Taxi Cross Border Violence: Free State and Lesotho: Further briefings

Meeting report

Taxi cross-border violence: Free State and Lesotho: Further briefings and submissions
The Chairperson gave a brief background to the matter, explaining that the Select Committee had visited the Free State some months ago, when it was confronted by a number of people from the taxi association, raising their concerns about challenges they were experiencing daily on the taxi routes between Free State and Lesotho. The Committee discussed some issues and decided that a follow-up was needed, but a few weeks ago, on a further visit, it appeared that there had been a communication breakdown. The Committee wanted to adopt a joint approach to try to avoid further confrontation. It appealed to the taxi associations to work with the Committee and all other stakeholders. He emphasised that the Committee’s visit must not be seen as confrontational and stressed that the Committee wanted to find out the true situation and make recommendations that could assist.

Submission by MEC for Police, Roads and Transport, Free State
Mr Butana Komphela, MEC for Police, Roads and Transport, Free State, noted the presence of the National Department of Transport (NDOT) and members of taxi associations. He apologised for the inconvenience caused to the Committee by the inability of the Provincial Department to meet with the Committee, saying that there had been a problem with communication and that he had received a “strange” communication from the Select Committee on Finance, which had caused a problem. This Department would be happy to cooperate with the Committee on issues of concern to Free State.

Mr Komphela noted that his predecessor, Mr Thabo Manyani, had attempted to find a resolution to the problems for quite a long time. When Mr Komphela arrived in the Free State, he was briefed by Advocate T Phahlo of the Provincial Department, and had met with a taxi association in the Free State, as well as the Free State Taxi Council, and the Executive of the taxi association. The taxi association agreed with Mr Komphela that the taxi industry was ‘used to anarchy’, but the Department felt strongly that people should not be permitted to break the law and attempt to hold others to ransom. The Department had a very good relationship with the taxi association in the Free State, most issues were amicably resolved, and he expressed appreciation for their cooperation. He also had met with the Secretary General of the South African National Taxi Council (SANTACO), who said that it appreciated the efforts made by the Department to meet with the industry.

Adv T Phahlo, Chief Director, Free State Provincial Department of Transport, presented the background to the cross-border transport issues between Lesotho’s and South Africa’s taxi operators. Cross-border issues were regulated by the Cross-Border Road Transport Act (as amended) which particularly dealt with transport of passengers, and their personal belongings, who were crossing or intending to cross the border into the territory of another state with a vehicle or public road. The Cross Border Road Transport Agency (the Agency) provided advice to the Minister of Transport on issues related to cross-border road transport policy, and on regulation of access to the market through a permit administration process. The further mandate of the Agency was described (see attached presentation for details), and it was noted that there was a concurrent national and provincial competence in cross-border public transport matters.

He noted that the operations cross-border thus fell squarely within the competence of the Agency and its Board, who issued permits. The issuing of permits by the Agency had made matters worse for the Free State operators. There were three levels of service, inter-provincial, intra-provincial and cross-border. When some operators acquired permits from the Agency, other operators lost the opportunity. Some permit holders were said to be operating out of their residences, or from undesignated taxi ranks in Lesotho. Since the establishment of this system, the operators on the borders, at Ladybrand, Ficksburg, Fouriesberg and Wepener had experienced problems. Tensions rose, and violence erupted, leading to destruction of property, and loss of life. The Free State taxi operators refuse to allow their Lesotho counterparts to ply their trade in the Republic.

