Railway Safety Bill: Department briefing; with Minister and Deputy Minister

Meeting report

The Chairperson said the purpose of the meeting was for the Committee to be briefed by the Department of Transport (DoT) on the Railway Safety Bill [B7B-2021]. There was a need to amend the National Railway Safety Regulator Act of 2002, which had been amended in 2009. The DoT identified gaps requiring legislative intervention, resulting in the Railway Safety Bill. The Bill had been passed by the National Assembly (NA) and referred to the Committee.

Ms Kukie Moloi, an official from the Office of the Deputy Minister, Mr Lisa Mangcu, indicated that the Deputy Minister would join the meeting late.
Ms Thandiwe Mpondo, Parliamentary Director and Cabinet Coordinator, DoT, said the Minister was present on the platform. She would need to leave after introducing the Railway Safety Bill to attend another meeting.
Minister’s overview

Ms Sindisiwe Chikunga, Minister of Transport, thanked the Committee for the opportunity to present on the Railway Safety Bill. The Railway Safety Regulator (RSR) has existed as a fully-fledged independent institution since 2005. In the process of implementing legislation, the RSR had faced challenges in performing certain functions which needed clarity in the principal Act. The National Railway Safety Regulator Act was last amended in 2009. Since then, there have been major developments in the country, including the massive rolling stock investment programme and the introduction of the first standard gauge railway system. These developments had not been anticipated during the amendment of the Principal Act in 2009.

The Department had conducted a railway safety regulatory gap analysis study. This had highlighted legislative gaps in the principal Act. The gap analysis study’s main recommendations were that there was a need to review the principal Act to address some of the identified gaps, including the lack of proper clarity on the role of the various actors within the railway safety environment, the duplication of power of the Chief Executive Officer (CEO) and the Board, the lack of independence between investigations and safety inspections, absence of a proper framework for regulatory safety for critical grades of employees, and the lack of appeal mechanism processes, amongst other identified gaps.

The development of the Railway Safety Bill was aligned with the goals of the South African government to increase the movement of passengers and freight from road to rail. Once implemented, the Railway Safety Bill would ensure an improvement in general safety within the railway environment, making rail an attractive mode of transport. The National Development Plan (NDP) recognised specific strategic objectives related to public transport that were intended to improve the lives of the general public. One of the key objectives of the NDP was the establishment of effective, safe and affordable public transport by 2030.

The Bill sought to repeal the National Railway Safety Regulator Act. The National Railway Safety Regulator Act had established the RSR to oversee and promote safe railway operations through appropriate support, monitoring and enforcement, guided by an enabling regulatory framework. The Bill complements rail revitalisation as part of implementing the national rail policy. The Bill sought to improve the regulatory framework, regulating railway safety in South Africa to improve passenger and freight safety. The Bill retained a number of elements from the principal Act, endeavouring to provide greater clarity on several issues and introducing new concepts designed to enhance railway safety. It emphasised railway safety and recognised the role of operators in managing and implementing safety measures. It provided guidance on the governance of the RSR, sought to remove perceived conflicts of interest, and provided a flexible framework for managing railway safety. In addition, the Bill proposed that the RSR must oversee a framework for safety critical grade employees. The Railway Safety Bill would bring more clarity to the regulatory framework for rail safety in South Africa.

The Bill was aligned with the White Paper on National Rail Policy, approved by Cabinet in March 2022. It had been approved by the National Assembly (NA), and was now at the National Council of Provinces (NCOP).

The Bill indicated that third party access-seekers had to be provided with safety permits in order to operate on the rail network. Many new features had been included in the Bill that were in the National Rail Policy, which was an acknowledgement of the many developments that had happened in the country.

The Chairperson thanked the Minister for providing background information on the Bill, for highlighting the context of the Bill, and the process thus far.

DoT briefing on Railway Safety Bill

Mr Ngwako Makaepea, Deputy Director-General (DDG): Rail, DoT, presented the Railway Safety Bill to the Committee.

He said the National Railway Safety Regulator (NRSR) Act, the current legislation, had been promulgated in 2002 and amended in 2009. The Department conducted a Railway Safety Regulatory gap analysis study in 2014/15, which highlighted legislative gaps that included lack of clarity of the roles of players within the rail safety environment; duplication of powers between the chief executive officer (CEO) and the Board; funding challenges; absence of a framework regulating the licensing of Safety Critical Grade employees; a lack of a proper appeal mechanism; and independence in occurrence investigations.

The Railway Safety Bill sought to repeal the NRSR Act.

