Marine Oil Pollution (Preparedness, Response and Cooperation) Bill: briefing
NCOP Public Infrastructure & Minister in the Presidency
09 October 2024
Chairperson: Mr F Badenhorst (DA, Western Cape)
Meeting Summary
The Department of Transport (DoT) gave a briefing on the Marine Oil Pollution Preparedness, Response and Cooperation Bill. Committee members asked about the implementation cost of the Bill; how safe the marine economy was from extortion syndicates and mafia hijacking; if ports were ready to collect the levies to ensure South African waters were protected; if a socio economic impact assessment had been done on the Bill; why the Bill had been delayed; if there was cooperation from neighbouring countries; and if visiting ships were aware of South African law.
Meeting report
Opening comments
The Chairperson welcomed the Deputy Minister and said that the Committee would allocate 45 minutes for the presentation followed by questions and responses. The presence of Mr M Maphisa (IFP) from the KZN Provincial Legislature was acknowledged.
Transport Deputy Minister Mkhuleko Hlengwa introduced his team and gave an overview of the presentation after switching off his camera for better connection.
Mr Simphiwe Nkosi, Deputy Director-General: Transportation Infrastructure and Regional Services, noted the time constraints and handed over to the presenter.
Marine Oil Pollution (Preparedness, Response and Cooperation) Bill: briefing
Mr Dumisani Ntuli, Chief Director: Maritime Transport Policy and Legislation, explained that the Bill provided for the processes to regulate, manage the preparedness and response to major marine oil pollution incidents at national level and ensure cooperation with other countries as necessary and appropriate. The cooperation covers—development of contingency plans, research, training and exercise programmes.
SA was located along the busiest sea-shipping route straddling the Indian Ocean, the Atlantic Ocean and the Southern sea stretching to the Antarctic region. More than 12 000 vessels of varied sizes carrying different types of cargoes passed the South African coast on an annual basis. SA was exposed to all types of risks associated with maritime traffic including possible pollution from ships and grounding of ships.
Mr Ntuli took the Committee through the Bill’s clauses (see document).
Discussion
The Chairperson thanked the Department. He noted members of the Provincial Legislatures were present and invited them too to ask questions.
Mr K Ceza (EFF, Mpumalanga) asked if the Bill included only coastal provinces when it mentioned compensation for damage. What happened when the oil was transported inland and an accident occurred in a village? Was the village compensated? In brief what would DoT say the Bill sought to achieve? Had the National Assembly already commenced with the clause-by-clause processing of the Bill? Would the Select Committee have parliamentary legal advisors present during the processing of the Bill? He asked if the Department had done due diligence and conducted an impact assessment of the Bill. He noted laws sought to protect; however, he worried that there was no impact assessment. He wondered if such a process was in place.
Mr Mthunzi Madiya, Deputy Director-General: Maritime, confirmed that an impact assessment had indeed been conducted and this was done at the commencement of developing the Bill. DoT liaised with the Department of Planning, Monitoring and Evaluation (DPME) to assess the impact of the Bill if implemented. DoT had received a certificate to confirm this exercise. The jurisdiction of this Bill was for the Maritime jurisdiction. This meant that spillages elsewhere would pertain to other laws.
Mr Ntuli explained that the application of the Bill was covered in Clause 4 and it was a very strict application to coastal waters. It was clear that one department would not succeed in coordinating a response because the impact of an oil spill extended beyond the DoT mandate and seeped into the Departments of Tourism and Forestry, Fisheries and the Environment as well as coastal industries. The impacted areas required a coordinated response and this was what the Bill provided. It had a mechanism where all the stakeholders would be involved to ensure efficient regulation. He confirmed that the Portfolio Committee on Transport had already deliberated on the provisions of the Bill and there had been public hearings and written submissions. The Bill had been referred to the NCOP.
Mr Ceza said he was mostly satisfied with the responses except on two matters. He asked if during the public hearings the department had notified those affected by visual impairment about the Bill so they were not excluded from such compensation. Was a Braille version available? He noted that there were interpreters for those proficient in South African Sign Language (SASL). He asked about the nature of penalties implemented by DoT in the event of spillages.
The Chairperson agreed that there should be briefing audio recordings available for those who were visually impaired.