Both Lesotho and South Africa had signed the Memorandum of Understanding on road transportation, which was acceded to by members of the Southern African Customs Union (SACU), as well as the Southern African Development Community (SADC) Protocol on Transport, Communication and Meteorology. The conflicts around passenger transport between South Africa and Lesotho had been ongoing for years, and had become something of an embarrassment to South Africa. In 2005, a watershed Memorandum of Agreement was entered into between the South African Bus Operators’ Association (SABOA), SANTACO, the Lesotho Passenger Transport Cross-Border Association, Cross-Border Bus Operators to Lesotho, and Cross-Border Taxi Operators to Lesotho. He drew the Committee’s attention to the content of these Memoranda, attached to his presentation as annexures. This agreement had finally brought relative stability to transport operations between the two countries, both of whom recognised the importance of the passenger flow. Responsibilities were vested in both countries. They were both to establish the Joint Route Management Committee, which was to regulate arrivals and departures at taxi ranks, and maintain peace on the routes, as well as to discuss how permits and licences were to be dealt with and how the market would be regulated.

He summarised that the 2005 agreement firstly dealt with the fact that all taxi operators would start on the South African side or the Maseru/Ladybrand border post, no matter what other provisions of other legislation said. Secondly, at the Maputsoe /Ficksburg Border Post, both the South African and Lesotho taxi operators would start in the South African side. At Butha-Buthe (the Fouriesberg/Caledonspoort Post), the joint South Africa and Lesotho taxi operation would start in Lesotho.

Adv Phahla noted once again that notwithstanding the problems, both parties recognised the need for co-existence and cooperation, because a large number of Lesotho citizens were employed in various provinces of South Africa and regularly commuted between the two countries. Simply through geographic design, the border towns sustained their businesses through those commuting from Lesotho.

He then noted that, without the Department wanting to suggest that it was taking sides, the Free State taxi industry had brought some challenges to its attention. Some time after that agreement was signed, Free State operators suggested that there were constraints in the current wording of the Act, called for more input, and suggested that Lesotho operators should be restricted only to undertaking special trips to South Africa. South African operators complained that they were confronted with unaffordable insurance premiums when they operated across into Lesotho, if insurance companies agreed to insure these trips at all. They also complained about an allegedly indiscriminate issuing of operating licences or permits by the Lesotho Licensing Board, as set out in Annexure 20, saying that there was no proper regulation of who must operate the transport, and lack of consultation with South African counterparts. Adv Phahla said that operators also complained that the Lesotho authorities expected South African operators to hold cross-border permits when they operated in Lesotho. South African operators alleged that they were being assaulted in Lesotho, but that despite reporting cases to the police, no concrete action was taken. They also complained that the Lesotho Licensing Board had increased the routes of Lesotho operators from one to four, with no consultation.

He noted that the unhappiness came to a head again in 2009. The Provincial Department had tried to convene meetings aimed at finding solutions, as detailed in Annexure TJP5, which contained a summary of just some of what the Department tried to do. However, the Agency had been reluctant to cooperate in finding a solution, but he emphasised that he was not criticising it, as the solution had to be found by this Department. Other stakeholders had become involved to try to solve the impasse, including the High Commission of South Africa in Lesotho, mayors, the Speaker of the Motheo District municipalities, the Free State Deputy Commissioner, the Chairperson of the Portfolio Committee on Community Safety and Security, and officials in the Department. The former MEC for Transport (who was the current Premier) had engaged with the Minister and Agency, suggesting how the matter might be resolved. Several meetings were held. On 30 August 2011 the current MEC, Mr Komphela, had met with the “top 5” of the provincial Taxi Council, and later with the provincial Executive Council of the provincial Taxi Council. In many meetings, the suspension of the Act was proposed, and instead it was suggested that the unique aspects of the situation must be taken into account, including distance and geographical hindrances. It was also suggested that attention must be given to issuing of permits, stressing that only current operators on that route should be able to apply, and not outsiders, from a pool of people who had held intra-provincial permits or inter-provincial permits. There should be a clear cut-off date for implementation. Operations at the border must be streamlined, to avoid fights at the border over passengers. Consultation with the Agency had to be strengthened, and all should be striving together to reach the same goals.

Adv Phahla noted that the various proposals were not universally accepted, which resulted in the same tensions and violence erupting. The Free State taxi operators believed that NDOT was not taking this seriously, despite the fact that these operators had complied with formalisation processes, that permits had been converted, as required, from a radius permit to route-based permits, and that there was participation in the taxi recapitalisation programmes. They also complained that although meetings were arranged, the NDOT did not attend on two occasions.

