Merchant Shipping (Safe Containers Convention) Bill [B31-2010]: briefing

Meeting report

Transport: Merchant Shipping Bill, 2011: Briefing by Department of Transport
Adv Adam Masombuka (DoT Acting Chief Director: Legislation) apologized on behalf of the Deputy Director General, Ms Hamida Fakira, who could not be in attendance owing to the departmental roadshow. Explaining the background to the Bill, he said that South Africa was a contracting party to the International Convention for Safe Containers, 1972. The principal objectives of the Convention were to maintain a high level of safety of human life in the transport and handling of containers through the provision of acceptable test procedures and also the facilitation of international transport of containers by providing uniform international safety regulations. The Convention had since its inception undergone several amendments.

Adv Masombuka stated that the purpose of the Bill was to give effect to the Convention and additionally to repeal and replace the International Convention for Safe Containers Act, 1985 – that had never been put into place. The Bill also proposed to re-assign functions related to the implementation and administration of the Convention, from the Minister of Trade and Industry to the Minister of Transport and South African Maritime Safety Authority (SAMSA) so as to ensure that the appropriate authorities had responsibility for this mode of transport and related safety matters.

Adv Masombuka explained that the scope of the Convention was limited to containers of a prescribed minimum size and the requirements of the Convention applied to a great percentage of freight containers used internationally, excluding only those carried by air. The Bill related to the safety of containers, and not security of containers, and as such advocated for the standardisation of containers, as this would ensure easier packing and stacking.

The consultation process the Department had followed included the publication of the Bill on 15 April 2009 in Gazette No. 32100 and comments were received from SAMSA and Transnet. Additionally, DoT asserted that the Bill would have no financial implications for government and before closing, he requested that the Committee approve the Bill.

Discussion
Mr S Farrow (DA) enquired why the submissions from Transnet and SAMSA were not presented to the Committee. He also sought to know why amendments were last signed in 1993, especially in light of all the new containers that had since entered the market.

Adv Masombuka apologized for not forwarding Transnet and SAMSA’s comments to the Committee. He indicated that these comments, where applicable, were incorporated into the final draft of the Bill. The Department had not thought to forward them to the Committee. He also stated that before for any amendments to the international Convention could be accepted, they needed to be ratified by ten countries before it could be internationally recognized, this was the reason for the delay in signing the amendments.  
 
Mr E Lucas (IFP) congratulated the Department on a progressive Bill and asked about the disposal of containers.

Adv Masombuka responded that though he did not have a direct answer, the new laws and regulations gave container owners time to modify or recycle these containers.

Mr M De Freitas (DA) asked if public comments and submissions on the Bill were going to be canvassed through the media.

Ms N Ngele (ANC) disputed the Department’s assertion that there were not going to be any financial implications for the Bill. She argued that with the standardization of containers there may be a need for the equipment handling the containers to be changed. In addition, she enquired the incentives, if any, for container owners to comply with the provisions of the Bill.

Adv Masombuka acknowledged that though there would be financial implications for stakeholders in the industry, but there would be none for the government. He argued that if South Africa did not comply with international Conventions, it would find itself not receiving benefits from the International Maritime Organisation (IMO). The importance of the Bill, he asserted, was to give force to international commitments.

Mr Farrow enquired if the mandatory weigh-in of containers had been taken into consideration and whether there was any consensus on this. He stated that overloading was a major concern, with serious implications for the country’s road infrastructure.

Mr Sipho Mbatha (Legal Adviser: SAMSA) noted Mr Farrow’s comment and stated that every container that went through the gates of the country’s ports had to be weighed.

The Chairperson enquired about the entities to be affected by the Bill and mentioned container owners, container manufacturers, service providers that loaded and unloaded the containers as examples. She also sought clarity on how closely aligned containers owned and manufactured in South Africa were to the provisions of the Convention, and if the containers currently in use did not conform to these provisions – how their disposal would be dealt with.

Adv Masombuka acknowledged that stakeholders would be affected. He could not give exact numbers of those that complied with the Convention, and those that did not.

Mr Mbatha indicated there would be a transitional period after which all containers would have to comply with the provisions of the Convention.

Mr Farrow suggested the Committee visit one of the ports to evaluate operations, as he did not think all containers were weighed. 

The Chairperson challenged the Department’s assertion that there would not be any financial implications for government and asked if the affected stakeholders would not demand compensation from the government.

Adv Masombuka stated that this had not been looked at as it was not their mandate. 

Mr Lucas stated that it was very important to consider weighing the containers as it had implications for the country’s road infrastructure.

The Chairperson indicated there were three salient issues emanating from the presentation:
- compliance of the South African government to meet international Conventions
- removing power of regulation from the Department of Trade and Industry (DTI) to DoT
- regulations specifying the type of containers to be used in South Africa that align it with the International Convention. She added that the Committee had identified the issue of weight and the impact it had on degrading the country’s road infrastructure as being very important. She invited the State Law Adviser to discuss the constitutionality of the Bill with the Committee.

Officials from the Office of the State Law Adviser indicated that in accordance with section 231 of the Constitution and having scrutinized the Bill, no constitutional issues had been raised.

Mr H Maluleke (ANC) stated that in previous years overloaded trucks were fined on the spot, if they exceeded the weight limits at weigh bridges. He asked who was currently responsible for monitoring overloading as many of the weigh bridges he drove past were in a state of disrepair.

Mr Farrow suggested that the Committee invite stakeholders to make a presentation.

The Chairperson agreed to invite stakeholders and indicated the Committee would consider road maintenance at a strategic workshop as part of their oversight role. She thanked the Department and the State Law Advisers.

