In a virtual meeting, the Select Committee received a briefing from the Department of Transport regarding its proposed amendment of Regulation 116 of the National Road Traffic Regulation of 2000, in terms of section 75(6) of the National Road Traffic Act, 1996 (Act no 93 of 1996).
The Committee was briefed on industrial action that was embarked upon by disgruntled South African truck drivers over allegations that the freight industry was employing foreign truck drivers over South Africans. The Committee further heard that the freight industry regularly flouted the country’s labour and immigration laws to hire foreign truck drivers at wages lower than what is prescribed by the Department of Employment and Labour. This resulted in violent tensions between South African and foreign truck drivers, prompting the establishment of an Inter-Ministerial Technical Committee to address the concerns raised by South African truck drivers. The Committee was also told that truck driving was not considered a scarce skill per a 2014 government gazette by the Department of Home Affairs, and as such, preference should be given to South African truck drivers.
The Department had proposed the inclusion of Regulation 116A, which would allow South African registered trucks being operated by drivers who have a South African issued professional driving permit as contained in Section 32(3)(a) of the National Road Traffic Act (Act no. 93 of 1996). This would ensure that preference would be given to South African truck drivers.
There was consensus among Committee Members that there is a need for urgent regulations to address the concerns of the drivers, however the Committee did not approve of the proposed amendment in its current form, stating that it would discriminate against foreign truck drivers who play a key role in facilitating the movement of goods between South Africa and the continent. The Committee had recommended that the Department consider the practicality of the amendment and for there to be further consultations with industry stakeholders, sister select and portfolio committees and the public.
The Committee also considered the adoption of minutes of its meeting with PRASA on railway management on 8 September 2021. The Committee resolved to delay the adoption to allow the Committee secretary to include discussion points that were raised by Members but were not included in the minutes.
Chairperson Welcome and Apologies
The Chairperson welcomed Committee Members, officials from Parliament and officials from the Department of Transport (DoT) to the virtual meeting. The purpose of the meeting was to receive a briefing from the DoT to consider a proposed amendment to Regulation 116 of the National Road Traffic Regulation of 2000 in terms of section 75(6) of the National Road Traffic Act, 1996 (Act no 93 of 1996).
The meeting was also to consider the adoption of minutes from the meeting held on 8 September 2021 with PRASA on railway maintenance.
The Committee Secretary, Mr H Mtileni, said that there were no apologies except from the Minister Fikile Mbalula and the Deputy Minister Sindiswe Chikunga who were attending a Cabinet meeting.
Adv Johannes Makgatho, Chief Director: Road Transport Regulation, presented the DoT’s proposed amendment to Regulation 116 of the National Road Traffic Act. He was supported by Mr John Motsatsing, Director for DoT, as he had experienced technical difficulties during the presentation.
Background to the proposed amendment
Adv Makgatho stated that disgruntled South African truck drivers had embarked on industrial action, accusing the South African freight industry of having hiring preferences for foreign truck drivers as opposed to South African drivers. For the past two years, there were allegations that the freight industry were undermining the country’s immigration laws to hire foreign drivers at less than the prescribed national minimum wage as determined by the Department of Employment and Labour (DEL). Violent tension escalated during the industrial action which caught the attention of the DoT in January 2019. The Minister had proposed that whenever there were site inspections done by the Department at depots, trucking associations should be invited to partake in the inspections as they are best positioned to share information of employers flouting labour and immigration laws.
Establishment of Inter-Ministerial Committee
Mr Motsatsing said that government had decided to establish an Inter-Ministerial Technical Committee (IMC). The Committee comprised the DoT, DEL, South African Police Service (SAPS), the State Security Agency (SSA) and Department of Home Affairs (DoH). Each department was tasked to provide solutions for the concerns raised by the truck drivers.
DoT had tasked its agencies, the Road Traffic Management Centre (RTMC) and the Cross Border Road Transport Agency (CBRTA), to establish how SADC countries handled the authority conveyed by professional driving permits (PrDP) issued in South Africa when used to operate trucks in their respective countries.
