Why South Africa’s Border Management Authority Act will face implementation challenges

The Border Management Authority (BMA) Bill, formerly called the Border Management Agency Bill was finally passed in Parliament on the 8th June 2017. The BMA Act’s main aim is to provide a single authority that will tighten the country’s border by preventing illicit trade of goods and services, as well as illegal immigration.

The BMA Act will create an Agency that deals specifically with cross-border functions. Because cross-border functions are dealt with by different departments and organs of state, the Agency would necessarily constitute personnel from various Departments, who would be re-deployed. According to the Act, the BMA will have jurisdiction over a 10-km radius of the ports and points of entry, with enforcement functions designated to Border and Coastal Guard security forces specifically commissioned for and by the BMA.

The BMA Act is important to agriculture and agro-processing for a number of reasons. Firstly, it means that all border functions carried out by the line Departments such as the Department of Agriculture, Forestry and Fisheries (DAFF), the Department of Health, the Department of Trade and Industry (dti), the South Africa Revenue Services (SARS), among others, will now come under the BMA.

Secondly, the transfer of these border functions means that at least 56 pieces of legislation will need to be amended and re-constituted so that the functions of relevant Departments are legally transferred to and placed under the authority of the Agency. A number of these acts affect agriculture, and these include the Agricultural Pests Act, 1983 (Act No. 36 of 1983), the Agricultural Product Standards Act, 1990 (Act No.119 of 1990), the Animal Diseases Act, 1984 (Act No. 35 of 1984), the Animal Health Act, 2002 (Act No.7 of 2002), Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1974 (Act No. 36 of 1947), Perishable Products Export Control Act, 1984 (Act No. 9 of 1983), among several others.

Thirdly, the amendments made to relevant legislation will imply that expertise and human resources will also be transferred from line Departments to the BMA. It is reported that at least 6,000 civil servants will be affected by the transfer of functions from various Departments to the BMA. The process of establishing the BMA is estimated to take up to three years.

While the BMA Act’s intended function is plausible, there are several problems that it might create for South Africa’s agricultural sector. For instance, the funding required to establish the BMA will be exceptionally costly. According to an economic impact assessment report commissioned by the Department of Home Affairs, the costs of establishing a Border Guard (i.e. Coastal or marine guard, including a border police force) for the BMA was estimated to be between R15 billion to R24 billion.

Another problem the Act creates is that it will most likely create a disconnect between the policy makers in line Departments in Pretoria and the enforcement that occurs at the border. This complication will arise from the fact that, the functions to be transferred from various departments to the BMA at the ports of entry will not remove the responsibility of the Department itself from formulating policies, which are expected to be enforced by BMA staff.

Related to the latter, the BMA will therefore create a new layer of bureaucracy that adds to the costs of cross-border trade, and consequently, acting against progressive trade facilitation.  

One of the suggestions that had been made by private sector during the consultation phase of the Bill was that the problem of coordination between government departments – which the BMA seeks to resolve – could have easily been resolved through inter-departmental MoUs, service level agreements and an inter-ministerial committee, rather than a substantive piece of costly and disruptive legislation.

* An earlier version of this article was published in the Farmer’s Weekly