Documents awaited: Committee Report on Northern Cape oversight visit; PRASA Inquiry terms of reference
The Committee expressed concern that the Acting Director General was not available for the fifth consecutive meeting on e-hailing transport services in the National Land Transport Amendment Bill. This had delayed the processing of the Bill. A letter would be written to the Minister.
The Committee considered the transitional provision for e-hailing transport services such as Uber in the NLTA Bill with the aim of finalising the Amendment Bill the following week. The State and Parliamentary Legal Advisers said the proposal addressed the guidelines for the licence application of e-hailing service operators within specified timeframes. They said that the Department of Transport (DoT) had a different version but they maintained that their version which incorporated only e-hailing/Uber operators was in line with legal processes. The DoT draft was a longer version and included minibus services as a public transport service that needed to be regulated as well as Uber under metered taxis. The Committee gave time to allow the Legal Advisers and the Department of Transport to caucus and ensure that they had a common ground. After the engagement, both teams agreed that Uber and minibus services had been categorised as shuttles and proposed a regulation based on middle ground. However, the Content Adviser pointed out that Uber was not yet categorised and there was no formal regulation on e-hailing services.
Members observed that any municipality was not aware that an e-hailing service was categorised under shuttles; the present legislation did not prohibit a party from operating five vehicles at the same time; it did not ask for the party’s ID, nor specify the number plates. This could abuse the regulation because a vacuum existed in the present law that allowed an operator to operate different vehicles at the same time. Members also said that e-hailing services should be segmented to ensure that they did not operate other routes, The Committee agreed that the e-hailing service had to have a specific clause that addressed its operations and its requirements separately. This clause had to ensure that regulatory officers would be empowered to attend to permit applications. Permits would be granted on the basis of radius because of the specifications of e-hailing services. The DoT agreed to draft this clause.
There was a briefing on the Private Member’s Bill: South African National Roads Agency Limited and National Roads Amendment Bill [B20-2017]. It seeks to amend the SANRAL Act to ensure the public‚ provincial legislatures and local councils are reasonably consulted about proposed toll roads. It will facilitate democratic involvement ‘by requiring a majority vote in favour of the proposed declaration in the relevant provincial legislature’. It also proposes the construction and maintenance of an alternative road for those who cannot afford to pay toll fees. The Bill aims to ensure consideration of the environmental and socio-economic impact to prevent another e-tolls fiasco‚ as seen in Gauteng‚ which cost billions of rand and went ahead without any meaningful input from the public and relevant stakeholders. The decision to establish toll roads had to be an open and transparent process‚ and not a closed decision taken solely by SANRAL. The ill-conceived e-tolls from the outset excluded the poor and it has become a financial burden on hardworking residents.
SANRAL was given the opportunity to respond to the Private Member’s Bill. It did not want it to be tagged as a Section 76 Bill affecting the provinces as national roads was not a provincial competence. The cost of providing an alternative road was not part of its mandate. SANRAL maintained that sufficient consultation and public participation was obtained for the Gauteng e-toll.
The Committee discussed that an electronic toll was expensive and seemed elitist hence people in communities had been openly defying it; they asked about the impact on job losses if electronic tolls were removed; consultations must be done with the premier, the mayor and the community before any decision affecting the community is made. More work was needed before the Committee could make a decision on the desirability of the Private Member’s Bill.
Members expressed concerns that they had been receiving anonymous threatening messages about the pending PRASA investigation. The Committee agreed that nothing that will stop it from holding PRASA officials accountable despite the messages of intimidation. The Chairperson read out one such message and said she had reported it to the police. The Committee resolved that it would do its work without fear or favour, and would not shy away from facing what was real and in the interest of South Africa. The terms of reference for the PRASA Inquiry were finalised.
The Chairperson informed Members that Mr Hament Patel had conveyed the apologies of Mr Mathabatha Mokonyama, Acting Director General of the Department of Transport (DoT). She expressed concern that the head of public transport had not attended any of the meetings on the National Land Transport Amendment Bill [B7-2016]. His non-appearance had led to delays in finalising the Bill. She asked Members to comment.
