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Ministers explain inputs by their departments on transferring functions to the Border Management Authority

Minister of Home Affairs Aaron Motsoaledi. Picture: Zanele Zulu/African News Agency(ANA)

Minister of Home Affairs Aaron Motsoaledi. Picture: Zanele Zulu/African News Agency(ANA)

Published Jan 12, 2022


Cape Town - Three ministers have explained the position of their departments with regard to the inputs to be made for the section 97 presidential proclamation to be signed in order to transfer the relevant border law enforcement functions to Home Affairs Minister Aaron Motsoaledi.

This emerged from their responses to parliamentary questions from DA MP Adrian Roos about the lack of the departments’ input holding up the implementation of the Border Management Authority (BMA).

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Roos said the portfolio committee on home affairs had learnt in November that the Health, Police, and Public Works and Infrastructure departments were identified as having not yet provided the necessary input for the section 97 presidential proclamation.

In his response, Police Minister Bheki Cele said his department had provided inputs after obtaining a legal opinion which concluded that the envisaged section 97 presidential proclamation would be ultra vires (beyond the powers).

Cele said the SAPS was of the view that the sections of the legislations mentioned in the presidential proclamation did not deal with his power and could therefore not be transferred in line with the proclamation.

The only exception was section 92 of the Firearm Control Act, which is the only section dealing with a clear power or function assigned to the minister of police to prohibit or restrict the acquisition, disposal, possession or use of ammunition of a specified class of ammunition.

“The SAPS and the commissioner of BMA are presently in a process of engagement to find ways and means to empower the border guards to perform border law enforcement functions,” Cele said.

Public Works and Infrastructure Minister Patricia de Lille said there had been several engagements with the Department of Home Affairs through the BMA on the matter.

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De Lille said the department had provided the necessary input in relation to the section 97 presidential proclamation.

“The department is, however, engaging with the recently revised letter of intent received from DHA’s BMA to jointly redraft section 97 presidential proclamation to now include transfer of custodial functions from DPWI in relation to assets and liabilities within the border law enforcement area and at the ports of entry to the BMA,” she said.

Health Minister Joe Phaahla said the services provided by officials in the port of entry environment spanned various areas, various legislation and some provided by the South African Health Products Regulatory Authority (SAHPRA).

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Phaahla said the nature of the various legislative mandates implemented in border environment necessitated thorough assessment and engagements of the identified legislation to ensure relevant sections implemented within the border law environment were transferred to his Home Affairs counterpart.

“Engagements have had to be conducted with the Department of Home Affairs and the Border Management Authority office to ensure clear understanding of the intention so as to ensure BMA is adequately empowered with the correct provisions within the respective acts.

“The SAHPRA has had to be engaged with respect to acts enforced by the entity and to receive their concurrence,” he said, adding that meetings between SAHPRA, Home Affairs and BMA had been facilitated by his department.

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However, Phaahla said the Health Department had been heavily involved in the Covid-19 response for the period under review, and that port health service had been at the centre of the cross-border monitoring and response to the pandemic.

“As we continue to respond to the Covid-19 pandemic, we experienced various challenges faced by ordinary South Africans and within our own work environment. It is my view that had things been normal, we would have responded much quicker to the section 97 proclamation as requested by the Minister of Home Affairs.”

He said they were awaiting final response from SAHPRA, but were hopeful a response should be expected within the next month.

“It must be noted that SAHPRA has a board and decisions are taken at the board level. The meetings of the board are scheduled on certain dates in a year. Fortunately, SAHPRA is currently attending to the provisions of the acts to be transferred to the Minister of Home Affairs,” he said.

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