It was found that despite the SADC agreeing to recognise the regional drivers’ licenses and PrDPs, South African licenses and permits were not recognised. South African drivers are not permitted to operate trucks registered in any part of the region and are limited to operating trucks in the country. Section 32(3) of the National Road Traffic Act recognises all drivers’ licenses and PrDPs of prescribed territories; however it seems that no similar legislation has been reciprocated in other SADC territories.
Proposed amendment to Regulation 116
Mr Motsatsing said that the Department is proposing that Regulation 116 of the National Road Traffic Regulation of 2000, be amended with the insertion of Regulation 116 A which proposes that the PrDPs from foreign countries only be recognised in the countries in which they were issued. The amendment further adds that South African registered trucks are to be operated by drivers who are in possession of South African PrDP as supported in section 32(3)(a) of the National Road Traffic Act. There is a provision in the Act which states that if a driver is not in possession of a South African identity document, they can obtain an infrastructure number which they will use to obtain a South African driver’s license and PrDP.
He had outlined a comparison study to see how South Africa’s requirements and validity for PrDPs compared to the rest of the continent. He also outlined the categories about which permits are issued and what disqualifies a person from obtaining a permit. These included medical examinations, criminal records, age limits and special circumstances licenses, and which permits are issued.
Reference was made to the 2013 Pinetown accident where a truck driver had caused a fatal accident at a busy intersection, killing 27 people and injuring others. Upon investigation, it was established that the driver was a Swazi national by the name of Mr Sanele Goodness May who was in the country illegally and had a falsified driver’s license and invalid PrDP. He pleaded guilty to all charges related to the accident and was sentenced to a 15-year jail term.
The proposed amendment is to avoid situations where foreign issued PrDPs are not authenticated and limits the loopholes in current legislation which companies take advantage of to hire foreign drivers and pay them below the minimum wage. It is not to say that foreign truck drivers are responsible for accidents in the country, however the impact of an accident such as the Pinetown incident has a negative impact on the economy and requires significant time dedicated to clearing accident scenes.
DoH had, in government gazette 37716, dated 3 June 2014, declared that truck driving was not a scarce or critical skill as such, there should be more emphasis placed on hiring South African drivers as opposed to foreign drivers. This is seen to address unemployment among South African truck drivers who feel that foreign drivers are taking away their jobs, especially as they—South African drivers—have the required documents to operates trucks. DoT has recommended that foreign nationals should rather apply for jobs that have been identified as a scarce skill.
Adv Makgatho emphasised that driving is not a scarce skill and that the proposed amendment is not aimed to prohibit foreign nationals from driving trucks in the country. Should freight companies chose to hire a foreign truck driver, they should adequately follow the immigration and labour laws. DoH and DEL are working together to find a way of stronger enforcement of the respective laws.
Mr T Brauteseth (DA, KZN) said that the Department’s presentation reminded him of his tenure as Pinetown councilor when the accident occurred. He said that while Mr May received a lengthy jail sentence, the owner of the truck was not sentenced which was a travesty of justice.
He wanted the Department to comment on Parliament’s role in the proposed amendment. He was concerned that the proposed amendment had not appeared before the Portfolio Committee on Transport as it seemed that the amendment was a regulation and not a legislative process. The amendment seemed to be a ministerial regulation which comes into effect at the discretion of the Minister. The standard legislative procedure would be for the Portfolio Committee to discuss such an amendment, along with input from the Select Committee and comments from the public. This process seems not to have been followed.
On the surface, the amendment is sensible by ensuring that foreign truck drivers in South Africa are adequately qualified and that the rights of South African drivers are secured. However, there are unintended consequences which needed to be discussed with the trucking industry. For instance, if a South African company operates in a foreign country and the truck driver is a national of the country, they will have to switch places with a South African driver once they reach the country’s border posts. The amendment does not take into consideration the practicality of its implementation, nor does it consider inter SADC or continental travel. The amendment should be referred to the Department for further consideration before a committee vote can take place.