Mr T Mpanza (ANC) said the Committee should find a way to summon Mr Mokonyama through the Minister.
The Chairperson said she had forgotten to mention that she had already written a letter addressed to the Minister about Mr Mokonyama’s non-attendance but she had not sent it yet.
Mr L Ramatlakane (ANC) agreed with the proposal to send a letter to the Minister to ensure that Mr Mokonyama attended. He added that Members had been receiving messages to influence its engagement on PRASA. He remarked that the messages would not deter Members from carrying out the PRASA Inquiry.
The Chairperson said Mr Ramatlakane was correct as she had received the same kind of messages. She said the Committee would hold PRASA management accountable for the intimidating messages and would not be intimidated by any party while performing its duties. She knew that some other Members had received the messages but would not report these.
Mr M de Freitas (DA) said Members who had received such intimidating messages had to make them known to the Committee and Parliament. He appreciated Mr Ramatlakane for courage in reporting the intimidating messages to the Committee.
The Chairperson read one of the messages sent to her from the United Commuters Voice (UCV). The message indicated that UCV was deeply saddened that the Committee had communicated with the PRASA board to reinstate Mr Richard Walker as the Western Cape Regional Manager after his suspension. UCV claimed that Mr Walker had led to loss of jobs, robberies and nepotism. The message said that bringing in Mr Walker was wrong and advised the Chairperson to meet with stakeholders before he was reinstated. She said that she as the Committee Chairperson could not influence the reinstatement of Mr Walker. She had reported the matter and sent the message to the police.
Mr de Freitas said the Chairperson had done the right thing by reporting it to the police but said the Committee had to write to the Speaker about the intimidating messages. It was unacceptable and illegal to send such messages to Members.
Mr M Sibande (ANC) said the Committee had to report the intimidation to the highest authority as he had been privy to situations where such messages where sent and the individuals that were intimidated were later harmed. He proposed that the Committee raise this at the next meeting with the PRASA Board. He also expressed his concern at the absence of Mr Mokonyama because it was hindering the work of the Committee. He suggested that the Committee summon Mr Mokonyama.
Mr Mpanza said that no amount of intimidation could deter the Committee from its work and the Committee would use all available instruments to deal with the tricks of those parties intimidating Members.
The Chairperson invited the State Law Adviser to brief the Committee on the changes made to the clauses discussed at the 6 March 2018 meeting.
National Land Transport Amendment Bill: transitional provision for e-hailing transport services
The State Law Adviser, Ms Bongiwe Lufuno, said that Members had requested changes to Clause 38 which addressed Section 66 of the Principal Act. The clause sought to penalise drivers that used an electronic hailing application without a licence. Members argued that Uber drivers could not be penalised if an arrangement did not exist for Uber drivers to legally obtain a licence.
She read out the proposed transitional provision that would allow Uber drivers to register in Clause 51(2): “an operator who uses an electronic e-hailing application must within ??? months of the commencement of this Act apply to the relevant regulatory entity for an operating licence for his or her vehicle in terms of the Principal Act and such applications must be dealt by the regulatory entity within a reasonable time but not exceeding ??? months from the date of receipt thereof”.
Also a new transitional provision in Clause 51(3) was added and captured as: “the Minister must prescribe the procedures for such applications and evaluation thereof, including criteria to be met or considered by the regulatory entity dealing with such applications”.
She said in Clause 38(1)(a) the heading “Metered taxi services and electronic e-hailing service” was inserted and the phrase “In the case of a metered taxi service or e-hailing service—” was inserted in subsection (1) in Clause 38(1)(b). In Clause 38(1)(f) subsection (4) the phrase “any other matter affecting the standard or quality of operation of metered [taxis] taxi services or e-hailing services” was inserted in paragraph (c). The phrase “subject to section 51 of the National Land Transport Amendment Bill, 2018” was added to paragraph (7) before Clause 38(7)(a).
