The Committee went through the amended Portfolio Committee amendments to the Administrative Adjudication of Road Traffic Offences Amendment (AARTO) Bill compiled from recent discussions, with the assistance of the Road Traffic Infringement Agency (RTIA). The Portfolio Committee amendments were approved and these would be published for public comment. Provisionally the closing date for public submissions was 10 March 2017.
The first amendment was based on the input received the previous week on whether the President or the Minister should make appointments to the Appeals Tribunal. The clause on the compilation of the Appeals Tribunal was amended to read: “The Tribunal would consist of a Chairperson and 8 other women or men appointed by the President, on a part time basis, on the recommendation of the Minister, from among persons nominated by the Minister in response to a public call for nominations as prescribed from among persons nominated by the Minister in response to a public call for nominations.” The President would confirm the appointments based on the recommendations of the Minister. The Minister of Finance and the Board would be consulted about the remuneration of the RTIA. Clause 29G was amended as follows: “The Tribunal must sit on such days and during such hours and as such a place as the Chairperson may determine”.
The Committee discussed and reviewed its Programme, particularly about the PRASA. It was told that the Committee had been refused permission to go on its overseas study tour as it had legislative commitments which were considered a priority. This was questioned vigorously by the Committee and the Committee Researcher was requested to provide a motivation for the Committee’s overseas trip with specific areas to visit and motivations for each.
The Acting Chairperson said a letter had been sent to the Committee Chairperson from a Department of Transport official which raised a combination of issues. These issues raised were considered by their author as constitutional concerns that gravitated towards the unconstitutionality of the process of amending the Administration Adjudication of Road Traffic Offences Bill (AARTO). The author of this memorandum felt that he was blocked from having access to the Minister to discuss these concerns and therefore approached this Committee. The Acting Chairperson had engaged the author of this memorandum on the concerns around constitutionality. The memorandum had been circulated to all Members.
Mr M De Freitas (DA) said that his worry was why the author of the memorandum found it so difficult to present his point of view as part of the process. It was important to see the memorandum as it might contain something that the Committee might have overlooked.
Mr C Hunsinger (DA) said that he wanted to put it on record that the Committee appreciated that the Acting Chairperson shared this information because there was a choice involved in sharing the information and it was therefore an example of transparency.
The Acting Chairperson asked the Parliamentary Legal Advisor to take the meeting through the amended version of the A-list.
Ms Noluthando Mpikashe, Parliamentary Legal Advisor, said that the Road Traffic Infringement Agency (RTIA), the Department of Transport and the Legal team had met and tried to deal with the issues raised in the previous meeting. The places where amendments had been made in the Administrative Adjudication of Road Traffic Offences Amendment (AARTO) Bill would be concentrated on.
* The first amendment made was based on the input received last week on whether the President or the Minister should make appointments to the Appeals Tribunal.
* Clause 29A, which was on page 14 of the A list, was amended.
* There was a question about whether a minimum of 8 members were sufficient and there was still no clarity about this. The clause was amended to read: “The Tribunal would consist of a Chairperson and 8 other women or men appointed by the President, on a part time basis, on the recommendation of the Minister, from among persons nominated by the Minister in response to a public call for nominations as prescribed”. The President would confirm the appointments based on the recommendations of the Minister. The Minister would handle the whole process.
* There was an issue about the amendment of Clause 11. There was concern about who would decide on the remuneration of the RTIA. The Minister of Finance and the Board would be consulted about this. The Minister may not recommend salaries that were obviously above the budget that was given to the Agency.
* Due to concern expressed by Members about the sitting of the Tribunal, Clause 29G was amended as follows: “The Tribunal must sit on such days and during such hours and as such a place as the Chairperson may determine”.
* The other issue raised was how the Tribunal would be accessible to all provinces. There was even a suggestion that there should be a Tribunal in every province. On discussing this with the Agency, the Agency said that there would not be many appeals that the Tribunal would be dealing with because most of them were as a result of failure to deliver the notices. Now that everything would be dealt with electronically, that would not be an issue anymore as it would be possible to track if the person had received a notice.
She said that those were the most pertinent amendments. The policy issues would be dealt with by RTIA.
Adv Alma Nel said on the issue just referred to regarding the Tribunal, that 90% of representation being received right now was based on the fact that people had not received their notices in time. It was realised that there would be very few instances of people challenging the merits of the infringement itself.
Mr Hunsinger thanked the legal team for the work that had gone into the document since the last meeting. On the definition of ‘date of service’, he suggested that a sentence be considered in addition to what was already in sub section 2. It was necessary to add the following to Section 30: ‘for the date the infringer is regarded to have received the documentation in section 30(2)’. Because then the ‘gate’ would be closed, otherwise the infringer might never pick up the document once received. Under ‘habitual infringer’ Mr Hunsinger suggested that ‘who is not an operator in terms of Section 25’ be added.
