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

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28 February 2011
Chairperson: Ms N Bhengu (ANC)
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Meeting Summary

The Chairperson noted that the Committee had received four submissions, one of which was received after the cut-off date.  Members agreed to consider this late submission. Three of the submissions were then considered, as the Committee agreed that the submission from Mr H Jolliffe was related to safety issues only, did not relate to the subject matter of the Bill itself, and therefore was not relevant.

Transnet representatives were present, but did not make any submission, other than referring to the written submission. Members were a little concerned about the issues raised. The Bill was to do with safety of containers, and related to inspections and weighing, both considerations being based on safety requirements. Transnet, however, appeared to have raised issues relating to checking on-site, where different safety procedures applied. They pointed out that if there was no independent inspection of loading and off-loading of containers, the Bill would be meaningless. In addition, the weighing requirements were based on the risk that incorrectly loaded containers would pose to ships and land-based systems. The objections on the grounds of cost must be weighed up against the greater risk of losing a ship. Members also noted that no alternative solutions were suggested by Transnet. The Transnet representative indicated that she noted the comments and concerns, but did not want to delay the process of the Bill and would abide by the Committee’s final decision.

A written submission from C Briesch had drawn attention to the mention of Prince Edward Islands, and it was explained that this was done because Prince Edward Islands were annexed into the then-Union of South Africa in 1948 and the law of South Africa as it applied in 1948 would therefore apply there. However, any legislation passed subsequently in South Africa would not extend to Prince Edward Islands unless specifically stated. Members, however, pointed out that if Prince Edward Islands were still considered to be part of South Africa, transport between the mainland and the islands would not be “international transport”, and this Bill essentially only applied to international transport. Although the Bill was drafted to comply with an international convention, the point was also made that it should ensure that every container was safe, regardless of whether containers were shipped domestically or internationally. Some Members thought that there would therefore be no problem in removing clause 3, whilst others believed that the reference underlined safety in the Islands. The Parliamentary Legal Advisor cautioned that a copy of the Prince Edward Islands Act should first be studied, and that the Department and Parliamentary Legal Advisor would report back.

Chemical & Allied Industries Association (CAIA) had made a written submission, on which the Department of Transport commented. The representative explained the position in response to comments on enforcement, terminology, date of operation and regulations. The Department agreed that there should be only one authority to approve the safety of all containers. It also agreed with comment on clause 6, but noted that the authority of the South African Maritime Safety Authority would not be duplicated. It did not agree with comments on clauses 9 and 10. Members asked if it would be useful to incorporate the terminology of the Convention into the Bill, but the drafters explained the drafting conventions, and noted that all relevant legislation must be read together. The Department and Committee would need to check that the responsibilities and roles were clearly defined.


Meeting report

Merchant Shipping (Safe Containers Convention) Bill [B31-2010]: Public Hearings
The Chairperson reviewed the agenda for the public hearings on the Merchant Shipping (Safe Containers Convention) Bill (the Bill) and noted that the Committee had received written submissions from Transnet, C Briesch, and Mr H Jolliffe, plus a fourth submission that came late from the Chemical & Allied Industries Association (CAIA). She asked the Committee Members if they would entertain the late submission.

Mr S Farrow (DA) stated that he did not have a problem with the late submission, and noted that it should be considered if it was going to contribute to the safety of containers.

The Chairperson agreed that the late submission could be considered.

Transnet submission
Ms Indira Reddy, General Manager: Group Compliance, Transnet, introduced her delegation, but indicated that all the comments from Transnet were contained in the written submission to the Chairperson’s office (see attached document for detail).

Mr Mongameli Kweta, Senior State Law Advisor, Office of the Chief State Law Advisor, commented on the procedure for public hearings.  He recommended that stakeholders make oral submissions to the Committee in addition to their written submissions. This would then enable Members of the Committee to seek clarity on any issues based on the oral presentations of stakeholders. The Department would respond to these issues. 

Mr Farrow stated that he had received the documents in advance and he was prepared to proceed on the basis of the written submissions.