Ms Lufuno pointed out that the Department of Transport had a different opinion and proposed different wording to capture the transitional provision. However, the Legal Advisors had captured it in this way to meet legal requirements.
The Chairperson invited DoT to state its proposal.
Assistant Director General: Department of Transport, Mr Hament Patel, said that DoT agreed with the expression of trying to legalise Uber but proposed that since many types of metered taxis were used for public transport, the different types of metered taxis should be enabled. He proposed the inclusion of minibus services under the metered taxi category as many illegal minibus operators existed. He read out DoT’s version of the transitional provision and said the period needed to be specified as well.
Mr Ramatlakane observed that DoT’s version gave context to what was happening in the public transport sector however the State Law Adviser said that the transitional provision had been captured in agreement with legal requirements. He asked why the longer DoT version could not be used as it was more elaborate than the Legal Advisors’ version. He asked DoT if it had considered the Principal Act before drafting the transitional provision because the Principal Act needed to align with it. The DoT version might not work if it is not aligned to the Principal Act.
Mr Mpanza agreed with Mr Ramatlakane that the Legal Advisors’ version was specific but the DoT version included other forms of public transport. He liked the DoT version because it was all inclusive but agreed that the proposal needed to be done in alignment with the Principal Act. He remarked that the Committee should not confine itself to legality but find a common ground between the two versions.
Mr Sibande expressed concern about the legislation being challenged in court. He said the proposed regulation must align with the Principal Act.
The State Law Adviser replied it was not about who was right or wrong but it was about the legality of the proposed transitional provision. The two versions occurred because the Legal Advisors and the DoT could not deliberate together on the proposed transitional provision. The Legal Advisors only considered electronic hailing operators while DoT included minibus drivers. The intention of the transitional provision was to regulate Uber drivers and Section 50 addresses how transport services should operate. The intention of DoT is to regulate its failure to issue licences to minibus drivers due to challenges and this is something else. Hence, it would not be appropriate to include minibus operators in this transitional provision.
Ms Noluthando Mpikashe, Parliamentary Legal Adviser, added that minibus operators are currently regulated while an electronic hailing service is not regulated. She advised the Committee not to add this minibus regulation in the transitional provision as something that has already been regulated could not be regulated again.
The Chairperson said this was the reason the Committee insisted that the head of public transport, Mr Mathabatha Mokonyama, had to be present at the deliberations as DoT needed direction. She said that the DoT‘s failure could not be interpreted as the failure of the Committee.
Mr Ramatlakane said that the Committee needed to address how the regulation in the transitional provision aligned with the Principal Act. Even if DoT had not raised the concern about minibus operators, the concern would have been raised later. The Legal Advisors and DoT need to engage. Also Mr Mokonyama should be present to give his team direction because the NLTA Bill would be prolonged without his input.
The Chairperson resolved that the Legal Advisors and DoT should engage with each other so as to reach consensus while the Committee continues with other agenda items.
The Chairperson asked Mr de Freitas to brief the Committee on his Private Member’s Bill which aims to ensure that the public is consulted on electronic-tolls.
SA National Roads Agency Limited and National Roads Amendment Bill [B20-2017]: briefing
Mr M De Freitas (DA) apologised for the incorrect version of the Bill being given to the Committee. The Bill was tabled in Parliament on 18 August 2017 and gazetted in December 2017 (correct version). This Private Member’s Bill seeks to amend the South African National Roads Agency Limited and National Roads (SANRAL) Act. It makes provision for the public‚ provincial legislatures and local councils to be reasonably consulted and afford them the opportunity to give their input about proposed toll roads. It will facilitate democratic involvement ‘by requiring a majority vote in favour of the proposed declaration in the relevant provincial legislature’. It also proposes the construction and maintenance of alternative roads for those who cannot afford to pay toll fees. It seeks to consider the environmental and socio-economic impact. It aims to prevent another e-tolls fiasco‚ as seen in Gauteng‚ which cost billions of rand and went ahead without any meaningful input from the public and relevant stakeholders. He said the Democratic Alliance hoped that the Bill will go a long way to ensure that‚ in future‚ the decision to establish toll roads will be an open and transparent process‚ and not a closed and autonomous decision taken solely by SANRAL. The DA strongly opposed the ill-conceived e-tolls from the onset because it excluded the poor and it has become a financial burden on hardworking residents. The Bill would ensure that public infrastructure would work to the benefit of our people‚ and not exclude the people.
