Regulation of Road Transport between Lesotho and South Africa: Department of Transport briefing

Meeting report

Regulation of Road Transport between Lesotho and South Africa
Chairperson’s opening remarks
The Chairperson summarised the events that led up to this meeting. During an oversight visit by the Committee to the Free State in August 2011, several taxi associations had complained about the lack of public services that they felt disempowered them from being able to operate their taxi services effectively on the border roads between Lesotho and South Africa, and the roads into Bloemfontein and Johannesburg. He reminded the meeting that although members of the Free State Provincial Legislature Committee had also been present at this meeting, no feedback had been received. The complaints basically hinged on the Cross Border Road Transport Act (the Act), and how it was being implemented. The Act mandated the Cross-Border Road Transport Agency (CBRTA) to manage cross border road transport. The CBRTA worked with taxi operators, government departments, local provincial institutions and other transport users.

A further meeting was called on 6 September 2011, with the taxi associations, Free State Department of Police, Free State Department of Roads and Transport, the National taxi association and the Cross- Border Road and Transport Agency. The purpose of that meeting was to discuss the challenges in cross border transport and try to find a workable solution. All stakeholders were asked to cooperate in finding a solution before the situation became uncontrollable. On 10 May 2012 the Committee issued a statement expressing its commitment to monitoring the implementation of whatever workable solutions were presented, and its intention to continue interacting with the provincial and national department and other stakeholders, and to play an active role in ensuring that services were delivered to the people in those areas.

Department of Transport briefing.
Mr Sinethemba Mngqibisa, Chief Director, Department of Transport, tendered apologies for the absence of the Director General and Deputy Director General of the Department of Transport, and the Minister of Transport. The presentation was a joint effort between the Free State Department of Transport and the CBRTA.

After the meeting in September 2011, the Director General of the Department of Transport (NDOT or the Department) had met with the stakeholders to try and come up with a long lasting solution to the problems that were raised. A work plan was prepared, but he cautioned that this plan now tabled was the product of work done by the NDOT and CBRTA, but had not yet been presented to all the stakeholders in South Africa and Lesotho. He hoped that the stakeholders would accept this plan, but his presentation could not be fully detailed in light of the need still to have it accepted.

Mr Sipho Khumalo, Chief Executive Officer, CBRTA, noted that the presentation would also update the Committee on the normalisation of RSA/Lesotho passenger operations, advise the Committee of a proposed model to normalise cross-border passenger operations, and seek the Committee’s comment on the plan, prior to implementing it.

He summarised that the CBRTA was established by the Cross-Border Road Transport Act, No 4 of 1998, to provide for co-operative services, and to co-ordinate provision of advice, regulation, facilitation and law enforcement in respect of cross-border road transport by the public and private sectors. In addition to the legislative enactments (which he outlined), multi and bilateral agreements were also in place to facilitate a strategic private-public sector relationship, an alliance between transport authorities and to build the capacity of private and public sector. The international agreements were initially made under the Transport Deregulation Act of 1988, and were taken over into, and remained in force under the CBRT Act.

The Border Control Operational Coordinating Committee (BCOCC) was another coordinating structure that was appointed by Cabinet in 2007 to deal with border issues. Currently, the South African Revenue Service (SARS) were the lead agency. The task of BCOCC was to oversee and coordinate all state agencies operating at all ports of entry (seaports, airports and land ports). The NDOT participated at the National BCOCC and CBRTA, and other Department of Transport agencies participated in port and provincial structures.

The main challenges the Department faced included the impeded flow of passenger traffic due to the fact that cross-border operations terminated at the ports of entry of the respective jurisdictions and passengers walked through the border posts. Secondly operations were conducted contrary to the Memorandum of Understanding (MOU) of the Southern African Customs Union (SACU), the Cross-Border Road Transport Act and National Land Transport Act. Thirdly, there was a lack of compliance when the Amendment Act was implemented, as some operators failed to convert old order permits and operating licenses to cross-border permits, within the prescribed window period. Fourthly, the location of illegal taxi ranking facilities at various ports of entry impeded the flow of passenger traffic. Finally, border security and integrity was compromised by the congestion, and that in turn had led to compromised border control operations and diplomatic relations, linking again to a failure to honour SACU MOU.