The Deputy Minister responded that the public hearings were handled mainly by Parliament. The Department would respond to specific concerns as and when they were brought up by the public. The public hearing submissions could be furnished to the Committee now as a baseline for the concerns raised.
South Africa was trying to ensure the standardisation of the country’s participation on international forums. The current standards could be easily referenced against the protocols. This Bill was urgent because of the current conflict in the Middle East. Their preparedness should have been heightened.
Dr I Scheurkogel (DA, Free State) referred to clause 38 on the name change of the fund. What would the new name be? Were the ports ready to receive the levies? Would they be able to collect the levies to ensure that South African waters were protected? Quoting clause 5, he asked if this time frame of two years for drafting regulations was not too long. In clause 7 could they not decrease the frequency since five years was too little time to evaluate? In clause 6 should they not add a time frame here? In clause 10 did South Africa have accredited institutions to conduct such training? In clause 12 did they have the regional operational agreements in place? He noted the different tiers.
Mr Ntuli replied that clause 30 of the Bill provided for penalties and offences. Any fines had been increased to R35 000 000. This confirmed the zero-tolerance stance the country was taking on oil pollution in the marine sector. The new name would be: Oil Pollution Preparedness and Response Fund. The levies collected would form part of this Fund, along for the oil handling facilities along the coast. This would be covered by the Bill. The time frames for conducting assessments needed to be reviewed. He said that the processes were effective as the Minister prescribed the regulations. The prescribed two years was informed by the Minister having to publish the regulations and this required the two-year time frame. One action led to the other to provide an effective response. The stakeholders were already entering structures in anticipation of the Bill. They were only missing a legal team to ensure that the Bill was put into effect. The country had a good system of levy collection but in this case South Africa would have to contribute to the fund. This would be further clarified by the recommendations made by the Minister.
Dr Scheurkogel said that his question on the accredited institutions was still unanswered.
Mr Ntuli said that the International Maritime Organisation (IMO) had a training programme undertaken by the IMO Technical Cooperation Division which offered accredited courses to states on preparedness and response. For ongoing training of private sector stakeholders, there were accredited institutions globally which offered training, and this would be covered by the South African Maritime Safety Authority (SAMSA). IMO stood ready to assist developing states.
Mr Madiya replied that the Benguela Current Convention had been signed last year by South Africa, Namibia and Angola and he confirmed cooperation with neighbouring countries.
Mr T Kaunda (ANC, KZN) welcomed the helpful presentation. He could not hear properly on the matter of levies, how was this designed and what would it look like? On potential risk, had they recently experienced pollution due to leakages? What were the incidents? He asked a question about risk factors.
Mr Ntuli replied that the levies provisions would be clarified by the level of contributions for the entities covered by the Bill and the mechanism of collection. A necessary step was the risk assessment which would require SAMSA to provide new functions. Thereafter SAMSA would conduct their own assessment before including this into the new levies for ships and off-shore handling facilities and sea ports. The Bill was an enabling framework to assist SAMSA with its assessment.
On recent oil spillage incidents, there had not been major incidents of pollution which SAMSA could not handle. To demonstrate the interim structures, South Africa was able to activate a Level 1 response and involve the various role players.
Mr Ntuli agreed that there should be opportunities for youth but this Bill only dealt with the preparedness; other instruments would inform the economic activities. Awareness had to be raised and there was the mobilisation of response. Youth could benefit and get to work in the marine sector.
Mr Kaunda asked if there was potential to introduce energy renewables. He suggested investigations be conducted on pollution since 1652 when Jan van Riebeeck arrived in the country.
Mr Madiya replied that renewable energy would be in the form of propelling the equipment to combat the pollution. He suggested the mechanically-propelled equipment could use the renewable energy. At this juncture, he did not think it would be practical.
Mr M Peter (UDM, Eastern Cape) asked about the safety of the marine economy. Could the marine economy protect itself from extortion syndicates and mafia style hijacking? Did they have such measures? How did the Bill seek to achieve its goals?