Mr Hunsinger said there should be a definition of infringement in this context because the standard definition of infringement was: ‘infringement means any act or omission in contravention of this Act’. This should be taken away to include ‘or an offense in terms of any other road traffic transport legislation as prescribed as an infringement in term of this Act’.
The Parliamentary Legal Advisor (PLA) replied that the suggestions for the definitions were related to policy decisions that the Agency would have to consider.
In Section 6(B) where ‘a provincial administration’ appeared, Mr Hunsinger suggested that technical terms should be in brackets.
Mr Hunsinger recommended that Section 6(C) should be connected to ‘any other state institutions’ in D.
Mr Hunsinger referred to ‘Appeals Tribunal’ on page 14 and suggested that the word ‘Appeals’ should be dropped because this was known. The same held for Section 29A(1) where ‘Appeals Tribunal’ appeared again. In the section on the ‘Compilation of Tribunal’, the number eight should be a numeric character and ‘persons’ should replace men and women.
The PLA replied to the first suggestion made on Section 29A about removing ‘Appeals’ from Appeals Tribunal, saying the definition on page 4 stated ‘an Appeals Tribunal established by Section 29’. In drafting one had to start in Section 29 by stating the ‘Appeals Tribunal’ because one was establishing it in terms of Section 29, so the full name had to be given. She explained that words were used for numbers below 10. For numbers 10 and above numeric characters were used.
The Acting Chairperson asked Mr Hungsinger if he wanted these wording changes to be included at this stage of the process of finalising the A list.
Mr Hungsinger asked if the Acting Chairperson could offer more clarity about the process because everything was still subject to a public participation process. He asked that his contributions not be discarded, and he would still forward them to the Chairperson.
The Acting Chairperson said that these changes would be considered after the legal team had finalised the document.
Mr M Maswanganyi (ANC) said that in Section 25 the words ‘driver’ and ‘operator’ were used. He asked what each word meant.
Mr Thabo Tsholetsane Chief Operating Officer (COO) Road Traffic Infringement Agency (RTIA) said that the operator was a person who owned a fleet; and in terms of the Act there were contraventions and infringements that were related to the driver, and those that were related to the vehicle. Now if the driver was due to receive an infringement notice, that notice would be attached to the driver, not to the vehicle. In some instances there would be vehicle related infringements. An operator would not be held liable for actions of the driver.
Mr De Freitas referred to page 3 on the contravention of this Act and suggested that all the relevant legislation be listed.
The PLA replied that if any of the legislation listed was later repealed then amendments would have to be made to this Act again; that was the other danger of listing legislation.
The Acting Chairperson suggested that wording should reflect the correct apportionment of blame and responsibility. It should be written in such a way that the driver is offered some protection.
Mr Maswanyi asked for further clarity about ‘drivers’ and ‘operators’.
Mr Japh Chuwe, RTIA CEO, said that the challenge about this was related to which came first, the chicken or the egg. The Committee wanted to protect those who were generally disempowered. To answer this, one had to understand the legal principle which was this: there were two types of infringements, vehicle infringement and driver infringement. And the legal principle then stated that driver related infringements which were behavioural infringements would always go to the driver. The employer or operator could not be held liable for driver related infringements. Similarly the driver as employee cannot and should not be held accountable for an infringement by the employer/operator.
Mr Hunsinger said he wanted to go back to point about the listing of specific acts. Sub section 5 on page 3 dealt with infringement and showed the necessity to add more detail. One was dealing with a particular prerequisite – a regulation that dealt with infringement, therefore other acts should be listed so that under AARTO, this regulation could relate to an infringement. One could certainly list the offences in other acts because there was a need to convert the regulation into an infringement.
The Acting Chairperson suggested that perhaps offences could be listed in a separate section.
Mr De Freitas said that the offences were in other acts as well, hence the need for a list.
The Acting Chairperson suggested that this issued be flagged for a later discussion.
Mr T Mulaudzi (EFF) asked why there were no provincial tribunals.
The Acting Chairperson said this had been dealt with and that there were cost implications. He noted that the discussion on the A list has been exhausted and there was agreement that proposed Committee amendments should be published.
The A list was adopted.
The Committee Secretary said the proposed Committee amendments would be published in all official languages for 10 working days. The public comment period could be a three week period depending on the last day of the advertisement. Provisionally the closing date for public submissions was on the 10 March 2017.
The Acting Chairperson thanked all present for their contributions.