The meeting was adjourned.

Appendix
Memorandum of the Objects of the Bill
1.1 South Africa has been a Contracting Party to the International Convention for Safe

Containers, 1972 (the Convention), since its accession in June 1982. However, failure to

implement the International Convention For Safe Containers Act, 1985 (Act No. 11 of

1985), has resulted in South Africa not meeting its obligations as a Contracting Party, in

particular the obligation under Article I of the Convention.

1.2 The Convention was adopted on 2 December 1972 and entered into force on 6

September 1977. There are currently 65 Contracting Parties.

1.3 The Convention has two principal objectives: One is to maintain a high level of

safety of human life in the transport and handling of containers by providing generally

acceptable test procedures and related strength requirements which have proven

adequate over the years; the other is to facilitate international transport of containers by

providing uniform international safety regulations, equally applicable to all modes of

surface transport. In this way, proliferation of divergent national safety regulations can

be avoided.

1.4 The requirements of the Convention apply to the great majority of freight

containers used internationally, except those designed specially for carriage by air.As it

was not intended that all containers should be affected, the scope of the Convention is

limited to containers of a prescribed minimum size having corner fittings, i.e. devices

allowing handling, securing or stacking.

1.5 The Convention sets out procedures for the safety approval, by an Administration

of a Contracting State or by an organisation acting on its behalf, of containers used in

international transport. Approved containers are identified by a safety approval plate,

which is affixed to the container under the authority of an Administration. The safety

approval plate contains relevant technical data about the container to which it is affixed.

1.6 The approval, evidenced by the safety approval plate, granted under the authority

of one Contracting State should be recognised by other Contracting States. This

principle of reciprocal acceptance of safety-approved containers is the cornerstone of

the Convention, and once approved and plated it is expected that containers will move

in international transport with the minimum of safety control formalities.

1.7 The subsequent maintenance of a safety-approved container is the responsibility

of the owner, who is required to have the container examined periodically.

1.8 The technical annex to the Convention requires that a container undergo various

tests, representing a combination of safety requirements of both the inland and maritime

modes of transport.

1.9 Flexibility is incorporated in the Convention by the provision of simplified

amendment procedures that facilitate the adaption of test procedures to the prevailing

requirements of international container traffic.

1.10 The 1981 amendments were adopted on 2 April 1981 and entered into force on

1 December 1981. These amendments provide transitional arrangements for plating of

containers (which had to be completed by 1 January 1985), and for the marking of the

date of the container’s next examination by 1 January 1987.

1.11 The 1983 amendments were adopted on 13 June 1983 and entered into force on

1 January 1984. These amendments extend the interval between re-examinations to 30

months and permit a choice of container re-examination procedures between the original

periodic examination scheme and a new continuous examination programme.

1.12 The 1991 amendments were adopted on 17 May 1991 and entered into force on

1 January 1993. These amendments include the addition of a new Chapter V to Annex

I concerning regulations for the approval of modified containers.

1.13 The 1993 amendments were adopted on 4 November 1993 and have yet to enter

into force. These amendments concern the information contained on the safety approval

plate. They also amend certain test loads and testing procedures required by the

Convention.

2. Purpose

2.1 This Bill gives effect to the Convention, particularly South Africa’s general

obligation under Article I.

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2.2 The Bill also repeals and replaces an earlier attempt to implement the Convention,

in the form of the International Convention for Safe Containers Act, 1985. This Act has

never been put into operation. The Bill seeks to rectify that.

 

3. Overview of Bill

3.1 The Bill proposes to re-assign functions related to the implementation and

administration of the Convention, from the Minister of Trade and Industry to the

Minister of Transport and the South African Maritime Safety Authority. This will ensure

that the functions are assigned to the appropriate authorities having responsibility for

transport and related safety matters.

3.2 Clause 5 of the Bill declares certain provisions of the Convention to have the force

of law, and clause 10 empowers the Minister of Transport to make regulations for

carrying out and giving effect to the provisions of the Convention. The regulations will,

for example, establish requirements for the approval, maintenance, repair, inspection,

detention and disposal of containers.

3.3 The text of the Convention is set out in Part 1 of the Schedule to the Bill and

incorporates several amendments to the Convention, adopted in 1981, 1983 and 1991.

3.4 Part 2 of the Schedule sets out the text of the amendments adopted in 1993, which

have yet to enter into force. It is proposed that Part 2 enter into force only after the 1993

amendments have entered into force internationally, and after their acceptance by South

Africa in accordance with Article IX of the Convention.

3.5 The administration and enforcement of the proposed measures are entrusted to the

South African Maritime Safety Authority which, in addition to the powers conferred by

regulation, is empowered to designate inspectors (clause 6), and to direct inquiries

(clause 9) into certain accidents and incidents.

 

4. CONSULTATION

The general public was consulted through the publication of the Bill in the

Government Gazette No. 32101 of 15 April 2009, Notice 356 of 2009. Comments were

received from Transnet and the Department of Public Enterprises, and were incorporated

where necessary.

 

5. FINANCIAL IMPLICATIONS

None.

 

6. IMPLICATIONS FOR VULNERABLE GROUPS

None.

 

7. PARLIAMENTARY PROCEDURE

7.1 The State Law Advisers and the Department of Transport are of the opinion that

this Bill must be dealt with in accordance with the procedure established by section 75

of the Constitution since it contains no provision to which the procedure set out in

section 74 or 76 of the Constitution applies.

7.2 The State Law Advisers are of the opinion that it is 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 does not contain provisions pertaining to customary law or customs of traditional

communities.