The long-delayed and exhaustively deliberated Border Management Authority (BMA) could be in breach of fundamental human rights and freedom of property principles enshrined in South Africa’s constitution, the Road Freight Association’s Operations Conference 2020 was told this morning.
Although logistics and supply chain expert Louise Wiggett was mostly complimentary of what she referred to as “one of the most complex restructuring exercises of government”, she said several concerns about the BMA were yet to be addressed.
Principal among these, the managing director of Global Trade Solution explained, was the creation of a “border guard which is deemed a peace officer with the accompanying rights” that by implication could lead to the establishment of an armed border guard with law enforcement capabilities.
What was not clear, she emphasised, was what such a force could amount to.
“Are these going to be armed border guards for law enforcement capabilities?”
She added that it raised the question about where the police and national intelligence could possibly fit in.
More importantly, Wiggett highlighted that the act made provision for significant enforcement capabilities of border officials.
“They can, with or without a warrant, enter premises, search any person, goods or vehicles, inspect them, do seizures, and arrest or detain people.”
Therein lies the constitutional rub of the act, Wiggett said.
“It’s very concerning and a number of law experts have actually indicated that this could be in conflict with our constitution which stipulates that everyone has the right to administrative action that is lawful, reasonable and procedurally clean.
“If someone goes in without a warrant, do we really comply with those aspects of our constitution?”
“Moreover, the BMA also makes provision for border law enforcement areas that consist of a radius of 10km from land sea borders or a reasonable distance.”
Unclear parameters of the BMA’s application, such as the powers of the border guard and how such a force would blend in with the SA Police Service’s area of jurisdiction, had raised concern - especially for transporters, Wiggett claimed.
“The road freight industry experiences multiple stops already. Now they could be stopped by the SA Revenue Service and they could potentially be stopped by the BMA.”
It included the potential of being stopped by the SA Police Service too, Wiggett stressed, if the BMA failed to control the border guard.
Such concerns, she said, explained why industry had tried to engage with authorities over the BMA.
“High-level skills and expertise are required to execute the BMA’s roles and responsibilities. Are those skills and expertise readily available?”
Yet despite industry’s attempts to seek clarity on issues of concern about the act, inquiries have been fobbed off.
“The answer we usually get is that they are still busy talking.
“We are still busy finding our feet,” officials say.
