Border Management Authority Bill: National Treasury, SARS & SANDF concerns

Meeting report

Opening remarks
The Chairperson said it had arisen during the previous meeting on the Border Management Authority (BMA) Bill that the South African National Defence Force (SANDF) would be responsible for managing border air space interactions and the Committee wanted to be assured SANDF would perform that function.
 
The revenue collection which National Treasury had touched on had to be elaborated on and it had to speak to whether there was a budget for the implementation of the BMA. The attitude and emotion which she had noted the previous week from the Departments could not be repeated because once unsolved issues reared their heads before the Committee then those had to be attended to. She understood and had heard that the Bill had taken nine years to reach the Committee but her plea was that the Committee be allowed to process it properly and not be rushed. The impression from the recent engagements left the Committee without any choice but to ask the Departments to go back and consult each other and to return to the Committee with a unified voice.

Border Management Authority Bill: briefing by National Treasury
Mr Ismail Momoniat, Deputy Director-General (DDG): Tax & Financial Sector Policy, Treasury, said that he would get to the crux of the Treasury concern. Treasury fully supported the establishment of the BMA and having an integrated and coordinated approach but the small difference was how best to get all the different players in the border management areas to play their parts.

Customs is a much specialised function which had taken years to build at the South African Revenue Services (SARS). Treasury’s concern was that the BMA in its current form left the discretion to the Minister of Home Affairs only to shift functions and staff from SARS and fragment the value chain. A lot of back room work is done behind what is done at the border posts, which was the value chain referred to. The Bill should be clear whether it applies to SARS or not, or what activities will it affect or not. Not providing details on SARS creates uncertainty for SARS customs administration.

That decision involved 30% of the country’s revenue amounting to R300 billion. Customs collects multiple revenue streams in terms of tax and customs legislation and is integral to protecting the overall tax basis, including protection against illicit trade financial flows and ensuring proper pricing of imported goods. Effectively, Treasury wanted SARS to be removed from the BMA. This was not to say when there were functions that could be moved, that could not be done.

Treasury preferred that there be an implementation protocol as that was a more cooperative approach which would remove the uncertainty about which functions in the SARS Act could be just taken away from SARS which would create risk as a result of fragmenting the value chain. Once people noticed that the system was not integrated, then schemes to avoid paying could arise.

The Constitution already provided for only the Minister of Finance to table Money Bills including customs and SARS had started from 2008 ongoing a massive customization programme. In 2014 about four Acts affecting SARS had been passed into law but the challenges in implementation were such that many of them had not been put in effect and would take effect as SARS was continuously building systems. The BMA would break-up all of that and was creating uncertainty amongst SARS staff and labour issues could arise.

It had been unfortunate that during the processing of the BMA at National Assembly, the Committee had not been prepared to even engage on the Treasury proposed clause amendment. Treasury wanted mandatory coordination to be legally provided for through the Bill because it was not clear in the BMA Bill whether the SARS Commissioner could give up some of his powers to another authority. Treasury believed that the drafters of the BMA Bill ignored all the technical advice including the recommendations of the Davis Tax Committee and rolled back the first set of reforms under President Mandela.

Treasury felt that there should have been a joint process with the Committees on Finance in both Houses of Parliament, because if Parliament were to proceed with the BMA Bill it would be fair to allow SARS to make a detailed presentation on the customs and excise function. He then went though the presentation with the Committee.

He said that his point was not that SARS was doing customs and excise perfectly as the standard could be improved. And if problems persisted then Treasury should be allowed to find the problems and to then sit with SARS to determine how to improve that.


If the country was going to change the customs function then there had to be a whole Southern African Customs Union (SACU) arrangement developed and Mr Momoniat was not aware of any SACU engagement on the proposed BMA therefore there were international implications.

Business was worried about whether there would be delays in the import and export of goods as they were coming in through ports of entry into SA.

