National Land Transport Amendment Bill: response to submissions; Administrative Adjudication of Road Traffic Offences Amendment Bill: deliberations

Meeting report

National Land Transport Act (NLTA) Bill public submissions: DoT’s response

Mr Mathabatha Mokonyana, Acting Director-General, National Department of Transport (DoT), said the National Land Transport Act 5 of 2009 was passed to further the process of transforming and restricting the national land transport system. The Amendment Bill provided for developments since 2009, which included the 2007 public transport strategy. The Act had had success in achieving its objectives, such as consolidating transport functions at the local level. There were some technical issues that had arisen that required the amendment of the Act.

The main reasons for the amendment of the Bill were that provision had to be made for non-motorised transport and accessible transport in line with international best practice, the revision of contracting arrangements for public transport, the clarification of the functions of the spheres of government, the administrative arrangements for operating licences, provision for electronic hailing of taxis, and the empowerment of the Minister to delay the implementation of the Act while the contracting arrangements were put in place.

He said that the South African Metered Taxi Association had given comments, mainly objecting to the bringing of Uber into their space, which were issues related to e-hailing. They were objecting to the absence of physical meters, not that it was illegal. This was an area where clarity was being given about the way forward, and how things would operate. In an environment where legislation provided for a meter only, one would find that with the introduction of e-hailing -- and how it must be incorporated into mainstream public transport -- there would always be objections.

The City of Cape Town had talked to the definition of the Integrated Public Transport Network (IPTN) and wanted the Department to include certain words in the A clause of the Bill, where the Department was referring only to road-based transport, and not rail. It was an issue of semantics, because the IPTN, by its definition, included an integrated system that talked to all modes of transport, including rail. The Department agreed with them in terms of the issue around motorised and non-motorised wheelchairs. They also wanted municipalities to be able to have their own branding in terms of transport. Public transport had to be branded for purposes of law enforcement and differentiation, and the municipalities had latitude to decide the branding. That was why MyCiti busses had different colours to Rea Vaya in Johannesburg and Leeto la Polokwane in Polokwane. They had also requested clarification about what was meant by capacity issues that spoke to transport planning. They were against the proposal of a Monitoring Regulating Entity and adjacent municipalities. What they proposed was not a bad thing, except that it would make responsibilities murky, because the programme was there to deal with inter-municipality relations.

The issue of qualifications was catered for in Section 17. The planning authority could not take steps to cancel permits, but should rather state that upon recommendation/request, the planning authority shall take steps or measures to cancel. What the DoT was saying here was that while it was not necessarily against that provision, it would insert the relevant regulations where appropriate. There was a section that related to the Road Accident Fund Act 56 of 1996 in respect of fault or no fault issues. They wanted to know why the paragraph was deleted. Initially, when applying for an operating licence, there was a need to obtain third party insurance to deal with matters of this nature. The Road Accident Fund (RAF) had changed this situation because it was now taken care of by the RAF.

The amendments proposed to section 47 related to the issue of conversion for purposes of operating public transport. The cut-off date of December 2016 would never be met. This meant that the time period would be moved from 2016 to 2020, and there would be serious financial and operational consequences. It was recommended to change it to two years, unless already concluded.

Uber South Africa Technology (Pty) Ltd said that the Bill contained a lacuna, as there was no definition of “e-hailing.” This meant that the definition must be discerned from a reading of the definition of “metered taxi service” and from section 66. It proposed adding a definition of “e-hailing” into section 1 of the Act as follows: “electronic hailing means hailing or pre-booking a motor vehicle operated by the holder of an operating licence or permit issued in terms of section 50(1) or section 84(2) by means of an e-hailing technology enabled application service.” The Department agreed that a definition of “e-hailing” should also be applied to other modes of public transport, as this would not be appropriate.

Uber’s other concern was that municipalities should be obliged to follow a public consultation process before taking a decision to impose a moratorium, particularly with regard to empowerment and other job opportunities. The DoT’s response was that the Promotion of Administrative Justice Act (PAJA) applied anyway, so that planning authorities would have to undertake both a “notice and comment” procedure or hold public hearings, where the rights of persons could be prejudicially affected. Section 59(3) of the Act allowed the relevant regulatory entity, when no relevant or substantial objections were received in respect of an application, to dispose of that application summarily, and Uber thus proposed that the section should be worded differently. The Department disagreed with this proposal, because regulatory entities should still have the discretion to refuse the application for various reasons.

