National Road Traffic Amendment Bill: proposed amendments; Economic Regulation of Transport Bill: responses; Bunker Oil Convention

Meeting report

National Road Traffic Amendment (NRTA) Bill: Draft A-list 
Ms Phumelele Ngema, Parliamentary Legal Advisor, presented the proposed Portfolio Committee amendments (Draft A-list) for the National Road Traffic Amendment Bill. Some of the Committee's areas of concern had been the definitions of ‘bodybuilder,’ ‘emergency services’ and ‘public road,’ provisions related to international and professional driving permits and licences, the proposed reduction of the blood alcohol concentration (BAC) limit to 0% and the proposed replacement of references to the Shareholder Committee with references to the Minister. Some of the significant changes proposed in the A list were:

- Clause 1 (changes to definitions)
- Clause 5 (replacement of reference to Shareholder Committee with reference to Minister)
- Clause 7 (insertion of Criminal Procedure Act reference in the context of impounding vehicles)
- Clauses 14 and 15 (repeal of section 8 of principal Act and a newly drafted clause on registration of driving licence testing centres)
- Clauses 19 and 20 (rejection of these clauses which provide for provisional driving licences)
- Clauses 21, 22, 28, 37 and 38 (tightening of provisions for international and professional driving permits and licences)
- Clause 24 (insertion of provisions for online learner’s licence applications)
- Clause 41 (insertion of restrictions on powers the MEC of a province may delegate)
- Clause 45 (Committee to deliberate on private emergency vehicles' responsibility and liability)
- Clause 46 (rejection of the proposed reduction of the BAC limit to 0%)
- Clause 47 (rejection of proposed removal of Shareholder Committee and Parliament from the process of making regulations)

Deliberations
Clause 1, amending section 1 of the principal Act: definition of ‘body builder’
Adv Alma Nel, Committee Content Advisor, explained that the regulations contained a more detailed definition of ‘body builder’ than the one currently in the Act. The Committee needed to decide whether to move that definition into the Bill, at the cost of some future flexibility when it came to amending the definition.

Adv Johannes Makgatho, Chief Director: Road Regulation, Department of Transport (DoT), said that if the Bill contained a simpler definition than the one in the regulations there was a risk that it would be limiting. Therefore the Department’s recommendation was to insert the comprehensive definition into the Bill.

Ms Raksha Haricharan, State Law Advisor, agreed that the comprehensive definition should be included in the Bill.

Mr L Mangcu (ANC) agreed that the comprehensive definition should be in the Bill. This would give Parliament some oversight over it, which was important in light of what was emerging in the work of the subcommittee considering the Public Protector’s Report on illegal vehicle conversions.

Mr C Hunsinger (DA) agreed that the comprehensive definition should be in the Bill

Mr L McDonald (ANC) also agreed.

Clause 1, amending section 1 of the principal Act: definition of ‘emergency services’
Adv Nel explained that the definition had a bearing on Clause 45. If the A-list was accepted, private emergency vehicles for private use would be legally obliged to respond to any emergency, raising the question of who would be responsible for the costs of such a response if there was no agreement with the authorities.

Mr Mangcu thought that the definition in the A-list was acceptable. He did not think it was necessary to decide in the Bill who would be responsible for the costs.

Mr Hunsinger observed that the problem was the existence of opposing sets of values, legal and moral. The definition in the A-list leaned towards the idea of the civic responsibility of private emergency vehicles. He was adamant that the moral obligation to respond to an emergency could not be overruled by its relationship to payment. The obligation to save a life stood. If this required additional agreements then they should be put in place.

Clause 1, amending section 1 of the principal Act: definition of ‘emergency vehicle,’ ‘instructor,’ ‘motor vehicle’ and ‘pedal cycle’
There was no discussion of these minor textual and technical changes.

Clause 1, amending section 1 of the principal Act: definition of ‘public road’
Adv Nel explained that the proposed definition in the A-list was much more comprehensive than the existing definition in the principal Act. In particular, it included access-controlled roads and roads in residential estates, which had been the subject of quite a lot of recent litigation. The definition was also important in road accident claims.

The Committee accepted the proposed definition.

Clauses 2, 3 and 5, amending sections 3A, 3B and 3D of the principal Act
Adv Nel drew attention to the proposal in the A-list to replace the reference to the Shareholder Committee with a reference to the Minister, noting that section 93A of the principal Act established that they were equivalent in the Act.

Ms Haricharan confirmed that section 93A established the equivalence of these two expressions.