The Chairperson said that Mr Momoniat had repeatedly emphasized breaking up of the value chain but she had picked up a contradiction in his presentation. Mr Momoniat’s presentation alluded to the fact that the Department of Home Affairs (DHA) had no intention of collecting revenue. Was the R300 billion only money collected at the border posts, or was Treasury speaking about total revenue? She allowed SARS to make a brief input onto the Treasury presentation

South African Revenue Service (SARS) input
Mr William Mpye, Group Executive: Compliance Risk, SARS, said that if an importer decided to bring goods into South Africa, a number of things occurred. Commercial transactions occur to release the goods from the exporting country. Amongst the provisions in the current Customs Act was that 24 hours before the goods arrive in SA the clearing agent had to send information about the goods, importer, the intended tariff to be paid, the origin of the goods, and the value of the goods to SARS. All of these details would make SARS aware up front about what it needed to expect. SARS would then determine what intervention it had to put in place when the goods arrived at the border. When the goods arrived at the border such as port of Durban they would be handled by Transnet. As Transnet would be in communication with SARS there would simultaneously be a declaration made by the clearing agent or importer onto the SARS system and SARS verified the information against what had already been sent ahead and also conducted further risk management. At this point many things could happen. An importer could under-declare or remove some consignment from the container. Depending on risk analysis SARS would either release or seize the goods if there was something wrong depending on the severity of a contravention. That all would depend on an interaction with the current Customs Act and different trade agreements depending on the country of origin.

The difficulty with how the BMA Bill is drafted, at the time of arrival of the goods, a different entity from SARS would process all the steps listed above. The risk could arise with the handling part because the information ahead would be sent to SARS but the receiving and handling agent would be the BMA and then SARS thereafter. That was the value chain break which was being referred to. Apart from that, there was also post-clearance auditing that SARS did.

Similarly on the export side SARS, could withhold some export entries even though goods would have left SA shores and could then inform the importing country to seize goods arriving on their shores, especially if the goods were illegal. An example was when rhino horn and ivory had been illegally exported to China where SARS had invoked trade agreements to ask China to seize the illegally exported goods.

The Chairperson asked what a dry port was.

Mr Mpye replied that referring to City Deep as a dry port was confusing and created problems as it brought certain expectations from traders. Some believed that they could import goods into SA and have them cleared inland whereas the new Customs Amendment Act determined that goods had to be cleared at the first port of call. That meant that as goods arrived at Durban harbour, they had to be cleared there and not at City Deep. It had not always been like that but possibly had become so, because of deterioration in SARS processes and controls over time. The risk of clearing goods inland was that when they left Durban harbour, SARS lost sight and control of the goods until they reached City Deep. In between that movement consignments could have been removed from the containers and replaced with other undeclared goods.
As Treasury had mentioned earlier SARS was busy implementing the new Customs Control Act. SARS had started two years ago with that process and envisaged that the full implementation programme for the three Acts would be complete by 2025 which was a long process. Breaking the value chain would be breaking all that effort which would have taken place. SARS understood why the implementation process had to be done the long route because Australia had tried to do the implementation all at once. It had failed to such an extent that all Australia’s borders had been clogged and the commissioner and deputy for customs had had to resign. SARS wanted to ensure that all the details and steps were done meticulously to ensure that nothing was left to chance in the implementation of the Customs Acts as they had a lot of sections.

The Chairperson said that the more SARS explained the more convinced she became that there was a need for an integrated body to guard borders. How was it that SARS allowed goods to enter SA and go to City Deep when it was reporting that it lost sight of them in between the two places? Why was SARS continuing to do that; she possibly had misheard Mr Mpye. She had become most concerned because SARS was saying it planned to finish implementation in 2025 when SA was currently flooded with drugs, illegal goods and counterfeit products.

She asked the legal advisors to give input before the Committee engaged the Treasury presentation.
 
Mr M Khawula (IFP: KwaZulu Natal) proposed that the SANDF be allowed to present and the Committee could then engage on the two presentations all at once.

The Committee agreed to allow SANDF to present

SANDF position on Border Management Authority (BMA) Bill
Major General Noel Ndhlovu, Deputy Surgeon General, SANDF, said he would respond to the question regarding airspace border law enforcement at the end of his presentation. He then went through the presentation with the Committee (see document).

Maj Gen Ndhlovu said that SANDF were under no constitutional obligation to effect national border control as that was a Defence Act responsibility and had not been assigned through the Constitution. Sometime after 1994, border control had been assigned to the South African Police Services (SAPS) and SANDF had not been involved at all. He said that Borderline Control did not mean that SANDF soldiers would be marching on borderlines every day although SANDF would be permanently therein. Conceptually the SA border because of the mutual defence pact signed with other Southern African Development Community (SADC) countries started from the Democratic Republic of Congo (DRC).