Comments from Mr Paul Browning were related to section 79 about withdrawal, suspension or amendment of an operating licence or permit, and Section 62’s description of information which must be provided. The DoT’s response was that this was the function of the Department of Labour, and the regulatory entities could not be expected to police it. Section 93(3) of the principal Act provided that operators could be held liable for criminal acts of their drivers. This meant that contraventions by drivers, in terms of the principal Act or the National Road Traffic Act, would amount to contraventions by the operator. In the Department’s view, no change was necessary.

The South African Local Government Association (SALGA) commented that the definition of an association needed to be clarified. The DoT was of the view that the definition was adequate as it was.

The extension of the metered taxi service definition should include Uber, and the Department’s response was that this would be covered in the proposed regulations.

The definition of “non-motorised transport” should state “and both non-motorised wheelchairs and/or other similar modes.” The Department’s policy at present was to control only motorised vehicles. Segway scooters were motorised, but may currently not be used on roadways and sidewalks in terms of the National Road Traffic Regulations.

Subsection (fA) needed to make provision for a consultation process so that the recurring violent protests by taxi operators could be avoided. The Department consulted with stakeholders before fixing fees, and this was done when the fees were determined in the National Land Transport Regulations of 2009. The Minister had the power to receive annual reports on the state of transport affairs in the provinces, which included reports from Municipal Regulatory Entities (MREs). The Department had noted this and taken it into account. The proposed section 11(b)(viiA) was unclear in terms of services provided by the province. This aspect had been agreed with the Department of Cooperative Governance and Traditional Affairs (COGTA), and the DoT’s view was clear enough.

The amendment was contrary to the Rail Management Green Paper in subsection 11(1) (c) (v). The Department disagreed that the amendment was contrary to the draft rail policy, which was published for comment.

The South African Metered Taxi Forum (SAMTF) commented that the definition of “association” should also cater for metered taxi services that had been incorporated as companies. The Department was of the view that the definition was adequate as it was.

Parliament had to find a way to ensure compulsory branding, as it was part of security. This aspect would be considered when the proposed regulations were drafted. This could also be provided for in municipal by-laws. Operators’ applicants must be linked to security clearances.

The Forum objected to the presence of “3 wheelers” and “tuk-tuks” being incorporated within the Act, as they did not conform to safety regulations. It was up to the planning authorities to decide in terms of their Integrated Transport Plans (ITPs) whether they wanted this, and to what extent tuk-tuks should be allowed.

The code of conduct for foreign drivers needed to be catered for, as the current professional driving permit (PDP) addressed the situation only in South Africa. Permits for foreign operators were issued by their own authorities in terms of the various cross-border agreements, which were read with the Cross-Border Road Transport Act 4 of 1998.

The SAMTF suggested that colour coding of metered taxis could address the challenge of Uber and other e-hailing apps. Branding of metered taxis was essentially a municipal issue, but the comment was noted for possible national regulations.

The intermodal planning committee must include metered taxis. They must feature in planning, as their rights were affected. Metered taxis should be involved in the land transport advisory boards that were established under section 16 of the principal Act.

There were implications for metered taxis when they fell outside municipalities. There was a need to clarify this amendment, to provide jurisdiction to operate in different areas. The nature of the business required metered taxis to travel across the country. Metered taxis should apply to the National Public Transport Regulator (NPTR) for inter-provincial services, or to the Provincial Regulatory Entity (PRE) for inter-municipal services. Those entities had the discretion to grant or reject the applications.

The Uber Drivers Guild Cape Town (CT) commented that the Minister should set up a task team to assess the figures from Uber and its partners, to ascertain a fair model based on respect for labour relations and constitutional rights. The Department had noted this for regulations. It was not government policy to set fares, except in the case of subsidised services, and e-hailing services were not subsidised.

The Greater Taung United Taxi Association, Naledi Municipality Taxi Association, Schweizer-Reneke United Taxi Association, the Kagiso Taxi Association and the Molefi William Kgatlhane all had general comments on the Bill.

The MEC for Roads and Transport in Gauteng had made comments suggesting the empowerment of MECs to make regulations on the more detailed structure of the PREs, the entering into agreements with municipalities and provincial entities which were established as contemplated in section 12 (1), and must perform the functions of the intermodal planning committee as contemplated in subsection (1) and perform such functions as set out in section 11(1) (c) (xix) and subsection (2).

Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Bill

Mr Motsatsing, Director, DoT, presented on the AARTO Amendment Bill, and said that the comments received from the public and the responses had been indicated at the last engagement with the Committee. What would be tabled today would show the deliberations that had since taken place. The document was titled “Amendments Agreed To”. The numbering on the far right hand side of the document looked at the published document that had been completed in December.

The first proposal was in relation to the definition that had been proposed. The first addition that had been made was on page two, line two, to insert the following: “To establish and administer rehabilitation programmes to provide for the establishment of an appeals tribunal”. The Department had taken in some of the inputs that had been made in the form of written and oral submissions from members of the public.

In clause number one, page two, line 6, it was proposed: “To omit (a) and replace it with the following paragraph that refers to the documentation that would be required to identify a particular person.” In this respect, the Department was aware that the Companies Act of 1973 had been repealed and replaced by the Companies Act of 2008. The formative style that was being used to present had already been incorporated that so that Members could see exactly how it was going to appear when the amendments had been accepted.

The substitution in the definition of acceptable identification for paragraphs (d) and (f) of the following paragraphs respectively;

(d) “a company or certification that is used in terms of the Companies Act 71 of 2008.

 (f) “a clear, legible and certified copy of the applicable certificate or the document that is referred to in paragraphs (a) to (e)

The third addition on page two, after line 15, referred to the substitution of date of service and the contradicting aspects relating thereto. The implications of the service methods were being taken into consideration, because the previous Act spoke only about personal delivery, whereas electronic delivery was now being included.  Line 16 spoke to the substitution of electronic service, and the consideration that had been made was to try not to define electronic service in this particular situation, but to take cognisance of the fact that a number of other legislative pieces had certain elements that would be key to the service of the documents, so care was taken not to have contradictory provisions.

It was proposed in line 28 to substitute the definition of infringement with the following: “making specific provision under section 34 so that there would be a mechanism of the issue of an infringement notice including a courtesy letter or order in that respect”. They were grouped, as all those contraventions related to road traffic and road transport legislation.

Clause number 2 was rejected, because it made it easy for contextual reference and the amendments could fit the new amended bill. Section 4 of the principal Act was hereby amended by the substitution in section 1, and it was intended to bring contextual reference in terms of the adjudication and the pre-eminent focus to the legislation. It made it much easier for reading. There was a need for the establishment of an independent body that would deal with all the amendments made, by establishing an infringements tribunal.  The deletion in subsection 2, paragraph three, of the word “and” at the end of paragraph (f) was intended to bring textual reference and clarity in terms of the reading. One of the important parts was under paragraph (e), by the addition in subsection (e) of the following paragraph: “administering prescribed rehabilitation programmes for habitual infringers, including but not limited to driver re-testing to determine driver fitness.” The published amendment bill in this respect had an additional (II), and this was in consideration of the compulsory community service at mortuaries and hospitals. This was considered to be harsh, and had had to be reconsidered.

The following were also comments that would bring textual reference into how the amendments were going to be read. In the amendment of section 11, the following clause should be added: “In terms of Act 46 of 1998, section 11 is hereby amended by subsection 2, which relates to the naming conversion from “an agency’ to “the authority”. The warning that had been given by Mr G Radebe (ANC) had been supported by Mr M Maswanganyi (ANC). The Minister could not be disempowered and the Minister of Finance was not directly named, because the Public Finance Management Act (PFMA) would still be applicable.

The new clause in line 3 was to insert a clause in terms of section 17 of the Act, as amended by section 8 of Act 82 of 2002. Section 17 of the principal Act was hereby amended by the deletion of subsection 1(f) (4). This was regarding the comments made by Ms Alta Swanepoel and the Justice Project South Africa. Those who went to the courts would no longer be able to do so, as they would have to first go to the Infringements Tribunal.

Section 19(b) of the principal Act was also amended by the substitution in subsection 1 of “ the infringer makes an insufficient payment in respect of a fine or cheque used.” There were textual references that had implications in terms of the proposal that had been given for the deletion of a warrant of execution. The justification was that the enforcement order became the essential power of the administration process and therefore a warrant of execution would not be issued. The enforcement order would be effected instead.

