Transport Appeal Tribunal A/B & Marine Pollution (Prevention of Pollution) A/B: Department briefing; with Deputy Minister

Meeting report

Deputy Minister's Opening Remarks

Mr Lisa Mangcu, Deputy Minister of Transport, stated that the Marine Oil Pollution Bill seeks to bring South Africa in line with other international conventions, because, in maritime, there are a lot of international trips on shore or passing through that go to other countries. He stated that it is important to cooperate to align with all international protocols, and that is what the Marine Pollution Prevention Bill seeks to do. On the Transport Appeal Tribunal, he stated that the purpose is to adjudicate and decide upon all appeals that would be received by parties that are not happy with a particular decision taken by the regulating entities in the Department, some of which are the cross-road transport agency, the national courts regulator, the national public transport regulator, etc.

He stated that the Bill seeks to establish one body that would be able to adjudicate all matters as they might arise.

Briefings by the Department of Transport

Marine Pollution (Prevention of Pollution from Ships) Amendment Bill, 2023

Mr Mthunzi Madiya, Deputy Director-General: Maritime, Department of Transport (DoT), stated that the objectives of the Marine Pollution (Prevention of Pollution from Ships) Amendment Bill intend to do the following:

- To incorporate the International Convention for the Prevention of Pollution from Ships (MARPOL), Annex four and Annex six.

- MARPOL Annex four regulates the activities for treating and safely disposing sewage from ships.

- MARPOL Annex six is the main global instrument that addresses ship energy efficiency management and GHG emissions.

He stated that the benefits of incorporating annex four and six would help restrict the discharge of sewage, reduce the nutrient loads (nitrogen and phosphorus) caused by sewage discharge from passenger ships into the sea, prevent, reduce; control marine pollution from the air or indirectly through the air, and preserve the maritime environment through the complete elimination of pollution by oil and other harmful substances, as well as minimise the accidental discharge of such substances. He stated that ships will be required to use fuel with no more than 0.50% sulphur content or use approved fuel treatment systems called scrubbers.

He mentioned that the proposed amendments are:

- clause 1, section 1, to include Annexes four and six in the definition of the "Convention" and to expand it to cater for the annexes, regulations, and protocols that will form part of this Bill;

- Clause 2, Section 2a, Incorporation of the Convention into South African law so as to enable it to have the force of law in the Republic of South Africa;

- Clause 2, Section 2b, to provide for the Authority to issue technical standards for marine pollution from ships on such matters as may be prescribed by regulation.

- Clause 3, Section 3, to extend the Minister of Transport’s powers to make regulations relating to the prevention of air pollution from ships, the prevention of pollution by sewage from ships, and any other incidental administrative or procedural matter;

- Clause 5, Section 3b, increasing a fine for the non-compliance, from R500 000 to R10 million or to imprisonment for a period not exceeding ten years, as this would serve as a deterrent to possible non-compliance.

- Lastly, to amend clause 5, section 3b: Grants the Minister the powers that, if exercised, will be instrumental to the proper implementation of this Bill.

He stated that they have consulted with the South African Maritime Safety Authority (SAMSA), Ports Regulator of South Africa (PRSA), Department of Environment, Fisheries, and Forestry (DEFF), Transnet National Ports Authority (TNPA), academia, ship owners, ship associations, economic sectors, investment, employment, and infrastructure development (ESIEID) cluster, governance, state capacity, and institutional development (GSCID) cluster, the Global and Continental Affairs Committee (GCAC), International Cooperation Trade and Security (ICTS), Cabinet, and PCOT. He recommended that the Marine Pollution (Prevention of Pollution from Ships) Amendment Bill be considered.

See attached for full presentation

Transport Appeal Tribunal Amendment Bill, [B8b-2020]

The Transport Appeal Tribunal Act 39 of 1998 (“the Principal Act"), which was passed in 1998 to create the Transport Appeal Tribunal (“TAT”), deals with appeals relating to applications for operating licenses (OLs) under the National Land Transport Act No. 05 of 2009 (NLTA). He stated that the appeals are from “Acts, Directions, or Decisions” of the National Public Transport Regulator (NPTR), the Provincial Regulatory Entities (PREs), and Municipal Regulatory Entities (MREs). He stated that the main amendment to the Bill is that, since its establishment, the TAT has encountered a number of problems and issues that require amendments to the Principal Act. The Principal Act also requires updating concerning developments since 1998. Some technical issues need amendment. He stated that the problems and issues are addressed in the TAT Amendment Bill (Amendment Bill), [B8B-2020] and are elaborated on below.

