Civil Aviation A/B & Economic Regulation of Transport Bill: deliberations

Meeting report

The Chairperson noted apologies from the Deputy Minister.

Civil Aviation Amendment Bill
Adv Alma Nel, Committee Content Adviser, continued to note the changes made to the Act in each section of the Amendment Bill:

Clause 53 Amendment of section 142 of Act 13 of 2009
Adv Alma Nel, Committee Content Adviser, drew attention to the addition to section 142 the wording: "explosives, radioactive or nuclear material, biological weapons and weapons of mass destruction" to be in line with international guidelines.

In Section 42(2), the amendment removes the reference to ‘in the service of the State’ and there is the consequential amendment of the addition of "explosives, radioactive or nuclear material".

Section 42(2A) inserts "No person shall convey any biological weapon or weapons of mass destruction in an aircraft"

Section 42(3) includes "explosives, radioactive or nuclear material, biological weapons, weapons of mass destruction".

In Section 42(5), DoT has requested a proposed amendment highlighted in yellow [this was not read out].

Mr L Mangcu (ANC) referred to Section 42(2)(b) which states ‘Except with the written permission of the Minister, no person may move explosives’ and asked if permission will be given to the Defence Force and the Police.

Mr L McDonald (ANC) asked for clarity on the nuclear statement and said that a lot of cancer medicine and treatment devices are classified as nuclear material. How would this affect the transportation of those medicines and materials.

Mr K Sithole (IFP) referred to Section 42(2) stating "no person shall convey any …. drugs" and asked what drugs are covered because people get stopped at airports for carrying flu drugs.

Adv Nel requested that the Department provides clarity on the matters raised by Members.

Mr Levers Mabaso, Acting Chief Director: Aviation Safety, Security, Environment and Search and Rescue, Department of Transport, replied that "drugs" is in reference to the quantity of liquid that is carried that is above the legal limit and not a specific drug. On the permission granted by the Minister, it does not include the Defence Force or the Police but relates to those who are using civilian transport.

Mr Mangcu said that the Amendment Bill needs to be specific because it only states that the Minister may give permission to move explosives on aircraft. He asked if there is an exclusion or some sort of protection because it will cause confusion for a future Minister. He proposed that the phrase is excluded to avoid confusion.

Mr McDonald said that the wording of the Bill implies that people on cancer treatment will not be allowed on an aircraft. The terminology needs to be expanded and broadened. He agreed that the use of the word ‘drugs’ is loose and can be easily misunderstood by people.

Mr Mabaso said that the Act should not be read in isolation and that the "nuclear material" referred to is the same as defined in Section 1 of the Nuclear Energy Act of 1999. Nuclear material that is permitted to be transported will be granted special permission on an aircraft.

The Chairperson pointed to Section 142(1) of the Act that states "drugs" include any drug, as defined in Section 1 of the Drug Trafficking Act of 1992 Act 140, that has not been acquired or possessed lawfully.

Adv Nel said that Section 142 has a definition for ‘drugs’ and the conditions under which they can be possessed. She asked if the definition of "nuclear material" can be included because it will provide clarity.

Mr Sithole asked about the restrictions on animal products in an aircraft in Section 142. 

Adv Nel said that "weapons of mass destruction and nuclear and radioactive material" would be added. However, there were no changes to animal products in the Act but over time there may be changes especially to live animal transportation.

Mr McDonald said that there was an agreement that there would be an addition to Section 142(3) that a definition of prohibited animals is needed because the live animals section is not clearly stated in the Act.

Adv Nel said that DoT should clarify the prohibited aspects and whether live animal transportation should be included under section 142.

Mr Mabaso replied that there is no clause that talks to the transportation of live animals in the Bill.

Mr McDonald said that there are endangered species which could be carried by air to China such as the pangolin. There was no definition of endangered species in the Act or the Animal Protection Act. He asked if this could be included in the Act.

Adv Nel said that the definition is included in the principal Act under Regulations.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, said that the definition on drugs is specific to section 142 of the Act. If a definition is added that applies to the whole Act, it will be added to clause 1 containing the definitions. There are three sections in the Act that deal with nuclear material and so that definition is provided in clause 1 on definitions. He said the necessary amendments will be made to clear the confusion.

Clause 54 amending Section 143 Threat to safety and security
The Committee was in support of the clause.

Clause 55 amendments to subsection 8 of section 144
The Committee was in support of the clause.

