Africa. That centre would determine if any of the passengers were undesirable. If there were any people that South Africa did not want, then the plane would be told that it could not leave with that person, and it would have to offload that person before it departed. If that plane decided to defy instructions (which the Minister said happened “quite often”), it would be charged R15 000 for every passenger brought in against South Africa’s will.
On the DHA being accused of only stopping black people who came into South Africa, and not people from other continents: It was difficult to come from Europe to South Africa illegally, because a person would be flying. The DHA would catch a person illegally inside the plane, via the passenger manifest using the APP. Thus such people “would not take chances”. Hence, the only people who would take chances to come to South Africa illegally via South Africa’s porous borders would be those who were walking. But for those flying, it would not work because of the legacy programme left in place after the World Cup.
On youth and disabled people, there was no border guard older than 35 years, so they were all youth. The 200 employed, and the next cohort were less than 35 years old. The DHA was aware that for the whole of the Department’s graduates, it set a target that 60% would be women.
The Chairperson said that it was necessary for Members to raise or repeat questions since the DHA was presenting a progress report. It was important for Members to make follow-up questions so that the Committee fully appreciated the work that members of the DHA team had been engaging in.
The Committee needed to thank the DHA for closely monitoring the development of the BMAs programmes and the implementation work. That encouraged Members to pay more attention to the mandate the Committee was supposed to do, and make the Executive account on any issue that the Committee wanted Parliament and society to know about. The BMA sought to respond to the issues that South African people had been raising around the porous borders.
He thanked Dr Masiapato, Maj-Gen Chilembe and Ms Thupana for having the forethought to ground their efforts in legislation so that a new urgency to respond to the country’s crisis was being established. Progress had already been made. It was demonstrated during the Easter Weekend, when planning was sought with sister departments for South African borders. He wanted to thank the Minister and Deputy Minister for their collective oversight over the BMA. That was appreciated, and the Committee thought that the Minister and Deputy Minister were “doing a good job”.
He informed Dr Masiapato that there was a need to consolidate efforts of communicating the work of the BMA at the level of BMA commissioners. The Committee had taken interest in the BMA’s last communication panel with making sure that the BMA was able to reflect on and rebut some of the issues raised which were negative and without context. Such issues included the vigilantes. There was a need to stick to the rule of law and affirm authority on the work that the BMA was doing. The Committee supported the work that the BMA was doing. The Committee also noted that it must work towards making sure that budget allocations met priority areas so that implementation was not being obstructed by the lack of funds. With the full integration, the Committee needed to make sure that at least, priority areas related to issues Members raised around the borders and the full operational work of the BMA. The Committee was taking note of the progress made. The Deputy Minister had expressly committed to the recruitment of cadets, youth, women and people with disabilities, both at the DHA and the BMA. The Committee also appreciated that the border guards were in place. Some of the issues and recommendations which Members raised were areas that Dr Masiapato needed to look at.
Consideration and adoption of outstanding minutes
The Chairperson said that this item could be moved to the next meeting.
The Committee Secretary confirmed that the Committee could move the adoption of minutes to the next meeting. He noted there was a short report, which the Content Advisor had prepared on the salaries of Electoral Commission (IEC) Commissioners. Mr Mathonsi had sent the Announcements, Tablings and Committee Reports (ATC) document when it was referred to the Committee.
Consideration of the draft notice determining the rate, with effect from 1 April 2021, at which salaries, allowances and benefits are payable to members of the Electoral Commission
The Chairperson asked if the Committee could both deal with the report and adopt it in the next meeting.
Mr Adam Salmon, the Content Advisor, confirmed that it would be fine to move it to the next meeting.
The Chairperson also confirmed if the two items (the minutes and the report) could be moved to the next meeting.
Ms Legwase agreed to move the two items to the next meeting.
Ms Molekwa had seen the report on the salaries for IEC Commissioners and observed that it was a very short report. She suggested finalising the report in today’s meeting and then adopting the minutes on Thursday.
Mr Salmon presented the summary of the report. The summary gave the full details of where the report was from, when it was tabled, and what the legislative framework was. The closing recommendation (which the Members could adopt and second) was the following: The Committee, having deliberated, concurred with the President’s determination on the remuneration adjustment of IEC Commissioners, that a retrospective salary increase of 3% be implemented for the Chairperson, and other full-time commissioners be given their salary level for the 2021/2022 financial year. This equates to a total remuneration of R2.498 million for the Chairperson of the IEC and R2.175 million for the full-time Commissioners. For the part-time Commissioners, salary increases will be as per that approved by the Portfolio Committee on Justice and Correctional Services on 7 June. It was the President’s recommendation of a 3% increase for the salaries of Constitutional Court judges and judges of other courts. The Committee recommends that the National Assembly approve the notice determining the remuneration of the Commissioners of the IEC.
Ms Legwase moved to adopt the report, and Ms Khanyile seconded.
Ms Tito said that the EFF was abstaining.
The Chairperson said that the Committee had considered the report, as referred by the Speaker of the National Assembly to the Committee.
The Chairperson thanked the Members for their participation. The Committee would adopt the minutes at the start of its next meeting. The Committee Secretary would communicate formally about having the meeting on Thursday, now that the Committee had taken a decision to meet at 13:00 on Thursday (25 August) for the consideration of the A-list. It would then be proceeding to other matters of the Committee.
The meeting was adjourned.
- NGOs Letter to PC Home Affairs
- Media Statement: Home Affairs Committee Nears Conclusion Of Deliberations On Electoral Amendment Bill
- President's Letter: Remuneration of Public Office Bearers of Independent Constitutional Institutions
- BMA: Update on Implementation of BMA
- Electoral Commission's A-List
- Proposed Amendments: Electoral A/B [B1—2022]
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