In clause 1(a) of Section 1, a new definition of the Act of direction or decision is inserted. The amendment clarifies and expands on the acts, directions, and decisions that are subject to appeal by the TAT. The purpose is to address any doubts expressed. In Clause 1(b) Section 1, a new definition of “Cross-Border Road Transport Act,” is inserted, which makes it easier to read the Principal Act and to standardise with the same definition in the NLTA. Section 1(d) inserts a new definition of “National Land Transport Act”; it is amended to replace the general reference to land transport legislation. The Amendment Bill will remove the requirement that the Minister consult the nine provincial MECs before appointing TAT members.

The Principal Act will be amended to provide that the Director-General of the Department (DG) must fix dates, times, and places for hearings of the TAT after consulting the TAT. The Amendment Bill will empower the TAT to impose time limits within which its decisions must be implemented once it has made a decision. The Amendment Bill provides that, where a regulatory entity or the Regulatory Committee fails to comply with a decision of the TAT, the TAT may issue a directive describing the failure to comply with their obligations and state steps that must be taken to meet their obligations. The entity must then comply with the directive within the time specified. It also provides that, when such a directive is issued, the TAT must notify the Minister, relevant MEC, or mayor of the municipality, as the case may be, so that they can assist in ensuring compliance with the directive.

The Principal Act provides that the Director-General (DG) must appoint officers in the Department of Transport (DoT) to perform administrative and secretarial work for the TAT. The Amendment Bill will also permit such staff to be appointed to undertake investigations necessary for the TAT to reach its decisions. The Act is also amended to remove the requirement for the DG to consult the TAT before appointing staff.

In his conclusion, DoT recommends processing the Transport Appeal Tribunal Amendment Bill [B8B-2020] further in accordance with the procedure established in section 76 of the Constitution and that the ultimate enactment of the TAT Amendment Act is crucial in regulating public transport in the country.

See attached for full presentation

The Chairperson expressed words of gratitude to the DoT for the presentation. He appreciated the presentations made on the two Bills that they have received. He noted that it was stated that the two Bills that they are dealing with would have a number of engagements given the fact that the presentation covered a number of areas: the objects of the world; the key areas; the prevention of pollution by sewage from the ships; and the prevention of air pollution from the ships.

Dr Anneke Clark, Committee staff, mentioned that she had provided the Committee with a content note for the meeting.

Input by legal services

Mr Andile Tetyana, Legal Advisor, Parliamentary Legal Services, stated that his role would be assisting the Committee in dealing with the Marine Pollution Bill. The role of the Committee would be limited and therefore, there is nothing much in terms of amendment that the Committee can do. The Committee can comment on whether it agrees or not with the two annexures being added to the Bill. The duty of Parliament is to formulate an attitude, to say whether what has been presented to the Committee is desirable. If it is, then the Bill should pass.

Ms Phumelele Ngema, Legal Advisor, Parliamentary Legal Services, stated that her role is limited only to the Transport Appeal Tribunal Amendment Bill. She would assist the Committee with the Bill, along with the State Law Advisors.

Discussion

The Chairperson stated that the advice from Ms Ngema makes the Committee’s work much easier regarding the guidance and approach they have to play on the Transport Appeal Tribunal Amendment Bill. His line of questioning started first with the Marine Pollution Bill. His question was mainly around clause 3, as it expresses the extent to which the Minister of Transport has powers to make regulations relating to the prevention of air pollution from ships, the prevention of pollution by sewage from ships, and any other incidental administrative or procedural matter, which might include, among others, the waste generated by the mitigation equipment.

He asked whether the Department has conducted an assessment to confirm that the South African laboratories have the necessary capacity to process the fuel samples in the anticipated state to ensure that the backlogs are not created. The second question was on clause 4. He asked whether the fine still applies to repeat offenders where there is a pattern of non-compliance with the Act. His third question was on the regulations contained in Annex 4, on matters around the reflection at the global level in terms of what is transported by the international shipping company, as 90% of the global ships are transported by the global shipping industry.

His question was: what are the economic impact assessment findings concerning the cost that the South African-owned shipping companies will have to expect to ensure compliance with Annexure 4 and Annexure 6 during the period that will be required for the owner shipping company to attain the required compliance standards, and if the exemption would also apply in instances where the discharge of sea-release is for the purpose of securing the safety of a ship and those on board are saving lives at sea or as a result of the negligence of the owner of the ship.

He posed a question on Annexure 6, on what the motivation is for such an exemption and the protections in place to protect the environment during the exploration or associated with processing. He asked if the annexure's provisions align with or the provisions of the national environmental management commonly known in relation to the actual tribunal amendment. Clause 2 focuses on the alignment or consultation between the Minister and the provincial MECs. He asked if the provision is wide enough to allow for the appointment of someone who has been at the Tribunal, such as data analysts, but who may not have worked in the public transport sector in relation to clause 6. What mechanisms are available to the MECs or mayors to assist in ensuring compliance with the range of directives that the Minister may issue?

