Transport Laws and Related Matters Amendment "e-Toll" Bill [B30-2012]: public hearings

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20 November 2012
Chairperson: Ms N Bhengu (ANC)
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Meeting Summary

The Committee held public hearings on the Transport Laws and Related Matters Amendment Bill (the Bill). South African Local Government Association (SALGA) was primarily meant to achieve the objective of providing for studies on the impact of the diversion of traffic from proposed urban tolled roads into local roads. It supported the proposed amendments as set out in the public notice. However, informed by the Gauteng toll road experience, it wished to propose an additional clause. Members asked if SALGA’s request revolved around the need for the Minister to study the impact of the tolls on municipal roads, because some of the traffic would inevitably spill from the toll roads to the local roads in the suburbs, and wondered if its request for mitigating measures sought to address the impact of the diversion of traffic.

The South African National Roads Agency Limited (SANRAL) and the Department of Transport (DOT) questioned the amendment sought by SALGA. They stated that the SANRAL Act already required SANRAL to inform all affected municipalities about the tolling of a section of national roads, and that this already catered for SALGA’s request. Reference was made to  section 27(4)(b)(ii) of the SANRAL Act, which provided that the Minister would not give approval for the declaration of a toll road unless municipalities had been asked to comment, but, on consideration, and if the Committee so desired, it would be prepared to effect amendments requested.

 The Congress of South African Trade Unions (COSATU) noted its consistent opposition to the introduction of open road tolling in Gauteng and the likely introduction of the same system in other parts of the country. It pointed out that tolling added to the burdens of the poor, both directly and indirectly, that it was exclusionary, that public transport was totally inadequate, that this represented a form of privatisation of something that was for the public good, quite apart from the problems of  cost of collection.  COSATU rejected the Bill in totality. It raised objections to the consultation process; the provisions around the Cross Border Road Transport Agency, E Toll tariff regulations, presumptions; exemption from the National Credit Act 2005, expansion of E Tolling to all other provinces and queries around the financial implications. Members asked why COSATU was not saying anything about other toll gates that were affecting the poor people in other parts of the country, how COSATU suggested that government find the funds to maintain the roads without the E-Tolling, and asked if COSATU would support the Bill if the Provincial Legislatures included in the deliberations on the Bill. They asked that COSATU should give alternatives that could generate funds for the government to maintain and build new roads. They also sought clarity whether COSATU was opposed to the entire Bill, or if it was opposed to clauses.

The Committee then proceeded to consider the submissions. A Member asked why only two of the bodies or individuals making submissions had been invited to present oral submissions and was told that this was because only they had requested the opportunity. Members agreed, in principle, that the SALGA requests should be accommodated and draft wording was produced by the Department. However, the Parliamentary Legal Advisor pointed out that there were some logistical difficulties in simply inserting this, because the new request addressed not the Bill, but the principal Act. The option that she suggested, with which Members concurred, was that the Committee would seek permission from the House to introduce these amendments. Members noted that since COSATU had opposed the whole Bill in principle, it was difficult to accommodate all its concerns. A DA Member indicated that his party agreed with COSATU’s objections, but that some points may be able to be considered. Members agreed that a provision must be inserted into the Bill that required the Minister to submit all regulations to Parliament, despite what was already included in the Tariff Gazette. A DA Member suggested, and other Members agreed, that this Committee should request the NCOP to send the Bill to the provincial legislatures for their comment (although the final decision on this rested with the NCOP). The DA also had concerns about the burden of proof, but did not make a suggestion as to how this might be addressed.

Meeting report

Transport Laws and Related Matters Amendment Bill: Public hearings
The Chairperson acknowledged the presence of stakeholders at the meeting.

Mr I Ollis (ANC) observed that over 12 submissions had been received by the Committee by various entities and people. He asked why SALGA and COSATU were the only entities present to make oral submissions at the meeting.

The Chairperson replied that the Committee Secretary was on leave in order to write an examination. She would, however, later be able to explain how many people had confirmed that they wanted to make oral submissions.

Mr Ollis commented that he would raise the question again later during the meeting.