Mr Madiya replied that South Africa as a maritime nation had a responsibility to protect its waters. They were required by law to have equipment which patrolled the waters. They were to assess vessels; they had combative equipment to reduce exposure. They had five vessels managed by SAMSA patrolling the waters to guard against illegal fishing. The treaty assisted neighbouring countries as in the event of illegal fishing, one can arrest the suspects even outside of the country’s jurisdiction. South Africa continued to develop its capability to protect the marine economy. They worked closely with the South African National Defence Force (SANDF) to develop the National Maritime Security Strategy. They also worked with Stellenbosch University which was a technical advisor. They did have an issue with funding and they wanted to acquire funds to combat any illegal activity on the shores.
Mr Ntuli clarified that South Africa was part of the Oil Pollution Preparedness and Response and Corporation Convention and it had submitted the instruments of accession to the Convention. However, forming part of the Convention was insufficient. The Constitution compelled the Executive to ensure that legislation was proposed to domesticate this Convention. The Bill fulfilled the Constitutional requirements for it to be enforced in the country. Last year they emerged from an audit from the IMO where they found that South Africa had not domesticated the many conventions she formed part of. The audit commended the country on her prevention measures. To accomplish a full implementation of the enactment of the Bill was very crucial. This would move the country forward in becoming an International Maritime Centre by 2030. This Bill would place the country in full effect, to assist with dealing with issues of not responding to incidents. This would capacitate the SAMSA to have a necessary equipment and response. This was not to suggest that DoT had not worked with SAMSA, they worked to repel any threats which threatened the shores. SAMSA would assist in strengthening the prevention capability.
Ms T Breedt (FF+, Free State) referred to clause 16 and asked if municipal and Disaster Management Centres were consulted on this? She acknowledged that they were to assist with the implementation. She recalled discussing funds, what was the cost of the implementation of the Bill to DoT, both in funds and in facilities? She recalled mention of the strict penalties, for instances of repeat offenders. Were there appropriate sanctions or were there only the escalation of penalties? She suggested that they prioritise not having repeat instances. She had already witnessed several repeat instances in her lifetime.
Mr Ntuli replied on the cost of implementation. This was a shared mandate. He had already referenced the mandate of the Department of Fisheries, Forestries and Environment for the combating function. The Bill gave new functions to the DoT Director-General on the conducting of assessments as well as a contingency plan. These were to be undertaken by the existing DoT staff. The new mechanism which the Bill proposed did so bearing in mind that there would not be any additional funds. This would impact the training of staff; they would avoid asking for any more funds. Under the current administration, DoT would look into this structure to ensure that any additional function would be brought forward to Parliament and aid in staff training.
The Bill promoted a coordinated response mechanism. The relevant department was consulted in the drafting process and the mechanism was able to commence.
He could not comment if specific input was submitted but the Disaster Management community was very involved in the legislative process to have the Bill approved by Parliament.
Mr Ntuli said that persistent polluters were covered by another piece of legislation which was the Marine Pollution (Prevention of Pollution from Ships) Act which provided measures on how to deal with such polluters. That Act was very strong in targeting ships intent on contravening the law. South Africa was regarded as the ‘ship arrest capital of the world’, and could invoke a sister-ship arrest. They adopted a zero-tolerance to ensure pollution prevention. They have a Memorandum of Understanding with the IPM Port State Control. This helps DoT in being part of maritime administration to learn of ships which were causing issues. They had an effective prevention system. Compensation matters were covered by another sector. They had global insurance for oil pollution. DoT would return to Parliament to request the domestication of the convention dealing with harmful natural substances which looked at oil. He assured the Committee that the country was safe and secure.
Ms M Makesini (EFF, Free State) welcomed the presentation. She asked why there was a delay with this Bill as it was already presented to the Sixth Parliament. She worried that the Bill may be rejected even after becoming an Act. Were our three neighbouring countries equipped with effective and thorough Acts so as to not tamper with South Africa’s process? She wanted to avoid any irregularities. Were these three countries also enacting a domestic Act. She worried about having to re-do this process should any irregularities be detected.
The Deputy Minister replied this was a matter of timing and not a matter of delay. The Bill was first introduced to Parliament in March 2022 and subsequently approved by the National Assembly in October 2023. Due to the 2024 elections, the processing of the Bill could not be completed and it lapsed. This was a resuscitation of the Bill as passed by the National Assembly.
Mr Madiya replied that the neighbouring countries were doing the same as South Africa. The Bill discussed illegal fishing, sharing of resources, search and rescue activities, sharing intelligence to guard the coastlines. Namibia and Angola were part of the IMO. The answer was yes; but it may not go in the desired direction or format. They collaborated with Mozambique. Cooperation took place at different levels where they shared knowledge and information.