Department of Transport Response

Mr Dumisani Ntuli, Chief Director: Maritime Transport Policy & Legislation, DoT, in relation to the power given to the Minister to provide a list of accredited fuel sample laboratories, responded that the provisions of the Convention are not in force in South Africa. There are limited tests that are being conducted. However, once they have legislated on them, it would attract interest from the laboratories in the country. He stated that there is capacity at the Council for Scientific and Industrial Research (CSIR). Once the Act is in force, there will be an invitation for the laboratories to express their interest, and an assessment process will be undertaken by the Authority, which is the South African Maritime Safety Authority.

He stated that the International Maritime Organization has already developed guidelines on the accreditation of the fuel sample laboratories. South Africa would draw from that pool of expertise and knowledge in the accreditation of the laboratories. He mentioned that the question relating to repeat offenders and fines would be imposed by the courts. It would be in the wisdom of the judiciary to apply the acceptable principle in relation to how repeat offenders are to be treated. However, because South Africa is a member of the two Port State Control regimes, one is called the Indian Ocean Memorandum of Understanding on Port State Control and the Abuja Memorandum of Understanding on Port State Control.

He emphasised that the two Port State Control MOUs provide for some blacklisting of offenders in the case of an offender continuously offending not only in one country but in various jurisdictions covered by the Memorandum of Understanding on Port State Control. It was mentioned that there are very tight processes that would ensure that no one would escape the enforcement the Convention demands the states take. He stated that it is quite clear that the amount of fines at least puts them at an acceptable level considering the impact this would have, not mentioning that it would be the only mechanism through which the Republic would have resources to repair the damage that has been caused.

It was stated that shipping indeed carries more than 90% of global trade, and the issue of compliance costs was a matter that dominated the discussions before Annex 6 was concluded at the IMO. It was mentioned that there was an appreciation of the challenges faced by developing countries in terms of compliance, and that there are mechanisms that the IMO has developed to assist developing countries in terms of meeting some of the costs. He stated that the South African shipping footprint at this stage is very limited and that most ship owners have ships that are either on loan or in terms of their own charter agreements. So, the compliance costs would be that, for these ships, one criterion is the compliance they would have to carry as and when South Africans charter them.

He mentioned that the direct impact on the compliance cost in relation to ship owners would be very minimal in the case of South Africa. Their major interest would be enforcing compliance, particularly targeting ships that traverse waters or call their ports. The other issue that was raised relates to the issues of exemptions and ships that are engaged or platforms that are engaged in exploration and exploitation. As to whether there is an alignment with the NEMA Act, he confirmed that there is a close alignment, hence they have proposed an amendment to increase the fines.

He stated that, as indicated in the Bill that is heading the Committee, there is a requirement for platforms and ships engaged in exploration to conduct risk assessments to help enforce zero tolerance for marine pollution.

An official from the Department stated that the question on clause 6, section 12, subsection 5, of the Amendment Bill, is on how the Minister is going to implement that. As a Department, while amending the Transport Appeal Tribunal (TAT) Amendment Bill, they are also repealing the TAT regulations of 2013 to align with the TAT Act to develop a directive form that will decide if the TAT has made a decision and that the decision is not implemented by the concerned entity. He stated that, although Section 12.3 of the principal Act says the TAT decision is deemed to be the decision of the entity concerned, the entities are failing to take action under that provision. So, there is now a problem with the TAT decision not being implemented.

He stated that TAT is not a court of law. It does not follow, and inter-governmental relations had to step in because governments cannot take each other to court. He stated that the Minister is going to be implementing that through the TAT writing form TAT-04.

Ms Ngema stated that, as the Department indicated, they are amending the Principal Act. And when it went before the National Assembly, they had a similar concern to the one raised by the Chairperson. That is why, from the B version that appears now, the provision that was removing that engagement is no longer in the version, which means they revert to what the original Act was stating so that, after consultation required between the Minister and the MECs, it will still continue to take place for the constitutional Tribunal.

Mr Hlupheka Mtileni, Committee Secretary, outlined that the two pieces of legislation are Section 76. They are going to process them as they process all the Section 76 bills, and they will go to the provinces at the latest by 30 March 2024.

Closing Remarks

Mr Madiya expressed gratitude for the opportunity given to the Department. He mentioned that they came to pray that the two items get the note of the Select Committee, and he thought they achieved that.

On behalf of the Committee, the Chairperson said they also extend a word of gratitude to Mr Madiya and the DoT team for the briefing. He said the information would help the Members prepare themselves for provincial briefings. They are looking forward to that. He also expressed a word of gratitude to all the Members of the Committee for the honour of ensuring that, despite their hectic schedules, they are able to ensure that the briefing is in place.

The meeting was adjourned.