The Chairperson commented that an electronic toll was expensive and seemed elitist hence people in communities had been openly defying it.
Mr Mpanza welcomed the briefing and said the Committee needed to ask if communities needed electronic tolls when toll gates existed. He supported having alternative roads as suggested by Mr De Freitas but noted that alternative roads were not maintained as was the e-toll road. He asked for the impact on job losses if electronic tolls were removed.
Mr De Freitas replied that he was against electronic tolls because it was an unwanted expenditure in Gauteng. He did not know the correct process to scrap electronic tolls if Members decided that it was the way to approach this.
Mr Ramatlakane said the amendment was to Section 27 but the Memo in section 2.3 refers to a referendum. He observed that Mr De Freitas had apologised earlier that the Bill presented was the incorrect version. He said the Committee could not apply its mind to the document because it was the wrong version. Therefore he suggested that the Members engage on the Private Member’s Bill at a later date.
Mr De Freitas said he was very embarrassed about the mix- up but the document gazetted on 20 December 2017 was the correct version. The Chairperson said she was not sure if procedurally Mr De Freitas had to resubmit the Bill.
Mr Sibande agreed with Mr Ramatlakane that Members receive the correct Bill before deliberating on it. The major challenge of electronic tolls was that they were not properly monitored. Also there are reports of cloning of number plates to avoid payment. Although one favours the maintenance of alternative roads, funding might be an issue. The fuel levies are expensive for provinces like Mpumalanga. If electronic tolls are scrapped in elite places and toll gates still exist, then the implementation of fuel levies leads to double payment for communities. Proper engagement would be carried out when Members receive the correct document.
The Parliamentary Legal Adviser said the difference between the two Bill is that paragraph (e) on page three speaks to a referendum. The Committee can overlook the difference but it needs to decide and pass a motion of desirability on the Private Member’s Bill before Members can consider it. It is only after the Committee has passed a motion of desirability that the Private Member’s Bill (PMB) can be amended as introduced then Members can deliberate on it.
The Chairperson said the Private Member’s Bill’s proposal was fair.
Mr C Hunsinger (DA) said Members should note that the country needed an additional mechanism for road maintenance so it did not matter if the country had an electronic toll or tolls gate system on its road. The position of the DA is that before a Bill is tabled all spheres of government, the premier, mayor and the community must be consulted first. The South African Journal of Economics had reported on research that the Mpumalanga Province would be disfavoured if an adjacent e-toll in Gauteng was the only way to access the Province and discussed its implications. Hence, engagements through public participation must be done before any decision affecting the community is made.
The Chairperson asked Mr Hunsinger to present a copy of the research to the Committee.
The Parliamentary Legal Adviser said the Committee could remove sub section (e) that speaks to the referendum and its outcomes to ensure that Members could engage on the PMB. She invited the South African National Roads Agency Limited (SANRAL) to brief the Committee about the PMB.
SANRAL Amendment Bill [B20-2017]: SANRAL response to Private Member’s Bill
Mr Prasanth Mohan, DoT Chief Director Roads, said prior to implementation of e-tolls, a Cabinet decision was made so the DoT has no power to scrap it. Hence, the Committee must give direction on the way forward. DoT would then advise its management to go ahead with the next step. He invited SANRAL to brief the Committee.
