Merchant Shipping Amendment Bill [B12-2015]: Department of Transport (DoT) consideration of received submissions

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23 June 2015
Chairperson: Ms D Magadzi (ANC)
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Meeting Summary

The responses to the questions sent by MPs to the Department of Transport (DoT), seeking clarification on the Merchant Shipping Amendment Bill 2015, were considered and further explained by the Chief Director of Maritime Transport Regulation, with the assistance of the Chief Director, Legal Services in the Department. This was followed by consideration of the comments from stakeholders such as law firm Bowman and Gilfillan, the South African Maritime Safety Authority (SAMSA), the National Economic Development and Labour Council (NEDLAC) and the Cabinet.

Discussions by MPs focused on the laws that would be applied to young people employed at night, compliance to the international conventions in relation to the practicality of occurrences on the ships, means of communication on ships in the event of distress situations, and the legal implications of the term ‘wholly engaged’ as used in the Act.

The Committee report on the international convention on standards of training, certification and watch keeping for fishing vessel personnel, 1995 (STCW-F), as well as the minutes of 2 June and 9 June 2015 were considered and adopted by the Members.

Further deliberations ensued on the periods available for oversight visits for the current and coming financial years, which had been scheduled for July, September, November, January and February in the updated parliamentary programme. Members agreed to embark on two oversight trips, to Brazil and Germany, and it was proposed that the Chairperson should write to the chief executive officer of the Passenger Rail Agency of South Africa (PRASA) informing him of the agreed discussion by the Committee, and requesting a change in the programme. It was also agreed that the Merchant Shipping Amendment Bill would be finalised on 22 July 2015, after which the Committee could embark on an oversight visit for the remaining days of that week. It was also suggested that the Committee should collaborate with the Portfolio Committee on Public Enterprises to conduct oversight on PRASA and Transnet.

Meeting report

Response to questions of clarity on Merchant Shipping Amendment Bill, 2015
Questions had been received from Committee Members on the Merchant Shipping Amendment Bill, 2015 to which the Department of Transport (DoT) had responded.
Ms Nosipo Sobekwa, Chief Director: Maritime Transport Regulation, DoT’ went through the questions again, and gave answers to them as appropriate. She was assisted by Mr Adam Masombuka, Chief Director, Legal Services. DoT.

Some questions had not been clear, but the Department had attempted to answer them all. The Bill addressed maritime labour in terms of the new International Labour Organization (ILO) Convention, which the Department of Labour had ratified on behalf of South Africa.

The responses to the questions of clarity on the Bill were highlighted. (See attached document). Further explanations not included in the document are stated below:

Question 1: It was noted that the South African Maritime Safety Authority (SAMSA) conducts what is known as ‘the port state control’ under international maritime law. In other words, SAMSA would go to vessels to conduct statutory inspections for all incoming big vessels due for inspection or survey. Non-compliance with the Convention would be detected from such inspections, and if a vessel was found guilty, the surveyors had a legal right to detain such a vessel. If the master of the vessel admitted guilt for the contravention, the penalties mentioned in the Act would then be implemented.

Question 2: Merchant vessels were big vessels which traveled all over the world, and were provided for by the Safety of Life at Sea (SOLAS) Convention. Young people were allowed to be trained on these vessels only under strict supervision. Children were exempted. Children referred to in the section meant those under the age of 16 years, while young people were those under the age of 18.

Question 3: Specific duties were assigned to everyone on a vessel.
Question 4: The Act laid emphasis on the cadets, because that was the entry level for training.

Question 6: Although the question was not clear, attempts were made to provide an answer. The administrations were able to audit and align with the national requirements of their national legislation. The International Maritime Organisation (IMO) gave out guidelines when regulating. The IMO allowed member states to align their national legislation, but deviations should not be made from what had been agreed upon in international law. However, if national legislation required something to be done outside international law, the IMO had to be informed of such a deviation. For instance, South Africa being a country with a new democracy, different from the developed countries, still had to consider domestic laws while implementing the Convention. Domestic laws should align with the international requirements.

Question 7: The question was not clear.

