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

Meeting report

The Chairperson noted that in the previous meeting concerning the Bill, Members had a problem with Clause 3. They had requested assistance from the Parliamentary Legal Department to help them resolve this issue. Adv Frank Jenkins, Senior Parliamentary Legal Advisor, Constitutional and Legal Service Office, submitted a memorandum to the Committee which he then explained.

Clause 3(1) of the Bill stated that “This Act extends to the Prince Edward Islands as defined in section 1 of the Prince Edward Islands Act, 1948 (Act No. 43 of 1948). (2) In its application to those Islands, transport between the Republic and the Prince Edward Islands is not international transport.” The issue was whether either or both of the subclauses were necessary.

Adv Jenkins then explained the application of the Bill to the Prince Edward Islands. Section 4 of the Prince Edward Islands Act provided 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.” Section 4(1)(a) of the National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003) provided, similarly, that the “Act also applies in the Prince Edward Islands referred to in section 1 of the Prince Edward Islands Act, 1948 (Act No. 43 of 1948)”. There was thus precedent for the drafting of Clause 3(1) of the Bill.

Adv Jenkins continued by explaining that item 2(1) of Schedule 6 to the Constitution provided that all law that was in force when the new Constitution took effect, continued in force, subject to any amendment or repeal, and consistency with the new Constitution. Item 3(1)(a) further provided that references, in legislation that existed when the new Constitution took effect, to the Republic of South Africa or a homeland, except when it referred to a territorial area, must be construed as a reference to the Republic of South Africa under the new Constitution. In other words, the exclusion of territorial areas such as the reference to the Prince Edward Islands must be read as it stood.

It followed that it was necessary to comply with section 4 of the Prince Edward Islands Act if Parliament intended to legislate for that area. Subclause 3(1) of the Bill was thus necessary for the purpose of making the regulatory framework set out in the Bill applicable to the Prince Edward Islands.

Adv Jenkins noted that transport between the Republic and the Prince Edward Islands was not international transport. Section 1 of the Prince Edward Islands Act defined the territory known as Prince Edward Islands and declared this territory to be part of the then Union of South Africa. When the Union of South Africa became the Republic of South Africa, the reference to the Union of South Africa had to be construed as a reference to the Republic. Although the Republic of South Africa Constitution Act No. 110 of 1983 repealed the 1961 Constitution, and the Constitution of the Republic of South Africa Act No. 200 of 1993 repealed the 1983 Constitution, the existing laws continued in force. It followed that the territory of the Prince Edward Islands was part of the Republic of South Africa. Therefore, subclause 3(2) of the Bill was superfluous.
 
Discussion
Mr M de Freitas (DA) said that he was concerned about the safety perspective of this Bill. He asked whether the Department was satisfied with the safety aspect of transporting goods over long distances over the sea. He agreed that Clause 3(2) should be removed.

Mr Vusi Nkosi, Deputy Director: Maritime Safety and Security, Department of Transport, said that the Department wanted Clause 3(2) to be removed as advised by Adv Jenkins, because someone who is unfamiliar with the Bill may find this additional information confusing to understand the jurisdiction of the Bill. When looking at the historical background of these Islands, they were not at first part of South Africa, but had now become part of the Republic due to nature conservation and biology research purposes.

Mr S Farrow (DA) commented that domestic or international shipping must be compliant with systems of safety and compliance. He thought that the reference in Clause 3(1) was sufficient and Clause 3(2) should be removed.

The Chairperson said she did not agree with the suggestions of having Clause 3(2) removed. The Act of 1948 made the Prince Edward Islands part of South Africa. The Bill sought to regulate the movement of containers from other countries to South Africa. For example, if a person from Mexico shipped containers to the Prince Edward Islands, and he/she did not know about the 1948 Act, then Clause 3(2) would clarify that. Clause 3(2) would not cause confusion as its purpose was to clarify the Bill. Therefore this Clause was needed.

Mr De Freitas said that he was satisfied thus far. He wanted to know more about the safety aspect as it was vast distances that were covered by sea. He requested for something in writing from the Department's technical team to address the issue.

The Chairperson said that what informed the drafting of the Bill was safety in relation to the Convention. The Bill itself took care of the safety issue, as South Africa was a signatory and a member of the Convention.

Mr Farrow said that all Articles dealing with safety were included in the Bill. He added that Clause 3(2) would confuse people.

Mr De Frietas agreed that the Convention spoke to the issue of safety. He wanted to know whether the same standard was in place for the transportation between ports of South Africa. He said that our own country and people might be at risk due to a lack of safety.

The Chairperson recommended that a Clause dealing with the local safety issues should then be included in the Bill or an amendment needed to be made to an Act that already governed the transportation of goods in South Africa in terms of the same safety standards that applied in the Convention. 

