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Dusting off the Border Management Authority Bill borders on mismanagement


Xolisa Phillip has had quite an adventure as a journalist in the roles of subeditor, news editor, columnist and commentator. She pretends to be Olivia Pope during the day, while still maintaining a presence in journalism – a passion project she cannot shake away. Journalism keeps finding Phillip no matter where she is and somewhat manages to hold its own space no matter where she is professionally.

Home Affairs’ insistence on proceeding with the Border Management Authority Bill will likely rile National Treasury and the police because both have raised objections about its blurring of mandates. Plus, South Africa is too broke to be setting up a new border agency.

The Border Management Authority (BMA) Bill is back. Well, sort of.

The bill is still stuck at the National Council of Provinces’ Select Committee on Social Services. Nine years since conception and two years after being voted for by the National Assembly, the Department of Home Affairs is determined to revive this piece of contentious legislation.

The bill formed part of the department’s 2014-2019 medium-term strategic framework. It was eventually passed during a successful third attempt at a vote on 8 June 2017 in the National Assembly, to the chagrin of critics. The bill was supposed to be operational in the 2017/2018 financial year. But life and politics happened. And so it was that the bill missed its deadlines.

The Davis Tax Committee politely said that the bill was a bad idea, National Treasury understood the BMA Bill’s rationale but objected to some of its more ambitious provisions, and the proposed founding legislation made the South African Police Service (SAPS) nervous.

At the height of the public conversation about the bill, the Davis Tax Committee said South Africa could not afford to split its excise and customs duties collection function. And, in any event, the SA Revenue Service (SARS) was modernised and the government had invested heavily to capacitate the receiver of revenue to perform this function optimally. So, it made no sense for Home Affairs to swoop in and fragment mandates.

That reading of the bill was made in the context of declining collection revenues and at the peak of SARS’ and Home Affairs’ image crises. At the time, the tax authority and the ministry’s leadership did not inspire public confidence.

So fraught was the issue that the then-deputy finance minister wrote to the Portfolio Committee of Home Affairs, pleading that the excise and customs duties collection function remain with SARS. The former deputy finance minister’s letter also alluded that Home Affairs had reneged on what had been agreed among the different departments, and instead proceeded with the contested version of the bill in Parliament. That was in March 2017, three months before the BMA Bill was passed in the National Assembly.

Other issues raised about the BMA Bill included: that it would be too costly to set up a Border Management Agency; the task of housing all border functions under one entity, with Home Affairs taking the lead, was too big an undertaking; and that its mandate was too broad and all-encompassing.

This was, after all, the department that bungled South Africa’s visa regime and could not be trusted to issue unabridged birth certificates on time. Why then would Home Affairs be trusted to deliver on such a strategic function, was the undercurrent of the criticism.

The SAPS had jitters about the bill because some of its proposals would interfere with the police’s constitutionally mandated functions. Also, the bill’s ambiguous wording about the police’s mandate in terms of border protection caused concern. At a February 2018 hearing on the bill in Parliament, MPs registered their worries about Home Affairs wanting to establish a standalone and new unit that would effectively be doing SAPS work.

So, there remains much that is unresolved about the BMA Bill. But, in its report to the Portfolio Committee on Home Affairs about its budget vote and annual performance plan, which was tabled in the second week of July 2019, the department boldly proclaims that: it “… is still planning to establish the Border Management Agency”.

In the same report to the committee, Home Affairs concedes that “… the BMA Bill lapsed … due to contention with National Treasury on the [Border Management Agency] taking over customs payments at border posts”. But that has not stopped the department from setting aside almost R100-million over the medium term to get the ball rolling on the border agency.

It will be interesting to see how the conversation plays out at Cabinet level, and how other line departments respond to this development in light of all the unresolved issues with the BMA Bill. A crucial point captured by the erstwhile deputy finance minister in that 2017 letter, was that the BMA Bill would cause uncertainty in an economy in desperate need of it.

As such, it seems as though the new Home Affairs administration is continuing with its predecessor’s obsession with blurring mandates, instead of taking care of its core functions. DM


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