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PUBLIC SERVICES SELECT COMMITTEE
3 May 2002
NATIONAL RAILWAY SAFETY REGULATOR BILL: NEGOTIATING MANDATES
Chairperson: Ms P Majodina (ANC)
National Railway Safety Regulator Bill [B7B-2002]
The provincial mandates proposed several technical amendments, such as the numbering of clauses and the use of definite and indefinite articles. The Bill was supported by all nine provinces, with the following proposed amendments being discussed: an increase in the number of board members, provincial representivity on the board, compliance with the conditions set in the safety permit, the Bill's relationship with other pieces of legislation dealing with rail safety and the extent to which the Bill deals with the security of rail commuters.
The Chair commenced proceedings by welcoming all present, and called on Members to present the negotiating mandates from their respective provinces.
Mr N Raju (DP) [KwaZulu-Natal] read through the negotiating mandate, and stated that the province supports the National Railway Safety Regulator Bill subject to the amendments and points of clarity listed.
Response to Kwazulu-Natal
The Chair noted that the proposed amendments were largely grammatical and technical, and requested the State Law Advisors, Mr Gideon Hoon and Ms F Omar to clarify matters.
Mr Hoon stated that he agreed with 90% of the amendments proposed because they are technical in nature, and it would not pose a serious administrative problem to effect them.
Mr Mervyn Panzera, Project Leader: Railway Regulator Team Office, stated that the numerous amendments dealing with the substitution of the word "such" with "the" are not really relevant because "such" refers to the particular point, whereas "the" is far more general. The State Law Advisors are requested to clarify this matter.
Furthermore, there are several amendments related to the numbering of the clauses in the Bill. These errors are not substantive in nature but are merely drafting oversights arising from cross-references that can and will be easily corrected.
He admitted that he was not sure whether, with regard to the proposed amendment to Clause 1(1)(x), an unincorporated body could be included as a juristic person under the definition provided.
Mr Hoon stated that a "person" is defined by the Interpretations Act to include juristic persons, corporate bodies, unincorporated bodies and even organs of state and the Minister himself. The reason is that "includes" does not exclude persons or bodies not listed in the provision, but rather extends the list of bodies provided.
Mr Panzera added that this is the general principle that permeates the Bill.
Mr Panzera stated in response to the proposed amendment to Clause 7(1)(d) that there are occasions when instructions are given, but this does not necessarily amount to actually providing training. The current formulation in the Bill is thus intended to distinguish the two to clarify the matter. The State Law Advisors are requested to add light to this issue.
Mr Hoon agreed that giving instruction does not necessarily form part of the provision of training, and if the phrase "in connection with" were inserted the distinction would be blurred further.
Mr T Ralane (ANC) [Free State] agreed with Mr Hoon.
Mr Panzera stated that if the proposed amendment to Clause 7(1)(g) were to be effected it would impact the entire clause, because the very beginning of Clause 7(1) contains the word "may" which sets the tone for the remainder of the provision. It would thus not make sense to change the provision "mid-way". The State Law Advisors are requested to clarify this matter.
Mr Ralane contended that the regulator alone should be authorised to deal with the matters referred to in Clause 7(1)(g), not the Minister. Furthermore, the current formulation provides that the Minister "may" be advised by the regulator and a discretionary power is thus granted here, whereas the inclusion of "must" would mean compelling such advice. The proposed amendment by KwaZulu-Natal here is thus supported, and "must" should be inserted.
Mr E Sogoni (ANC) [Gauteng] stated that the inclusion of "must" would distort the aims of the Bill.
Mr Panzera suggested, as a compromise, that Clause 7(1) be split into matters falling within discretionary powers and those that are obligatory. The State Law Advisors are requested to advise the Committee on this issue.
Mr V Windvoel (ANC) [Mpumalanga] agreed with this distinction, because it would be untenable to require that the State "must" approve standards, as currently provided under Clause 7(1)(k).
Mr Panzera referred to the proposed amendment regarding the increase of the number of board members and stated that Clause 8(5) stipulates that the board may consist of a minimum of seven and a maximum of thirteen members. This board is responsible for overseeing rail safety at national level and not on a provincial scale exclusively, and therefore these board members would not be involved in the day-to-day functioning of the rail regulator. The Department is sympathetic to the concern regarding provincial representation on the board, but expresses a reservation regarding the management of the board should it consist of too many members. It also has to be remembered that a board of this nature usually consists of seven members.
Furthermore, this is placed at the discretion of the Minister, and this committee should approach the Minister for advice on the actual extent to which the provinces are involved in the board in managing the regulator, as the number of members cannot be increased to twenty-one.