Mr Thabiso Malahlela, Head of Strategy at SANRAL, noted that the Committee was saying that stakeholders were not fully consulted. At the time the decision was taken to implement the Gauteng Freeway Improvement Project (GFIP), SANRAL had consulted stakeholders at all the various levels. SANRAL had fully complied with all the steps that needed to be done. The provision of alternative roads is a role carried out by municipalities and this is beyond SANRAL’s mandate. SANRAL has been in full compliance with all the necessary standards that had to be met in all its projects. SANRAL consulted and complied with National Environment Management Authority (NEMA) and Department of Environmental Affairs (DEA) guidelines before the e-toll project was implemented. The documents are available and can be presented to the Committee. Also SANRAL consulted with communities and considered the impact of e-tolls before implementing such e-toll projects. SANRAL put forward a solution that ensured that e-tolls were only implemented in a community when a convenient resolution had been reached between the community and SANRAL. Although research should be done to what would happen to the community if jobs are lost but there is a bigger issue in terms of the impact of defaults. It would be interesting to look at the results of the study on the impact of e-tolls in Mpumalanga but the gains of provision of good road infrastructure, road decongestion, time savings, reduced transport costs and accidents should not be ignored. He gave an example of how SANRAL had shown Shoprite that because of the good road network and lack of portholes on the road its transport fleet had saved more money on fuel, wear and tear of its vehicles.
Mr Johannes Makgatho, SANRAL Legal Compliance Officer, said the Bill had been tagged as a Section 76 Bill but when the Principal Act was passed in 1998 it was tagged a Section 75 Bill. SANRAL believes the Bill should not affect the provinces and should remain a Section 75 Bill. Bill. The roads that are e-tolled fall within the national roads sphere of government. It would be inappropriate for the Bill to be a S76 Bill i.e. have to receive comments from the provinces.
In SANRAL’s view, Clause 1 amending Section 27 would require majority votes in favour of the Bill by provincial legislatures and this would be inappropriate because national roads are not listed in Schedules 4 and 5 of the Constitution. Therefore it should be addressed only by the national sphere of government alone. The proposed amendment would lead to an unwarranted interference in national functions by provinces and could result in the planning of national roads by provincial government. Also the national road policies could be frustrated by individual provinces. He commented on the Western Cape High Court case in the DA versus President of South Africa and Others [SA Law Reports, page 569 para 99-103]. He said while SANRAL appreciated the need for consultations and it had extensively consulted before e-tolling started as alluded to by Mr Thabiso Malahlela. SANRAL was of the view that to submit proposals for e-toll roads to provincial legislatures would cause major delays in the process as it would lead to duplication and it would be time consuming because it means the Premier and Mayor would be involved in the entire planning and assessment processes. The current requirement in Section 24 of the Principal Act that provinces must be given an opportunity to make comments is considered to be sufficient. He said SANRAL would make more contributions as meetings on the PMB continued.
Mr Sipho Dibakwane, DoT Acting Director: Policy, said the Committee might examine the 2009-2014 Legacy Report of the Committee to see how the matter of e-tolling was dealt with. The report deals with consultations on e-tolling and the work of Inter-Ministerial Committee at the time. He referred to Mr Ramatlakane’s proposal that the Committee should consider the correct document before engaging on the PMB and said DoT would be available to engage.
Mr Whity Maphakela, DoT Acting Chief Director: Road Transport, said a study was made to check the impact of e-tolls on local users before implementation. This involves the economic viability of the municipality and when the community could not afford the e-tolls, SANRAL had to come up with a measure to assist. SANRAL relies entirely on e-tolls to maintain the toll roads so it is vital to allow the Bill to be remain a S75 Bill because if the Bill is reviewed to a S76 Bill, its mandates would also be reviewed to accommodate a new funding mechanism. SANRAL cannot rely on higher budget allocations because of the competing needs of National Treasury. The Committee needs to consider this so that South Africa will be able to maintain its roads.