Clause 56 amendments to section 145
The Committee was in support of the clause.

Clause 57 amendments to section 146
The Committee was in support of the clause.

Clause 58 and 59
No comments were made by Members.

Clause 60 amending section 155 of Act 13 of 2009
Mr Mangcu asked for clarity on the reference to "any advisory committee" in section 155(1)(pp) and on (yy) "the establishment of a structure that brings together aviation role players to pursue transformation of the aviation industry".

Mr Mababso replied that aviation is an evolving industry so there may be new developments such as drones which is why an advisory committee needs to be established to deal with any arising issues. The other committees outlined in the Act have already been prescribed by the International Civil Aviation Organization.

Mr Mangcu said that there might be over regulation as the Minister can establish any advisory committee or receive advice when required.

The Committee was in support of the clause.

Clause 61
Adv Nel said that the clause would repeal sections 156 to 162 on Application of Consultative Structures and Civil Aviation Regulations Committee.

Mr McDonald asked for clarity on the removal of section 162 Emergency Regulations.

Mr Mangcu agreed with Mr McDonald and asked for assurance that the safety part is covered under the independent board.

Mr Mabaso replied that the Civil Aviation Regulations Committee in section 155 is removed. The Act authorises the issuing of directives which has a similar effect as the issuing of emergency regulations.

Adv Nel said that under Clause 60 extends the regulation-making powers of the Minister due to the international requirements for the introduction of the State safety programme which seeks to regulate the safety regulations. There is the addition of the 'aviation emergency plan' in the event of aircraft emergencies and the advisory committee to establish, implement and manage the state safety programme.

Clause 62
No comments were made by Members.

Clause 63
Clause 63 seeks to replace the expression ‘‘Director’’ with ‘‘Commissioner’’ throughout the Act.

Mr Sithole asked if the Commissioner 'must' or 'may' issue technical standards. 

Adv Nel replied that like most regulations the standard use is the word ‘may’ because it happens when it is needed not mandatory.

Adv Jenkins agreed with Adv Nel’s explanation.

The Committee was in support of the clause.

Clause 64 and 65
Adv Nel said Clause 64 and the associated Schedule 1 amend various laws to align them with these amendments to the Act. Clause 65 provides the title of the Act. She asked Adv Jenkins if the date should change or stay as 2018.

Adv Jenkins said that the date will change after the President has signed and passed the Bill.

The Committee was in support of the clause.

Schedule 1 of Laws Amended
Adv Nel went through the five Acts that would be amended by this Bill.
- Air Services Licensing Act for correction of Civil Aviation Act 2008 to 2009.
- Convention on International Recognition of Right and Aircraft Act: change Director to Commissioner.
- South African Civil Aviation Authority Levies Act: change definition of ‘levy chair’ and change date to 2009
- International Air Services Act: change Director to Commissioner.
- Convention on International Interests in Mobile Equipment Act: change name of entity.

The Committee was in support of the schedule.

Adv Nel highlighted corrections to the A list that was submitted to the Committee in August 2020. She said that State Law Advisor, the Parliamentary Legal Advisor and DoT have worked well since engagements and deliberations on the A list, which is not yet available for Members because adjustments need to be made.

Adv Jenkins said that the A list will be finalised.

Economic Regulation of Transport Bill
The Chairperson said that a query was raised about Schedule 1 by Members at a previous meeting. He asked Adv Nel to resume and DoT would answer the query from the previous meeting.

Adv Nel said that the query about Schedule 1 was if the amendments to the Airports Company Act, Air Traffic and Navigation Services Company Act and the National Land Transport Act took into account the Amendment Bills processed by Parliament in the last few years that were still awaiting signature of the President. Feedback is still expected on those Bills.

The Chairperson asked if more time is required to address the query.

On the Amendment Bills, Mr Moeketsi Sikhudo, DoT Project Manager, Single Transport Economic Regulator, said that there had been engagements. 

Schedule 2
Item 3 Appeals and complaints
This dealt with appeals as noted in section 46 of the National Ports Act.

Mr McDonald said that Committee discussion noted that the amendments did not include the Cross-Border Road Transport Act and other Acts. It was expected that the matter should be addressed first so that it can be finalised. DoT previously mentioned that the Bill was supposed to save money, combine economic regulation and make things easier. He asked for clarity on this concern before continuing with other issues.

