Johannesburg - The government is forging ahead with plans for a border management agency to handle all aspects of border control, from security to customs and plant and animal inspection – but MPs have said it can’t be done.
Home Affairs Minister Malusi Gigaba and his defence counterpart Nosiviwe Mapisa-Nqakula launched Operation Pyramid – a transitional arrangement to improve interdepartmental co-ordination – on Friday, while a draft bill to create the legal framework for the agency was tabled at a workshop in Pretoria earlier in the week.
But there are serious concerns about the ability of one entity to manage the diverse requirements of border control, which would require a huge single body that may prove unwieldy, while it would also need to assume some of the functions of the police and defence force. This would put it in conflict with the constitution, which provides for a single police service and defence force.
Section 199.2 of the constitution states the defence force is the “only lawful military force in the Republic”. Establishing a border management agency performing security functions in parallel with the police and SANDF would thus require a constitutional amendment, but this is just one among many challenges.
The need for such an agency arose in the first place because numerous national intelligence estimates had said the lack of co-ordination in the border environment resulted in “significant weaknesses, threats and challenges”.
Briefing Parliament’s police oversight committee this week, Brigadier David Chilembe, head of border policing, outlined steps that had been taken to get the agency off the ground, six years after President Jacob Zuma ordered it to be done.
The Department of Home Affairs, the lead agent in the project, had established a project office to oversee implementation, heads of affected departments had signed a multiparty agreement and sat on a committee together to co-ordinate their efforts, while an interministerial committee ironed out the policy questions.
The Government Technical Advisory Centre in the Treasury was working on the business case for the agency, Chilembe said.
The plan was to set up the agency in stages and identify the legal and operational implications at each stage so they could be addressed.
But a follow-up briefing on concerns raised by MPs after an oversight visit to the Lebombo border post near Komatipoort in Mpumalanga opened a window into the difficulties the agency will face.
The committee wrote a damning report on the Lebombo border post after a visit earlier this year, when MPs found the ceiling was collapsing because air-conditioning ducts dripped on to it, the door was shattered and the gate jammed, meaning it was possible to drive or walk through it without stopping.
Police complained they had to stand unprotected in the sun or rain and had to make their own travel arrangements from town.
Lieutenant-General Kehla Sithole said the problems originated in a 1998 agreement between Mozambique and South Africa for the post to be established as a “one-stop” facility, with officials sitting back-to-back under one roof.
Mozambique later said it had expected South Africa to pay for its construction, but the Treasury balked at this.
The resulting limbo meant new facilities could not be built and neither could the existing ones be refurbished because the Public Works Department refused to upgrade buildings earmarked for demolition.
There were perceptions that the SA Revenue Service, which was the lead agency in the Border Control Operational Co-ordinating Committee – the body charged with harmonising the environment since 2001 – looked after its own interests first, leaving the SAPS short-changed in accommodation and office space.
MPs were shocked to hear an 80-room residential complex for SAPS personnel stood empty because police were expected to pay for it themselves but, unlike SARS officials, did not receive an accommodation allowance.
As a result, they preferred to rent a shack in town and travel to the border post daily.
There was also no scanner at the border post, meaning truck cargos, for instance, could only be inspected manually.
DA spokeswoman on police Dianne Kohler Barnard said this almost certainly meant the majority of vehicles went through the post unchecked, meaning it could easily be used for child trafficking, for example.
Sithole said the lack of a scanner was the result of a Treasury instruction for departments represented at the post to make a joint proposal for one to be procured, instead of each asking for their own – at a cost of millions a unit.
A “scanner committee” had been established in the late 1990s but, because one was provided for in the plans for the one-stop concept, it had yet to be bought.
Committee chairman Francois Beukman said MPs weren’t interested in the history of the problem, but rather in what would be done to get a scanner in place.
ANC MP Jerome Maake, supported by Leonard Ramatlakane, said after the presentation it was clear the border management agency couldn’t work.
If it was established as a government department – one of three options on the table – this would create a “super department” that would reach into the functions of the others. This would confuse lines of accountability.
If it was established as a government component under an executive authority, or as a public entity, the other two options, it would run into the constitutional challenges related to the police and defence functions.
“All I see here is problems and I don’t see how they can be solved,” Maake said.
“Maybe you’re just afraid of telling the president, this animal can’t be implemented and you’re moving around it, on the periphery, afraid to just say, no – can we come up with something new?
“This one is not implementable.”