A new chapter 3(a) was a consequential amendment from the oral and written submissions specifically from SALGA and the Justice Project South Africa, which related to the inclusion of the Infringements Tribunal, where it would be based on how it was going to work. This would speak to administrative justice and lodging a complaint to protect the intention of the legislation. It would consist of five members to be appointed by the Minister, who had technical and special skills and knowledge of road traffic legislation and public transport. The members would be appointed on a part-time basis.

The Appeals Tribunal must sit at the office of the authority on such days and at such hours as the Chairperson of the Tribunal may determine. The presence of at least 50% of the members would be necessary to constitute a sitting. The Tribunal may summon any person who had material knowledge or evidence of the matter before the hearing, to appear to be interrogated or to produce documents. The decision of the majority of members of the Tribunal constituted the decision of the Tribunal.

Any infringer affected by the decision of the Tribunal may appeal to any division of the high court having the necessary jurisdiction. The appeal must be prosecuted as if it were an appeal from a magistrate’s court and the same rules in such an appeal must apply. The addition of section 23(k) dealt with the administrative processes of the Tribunal and the Office of The Registrar.

Clause number 9 dealt with the inclusion of “by postage and electronic services” in order to make provision for legislative progress. Clause number 10 had been rejected, and the consequence was that there was a need for a clause for replacement. Any penalties received in terms of this Act must be paid over to the issuing authority that issued the infringement notice after the deduction of an amount equal to the discount related in Section 17(1) (b). The prescribed fees as provided by section 13 (1) (d) (A) collected by or on behalf of the issuing authority must be paid over to the issuing authority.

Page 5 line 18 would insert a new clause as an amendment to the addition of paragraph (f) and (h), which dealt with the manner in which an infringement notice, courtesy letter or infringement order may be re-issued. This was critical, because of two key substantive comments by Ms Alta Swanepoel, supported by the submission made by SALGA, regarding the financial implications of an invalidated notice given and the frustrations of the issuing authority. This provision dealt with the re-issuing procedure and non-compliance.

Mr Motsatsing said that this was the attempt the Department had made, taking into consideration all the comments made and the oral and written submissions. They had emphasised the comments made by Mr C Hunsinger (DA) had made relating to the operations. The DoT had taken cognisance of all the comments by the Members to ensure that the Bill had included all the comments.

The Chairperson invited members to engage with the two presentations.

Discussion

NLTA Bill

Mr M de Freitas (DA) said that he was a bit nervous about how much reference there was to regulations. A lot of the things that should be in the bill would be taken to regulations. Public consultations were important and key to the bill’s process, and he was concerned that in future these may take the back seat if it was not specified in the bill that they must take place. Slide 18 must clearly state what SALGA was saying, so that no unnecessary meaning was drawn into it. The Department had not really responded in addressing the wording. Page 21 talked about prescription of meters. He understood the need for regulations, but surely there was a framework within which to work. This applied to a lot of other places throughout the presentation.

Mr Hunsinger said that he did not understand why both amendments were not addressed in the same way. There was a distinct difference between the two amendments and it was confusing, although they were both under consideration. The one was a step or two ahead of the other, and this affected the progress and the amendments. The amendment of the NLTA dealt with definitions which would have far-reaching consequences if not dealt with adequately. The operating licences had some important information that had gone missing. Page 9 showed that the operating licence procedure had been missed. He said that being someone who came from a rural municipality, he felt that there must be a subsection that speaks to the economic empowerment of rural areas, to avoid only metro areas benefiting from the Act. Section 62, Clause 36 was presented by Transport for Cape Town (TCT) regarding proof of insurance and the Road Accident Fund. Proof of insurance was still an important argument, and should not be based on fault or no fault. Insurance was important and useful. Page 10 about the cut-off date of the procedure and acceptance date of the Bill placed the procedure under immense pressure, so it was necessary to deal with this as soon as possible. The situation with Uber should have taught the DoT a big lesson, with the Act having gaps that were ‘outsmarted’ by people and systems that made money in South Africa. The Department must be specific regarding the tuk-tuks, to prescribe and regulate instead of leaving the owners and provinces to decide. Why could the DoT not take time to be specific and amend things, instead of leaving it to a later stage? The operating licences around commercial transport and the operating licence criteria and charter licence criteria must be dealt with specifically. The definition of specification and procedure should be separated when dealing with the ownership of vehicles. He requested clarity from the Department about the disposal of applications, where it had disagreed with the comment.

