Election of Chairperson; Railway Safety Bill: deliberations

Meeting report

Ms Valerie Carelse, Committee Secretary, outlined the agenda: the election of a Committee Chairperson in terms of National Assembly (NA) Rule 158, the deliberation of the Railway Safety Bill [B7-2021], and the consideration of Committee meeting minutes.

Mr T Mabhena (DA) requested that Committee Members clearly identify themselves on the platform.

Ms M Ramadwa (ANC) asked if the Department staff were present in the meeting.

The Committee Secretary indicated that the Department was present. She provided a breakdown of the meeting attendees and explained who attended and via what profiles and accounts.

Mr C Hunsinger (DA) asked why the meeting occurred over Zoom and not in person. He said the link had been shared only minutes before the meeting on Whatsapp. This was inappropriate and did not facilitate participation in the meeting. The links for Zoom meetings were not easily accessible, and seemed to be hidden amongst meeting descriptions. He was frustrated with this. Since lockdown, there have been issues with virtual meetings.

The Committee Secretary said the link was shared on Saturday, 20 May.

Mr Hunsinger said it had not been clear that the link was for the meeting, and was hidden amongst other items. When it was sent was not the issue -- the issue was that it had not been sent in a straightforward manner.

The Committee Secretary apologised, and clarified that the link was sent via the Zoom platform. The email indicated the link.

Mr Hunsinger said that the meeting link was not always indicated. He said that the Committee Chairperson should not use excuses and should accept that the sharing of the link was not done logically.

Election of Committee Chairperson

Ms Carelse asked if there were any further concerns before proceeding with the election of the Chairperson in terms of National Assembly (NA) Rule 158. She called for nominations. If there was only one nomination, no voting would occur, and the person nominated would be declared the Committee Chairperson. If there was more than one nomination, the nominees would be put to a vote by a show of hands, and the nominee with the majority of votes would be declared the Committee Chairperson. Members were allowed to vote only once.

Ms Ramadwa nominated Ms M Lesoma (ANC) as Chairperson of the Portfolio Committee on Transport.

Ms F Khumalo (ANC) seconded the nomination.

Ms Lesoma accepted the nomination.

The Committee Secretary confirmed Ms Lesoma’s nomination. She asked if there were any more nominations. As there were no further nominations, Ms Lesoma was declared as the Chairperson of the Portfolio Committee. She shared congratulations for the newly elected Chairperson.

The Chairperson thanked the Committee for electing her. She thanked Mr L McDonald (ANC) for his guidance since she joined the Committee and for the reception of other Members when she joined the Committee. She hoped the Committee could continue to have a good working relationship.

Reasons for virtual meeting

Mr Mabhena reiterated Mr Hunsinger’s question about why the Committee was meeting on Zoom. The Committee had been meeting in person. He noted that the connection of some Members was very unstable. Why was the decision to have a Zoom meeting made? Was it canvassed with Members? Parliament was exempt from loadshedding, which was beneficial to meetings because it provided an uninterrupted meeting. Virtual meetings meant some Members' participation was curtailed due to a poor connection. Who made the decision, and why?

The Chairperson requested that the Committee Secretary respond to the question.

Ms Carelse said that a request was made on Saturday, 20 May, to hold the meeting virtually on Zoom, and that the election of the Chairperson be conducted during the meeting. An application was forwarded to the House Chairperson. The instruction had come from management and was sent to the House Chairperson for approval. After it had been approved, she contacted Committee Members and the Department to arrange the meeting via Zoom.

The Chairperson thanked the Committee Secretary for responding. She said she would follow up on the issue. Based on the Committee’s previous decision, meetings would be in person. She referred to issues of Members not being in Cape Town and missed flights.

