Date: 6 November 2013

Ratification of

Bilateral Legal Framework in support of

One-Stop Border Posts between

South Africa and Mozambique

Standing Committee on Finance (SCOF)

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OVERVIEW

Part A: Context and Background

Part B: Bilateral Legal Framework

Main Agreement

Annexes I, II & III

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PART A: CONTEXT AND BACKGROUND

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EFFICIENT BORDER MANAGEMENT AN IMPERATIVE TO FACILITATE TRADE

Delays in Import and Export Processes negatively impact on trade

According to the World Bank’s Doing Business 2012 report:

Halving time to clear exports could almost triple the share of total exports for small to medium-sizes enterprises (from 1.6% to 4.5%).

Globally, improving the customs and related environments is estimated to increase trade in manufacturing by almost $380 billion a year in all regions.

In Sub-Saharan Africa, a 1 day reduction in inland travel time could increase exports by 7%

In Sub-Saharan Africa, reducing export costs by 10% through greater efficiency could increase exports by 4.7%

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ONE-STOP BORDER POSTS IN AFRICA

Operational / Pilot: • Burkina Faso/Togo (Cinkase) • Benin/Nigeria (Seme) • Kenya/Uganda (Malaba) • Zimbabwe/Zambia (Chirundu)

Planned / Under consideration

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WHAT IS A “ONE STOP”?

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The “One Stop” means that cross-border movement stops only

once, in a dedicated and shared environment, for the border controls

and formalities of both countries to be applied.

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BENEFITS OF ONE-STOP BORDER POSTS

Reduced border crossing times;

Reduced logistics costs to trade and the economy;

Simplified and harmonised border control and administration;

Advanced and integrated risk and information management; and

Enhanced oversight of and control over border crossing environment.

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AERIAL MAP OF LEBOMBO/RESSANO GARCIA

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Mountains

River

Lebombo Border

Post

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PROPOSED LAY-OUT OF THE BORDER POST

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PROGRESS: LEGISLATIVE FRAMEWORK

Enabling legal basis needed to establish and operate combined border control environments at common border crossings (extra-territorial jurisdiction)

Bilateral Legal Framework consists of Agreement signed in September 2007 and three (3) Annexes signed in June 2013

First bilateral legal framework of its kind being entered into by South Africa

Mozambique has ratified the agreement with Annexes expected to follow

Agreement and Annexes ready for ratification by South Africa

Presented together so entire Bilateral Legal Framework enter into force as a whole, rather than piecemeal

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CONSULTATION PROCESS

Inter-departmental:

July 2010 Departments mandated legal resources to finalise the Bilateral Legal Framework as part of inter-departmental drafting group focused on Annexes;

On-going feedback at Heads of Department level;

Participating operational departments: Agriculture Fisheries and Forestry; Environmental Affairs; Health; Home Affairs; Public Works; South African Police Service; South African Revenue Service; State Security Agency; and Transport (Departments at Ports of Entry);

Other entities of interest: SA National Roads Agency Limited; Cross-Border Road Transport Agency; and Transnet;

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CONSULTATION PROCESS (CONTINUED)

Constitutional process: Both Offices of the Chief State Law Advisers (DOJ&CD and DIRCO); Cabinet Clusters on International Cooperation, Trade and Security (ICTS) and

Justice, Crime Prevention and Security (JCPS) from February to July 2011 - including the Departments and Ministries responsible for International Relations and Cooperation, Trade and Industry, Economic Development, Police and Security; and

Cabinet in August 2011

Cabinet approved in August 2011 that BLF be finalised and presented to Parliament

External Senior Counsel: consulted on International Law and Constitutionality;

Process at Parliament: SCOF: Initial briefing in October 2011; Full Preliminary Briefing in June 2012; SeCoF: Briefing in October 2013 for ratification

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CONSULTATION PROCESS (CONTINUED)

Bilateral

Multi-departmental technical team established to engage with Mozambique (Home Affairs, SAPS and SARS);

Mandate from inter-departmental process to obtain consensus with Mozambique; on Annexes

Annexes text agreed at technical level with Mozambique by June 2011;

Annexes signed by South Africa in October 2012 and Mozambique in June 2013

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CONCLUSION TO CONTEXT AND BACKGROUND

An inter-departmental and international learning experience in cooperation.

Critical building block for trade facilitation in the region.

