National Railway Safety Regulator Bill: hearings

Meeting report

PORTFOLIO COMMITTEE ON TRANSPORT
20 February 2002
NATIONAL RAILWAY SAFETY REGULATOR BILL: PUBLIC HEARINGS

Chairperson: Mr J P Cronin (ANC)

Relevant Documents
National Railway Safety Regulator Bill : Draft
CSIR discussion notes
CSIR powerpoint presentation
Department of Transport PowerPoint presentation
SATAWU/Cosatu submission

SUMMARY
Presentations were made by the Department of Transport, the South African Transport and Allied Workers Union and the Council of South African Trade Unions and CSIR. The following issues arose from the discussions on these presentations:
- the independence of the regulator;
- the "cascading of documentation' referred to in the presentation by the Department of Transport;
- the National Railway Safety Regulator Bill is not intended as a "panacea" for all modes of public
transport;
- the issue of a warrant in terms of clause 34(2) of the Bill;
- the measures by which the Bill seeks to protect the general health and safety of both the
workers and the public;
- concerns with the privatisation;
- the extent to which the Bill encourages proactive steps to be taken by both the Department and
the regulator in ensuring rail safety;
- the reporting of rail accidents and injuries; and
- the processing of such information to serve the commuter.

MINUTES
The Chair commenced proceedings by welcoming all present. The Federation of Unions of South Africa (FEDUSA) have not completed their written submissions yet, and will thus not be addressing this Committee today, as originally planned. They hereby requested to do so as soon as possible. Mr J Makokoane, the Deputy Director General (DDG) of the Department of Transport (the Department) will now address the committee.

The DDG thanked the committee for affording the Department the opportunity to discuss the National Railway Safety Regulator Bill (the Bill), and introduced the delegation from the Department to the committee: Mr M Panzera, head of the Task Team responsible for compiling today's presentation; Mr B Fish, who carefully analysed the Canadian rail safety model, and incorporated certain elements into the proposed rail safety methods and standards to be used in South Africa; Mr Chongwane, the Head of the Ministry and Messrs Khosa and Manana, both from the Department.

Briefing
Planning for this Bill began as early as 2000 and special attention was paid to safety measures within the rail system, because this area was not on par with international standards. The present situation of the South African railway system is not at an acceptable standard, and it is the purpose of this presentation to propose a process that would elevate it to a level that at least supports life. The Department is aware of the problems posed by the unacceptably high crime levels, and the Minister of Transport (the Minister) himself has called for this matter to be addressed this year as a matter of urgency. It is important for this committee to remember that todays' presentation focuses exclusively on the safety of South African railways, and not the other modes of public transport. Mr Panzera will now conduct the presentation.

Mr Panzera thanked the committee for this opportunity, and asked the Chair what the format of the presentation and discussion would be.

The Chair replied that it would be "quasi-interactive", so that members will have the opportunity to ask questions of clarification at regular intervals during the presentation, and detailed questions on the substantive provisions of the Bill would be heard at the end of the presentation.

Mr Panzera thanked the Chair for the clarification, and proceeded with the presentation.

Discussion
Mr G D Schneemann (ANC) referred Mr Panzera to the fifth slide entitled "International Approaches to Railway Safety", and asked for the reason behind the Department's decision to follow the United Kingdom model on accident investigation, rather than the model employed by other countries.

Mr Fish replied that the primary reason here was the concern with the capacity of the National Railway Safety Regulator (the regulator) to acquire efficient accident investigation expertise. Yet these investigations could be incorporated in the future.

The Chair then inquired of Mr Panzera whether high level accident investigations would be done by the regulator.

Mr Panzera replied in the affirmative, and informed the Chair that Mr Fish has reported that, in the Canadian model, the regulator investigates all rail accidents. Yet in our system the regulator would only investigate rail accidents, with the other modes of public transport each have their own regulatory body that deals with its accidents alone. The result is that each regulator remains independent.

Mr S B Farrow (DP) contended that if the regulator were allowed to conduct these accident investigations itself, this would amount to the "referee being the player", because the regulator will comprise either active or retired members of the industry. This would clearly create a bias.

The Chair reminded Mr Farrow that the substantive questions would be dealt with at a later stage, and his question would be answered then.

Briefing
Mr Panzera then continued with the presentation. He drew the committee's attention to an error in clause 18 on page 13 of the Bill, and informed members that the financial year of the regulator should be identical to that of Parliament. Consequently, the clause should read
"1^st April ... to 31^st March of the following year".

Discussion
The Chair then requested clarity on the meaning of the phrase "the interpretation" in clause 29(4) on page 16 of the Bill.

