The Select Committee held a virtual meeting to consider the C-list of the Economic Regulation of Transport Bill and the Committee's report on the National Road Traffic Amendment Bill and the National Land Transport Amendment Bill.
The Parliamentary Legal Advisor presented the legal opinion on the risks associated with the process that the Free State Legislature had followed in processing the Economic Regulation of Transport Bill. She explained what the Constitution required in terms of public participation, and the factors to be considered to determine whether the facilitation of public involvement was reasonable. The opinion was that the province had fulfilled its duty.
Members felt the issue of public participation was open to discretion and interpretation, and the root cause was because the Mandating Procedures of Provinces Act was not specific enough and should be reviewed so that it was not left to the courts to decide.
Five provinces voted in favour of adopting the C-list and three provinces voted against. The C-List was adopted and would be sent together with the report to the provinces to engage on before providing their final mandates.
Members raised a procedural question on what the position was when there was an advert calling for public comment on the Bill, but no comments were received, no public hearings were held and there was no negotiating mandate. In the absence of comments, could the province vote in favour of the Bill? The NCOP Procedural Officer said that provinces needed to prove they had sent out notices and received no inputs from the public. In terms of the Procedures Act, what was valid was what came from the public, and the provincial legislature was not able to vote in favour at the negotiating stage and should rather abstain.
The final mandates of eight provinces were in favour of the Road Traffic Amendment Bill. The report on the Bill was adopted. The Committee agreed to add an addendum to cater for provinces that sent their final mandates before the House adopted the report.
Eight provinces' final mandates expressed support for the National Land Transport Amendment Bill. The Committee’s report on the Bill was read and adopted by eight provinces, with the addition of an addendum similar to the one for the Road Traffic Amendment Bill to allow for the Western Cape’s final mandate to be included after the adoption of the report.
Economic Regulation of Transport Bill [B1-2020]
Ms Thiloshini Gangen, Parliamentary Legal Advisor, gave the legal opinion on the risks associated with the process followed by the Free State Legislature in processing the Economic Regulation of Transport Bill. The Free State had not held public hearings, nor submitted a mandate on the Bill, but it had advertised the Bill in newspapers for public comment. She referred to what the Constitution required in terms of public participation, which was that the National Council of Provinces (NCOP) and the provincial legislatures had to facilitate public involvement in their legislative processes.
She spoke to the rules governing public participation, which was a vital part of participatory democracy and the law-making process. She referenced the Mogale case and the key question of the factors to be considered to determine whether the facilitation of public involvement was reasonable. In the Mogale case, the court used Parliament’s public participation model, and did not regard practicalities such as the cumbersome nature of the facilitation of public participation as justification to not meet constitutional obligations.
Provincial hearings were part of the NCOP process, and any defect in the provincial hearings would be ascribed to the NCOP. There was no requirement for public hearings to be held, but there had to be reasonable public participation, and as the province had advertised and called for comment on the Bill, there had been public participation.
In conclusion, she said that the province had advertised and called for comment on the Bill and had received no responses, and therefore the province had fulfilled their duty.
See attached for full opinion
Mr M Rayi (ANC, Eastern Cape) asked what the role of the NCOP regarding the facilitation of public involvement in the provinces meant practically. Should the NCOP be organising the public hearings in districts in a province? In the absence of public submissions, and therefore no negotiating mandate, could one develop a final mandate after getting feedback from the responses of provinces? There was no negotiating mandate in the absence of public submissions, so how did one develop a final mandate? Would this not set a precedent for provinces to just advertise and wait for submissions?
Mr T Brauteseth (DA, KwaZulu-Natal) had hoped that the legal opinion would provide a solution to the issue, because it was about public participation being open to discretion and interpretation. The root cause was because the Mandating Procedures of Provinces Act was not specific enough, and should be revisited to make very clear what public participation was so that it was not left to the courts to decide. On the issue of reasonableness, he said one needed to consider the make-up of society and its access to technology and ability to respond. He also believed the inability of the Free State delegate to address the legislature was a problem.
Mr M Dangor (ANC, Gauteng) said the NCOP needed to look at the legislation and regulations regarding public participation, and that the Free State had complied with the rules of public participation.
Ms Gangen said she agreed with the comments of Mr Brauteseth that courts interpreted public participation because there was nothing adequate enough to guide. Legislators needed to close this gap so that Parliament was not found wanting when matters were referred to court.
On setting a precedent for provinces to do only the bare minimum, she said the courts would not take kindly to shortcuts being taken because of cost or time constraints. It was difficult if no comments were forthcoming.
In the absence of negotiating mandates and final mandates, she said that was a procedural question the procedural officer could answer.
On the practical facilitation of the NCOP in public involvement, she said the duty of the NCOP was to ensure that public submissions were gathered by each province and distributed to all other provinces. The NCOP was the overseer of the provinces.
