Marine Pollution (Prevention of Pollution from Ships) A/B: Department response to public submissions; Transport Appeal Tribunal A/B: deliberations

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15 November 2022
Chairperson: Mr L Mangcu (ANC)
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Meeting Summary

The Portfolio Committee on Transport (the Committee) convened for a briefing by the Department of Transport (DoT) on responses to oral and written submissions on the Marine Pollution (Prevention of Pollution from Ships) Amendment Bill [B5 – 2022] and to deliberate on the Transport Appeal Tribunal Amendment Bill [B8 – 2020].

The Committee found the responses to the concerns raise by stakeholders disappointing. It appeared that the Department was merely accepting the International Convention for the Prevention of Pollution from Ships (MARPOL) Convention without considering the sensitive environmental conditions and highly polluted areas within the South African territorial waters. The Committee was advised that the purpose of the Bill was the domestication of the MARPOL Convention. The pollution of South Africa’s territorial waters would be dealt with in the Preparedness, Response and Cooperation Bill which must still be presented to Parliament for deliberations.

The Committee adopted the amendments to the Transport Appeal Tribunal Amendment Bill with the exception of Clause 3 which covers the conditions of appointing a member of the Tribunal as provided for in section 7 of the Act. The Committee debated whether fulltime state employees should be allowed to serve on the Appeals Tribunal. The State Law Advisor informed the Committee that the appointment of public servants to the Appeals Tribunal was a policy and not a constitutional matter. The House would have to grant permission for the amendment because it was not included in the Bill. The Committee resolved to have consultations on the matter.

Meeting report

The Chairperson remarked that he was expecting responses from the DoT to the issues raised and suggestions made by the public. The DoT was given the opportunity to engage the Committee on any changes that needed to be made.

Mr K Sithole (IFP) said it was unfair that the presentation was not distributed to Members before the meeting. It was going to be difficult to respond to a report that had just been received.

The Chairperson said he had not seen the email but thanked the Minister for sending a delegation of the Department to the meeting.

The Chairperson agreed and registered the dissatisfaction about not receiving the presentation on time. It makes it difficult for Members to apply their minds and to consult with their caucus on the party position that Members should take. For the sake of progress, the DoT was allowed to continue. The Committee would flag any major issues identified.

Responses to the Marine Pollution (Prevention of Pollution from Ships) Amendment Bill
[B5 – 2022] submissions

Mr Mthunzi Madiya, DDG: Maritime Transport, DoT, apologised for not submitting the presentation timeously to the Committee.

Mr Dumisani Ntuli, Chief Director: Maritime Policy and Legislation, DoT, said the purpose of the engagement was to give full effect to the MARPOL Convention. The responses were meant to guide the DoT on the amendments that needed to be done. The Department welcomed and noted the comments and proposals by stakeholders. The proposed regulations were guided by the  International Convention for the Prevention of Pollution from Ships (MARPOL). Concerns raised by stakeholders related to the following key issues:

The prevention of sewage pollution by ships

Provisions of Annexure IV are applicable to ships engaged in international waters. The threshold of the regulations is applicable to ships above 400 tonnage. Stakeholders called for the extension of Regulation 2.1 to include ships engaged within the territorial waters of South Africa and to broaden the threshold to all ships above 100 gross tonnage.

The Department responded that the provisions were guided by the MARPOL Convention and vessels under convention size would be dealt with in the Regulations.

Shipping noise pollution

Ocean noise regulation was found to be non-existent in both environmental and maritime legislation in South Africa. Stakeholders called for the Bill to recognise and address noise pollution in our maritime environment.

The Department advised that noise pollution is provided for under the Safety of Life at Sea Convention Code on noise levels onboard ships. The Marine Environment Protection Committee provides for non-mandatory guidelines for the reduction of underwater noise from commercial shipping to address adverse impacts on marine life.

The DDG, DoT, acknowledged that most comments were good suggestions. However, the purpose of this Bill was to domesticate the International Maritime Organisation (IMO) Convention to make it easier for the Minister to present future amendments to Parliament and to ensure faster implementation as per the provisions of the Act.


