National Road Traffic Regulations, Financial Management of Parliament Act Regulations: deliberations

Joint Committee on Delegated Legislation

04 June 2013
Chairperson: Mr V Smith (ANC)
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Meeting Summary

The Committee was asked to consider two sets of regulations in this meeting, the first being amendments to the 2000 Regulations that had been framed in terms of the National Road Traffic Act. This Act required Parliament to “comment” on the regulations. The Parliamentary Legal Advisers noted that the amending regulations did comply with the scrutiny criteria, but expressed concern that some of the provisions were to apply retrospectively. The Department of Transport had been asked to motivate this and had stated that this was because some of the manufacturers had been ready with certain requirements already in 2012. However, the legal advisers recommended that this was not a strong enough motivation and accordingly recommended that the Department be asked t change the dates so that all the regulations would apply from the date of publication. The Committee’s Content Adviser also pointed out that the new regulations would appear to require that officials be fully apprised of and trained on the changes. Members fully agreed with these recommendations, and the Chairperson of the Portfolio Committee on Transport, who was present at the meeting, agreed that this Committee should word its report quite strongly so that although it was indicated that the Committee was prepared to recommend adoption of the Regulations by the Houses, it also recommended that the Department must change the dates so that all these new regulations applied with prospective effect.

The Committee was then briefed by the Parliamentary Legal Advisers on the Regulations on Supply Chain Management, framed under the Financial Management of Parliament Act (FMPA). This Act did actually require Parliament to “approve” the regulations. There were two main concerns. Although the content of the regulations appeared to be in order, it was pointed out that they followed a most unusual drafting style. The Legal Advisers, with full agreement from the Members, recommended that a request be made that they should be redrafted, to conform with other Parliamentary enactments, particularly since Parliament should be setting standards of excellence in drafting. The second concern related to the process. The regulations had been published in the Government Gazette but it was pointed out that the Standing and Select Committees on Finance had a duty to ensure public engagement with those regulations, and so far it was unknown exactly what procedures they intended to adopt. The Chairpersons of those committees had been invited to this meeting but had indicated their inability to attend. The Legal Advisers noted that this Committee could, if it wished, decide to recommend approval of the regulations, subject to the two other committees fulfilling their tasks, but “conditional approvals” were not favoured by the Table Staff at the NA and NCOP, because of the logistical problems in tracking later resolutions. The second, and preferred option, would be to defer the further consideration of the regulations, until such time as this Committee had been able to confirm what procedures the two finance committees would adopt. Members agreed with this, and authorised the Parliamentary Legal Advisers to liaise with the committee secretaries and chairpersons of those two committees, and try to obtain definite answers within fourteen days, to enable this Committee to move forward. Members discussed what “public engagement” meant, noted the Doctors for Life Constitutional Court judgment, and generally agreed that publication in the Government Gazette alone, whilst technically fulfilling the requirements, did not amount to facilitating public engagement.

Meeting report

The Chairperson welcomed Ms N Bhengu (ANC), the Chairperson of the Portfolio Committee on Transport, to the meeting, and noted the apologies.

She asked the Parliamentary Legal Advisers to take the Committee through the regulations that the Committee must consider.

Amendments to the National Road Traffic Regulations, 2000
Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, noted that the regulations now tabled to the Committee sought to amend the Regulations that were passed in 2000. They were submitted in terms of section 75(6)(a) of the National Road Traffic Act of 1996 (the Act). She noted that the regulations appeared to comply with the scrutiny criteria in that they did not impinge upon the jurisdiction of courts, and were within the ambit of the principal Act and did not infringe arbitrarily on any constitutional rights.

However, Ms Ngcobozi did have one concern because some of the provisions had retrospective effect. She had tried to find out from the Department of Transport (DoT) the reasons and motivations for preferring the dates given. The DoT stated that it had consulted with the stakeholders. For instance, manufacturers of vehicles would have microdots, and they had indicated that they would be ready by October 2012, yet the regulations had been submitted after this date.

Paragraph 11 of the legal opinion (see attached document) set out in more detail why Ms Ngcobozi had some doubts about the matter. She recommended that the DoT be asked to change the dates so that the regulations would apply with prospective, not retrospective effect.

Ms Anthea van der Burg, Content Advisor to the Committee, also commented on this, at the request of the Chairperson. She indicated that although the weighbridge operator had the ability to exercise a discretion, it was not too broad. However, she did also note that the new regulations would result in many changes in information, and she recommended that the DoT would need to attend to proper training and information sharing with its officials who would be required to implement the new regulations.