Mr Makgatho said that in the National Road Act, Section 9(3a) provided that the predecessor of SANRAL could not declare a road would become an e-toll road unless an alternative road was provided. This was questioned after the 1994 Elections because a developing country like South Africa could not afford the luxury of having alternative roads. Section 9(3a) was repealed in 1996 i.e. compulsory alternative roads were no longer necessary after that date. This policy decision was also taken forward when the 1998 SANRAL Act was drafted. In the SANRAL Act, tolls are determined by the Minister and it is presumed that the Minister as advised by SANRAL would take the existence of alternative roads into account and ensure that tolls are reasonable or even implemented when no viable alternatives are available. If the clause on alternative roads is implemented it could force government to provide additional roads leading to duplication of infrastructure and wastage of government funds.
The Chairperson said there was a lot of work that had to be done in-house on this PMB before Members can focus on its desirability.
Mr De Freitas said the intention of the PMB was not to withdraw the e tolls but to ensure that public infrastructure assisted the people of Gauteng. If a political decision is made by Cabinet to scrap e-tolls then it would not be necessary to continue with the PMB. The SANRAL legal adviser said the requirement to provide alternative roads was repealed in 1996 but the people on the street should not have to pay for road maintenance when people pay tax so maintenance of e-tolls should be done through the SANRAL budget. He did not see where the conflict arose since the PMB was about public participation and his intention was that the consultations were not enough because it did not involve the Premier, Mayor and the community. He said a S75 Bill only talks to public participation which was why the PMB was tabled. The Committee should seek legal clarity on whether the current Act required public participation alone.
Mr Ramatlakane pointed out that that the long title of the Bill also talks about a referendum. He was concerned that the Committee should get the correct version of the Bill as Members should deliberate on the correct Bill. The point that consultations on e-tolls were made but they were not enough was a different matter but the challenge is that wrong decisions were made despite consultations being done. He was not sure that Members could decide on the desirability of the Bill without looking at the correct Bill and the mandate of SANRAL.
Mr De Freitas said the argument put forward by Mr Ramatlakane had been used by SANRAL earlier that there were consultations and public participation but the expected results were not reached. For instance SANRAL advertised according to law but advertised during the festive season and did not follow the process in the correct manner. He would present the correct document to Members in the soonest possible time.
The Chairperson said the Committee would await the correct version.
National Land Transport Amendment Bill: redrafted transitional provision
The Chairperson invited the Legal Advisers and the Department of Transport to report back on their caucus.
The SLA said both teams had agreed that Uber, minibuses and metered taxis were regulated hence they had amended Clause 3 which aligns with Section 8. Also a new insertion was proposed after Clause 3(2) which captures all transport services operating in South Africa illegally.
Mr Hament Patel agreed with the transitional provision redrafted.
The Chairperson said Members would receive emails of the redraft immediately.
Mr Ramatlakane said Members could not access their emails.
The Chairperson said the hard copy would be produced.
Mr Ramatlakane said the new transitional provision no longer had the shortened procedural issues as in the earlier proposed amendments.
Ms Maletlhogonolo Phadziri , DoT Director: Legislation, replied it was covered under the moratorium.
Mr Mpanza asked if both teams had reached a compromise which was aligned to the Principal act.
The Chairperson said it seemed that both teams had caucused and had agreed.
Mr Ramatlakane asked DoT for clarity on what the Principal Act said about provision for an e-hailing party to get an operating licence.
Mr Neville Dingle, DoT consultant, replied the law said that any party that carried passengers for reward must have an operating licence. This provision – as through a shuttle – would allow transport operators to have a licence. Hence DoT did not see a conflict.
The Chairperson noted that Members agreed with the transitional provision but Mr Ramatlakane interjected.
Mr Ramatlakane interjected and asked DoT to clarify if municipalities were conversant that e-hailing services were categorised under shuttles. The law must be specific to ensure that it was not abused. If the DoT is confident that a municipality is conversant that e-hailing services can be categorised under shuttles the Committee can accept the clause in the interest of time.
Adv Alma Nel, Committee Content Advisor, said in her experience e-hailing services were not regulated and were not categorised under shuttles. There is no formal regulation on e-haling services the Municipalities in Gauteng and Western Cape had written to the Minister to find a way to regulate them. In Gauteng e-hailing services were finally regulated under metered taxis. There is no regulation for e-hailing services and this Bill definitely needs such a regulation. Mr Ramatlakane is concerned about what happens in the interim period. Public transport operators have complained that the process should take three months but it never does. I am more comfortable with the earlier proposal of the SLA so DoT’s proposal is not suitable.