Mr Panzera replied that it referred to "the interpretation" of the regulator. Its regulations therefore trump standards, that are in turn trumped by the Bill.

A member asked to whom the term "Minister" refers to, because so many different governmental departments are involved in this project.

The Chair informed the member that the definition provided in clause 1 refers to the Minister of Transport.

Briefing
Mr Panzera continued with the presentation.

Discussion
The Chair then referred to the slide entitled "Cascade of Documentation", and stated that this is an important issue. Mr Panzera is requested to explain the difference between "normative" and "informative".

Mr Panzera replied that "normative" means compulsory, whereas "informative" does not.

The Chair then failed to see the difference between "normative" and "mandatory".

Mr Panzera informed the Chair that the Bill allows for a choice to be made, but once a specific system is chosen, it and its consequent obligations become compulsory.

The DDG then called on Advocate Mpahlela, from the Department, to provide an interpretation of the issues.

Advocate Mpahlela agreed with the definitions offered by Mr Panzera.

The Chair then questioned the distinction created by the Bill, as it causes confusion between the ordinary English meaning of the words "mandatory", "normative" and "obligatory", and the legal meaning of the word. This issue will be revisited at a later stage.

A member inquired whether this effectively means the operator is allowed to create its own standards, and whether the regulator provided any guidelines in this regard

Mr Panzera answered in the affirmative, and stated further that this is part of the application process. It is desirable here that wider standards are developed to accommodate a range of interests, so that individual institutions do not devise their own sets of regulations.

Mr S Pillay (DP) requested clarity on the functions of the regulator. Secondly, how would the regulator curb the incidences of those commuters who refuse to pay the fare.

The Chair replied that the Bill relates to railway safety regulations only, and this is therefore not the appropriate forum within which to discuss Mr Pillay's concern.

Mr Pillay reiterated his concern and suggested that surely the Bill has to address those commuter who refuse to pay the fare and, by not paying, threaten the safety of the other (law-abiding) passengers.

The Chair responded that this was discussed earlier with regards to the interface between operational technical issues, which forms the focus of this Bill, and commuter flow and the safety and security of passengers, which are not covered by this Bill. It is an important question, and will be revisited at a later stage.

The DDG replied that the Department needs to devise strategies to effect a certain measure of control on the flow of commuters within, but the feasibility and desirability of legislating on commuter flow. In this regard, a concerted effort was made by the Department, with the assistance of The Reserve Bank and the South African Bureau of Standards, by discussing the feasilibity of installing an upgraded telematic system.

The Chair informed the DDG that, at this point of the discussions, such extensive detail is not necessary, as the committee is not yet engaging the substantive issues but merely focussing on the Bill. The point made by the DDG is however taken, and it relates to the point made by SATAWU/Cosatu that this Bill should not be regarded as the "panacea" for all the problems with all the various modes of public transportation. It has however, become clear to this committee that there are indeed several shortcomings in the Bill dealing with the proposed scope of the Regulator, which has to be examined at a later stage.

Briefing
Mr Panzera completed the presentation, and once again thanked this committee for the opportunity.

Discussion
The Chair thanked Mr Panzera for the presentation, and offered a summary of the concerns raised by members:
- the confusion caused by the terminology used in the "Cascade of Documentation" slide;
- the scope of the regulator in ensuring safety of commuters with regards to Mr Pillay's question;
and
- the question posed by Mr Farrow regarding the independence (or lack thereof) of the regulator.

Mr Farrow then inquired whether the Department would be interacting with this committee in future.

The Chair stated that this "is exactly what we plan to do", and encouraged continuing dialogue between this committee and the Department throughout this process.

Mr Schneemann stated that the research done by the Department into rail safety has focussed exclusively on the European countries, Australia and Canada. Why have the possible contributions to be made by African countries not been examined?

Mr A R Ainslie (ANC) suggested that the Department does not have to provide members with hard copy evidence of this research, but could simply provide the internet address or library references.

The Chair then called on Ms J Barret from the South African Transport and Allied Workers Union (SATAWU) to deliver its presentation.

Briefing
Ms J Barret thanked the committee for the opportunity to canvas some concerns SATAWU and the Council of South African Trade Unions (COSATU) have with this Bill. She then introduced Mr G Joubert, a safety representative on Spoornet's Health and Safety Commission, who would be able to explain and inform members of the more practical issues and measures taken. Before the presentation is conducted, the attention of the committee is directed to the

Ms Barret stated that most of the issues raised in the presentation have already been canvassed by the previous speakers. The reasons for this are twofold: firstly, the Canadian model had already been chosen as the "template" for the intended railway regulator, even before SATAWU/Cosatu joined in the process; and secondly, SATAWU/Cosatu has its own capacity restrictions.

