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CONSOLIDATED PUBLIC COMMENTS RECEIVED AND INPUTS BY THE DEPARTMENT OF HOME AFFAIRS
BORDER MANAGEMENT AUTHORITY BILL, 2016 [B9-2016]
PORTFOLIO COMMITTEE ON HOME AFFAIRS
Clause Clause description Commentor Comments Department’s responseLong title No comments received
Preamble South African Police Service (“SAPS”) (per Lt Gen Phahlane)
…the Preamble of the Bill needs to set out the
constitutional position of the SAPS as the single
police service referred to in section 199(1) of the
Constitution of the Republic of South Africa, 1996
(the “Constitution”).
It is proposed that the underlined portion be
inserted:
“ AND ACKNOWLEDGE FURTHER, THE CONSITUTIONAL RESPONSIBILITY OF THE National Commissioner of the South African Police Service for such functions relating to border control and the import and export of goods as may be assigned to the service by law, ”.
Refer to the Memo signed between the DG of
the Department and the Acting National
Commissioner of the SAPS, as it addresses
the issue.
1 Definitions Department of Justice and Correctional Services (per Mr V Madonsela, Director-General)
“border law enforcement area”:
It is uncertain what the basis is for the
determination of the 10 kilometres distance or any
reasonable distance inside the internationally
recognised borders. What “a reasonable distance”
is, could be open to various interpretations
There is precedent of the 10km radius and
therefore not new in the Statute Book.
Furthermore, this is meant to create certainty.
The 10 kms radius will have various
interpretations for land and air borders or ports
1
(“DOJ”) of entry.
Transnet “border law enforcement area” and “port of entry”:
The Bill will have unintended consequences on the
operations of Transnet Freight Rail in that Chapter
6 of the Bill provides that the officer(s) to be
appointed by the Authority will have powers to
conduct search and seizure with or without a
warrant. This will include powers to search any
vehicle (this includes vessels, railway carriages
and locomotives) within the border law
enforcement area or at a port of entry. During a
routine inspection an officer may, without a warrant
order any driver of a “vehicle” to stop. This means
that the drivers of locomotives may be ordered to
stop within the border law enforcement area and at
a port of entry as defined.
…it may be impractical for an officer to stop a train or locomotive and conduct inspections as contemplated in clause 20(1)(b)(i) of the Bill. Transnet recommends that the inspection of a train or locomotive be conducted at the last Transnet Freight Rail’s designated railway station or siding before reaching the border law enforcement area or port of entry.
The …definition would have the unintended effect
of limiting the jurisdiction of the Authority. In terms
of section 40 of the Bill, the current ports, points
and places of entry or exit will remain. It follows
The definitions of border law enforcement
area and port of entry are, in the
Department’s view, adequate.
The current arrangements in dealing with
rail will not be affected. However, an
assessment will be made by the BMA and
Transnet (jointly) to ensure that weaknesses
are identified and improved.
The right to conduct routine searches goes
hand-in-hand with reasonable measures
(when conducting such searches).
Relevant cooperation mechanisms will be
put in place between the BMA and
Transnet.
The BMA will establish reasonable stop
areas for conducting searches within the
10kms radius.
2
therefore that were such ports, points and places
are not located in close proximity of the Republic’s
borders (the definition refers to 10km), the
Authority would have no jurisdiction.
DOJ “border law enforcement functions”:
This definition means “functions conferred on the
Authority by law and in terms of this Act”. Clause
2(3)(b) provides that the Act will not apply to the
border law enforcement functions performed by the
Defence Force in respect of the airspace of the
Republic. It is suggested that either the definition
or clause 2(3)(b) should contain a provision
excluding the border law enforcement functions of
either the Border Management Authority (“BMA”)
or the Defence Force to avoid any possible
confusion.
The current exclusions in the clause are
adequate
DOJ “border management”:
It is suggested that the words “South African
National” be deleted as the Defence Force is
defined in clause 1.
In terms of the definition, “border management”
means the execution of border law enforcement
functions and includes co-operation with the
Defence Force on the implementation of border
protection functions”. In terms of clause 3, the
object of the Bill is to establish and empower the
BMA to achieve—
Agreed, the words “South African National”
should be deleted.
The provision on the object of the Act cannot
3
(a) integrated border law enforcement within the
border law enforcement area and at ports of
entry; and
(b) co-operation on and co-ordination of border
management matters in general.
It appears that “border management” in the
definition is limited, but that the concept is
broadened in clause 3 to include matters other
than law enforcement functions and the border
protection functions performed by the Defence
Force.
be the same as a definition, as it is more
substantive whilst a definition gives clarity to a
word or expression.
DOJ “border protection functions”
It is suggested that the expression “of the Republic
of South Africa, 1996” be deleted as the
Constitution is defined in the Bill
Agreed, the expression “of the Republic of
South Africa, 1996” should be deleted.
DOJ “commissioned officer”:
The question arises whether it will be clear to
ordinary members of the public as to what is
meant by a “commissioned” officer?
Clause 14 details what a commissioned officer
is and sets out the requirements thereof.
Therefore, from this clause it is clear what a
commissioned officer is.
DOJ “Defence Force”:
It is suggested that the definition reads ““Defence Force” has the meaning ascribed to it in section 1
of the Defence Act, 2002 (Act No. 42 of 2002);”
Agreed, the definition of “Defence Force”
should be amended as suggested.
4
“prescribed”:
It is suggested that the definition reads
““prescribed” means prescribe by regulation in
terms of section 37 of this Act;”
The definition as contained in the Bill is correct.
It is merely a question of drafting style.
Transnet “Airspace” cannot be equated with the notion of a
border or boundary. Consequently, it is proposed
that the definition be adjusted to read as follows:
“airspace” means the space within the outer limits of the internationally recognised airspace of the Republic”
Agree, however the Department suggests the
following definition:
““airspace” means the area enclosed by the
outer limit of the internationally recognised
airspace of the Republic”.”
Scalabrini Centre of Cape Town
RECOMMENDATION 2: The SCCT recommends that the principle of non-refoulement [as in section 2 of the Refugees Act (No. 130 1998)] is referenced in the Preamble, included in the list of definitions
The BMA will be focused on border law
enforcement functions with functions
emanating from several pieces of legislation
which amongst others will include the
Immigration Act, 2002 and the Refugees Act,
1998, both of which adequately deal with
issues of asylum seekers who declare their
intention to seek asylum. Therefore, there is no
need to make reference to the principle of non
refoulement in the BMA Bill as this will set
precedent for other specific policy statements
on border management. Where a person
declares his or her intention to seek asylum in
the Republic, the such person will be
processed on the basis of section 22.
2 Application of Act DOJ This definition means “functions conferred on the
Authority by law and in terms of this Act”. Clause
2(3)(b) provides that the Act will not apply to the
border law enforcement functions performed by
The current exclusions in the clause are
adequate
5
the Defence Force in respect of the airspace of the
Republic. It is suggested that either the definition
or clause 2(3)(b) should contain a provision
excluding the border law enforcement functions of
either the Border Management Authority (“BMA”)
or the Defence Force to avoid any possible
confusion.
3 Object of Act DOJ In terms of the definition, “border management”
means the execution of border law enforcement
functions and includes co-operation with the
Defence Force on the implementation of border
protection functions”. In terms of clause 3, the
object of the Bill is to establish and empower the
BMA to achieve—
(a) integrated border law enforcement within the
border law enforcement area and at ports of
entry; and
(b) co-operation on and co-ordination of border
management matters in general.
It appears that “border management” in the
definition is limited, but that the concept is
broadened in clause 3 to include matters other
than law enforcement functions and the border
protection functions performed by the Defence
Force.
The provision on the object of the Act cannot
be the same as a definition, as it is more
substantive whilst a definition gives clarity to a
word or expression.
4 Establishment of Authority COSATU (and NEHAWU)
COSATU’s remaining areas of concern are the
location of the BMA and the call to ban all
outsourcing. COSATU’s position has been that the
BMA must be located within the public service and
The BMA is an entity that is to implement
border law enforcement functions
emanating from several pieces of
legislation administered by other
6
that this is non-negotiable for unions.
Government has responded by renaming it from an
Agency to an Authority and locating it within the
broader public sector and the PFMA.
Government’s motivation is based upon wanting to
exercise complete jurisdictional control over
borders (e.g. to be exempt from Public Works and
SITA) and to pay salaries higher than the public
service, in particular for management.
It is impossible for COSATU to support removing
the BMA from the public service to simply pay
management exorbitant salaries far above the
public service norm. More so when government
pleads poverty and continuously blames the
budget deficit on workers for wanting a living
wages.
COSATU has indicated that all these issues could
easily be dealt with in the public service. COSATU
and its affiliates remain strongly opposed to the
BMA being removed from the public service and
created as a public sector entity. COSATU feels
that this will fragment and weaken the state and
encourage other departments to follow suit.
The BMA would be the only state security organ
located outside the public service. The SAPS,
SANDF, SSA and DCS are all public service
departments. Shifting the BMA will set a
Departments and has no policy mandate.
Therefore, the view is held that it should not
take a form of a fully-fledged Department.
Clause 4(2) caters for exclusivity for the
BMA to perform border law enforcement
functions.
Domestic legislation provides for five
institutional mechanisms or forms of an
organ of state.
7
dangerous precedent.
We believe that a public service department can
fulfil the requirements of the BMA. COSATU’s
members remain adamant that they want to
continue to fall under the Public Service Act with all
its conditions of service and protections. COSATU
remains hopeful that the Portfolio Committee will
be able to assist in resolving our remaining issues
of concern.
5 Functions of Authority South African Police Service (“SAPS”)
It is of particular importance to the SAPS to note
that the functions of the BMA does not detract in
any manner from the powers and functions of the
SAPS, as the functions of the BMA is to facilitate
the legitimate movement of persons and goods
within the border law enforcement area and ports
of entry. The BMA must also co-operate and co-
ordinate its border law enforcement functions with
other organs of state, border communities and
other persons.
Even though the Bill recognizes the unique
constitutionally mandated position of the South
African National Defence Force (“SANDF”) insofar
as border functions are concerned, it does not
specifically do so with the functions of the SAPS
regarding illegal movement of persons and goods
within the border law enforcement area and ports
of entry. It is submitted that this failure may create the mistaken impression that the BMA will duplicate the performance of policing
Refer to the Memo signed between the DG of
the DHA and the Acting National
Commissioner of the SAPS.
8
functions on a “franchised” basis, despite the fact that the policing mandate of the SAPS as the single police service for the Republic of South Africa (“RSA”), is constitutionally entrenched.
It is submitted that the Bill does not distinguish clearly between the functions of the SAPS that relate to “classical policing” and functions that relate to “border control”. It is accepted that the functions related to border control are assigned by national legislation. However, the constitutional functions of the SAPS that relate to “classical policing” are not clearly confirmed.
Similarly, the function of the BMA to co-operate with and co-ordinate its border law enforcement functions as set out in clause 5 of the Bill needs to specifically refer to the SAPS in order to dispel any vagueness….
It is proposed that the underlined portion be
inserted: “(c) co-operate and co-ordinate with the South African Police Service, other organs of state, border communities or any other persons on its border law enforcement functions.”.
Clause 5(c) of the Bill provides for general
cooperation between the BMA and other
organs of state, as well as any other juristic
persons and border communities.
The task of identifying municipalities that might
be affected by the establishment of the BMA is
being undertaken and the Department will
provide status update in due course.
6 Composition of Authority No comments received
9
7 Appointment of
Commissioner
Katleho Mogase I would like to also make the submission that the
Commissioner's term and character as described
in the current Bill could be changed. In Chapter 3,
it speaks of how the Commissioner needs to be
innocent of crime or pardoned. I would like to
submit that we seek someone who has never been
found guilty in a court of law, of a crime. This is a
good ethical responsibility that could be great
deterrent to those who are seeking the position for
their own bad motives.
The provision is aligned to the current legal
framework of what is meant by fit and proper
person.
Tourism Business Council of South Africa (“TBCSA”)
Reference is made to the President. In order to
clarify which President reference is being made
to, it is suggested that in Chapter 1 Section 1
Definitions- the President needs to be defined
(e.g. The President of the Republic of South
Africa).