Adv Phahla noted that Annexure TJP12 was a report prepared by NDOT on the “State of Relations between Lesotho and South Africa”. This report was telling. It firstly cited that the problem was found in Free State, but then noted that illegal taxi ranks at the border towns had to be dismantled, without appreciating that the facilities were meant to serve those travelling inter-and intra-provincially. The Act dictated that no facility could be constructed within 2km of the mouth of an international border, but he pointed out that some towns were less than this from the border.

Annexure TJP 13 was a letter from the Provincial Taxi Council registering a complaint against what had been said by the Director General of NDOT about implementation of the Act.

Adv Phahla said that attempts were made to seek approval and in-principle decisions from the Executive Council, to support operators engaged in cross-border operations, and to engage with the National Council of Provinces (NCOP) for amendment of the Act. It was noted where ranks and facilities were being constructed, because these were developmental issues outlined in the Integrated Development Plans (IDPs) of the municipalities. Consideration had to be given to where people from one area could go if other ranks were not constructed. Weather conditions must also be considered; for instance, in Mantsopa Local Municipality, between East Rand and Maseru, there was no shelter, and the ranks neither serviced the people properly nor complied with international standards.

Adv Phahla finally noted that resolutions were taken as a result of meetings between the Provincial Department and the Agency, but the latter failed to implement them. He referred Members to the agenda and minutes of the meeting, noting that provinces were to submit the names of associations and operators operating around the border towns, that the Agency was to provide a list of operators on its database, and that list should give an evaluation and alignment with the legislation. Questions of education on the Acts and the control and management of facilities must be considered, and it was agreed that there was a need to revert to the ad hoc permit agreement of 2005. Other complaints about assault and insurance, as mentioned earlier, were raised.

One of the other problems was that the body of Lesotho operators was not homogenous and in order to join cross-border operations they had to pay the equivalent of R5 000, which they regarded as excessive. Those operators had proposed that they should operate locally, to the border-mouth, alternatively join in the cross-border operations as well under different conditions. There were serious wars of words between operators, and each claimed that they only wanted to benefit the Basutos.

The Provincial Department of Transport had proposed that the matter must be taken to MinMEC, and that it also be raised at the Committee of Heads of Departments of Transport. There must be continuous consultation with the Agency, and operations at border-mouth and border-box must be streamlined.

Mr Komphela added that the Agency and South African National Roads Agency Limited (SANRAL) were both acting with impunity and undermining the roles of the provinces. Routes were increased by the Agency, without due regard to the position in Free State, and NDOT was acting with arrogance, as shown in its letter of 27 February. This had been reported to the Minister of Transport.

Cross Border Road Transport Agency submission
Ms Yolisa Mashilwane, Executive: Facilitation, CBRTA, apologised that the Chief Executive Officer, Mr Siphon Khumalo was unable to be present. She reported that so far from being arrogant, non-compliant or non-responsive, CBRTA preferred to report when its long-standing officials, who had been through the whole process, could report and address the issues. She noted that of the three delegates present at this meeting, one had been with the Agency from May 2009, while others joined as recently as three months ago. She could not comment on some of the issues raised. The Agency did, however, believe that a solution must be found, for the benefit of operators and passengers, who happened to be caught in the middle of the dispute.

She read out the recommendations contained in the presentation (see attached document).

SANTACO submission
A representative from SANTACO said that this association appreciated what Parliament was trying to do. The MEC had indicated that the Agency did not seem to want to align itself or cooperate with the provinces. However, the Agency had said that the permits needed to be converted. He indicated that whatever the Provincial Department had ordered SANTACO to do, for its own good, it had done, so it seemed that the Agency was not liaising on these points with the Provincial Department. Tensions had emerged as early as 2003, with fights between operators in Free State and Gauteng, but once that had been sorted out, Lesotho operators took advantage of the agreements and started to operate those routes daily. He noted that the Agency was perhaps saying something misleading, because it was clear that certain requirements had to be fulfilled before permits could be applied for, or issued, to operate in the province, including letters of recommendation. However, the Agency were issuing permits, irrespective of the moratorium that was supposed to be in place, and was not practising what it was preaching.

