Economic Regulation of Transport Bill: Committee amendments; National Road Traffic Amendment Bill

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30 November 2021
Chairperson: Mr M Zwane (ANC)
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Meeting Summary

In a virtual meeting, the Committee considered the updated the A-list of changes to the Economic Regulation of Transport Bill. Members discussed the choice of word to describe the way in which existing economic regulatory entities would form the single Regulator in some depth. Legal advisors had suggested the word ‘amalgamate’ but some members did not believe that this word captured the phased-in approach to the establishment of the Regulator and preferred ‘incorporate.’ No final agreement was reached. Members also did not agree if the phased-in approach, which had been added to the Bill called for another round of public participation, called for another round. Members expressed some dissatisfaction with the level of preparation of the presentation of the A-list by the state law advisor.

The Committee continued deliberations on the National Road Traffic Amendment Bill. Issues discussed included: the powers and appointment of provincial inspectorates of driving licence testing centres, the unauthorised closure of the centre at Joubertina, the implementation of provisional driving licences, and provisions related to the replacement of old forms of licences, including those issued by the former homelands, with card licences. Provisions related to the recognition of foreign driving licences and permits were also discussed, with reference to recent violence towards foreign truck drivers.

Meeting report

Economic Regulation of Transport Bill: updated list of Portfolio Committee amendments
Ms Raksha Haricharan, Senior State Law Advisor, apologised for the delay in preparing the presentation of the A-list of Portfolio Committee amendments to the Bill. She led the Committee through the new changes. In Clause 4(11), it was proposed that ‘consolidated’ be replaced with ‘amalgamated’. Clause 4(11)(1)(b) was changed slightly which dealt with the responsibility of the Department of Transport (DoT) to produce a report after conducting a performance and capabilities review to incorporate regulators in three years from the effective date and from time-to time, thereafter.

Ms Haricharan noted minor consequential amendments to Section 72 of the National Ports Act in Schedule 1 and a large number of minor textual changes to various other clauses.

Mr L Mangcu (ANC) requested clarity on the reason for using ‘amalgamated’. What did it mean in this context? Did it imply that the existing regulators would cease to exist once they became part of the Single Transport Economic Regulator (STER)?

Mr C Hunsinger (DA) was also uncertain about the implications of using ‘amalgamated’ in this context, as opposed to the alternatives.

Ms Haricharan explained that it tied into the phased-in approach for the establishment of the STER. It implied that the existing regulators would fall under the STER in the future.

Mr Hunsinger was not convinced that it was the correct word but suggested that a definition of ‘amalgamated’ be included in the Bill to make it clear what it meant in this context. He asked the Chairperson to confirm that the Bill would be put through another round of public participation, given that the phased-in approach had been added after the most recent round of public consultation.

Mr Mangcu was also not convinced by 'amalgamated’ to imply that entities on an equal basis were being brought together. For example, the defence forces of the erstwhile homelands had been amalgamated when the South African National Defence Force had been established. He suggested using ‘incorporated’ instead.

Mr K Sithole (IFP) and Mr P Mey (FF+) agreed that ‘incorporate’ would be appropriate.

Ms Thiloshini Gangen, Parliamentary Legal Advisor, said that ‘amalgamated’ had been chosen because the existing regulators would lose their autonomy when they were combined into the entirely new regulator. ‘Incorporated’, meanwhile, had certain legal implications related to companies and their ownership.

Mr Hunsinger maintained that ‘incorporated’ would be preferable to ‘amalgamated’ because it implied the establishment of one new entity, whereas ‘amalgamated’ would imply a diversity of functions and roles.

Mr Mangcu agreed.

Mr Sithole asked if the use of ‘amalgamated’ in this context followed international practice.

Adv Alma Nel, Committee Content Advisor, suggested that the Law of South Africa (Lawsa) be consulted for the precise legal definitions and interpretation of the terms in question. It would also be significant if entire entities, such as the Cross-Border Road Traffic Agency (C-BRTA), were going to be absorbed into the STER or just their economic regulatory functions. If they were absorbed entirely then perhaps ‘amalgamate’ would be the better word.

The Chairperson suggested that the matter be discussed further after consulting relevant sources.