Mr N Dingle said that he agreed that the amendment to Section 66 of the Principal Act was not properly regulated. The previous Act recognises that any party that had an expired permit needed to re-apply and new operators need to apply for operating licences as well.
Mr Ramatlakane said this had been a concern of the Committee that the Bill should make a regulation instead of asking the Minister to do it. The DoT cannot ask the Minister to provide regulation if there is no provision. He noted that the DoT had not provided the Committee any transitional provision on Uber because the NLTA Act must have a provision that enables Municipalities to address the application of Uber for operating licences. If the DoT fails to insert this regulation in the NLTA the Committee had to do it. He proposed that Adv Alma Nel should find a way of inserting the regulation in the NLTA Act.
Mr Sibande asked for clarity on Uber operators.
The Chairperson informed Members that Uber was an e-hailing service that transported people from point A to point B that had to be licenced. She understood Mr Ramatlakane proposal that e-hailing operators had to be assisted to receive operating licences. She asked Members to find a way to assist e-hailing operators to register because the Uber and taxify may be the only operators affected now but in future other operators using other Apps might be affected.
Mr Mpanza said the Committee had to find a way forward by having a middle ground because the Committee had spent too much time trying to iron out the issues on registration of e-hailing services. The DoT and the legal team had a caucus meeting, said that Uber was regulated and made a proposal based on a middle ground and Members agreed to the proposal it is confusing. However, Adv Alma Nel says Uber operators are not regulated because they are not under the category of shuttle services. The Committee has to decide on if Adv Alma Nel, the legal team and DoT need to have caucus meetings on the way forward during this meeting without deferring. If all the teams cannot agree then the Committee might consider deferring the decision on the Clause.
The Chairperson asked Mr Ramatlakane to redraft the proposal while Mr Hunsinger stated his concern.
Mr Hunsinger said he agreed with the analysis of the Chairperson that the Principal Act allows people to enter into transport services but they need an operating licence if it is for payment. His concern was what would happen if the operators did not comply with components A and B because the reality was that Uber drivers were operating and it is big threat to the taxi environment. There was a vacuum in the regulations and the proposed legislation was not definite because it passes the decision to register Uber operators to the Minister without any regulation. He suggested that a specific regulation be drafted that would ensure compliance.
The Chairperson recalled that there was a proposal earlier on which specified timeframes for Uber operators to obtain operating licences and asked that the proposal be incorporated into the proposed draft. The Committee needs to legalise registration for parties transporting people for reward and propose a time frame in which this parties must register that aligns with the Principal Act. She said DoT legal team might need to consider bringing back the version that captured time frames for parties to register legally.
Ms Phadziri, DoT Director: Legislation, clarified that the Amendment Bill did not only empower the Minister to regulate on e-hailing. In Clause 38 details are given about registration of e-hailing, it consists of the standards required for e-hailing, specifies the distance and the features of the e-hailing vehicle. It is not only the Minister that regulates e-hailing, there is a provision in Section 66 where Clause 38 is being amended. Section 66 deals with metered taxis so e-hailing would be a sub-category of metered taxis hence it empowers e-hailing services. She asked the Committee to consider Clause 38.