The DA would reserve its voting position if asked to vote for the amendment in its current form.
Mr M Rayi (ANC, Eastern Cape) said that while he would vote in favour of the amendment, he had concerns with the presentation. He said that the use of the Pinetown accident in the presentation to justify the amendment is improper. Accidents can happen anywhere in the country, regardless of a driver’s nationality. The Department is under pressure to respond to the industrial action by South African truck drivers which has resulted in the proposed regulation.
If the Committee endorses regulations that bar foreign truck drivers, it could lead to a possible shortage of drivers. He referred to the recent shortage in the UK since the start of Brexit, leading to a fuel shortage and the UK government asking foreign truck drivers to assist in transporting fuel to fuel stations in the country. How would the amendment avert a similar situation in South Africa, considering that it can take up to two years for the legislative process to be concluded as well as the processes the Department must follow such as consulting NEDLAC and other stakeholders? What would happen to foreign drivers who have the necessary documentation to operate in the country if the amendment was to pass? Would their documentation be invalid thus being unable to work in the country?
It is feared that the amendment would also lead to provincialism where citizens would only want workers to be from their provinces. The Department was warned not to trivialise the scarcity of drivers as it would lead to foreign drivers being kicked out from communities as they will be seen not to be bringing value to the South African economy. This would have a knock-on effect on other skills such as foreign owned spaza shops also being removed. The Department should think about the long-term effect of its proposal.
Committee members should also consult their caucuses for guidance and refer back to the Committee on their caucus’s positions.
Ms B Mathevula (EFF, Limpopo) agreed with Mr Rayi, adding that the amendment needs further consultation with affected stakeholders. If it is to be implemented in its current form, it will lead to foreign nationals being kicked out of communities. Foreign nationals cannot be told that they cannot work in South Africa even though they have the necessary documentation to do so.
The EFF would not support the amendment in its current form.
Mr M Dangor (ANC, Gauteng) supported Mr Rayi, stating that the amendment could lead to narrow nationalism and un-African behaviour on the continent. He said that he would support the amendment considering its urgency, however it requires further consultation.
Mr T Apleni (EFF, Eastern Cape) added that the amendment would spur xenophobia. The amendment should go through a community consultation process before it is considered by both Houses of Parliament.
Ms M Moshodi (ANC, Free State) asked for clarity on criminal records. She wanted to find out if all criminal records would disqualify foreign drivers from being allowed to work in the country or would there be a list of records which would prohibit a foreign truck driver obtaining a PrDP.
The Chairperson had asked if the proposed amendment had been presented to the Select Committee on Trade and Industry for their input and if NEDLAC had been consulted.
Adv Makgatho said that the Department had followed section 75 of the amended National Road Traffic Act which requires the Department to inform Parliament of any regulation it wishes to promulgate. The Department had informed Parliament’s Acting Secretary of its intention to present the amended regulation. The Portfolio Committee for Transport had expressed concern that regulations would be presented before Parliament however the Committee would have no knowledge of what the regulations entailed. The Acting Secretary had submitted the regulation to the Select Committee on Transport for further discussion and consideration before referring it to any other Committee.
Regarding public participation, the regulation was published and gazetted on 23 April 2021 under government notice number 44484. Responses were received from industry and from the public within the 30-day comment period.
In terms of NEDLAC, the amendment does not require a socio-economic impact study and so there was no reason for the Department to present the amendment to NEDLAC. The Department would only do so if requested or guided to do so.
Adv Makgatho emphasised that the Department was not under any pressure to draft the proposed amendment. The Department forms part of the inter-ministerial committee which tasked different departments to provide solutions to the concerns raised by the drivers and that there are numerous solutions that that committee had suggested. The amendment was one such solution along with numerous other proposals in accordance with the National Operator System. The details of the other proposals would not be presented to the Committee as it would require the IMC to appear before the Committee to provide detailed a presentation on how each department prepared their proposed suggestions to formulate an integrated response.
