Border Management Authority: Consolidation or complication?

Border Management Authority: Consolidation or complication?

Given our desperate need to grow the economy, it is hoped that the Border Management Authority (BMA) will simplify trade as well as reduce crime

In advance of the long-awaited new customs and excise regime, the BMA Act has been passed into law, although its commencement date has not yet been set. It will be some time before the effect of this legislation is felt, but it is designed to create a single body responsible for the control of the movement of goods and people across South Africa’s numerous land, sea and air borders. It is stated to be part of the simplification of trade and the fight against crime and corruption and has been a work in progress since the State of the Nation Address of 2009. It remains to be seen whether the creation of a single entity to perform these functions achieves these aims or adds another layer of bureaucracy to the movement of goods and people across our borders.

Early versions of the legislation contemplated the BMA taking over every function of all bodies involved in the transit of goods and people. This included the functions of the South African Revenue Service in collecting duty and VAT on imported goods. The current Act, however, specifically excludes the BMA from managing the border protection functions currently performed by the South African Defence Force, the postal services and SARS.

Its stated aim is to replace functions currently performed by various other government agencies, but it is not clear whether in fact those agencies such as the Department of Home Affairs will be withdrawn from Border Management functions. This is because the Act says, amongst other things, that the BMA’s function includes the coordination of its functions with other organs of state, border communities or other persons. This suggests that the BMA will be yet another expensive drain on the fiscus and will operate in parallel with the South African Police Service in preventing people trafficking, illegal immigration and cross-border transport of stolen goods, with the Department of Home Affairs in controlling border posts and with the Department of Transport in controlling the movement of ships.

The BMA will consist of a Commissioner, Deputy Commissioners, border guards and support staff. The legislation sets out the qualifications for appointment, the terms of office, conditions of service and requirements for the removal of Commissioner and Deputy Commissioners.

The Act does specifically provide for the transfer of employees from other organs of state and the preservation of their employment benefits, which presumably is designed to cater for the transfer of the likes of border control employees from the Department of Home Affairs.

The legislation further sets out the functions of Commissioners and Deputy Commissioners, the appointment of officials and other administrative issues related to the creation of such a huge organisation.

The BMA is to be funded from appropriations from the fiscus and any other monies legally acquired by it, presumably in the form of penalties and forfeitures.

The legislation then creates an inter-ministerial consultative committee, border technical committee and an advisory committee.

The minister responsible is required to draft regulations that will create the detailed framework within which those involved in cross-border trade and cross-border movement of people and goods will have to operate. It is only once those regulations have been promulgated and the BMA and its several sub-committees have been appointed that the taxpayers and industry will be able to assess the effect of this legislation on the fiscus and on South Africa’s ability to control its currently porous borders.

Much of its success will depend its ability to liaise with and control the other bodies involved – the South African Defence Force, the SAPS and SARS. Given that South Africa has 61 land borders, nine sea borders, seven rail borders, six trans-frontier conservation parks and 10 air borders, it is anticipated that it will be several years before the BMA is fully operational. We hope that it then achieves its stated aims of controlling the illegal movement of people and goods and simplifies trade with our partners.

The Act comes into effect on a date to be announced (this can only happen once regulations have been drafted). Given the pandemic, this is unlikely to happen for some time.

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Malcom Hartwell

Malcolm Hartwell is a director based in Durban. He is a master mariner and the team leader for transport and has been with Norton Rose Fulbright since 1994. He is a shipping lawyer and specialises in admiralty, international trade, marine insurance and all aspects of maritime casualties, in particular investigating the maritime aspects of cases involving salvage, collisions, grounding, flooding, fires, anchor dragging and cargo claims. He has been involved in most of the casualties in this region in the last twenty years.
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