Maj Gen Ndhlovu said if one considered border control and border protection, including the South African Civil Aviation Authority (SACAA) that complicated matters as the SA airspace was controlled by SACAA although SANDF carried the responsibility of protection. If SA airspace were to be infringed without warrant only the Air Force could react but the challenge was that the Air Force having forced the invading aircraft to ground, did not have the capability currently to interact through arrest.

He said one could discern that there was an airstrip in the same manner as a farmer having two farms in SA and Botswana and moving back and forth between the farms by aircraft. The issue of intelligence also would then arise because not all farmers did that and once SANDF or the air force picked up which farmers flew back and forth SANDF still had to develop with the Air Force a land component of the air border guard. The control of airstrips would then need to fall under that category although that was beyond the military and the BMA as they were regulated by SACAA much like the OR Tambo International Airport. He concluded that SANDF could have some niggling issues about the BMA but those could be sorted out.

Discussion
The Chairperson said there seemed to be a bigger problem within the airspace because when the Committee did provincial week in Limpopo, it had been informed that there were 205 unmonitored private airstrips in that province alone because of the divided farms across borderline families. At face value one would anticipate that people would be visiting each other to only later realise that the issue could be economic or sovereign related. The BMA had not addressed private airstrips in its provisions as it had given that responsibility to SANDF who had just informed the Committee of the capacity and capability challenges of the Air Force. What was Home Affairs' response?

State Law Advisor opinion
Adv Yolande Van Aswegen, Principal State Law Advisor, Office of the Chief State Law Advisor (OCSLA), said the OCSLA opinion provided to the Committee on the South African Police Services (SAPS) and SARS presentations were quite technical legally; because they related to legal issues only. She would not delve into policy matters raised by SARS as that was not her area of expertise.

OCSLA had considered clause 5(c) of the BMA Bill, read together with clause 22, which excluded the BMA collecting any revenue. From OCSLA’s interpretation the BMA would only facilitate collection of revenue. Clause 22 stated that any revenue collected by the BMA in the process of its facilitation function would not be held by the Authority but would go to SARS. Legally therefore the BMA would not take over any collection functions.

In terms of integration of systems and operation platforms, OCSLA had thought the conclusion of an implementation protocol provide for in clause 27 of the BMA Bill would sufficiently address those issues. Additionally because the objectives of the Bill were towards integration and cooperation, clause 27 elaborated on that. OCSLA believed that even the niggling operational issue highlighted by SANDF would be catered for through clause 27, which included the establishment of an Inter-Ministerial Consultative Committee (IMCC).
 
In terms of integration of institutions, when the BMA Bill had been first tabled it had had a schedule of functions which had been transferred between different departments and organs of state. OCSLA had considered that schedule and had found that the schedule would not have passed constitutional muster as it would have envisaged transfer of functions in contravention of the SA Constitution as only the Constitution made provision for such a process through section 97 (which provided that transfer of functions between different Cabinet members could happen only by proclamation by the President). OCSLA's understanding had been that BMA Bill was to be a framework whereby the BMA would be established so that thereafter, operational issues could be dealt with by proclamation. Proclamation could never be only DHA but would include all the Departments at border management areas, as OCSLA understood it. Before such proclamations were issued, consultative processes would have occurred between Departments. Though not specifically captured in the BMA Bill, OCSLA believed that integration and operational matters would be provided for in a proclamation.

OCSLA had also considered the nine objectives of the BMA Bill and the SARS proposals. OCSLA was of the opinion that the SARS proposals would seem to contravene the objectives of the Bill. There was a policy decision of Cabinet which had sought to establish the BMA where all the different departments and organs of state had to work together to achieve better border management. Inserting a clause into the BMA Bill which would exempt certain organs of state from participating in that integration would defeat the objectives of the BMA Bill, as that would assume that some organs of state were higher in a hierarchy of state departments.

She said that SANDF was a different case altogether as it had a specific constitutional mandate in terms of border protection. So the OCSLA understanding from the beginning had been to make specific provision for the constitutional mandate of SANDF which the BMA Bill had done.