Mr V Smith (ANC) agreed with the legal advisers’ concerns about retrospectivity. He noted that if the date of 2012 were to remain, there was unfortunately no basis on which anyone could be held accountable, if the regulations were in fact in operation only from now. He noted that normally, this Committee would report to Parliament on its concerns. However, he believed that there was good reason for the Committee report to be worded quite strongly, with a specific recommendation that the date must be changed, rather than leaving it to the discretion of the DoT. He also suggested that the Portfolio Committee on Transport could perhaps take up the matter and make a recommendation as well to the DoT that this date must be changed.

Ms Bhengu indicated her approval and agreement with this.

Ms S Kalyan (DA) asked if the Committee would be giving any guidance on what the new date should be, or whether it merely commented in broad terms that it would like to see the legislation being prospective.

The Chairperson noted that the Committee would normally recommend that the regulations take effect from the date of publication.

Ms Kalyan asked if the regulations would have to come back to the Committee.

The Chairperson did not think that they would need to come back again.

Mr Frank Jenkins, Parliamentary Legal Adviser, noted that the recommendations were submitted for comment only, in terms of the applicable legislation.

The Chairperson, having ascertained that there was a quorum, tabled and read out the Committee Report on the regulations. This noted that the Committee, having considered the amendments to the regulations framed under the road traffic legislation, was satisfied that the regulations complied with the scrutiny criteria, save that it was concerned about the retrospective application, and therefore recommended that the DoT must change the date, in order to make the regulations prospective.

Regulations on Supply Chain Management System, framed under Financial Management of Parliament Act (FMPA)
The Chairperson noted that the Chairpersons of the Standing and Select Committees on Finance had been invited to attend this meeting, but had indicated that they were not able to do so, because of study group commitments. It was of concern to her that the one day that they were needed, they were not available. She sought the views of Members whether they wished the legal advisers to comment on the regulations, in the absence of those two Chairpersons, and Members thought that the legal advisers should be asked to brief the Committee.

Adv Anthea Gordon, Parliamentary Legal Adviser, noted that the regulations were submitted in terms of the Financial Management of Parliament Act (FMPA) and could only take effect once “approved” by Parliament. The legal advisers had considered whether they met the scrutiny criteria and had some issues with that, which she would detail later, but the criteria had, in theory, been complied with.

The concerns were set out in paragraphs 7 and 15 (read with paragraph 18) of the opinion of the Parliamentary Legal Advisers.

Paragraph 7 pointed out that section 65(5) of the FPMA required that the draft regulations must be “published for public comment”. It would be incumbent on the two Finance Committees to deal with the “public comment” issue, which was why she suggested that the two Chairpersons needed to be present to indicate what their plans were in this regard.

Paragraph 18 of the opinion noted that the regulations were, in content, above board, and there had been an attempt to reach the correct balance with the role of the accounting officer. However, in so far as the style of drafting was concerned, it was rather unusual and certainly did not comply with the usual Parliamentary or legislative conventions. There was some further comment on this in paragraph 15. She was recommending that the regulations may need to be redrafted, but this was essentially from a stylistic and technical viewpoint. Others may not agree with her, or regard this view as pedantic, but that was her recommendation, although it would of course be up to the Committee to make the final decision. She said that one of her concerns was that the current drafting could be criticised or questioned as not being consistent with others, and she felt strongly that Parliament, as the prime legislative institution, should be setting the highest standards of drafting.

Ms van der Berg noted that the regulations related to ensuring transparency, and she was happy with the clauses around sub-delegation, which was intended for implementation purposes. The officials would remain accountable to the Accounting Officer.

Ms Kalyan asked for an indication of the process recommended to deal with the concerns expressed in paragraph 7 of Adv Gordon's opinion.

Mr Frank Jenkins, Parliamentary Legal Adviser, said that the legal advisers interpreted the legislative requirements to mean that there must be not only publication, but also public engagement. The regulations were published in the Government Gazette for public comment, on 4 February, but any comments received would have to be considered and digested by the Standing and Select Committees on Finance, who may also need to engage with any commentators. The Houses must, in terms of the FMPA, approve or disapprove any regulations. He suggested that there needed now to be coordination between this Committee and the two Finance committees, and perhaps synchronisation so that once those latter two had engaged with the issues, the matter could be referred back again to this Committee. Another way to deal with this could be for this Committee to recommend approval of the regulations, subject to those two Committees dealing with their requirements, but that was unlikely to find favour with the NA and NCOP Tables. He could consult with them, but was aware that there were concerns about “conditional approvals”. They created challenges in terms of tracking, and so he recommended that the preferable option was the first; to have the public participation process first completed by the two finance committees, and then for this Committee to make its recommendation.

