Transport Laws Repeal Bill [B19-2010]: briefing by Department of Transport

NCOP Public Services

11 October 2010
Chairperson: Mr M Sibande (ANC, Mpumalanga)
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Meeting Summary

The Department of Transport briefed the Committee on the Transport Laws Repeal Bill 2010. The South African Law Reform Commission had been mandated with the task of identifying outdated or unconstitutional legislation, and it had drawn the Department of Transport’s attention to 218 Acts administered by that Department that needed to be re-examined. The Department was now seeking to repeal or amend those Acts. The Bill had been published for comment in Government Gazette 31864 of 13 February 2009. Comment had been submitted from several stakeholders, including Transnet, the Passenger Rail Agency of South Africa, the Department of Justice and Constitutional Development. The Bill had been approved by the Office of the Chief State Law Advisor. The Bill included two schedules, the first listing twenty Railway Construction Acts dating back to 1939, while Schedule 2 listed a number of laws that were to be repealed or amended to the extent listed in a column of that schedule.

Members asked
whether the Bill included all the Transport Acts to be repealed and whether there would be any surprises in the future and sought clarity about the use of offensive language in legislation.

The Committee briefly discussed and adopted its programme for the fourth term. Members agreed that the planned study tour should be included as part of the programme even though the trip had not yet been approved.


Meeting report

Fourth Term Committee Programme
The Chairperson advised Members that the briefing by the Department of Transport could necessitate changes to the programme.

Mr Z Mlenzana (COPE, Eastern Cape) noted that it would be difficult to adopt the programme because the Department of Transport’s briefing that day would perhaps raise new matters that warranted space on the programme. However, for the sake of progress he would still move that the programme be adopted whilst leaving room for follow-up additions.

Mr M Jacobs (ANC, Free State) supported the idea of adopting the programme. In addition, he expressed concern that the proposed study tour had not been included. Even though the tour had not yet been approved it should nevertheless be added to the programme.

Ms M Themba (ANC, Mpumalanga) and Mr H Groenewald (DA, North West) concurred with the previous Member.

The Chairperson noted the unanimous consensus and announced that the programme would be adopted with the proposed amendments. 

Mr Mlenzana reminded Members that the debate around the merits of the tour was never concluded. Still to be debated were matters such as the possibility of using the constituency period for the tour. This debate should still happen, even if at a later stage, regardless of the adoption of the programme.

The Chairperson acknowledged Mr Mlenzana’s comments but stated that such a debate could not be held at that point because the trip still needed to be approved anyway. On that note he closed the matter.

Briefing by Department of Transport Presentation Transport Laws Repeal Bill
Adv Adam Masombuka, Acting Chief Director: Legislation, Department of Transport (DoT), said that the Transport Laws Repeal Bill was aimed at repealing laws which were no longer of practical utility. The purpose of the revision process was to modernise and simplify the statute books, thereby reducing its size and saving the time of legal professionals and others who make use of it. It also ensured that people were not misled by obsolete laws camouflaged as “live” law. Legislation identified for repeal was selected because the purpose for which they were enacted, either no longer existed or was being met by alternative means.

 He said that there were two Schedules in the Bill. Schedule 1 listed Acts that would be repealed in their entirety. For instance, the Schedule sought to repeal some 20 Railway Construction Acts, dating back to 1939. These Acts authorised the construction of and equipment for railway lines at certain places in the country. Having achieved the purpose for which they were enacted, these Acts were spent and might be repealed. The Schedule also sought to repeal Acts that no longer served any purpose. For example, the Railway and Harbours Strike and Service Amendment Act, 1914 (Act No. 7 of 1914) granted employees who did not take part in the 1914 strike, special leave, a bonus, a reward or special promotion. This Act had been replaced by the Labour Relations Act of 1996 with its amendments. Other Acts had become obsolete and might for that reason be repealed. For example, section 15 was the only remaining provision in the Railway Expropriation Act, 1955 (Act No. 37 of 1955), the other provisions having been repealed over the years. All the other Acts listed under Schedule 1 were of the same nature as the examples given.

Schedule 2 sought to repeal certain provisions of the laws listed therein. The provisions that were to be repealed had either become obsolete, or would become obsolete since the legislation they referred to were to be repealed by virtue of Schedule 1. For example, the application of section 1 of the Railway and Harbours Service and Superannuation Fund Acts Amendment Act, 1930 (Act No. 27 of 1930), which section were to be repealed, was dependent on a provision in another Act. That other Act has already been repealed. Thus the said section served no purpose and could be repealed. A further example was the proposed repeal of sections 1, 2 and 6 of the Railways and Harbours Acts Amendment Act, 1969 (Act No. 32 of 1969). Those sections referred to legislation which was to be repealed by virtue of Schedule 1 and could therefore be repealed. The provisions of the other Acts listed in Schedule 2 were of the same nature as the provisions mentioned in the examples and could therefore be repealed.

