State champs at its border Bill bit

Unresolved: The Bill’s aim is to bring departments and agencies into one border management authority. (Oupa Nkosi/M&G)

Unresolved: The Bill’s aim is to bring departments and agencies into one border management authority. (Oupa Nkosi/M&G)

The clashes between police and immigrants during raids for counterfeit goods in Johannesburg’s city centre last week have added fuel to government’s fervour to institute the Border Management Authority Bill.

It proposes a powerful government agency to integrate and co-ordinate border control across numerous government departments. The Bill was passed by the National Assembly in 2017 and got to the National Council of Provinces (NCOP) before lapsing when the previous Parliament rose ahead of the elections.

But the Bill is not regarded by all government sectors and civil society as the panacea for border management that the department of home affairs envisaged — despite new minister Aaron Motsoaledi’s hope that the Bill be “unstuck” from the NCOP, which he expressed in a budget vote debate in July. “The Border Management Authority Bill was passed by this House and unfortunately it got stuck in the NCOP for the past two years.
Our job is now to go and unstuck it because it is very important. Border management is not only about people, it also manages counterfeit goods, stolen cars, hijacked children and all sorts of wrong things that happen in our borders. We are going to try to deal with that.” 

But serious problems outlined by the likes of the treasury and the South African Revenue Service (Sars) among others, appear to have never been completely addressed.

In one of the last rounds of deliberations on the Bill held in February last year, the treasury told NCOP members that the passage of the Bill through the National Assembly’s portfolio committee on home affairs did not take the finance ministry’s input into account, while Sars was excluded from deliberations. This is significant because the Bill threatened to, as the treasury put it, “legislate away” Sars’s customs revenue collection role.

At the time the treasury said no agreement had been reached on this question, or others including whether it would be necessary to transfer any staff from Sars, in light of the effect of any staff transfers “on the integrity of the revenue and customs value chain”. A month later the Institute for Security Studies outlined to the NCOP — and re-emphasised numerous previous submissions to Parliament — that the proposed border management authority threatened to “effectively be an additional [or] auxiliary police service, which lends itself to the creation of over-securitised zones within the Republic”.

The issues notwithstanding, the new home affairs portfolio committee chairperson, Bongani Bongo, told the Mail & Guardian that “this matter is more serious now than all of us combined”. The Bill proposes to collapse all the government departments and agencies operating on the border into the border management authority and it was important that all these entities “be in one room”. Although the contentions regarding Sars were important, he said this should not be a reason to fail to enact the Bill.

Despite the Bill’s lapsing, Bongo said legal advice had been received giving the thumbs up for the Bill to go from the NCOP to the state law advisers, for referral to the president. These matters had been “flagged by everyone”, but he said he did not envisage a situation “where we will have two collecting [agencies]”.

“We need to think about it, get everyone to participate in the discussion and see if we don’t break even out of that discussion,” he said. “But that should not stop the Bill being enacted.”

If necessary, “suspend that provision and do it in a manner that does not collapse revenue collection”, he said. The Bill was first introduced by former minister Malusi Gigaba in 2016 at the height of institutional battles over state capture. Its passage through

Parliament has been dogged by speculation that it was yet another effort under the Jacob Zuma administration to undermine the treasury and further destabilise Sars.

In response to questions the treasury said it still stands by the last round of inputs made to the NCO - “that the customs and excise function must not be fragmented and taken away from SARS”.

According to the treasury its proposal is for “mandatory coordination between all authorities on our borders, but also to recognize the importance of the revenue-collection function and not to weaken SARS ability and capacity to collect revenue”.

The ministers of finance and home affairs are engaging on this matter, the department said.

Should parliament revive the Bill, the version passed by the national assembly will be the version of the Bill that gets picked up again and the treasury would continue to request that the Bill incorporates its concerns, it said. 

*This story has been updated to include a response from the national treasury

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