Mr Mabhena clarified that the Committee was meeting virtually because management officials felt it was a good idea, regardless of the decision made by the Committee to meet in person. He confirmed that the Committee had previously decided to hold in-person meetings. Why were officials making decisions on behalf of Members? Officials were meant to assist and provide support services to Members, not the other way around. Officials should consult with Members and get a consensus from Members on matters that concern them. Since the Committee had decided to proceed with in-person meetings, there were only online meetings during the public hearings. He commented that each Member should have some form of accommodation in Cape Town, and that the issue of missed flights could be solved with better planning. Officials should not be allowed to make decisions on behalf of Members without consultation. Management was management of staff, and not of Members. He emphasised that the lines between officials and Members should not be blurred.

The Chairperson said she would follow up on the issue and convey this message to the management that had made the decision.

Ms N Nolutshungu (EFF) reiterated that a decision in principle had been taken to have only in-person meetings. Things had been changed without consultation with Members. She shared Mr Mabhena’s concerns.

The Chairperson’s audio was unclear.

Mr K Sithole (IFP) observed that only a few committees were having physical meetings, and that meetings were still largely virtual. This was because Members were being rotated. He explained that it was difficult to be in Cape Town. The audio became unclear.

The Chairperson said that the Committee’s previous decision still stood. An additional discussion was needed on the matter. She acknowledged the discomfort of having the Committee's decision overridden by officials. She noted that connectivity was a challenge.

Mr Hunsinger said that the audio quality of some Members was very bad. He experienced difficulty hearing what was being said. It was unpleasant to conduct the meeting under these circumstances. The meeting would be difficult to follow.

The Chairperson shared apologies on behalf of the Minister and Deputy Minister.

The Chairperson reconnected on a different device after the audio became unclear. Committee Members spoke over each other.

Mr P Mey (FF+) emphasised that the audio quality was extremely bad, and suggested the meeting be postponed until an in-person meeting could be convened.
The Chairperson said that she had changed devices, and the audio quality should improve. She acknowledged the audio issues that were being experienced.
Mr Hunsinger supported the suggestion to postpone the meeting until next week for an in-person meeting.
Ms Ramadwa suggested using the chat box if Members were experiencing audio challenges. She pointed out that there was a backlog of meetings, and the meeting could not be postponed. The chat box should be checked throughout the meeting in case any Members share comments there.
The Chairperson asked that the meeting be allowed to proceed. It would proceed with the deliberation on the Railway Safety Bill that had begun in the previous week’s meeting.
Deliberations on the Railway Safety Bill [B7-2021]

Feedback on the inclusion of security in the Bill

Adv Alma Nel, Content Advisor, began with feedback on issues raised with the legal advisors at the last Committee meeting. The concerns had been sent to the Parliamentary Legal Advisor, who would provide clarification on the issues. The issues included the concept of ‘security’ being included in the Bill, and clarity on some definitions. She asked the Chairperson if these issues could be addressed before further deliberations took place.

The Chairperson suggested that the Committee first receive the feedback on the legal clarity that was previously requested.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, addressed the issue of security in the Bill. If the Committee was of the view that security should be included in the Bill, to the same extent that it had been included in the National Railway Safety Regulator Act, special permission would be needed from the House. The Bill currently deliberately excludes issues of security. He said that there was nothing in the Act that empowered the Minister to make regulations concerning security. The Committee would be able to change this, with permission from the House. This was because the Bill, in its current form, had undergone public participation, and security had been deliberately excluded. He indicated that including security issues was a new policy matter, despite security underpinning a great deal of the content. If the Committee decided to do this, it would be a policy decision.

When considering the memorandum of objects of the Railway Safety Bill 2001, it spoke to the reason for amending the National Railway Safety Regulator Act, which included security issues. Additionally, it said that the Bill would provide further clarity and introduce new concepts because significant changes have happened since the previous Bill. He asked why security was being excluded, when progress was being made toward a new regulatory framework for the railway. Why was security being excluded after a few court cases against certain operators, that they had to have security on trains and private security contracts could not be terminated? He said this was important to consider in the context of the Bill and the matrix that the Department provided. The Department’s matrix indicated that the security issue fell outside the Bill's scope. He said that this was a good argument for a member of the public to say that to put security back in the Bill, public participation would have to be redone to a certain extent. He noted that many commentators had said the Bill should be reviewed in terms of security, and had received the response that security fell outside of the Bill’s jurisdiction. He said that legally, the Bill should be a progression from the previous Bill. He indicated that he saw no progression in terms of security. Security of trains was an issue that courts had dealt with and made rulings to prevent the termination of security contracts.