The Chairperson agreed to proceed with questions based on the written submissions.

Mr Farrow was concerned by various comments submitted by Transnet.  He noted that the Bill was about safety of containers.  There were two issues at hand: inspectors and weighing of containers. Both issues had a direct bearing on safety.  He noted that inspectors would have to comply with all of the safety requirements for entry to and exit from a port, in the same way that any other worker on the dockside would have to comply. He stated that the points raised by Transnet in terms of safety related to checking, but being on-site was not relevant to the particular issues at stake, as there were already safety rules and regulations that applied to the dockside.  He noted that if there was no independent inspection of loading and off-loading of containers, the Bill would be meaningless.  There had to be independent inspection.  If Transnet was worried about this, it did not have any grounds to stand on.

Mr Farrow also expressed concern with the weighing of containers.  He noted that there were basic international agreements, which were not following the international trend of loading and off-loading containers on the basis of them being weighed.  Incorrectly loaded containers could jeopardise the ship and damage land-based transport systems.  He suggested that the fact that Transnet was objecting to both inspections and weighing of containers, on the basis of cost, was wrong and that that inspecting and weighing containers for safety reasons was a good measure. He suggested that Transnet should be looking at positive ways to make inspection and weighing happen, rather than listing all the potential problems.  He noted that if there were cost implications arising from this Bill, then this must be accepted, and pointed out that the cost of losing a ship was more serious. 

Mr M De Freitas (DA) added that the Transnet submission only pointed out problems but did not suggest any alternatives.

Ms Reddy noted the comments and concerns raised.

The Chairperson asked if there were any other comments related to Transnet's submission.

Mr De Freitas expressed his surprise at the response of Transnet.

Ms Reddy stated that they Transnet not want to delay the process of the Bill.  It had submitted comments for consideration, and if they were not accepted, then the process should continue.

The Chairperson stated that the Committee was, at this stage, still considering and therefore seeking clarity on the submission. That was the first point in the process, and the Committee would then weigh the options and draw conclusions at a later stage in the process.  However, she noted that it was acceptable if Transnet did not want to pursue the matter further.

Ms Reddy stated that Transnet did not see the need to pursue the matter further, and was happy to rely on the conclusion of the discussions.

C Briesch written submission
The Chairperson tabled the submission from C Briesch.  She asked if the members had any comments related to this submission.

Mr Farrow requested more information regarding the implications of particular aspects of the Prince Edward Islands, as included in this submission. 

The Chairperson asked that the Department of Transport (DOT or the Department) should comment on each of the submissions in order to provide a balance between what was in the Bill and what had been submitted by the public. 

Mr S Mbatha, Risk and Compliance Manager, South African Maritime Safety Authority (SAMSA), stated that he believed the intention of the Bill was to apply to containers used in international transport.  According to the submission by C Briesch, shipping to Prince Edward Island should be regarded as international transport.  However, Mr Mbatha noted that the piece of legislation Prince Edward Islands Act of 1948 stated that the Prince Edward Islands were annexed to form part of the (then) Union of South Africa.  Thus, the Department's view was that the laws of Prince Edward Island were the same as the laws of South Africa, and therefore transport between the two places was not international transport. 

Mr Farrow asked if the rationale behind the Prince Edward Islands Act was that South Africa could then be able to transport goods to the islands without having to comply with any other international rules.  He suggested that both domestic and international shipping should comply with the same safety standards.  He recommended that the details of the Prince Edward Islands Act be reviewed in closer detail.  He suggested that the Act may no longer apply, and that perhaps it should be replaced with the norms and standards that currently applied to the shipping of containers.

Mr Mbatha stated that the Prince Edward Islands Act (the Act) had not been repealed and it was therefore still in force and applicable.

Mr De Freitas stated that the Act itself was not the argument.  This Bill was about safety, and the reality was that transport to the islands traversed potentially dangerous seas.  He believed that this should be the focus, and this was what the author of this submission intended to say. 