The Director General of the Department of Transport had set up a task team, consisting of NDOT, CBRTA and the Free State Department of Police, Roads and Transport, to investigate options for a special dispensation model to normalise cross-border passenger operations. A meeting was convened with CBRTA and the provincial department on 15 March 2012 to try to get a better understanding of the issues, and there was consensus on a need to present a united front to the industry and to develop a lasting solution to the challenge.

The Department’s various options were then highlighted. Option 1 involved facility sharing, to allow all passenger carriers, cross-border passenger carriers, South African passenger carriers operating at ports of entry and Lesotho passenger carriers to operate from one facility at the border, on the Ladybrand side, for all operations to and from Maseru.

Option 2 required stringent compliance to the SACU MoU and the CBRT Act, and a concerted and consistent law enforcement effort by all law enforcement agencies (SAPS, CBRTA and FreeTrans) at the various international ports of entry. However, this option was viewed as impractical, given the current state of law enforcement at the different ports of entry.

Option 3 required legislative amendments to the CBRT Act to make provision for the “unique” situation being faced in the Free State. This option was, however, viewed as undesirable, as it would set a bad precedent for cross-border passenger operations at other borders that had similar dynamics.

Option 4 was to create a transitional window by legislating for a special regime, that would allow all operators who purported to do cross-border road transport, or whose operations may be classified as cross-border road transport, to apply for the correct permit authority. This required clear guidelines and timelines for conformity, and there should be stringent compliance and consistent enforcement by law enforcement agencies after the expiry of that window period. This option had been tested during the implementation of the CBRT Amendment Act of 2008, but had delivered mixed results, as it was not successful at all with the operators in the Free State. 

Option 5 involved special emergency measures. The Minister could declare special emergency measures, after consultation with the Regulatory Committee, Free State MEC for Police, Roads and Transport and SAPS, with a view to normalising cross-border passenger operations. Special regulations setting out the nature of the emergency measures would have to be developed. However, that may only be effective for a period of 21 days, and section 46A of the CBRT Act would have to be amended to allow for periods in excess of 21 days to be declared.

A decision was reached to combine aspects of options 1, 4 and 5, This was presented to the Free State MEC for Transport on 21 August 2012.

The feasibility of the combined model was dependent on several factors. Firstly, there must be clear rules and timelines developed to guide the implementation of the special dispensation. There would have to be conformity to the SACU MoU. There must, of course, be consultation with all stakeholders, including the Ministry of Transport in South Africa and Lesotho, relevant transport authorities CBRTA & FreeTrans, cross-border passenger carriers, and inter- and intra-provincial passenger carriers operating from ports of entry. A list of other bodies and persons whom NDOT must consult was set out (see attached presentation).
 
Discussion
Mr H Groenewald (DA, North West) asked how many other meetings had been held by the Task Team, in addition to those on 15 March and 22 August.  He wanted the NDOT to present the minutes and reports made during those meetings, so that the Committee could have an idea of the decisions that were made.

Mr Groenewald asked if the NDOT could repeat the public works framework and explain the role that the Department of Public Works would play.

Mr Khumalo replied that he was not sure of the precise number of meetings that had been held, but minutes could be made available to the Committee.

Ms Madumelana Maakana, Senior Manager, CBRTA, confirmed that meetings were held on 15 March, 2 May and 21 August, where opinions and suggestions were discussed. There was constant electronic communication between members of the Task Team, while the model was being drafted.

Ms Maakana noted a recommendation that the management of border infrastructure should be handed over to the National Department of Transport. This process was ongoing.

Mr Groenewald asked when the window period for transition would begin and end, and from what stage the NDOT would implement a permanent plan. He wondered if this window period had already begun.

Mr Khumalo answered that the NDOT wanted the window period to be a special dispensation that would last only for a limited period of time, as it wanted to avoid setting a precedent that could led to total collapse of cross-border movement. Other borders were not experiencing any problems, and the NDOT was concerned to prevent their occurrence there. The NDOT intended, therefore, to test this proposal on the ground within a specific period of time (still to be decided). The Minister of Transport  thought that this experiment must be conducted within 24 months, as a pilot model, during which it would be possible for NDOT to identify and repair any challenges. A corrected model would then be rolled out to the affected borders. There had to be consultation with Department of Public Works, because it owned border posts and facilities.

