Residents of Okhahlamba LM Petition; Economic Regulation of Transport Bill: deliberations

Meeting report

Ms Valerie Carelse, Secretary, Portfolio Committee on Transport, recalled that the petition about the condition of roads in the Okhahlamba Municipality had been tabled in the National Assembly (NA) in September 2021 by Mr A Lees (DA). The Committee was obliged to consider it and report back to the NA.

The Chairperson invited Mr Lees to introduce the petition.

Petition from Okhahlamba Municipality on poor road conditions

Mr Lees said that Okhahlamba was an area that relied almost exclusively on tourism and agriculture, and it had a very high level of unemployment. The poor condition of the R74 national road, the R600 and R616 provincial roads and district roads in the area had a severe effect on tourism particularly, which had already suffered during the COVID-19 pandemic. In the past week, the Oliviershoek Pass had once again been closed to heavy vehicles.

Mr Thys Janse van Rensburg, a part-time councillor in the Okhahlamba Municipality, said that he had been engaging with the government on the condition of the roads for several years but until now there had been no meaningful change. He stressed that in rural areas, in contrast to urban areas, residents usually relied on a single road, and if this road was unusable they became cut off from the rest of the world. The community had been raising concerns about the condition of the Oliviershoek Pass for years, but nothing had been done. The negative effects were not confined to hotel owners and their staff but also the businesses that traded with the hotels, such as farmers. Most bulk infrastructure at Drakensberg hotels, such as water and sewage, was in fact provided by the hotels themselves, which only asked the government to provide the roads. This had been an abject failure of late.

Ms Megan Bedingham, owner of the Cavern Drakensberg Resort, said that as the tourism industry emerged from the pandemic it was now facing an infrastructure crisis that could, however, be avoided. In the AmaSizi area alone, more than 500 permanent jobs were at stake. The tourism industry supported the community in other ways too, such as funding a foundation-phase school and promoting conservation. But it relied on road infrastructure, and the condition of the R74, the P304, the D119 and the R600 were of particular concern.
 
Three residents of the Okhahlamba Municipality, Mr Themba Nkabinde, Mr Mhlambi and Mr Hlongwane, speaking in Zulu, provided additional information about the condition of the roads. 

The Chairperson summarised the residents’ submissions in English. They had confirmed the poor condition of the roads, in particular the R74, the Oliviershoek Pass and the R304, which was having a ruinous effect on their business. Trucks carrying building materials were unable to reach communities.

Mr Lees added that the residents had also described potholes big enough to bury a dog.

Discussion

Mr C Hunsinger (DA) said he understood that the four roads in the most critical condition were the R600, the R74, the R304 and the D184. He asked if there had been any attempt to quantify the economic losses due to the poor road conditions. He observed that the budget of the South African National Roads Agency Limited (SANRAL), which was responsible for a total of 21 000km of road, had increased by R21 billion over the past five years, while the road maintenance allocation to the provinces, which were collectively responsible for 273 000km of road, had only increased by R4 billion. In other words, SANRAL’s budget had increased by R600 000 per kilometre while the provinces’ allocation had only increased by R18 000 per kilometre. This was the underlying reason for the provincial road maintenance backlog.

Mr T Mabhena (DA) said it was heartbreaking to hear about the situation in Okhahlamba. How could it be that during something as sensitive as a funeral, the family had to remove the casket from the hearse and carry it over a damaged stretch of road? The Committee must do oversight visits and follow the money given to provinces for road maintenance. This should not be a vindictive exercise; it should applaud good work where it was done. The Chairperson must strongly insist that the Committee be given the time it required because there was a pattern of the Transport Committee, in particular, being denied permission. The Committee must engage with the Department of Transport, SANRAL and any other entity involved.

Mr L McDonald (ANC) thanked the presenters for the report. He said that the Department must give a comprehensive report on what had happened to the money for road maintenance and why the roads were in the state they were. The Committee should look at the funding model for road maintenance. On the one hand, SANRAL had beautifully maintained roads, while on the other hand the provinces and municipalities were critically underfunded. There were municipalities across the country in which the roads were in similarly poor condition.

Ms N Nolutshungu (EFF) agreed that Okhahlamba was not the only municipality where the roads were in a dire state. While the Committee had written to the Minister about municipal road maintenance before, it had not received any response. The Committee must do an oversight visit and see what was happening on the ground. It would also need a detailed report from the Okhahlamba Municipality on how much it had received for road maintenance and how this money had been spent. The Chairperson must make sure the Committee received the necessary permission from Parliament.

Ms F Khumalo (ANC) appreciated hearing from people who were directly affected by the road conditions. She agreed with Mr McDonald that the Department should report on what was actually happening in Okhahlamba.

Mr I Seitlholo (DA) noted that the Committee should also pursue cases in which provincial and local government had wasted road maintenance allocations. For example, the North West provincial government had recently wasted R65 million on a project to re-gravel a road that had not been completed after conflicts had arisen between the government and the contractor. It would be useful to find out about the relationship between Okhahlamba Municipality and the Kwazulu-Natal provincial government. Provincial and local government needed to understand why it was important to construct and maintain road infrastructure and the impact that it had on the economy as a whole.

Mr K Sithole (IFP) confirmed that the condition of the roads in Okhahlamba was very bad. The petition gave a true reflection of the situation.

The Chairperson thanked the delegation that had brought the petition. He emphasised that the Committee would take it very seriously. It would arrange an oversight visit, focusing on the most critical roads, during which it would engage with the Department and the community.

Mr Lees noted that the R74 was a national road, so the Committee should also get input from SANRAL.

