Update on the Impending Border Management Authority

Introduction

In 2016, the Border Management Authority (BMA) Bill was presented by the Department of Home Affairs (DHA) as a catch-all solution to South Africa’s defective border management. The Bill proposes the establishment, organisation and regulation of a single BMA to oversee all aspects of the movement of goods and people through South Africa’s borders.

The status of the Border Management Authority Bill

In 2017, the BMA Bill passed at the National Assembly after the third attempt. It was subsequently stuck in the NCOP until Parliament dissolved in February 2019.

At a 2018 NCOP meeting, the Chairperson concluded that, given resistance from other departments and a lack of support from the new Ramaphosa-led Executive, a resolution was unlikely.^[1] Resistance from SARS and SAPS in particular was motivated by the Bill’s “blurring of mandates” – SARS argued that it was in the country’s best interest for it to retain authority in customs and excise, while SAPS opposed interference in the police’s constitutionally mandated functions.^[2]

In July 2019, the DHA announced its intention to ‘fast-track the Bill for finalisation in 2019’^[3], setting aside R100 million for implementation. A BMA Road Map was drawn up, the BMA Project Management Office was established and an Integrated Border Management Strategy (IBMS) was defined.

In December 2019, after an agreement was concluded between the Minister of Home Affairs and the Minister of Finance, customs and excise were removed from the operation of the Act by an NCOP amendment, allowing all customs functions to remain with the national revenue service – ‘a major sticking point impeding the completion of the Bill’.[4] A second NCOP amendment requires the BMA to enter into implementation protocols with SARS, the SANDF and SAPS ‘within six months of the commencement of the Act for co-ordination purposes’.[5]

Now the revised Bill is back before the National Assembly and the DHA is finalising the draft Presidential Proclamation that would transfer border enforcement functions from other Ministers to the Minister of Home Affairs. As it stands, the BMA Office’s functions are limited to planning and coordination, having absorbed the mandate of the Border Control Operational Coordinating Committee.^[6]The Department is planning the roll-out of the full BMA at designated ports of entry in 2020/21, beginning with OR Tambo International Airport, Cape Town Seaport, Oshoek and Lebombo.^[7],[8]

The rationale for a Border Management Authority

Paired with the Port of Entry Upgrade pilot, the BMA Bill was intended to address the glaring problems experienced at South Africa’s border posts:  corruption, poor training of staff and insufficient deployment; lack of infrastructure and technology; and lack of coordination between departments.

At present, the borders are managed by seven different departments applying 58 different laws passed by Parliament. The departments are Home Affairs (Immigration Division), SAPS, SANDF, Agriculture, Land and Rural Development, Health and SARS (Customs and Excise). These departments have seven different command structures with different laws, work ethics and mandates.^[9] At some border posts, departments are housed in different buildings. There is no institutional mechanism that provides for accountability of the various departments and their agencies, and there is no platform that links their information or IT systems.

The Border Control Operational Coordinating Committee (BCOCC), formerly responsible for coordinating between departments and other institutions, is understood to have failed against its mandate of stemming irregular migration, illicit trade and cross-border criminality.^[10] In December 2014, Cabinet resolved that BCOCC responsibilities be relocated from SARS to the DHA.

Costs and risks of the Border Management Authority

The BMA exacerbates what it seeks to address. In its attempt to resolve the fragmentation of South Africa’s border management, it creates another costly level of government bureaucracy under the ailing Department of Home Affairs.

The BMA was born out of Malusi Gigaba’s tenure as Minister of Home Affairs and is a major effort by the DHA to expand its power. But the Department has neither the capacity nor the trust of society to warrant expanded authority: It is an ineffective department, riddled with corruption and inefficiency. It is, for example, the custodian of an asylum system with an appeals backlog that would take over 68 years to finalise.[11]

When the BMA Bill was before the NCOP in 2019, it was reported that it would cost R 6.5 billion per annum to operate the agency. In February 2020, the BMA Project Manager, Mr Elroy Africa, stated that the estimated cost for the implementation of the BMA was an initial R 3.8 billion, with a future anticipation of R 10.3 billion per year. The “cost of employment” of the DHA in 2019 was R 3.5 billion, so the BMA effectively triples the personnel budget of the DHA.[12]

A better solution

It was argued by the Minister of Home Affairs at a portfolio meeting in February 2020, that the most important outcome of the BMA would be coherence and coordination between departments at the borders.[13] The Minister noted the lack of resources and staff at the borders, arguing that once the BMA was implemented, capacity issues would be addressed. However, Mr Africa observed that, although the BMA would take over the mandates of other departments at the borders, coordination with those departments and within the various branches of the BMA would still be required.

The issues of incapacity and lack of coordination do not require the creation of a new institution under the auspices of the DHA. In fact, the Bill’s socio-economic impact assessment concluded that a coordinating agency would be a better, more immediate structure entailing less duplication of responsibilities and wasted resources. The assessment proposed a shift in focus from building costly new structures to capacitating existing ones.

This assessment has since been rejected by Cabinet. In response to its recommendations, the Minister of Home Affairs argued that there was previously a coordinating agency for border management that failed – the BCOCC. He quoted Einstein who defined insanity as ‘doing the same thing over and over and expecting a different result’. This rationale ignores the fact that 1) the BCOCC never acquired the attention and resources to succeed, and 2) the BMA will be required to implement a new and extensive layer of coordination between its internal branches and external departments.

It is submitted that what was once the BCOCC (and is now the coordinating function of the BMA) should be extracted from the BMA framework, renamed, revamped and resourced sufficiently to address the silo-based approach to border management. This would shift the focus from authority to coordination, and from an extensive, risky and costly border management overhaul to reforming the current system in a less costly way. The country certainly cannot afford to give the Department of Home Affairs an extra R 10.3 billion per year to assume control of South Africa’s borders.

Tove van Lennep
Researcher
tove@hsf.org.za