Ms Nomsa Maeko, the Administrative Secretary to the Minister, stated that the Bill does contain various provisions that do include the involvement of the provinces, such as Clause 2(b), which includes other structures staffed by MEC's and officials, as well as MinCom which consists of Ministers and MEC's from both the provincial and national governmental spheres. Furthermore, Clause 6 provides for the conclusion of co-operative agreements with relevant role-players in rail safety.
Mr Ralane stated that he understands the point being made by the KZN province that, in reality, the provinces are not included in decisions of the board. He did, however, agree with the explanation offered by the Department and urged the KZN province to accept it as well. Clause 8(5) should thus remain as it currently stands.
Mr Sogoni suggested that the issue regarding an increase in the number of board members should be separated and distinguished from that of provincial representation on the board. These are two separate inquiries, and the number of board members should remain at seven.
Mr Windvoel informed members that the Mpumalanga province, in terms of its negotiating mandate, also calls for improved representation of provinces, especially those most affected by problems with rail safety.
Mr M Kware (ANC) [Northern Cape] suggested that the number of members does not necessarily have to be increased, but some way of recognising provincial representation has to be established. Perhaps this could be done via regulation.
Mr L Suka (ANC) [Eastern Cape] stated that Clauses 6(2) and (3) entrenches co-operative governance in this regard, but perhaps a rider could be inserted providing for the province affected.
Mr Ralane stated that advice from the Minister on the precise effect on the provinces is needed here. This committee should therefore not seek to finalise this matter during this meeting.
The Chair agreed, and flagged the issue for further discussion.
Mr Sogoni, Mr Kware and Mr Suka all agreed.
The Chair stated that the number of board members would thus not be increased, and further deliberation of this matter is postponed until the Minister's opinion is made available.
Mr Panzera questioned whether the present formulation of Clause 8(5)(b)(iii) actually excludes "recognised formal transport structures". It has to be remembered that such structures only function in metropols, and if these were specifically included it would effectively exclude all those structures that do not operate and these could very well be those communities that are most affected by problems with rail safety.
Mr Stanley Khosa, Deputy Director: Rail Safety, added that once the Bill has been passed it would spell out exactly how such matters would be resolved, finalised and implemented.
Mr Ralane contended that the proposed amendment "looks like getting the communities to do what they don't want to do" and thus the current formulation is preferred. As stated by Mr Khosa, once the Bill is implemented such communities will be included.
Mr Panzera questioned whether there is in fact a difference between the use of the word "answerable" and "accountable"
Mr Hoon replied that the word "accountable" is used in the Constitution and "more or less" has the same meaning as "answerable", but "accountable" is more formal.
The Chair stated that "accountable" is more user friendly.
Mr Khosa added that "accountable" includes the actions taken by the relevant authority or official.
Mr Hoon requested that this matter not be finalised during this meeting, as he wished to confer with his colleague and fellow State Law Advisor, Advocate T Mbangeni.
In Clause 8(5)(b): Mr Panzera stated that the CEO is usually an ex officio member of the board, but has no problem with adding a phrase to this effect in between two commas in Clause 8(5)(b).
With respect to the fourth amendment proposed by the province, Mr Panzera requested the State Law Advisor to address this matter.
Mr Hoon stated that the Public Finance Management Act of 1999 (the PFMA) provides that such person must be the accounting officer, unless the specific piece of legislation designates another person as the accounting officer.
Mr Panzera stated that he was under the impression that in the English language the use of "may not" at least has the same meaning as "must not". Indeed, the use of "may not" does sound better and more authoritative. The State Law Advisor is requested to advise the committee on this matter.
Mr Hoon replied that "must not" is often used, and the use of "must" stems from the fact that the previous legislation employed the word "shall not".
The Chair recommended that purely grammatical matters not be considered during this session, and that substantive issues rather be discussed. The former would of course be noted for later discussion.
Mr Panzera informed Members that he is not certain as to the precise intention of the KZN province with regard to this proposed amendment. Clause 24 provides that an operator may apply for a safety permit and the regulator would then impose certain conditions prior to the granting of such permit. Once the operator agrees to the conditions "that's it" and it has to comply with those conditions.
Mr Panzera stated that the Bill sets the climate for co-regulation for operator safety standards, and the regulator alone oversees compliance with such standards. There are however certain standards that the regulator cannot adopt or approve, such as those relating to the metallurgy of rolling stock wheels, as these are regulated by the industry itself. Therefore every single safety standard is not approved by the regulator.
Mr Panzera agreed with the proposed amendment.