Mr De Freitas asked the Department to address the questions raised in paragraph 3 of page 2 of the submission.

Mr Mbatha stated that the intention of the Bill was to ensure that all of the containers that came and went from South African ports were safe, regardless whether the containers were shipped domestically or internationally. 

The Chairperson reiterated that this Bill was in front of the Committee because South Africa was a signatory to the International Convention, and therefore had to subscribe to the norms and standards of the Convention.  The Convention specified that the containers used in shipping should be of a particular standard.  These standards made containers safe.  The Bill in front of the Committee enforced the exclusive use of safe containers and equipment in South African ports. 

The Chairperson asked the Department to respond specifically to the question whether this requirement should apply if there was shipping from the South African mainland to Prince Edward Islands. She had taken the response of SAMSA to mean that because Price Edward Islands was part of the Republic of South Africa, the clause in the Bill that related to the Prince Edward Islands should fall away, because the Island, being part of South Africa, would in any event have to comply with the norms and standards applicable in the rest of South Africa.  She also surmised from Mr Farrow that the Bill did not specify what had to happen when shipping between two South African ports. She further pointed out that the Bill was silent on the question of whether there could be two different types of containers in South Africa; one for domestic and one for international shipping.

Mr Farrow stated that it was equally necessary for safety purposes to apply the Act across the whole spectrum of domestic and international shipping.  He restated his request to review the Prince Edward Islands Act to determine why it was stated in this Bill. 

Mr Mbatha stated that the Prince Edwards Islands were part of South Africa and therefore must comply with regulations.

The Chairperson stated that she required further clarification on the issue.  If the Prince Edward Islands were part of South Africa, then there would seem to be no reason to have a separate clause in the Bill to ensure compliance there.

Mr Mbatha noted that section 4 of the Prince Edward Islands Act stated that: "No Act of the Union Parliament passed after the date of commencement of this Act shall apply to the Territory, unless by such Act it is specifically expressed so to apply, or unless it is declared to apply by proclamation of the Governor-General." For this reason, if there was no specific mention that South Africa must also be taken to include Prince Edward Islands, then they would be excluded.

Mr De Freitas stated that his point was reinforced that this reference must be included, to ensure safety there.

Mr Adam Masombuka, Acting Chief Director: Legislation, Department of Transport, stated that the requirements of the Convention applied to the containers used internationally, except for those designed specifically for use by air.  He also noted that the Convention defined international transport as transport between two points of departure and destination, situated in the territory of two countries, provided that at least one was subject to the present Convention. This Convention should also apply when part of a transport operation between two countries took place in the territory of a country to which the present Convention applied.  If the Islands were part of the jurisdiction of South Africa, then movement within South Africa could not be considered “international transport”.  Therefore, these Conventions applied to transport between one country and another, which was why international transport was specified in the Bill.  He also noted that the opinion of the State Law Advisors was that the Prince Edward Islands were part of the jurisdiction of the South Africa.  He reaffirmed that transport between the mainland and Prince Edward Island was not “international transport”. 

The Chairperson asked for the opinion of the State Law Advisor.

Mr Kweta noted that clause 3 of the Bill stated that transport between the Republic and the Prince Edward Islands was not international transport.  He stated that issues of safety that applied on the mainland also applied to the Prince Edward Islands.  His view was that the sub-clause in question should remain, to reinforce the issue as contemplated in the Prince Edward Islands Act of 1948.

Mr De Freitas requested a copy of the Prince Edward Islands Act for the Committee.  He asked, in the event that the island were to be excluded, what other safety mechanisms would be in place to cover activities that would take place in this Bill.

Mr Farrow noted that the author of this submission had questioned whether the present clause 3 of the Bill was necessary at all.  He too queried the relevance of this Clause.

Mr Mbatha volunteered to submit a copy of the Prince Edward Islands Act to the Committee and to determine if clause 3 of the Bill needed to be included or not.

