National Land Transport Amendment Bill: President’s reservations; Economic Regulation of Transport Bill: responses; Bunker Oil Pollution Convention

Meeting report

The Chairperson invited Minister of Transport to make introductory remarks.

Introductory remarks by Minister of Transport
Minister Fikile Mbalula recalled that the National Land Transport Amendment (NLTA) Bill, which aimed to broaden the powers of national and provincial spheres of government about subsidised bus contracts, had been passed by the National Assembly in 2020. The President had sent it back to Parliament, citing reservations about certain clauses that conferred powers on national and provincial government to enter into subsidised bus service contracts. The Bill had been introduced in response to difficulties at local government level in the provision of public transport, and had been intended to empower national and provincial levels of government to step in where municipalities were yet to develop the requisite capacity to manage public transport on their own. After having considered the President’s reservations, the Department’s view was that existing provisions of the National Land Transport Act, section 5(6) in particular, were sufficient to enable the requisite capacity to be built. In addition, the most appropriate policy position would be to strengthen the capacity of provinces to intervene to ensure the continuity of public transport services at municipal level.

President’s reservations on National Land Transport Amendment Bill: DoT briefing
Ms Khibi Manana, Acting Deputy Director-General (DDG): Public Transport, DoT, provided a summary of the background of the Bill and recalled that the President had expressed reservations about clauses 7(a), 7(b), 7(h), 7(i), 7(j), 7(k), 7(l) and 7(m) on the basis of objections raised by the South African Local Government Association (SALGA) and the City of Cape Town (CoCT). The Department agreed that these clauses could be removed to allay concerns that the competences of local and provincial government might be usurped by provincial and national government respectively, while observing that the intentions of the Bill could be fulfilled through existing provisions of the principal Act, sections 5(6), 11(a)(vi), 11(b)(vi) and 12(1) in particular.

Committee way forward
Ms Valerie Carelse, Committee Secretary, explained that the Bill was a section 76 Bill, which meant that the Committee would have to confer with the NCOP Select Committee on Transport, although the form of this conferral was not specified. She thought that a joint meeting between the two committees would be sufficient. If it agreed with the President’s reservations, the Portfolio Committee would then have to submit a report and an amended Bill to the National Assembly. The amendments that could be made were limited by the scope of the President’s reservations.

Discussion
Mr C Hunsinger (DA) accepted that the Committee was limited by the scope of the President’s reservation but wished to put on record that, just like the principal Act, the NLTA Bill had been processed too hastily. He had warned that there were constitutional issues. The need to amend the Bill presented the ideal opportunity to address many outstanding issues in the stakeholder relationships and environment of public transport. The Committee should look at the National Land Transport Act again once the NLTA Bill had been fully processed.

Mr L Mangcu (ANC) asked who would be responsible for initiating the meeting with the Select Committee. When could the meeting be held, and how soon could a new draft version of the Bill be prepared? What was the procedure for initiating the reconsideration of the National Land Transport Act, assuming the Committee agreed with Mr Hunsinger’s suggestion? He suggested that timeframes should be set.

Ms Carelse replied that the joint meeting would be initiated by the Portfolio Committee. She suggested that there might be time to hold the meeting in May, assuming that a draft had been prepared by then.

Mr Hunsinger suggested that the Chairperson obtain confirmation that a joint meeting with the Select Committee would be a sufficient process of consultation with the provinces.

Mr Mangcu asked Mr Hunsinger to suggest an alternative process if the joint meeting was not considered sufficient.

Minister Mbalula noted Mr Hunsinger’s comments.

Mr K Sithole (IFP) agreed on the need to look at the National Land Transport Act again. He noted that the Department’s presentation implied that provincial and national spheres of government could intervene in the management of public transport in municipalities. However, it said nothing about the capacitation of municipalities. This amounted to centralising public transport functions.

Mr M Chabangu (EFF) did not see why a joint meeting was necessary. Why did the Portfolio Committee not complete its deliberations and then hand the Bill on to the Select Committee? He also asked for clarity on what would happen if a municipality was unable to perform public transport functions. Would a province be able to intervene and assist?

Minister Mbalula explained that the policy posture of the Department was in favour of strengthening the capacity of provinces to step in, but this extended to assisting municipalities to develop the requisite capacity.

Ms Manana added that the National Land Transport Act provided for national and provincial government to intervene in and build capacity for municipal public transport. It was just a question of implementation.

Mr Mangcu asked for clarity on how section 5(6) of the principal Act could be used to achieve the intentions of the Bill.

