AARTO Amendment Bill: NCOP amendments approved; Airports & ATNS Company Amendment Bills: deliberation

Meeting report

The Committee commenced much later than scheduled due to a lack of a quorum.
 
Opening remarks
The Chairperson welcomed everyone present, and indicated that the Committee was 30 minutes behind schedule.
 
She stated that the Committee would first consider the AARTO amendment bill and requested the Legal Team to take the Committee through the proposed amendments by the National Council of Provinces.
 
Consideration of the AARTO Amendment Bill
Mr Mongameli Kweta, State Law Advisor, took the Members through the Bill. He highlighted that there was a new proposed clause (Clause 9) which amended Section 19 of the Principal Act. Clause 19(2)(b), which had referred people to court as a first instance, was amended in order to first subject people to the administrative processes.
 
Clause 15(3)
Under this provision, the Tribunal would now consider a later application for a review or an appeal subject to the applicant substantiating the reasons for lateness. This was not previously catered for in the Principal Act.
 
Provisions 29I(1)
This provision addresses the fact that any person affected by the decision of the Tribunal may apply to a Magistrate Court to review a decision of a Tribunal; this could previously be done only in the High Court. So now the idea was to assist people to be able to appeal at the magistrate court to reduce the costs of applications to the High Court because the High Court costs were expensive.
 
Clause 16
This provision outlines that any document that needs to be served to an infringer should be done through personal service; postage or electronic service.
 
Discussion
Mr C Hunsinger (DA) said that as it stands in terms of rule 312(2)(b) of the NA Rules, it is not the Committee’s decision to approve or disapprove but to accept the proposed amendments from the NCOP (National Council of Provinces) as presented. This put the Members in a dilemma because it is confronted with considering changes or amendments that it cannot have any say on. These changes should be accepted as presented.
 
In terms of the amendments, he was uncertain to what extent it would contribute to discussion what was presented because Members cannot make any changes. From the DA’s side, there is a concern around constitutionality and the role of the Tribunal which seems to have been elevated above the Courts, and that could be unconstitutional. The DA favoured the AARTO Amendment Bill due to the need to reform the current legislation. It certainly eagerly supports it notwithstanding the concerns around potential unconstitutionality in its current form.
 
The Chairperson concurred that the NCOP changes could not be altered by the Committee. However, the Committee agreed with the processes undertaken by the NCOP as it related to the Bill. She asked Mr Hunsinger to specify the areas where he felt were unconstitutional.
 
Mr Hunsinger asserted that the proposed amendments were potentially unconstitutional; firstly, the 90 days waiting period. In terms of the Constitution an individual/infringer should always have a right to state their side of the story in relation to the infringement. Therefore, during the waiting period the infringer should be given the opportunity to state their side of the story, instead of waiting until the end of the process and do so at a Magistrate’s Court.
 
Secondly, the opportunity to apply for an appeal or review is at the end of the process, and he found this to be problematic.
 
Thirdly, in relation to Clause 9, this clause seemingly elevated the Tribunal above the courts. Therefore, he did not agree with that.
 
Mr T Mpanza (ANC) said that after listening to the State Law Advisor, the Committee has dealt with these issues at length, and the NCOP has presented amendments that have already been agreed to by the Committee. The majority of the views of the Committee have already been catered for; therefore, he wanted to move for the adoption of the amendments.
 
The Chairperson said that before Members could move for adoption, Mr Hunsinger’s concerns should be responded to by the State Law Advisor.
 
Mr Kweta said that during the processes that were previously undertaken in the Portfolio Committee, the constitutionality issues were raised. The process is shaped in the way that when a person infringes the Road Law that individual would be issued a letter. From the date the letter is issued to the infringer, the individual automatically has the opportunity to respond to the infringement. That right is not taken away. Once the process has been concluded, if the individual was not happy with the proceedings or the outcome, that individual has the right to approach the Tribunal to have that decision or outcome reviewed or appealed. In addition, the person can approach the court to review or appeal the decision of the Tribunal. However, this is only introduced at the end when all preliminary processes as outlined have been undertaken.  
 