Referral to the Pinetown accident in the presentation was bringing awareness to the country’s road and traffic laws which ought to be followed. It was not meant to place blame on foreign nationals for road accidents in the country. Another example could have been used, however the Pinetown incident was deemed relevant and not as a form of demonisation.
The Department was not barring foreign nationals with a permit to work in South Africa however, they would need to follow the same procedures as South African citizens to obtain a driver’s license and a PrDP, and to be able to make a living in the country.
Regarding the skills scarcity of drivers, he said that it was the position of the government to not classify truck driving as a scarce skill. He noted Mr Dangor’s concern of the amendment leading to narrow nationalism and Mr Apeleni’s concern of potential xenophobia being sparked, thus needing further community engagement.
On criminal records: when a foreign truck driver wishes to apply for a PrDP, they would have to undergo a medical examination and a criminal record check to assess whether they have been convicted of an offence. This includes driving under the influence of alcohol or narcotic drugs and reckless driving. These are measures that have been put in place per section 117 of the National Road Traffic Act. In a comparative study done by the Department, it found there are other jurisdictions that do not require such checks, making South Africa one of the few to do so.
Mr Brauteseth's comment about referring the amendment back to the Department for further research was noted.
The Chairperson said that the amendment required further research and consultation and that the Select Committee’s input must also be considered. He noted that the IMC had convened to address the concerns of South African drivers. The Select Committee will need to have discussions with the Select Committee on Trade and Industry which has oversight over employment and labour. While the Department had public consultations regarding the amendment, Parliament still needed to follow its processes and consult its Legal Office for further guidance.
Mr Rayi expressed dissatisfaction with the Legal Office for not being present at the committee meeting. He said that this was not the first time the Office had not partaken in legislative and regulatory discussions with the Committee. This should be raised with the head of the Legal Office so that future meetings have a representative from the Office. The Committee needed guidance to interpret the practicality of the amendment in accordance with section 32(3) of the National Road Traffic Act. The section does not bar foreign truck drivers from operating trucks that are registered in South Africa even if they have obtained their PrDP from their home countries. The amendment cannot be a stand-alone issue as it should arise from the need to address a section of the law. Is the amendment in line with the NRTA?
The Chairperson said that there are treaties that South Africa has signed which governs inter-continental trade such as the African Continental Free Trade Area (AfCFTA), which also needs to be factored into the consultation process. The proposed measures should not contradict the signed treaties and, importantly, it should uphold and be tested against the values of the Constitution.
Adoption of Minutes
The Committee had considered the minutes for the meeting held with PRASA on the refurbishment of railway infrastructure on 8 September 2021.
Mr Rayi had advised the Committee Secretary to provide detailed minutes and outline the crux of matters raised in future meetings. He had raised several issues with PRASA that affect his province such as the line between East London and Berlin, and the conditions of the respective stations, the details for which do not appear in the minutes. The minutes should assist the Select Committee to reflect on issues raised to follow-up on state departments and entities.
The Chairperson concurred with Mr Rayi and said that there was a line closure by the Railway Safety Regulator which also do not appear in the minutes.
Mr Dangor supported Mr Rayi and stated that he raised concerns about the Naledi to Johannesburg line that needs to be repaired and refurbished as well as the Randfontein to Springs line, both of which did not appear in the minutes.
Mr Brauteseth asked the Chairperson to delay the adoption to the next Committee meeting to allow the Committee secretary time to amend the minutes. The adoption of the minutes will be on record and the Committee will be bound by the adoption even though there are missing issues raised by members. The Chairperson agreed.
The Chairperson had thanked all members for their attendance and for their contributions to the meeting. He thanked them for enhancing their role as an oversight committee and reminded members that any adoption of policies by the Committee should not be discriminatory to foreign nationals. The decisions taken should be impartial and align to the country’s constitutional values.
The meeting was adjourned.
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