The Interpretation Act deals with the principle
that where the President is referred to in
Legislation, it is the President of South Africa.
Therefore, there is no need to repeat the same
in all pieces of legislation in the Republic of
South Africa.
DOJ Subclause (1) sets out a list of requirements with
which a person to be appointed by the President
as the Commissioner, must comply.
Subparagraphs (g)(i) and (ii) provide that the
President must appoint a person who is a
commissioned officer or who must subsequent to
his or her appointment, successfully complete any
prescribed training and who must comply with the
prescribed security grading requirements to be
appointed as a commissioned officer. The question
arises what the position would be if the appointed Commissioner does not successfully complete the prescribed training or does not comply with the prescribed
The appointment will be conditional. If the
appointed person fails to meet the
requirements, he or she will have to vacate the
office.
10
security requirements.
8 Terms of office of
Commissioner
TBCSA It is suggested that in the last line after the words
“Commissioner’s term of office” insert the words “in
its entirety”.
The provision is clear as it is and the insertion
of the suggested word may lead to ambiguity.
Katleho Mogase The Commissioner's term is also one that could be
given a little bit more attention. I say this to
suggest that this agency's Commissioner could be
treated as a Chapter 9 Institution's head. My
suggestions is the Commissioner is given a non-
renewable term of six years. This would be to also
try and discourage any kind of corrupt behaviour,
familiarity breeds contempt. Criminals get to know
border bosses and then work through them. Ten
years is too long for one person to not even get
familiar with people. As it stands there is only the
department that acts as a check to the BMA, which
is problematic.
The Authority is not a Chapter 9 (of the
Constitution) Institution and therefore the
comparison is not appropriate.
The Commissioner will only serve as provided
for in the Bill. The Commissioner cannot be re-
appointed again in the event that he has
completed the requisite terms and cooled-off.
The current precedent, in terms of the Public
Service Act and the Government Employees
Pension Fund Act, is that a person retires at
the age of 65.
In relation to employment contracts and
performance contracts, these matters are
administrative and do not require to be
legislated on as contracts re a standard
administrative requirement in labour law.
9 Removal of Commissioner
from office
DOJ Clause 9(1) provides that the “Commissioner must
not be suspended or removed from office, except
in accordance with the provisions of subsections
(2), (3), (4) and (5).”. Subclause (2) lists the
circumstances in which the Commissioner may be
removed from office. Subclause (3) provides that
the Commissioner may be suspended pending an
This is a drafting style and not a substantive
issue.
11
investigation into the circumstances listed in
subclause (2) and subclause (4) states that the
Commissioner receive his or her remuneration
whilst on suspension, pending the outcome of any
investigation or inquiry. The question arises
whether clause 9(1) is necessary in the light of the
list given in subclause (2). The circumstances in
which the Commissioner may be removed by the
President are misconduct, ill-health, incapacity to
carry out his or her duties effectively and
efficiently, being no longer fit and proper to hold
office or on account of a loss of confidence in the
Commissioner.
The list excludes any other possible
circumstances.
Subclause (4) provides that if the Commissioner is
suspended pending an investigation into the
circumstances listed in subclause (2), he or she
must continue to receive his or her remuneration,
allowances and other benefits as if he or she was
not suspended, pending the outcome of the
investigation.
It is noted that subclause (3) empowers the
President to suspend the Commissioner pending
an investigation into the circumstances listed in
subclause (2). Subclause (4) refers to both an
investigation and an inquiry.
Any other possible circumstances for
suspension or removal may be dealt with
under clause 9(2)(e).
12
The question arises whether it is not advisable to
provide for a time limit for the completion of the
investigation or inquiry so as to ensure a speedy
and cost-effective finalisation of the matter. It is
noted that section 8(3)(b) of the South African
Police Service, 1995 contains a similar provision
but to which is added “unless the President or the
National Commissioner, as the case may be,
determines otherwise.”.
The Department is of the view that subsection
(3) should be amended by inserting the
following words, after the words “subsection
(2)”:
“, which investigation must be instituted and
finalised without undue delay”.
The current provision provides adequately how
the Commissioner may be suspended.
Additional details and administrative matters in
relation to the suspension of the Commissioner
will be dealt with in the corporate policies of the
Authority and on a case-by-case basis.
10 Condition of service and
remuneration of
Commissioner
TBCSA It is recommended that in this Section provision
ought to be made for:
− A written employment contract to be entered into
between the Commissioner and the President
which must incorporate in an appropriate form the
provisions of Section 57 of the Public Finance
Management Act No 1 of 1999.
− A Performance Contract to be entered into
between the Commissioner and the President
setting out, inter alia, the measurable work
performance objectives and targets.
The suggested provision is not necessary as it
is adequately regulated in labour law and
furthermore, clause 4 subjects the BMA to the
PFMA.
11 Functions of Commissioner DOJ Clause 11(1) provided that the Commissioner must
exercise control over and manage the Authority in
accordance with “this Act and the directions of the
The Commissioner will account to the Minister
and all directions by the Minister cannot fall
outside of the principles laid down in the
13
Minister”. It is suggested that reference be made to the Constitution as well. The fact that the Commissioner is subject to the directions of the Minister, may raise questions.
Constitution and the law in general.
However, the Department is of the view that
subsection (1) should be amended by inserting
the word “lawful…” before the words
“directions of the Minister”
12 Delegation by
Commissioner
DOJ Clause 12(1) provides that the Commissioner may
delegate to any official of the Authority any
function or power conferred, or duty imposed, on
the Authority or the Commissioner, by this Act or
any other legislation. This provision seems to be
very wide and it is suggested that consideration be
given to limiting the delegation to officials of a
more senior rank or level.
The Commissioner, as the Accounting
Authority of the BMA, should have discretion to
delegate his or her powers to an officer who in
his or her assessment will be able to carry out
the functions as may be delegated. The person
delegating the power or function does not
delegate accountability related to the
delegated function or power. Furthermore, a
delegation may be withdrawn at any time
In principle, a delegation goes with the level of
responsibility.
13 Appointment of officials TBCSA The commissioner must ensure that officers
undergo adequate and appropriate training that
would enable them to perform the functions of the
border guard effectively. We suggest that the
training needs should include aspects of tourism
service excellence including avoiding unnecessary
delays at ports of entry.
It is envisaged that all officials will undergo
training on several aspects of border law
enforcement, including service delivery related
courses. It is not advisable to list specific
training areas in the legislation as border law
enforcement is dynamic and constantly
evolving.
14 Commissioned officers TBCSA It is suggested that after the word “notifying” that
the words “the Commissioner and” be inserted
here.
The principle of administration applies. This is
a Ministerial prerogative and it should remain
as provided in the clause.
14
15 Duties, functions and
powers of officers of
border guard
Katleho Mogase The issue with the border officers is that we need
to either get a SAPS unit to be dispatched to the
border or the SANDF, along with SARS customs
and just envelope those officers into the new BMA
or give the new BMA officers the right to carry
arms as well as arrest. Right now they can arrest
with or without a warrant on specific things. If the
option mentioned in the legislation as it relates to
transitional powers is to be believed, then it would
be good for those already working in border
management. Tightening their code of
conduct/ethical standards would be better, so that
you avoid the issue of bribes and other corrupt
behaviour.
Noted, there is no need to amend the Bill.
DOJ Clause 15(1) provides that “an officer must ensure
compliance with and enforce the provisions of this
Act”. The Bill seeks to provide for the
establishment of the BMA with attendant
provisions for the appointment, functions and
powers of a Commissioner as the head and its
personnel. It further provides for the funds and
immovable property of the BMA, committees, the
review or appeal of decisions, reporting to
Parliament, confidentiality, exemption from
payment of fees or tolls, certain offences and
penalties, regulations and transitional provisions.
The powers of an officer provided for in this Bill,
relate to entry, search and seizure with a warrant
and without a warrant. Further powers include
Noted, there is no need to amend the Bill.
15
routine search and seizures, powers relating to
vessels within maritime borders and detained or
arrested persons and seized goods. Officers also
have powers conferred upon them in a declaration
as a peace officer.
Although there is no fault with the wording of
clause 15(1), it could be interpreted that an officer
also has the power to enforce provisions relating to
the “administration” of the BMA, which does not
seem to be the intention. It is suggested that clause 15(1) be limited to the enforcement of the Bill (“this Act”), as far as it relates to the duties, functions and powers of an officer as provided for in the Bill. A further question arises what the position of officers is in relation to the enforcement of the Immigration Act, 2002 and other relevant legislation in the law enforcement areas or will it be covered under the definition of “border law enforcement functions” as defined?
Scalabrini Centre of Cape Town
17. As mentioned in the introduction, the SCCT
notes and endorses the BMA Bill’s reference to the
fundamental rights of persons, public international
law obligations, and proper consideration of the
rights and interests of vulnerable groups, including
victims of trafficking, refugees and asylum seekers
as found in clause 15(3).
18. The SCCT believes this is a positive step in the
development of the BMA Bill; however, we believe
The BMA will be focused on border law
enforcement functions with functions
emanating from several pieces of legislation
which amongst others will include the
Immigration Act, 2002 and the Refugees Act,
1998 which adequately deal with issues of
asylum seekers who declare their intention to
seek asylum. Therefore there is no need to
make reference to the principle of non
16
that a direct reference to the principle of non-
refoulement will both improve the BMA Bill’s
effectiveness in addressing priorities as well as
ensure the rights of individuals are respected in
line with Constitutional and international
obligations.
19. The implementation of ‘protection-sensitive’
entry systems that ensure the principle of non-
refoulement is upheld will have positive benefits for
both the rights of individuals as well as for overall
border security as it will ensure individuals with
protection needs will not be forced to gain entry to
South Africa through irregular means along with
criminal cross-border operations.
20. Recent research has provided evidence of the
correlation between increased border security
measures and increased irregular entry. A study
conducted by the University of the Witwatersrand
in 2007-2008 suggested that ‘increased policing or
“tightening” of immigration controls would be
unlikely to succeed in controlling clandestine
immigration, and, indeed, might worsen
immigration governance and increase the
likelihood of human rights abuses in the border
regions’. The study also suggested increased
border controls were likely to ‘increase the
numbers of undetected and undocumented
migrants in South Africa, since fear of strict border
officials and misinformation about legal entry
refoulement in the BMA Bill. Not advisable to
state specific policy areas.
It should be noted that officers of the border
guard will focus on frontline enforcement
functions and not back-office administrative
functions.
The Bill contains a Chapter dealing with
officer’s power to enter premises, conduct
searches and seizure. The Proclamation will
assign specific border law enforcement
functions from various pieces of legislation.
The Department is involved in the development
of the Policy on International Migration, which
has a chapter that focuses on asylum seeker
management as well as providing guidelines
on how to deal with migrants with lower skills in
particular in the SADC region.
17
options drive undocumented border crossings’.
This would also lead increases in demand for
smugglers’ services and incentives for corruption
amongst border officials. The study concluded by
strongly discouraging any ‘reactionary tightening of
immigration legislation or enforcement policy’ as it
would both fail to prevent cross-border migration
but would also ‘fail to address serious forms of
cross-border criminality’.
21. Other studies in states with similar border
control needs have also found similar results. In
the United States of America (USA), Massey, Pren
and Durand argue that the USA's border control
strategy, which they posit has evolved out of a
panic over irregular immigration, has resulted in a
self-perpetuating cycle of rising enforcement that
does not mitigate the desire of migrants to access
the USA. The strategy instead results in increased
militarization of the border with increased costs to
the state and increased use of smuggling
syndicates.1 A similar study by Cornelius found
that the USA’s control policy implemented in 1993
to reduce illegal entry resulted in the increase of
mortality of migrants and re-channeled migration
flows to more hazardous areas, increased fees for
smuggling groups, and discouraged migrants
already present in the USA from returning home;
he found no evidence that the strategy deterred or
prevented significant numbers of migrants from
18
entering
22. In light of the above, we strongly believe that
any type of border management policy must
prioritize serious forms of international crime and
cross-border criminality. An effective first-step to
this goal is to ensure that individuals with
protection needs present themselves at official
ports of entry so as to separate refugee flows from
criminal operations. A critical component of this will
necessarily include a strong commitment to the
principle of non-refoulement.