(See Presentation)

Mr Sithole said it was not the correct procedure for the Department to just note the suggestions from the public and not provide further comment. He was concerned about the impact that decisions that the Department was making on shipping pollution, would have on municipalities in provinces in coastal areas. Not every decision should be considered from the perspective of the MARPOL Convention. The Department should also take the Constitution into account, which makes provisions for the prevention of harm to human beings.

Mr L McDonald (ANC) found it difficult to understand the reasoning behind the Bill when the Department merely notes the suggestion from the public. He proposed that the Department should give an explanation instead of just noting the submissions received. Stakeholders disagreed that regulations in Annexure 4: Regulation 2 should apply to ships above 400 gross tonnages. Nothing should stop the Department from preventing smaller ships to visit our territorial waters. A number of smaller cruise ships dump about 200 000 litres of sewage per day in the oceans. Under current regulations, ships have to be only three nautical miles from the coast. The matter of the ferry to Robben Island that is polluting the sea every day should be addressed. The country was facing an environmental crisis and could not afford to continue this trend. In terms of the 1972 United Nations Convention on the Human Environment, states must explore their sovereign rights and use resources to secure their jurisdictions from harm. South Africa should use this opportunity to make it difficult for people to pollute our territorial waters and the environmentally sensitive areas within the three nautical mile area of the coastline.

Mr C Hunsinger (DA) found the overarching message in the Department’s response very concerning. It appeared that the Bill was following the MARPOL Convention and did not consider the South African conditions and environment. He noted that even the numbering was following the MARPOL template. He acknowledged the general conditions for global protection but felt that the conditions and environment of the country should be taken into account. The difference to the general conditions have been raised during the public participation process but the Department had not recognised the concerns. He urged the Department to take cognisance that the general conditions could not apply because of the very sensitive environmental conditions and highly polluted areas within our territorial waters. If MARPOL was not providing regulations for South African territorial waters, then the Department should take the liberty to develop its own regulations. He agreed with his colleagues that the Department should set its own standards and suggested that the threshold, referred to in Regulation 2, be extended to above 100 tonnages. Untreated sewage by smaller ships could be in excess of the threshold. He proposed that the Department use the Prevention of Pollution Bill to distinguish between areas governed in terms of South African regulations and areas governed on behalf of MARPOL in terms of the broader spectrum of regulations. He argued that the Department should not dismiss the great submissions on the impact of noise on marine life. In response to a question from Natural Justice about the authority to detain and remove vessels, the Department made reference to ‘… the surveyor of an RO …’. He sought clarity on what the RO represents. The Department stated that it had not previously been able to enforce MARPOL standards but the position had since changed. He wanted to know how the Department had been capacitated to enforce the MARPOL standards. It was suggested that discussions about offshore pollution regulations should be postponed. He disagreed and argued that a simple amendment must be made because it was important to have a framework that include offshore pollution to regulate the impact of fuel, gas, and oil on marine life. He agreed with the comment by Natural Justice to ensure compliance with the Act by local government. Municipalities in coastal areas would be the first line of defence to receive complaints or identify issues at sea. The local sphere of government should be involved in a collaborative manner to make reporting easier. The SAPS should also play a big role in this regard. He argued that South Africa should take its Paris Agreement commitment, to reduce carbon emissions by 50% seriously. He was bothered by the position that states should not act unilaterally. He argued that South Africa should have a different attitude towards its own territory and not merely follow the IMO and MARPOL Conventions.

Ms M Ramadwa (ANC) sought clarity on the Department’s position on the issue of noise pollution which had been raised in most of the submissions. She also questioned the reference to ‘RO’ and requested that words should be written in full to avoid incorrect readings.

The Chairperson said the session was an opportunity for the Department to respond to public comments. He was not expecting responses to all of the comments but only to the direct and pointed statements. The Committee would deliberate on the responses in the following week during the clause-by-clause session. He found the responses rather disappointing because it was merely reflecting the MARPOL position. It appeared that the Department was not intending to challenge the MARPOL decisions on issues of gross tonnage, noise pollution, and sewage dispensing. The Department might have missed an opportunity to convince the Committee why the MARPOL position should be accepted. He sought clarity on the Department’s view on noise pollution and wanted to know how the Department had been capacitated to enforce the MARPOL Convention.

