Borders signal the edge of a nation, they must never be the edge of the law

Daily Maverick

2 days ago

The management of borders represents a critical point where state authority meets human rights and national security concerns. Borders in both the United States and South Africa serve as enforcement areas that test constitutional law boundaries and state authority limits through ethical governance challenges.
Despite the existence of strong constitutional frameworks, borders often emerge as zones where power is exercised with minimal oversight and have increasingly become the subject of heated debates under the pressure of opposing interests. Judicial mechanisms offer post-facto challenges to abuse, but don't deter injustice from occurring before any intervention takes place.
At stake are not only questions of territorial control, but fundamental civil liberties. While judicial mechanisms exist to challenge abuse, their retrospective nature means infringement is effected before remedy is available.
A meaningful solution requires proactive legal training, deeper transparency and a strong culture of accountability.
South Africa: consolidation with broad powers
The formal establishment in April 2023 of the Border Management Authority (BMA) marked a significant structural shift in South Africa's border enforcement as envisioned in terms of the Border Management Authority Act, 2020.
The launch of the BMA aimed to unify fragmented tasks within immigration, customs and security functions as a bold step towards operational efficiency. However, with consolidation comes concentration of power and, arguably, insufficient legal guardrails are in place.
Current training of South African border agents appears to place overwhelming emphasis on security protocols, logistics and document verification. Detailed information about the standard training for officials has not yet been publicly documented.
At the front lines, however, critical dimensions such as constitutional rights, international refugee protections and administrative justice remain underdeveloped or entirely absent. This knowledge gap opens the door for discretionary overreach.
Border agents routinely make major impactful decisions, often without sufficient legal grounding.
While the Constitution guarantees rights to both citizens and non-citizens, the implementation at borders of those rights remains inconsistent. Legal training should be a vanguard defence against such inconsistency, focusing not only on the technicalities of immigration law but also on values such as proportionality, rationality and dignity, all central to South Africa's constitutional vision.
A training curriculum that includes real-world case studies and evolving jurisprudence would provide border officials with the legal literacy necessary to act effectively and lawfully.
Borders are not lawless zones
South African jurisprudence offers strong guidance. The Supreme Court of Appeal determined in Minister of Home Affairs v Watchenuka (2004) that constitutional rights apply to non-citizens and invalidated the idea that state power at borders escapes constitutional oversight.
The Constitutional Court's decision in Dawood v Minister of Home Affairs (2000) established the necessity for defined guidelines to limit discretionary immigration actions while affirming that arbitrary decisions stand in opposition to constitutional principles of governance.
In Gaertner and Others v Minister of Finance (2014), the court struck down provisions permitting customs officials to conduct warrantless property searches. While emphasising judicial oversight and opposing unchecked surveillance at borders, the court reinforced that, even at the border, constitutional safeguards must apply.
Collectively, these cases make clear that South African borders are not constitutional vacuums. They are spaces where state interest and individual rights must be carefully balanced, a principle that must be embedded in policy, training and enforcement alike.
The US: oversight in theory, discretion in practice
US border agents carry out their duties under the Fourth Amendment's 'border search exception', which permits searches at international borders without warrants. While initially designed for luggage and customs inspections, the doctrine has expanded to include searches of electronic devices, sparking privacy concerns.
In United States v Cotterman (2013), the Ninth Circuit introduced a distinction between 'basic' and 'forensic' device searches, requiring reasonable suspicion for the latter. This case was critical in defining the legal thresholds for state intrusion into digital privacy. Yet, reasonable suspicion, a circumstantial belief based on specific facts, remains a vague and flexible standard. Oversight mechanisms, while present, often fail to prevent real-world overreach.
On paper, the US legal framework provides stronger judicial review than in many jurisdictions. The Fourth Amendment, the exclusionary rule and civil rights litigation offer meaningful remedies.
But these mechanisms are largely retrospective. They rely on the injured party to challenge misconduct after it has already occurred, a process few travellers are equipped to initiate. Even with oversight, systemic issues such as racial profiling, device confiscation and prolonged detentions persist.
