Cross Border Road Transport Act Impact: Parliamentary Research Unit briefing

Meeting report

Cross Border Road Transport Act: Impact and challenges: Parliamentary Content Advisor briefing
Mr Shuaib Denyssen, Parliamentary Committee Content Advisor, briefed the Committee on the impact of the Cross Border Road Transport Act (the Act) on transport to and from South Africa and its neighbouring states.

The main concern at the moment was with the North Eastern Free State, in respect of transport between South Africa and the Mountain Kingdom of Lesotho, and more specifically the position of taxi operators between the two countries In the past, taxi operators from the Free State used to be part of the group that transported passengers between South Africa and Lesotho, whilst the same applied to taxi operators in Lesotho.  However, misunderstandings between the taxi operators from the two countries had led to conflict and increased criminal activity. Now, taxi operators in the Free State felt marginalised, as long distance taxi operators from Lesotho and Gauteng were moving passengers right through their areas of business.

The taxi operators from the Taxi Association in that region had been consulted on a number of occasions, during oversight visits and Taking Parliament to the People, and finally a meeting was held on 6 September 2011, to which the local taxi association, the Cross Border Road Transport Agency (CBRTA), the Free State Department of Police, Roads and Transport (Provincial Department), as well as representatives from the National Department of Transport (NDoT), were invited. The main reason was to consider the grievances of the Free State taxi operators, but it was emphasised that a solution must be found that not only allowed operators in Free State and Lesotho to compete fairly, but that gave the people better service

Over several meetings and oversight visits the Committee had raised questions about:
- The manner in which the CBRTA specifically managed taxi transport, by applying the Act and the Memorandum of Understanding between SADC and South Africa.
- Possible weaknesses in the Act and other legislative framework, that prevented full transport cooperation between the two countries
- The manner in which the CBRTA was operating, and whether there was lack of clarity in the Act that required it to be amended, to see where the main problems in implementation lay.
- Whether the Act was the appropriate piece of legislation to ensure passenger road transport across the borders between South Africa and its neighbouring countries
- Whether the Act was being implemented to ensure safe and efficient passenger transport across the borders

Mr Denyssen pointed out that the main reason for the Act was to set up an agency responsible for issuing permits, inspecting vehicles and inspecting ranking facilities, and a Regulatory Committee. The CBRTA, when it was brought into being, was legally mandated to establish a Board, who should establish a Regulatory Committee, and regularly report to the Minister of Transport on progress to implement stipulations contained in the Memorandum of Understanding (MOU) with SADC and the SADC Protocol on Transport. The Regulatory Committee must, amongst others, give effect to permit applications and issue, manage the Inspectorate and manage ranking and border freight (weighing) facilities.

The Inspectorate played a key role in implementing regulations and inspecting freight and passenger road vehicles crossing borders. The inspectors worked closely with the local municipal officers and South African Police Service (SAPS), who checked for licences and other permits.

The CBRTA performed its mandate also within the broader legal framework of the National Land Transport Act No 5 of 2009, the National Road Traffic Act No 93 of 1996, the Tourism Act No 72 of 1993, and the Transport Deregulation Act No 80 of 1988.

Mr Denyssen noted that the Southern African Customs Union (SACU) also had an MOU on Road Transport. This was signed in 2005, at a time when there was a lot of conflict, and it was hoped that it would resolve the ongoing disputes between the taxi operators from Lesotho and Free State. The MOU required that an Agency be set up to implement the stipulations of the MOU. The CBRTA had already established this Agency, in 1998, and it was mandated already to implement the stipulations in the SADC MOU, as well as operating within the broader framework of the South African legislation. It now had to implement the SACU MOU In addition, its work was guided by other multi-lateral agreements with neighbouring countries, such as the SADC Protocol on Transport, and the Agreement on Communications and Meteorology. It was pointed out that its work indirectly affected the Lesotho Highlands Water Project, which was heavily reliant on efficient transport systems.

The Parliamentary research had focused on the Cross Border Road Transport Act, the National Land Transportation Act, the Free State Public Transport Act  of 2005, municipal regulations, the role of the inspectorate and its interplay with SAPS and municipal traffic officers. The research findings were then described.

Mr Denyssen reminded Members that the National Land Transportation Act (NTLA) had dealt with the taxi scrapping and new taxi programme. It noted that the Integrated Development Plans of municipalities were crucial to the process, because these would deal with local taxi ranks. The NLTA prescribed national norms and standards that must be uniformly applied in all the provinces. He quoted from court decisions that noted that the Minister of Transport was responsible for land transport arrangements with other countries, regarding transport between the Republic and those countries, in collaboration with the then-named Minister of Foreign Affairs (now International Relations and Cooperation). The judgment noted that any person operating a road based public transport service must have an appropriate licence or permit for the vehicle, and, in addition, have the necessary operating licence for any cross-border business. This meant that passenger road transport operators should have licences from authorities described in the NLTA as well as a permit from the CBRTA.