RECOMMENDATION 2: The SCCT recommends that the principle of non-refoulement [as in section 2 of the Refugees Act (No. 130 1998)] is referenced in the Preamble, included in the list of definitions, and that clause 15(2) reads as follows: “15. (2) When performing any border law
enforcement function, an officer must exercise his
or her powers in a manner that takes due regard of
the fundamental rights of persons as guaranteed
under Chapter 2 of the Constitution, the principle of
non-refoulement, and public international law
obligations of the Republic, with proper
consideration of the rights and interests of
vulnerable groups, including victims of trafficking,
refugees and asylum seekers.”.
16 Terms and conditions of TBCSA In this section reference is made to Section 4. To This is an issue of drafting style. As the
19
employment assist with correct interpretation the reference
here needs to be amplified to refer to the correct
Chapter and relevant sub-section (e.g. Chapter 4,
section 4(2)) and not to a general section as has
been done.
provision is currently, it is not unclear. There
are legislative precedents and the provision
cannot be confused with any other section of
the Bill.
17 Limitation of rights of
officers
DOJ Clause 17(1) provides that “subject to the
Constitution, the rights of officers may be limited in
the prescribed manner …”. The intention is
therefore to limit their rights by way of regulation,
which is subordinate legislation and the question is
whether this is not substantive law which should be addressed in the Bill itself.
Agreed, the following wording is suggested:
“Subject to the Constitution, the rights of
officers may, from time to time and to the
extent necessary for purposes of border law
enforcement and the safety of officers, such
officers, be subjected to—
(a) searches and inspections;
(b) security clearances;
(c) screening of communications between
officers and any other person within or outside
of the Authority; and
(d) shared accommodation or privation in
accordance with the exigencies of training and
operations related to border law enforcement
functions”.
Chapter 6Powers of entry, search and seizure
Scalabrini Centre of Cape Town
Accountability and oversight of the BMA 29. The BMA Bill calls for the creation of a
Commissioner (Chapter 3) that will be granted a
wide range of functions and powers including the
day-to-day running of the Authority, establishing
and maintaining institutions for the control and
maintenance of the Authority, managing labour
relations, responsibility for the accounting and
expenditure of the Authority, and command of the
The BMA should be viewed as a new entity
with its own mandate from various pieces of
legislation.
20
border guard. Officials in the border will also have
extensive powers over entry, search and seizure
(Chapter 6).
30. Our concern is that the difficulties in border
enforcement operations listed above will continue
or be transferred to new BMA institution and
officials. In addition to the difficulties in border
management cited above, we note DHA has faced
challenges in adhering to the rule of law in
immigration detention matters. As a means to
address these issues, we strongly believe that the
BMA Bill should have adequate oversight in
regards to the fundamental rights of persons,
especially in relation to some of the remote areas
where border management operations occur.
RECOMMENDATION 4: The SCCT recommends that the BMA Bill should include specific mention to the South African Human Rights Commission (SAHRC) as having powers of oversight over the BMA to ensure critical human rights are protected and that security measures are not implemented indiscriminately or unlawfully, in line with the mandate of the SAHRC in terms of sections 184(2) and 184(4) of the Constitution.
The need to address corruption in the current border control regime 31. The SCCT's clients often recount how officials
The BMA will be subjected to the Constitution.
The SAHRC, as a Chapter 9 institution, has a
constitutional mandate over all organs of state
in relation to the protection of human rights.
This does not need to be specifically
mentioned in the Bill.
21
at border posts solicit bribes for lawful passage
into South Africa. Through our interaction with
these individuals it has become apparent that
corruption is a major concern in the current
management of the border. A number of reports in
national media highlight the extent of corruption
including:
31.1. In August 2016, an Assistant Manager within
Home Affairs and an Immigration
31.2. In May 2016, a number of officials were
arrested for corruption including police officers, a
Deputy Director of Home Affairs, and Immigration
Officials after an investigation conducted by the
Directorate for Priority Crime Investigation.
31.3. In July 2015, the Minister of Home Affairs
acknowledged that immigration officials at ports of
entry were abusing their powers and not providing
foreign nationals with the correct number of days
to legally sojourn in South Africa. The Minister
stated these officials were giving foreign nationals
three days to lawfully remain in South Africa as
opposed to the official policy of 90, and telling
individuals they would be declared 'undesirable' if
they overstayed. The Minister said these
individuals are telling an 'untruth which is in effect
ineffective' and that this was 'not the official
position of the South African government, but
officials do it at the border'.
This will be addressed through vetting of
officials.
22
32. The SCCT is concerned that any new
structures created by legislation will not effectively
address the serious problem of corruption at the
border. We believe that corruption and
maladministration in border patrols as well as ports
of entry hinders an effective border management
regime and that effective counter-corruption
measures are imperative to good governance of
the border. We recognize that legislation is not an
effective method to counter corruption but implore
all agencies involved in border management to
continue to work on establishing effective systems
and to root out networks of corruption.
18 Powers of entry, search
and seizure with a warrant
SAPS When interpreting Chapter 6 of the Bill where the
powers of entry, search and seizure are provided
for, it is important to note that these powers must
be performed within the border law enforcement
area or at a port of entry. A normal police function
– so-called “classical policing” – in respect of crime
therefore remains unaffected as does the
constitutional imperative to uphold and enforce the
laws of the RSA.
Refer to the Memo signed between the DG of
the Department and the acting National
Commissioner of the SAPS.
DOJ Clause 18 provides that an officer may with a
warrant enter certain premises, search persons,
goods, vehicles and premises, inspect goods,
documents, premises and vehicles, seize things
that may be lawfully seized, question persons
about certain matters and “arrest or detain any
person reasonably suspected of contravening any
Agree, the heading should be amended to
read as follows:
“Entry, search, seizure, arrest and detention”.
Furthermore, the Department suggests that
clauses 18 and 19 may be collapsed to read as
23
provision of this Act.
It is suggested that the heading of clause 18 should also reflect the arrest or detention of a person as it is a substantial power.
…, the Bill provides for more than the powers,
functions and duties of an officer of the BMA.
Paragraph 18(f) seems to be capable of a very
broad interpretation as it could, for example, mean
that an officer may arrest or detain the Minister for
not determining a policy for the BMA in
accordance with the Public Finance Management
Act, 1999, as provided for in clause 24(2) or for not
tabling reports in terms of clause 32. A person may
only be arrested for committing an offence and it is
suggested that the specific provisions in terms of
which a person may be arrested or detained,
namely, clause 36, be referred to.
Furthermore, the provision seems to provided that
an officer may only arrest or detain persons who
contravened “this Act” and no other legislation,
such as the Immigration Act.
follows:
“18. (1) An officer may, with or without a
warrant:
(a) enter any premises within the border law
enforcement area or at a port of
entry;
(b) search any person, goods, premises or
vehicle within the border law
enforcement area or at a port of entry;
(c) inspect any goods, documents, premises or
vehicle within the border law
enforcement area or at a port of entry;
(d) seize anything found in that search or
inspection that may be lawfully seized;
(e) question any person about any matter
related to the passage of persons, goods
or vehicles through a port of entry or across
the border law enforcement area
and confirm their responses in a written
declaration; and
(f) arrest or detain any person reasonably
suspected of contravening any provision of this
Act.
(2) An officer may, without a warrant, exercise
any power in terms of subsection (1) if—
(a) a person who is competent to do so
consents to the entry, search, inspection or
seizure; or
(b) the officer on reasonable grounds believes
that—
24
(i) a warrant will be issued if applied for; and
(ii) the delay in obtaining the warrant is likely to
defeat the object of such warrant.”.
19 Powers of entry, search
and seizure without a
warrant
DOJ Clause 19 provides that an officer may without a
warrant exercise some of the powers referred to in
clause 18 (entry, search, inspect and seize). No
mention is made of the arrest or detention of a
person. Could this omission be interpreted to
mean that even if a person is caught while
committing an offence within the border law
enforcement area, that a warrant must first be
obtained? Or is the intention that the provisions of
the Criminal Procedure Act, 1977, relating to the
arrest of a person without a warrant would then
apply?
In view of the suggestion in clause 18, clause
19 should be deleted.
20 Routine searches and
seizures
DOJ Clause 20(2)(b)(iv) provides that an officer may
without a warrant, during a routine inspection or
search, “detain or arrest any person reasonably
suspected of contravening any provision of this
Act”. The same concerns as raised in paragraph
10 above apply.
The question also arises whether there is not a contradiction between clauses 18, 19 and 20 if regard is had to the arrest or detention of a person. In clause 18, an officer may with a
warrant, arrest or detain a person; in clause 19, an
officer may not arrest or detain a person without a
warrant; but in clause 20, when conducting a
routine inspection or search, an officer may arrest
The Department’s view is that the clause
should be retained. The concern has been
cured by the collapse of clause 18 and 19.
25
or detain a person without a warrant.
Business Unity South Africa (BUSA)
BUSA disagrees with Section 20 and proposes
that the same test applied in Section 19 should
also be applied in relation to routine searches;
namely that officials should only be permitted to
search goods and persons should there be
reasonable grounds that a warrant is likely to be
granted if applied for, and that the delay in
applying for such a warrant would defeat the
object. BUSA is of the view that omitting such a
test would create the possibility of abuse as
officials would be permitted to search and seize
items without any reasonable suspicion on the
basis that it is a ‘routine’ search. This approach
opens the door for victimisation, inconsistent
application and abusive practices. BUSA therefore
proposes the insertion of a new Section 20 (2) and
20 (3) as follows (with consequential amendments
to subsequent numbering):
“20 (2) “The written authorisation referred to in
section 20(1) above shall at all times be available
for such roadblock and be accessible for
inspection by the public. The written approval must
state the following:
(a) The date on which the roadblock is authorised
(b) The approximate duration of the roadblock; and
(c) The place and object of the proposed action”
BUSA believes that the above insertion would align
the Bill with Section 13 (a) and 13 (b) of the South
Routine searches will include, inter alia,
roadblocks within border law enforcement
areas. The mandate to perform routine
searches is fundamental to the BMA’s
mandate.
Routine searches are currently being
conducted at ports of entry without any serious
concerns.
26
African Police Services Act, 1995 (Act No. 68 of
1995).
20 (3) “An officer may, without a warrant
(a) conduct a routine inspection or search of any
person, goods, documents, premises, or vehicle
within the border law enforcement are or at a port
of entry for the purposes of ascertaining
compliance with the provisions of this Act, provided
the officer on reasonable grounds believes that-
(i) a warrant will be issued if applied for; and
(ii) the delay in obtaining the warrant is likely to
defeat the object of such warrant. ”
21 Powers relating to vessels
within maritime borders
DOJ Clause 21 provides that an officer may without a
warrant perform certain functions relating to
vessels within the maritime borders. Among
others, he or she may in terms of clause 21(g)
“enquire into whether any provision of this Act has
been contravened”. It is not clear which provisions of this Bill can be contravened by a vessel before an officer boards the vessel. It appear from the provisions of the Bill, that a vessel
(its master or crew) can only contravene clause
36, which provides for certain offences. The
offences relate to inducing officials to contravene
the Bill or other relevant legislation or to breach
their duties, to compel officials through threats to
contravene the Bill or to breach their duties, to
pretend to be or to impersonate an official, to
resist, hinder or obstruct officials in the
Clause 21(g) is not specifically relating to a
situation where an officer should first have
boarded the vessel to establish if an offence
has been committed. It is a broad provision
that may relate to declarations on, for instance,
stowaways, submission of passenger manifest
(sent prior) in terms of other pieces of
legislation such as the Immigration Act. The
Proclamation will identify, and transfer, more
specific functions, powers and duties from
relevant pieces of legislation to be performed
by officers within the maritime environment.
Enquiring is a weak concept in this instance
and does not only relate to engaging the
master of a ship.
27
performance of their duties or to intentionally
furnish false or misleading information to an
official. These offences in relation to a vessel, can
only take place whilst the officer is on the vessel,
and he or she is being bribed or threatened to
contravene relevant legislation or breach his or her
duties or is being given false information, or is
resisted or obstructed in the performance of their
duties. It is suggested that consideration be given to providing as follows in paragraph (g): “enquire into whether any provision of any relevant legislation pertaining to the import or export of goods or the entry or exit of any person has been contravened;”.