Mr Mangcu observed that ‘incorporate’ was used later in Clause 4. He also asked for ‘effective date’ in Clause 4(11)(1)(b) to be clarified.

Ms Haricharan explained that this paragraph had been reworded to flow better from the preceding one. The report constituted a form of “quality control” as regulatory entities were phased into the STER.

Mr Mangcu was not satisfied with this explanation. He wanted clarity on 'effective date'.

Adv Nel replied that 'effective date' referred to the date on which the STER would begin its work.

Ms Gangen argued that context was always important in legal definitions, and the opinion of the legal advisors, after consulting legal definitions, was that ‘amalgamated’ was the best word in this context. It referred to the establishment of a new entity out of existing entities, as opposed to ‘incorporated’ which referred to absorbing an entity into an existing entity.

Mr Mangcu maintained that ‘amalgamated’ did not capture the situation. For instance, it was not the entire C-BRTA that would become part of STER, but only its regulatory functions. He requested further discussion and clarity on Clause 4(11)(1)(b), and confirmation if there would be further public participation on the Bill to get input on recent changes made by the Committee. He criticised the briefing on the A-list as it did not seem as if the state law advisor was sufficiently prepared.

Mr Mey said that ‘amalgamated’ was the correct word.

Mr Hunsinger did not accept ‘amalgamated’. The phased-in approach to the establishment of the STER disqualified the use of this word because it involved gradually adding more entities to it over time. For this reason ‘incorporated’ would be preferable. He reiterated his call for confirmation if there would be more public participation. He noted that although he supported the Bill in principle, there was still a lack of clarity on financial and human resources matters.

Mr L McDonald (ANC) also did not agree with the choice of ‘amalgamated’ and shared Mr Mangcu’s criticism of the badly prepared presentation of the A-list.

Ms N Nolutshungu (EFF) accepted the legal advisors’ explanation of the choice of the word ‘amalgamated’ and supported calls for another round of public participation.

Mr T Mabhena (DA) agreed with the points made by Mr Mangcu and Mr Hunsinger.

The Chairperson asked for confirmation if final responsibility for word choice lay with the Committee.

Ms Gangen confirmed that the role of the legal advisors was simply to advise and it was for the Committee to make the final decision on the choice of word.

The Chairperson asked Adv Nel to comment if another round of public participation was procedurally correct.

Adv Nel explained that it would depend if the changes were regarded as changing the scope of the Bill. The possibility of having only the new changes open for public participation also existed. According to her understanding the phased-in approach had been anticipated from the outset.

Ms Gangen was of the opinion that the phased-in approach had been introduced during the Committee deliberations and was significant enough to warrant further public participation.

Ms Valerie Carelse, Committee Secretary, proposed a public participation process limited to the question of the phased-in approach. It was normally necessary to obtain approval from the National Assembly when changes to the scope of a Bill were proposed. She did not think it would be necessary in this case but asked for the opportunity to confer with colleagues on the matter.

Mr Hunsinger warned that the Committee should not assume that the introduction of the phased-in approach did not amount to a material change to the Bill. He proposed that the Committee make a submission that the changes to the Bill warranted further stakeholder input and the possibility of another full round of public participation should not be precluded.

Ms Nolutshungu said that after listening to the discussion she was of the view that the time for public participation had passed.

Mr McDonald also did not think it was necessary to engage in further public participation. The changes were just a matter of procedure and it was important for the economy of the country that the Bill be moved forward urgently.

Ms M Ramadwa (ANC) agreed with Mr McDonald.

National Road Traffic Amendment Bill
Clauses 17, 18, 19 and 22, amending sections 11, 13 and 14 and inserting sections 11A and 15A
Adv Nel recalled that DoT had been asked to give clarity on these clauses, which dealt with the new category of provisional driving licences as well as the role of provincial authorities in the inspection of driving licence testing centres (DLTCs).

Mr John Motsatsing, Chief Director: Road Transport Regulation, DoT, said that the Department had engaged with the provinces on the need for provincial inspectorates to inspect DLTCs. The outcome of the discussion had been that the national department was not as close to the ground as provinces when it came to doing inspections, and the provinces had asked for the same powers as the national inspectorate to suspend the operating rights of a non-compliant DLTC or a vehicle testing station (VTS).

