The Office of the State Law Adviser, on behalf of the Department of Transport, briefed the Committee on the written submission from the Maritime Law Association of South Africa (MLASA) with regard to two Merchant Shipping Bills: the Civil Liability Convention Bill [B20-2013] and the International Oil Pollution Compensation Fund Bill [B19-2013].
The reason why the 1992 International Convention of Civil Liability on Oil Pollution Damage could not be enacted into law was because Parliament had not approved such a convention. While the 1992 Protocol was approved by parliament after the democratic constitution was in place: in 1997 by the National Assembly and 1999 by the National Council of Provinces, the 1992 International Convention of Civil Liability on Oil Pollution Damage was only now defined and dealt with in the Bill and would rule civil liability.
Regarding clause 4 of the two Bills, the State Law Adviser agreed with the MLASA that Bill 20 should be brought in line with Bill 19. Bill 19 held the correct clause and should be used.
Regarding high court jurisdiction for a polluted area, clauses 7&8 of the Bill must be read together with the 1992 Liability convention and the Superior Courts Act and the Admiralty Jurisdiction Regulation Act, to clarify the high court jurisdiction for the area.
The reason why the whole Convention, rather than pieces of it, would be enacted into law was because the whole convention was applicable; it was consistent with the constitution; and the convention had to be read as a whole, together with the Bill.
What was apparent in the submissions was that the MLASA attorneys were referring to the 2009 version of the Bill, which was drafted more in line with Australian legislation and which differed from the South African Constitution. It was re-drafted and was now a different bill before Parliament.
The Department and Office of the State Law Adviser were of the opinion that the South African Maritime Safety Association (SAMSA) should respond to the MLASA submissions on clauses 15 and 16, since it was instrumental in drafting clauses those clauses. The Department admitted that failure to ensure that the two entities were present at the meeting was an oversight on its part.
The Committee was concerned that the Department had chosen not to respond at all on the Maritime Law issues. It appeared to pass the buck to the State Law Adviser, which had never actually met with SAMSA. They were also concerned that the Committee should be expected to pass a bill without presentations from the entities involved.
The Committee concluded that the processing of the Bill would need to be deferred to the following week, when the MLASA and SAMSA were present to make presentations to the Committee. The Committee requested that the State Law Adviser’s responses to the MLASA, as presented, be submitted to the Committee in writing.
The Chairperson said that apologies had been received from the Minister, Acting Director-General and Deputy Director-General of the Maritime Transport Branch. The Chief Director: Legal Services and Chief Director: Maritime Transport were however present at the meeting.
Mr P Mbhele (COPE) asked why the Maritime Law Association of South Africa (MLASA) was not present at the meeting
Mr I Ollis (DA) asked if any people were actually invited to make presentations concerning the bill.
The Chairperson said that the Committee did not invite people who had not shown interest in making a submission. The MLASA was the only entity which had made a submission and had chosen to make a written submission. Pressing work commitments had been the reason for them not attending the meeting.
Advocate Adam Masombuka, Chief Director: Legal Services, Department of Transport (DoT), emphasised the apologies sent by the Director-General, Acting Director-General and Chief Director of the Maritime branch, who were engaging on other divisions of the Department that day. He added that the responses to be presented by the State Law Advisers (SLAs) were in agreement with those of the DoT, as the DoT worked in close collaboration with the SLA on the legal issues relating to the submission by MLASA.
Response to the MLASA submission
Adv Gideon Hoon, Principal State Law Adviser: Office of the Chief State Law Adviser, responded to the MLASA submission. Regarding clause 2 - enactment of the 1992 Protocol into law, he referred to section 231 of the Constitution.
Subsection 1 stated that the negotiating and signing of all international agreements was the responsibility of the national executive.
Subsection 2 stated that an international agreement binded the Republic only after it had been approved by resolution by both the National Assembly (NA) and National Council of Provinces (NCOP) and then it was an agreement referred to in subsection 3.
Subsection 3 referred to international agreements of technical, administrative or executive nature, which was not the case in this instance.
Subsection 4 stated that any international agreement became law in the Republic when it was enacted into law by national legislation.
Subsection 5 stated that the Republic was bound by international agreements which were binding on the Republic when this constitution took effect.
The problem with drafting the current bill was that the 1992 Protocol to amend the International Convention of Civil Liability on Oil Pollution Damage (1969) was approved on 23 October 1997 by the NA and on 15 March 1999 by the NCOP, in accordance with section 231(2) of the Constitution. South Africa had acceded to that 1969 Convention with effect from 15 June 1976 and in terms of section 231(5) of the constitution, the republic was then bound to that international agreement.
However, in order to enact the 1992 Protocol into law, it had to be enacted by national legislation in terms of section 231(3) of the Constitution.