Question 9: Naval vessels were not regulated under the Convention, as they did not fall under the jurisdiction of member states of the IMO. The naval vessels had their own laws, and constituted an exemption in the Act.

Question 11: It was agreed at the meetings held with the IMO that there was no difference between the ‘seaman’ and the ‘seafarer,’ but gender bias issues were considered. In the context of the conventions, seafarers were strictly assigned to go with the big vessels.

Question 13: South African ships were obliged to observe the provisions of the Convention, since it was a signatory to the Convention. South Africa had jurisdiction over any vessel registered under the Ship Registration Act of South Africa, and therefore had powers to regulate such vessels. Any vessel on the territorial waters of South Africa would be subject to the regulations of South African law, which was not different from the international laws to which South Africa was a signatory at the IMO.

**Question 14: Instructions were given out by the captain to people on a vessel. However, the people on the vessel had a right to communicate with the captain on any issue. The captain of every vessel was conversant with the laws. There was something called ‘a port of refuge’. This meant that any vessel in distress on the territorial waters of a member state had to be assisted by such member state. The captain would have to take a decision to communicate with a nearby port in the event of any problem at sea. Member states should be able to assist when such communications reached them. In the case of a health infection, the whole crew would be quarantined. The captain had to make sure that communications to the necessary bodies were made in the event of the death of a seafarer.

Question 15: It was pointed out that a vessel owner was not always in the vessel. Often there were difficulties in identifying the owners of vessels.

Question 16: The answer was given, with the South African context in consideration. The fees were determined by SAMSA. Surveyors and inspectors would, for instance, be requested by another country to inspect the ports of these countries. It was at that point that the charges incurred were determined by SAMSA.

Question 17: SAMSA was a competent authority on maritime matters, and stood as the administration in South Africa. The SOLAS Convention, on the other hand, defined its administration as the government.

Question 18: Young people were regulated.

Mr G Radebe (ANC) asked if laws similar to those in the Children’s Act would be applied to the young people working at night.

Ms Sobekwa replied that young people were often trained on the vessels. However, these young people had to be protected by the captain.

Mr Masombuka said that in addition to the distinction between young people and children already mentioned, young people employed on the vessels were posted only for the purpose of undergoing their internship training. The master should be aware that young persons were on board his ship and should supervise them strictly. Employment of children and young people on a ship were provided for under sections 110 and 111 of the Act respectively.

Mr M Sibande (ANC) asked for clarity on the issue of compliance to the international conventions, as opposed to the practicality of activities that took place on the ships.

Ms Sobekwa replied that the IMO understood that member states had responsibilities to the seafarers in their territorial waters. Signatories to the IMO convention were also obliged to assist the seafarers as much as possible. It was for this reason that guidelines had been developed to complement conventions, and member states were allowed to apply their domestic laws when the need arose. These domestic laws should, however, be aligned with the international laws.

Ms S Xego-Sovita (ANC) asked for clarity on how an alarm could be raised by a seafarer when there was an irregularity on the ship, and whetherthe seafarer could communicate directly or if the communication had to be done by the master or captain alone.

Ms Sobekwa replied that there were procedures on the vessels. If a vessel was in distress or the seafarers were faced with a problematic situation, they could communicate through the radios provided on the ship. They could communicate with the Marine Rescue Coordination Centre (MRCC) who received such distress signals and were always on duty all through the day. There was also a system known as ‘the long range identification systems,’ that could pick up a vessel at whatever location it was, through the help of a satellite. The master could also communicate with other vessels in the vicinity to assist in communicating with SAMSA, the MRCC or the national ports authority.

Summary of comments received on Merchant Shipping Amendment Bill, 2013
Mr Masombuka read out the comments received on the Bill. He said not many inputs had been received from various stakeholders, since it emanated from the international convention. Comments had been received from the maritime division of law firm Bowman and Gilfillan, on the original document that had been published for comments, while the Bill was a product from the said original document. Comments had also been received from SAMSA and the National Economic Development and Labour Council (NEDLAC). The report from NEDLAC was attached to the documents handed out. (See attached document).