Mr Mey said that the DLTC at Joubertina in the Eastern Cape had been closed since February, even though the inspectorate had given no instructions that it should be closed. The manager had unilaterally decided to close it and nothing had been done to solve the problem. He had reported it to the Portfolio Committee as well as the Director-General but nothing had been done. It was a disgrace.

The Chairperson acknowledged Mr Mey’s frustration and promised to ventilate this matter before the end of the meeting.

Mr Mangcu was not satisfied with the Department’s responses. There were specific points that had not been addressed. For example, could the Minister appoint a provincial inspectorate if the Member of the Executive Committee (MEC) in a province was reluctant? Were any of the powers of the Road Traffic Management Corporation (RTMC) Shareholders' Committee being removed? What about the details of implementation of provisional licences? Mr Motsatsing seemed to be trying to be diplomatic but the Committee needed clear answers.

Mr Motsatsing explained that in line with the National Road Traffic Act (NRTA) and the Road Traffic Management Corporation Act, some functions had not yet been transferred to the RTMC and to the Shareholders' Committee. This was the reason for the disjuncture between the provisions of these two Acts and Mr Mangcu’s impression that powers were being taken away from the Shareholders' Committee. The Shareholders' Committee was envisaged as a national governance structure. It was composed of all the provincial MECs for Transport and was chaired by the Minister of Transport. Once all powers had been transferred, it would be the Shareholders' Committee that would appoint provincial inspectorates, rather than the MECs.

The Chairperson reminded Mr Motsatsing about the question on provisional driving licences. He recalled that the issue had revolved around the transition from a provisional to a full driving licence. The Department’s proposal was that it would be conditional on the provisional licence holder not having violated road traffic regulations.

Adv Johannes Makgatho, DoT Director: Legal Services, said that the national inspectorate would make recommendations to DLTCs, and it would be for the provincial inspectorates to follow up on these recommendations. The Bill did not say a Minister could appoint a provincial inspector if an MEC was reluctant. It only said that the Minister shall appoint an inspectorate and that an MEC shall appoint a provincial inspectorate.

Adv Makgatho recalled that there had been a discussion that the provisional licence was envisaged as similar to the way in which an aircraft licence required a certain number of flying hours.

Mr Rob Abramson, representing Kwazulu-Natal Department of Transport, emphasised the importance of having the appointment of inspectorates within the provinces. Provinces were closer to the operations of the DLTC and VTS but they did not have any teeth when it came to disciplining DLTC and VTS.

Mr Mangcu accepted the explanation but said that the Committee needed to get a better understanding of what was delaying the transfer of powers between MECs and the Shareholders' Committee.

Clause 23, amending section 16 of the principal Act
There were no major concerns with this clause.

Clauses 24, 25 and 26, amending sections 17, 18 and 19 of the principal Act
Adv Nel recalled that driving schools had argued that requiring learner’s licence applicants to appear in person would affect their business, as they often applied on behalf of the applicant. However, the requirement to appear in person was in fact already part of the Act. The Department had also been asked to explain the move away from official conviction in the provisions on disqualification of applicants who used unauthorised aids. Who would be responsible for investigating these cases, and what appeal mechanisms would be available?

Adv Nel said that Clause 25 contained provisions for driving licences corresponding to those contained in Clause 24 for learner’s licences, but the Bill did not include a clause on corresponding provisions for provisional licences. Had this been overlooked, or would it be dealt with in the regulations? She recalled that the South African Driving School Operators Association (SADSOA) had opposed the provisions allowing DLTCs to provide vehicles for testing as this would impact the business of the driving schools. The Department needed to clarify what would constitute an unauthorised aid for the purposes of obtaining a driving licence. Would it include things like parking assistance cameras? It should also clarify the provisions on to the time frames within which people had to replace older forms of a driving licence with a licence card.

Mr Mangcu asked Adv Nel to clarify the conditions under which older forms of a driving licence became invalid. He was concerned about requiring people to apply for completely new licences, especially given the difficulties currently involved in getting a licence.