Mr Sogoni inquired whether the provision should include "relevant Minister" or "relevant authority".
Mr Panzera replied that this would also be clarified once the Minister's view on the precise involvement of the provinces here is ascertained.
Mr Panzera agreed with this proposed amendment but questioned whether the Bill is the best or most appropriate forum within which to address this matter, as the Department can conclude a co-operative agreement with the Department of Labour in terms of Clause 6 under the Occupational Health and Safety Act 85 of 1993. The Department could do the same with the South African Police Services (SAPS), and in this regard the relevant provision of the Inquest Act would be invoked. The intention of the Bill is not to override or "water down" these pieces of legislation and others like it, but rather to supplement them, because such relevant information cannot be withheld or "hidden" from the regulator.
Mr Ralane suggested that the current formulation of the provision should be retained, so that the regulator may have sufficient teeth.
The Chair agreed, and stated that this concern would also be addressed by the conclusion of the Memorandum of Understanding (MOU) with the relevant Departments.
Mr Panzera responded to the first question in the mandate regarding the existence of other pieces of legislation dealing with rail safety. He stated that he would not be able to recite the entire list, but highlighted the Occupational Health and Safety Act, 85 of 1993, which is complementary to the Bill. There are also several pieces of health legislation even though these do not directly deal with rail safety, such as statutes relating to asbestos poisoning, for example. Furthermore, the Nature Conservation Act, 1989 is also relevant to rail safety, as "the environment is not only about birds and bees, but also about people". Act 9 of 1989 is also relevant here, but all these Acts do not address the matter of rail safety as comprehensively as the Bill does.
Mr Kware inquired whether security is also covered here.
Mr Panzera replied that "security" is defined in the Bill as relating to the personal safety of rail commuters. This concern was raised and discussed extensively during the public hearings hosted by the Portfolio Committee, and Members were informed that the Department will work with the SAPS in establishing a transit police force, following Cabinet's decision on their reintroduction, for all modes of transport within the Republic.
The Department is concerned with the personal safety of rail commuters and its effect on the economic viability of the South African rail system, such as the problems caused by the incidences of cable theft. Indeed, this matter is addressed by the preamble to the Bill as well as Clauses 6 and 31(m). It is therefore believed that the fundamentals are addressed in the Bill, and the details will be spelt out in the regulations.
Mr Khosa added that "security" is defined in Clause 1, and issues regarding rail commuter security are addressed "as [things] go along".
Mr Kware [Northern Cape] stated that the concerns raised in the Northern Cape negotiating mandate were covered by the responses given to the KZN mandate. The Northern Cape supports the Bill.
Rev P Moatshe (ANC) [North-West] stated that he too was "covered", but added that the only additional problem raised by the North-West is the problem with time constraints for the processing of the Bill by this committee. The North-West supports the Bill.
The Chair noted that none of the Western Cape delegates were present, but the three amendments raised in their negotiating mandate were covered.
The Chair noted that Mr Windvoel [Mpumalanga] has excused himself from this meeting, but he had indicated that he too has been covered.
Response to Mpumalanga
The Chair contended that this proposed amendment does not seem to have any effect, but might be worthy of consideration.
Mr Panzera replied that he thought the Preamble was pretty clear.
The Chair noted that the proposed amendment to the definition of "affected communities" in Clause 1 has already been covered.
Mr Panzera stated that, as mentioned earlier, the scope of the Bill is not aimed at addressing personal security of rail commuters, or issues such as crime and vandalism. It does, however, provide for co-operative agreements to be concluded with the relevant authorities to address this matter.
Mr Panzera disagreed with this proposed amendment as all railways with tracks within the Republic are covered by this Bill, and for this reason the Bill does not need to be changed. The Bill also expressly exempts certain types of railways from the ambit of this Bill, such as mine rails, because these are already sufficiently covered by legislation relating to mines, in this case.
Mr Ralane agreed with Mr Panzera that this proposed amendment should be disregarded.
The Chair questioned whether this committee would be able to disregard this amendment if the delegate from Mpumalanga is no longer present at this meeting.
Mr Kware suggested that the committee should consider what Mr Windvoel has raised himself, which has already been covered.
The Chair agreed, and noted that the matters raised by the Mpumalanga mandate have been covered.
Mr Suka inquired as to the party responsible for the maintenance and repair of railways, and the effect of the co-operative agreements on these duties.
Mr Panzera replied that there is no "easy answer" to this question, but stated that Clause 31 requires that a risk assessment has to be conducted. This looks at all the problem areas and identifies the high risk areas that then have to be prioritised in terms of the Safety Management System (SMS). The Department is aware of the problem areas, such as fencing, that are not economically viable to fix, as it has already been stolen.