Minister Mbalula replied that section 5(6) empowered the Minister to issue directives to provinces and municipalities on public transport matters.

Economic Regulation of Transport Bill: DOT response to second round of submissions
Ms Rirhandzu Mashava, Acting DDG: Integrated Transport Planning, DoT, said submissions had been received from 13 stakeholders on the Committee proposed amendments to the Bill. She provided an overview of their submissions in earlier consultation on the Bill (see document).

The following stakeholders had submitted written comments:
- Western Cape Department of Transport and Public Works
- Uber
- Traxtion Sheltam
- Dr Douglas Blackmur
- Gautrain Management Agency
- Transnet
- Ports Regulator of South Africa (PRSA)
- Passenger Rail Agency of South Africa (PRASA)
- Airports Company of South Africa (ACSA) and Air Traffic Navigation Services (ATNS)
- African Rail Industry Association (ARIA)
- South African Association of Ship Operators and Agents (SAASOA)
- Airline Association of South Africa (AASA)
- International Air Transport Association (IATA)
- Board of Airline Representatives of South Africa (BARSA)
- Freight Logistics Association

In a 90 minute detailed presentation, Mr Moeketsi Sikhudo, Project Manager: Single Transport Economic Regulator, DoT, presented the Department’s response to each individual submission, noting comments, explaining the Department’s positions, accepting some of the suggestions and clarifying misunderstandings where appropriate (see document).

Discussion
The Chairperson said that the Portfolio Committee would have to find time to consider the Department’s responses and decide if anything needed to be changed.

Mr Hunsinger thanked the Chairperson for allowing the Bill to go through an additional round of public consultation. He expressed satisfaction with the outcome of the consultation and judged that it had been worthwhile.

International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001
Mr Dumisani Ntuli, Chief Director: Maritime Transport Policy, DoT, explained that the Bunkers Convention had been promulgated to close a gap in international law left by the International Convention on Civil Liability for Oil Pollution Damage (1992), which covered pollution damage from oil carried as cargo but not oil carried as fuel (so-called bunker oil). South Africa had ratified the 1992 Convention but not the Bunkers Convention. This made it difficult for the country to file claims and demand compensation for bunker oil pollution, and meant that central and local government agencies were at risk of carrying the costs of clean-up operations. Two key requirements of the Bunker Convention were that the registered owner of a vessel over 1 000 gross tonnage maintain compulsory insurance cover and that a claim for compensation for pollution damage may be brought directly against the insurer. The Department went through the text of the Convention, noted the wide range of stakeholders it had consulted and requested the Committee to process it for approval by the House in terms of section 231(2) of the Constitution.

Discussion
Mr P Mey (FF+) recalled the January 2022 incident involving the ship NS Qingdao, in which toxic cargo had been allowed to be dumped 250km from the South African coast. What had been the factors behind that decision? He appreciated that the Bunkers Convention applied to oil but noted that toxic waste was a big problem.

Mr Ntuli replied that the dumping of the NS Qingdao’s toxic cargo had been a preventative measure, taken in terms of the Marine Pollution Prevention Act under the authority of the South African Maritime Safety Authority (SAMSA). According to the SAMSA report the action had prevented what could have been a major disaster. The dumping site was established by the Department of Environment, Forestry and Fisheries for the purpose. He noted that South Africa had ratified the 2010 Hazardous and Noxious Substances (HNS) Protocol, which would soon come into force and would provide cover for incidents such as this.

Mr Hunsinger asked for clarity on the difficulty of filing claims under the status quo. How would the Convention handle a situation in which more than one vessel was involved in a pollution event.

Mr Ntuli explained that because South Africa had not yet ratified the Convention it did not currently have a leg to stand on if bunker oil pollution occurred in its waters. He also drew attention to Article 5, according to which if more than one ship was involved in an incident, the owners of each ship would be jointly and severally liable for pollution damage that was not reasonably separable.

Mr Hunsinger mentioned a debate about reducing the lower limit for claims, above which liability would be triggered. How was this limit determined? He also asked about the status of South Africa’s neighbouring coastal states with respect to the Convention.

Mr Ntuli explained that a technical assessment would determine the source and extent of the damage. The limitation was determined with regard to several factors, including the extent of the oil spill, the labour required to contain the spill, its effect on marine resources and its effect on coastline activities such as tourism.

Ms Carelse said that the adoption of the Committee Report on the Bunker Convention, which she would forward to Members for consideration, was scheduled for the following week.

The Committee agreed to this procedure and the meeting was adjourned.