Mr Madiya said he suspected that the session was going to be a quagmire. He explained that the Bill was specifically meant to give effect or domesticate the MARPOL Convention. The pollution legislation was covered in a different Bill that did not address issues related to the MARPOL Protocol. For example, if noise pollution had not been recognised at an international level, then the Department would deal with it within the auspices of MARPOL. These were two different pieces of legislation that had simultaneously been referred to. He said all was not lost. For example, if COP announces new standards which are not in the MARPOL Convention, it would be included in our national legislation. If the IMO accepts the new COP standards, then in terms of the Constitution, it must be presented to Parliament for ratification. The Preparedness, Response and Cooperation Bill which deals with areas within our control in terms of pollution and related matters, must still be presented to Parliament for deliberations.

Mr Ntuli wanted to correct a few issues. As a member of the IMO, South Africa has a duty to regulate ships that travel to different countries. Compliance with the IMO standards by ships visiting other countries is assessed against a checklist to which all member states have agreed. MARPOL is an instrument that guides shipping regulations. Annexures 1, 2, 3, and 5 of MARPOL had been completed. The mandate of the Department in this session was to complete Annexures 4 and 6 which deals with regulating international shipping. He found the response to the submission encouraging and agreed about discussions to extend regulations to cover other areas. A collaborative effort was needed on measures applicable to domestic territorial waters. Owners of domestic vessels might be impacted and needed to be engaged for their comments. The Department and the Committee should find a way to manage the issue. He said it would be better to cover some of the issues raised by Members in the Preparedness, Response, and Cooperation Bill, which the Department was still in the process of considering. He explained the two types of noise found in the sea, i.e. noise that affects seafarers on board is covered by the IMO Code but to date, there is no international instrument on what action need to be taken for noise caused by ships. If Members wanted to drive the issue, then South Africa could become the champion for setting a standard for underwater noise pollution that would impact international shipping. The issue should be presented to the IMO, who is responsible for authorising global standards. Should the Committee want to introduce underwater noise pollution within our territorial waters, then the type of ships that would be covered by the standard must be identified. He cautioned that introducing such a standard would require a great deal of research.

In response to the debate on extending the threshold of ships as it relates to discharging of sewage, Mr Ntuli said a small amendment was required to give effect to the extension. The Department was encouraged that the suggestion was coming from the Committee. He explained that the amendments in the MARPOL Act empowers the South African Maritime Safety Authority (SAMSA) to enforce regulations. Without legislation, SAMSA would not be in a position to enforce Annexures 4 and 6. The Department started working with SAMSA to identify capacities that the entity and the National Ports Authority would be requiring to enforce the regulations. He appreciated the outcome of the engagement and the directions from the Committee.

The Chairperson replied that some of the Department’s responses might have raised disagreements with Members. But he was not going to entertain further discussions as the matters would be deliberated on in the next session. He noted some contradictions, e.g. the statement that the Bill was not dealing with pollution issues while it is included in the Principal Act. He disagreed that the Bill was dealing with international issues only. He thanked the Department for their efforts and trusted that observations would have been made based on the comments from Members. The debate would be concluded in the next meeting.

Deliberation on Transport Appeal Tribunal (TAT) Amendment Bill [B8 – 2020]

The Chairperson remarked that the Department dealt with the TAT Bill in the previous week. The Committee would be dealing with the Bill in this session.

Adv Alma Nel, Committee Content Advisor indicated that she would be taking Members through the Bill and the principal Act simultaneously.

The amendment of the title is dealt with in the last clause of the Bill. The Department’s main focus of the Bill relates to the creation of additional powers to follow up on decisions of the Appeals Tribunal because it was found that decisions of the Appeals Tribunal have not being acted upon.

The Western Cape government proposed the correction of the numbering in the Bill. The Department agreed to correct the numbering.

Clause 1
The amendment of definitions are dealt with in section 1(a):
Subclauses (a) to (f) propose the insertion of “board”;

The Department proposed to add the Railway Safety Regulator (RSR) Bill to subclause (f) which was posing the possibility of an appeal to the TAT Bill because the RSR Bill is not included in the principal Act. If the Department was going to specify legislation in this manner, the Bill would again have to be amended once the RSR Bill becomes an Act. A broader description would avoid continuous amendments.