SANTACO pleaded that the daily cross-border operation be stopped, with immediate effect, and the Act must be reconsidered urgently. It further recommended that all the taxi ranking facilities should remain in South Africa. It would not be opposed to occasional trips by their Lesotho counterparts.

Discussion
Ms M Themba (ANC, Mpumalanga) noted that information now presented was long overdue, and it would have been useful if the Committee had known of the issues when it was in Free State. It was necessary to find a way to move forward – for instance, if the Act needed to be amended, then that must be done urgently. She thought that proposals detailing the problems, and proposing amendments to the Act should be submitted to NDOT.

Ms Themba was of the view that if women were more strongly represented in this industry, the problems would long ago have been settled. She added that transport was included in the Millennium Development Goals (MDG) and empowerment of women in this industry should be promoted.

Mr O De Beer (COPE, Western Cape) also expressed appreciation for the presentations, but said it would have been even more useful had these been sent to the Committee in advance, to allow the Committee to conduct its own research on issues. He noted that these problems had been ongoing for ten years, and it was necessary to deal with them, to improve the position of passengers. He felt that there was nothing new in the recommendations put forward. The Provincial Department had recommended that the matter be referred to MinMEC but this was already done by the previous MEC. He did not see that any of the suggestions would contribute to a short-term solution, within the next two to three years.

Mr De Beer stated that there had to be a regulatory framework, and that no deviations from this should be permitted. There were many ways in which legislation could be amended, including petitioning Parliament on this issue. He would be uncomfortable with reverting to the MoU, as there was seemingly little commitment to upholding it.  

Mr De Beer also addressed the suggestion not to allow newcomers into the sector but stated that this seemed to be in conflict with the Constitution that allowed any citizen to benefit from opportunities that arose. The intention may have been sound, but some other way must be found that did not discriminate.

Mr De Beer noted that when the Committee was in Free State, it was told that November and December were peak times for the industry, in which most money could be made. The Committee had requested whether the MEC could amend regulations to accommodate that peak, but it was not clear whether the MEC had the authority to do this.

Mr De Beer said that the perception that South Africans were anarchic by nature must be dispelled, as most were law-abiding citizens. He acknowledged the taxi operators’ need to make money, but reminded them that they had to render a service, in competition with others, and the question was how to regulate that competition so that it was not unfair.

Mr Z Mlenzana (COPE, Eastern Cape) noted that the “glaring disunity” between the provincial and national Departments and the Agency. He was not sure whether it was the responsibility of this Committee to ensure that the rift did not grow further. He thought that the parties must report back on progress in meeting each other. The taxi industry had an interest in operating freely, the Provincial Department was concerned with ensuring that people received services and the Agency was trying to implement the legislation strictly. Politicians could question legislation. He felt that the problem lay not necessarily with the implementation of the Act, but in the Act itself. He noted that although Adv Phahlo had said that the Act should be amended, he had not suggested which sections needed work, nor specified exactly where the problems lay. The Agency’s presentation suggested that the Free State taxi operators had a problem with section 75, and if this found agreement from others, then that might be a starting point.

Ms Mashilwane clarified that Section 75(2) stated that no operator may drop off, or pick up, passengers at or near any international border, where it was clear that these passengers intended to, or had just crossed the border with another state, unless this operator held the necessary permit required by the CBRT Act. If trips involved cross-border transport, an operator who picked up and dropped off passengers in the Republic, on either the outward or return journey, must be in possession of the necessary operating licence for the vehicle, which was issued by the provincial government, and in possession of any permit required by the CBRT Act. There were a number of requirements for permits, including an operating licence that must be attached to the vehicle, letters of referral from the municipality, and joint venture agreements with operators over the border. The Agency did not issue permits to outside operators.