Mr Mangcu agreed with Mr McDonald. On appeals and complaints, he asked for the background of section 46 of the National Ports Act and the relevance of Item 3. By enacting this Bill; anything from the Ports Regulator would be removed and the National Ports Act would cease to exist.

Mr Sikhudo replied that the Ports Regulator would be the nucleus for setting up the Transport Economic Regulator and the clauses in the National Ports Act relate to economic regulation facilitated by the Ports Regulator. The Ports Regulator would form the Transport Economic Regulator.

Mr Mangcu assumed that the Ports Regulator being the nucleus would mean that the team, systems and people that are there form the basis of the infrastructure used to kick start the new Transport Economic Regulator and this would mean the end of the existence of the National Ports Act. The DoT implies that the National Ports Act will continue considering Item 3 and Section 46. This does not make sense and he proposed that an entirely new regulator is established using the infrastructure of the Ports Regulator.

Adv Nel said that the clause is needed to deal with matters of invested rights and it will protect the vested rights of people during the transition. The Ports Regulator will be a starting point.

Ms Raksha Haricharan, State Law Advisor, said that Item 3 in Schedule 2 provides for transitional provisions to be put in place while the Transport Economic Regulator comes into place. It is legislative mechanism to provide for practical situations when a new entity comes into place for legislative continuity. The sentence in lines 49-50 of Item 3(3) is essential: "The Regulator may exercise any power of the Ports Regulator, in terms of the National Ports Act, to investigate any complaint in terms of the relevant Act concerning conduct that occurred during the period of three years immediately before the effective date".

The Chairperson asked if over time the old Act will phase out to allow the new formation to take place.

Ms Haricharan confirmed what the Chairperson said that it is not permanent. It is used for a short period of time and is transitional.

Mr Mangcu said that headings need to be clarified. What happens when another economic regulation of another entity is ready to be taken on board under the new regulator?

Ms Haricharan said that the question has reference to the Cross-Border Road Transport Act (CBRTA). Her response was related to the National Ports Act. She asked to return to that point later.

Adv Nel said that Mr Mangcu's concern is based on the fact that the clause refers to appeals and complaints. Arrangements are being made about Air Traffic and Navigation Services (ATNS), Airports Company South Africa (ACSA), SANRAL and the National Transport Regulator.

There is no provision for ACSA appeals. ATNS is still allowed to levy their charges and she noted the amendment to section 13 of the ATNS Act on general appeals. There is no specific reference to appeals for the National Land Transport Act (NLTA) and SANRAL is based on publication and amendments to tolls. DoT may have to indicate if the ATNS appeals and complaints can be covered in Schedule 2.

Mr Sikhudo replied that Mr Mangcu’s question is based on any other regulators that may be included in the Transport Economic Regulator. There are three options: incorporate a clause related to other regulators, wait to make amendments, or to have DoT to take over the function in the interim. The Committee can provide guidance on the option that can be taken by DoT.

The Chairperson said that Mr Mangcu’s question on Item 3 acting as an interim measure should also cover other entities.

Members agreed with the Chairperson.

Adv Nel reminded Members on the point raised on the Civil Aviation Bill that the Committee should be careful when amending Bills for entities that will be required to perform their functions over the coming years. If the requirements of the Bill are taken away without a regulator in place, then there will be a lacuna and confusion. Those functions need to be considered if the Bill does not have that provision. This will also answer questions on why amendments are not being done to the CBRTA in Schedule 1. Sometimes it is better to leave additional provisions for later amendments if entities will be affected in performing their functions.

The Chairperson said that when the Civil Aviation Bill was being discussed, then Members would be directed to the principal Act and given clarity. However, if there is no clarity, the Committee cannot perform half-done work especially when other entities are not covered in the clause. The Chairperson said that the this Act should cover other entities because when DoT was presenting, that option was provided. The intention of the Committee is not to create a lacuna but to seek clarity and produce sound legislation.

Mr Mangcu said that the Committee is this Bill is dealing with legislation for many entities and there is a way of not activating a clause if there is no proper preparation for it. Forever legislating is a weakness in government with long processes.

On creating confusion within the law, Ms Haricharan said that confusion is not the intention of the Economic Regulation of Transport Bill. It creates a new mechanism and framework for the transport sector to consolidate the economic regulation of transport to bring all the different transport sectors under the same framework and policy. Schedule 1 provides for amendments to existing Acts and Schedule 2 provides for transitional provisions to ensure a seamless transfer to the new ERT Bill and not to create a lacuna. The ERT Bill is new in the sector.