The presentation was concluded by thanking this committee for the opportunity to address it on this important piece of legislation.

The Chair then opened the floor to questions on the SATAWU/Cosatu presentation.

Discussion
Mr Ainslie referred to handling of the warrant to be issued for railway inspections, and suggested that a contradiction is created between the proposed clause 34(2) of the Bill, which provides that a warrant is required, and clause 39, which contains no such requirement before the inspection may be lawfully conducted. Surely, if the inspector has to first acquire a warrant before being allowed to visit the site, this defeats the purpose of "surprise investigations", as the railway operation would be handed an opportunity to cover up the cracks.

A member expressed concern with the fact there seems to have been very little consultation between the Department and SATAWU/Cosatu on the Bill.

The Chair urged members not to dwell in the past, but should rather focus on the future and the progress and improvement to be made.

The member then requested to rephrase the question posed initially, and inquired of Ms Barret whether, as the SATAWU/Cosatu representative in this matter, she is of the opinion that the consultations were satisfactory.

Ms Barret replied by stating that the Department cannot be faulted for intentionally excluding the trade unions for the initial deliberations on the Bill. As stated earlier, the stage had already been set by the time, and a decision had already been taken to adopt the Canadian railway safety model as a basic framework. Furthermore, SATAWU/Cosatu believes the process would have derived the greatest benefit by first researching and analyzing the matter, and then engaging in a discussion on "where [the parties involved] should put [their] energies". This is not intended as a criticism of the particular tem chosen, but rather a contention that sufficient groundwork has not been done on this matter.

Mr Scheensmann inquired of the Chair at what point in the proceedings substantive questions regarding the presentations and the Bill could be asked.

The Chair informed Mr Scheensmann that such questions could now be asked.

Mr Scheensmann referred to the concern raised by SATAWU/Cosatu on page 11 of the written submission regarding the safety and health of workers and the public, and requested the Department to respond to this matter.

The DDG replied that this Bill does not seek to regulate those matters, but Part 4 of the Bill does provide that the Minister may make regulations to protect those persons listed in that provision. It has to be borne in mind that the issue of personal safety is not "mode specific", that it, it is an important concern for all modes of public transport, such as at bus terminals, taxi ranks etc. The Department is fully aware of the importance of safety of workers and the public, and the violence and crime perpetrated on the public transporters. The Department would be better able to address this matter once the input of the South African Police (SAP) has been acquired.

Mr Panzera added that Act 85 of 95 deals with this aspect. Members are urged to remember that this Bill is not intended as a "panacea" for all problems with safety in all modes of public transport, but rather seeks to address this problem as it relates to public rail transportation specifically. Indeed, the proposed clause 6 of the Bill refers expressly to role to be played by the National Department of Labour in this regard, and the Department has concluded a memorandum of understanding with that department as far as fixing acceptable standards of safety is concerned.

Mr Farrow inquired whether the public sector, who rely on the use of the rail network, were consulted during the process and whether their input was encouraged.

The Chair informed Mr Farrow that this matter deals with the creation of regulations, which are done by the Minister.

Mr Pillay then requested clarity on the provisions dealing with the safety of the safety inspectors.

Mr Panzira replied that Act 85 of 1995 regulates this aspect, as in all other labour-related spheres.

The DDG responded to the question regarding "capacity" and stated that the Department has successfully calculated the finances needed to get the regulator "up and running". This amount is estimated at R6,6m, and the infrastructure, facilities and strategies are expected to be completed in the last quarter of this year. The regulatory framework determines logistical issues such as the number of personnel to be employed, and the Department of the Treasury was asked to provide approximately R20m for these over the next few years.

The Chair then summarised the primary issues raised in the SATAWU/Cosatu presentation:
- the Bill should not be regarded as a "panacea" for all safety related problems;
- the concerns with the privatisation of the safety sector. The Departments of Health and Minerals
and Energy have to be invited to address this portfolio committee, to verify the information
provided by SATAWU/Cosatu. The occupational health aspect focused on by SATAWU/Cosatu
is "useful" here, and will be discussed further.
- the current international development of self-regulation, but this does not necessarily mean
there can be no institutional dialogue between active regulation and self-regulation; and
- the precise composition of the regulator's board.

Mr Pillay requested the Department to explain whether the Bill contains any measures to provide sufficient protection to the safety inspector who comes upon thieves stealing railway equipment, such as the ever-popular copper cables. The Department may answer the question at a later stage of the session.