South African Local Government Association (SALGA) submission
Mr Mthobeli Kolisa, Executive Director: Municipal Infrastructure Services, South African Local Government Association (SALGA)  noted that SALGA was an association of 278 municipalities whose mandate was derived from section 163 of the 1996 Constitution. SALGA was the voice and sole representative of the sphere of local government. SALGA’s role, in line with its constitutional and legislative mandate, was to represent, promote and protect the interests of local government, transform local government to enable it to fulfil its developmental role, raise the profile of local government, ensure full participation of women in local government, perform its role as an employer body and develop capacity within municipalities.

SALGA’s submission was primarily meant to achieve the objective of ensuring that the legislation would provide for studies on the impact of the diversion of traffic from proposed urban tolled roads into local roads. These studies must address the likely congestion and resultant costs of road maintenance and traffic management, and access to opportunities for life on the part of affected communities. The studies must form the basis for decision making regarding whether or not to toll a road, and to determine what mitigating measures were needed to address the negative impacts if the tolling was to go ahead.

In general, SALGA supported the proposed amendments as set out in the public notice. However, informed by the Gauteng toll road experience, SALGA wished to propose an additional clause for inclusion in the bill. The proposal was that
Section 27 of the South African National Roads Agency Limited (SANRAL) and National Roads Act, 1998, should be amended by adding a new sub-section, to be numbered as (4)(a) as follows:

the Agency, in applying for the Minister’s approval for the declaration has, in partnership with affected municipalities, undertaken studies on the likely impact of the contemplated road tolling on
communities’ access to livelihood opportunities; and
local roads in terms of diversion and related maintenance and traffic management  costs
and has included mitigating measures of such impacts in the application and used such studies as a basis for public consultations

Mr I Ollis (DA) sought to confirm the proposal made my SALGA. He asked if SALGA’s request revolved only around the need for the Minister to study the impact of the tolls on municipal roads. He agreed that some of the traffic would inevitably spill from the toll roads to the local roads in the suburbs.

He further sought to confirm if SALGA’s request for mitigating measures was the remedy it was seeking in order to alleviate the impact of the inevitable diversion of traffic to the municipal roads. This would unavoidably lead to degradation and increased maintenance of those roads.

Mr Kolisa confirmed that Mr Ollis had stated SALGA’s position correctly. SALGA wanted to ensure that any decision by the Minister to declare any road as a toll road should be accompanied with mitigating measures to reduce the negative impact of the tolling on the municipal roads.

Mr L Suka (ANC) asked for clarity around the impact that SALGA feared the tolling would have on municipal roads.

Mr Kolisa explained that SALGA’s belief was that in all likelihood, the consequence of the e-tolling would be that a lot of traffic would be diverted to local roads. This would culminate in a heavy volume of traffic, which would inevitably lead to the damage of these roads.  This damage would then result in the need for increased road expenditure on maintenance by the municipalities.  That would strain the budgets of the municipalities. More traffic officers would also have to be sought in order to manage the increased flow of traffic on the local roads. SALGA was therefore of the opinion that there ought to be some mitigating measures to cushion the negative effects of tolling.

The Chairperson asked the Department of Transport (DoT or the Department) to respond to the submissions and proposals of SALGA.

Mr Alex Van Niekerk, Project Manager, South African National roads agency Limited (SANRAL), referred to section 27(4)(b)(ii) of the SANRAL Act. This already said that the Minister would not give approval for the declaration of a toll road under subsection (1)(a), unless s/he had given every municipality in whose area of jurisdiction that road was situated an opportunity to comment. The SANRAL Act therefore already required SANRAL to inform all affected municipalities about the tolling of a section of national road. As part of this process, these municipalities could request information, inclusive of the studies mentioned now. The mitigatory measures that SALGA proposed must be taken would have a financial impact on SANRAL and the viability of any toll project. This mitigation should rather be determined in terms of the current process, and based on the specific representations made by the individual municipalities. SALGA also ought to consider the net benefit of the project, and the relief it provided to the supporting and alternative road network. It would be complex to include this proposal into the Amendment Bill, and the DoT proposed that it could be handled separately.