Adv Jenkins responded on how the issue of security in the Bill fitted into the constitutional issue of security, Chapter 11. The South African Police Service (SAPS) was constitutionally in charge of internal safety and security, but this did not mean that the Bill could not deal with security issues. The Constitution said that every decision of the Executive was a decision by the President, in consultation with Cabinet. As with the previous legislation, nothing stopped the Minister from saying the Department would provide licensing and regulations to ensure that operators had some kind of arrangement with the SAPS or private security companies. Simply stating that the operators would be in charge of security run the risk of the Minister not being explicitly empowered to provide regulations which operators must comply with. He reiterated that if the Bill did not cover security, the Minister would have difficulty proving or explaining why they had the power to make security regulations.

Discussion

The Chairperson suggested that Committee Members be given a chance to comment on the security issue.

Ms Ramadwa asked for further clarity. She highlighted the statement that if the Department were to include security, public participation would have to be redone. She agreed with this. It would be improper to include issues of security after public participation had been concluded. The issue of security was dealt with in the Constitution, which stated that the police and state security provided security. She said this might be why security was not included in the new Bill. Was this a constitutional matter?

The Chairperson asked if it was legally advisable to include something the Minister and Department had no control over in the Bill. She noted that Adv Jenkins had said that security was not enforceable by the Minister or the Department.

Legal advisor's response

Security

Adv Jenkins said that in terms of the Constitution, the Minister, Department or Portfolio Committee on Transport could not regulate the SAPS, unless authorised by law, and clarified that this was not the intention of the Bill. He indicated nothing prevented a bill from being taken to Parliament with a comprehensive security plan. This was the case with the Act currently in operation. The security plan could entail ensuring security on the trains, carriages or platforms, and controls and regulations on what may be brought on board or transported. He clarified that the Bill did speak to safety. The Act currently in operation provided a comprehensive security plan, but the new Bill did not include this. A great deal of public input has highlighted this issue. If the Department could illustrate that they were not moving backwards on safety and security regarding the Bill, the Bill could be deemed progressive.

He indicated that there had been recent cases (2020) where the Passenger Rail Agency of South Africa (PRASA) had terminated the contracts of private security companies. The matter had been taken to court and the courts had reinstated the terminated contracts to ensure security on trains. He said that this was not a problematic constitutional issue. A licensee should understand SAPS or private security to show that there was security on trains. If the Committee decided to include security, there was no issue constitutionally on regulating security. He indicated that private security companies were subject to their own rules and regulations. He was concerned that not including security in the Bill would hinder the ability of the Minister and the Department to show that the regulations could be applied.

Adv Jenkins said that because the Bill had been through the public participation process, the process did not have to begin anew if security was included. It would be necessary to inform the public of the amendment, request further input, and inform the people who had previously commented. After receiving the input, it would not be necessary to do public hearings in the provinces because feedback had already been received. Security was not a new matter in terms of the Bill.

The Chairperson said that this was a sufficient response to the inclusion of security and safety in the preamble of the Bill. She indicated that there was an understanding of the difference between ‘security’ and ‘safety.’ She asked for a response on the clarity of definitions highlighted in the previous meeting.

Adv Jenkins said that if the Committee decided to include security, they should ask the Department if the power currently enjoyed by the Minister to regulate safety and security was the same in the new legislation. Was it a step back or a step forward? The answer should provide the Committee with clarity on the decision it should take.

Definitions in the Bill

Adv Jenkins raised the issue of using the word ‘contemplated,’ rather than ‘in terms of’. He explained that these were two different words. ‘Contemplated’ was used in legislative drafting when referring to a clause which expected something to be done, such as 'a report must be submitted as contemplated in section…' It was a clause that indicated that something had to be done that was being referred to. It meant the same as ‘in accordance with.' He said there was no issue with the use of ‘contemplated.’

