Airports Company & ATNS Company Amendment Bills: deliberations & finalisation

Meeting report

Airports Company Amendment Bill
The Chairperson asked the Parliamentary Legal Adviser, Ms Phumulele Ngema, to present the proposed amendments to the Bill that the Committee had agreed to.

New Clause
Ms Ngema stated that the new clause amended section 2 of Act 44 of 1993 to provide for the Airports Company to be a state owned company. The amendment ensured clarity on what the Airports Company was. She pointed out that the rest of the proposed amendments were of a consequential nature.

Clause 2
The Clause was deleted but it did not mean that what the Clause had tried to achieve was disregarded. What the Clause had tried to achieve was still covered.

Clause 4
The Clause amended section 11 of the Act. It dealt with the constitution of the Committee. The Clause brought about clarity. Persons employed in terms of the Public Service Act should not be more than three in number. The Clause also covered remuneration of Committee members.

Clause 6
The Clause amended section 12 and dealt with the regulation of the Committee. It provided for the Committee to develop, determine, issue and amend guidelines to the Company which was referred to as the approach document. The approach document may be amended every three years.

Clause 7
She said that the Clause dealt with consequential changes.

Mr L Ramatlakane (ANC) referred to Clause 4 (2) and was unhappy with the phrase “in the opinion of the Minister”. The provision allowed the Minister to make an appointment based on his opinion. Was this a good thing? He felt that there ought to be some criteria. He asked whether the Minister’s opinion would be the measure of the person’s suitability. He did not feel it to be wise to have legislation that used an “opinion” as criteria of suitability. An alternative needed to be found. 

Ms Ngema responded that the phrase, “in the opinion of the Minister” was part of the original 1993 Act. She explained that the provision was not open-ended. There was a caveat. There were restrictions in place. The person needed to have experience and expertise in navigation. The provision was not part of the proposed amendments.

Mr L Mpumlwana (ANC) said that he had thought that the provision Mr Ramatlakane had referred to would have been changed in the Bill.

Ms Malethogholo Phadziri, Director, Department of Transport, explained that the provision should be read in conjunction with section 11A in Clause 5. Criteria were set out in the section. However if members so wished the phrase with “opinion” could be changed.

The Chairperson asked whether the word, “opinion” should be changed to “discretion”.

Mr Ramatlakane said that the use of the word, “discretion” was just as bad. He felt that “in the opinion of the Minister” could be deleted from Clause 4(2).

Mr Mpumlwana said that the Minister, as a politician, was guided by political direction. The reason why “in the opinion of the Minister” was included was for this very reason. The Minister was given discretion for political reasons. He stated that Clause 4(2) also provided that the Minister “shall” appoint persons to the Regulatory Committee. He preferred the use of the word, “may” instead of “shall”. The Minister should have discretion.

The Chairperson asked Mr Mpumlwana if he was in favour of leaving “in the opinion of the Minister” as it was so as to cover political aspects.

Mr Ramatlakane after hearing what Mr Mpumlwana had said was even more convinced that the phrase, “in the opinion of the Minister” ought to be deleted. He emphasised that there needed to be clarity as the industry was a very serious technical one. Clause 4(2) needed to be tightened up.

The Chairperson instructed the legal drafters to delete “in the opinion of the Minister” from Clause 4(2).

Ms Ngema explained that the use of “shall” could be equated to “must” as it was customary at the time of drafting the Act to use “shall”. No discretion was being given to the Minister. There was an obligation on the Minister to appoint persons. Even if “in the opinion of the Minister” was to remain there was a caveat provided. People to be appointed had to be suitably qualified. The person doing the appointment had to apply his/her mind.

Mr Mpumlwana had a problem with the Minister having no discretion. He felt the Minister should be allowed to follow his political direction. He however conceded that it was up to the legal drafters to make the final call as they knew best.

Ms Fatima Ebrahim, Parliamentary Legal Adviser, responded that even if “in the opinion of the Minister” was deleted from Clause 4(2) then the Minister still had discretion. In exercising his discretion the Minister must appoint suitably qualified persons. The Minister as a politician would always have discretion.

The Chairperson asked Ms Ngema to take the Committee through the proposed amendments.

Ms Ngema spoke to proposed amendments to Clause 4 as contained in the A-list of amendments to the Bill. An additional amendment to Clause 4 that had come from earlier deliberations in the meeting on “in the opinion of the Minister” was also presented. In Clause 4(2) in line 19 on page four of the Bill to omit “in the opinion of the Minister”.