Mr Ollis stated that SALGA was merely requesting that, whenever a toll road was declared, mitigating measures must be put in place to cushion the effects of the traffic that would divert to the local roads. He asked if SANRAL and DoT would be kindly disposed to the Committee amending the Bill in line with SALGA’s suggestion, to ensure that mitigatory steps would be taken.

Mr Suka similarly expressed his support for the amendment proposed by SALGA. He asked if DoT was saying that it was opposed to this being included in the Bill.

The Chairperson aligned herself with the earlier observation that most of the road users, instead of paying tolls, would prefer to divert to other roads which were being maintained by municipalities. She opined that most of the municipalities would not have the financial resources to deal with increased maintenance of those roads, although the increased maintenance would be the direct result of increased traffic. She believed that the SALGA proposals were in order.

Mr Adam Masombuka, Acting Executive Director, DoT, replied that section 27(4)(a),(b) and (c) of the SANRAL Act would reveal that municipalities had already been given a chance to make comments in respect of the roads that were to be declared a toll road. He also noted the reference to section 27(4)(b)(ii). The DoT would not be opposed to the Committee making a decision to amend section 27(4) as proposed by SALGA, if Members felt that there was a need, although the DoT believed that the matter was already covered.

Mr Ollis stated that section 27 (4)(b)(ii) only partly covered what SALGA wanted. The missing part was that there was no specific provision that mitigating measures would be put in place, and that was the crux of SALGA’s request.

The Chairperson agreed with Mr Ollis. She commented that she had previously been a Deputy Mayor in a municipality on which there was a toll road, and had first-hand experience that a municipality could be burdened by the increased influx of traffic to local roads, and thus have its budget for other matters reduced.

Mr Masombuka responded that DoT was still of the opinion that section 27(4)(c) already catered for SALGA’s request. SANRAL, when applying for the Minister’s approval for the declaration of a toll road, had to forward its proposals to the Minister together with a report on the comments and representations that had been received by any municipality or other entity. SANRAL must indicate the extent to which any of the matters raised in those comments and representations had been accommodated in its proposals.

Mr Kolisa stated that SALGA was not merely requesting the right to be consulted when a road was declared as a toll road. It was canvassing for empowerment of those who would be consulted, by insisting, in the legislation, that studies must be undertaken to analyse the impact of the toll roads on communities. SALGA’s request was for strengthening of section 27.

Mr Masombuka once again reiterated the belief of the DoT that section 27 had adequately covered SALGA’s request. However, it was not opposed to amending of the provision in order to accommodate SALGA’s request.

The Chairperson commented that there was no harm in making section 27 more specific so that there would be no doubt that mitigating measure must be put in place to reduce the negative effects of the toll roads.

Mr Masombuka stated that DoT would come up with wording to amend section 27, in line with SALGA’s request.

The Chairperson stated that the Committee would like to see the word ‘mitigation’ in the wording of any amendment.

Mr Masombuka replied that the amendment would be brought as soon as possible to the Committee.

Congress of South African Trade Unions (COSATU) submission
Ms Jane Bennett, Affiliate Support Coordinator, COSATU, made the presentation. She referred to clause 1.2 of the Memorandum to the Bill, which stated that the “Bill is essential to enable the appropriate implementation of the ETC system”. COSATU was of the opinion that without the Bill, the e-toll would not be able to proceed. COSATU implored the Committee to take a bold decision, stop the proceedings and reject the Bill. COSATU believed that the whole matter had been rushed, and reflected piece-meal consultations, and was merely an after-thought to try to legalise ETC. It ran counter to basic principles of fairness in law - for example the exemption from the National Credit Act and the issue of presumptions.

COSATU had consistently been opposed, in principle, to the introduction of open road tolling in Gauteng, and the likely introduction of the same system in other parts of the country. There had been little sincerity in the consultation processes. Tolls would add a huge burden to the already impoverished poor. The tolls would have an  exclusionary impact on the majority, given the complete lack of adequate public transport. E-Tolling amounted to the privatisation of public roads. There were also objections to the excessive costs of collections and the profiteering at the expense of the cash strapped public.