The Bill was published for comments in Government Gazette No. 31864 on 13 February 2009, Notice No. 150 of 2009. Comments were received from Transnet, the Passenger Rail Agency of South Africa (PRASA) and the Office of the Chief State Law Adviser. The proposed repeals had no financial implications. It also had no implications for any vulnerable groups. The State Law Advisers (SLAs) and the DoT were of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution. The SLAs were of the opinion that it was not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it did not contain provisions pertaining to customary law or customs of traditional communities.

Adv Masombuka informed Members that the Department had prepared briefing notes for each of the Acts proposed for repeal. These notes could be obtained upon request from the Department.

The Chairperson invited Members to ask questions or comment on the presentation.

Ms Themba asked whether the Bill had already been passed by the Portfolio Committee on Transport. She withdrew her question after another Member pointed out that the matter had been addressed in the documents before her.

Mr Groenewald enquired whether the Bill included all the Transport Acts to be repealed and whether there would be any surprises in the future. He asked if there were no other Bills lying around somewhere besides the one being tabled.

Adv Masombuka confirmed that all the laws that were up for repeal were those published in the Bill. There would be no surprises. He reminded Members that nothing stopped any department from reviewing and repealing any laws which were overtaken by others.

Mr Jacobs asked whether an Act is still needed for any railway construction. He also wanted clarity on the timing of these repeals. Would it not be correct for an old Act first to be repealed if it was going to be replaced with a new Act?

The Chairperson also asked for clarity on matters such as the use of offensive language in legislation. Changes to terms such as non-whites were long overdue and must be repealed quicker.  In line with Mr Jacobs’ question he felt that it was unthinkable that words such as Transvaal were still contained in legislation. 

Adv Masombuka added that the Bill had been approved and passed by the National Assembly. All departments undertook an annual legislative review. Only once departments had adopted new Acts the impact of such Acts on older Acts could be assessed. New Acts could impact several departments and each affected department needed to ascertain such impact. This then had a knock-on effect on existing laws as well as upcoming laws. Once such impact had been assessed, only then could the matter of repeals be entertained. Departments had to check whether any new laws were relevant to them and also whether such laws or sections thereof were at odds with the Constitution. All departments always checked whether the language used complies with the language of a developing South Africa.

Adv Masombuka said it seemed that previously (pre-1994) any railway construction could only be authorised by the State President. For this to have happened, an Act had to be in place. In the new South Africa such projects were department-based and there was thus no further need for an Act of that kind. The new way was for the Department to come up with the project plan and the Minister would seek approval and the budget for such projects. The government had identified the problem of offensive language some time ago and had recognised that a review was long overdue. For that purpose the South African Law reform Commission (SALRC) had been mandated with the task of revising the South African statute books with a view to identifying and recommending for repeal or amendment laws that were inconsistent with the equality clause in the Constitution of the Republic of South Africa, 1996, or redundant and obsolete. In simple terms, the government was also very keen to make the laws accessible to ordinary South Africans by cleaning up the language used.

The Chairperson needed further clarity on why it had to take so long for the state to place such offensive aspects under review. He felt strongly that the removal of such offensive language was a violation of human rights. He also invited the Senior State Law Adviser for her input on the matter.

Ms Themba agreed that these matters were long overdue but was satisfied that something was finally being done.

Adv Masombuka emphasised the importance of making the laws more accessible to ordinary citizens. He Legal experts were able to wade through all the jargon but it was incumbent upon the State to streamline the laws of the country in order for the man in the street to understand it easily. He added that he could not adequately address the question about the timing or the delay of the review because he only joined the Department about five years ago.

Adv Ntombi Mnyikiso, Senior State Law Adviser, Office of the Chief State Law Advisor (OCSLA), agreed with the Chairperson about the lengthy delays of the reviews. Unfortunately the OCSLA’s mandate did not extend to such reviews and was only limited to review the constitutionality of existing laws. It was the Departments’ role to place laws under review and the SLA supported them in this exercise.

Mr Jacobs asked what would happen if someone challenged the government with a law that had not been repealed but was in contrast with newer laws, such as the Labour Relations Act.

Adv Mnyikiso advised that the Constitution was supreme and that all laws were subject to it.
Therefore, as much as these unwanted Acts were slowly being removed, they were mostly already toothless after 1994 because of the Constitution.

The Chairperson thanked the Department for their input and encouraged them to consult more closely with the NCOP on such processes as well.

The meeting was adjourned.


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