Enhanced security of borders & market access in support of economic growth, job creation and prosperity

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PART B: BILATERAL LEGAL FRAMEWORK

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BILATERAL LEGAL FRAMEWORK - MAIN AGREEMENT

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MAIN AGREEMENT - KEY ARTICLES

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Article 2 – Aim:

To provide for the implementation of one-stop border posts between Mozambique and South Africa

Article 3 – Competent Authorities:

Each country must designate a “Competent Authority” to administer and implement the Agreement

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MAIN AGREEMENT - KEY ARTICLES (CONTINUED)

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Article 5 – Border Controls:

Art. 5(1): Ensures officers of both countries are able to apply border control legislation in any Control Zone as if in their own country

Art. 5(2): Requires that certain areas must be designated as Control Zones and lists areas that may be included in such Control Zones

Art. 5(3): Establishes that officers of each country conduct border control and enforcement activities in terms of their respective domestic law only in their designated areas of the Control Zone

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MAIN AGREEMENT - KEY ARTICLES (CONTINUED)

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Article 6 – Applicable Law:

Art. 6(1): Ensures border control legislation of both countries apply in any Control Zone

Art. 6(2): Establishes point at which “border crossing” – for purposes of border control legislation – is deemed to have taken place in a Control Zone, namely when “Country of Exit” finishes its border control formalities

Art. 6(3): Ensures judicial bodies and law enforcement authorities of both Parties competent to act in any Control Zone or where they have domestic jurisdiction

Art. 6(4): Establishes border control jurisdiction for both countries in a Control Zone

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MAIN AGREEMENT - KEY ARTICLES (CONTINUED)

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Article 7 – Border Control and Authority to Arrest:

Art. 7(1): Country of Exit border controls to take place before Country of Entry controls in a Control Zone

Art. 7(2): No border control related arrest, detention or seizure by Country of Entry before Country of Exit’s formalities are completed

Art. 7(3): No border control related arrest, detention or seizure by Country of Exit after Country of Entry’s formalities have started

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MAIN AGREEMENT - KEY ARTICLES (CONTINUED)

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Article 15 – Infrastructure Development and Maintenance:

Art. 15(1): Must ensure a common standard for all infrastructure

Art. 15(2): Each responsible for all own costs for all infrastructure development and maintenance in control zones, unless otherwise agreed

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MAIN AGREEMENT - KEY ARTICLES (CONTINUED)

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Article 17 – Annexes, Administrative and Operational Procedures and Functions:

Art. 17(1):Annexes must be adopted as necessary to facilitate implementation of Agreement and approved in accordance with respective Constitutional requirements

Art. 17(2): Standard Operating Procedures must be developed that determine all administrative and operational procedures and/or functions related to combined border control actions

Article 19 – Entry into Force:

Entry into Force will be the date of the last notification in writing between the countries through the diplomatic channel that constitutional and applicable domestic law requirements have been complied with

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BILATERAL LEGAL FRAMEWORK - ANNEXES

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Purpose of the Annexes:

To facilitate the implementation of the Agreement

Annex I – Establishes basis for applying border control legislation by providing for areas of combined border control post areas to be designated and delimited

Annex II – Supports effective, efficient border controls by providing for control and management of border crossing activities

Annex III – Supports a coordinated approach by providing for the establishing, owning, managing and maintaining combined border control post infrastructure, facilities, assets and amenities

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BILATERAL LEGAL FRAMEWORK - ANNEX I

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ANNEX I - KEY CLAUSES

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Clause 2 – Objective:

To provide for the designation and delimitation of—

(a) combined border posts, railway stations and routes;

(b) control zones; and

(c) areas for exclusive use

Clauses 3 to 5 – Designation & Delimitation:

Provides that the boundaries and limits of all areas must be described and identified by agreed means, through global positioning systems coordinates, geographic coordinates and/or alphanumeric grid references

Provides that these areas must be further illustrated by detailed maps, drawings, plans, photos and diagrams with comprehensive descriptions indicating relevant purpose and use of each area

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BILATERAL LEGAL FRAMEWORK - ANNEX II

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ANNEX II - KEY CLAUSES

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Clause 2 – Objective:

To provide for the joint control and management of border crossing activities in relation to persons, goods and means of transport

Clause 3 – Joint Committees and Teams:

Empowers the Parties to establish any joint management structures (committees and teams) that they feel may be required at a one-stop border post, including joint operational management and coordination committees, joint risk assessment teams and joint inspection teams

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ANNEX II - KEY CLAUSES (CONTINUED)

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Clause 6 – Legislation and Procedures:

Officials are required to comply with the domestic law in force in their respective territories and to ensure that border control procedures and practises are coordinated.