COSATU further objected to urban tolling due to its “ex-post facto introduction”. It objected to the provisions for , inclusion of the Cross- Border Transport Road Agency (CBTRA), and the lack of restrictions on the time during which tariffs could be increased. COSATU was not happy that there was nothing compelling the Minister to heed public comments on increases. It thought that there was a shifting of the burden of proof to the accused. It was also concerned about the exemption E-Tolls throughout South Africa, the narrowly- focused consultation processes, the lack of clear financial implications, and the Parliamentary procedure, which had excluded input from the provinces.

In principle, COSATU was opposed to urban tolling because it added to the burdens of the poor, both directly and indirectly. The poor of Gauteng would be forced to pay to travel on the highways, which were previously free of direct charges, but which were, in effect, paid for by the taxpayers, through income tax, road tax, fuel levies, VAT, and import taxes on their motor vehicles. The E-tolling would not just affect the people of Gauteng, as the government had now conceded that e-tolling would replace the existing toll gates, and would be expanded throughout the country. It was not true that only the middle class used the highways. Government’s own statistics showed that a third of all commuters travelled by car, and that half of all working people earned less than R3 000 a month. This meant that many low income earners also used private cars to travel to work. They had to, because the public transport system was so unreliable that they had no alternative. Public transport was also unavailable outside peak commuter hours, including weekends, when many Gauteng residents travelled long distances across the province to visit family members, or attend funerals. Tolls would also put an indirect burden on the poor, because they would add to the cost of transporting goods within, and to and from, the industrial heartland. This would lead to immediate rises in the costs of food and consumer goods, despite the fact that the current levels of inflation already faced severe upward pressure because of the recent massive fuel increases.  Already, some retail companies had indicated that they would not be able to absorb the new taxes, and would shift the burden to the delivery companies or drivers. This would then force the drivers to shift to secondary roads, which were already in dire conditions, and which were not designed for additional traffic nor the impact of heavy trucks.

COSATU believed the tolling was exclusionary. Society was highly divided by the unequal distribution of wealth and income. The poorest 10% of the population shared R1.1 billion, whilst the richest 10% shared R381 billion. These inequalities were reflected in access to public services. Good health, housing transport, safety, pension and education services currently belonged to the wealthier sections of society, who could afford to pay. The poor majority had to suffer underfunded, understaffed and inferior services.

 COSATU expanded on its comment that public transport was totally inadequate. It was acknowledged that government had exempted registered public transport vehicles from the tolls, but very few buses and taxis actually used the tolled highways. Public transport largely remained woefully inadequate, both in quality and in the numbers of people that it served. One- third of people used private cars to get to and from work, not from choice, but because the public transport system was expensive, unsafe, inaccessible, inconvenient and unreliable. The promise of massive investment in the overcrowded, run-down commuter rail services was good news, but this would take years to come on stream. In any event, the allocations were largely to improve what already existed, and they would not address the necessary massive expansion of passenger capacity. With regard to bus passenger transport, she noted that apart from the BRTs in Johannesburg and Cape Town, not a single new subsidised bus route had been put in place for over ten years. These BRTs themselves were extremely limited in nature, and this had left new settlements completely stranded from affordable mass public transport. In addition, the subsidies allocated to the bus industry for existing routes had not kept up with inflation, resulting in a deterioration of services.

She explained that tolls represented a form of privatisation. Transport should be an essentially publically-funded service as the Constitution had stated that it was a public right. In principle, transport should not become a privatised commodity. What made it worse was that the contract signed with the companies operating the tolls remained a secret. Evidence indicated that the revenues from the tolls were going to be enormous, and the loans would be paid off quickly, leaving the private operator to continue to milk the public for many years after the debt was paid. Government had admitted that the public would continue to be E-Tolled for the remainder of the ordinary life span of the E Tolled roads – in other words, in perpetuity – since these roads would require maintenance and repair, incurring new debt. The public would be told continuously to fund the debt.

