ATC191126: Report of the Select Committee on Security and Justice on the Border Management Authority Bill [B9B-2016] (National Assembly – sec 75), dated 26 November 2019

NCOP Security and Justice

Report of the Select Committee on Security and Justice on the Border Management Authority Bill [B9B-2016] (National Assembly – sec 75), dated 26 November 2019:

 

The Select Committee on Security and Justice, having deliberated on and considered the subject of the Border Management Authority Bill [B9B-2016] (National Assembly – sec 75), initially referred to the Select Committee on Social Services during the 5th Parliament on 8 June 2017 and then referred by the 6th Parliament to the Select Committee on Security and Justice on 31 October 2019, classified by the JTM as a section 75 Bill, reports that it has agreed to the Bill with proposed amendments.

 

Background

The Border Management Authority Bill (The Bill) seeks to provide for:

• the establishment, organisation, regulation, functions and control of the Border Management Authority (BMA);
• the appointment, terms of office, conditions of service and functions of the Commissioner and Deputy Commissioners;
• the appointment and terms and conditions of employment of officials; to provide for the duties, functions and powers of officers;
• the establishment of an Inter-Ministerial Consultative Committee, Border Technical Committee and advisory committees;
• delegations;
• the review or appeal of decisions of officers;
• certain offences and penalties;
• annual reporting;
• the Minister to make regulations with regard to certain matters; and to provide for matters connected therewith.

 

 

 

1. The Bill is tagged as a Bill to be dealt with in terms of Section 75 of the Constitution (a bill not affecting provinces).
2. There are financial implications associated with the Bill. R3,8 billion is currently utilised by key agencies and departments to discharge their ports of entry and border law enforcement functions and it is this funding that will be used to fund the BMA.
3. The Select Committee Social Services, in the 5th parliament, held a briefing on the Bill on 12 September 2017, 07 November 2017, 14 November 2017, 13 February 2018 and 20 February 2018.
4. The Bill was not finalised by the Select Committee Social Services.
5. The 6th Parliament National Council of Provinces passed a resolution, on 17 October 2019, reviving the Bill and further, that the proceedings on these Bills should resume at the stage at which they were at the end of the term; and that where Committees have commenced with the processing of the Bills, work be accepted as having being done by Committees.

 

1. Public participation process on the Border Management Authority Bill [B9B-2016] (National Assembly – sec 75)

 

The 5th Parliament Select Committee on Social Services advertised the Bill on Parliament’s electronic platforms and radio on 15 September 2017 with a deadline for written submissions on 27 October 2017.

 

1. Summary of Submissions (See Annexure A):

 

The Select Committee on Social Services received submissions from the following organisations:

1. Elcort Matlala (“EM”);
2. Refugee Legal and Advocacy Centre (“RLAC”);
3. The South African Association of Freight Forwarders (“SAAFF”);
4. Business Unity South Africa (“BUSA”);
5. Member of Executive Council: Western Cape Government (Mr A Winde) (“WCG”);
6. Public Service Co-ordinating Bargaining Council (General Secretary, Frikkie de Bruin) (“PSCBC”);
7. United Nations High Commissioner for Refugees (“UNHCR”);
8. Lawyers for Human Rights (“LHR”);
9. Congress of South African Trade Unions (“COSATU”); and
10. National Education Health and Allied Workers’ Union (“NEHAWU”).
11. Institute for Security Studies (“ISS”).

 

1. Committee consideration of the Border Management Authority Bill [B9B-2016] (National Assembly – sec 75)

The Select Committee on Security and Justice received a briefing by the Department of Home Affairs on the Bill on 18 October 2019. The Department of Home Affairs responded to the written submissions on the Border Management Authority Bill on 30 October 2019. The Parliamentary Legal Advisor responded on 6 November 2019 to the Department of Home Affairs proposed amendments to the Bill and further amendments were considered on 20 November 2019. On the 26 November 2019, the Committee deliberated on the proposed amendments, went through clause by clause, and adopted the Committee report on the Bill.

 

The Committee had various engagements with the Department of Home Affairs, Treasury, SAPS and SANDF to ensure that all Departments were satisfied with the proposed amendments to the Bill.