Clause 21(j) further stipulates that an officer may
“give directions to the master and any crew
member of any vessel stooped, boarded or
searched as may be necessary or reasonably
expedient for any purpose specified in this Act …”.
It is not clear for which purpose, other than those
listed in clause 21, an officer can give directions.
It is also noted that there are no provisions relating
to the arrest or detention of persons who are
illegally on a vessel or who commit an offence set
out in clause 36 of the Bill. Clause 18 covers this comment. The definition
of “vehicle” includes a vessel.
22 Detained or arrested
persons and seized goods
SAPS Where any person is arrested or detained by an
officer of the BMA, such arrested person must be
brought to a police station under the control of the
Refer to the memo signed by the DG of DHA
and the Acting National Commissioner.
28
SAPS, unless a warrant stipulates otherwise.
There is no provision made for the process after
the arrested person is brought to the SAPS. It is
submitted therefore that clause 22(1) which deals
with issue of bringing an arrested person to the
SAPS, should clearly state what must happen to
that arrested person i.e. whether the SAPS should
detain the person, investigate the offence etc. The
submission is that clause 22(1) of the Bill must
provide for the further handling of an arrested
person in terms of the Criminal Procedure Act,
1977 (Act No. 51 of 1977). The same applies to
goods delivered to the SAPS in terms of clause
22(2) of the Bill.
It is proposed that the underlined portion be
inserted:
“22. (1) If an officer detains or arrests with or
without a warrant, that officer must, as soon as
reasonably possible, bring that person to a police
station under the control of the South African
Police Service to be dealt with in terms of section
50 of the Criminal Procedure Act, 1977 (Act No. 51
of 1977) or, if a warrant expressly stipulates
another place, bring the person to that place.”.
Clause 22(2)(b) [of the Bill] provides that a seized
object must be delivered to a place or relevant
organ of state in the manner required by the
relevant legislation. The clause does not provide
for the further handling of the seized object. It is
29
proposed that the underlined portion be inserted:
“(b) Deliver the object seized in a manner, and to a
place or relevant organ of state, as required by the
relevant legislation in order to be dealt with in
terms of that legislation by that organ of state.”.
Scalabrini Centre of Cape Town
The importance of coordination amongst stakeholders to ensure effective border management 23. An effective border management policy will
necessarily require engagement and action from a
variety of stakeholders. The need for the current
BMA Bill itself is the result of the recognition of the
need for 'integrated and co-ordinated border
management'. We remain concerned that the BMA
Bill does not yet clearly define functions and
responsibilities among the different organs of state
in an unambiguous manner which may negatively
affect how vulnerable groups are treated along the
border.
24. As discussed above in paragraphs 6 - 10, there
remains a lack of agreement between role players
in the current configuration of the BMA Bill which
raises concerns about how different departments
will coordinate actions, share information, and
ensure effective management of border functions.
We are particularly concerned about the
coordination between departments in regards to
the detention and treatment of vulnerable groups.
The SAPS presentation in Parliament highlighted
All Departments retain their policy making
mandate. Relevant border law enforcement
functions will be transferred to the Authority
through the Proclamation.
Refer to memo signed by the DG of DHA and
30
their concerns with the ambiguous arrest and
detention processes in relation to clause 22(1). We
note here that this has been an issue in the recent
past, with the matter of unlawful detentions under
poor conditions as well as unlawful deportations
being brought before the Courts in Lawyers for
Human Rights v Minister of Safety and Security
and Others where inter alia the lack of coordination
between DHA and SAPS had severe
consequences for detainees at the SMG facility
near Musina, including the detention and
deportation of children.
25. The current version of the BMA Bill includes
the outline of a process for the detention and arrest
of individuals in clause 22(1). The clause states
that if an officer detains or arrests a person, the
officer must then ‘as soon as reasonably possible,
bring that person to a police station under the
control of the South African Police Service or, if a
warrant expressly stipulates another place, bring
the person to that place’. The requirements here
are vague and it is unclear if this would process
will apply to vulnerable groups.
26. While we understand that the BMA Bill is
intended to establish a broad framework for border
operations, we are concerned, given the history of
abuses against non-nationals in border areas (as
outlined above), that this vague delegation of
power is not sufficiently detailed nor does it make
the Acting National Commissioner of SAPS.
31
mention of how vulnerable groups (such as
unaccompanied minors, survivors of sexual and
gender-based violence, and asylum seekers)
should be addressed when apprehended by
officers for irregular entry or for lacking the
requisite documentation.
27. To exemplify the possible complications that
could arise, research on unaccompanied minors
and survivors of sexual and gender-based violence
(SGBV) in the Limpopo province revealed that
despite formal protections in legislation,
‘unaccompanied minors are initially detained either
at the border by SANDF, who then hands them
over to SAPS, or by SAPS following a raid in town
[Musina]. SAPS often detains these children until
DSD [Department of Social Development] arrives
to conduct the identification process.’15 Further,
the report found that ‘[i]n some instances, SAPS
has failed to identify and report that there are
minors in detention’ which is unlawful and contrary
to the Constitution, the Children’s Act, and the
Immigration Act. For SGBV survivors, obstacles to
justice and protection include refusal of entry at the
border, detentions and deportations of survivors
without medical treatment, and a lack of
established procedures across government.
28. We believe that the BMA Bill should work to
improve coordination between government
departments but are concerned that the current
32
version may in fact weaken coordination. This is of
particular importance for the rights of asylum
seekers and refugees but also to the effective
administration of border facilities. UNHCR also
recognises that that to ensure asylum seekers and
refugees are able to access protection in South
African territory in a lawful manner that the
'effective approaches to mixed movements will
inevitably depend upon full cooperation amongst
key actors' including governmental bodies. In light
of the effect of poor procedures and coordination
between government departments on vulnerable
groups referenced above, we believe the BMA Bill
should be clear on procedures for this group. While
the BMA Bill may be limited to more the broad
function of establishing a framework for border
management, we believe that it must be proactive
in providing for the protection of vulnerable groups
where possible.
RECOMMENDATION 3: The SCCT recommends that the BMA Bill clearly define the roles of government departments and agencies to facilitate coordination and effective governance of border management functions with the treatment of vulnerable groups as a special consideration.
Toward this end, the SCCT recommends references to the Refugees Act (No 130, 1998)
Clause 15 covers the comment on the
treatment of vulnerable groups.
33
for protection of refugees, asylum seekers and unaccompanied minors and references to the Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32, 2007) and the National Policy Guidelines for Victims of Sexual Offences (1998) for the protection of survivors of SGBV. See comment on inclusion of specific policy
statements.
23 Funds of Authority No comments received
24 Immovable property No comments received
Chapter 8: Committees and Implementation protocols
BUSA 1. Chapter 8: Committees and Implementation
Protocols
BUSA is concerned that other organs of state may
continue to undertake duplicate inspections once
cargo has been moved from the border law
enforcement area, thereby hampering legitimate
trade. BUSA therefore proposes the insertion of
the following provision as section 28 (5):
“establishing systems, forms, procedures and
protocols to ensure that each organ of state does
not duplicate the execution of functions carried out
by any other organ of state in respect of a person
affected by this Act”
Refer to NEDLAC Report on page 35 – this
was not registered as a substantive area of
disagreement.
25
Inter-Ministerial
Consultative Committee
Katleho Mogase Inter-Ministerial Committee ought to be abolished
in favour of a Ministerial committee that is headed
by the Minister with representatives from all
affected department and also citizens.
The IMCC will address policy related issues
and exercise oversight over the BMA.
34
DOJ Clause 25(3) provides for the compilation of the
Inter-Ministerial Consultative Committee. It is
noted that the Ministers of International Relations
and Co-operation and of Justice and Correctional
Services will not form part of this Committee,
although the President may designate any other
Cabinet member.
The list of Ministers in subclause (3) appears to be
in alphabetical order and it is suggested that the
words “Economic Development” in subparagraph
(x), be inserted before “Environmental Affairs” in
subparagraph (iv).
Clause 25(5) states that the Committee may
determine its own rules and procedures. It is
suggested that the provision be expanded to read
that the Committee may determine its own rules and procedures which may not be in conflict with this Bill, the Constitution or any other relevant legislation.
Agree, the listing should be alphabetical.
There are already established procedures that
generally regulate Inter-Ministerial
Committees.
The criteria used in determining the relevant Departments included― operational presence at ports of entry
and borderline, policy mandate related to border
management and those Departments which have entities
under their portfolio with functions within the border law enforcement area and ports of entry, for example NRCS.
26
Border Technical
Committee
TBCSA The Border Technical Committee will advise the
Inter-Ministerial Consultative Committee (as
Agree, the word “relevant” should be inserted
after the word “of” and the word “other” be
35
provided for in section 25) on implementation of
legislation and policies, application, outcomes and
operational effectiveness of legislation and
policies, among others. The challenge with section
26(2) is that the other organs of state are not
specified here, whereas they are specified in
section 25 which seeks to establish the Inter-
Ministerial Consultative Committee. Therefore, the
portfolio committee should amend section 2 (2) to
include heads of organs of state mentioned in
section 25(3).
For the sake of clarification and interpretation, it is
suggested that:
− either insert the word “relevant” before the word
“heads” ,
− or specify which other organs of state are being
referred to here.
deleted.
It is standard practice within Government that
Technical Committees at Directors-General
level replicates the membership of Inter-
Ministerial Committees. Membership of the
Border Technical Committee may be extended
beyond the relevant Departments mentioned
under clause 25.
27
Advisory committees Fruit South Africa FSA notes that the Bill requires that three separate
committees be established with oversight and
“technical” responsibility, they are “The Inter-
Ministerial Consultative Committee”, the “Border
Technical Committee” both of which will be made
up of state officials only.
Clause 27 provides for the Minister to appoint
“Advisory Committees” to advise the Minister or
Commissioner on border management issues and
the functioning of the Authority.
Clause 27(2)(d) addresses the concern.
36
The Minister is not obliged to appoint or consult
with non-state parties directly affected by border
controls. FSA believes that it is important that
industry bodies such as FSA and others are able
to provide input on regulations or other legislation
which might impact on border efficiency and
international trade or travel.
The FSA submits that Clause 27 should be
reviewed and a mandatory requirement for
industry representative bodies to be appointed to
Advisory Committees inserted.
28
Implementation protocols SAPS ….it is clear that the implementation protocols
provided for in clause 28 [of the Bill] will create a
guiding framework where the processes and
procedures are clearly stipulated in detail. The co-
operation between the BMA and SAPS as well as
the co-ordination of law enforcement functions,
exchange of information etc. will be guided by the
implementation protocols.
Refer to the memo signed by the DG of DHA
and the Acting National Commissiner.
29
Delegation by Minister No comments received
30
Review or appeal of
decisions
BUSA BUSA believes that written reasons for decisions
should be provided and should meet certain
criteria. BUSA therefore proposes the insertion of
Section 30 (6) as follows:
“ (1) Every decision of the Commissioner must be
in writing and be
(a) consistent with the Constitution and all
Refer to NEDLAC report on page 43 – this was
not registered as a substantive area of
disagreement.
37
applicable laws;
(b) in the public interest;
(c) within the powers of the Authority, as set out in
this Act
(d) taken within a procedurally fair process in
which affected persons have the opportunity to
submit comments and present relevant facts and
evidence to the Commissioner; and
(e) based on reasons, facts and evidence that
must be summarised and recorded; and such
factual and legal reasons must be explained
clearly in the written decision.
(2) Any decision of the Commissioner and the
reasons therefor must• be made available to the
affected party.
BUSA proposes that the Section on Appeals be
amended to include an independent appeal body.
In respect of claims for damages only being
possible through the courts, BUSA is aware of
other legislation which allows for Consent Orders
to be confirmed by an independent appeal body
and that such Consent Orders may include an
award of damages to the complainant provided
that both parties agree. In other legislation,
Consent Orders refer to when both parties to the
dispute agree to the proposed terms of an
appropriate order after the matter has been
resolved through:
(a) The ombud;
(b) Alternative dispute resolution agent;
38
(c) Agreement between the National Credit
Regulator and the respondent; or
(d) Agreement between the Competition
Commission and the respondent, as the case may
be.