The Chairperson proceeded to take the Committee through the Bill clause by clause whereupon the Committee expressed agreement to each. Clauses 1, 3, 5, 8, 9, 10, 11, 12, and 13 were agreed to as introduced. Clauses 4, 5, 7 and the Memorandum on the Objects were agreed to as amended. Clause 2 was rejected.

The Bill was adopted as amended

Committee Report on the Bill

The Chairperson read the Committee’s Report on the Bill:

The Portfolio Committee on Transport, having considered the subject of the Airports Company Amendment Bill [B 5 – 2018] (National Assembly – sec 75), referred to it and classified by the JTM as a section 75 Bill, reports the Bill with amendments [B 5A –
2018].

 The report was adopted.

Air Traffic and Navigation Services (ATNS) Company Amendment Bill
The Chairperson asked Ms Ebrahim to present the proposed amendments to the Committee.

Ms Ebrahim took the Committee through the proposed amendments on the Bill. Amendments were proposed to Clauses 1, 2, 3, 5, 8, 10 and the Long Title. She pointed out that most of the Clauses were technical changes. However on Clause 2 and Clause 10 new subsections were added.

Mr M Sibande (ANC) felt that provisions in Clause 2 were vague. He asked how the appointment of non-executive directors in the Company was to be done. What would be the split? He asked whether there was cause for concern over the constitutionality of the Clause as often people who applied for posts as Chief Executive Officers (CEOs) and Chief Financial Officers (CFOs) often had gripes and wished to take matters to court.

Ms Ebrahim explained that the majority of non executive members shall be persons who are not employees in terms of the Public Service Act. Reference was only made to the Public Service Act, the Companies Act dealt with the appointment of non executive members. It should be 50% plus one. In other words six of the persons could not be employed in terms of the Public Service Act.

The Chairperson asked what the Department of Transport views around this was.

Ms Tshitshi Phewa, Chief Director, Department of Transport, said that it would apply more at Board level and not at Regulatory Committee level. At Regulatory Committee level expertise was needed.

Mr C Hunsinger (DA) referred to the changes in numbers of executive and non executive members and said the issue was around the impact that it could have. People needed to be assessed at practical and operational level.

Mr Ebrahim reiterated that non executive members would be appointed in terms of the Companies Act. On the question whether it was acceptable to have officials of the public service to serve as non executive board members she responded that there were some that felt that public officials should not serve on boards. However the Department of Transport had felt it important for public service officials to be on the Board as their expertise was needed.

The Chairperson asked how members felt about public service officials serving on the Board as non executive members.

Ms Thandeka Mdebuka, Legal Counsel, Air Traffic and Navigation Services Company stated that the Company’s Memorandum of Incorporation excluded public servants to serve as non executive directors. 

Mr Noko Mashala, Assistant Director: Tariff Regulation, Department of Transport, explained that all the provision in Clause 2 was saying was that when public servants served as non executive members they should not be in a majority. At present there were no public servants on the ATNS Company Board at present. He felt there nothing wrong with the provision.

The Chairperson stated that the Memorandum of Incorporation of the Company was clear. The Minister would use his/her discretion. She said that the Committee would now proceed with deliberations on the Bill clause by clause.

Ms Ebrahim reiterated that most of the amendments proposed were of a technical nature. A proposed technical change was on the definition of “company” to include the word “and”. The definition would refer to Air Traffic and Navigation Services Company.

The Chairperson proceeded to take the Committee through the Bill clause by clause whereupon the Committee expressed agreement to each. Clauses 4, 6, 9 and 11 were agreed to as introduced. Clauses 1, 2, 3, 5, 7, 8, 10, the Long Title and the Memorandum on the Objects were agreed to as amended.

The Bill was adopted as amended.

Committee Report on the Bill

She proceeded to read the Committee’s Report on the bill:
The Portfolio Committee on Transport, having considered the subject of the Air Traffic and Navigation Services Company Amendment Bill [B 6 – 2018] (National Assembly – sec 75), referred to it and classified by the JTM as a section 75 Bill, reports the Bill with amendments [B 6A – 2018].

 The report was adopted.

Committee Minutes
Minutes dated 08 May 2018, 20 November 2018, 12 and 26 February 2019 was adopted unamended.

The meeting was adjourned.