The Free State Public Transport Act (FSPTA) gave effect to the NLTA by specifying that cross border taxi operators must have these two permits mentioned above, in addition to a permit from the provincial authorities. The local and provincial licences/permits were general passenger and road transport permits, that certified the vehicle in good condition and the driver as suitable to drive and to transport passengers. However, the local permits did not give the operators the right to transport passengers across borders, or to drop them within a short distance of the border post, so that they could walk across.

There was, however, confusion caused by section 23(b) of the CBRT Act, which said that the CBRTA was the only body authorised to “regulate access to the market by the road transport freight and passenger industry in respect of cross border road transport,  by issuing permits.” Taxi operators had claimed that the permits issued under the NLTA or FSPTA did allow them to transport passengers across or close to the borders. The taxi associations had consistently asked that the CBRT Act be amended. They complained that this Act was not precise on whether multiple persons may hold permits for the same vehicle, or on whether permits were only issued to members of taxi associations.

Related to that was the concern that operators on both sides of the border may be members of taxi associations in both countries and could therefore get permits to transport passengers to whatever ranking facility these taxi associations may set up.

A further challenge relating to ranking facilities, and management of them by CBRTA.

Mr Denyssen pointed out that legislation and regulations should be unambiguous in themselves, and where their interpretation was linked also to inter-related pieces of legislation, the latter too must be unambiguous and clear. If there was space for multiple interpretations, the lines of authority, accountability and operations of the agencies responsible for implementation were called into doubt.

Mr Denyssen set out the findings of the research. The researchers had felt that the CBRTA, NLTA and FSPTA were clear enough to guide practice, and to allow cross-border road transport to run smoothly. IT was incorrect to assume that there could be membership of associations to cross borders. The Acts clearly specified that Free State permits did not allow operators to cross borders, and it was incorrect to assume that municipalities could give a licence allowing for border crossings.

He emphasised that despite the legislation being tight enough, there was, however, a perception that the fact of so many pieces of legislation, and the number of amendments to each Act, made them unclear. A further concern was that despite the legislation being in place, there were still ongoing taxi wars.

The problems could be ascribed to various failings on the part of all the players. The CBRTA was not complying with the SACU MOU on Road Transportation. Operators had failed to convert old order permits and operating licences to the proper cross-border permits, within the legislated timeframe, before 28 February 2009. Illegal taxi ranks had been set up at various points of entry, and this directly impeded the flow of passenger traffic. A taxi ranking facility that was operating properly had to be set up. The Free State Department of Police, Roads and Transport had failed to recognise that cross-border operations (including ranking and inspections) fell squarely within the competency of the CBRTA. The provincial Department failed to issue permits to Free State operators properly, and this was causing frustration to taxi associations and operators.

The CBRTA was not managing the taxi ranking facilities well, and a number of operators who had failed to convert their permits were apparently operating from residential places, and were operating also to and from undesignated ranks in Lesotho. The Free State Taxi operators did not recognise and comply with the CBRTA or the provisions of section 75 of the NLTA. The operators preferred to operate and control operations in the Free State Province from Fouriesburg, in terms of an agreement to which neither national government nor the CBRTA were signatories.

The Free State taxi operators were refusing to enter into Joint Ventures with the cross border taxis association in Lesotho (LPTCA), which was the only officially recognised association, in terms of the Cross Border Act. The Joint Venture was intended to set up one ranking facility at Ladybrand, which would be well managed by the CBRTA to take care of licenses and linked operations. Instead, they were insisting on holding to the 2005 agreement with the Province. The CBRTA and taxi operators and Provincial Department were all blaming each other.

The Director General of NDOT, CBRTA and Provincial Department had reported back to a Select Committee meeting on 18 September 2012, to outline the terms of a special dispensation upon which they had agreed. This listed the following key points:
- Establishment of one ranking facility, shared between the LPTCA from Lesotho and taxi operators in the Free State, at Ladybrand
- The need for a legislative amendment, by way of a regulation, to set up a transition period, during which every operator who wished to do cross border road passenger transport should apply for the correct permit. That had taken place during amendments to the Act in 2008, and in emergency cases, but had had limited success in Free State
- The Free State MEC responsible for transport, the CBRTA Regulatory Committee and SAPS would take emergency measures to normalise the border situation, over a period of 21 days, under section 46A of the CBRT Act.

Mr Denyssen reiterated that it was not the legislation that lay at the heart of the problem. Legislative amendments would not ensure, in practice, the smooth running of cross border passenger road transport. The problem actually lay with internal operational weakness within the CBRTA, and various inconsistencies on the ground between the Municipal IDPs, the Provincial Department and SAPS.

