The Department of Transport (DoT) briefed the Committee on the Merchant Shipping Bill. The background, purpose, overview and implications of the Bill were discussed. The Committee felt the Department was mistaken in stating there would not be any financial implications for the Bill and additionally sought clarity on whether containers were weighed at the ports as this had a detrimental effect on the country’s road infrastructure. They noted that public hearings would be held on the Bill.
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
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.
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
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
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.
Memorandum of the Objects of the Bill
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
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
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
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
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
2.1 This Bill gives effect to the Convention, particularly
obligation under Article I.
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
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.
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
5. FINANCIAL IMPLICATIONS
6. IMPLICATIONS FOR VULNERABLE GROUPS
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
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