The meeting then went on to discuss the C-list but would return to discuss the absence of negotiating mandates and final mandates when the procedural officer was available.
Proposed amendments: ERT Bill C-List
Ms Gangen said many, if not all, of the proposed amendments were of a linguistic or stylistic nature. Some of the proposed amendments were:
In Clause 3 on page 7, line 54, the word ‘industry’ was substituted with the word ‘sector’.
In Clause 5 on page 9, line 46, the words ‘that relate to rail infrastructure or facilities’ were inserted after ‘agreements’.
In Clause 8 on page 10, line 30, the word ‘applicant’ was substituted with the word ‘seeker’.
There had been a typographical error in Clause 12 which was being corrected, as it referred to section 9 which had nothing to do with the clause. The correct reference was to section 11. So in Clause 12 on page 13, line 21, the number ‘9’ was substituted with the number ‘11’.
In Clause 13 on page 13, line 25, subsection 1 was rewritten so that the content remained, but it was not split into the further subsections a) to d).
In Clause 28 on page 18, line 7, the word ‘site’ was substituted with the word ‘website’.
In Clause 29 on page 18, line 47, the word ‘operational rules’, was substituted with the word ‘functions’.
In Clause 38 on page 22, line 24, the word ‘engineering’ was inserted after the word ‘accounting’.
In Clause 43 on page 24, from line 32, the words ‘as may be necessary’ were omitted from the clause ‘after which the funding arrangements will be made by the Regulator and other interested parties as may be necessary.’
In Clause 54 on page 30, line 14, the number ‘2’ was substituted with the number ‘1’.
In Clause 60 on page 33, line 16, the word ‘five’ was substituted with the word ‘seven’.
In Clause 60 on page 33, line 18, the word ‘five’ was substituted with the word ‘seven’.
In Schedule 1 on page 36, line 18, the words ‘ directed under section 30(3), or’ were omitted.
And on page 36, line 27, the words ‘ directed under section 30(3), or’ were substituted with ‘as’.
And on page 36, line 32, the words ‘ by direction under section 30(3), or’ were substituted with ‘as’.
(See C-List attached for full details)
Mr Allen Chikambvi, a Department of Transport (DoT) official, said everything was well from the Department’s side.
Adv Yolande van Aswegen, State Law Advisor, said they had no further comments to add to the C-List.
Mr Brauteseth said the DA would vote against the C-List.
The Chairperson asked if this was the province’s view.
Mr Brauteseth said the final mandate was not yet decided.
The Chairperson put the C-List to a vote. The Eastern Cape, Free State, Gauteng, Limpopo and Northern Cape voted in favour. KZN, Mpumalanga and the Western Cape voted against it. The C-List was adopted and would be sent together with the report to the provinces to engage on before providing their final mandates.
Ms Phumelele Ngema, Parliamentary Legal Advisor, referring to the absence of negotiating mandates and final mandates, said that generally speaking, the answer lay in the definition of the negotiating mandate in the Act as it applied to the NCOP and all provincial legislatures. The Act spoke to the conferral of parameters for negotiation, which may include proposed amendments to the Bill. An attached schedule provided guidance on what the mandate might look like. If the legislature had nothing to propose, the legislature must indicate whether it voted in favour of, against, or abstained from voting on the Bill. The mandate gave the grounds or parameters that the NCOP had to consider when deliberating on the Bill before a final position was taken, and therefore Ms Gangen’s points were sufficient.
Mr Brauteseth said provinces must be asked to come up with a negotiating mandate. Its absence led to the breakdown of the process to the point where many provinces might not provide anything.
Mr Rayi said the Act had grey areas that needed to be clarified by the seventh Parliament -- for example, an individual’s views compared to provincial views on the voting of the C-List. There was no clarity on the province’s position on the C-List. Another issue was whether one voted by party position or provincial mandate when going through the Bill clause by clause.
The Chairperson said a procedural question had been raised earlier on what the position was, within the context of the Procedures Act, where there was an advertisement of the Bill, but no comments were received from the public, no public hearings were held and there was no negotiating mandate. How did this impact on the position of the permanent delegate and, in the absence of comments, could the province vote in favour of the Bill?
Adv Shahieda Bowers, NCOP Procedural Officer, responded to the question of the absence of a negotiating mandate, and whether a province could still submit a negotiating mandate, and said that provinces needed to prove they had sent out notices and received no inputs from the public. One did not require an official negotiating mandate if no comments were received, but she recommended that the province provide a letter indicating the process they had followed, and that no inputs had been received from the public. Even if no submissions were received, the Committee could still deliberate on the Bill, and anything arising could still constitute a negotiating mandate. In terms of the Procedures Act, what was valid was what came from the public and the provincial legislature was not able to vote in favour at the negotiating stage, and should rather abstain.
National Road Traffic Amendment Bill [B7-2020]
The Chairperson said he had received a letter from the Western Cape Legislature's Committee on Mobility on the National Road Traffic Amendment Bill.