Mr Mangcu said that the purpose of the Shareholder Committee was set out clearly in the Road Traffic Management Corporation (RTMC) Act. It seemed that perhaps the Ministry was frustrated that it was not doing what it was supposed to and was trying to find a way to assume more direct power. He suspected, however, that the proposed changes would not pass constitutional muster and therefore did not support the change.

Mr K Sithole (IFP) agreed with Mr Mangcu’s view.

Mr Hunsinger added that the current legislative design provided important checks and balances and he agreed that the reference to the Shareholder Committee should remain.

Other minor changes to these clauses were not discussed.

Economic Regulation of Transport (ERT) Bill [B 1- 2020]: Further written submissions
Adv Nel asked if the Committee wished to deliberate on every submission received, or only those with which the Department had agreed to in order to save time.

Mr Hunsinger proposed going through all the responses, notwithstanding the extra time required.

Mr Mangcu agreed. If anything, the Committee, insofar as it represented the public, should rather spend more time on those submissions where there was disagreement with the Department.

Mr Moeketsi Sikhudo, DoT Project Manager: Single Transport Economic Regulator, said that the second round of public submissions were supposed to have confined comments to the A-list only. A large proportion of the submissions received had been on other matters in the Act.

The Chairperson ruled that the Committee would deliberate on every submission.

Clause 1
Mr Sithole asked for clarity on the difference between ‘user’ and ‘access’ in the context of the Bill.

Adv Nel recalled that the Department had disagreed with the suggestion from the aviation sector to replace ‘access’ with ‘user’ on the basis that ‘user’ was a term specific to aviation in this context

Mr Mangcu agreed with the Department. The Bill should define ‘access’ and ‘access agreement,’ not ‘user’ and ‘user agreement.’

Mr Hunsinger thought that the Bill should include a definition of ‘access agreement’ but did not think that ‘access’ itself needed to be defined at all.

The Committee accepted the Department’s responses to several minor definitional matters raised by Dr Douglas Blackmur. No changes to the A-list were made for Clause 1.

Clause 3: Purpose of the Act
The Freight Logistics Association (FLA) had objected that clause 3(1)(d) would allow the state to introduce restrictions on the private transport sector without needing to prove that they were necessary. The Department had responded that the intention of the Bill was to deal with abuse of market power and monopolies. The FLA also commented that clause 3(2) amounted to social engineering. The Department had responded that transformation and broad-based black economic empowerment (BBBEE) were government policy and therefore unavoidable, and that there were clearly elements of monopolistic behaviour in the rail and ports sectors.

Mr Mangcu said that the FLA comments should not be accepted. The purpose of the Bill was clear.

Clause 4: application of the Act
The FLA had argued that this clause would allow any form of transport from donkey carts to bulk rail operations to be regulated without the need to give reasons. The Department had responded that existing regulations would remain in place and that new areas with monopoly and market power would be considered for regulation in future.

Clause 4: additions to provide for phased-in approach to establishment of Regulator
The Western Cape Department of Transport and Public Works had commented that the inclusion of an existing regulatory body into the Regulator should follow a process of consultation, and that the criteria for inclusion were unclear. The Department had responded that all regulatory bodies planned to be included had been invited to be part of the task team to look at the implementation of the Bill. The criteria for inclusion would be in clause 4(11)(b), which was part of the A-list.

Mr Mangcu observed that the Western Cape had reiterated one of the Committee’s own concerns. He also asked Adv Nel for clarification of the implications of the Western Cape’s comment on clauses 4(11)(b) and (c), which the Department had accepted.

Adv Nel explained that the Western Cape had suggested switching the order of these two sub-clauses to improve the flow of the text.

Mr Mangcu saw no harm in accepting this suggestion of the Western Cape.

Ms Haricharan agreed.

Mr Sikhudo reported that the Department had since changed its view and now recommended leaving the sequence unchanged.

The Committee accepted the Department’s new position.

The Ports Regulator of South Africa (PRSA) had expressed concern that the transitional arrangements did not address the fundamental change in the nature of its responsibilities. The Department had sought to reassure PRSA and did not recommend changes to the A-list.

Mr Mangcu said that the PRSA’s concerns were covered by clause 4(11)(b) and (c) and he agreed with the Department that no changes to the A-list were required.