Mr Hunsinger requested that the Committee obtain information on road maintenance spending in the area over the past five years in preparation for the oversight visit.

Ms Carelse said the visit could be incorporated in the April 2022 oversight period.

Deliberations on the Economic Regulation of Transport Bill

The Committee continued its deliberations on the responses by the Department of Transport (DoT) to further written comments on the Bill.

Comments from the aviation sector

Members accepted the Department’s responses to minor textual suggestions from the Airlines Association of South Africa (AASA), the International Air Transport Association (IATA) and the Board of Airline Representatives of South Africa (BARSA) on clauses 28, 38 and Schedule 2. Members accepted the Department’s assent to the suggested addition in clause 42(2) of provisions governing research done by the Single Transport Economic Regulator requested by regulated entities.

Comments from the rail sector

Members accepted the Department’s responses to comments by the Passenger Rail Agency of South Africa (PRASA) on clauses 34 and 35 (on the roles of the Minister of Transport, the Chief Executive Officer and the Executive Regulatory Panel); clause 36 (on the minimum qualifications of the CEO); clause 38 (on the form of regulations made by the Minister); clause 47 (on the minimum qualifications of the Transport Economic Council; clause 50 (on the funding of the Regulator and the Council). No changes to the A-list were made in relation to these comments.

PRASA had also suggested that clause 58(3) be amended to make it obligatory for an inspector conducting an entry and search in terms of section 53 to be accompanied by a police officer. The Department had not accepted the suggestion because of capacity constraints of authorities.

Mr McDonald was concerned that this would permit inspectors to conduct searches illegally. The law required that only police officers could conduct searches.

Mr Moeketsi Sikhudo, Project Manager: Single Transport Economic Regulator, DoT, explained that the Department agreed with Mr McDonald’s point. There were situations where the inspectors would not need the powers of a police search to conduct their inspection. The intention behind giving the inspector discretion was to provide for these situations, which would be dealt with on a case-by-case basis.

Mr Hunsinger argued that a search was a function specific to the police. He suggested that the Bill provide for a separate category of inspection that would cover the situations Mr Sikhudo was describing.

Mr McDonald agreed. He maintained that a search could not be conducted without a police officer who had obtained a search warrant and suggested replacing the word ‘search’ in clause 58(3) with ‘inspection.’

Ms Raksha Haricharan, State Law Advisor, drew attention to clauses 57 and 58(1), which together provided for a judge or magistrate to issue a warrant to enter and search premises.

Mr Hunsinger appreciated this clarity but maintained that provision should be made for a less severe form of inspection that could be conducted without a warrant. Could the Department give an example of when a search with a warrant might be pursued?

Mr McDonald supported Mr Hunsinger’s suggestion. The Regulator should first do a basic inspection before involving law enforcement. There was a risk that the measures could be used in a very authoritarian way.

Mr Sikhudo appreciated Mr Hunsinger’s suggestion and undertook to look into how best to integrate it into the Bill. He said that a search might be pursued by the Regulator to verify information, provided or withheld by a regulated entity, for purposes of determining tariffs. For example, Transnet might have failed to disclose the existence of a certain port that the Regulator happened to have independent knowledge of.

Adv Alma Nel, Content Advisor, Portfolio Committee on Transport, noted that in its current form the Bill might create problems in cases where an inspector was refused access to premises, used the discretion granted by section 58(3) to demand access, and then faced a legal challenge from the owner of the premises. She also observed that there was no clause in the Bill specifically dealing with inspections. If a clause was going to be added, this might require republication of the Bill for public consultation. Alternatively, perhaps an insertion could be made into clause 56 (on subpoenas).

Mr L Mangcu (ANC) was reluctant to conduct another round of public consultations because of the extra time it would take and asked that the drafters look for a way to integrate the suggestion that would avoid this requirement.

Mr Hunsinger observed that the Administrative Adjudication of Road Traffic Offences Act had been declared unconstitutional and the National Land Transport Amendment Bill had been returned to the Committee because they had been rushed. The Committee should strive to be thorough and write good legislation. He proposed that a new clause on inspections be inserted between clauses 56 and 57. He did not think it was certain that it would necessitate another round of public consultations.

Adv Nel replied that the drafters would look into this possibility.

Members accepted the Department’s responses to comments by the African Rail Industrial Association (ARIA) and the Traxtion group on clause 50. The comments referred to the possibility that the Regulator and the Council could become inefficient and costly. No changes to the A-list were made in relation to these comments.

Members accepted the Department’s responses to comments by ARIA on clause 46 (on the role of the Council); clause 47 (on the shortlist of candidates for the Council and the length of the term of Council members); clause 49 (on the definition of a 'significant relationship' between employees and contractors of the Regulator and regulated entities); and Schedule 1 (item 29 of the A-list). No changes to the A-list were made in relation to these comments. Members accepted the Department’s assent to the suggestion that the word ‘calculated’ be deleted from clause 64 (on offences).

Comments from provinces and Transnet

Adv Nel recalled that Transnet and the Western Cape Department of Transport and Public Works had made various suggestions to Schedule 1 (on consequential amendments). The Department had agreed to the Western Cape’s suggestions.

Mr Hunsinger noted that the implications of these consequential amendments would only come into effect at a later date when entities started to be merged into the Regulator. It was not an immediate crisis, therefore, although it would need to be addressed at some point.

Mr Sikhudo undertook to look into integrating members’ comments into the Bill.

Ms Carelse explained that the legal advisors would need to provide a timeframe for feedback on issues raised by the members.

Ms Rirhandzu Mashava, acting Deputy Director-General: Integrated Transport Planning, DoT, indicated that the Department would provide a response by 26 April 2022.

The meeting was adjourned.