The cost of collection was a further reason for COSATU’s rejection of the urban tolling. SANRAL itself conceded that the exorbitant cost of collection would consume a massive 17% of the money collected in tolls. Tolls were not only unfair but were also a grossly inefficient way of raising the money for road improvements. The excessive profiteering at the expense of the poor majority, the continuous refusal by SANRAL to share the details of the E Toll contracts with the public, the contradictory attempts at consultation, the never ending life span of the E Tolls themselves, and National Treasury’s and governments own admission of the massive levels of corruption in the state – in particular the tendering system – raised some serious questions around the motivation behind the privatisation in the first place. The public was fully justified in its fears that this was simply another opportunity for entrepreneurs to loot the fiscus, at the expense of the hard working over burdened public.

In summary, COSATU felt  that the whole Bill was nothing more than an attack upon the poor working majority and represented a back-door form of privatising.

COSATU then outlined some of its other problems with the Bill.

The Bill stated that the DoT had consulted with the Road Traffic Management Corporation (RTMC) and National Treasury. DoT had not considered it necessary to consult with the Departments of Economic Development, Trade and Industry, or the Provincial Governments and Municipalities, to ascertain the economic impact of E Tolling upon the over burdened public and upon an economy that was already unable to make a meaningful dent in dangerously high levels of unemployment. The conclusion of the third and final E Toll public information session on E Toll tariffs, and exemptions, hosted by SANRAL and the DoT in Sandton, had made it clear that the public unambiguously rejected e-tolling. DoT also saw no need to host the public hearings in any township where the majority of commuters and the public lived. It had dismissed such concerns, saying that venues were not available.

COSATU strongly believed that the public hearings had shown that no proper consultation had even been undertaken. It was clear that SANRAL’s initial public engagement process in 2007, which consisted of one advert placed in six newspapers and which elicited 28 responses from the public, was clearly inadequate and insufficient, especially  for such an important economic and political development.

The inclusion of the Cross Border Transport Road Agency (CBTRA) was a critical indication that government intended to expand E Tolling to other national roads, especially the high traffic roads that the CBTRA managed. All of these were roads critical to the public of South Africa and neighbouring states. Many border communities depended upon easy and free access to such roads,  to do shopping for essential goods and services, visit families, or access work. Imposing E Tolls would impoverish many communities. E Tolling should not be expanded to cross border roads.

The Bill was silent upon on how often the Minister may increase E Toll tariffs and did not require the Minister to take into account public submissions with regards to tariffs and the expansion of E Tolls. No government imposed tariffs should be allowed to increase above inflation levels. Government should be compelled to take into account public submissions.

The Bill provided that for the shifting of burden of proof, by requiring the accused to show evidence to the contrary if s/he was accused of driving an E Tolled vehicle or where a road was known to be E Tolled. This was a significant and dangerous departure from the normal situation that the prosecution should prove the accused’s guilt. This trend had also crept in to other recent legislation, such as the Protection of State Information Bill. This kind of shifting of legal principles must not be tolerated. The presumption of innocence was a key cornerstone of South Africa’s hard fought-for constitutional democracy.

The DoT and SANRAL had wanted E Tolling to be exempt from the noble objectives of the National Credit Act (NCA). The NCA correctly sought to protect those who were financially vulnerable, pressured and highly indebted from further impoverishment by taking on more debt and financial costs than they could afford. NCA also sought to protect the public from financial institutions that tried to take advantage of, exploit and excessively profiteer from the financial stresses of the public. Given that there was, in COSATU’s opinion, no legal, practical, financial or moral basis for E Tolling, SANRAL should not be exempt from the NCA. SANRAL and DoT had not provided any reason for seeking exemption from one of South Africa’s most critical and progressive laws.