Adv Jenkins responded on the definition of a Chief Operating Officer (COO). He said the definition of COO in the Bill sought to explain what Chief Executive Officer (CEO) meant. He explained that there was no definition for COO in the Companies Act or the Public Finance Management Act (PFMA). The PFMA defined an Accounting Officer or Accounting Authority. The Accounting Officer was either the head of the administration or the CEO. He said that this was prescriptive. He did not view this as a concern.

He responded to clarification of the definition of ‘dangerous goods,’ and whether the South African National Standards (SANS) definition was sufficient. He considered the definition provided by the South African Bureau of Standards (SABS). He thought it was a good definition because it hinged on the definition of a public entity and described all the kinds of incidents that could happen on rail and road. He noted that this was a legally binding document that ensured consistency across government, because the standard was used to trigger certain events. He thought this was a good definition. If there were areas that fell outside of the SANS description, a catch-all phrase would be necessary. He indicated that it was difficult to add a particular area because it risked the possibility of opening the gate to any type of incident that became a problem. It was fairly similar to the definition in the previous Act -- it was only longer -- and so it should not be an issue.

Adv Jenkins referred to the newly proposed definition of ‘operator’ and the different definitions of a specific operator or operators in general. He clarified that he had not seen the new definition of operator, but would follow up on the matter. He indicated that there should be no issue with this.

There was no issue with the rail inclusion into network or railway definitions. Adv Jenkins asked if the issue was with the stock. He was unsure what the issue was.

Responding to the split between ‘accidents’ and ‘incidents,’ he said that ultimately the words referred to the same occurrence. The incident was a triggering event, meaning things had not gone according to plan.

Adv Jenkins referred the issue of concessionaires to the Department.

The Chairperson thanked Adv Jenkins for his assistance and feedback. She requested that he provide a written version of the feedback and the advice he had shared. She said there had been no written response from the Department, and she would grant them an opportunity to respond and provide clarity on some issues.

Adv Veounia Grootboom, State Law Advisor, said that during the previous week’s meeting, she briefly explained the issues that Adv Jenkins had elaborated on. She reiterated that the Bill was deliberate in its exclusion of security, and that the previous Act had also excluded the issue of security. She was unsure how the issue had been brought into the preamble of the Bill, as it had no place in the Bill. The Committee had to consider if security was a matter that could be regulated elsewhere. If the area was not regulated elsewhere, there would be a gap and regulation should be considered. There was a definition in the current Act as to what security entailed -- “the freedom from intentional harm and damage to persons or property.” The Bill did not necessarily deal with this issue.

She reiterated Adv Jenkins’ statement regarding the use of ‘contemplated.’ The terminology was used throughout the legislation.

The Chairperson thanked Adv Grootboom for contributing. She emphasised that the Committee would wait for Adv Jenkins’s written advisement.

Mr Hunsinger asked for clarity on whether the Chairperson was proposing that this matter stand over subject to receiving written advisement from Adv Jenkins regarding the issue of security.

The Chairperson said it was better and safer for the legal advice to be received in a written format. It was more accessible and allowed Committee Members to cross-check their notes and the written advice. She indicated that she thought this should be the approach.

Ms Ramadwa supported the request for written legal advice. She added that it was important to consider the submissions made by the Committee.

Ms Khumalo understood that security was outside the scope of the Bill, and said it should be fine to leave the issue of security out of the Bill.

Mr Hunsinger was confused at the progress of proceedings. He said that last week the Committee had had a particular position, different sentiments were raised, and a suggestion was made to let the matter stand over until this week subject to legal advice. That legal input had been received. The Chairperson had requested that the legal advice be shared in writing. He asked if this matter would stand over, subject to receiving the legal advice in writing. Was it being suggested that no decision should be taken on security and safety being included in the Bill? He had got the impression that a decision would be taken. He was willing to do this, but requested clarity on the decisions and process of the meeting moving forward.

