Airports Company & ATNS Company Amendment Bills: consideration & adoption; Committee Report on PRASA Oversight Visit
19 February 2019
Chairperson: Ms D Magadzi (ANC)
The Parliamentary Legal Advisor briefed the Committee on the proposed amendments to the Airports Company Amendment Bill. After discussion the Committee agreed to the proposed amendments and approved the Bill.
The Committee also agreed to the proposed amendments to the Air Traffic and Navigation Services Company Amendment Bill and approved the Bill.
The Committee completed its recommendations before adopting its Committee Report on its Oversight Visit to the Passenger Rail Agency of South Africa (PRASA) and the Railway Safety Regulator (RSR) on 31 January and 1 February 2019.
The Chairperson asked the Committee Secretary to take the Committee through the Committee Report on its Oversight Visit.
Committee Report on Oversight Visit to PRASA and Railway Safety Regulator
Ms Valerie Carelse, Committee Secretary, said that the report was already circulated to Members last week, and asked them to consider the recommendations. Members should agree to what should be included in the recommendations so that the report can be published as soon as possible, and be taken to the House for consideration and adoption.
Mr C Hunsinger (DA) said that since this oversight visit to PRASA and RSR was based on an unfortunate incident of a train crash, he would like to suggest that they consider including in the recommendations that there is a regular report on the number of manual authorizations. They must remember that there were presentations by PRASA and RSR that 23% of manual authorizations was due to faulty signalling equipment and 31% due to faulty cracks. Therefore, his suggestion is that this Committee must receive a regular report from PRASA on the number of manual authorizations and where they occur to identify high risk areas for possible crashes due to manual authorizations.
Mr L Ramatlakane (ANC) suggested that they need to bring some items already in the report into the recommendations. For example, the Chair's question on how long it takes to train the engineers in the Transnet Academy. That question could be coined into a recommendation that PRASA engineers can be trained in-house.
The second recommendation is that of the communication centre has to be fast tracked because it was stated that this communication centre will be finished in 2021, and the Committee did not quite agree with 2021. Therefore, they must make a recommendation that the completion of the communication centre should be fast tracked.
The third recommendation is that PRASA must introduce the shift system for engineers that are working on trains because engineers were complaining that it has been two years since they wanted this shift system but nothing is coming forth from PRASA management.
Mr Ramatlakane said the last recommendation is about PRASA hiring locomotives at the value of R7 million a month. There are 13 locomotives that are standing which can cut a Cape Town journey by 7 to 8 hours. Therefore, they must make a recommendation for the finalization of the service agreement on purchased locomotives that should be expedited so that these locomotives can be utilised by PRASA, and get out of this R7 million a month hiring of locomotives.
The Chairperson agreed with Mr Ramatlakane. As part of the capacity issue there is training going on in Transnet and they should start talking to Transnet to check if there is availability of engineers that can be seconded to PRASA. So, those are the issues they can engage on. It is very clear that there is procrastination on locomotives. PRASA is spending R7 million a month for one locomotive, which gets hired from Transnet.
The Chairperson asked if they can adopt this report as the true reflection of their oversight visit to PRASA and RSR.
The Committee approved the report with these added recommendations.
Airports Company Amendment Bill
Ms Phumelele Ngema, Parliamentary Legal Advisor, took the Committee through the proposed amendments to the Bill. Together with the Department, they had made a huge strides in coming up with the document that is before the Committee and ensuring the amendments discussed and issues raised have been included.
Firstly, tagging is no longer a problem going forward. They had discussions together with the Department and the State Law Advisor to ensure that the process is lawfully conducted and procedurally correct. The provision that was creating problems has been taken care of to ensure that that the tagging concern does not arise. The Bill will proceed as a section 75 Bill in line with the tagging by the Joint Tagging Mechanism.
Secondly, there is a new clause to deal with that provision. The new clause amends section 2 of the Principal Act. Procedurally, the National Assembly Rules require that if you introduce a clause that was not included in the Amendment Bill as introduced, the Committee needs to get the permission of the House.
Ms Ngema said the Bill seeks to ensure there is compliance with the Companies Act of 2008. When the Airports Company was established it was established as a public company. However, the Companies Act of 2008 has brought some changes in distinguishing between public and private companies as well as State Owned Companies (SOCs). The Airports Company is a SOC and in terms of the Public Finance Management Act (PFMA) is proclaimed as a schedule 2 entity. So this new clause is ensuring that this Act is corrected in line with those Acts.
Ms Ngema said the proposed amendments to the ACA Bill are as follows:
1. That the following be a new clause:
Amendment of section 2 of Act 44 of 1993, as amended by section 2 of Act 2
12. Section 2 of the principal Act is hereby amended –
by the substitution for the heading of the following heading:
"Establishment and classification of company"
by the deletion of subsection (6) of the Principal Act; and
by the substitution for paragraph (c) of subsection (7) of the following paragraph:
"(c) The majority of non-executive directors must not be employees in terms of the Public Service Act, 1994 (Proclamation 103 of 1994).”
by the insertion of a new subsection (8):
"8. As from the date of commencement of the Companies Act. The Company is classified as a state owned Company listed under schedule 2 of the Public Finance Management Act."