The Bill indicated that government sought to expand E Tolling beyond Gauteng to other provinces. Once E Tolling was in place in Gauteng and the massive levels of profits were seen, there would be a clamour from entrepreneurs to rapidly expand the system to all provinces, irrespective of the disastrous consequences to society. In fact, it could be argued that it was actually discriminatory to e-toll in Gauteng and not in other provinces. This would be an ideal way for uncaring and unscrupulous elements in government to shift the focus away from spending efficiently, effectively, honestly and progressively, to imposing new forms of regressive taxation, through E Tolling. The public would simply be regarded as a  cash cow for an ever greedy elite. 

The commitment to expand E Tolling throughout the country also flew in the face of commitments by the former Minister and Deputy Minister of Transport not to expand E Tolling to other provinces. They had said that, with the benefit of hindsight, they would have preferred not to have this system, but that it had to be pursued to settle a debt already incurred. However, government seemed to be now identifying this as the preferred option to fund key future road infrastructure.

COSATU was very worried about the financial implications of the Bill. Government had earlier indicated that a debt of R24 billion had been incurred. However, nothing had been said about the R5 billion that National Treasury had paid to reduce the debt and that should therefore have been taken account of, when fixing the tariff. The Bill failed to state the total amount that would be paid over time, when it would be paid, what the collection costs were, what the profit levels would be, what the profit would be used for, what company or individual would receive the profit, and why this could not have been done by the State Owned Enterprises as a way of building the capacitated developmental state called for by the National Development Plan. The amount of R24 billion, or R19 billion, could surely be found, especially given that government had no problem with finding hundreds of millions of rands for housing for Ministers, at levels far above both the market rates and what was provided for in the Ministerial Hand book.

In conclusion, COSATU called for the immediate withdrawal of the Bill and the scrapping of the E Tolling as a method of funding public roads. As a measure of the determined opposition to this regressive and disastrous policy, COSATU would embark upon a national strike on 30 November.

Ms D Dlakude (ANC) observed that there were more and more toll gates in various other parts of the country. She asked why COSATU had not said anything about these other toll gates, which were also affecting the poor in other provinces.

She asked how COSATU suggested that government should find the funds to maintain the roads, without the E-Tolling.

Ms Dlakude noted that other parts of the country had a right to have roads in the same good condition as those in Gauteng.

Mr Ollis commented that he, and his party, were sympathetic to COSATU’s concerns. He observed that if the Committee approved the Bill, the government could well approve an E Toll in other provinces, within a short period.  He asked if COSATU would be prepared to support the Bill if the legislatures in the Provinces had been included in the deliberations on the Bill.

He stated that the concern raised by COSATU about the presumptions of innocence and the shifting of the burden of proof were indeed very worrying. He expressed his concern that the motorist always appeared to be on the negative end of the presumption.

Mr Ollis said there was another disturbing point, which COSATU had not mentioned, and that was that DoT was not required by any provision in the Bill to publish the full list of costs for the various toll gates. Anyone from another town might have problems with determining how much was to be paid.

Mr Ollis further observed that the Bill did not have any provision requiring the Minister to submit draft regulations to the Committee or Parliament before they were gazetted. This meant that the Minister could change the price of the E Toll at any time, without consulting Parliament, and this was a problem.

Mr Ollis also asked COSATU  to suggest some alternatives that could generate funds to allow government to maintain and build new roads, in light of its opposition to the principle of E Tolls.

Mr M Duma (ANC) observed that COSATU had mentioned that it was not only the middle class who drove cars, but wondered how those earning less than R3 000 could afford to buy cars. He thought that most of the poor used trains to commute.

Mr Suka asked if COSATU was rejecting the entire Bill, or if it was just opposed to a number of clauses, and, if the latter, asked that those clauses be named.

The Chairperson stated that toll roads were one means of developing road infrastructural development, and that the E-Tolls were in principle intended to take care of the need to expand the road infrastructure throughout the country, so that new roads could be built where there were none.

Mr Ollis reiterated why there were only two entities making submissions at the public hearings. He asked why the others who had sent their submissions to the Committee were not called to make oral submissions.

The Chairperson replied that a number of people had indeed sent in their written submissions, but the Committee did not invite everyone to come and make a presentation. Only those who indicated their interest in making an oral submission were invited to the hearings. Three out of 18 bodies or individuals making submissions had requested the opportunity to make an oral submission.