Subclause (g) propose the deletion of’ “board”;
Subclause (h) propose to include the definition of Cross-Border Road Transport Act for cross-referencing; Subclause (i) propose the deletion of the definition of “intraprovincial transport”;
Subclause (j) propose to include “National Land Transport Act”.;
Subclause (k) propose the deletion of “national land transport legislation”;
Subclause (l) propose the substitution of “Regulatory Committee”; and
Subclause (m) propose the insertion “regulatory entity”.

Mr Hunsinger said the suggested subclause (f) could be problematic. Legislation is never open and never includes hybrids or implied references. Amendments need to be clear and specific to avoid court cases. He proposed that the RSR Bill should first be worked on before amendments are made.

Mr McDonald agreed that law is a “may” and “must” situation. He suggested that a proper legal opinion should be sought. He would prefer amendments to be future proof without comprising the Bill.

Mr Sithole said laws do not allow for generalisation. He referred to examples of name changes which resulted in legal nightmares because all related pieces of legislation had to be amended, e.g. when the Department of Foreign Affairs became Department of International Relations and Cooperation (DIRCO).

The Chairperson cautioned that amendments should not cause ambiguity in future. The Committee was not opposed to the suggestion but needed to double check. He asked what the implications were for removal of “board” in the definitions.

Adv Nel suggested that the Department provide clarity on the matter.

An official from the Appeals Tribunal replied that the intention was to align the National Land Transport (NLTA) to the new Act.

The State Law Advisor was not anticipating legal problems with the inclusion of a broader umbrella definition to incorporate the possibility of the RSR Bill once it is enacted. She said the deletion of “board” is to align the definition to the NLTA because the “board” is now referred to as regulatory entities.

The Committee accepted the proposed amendments.

Clause 2
The amendment of section 4 in:
Subclause (a) propose the removal of consultations with “every member of the Executive Council” (MEC); and
Subclause (b) propose the inclusion of “public transport”.

The Western Cape government made a submission about consultations with MECs which the Department disagreed with.

Mr McDonald said the Committee had agreed that consultations with MECs should not be removed. He warned that the Bill might be sent back if it does not involve local government.

Mr Hunsinger strongly argued for the inclusion of MECs given the three spheres of government which emphasis the independence of each sphere. It was important that the role and function of the Tribunal be transferred in terms of operational necessity and for effective government. Consultation with MECs was critical given that it is included in current legislation. The removal of consultations could see this decision end up in the Constitutional Court.

Mr T Mabhena (DA) said in the previous debate on this matter, the State Law Advisor agreed that it would be prudent for consultations with MECs to be retained because it would enhance the Bill. The DDG distinguished between the levels of consultation in terms of consultation with a view to select a board. The MECs would merely be consulted and would not be making appointments. He agreed that consultations should be retained.

Mr Sithole agreed with his colleagues that consultation is key to operations. The matter involves the devolution of power and the Minister need to consult with MECs.

Ms Ramadwa said the Committee did not conclude on the matter; hence the State Law Advisor was requested to follow up. It was not necessary for MECs to be consulted because they would participate in other forums.

Mr Hunsinger noted that the basis of inclusive versus exclusive decision-making is being debated. He drew attention to the current dispensation in the Competitions Tribunal under the DTI and the Rental Housing Tribunal under the Department of Human Settlements where the Portfolio Committees are part of the decision-making process. He suggested that the Portfolio Committee of Transport should similarly be consulted.

Ms Aadilah Arnold, State Law Advisor, Office of the Chief  State Law Advisor, explained that the purpose of section 4 of the principal Act was merely considering the appointment of members to the Tribunal after the Minister had consulted every member of the Executive Council. The specific use of the words “after” consultation meant that the Minister needs to consider the views of MECs as opposed to “in” consultation which comes with a more onerous obligation. Removing consultation with MECs would not infringe on the TAT Act and it was not unconstitutional. The Department’s rationale is sound because consultations had proved to be unworkable in the past. She asked if it was not preferable to have better legislation in the sense of taking inter-governmental relations (IGR) into account. The decision by the Minister is based on authorisation granted by regulatory entities which include all three spheres of government.