A member suggested it would be helpful if SATAWU/Cosatu and the Department consolidate their efforts and research, and jointly prepare a draft Bill that accurately reflects the proposed amendments of each party. Such an exercise would definitely yield positive input on this Bill.

The Chair contended that this is precisely the process that this committee itself now has to begin, because it is presently hearing inputs and will then, after duly considering those inputs, move on to the next step in deliberating on this Bill.

Mr Ainslie agreed with Ms Barret that the Bill needs to provide more protection to workers as far as the accidents, such as those reported in the SATAWU/Cosatu report is concerned. The Department is requested to explain the extent to which these accidents are attributable to a lack of proper worker training. Secondly, has the Department made proper provision in the management system for such training?

Ms Barret answered Mr Ainslie's first question by informing him that medical surveillance is currently being done on the occurrence and reasons for such accidents. Perhaps Mr Joubert could clarify matters.

Mr Joubert informed members that most of the damage done to the workers' hearing is due to the constant exposure to loud noises that occurs primarily in the diesel and trucking sites. Yet a new means of communication on these sites has been developed, called the veriphone. It decreases the amount of decibels dramatically, and is moulded to form a unique fit to each worker's ear. The result is that the workers on these sites are still able to communicate just as effectively with each other, with the advantage that their sense of hearing will no longer be damaged The veriphone is presently being tested on truck drivers, and once they have completed the feedback questionnaires, Spoornet will then take the decision to invest it the veriphone or not.

Ms Barret reiterated that there is a marked difference between occupational health and safety generally and rail safety specifically. The two are however related, and the overlap is best illustrated by the following example. Natal has a serious problem with the disease caused by exposure to asbestos, with the result that it endangers the health and safety of the workers specifically, but it also poses a threat to public enterprise in general. It is therefore recommended that the Bill needs more clarification around this overlap.

Furthermore, with regard to Mr Ainslie's second question on worker training, both Metrorail and Spoornet do have worker health and safety training as a top high priority. There is however trade union weakness in this regard, as they (we) are not making any attempts to learn from international trade union experience on this issue. The Department will also be hosting an Annual Training Day on 26 March 2002 that would focus on rail safety, and it is requested that a campaign plan be jointly devised by Spoornet, Metrorail and the Department. The need for workable solutions here is made more urgent by the most recent train wreck.

The Chair thanked the SATAWU/Cosatu delegation for addressing this committee and participating in the discussion.

The Chair then requested Mr Oliver Page from CSIR to begin its presentation.

Briefing
Mr Page conducted the presentation.

The Chair then opened the floor to questions from members.

Discussion
Mr Ainslie inquired whether the term "railway occurrence " referred to in clause 38 of the Bill includes criminal incidents as well, and whether this covers the potential threat to security when the train unexpectantly jerks to halt. Secondly, the Department is requested to explain what precisely the regulator then does with this information? Furthermore, how is this reconciled with clause 40 of the Bill?

Advocate Mpahlela, from the Department, answered Mr Ainslie's first question by informing the honourable member that the proposed clause 1(1)(xv) on page 6 of the Bill defines the term "railway occurrence", and the inclusion of "prescribed as such" means this definition may be further defined in the regulations.

The Chair thanked Advocate Mpahlela, and contended that the central point here is how much the Minister should be "nudged" here. The point was made earlier by both Mr Page and Ms Barret that a fine line is drawn between occupational health and safety generally and rail safety specifically, and that an overlap very often occurs. It seems that both the Minister and the regulator should be "nudged towards resolving these issues. Furthermore, as noted by Mr Ainslie, the definition of "railway occurrence" is important here.

A member agreed with Mr Page that most of the railway accidents or injuries suffered by commuters are not reported, but those that are reported must be properly reported to- and channeled through the departments of Safety and Security and Transport.

Mr Page replied that commuters can report such accidents or injuries to the Community Rail Operator who will duly process the report and direct them to the appropriate police station. The harsh reality is that the majority of rail commuters do not report such accidents or injuries, because they consider it a waste of time. An additional problem is created by the fact that the the South African Police Services (SAPS) criminal information analysis system requires the victim to report the exact location of the crime, and this is impossible when the crime is committed on a moving train. The result is that their system therefore does not assist victims of rail injuries or accidents.

Mr Farrow contended the Department stated in its presentation that is had concluded an agreement of understanding with other state departments. The Department is requested to explain how this agreement would affect the projected budget of the Department.