Article 11 of the 1992 Protocol had a specific provision which was that the 1969 Liability Convention and 1992 Protocol should be read and interpreted together as a single instrument. Articles 1-12, including the Moral Certificate of the 1969 Liability Convention, as amended by this protocol, should be known as the International Convention of Civil Liability on Oil Pollution Damage (1992) - the 1992 Liability Convention.
Therefore, the reason why the 1992 Liability Convention could not be enacted was because Parliament did not approve such a convention. It was now defined and dealt with in the bill and would rule civil liability.
The difficulty the attorneys had with this issue was understood. South Africa’s constitution required that Parliament approve the convention before it could be enacted into law and thus the 1992 Liability Convention would be dealt with in the bill.
The SLA could not understand why the attorneys submitted that the amendments to the convention should have a clear and simple responsive mechanism for incorporating amendments, as South Africa was bound by the constitution which required that international agreements must first be approved by Parliament before being enacted into law. Clause 2 of the Bill sought to achieve this by stating that as soon as the amendments to the convention were approved by Parliament, it would then be published by the Minister for comment.
The SLA agreed that the Clause 4 of Bill 20 be brought in line with Bill 19. Bill 19 held the correct clause and should be used.
In response to the query on jurisdiction by the High Court, Adv Hoon said that in South Africa there was only one High Court - in terms of the Superior Courts Act of 2013 and its predecessors - which consisted of divisions. The Minister, after consultation with the Judicial Service Commission determined the areas under the jurisdiction of each division. There was also a general presumption that the bill included extra-territorial operation but if one wanted to make a bill extra-territorial, one would have to include in wording that the bill had ex-territorial applications. Clauses 7&8 of the Bill must be read together with the 1992 Liability convention and the Superior Courts Act and the Admiralty Jurisdiction Regulation Act, to clarify the high court jurisdiction for solutions to a polluted area.
Regarding why the whole convention rather than pieces of the convention would be enacted into law, Adv Hoon said that it made sense to do it this way as the whole convention was applicable. Parliament had approved the protocol which was consistent with the constitution and the convention had to be read as a whole, together with the bill. The attorneys referred to the 2009 version of the bill which was drafted more in line with the Australian piece of legislation, which had a referral system where Parliament delegated legislative power to the state. This differed from the South African Constitution.
Clauses 15 and 16 of the Bill were inserted by the South African Maritime Safety Authority (SAMSA) during the drafting of the Bill. It would be appropriate for SAMSA to respond to the MLASA concerns of those sections. Communication on the last two clauses had been conducted separately via email.
Mr L Suka (ANC) asked for assurance from the SLA that the Bills were in line with the constitution adopted in 1996, so that the Committee was not compromised when it came to voting in the House. There was benefit of doubt regarding certain issues. If the bill related to issues of 1992, before adoption of the constitution, and required clarification from SAMSA, the Committee was compromised. Furthermore, the bill was drafted along lines of the Australian system, which was a different system to South Africa.
Adv Hoon clarified that the attorneys had referred to a 2009 version of the bill. That version was drafted along incorrect lines as it did not follow South Africa’s constitution. It was re-drafted and the Bill before Parliament was now a different one. The 1992 Protocol was approved by Parliament after the democratic constitution- in 1997 by the NA and 1999 by the NCOP.
Mr Johannes Makgatho, Director: Corporate Legal Services, Department of Transport, added that the legal teams had been working on the bill for seven or eight years. Sections 15 & 16 would need to be answered by SAMSA.
Mr Ollis commented that it was shocking that the Committee should consider a bill without SAMSA being present. The two clauses were specifically requested and drafted by SAMSA and would be implemented by SAMSA. It was necessary to ask SAMSA questions regarding clauses 15 &16. This put the Committee in an awkward position.
Adv Masombuka noted that written responses would be submitted to the Committee for clauses 15 & 16. He agreed that SAMSA should be present at the meeting to answer questions.
The Chairperson concluded that the issues raised by MLASA were based on the 2009 version of the bill which was drafted and based along the Australian model. Her view was that the attorneys had to understand the processes that had been taken place. Another issue was that a state-owned entity involved in implementation of a bill needed to be part of the discussions around processing of a bill. The Committee did not want to process the Bill without the entity present.
Adv Masombuka replied that the DoT could not agree more and that normally the entities involved were invited to attend the meeting. This was an oversight on DoT’s part that they did not ensure that the entities were present. DoT would also ensure that the full response to MLASA submission would be provided to the Committee in writing.
Mr Suka added that the DoT should be more organised as the delay in processing of the Bill had negative implications.
The Chairperson concluded that the processing of the Bill would need to be deferred to the following week, when MLASA and SAMSA could make presentations to the Committee. The Committee secretary would invite the entities and revert back on the date and time of the meeting.
Adoption of Minutes
Ms Motsepe moved for adoption of the draft minutes of proceedings from the Committee meeting held on 6 August 2013, and was seconded by Mr Mbhele.
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