The Bill retained many elements of the NRSR Act, provided clarity on several issues and introduced new concepts to enhance railway safety.

The presentation highlighted the board appointment process. The Bill provided for stronger Ministerial oversight, and clearly outlined the functions of the Board.

Regarding funding, funds consisted of money appropriated by Parliament, fees specified in Section 66, levies adopted in financial legislation, and any other fees or sources of income provided for in other legislation.

Operators had to apply to the Regulator for safety permits, and holders of permits had to pay an annual safety permit fee.

The RSR would oversee the management and execution of the prescribed framework for safety critical grade positions by evaluating and registering training institutions. The RSR would establish and maintain a database of safety critical licence holders.

The Department was confident that the Bill would result in a significant safety improvement in the railway environment.

See full presentation attached

Discussion

Mr T Brauteseth (DA, Kwa-Zulu Natal) expressed the DA’s support for the Bill. The DA particularly welcomed the provisions that promoted devolution in the Bill.

Mr M Dangor (ANC, Gauteng) was concerned that the South African Police Service (SAPS) had not been included in the stakeholder consultations. Currently, railway stations are still being stripped. Would the Bill provide for security against infrastructure theft, or would there be railway police to police these matters?

Mr M Rayi (ANC, Eastern Cape) asked what the role of inspectors would be. Would they be in the office, or would they be on the railway lines to check on the status of fencing, the stripping of railway lines and issues of theft? Would inspectors also be responsible for signalling? The role of inspectors had not been specified. In some areas where there was fencing, the fencing would be vandalised or stolen by the communities. This meant that the area around the railway stations and lines was vulnerable to accidents, because the area was not secure. Did the Bill speak to this issue?

Mr Rayi referred to the appointment of the CEO. Did the Department have a standard way of dealing with boards and the appointment of CEOs across all its entities, or were there different approaches? He recommended a standardised method for the Department to deal with the appointment of boards or CEOs. The Bill had indicated a process where the Board would deal with the process and submit two names to the Minister for consideration. Was this a standard practice or applicable only to the Bill?

He said the Minister had powers to discharge the CEO, in consultation with the Board. Should this not be the other way around – should the Board not make the recommendation to the Minister? The Board should monitor the CEO’s performance and issues of discipline, and make the decision to discharge the CEO in consultation with the Minister.

The Chairperson highlighted clause 51 which referred to major investigations. He read the clause for clarity, and stressed the reputational risks to the operators for as long as an investigation into an occurrence was not finalised. What was the motivation for prohibiting the release of a report of an investigation? Unless the investigation report contemplated had been issued, was there any motivation prohibiting an operator from conducting an internal investigation, instead of a major investigation? What factors would the Minister take into consideration?

He referred to the regulations and the Minister’s empowerment to make regulations regarding unlawful occupation of property owned by the safety permit. He referred to the occupation of people around the Cape Town Central Line over the past two years, and asked if any intervention could be made. The Minister, the City of Cape Town, and the Passenger Rail Agency of South Africa (PRASA) had in the past failed to address the issue. Was there a gap that prevented the Regulator from intervening? Was Clause 2(1)(f) aimed at closing this gap to mitigate this issue?

Mr Rayi said an analysis had been made by the Content Advisor, and requested an opportunity to highlight them. Were the regulatory gaps identified in 2014/15 addressed in the Bill? The clause regarding applications for the safety permits indicated that the RSR may require an independent review of the objects indicated by the applicant -- did the South African testing laboratories have sufficient capacity to evaluate such objects without undue delay? In terms of Clause 39, would the information and monitoring system be capable of providing real time reports to inform the ongoing management of railway safety? In terms of Clause 62, what role did the Bill envisage for the RSR in respect of persons occupying land along the railway corridor, as had occurred in Cape Town?

DoT's response

Mr Makaepea responded to the question regarding the SAPS. The Department recognised the important role SAPS played within the security environment. It ensured that SAPS was represented on the RSR board to advise the Department on security risks. When there was a need for joint operations after hotspots were identified, the Department worked with SAPS. In producing the state of safety report, a critical element referred to the security incidents, and the Department had a memorandum of understanding (MoU) with SAPS to provide verified information. The RSR’s role was that of overseeing safety, and operators were responsible for safety. The RSR therefore provided the ‘rules of the game’ in terms of what needed to be put in place to respond to safety issues. As part of the safety management system in the application of the permits, the operator had to support a safe security plan to ensure that when they evaluated the permit, they were aware of the importance of the process. The DoT worked very closely with SAPS.