1. Clause rejected.
1. On page 4, from line 12, to omit paragraph "(c)"; and to substitute: "(c) three other persons who are not employees in terms of the Public Service Act, 1994 (Proclamation 103of1994)."
1. On page 6, in line 9, to omit "";'', and to insert the following subsection: (2A) (a) The Committee may develop, determine, issue and amend guidelines to the Company, known as the approach document, after consultation with relevant and interested stakeholders, including company, for the submission of a permission application in terms of subsection (1).
(b) The approach document in terms of subsection (a) may be reviewed after three years from the date this Act comes into operation.
1. On page 6, after line 53, to omit paragraph "(c)"; and to substitute: "(c) three other persons of whom at least two are not employees in terms of the Public Service Act, 1994 (Proclamation 103of1994)."
2. On page 7, from line 13, to substitute subsection "(7)" for the following: "(7) The Appeal Committee shall convene as often as the business of the Appeal Committee may require."
3. On page 7, in line 21, to omit "and" and to substitute "or".
Mr Ramatlakane asked what is the definition of the “approach document” mentioned in clause 6. Is it defined in the Bill?
Ms Ngema replied it is in the definitions clause of the Bill, which reads as follows: “approach document means the Committee’s guidelines to the Company for the submission of a permission application”.
Mr Ramatlakane asked if the tagging issue created problems for the Bill and the Section 75 tagging was because they wanted to get this Act through. Mr Ramatlakane asked if they were to embark on a public consultation process even though they realise that this term is coming to an end, how delaying the Bill will injure the current operation of the Airports Company. What constraints would it have?
Mr Ramatlakane asked what the thinking is behind the word "officers". Does it mean those that were commissioned in other Acts? How does it injure those that were appointed in terms of different Acts?
Ms Ngema replied about the tagging and the Clause 2 rejection. They are not rejecting that clause on the basis that it would create a problem that will require more time. After discussions, it was clear. The Department noted that the mandate of the company is not going to change. The Airports Company mandate as it stands now is open to any kind of airport. This is regardless of what schedule 4 of the Constitution is indicating for tagging purposes (in respect of national and international airports).
So, its mandate is not going to be curtailed by either rejecting or going ahead with that provision. The mandate remains as is and as the Principal Act had broadening it. There is nothing that is going to impact on it. The only thing is this provision makes it easier for the broader functions of the company to be clear. However, these already appear elsewhere, they are already indicated and known in other documents that are available to the public. But in this instance, the provision as it was written would have created a problem for tagging purposes considering what the Constitution states. It is not necessary for that provision to be brought in here because it is already covered and would have been redundant.
Ms Ngema replied about consultation that there is no link to changing that provision to get away from a long public participation process or depriving the public of participation. It has nothing to do with that because even if it remained a Section 75 Bill, public participation would still be conducted as the law and the rules of Parliament require.
Ms Ngema replied about the correction about "officers", saying that they had looked at the definition as it appears in the Public Service Act. What they understood the Act to indicate was whether employed as an officer or whatever, regardless of the rank or position, it means once appointed in terms of the Public Service Act that definition is speaking to everybody employed in terms of that Act.
And therefore, whichever officer or employee will still be employed for purposes of this Act. There are no benefits or rights that are going to accrue or be taken away by this Amendment Bill. Whatever appointment will remain the same. It ensures the same applies to the amended Act which was done in 1993. There are necessary corrections that are consequential as they make amendments to the statute book as it stands.
The Chairperson thanked Ms Ngema for the presentation and responses. She asked Members to read through the Committee Report on the Bill before adopting it.
The Committee adopted the Committee Report approving the Airports Company Amendment Bill.
Airport Traffic and Navigation Services (ATNS) Amendment Bill
Ms Fatima Ebrahim, Parliamentary Legal Advisor said that depending on how the two concerns, the tagging and the approach document in the Airports Company Amendment Bill were resolved, may or may not have an impact on the ATNS Amendment Bill. The manner in which they resolved those two issues meant that there are no changes to the proposed amendments to the ATNS Amendment Bill they presented last week. The Committee can therefore proceed with approving the ATNS Bill.
The Chairperson said that last week the Committee tentatively agreed to the ATNS Bill depending on the outcomes of the Airports Company Amendment Bill. She asked if the Committee agrees to the ATNS Amendment Bill.
The Committee agreed.
The Chairperson thanked Members and the legal team for their inputs.
The meeting adjourned.
Magadzi, Ms DP
De Freitas, Mr MS
Hunsinger, Mr CH
Ramatlakane, Mr L
Sibande, Mr MP
Xego, Ms ST
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