Railway Safety Bill: Negotiating Mandates

Meeting report

Railway Safety Bill  [B7-2021] Parliamentary Legal Services input

The Chairperson said the purpose of the meeting was to deal with the negotiating mandates of the Railway Safety Bill. When the Committee adjourned last week, they had agreed that they would afford the parliamentary legal services an opportunity to reflect on the views expressed by the Department of Transport and the stakeholders concerning the concrete proposals that had been put forward. He invited Advocate Frank Jenkins, Senior Parliamentary Advisor, to address the Members.

Adv Jenkins said he did not intend to take too much of the Committee's time, and took Members through some of his responses to the matrix that had been provided by the Department, considering this was not the matrix on the negotiating mandates, but just the comments from the public participation process.

There were numerous comments regarding security issues they had dealt with in the National Assembly (NA). However, these comments were irrelevant to this Bill, which solely concerned railway safety. The Bill did not cover the security of cables, nor did it address the responsibility of the South African Police Service (SAPS) to ensure the safety of individuals being transported.

There were two or three areas where he wanted to advise the Committee. The issue of security was quite prevalent. The first remarks on this matrix were just general comments that were given by the stakeholders, concerned engineering groups and others, not the provincial mandates. 

He agreed with the Department that this Bill was about the safety of railway operations, and was not about the security of people using the railways. The Association of South African Travel Agents (ASATA) wanted the Bill to deal with the issue of crossings, where there should be security and so forth, but it was not dealt with. Everybody was concerned about security, and the operation and efficiency of the railroads, but the Bill did not cover that. There was therefore a need to find that security in another Bill -- or if it was already there, then it had to be implemented. The issues were all related to security matters.

Regarding the issue of disabilities, the Western Cape Department had wanted specific issues dealing with disability, but he agreed with the Department’s response that those matters were provided for in the Bill and the Constitution, where there could be no discrimination on disability. He believed that the Western Cape wanted a permanent definition for the disability provision, but the definition of disability was being dealt with in other legislation. They did not have a specific act dealing with disabilities, which was something for another Committee to consider.

The Western Cape Department of Mobility had indicated that because of the closeness between the entities and the Minister, there might be a conflict of interest when some of these decisions were taken in terms of the Bill. However, the Constitution required that all services and all administration must be impartial. That was contained in Clause 7.1 of the Bill as it is. The reporting structure would not impede the Minister's decision-making power according to the Constitution. He also agreed with the Department’s response.

Discretionary powers were given to the Minister, the Regulator, and so forth. Where discretion was given, and that discretion had to be exercised with good reason, that was reasonableness -- in fact, an objective standard that could be taken on review to a court to see whether there was proper consideration in the use of that discretion. The comment from the Western Cape had included reference to a case against the Minister of Home Affairs, where there had been an impact on constitutional rights and the Bill of Rights.

A Committee, or Parliament, should provide some guidance, but one must also use one's discretion. In clauses 51 and 52, which they were currently examining, the Western Cape Department had indicated that the Minister had the discretion to prevent an investigation of an operator from proceeding, or to reject it. This meant that the Minister could use his/her investigation powers for a railway or any other event instead of relying on the operator's report, or informing the operator that their report was inadequate.

The changes being proposed may have some impact on the Bill of Rights, but these changes did not specifically target those rights, so he believed that the discretion given in clauses 51-9 and 52-7 was appropriate. He further disagreed with the Western Cape's Department of Mobility's stance on parliamentary committees. They believed that a specific committee was needed, but he agreed with the Department's decision that Parliament was sufficient as it was. In terms of its internal arrangements, Parliament was in control, and its legal services office discouraged reference to specific committees in legislation. This was because committees could be appointed, renamed, or disbanded. It was therefore better to simply refer to Parliament in legislation, and leave the rest to Parliament to determine its operations, as the Constitution allows.

He agreed with the Department's response on certain drafting errors. However, the issue of rolling stock was a policy matter. The legal services office typically avoided commenting on policy matters, as he was not an expert on issues related to rolling stock and railways. Instead, his office focused on reviewing drafting issues, constitutionality, the limitation of rights, and other similar matters related to parliamentary procedures.

