AARTO Amendment Bill: Portfolio Committee proposed amendments

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27 June 2017
Chairperson: Ms D Magadzi (ANC)
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Meeting Summary

The Committee was briefed by a Parliamentary Legal Adviser on the drafting changes to the Portfolio Committee Proposed Amendments to AARTO Amendment Bill (A List).

The Committee discussed at length the Tribunal and the responsibility of taxi owners to ascertain the addresses of their drivers and how difficult this was in certain cases.  The Committee made several more changes to the A List of Committee proposed amendments. These were to be drafted and submitted to committee members later that afternoon so they could peruse them before a final meeting this term on 28 June. Members were reminded that the Committee had to provide a reason if it did not reach agreement on the Bill by 28 June 2017.

The Committee would approve the drafting of corrections the next day and review the timeframe for the Bill.

Meeting report

Portfolio Committee Proposed Amendments to AARTO Amendment Bill (A list)
Ms Noluthando Mpikashe, Parliamentary Legal Adviser, noted the drafted changes to the A List which contained the Committee's proposed amendments to the AARTO Amendment Bill.

Clause 1 Amending section 1 Definitions
She noted the changes to the definitions in Clause 1 of: ‘acceptable identification’, ‘date of service’, ‘electronic service', ‘habitual infringer’, ‘infringement’, ‘issuing authority’. The definition of ‘sheriff’ was deleted. The definition of ‘Tribunal’ was inserted.

The Chairperson asked the Committee if there were any concerns with Clause 1 and the Committee indicated that they were satisfied.

Mr Japh Chuwe, CEO: Road Traffic Infringement Agency (RTIA), suggested adding the phrase ‘and transport legislation’ to the definition of 'infringement' in Clause 1(e). He also made a suggestion about the use of ‘or’ in the definition of ‘issuing authority' in Clause 1(f).

Mr T Mpanza (ANC) asked for clarity on the use of the existing phrase ‘and any road traffic legislation’ in Clause 1(e).

Mr Chuwe replied that the use of the phrase was for consistency.

Clause 2 Amendment of section 4 of Act 46 of 1998
Ms Mpikashe indicated the drafted changes (see document).

Mr Mpanza said that for consistency the phrase ‘and transport legislation’ should be included in Clause 2.

New Clause: Amendment of section 11 of Act 46 of 1998
Ms Mpikashe noted the new clause and the changes made to section 11, especially that the wording 'in consultation with the Minister of Finance' had been changed to ‘after consultation with the Minister.

New Clause: Repeal of section 12 of Act 46 of 1998
Ms Mpikashe noted the new clause repealing section 12.

New Clause: Amendment of s 17 of Act 46 of 1998, as amended by s 8 of Act 72 of 2002
Ms Mpikashe noted the changes made in the new clause amending section 17, particularly the way to deal with a taxi owner who had not ascertained the full names, residential, postal and where applicable business and e-mail address of a taxi driver infringer in Clause 6(c) amending section 17(5).

Mr L Ramatlakane (ANC) remarked that taxi owners had made a plea for concessions in section 17(5) because the residential or postal address of some taxi drivers could not be verified. He asked RTIA to explain the implications of the New Clause for taxi owners and asked if RTIA would change its position on the penalties for such taxi owners.

The Chairperson also made a plea for taxi owners because some citizens lived in informal settlements where addresses were difficult to ascertain.

Mr Chuwe replied that after the engagements, RTIA had made some concessions however not all the concessions had been added. The concessions were: removal of the specific instrument on demerit points for owners; removal of the requirements to verify addresses, increasing the threshold of demerit points that could be obtained before the driver’s licence was withdrawn and clarified that vehicle infringements would be the responsibility of the owner.

The Chairperson asked if Members had any proposed amendments to the New Clause.

Mr Ramatlakane asked RTIA to clarify the implications of not being able to verify the residential or postal addresses on the employability of the driver. He suggested that RTIA should not be strict on residential addresses but should regard the residential or postal address of the taxi owner as sufficient.