The Chairperson said that she would rather consult with her team before proceeding on this matter.
 
A short recess was then taken for consultation.
 
The Chairperson reconvened the meeting, and indicated that the State Law Advisors have been working tirelessly to ensure that the Constitutionality of the Bill was not in question. Therefore, what was left to do was to formally accept the proposed amendments.
 
Committee Report on AARTO Bill
Mr Mpanza stated categorically that he moved to adopt the proposed amendments. 
 
Mr Hunsinger requested the Chairperson to note the objection of the DA due to the potential of unconstitutionality.
 
The Chairperson noted the objection, and submitted that there were seven Members in support. She proceeded to read out the Draft Report of the Portfolio Committee on the AARTO Amendment Bill. She submitted the Report to Members for adoption.
 
Mr Hunsinger said that in terms of the Rules of the National Assembly; he requested whether it would be possible for the DA to express its objection in the Report in its own words.
 
Mr L Ramatlakane (ANC) said that the objection in the Committee Report would be the Committee’s view, not of the DA because the Report belongs to the Committee and not any specific political party.
 
The Chairperson concurred with Mr Ramatlakane.
 
Mr Hunsinger pointed out that rule (288 (3)(f)) states that “the Committee must, if it is not a unanimous decision, specify in which respects why there was no consensus, and in addition to the views representative of the majority of the Committee convey any views of the Minority in the Committee.” It is not the matter of the Committee’s interpretation of the Minority View.  
The Chairperson said that as a Committee of the National Assembly, having agreed on the Committee Report, it will indicate that there was a dissenting voice of the Minority. The specifics would be a matter of debate in the House. 
Mr Ramatlakane suggested perhaps, the paragraph can read as follows, “the Minority Party objected to the Bill due to matters of unconstitutionality.” That should be sufficient, and any specificity should be a matter of debate in the House.
 
Members agreed with suggestion.
 
The Chairperson concluded on the matter, and stated that the Bill was accepted in the Committee and that it could now go to the National Assembly.
 
Airports Company Amendment (ACA) Bill
The chairperson indicated that the Airports Company Amendment (ACA) Bill would be considered next week and now the Committee would consider the ATNS Bill.
 Ms Phumelele Ngema, Parliamentary Legal Advisor brought up two issues on the ACA Bill that have been picked up. Firstly; the Principal Act and the small provision on the Bill that deals with any airport, there might be a serious issue concerning the fact that the Bill is tagged as a Section 75 instead of Section 76. This is a procedural issue that would need to be dealt with going forward. Secondly, if other sections of the Principal Act would need to be amended that were not initially part of the proposed amendments. In terms of the rules of the House, the permission from the House would need to be obtained.
The Chairperson said that the Committee did not intend on procrastinating any further on this Bill. She wanted to know about the implications of the matters raised by the Parliamentary Advisor.
 
Ms Ngema said that the content of the Bill would not be affected but only the time frame and the timeframes of the process because Section 76 Bills take longer than the Section 75 Bills due to Constitutional processes that must be followed. The content would not be affected much as long as the legal teams from both the Department and Parliament are in agreement.
 
Airport Traffic and Navigation Services Amendment Bill
Ms Ngema said that there was a lot of cross referencing required for the ATNS Bill, and the major issue that came up was the reference to the term “approached document” as defined in the ACSA Act. There is a difficulty in understanding what the “approach document” is – this was the major reliance between the two Bills. This would be resolved in the ACSA Bill next week.
 
The proposed amendments for the Bill had no content bearing, only minor changes substitution of words and insertion of certain words and definitions.
 
There would be no further amendments on the ATNS Bill. There was agreement between the Department and the legal team.
 
Mr Hunsinger indicated that he was happy to move forwards in light of the presented amendments.
 
The Chairperson thanked the team, and declared the meeting adjourned.