Arrangements are provided for whereby the respective authorities responsible for regulating the border crossing of people, goods and conveyances may: assist one another; specialise in particular border; and/or recognise each others’ border controls

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ANNEX II - KEY CLAUSES (CONTINUED)

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Clause 7 – Simplification and Harmonisation:

To enhance border crossing operations, it is provided that the two Parties shall:

align any documents used to international standards;

reduce the number and extent of procedures and documents as much as possible;

make use of risk-based methods and techniques; and

make use of non-intrusive inspection methods and techniques insofar as possible

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ANNEX II - KEY CLAUSES (CONTINUED)

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Clause 8 – Protection and Support:

Since officers from each Party are likely to be deployed in a control zone in the territory of the other Party, it is foreseen that situations may arise where such officers may also require the same protection and support as provided to their counterparts deployed on own soil

Clause 9 – Command and Control:

Deploying administrations need to ensure that they retain operational and disciplinary command and control over any officials or officers they deploy in any area on foreign territory

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ANNEX II - KEY CLAUSES (CONTINUED)

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Clause 10 – Offences in the Control Zone:

Control zones are created for border control legislation to be applicable on own or on foreign territory, so each Party needs to have jurisdiction over offences committed in terms of such border control legislation

Offences not related to border controls shall remain under the jurisdiction of the Party on whose territory such offences have been committed

Deployed officers committing offences shall remain under the jurisdiction of the deploying Party at all times

Mechanisms will be established to support the reporting of and assistance with interventions in offences

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ANNEX II - KEY CLAUSES (CONTINUED)

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Clause 11 – Claims for Compensation:

In instances where the actions of officers on duty in any Control Zones result in any claims for compensation for loss, injury or damage, the applicable domestic law of the deploying Party shall apply

Clause 12 – Exchange of Information:

The ability to exchange information is crucial for the purposes of ensuring effective and efficient border control

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ANNEX II - KEY CLAUSES (CONTINUED)

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Clause 13 – Information Use, Confidentiality and Protection:

Use of information is restricted to border control purposes only and information shall be treated as confidential and subject to all protection and confidentiality provided by domestic legislation. No information shall be passed to 3rd parties without the approval of the supplying Party

The Parties shall also agree on the information to be exchanged, shall ensure that information to be exchanged has been collected in a lawful manner and shall be liable for any claims for damages caused by any unlawful use of such information

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BILATERAL LEGAL FRAMEWORK - ANNEX III

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ANNEX III - KEY CLAUSES

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Clause 2 – Objective:

To provide for the establishment, use, ownership, management and maintenance of the infrastructure, facilities, assets and amenities that constitute a one-stop border post

Clause 3 – Establishing Infrastructure and Facilities:

The parties will establish: the necessary infrastructure on their territory to enable the use of bulk services (water, electricity, etc); required road and rail infrastructure in terms of commonly agreed standards; and infrastructure for the use of information and communications technology

The infrastructure should ensure that outward and inward movement is separated and support effective access control to and from Control Zones

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ANNEX III - KEY CLAUSES (CONTINUED)

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Clause 4 – Ownership, Use and Access:

Ownership shall vest in the Party on whose territory such are erected and a register must be maintained of all infrastructure, facilities, assets and amenities noting the respective ownership of each

If facilities need to be closed, this shall be by agreement, such facilities cannot be summarily demolished and compensation is on agreed terms

Proper access control of all visitors and officials entering or leaving any control zone shall also be agreed to and implemented

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ANNEX III - KEY CLAUSES (CONTINUED)

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Clause 5 – Shared Use:

The Parties must agree on infrastructure, facilities, assets and /or amenities that they may wish to share. establish relevant procedures for such shared use and agree on respective rights and responsibilities.

Clause 6 – Movable Assets:

The Parties must agree on measures to monitor and manage the installation of any movable assets to be used for border control and will remain responsible for the maintenance, upkeep and replacement of any such assets that they have installed

The parties may agree to establish a centralised information and communications technology system to support the exchange of information for border control purposes

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ANNEX III - KEY CLAUSES (CONTINUED)

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Clause 7 – Management and Maintenance:

The Parties must develop:

An agreed mechanism to ensure the joint management and maintenance of all one-stop border post infrastructure, facilities, amenities and assets;

Agreed measures for controlling access by service providers; and

An agreed mechanism for apportioning any costs of joint management and maintenance

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CONCLUSION

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Standing Committee on Finance being asked to approve:

The Agreement on Combined Border Control Posts on the Mozambique-South Africa Border; and

The Annexes for implementation of the signed Agreement, namely:

Annex I concerning the designation and delimitation of combined border control posts, control zones and areas designated for exclusive use;

Annex II concerning the joint control and management of border crossing activities in relation to persons, goods and means of transport; and

Annex III concerning the establishing, owning, managing and maintaining of infrastructure, facilities, assets and amenities.

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