Ms Thiloshini Gangen, Parliamentary Legal Advisor, said that the amendments to the National Ports Act, ACSA and the Air Traffic Act have not been signed by the President so the ERT Bill cannot be passed until the other Amendment Bills have been passed. It is not ideal to continue with a Bill because those Amendment Bills awaiting assent by the President can be sent back to Parliament according to section 79(1) for further amendment.

The Chairperson said that the legal advisors have more information than the Committee.

Item 4 General preservation of regulations, rights, duties and instruments 
Adv Nel said that this protects vested rights and gives transition rights.

Mr Mangcu said that Item 4 makes provision that anything that happened before the implementation of the Act still stands which is not effective because there are gaps in the previous Act that need to be addressed.

Mr McDonald agreed.

Item 5 Regulations
Adv Nel noted that for a period of 60 business days after the Act coming into operation, the Minister may make a regulation without meeting the procedural requirements in section 54 provided that the Minister has published those proposed regulations in the Gazette for comment for a period of at least 30 business days.

Mr Mangcu raised an objection and asked DoT to explain why the provision must not be followed because there seems to be a contradiction on the 30 days to gazette mentioned in section 54.

Mr McDonald agreed.

Mr Sikhudo replied that under normal circumstances within 60 days there could be decisions that need to be carried out by the Minister and the 60-day period allows the Minister the power to make the decision. He used price control and agreements as an example.

Ms Haricharan said that Item 5 provides for a situation that may arise after the date the Act becomes effective that will require the Minister to make regulations. If the matter is urgent such as a dispute or price control matters, the Minister has the power to make regulations. This will ensure legislative and legal continuity from the previous transport act to the new Economic Regulation Of Transport Act. She highlighted the proviso that the proposed regulations are published for public comment for 30 business days.

The Chairperson said that the role of the Portfolio Committee is to play an oversight role. The Committee is not a public stakeholder and it is improper for the Committee to obtain information from DoT in the public space. The Chairperson said that Item 5 should provide that the Minister engages with the Committee.

Mr Mangcu agreed and said that it is not acceptable for procedure not to be followed regardless of urgency.

Mr McDonald agreed and said that a provision in an Act cannot be allowed if it allows the Minister to take decisions or make regulations without consultation.

Mr Sithole said that the consultation highlighted in Item 5 could be made in the National Assembly without specifying if it is with the Portfolio Committee. It is not good for the operation of the country if a Minister can make decisions without proper consultation.

Ms Haricharan said that compliance is the intention and to allow the Committee to have a say. If the Committee wants to make an amendment for it to be included in Item 5, then it can be done.

Adv Nel said that clause 54 needs to be changed as has been discussed to include the Committee.

Mr Mangcu said that it was discussed in the previous meeting, but it was labelled as National Assembly which by default refers to the Portfolio Committee, it was not specified.

Mr McDonald agreed with Mr Mangcu.

Mr M Chabangu (EFF) said that he is not in agreement with what has been said.

Mr P Mey (FF+) agreed with the decision.

Ms Gangen confirmed that in clause 54, it will state that regulations are to be forwarded to Parliament. It will be added to the A list.

Item 6 Transition of Ports Regulator
Adv Nel noted that the transition covers the Ports Regulator and not other entities.

Mr McDonald said that there should be attempts at making the Bill future-proof so that when the Bill is enacted there will be no further amendments. All the other regulators will be combined into one regulator. There is no point in excluding the other entities only for the Bill to return for amendments as this is foreseen. He suggested that the Bill combine all the entities so that there are already provisions for all the other entities.

Mr Mangcu agreed with Mr McDonald. He referred to 6(2)(b) and asked if the employees of the entities are regarded as part of the Public Service Act.

Mr Sithole asked if Item 6 includes disciplinary procedures for misconduct and if the person will be disciplined according to the Ports Regulator.

Ms Gangen replied that disciplinary procedures will still stand under the Ports Regulator.

On the Public Service Act, Mr Sikhudo replied that board members are remunerated differently so it would be difficult to provide a response on the matter.

Mr McDonald said that the whole Item 6(6) on the movable assets of the Ports Regulator needs to be removed because the regulator becomes a new regulator. If assets need to be removed, then they can be done under the new Regulator.