SARS from OCSLA’s opinion was not a constitutional entity and was without a constitutional mandate in the same manner as SANDF. Therefore all SARS functions could be agreed upon between the different Ministers in respect of the border law enforcement area where there would be integration of functions. That had been the reason SANDF had been mentioned but putting a clause excluding SARS would mean putting a similar clause for each organ of state and department operating in the border law enforcement area.
 
The proposals from SANDF would not be legally problematic as far as OCSLA understood however; policy implications would be better ventilated by the DHA to the Committee. The exclusion brought at clause 4(2) of the BMA Bill regarding airspace had been included because those border protection functions were not in terms of the BMA Bill but rather the Defence Act. Therefore if something occurred in the airspace OCSLA had not wanted to bind SANDF to the BMA. However, if it were to be decided from a policy perspective that SANDF could not be so bound to the BMA regarding its constitutional mandate, there was no issue in OCSLA removing SANDF from those provisions.

The Chairperson asked whether there were any legal grounds to amend what SAPS had previously requested to be amended in the BMA Bill.

Adv Van Aswegen replied that the SAPS proposals had to be treated similarly to what SARS had proposed and SAPS had no constitutional mandate insofar as border control was concerned. Legally, whatever SAPS functions there were for border law enforcement areas came from the Police Act and not the Constitution. The Police Act was an ordinary piece of legislation and there were the previous sections which had been from the Interim Constitution which did provide certain functions to the SAPS. Putting any clauses into the BMA Bill which exclusively recognised SAPS functions would mean the amendment of the functions SAPS had inherited from the Interim Constitution and that all SAPS functions would not be informed by the SAPS Act but the BMA Bill. And surely that could not occur as SAPS would not only be at the borders or ports of entry but had to continue with classical policing in the rest of the country. Since the BMA Bill was also ordinary legislation, putting anything in that would tamper with SAPS functions would by implication amend SAPS mandated functions.

The Chairperson asked if the exclusivity clause 4(2) in terms of responsibility could not be removed as the SAPS concern had been that the clause barred it from dealing with crime perpetrated at border management areas. It was either OCSLA included SAPS or removed the exclusivity term from the provision so that no ordinary law or otherwise could be an impediment to SAPS performing its functions.

The Chairperson asked the Parliamentary Legal Advisor for input on the same matters.

Parliamentary Legal Advisor input
Ms Sue-Anne Isaacs, Parliamentary Legal Advisor, said that an important issue for the Committee to consider was why the BMA Bill had been developed and had to be made into law. What would be the purpose of establishing a BMA? Having understood that that would allow the Committee to think about what functions the BMA ought to have to enable it to fulfil its mandate. Clause 5 of the BMA Bill specified the function of the authority. Clause 5(c) spoke to ‘facilitation’ of collection of revenue and by definition in the BMA; ‘facilitate’ meant to ‘assist’ or to ‘aid’. Her understanding of the clause was that the BMA would not take over the function of collection from customs and SARS but would assist in certain instances. If that had not been explicit then probably a better formulation would have to be developed which would clarify the matter. When the issue had been discussed with the Portfolio Committee on Home Affairs in the National Assembly, an amendment to clarify clause 5(c) had been made at clause 22(c) to the effect that the money collected by the BMA would not go into the BMA’s coffers but would go to SARS.

Mr Khawula interjected asking for clarity as to who would be collecting funds as per clause 22(c).

Ms Isaacs replied that those funds would be collected by the BMA. She said that clause 22(c) had to be read with clause 5(c). The BMA Bill provided for various Committees to assist with its processes including the IMCC and the Border Technical Committee (BTC).

As had been discussed the previous week, the BMA would not be removing any functions from SAPS. Therefore recognizing SAPS within the BMA would not take away from the objectives of BMA but would provide for the practical realities on the ground.

Ms L Zwane (ANC: KwaZulu Natal) was concerned that certain critical policy matters seemed to have not been thrashed out at Executive level and she did not know how the BMA had escaped "incomplete" from t the National Assembly. Treasury had bemoaned being ignored and that technical advice was not being considered at policy level. Additionally, there was the fact that the coordinated function envisaged for the BMA would not be mandatory. Who would be monitoring collection of revenue by the BMA officials on behalf of SARS to ensure that revenue went to SARS and nowhere else?