Mr Nkosi explained that Articles II to VI of the Convention had the force of law in the Republic according to Clause 5 of the Bill. This meant that each container used in South Africa was required to carry a valid Safety Approval Plate adhering to the current legislation that was in place that governed the transportation of goods.

The Chairperson asked whether there was any comment from the ANC.

Mr M Manana (ANC) suggested that the Department should be allowed some time to conduct its own investigation and come back to the Committee with its recommendations with regards to a separate Bill being created for the safety of domestic shipping, if such a Bill was indeed needed.

Adv Jenkins commented that the Bill under deliberation was to make an international agreement part of the law. He agreed with the proposal that domestic transportation of containers was a separate issue. This Bill was for the purpose of implementing international law.

Mr Nkosi said that the Department needed to make a determination and an assessment in consultation with the relevant stakeholders. It was not envisaged that this Bill would have needed to address domestic movement. He agreed with the DA members that there was a need to look at issues of safety. If the result was that there was a gap, the Department would need to come up with a Bill to address the issue.
The Chairperson said that Clause 3(2) was going to remain unchanged. However, the Department needed to do an assessment for goods transportation within the borders of South Africa.

Mr Farrow wanted to know if there was any law governing the contents and weighing of containers. He noted that there was reference in the Bill but asked whether the Department had thoroughly looked at this issue. He asked whether the content of containers was regulated.

Adv Adam Masombuka, Acting Chief Director: Legislation, Department of Transport, said that Clause 7 outlined the rules and regulations with regards to the contents of the containers and the weighing thereof. It noted the powers of inspectors as outlined in “7(1) In addition to any powers that he or she may have under the regulations, an inspector may, without a warrant, at any reasonable time (a) board any vehicle, including a ship, train, truck or aircraft, or enter any premises if he or she believes on reasonable grounds that (i) there is significant evidence that the condition of a container in or on such vehicles creates an obvious risk to safety”

Mr Farrow asked whether the wording of Clause 7(1)(i) could be changed to include the words “or contents” of a container, because currently this Clause only dealt with the container itself and not the contents of the container. So the Clause would then read “there is significant evidence that the condition “or contents” of a container in or on...”

Mr Nkosi said that it would not be a problem to add the reference to the contents of containers as well. He said that inspections were done by the inspectorate, and the Dangerous Goods Act governed the transportation and contents of containers. The inspectors were also given power by the Dangerous Goods Act to cease any container if the container or contents failed to meet safety standards.

The Chairperson said that she was confused and needed clarity on whether this Bill took away the inspection powers of other existing legislation.

Adv Masombuka said that this Bill did not take away any powers and issues of safety overall and content of containers should not be confused. This Bill could not influence other already existing legislation. The Convention was simply an international obligation to ensure that containers that leave the country complied with rules of safety.

Mr Farrow insisted that Clause 7 should be amended to include the word “contents”. He said that this would ensure that the Department was covered in all aspects. He noted that a reference to the Dangerous Goods Act was also needed in Clause 7 to give reference to the power of the inspectorate.

Adv Jenkins commented that inspectors already had powers assigned to them. The Bill should be kept simple and should not repeat laws. Therefore the addition of the reference to the Dangerous Goods Act was not needed.

The Chairperson agreed with Adv Jenkins. The Bill sought to implement the agreement of the Convention in South Africa. It dealt with the safety and content of containers as a whole. There were already existing laws that needed to be adhered to.

Mr Manana said that the concerns by Mr Farrow had already been covered. The Dangerous Goods Act together with this Bill would run simultaneously. Therefore there was no contradiction or need to include any reference.

Mr Nkosi highlighted that Part 2 of the Bill which was the 1993 amendments should be removed from the Bill. The 1993 amendment was not yet enforced internationally because there was still a need for other countries to accept these amendments in writing. It was envisaged with the establishment of the Bill, therefore it had been included. There were two options available currently to the Department, which were either to keep the amendments in the Bill and when the Bill was proclaimed not to put part 2 into operation, or, alternatively, Part 2 could be deleted and, once this part became internationally enforced, it could be added to the Bill.

Mr Farrow asked why Part 2 should be deleted from the Bill as it included issues of weight of containers.

Mr Nkosi explained that it was not yet enforced internationally. It was merely discussed but needed the resolution of each of the respective parliaments involved in the Convention. The International Marine Organisation (IMO) needed submissions from 10 States of Countries for Part 2 to become enforced.

Adv Jenkins asked whether South Africa had signed these Part 2 amendments. He suggested that if South Africa had not signed yet then it was best to delete Part 2.

Mr Nkosi advised that South Africa had not yet signed the Part 2 amendments.

The Chairperson proposed that Part 2 should be removed.

Members supported this proposal.
 
The Committee supported the Bill with the removal of the Part 2 1993 Amendments (page 22).

The meeting was adjourned.