Mr Smith said, in relation to the drafting style, that he fully agreed with Adv Gordon on the desirability of consistency, because if Parliament failed to set a certain standard, it would be difficult to insist that others comply with certain styles. Even if there were accusations that this Committee was being overly pedantic, he wanted to insist on good style. In relation to the role of the two Finance committees, he stressed that publication had taken place, but wondered what would happen if in fact there was no interest shown, an d whether the two committees must go and solicit comment.

Adv Jenkins responded that the Constitutional Court case of Doctors for Life had considered a similar point, in relation to the Dental Technicians Amendment Bill. This Bill had been published for public comment but nothing was received. However, there was some difference in this case, because the draft regulations were specifically referred to the Standing and Select Committees on Finance and although he believed that they would not have any discussions on these until the following semester, it was necessary still to check what the committees were intending to do. The requirements to publish had been complied with, but he had been unable so far to ascertain, from the Speaker and Committees, whether there had been feedback following the publication. He would, however, follow up further with the secretaries of the two committees, and try to get some indication of the time frames, to see when this Committee could be in a position to deal with the regulations.

Mr D Bloem (COPE, Free State) said this seemed to indicate that this Committee should not move forward at the moment, pending the other two Committees' further work.

Ms Kalyan asked for an explanation of the differentiation between “public comment” and “public engagement”. The People's Parliament and vision was to have engagement.

Ms Bhengu explained the process of arriving at a regulation. The public engagement would happen when the regulations were still being drafted by the department, and after a department had consulted and made any necessary changes to the draft, the regulations would then be brought before Parliament. However, she noted that regulations were not processed in the same way as bills. Parliament was usually only required to comment, because the regulations were informed by an existing Act.

Adv Jenkins said that the Committee could move forward in the meantime on one point, and recommend that the regulations be re-written in the correct style. He reiterated that he would be reluctant to recommend that this Committee conditionally approve the regulations because it would be awkward for the House Tables to track resolutions from the two finance Committees.

He said that whilst Ms Bhengu was correct in relation to the procedure for the Road Traffic regulations, the FMPA specifically required Parliament to “approve” these regulations. In answer to Ms Kalyan, he said that although the publication was “for public comment” the Constitution actually required Parliament to “facilitate public engagement”. He agreed that the first stage in this process would be to publish the regulations, but it seemed that Parliamentary committees must take steps to actively engage with the public, which was why he recommended that this Committee should await notification of what the two Finance committees intended to do.  

Ms Kalyan noted that although the obligation to publish was met by the regulations having been published in the Government Gazette, not everyone had access to the Gazette, a point made in other forums. Parliament would usually therefore also publish in the media, whether this was newspapers, community news, radio or television. She did not buy the argument that a Government Gazette publication was sufficient, because Parliament had not actually reached out to the people by doing this only.

Mr Bloem agreed with Adv Jenkins that this Committee should not approve the regulations at this stage, but call for input from the two Finance committees.

Mr Smith also agreed, but said that, for practical purposes, this Committee already had difficulty in finding suitable dates, and he therefore suggested that the Parliamentary Legal Advisors be asked to speak to those committees, and find out what they were doing around consultation. He suggested that the chairpersons of those committees be asked to report back within 14 days on what they intended to do to “facilitate” public engagement. He agreed with Ms Kalyan’s comments that Government Gazette publication alone was not sufficient.

Adv Jenkins thought there would be no problem with getting a report within 14 days. He noted that he had heard, from the Secretary of the Standing Committee on Finance, that this Committee had a number of bills that it was considering, and had wanted to put a composite advertisement calling for comment, including also calling for comment on these regulations. He hoped to be able to revert within one week.

The Chairperson obtained confirmation also from other Committee members that they were happy that the matter be dealt with administratively in this way. She also noted that all Members were agreed on the need to redraft the regulations to follow the style conventions.

Other business
The Chairperson reminded Members that there had been a study trip mooted, but it was unlikely to happen during this Parliament.

The meeting was adjourned.


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