Ms Zwane said that the BMA Bill said nothing about staffing. It seemed that the Authority would require no personnel from other departments and would simply be established from the ground up anew.

Ms Zwane asked what concerns had the business sector raised about the BMA Bill?

Ms Zwane said the status quo could not go on unattended because 250 airstrips could not be left unmonitored in one province.

Ms Zwane supported the Chairperson’s proposal that the SAPS proposal be included in the BMA Bill.

Mr Khawula said the meeting justified why Parliament had to have two Houses because the BMA Bill touched on two or three critical areas. It touched on the finances, security and protection of the country. For as long as those matters were a concern amongst the agencies discharging those functions, Mr Khawula would also be worried.

SA had a history with state entities giving government a rough ride and President Cyril Ramaphosa still had to chart a plan of how the country would recover from the period of near collapse. Indeed the Committee had to consider how the country's tax collection ability would be improved by the establishment of the BMA; would it improve or tamper with the tax collection and security abilities of South Africa. If the BMA Bill would not improve anything the Committee was not obligated to adopt it.

He still wanted to know from Treasury what the position of the current Minister of Finance Mr Malusi Gigaba was on the BMA and what had been the position of the former Minister of Home Affairs Mr Malusi Gigaba at the time he headed that Department when the concerns had been raised with him.

Mr C Hattingh (DA: North West) said the more the Committee proceeded with the BMA Bill the more concerned he was becoming. He would have expected that when the Bill came to the National Council of Provinces (NCoP) all the role players in the border law enforcement space would be enthusiastic about its implementation. But to date all of them seemed to be pointing out discrepancies with the process of developing the Bill. That indicated that something was quite wrong and he would have expected to have received the blueprint for funding the BMA Bill. He was not sure if it was possible to get an entity or department to be in favour of the BMA Bill at the rate things had been going. He believed that the Portfolio Committee on Home Affairs had forced the BMA Bill through, tasking the departments to sort out their issues. He was concerned why the Portfolio Committee on Home Affairs had not heeded technical advice and the same recommendations that had come to the Select Committee. No Department from those that had come before the Select Committee had even hinted at funding its component into the BMA. Would the Committee have to restart the entire process of developing the BMA Bill?

Ms P Samka (ANC: Eastern Cape) asked if the report from SANDF meant that there was currently no border surveillance.

The Chairperson said the Committee seemed quite concerned, more than it had questions. If SANDF, Treasury and SAPS had participated in the development of the BMA Bill to date, why had these issues not been raised all along? Treasury's report was that they had participated to an extent but had not been given enough space to engage or had not been heard. The legal advisors had said that the BMA was a framework and the committees as provided for in there, would deal with the matters raised by Treasury. The BMA would certainly strengthen and support revenue collection by SARS at the borders and ports of entry if the Select Committee were to believe what the status quo was to date. How was it that people were allowed to clear their goods inland? Treasury and the DHA had to work together as they were all government departments. She agreed with SARS about revenue collection. If the BMA was to collect money, who would be responsible for the paper trail? How would that responsibility be carried out? The BMA had to play a role in the flow of goods entering and leaving SA. Why was there resistance from SARS to be assisted by other state departments? She said that the stakeholders in border management law enforcement had to consult each other further.

The Committee would not allow over 200 airstrips to continue being unmonitored. The drafters of the BMA Bill had to go and draft a clause and include SACAA if it had to. SACAA had to inform the Committee how it was regulating the airspace.

The Chairperson proposed that the Committee send back the relevant departments to thrash out their concerns and to return to the Committee with a unified voice. She asked if DHA wanted to collect revenue.

Department of Home Affairs response
Mr Mkuseli Apleni, Director-General, DHA, said that the BMA would not collect revenue. SARS had said that when importing goods, the country exporting goods to SA or the importer had to send paperwork to SARS including paying revenue through an electronic financial transaction (EFT). What then was collected at the port of entry or border was about 1% and not the R300 billion which had been alluded to. The 1% came from penalties and not actual revenue. As Mr Mpye had explained, for goods worth R20 million coming into the countr,y the customs excise bill was R200 000. When SARS opened containers and found the goods were actually worth R30 million, the penalty would then be collected for under declaration of goods.