Regarding the compliance of rolling stock with certain standards, the legal team would rely on the policy experts, which was the Department. His office had made some progress in understanding the Bill. They had reviewed the preamble and some comments, and he agreed with the Department's responses. Policy matters were crucial. The Gautrain Management Agency had expressed its support for the Bill, so there was no major concern there.

He had noted an issue in the Bill regarding the governance of the Regulator's board. The board was expected to act as the oversight body of the Regulator, and may also be its accounting authority unless delegated otherwise, according to the Public Finance Management Act (PFMA). However, the Bill did not specify any requirements for the board to meet at regular intervals, such as once a quarter, which was the standard practice. Typically, a board met at least four times a year. The Department had responded that they did not wish to restrict the board's agenda and wanted to allow them to determine their programme. He had no issue with the membership of the board, or the fact that nothing was specified regarding the regular meetings of the board. However, it was important to remember that board members were compensated for their work, and this included preparation time as well as time spent during meetings.

Besides the Bill's lack of provisions specifying the frequency of board meetings, which was unusual, the board had no mandate to create or approve a charter, which was a common requirement. The charter must conform to the regulations and laws governing it, and should include the frequency of board meetings.

He had also found a comment in the Bill about notices of meetings. The Bill stated that the board must act under the highest standards, and he believed that included the King IV report on corporate governance for South Africa. However, it was unclear whether the Committee wanted to ask the Department why they did not adhere to the standard of having at least one meeting per quarter.

It was important for the board, which was funded by taxpayers' money, to have a charter that outlined its operational guidelines. This would enable the public to know how the board operated, when it operated, and how it was held accountable. Additionally, having a charter would help Parliament evaluate whether the funding provided to the board was justified. It would also establish a baseline for the board's frequency of meetings and other aspects of its reporting, enabling Parliament to determine whether it was worth the investment. He understood that the dissolution of the board impacted the functioning of Parliament, as well as the specific Committee and its sister Committee in the NA. Interestingly, the dissolution was published in the Government Gazette, but Parliament was not specifically notified of it. He believed that Parliament should be informed when a board was dissolved, as it was in the interest of Parliament and would assist with its operations.

When the Minister dissolved the South African Tourism Board, Parliament had to be notified of it, so Parliament must be notified of these things. Parliament was not a government department; of course, it oversees all government departments, so its focus was more on procedures than a certain subject matter. However, the unintended consequence was that they received a lot of notices and government gazettes being published, and reports being referred to Committees. Without the notification, it was difficult to see how Parliament could effectively fulfil its oversight function there.

He said he had two disagreements with the Department. Firstly, he disagreed about the frequency of meetings with the board, and whether there should be a charter for the board included in the legislation. Secondly, he believed that the notice should be sent to Parliament when a board was dissolved. However, the Department had argued that it was unnecessary and suggested looking at the Government Gazette instead. The Government Gazette was a record used for referencing laws, and not for official notices.

He agreed with a lot of the Department's comments and responses about word usage, drafting and so forth, and there was no need to go into those. He thought some of these responses were perhaps also comments made before the National Assembly amended the Bill.

He had no concerns regarding the Department's response to the definition of technology. The definitions were still intact, and he did not have any issue with its response. It was a policy matter regarding the rolling stock.

Parliament might not be in session, but that did not mean that Parliament did not function. It did not mean they did not have an administration that could refer matters, or advise the presiding officers who could then let things filter into Parliament. The Gazette was not a notice to Parliament, and the Committee must decide where it wanted the Minister to notify Parliament when the board was dissolved.

There was a suggestion that the engineering groups required the procurement documents to be included in the strategic documents, and the response was that they were already included in the strategic plan. It was recommended that Clause 23.8 be reviewed, which pertains to strategic documents. The procurement plan of a department was a crucial document that was becoming increasingly important. Departments had a strategic plan and an annual performance plan, which would include their procurement plan, and it was likely that their procurement plan was already incorporated into their annual performance plan or the plan of action they wanted to implement.

