Effective implementation of the Border Management Authority for better trade

South Africa’s borders logistics are characterised by unclear bureaucratic processes, lengthy processing procedures and weak infrastructure.[1] Equally concerning are the illicit trade and corrupt activities at the ports of entry.[2] Together, these challenges contribute to the relatively high cost of exporting and importing.[3] Unless these costs are curbed, the country will continue to forego the gains associated with regional integration and the efficient movement of goods and services such as, increased revenue, increased competition and lower prices, and economic growth, amongst others.[4]

After a four-year process, the Department of Home Affairs’ (DHA) Border Management Authority Act 2 of 2020 was promulgated in July 2020[5], and the Acting Commissioner was subsequently appointed in early 2021.[6] The Act represents the government’s latest strategy towards simplifying, modernising, and harmonising export and import processes. [7] Such efforts to speed up the legitimate movement of goods and people across borders can enhance South Africa’s trade, especially now that trading under the African Continental Free Trade Area is underway as of 1 January 2021.[8]

The Act mandates the establishment of a Border Management Authority, and, by January 2021, the development of implementation protocols. The implementation protocols are expected to spell out the functions and activities to be carried out by the Authority and various government departments to ensure harmonised systems and procedures. To date, the implementation protocols have not been released publicly, and it is unclear whether the drafting process is on-going. The operationalisation of the Authority has further been stalled by the lack of regulations to support its functioning.[9]

The Authority is expected to centralise and coordinate official activities at all the ports of entry. Specifically, the Act states the objectives of the Authority as ‘to achieve (a) integrated border law enforcement within the border law enforcement area and at ports of entry; and (b) co-operation on and co-ordination of border management matters in general’.[10] However, the Act does not apply to border protection activities performed by the National Defence Force, postal services performed by the South African Postal Service and tax collections performed by the South African Revenue Services.

Put differently, the Authority will have the dual duty to securitise border operations, and effectively coordinate border management by centralising and streamlining the activities of 8 departments and consolidating 58 pieces of legislation to ensure coherence.[11] In doing so, the Authority is expected to develop close ties with government departments and agencies. In addition to the government entities mentioned above, this includes the South African Police Service, and the Departments of Trade, Industry and Competition, Environmental Affairs, and Agriculture. The separation of responsibility between the coordinating arm – the Authority – and support functions performed by South Africa’s Defence Force, Postal Service and Revenue Services will require the Authority to carefully manage border-related activities, without further complicating the export and importing processes.

Concerns have been raised regarding the implementation and operation of the Act, and we will focus on three. Firstly, the operationalisation of the Authority could create additional administrative requirements for trade procedures, which could result in delays and backlogs. Secondly, the DHA has the additional responsibility of steering the implementation of the World Trade Organisation’s Trade Facilitation Agreement, which came into force on 22 February 2017, and includes provisions that South Africa should implement to expedite the movement, release, and clearance of goods.[12] Lastly, the operationalisation of the Authority is occurring alongside the development of the flagship Beit Bridge one-stop border post aimed at improving the movement of goods and services.[13] In addition to the Ministry’s existing and demanding civic services and immigration responsibilities, these new initiatives may stretch the ministry’s current resources.

In closing, the Act sets ambitious targets for the Authority to smooth the movement of legitimate goods and services; facilitate the government’s efforts to deepen regional integration; and securitise border operations. Yet, the DHA still has significant work to complete before it can operationalise the Authority. Without the implementation protocols and regulations in place, it is difficult to assess how this Authority will function in practice, and the operationalisation of the Authority is likely to remain in an indeterminate state. To ensure that the Authority’s activities are efficient, transparent, accountable, and supported by all stakeholders in the logistics system, a comprehensive implementation strategy and plan must be shared publicly and then put in place. Moreover, the performance of the Authority, and its impact must be carefully monitored and evaluated against its intended objectives.