The Chairperson clarified that a presentation was delivered during last week’s meeting, and the Committee requested legal advice. The legal advice had been shared orally. She advised that the Committee receive the legal advice in writing. She suggested that the issue of security and the preamble stand over until the written legal advice was shared with the Committee.

Mr Hunsinger clarified that no decision was being made on the issue of security.

The Chairperson confirmed that this was correct. She asked if Adv Jenkins could provide the legal advice in writing by the next day.

Adv Jenkins said that he would be able to share the written legal advice on Thursday.

The Chairperson confirmed that this would be alright.

Clause-by-clause deliberations

Clause 1 of the Bill

The Chairperson indicated that the Committee would proceed with its clause-by-clause deliberations on the Bill. The deliberations proceeded from where the Committee left off at the previous meeting.

Adv Nel indicated that the clause-by-clause deliberations would continue with Clause 1 – the definitions – beginning with ‘safety critical grade.’

‘Safety critical grade’ was a new definition. She indicated that there had been input from the Passenger Rail Agency of SA (PRASA), which referred to the South African National Standards (SANS) 3000-1 regarding safety critical grade. There was no duplication on the matter.

‘Safety Management System’ had been defined in the Act. This went hand-in-hand with “safety management system report.’ There was no material input on changing the definition.

‘Safety permit’ was defined similarly to how it had been defined in the Act. There had been significant confusion in the public hearings regarding the safety permit, and who applied for it. Bombela Operating Company (BOC) had inquired if the BOC would be required to obtain permits for each category of railway operations. BOC had proposed considering a group or combined category of railway operations. The Department referred them to the proposal of ‘operator’ definition that Committee Members had agreed to the previous week. The definition would be revisited in Clause 30.

‘Station’ received no suggestions in terms of the definitions. Comments were received in the public hearings that stations needed to be updated and cared for.

‘Station operator’ definition had been expanded. It had been moved under the newly proposed ‘operator’ definition. If the new ‘operator’ definition was included, ‘station operator’ would fall away.

‘Technologies’ definition received input from the Western Cape Government. This was a new definition. The Western Cape Government said that the definition was vague, and recommended that the definition be expanded to clarify it. The Department noted the input, and stated that the definition was appropriate.

‘this Act’ definition was a new definition.

‘Train operator’ definition had been expanded from the Act. This definition may be moved under the ‘operator’ definition.

‘Training institution,’ ‘Transport Appeal Tribunal,’ and ‘Transport Appeal Tribunal Act’ definitions received no input. These were new definitions.

Adv Nel said that that was the end of the definitions per the Bill. The Act included further sub-clauses to assist in interpreting the definitions. She was willing to provide legal advice on why these sub-clauses had been excluded, but noted that it was not a cause for concern. This concluded the description of Clause 1, definitions.

Mr Hunsinger said that several definitions would be affected by the decision on security and safety. He said it was okay that it had been covered so that Members could understand them better. He said that acceptance should not be forced because the Committee still had to decide on a principle matter. He suggested that the Committee not accept the definitions yet, because changes might be made. If the Chairperson was willing to re-open the matter if any changes arose, he was happy to accept this.

Ms Ramadwa said that the Committee agreed with the definitions because not all the definitions would be affected by the decision on security. She said the Chairperson had indicated that if there were concerns, Committee Members should raise their hands. No hands had been raised, which indicated that the Committee agreed on the definitions.

The Chairperson agreed that the Committee should move on and accept the definitions after making a decision.

Mr Hunsinger asked if Ms Ramadwa’s proposal to accept the definitions was being accepted.

The Chairperson said that the Committee would accept the definitions as they had been presented. When dealing with the preamble, if any issues arose with the definitions, they could be relooked at.

Mr Hunsinger was unclear on the way forward. He said that Ms Ramadwa had made a proposal that the definitions be accepted as they were presented. This suggestion was supported by assuming all other Committee Members were satisfied with the definitions. He proposed that the definitions would not be accepted until the principle matter was resolved. These were two conflicting suggestions. He requested clarity on the matter.