Mr Thabo Tsholetsane, RTIA COO, stated that taxi associations had informed RTIA of the difficulty in conforming to the requirement of residential or postal address hence the clause needs to be amended. He remarked that owners could escape liability by claiming that they do not have the address of the taxi driver. However he understood that in practice some drivers did not have addresses that could be verified but in such cases the address of the owner would be used to issue notices to the infringer.

Mr Chuwe replied that RTIA had a provision that allowed the driver to give the address of his local district.

Mr Ramatlakane remarked that he could accept this provision in terms of an alternative address but RTIA had already stated that an infringement has been committed if the owner could not provide the address of the driver hence some taxis would not be on the road. He asked RTIA to explain why it should introduce a Bill that made drivers unemployable because the driver did not have a residential or postal address.

The Chairperson said that a Constitutional Court judgement was given in favour of using signposts hung on a tree recently to describe a residential address.

Mr M Sibande (ANC) said that the Committee and the team should exercise caution in dealing with such issues. In the short term the concerns for holding the infringer accountable were true but in the long term the law would assist in catching the infringer.

Ms S Xego (ANC) stated that it was true that some people did not have a verifiable residential address but suggested that the clause should omit ‘and’ and read 'residential or postal address".

Mr L Shelembe (IFP) said the Committee could not allow people to exploit the situation. He suggested that RTIA should ask for proof of residence or postal address.

Mr Mpanza stated that the Committee could not exclude people from employment because they did not have addresses but infringers might run away from liability. However, people might have addresses for example through the chiefs or local authority. Similarly almost everyone has a cell phone that had been subjected to the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) hence the address could be retrieved from RICA.

Ms Mpikashe suggested that the clause should read the owner of a vehicle that allows a driver to drive his vehicle without address was liable for punishment and insert the word ‘and’ instead of the word ‘or’. However, she pointed out that the requirements for a professional driving permit (PrDP) require that you must have a proof of address even if you live in an informal settlement.

New Clause: Amendment of section 18 of Act 46 of 1998, as amended by Act 72 of 2000
Ms Mpikashe  indicated the amendments that stated the prescribed manner and time frames within which infringement notices could be re-issued to an infringer.

Mr C Hunsinger (DA) asked for clarity on the section that allowed for the re-issue of a notice within 180 days. He asked RTIA to state plans that would not allow a time lag of 180 days. He asked RTIA to be more specific on the payment of penalty and fees by stating that fees needed to be paid in full while penalties could be paid in instalments.

Mr Tsholetsane replied that the 180 days provision was for the infringers’ benefit. Although it was initially 40 days, infringers were exploiting the situation. He referred him to page 9 of the Proposed Amendments where the New Clause amended section 18(7)(a) and (b) which provided clarity on how fees should be paid.

Clause 5 Amendment of s 19B of Act 46, as inserted by s 11 of Act 72 of 2002
The changes were explained on how an enforcement order would be issued to an infringer.

Clause 6 Amendment of s 20 of Act 46 of 1998, as amended by s 12 of Act 72 of 2002
The changes were explained.

The Committee agreed to the changes.

Clause 8 amending section 22
Section 22 of the principal Act would now be repealed instead of amended.

New Clause: Clause 9 amending section 25
Ms Mpikashe said that as a result of RTIA concerns about the 180 days, a consequential amendment would be introduced in the A List. A New Clause was inserted to amend Section 25 of the principal Act that specified how a juristic person may be disqualified after incurring excess demerit points based on infringements.

Mr Ramatlakane agreed but stated that Clause 9(1) to (5) must be consistent.

New Clause: Amendment of section 29
Ms Mpikashe indicated that a New Clause which amended Section 29 of the principal Act had been added.