Lessons from Cato's Letters
Cato's Letters, a series of 18th-century essays written by Trenchard and Gordon, warned eloquently of the dangers of unaccountable power. Their call for liberty, limited government and the rule of law echoes loudly in today's border enforcement regimes.
They warned that unchecked authority, even in the name of security, leads inevitably to oppression and abuse.
Their defence of transparency, legal constraint and civic vigilance remains a powerful lens through which to evaluate modern border agencies.
Whether it is US Customs and Border Protection or South Africa's BMA, concentrated authority without immediate oversight fosters environments where individual rights are routinely subordinated to institutional convenience or, even worse, ignorance.
Technology is not a silver bullet
In the US, billions have been spent on advanced border technologies: facial recognition, drone surveillance, biometric scanning and AI-powered analytics. These tools increase efficiency, but also amplify state power, and raise serious concerns about surveillance overreach and algorithmic bias.
South Africa, while historically underresourced in this domain, is catching up. Home Affairs Minister Leon Schreiber has recently emphasised the digitisation of border processes and initiated a drone surveillance programme aimed at improving security along hard-to-patrol land borders.
These innovations are promising, but require legal frameworks and ethical training to ensure that they enhance, not undermine, accountability.
Technology alone cannot substitute for legal safeguards, ethical enforcement and public scrutiny. Without strong norms and oversight, technology simply makes it easier to abuse power faster and more efficiently.
South Africa's systemic challenges
Corruption remains a long-standing problem in South Africa's border management system. With a land border network spanning more than 4,700km, complex challenges in border management, surveillance and cross-border movement are common.
Beit Bridge and Lebombo, the two busiest land border posts by movement of both people and goods, have gained notoriety for their involvement in bribery schemes, fostering illegal and fraudulent migration, and smuggling operations.
Yet, these incidents are not exclusive to those posts. Both law enforcement operations and public trust in government institutions suffer from these prevailing situations. While integration under the BMA may help streamline accountability, corruption is a human problem, solved not by structure alone but through culture, leadership and training.
The US, too, has struggled with ethical lapses in border enforcement, including documented abuses during the Trump administration involving family separations, inadequate detention conditions and racially biased screening practices.
In both countries, external accountability mechanisms – including independent oversight bodies, public reporting and whistle-blower protections – are essential to preventing and addressing misconduct.
Training is the real infrastructure
Perhaps the clearest point of divergence between the US and South Africa lies in training systems. In the US, border agents attend standardised courses at the Federal Law Enforcement Training Centers covering constitutional law, immigration enforcement and ethical decision-making.
By contrast, in South Africa training has been historically fragmented. The establishment of the BMA has offered an opportunity to establish standardised, law-based training that integrates legal, technical and ethical components.
Given the BMA's expanded scope, this is not optional; it should be critical. A border agent without sufficient legal literacy is not just a weak link in enforcement but a risk to the rights of every traveller, migrant or citizen they encounter. Too often abuse is reported and remains unchecked.
The human element in reform
Ultimately, border enforcement is about people, those enforcing the law and those subject to it. The most sophisticated policy or technology will fail if the individuals tasked with implementation are poorly trained, poorly supervised or poorly supported. Ethics, empathy and law must inform every aspect of border interaction.
Both the US and South Africa must invest not only in infrastructure but in human capital. Agents must be trained to understand not only how to detect threats, but how to respect rights. Performance metrics should include not just seizures or interdictions, but fair treatment, procedural integrity and respect for dignity.
The front lines of democracy and eternal vigilance
Border zones are not places outside the law. They are 'stress tests' for democracy and constitutionalism. In South Africa and the United States alike, the challenge is not whether the state can exercise power at the border, but how that power is constrained, overseen and made just.
Legal training, transparency and accountability are not luxuries; they are the foundation of legitimate enforcement. As Cato's Letters reminds us, liberty depends not only on institutions but on 'eternal vigilance'. DM