Adv Nel explained that the driving licence card was introduced in 1998 and South Africans were given a five-year deadline to convert their green ID licences to the new form by 1 May 2003, failing which the ID book licence would become invalid if there were no extenuating circumstances such as being outside the country. The Bill provided a grace period of six months to apply for a card licence in such circumstances. The Act described various other circumstances in which a licence may be declared invalid but it was unclear if someone would have to obtain a new learner’s licence too if they wanted to get a new licence. The provisional licence was not provided for here either. DoT might be able to provide clarity.

Adv Makgatho confirmed Adv Nel’s account of the provisions for replacing ID book licences with card licences. A driving licence card remained valid unless it was declared invalid or suspended by a competent court. The Committee could make a proposal if it felt strongly about the omission of a reference to provisional licences as the provisional licence did not exist at the time when the sections being amended were introduced.

Mr Mangcu asked if anyone had come forward to say that they had been unable to convert an older licence type into a card licence. Licences issued by former homelands also had to be considered. He shared the concerns of Adv Nel and requested additional information from DoT.

Adv Makgatho said that some people had come forward such as oil rig workers who had been out of the country.

Clause 27, amending section 20 of the principal Act
Adv Nel said that the Department had accepted a minor change to this clause.

Mr Mangcu asked if section 20 provided for licences issued by former homelands in addition to the four former provinces of the Union of South Africa that were listed explicitly.

Adv Makgatho replied that it did.

Mr Mangcu did not see where exactly section 20 provided for this.

Adv Makgatho undertook to research the provisions on the former homelands and report back to the Committee.

Clause 28, amending section 23 of the principal Act
Adv Nel noted that this clause dealt with the recognition of foreign driving licences in South Africa, and that the Department had accepted a proposal to link it to the recognition of foreign professional driving permits (PrDPs).

Mr Mangcu said that this clause required careful attention. The recognition of licences was relatively straightforward but the recognition of foreign PrDPs had caused some problems and might be the cause of some of the violence meted out by local truck drivers. Could the Department explain if the amendments would alleviate the tensions leading to violence?

Mr Sithole asked if section 23(2)b of the principal Act applied to local or international driving permits. He asked if ‘shall’ in Clause 28(2)b described a discretionary or peremptory power of the Minister.

The Chairperson understood that it described a peremptory power.

Adv Makgatho confirmed the Chairperson’s understanding that ‘shall’ and ‘must’ were interchangeable. Section 23(2)b referred to international permits. He explained that South Africa was a signatory to international conventions on the mutual recognition of driving licences. There were different PrDP categories in South Africa, such as for articulated trucks. The various requirements for these were more stringent than in other countries. It was DoT's view that 2(a) empowered the Minister to set conditions for foreign truck drivers to work in South Africa.

Ms Phumelele Ngema, Parliamentary Legal Advisor, said that the Department should provide more information about foreign truck drivers and the violence meted out to them, especially in connection with section 32(3) of the principal Act, which was not amended by this Bill.

Adv Makgatho said that the Department was happy to engage further on provisions about local and international driving permits.

Mr McDonald proposed that the word ‘must’ be used consistently where peremptory powers were being described, in line with general legal usage.

Clause 29, amending section 26 of the principal Act
Adv Nel noted that this clause should consider the possibility of vexatious affidavits seeking to declare someone’s licence invalid. The Department should indicate if licence demerit points accumulated under the Administrative Adjudication of Road Traffic Offences (AARTO) system would also be catered for by the clause, or if it would require a later amendment after AARTO was rolled out nationally.

Mr Mangcu asked what circumstances would lead to a driving licence holder being subject to an examination and test in section 25(2)(b). He questioned the enforceability of Clause 29(b) and (c).

Adv Makgatho explained that these provisions dealt with a situation in which a licence holder continuing to hold their licence would constitute a danger to the public.

The Chairperson indicated that discussions on this clause would continue at the next meeting. He asked the Department to look into the closure of the Joubertina DLTC.

Mr Mey said he would correspond with Adv Makgatho on this matter.

Minutes of the meeting on 23 November 2021 were adopted and the meeting was adjourned.


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