Mr Ramatlakane noted an amendment was in Clause 38 but if a regulation is required to regulate e-hailing services, a clause would have to exist in the Principal Act that was specific to e-hailing services and not metered taxis. The service would be defined and the clause would state the requirement that the e-hailing operators would have to meet. The requirements for a party that would apply would include the kind of vehicle that would be used, specify that the parties would not operate on a rank basis and specify that the services provided would be based on calls received on the App that fall within a radius i.e. the permits received would fall within a radius. This would guard against transporting people between Johannesburg and Cape Town. A defined radius permit would ensure that the parties did not exceed transport within suburbs which complies with e-hailing. This would ensure that when the municipality receives an application, the official would be guided by the Principal Act. The paragraph must be in the Principal Act to enable the Minister to approve any such application for operating permits based on the radius. He had asked earlier for the enabling provision in the Principal Act and DoT had said e-hailing was under shuttles. He said that it was not because a shuttle does not enable Uber operators and the municipalities would decline the application for permits if the Principal Act was not specific for Uber or e-hailing services. He agreed with Mr Hunsinger that the Act would not be definite and even if the municipality was given a 120 days transitional provision it would still not give Uber operators the required permit. The regulation should reflect reality; if not, it would not work. The Legal Advisors, DoT and Adv Alma Nel need to work out the modalities for redrafting the legislation.
Mr Hunsinger said the regulation was not yet definite because it did not prohibit a party from operating five vehicles at the same time, it did not ask for the ID of the party, nor specify the number plates which could lead to abuse of the regulation.
Mr G Radebe (ANC) agreed that definite specifications were needed because the way Uber operated was quite different. The operations of Uber operators must be segmented because it would deprive other parties from working.
Adv Nel said Mr Ramatlakane was specific in his proposals and she had made recommendations on this proposal earlier to the Legal Advisers. She said based on Mr Radebe’s proposal a provision should be made to segment Uber operators to ensure that they do not operate in other areas when rates increased. Uber operators are fluid and can transport people from point A to B and also move from point B to C without going back to point A because they are not ranked. The metered taxis however must return back empty after it moves from point A to B. The metered taxis know that Uber operators are in a petrol station near the airport where the App used can locate Uber hence metered taxis are not happy. Uber operators need to have a definite separate clause to regulate the e-hailing services because section 50 of the Principal Act requires that Uber operators must have operating licences. This definite separate clause would assist regulators in the municipalities on how to treat permit applications for Uber operators without having to wait for three months. Her concern is how many operating licences a transport operator can have on one vehicle and the question is can a transport service have two types of licence (e-hailing and metered taxi). The Committee should consider the concern and the question because both are practical.
Mr Dingle observed that the Committee wanted Uber operators to be under a separate category but DoT felt that it should be a sub-category under metered taxis. Section 51 of the National Land Transport Act allows only one type of licence per vehicle hence a vehicle could not operate on two licences. Section 57 states that when a party applies for a permit, the regulating authority can impose conditions. He agreed with the Committee that Uber needed a separate clause to ensure that the regulations were definite and specific.
Mr Sibande said he did not understand why a separate application should be made to register Uber.
The Chairperson interjected and said Members had agreed that it was not Uber specifically but any e-hailing application and these parties must apply for permits. Hence a regulation must address this to empower regulating authorities to issue permits in the Principal Act.
The Chairperson said the Committee had resolved that the head of public transport in DoT, Mr Mathabatha Mokonyama, must be available for the next meeting to give direction to his team. The Committee would not attend to this if Mr Mokonyama is not at the next meeting. The Committee has been having deliberations on e-hailing and this was the fifth meeting without arriving at a way forward. She asked Mr Ramatlakane to read out the redrafted clause to ensure that DoT had a proper understanding of what the clause should be.
Mr Ramatlakane read out their version of what the redraft should be and Ms Phadziri captured it.
Committee Report on its Northern Cape oversight visit
The Committee fine-tuned the observations and recommendations of the Report and then adopted it.
Passenger Rail Agency of South Africa (PRASA) inquiry terms of reference
The terms of reference to inquire into the governance challenges and contracts at the Passenger Rail Agency of South Africa (PRASA) were finalised. These would be submitted to the House Chairperson of Committees today. The Committee agreed to allocate itself 120 days to conclude the investigation.
The Chairperson said the Committee will make the necessary application for extra sitting days. Even if the Committee had to sit three times a week to deal with PRASA, it would do so.
The Committee said that although it allocated 120 days, which amounted to four months, the inquiry could happen within a shorter space of time and it would be a great service to the people.
The meeting was adjourned.
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