The Bill had also been submitted to the governance cluster, and comments had been made and recommendations given to the DoT to seek approval to present the Bill to parliament. The Bill thereafter had gone to Cabinet, and comments had also been received from the Cabinet. The above mentioned comments were outlined as written in the document. (See attached documents).

Adv Gary Rhoda, Parliamentary Legal Adviser, confirmed that he had gone through the comments that had been received and the changes suggested had been effected to the Bill.

Mr Radebe asked for the legal implication of the phrase ‘wholly engaged between the ports and the republic,’ as provided for in clause 8.

Mr Rhoda replied that the term ‘wholly engaged’ referred to international vessels that passed through several ports before arriving at their destination. At the moment, when such vessels were in the port of a particular country, they were said to be wholly engaged at that particular port or coastline. It was more of a contextual than a legal issue.

International convention on standards of training, certification and watch keeping for fishing vessel personnel: Adoption of Committee report
Members of the Committee unanimously agreed and adopted the report on the international convention on standards of training, certification and watch keeping for fishing vessel personnel, 1995.

Adoption of Committee minutes
The minutes of 9 June 2015 were considered. Mr C Hunsinger (DA) raised the omission of the Cabinet’s approval in section 3 of the minutes. The Chairperson said that the omission would be rectified. Mr L Ramatlakane (ANC) moved the adoption of the amended minutes, and was seconded by Mr Radebe. There were no matters arising from the minutes.

The minutes of 2 June 2015 were considered. Mr Radebe moved the adoption of the minutes and was seconded by Mr Ramatlakane.

Committee matters
Ms Valerie Carelse, Committee Secretary, said that at the last meeting of the Committee on the annual performance plan (APP), there had been agreement on how it would slot in legislation in terms of the programme from the Department, especially in respect of the outstanding legislation. The Committee had not been sure of the particular time when the National Land Transport Act (NLTA) would be out. It was also agreed that the APP would be considered towards the fourth quarter, but the issue raised by Mr Hunsinger and herself were the areas for oversight, particularly until the end of the financial year.
The parliamentary programme had been updated last week and the oversight periods had been scheduled for 21 to 31 July. The speculation was for the Committee to finalise the Bill on 21 July 2015, which would be earlier than expected. The Committee therefore had a two week period that could be utilized.

In terms of the new programme, 15 to 26 September had been scheduled for oversight, but there was a possibility of a joint sitting to be held on 22 September, while 24 September was a public holiday, and this could have an impact on any traveling in the second week of September. The Committee should therefore consider the week of 15 September for its oversight. There would also be an oversight period from 24 to 28 November. For 2016, the oversight period had been scheduled to take place from 26 January to 10 February.

With regard to the APP, the Committee had to give an indication of what their focus areas would be for those periods, apart from the oversight functions, and should bear in mind that if the Department were to table the NLTA and the Bill, it would have an impact on the Committee’s ability to go on oversight, especially for the November, January and February periods.

The Chairperson asked for inputs on the areas where oversight could be conducted during July, September, November, January and February.

Mr Ramatlakane raised the issue of the oversight on the coaches in Brazil that had been discussed at the Committee’s workshop, where it had been suggested that the oversight should take place either in July or November. However, it seemed impossible to have the oversight in July. He had initially suggested that the oversight should take place on 24 November, but noted that the statement on the medium term expenditure framework would be released around late October, to be finalized in mid-November, and this could impact on the suggested date if there were areas that required some consideration by the Committee. For that reason, late September or January should be considered.

Mr Sibande proposed that the dates should be left open while further research was done by the researchers and MPs on what programmes would be conducted by the Committee during the oversight periods.

The Chairperson said that the chairperson of the Brazilian coach manufacturer would be reminded to send an open invitation to the Committee, and the Committee would suggest the dates convenient for it. The parliamentary processes and procedures would also be considered in approving the oversight visit.

Mr M de Freitas (DA) said that the legislative programmes had to be considered and confirmed. He also suggested either September or January for the oversight functions. Informal arrangements should be looked in to in order to figure out the period when Brazil would be able to receive the Committee.