Mr Apleni said the SANDF had alluded to study tours taken to other countries to study the integration and cooperation model proposed by the BMA and all the departments had gone and no one had been left out. It was important to also be cognizant as officials that when coming before Parliamentary Committees, points of argument or proposals could not and would not always be approved by Committees. When that proposal was not accepted by a particular Committee then the official could not come and say that his/her proposal had been ignored when the Committee had made other recommendations. That statement that things were "ignored" could not be correct.

The DHA had said that on land from the borderline up to 10 kilometres inside the country and from the ground upwards SANDF radars had a particular range; which was why SANDF had bemoaned the expectation from DHA that, in terms of border law enforcement, SANDF had to check goods crossing the line. This was because SANDF was burdened already with case law as soldiers only knew to take commands and shoot on sight. From those discussions, limitations and boundaries had been agreed upon between SANDF and the DHA. Certainly the DHA welcomed the instruction of the Committee to consult again. Certainly the BMA had to have the capability to open cargo when goods were inside the SA border. DHA had approached SARS to find out whether it checked all the cargo that came to SA ports of entry and had found that SARS could not open all the cargo but actually sampled. The risk in sampling alone was that SARS or the BMA could miss something if either worked alone but together they would be better.

Mr Apleni replied that the only part which business had not agreed to at NEDLAC had been routine searches and that had been reported to the Committee and had been captured in the NEDLAC report. It was also incorrect for government departments to come before the Committee and disagree because once Cabinet made a decision that was a government wide decision.

From his experience as DG in government the only step where government was failing was implementation of government decisions and consequently delivery. Officials would find ways to block implementation of government decisions and combining things would not be easy; as there would be resistance but DHA was presenting whatever Parliament had instructed it to do. The DHA had even declared that BMA would take the customs frontline office and not the back office where SARS operated. The BMA would take no policy responsibility of any department therefore there was no need for DHA to go to SACU but SARS would continue with that as it was a SARS responsibility.

The Chairperson interjected asking why City Deep remained as a dry port in Johannesburg.

Mr Apleni replied that the BMA had gone to the level of the Deputy President when the current President had still been the Deputy President of the country; and the position of the Minister of Home Affairs had been that when the BMA Bill had gone and returned from the Home Affairs Portfolio Committee, it had not been the same Bill as the Committee had worked on it extensively.

SARS response
Mr Mpye said there seemed to have been a misunderstanding about City Deep. He said that his explanation was around what City Deep was not: City Deep was not a port, dry or otherwise because if it was regarded as a port, then traders would abuse that niche advantage to want to clear goods in Johannesburg. He reiterated the new customs requirement which was that goods had to be cleared at the first port of entry into the country. Therefore SARS was discouraging clearance at City Deep and he had been simply making an example of what would happen if SARS allowed clearing to occur at City Deep.

City Deep from a customs perspective did what was referred to as de-grouping and grouping. Goods would arrive in one container at City Deep but would going to different clients. De-grouping would then happen where one or two pieces of equipment would be belonging to a client in Zimbabwe and in another container there would be goods going to Zimbabwe as well; the goods would be put into one container heading to Zimbabwe.

The Chairperson thanked Mr Mpye for the clarification.

Treasury response
Mr Momoniat said Treasury certainly had no issue about consulting DHA. The issue for Treasury was really about policy choice rather than constitutionality. There was a problem indeed that had not been cleared up, he agreed.

The Chairperson said that the next time the Committee met with the Departments it would not entertain such disagreements amongst them. It awaited a unified voice on the way forward as the BMA had to become a reality. However; if the problems persisted, she insisted that the Departments approach the Committee so that Executive could also be involved.

Mr Khawula said that even if the Departments agreed, he would still want the Ministers of Finance, Home Affairs and Police to come before the Committee on the BMA Bill.

Ms T Mampuru (ANC; Limpopo) said that because her province was the most affected by unmonitored movements of people and goods, the Committee had to go on oversight there. She mentioned the Committee had discovered in a recent oversight at Durban harbour foreign nationals hiding in cargo vessels, having entered the country illegally.

The Chairperson commented that the Committee had intended to approve the BMA Bill as there were other bills the Committee had to consider.

The meeting was then adjourned.