Operational matters that required serious attention were the permit management system, permit administration, and permit monitoring.

The main problems with the permit management system were as follows:
- A uniform way had to be found to issue permits. There were currently too many different types of permits and operators had to spend too much time standing in queues.
- The CBRTA had not yet developed a set rationale for the award or rejection of permit applications, especially during the peak periods of Easter and December.
- The CBRTA’s computerised system to ensure operational control at border posts was in existence, but it was poorly managed, with low service delivery level.
- The e-Natis system was not operational within the CBRTA. There was no active link with the computer system and all enquiries had to be done telephonically. E-Natis would help with verification of owners and obtaining details of previous convictions. At present, inspectors had no contact with local authorities to obtain this information.

The problems with the permit administration included the fact that:
- Freight and passenger transport lists were handled by the same administrators. There was poor service delivery to passengers and businesses of both South Africa and Lesotho, and poor quality control at land border posts.
- There was inability to effect penalties and ensure the road transport operators adhered to the Act and regulations
- There was serious concern in relation to the movement of building materials, forestry and other matters. Especially during peak seasons, materials for building could not be brought through, causing back-ups and problems for service providers and contractors, which also caused problems in South Africans needing to work on the sites
- There were problems with staff experience and ability and the vacancy rate at the Inspectorate
- The CBRTA had some problems with supply chain management and the vacancy rate, as reported upon by the Auditor-General

Mr Denyssen presented some recommendations. The Executive Authority (Minister of Transport) and MEC responsible for Transport should be alerted to the fact that the Special Dispensation referred to in the meeting of 18 September 2012 may not yield results, even though it was to amend parts of the legislation and regulations. He suggested that perhaps an independent investigation should be initiated into the Regulatory Committee and the Board of the Agency, paying special attention to the permit management system, and permit administration and staffing issues in the Inspectorate. He pointed out that currently, it  took three months to get a three-month permit, which meant that people were continuously applying for permits, and there were questions around the CBRTA’s service. A further point was the operational efficiency and effectiveness of the Agency’s Inspectorate. Since the Inspectorate should issue and execute penalties, it should have staff with appropriate legal qualifications. He also recommended that research had to be done on what types of permits should work best, and specific attention then paid to the uniform issuing of permits.

Mr Denyssen noted that since the CBRTA was not responsible for policing, the provincial authorities, local municipalities, CBRTA representatives and taxi associations had to serve on Route Management Groups, that must work and be sustainably operated.

Route Management Groups should also pursue their previous initiatives to establish One stop Border Controls, which would be located on one side of a border, but serving both countries, to introduce a consolidated single border document, and to ensure that electronic documentation systems were set up, and to promote pre-clearance for passenger road transportation vehicles and drivers. He stressed that any documentation, procedures and computer systems should be uniform across the SADC member states, that documentation should be multilingual (using all the main languages of the member states), and that a Uni-Visa be introduced.

Discussion
The Chairperson thanked the researchers for the research and the information provided, stressing that other provinces were also involved in taxi problems and safety of passengers.
 
Mr H Groenewald (DA, North West) noted the emphasis on the border between the Free State and the Mountain Kingdom of Lesotho, but asked if there were similar problems at other borders.

Mr Denyssen responded that other border posts were reasonably calm, but that the unique character of Free State and Lesotho, with Gauteng in close proximity, had a bearing on the problem. Lessons learned from these challenges would be applied elsewhere.

Mr Groenewald said there seemed to be a problem with interaction between the CBRT Act, the NLTA and the FSPTA, and there was no coordination between the bodies.

Mr Groenewald commented that there were problems in the issuing of permits and there should be other measures at the borders.

Mr Denyssen said the link up with e-Natis and introduction of computer systems would alleviate the problems.

Ms P Themba (ANC, Mpumalanga) noted that now that the problems had been fully outlined, a programme must be developed for the Provincial Department and CBRTA. Awareness programmes should be run to alert the taxi operators to the proper procedures.

Mr Denyssen responded that the recommendations could fit into the Committee’s oversight programmes.

Mr M Jacobs (ANC, Free State) noted that during the meeting on 18 September, the NDOT had said that whilst legislation did not have to be amended, it was necessary to introduce regulations and policies to address the problem. Certain proposals were made, which it said should be in operation by 18 November. However, there had been no feedback on that. He would have liked the Committee to compare its recommendations with those proposals, to try to get uniformity. The researchers similarly had come to the conclusion that there was no need to amend the legislation, but there was a need to tighten the regulations. He proposed a meeting with the Department to reach agreement on the matter.

Mr Jacobs agreed with Mr Groenewald that a uniform way had to be found to issue permits at all borders.
He suggested issuing of temporary permits, for a year, on a probation system, in order to check whether operators would be able to fulfil requirements. If they could, then perhaps a five-year permit could be given. This might lead to greater stability.