The Acting Chairperson said that two letters from Mr De Freitas had been received by the Committee Secretary. He said that the matters pertaining to the letters were recommended for inclusion in the Programme.
Mr De Freitas said that he was happy that the letters were being accommodated by the Committee.
Ms S Xego (ANC) asked who decided on what matters had to be included in the programme. She asked if it was not the Chairperson and the secretariat who decided on these matters. Whose prerogative was it to prioritise agenda items?
The Acting Chairperson replied that he was merely an interim chairperson and hence did not know the rules as to how decisions regarding the Programme were made. Committee members had the right to bring issues forward for consideration in the Programme.
Mr De Freitas said he wanted to clarify for other members that this was a humble request as a member of this Committee for matters pertaining to the letters to be included in the Programme.
The Acting Chairperson asked if Members agreed that the Committee Secretary should look and see where the Road Accident Fund (RAF) and Arrive Alive could or should be included in the Programme.
Mr De Freitas said there were a few items on the Programme that were scheduled for whole day sessions on days that Parliament was in plenary. This Committee was also considering a trip abroad. He asked for clarity about these issues.
The Acting Chairperson asked the Committee Secretary to walk the Committee through the Programme.
The Committee Secretary said the Programme was still in draft form and under consideration. There were certain matters that in terms of practice and administration needed to be prioritised. What needed to be prioritised was the third quarter expenditure of the Department of Transport. Normally that meeting took a lot of time and this was why there was only one agenda item. A new Bill tabled by the Department, the Road Accident Fund Amendment Bill [B3-2017]. Normally the briefing on a Bill did not take a long time so if Members wanted to factor in an additional agenda item on that day, this was possible.
On 7 March, there was a suggestion by the Content Advisor to have a briefing on the Modernisation Programme and increased vandalism. A decision had been taken by the Committee that there should be quarterly reports on the PRASA matter and she would not suggest any other meeting on that day.
On 14 March, the Committee would have written public feedback on the AARTO Bill so there was only the morning session on submissions.
From 22 to 30 March there were whole day meetings on the Bill. That period was set aside for Committee meetings and oversight. Therefore in terms of other agenda items, she suggested that a Friday morning be set aside for these.
With regard to the Study Tour, a letter had been received which would be circulated to all Members. This Committee was told that it was busy with legislation so it needed to prioritise legislation, so it was basically “grounded”.
The Acting Chairperson said that on 7 March the PRASA briefing was due to occur. There was an outstanding briefing that the Committee was supposed to receive last September about the status of Metro Rail. This briefing did not take place. In the Western Cape there were a number of problems regarding the trains and if discussions on Modernisation took place then the real issues would be neglected.
On the overseas trip and the issue of being grounded, he said that the Committee would see the letter. It could not be an arbitrary decision that the Committee was grounded because of legislation. It did not deal with legislation every day, and did it mean that it would not go on a study tour for the next five years? This matter would be reported to the Chairperson. He did not think that this was acceptable.
Mr G Radebe (ANC) said that PRASA and Modernisation could be shifted to another time. The Committee also had to be updated on whether the PRASA board members were repaying their money or not. There were issues that were also left out like the burning of trains, cables being cut, complaints from the public about train delays and not enough trains. What was happening? Updates were needed.
Mr Radebe questioned how it can be said that because of legislation this Committee could not go on overseas trips. Many other Committees were busy with legislation and still went on study tours.
Mr De Freitas asked who had made the decision to ground this Committee because it was busy with legislation. The point of these Study Tours was to enhance one’s understanding of legislation, learn about best practice and apply this locally.
Mr Hunsinger said that he wanted to add on specific issues for PRASA to address. He asked if the Committee could decide beforehand on topics as there was a great need to get to specifics. The Committee needed to specify what it wanted PRASA to comment on.
The Acting Chairperson said there was agreement that there was no rationale for grounding the Committee because it was busy with legislation. This did not make sense. It was now 2017 and the Committee had an oversight responsibility towards PRASA. R151 billion was set aside for trains in Brazil and this Committee needed to follow the money. In the next few years PRASA was to spend R172 billion on its Modernisation programme. This was irresponsible. The Auditor General would be upset about this. A letter of motivation would be written and would include issues about Brazil and PRASA so that a well-motivated case could be presented.
The Committee Secretary would amend the Programme which will be received in preparation for the next meeting.
Mr Radebe asked if there could be feedback about the Study Tour at the next meeting.
The Acting Chairperson suggested that next week the researcher provide a motivation for the Committee’s overseas trip with specific areas to visit and motivations for each.
The minutes of 29 November 2016 and 31 January 2017 were adopted.
The meeting was adjourned.
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