The clause also provides that regulations have to be published to assist the law in bringing perpetrators of such offences to justice. Furthermore, Clause 50 provides the Minister with the opportunity to prescribe any regulations at a future date, should any eventuality that the Bill does not presently cover arise.
Dr P Nel (NNP) [Free State] stated that the concerns are largely covered by the responses to the KZN negotiating mandate, but residual amendments would be highlighted for discussion.
Response to Free State
Mr Panzera stated that the term "association" in Clause 1(i) does not refer to Clause 7(1)(j), which deals with the development of standards. Therefore these two clauses should be retained in the Bill, but the phrase "in terms of section 7(1)(j) of this Act" in Clause 1(i) should be deleted.
Dr Nel agreed.
Mr Panzera stated that he does not 'grasp the problem" here, as the clause seems straightforward.
Mr Ralane stated that the amendment suggests that Clause 8(7)(b) cannot apply to the entire committee because if so, this would severely erode the oversight function of the committee. Therefore only one or two members should be appointed to this panel.
The Chair requested the drafting committee to consider this matter further.
Mr Panzera stated that he does not understand the division between the "board" and the "Regulator" as suggested by this proposed amendment
Mr Ralane was satisfied with the current formulation of the provision.
Ms Omar stated that the current formulation "seems fine", but wished to consult Mr Hoon.
Ms Maeko agreed.
Mr Ralane contended that this Bill has to bind the State.
Mr Panzera stated that this reference error will be corrected, in terms of the proposed amendment.
Mr Panzera agreed.
Mr Suka stated that the Eastern Cape concerns contained in the negotiating mandate have been largely covered by the responses to the mandates already discussed. It should however be noted that an important matter that has not yet been dealt with is the fact that this committee has not hosted its own round of public hearings. The committee has to "look into having these" so that input from the communities as well as relevant industry players may be ascertained. These would include the taxi industry, so that any tension between the various modes of transport may be avoided. This committee could also have provincial members as part of a panel on radio talk shows to increase awareness regarding the important issues, especially rail safety concerns.
Mr R Nyakane (UDM) [Northern Province] stated that the Northern Province mandate raises concerns with Clauses 8(5) and 24(2) of the Bill.
Response to Northern Province
Mr Panzera stated that this matter has already been raised, and the Department has undertaken to correct the issue.
Mr Panzera stated that the conditions listed in this provision do not relate to consistency of standards but rather to those conditions that may be imposed by the regulator on the operator, as the operator has to interface with other operators. The operator also has to demonstrate how its safety standards and practices interfaces successfully with those of other operators. These are thus requirements or conditions that the operator has to comply with, and in this regard the regulator has to impose conditions of a universal standard for all operators. It cannot therefore impose unique specifications on a particular operator, unless this operator exercises a separate or unique function or service that necessitates unique consideration. This would include the GauTrain, for example, which has its own separate rail system.
The point being made here is that the operators themselves decide on the standards, and the role of the regulator is then to monitor these their performance to ensure compliance with these standards. Should they fail to comply, the regulator is empowered by the Bill to force them to change in accordance with the standards of the safety permit. Thus "stringent compliance" is ensured.
Mr Sogoni [Gauteng Province] stated that the concerns raised by the Gauteng negotiating mandate have already been covered by the other mandates, but wished to emphasise that a gender balance is needed on the board. He was aware that there is legislation dealing with this issue, but recommended that this matter be specifically included in this Bill. The only matter that has not been addressed is the definition of "industry" under Clause 1(v).
Response to Gauteng
Mr Panzera stated that as a general principle definitions are included and explained in legislation because the meaning within the context of the specific piece of legislation different from that in the ordinary usage of the particular language. The definition therefore has to be confined, but there is no difficulty in changing the current definition of "industry" in Clause 1. The GauTrain would, however, be defined as an operator, and would therefore be included under the definition.
Mr Hoon informed Members that the proposed amendment uses terminology that is too general, and the very purpose of including definitions within a statute is precisely to limit or restrict the ambit of that term.
Mr Ralane agreed, as loose definition" have caused several litigation disputes for the State in recent times.
Mr Sogoni stated that is the operator is covered here, as contended by Mr Panzera, then Gauteng Province "covered".
Mr Panzera replied that Clause 1(ix) covers the GauTrain.
The Chair noted that all the negotiating mandates have now been processed, and all parties support the Bill, despite certain small amendments. It is disappointing that the Western Cape delegates did not attend the meeting, despite the fact that they are the host province.
The meeting was adjourned.
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