 

1. Proposed Amendments agreed to:

 

Proposed amendments by Select Committee on Security and Justice

_______________

Border Management Authority Bill

[B9B—2016]

_______________

 

CLAUSE 1

 

1. On page 5, after line 6, to insert the following definition:

 

““customs related functions” means the functions performed exclusively by the South African Revenue Service under—

1. customs and excise legislation; and
2. any tax Act,

as defined in the Tax Administration Act, 2011 (Act No. 28 of 2011);”.

 

1. On page 5, from line 32, to omit the definition of “revenue”.

 

1. On page 5, after line 33, to insert the following definition:

 

““South African Revenue Service” means the South African Revenue Service established by section 2 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997);”.

CLAUSE 2

 

1. On page 5, in line 44, to omit “This”, and to substitute with “Except where the Act otherwise provides, this”.

 

1. On page 5, in line 45, to omit “exercised”, and to substitute with “performed”.

 

 

1. On page 5, in line 46, to omit “and”.

 

 

1. On page 5, in line 48, at the end of paragraph (b), to remove “.” and to substitute with “; and”.

 

 

1. On page 5, after line 48, to insert the following paragraph:

 

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

 

CLAUSE 5

 

1. On page 6, in line 15, after “;”, to add “and”.

 

1. On page 6, from line 16, to omit paragraph (c), and to omit “and”.
2. On page 6, in line 18, to substitute “(d)” with “(c)”.

 

CLAUSE 22

 

1. On page 12, in line 18, after “Act”, to omit “, excluding revenue collected in terms of section 5(c)”.

 

CLAUSE 27

 

1.         On page 14, from line 3, to omit clause 27, and to substitute with the following clause:

 

            “Implementation protocols

 

        27.     (1)        For the purpose of this section, “implementation protocol” means an implementation protocol concluded in accordance with section 35 of the Intergovernmental Relations Framework Act, 2005 (Act No. 13 of 2005).

(2)        Where the implementation of a policy, the exercise of a statutory power, the performance of a statutory function or the provision of a service relating to border law enforcement functions by the Authority depends on the participation of other organs of state, the Authority and those organs of state must, within a reasonable time after the commencement of the Act, co-ordinate their respective functions in such a manner as may be appropriate or required in the circumstances by entering into an implementation protocol.

 (3)       The organs of state referred to in subsection (2) must, within a reasonable time after the commencement of the Act, enter into implementation protocols with the Authority to collaborate on and ensure the alignment of technological, electronic, information and communication systems and procedures necessary to ensure the efficient sharing of relevant information with the Authority.

 (4)       The Minister may initiate the process for the conclusion of implementation protocols contemplated in subsections (2) and (3) in the Inter-Ministerial Consultative Committee.

(5)(a)     The Authority must, within six months after the commencement of this section, conclude implementation protocols withꟷ

(i)       the Defence Force;

(ii)      the South African Police Service; and

(iii)     the South African Revenue Service,

for the mandatory co-ordination of their respective functions within the border law enforcement area and at ports of entry.

(b)    If any of the implementation protocols contemplated in paragraph (a) are not concluded, the Minister and the Cabinet member responsible for Defence and Military Veterans, Police or Finance, as the case may be, must determine the relevant implementation protocol. 

(6)   The implementation of implementation protocols concluded in terms of this section must be co-ordinated by the Inter-Ministerial Consultative Committee.”.

 

CLAUSE 28

 

1.         On page 14, in line 28, to omit “27(2)”, and to substitute with “27(4), 27(5)(b)”.

CLAUSE 39

 

1. On page 17, in line 26, after “ports”, to insert “, points and places”, and after “entry”, to insert “or exit”.

 

1. On page 17, in line 38, after “under”, to insert “—“, and to omit “subsection”.

 

1. On page 17, from line 39, to omit “(1)(b) or (c), after consultation with the Commissioner of the South African Revenue Service or the Minister of Agriculture, as the case may be”, and to substitute with the following:

 

“(a)      subsection (1)(b), in consultation with the Commissioner of the South African Revenue Service; or

(b)       subsection (1)(c), after consultation with the Minister of Agriculture,

as the case may be.”.

 

1. Consensus on the Bill
   1. Seven members voted in favour of the Bill;
   2. Three members abstained.

 

 

Report to be considered.