Clause 29: Establishment of the Transport Economic Regulator
The PRSA had noted that in terms of clause 29(2)(b) the Regulator would be established as a constitutional body and not a Schedule 3A institution. The Department had responded that on the contrary, the Regulator would be a Schedule 3A institution. PRSA had suggested inserting a new clause on accountability. The Department had not thought this necessary. PRSA had also suggested making provision for the cessation, transfer or assignment of access rights to be reported to the Regulator. The Department had drawn attention to clause 7(2) where this was provided for.

Mr Hunsinger noted that the PRSA would indeed change from a constitutional body to a Schedule 3A institution when the Regulator was established.

Clause 47: additions for involvement of Parliament in appointment of Transport Economic Council
The Committee accepted the proposed changes to this clause.

Clause 54: deletion of ‘or must’ in sub-clause (1)(a)
The Western Cape had argued that this phrase not be deleted.

The Committee agreed with the Department that it could be deleted.

Principal Act submissions
The Passenger Rail Agency of South Africa (PRASA) had argued that the Bill did not address the fact that PRASA had suffered from severe underinvestment. The Department’s view was that this was addressed in clause 3(1)(f). The Department disagreed with the PRASA suggestion to define ‘entity’ and ‘President’ in the Bill.

Mr Sithole asked the Department to clarify its objection to defining ‘entity.’

Mr Sikhudo explained that the Department did not want to inadvertently restrict itself to the kind of entity it might want to regulate in the future.

Committee Report on Convention on Civil Liability for Bunker Oil Pollution Damage, 2001
Ms Valerie Carelse, Committee Secretary, presented the Committee Report on the Convention. The report recommended that Parliament approve the Convention.

The Committee adopted the report as presented.

Railway Safety Bill & Transport Appeal Tribunal submissions list
The Committee noted the list of submissions received on these Bills and agreed to accept the late submission from the Commission for Gender Equality.

Committee oversight programme
Ms Carelse presented the draft oversight programme, according to which the Committee would visit Gauteng, Mpumalanga and North West, noting that there were some potential clashes with other parliamentary programmes and that it was still subject to confirmation.

Mr I Seitlholo (DA) observed that a visit to Rustenburg to do oversight on the Integrated Public Transport Network (IPTN) was long overdue. He highlighted the disastrous condition of roads in the North West, especially in rural areas. Two petitions had been submitted to the Department of Public Works and Infrastructure dealing with specific roads in the Ruth Mompati Municipality which had cost the Department a combined R63m without anything being done. He proposed visiting this particular municipality.

Mr Hunsinger asked what the Committee’s backup plan was in the event that it was not granted permission to continue its oversight on Thursday and Friday. He welcomed the plan to do oversight on the Rustenburg IPTN, noting that he could not recall a single oversight visit to the North West dealing with bus rapid transport in eight years as a Committee member. He hoped the seriousness of the oversight visit would provide the necessary stimulus for Rustenburg to get up to speed.

Mr Sithole also asked what the backup plan was.

Mr Mangcu noted that other committees had been granted permission to use the whole week, so he did not think it was necessary to worry about this. He suggested choosing particular roads to visit based on if Provincial Road Maintenance Grant (PRMG) money had been allocated to them.

Mr T Mabhena (DA) did not think it was necessary to include a visit to Gauteng as it had been visited frequently. He proposed scrapping the planned oversight at Road Accident Fund, PRASA and the Driving License Card Account, and visiting Kwazulu-Natal instead of Gauteng. A visit to the Eastern Cape was also long overdue.

Mr Sithole did not think a visit to Kwazulu-Natal could be squeezed in, as it was a vast area.

Ms M Ramadwa (ANC) agreed with Mr Mabhena’s proposal. She called for future visits to Limpopo, the Beitbridge border post in particular, and the Eastern Cape. She agreed that the Committee should visit roads that had been allocated PRMG funding.

The Chairperson explained that Gauteng had been included in the programme primarily because it was en route to Mpumalanga and North West. There would be visits to the other provinces Members had mentioned. He appealed to them to approve the tabled programme.

Mr Mabhena accepted the explanation but noted no Members had called for a Gauteng visit.

Mr M Chabangu (EFF) did not deny the importance of visiting all provinces. However, the recent oversight to Free State seemed to have had no effect. It was the number one province for squandering money intended for service delivery. He proposed a follow-up visit to Free State.

Ms Ramadwa said that it was not a question of which province to visit but about dealing with the challenges. She proposed accepting the programme, with the understanding that the concerns Members had raised would be accommodated in future oversight programmes.

The Committee adopted the oversight programme.

Minutes of the meeting on 2 February 2022 were adopted and the meeting ended.