Ms Bennett firstly responded to the questions about other toll gates in other parts of the country. COSATU had an intensive campaign against all these toll gates. There had been a number of protest actions to oppose these toll roads. For instance COSATU had organised a protest action at Mpumalanga, to protest against the toll road there. However, for the purposes of this presentation, COSATU had confined its comments to urban tolling. This should not be taken to mean that it was not also concerned with other areas in the country.

Ms Bennett said that COSATU did have some other options to suggest to finance the roads. COSATU believed that there should be an additional levy on the fuel price. This was an equitable way of doing things because it meant that the more a person travelled, then the more that person would pay.

She then responded whether COSATU would support the Bill if the legislatures in the Provinces were included in the deliberations on the Bill. This Bill was a national piece of legislation, but it would affect all provinces and as such, the normal process was that there should be referral from the National Assembly to the National Council of Provinces. However, it appeared that the government was determined to rush the Bill through, without sending it to provincial legislatures. Government wanted to commence  E Tolling in December, during the festive period.  COSATU was concerned about this unprecedented rush to push through legislation.

MS Bennett reiterated that one third of all commuters used cars, while two thirds used public transport, and of that two-third making use of public transport, 60% used the commuter taxis. The fact was that people would try to buy cars, even though they might not necessarily earn what people in other countries would earn before trying to buy their own cars. There was a need to own a car, because this was the most reliable way for most people to get to work.

Ms Bennett shared Mr Ollis’s concerns that there was no requirement in the Bill for the DoT to publish the full list of costs for the various toll gates. The public was indeed unaware of what the costs of passing a toll gate would be, if there was no e-tag at that toll gate. The e-tag rates had been widely published, but the other rates had not been made generally known to the public.

Ms Dlakude stated that her understanding of a poor person was different from that held by COSATU. She believed that a poor person, who was earning below R3 000, could not afford to buy a car. Those using trains and buses were those who could be referred to as poor people. The government had exempted public transport from the payment of E Tolls and this was the preferred mode of transport taken by poor people, so she was not sure that this comment of  COSATU was indeed directed to the poor people.

Ms Bennett would have loved to make further comments but could not do so, due to time constraints.

Committees deliberations on the presentation and written submissions in respect of the Bill
Mr Ollis observed that he was now seeing, for the first time, the document comprising the full bundle of submissions received by the Committee in respect of the Bill. He was not ready to deliberate on the Bill as he wanted to read all the submissions in depth.

The Chairperson stated that these documents had been sent out to members a week earlier. The deliberations could not be put on hold because Mr Ollis was seeing the documents for the first time

Ms Valerie Carelse, Committee Secretary, confirmed that she had sent the documents to Mr Ollis a week earlier.

The Chairperson asked other Members to present their comments in respect of the submissions.

Mr Suka stated that SALGA had made cogent comments in respect of the Bill, and Members already seemed to agree that the amendment to section 27 was in order.

Mr Masombuka stated that the DoT and SANRAL had agreed to SALGA’s proposal. He then read out the wording that he had prepared, which would accommodate SALGA’s request. This read as follows:

”Section 27(4) of the South African National Roads Agency Limited and National Roads Act, 1988, is hereby amended by :

(1) the insertion of paragraph (bA), after paragraph (b) of subsection (4):

“(bA) the Agency has performed socio economic impact assessment pertaining to the proposed toll road which must be made available to the provinces and Municipalities as contemplated in subsection (4)(b)(i) and (ii)

the substitution of subsection (4)(c) by the following:

“The agency, in applying for the Minister’s approval for the declaration, has forwarded its proposal in that regard to the Minister, together with a report on the comments and representations that have been received (if any). In that report the Agency must indicate the extent to which any of the matters raised in those comments and representations have been accommodated or mitigated as may be required in those proposals; and….”

Mr Suka stated that it appeared that the amendment had incorporated the suggestions made by SALGA.

The Chairperson asked if Members had any further comments in respect of SALGA’s presentation.

There were no further comments.

The Chairperson asked Members to consider the COSATU presentation.