The Chairperson thanked Adv Jenkins for his comments and input. He invited Members to refer to the negotiating mandates.

Provincial Negotiating Mandates

The Committee Secretary outlined the next process, and said the negotiating mandates would be flagged. Members representing their provinces would then read the negotiating mandate from their province. For those Members who were not in the meeting today, the Chairperson would read it. Thereafter, the Chairperson would request the Department and the parliamentary legal office to respond, especially on those mandates where there were proposals for amendments.

Eastern Cape
The province had voted in favour of the Bill, and therefore mandated the permanent delegate to the National Council of Provinces (NCOP) to negotiate in favour of the Bill. In terms of general comments, the public hearings report of the Portfolio Committee was attached to highlight other issues raised by the stakeholders relating to railway safety that ought to be given serious consideration by the Department of Transport.

Free State
The Portfolio Committee of Public Works and Infrastructure, Road, Transport, and Human Settlements, as designed by the Free State Legislature, had voted in favour of the Bill. The Committee report was also attached to the mandate.

Gauteng
The Gauteng Provincial Legislature supports the Railway Safety Bill, subject to the following amendments being considered:

The delegation proposed that Clause 11 cater to some level of provincial participation, which was in line with the principles of transparency and cooperative governance. In terms of Clause 44, a warrant may be executed only during the day from 08h00 to 17h00, other than on a Saturday, Sunday, or public holiday, unless the Minister delegates the board. To ensure the delegation by the board did not derogate from a multidisciplinary approach, the decision-making envisaged by the composition of the board prevents sweeping delegation on the board's authority to introduce checks and balances that facilitate natural rules of justice relating to impartiality and conflict of interest. Further, it was recommended that parameters within such a function of duty and the board be delegated to the outlined function of the Bill, so it may be useful to specify the functions of the Bill.

In terms of general amendments, the Bill was silent on any measures to respond to the devastating stripping of thousands of kilometres of cable that was crippling the railway industry. This may include the immense temporary banning of scrap copper and steel exports, and the regulation of scrap metal dealers. It proposed a clause to regulate this. The Bill needed to address the respective responsibilities for ensuring the safety and security of railways.

KwaZulu-Natal
The Portfolio Committee on Transport met on Friday, 22 March, and agreed to mandate the KwaZulu-Natal delegation support the Bill.

Limpopo
The provisional NCOP permanent delegate should negotiate in favour of the Bill, considering the inputs and comments from the public, as attached to the report.

Mpumalanga
The Portfolio Committee on Public Works, Roads and Transport, Community Safety, Security and Licensing, after considering the Railway Safety Bill, B7B of 2021, conferred on the permanent delegate representing the province a mandate to negotiate in favour of the Bill.

North West
The North West Provincial Legislature voted in favour of the Railway Safety Bill.

Northern Cape
The Provincial Legislature also voted in favour of the Bill.

Western Cape
The Standing Committee on Mobility, having considered the Bill referred to it under Standing Rule 217, conferred on the Western Cape delegation the authority to support the Bill.

The Chairperson noted that the Western Cape legislature had participated as one of the stakeholders who had submitted comments to the Bill. Either the Department or Adv Jenkins could comment on the proposed amendments of the Western Cape Legislature.

Department's response

Mr Ngwako Makaepea, Deputy Director-General: Rail Transport, responded on the issue of the board charter, and said Members would remember that corporate governance matters cut across several legal instruments to which the Department subscribed. This included how they drafted the Bill on the appointment of boards and how they must operate was in line with the Department of Public Service and Administration (DPSA) guide and alignment with the King code report. As the Rail Safety Regulator (RSR), they subscribe to the King Code process, and have all through the years compiled with it and the board charter.

One of the legal instruments was that the Minister signed performance agreements with the boards to ensure that all government processes were in place. Thus, there was no need to repeat this matter, as it was already covered. The comments the Western Cape made aligned with what they had presented in their response. All their answers remained the same, and when they presented them to the Committee, there were no issues.

The Chairperson welcomed the responses.

The meeting was adjourned.