Ms M Themba (ANC, Mpumalanga) noted that option 3  would require an amendment of the CBRT Act, and asked when this would happen.

Mr Khumalo, replied that the model NDOT was proposing would only require an amendment to section 46A of the CBRT Act, to allow for proper implementation of the model on the ground. However, he wanted to stress that this was at this stage only a recommendation and only after the Minister had agreed would the amendments be implemented. He reiterated that CBRTA was still consulting on this model and that this meeting was considered also as consultative.

Ms Themba was of the view that it was not in fact just the Free State / Lesotho border that had problems and asked if the amendments were intended to cover other border posts such as Limpopo / Zimbabwe.

Mr Khumalo noted that the model proposed would be used as a pilot, for the border currently affected. He said that it was not correct that tax operators in other border areas were experiencing the same problem. The SACU MoU ensured fair and equal treatment of South African taxi operators in the other countries, and the reverse would apply. CBRTA would attempt to protect the interests of South African taxi operators, had mechanisms in place to collect complaints from taxi operators and other stakeholders, and continuously monitored what was happening at other border posts, as well as engaged with the various forums, meeting with taxi operators on a quarterly basis.

Mr M Jacobs (ANC, Free State) was uncomfortable with the proposal, and asked if the work plan proposed by NDOT was temporary or permanent, in relation to other borders. He was concerned that there must be uniformity across all the provinces and the borders, as the problem being discussed today could easily arise in another province. Any amendments to the CBRT Act would of course have to be referred to this Committee. He asked if the BCOCC was effective, saying that it should have dealt with this matter before it escalated to this level. He asked why some individuals were unable to renew their permits, given the conversion of new permits. He noted that the deadline was close, and said a solution was long overdue.

Mr Ronald Stuurman, Executive: Regulatory and Legal Services, CBRTA, explained that the framework for the conversion of old permits to new permits was outlined in the Cross-Border Road Transport Amendment Act of 2008, and the conversion time was set between end August 2008 and February 2009. During that time, the NDOT had consulted with the all then-current operating licensing boards, as they were responsible for provincial regulation and all regulation functions. In the Free State, NDOT had held workshops with stakeholders in September 2008. The main problem was that many operators did not comply within the window period. There was nothing wrong with the Act, but clearly there was a problem as to how it was being implemented. NDOT was currently issuing new permits, on a temporary basis, in Lesotho.

Mr Khumalo understood Mr Jacobs’ concerns about the temporary measures, but stressed that NDOT was at this stage proposing the temporary measures in order to test how they worked on the ground. Once it had been tested, and corrected where necessary, the final model would be implemented permanently. At the moment,  NDOT was only focusing on Lesotho and Free State, but once a good model was set, it would be implemented at all borders. NDOT and CBRTA were aware that the deadline was approaching and were treating this issue as a top priority. He emphasised that whilst a permanent solution would be sought, a workable model for that solution had to be found.

Mr Khumalo said that he could not really comment specifically on BCOCC. It dealt with a range of issues, and NDOT had to ensure that it acted correctly in relation to transport issues, so any shortcomings in this regard were really the responsibility of NDOT. BCOCC did not have any mandate to take over any transport matters.

Ms Themba asked if the stakeholders that attended the previous meetings that the committee had, were on board with the solution being proposed and if they were being consulted. When asked for clarity, she said that taxi operators must be involved in the process and feel comfortable with any solutions tabled.

Mr Khumalo submitted that the combined model proposed would be a win/win situation for all affected parties. Lesotho must still be consulted on it, and the NDOT would try to avoid any favouring of South African over Lesotho operators, to avoid any negative connotations.

Mr T Phahlo, Chief Director: Transport, Free State Provincial Department, agreed that the taxi operators had not yet been consulted, but this was a conscious decision on the part of the Task Team to firstly consult, then come up with proposals, and then take those back to all stakeholders for more consultation.