Mr Suka stated that COSATU’s opinions were appreciated but that COSATU wanted to reject the Bill in totality and as such, nothing could be done to change its view.

Mr Ollis agreed that COSATU was clearly against the Bill in its totality, and the same position was taken by the DA. He stated, however, that there was a need to deliberate on the issue raised by COSATU around sending the Bill to provinces, so that it could be considered by the various provincial legislatures. 

Another issue that needed to be considered was the point that the Bill placed no restrictions on the Minister to He increase tariffs or change regulations.  He suggested that the remedy, and a way to ensure that the Minister did not increase tariffs or change regulations arbitrarily, was to state, in the Bill, that any regulation promulgated by the Minister should be sent to the Committee. This would include other tariffs or regulations that covered traffic police and others. An example of such remedy could be found in other legislation that provided that draft regulations prepared by the Minister must be sent to the Committee before being gazetted. At least the Committee would be able to check and keep track of the regulations.

Mr Ollis further felt that COSATU’s comments about presumptions were worth considering. He agreed that the burden of proof was effectively being shifted to the motorist. The motorist would inevitably have to hire a lawyer, and this was unaffordable to many.

 Mr Van Niekerk stated that the possible increase in tariffs had already been addressed in the Tariff Gazette that was currently out for public comments. All the tariffs were in the gazette and could be accessed there.

Mr van Niekerk also responded to the query about people who were from outside the town, and did not know what toll to pay. The driver would simply be invoiced, based on the number-plates, and would have 30 days to make the payment. This was also captured in the Tariff Gazette.

The Chairperson noted that all Members appeared to be of the view that the matter must be referred to the NCOP.

Mr Suka stated that he was in support of the Bill being sent to the NCOP.

Mr Ollis observed that the Bill was tagged as a section 75 Bill. He would, however, like to see the Bill being sent to the Provinces so that the provincial legislatures could engage with the Bill.

The Chairperson asked the Parliamentary Legal Advisors to provide advice on that point.

Advocate Charmaine van der Merwe, Parliamentary Legal Advisor stated that the Bill was a section 75 Bill. Nothing stopped the NCOP from holding wide consultations on the Bill, including consultations with the provincial legislatures. The duty of this Committee had already been fulfilled in regard to the public process, because the Committee had advertised and had held public hearings on the Bill.

Mr Ollis stated that private Counsel had earlier provided an explanation in line with that now given by Ms van der Merwe. However, he wanted to know if this Committee could request that the Bill be sent to the Provincial legislatures.

Ms van der Merwe replied that nothing prohibited the Committee from requesting that the Bill be sent to the provinces. However the request would be decided upon, finally, by the Select Committee in the NCOP, as it would have the final decision on that point.

Mr Ollis reiterated his suggestion that the DOT should be instructed to insert a clause in the Bill which would require the Minister to present a copy of the draft regulations to Parliament. This would ensure that the Committee would be able to make any comments on the regulations before they could be published.

Mr Masombuka stated that the DoT had no objection with inserting a clause in the Bill which would execute the request made by Mr Ollis, and that he would provide wording for the necessary clause.

Ms van der Merwe thought there might be some difficulty in effecting the amendment sought by SALGA. This was because the section that SALGA sought to have amended was not in the Bill, but related to the principal Act. One remedy would be that the Committee seek permission from the National Assembly, via Rule 249, to amend the section in the principal Act. The other option was for the DoT to submit another Bill in respect of the issue and then the Committee could proceed on that ground. The DoT had stated that there was a section 76 Bill “waiting in the wings” to be brought before the Committee and that amendment could be worked into that Bill. Apart from these, there was no constitutional hurdle preventing the amendment of section 27.

Mr Ollis suggested that it would be advisable to consider the first option, and that the Committee should seek the relevant permission from the National Assembly. Thos would ensure that SALGA’s request would be incorporated into the Act, to give SALGA some measure of respite from the effects of the E Toll.

The Chairperson concurred. The Committee would therefore submit its request immediately to the National Assembly.

 The meeting was adjourned.

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