Mr Madiya said the operating word is “after” consultation. He found no harm in either removing or retaining it. The backlog experience was due to not having a Board. The Department would accept any situation that would not cause further delays.

The Chairperson sought a verdict on the issue from Members who agreed that the clause should be retained. He asked Members for their views on the issue of including Portfolio Committees in line with the Competition and Rental Housing Tribunals.

Mr Mabhena asked what material difference would it make because the two pieces of legislation were ensuring that all stakeholders have a voice. Adding another component as an oversight mechanism would enhance the oversight role and might be part of the Chairperson’s legacy.

Mr Sithole said it was a difficult decision because the Department argued that there was no need for politicians to be involved. He supported the Department’s approach. The legal team need to assist the Committee because it is important for Members to be informed of what was happening in the Department.

Mr McDonald said he needed to get political clarity and proposed that the matter be postponed until the next meeting.

Ms Ramadwa said the matter should not be entertained at this stage because it is not in the Act. The matter should be raised at another time in a relevant meeting.

Mr Madiya said the Department must be provided with reasons for the amendment instead of comparisons with the DTI and Housing Tribunals. It might be problematic because he was not sure if the rules were the same. The Minister should answer on how the Tribunal was appointed instead of involving the Committee directly.

Mr Mabhena said it might not be feasible to refer the matter to the next meeting. He requested a caucus break of up to ten minutes instead of delaying the issue.

The Chairperson said the point was well presented and motivated and required further deliberation. He requested the State Law Advisor and the Content Advisors to consider all reservations made and allow Members to consult with their caucuses. The matter would not be finalised in this session.

Mr Hunsinger informed the DDG that MECs were not in the equation. His proposal related to the Competition Tribunal and the Rental Housing Tribunal.

Adv Nel asked if Members were in agreement with the removal of financial and inclusion of public transport in section 4 (b) (a) The amendment had more to do with operating licences than financial viability of taxi routes.

The Committee accepted the proposed amendments.

Clause 3
The amendment of appointment conditions is dealt with in section 7. Subclause 4 propose the extension of the term of office of a member of the Tribunal.

The Western Cape government submitted the insertion of … 12 “consecutive” months. The Department agreed with the suggestion.

Mr Hunsinger said fulltime state employees should not serve on the Tribunal. The Committee should consider the implication, of involving officials, on the independence in the adjudication process.

Mr Sithole drew attention to the word “may” in the clause.

The Chairperson replied that “may” implied that the Minister did not have to extend the term of office. It is not the intention to compel the Minister to extend the term of office.

Mr Sithole reminded Members that the former Chief Justice held the view that “must” and “may” could be used interchangeably.

The Chairperson asked Members to state their positions on the exclusion of public officials from serving on the Tribunal and on the inclusion of the Portfolio Committee in the appointment process.

Mr Madiya said the issues were valid but he found it a bit problematic because the Bill differs from what had been approved by government.

The Chairperson asked the State Law Advisor to indicate the extent to which the exclusion of officials would change the Bill.

Ms Arnold replied that the House would have to grant permission for amendments that have not been included in the Bill. The appointment of public servants to the Tribunal was not a constitutional matter and could be introduced in the Bill. The Department would have to express a view because it was a policy matter.

The Chairperson sensed a reluctance to accept the exclusionary clause because of it being a policy matter.

Adv Nel drew attention to public officials on the Boards of municipal and provincial Regulatory Entities. The main clause was not dealing with the disqualification of members to the Tribunal. The suggestion would require a new clause and a slight scope expansion. Further consultation was needed.

Clause 4
The amendment of the number of times that the Tribunal sits, is dealt with in section 9. The Committee had a debate on why the DG was authorised to determine the sittings.

The Western Cape government proposed that the DG must supply additional support staff to the Tribunal. The Department disagreed with the submission.

Mr Madiya found the definition problematic because the Department would have to return to the Committee for an amendment if the title of the position is changed.

The Chairperson disagreed with the DDG because the title refers to a person of authority. Referring to the Department would leave the amendment open for interpretation. The matter could be dealt with in terms of the delegation of powers within the Department.