The Chairperson noted that one of the problems that the South African taxi operators had in Lesotho was that the laws of Lesotho did not protect them, which in turn affected their ability to operate their business effectively. Lesotho taxi operators operating in South Africa did not experience this problem, so the South African operators felt that they were being unfairly prejudiced. Given that South Africa was a constitutional state, he wondered if the primary protection should not be afforded to South Africa’s own citizens. He stated that SACU and SADC should also be protecting South African taxi operators.

Mr Khumalo agreed that South Africa was a constitutional state, that all legislative instruments had to be protected and properly enforced. He gave particular emphasis to the SACU MoU and SADC Protocol on Transport, Communications & Meteorology. Those instruments were designed to create conditions for South Africa to trade with other African countries, and to set up common protocols to be followed, particularly within SADC. The SADC Protocol, in particular, aimed to protect all taxi operators within this region, and to ensure they were able to conduct their business freely and successfully, and empowered South Africa to reciprocate any treatment, whether positive or negative, that South African taxi operators may receive in other SADC countries.

The Chairperson asked NDOT how often it communicated with taxi operators, who were very important stakeholders. He also asked how often NDOT met with the municipalities, who had also raised concerns on the same issues as the taxi operators.

Mr Khumalo said municipalities would be consulted so that NDOT and municipalities had a shared understanding of the issues.

The Chairperson noted the mention of some communication with the President and the Department of International Relations, and asked for further elaboration on this.

Mr Khumalo noted that the President would have to sign off on the model, once it was approved by the Minister, and the Department of International Relations must assist in the implementation of the model by drawing an international agreement, before anything could be enforced on the ground. Only the Minister could say when the Cabinet would be briefed. A Memorandum had been prepared for the Minister.

The Chairperson was still concerned that the other borders were not being given the same attention as Free State/ Lesotho. He asked that the minutes of all meetings be produced within the next 14 days. He noted that the Committee had also appointed a task force to research some solutions, but these would not be debated at this meeting.

Mr Khumalo confirmed that the minutes would be sent within fourteen days.

The Chairperson did not agree with the statement that South African operators were not being treated properly, and urged the NDOT to investigate the matters thoroughly, because many incidents seemed to contradict this statement. He was unhappy with the statement that taxi operators would be consulted at a later stage, and asked if that implied that no feedback was given since 6 September, the date of the last meeting with the Committee.

Mr Jacobs asked why the Department had not picked up on the issues in Free State and Lesotho before they were raised by MPs. The taxi operators had asserted that although they had complained, nothing had been done, which was why they approached Parliament. This was a sensitive issue and the NDOT had to be careful how it was addressed.

Ms Themba requested the withdrawal of the misperception that these issues did not exist at other borders. Members of this Committee were representing the people, and it was not correct that the NDOT saw the issues every day, whereas Members became aware of them in their constituencies.

Mr Khumalo withdrew the statement and assured Members that NDOT and CBRTA were trying very hard to deal with issues as they came up, as it was their duty to rectify and respond to any issues. He was not trying to refute that problems did exist.

The Chairperson also emphasised the importance of NDOT cooperating with those on the ground.

Mr Phahlo said that the Committee had instructed NDOT to bring a proposal within six weeks. The Department drew up a very detailed timetable and process flow of consultation, and had consulted with CBRTA, the Taxi associations, the regional taxi association council, residents, and the provincial Taxi Council. After six weeks, NDOT made a proposal for this special dispensation. In addition to that, there had been several meetings with the task teams, which included the NDOT, municipalities, FATF and relevant taxi associations. The Department did not think it was fair to outline the proposed dispensation to one party only, but there were continuous meetings with the taxi association, giving continuous feedback, although as yet NDOT had not given the taxi associations a detailed account of the special dispensation proposal.

The Chairperson requested a copy of the timetable.

Ms Themba thanked the Department for being honest about communicating with Lesotho, and asked when the communication was planned to take place.

Mr Khumalo emphasised again that NDOT could only take the proposals to those on the ground once they had been formally authorised by the Minister, and after this had been done, NDOT would consult the taxi operators on this model, including South African operators, its Lesotho government counterparts and, via the latter, operators on the ground. NDOT also held meetings with route agencies in every corridor where services affected both sides of a border, to discuss problems they encountered.