Mr Denyssen said consideration could be given to that. There was a challenge in taxi operators becoming categorised, and that would have to be addressed. Perhaps this could be included in the Committee’s recommendations.

Mr Jacobs asked for clarity on how one-stop border controls would operate. He reiterated that although the proposals were supposed to be in operation on 18 November, it seemed that the NDOT may have fallen behind. He had heard, from a taxi operator, that the operators were also waiting on the Department. He noted that confrontation must be avoided, especially in the busy season. He proposed that a meeting be held in the following week, to which all stakeholders should be invited.

Mr Denyssen repeated that the One-Stop Facility included sharing of facilities at Ladybrand, and creation of a transition period in which everyone wanting to participate in cross border road passenger transport must apply for the correct permit, similar to the system used in 2008. In addition, the Special Dispensation was to be apply.

Mr R Tau (ANC, Northern Cape) said that this research presentation provided a useful lesson to the Committee on how research could be done to help the Committee.

Mr Denyssen thanked the Committee for the compliments, and wanted to add that the research was based upon high-quality questions and precise identification by the Committee.

Mr Tau believed that these were political problems that needed a political solution, which must be found before Parliament rose. The Committee had started the process, and must take responsibility if it had taken too long to ensure a follow-up on commitments by NDOT. The Special Dispensation would not necessarily be a long-term solution, but was a political milestone that the Committee had managed to push the NDOT to this point. The Committee must always remember the interests of the public, particularly their needs during the Festive Season. The key issue was operators from Lesotho were operating in South Africa, when they should not. Although some operators from Fouriesburg felt they were being unfairly targeted, they could have applied for their permits too late, and he wondered if the same situation would apply to new permits. He asked whether the current operators were acquiring their permits in South Africa or Lesotho. The main concern of the taxi operators at the moment was that officials from the Provincial Department were saying that they were waiting on a response from Lesotho, and the roles of the Province and CBRTA were unclear. He had asked that the names of the officials be obtained, and for strong political leadership.

Mr Denyssen responded that the NDOT, an Advocate from the CBRTA, and Provincial Department had said that the Special Dispensation would be applied by 18 November, so the emergency response already was fixed within a timeline. It was very worrying that people on the ground said that there were no signs of the dispensation working, and this was perhaps an indicator that the Committee must step in and that political directives must be given. NDOT’s contact person was the Director General, although this person had not been at the meeting of 18 September, and he urged that this person, who was the Accounting Officer, must be informed of the continuing uncertainty on the ground. The CBRTA allowed for these regulatory measures to be taken. It was now more than a year since promises were made.

He noted that Mr Tau’s observation that this was a peak traffic period was correct and that emphasised why the problem must be resolved; although the solutions were temporary, the recommendations made earlier would seek to address the issues in the longer term.

The Chairperson reiterated that the research had revealed several useful points, particularly around agreements being signed by not enacted. He cited several court cases involving the Lesotho and South African operators, and said that there were also problems between Mozambique and South Africa. He agreed that an urgent meeting must be set up with stakeholders to bring everybody on board.

Mr Denyssen suggested that an update on the Special Dispensation be requested immediately, and that the Director General be called to address the Committee.

Mr Tau referred to the 2008 dispensation, saying that decisive political interventions were made, and the matter was solved (temporarily) but the former problems then resurfaced. He agreed that the Director General should be called.

Mr Jacobs also supported that, but said other stakeholders must also be invited so that there could be immediate implementation on solutions agreed upon.

Ms Themba said the matter was urgent and suggested dates in the following week.

Mr O De Beer (COPE, Western Cape) urged that a long-term solution must be found, and agreed that stakeholders should be invited, to get direct involvement on the Director General’s comment. He suggested meeting with the Director General on Tuesday and dealing with the stakeholders in the afternoon.

The Chairperson said he would have to follow Parliamentary procedures, asked Members to be available in the following week, and asked that they speak with one voice, to avoid being misquoted.

The Chairperson understood that the Minister would be busy, but it was important to have a Ministerial representative, since there were proposals for inter-Ministerial meetings, since this involved foreign states and the SADC MOU. It was also necessary to involve the CBRTA and all stakeholders in Free State, since some taxi associations may be based in one place, with their head office in another. He also suggested that it would be useful for the Parliamentary Legal Unit to be present. He was impressed with the range of information consulted by the Content Advisor.

The Chairperson commented on the recommendations about the Uni-Visa, and said that there had been recommendations around SADC borders, and talk of one office to serve people from Swaziland, Mozambique, Zimbabwe, and Lesotho. However, other countries had raised concerns that they did not have the same capacity as South Africa. These were sensitive issues, and they had been outstanding since 1998. He was in favour of considering a system of issuing permits on probation.

The meeting was adjourned.