The letter expressed the Committee's displeasure at the lack of feedback and, in most instances, the lack of reasons why the Standing Committee on Mobility proposed amendments were not considered or accepted. It felt discouraged that after extensive public participation at enormous cost, it appeared that their input and comments had been completely ignored or disregarded.
The Chairperson said he thought the C-List was informed by the inputs of the provinces.
Ms Ngema spoke to what had transpired procedurally. A document containing all the proposals from the public was compiled, and the legal advisors and the Department prepared responses. These were sent prior to the Committee meetings and were discussed during the meetings, and further clarity and explanations were given, which then resulted in the C-List. There was therefore a D-version of the Bill which could not occur without a C-List.
Regarding the remitted National Land Transport Bill, she said its deliberations were very restricted by law [as the President had remitted the Bill]. There was not much room for the Committee to go beyond the remit. Even so, the Department and the legal advisors had tried their best to give responses and clarity on the issues the mandates had raised. Therefore she was not certain what shortcomings or concerns the letter was referring to.
Mr Brauteseth said the Committee was at the final mandate stage and asked whether the letter would change the Western Cape’s final mandate, adding that there were other final mandates from provinces that were not received as well.
Mr Rayi said the letter was diverting from the final mandates, and procedurally, the Committee had done nothing wrong, so there was no reason to respond to the letter.
Mr Brauteseth asked how the North West and Western Cape, which had not yet sent mandates, would be noted in the report.
Dr Anneke Clark, Committee Content Advisor, said seven provinces had submitted final mandates. They were the Eastern Cape, Free State, Gauteng, KZN, Limpopo, Mpumalanga and Northern Cape. North West and the Western Cape were yet to send their final mandates.
The Members of the provinces read their final mandates. Seven provinces were in favour of the Bill.
Mr J Londt (DA, Western Cape) asked for guidance on how to approach the matter, taking into account the letter written to the Committee Chairperson.
The Chairperson responded that the Western Cape had supported the Bill at the negotiating mandate stage, had heard the responses of the legal advisors, and captured comments. He would be responding to the letter, and note that no specific areas had been referred to in the letter. In an addendum, he would make provision for amendments to the report after the reports were adopted, to accommodate final mandates received after the report had been adopted.
Mr Brauteseth said he was comfortable with that, because the Western Cape should have decided based on what they had received back, and given a final mandate to support or not support the Bill. They could vote accordingly when the matter was before the House.
The Secretary read the report, and it was adopted. Seven provinces had submitted final mandates in favour of the Bill. The Committee agreed to have an addendum for provinces that sent their final mandates before the House adopted the report.
The Chairperson said two points needed to be in the report -- that seven provinces had submitted final mandates in favour of the Bill; and that the Committee agreed to have an addendum to accommodate provinces that would have sent their final mandate before the House finally adopted the report.
Mr Rayi said that the Parliamentary Liaison Officer of North West had confirmed that the province's mandate was sent, but that the Secretary had refused to accept it because there were challenges with the document.
Mr Hlupheka Mtileni, the Committee Secretary, said that one of the roles of secretaries was that they were responsible for ensuring that documents had to be acceptable, and in this instance, the mandate had been issued on the wrong version (the B-version) of the Bill.
The Chairperson said that this information should be included in the report, and that it be noted that the North West had submitted a final mandate which was returned to be corrected, so the report should note that eight provinces had submitted and were in favour of the Bill.
The Chairperson put the amended report to the Committee and it was adopted.
National Land Transport Amendment Bill [B7-2016]
Dr Clark said final mandates had been received from the Eastern Cape, Free State, Gauteng, KZN, Limpopo, Mpumalanga, North West and Northern Cape, which had voted in favour. The Western Cape did not submit a final mandate.
The Members of the provinces read their final mandates.
The Chairperson said an addendum similar to the one for the National Road Traffic Amendment Bill would be added to the report to allow the Western Cape’s final mandate to be included after the report's adoption. Eight provinces had voted in favour of the Bill.
The Committee’s report on the Bill was read and adopted by eight provinces, with the addition of the addendum.
The meeting was adjourned.
- WC Letter: Chair Response to Mandates
- MP Final Mandate NRT
- LP Final Mandate NRT
- KZN Final Mandate NRT
- GP Final Mandate NRT
- FS Final Mandate NRT
- EC Final Mandate NRT
- NW Final Mandate NLT
- MP Final Mandate NLT
- LP Final Mandate NLT
- KZN Final Mandate NLT
- GP Final Mandate NLT
- FS Final Mandate NLT
- EC Final Mandate NLT
- Parliament: Legal Opinion
- C-List: ERT Bill
- [B1B—2020] Economic Regulation of Transport Bill
- [B7F—2016] National Land Transport A/B
- [B7B—2020] National Road Traffic A/B
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