1. Firstly, it should be clarified that the maintenance and infrastructure of the border fence has not yet been moved to the Border Management Authority (BMA). However, it should clearly be noted that the process to do so is underway as provided for in section 38 of the Border Management Authority Act, 2020. In this case, the vehicle to be used to achieve the objective is section 97 of the RSA Constitution, 1996 which empowers the State President to transfer certain functions from one Cabinet member to another. Therefore, the rationale for the transfer of border related assets, liabilities and funds from the Department of Public Works and Infrastructure (DPWI) to the Border Management Authority (BMA) is embedded on the fact that BMA will be operating as a schedule 3(A) public entity outside the public service but within public administration. As such, the BMA has to assume the full responsibility in the management and administration of the relevant border management assets, particularly those located at land borders. To this end, the legal clarity on this matter is located within section 38 (2) of the BMA Act which provides that, “all assets, rights, obligations and liabilities, including the unexpected balance of appropriations, authorisations, allocations and other funds held in connection with the management and administration of border law enforcement, are transferred to the Authority”.
2. As clearly reflected in section 38 (1) of the BMA Act, the funds currently budgeted and used to maintain the border related infrastructure and the fences by the DPWI would be transferred to the BMA in accordance with the requirements of the Public Financial Management Act, 1999. Therefore, the conclusion of the section 97 proclamation processes would locate such maintenance responsibilities to the Authority. As such, the BMA would then resume the responsibility of updating the nation regarding the status of the border fence and all other related border infrastructure.
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