Mr Mangcu said that his question on the Public Service Act was not responded to because it has a bearing on broader aspects.

Adv Nel replied that the only place in the Bill that references the Public Service Act is in Item 6 that links to the pension fund. The National Ports Act does not refer to the Public Service Act but to the Legal Succession Act which will have reference to the Public Service Act. She asked for clarity. If employees are employed based on the Public Service Act then their contracts will be carried over. On movable assets, she said that it is a standard clause for a general transition bill but asked DoT to further clarify the matter.

Ms Gangen said that the drafters can make amendments to the clause on the transfer of employees. Board members are not employees. She said Item 6(2) can be read together with 6(4).

Mr Mangcu said that his question was not answered as an employee can be part of the Government Employees Pension Fund but not part of the Public Service Act. It reads "any collective agreements reached between the State and the trade union parties" which means that the employees are part of the Public Service Bargaining Council.

The Chairperson re-read Item 6(2) as highlighted by Mr Mangcu.

Mr Sikhudo replied that reference needs to be made to the Ports Regulator so that there can be understanding on how employees are governed and whether they are governed by the Public Service Act. He asked for the Committee to revert to the Ports Regulator.

Adv Nel said that the National Ports Act would help in providing clarity.

Item 7 Interim administrative arrangements for Council 
Adv Nel said the administrative staff appointed by the Minister to enable Council to perform its functions will be from DoT and will fall under the Public Service Act as department employees will have bargaining council agreements.

Mr Mangcu asked why Item 7(1)(a) states that “the Minister must provide…”.

Mr Sikhudo replied that Council is a part-time board which is why administrative capacity is needed and why the Minister must provide this capacity.

The Chairperson asked if there is no alternative because Council is temporary.

Mr Sikhudo agreed that there is no other alternative. As the Council is temporary, this is why capacity is required from DoT. The same structures relating to capacity can be found in the Regulating Committee and the National Public Transport Regulator.

Mr Mangcu said that there is too much reliance on what happens somewhere else and suggested that must be changed to may.

Mr Sikhudo replied that if the section is changed to may, the Council consists of part-time members who have other jobs elsewhere. If the Minister is not forced to provide support staff no one else will. The focus is for the Minister to provide support staff. This Bill is the first of its kind in the transport sector so it will not be perfect, but instruments need to be implemented to support the Bill. Adding may to the section will mean that the Minister has a choice of providing or not providing support staff to Council. He pleaded with Members to leave the wording unchanged.

Adv Nel agreed with Mr Sikhudo that if the Minister is not forced to provide support staff then there will be no staff for Council. If the Minister uses must and sends one person to support Council, the Council will still be able to use the transition arrangements to demand more support staff that is enough for Council. She also pleaded with the Committee to leave it as must.

Mr Sithole raised concern that the Minister is not the accounting officer but plays a political oversight role.

The Chairperson said that this does not mean that the Minister will personally focus on the support staff but will ensure that this is addressed.

Adv Nel said that there are delegations in place to address this and that the support staff may come from other entities rather than directly from DoT.

Mr McDonald said that at the 9 March meeting, other entities needed to be added to the Bill to ensure that there are no further amendments. Assets cannot be diluted to accommodate the Bill.

The Chairperson asked who has the power to regulate.

Ms Haricharan replied that in terms of section 54 of this Bill and the Civil Aviation Bill, the Minister has the power to make regulations but in other sections of the Bill the regulator itself makes the regulations.

Mr Mangcu said that SANRAL determines the adjustments to tolls, but the actual gazetting is the Minister's responsibility. In the Civil Aviation Bill, there are sections that allow the regulator to issue regulations and there was an understanding that the Minister makes the final regulation decisions and issues them.

Adv Nel said that the Memorandum of Objects on the Bill states where the Minister will move the power to the entities to issue regulations. The regulator has the power to regulate prices where necessary. She confirmed that the Minister is the main holder of the function but operations need to be tailored to reduce the workload in the Minister's office.

Mr Mangcu accepted this response and said that he will go through the Bill for verification.

The Chairperson proposed that the public hearing of the Committee should be postponed in favour of meeting with Treasury and DoT to conclude the Moloto Rail Corridor matter.

Members agreed with the Chairperson’s proposal.

The Chairperson thanked Members as well as the legal advisors.

Meeting adjourned.