National Land Transport Amendment Bill [B7-2016]: briefing

Meeting report

National Land Transport Amendment Bill [B7-2016]: Department of Transport (DOT) briefing
Mr Mathabatha Mokonyama, DOT Acting Director-General, stated that a number of issues, mostly technical in nature, had necessitated amendment of the Act. The principal Act was promulgated in December 2009 for the purpose of the FIFA World Cup 2010 but there were developments that necessitated changes in order to improve service delivery. Three years on when the department started implementing the principal Act, it realised there was a need for changes. There are unintended consequences that it wanted to correct. However also it wanted to tighten and clean up the legislation. The world was constantly moving, and there were innovations that required changes to the Act.

The amendment of the principal Act went through various processes, including a workshop to discuss aspects for inclusion in the Bill, consulting a wide range of stakeholders, receiving and considering comments, and seeking approval from Cabinet. The Bill was tabled in mid-April 2017 and the Department could have briefed the Committee on the Bill earlier, but it was not possible as the Committee was dealing with other important matters.

Mr Hamat Patel, Chief Director: Public Transport Regulation, took the Committee through presentation. The presentation focussed on the background, the main reasons for the Bill, definitions, functions of the Minister, regulations by the Minister, functions of MECs, regulations of MECs, accessible transport and non-motorised transport (NMT), responsibilities of spheres of government, impartiality, intermodal planning committee, municipal regulatory entities, the National Public Transportation Regulator, provincial regulatory entities, municipal land transport funds, rationalisation of public transport services, negotiated contracts, old order contacts, rationalisation of services, operating licences, metered taxis, charter and staff services, operating licences (general and cross-border transport), tourism transport, general amendments and amendments of other Acts.

Mr Patel noted that the National Land Transport Act (NLTA) was passed to further the process of transforming and restructuring the national land transport system started by the previous Transition Act (NLTTA). The Bill provided for developments since 2009, such as rolling out of the 2007 Public Transport Strategy. The Act has met with much success in achieving its objectives, such as consolidating transport functions at the local level. There were also technical issues that had required amendment in the Act.

Mr Patel noted main reasons for the Amendment Bill are:
• To provide for NMT and accessible transport – in line with international best practice.
• To revise some of the contracting arrangements for public transport services.
• To clarify the functions of the spheres of government.
• To provide for electronic hailing (e-hailing) of taxis.
• To empower the Minister to delay the implementation of the Act, e.g. while contracting arrangements were put in place.
• To correct errors and to address the consequential amendments.

Mr Patel went through clauses of the Bill (see attachment).

Mr Patel noted that there were no additional financial implications that were not already envisaged by the principal Act. This was because the Bill merely proposed clarification on the roles and powers as well as expansions on definitions. It was of the opinion that the Bill ought to be dealt with in accordance with the procedure established by section 76 of the Constitution as it dealt with “public transport” envisaged in schedule 4 to the Constitution.

Discussion
Ms N Mazzone (DA) said that the main problem across South Africa was the strife between the established taxi industry and new e-taxi services such as Uber and Taxify. She noticed that this was included in the definition of e-hailing. How did DOT see this problem escalating or coming to a close with the advent of the Act being amended? Did it foresee more issues developing that would require regulation at later stage?  

Mr T Mulaudzi (EFF) referred to the clauses giving the Minister power to make regulations and the MECs power to make regulations. This would have a negative impact on the national uniformity of regulations. In working towards uniform regulations, it should require only the Minister to make regulations. South Africa was not a federal but a unitary state. It had one government.

Mr Mulaudzi asked who the planning authorities were in clause 6. In clause 7, he asked if the Department would have its own contracts for public transport services. In clause 8, he found the promotion of impartiality problematic as police and traffic officers were the only public servants included in the list of persons who might not have a financial or business interest in the public transport industry. He was of the view that other public servants, such as judges should be included in the list. In clause 35, he commented that temporary licences should not only be issued by district offices. Municipal offices should also issue them as this would make it easier for the people, especially in the rural areas, to have access to them. In clause 36, why was DOT stating that operator no longer needed to submit proof of insurance? What could be “very limited circumstances” in which operator could be sued under the Road Accident Fund? This should be clear in the Bill given that the law ought to be clear and unambiguous. What were those circumstances under which proof of insurance would be required? He asked why the Road Traffic Infringement Agency (RTIA) was not consulted. RTIA should be consulted because it would deal with those road users who would infringe transport regulations.

Mr L Ramatlakane (ANC) asked what the principal Act said about “planning authorities” and what the transitional contract meant. What did old and new order contract meant? What did municipality lack of capacity mean or refer to? Was it lack of capacity in authority in terms of planning? Was it a joint capacity? Did DOT take legal advice on the provision about impartiality? Impartiality was tied to prohibition of certain public servants engaging in certain activities. This prohibition gave rise to a constitutional problem. In clause 9, what was “Intermodal Planning Committee” (IPC)? Why not call it integrated public transport committee? What was the authority of IPC or where was it borrowed from? Was the IPC introduced to replace the "integratedness" of the transport services? He asked for clarity on stopgap contracts. Should there not be a predetermined percentage? This would facilitate the monitoring and evaluation of implementation.

