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

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(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 [mogasekrc@yahoo.com]

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.

62

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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proposals on the locating the BMA inside the public service and banning

the outsourcing of BMA functions. COSATU believes that this critical Bill

will be invaluably strengthened if these three important areas of concern

are addressed.

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