Mr M Sibande (ANC) said that he was concerned about pages 11 to 15. He wanted to know if the Department was promoting Uber. The public hearings showed that the transport operators were surprised about who Uber was and how it came about that they operated in South Africa at the expense of the South African taxi operators.

Mr Maswanganyi said that the DoT should bear with the fact that the acceptance process of the bill might take longer than expected. The public participation obligations required all stakeholders to be included in the process. He asked at which point the Minister would come on board to address the Committee. The timeframe of December 2016 would not be met, which meant that there must be interim measures to address the issue. He requested clarity on the position of MECs, which the Department did not object to. The issue of Uber was important, because they did not have an office or liability towards South Africans. Slide 33 on the presentation by the drivers was important for what had been brought forward by the drivers. The country could not have a system that did not economically empower its citizens. Uber had been seen to not empower anyone. In a developmental state, the state intervened directly to ensure that citizens were empowered. Uber was not empowering anyone and there were many drivers who were out of jobs while still owing money for the taxis that they still needed to pay for while business was down. Innovation was good, but it must not disempower South Africans. The bill must be in the interests of the people.

Mr L Ramatlakane (ANC) asked a question about the negotiated contracts. How was the DoT going to change that arrangement in the amendments? From the current responses, he did not see how the situation was going to be changed.

Department’s response

Mr Mokonyana responded on the process of the two bills. The two bills had come to Parliament around the same time, although one had been placed ahead of the other. The NLTA was behind the AARTO bill. All the comments and submissions had been made in the past two years, clause by clause, in terms of the amendments. Where it said the principal act would not be found in the new bill, this was because that was what people wished should be contained. The Committee could check with all the stakeholders about the public participation processes that had taken place. If the Committee felt that the consultations were not enough, they were at liberty to call for more submissions.

The Department was not legislating for Uber. It had been approached by Uber more than once and had been consistent about not creating a different dispensation for it. The Uber model had obtained its operating licences because the vehicle must be owned by a person who would be responsible for whatever happened.

The issue of third party insurance had been removed from legislation because it was in contradiction with the Road Accident Fund. Where one did not claim from the RAF, then one could claim from insurance, but one definitely could not benefit twice.

The date of December was a problem, because time was not on the side of ensuring the deadline was met. The Department was seeking a legal opinion to find a way to deal with the time deadline.

The Labour Relations Act covered the employer-employee relationship and the contract thereof. The Department received a lot of complaints, which they forward to the relevant authorities.

The rest of the responses would be sent to the Committee in the interests of time.

AARTO Bill

Mr Maswanganyi asked if the details of the operations of the Appeals Tribunal should be included in the bill. The demerits system was properly covered regarding the withdrawal of drivers’ licences or discs.

Mr Sibande requested clarity on the financial implications of the Tribunal, and what budget would be required for the proper functioning of the tribunal and the secretariat. If the Office of the Registrar was to handle the secretariat’s functions, how would this affect the functions of the Office of the Registrar?

Ms S Xego (ANC) appreciated the work in progress, but said that she was concerned about the Minister being given the right to appoint members to the Tribunal. The section about the person being removed from public office was not sufficient, and an addition must be made to clarify the situation. Page 11 talked about the presence of 50% members for a meeting to go forward, yet only five people would be appointed. How would the “half a person” be addressed?

Mr Hunsinger said that submissions had been requested from City of Johannesburg and the City of Tshwane on the progress of the pilot projects. What were the financial implications of implementing the bill in the local municipalities? The suggestions given around rehabilitation mechanisms had disappeared from the Bill.

Advocate Mdu Masombuka, Chief Director: Legal Services, DOT, responded on the issue of the Tribunal, and said employees of the Department would provide the secretariat duties of the Tribunal. The challenge would always be to deal with the substantive matters of the Act in the amendments, and allow the regulations to deal with the rest. The DoT could not put a blanket description for the removal of members, and an indication of key issues relating to good governance practice must be stated. The financial implications had been taken into consideration. The Department was wary of coming up with an additional state entity, which was why the Tribunal would be placed within the DoT so that the secretariat issues were addressed sufficiently there. The Tribunal could also be run from the office of the Director-General. Regarding the inputs from the implementing authorities, the Department recognised that SALGA was an important institution and represented the views of all the municipalities. The rehabilitation programmes had been included in Section 4, although the issue about the unnecessary trauma caused by performing community service at government mortuaries had not been resolved.

The meeting was adjourned.