Mr Sithole said that it was not proper to finalise the definitions before getting the written legal advice and deciding on the issue of security.

The Chairperson said that accepting what had been presented in terms of the definition did not mean that the Committee approved it. She said that there were no concerns with the current definitions. Dealing with the definitions was phase 1, and it would be revisited again throughout the clause-by-clause deliberations on the Bill. She indicated that the principle decision would not impact some definitions and could not be changed.

Mr M Zwane (ANC) said that there was consensus on the issue of definitions. He said it had been clarified that if any issue arose with the definitions, it could be dealt with later. He encouraged the Committee to accept the definitions at this point, with the option to revisit them if any issues arose.

The Chairperson agreed with this statement and encouraged the acceptance of the definitions at this time to move on to other matters, but retaining the option of relooking at the definitions if the need arose.

Adv Nel proceeded with the clause-by-clause deliberations from Clause 2 of the Railway Safety Bill. She summarised the clause and invited feedback from the Committee.

The Committee accepted Clause 1, but reserved the right to reconsider after a decision was made regarding security.

Clause 2 of the Bill

The Committee accepted Clause 2.

Clause 3 of the Bill

The Chairperson referred to the Deputy Director-General for a response. She noted that the Department’s written submission did not speak to some of the issues highlighted by the Content Advisor.

Mr Ngwako Makaepea, Deputy Director-General: Rail Transport, DoT, said that ‘safe railway operation’ had been sufficiently defined. He said that it had been able to contextualise the issues of the sector. This was why the Department had not responded to PRASA's input on Clause 3, 6 and 30. He could not respond to the question of the legal advisor regarding access, because it had not been requested as part of what had been submitted to the Department. The Act placed an onus on anyone who wanted to take over railway activity to ensure they had a permit. The Department felt that there was no issue with the definition and the clause.

The Chairperson indicated the potential need to add a definition for ‘Republic.’

The Committee accepted Clause 3.

Clause 4 of the Bill

Adv Nel indicated there had been commentary from Transnet, PRASA and the Western Cape Government.

The Chairperson highlighted that ‘must’ and ‘may’ had been used in various areas of the Bill, and had to be closely looked at. She said the intention was not to back the Minister into a corner without considering the material conditions at the time. There should be flexibility. ‘Must’ and ‘may’ had been used interchangeably, but had different meanings and implications moving forward.

The Committee accepted Clause 4.

Clause 5 of the Bill

The Committee accepted Clause 5.

Clause 6 of the Bill amending Section 5 of the Act

Adv Nel said that the comments by PRASA on this clause had been covered under Clause 3.

The Committee accepted Clause 6.

Clause 7 of the Bill

Adv Nel said that the Act had a cooperative governance aspect, which was incorporated into the Clause. The Act also had Section 7, which specified the functions of the regulator. The Bill combined these two sections.

The Committee accepted Clause 7.

Clause 8 of the Bill

Adv Nel indicated that the Clause had been covered in Section 7(2)(i) and Section 55 in the Act. The Bill covered all aspects that had been included in the Act.

The Committee accepted Clause 8.

Clause 9 of the Bill

The Committee accepted Clause 9.

Clause 10 of the Bill

Adv Nel indicated that the Clause was referred to in Section 5 of the Act.

Adv Nel noted that engineering within the railway environment was a new knowledge requirement. She said that this had been covered in Section 8(5)(a)(iv) of the Act, which dealt with areas of expertise that could assist the regulator in performing its function. In Section 8(5)(b)(i) organised labour and (ii) railway industry were excluded from the Bill in terms of being a part of the board. This might be why the organised labour bodies and affected communities had raised concerns about needing representation on the board. The Act made specific allowance for them to be represented on the board, whereas the Bill did not do this. The Department had responded that representation by the Minister of Employment and Labour should be sufficient.

Adv Nel indicated that the Bill included a representative designated by the Minister of Police, which had not been included in the Act.