A Member of a Provincial Legislature [02:01:35] asked if DoT has measures in place such as a contingency plan to present to the ship owners responsible for damage which stated the standards and criteria for the oil spillage. How would the Department assess the damage caused by oil and chemical spillages in the sea? What measures were in place for this or were they rather waiting for the Bill to be passed first?
The Deputy Minister replied that they found a strong system to engage stakeholders and they interacted across the spectrum on the issue of regulations. They agreed not to conduct regulations in a vacuum of comments raised by the stakeholders. He was certain that the consultations would proceed. He suggested that they return to the Committee with a Maritime branch, and brief the Committee on the broad issues. They still had more conventions to present to the Committee. He felt this would enhance understanding [02:06:15 inaudible]. South Africa had the Merchant Shipping Bill which would be updated on the ongoing international norms and standards.
Further questions
The Chairperson asked who would be responsible for the enactment of the Bill.
Dr Scheurkogel said that many provinces lacked a Disaster Management Forum and suggested that DoT look into this as this may affect implementation. Was there a way that ships are informed of the contents of the Bill? How would they know if they contravene the Bill? Were any draft regulations compiled yet by the Minister? If not, when would the regulation making process commence?
Ministry and Department response
The Deputy Minister replied that the area of disaster management was the task of the Committee to assess the shortcomings and the legislation that should be in place. They could consult with other departments as this could be beneficial for their work. Disaster response involved many sectors.
Mr Madiya replied that the IMO community was well versed on the Bill’s contents, including the states which had domesticated the Convention into an Act. The signatory countries were apprised about IMO resolutions. Each vessel that entered the country was informed of the laws of the country.
Mr Ntuli replied about the role players. There was a hierarchy which consisted of the Minister of Transport who ensured the implementation of the Act, the Director General who conducted the assessment. There were also specific functions such as the South African Maritime Safety Authority who did the groundwork. The coordinating structure was chaired by DoT. There were many role players for the implementation of the Bill. There was a lot of interest in this Bill. The Bill drafting team had already identified regulations as some of the regulations were critical.
He confirmed that Angola and Mozambique were party to the Convention. Information on whether Angola and Mozambique had domesticated the Convention into an Act could be obtained from the IMO. South Africa possessed standing cooperation agreements with those countries.
The Chairperson thanked DoT for their responses and presentation as this was crucial information. He asked the Committee Secretariat to guide the Committee on the next steps, since this was still a new Committee.
Way forward on Bill
Mr Hlupheka Mtileni, Committee Secretary, asked the Parliamentary Legal Advisor to comment before he guided the Committee on the next steps for the processing of the Bill.
The Parliamentary Legal Officer said that he would speak later at the opportune time.
The Committee Secretary explained that the next steps would be the briefing of the nine Provincial Legislatures. The Select Committee would issue an advertisement to call for written submissions until 30 November 2024. In the first week of December they would consider those submissions. In the first quarter of 2025; the Select Committee would negotiate and finalise the Bill.
Provincial Legislatures decided on the nature of public participation on a Bill. Some might have written submissions or hold public hearings. Thereafter the province’s negotiating mandate on the Bill is developed and submitted to the NCOP. The negotiating mandate informs if the province supports the Bill or not or under certain conditions. Thereafter, DoT is invited to the Select Committee to provide its response to the public submissions and the negotiating mandates. The Committee is then able to propose amendments. The Bill with any proposed amendments is sent to the Provincial Legislatures for a final mandate.
The Committee adopted the minutes of 11 September 2024.
On Ms Makesini's question if they could wear their party regalia for their online profile photograph, the Chairperson noted this was not permitted. He thanked everyone for their participation and the meeting was adjourned.
Audio
No related
Documents
Present
-
Badenhorst, Mr F
Chairperson
DA
-
Breedt, Ms T
FF+
-
Ceza, Mr K
EFF
-
Kaunda,Mr TM
ANC
-
Makesini, Ms M
EFF
-
Molokomme, Ms R
ANC
-
Nzimande, Mr E
MK
-
Peter, Mr M M
UDM
-
Scheurkogel, Dr IS
DA
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