The Tribunals, established in terms of the
legislation referred to above, confirm the
appropriate order, on the terms agreed between
the parties. Once the parties have agreed to a
Consent Order and it has been confirmed by the
Tribunal, no party may afterwards commence an
action in a civil court for the assessment of the
amount or awarding of damages. BUSA is
therefore of the view that a similar “Consent Order”
concept, and other dispute resolution processes
could be built into the BMA Act. In this regard,
wording for the dispute resolution provision is
proposed as section 30(7), as follows:
(1) A person aggrieved by a decision of the
Commissioner, an officer or an official to which this
section applies, or has any other dispute in terms
of this Act, may apply in writing to the
Commissioner to have the matter resolved through
alternative dispute resolution procedures.
(2) The Commissioner must consider an
application in terms of sub-section (1), and refer a
matter for alternative dispute resolution only if-
(a) the decision is appropriate for alternative
dispute resolution;
39
(b) the Border Management Appeal Board has not
already considered the decision on appeal; and
(c) the decision is not subject to any judicial
proceedings or pending judicial proceedings.
(3) The Commissioner must refer all appropriate
disputes for resolution by mediation or conciliation
to the ADR division of the Border Management
Appeal Board or a Mediator accredited by
accreditation agencies as determined by rule.
(4) If the Border Management Appeal Board, or an
accredited Mediator, to whom a matter is referred
for alternative dispute resolution concludes that
either party to the conciliation or mediation is not
participating in that process in good faith, or that
there is no reasonable probability of the parties
resolving their dispute through that process, the
Border Management Appeal Board or accredited
Mediator must issue a certificate in a prescribed
form prescribed stating that the process has failed,
where after it will be referred for determination by
the Border Management Appeal Board.
(5) In the event that the matter is referred to the
Border Management Appeal Board in (4) above,
the Border Management Appeal Board may;
(a) Dismiss the appeal; or
(b) Set aside the decision and replace it with a
suitable, alternative decision; and
(c) In the event that the appellant suffered injury or
damage as a result of the decision overturned,
refer the matter to court for the quantum of the
40
compensation to be determined. Such a referral
must be accompanied by a copy of the Appeal
Board’s finding.
Furthermore, in respect of consent orders, BUSA
proposes the insertion of a new section 30(8) as
follows:
(1) If a matter has been –
(a) resolved through an alternative dispute
resolution process agent;
(b) determined by the Border Management Appeal
Board [or the Commissioner], and an appropriate
settlement to compensate for damages arising
from the determination has been agreed between
the disputing parties; the Border Management
Appeal Board or a court, without hearing any
evidence, may confirm that resolution or
agreement as a consent order.
(2) With the consent of a complainant, a consent
order confirmed in terms of this section may
include an award of damages to the complainant.
(3) A person who has suffered loss or damage as
a result of any matter governed by this Act which
the Border Management Appeal Board has
jurisdiction to determine, may not commence an
action in a civil court for the assessment of the
amount or awarding of damages if that person has
consented to an award of damages in a consent
order.”
Designation, determination, DOJ Clause 31 provides that the power to designate, Agree, amend the heading as suggested. A
41
31 appointment, prescription,
withdrawal or cancellation
of ports, points or places of
entry or exit
determine, appoint, prescribe, withdraw or cancel
any port, point or place of entry or exit may only be
made with the approval of the Minister of Home
Affairs. The Minister must, prior to the actions
mentioned above, publish a notice in the Gazette
for public comments for a period of not less than
30 days. It is submitted that it is the designation, appointment and prescription which is withdrawn or cancelled and it is suggested that the heading and the wording of the clause should reflect this. As an example,
section 9A(2) of the Immigration Act provides that
the Minister may, on good cause shown, withdraw
the designation of a place of entry or exit.
heading is not a substantive matter but assists
in interpreting the provision. The current
formulation attempts to summarise and align at
least 6 existing pieces of legislation on the
matter as provided for in clause 40(1) of the
Bill.
Transnet Transnet recommends that the above clauses (31 and 40) should be reconsidered and consideration be given to align the Bill with the regulatory requirements referred to in clause 40.
It is about legal certainty. In general, after the
Bill has been adopted by the National
Assembly, and signed by the President, an
audit of all pieces of legislation may be
undertaken in order to deal with the question
whether amendments, or repeal, of other
legislations should be done.
32
Reporting No comments received
33 Exemption from payment
of fees or tolls
No comments received
34 Confidentiality No comments received
35 Liability No comments received
36 Offences and penalties DOJ Clause 36(1)(d) provides that it is an offence to
resist, hinder or obstruct an official in the
Agree, the wording should be amended to
read as follows:
42
performance of his or her functions or duties under
this Act or any other relevant legislation. Clause 15
refers to duties, functions and powers of officers
and clauses 18 – 21 also provides for certain
powers of officers and it is suggested that the powers be included.
Clause 36(4)(b) provides that it is an offence for an
officer to commit a breach of the prescribed
disciplinary code related to the border law
enforcement functions of an officer. It is trite law
that all offences must be clearly proscribed and the
question arises whether this provision is not too vague. Furthermore, what would the position be if the disciplinary code is amended from time to time?
Clause 36(5) contains penalties for the offences
created in clause 36(1) to (4). Clause 36(5)(a)
provides for a sentence of a fine or imprisonment
not exceeding 10 years or to both such a fine and
imprisonment in respect of the offences referred to
in subclauses (1) and (2). Subclause (4)(a) makes
it an offence for an official to contravene clause 34
regarding the confidentiality of information. Clause
36(5)(b) provides that if a person is convicted of
this offence, that person is liable to a fine or a
period of imprisonment no exceeding 12 months or
to both a fine and imprisonment. …, clause 36(4)
(b) makes it an offence for an officer to commit
breach of the prescribed disciplinary code related
“(d) … of his or her … functions, powers or
duties…”.
It follows that once the law is amended, it is
applied as amended.
There are guidelines on sentencing that may
be applied.
43
to the border law enforcement functions of an
officer. Besides the fact that the view is held that
the provision is vague, clause 36(5)(c) which
provides for the penalty for this offence, does not
specify the period of imprisonment of a person who
is convicted of this offence.
When no term of imprisonment is prescribed, it is
left to the court’s discretion to impose a term of
imprisonment within its jurisdictional limits. It is suggested that, in order to ensure compliance with the principle of legality, consideration be given to the scrapping of clause 36(4)(b) or to specifying the term of imprisonment, as was done in respect of the other offences in clause 36.
37 Regulations DOJ Clause 37(1) states that the Minister may, after
consultation with the Commissioner, make
regulations regarding several aspects relating to
the Authority. It must be mentioned that there is a
distinction between the expression “after
consultation with” and “in consultation with”.
Since the regulations concern the operations of the
BMA with the Commissioner as its head, the view
is held that it might be appropriate for there to be
concurrence between him or her and the Minister
regarding the contents of the regulations and not
merely that his or her views be taken into account
by the Minister.
It is the Minister’s prerogative to make
Regulations and in any event, the
Commissioner is the one to facilitate such
process.
44
Clause 37(4) provides that the Minister may make
regulations that prescribe different penalties for
different degrees of misconduct of officers in
breach of the disciplinary code of conduct for
officers. It is uncertain if the code of conduct
referred to in this clause is the same code of
conduct referred to in clause 36(4)(b) which
provides that an officer commits an offence when
he or she breaches the prescribed disciplinary
code related to the border law enforcement
functions of an officer
It is the same code of conduct mentioned in
clause 37.
38 Transfer of employees
from organ of state to
Authority
No comments received
With regard to the question that the transfer of employees must be done in writing, this will be dealt with in terms of
established labour processes, and procedures, as provided in terms of the Public Service Act and the Labour Relations Act,
1995. Transfer of employees follows established bargaining processes.
In relation to a shorter period to give effect to the transfer, this will be dealt with in terms of established labour processes,
and procedures, as provided in terms of the Public Service Act and the Labour Relations Act, 1995. Transfer of employees
follows established bargaining processes.
All labour disputes are dealt with through labour processes.
45
39 Assets, liabilities and funds No comments received
40 Ports, points and places of
entry or exit
Transnet Ad clauses 31 and 40 : From an administrative
law perspective, these two clauses may be
irreconcilable with each other. In terms of
administrative law, the power to issue a
determination would normally include the power to
change, amend or withdraw such determination
where the functus officio principle does not apply.
In the current instance, the power to determine a
port, point or place of entry or exit would include
the power to change or withdraw such
determination.
Where the powers to determine a port, point or
place of entry or exit under the laws referred to in
clause 40 of the Bill do not reside with the Minister
of Home Affairs, the power of the Minister of Home
Affairs to take charge of this process in terms of
the Bill and even withdraw or cancel a designation
would be undermining the “original” statutory
powers of the authority empowered with these
powers under the laws referred to in clause 40.
Consequently, there appears to be a need to have
proper statutory alignment between the laws
dealing with the determination of ports, points and
places of entry or exit, therefore making provision
for a consultation requirement in the Bill does not
resolve the matter.
Transnet recommends that the above clauses
See earlier comment on clause 31.
46
(31 and 40) should be reconsidered and consideration be given to align the Bill with the regulatory requirements referred to in clause 40.
41 Recognised trade unions No comments received
42 Short title and
commencement
No comments received
General Comments
Commentor Comments DHA Response
Katleho Mogase [[email protected]]
BMA Board]: I think it may be better to introduce a Board to this Agency,
for the purposes of reporting as well as separating functions that the Bill
has compounded at the moment. The Board would report to the Minister
of Home Affairs and also allows for the introduction of a Chief Financial
Officer, so that the Commissioner and CFO as well as members of the
public [/] or industry experts are part of the Board. The separation here is
taking accounting powers away from the Commissioner. This is too much
power in one person, where they are the Commissioner and Accounting
Officer and overseeing the Border Officers. The creation of a Board also
allows for a representative or two from the SADC community in order for
us to fast-track the free trade area debate, as well as recognising that we
ought to rid ourselves of the colonial borders imposed on us, all while
maintaining territorial sovereignty.
The Minister and IMCC have oversight duties
related to the BMA.
Fruit South Africa The Perishable Products Export Control Board (“PPECB”) is assigned by
the Department of Agriculture Forestry and Fisheries (“DAFF”) to be the
provider of product quality certification and cold chain management
services for producers and exporters of perishable food products. As a
partner in the fruit export industry it supplies critical services to FSA
The current process of identifying laws or
provisions therein for the Proclamation will
address whether or not and which function
should be transferred to the BMA.
47
members in ensuring that South African fruit meets with the required
standards in export client countries and that South African quality
certification is recognized as credible globally. The PPECB is responsible
for managing the export cold chain, it ensures that refrigerated perishable
products leaving the country are handled, stored and transported at
specific temperatures and optimum conditions. The PPECB provides a
comprehensive service to fruit exporters that includes the inspection and
approval of cold stores; refrigerated containers, specialized reefer
vessels, the monitoring of loading processes and the on-route
temperature management of produce. The PPECB provides third party
assurance that the container, vehicle or vessel used to transport
perishable products intended for export meets technical and hygienic
standards. PPECB assessors ensure that the mode of transport is
technically sound and inspect the cleanliness thereof. The PPECB
provides assurance to foreign import customers that they are receiving
products of sound quality which adhere to the technical equipment
specifications, hygiene standards, product conformity and temperature
requirements of their country. This involvement from product quality
control at source through to final loading on export carriers means that
PPECB officials undertake quality inspection tasks in ports and at border
law enforcement areas as defined in the Bill as well as at farms, cold
stores and pack houses throughout South Africa.
The FSA submits that the activities of the PPECB will not fall within the
ambit of the BMA, that the Boards interventions are “quality control” and
not “border control” and that a substantial proportion of the work of Board
officials is conducted inland, away from ports and borders.
It further submits that the work undertaken by Board officials is of
technical nature and requires specific knowledge relating, inter alia to fruit
quality, cold chain requirements and plant diseases. It will be completely
48
inappropriate and self-defeating to place this area of cold chain
management and quality control under the direction or oversight of the
Authority. The FSA submits that the PPECB must continue as an independent organ of state mandated by and responsible to the DAFF.