Mr Masombuka read out the relevant clause. He noted that this had been a matter of debate within the Department, was also raised by Transnet and was also touched upon by Mr Briesch in his submission.  He stated that if the Committee wished, it would be possible to remove this clause from the Bill.

Mr Farrow stated that he would support any move to remove this clause from the Bill.

Mr Kweta stated that he would not be opposed to removing this clause from the Bill.

Mr Frank Jenkins, Parliamentary Legal Advisor, advised that the Committee should be cautious in agreeing to remove clause 3 from the Bill, prior to seeing the Prince Edward Islands Act.  However, he noted that by virtue of the 1996 Constitution, South African law should apply there, without having to restate it. He believed that the intent of this clause should be determined before it was removed.  He noted that he would review the issue, and brief the Committee at the next meeting.

The Chairperson asked if there were any further issues to be raised on Mr Briesch’s submission

Mr H Jolliffe submission
The Chairperson noted that this submission was related to safety devices and not to the Bill under discussion.  She recommended that for these reasons it should not be considered.

Chemical & Allied Industries Association (CAIA) submission
The Chairperson asked the Department to speak to the arguments put forward in submission number four by CAIA.
Mr Masombuka responded to the comments on specific clauses. Firstly, he noted that the Bill was clear that enforcement would be by the Departmental Authority, and that the terminology used in the Bill was standard terminology, and was not intended to imply ambiguity. 

He noted that clause 14 of the Bill covered the date on which the Act would come into operation and that there was no other way in which the date of commencement could be stated. 

He stated that when the Bill became an Act, regulations would be put into place that governed procedures, including approval procedures and authorities. The Department agreed with CAIA that there should be only one authority that approved the safety of all containers.  He noted that once the question “how” was being posed, this meant that the regulations were being questioned, not necessarily the Bill itself.

Mr Masombuka noted that the Department agreed with the view presented in respect of clause 6. He said that inspectors from other agencies would inspect road vehicles. SAMSA's authority would therefore not have to be extended to inspect road vehicles. For this reason there would not be duplication of duties.

Mr Masombuka said that the Department did not agree with the submission on clause 9 of the Bill. When there were accidents or incidents, there was often a need for a combined team of experts, who may come from different agencies.  The Department also did not agree with the submissions in respect of clause 10.

Mr Masombuka summarised that he did not believe that the submission noted anything substantial that would require an amendment to the Bill.  He welcomed the comments from the submissions and the Committee and said the Department would verify the outstanding questions. 

Mr De Freitas suggested that it would be helpful to incorporate the terminology of the Convention into the definitions of the Bill, to avoid confusion. 

Mr Masombuka stated that this would result in some repetition, and this was not the preferred drafting style. The Bill would normally only deal with definitions of terms that were already defined in the Convention if the Bill was seeking to define those terms differently. He stressed that it was important to read the definitions in the Bill in conjunction with the definitions in the Convention. 

Mr Farrow stated that there should be cross-referencing of existing safety rules into this Bill.  This would avoid duplication of authorities from organisations who were already operating under other Acts and Regulations.  He also noted that the Committee and Department should look at the role of the Port Regulator to avoid confusion over who exercised what authority and over which areas, so that the responsibilities were clearly defined.

Mr Masombuka noted the concerns raised by Mr Farrow and they would report back to the Committee. 

A Member noted that no representatives of CAIA were present at the meeting. It was also noted that no alternatives had been suggested to the clauses identified for critique.

Mr Mbatha drew Members’ attention to the fact that there was an international code for the loading and shipping of dangerous goods, The International Maritime Dangerous Goods Code, which was published by the International Maritime Organisation. This gave SAMSA powers to inspect containers and the stacking of containers. 

The Chairperson noted that in the meantime the Prince Edward Islands Act of 1948 had been distributed to the Committee. 

Mr De Freitas requested time to review it and bring up matters at the next meeting.

Mr Farrow also asked that Mr Masombuka review the concerns raised by Transnet at the next meeting, as he was not able to be present when the Transnet submission was being discussed.

The meeting was adjourned.

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