Mr Mlenzana asked the Agency to elaborate on the bilateral agreement with Lesotho, and asked how the Act related to legislation in other countries with whom South Africa had bilateral agreements. Whilst the autonomy of countries must be respected, they also had a responsibility to check that mutual understanding and interaction was facilitated on cross-border issues.

The Chairperson expressed concern about the last sentence on the last slide of the Agency’s presentation, suggesting that the Committee should be workshopped. The Committee had already raised the point, itself, that the Agency needed to work with the Provincial Department, and was fully aware of the Protocols and bi-lateral agreements. He was not saying that the Committee was averse to workshops, but said that the role of the NCOP should not be under-estimated.

Ms Mashilwane apologised profusely if the Agency had in any way created a perception that they thought the Committee needed to be workshopped. The intention behind proposing a workshop was to try to ensure that all parties had a common understanding of the situation, and would fully understand all the advantages or disadvantages of any amendment proposed.

The Chairperson also referred to slide 7 of the Agency’s presentation, stating that “Free State Taxi operators do not want any cross border passenger operations in the Free State”. Mr Mlenzana’s point about communication was important. Each of the stakeholders here seemed to be moving in different directions. He asked who actually attended to the issuing of permits, and how this was done. He had understood that taxi associations should be involved in the process and provide recommendations, and asked if this was being done.

Ms Mashilwane stated that in October 2010 the Agency had received a letter from Free State operators saying that they opposed Lesotho operators plying their trade in Free State. She could make this available.

The Chairperson interjected and asked whether the CBRTA had verified whether the letter received from the taxi operators in the Free State was legitimate.

The Chairperson also noted that despite signature by the taxi association of an agreement with counterparts in Lesotho, to the effect that 40 vehicles would be authorised to operate in their area, this was not happening, and there were complaints about arrests and demands in Lesotho. He asked whether the Provincial Department or the Agency had the responsibility to protect the operators of the Free State. He also noted that taxi operators in South Africa were subject to various regulations and financial requirements, whereas those in Lesotho did not have to pay anything. The Committee must assist in bringing about greater coordination.

The Chairperson asked whether the Act allowed for coordination between Agency and provincial MECs, and asked how often there was linkage, access to resources, workshops and other attempts to meet. Often, when people were unhappy, they would point fingers at government, failing to recognise that it was through the efforts of the same government that they were in fact employed at all.

The Chairperson emphasised that he was not trying to protect the MEC, but it had to be acknowledged that some of the problems were already in existence before Mr Komphela took office.

Mr De Beer asked for clarification on the MoU signed between the Agency and government and asked how this impacted on the situation.

Mr Mlenzana wondered if the Agency had deliberately not provided documentation to the Committee. He reiterated that the crux of the matter was Section 75, and he reiterated his question as to precisely who issued permits, pointing out that if municipalities could, then any municipality could authority cross-border travel into Lesotho. This was all to do with running a business, and he wondered how an amendment to any legislation might affect agreements signed with neighbouring countries.

Ms Sibongile Mazibuko, Head of Free State Provincial Department of Police, Roads and Transport, Free State, suggested that the issue was two-fold. In regard to the suggestion that parties should indicate what must be amended, she agreed that Sections 75(1), (2) and (3) needed attention. These dealt with the picking up and dropping off of commuters. However, she stressed that the Committee should also be aware of issues around transport infrastructure. Municipalities near the border posts who were constructing facilities were in fact in contravention of this Act, although that construction may well be included in their IDPs. These conflicts of legislation also had to be addressed. She added that the Provincial Department of Transport was actually working with the municipalities on these, despite the contradiction.