DOJ It is further assumed that consideration was given to the possible
consequential amendments or repeal of other existing laws. A law that
comes to mind is, for example, the Cross-Border Road Transport, 1998
(Act No. 4 of 1998). Part 8 of the Cross-Border Transport Act, 1998, also
contains law enforcement provisions which could overlap with the
provisions of the Bill relating to cross-border road transport.
There is no immediate need to amend other
pieces of legislation as the option of
transferring powers and functions of the BMA.
Kimberly Resource Centre In line with parliament’s principle of facilitating public participation,
monitoring and oversight function over the legislative processes,
Kimberley Resources hereby make submission to participate in the public
hearings and commit delegation of 2 at your invitation regarding the
above-mentioned matter. The company may raise any other view
pertaining to border in advance for economic development of borders and
any other views that will assist the country to adequately manage borders
for the benefit of the entire society.
Chairperson, Border Management Authority Bill should focus more on
border communities for planning to ensure budget allocation makes
provision for learnership programmes of young people for economic
empowerment and recruitment preferences as immigration officers and
other personnel. Awareness campaigns for border communities to assist
in prevention of border crimes. We therefore support any advisory
committee for the establishment of inter-ministerial consultative committee
and border technical committee.
Border Management Authority Bill should seek to strengthen community
Noted, and this will be part of the BMA’s
engagements with stakeholders. The Bill
makes provision for interaction with border
communities.
49
partnership to unite families across borders and not separate them.
Border communities are directly affected by decisions made for border
management in terms of human resource development to assist in
effective border management for reducing illegal goods cross border.
Families living across these borders should ensure that border fencing
erected by colonial masters do not disadvantage them from economic
transformation by means of trading to enter main-stream economy.
Trading opportunities must be directed to border communities because
they spend their hard earned money living across borders and they should
be direct beneficiaries.
In reference to newspaper article, The Star (13/12/2012) our grandparents
across the border whom have passed on, have painfully witnessed the
erection of border fence which separated them from their loved ones. It is
therefore relevant for us to support the establishment of inter-ministerial
consultative committee for border management in advance to wishes of
our grandfather Kabalano Bontsi in Botswana, may his soul rest in peace.
In conclusion, we thank you for the opportunity of participatory democracy
and convey good wishes.
Durban Chamber of Commerce and Industry
The Durban Chamber of Commerce and Industry welcomes the
opportunity to comment on the Border Management Bill. The Chamber
acknowledges the need to have such a bill implemented given the many
undesignated boarders leading to many illegal immigrants. However, such
a bill needs further consideration in establishing the entity.
Research indicates that Canada is perhaps the only country with a single
border agency. The Canada Border Services Agency was established in
terms of the Canada Border Services Act to integrate the functions of
customs, immigration and food inspection/biosecurity similar to what is
proposed in the South African BMA Bill. The United Kingdom also
Refer to agreements with departments
50
established an integrated border agency in 2008 but it was abolished in
2013 and split into smaller and more focused structures due to the
performance of the border agency “not being good enough” and it had
developed into a “closed, secretive, and defensive culture”. From such
findings, it is evident, an integrated border agency has proven
internationally to be unsuccessful; it is therefore important that South
Africa learns from these lessons and reconsider its proposal.
Consolidating all border management issues directly under one Ministry,
in this case Department of Home Affairs, would be a mistake and
detrimental to business. Combining the complexities of customs cargo
control with that of immigration will if anything negatively impact on freight
supply chains. SARS revenue collection responsibilities through Customs
are critical to the financial well-being of the country. Furthermore, the
collection of Duty and VAT on imported goods is a complex process that
SARS have managed with a wide range of electronic interventions
ranging from manifest control, declaration submission and risk
management therefore tampering with the control or management of
these systems would have serious consequences.
The Chamber supports the need for integrated and coordinated border
management that facilitates secure travel and legitimate trade. This is
critical to the functioning of the economy and for economic growth.
However, it is important not to fragment that existing tax system. It is
inappropriate to assign the collection of revenue of SARS to BMA. Tax
authorities are established for a particular reason. SARS function extends
beyond revenue collection and covers other functions such as control of
goods at ports of entry, regulation and rulings, record keeping and returns,
audits and investigation, dispute settlements, internal investigations and
functions performed by the tax ombud. Therefore, BMA should not
51
recreate a revenue collection infrastructure.
The fragmentation of the tax system will lead to the following, lack of
clarity between SARS and BMA as to which entity should collect what
taxes, this would compromise the certainty that taxpayers require as to
the tax collection entity in respect to various or all taxes. The
fragmentation of the tax collection may result in some tax not being
collected or some tax payments by tax payers being duplicated. This will
result to the integrity of the South African tax system being questioned.
During the last week of August 2015, SARS prevented R 78 million of
foreign currency from illegally exiting the country via the Oliver Tambo
Airport. It is evident that the SARS collection functions and activities with
regard to the control of goods at the ports of entry into South Africa have
improved. These functions may be compromised, if the functions were to
be transferred from SARS to BMA.
SARS has over time developed credible mechanisms of revenue
collection, including employment and training of personnel to manage
revenue collection. The integration of BMA in the tax collection may
interfere with the fundamental mechanics of revenue collection, such
mechanisms in which tax payers are already familiar with, as well as
introduce personnel that are not equipped on revenue collection matters.
At present some 2498 employees of SARS are involved in the
implementation of SARS customs policies. It stands to reason that BMA
will seek to absorb this staff when the Bill is implemented. In the event
employees prefer to remain with SARS, BMA will be deprived of key skills
to execute revenue collection. Therefore such a Bill indeed raises a
concern in terms of skills and employment being compromised.
The Bill reveals that the assignment of the functions of SARS to the BMA
is not strictly necessary to deliver on the key objectives of the Bill such as
52
provide for the establishment, organisation, regulation, and control of the
BMA, to provide for the transfer, assignment, and designation of law
enforcement border related functions to the BMA and to provide for
matters connected thereto. Furthermore, assignment of the functions of
SARS to the BMA is not necessary to further the following purposes of the
Agency, to perform border law enforcement functions within the borderline
and at ports of entry, coordination of the implementation of its border law
enforcement functions with the principal organs of state and may enter
into protocols with those organs of state to do so and the provision of an
enabling environment to facilitate legitimate trade.
Should SARS not have the capacity to serve the points of entry it would
be more feasible to improve their infrastructure as opposed to fragmenting
the tax collection system. It is important that the powers of tax
administration remain with the Commissioner of SARS, if transferred it
may be in conflict with Constitution of South Africa and contrary to TAA
(Tax Administration Act).
According to the 2014 tax statistics by SARS the total of customs duties,
import VAT and ad valorem import duties collection amounted to R 176.9
billion for the 2013- 14 fiscal year, approximately 19% of total revenue
collected. Therefore, it is important to consider the timing of the Bill,
especially at this critical time in South Africa’s economy.
The focus on the fundamentals of the economy namely employment and
creation and maintenance of an environment conducive to successfully
conducting business are imperative. Distorting the tax system may be
costly and uncomfortable for business as many of their operations are
already in line with specifications of SARS. It is important that the South
African Tax system does not lose credibility as this will primarily impact
the business environment resulting in uncertainty and doubt among
53
businesses.
It is imperative that the mandate of the South African Police Services is
not ignored. The current Bill has the potential to impact the performance
and duties of the SAPS. The preamble does not mention the constitutional
mandate of the SAPS in the border environment and fails to mention the
fact that the SAPS is a single service and law enforcement is a SAPS
primary function. Legitimate movement may be interrupted an illegal
movement if not undertaken by experienced authority. Furthermore, the
Bill mentions cooperation and coordination with other state organs in
border law enforcement but once again does not mention the SAPS. The
Bill indicates after an arrest has been made the person should be handed
over to SAPS, however a procedure is not outlined. The Chamber
acknowledges that the primary responsibility in the prevention and
prosecution lies with the SAPS together with the Metropolitan Police. It is
important to note that SAPS and Metropolitan Police are mandated and
have the necessary expertise to carry out “zero tolerance policing
strategies”. It is law enforcement authorities that ensure a safe and livable
City. Furthermore, law enforcement agencies ensure full coverage for
South Africa’s geographical space through visibility, timely responses and
decisiveness. Therefore they should be given a fair opportunity in
participating in the enforcement of such a Bill.
The Chamber recommends the physical control of both export and import
freight alone with revenue collection should remain with an independent
Customs Authority (SARS) as is the case now but with legislated
requirements for inter co-operation which would include both Department
of Home Affairs and Border Police and other agencies. Similarly, SAPS
who currently have security responsibilities at borders should be left in the
hands of police management (SAPS) but with much improved inter
54
agency communication and co-operation.
Furthermore, the Chamber feels that the co-operation between the public
and private sector is non- negotiable and both parties will do more to
facilitate meaningful discussion between Business and government
particularly on issues on such a Bill. A sound strategy cannot separate
one from the other and their interdependence is the very reason that any
strategy needs to reflect strong co-operation and collaboration throughout
the process of formulation.
Transnet SOC Ltd Transnet fully supports the establishment of the Authority through the Bill. Noted.
BUSA Introduction BUSA is a confederation of business organisations including chambers of
commerce and industry, professional associations, corporate associations
and uni-sectoral organisations. It represents South African business on
macro-economic and high-level issues that affect it at the national and
international levels. BUSA’s function is to ensure that business plays a
constructive role in the country’s economic growth, development and
transformation and to create an environment in which businesses of all
sizes and in all sectors can thrive, expand and be competitive.
As a principal representative of business in South Africa, BUSA
represents the views of its members in a number of national structures
and bodies, both statutory and non-statutory. BUSA also represents
businesses' interests in the National Economic Development and Labour
Council (NEDLAC).
General During the recent engagements at NEDLAC on the initial and subsequent
version of the Border Management Authority (initially, Agency) Bill, BUSA
The NEDLAC process addressed the issues
raised by BUSA.
55
consistently opposed the establishment of a new agency / authority for a
number of reasons. The major change between the initial and subsequent
version of the Bill is that chapter 5 and schedule 1 which dealt with the
transfer of functions has now been deleted on the advice of the Chief
State Law Advisor’s Office that the approach initially proposed was
unconstitutional. However, many of the reasons for originally opposing the
Bill remain in the version of the Bill presented to the Portfolio Committee.
These are summarised below for convenience:
The costs associated with the establishment of a new agency in
a constrained fiscal environment. We are furthermore concerned
that there is a substantial difference in the cost estimate provided
for in the SEIA and that which has been communicated by the
DHA.
The fact that the findings and recommendations of the SEIAS
commissioned by the Department of Home Affairs (DHA) have
seemingly been ignored without adequate justification. This
assessment recommended against proceeding because of the
high risk and high costs associated with a wholesale transfer of
functions. BUSA supported the recommendation made in the
SEIA to establish the BMA as a co-ordinating agency only,
without transferring the functions from the relevant line
departments. No adequate reasoning was provided as to why
this recommendation was discarded in favour of creating an
implementing agency. BUSA agrees with the authors of that
report that the establishment of such an agency is a high risk
venture. We recognise the commitment of government to a risk
mitigation strategy but are not convinced that the risk should be
taken in the first place.
BUSA notes that the primary thrust of the legislation is to combat
the illicit movement of people and goods across borders. Whilst
56
this is certainly a policy priority, and we recognise that there is a
need to address this, we are concerned that the Bill confuses the
combatting of illicit trade and migration with the promotion of
legitimate trade and migration. The Bill in no way whatsoever
seeks to promote legitimate trade or assist in facilitating the
legitimate migration of people. In line with these comments, we
are concerned about the negative impact that the militarisation of
the border environment will have on legitimate trade and
migration.
BUSA believes that the risk of a negative impact on legitimate
trade is high particularly given the fact that the process of
implementing the new customs Acts has only just begun.
BUSA further believes that functions related to trade facilitation
such as customs and phytosanitary inspections conducted at
ports of entry and exit will be harmed by the fact that the border
officials will no longer be working under the supervision and
instruction of the relevant line departments where the specialist
expertise lies.
It is considered paradoxical that a new agency is required in
order to mend the lack of horizontal integration between different
government departments at the ports of entry and exit, yet
vertical integration between border officials and the relevant line
departments is expected not to deteriorate if the border officials
are separated from their parent line departments. If the ‘vertical’
relationship between the border officials and the line
departments can be maintained through MoUs, service level
agreements and an inter-ministerial committee, then why is new
legislation required for horizontal integration at the border? Why
can the current lack of integration between officials from different
departments at the border not be resolved through MoUs, SLAs
57
or an inter-ministerial committee?