Mr Ramatlakane said that the title ‘study tour’ should be changed to ‘oversight on the coaches’. He reminded the Committee that Germany also had to be visited. There might be a need for the Committee to divide its members into two sections in order to visit Brazil and Germany in September and January respectively. The Committee programme would therefore need to be amended to reflect these changes. A letter signed by the Chairperson, reflecting the aforementioned changes, should then be sent to the chief executive officer of the Passenger Rail Agency of South Africa (PRASA), for him to include the changes in the programme.

Ms Carelse said that the week of 21 July had been earmarked for the Bill to be finalized, and oversight could take place only from the afternoon of that day, after the Bill had been finalised. There would be a workshop for all chairpersons on 28 July.

The Chairperson said that Members should consider what areas oversight could be done on the remaining days after the finalisation of the Bill.

Mr De Freitas wanted to know if the Committee would be allowed to embark on two trips abroad, and if the Committee would be responsible for providing for the trips from its budget.

With regard to the confusion in the parliamentary programmes, he noted that the joint committee meeting with Public Enterprises was yet to take place. It had been suggested that the Committee collaborate with Public Enterprises to conduct an oversight visit to PRASA and Transnet. Other issues in the Road Traffic Management Corporation (RTMC) and the Road Transport and Safety Agency (RTSA) with regard road safety and road statistics should also be considered.

Mr Ramatlakane said that amendments to the Bill would be initiated by the Committee only if the need arose. The Committee should plan towards finalising the bill on 22 July 2015 and then embark on its oversight trip. The plan would be changed, if it failed due to material conditions. The Committee should also agree either to embark on one or two trips, or to postpone one of the trips until the next financial year. The plans had to be properly motivated so that they could be approved by Parliament.

The Chairperson agreed with Mr Ramatlakane, noting that oversight had to be conducted on the locomotives and the coaches, especially because engineers had been trained in both institutions in Germany and Brazil. The trips would have to be embarked upon, regardless of whether or not they were embarked upon this year or the coming year.

Mr De Freitas supported the two trips, but proposed that the Committee should work on adjusting the programmes in a way that MPs would not be too exhausted and then pay less attention to the discussions during the programme.

The Chairperson said that a letter should be written to the CEO to ask for a plan of action on what the Committee would do in Brazil. September would be ideal to go to Brazil, followed by January for the next oversight visit.

Mr Sipho Dibakwane, Policy Analyst: DoT, asked if the Department had a role to play in carrying out the oversight visits, especially since reference had been made to PRASA throughout the discussions.

Mr Ramatlakane replied that since PRASA was an agency of the Department, the Department therefore had a role to play in the preparation of the oversight visits. The Chairperson had clarified that the letter from the Committee that would be sent to Brazil would go through the Minister.

The Chairperson reiterated the suggestion that two oversights that would be conducted, as well as interaction with PRASA and Transnet and collaboration with the Portfolio Committee on Public Enterprises, to conduct the oversight visits together.

Mr Ramatlakane suggested that a joint oversight should be done on PRASA and Transnet in November, while the Committee should focus on the RTMC in July.

Mr Sibande proposed that Members should be assigned to the nine provinces to identify challenges in the provinces, as this would help in targeting areas for oversight visits and tackling the problems in the local spheres.

The Chairperson replied that the reason for requesting suggestions from Members was because submissions in form of a proposal for the financial year had to be made in the parliamentary programme.
The proposals suggested by Members would be taken into consideration in the process of finalising the action plan of the Committee.

Mr Ramatlkane asked if the outcomes of the workshop, and the programme that had emanated from it, had to be submitted after the current meeting. He also wanted to know why the APP and the outcome of the meeting had not been made available at the meeting.

Ms Carelse replied that there was no need to adopt the APP at the moment, but it could be circulated to Members and suggestions for oversight could be considered as the need arose. The APP could not be made available at the previous meeting because of the public holiday last week.

Mr Hunsinger said that a special arrangement should be made to engage the on outcomes of the meeting, aside from the circulation as suggested by Ms Carelse.

The Chairperson proposed that the outcomes be circulated today and Members should convene on 24 June from 1.00pm till 2.00pm. The Members agreed to this, and were enjoined to consider the draft outcome that had been circulated at the meeting.

The meeting was adjourned.


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