The South African Maritime and Aeronautical Search and Rescue Amendment Bill [B28-2010] was deliberated upon and adopted. The Committee heard that there were no proposed changes to the Amendment Bill. Its purpose was to correct the grammar and problematic phrasing in certain clauses of the original Bill. The procedures that needed to be followed by the South African Search and Rescue Organisation (SASAR) were also refined. Flight plans of aircraft engaging in search and rescue operations would need to be filed. A provision was made for an alternative to the chairperson when unavailable for a meeting.
The Committee asked if pilot associations and labour organisations were part of SASAR, and how a growth in membership was envisaged. The Committee was told that the constitution of the organisation made provision for companies and organisations to apply and join if they could contribute their services to the organisation. Members asked if invitations were invited from all interested parties who could contribute services. Any voluntary organisation merely had to sign the SASAR Manual to attain membership.
The Committee asked if because Clause 14 of the Amendment Bill now stated that municipal airports were required to file flight plans for search and rescue operations, it made it a Section 76 Bill (affecting provinces). Municipal airports were listed in Part B of Schedule 4 of the Constitution which meant they were functional areas of concurrent national and provincial legislative competence.
The Senior State Law Advisor said that generally this Bill did not affect provincial competence based on the “pith and substance” test. Provincial competence was not affected merely because municipal airports were now required to file flight plans. Hence this was considered a Section 75 Bill.
South African Maritime and Aeronautical Search and Rescue Amendment Bill [B28-2010]
Adv Adam Masombuka, Department of Transport Chief Director: Legal Services, outlined the changes that the Amendment Bill made to the Bill. Technical flight plans were now required to be filed. The manner in which the original Bill was drafted especially the phrasing of some clauses and the grammar left much to be desired. Parliament had invited the public to make submissions in November but none had been received. He read out the Amendment Bill to the Committee again.
He assured the Committee that the incorrect phrasing and grammar had all been corrected. The procedures that needed to be followed at meetings of the South African Search and Rescue Committee and sub-committees were refined. Also provisions were made for an alternative to the Chair when the Chair was not available for meetings. He noted that there were no proposed changes to the Amendment Bill since its introduction into Parliament.
Adv Masombuka pointed out Clause 4 in particular which amended Section 5 of the Act. The list of members of the South African Search and Rescue Organisation (SASAR) had been expanded to include the South African Weather Service. Also voluntary organisations which were signatories to the SASAR Manual were now added to its membership. All of these organisations had indicated their support for the Bill. Upon publication of the draft Bill comments had been received from the South African Maritime Safety Authority (SAMSA) and Air Traffic and Navigation Services (ATNS). All comments received were incorporated into the Bill. Both ministerial clusters had approved the Bill. (see document)
Mr I Ollis (DA) asked if there were pilot associations and labour organisations who formed part of the organisation, especially since pilot organisations had an interest in assisting with emergency services. He wanted some idea of who signed up or who would sign up as members, or who were envisaged as members.
Mr Pat Modiba, Director: Search and Rescue Administration, Department of Transport, replied that this was a voluntary organisation whose composition was informed by international standards with recommended practices. The Conventions were also mentioned and this provided guidelines as to how it was to be constituted. The organisation had an Executive Committee which was comprised mainly of government departments and agents. The structure also had sub committees. Pilots were not represented in the sub committees. The constitution made provision for companies or organisation to make application to join if they felt they could contribute services to the organisation. Those listed under Section 5 were mandatory members because government agencies had resources. Commercial and voluntary organisations could contribute services. Labour unions were not represented here.
Mr L Suka (ANC) asked if it was possible to see the Principal Act or the Clause that dealt with the powers of Minister, so that the Committee could make some inputs in this regard.
Mr Suka later said he was covered with regard to this question.
Mr Ollis asked if pilot associations or trade unions would be invited to become members, and if participation from airlines, for example, would be welcomed.
Adv Masombuka replied that this was related to a question of interpretation. If a pilot association or any voluntary organisation intended to form part of SASAR, it was entitled to. One simply signed the SASAR Manual to become a member.
Mr Madiba replied that membership could be by invitation or voluntarily through elections.
Mr Ollis asked if in terms of Clause 14 of the Amendment Bill, municipal airports had to file emergency plans given that this was a different sphere of government.
Mr Madiba replied that the provision on emergency plans used the word ‘all’, hence this included municipal airports as well.
Mr Gary Rhoda, Parliamentary Legal Advisor, stated that he had not discussed this matter with the State Law Advisors as yet as he was concerned that given that it dealt with municipal airports it might be considered a Section 76 Bill. Part B of Schedule 4 dealt with municipal airports, and Clause 14 dealt with all airports which included municipal airports. This would not affect how the Portfolio Committee specifically dealt with the Bill, it just affected how it was processed in the NCOP.
Mr Malusi Ncobo, Senior State Law Advisor, said that generally this Bill did not affect provincial competence based on the “pith and substance” test. He himself doubted that it was a Section 76 Bill.
Mr Suka said aerodromes were in poor condition and needed repair. He therefore looked forward to the report where this matter would be dealt with. Legal people would need to advise on the issue of whether this was a Section 76 or Section 75 Bill.
Adv Masombuka replied that guidance was needed from the State Law Advisors.
Mr Rhoda said that the State Law Advisors had been consulted. Clause 14 had been looked at and it was found that it did not affect provincial competence merely because municipal airports were now required to file emergency plans. Hence this was considered a Section 75 Bill. [The test was not whether it affected the provinces, it was whether the substantive areas fall within the Schedule 4 of the Constitution. Schedule 4 did not deal with traffic].
Mr Ncobo expressed his pleasure that agreement had been found with Parliament on this matter. He said that nowadays they paid attention to the interpretation in the Constitutional Court judgment on how to tag a Bill rather than the Schedules in the Constitution itself. The Bill was analysed and they were adamant that it was a Section 75 Bill.
Mr Ollie expressed his satisfaction that the matter had been cleared up.
Mr Suki also expressed satisfaction with the outcome.
Voting on the Bill
The Report on the South African Maritime and Aeronautical Search and Rescue Amendment Bill [B28-2010] was read out. The Bill and all its provisions were agreed upon.
Mr Suka moved and Ms N Ngele (ANC) seconded.
The South African Maritime and Aeronautical Search and Rescue Amendment Bill [B28-2010] was adopted without amendments.
The meeting was adjourned.
Report of the Portfolio Committee on Transport on the South African Maritime and Aeronautical Search and Rescue Amendment Bill [B 28 – 2012] (National Assembly – sec 75), 12 February 2013:
The Portfolio Committee on Transport, having considered the subject of the South African Maritime and Aeronautical Search and Rescue Amendment Bill [B 28 – 2012] (National Assembly – sec 75), referred to it and classified by the JTM as a section 75 Bill, reports the Bill without amendment.
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