The separation between policy formulation and enforcement is
considered problematic. Review of the functions to be transferred
shows that functions that may be currently delegated to a front
line staff member of a principal department does not remove the
responsibility for the function from the senior official who remains
in the principal department.
Advice received by DHA from the Chief State Law Advisor’s
office explained that the only way that functions can be
transferred from the Minister currently responsible for the
function is by presidential proclamation. We accept that this is a
lawful process provided for in the Constitution, however, such
proclamations are not subject to public consultation.
Notwithstanding BUSA’s reservation in principle about
transferring the functions, we were willing in the Nedlac process
to engage on the schedule of functions to be assigned and
provide comments as there were specific issued identified that
must be dealt with. Now that the schedule has been removed
and replaced with the process of presidential proclamation,
BUSA will have no forum to raise these specific issues as the
process provided for does not pass through Nedlac or Parliament
- nor does it provide for any mandatory public consultation or
prior publication. These specific comments included, but were
not limited to:
Given the original approach in the Bill which in BUSA’s view
proposed transfer of a number of functions which in fact were
undertaken outside the border law enforcement area or could
be exercised concurrently within or outside of the border law
enforcement area. We were concerned that a transfer of
those functions will also affect the exercise of those functions
58
within the country and not just within the border law
enforcement area. The advice of the Chief Law Advisor is that
amendment of the principle legislation may not be required as
the relevant powers will be undertaken concurrently, however
we have our reservations as to the accuracy of this given the
complexity of certain legislation. Moreover, Business’ general
experience with concurrent powers is that it reduces
efficiency.
Many of the powers transferred are powers which specific
laws confer upon the highest administrative authority within a
line department, which he or she then delegates to officials.
By transferring this function to the BMA wholesale, the
administrative authority in the line function will not be able to
exercise oversight functions.
Several other concerns were raised regarding legislation identified in the
schedule. Once the schedule has been removed, BUSA has no indication
whatsoever regarding which functions are to be transferred and which not.
This makes it impossible for us to express a view as we do not know
which legislation it is that the administration of which will be transferred via
proclamation. And as stated, we may now not have a platform to raise
these specific concerns.
Clarity provided by DHA that there will be two risk management units
for trade; one the existing unit in SARS and the new one in the agency
is welcome in that it is now understood that there will be two risk
management units for trade. Risk management in trade is largely a
pre-border control activity, which is taken outside the border control
area. It remains unclear however what the relationship between the
two risk management units will be. It is a significant concern that
traders may be subjected to two different risk assessments, which
59
cannot be acceptable. There also appears to be an intention to have
SARS staff (in addition to the customs control officers that will be
transferred) operating at the risk assessment unit at the border.
BUSA fully supports the view expressed by the Davis Tax Committee
in respect of the transfer of SARS functions to the BMA, namely that
“to put so significant a contribution to the fiscus in a position of
uncertainty [if the Bill were to be implemented] is fiscally imprudent at
this critical juncture for the South African economy”.
Detailed Comments
1. Agency Creation
In the Socio-economic Impact Assessment Study (SEIAS) commissioned
by DHA on the draft Bill, the establishment of a Border Management
Agency was determined to be a substantially less cost effective option
than capacitating the SANDF to perform the function (R15 – 24 billion as
compared to projections of R2.5 billion for the SANDF to perform the
function). In the current constrained fiscal environment, with the prospect
of an imminent sovereign debt rating downgrade, the fiscal space for the
establishment of the BMA is simply not available. DHA has provided no
information on the funding required for the establishment of the BMA.
BUSA believes that availability of the necessary funding for the
establishment of the BMA should be clarified well before its establishment.
In addition, the key challenges that the Bill purports to resolve all relate to
the movement of people rather than the movement of goods. Whilst BUSA
acknowledges that there are serious challenges relating to the illicit
movement of goods, measures to combat illicit trade should not be at the
expense of efforts to facilitate legitimate trade. The Bill in its current form
does not contain any measures to promote the latter. Different resources
60
and solutions are required to regulate the movements of goods vs.
people. BUSA therefore is of the view that the functions relating to the
movement of goods and people should be kept separate, and functions
relating to the movement of goods should not be assumed by the
proposed BMA. Additional funding and resourcing for the existing model
appears to be the solution to many of the challenges experienced in
border management. Furthermore, the integration being sought by DHA
should be possible within the existing framework consisting as it does of
line departments representative of a single government. We would
furthermore like to state for the record that BUSA is in favour of the
recommendation made in the SEIA to establish a BMA solely for the
purposes of coordinating the various line departments in the border law
enforcement area, but not to assume their respective functions.
2. Movement of people vs. movement of goods / customs functions BUSA is concerned that the proposed BMA will not have the necessary
financial and human resources to facilitate the movement of legitimate
goods. This is in contrast to SARS, which is highly efficient in managing
the cross border movement of goods. The integration of SARS’ risk
profiling systems into the BMA will also prove highly challenging, with
consequent possible disruptions to trade.
3. Absorption of functions BUSA is of the view that DHA has underestimated the logistical, financial
and legal difficulties inherent in absorbing the various law enforcement
related functions into the BMA. Whilst the BMA is understood to be an
implementing authority, many of the functions which the BMA is
envisaged to perform are captured in legislation where no distinction is
made between enforcement in the border area and the rest of the country.
The principal legislation would in many instances need to be amended as
61
a simple assignment of functions will result in significant legal
complications. Put simply, once a function is assigned to the BMA, what
will happen to the portion of the provision that does not concern the
border law enforcement area? The current situation of vertical integration
of specialist decision making in line departments with responsibility for the
cross border movement of goods will no longer exist, leading to likely
complications in carrying out these functions.
Conclusion For the reasons articulated above, BUSA has serious misgivings about
the establishment of a Border Management Authority. The reasons for
this are primarily due to the inherent risks involved in possible
disruptions to legitimate trade and the demands on a very constrained
national fiscus. BUSA believes that certain of the legitimate concerns
expressed by DHA relating to the movement of people can and should
be resolved through the existing structures and mechanisms or through
the establishment of a coordinating entity as recommended in the SEIA.
Given the inherent risks involved to the country in a financial and
economic sense, caution should be exercised for the foreseeable future
in considering any legislation that increases these risks.
Scalabrini Centre of Cape Town
Introduction 1. The Scalabrini Centre of Cape Town (SCCT) is a registered NPO that
perceives migration as an opportunity and is committed to alleviating
poverty and promoting development in the Western Cape while fostering
integration between migrants, refugees, and South Africans. In providing
our assistance, we advocate respect for human rights and use a holistic
approach that considers all basic needs. The SCCT was founded in 2002
and roughly 2,000 clients use its services each month. Through this daily
interaction the SCCT often hears of the experiences asylum seekers,
refugees and migrants have in attempting to enter South Africa lawfully
The BMA is an implementation organ of state
and it will implement any function assigned or
transferred to it by the parent departments from
time to time.
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and our submission is based on this experience.
2. The SCCT submitted comments on the Border Management Agency
Draft Bill in September 2015 which noted several concerns with that
version of legislation; first, the Draft Bill did not clarify the obligations of
officials in regards to the principle of non-refoulement. The Refugees Act
(No. 130, 1998) incorporates the principle of non-refoulement into law at
section 2 as:
General prohibition of refusal of entry, expulsion, extradition or return to other country in certain circumstances Notwithstanding any provision of this Act or any other law to the contrary,
no person may be refused entry into the Republic, expelled, extradited or
returned to any other country or be subject to any similar measure, if as a
result of such refusal, expulsion, extradition, return or other measure,
such person is compelled to return to or remain in a country where-
(a) he or she may be subjected to persecution on account of his or her
race, religion, nationality, political opinion or membership of a particular
social group; or
(b) his or her life, physical safety or freedom would be threatened on
account of external aggression, occupation, foreign domination or other
events seriously disturbing or disrupting public order in either part or the
whole of that country.
Non-refoulement is thus a critical component of refugee protection but
was only mentioned briefly in an attached schedule in unclear language.
3. Secondly, the Draft Bill did not reference any relevant international legal
instruments that border officials would be required to comply with and
uphold. The most recent version of the BMA Bill alleviates some of our
previous concerns through its reference to the need for officers to take
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due regard to the fundamental rights of persons and international law1
and we thank the drafters for this inclusion.
1As found in clause 15(3) of the BMA Bill.
4. We do however have a number of concerns with the current version of
the Border Management Authority (BMA) Bill. Our main issues of concern
with the BMA Bill relate to:
4.1. The lack of clarity surrounding the current BMA Bill will result in
unnecessary duplication of roles and powers of involved government
agencies and in effect weaken border governance. We are also
concerned that the introduction of the BMA Bill prior to the conclusion of
the Green Paper on International Migration policy consultation process will
result in legislation that does not align to a clear policy statement;
4.2. The need for a robust commitment to the principle of non-refoulement
and further acknowledgement of the vulnerabilities of asylum seekers and
refugees;
4.3. The lack of clarity regarding coordination and roles between state
organs;
4.4. The need for effective oversight and accountability;
4.5. The prevalence of corruption in the current border regime; and
4.6. The costs of implementation and dangers of duplicating bureaucracy.
5. We thank the Portfolio Committee on the Department of Home Affairs
for the opportunity to comment on the BMA Bill.
The lack of clarity surrounding roles of government in the current Bill 6. The most recent meeting on the BMA Bill in the Portfolio Committee on
Home Affairs on 16 August 2016 revealed a lack of agreement between
the key role players in the current configuration of the BMA Bill – the DHA,
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the South African Police Services (SAPS), and the National Treasury.
7. The SAPS presentation at the meeting focused on possible clashes
with the Constitutional mandate of SAPS, the lack of clarity surrounding
coordination, and the possibility of the BMA Bill conflating legal
movements with illegal movements.2 In particular, it was noted that clause
5 of the BMA Bill may clash with section 199(1) of the Constitution which
requires there be a ‘single police service’ for the Republic.
8. The National Treasury's presentation was primarily concerned with the
creation of ambiguity in the customs and tax regime and the creation of a
parallel revenue-collection system that would be outside of the South
African Revenue Service (SARS) and possibly fragment the tax collection
system.3
9. A key concern of the SCCT respect of both presentations is the
duplication of mandates and creation of parallel structures and processes.
For example, it is unclear as to how the border guard will be constituted
and work with existing SAPS members and South African National
Defence Force (SANDF) members currently working on border
management functions. We share the concerns raised in Parliament and
believe that border management will be more effective if it harnesses the
strengths of other departments and is not required to create new forces
and structures from scratch.
10. While all departments agree on the principle aim of border
management, there remain several significant disagreements with how
the BMA Bill should be structured and implemented. From these
presentations, these divisions appear serious and if not resolved prior to
the finalization of the BMA Bill will weaken the governance of border
management.
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The introduction of the Bill prior to conclusion of Green Paper consultation process and White Paper 11. Secondly, we note that the BMA Bill has been released prior to the
conclusion of the Department's Green Paper on International Migration
consultation process (GP), begun in June of this year, which is intended to
inform the formulation of a White Paper, currently set to be released in
early 2017. In its Guidelines for Consultation document on the GP
process, DHA notes that in regards to the current migration policy and
legislative environment, it 'has been amending legislation without a proper
review of the policy framework' and that 'there is a need for a proper
policy review which will inform future changes on the legislation'.4 It notes
further that ‘the objective of a Green Paper is to build consensus and
receive inputs before drafting the official policy document a White Paper.
Thus the purpose of the Green Paper on International Migration is not to
be definitive but to propose broad principles and raise key issues that
need to be addressed by multiple stakeholders in each policy area’.5 It
concludes by stating that the resultant White Paper ‘will contain definitive
proposals for specific policy areas that must be grounded on sound
research and consultation. This will provide a solid foundation for the
drafting of the new legislation’.
12. The introduction of the BMA Bill prior to the GP policy process
indicates that policy directions surrounding issues of migration, border
management and security have already been made prior to consultation.
