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BORDER
MANAGEMENT AGENCY/AUTHORITY BILL TO BE SUBMITTED TO NEDLAC FOR COMMENTS
(Comments due by 15 April 2016)
The
Minister of Home Affairs Malusi Gigaba announced the establishment of the
Border Management Agency (BMA) during the budget speech of the Department on
14 July 2014.
According
to the Minister the Cabinet had assigned the Department of Home Affairs with
the responsibility to establish the Border Management Agency (BMA), and that
the function of the agency would be central to securing all ports of entry
(land, air and maritime) in support of the efforts of the South African
National Defence Force to address the threats posed to the South African
borders.
The BMA
will thus be the overarching authority on all matters at the country’s ports
of entry. The BMA will oversee trade and migration at the border posts.
Home
Affairs Minister Gigaba maintains that South Africa have to manage
immigration securely and effectively in a way which benefits the economy and
society, in line with our international obligations and that the Department
of Home Affairs also has an obligation to manage risks to national security.
Cabinet
approved the submission of the Border Management Authority Bill to
Parliament on 26 September 2015.
“The bill
aims to establish the BMA which will balance secure cross border travel,
trade facilitation and national security imperatives” said Radebe.
He says
different government agencies and departments will report to BMA officials.
“In this
bill it explains the responsibility of various government departments that
they would have to work under the authority of the Boarder Management
Agency, including issues of South African Revenue Service.”
The
deadline for the establishment of the BMA was set for the end of this year.
At the time
of the announcement of the BMA in July 2014, the Department of Home Affairs
was busy conducting a feasibility study to determine the practicalities of
the BMA. The findings and proposals of the feasibility study were used to
guide the legislative process.
A Project
Management Office was established engaging all relevant Government
Departments in an inter-governmental consultative process.
South
Africa have introduced some controversial immigration measures since 2014,
and the Border Management Agency seems to be another one.
Since 2014
measures such as the new VISA requirements have been met with widespread
objections and mainly from the tourism industry. The proposed BMA is
another controversial Home Affairs measure.
Organised
business in South Africa through Business Unity South Africa (BUSA) has
consistently opposed the establishment of the Border Management Agency (BMA)
for a number of reasons. A revised BMA Bill will shortly be tabled in
Nedlac. In the revised BMA Bill provisions dealing with the transfer of
functions has been deleted on the advice of the Chief State Law Advisor’s
Office. In the opinion of the Chief State Law Advisor’s Office these
provisions were deemed to be unconstitutional.
Despite
these amendments BUSA is still opposing the Bill, for the following reasons:
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The
costs associated with the establishment of a new agency in a constrained
fiscal environment.
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The
fact that the findings and recommendations of the SEIAS commissioned by
the Department of Home Affairs have seemingly been ignored without
adequate justification. This assessment recommended against proceeding
because of the high risk.
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The
risk of a negative impact on legitimate trade is high particularly given
the fact that the Customs Control Act, 2014 (Act No. 31 of 2014) and the
Customs Duty Act, 2014 (Act No. 30 of 2014) has not been implemented.
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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.
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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 or an
inter-ministerial committee?
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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.
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Advice
has been received from the Chief State Law Advisor’s office which
explains that the only way that functions can be transferred from the
Minister currently responsible for the function is by presidential
proclamation. Such proclamations are not subject to public consultation.
Business is concerned that the transfer of functions to the Minister of
Home Affairs will thus not be transparent and 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. 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.
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The
clarity 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. It remains unclear 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 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.
The role of
the Border Management Agency/Authority needs to be clearly defined in
relation to imported goods. Over the last couple of months I have received
various complaints from importers and their customs brokers who are
concerned that their goods that have been released by Customs – in other
words – that are in free circulation are stopped by “Border Control”. In
most instances the trucks are allowed to proceed when the agency is
confronted by a caller.
Government
officials told BUSA that the transfer of functions will be undertaken in a
phased manner and that the details of this are an internal government matter
and not open for discussion with stakeholders. In my opinion this will be a
contravention of the trade facilitation measures of the Customs Control Act,
and will also contravene the provisions of the WTO Trade Facilitation
Agreement, which have already been accepted by South Africa when the
Agreement was signed in December 2013. Some of the provisions of the WTO ATF
have been incorporated in the Customs Control Act and the Customs Duty Act.
An example is Chapter 10 of the Customs Duty Act.
The new
Customs Acts are a balance between Customs compliance and trade
facilitation. Unnecessary stops and detentions will not contribute towards
trade facilitation, which amongst other things, aims to reduce human
intervention and which aims to promote electronic solutions. There will thus
be provisions in the BMA that will be in conflict with the Customs Acts.
Human intervention in a country where corruption is a huge concern is also
not the ideal solution.
According
to BUSA it is evident that the implementation of the Border Management
legislation is going to take place over a long period of time and that the
ongoing vigilance of Business is going to be required to ensure that the
risks associated with this venture are in fact adequately mitigated.
BUSA, on
behalf of Business in South Africa, will continue to oppose the
establishment of the authority in respect of the cross border movement of
goods until there is greater certainty as to how the risks of compromising
the implementation of the new customs legislation are better understood and
that a clear role for business in the implementation process if guaranteed.
This
disagreement will be recorded in the Nedlac report and will allow BUSA to
present its reservations on this Bill in parliament.
BUSA is
currently involved in a Nedlac task team on the matter and revisions to
government’s position and the tabling of a revised version of the Bill
necessitate a revised mandate for the Business position.
Members
are requested to kindly provide comments and a mandate by no later than
16:00 on Friday 15 April 2016.
E-mail
info@sacci.org.za for more information or
comments. |