The Committee accepted Clause 10.

Clause 11 of the Bill amending Section 8(7) of the Act
Mr Mabhena asked to see the Western Cape Government’s comments on the clause.

Adv Nel indicated that Section 8(7)(b) of the Act had not been included in the Bill. The Act had a provision that a panel appointed by the Minister must compile a shortlist from which the Minister could appoint board members.

Adv Nel highlighted comments made by the Western Cape Government as requested. Concerning Section 11(1) of the Bill, the Western Cape Government suggested that ‘persons who have experience of’ should be changed to ‘experience in.’ The Department agreed to this amendment. An amendment was suggested regarding the use of ‘must’ in Section 11(3), because it could potentially create the implication that the Minister was obligated to appoint all potential candidates for board membership, which was not the intention. It should be made clear that the Minister had a choice.

Adv Nel said that the Western Cape Government felt it was unclear whether the ’30 days’ applied to individual board members or all board members concerning Section 11(4). They suggested that the wording be revised to make the intention clear. The wording of 11(5) was recognised as clearer.

Adv Nel noted that public commentary indicated that the Minister should not have all the power to appoint board members. A multi-party committee was recommended to oversee the appointment of board members.

Mr Mabhena stated that in the public hearings, there had been several suggestions that a multi-party committee, like the Portfolio Committee, be involved in appointing board members. He noted the removal of Section 8(7)(b) in the Act, from the Bill. He suggested that the clause 8(7)(b) of the Act be reinstated in the Bill. He indicated that 'may include’ should be amended to ‘must include’ in terms of section 8(7)(b) in the Act.

He emphasised the importance of noting and considering the public’s comments and suggestions.

Mr Hunsinger said it was important to consider what the particular role of the board would be, and to acknowledge that its role would be different to the role of boards in other aspects of transport. He emphasised the difference because the board could be viewed as having an oversight and accountability role, or it could be viewed as having a responsibility and duty function. These were two different functions and roles which could influence the appointment of board members and the criteria and expertise considered. The board may potentially include both of these functions. He indicated that in the case of PRASA, there were board members acting as chairpersons of different functions, so it crossed the lines of purely oversight and accountability and included a duty role. As this Bill was a replacement of the Act, it allowed the opportunity to specify the role of the board.

Mr Zwane agreed with Mr Hunsinger regarding the issue of the function and role of the board. He indicated that there was an opportunity to consider the function of the board and initiate the best approach.

Mr Zwane said the issue of board appointments required processing, and acknowledged that the issue of public representation on the board had been raised in the commentary. He noted that the duty of the board was to hold the Department and Minister accountable. He suggested taking a deeper look into this issue of Portfolio Committees having a role in board appointments.  

Ms Ramadwa suggested keeping the wording as ‘may,’ because it would remain at the Minister’s discretion.

Ms Ramadwa said that not all of the commentary was in agreement regarding board appointments and the need for public representation and a multi-party committee. She supported Mr Zwane’s suggestion. She noted the suggestion that the Portfolio Committee should be involved in making appointments, but disagreed with it, saying that this was not the role of the Portfolio Committee.