Mr Makaepea referred to the issue of railway police. Cabinet had approved the White Paper on the National Rail Policy, and many critical elements addressed how to engage with the Ministry of Police to ensure that railway police were introduced. PRASA introduced an integrated security plan which implemented a combination of technology, in-sourcing of security, and determining the critical areas that needed to be secured.

He responded to the question on the role of railway inspectors. Railway inspectors were responsible for ensuring safe railway operations, in line with the safety management system provided by the RSR. The safety management system would demonstrate how railway safety operations would do this. For example, one of the critical elements was about the issue of speed restrictions. If the RSR indicated a particular speed, railway inspectors would be able to monitor this.

Mr Makaepea addressed the issue of signalling, and said if there was an introduction of new systems, a submission would be made to the RSR. The RSR would do an analysis and provide a ‘no objection’ for operators to put these systems into place. There were elements within the railway sector that the RSR would oversee.

There were regulations regarding infrastructure involved in safety operations. The RSR had to ensure that these regulations were enforced by the regulators to secure the railway environment. It would also have to determine the penalties that would be in place if there was non-compliance.

Mr Makaepea responded to the questions regarding the appointment of the CEO, and said the Department had a clear process of appointment. Appointments in government entities were guided by Cabinet. The Board, which was the accounting authority, had to ensure that there was a clear, transparent process of advertisement and interviewing. The Board would then make a recommendation to the Minister, who would then engage with Cabinet over the appointment. This was standard practice across government. To dismiss the CEO, the Board would have to make a recommendation to the Minister.

He responded to the questions regarding the investigation. Regarding the existing legislation, there was a general board of inquiry regarding major investigations. The Department was of the view that everything was happening at the level of the RSR. The provision for major investigations was to ensure a separation of powers. The Minister had to ensure that there was a clear point of reference in terms of investigations. Most cases requiring major investigations would be issues such as the loss of life and serious damage to railway infrastructure, where there were serious costs involved. Independent investigations were important for court cases. There were cases where affected parties had written to the Department asking for investigation reports, so the Department believed that the Minister should release the reports for the sake of transparency.

Turning to the issue of the occupation of the Central Line, he said the regulation regarding infrastructure activity indicated that it was the operator’s responsibility to ensure that they were able to secure their rail reserves. As part of this Bill, the RSR would seriously review this issue.

Mr Makaepea referred to the railway safety gap analysis. The Bill spoke to elements of other funding streams – an issue the gap analysis raised. The Bill clearly indicated the functions of the Board and the CEO. There was a clause in the Bill that dealt with safety critical grades. The Bill provided for an appeals mechanism. To the best of its ability, the Department had tried to address the gaps that had been identified.

He drew attention to Clause 30 regarding the independent reviews. The DoT believed the onus had to rest with those who submitted the safety permit. Submitters must be able to submit information that is easy and clear to the Regulator. The Department was confident that the railway sector had the capacity to deal with issues.

He said the National Railway Information System was a data repository that had been provided for in the principal Act, and was being included in the Bill. This would ensure that the Regulator had up-to-date information on the network systems. This System made use of information submitted by the operators, and would assist the RSR in terms of compliance. There had been issues with the previous system, but these were being addressed by the RSR. The Department had received positive feedback regarding this matter. This would ensure the compliance of people within the railway reserves. One of the strategies being changed regarding PRASA and the corridors, was introducing the walling-off of corridors and sub-stations.

Mr Makaepea finally responded to the concerns regarding the reputational damage of operators.

The Chairperson thanked the DDG for the comprehensive response to the questions of the Members. He invited Deputy Minister Mangcu to share any concluding remarks.

Deputy Minister Mangcu thanked the Committee for the opportunity to make the presentation, but experienced connectivity and audio challenges.

The Chairperson thanked the DoT for the presentation. He expressed his appreciation for the amendment of the principal Act, and the effort to address the gaps that had been identified.

Committee matters

The minutes of 8 November were considered and adopted.

The Chairperson said that he had communicated with the national Chairperson regarding the issues of the Free State that had been highlighted during the previous week’s meeting.

The Committee Secretary said the Committee would meet the following Wednesday and Friday.

The Chairperson asked if any response had been received from the Department regarding the negotiating mandates.

The Committee Secretary said that the Department had responded to one section. He had requested that the Department finalise its comments. The Parliamentary Legal Advisor had responded, and the document would be shared with Members.

Mr Brauteseth requested that the revised Committee programme be shared with Members.

The Chairperson noted this, and requested that the Committee Secretary share the revised programme with Members.

The meeting was adjourned.