We note that in the past policy changes by DHA, particularly at Refugee
Reception Offices, have led to a myriad of problems at the nation’s ports
of entry with rippling effects throughout the region. For example, there is
evidence that internal policies discussed by DHA regarding reception
requirements for asylum seekers led to border authorities illegally
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restricting access to transit permits for asylum seekers who declare their
intention to apply for asylum.7 These issues highlight the relationship
between asylum policies and border operations and the consideration of
the BMA Bill prior to dialogue on future migration policy may lead to a
border management framework that is not aligned to migration policy.
13. This is of particular concern as the GP contains several proposals that
would dramatically alter the current configuration of the asylum regime
including detention centres for asylum seekers, the formalisation of
bilateral agreements regarding responsibility for asylum seekers, and a
general move towards the 'externalisation' of migration policy.
14. The SCCT recognizes the importance of border security and
acknowledges that any legislative framework attempting to coordinate and
integrate different departments requires clear spheres or responsibility
among the agencies involved and necessarily requires each agency is in
agreement. At the moment, it does not appear that there is consensus
among government on the current version of the BMA Bill.
15. Additionally, we believe that the adoption of the BMA Bill prior to the
GP consultation process will result in poor policy implementation at great
cost to the State. These two challenges may result in legislation that
instead of improving operations may in fact worsen border management
and coordination. We firmly believe that to be effective any legislation
involving multiple stakeholders and functions must start from a position of
mutual agreement and align to a clear policy statement that is the result of
a transparent and consultative policy process.
RECOMMENDATION 1: The SCCT recommends that the BMA Bill be withdrawn pending the clarification of the roles of government and agreement of these roles by all parties and the finalisation of the
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Green Paper consultation process and adoption of the subsequent White Paper on International Migration. This will ensure consensus on the resulting legislation and that all stakeholders can engage in the policy process and to ensure legislation aligns with policy.
The importance of effective and protection-sensitive entry systems to admit asylum seekers in line with non-refoulement obligations and the connection between increased border controls and irregular migration
16. The SCCT recognizes that the control and management of South
Africa’s borders is essential for a variety of reasons including to facilitate
legitimate trade and movement of people, to combat international crime,
and to avert security threats. Thus the goals of border management are
diverse and effectively addressing each requires a coherent approach that
ensures risks are appropriately managed in such a manner as to promote
regional trade and to ensure human rights obligations are met.
RECOMMENDATION 5: The SCCT strongly urges DHA and other role players to continue to develop effective counter-corruption measures in the border management regime and to build an effective workforce that upholds their obligations and duties.
Costs of implementation 33. The attached 'Memorandum on the objects of the Border Management
Authority Bill, 2016' briefly discusses on the financial implications of the
BMA Bill for the State. Paragraph 5.1 references an estimation of R3,8
Billion in terms of funds required to be re-allocated to the Border
Management Authority. The figure is the result of an Expenditure
Performance Review (EPR) study which is being finalized by the
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Government Technical Advisory Centre.
34. We have several concerns regarding the financial implications for the
state including a lack of clear guidelines or information on how the R3,8
billion figure was reached; the estimation's omission of overlapping costs
due to the BMA Bill's overlapping functions; the cost of a significant
reconfiguration of agencies involved in border management (amplified by
discord between these agencies in terms of their roles and powers in
relation to the BMA Bill); and the possible negative effects on revenue
collection if the Authority begins to collect customs duties as opposed to
SARS officials (this may have further implications for the State in terms of
investor uncertainty and the negative perception of mismanagement).
35. In terms of the EPR estimation, there are no details as to how this
estimation was calculated – this is concerning as there is no way to verify,
or attempt to verify, the accuracy of the calculation which itself has
significant implications for the state. Further, paragraph 5.2 in the
Memorandum states that 'funds will follow functions' and that 'it is
envisaged that additional funds may be required for the establishment of
the Authority'. There are no further details provided on what these costs
might be, where exactly they would be spent, or where the funds would
come from. This shortcoming in the BMA Bill is particularly concerning
given the recent challenges surrounding government expenditure and
funding.
36. We believe that the costs of implementing the BMA Bill are likely to be
significantly higher than the EPR estimation due in large part to the
overlapping of functions between agencies. The cost estimate appears to
not factor in the initial costs of change in management that will come with
the creation of a new agency.
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37. As a cautionary example, the creation of the Department of Homeland
Security (DHS) in the USA (2002) has similar parallels to the current plan
for border management in South Africa. The creation of that agency
should be considered in light of the current BMA Bill in terms of actual,
hidden, and unaccountable costs to the State. One investigation of the
costs of the DHS found that its creation was the result of 22 existing
governments departments being pulled together and that ‘to knit these
disparate parts together, officials built a mammoth bureaucracy over an
already existing set of bureaucracies’ that left a host of ‘programs
scattered across the rest of the federal government’ resulting in many
activities being duplicated by similar programs elsewhere. In effect, the
creation of the new agency has resulted in ‘tens of billions of tax dollars
are disappearing into it annually, black hole–style, since it can’t pass a
congressionally mandated audit’.23 While this does not speak to the
efficacy of the DHS itself nor does it necessarily mean the BMA Bill will
have a similar outcome, we believe that the current BMA Bill would benefit
by a more rigorous analysis of costs and a more concerted effort to avoid
duplication of roles. This may help in ensuring more transparency around
costs and in streamlining operations.
RECOMMENDATION 6: The SCCT strongly urges DHA and other role players to further investigate the costs of implementing the BMA prior to the finalisation of legislation.
Conclusion 38. We again thank the Portfolio Committee on Home Affairs for the
opportunity to participate and comment on the BMA Bill. We agree that
border management functions need to be streamlined and more
effectively coordinated but have reservations about the current legislation
achieving this goal. Along with other government departments and
members of civil society, we are also looking forward to participating in the
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Green Paper process and believe that without a clear policy statement on
migration the current BMA Bill will fall short of its goals at great cost to the
State. We therefore believe the best course of action is to continue to
refine the BMA through engagement with all stakeholders and to align the
BMA with the outcomes of the Green Paper on International Migration
process and subsequent White Paper.
Table of Recommendations
RECOMMENDATION 1: The SCCT recommends that the BMA Bill be
withdrawn pending the clarification of the roles of government and
agreement of these roles by all parties and the finalisation of the Green
Paper consultation process and adoption of the subsequent White Paper
on International Migration. This will ensure consensus on the resulting
legislation and that all stakeholders can engage in the policy process and
to ensure legislation aligns with policy.
RECOMMENDATION 2: The SCCT recommends that the principle of
non-refoulement [as in section 2 of the Refugees Act (No. 130 1998)] is
referenced in the Preamble, included in the list of definitions, and that
clause 15(2) reads as follows:
15 (2) When performing any border law enforcement function, an officer
must exercise his or her powers in a manner that takes due regard of the
fundamental rights of persons as guaranteed under Chapter 2 of the
Constitution, the principle of non-refoulement, and public international law
obligations of the Republic, with proper consideration of the rights and
interests of vulnerable groups, including victims of trafficking, refugees
and asylum seekers.
RECOMMENDATION 3: The SCCT recommends that the BMA Bill clearly
define the roles of government departments and agencies to facilitate
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coordination and effective governance of border management functions
with the treatment of vulnerable groups as a special consideration.
Toward this end, the SCCT recommends references to the Refugees Act
(No. 130, 1998) for protection of refugees, asylum seekers and
unaccompanied minors and references to the Criminal Law (Sexual
Offences and Related Matters) Amendment Act (No. 32, 2007) and the
National Policy Guidelines for Victims of Sexual Offences (1998) for the
protection of survivors of SGBV.
RECOMMENDATION 4: The SCCT recommends that the BMA Bill
should include specific mention to the South African Human Rights
Commission (SAHRC) as having powers of oversight over the BMA to
ensure critical human rights are protected and that security measures are
not implemented indiscriminately or unlawfully, in line with the mandate of
the SAHRC in terms of sections 184(2) and 184(4) of the Constitution.
RECOMMENDATION 5: The SCCT strongly urges DHA and other role
players to continue to develop effective counter-corruption measures in
the border management regime and to build an effective workforce that
upholds their obligations and duties.
RECOMMENDATION 6: The SCCT strongly urges DHA and other role
players to further investigate the costs of implementing the BMA prior to
the finalisation of legislation.
COSATU (and NEHAWU) 1. Introduction The Congress of South African Trade Unions (COSATU) welcomes the
opportunity to make its submission on the Border Management Authority
Bill to the Portfolio Committee.
No official or staff member will be forced to join
the BMA, and there will be processes to deal
with such issues.
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COSATU agrees with government on the need for a single government
organ in charge of and responsible for border management. COSATU
further agrees with government that the management of border security,
migration and customs and trade are critical and extremely sensitive
functions of state that have a decisive impact upon society and the
economy as a whole.
COSATU was deeply concerned with the 2015 draft of the Bill and the
impact its provisions would have upon workers in the affected public
service departments. COSATU and its affiliates have subsequently been
engaged in detailed negotiations with the Department of Home Affairs on
the BMA at Nedlac and in bilaterals with the intention of finding a
consensus on this critical matter.
These engagements enabled COSATU and the government to resolve
many areas of concern in the Bill. However two fundamentally critical
areas of concern to COSATU remain in the Bill. These are locating the
BMA outside the public service and the failure to ban outsourcing.
COSATU remains fundamentally opposed to locating the BMA outside the
public service and to any possible outsourcing of government functions.
2. Engagements with Government and Areas of Agreement
COSATU and its affiliate unions, including the National Health and Allied
Workers Union (NEHAWU), the Police and Prisons Civil Rights Union
(POPCRU) and the Southern African Clothing and Textiles Workers’
Union (SACTWU) have held extensive engagements with the Ministry and
Department of Home Affairs on the Border Management Authority Bill.
These engagements have taken place since September 2015 under the
auspices of Nedlac and in direct bilaterals.
COSATU’s approach has been to strive towards maximum consensus
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with government on the BMA Bill and to ensure workers’ deep concerns
and fears are effectively addressed.
The key areas of disagreement COSATU had with the first draft of the BMA Bill were: Locating the BMA outside the public service. This would entail
redeploying about 10 000 public servants from DHA, SARS, SAPS,
DAFF and DOH to the BMA;
Establishing new labour relations practices and procedures;
Banning BMA staff from the right to strike or protest;
Banning BMA staff from disclosing internal information to outside
persons;
Role of privatisation at the BMA; and
Transferring all customs functions from SARS to the BMA.
COSATU has managed to achieve consensus with the Department of Home Affairs on the following: The BMA will be an authority inside the public sector. However this
remains the key point of disagreement as it would still be outside the
public service which we have indicated we cannot agree to.
Locate the BMA under the Public Service Central Bargaining Council
and be bound by all its policies, procedures and agreements;
Locate the BMA under the Government Employees’ Pension Fund;
Provide that there will be no deterioration of conditions service for
affected public servants moved to the BMA;
The ban on the right to strike and protest on BMA staff is removed from
the Bill. Any such limitation on the right to strike or protest cannot be
applied to non-security staff. If the Minister wants to apply for security
staff to be declared essential, he will have to follow the prescripts of
the LRA and apply and motivate for this to the Essential Service
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Commission.
No security functions can be outsourced. We have asked that this ban
on outsourcing be extended to all functions of the BMA.
The transfer of customs functions will be limited to front line functions
at border posts only in a phased process. The department has
committed itself to establish an ongoing working relationship with
SACTWU to address customs concerns going forward.
BMA staff members’ right to disclosures will be linked to and protected
by the Public Disclosures Act.
Any change in BMA regulations or policies will have to be engaged
with the affected unions.
4. Conclusion
In conclusion, COSATU shares government’s concerns on the state of our
border, migration and customs management. COSATU agrees with
government on the need for a single government department to take
charge of these critical state functions.
COSATU appreciates the important progress our engagements with
government yielded on many of our areas of concern. However COSATU
remains deeply opposed to locating the BMA outside the public service. It
needs to remain within the public service.
Government needs to be bold and ban the outsourcing of permanent state
functions as committed to by the President in January 2015.
Failure to resolve these fundamental areas of concern will see workers in
the affected departments and the broader public service and economy
mobilise against their forced relocation from the public service.
COSATU strongly urges the Committee to consider and adopt its
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