Mr M Sibande (ANC) welcomed the presentation. He said that DOT should minimise the use of acronyms in the presentation. Why did DOT consult Uber and Taxify? Who are they? On what basis were they consulted? These two entities just provided a network and they were not structures. Why were they being recognised? They were not contributing to the development of the taxi industry. With due respect, Uber and Taxify should not be consulted. Referring to the power vested in both the Minister and MEC to regulate, he agreed with Mr Mulaudzi who noted that South Africa was not a federal state. What worried him was that if such were given power, they would continue to isolate certain people. Powers should not be extended to MEC and municipalities. He was also worried about illegal taxi operators who took a taxi route they should not take. He was not really okay with clause 17 that a provincial land transport framework (PLTF) must be updated every five years, as opposed to the current two years. Why should it be removed?

The Chairperson asked if the Bill would be able to address the current challenges in public transportation services. The industry had elements of violence but also had limitless opportunities for radical economic transformation. How do DOT see the Bill assisting radical economic transformation and the Bus Rapid Transport (BRT) concept if account was given to the fact that the taxi industry was characterised by violence. She anticipated a holistic integrated public transport in the country. The impartiality clause would give rise to a constitutional challenge, especially where it forebade public servants from doing business with government. Was this tested constitutionally? Why was DOT selecting some public servants? Why should impartiality be restricted to traffic officers? What did impartiality mean?

In his response, Mr Mokonyana agreed that most of acronyms were not explained and this would be improved in future presentations. He noted that a number of stakeholders were consulted and that he had been in touch with metered taxi operators. On impartiality, he noted that the issue was not a new phenomenon because it featured in the principal Act. Traffic officers were selected due to the nature of the work they do. The constitutionality of impartiality was tested. DOT advice from the State Law Advisors who confirmed that the provision of impartiality was constitutional. Judges were not placed on the list simply because there was a common law rule stating that they could not adjudicate a matter in which they had an interest. People on the list were further elaborated on in the Act. The question of impartiality was also addressed in the Public Service Act. He noted that the phrase “planning authorities” was defined in the principal Act. They included municipalities, provincial and national governments as well as other entities concerned with planning.

Mr Mokonyana noted that the greatest challenge in public transportation services was resources. DOT had a problem with resources. If they had enough money there was never going to be any need for them to be in the situation they were in, where monopolies still existed in the provinces. The study done indicated that if they were to cover the entire public transport sector, they needed to invest two times more than they were doing. They were stuck with these old order contracts held by companies such as Putco, Golden Arrow, Great North Transport, and so on. There was a problem with monopolising transportation. In each and every province, there was a big company providing public transport services. One might find small companies in each province; some of which might not be operating at all. The question of being stuck in old contracts needed to be addressed. In this way, non-ending contracts had been translated into interim or transitional contracts. Clause 41 to 47 explained how we could be in transit and how the transition could work. National and provincial governments should have the power to enter into contracts. The lower levels should be able to do the same. The Bill introduced the contracting authority.

On consultation, he noted that DOT identified people to be consulted. A wide range of people consulted included stakeholders who responded to government notices. The consulted stakeholders were listed under the section on consultation in the Memorandum. Uber was a coincidence as it provided technology service. Members should clearly take note that DOT was not amending the Bill for the sake of Uber. The question of e-hailing was introduced in 2009. Uber was not yet introduced in the country. Rather, e-hailing was being regulated in order to encourage the modernisation of public transport services. There was no provision in the Bill dedicated to Uber taxi services. However, this type of service should comprehensively be regulated in order to fight against abuse of services. This would be possible if certain limitations were introduced. There was a need to regulate charter and staff services, e-hailing and metered taxi services. He noted that the application for meter taxi licence was very difficult as well as for a meter taxi operation. It was different when it came to Uber and Taxify. Metered taxi were confined to a region or city whereas Uber could go anywhere in the country. That is why DOT called upon interested parties to come and speak on the gaps exposed by Uber operations. In the view of DOT, anyone who was involved in public transport services should have a licence and be easily identified. This would help traffic officers to do their work. It was difficult to enforce the law when it came to Uber, given that Uber could contract anybody who had a vehicle. The Bill was stating that this should stop. Only people who had licence could be contracted by Uber and Taxify and similar companies. The branding of all taxis was a must. It was recommended in the Bill that all taxis should have identification mark, required for public transport services. It was, for example, within this context that the MEC had the power to ensure that vehicles were branded for identification. Branding should be localised. He also noted that s133 of the Constitution vested in the Executive Council of a province to regulate certain matters. Similarly, the principal Act gave power to provinces to regulate public transport services.

The Parliamentary Legal Advisor noted that DOT intended to amend section 12 of the Act which was not included in the Amendment Bill. This would require seeking permission from the National Assembly according to Parliamentary Rules.

Mr Mokonyana agreed that further amendments would require due process.

The Chairperson noted there were no further questions and the meeting was adjourned.