Ms F Khumalo (ANC) agreed that the Department was not appropriate and the role of the DG comes with responsibility.

The Committee accepted the amendments.

Clause 5
The substitution of the old clause relating to fees in respect of Appeals is dealt with in section 11. No comment were received. The Committee needed to make a decision on this matter.

The Committee agreed to accept the amendment.

Clause 6
The amendment of section 12 in:
Subclauses (a) to (f) propose the replacement of “board” with regulatory entities in alignment with the NLTA.
Subclause (f) further propose new subclauses, i.e. in:
Subclause (5) propose compliance with the directive of the Tribunal.
Subclause (6) allow for the addition of timeframes.

Submissions were received from the Gautrain Management Agency. The Department agreed to change the wording to include “assuring” compliance with the directive of the Tribunal. The new amendments would assist the Tribunal to follow up on decisions and to set timeframes within which decisions must be complied with. The taxi industry had a number of disputes on the follow up of operating license decisions. It was important for the Tribunal to enforce decisions in the taxi industry within set timeframes.

The Chairperson noted that the Committee had already agreed with replacing “National Transport Legislation” with the NLTA and the replacement of the “board” with “regulatory entity. He invited Members to briefly comment on subclauses 5 and 6.

Mr Madiya remarked that the amendments were replacing the NLTA with National Transport Legislation and not the other way round as explained by the Chairperson. The challenge with the TAT was that it did not have follow up mechanisms.

Mr Hunsinger asked if the PFMA and MFMA had been considered as mechanisms to address non-compliance with a directive. He sought clarity on the “failure to comply” statement in subclause 5.

The official from the Appeals Tribunal said section 12 (e) was a demeaning provision. The intention of the principal Act did not consider the TAT Act. The amendment was trying to include IGR. It is argued that the Premier or MECs should be involved while the operators were hoping that the TAT would be implemented by the entity. Without licenses, the TAT would not be able to assist operators with speedy interventions.

Adv Nel said section 12 (5) was meant to give effect to the rulings of the Tribunal. Any violation of the PFMA would be considered by the Tribunal.

The Committee agreed to the amendments.

Clause 7
The amendment of section 13 deals with condonation applications in terms of the removal of the board and provision of additional mechanism.

The Committee accepted the amendments.

Clause 8
The amendment of section 14 was linked to previous decisions about the removal of generalisations in terms of the “board” in subclause (a) and unreasonable delays in acting on Tribunal decisions in subclause (b).

Mr Hunsinger said there were no sanctions against the Tribunal if no action is taken.

The Chairperson said action must be taken to remedy unreasonable delays.

Clause 9
The amendment of the administration of Tribunal and the appointment of additional staff to assist the Tribunal is dealt with in section 16. The Department disagreed with the submissions of Gautrain Management Agency and the Western Cape government that “after consultation with the Tribunal” be retained.

Mr Madiya said it was obligatory for public servants to provide secretarial duties but the Bill indicates that it was not preferable for the appointment of public servants.

The Chairperson said it provides the motivation for the exclusion of “after” consultation. There was no assumption that the DG would permanently employ public servants.

Clause 10
The amendment of providing information to regulators is dealt with in section 17. The amendments propose the deletion of “board” and insertion of “regulatory entity”.

The amendments were agreed to.
Clause 11
The repeal of certain provisions in the old Act is dealt with in section 18:
subclause (a) removal of “board”; and
subclause (b) inclusion of NLTA.

Members agreed with the amendments.

Clause 12
Members agreed with the removal of NTLA in the long title.

Clause 13
Members agreed with the short title which would appear in all Bills.

Mr Madiya thanked the Chairperson for his guidance.

The Committee adopted the minutes of 8 November 2022. No amendments were made.

Update on Rail Safety Bill Provincial Public hearings
The Committee was provided with an update by the Secretariat on the logistical arrangements for the public participation process.

The Chairperson expected all Members to be present because the public participation process was very important.

Programme Change
The Chairperson informed the Committee of two changes to the programme. The briefing on the Second Quarter Expenditure Report of the Department had been shifted to 29 November 2022. He also agreed to shift the ACSA briefing to 29 November 2022. No further extensions would be granted.

The meeting was adjourned.

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