Mr Mabhena said he was unsurprised by Mr Zwane’s statements, because Mr Zwane had not attended the public hearings. The public hearing process had taken approximately eight months, and Mr Zwane did not attend any hearings. He said Mr Zwane could not have an input on this issue because he had no point of authority on the matter. Mr Zwane had not heard the public’s commentary.
He said Ms Ramadwa was correct that this had not been an issue in all the public hearings, but that it had been brought up a number of times.
Mr Mabhena noted that there was precedent for board appointments in this way. He said if the Committee used the logic that if they assisted in board appointments, they would not be able to hold the board accountable, it implied the Portfolio Committee on Communications could not hold the South African Broadcasting Corporation (SABC) accountable, because the Committee had been involved in the board appointment process. He noted that this logic would be devoid of truth and narrow-minded. It would imply that the Committee was unable to separate matters. He noted that many boards had been appointed through the parliamentary process via the Portfolio Committees. This was not a new approach. Clause 8(7)(b) of the Act alluded to this approach to the appointment process. He indicated that the ‘may’ gave the Minister discretion of when to engage a committee or panel.
Mr Mabhena emphasised the importance of the legislature. He reiterated that it was important that the process was above board, and the comments received during the public hearings had been considered. Allowing Members of Parliament to participate in appointing the board did not imply that the Committee would be unable to hold the board accountable. During the public hearings, there had been a suggestion to create a community forum to generate input on board appointments. This meant that an extensive body would be involved in board appointments, which would complicate the process. He commented that public representatives were meant to hear and share the views of the public that had elected them, and it would be a betrayal not to consider the remarks and comments of the public.
Mr Mabhena responded to Ms Ramadwa’s suggestion to keep the language as ‘may’. He was willing to accept this, if Clause 8(7)(b) of the Act was included in the Bill.
Ms Ramadwa indicated that it was near the end of the term and that the issue of board appointments had been discussed for a long period of time and no agreement had been reached. She said that board appointments should be the responsibility of the Minister, and would consider the material conditions.
Mr Hunsinger said that Ms Ramadwa had been a part of the Committee, unless absent at the time, when the amendments to the Civil Aviation Bill had been dealt with. He indicated that the Portfolio Committee agreed upon and approved the amendment regarding the dispensation to allow the Portfolio Committee, Parliament and the public to be involved in the appointment process.
When they engaged, the Chairperson said that it would be unfair to some Members to be told that they had not been present. Some Members did participate in debates, but due to numbers, did not sit in all the committees. When she joined the Committee, there had been a detailed written narrative which detailed the oral and written submissions and the organisations who had made the submissions. She should have reviewed this to be in the same place regarding comments shared in public hearings. She said that not everything shared by stakeholders would be incorporated into the Bill. This was why there were no comments on particular clauses.
She said that the Committee would do a clause-by-clause review of the Bill. A logical conclusion regarding the clause would be reached when returning to do this. She requested that the Committee Secretary provide the Committee with a guide on board appointments and its rationale. If the Department could provide the rationale behind the choice to remove Clause 8(7)(b) of the Act from the Bill, it would assist Members to have a better understanding of the choice. She indicated that she was not suggesting that the public hearing comments be ignored.
Mr Zwane agreed with the Chairperson’s suggestion.
Clause 12 of the Bill

The Committee accepted Clause 12.
The Chairperson suggested ending the clause-by-clause deliberations at this point, and noted that it would be picked up at the next Committee meeting. She hoped that the clauses could be concluded during the next meeting.
Ms Ramadwa accepted this suggestion.
The Chairperson reiterated the request for the written submission of the orally presented legal advice. She noted the request for the guide regarding board appointments and the rationale, and asked that this be provided no later than Friday so that Members could engage with it.
The Chairperson concluded the agenda item, and indicated that the meeting would proceed with considering the minutes.
Consideration of Minutes

The minutes of the meeting dated 16 May 2023 were considered.

Ms Khumalo said there had been an error with her title, and requested that the ‘Mr’ be changed to ‘Ms’.

The minutes were adopted with the amendment.

Closing Remarks

The Chairperson suggested that the management committee (MANCO) agree on when to meet. She had been informed by the former acting Chairperson that there was a petition, and the matter of the second round of Welkom public hearings needed to be addressed by MANCO so that the Committee could receive guidance on the issue.

The Chairperson reiterated the need to address the issue of virtual meetings and the decision to partake in physical meetings moving forward.

Mr Mabhena asked about the status of the issues raised in the Committee meeting on 9 May regarding addressing several issues, including the suggestion of a meeting with Mr C Frolick (House Chairperson) if there was no permanent Chairperson. He suggested it was easier for the Chairperson to engage on behalf of the Committee.

He also mentioned two outstanding reports due to the Committee and a letter that had been sent to Mr Frolick. He said that because the Committee had elected a Chairperson, these items should be prioritised and dealt with.

The meeting was adjourned.