The Chair replied that both Ms Barret and Mr Page are correct in suggesting that the current problems with rail safety are due to underspending on proper infrastructure. The fact of the matter is that the Bill does not seem to solve this problem, when it really should be addressing it. It must also be remembered that, as mentioned earlier by Ms Barret, this Bill is not intended as a "panacea" for all safety problems, and it must ensure that this infrastructure is invested in, as well as the other important components. Mr Page stated this would be "phased in", but there is enabling legislation available to this committee that would effectively ensure fluidity and flexibility here. Furthermore, continuous interfacing between this committee and actual, practical matters involved in operating the trains in reality should be maintained.

Ms Barret replied that this important concern has been flagged as one of the chief problems to be addressed as a matter of urgency. The ordinary rail commuters are more concerned with rolling stock and infrastructure than the superstructure investments of the railway. The Department and this committee cannot create the impression that "the whole system is collapsing", because this is not the case. There are only certain specific areas that need to be improved.

Mr Panzera added that capital investment is not the answer here, but a "culture of safety" has to be instilled.

Mr Ainslie then stated that the regulator could set a high level of standards, and this is not provided for in clause 1 of the Bill, or indeed the spirit and purport of the Bill itself. The Department is asked to clarify this.

The DDG replied to the concerns raised by the Chair by stating that they seem to presuppose that standards have been set in that regard, whereas the Bill simply provides that these still have to be set. It is therefore not suggested that the whole system will be recapitalised to resolve the issue.

The DDG then requested that members not only criticize proposals made by the Department, but also offer feasible solutions to such problems.

The Chair agreed and assured the DDG that he is "on the lookout" for such proposals. Mr Page did offer very useful solutions in the document submitted by CSIR, and the Task Team will also provide viable proposals for reform in due course.

Ms Barret suggested that when the issue of regulations is considered, the task team had compiled a detailed list dealing with specific security issues, as well possible means by which the problems posed by them could be resolved via regulations. These included:
- sufficient lighting of platforms; and
- the erection ticket barrier restrictions, which would not bar entry to the train by causing injury to the commuters. The task team will supply this committee with this list, so that the proposals may be discussed further.

Mr Panzera added that specific categories of such incidents have been created, together with periods within which reports on such injuries or accidents may be made. A report on the category would then be submitted once every three months, so that a database may be compiled. This list will be provided to the committee at a later stage.

The Chair then stated that the comparative analysis provided by Mr Page illustrated an important point, and local rail institutions should now reinforce a sense of complementarity in exercising their functions. This issue must be flagged for further discussion because it has much merit. The relevant concerns raised by the CSIR presentation may be summarized as follows:
- is the collection, dissemination, and access to relevant information made readily available to rail
commuters, the extent to which the proposed Bill deals with these issues and areas of possible
reform; and
- the SADC proposal is a good idea, but this committee cannot legislate on this matter. The only medium for reform would be via the enactment of regulations.

The DDG then requested Advocate Mpahlela to guide them on other relevant pieces of legislation dealing with the provision of such information, and its disclosure to the public.

Advocate Mpahlela informed the committee that the Promotion of Access to Information Act (POATIA) deals specifically with private and confidential information and its disclosure. The relevant provisions in that Act could be included in the Bill via cross-reference.

The Chair agreed with Advocate Mpahlela but, as recommended earlier by Mr Page, the regulator must be proactive.

The DDG reminded the Chair that the Department has also planned "open days" referred to earlier by Ms Barret.

The Chair replied that he was aware of these, and that the Department has to make a concerted attempt to reach out to the rail commuters and trade unions, so that the Department promotes rail transportation as well. This should be done in an imaginative way, to ensure maximum awareness.

The DDG informed members that clause 7(1)(n) at the top of page 9 of the Bill makes this exercise mandatory

The Chair was satisfied with the manner in which this issue was incorporated into the Bill, but the extent to which the Bill deals with information has yet to be clarified.

Mr Farrow agreed with the concern raised earlier by Mr Page that a forum for the "commuters voice" has to be established as soon as possible, so that commuters may be able to voice their grievances in a forum that would deal with them effectively. It is thus requested that this important issue be flagged for further discussion.

The Chair agreed with Mr Farrow.

Mr Page added that all the rail commuting groups should be invited to this committee to voice their grievances, so that they may have the opportunity to give their own view of matters affecting rail commuters. This exercise would no doubt provide both this committee and the Department with valuable insight into important issues such as rail commuter safety, and possible means in which the proposed Bill could address and remedy current problems with rail safety.

A member inquired whether the SARCC would be making a presentation during this session.

The Chair informed the honourable member that the SARCC delegation is in fact present, but will not be addressing the committee today. They have informed us that their concerns will be effectively covered by the Department's presentation.

The meeting was adjourned.