New Clause: Clause 10 Insertion of heading ‘Chapter IVA Appeals Tribunal
New Clause: Clause 11 Insertion of new chapter
Ms Mpikashe noted the two new clauses introducing a new heading and chapter.

Section 29A Establishment and constitution of the Tribunal
Mr Hunsinger suggested that the word ‘as’ should be substituted for the word ‘of’ in section 29A(6)(b)(ii).

Ms Xego asked Ms Mpikashe to educate the Committee on why the President could only appoint a Tribunal Member based on advice from the Minister of Transport.

Ms Mpikashe replied that section 29A(3) and (4) gave the explanation.

Mr Mpanza stated that section 29A(3) was not consistent with 29A(4) because (4) did not clarify that members of the Appeals Tribunal could be women or men.

The Chairperson said that the omission would be corrected by Ms Mpikashe.

Mr Shelembe asked Ms Mpikashe to clarify the party referred to in 29A(6)(a).

Ms Mpikashe replied that it was a political party.

Section 29B Functions of the Tribunal
Ms Mpikashe indicated the functions.

Section 29C Qualifications of members of Tribunal
Ms Mpikashe indicated the qualifications of members of the Tribunal.

Mr Ramatlakane asked why RTIA had specified that a qualification for Tribunal members should be experience in road infringement matters because South Africa might not have a pool of such professionals.

Mr Chuwe observed that it was a question of consistency and he suggested deleting ‘infringement’.

Section 29D Conditions of appointment and terms of office of members
Ms Mpikashe outlined the clause.

Mr Shelembe asked RTIA to explain why the period of service for Tribunal members was five years.

The Chairperson said that the provision was based on law so the Tribunal members would continue to serve for five years even when a new President was sworn in.

Mr Hunsinger suggested that the knowledge base should include experience to widen the scope.

Ms Xego suggested that the criteria should include having driving skills.

Mr Sibande asked RTIA how it could accommodate people that had qualifications but no experience.

Mr Tsholetsane replied that section 29C(2) stated all the types of qualifications required.

Mr Hunsinger suggested that a distinction should be made between the core competencies and other requirements.

Mr Ramatlakane suggested the terminology ‘experience and knowledge’ should be used.

Section 29E Vacancies in Tribunal
Ms Mpikashe noted how vacancies could be filled.

Mr Hunsinger asked why the Bill did not cover the remuneration rates for different Tribunal members.

Mr Tsholetsane replied that the remuneration of members in these kinds of tribunals was set by the Minister of Finance but the Minister of Transport could liaise with the Finance Minister to influence the remuneration.

Section 29F Deputy Chairperson of the Tribunal
Ms Mpikashe stated the guidelines for appointing the Deputy Chairperson.

The Committee agreed to the drafting.

Section 29G Sittings of the Tribunal
Ms Mpikashe stated the guidelines for Tribunal sittings.

Mr Ramatlakane said that the Bill needed to be clear on how many Members would constitute a sitting of the Tribunal. He stated that 29G(2) should read 51% instead of 50%.

Section 29H Decisions of the Tribunal
Ms Mpikashe stated how the Tribunal would make decisions.

Mr Sibande asked how the Tribunal could make a decision when it was not empowered by the Constitution.

Mr Hunsinger asked how long a case could remain pending or be set aside.

Mr Shelembe asked about the impact on decisions if the majority of Tribunal Members left before the end of the meeting.

Mr Ramatlakane asked the team to clarify the impact of registered majority on the decisions of the Tribunal.

Mr Tsholetsane replied that a case could be set aside by the representative officer. Pending case meant that the consequence of the case was put aside until the case was decided.

Ms Mpikashe stated the impact of registered majority was that if a Tribunal Member left the meeting, the decisions of the Tribunal would be invalid if a quorum was not formed. However the decision may not be invalid if the Member was not supposed to be present. This could be due to cases when the service period of the Member had expired and the member was not aware.

Ms Xego asked for clarity on giving one month notice when a Member wanted to resign immediately.