The Chairperson asked why the Department did not prioritise finding a solutions with neighbouring countries, or those closer to South Africa. He was aware of the bilateral agreements.

A Departmental representative said that bilateral agreements were signed with countries that were not part of the SACU regime.

Mr Z Mlenzana (COPE, Eastern Cape) asked what difference was between the Lesotho / Free State arrangements and those at the other borders, and, linked to this, asked where the NDOT felt that the Lesotho /Free State situation went wrong. He wanted clarity with the practical challenges that were likely if the NDOT was to follow Option 1.

Mr Khumalo said that according to the 1998 records, when the Act was first introduced, all stake holders were ready to implement all the stipulations of that Act. The Act placed restrictions on how many passengers the co-signatories could transport across other borders, and this was intended to ensure a form of equality among all the taxi operators. However, there was a problem in that the vehicles owned by Lesotho taxi operators did not meet South African requirements, so that the Lesotho taxi operators were not able to take advantage of the provisions of the Act in the way that other countries could. For this reason, a special dispensation was made, to allow South African taxi operators to carry Lesotho passengers. This worked for a while, but when the Lesotho taxi operators’ vehicles were brought up to standard they wanted to take advantage of the quota that South African operators had enjoyed over the years, and the problems arose from disputes over this point. Whilst he had no personal knowledge of this it was what the records indicated. Another problem was that Lesotho was unable to build taxi rank facilities, and that added to the inequality between the two nations. He emphasised that it was not only MPs who had raised these issues, but complaints had also emanated from the Lesotho side.

Mr Stuurman spoke to Option 1, and said that the rationale behind this option was to try to ensure equitable access to the shared market by all operators. This required all taxi operators to conduct their business at the ranking facilities of Lesotho. It also required all taxi operators to apply for cross-border permits. He said he did not see Option 1as an all encompassing solution, which was the reason NDOT had proposed the amalgamation of options 1, 4 and 5.

Mr Jacobs asked what would happen if the stakeholders rejected the special dispensation proposal, and if the NDOT had a contingency plan. He asked if the Act covered the options or needed to be changed.

Ms Maakana said that the NDOT was aware that a contingency plan was needed and had asked a task team to look into one.

Mr Khumalo said that no legislative changes would be required, other than as outlined for one section, and it was not the Act that was causing problems, but the situation on the ground, to which solutions must be found. Hopefully, NDOT would be able to implement this by 1 December. The Department would look into the idea of different dispensations for different countries, although there was a move to multi-lateral agreements.

Mr Groenewald asked if the Department could assure the Committee that the window period would continue for the next two years, up to 2013. This was when the national elections would be held and they may disrupt this window period. He wanted to avoid the same problems recurring, and therefore asked if NDOT was sure that all fifteen stakeholders would be satisfied with this proposal. The proposed amendment should contain something dealing with specific countries and borders. He believed that there was still some way to go before a resolution was found. He was worried about the role of public works being mandated to another party, and asked what instruments NDOT was using to ensure Department of Public Works was carrying out its jobs. 
A Departmental representative said that only the mandate of road infrastructure would be taken up by the Department of Transport.

Ms L Mabija (ANC, Limpopo) asked what would happen if the Department did not reach its intended implementation goal of 1 December, and whether there was anything in place to ensure peace and stability in this sensitive matter.

Mr Khumalo replied that the Department had not yet looked into a contingency plan, but would do so. It wanted to draw on all the opinions and inputs of stakeholders, and, if necessary, amend this proposed model. NDOT was confident, however, that the stakeholders would accept the proposed model.

The Chairperson felt it was unfortunate that the NDOT had itself been partially responsible for the escalation of the current problem, because it did not facilitate and ensure the maintenance of proper communication and coordination within NDOT, and between NDOT and all the stakeholders, and there had been mismanagement of issues, particularly in Free State. He again requested sight of the time frames. Prevention was better than cure, and this matter should have been addressed long ago. However the process must continue, and the NDOT must bring a full team to the next meeting. Meantime, the Committee would go through the presentation and proposals in depth.

The meeting was adjourned.