Ms Mazibuko stated that the Free State Provincial Department and NDOT generally worked well together, but this issue had been going on for years and was a source of some tension. Every office bearer who had ever dealt with this portfolio had noted the conflicts between operators, and even residents. The Department appreciated that there were certain protocols with neighbouring countries but stressed that the small geographic distances between the Free State and Lesotho were unique, and no other country had back-to-back border post towns.

Ms Mazibuko made a commitment that the Free State Provincial Department would make a full submission on legislative impediments, and pleaded for cooperation of the Agency.

The Chairperson requested when this could be done.

Mr Komphela advised Mr Mlenzana that cross-border licences were issued by the Agency, not the Provincial Government. He was annoyed at the suggestion that national legislation might undermine the country’s Constitution, and stated that the Agency had not been taking all concerns of the Free State into account.

Mr Botsang Moiloa, Senior Manager: Facilitation, CBRTA, also emphasised that the CBRT Act of 2008 was not unique, and did not stand above any other legislation. The Agency’s relationship with Lesotho was governed by the SACU Memorandum of Understanding, and this did not supercede national law. He wished to clarify Mr Komphela’s statement and said that the Agency did not issue cross-border permits of foreign operators, but only dealt with cross-border permits to South Africans with registered vehicles. No cross-border permits were issued without a letter of recommendation from an association. No cross-border permits would be issued also unless the application was accompanies by a letter from the particular municipality where the operators would depart from or arrive at, to pick up or drop passengers. Cross-border permits implied that point A must be in South Africa, and point B in the neighbouring state, and the municipality at each point must state that there were ranking facilities who could accommodate cross-border operations. The Agency did not dispute that there may have been challenges or loopholes, and that there were illegal operations.

Mr Moiloa wanted to put it on record that the Agency did not regard the situation in Free State as unique. Komatipoort was a town only 2 km from the border post, and a town in Mozambique was right on the border. He was not suggesting that all situations should be treated alike. However, he wanted Members to note that any amendment to the legislation would mean a change to the national law, which would also affect other border towns.

Ms Mashilwane said that she was happy to accept criticism if it took the matter forward. The Agency protected operators in the Free State, and that was the purpose of having route committees, who would meet monthly. Unfortunately, in this case, there was a deadlock. Operators related their challenges to the CBRTA, and there were also joint committees and joint management groups with the SADC countries. The Agency workshopped operators on legislation. The Agency did not meet with the provinces, but met with representatives of the various border towns. No meetings had been held with Free State because of the impasse. However, the Agency had neither the mandate nor the responsibility to erect infrastructure in municipalities and towns, and that function lay with municipalities.

The Chairperson cautioned the National Department of Transport to call its own meeting with stakeholders; this was not the appropriate platform to do so.

A representative from the Free State taxi industry wanted to know who had been attending the meetings and workshops that the Agency had mentioned. He also suggested that it would be useful to see an example of a letter from a municipality which authorised a permit going to Lesotho.

Mr Sinethemba Mngqibisa, Chief Director: National Department of Transport, said that he would report these discussions back to the department. He agreed with Adv Phahlo’s recommendation for high-level meetings with MinMEC. He noted that the Department’s task team had completed its work, and it was submitted to the Director-General, who had wanted to clarify some issues and call on the task team for recommendations before submitting the report to the Minister.

The Chairperson asked Mr Komphela not to be frustrated about these issues, and said that every channel must be exhausted, and that people had to respect his efforts. He asked the Agency representatives to inform the Chief Executive Officer that in future he should be present to answer high-level questions. He appealed to the taxi association to give the Committee the opportunity to address and resolve the issues. He also asked the Agency to conduct workshops in the Free State to take more people on board, and to try to identify other sections of the legislation that may need to be amended. He asked that the task team report should be submitted within the next week. He agreed that the submission from the Provincial Department that Ms Mazibuko promised should be sent within the next eight weeks. He requested the taxi associations to try to ensure that more female representation was included.

The Chairperson concluded that further violence would be disempowering, and appealed to the MEC and Agency to try to meet with municipalities on these issues.

The meeting was adjourned.