Mr G Radebe (ANC) asked about the impact of a Member leaving the meeting to avoid Members reaching a decision.

The Chairperson said that Mr Radebe’s question was not applicable in the instance presented to the Committee.

Mr Ramatlakane suggested that Tribunal Members had to be time-constrained to ensure that the Tribunal was stable hence the Tribunal members should not be encouraged resign immediately.

Mr Tsholetsane stated that even when the Member has given one month notice for resigning, his vote is still valid but the Bill would not constrain people to leave if they wanted to leave immediately. The Bill would make a provision to fill vacancies in the short term for situations of immediate resignation.

Mr Hunsinger said that during the time of decision making, a 51% quorum needed to be maintained. Hence 29H(2) would be a provision that allowed the decisions taken by Tribunal Members when a Member had been fired and he did not know.

Section 29I Appeals against the Tribunal
Ms Mpikashe stated the process for appeals.

Section 29J Administrative work of the Tribunal
The Committee agreed with the clause.

The RTIA Company Secretary, Adv Mncedisi Bilikwana, asked if section 29J would not create an implication of independence by the employees designated for administrative work.

Mr Sibande stated that he agreed with section 29J.

Mr Hunsinger said that the clause was fair and would ensure that there was consequence management for employees designated for administrative work.

Mr Ramatlakane suggested that the phrase could be changed to ‘designated officials’.

The Chairperson agreed with Mr Ramatlakane’s suggestion.

Clause 9
Ms Mpikashe indicated the phrase ‘as prescribed including postage or electronic services’ had been retracted and substituted with ‘by personal, postage and electronic services as prescribed’.

Clause 10 Substitution of section 32
Ms Mpikashe stated the process for apportionment of penalties.

Mr Tsholetsane said that the phrase ‘or monies’ should be removed from 32(2).

The Chairperson agreed.

New Clause Amendment to section 34
Ms Mpikashe stated this included the insertion of paragraph (h) which read ‘the manner in which an infringement notice, courtesy letter or infringement order could be reissued’.

Clause 12
The use of “board” would be changed to “Board” in the Act.

Long Title
This had been amended to reflect the additional changes to the Bill.

Mr Hunsinger expressed concern about the general elements of the AARTO Amendment Bill because the essence of the AARTO Amendment Bill was to change the attitude of people.

The Chairperson reminded Members that the AARTO Amendment Bill and the A List would be considered the next day.

Mr Shelembe asked for further clarification on the demerit points, the difference between a driver that did not have a licence and a driver that did not have his licence readily available. He also asked how RTIA could ensure that an infringer accessed notices if his cell phone was lost or stolen.

The Chairperson replied that RTIA had earlier dealt with these concerns.

Mr Sibande asked RTIA to state how Provinces and Metropolitan areas complied with the new AARTO Amendment Bill.

Mr Radebe asked what would happen if an interim Appeals Tribunal had to be appointed because Members were dismissed.

Mr Ramatlakane said that he was pleased with the contributions of committee members but asked that the comments should deal with matters that affected the A list.

The Chairperson stated that the issues raised by members could be dealt with outside the meeting. She explained further processes that the AARTO Amendment Bill needed to follow before being approved. The Chairperson asked the Committee Secretary to give the Committee an update on the logistics for the oversight visit.

The Committee Secretary highlighted the progress on the oversight visit. She also stated that in terms the Rules of Parliament, the Committee had to give a reason why it did not reach an agreement on the AARTO Amendment Bill if the deliberations exceeded 28 June 2017.

Mr Hunsinger suggested that the timeframes could be reviewed on 28 June 2017.

The Committee Secretary stated that Adv Mpikashe would send the A list containing the corrections discussed in this meeting by 4.00pm and suggested that Members needed to work through the corrected A List before the meeting on 28 June 2017.

The Chairperson resolved that further decisions on the AARTO Amendment Bill would be made in the next meeting.

The meeting was adjourned.

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