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PUBLIC SERVICES SELECT COMMITTEE
03 May 2006
NATIONAL LAND TRANSPORT TRANSITION BILL [B38-2005]; CONVENTION FOR THE UNIFICATION OF CERTAIN RULES OF INTERNATIONAL CARRIAGE BY AIR HELD AT MONTREAL, 1999: BRIEFINGS
Documents handed out:
National Land Transport Transition Bill B38-2005
Department of Transport PowerPoint presentation on the Bill
Department of Transport PowerPoint presentation on the Convention for the Unification of Certain Rules of International Carriage by Air, Montreal 1999
Department of Transport Explanatory Memorandum on the Montreal Convention
The Department of Transport briefed the Committee for the second time on the provisions of the National Land Transport Transition Bill, outlining all provisions and the motivation for them. Questions were asked and answered on the categories of licence vehicles, the objects of the Bill and the definition of "Association" and "light delivery vehicles". There was considerable debate on the issue of temporary replacement by another vehicle in terms of Section 90 of the Act. The problems relating to public transport in the rural areas and the transportation of children to schools were raised and discussed. Queries were also raised on the regulation of routes. It was agreed that the Members would convey the explanations given by the Department to their Provinces, who would be holding public meetings prior to giving their mandates to the Committee.
The Department of Transport also briefed the Committee on the Convention for the Unification of Certain Rules for International Carriage by Air, Montreal 1999 ("The Montreal Convention"). This sought to unify and update the various decisions pursuant to the Warsaw Convention on international air carriage, of 1929. The Department summarized the difficulties posed by the Warsaw Convention and the solutions that the Montreal Convention would provide. The Montreal Convention now provided for adequate levels of compensation for air accidents, introduced a two-tier system where compensation could be awarded on a strict liability basis, irrespective of the carrier’s fault up to 100 000 Special Drawing Rights, with a second tier based on fault without any limits. The Montreal Convention facilitated recovery of damages and simplified the documentation. It extended jurisdictions for claims. It also required air carriers to effect and maintain adequate insurance. South Africa had already enforced this requirement, which would not impose additional burdens on the industry. The Chief State Law Advisor, and other stakeholders who had been consulted recommended ratification. Questions were raised and clarified on whether it would be necessary to withdraw approval of the Warsaw Convention, on the self-executing provisions, and on the scope of the Convention to charter flights, and acts of terrorism. Special Drawing Rights were explained and clarified. Since the question of self-executing legislation still needed to be clarified, the decision on ratification stood over to Wednesday 10 May.
Briefing by the Department of Transport: National Land Transport Transition Bill B38-2005
Mr S Macozoma (Chief Director, Planning, Department of Transport (DOT)) reported that the National Land Transport Transition Act had come into operation on 1 December 2000. During May 2002 an assessment of its implementation was conducted, identifying certain problems, and the Department of Transport had then consulted stakeholders and conducted a review process to address these problems. Some issues required amendments to the Act. Cabinet had also approved a set of proposals in relation to the Taxi Recapitalisation Programme, and to effectively regulate the taxi industry.
The main objects of the Bill were to amend various definitions, to revise and simplify the principles of transport planning, to extend time limits for bus contracts, to bring the Act into line with Black Economic Empowerment (BEE) and Small, Medium and Micro Enterprise (SMME) development principles, to extend the duties of holders of operating licences, to extend the functions of the Minister to include the setting of targets for transformation of land transport and the setting of standards for metered taxis. It sought to amend the functions of Members of Executive Councils (MECs) and the functions of the Boards. It would regulate tourist services that required operating licences, make provision for the conveyance of passengers by light delivery vehicles and effect certain textual corrections. Mr Macozoma summarised each section of the Amendment Bill and briefly described the purpose of each amendment.
Mr A Watson (DA, Mpumulanga) asked whether the listings in Clause 13 (relating to Section 31 of the Act) would eliminate licensing of vehicles having less than ten seats. He queried how this would affect metered taxis or tourist vehicles, which mostly carried seven to eight passengers.
Mr M Bopape (Chief Director) replied that the current Act recognised 18 and 35 seater vehicles as taxis, but new categories of mini and midibus taxis had been created by the amendment. However, metered taxis were dealt with separately, as they were not regarded as public transport vehicles, and were regulated to carry up to a maximum of five passengers.
Mr Macozoma clarified that the amendments also made provision for the Minister, in consultation with the MEC to be able to specify special categories to cater for "exceptional cases in rural areas, or… in relation to tourist or courtesy services". The Bill did not seek to close the door on vehicles carrying less than ten passengers.
Mr Watson queried whether the industry, particularly the tourist industry, had been included in the consultation process.
Mr Macozoma replied that a number of people, in and outside Parliament, had been consulted. Certain of the statutory bodies, such as the Land Transport Coordination Committee had coordinated the process in the various provinces. Workshops aimed to obtain the views of a wide spectrum of stakeholders had been held. There were still opportunities for further engagement and although the Bill had been certified by the State Law Advisors, it was still in the public domain and still open to further comment.
Rev P Moatshe (ANC, North West) asked for clarity on the definition of "Association" and pointed out that many "associations" were attempting to control membership by imposing harsh rules on prospective members.
Mr Macozoma stated that the amendment was effectively a textual one, which clarified that associations other than taxi associations could exist. This amendment did not seek to address the concern raised by Rev Moatshe, namely the regulation of the associations, including their entry requirements. That was another issue that could and would in future be addressed – for instance by better regulation of the associations- but was not within the scope of the present amendments.
Ms B Dlulane (ANC, Eastern Cape) asked how far Government had pursued its aim of revising the definitions and powers of associations, whether there had been public hearings and what had been the reaction of the taxi industry.
Mr Bopape stated that the old regime had allowed for self-regulation of the taxi associations, which led to the unfortunate situation where taxi operators regarded themselves, or their association, as "owners of the route". The Department stressed that the routes were in the public domain, and that operators were merely licensed to offer a service along those routes. The Department expected the municipalities to exercise better control over the associations and the applications, which should be granted provided the proper legislative provisions had been met, and in accordance with the integrated transport plans. Strong messages had already been sent out to the industry by both the Minster and officials in the Department of Transport and would be reinforced. In answer to Mr F Adams’ (Western Cape) query whether it was practicable to control the routes, Mr Bopape believed that it was not only practicable but also necessary
Mr L J van Rooyen (ANC, Free State) asked for clarity on the definition of a modified light delivery vehicle, which did not appear in the definitions section of the Bill.
The Chairperson asked if the modified vehicles were intended to address the problems arising in rural areas.
Mr Macozoma replied that "modified light delivery vehicles" (LDVs) were included in the Bill to provide for the many instances where people had no other choice of transportation. The Department was working with the industry to develop specifications, so that certain types of LDVs would be able to obtain permits. Most of the specifications related to safety features, such as braking systems, rollover bars, and would allow the vehicles to be adapted in line with the recapitalisation process.
Mr Macozoma clarified further that the regulation and definition of LDVs was contained in the National Road Transport Act, and the process had already been put in place to amend the definition in that Act to include a "modified LDV" so that it would only be necessary to incorporate the reference in the current Amendment Bill. In regard to the broader issue he confirmed that the number of accidents reported for LDVs was a symptom of the non-availability of public transport in rural areas. The use of modified LDVs was not to be regarded as a permanent solution to this problem. There were not sufficient operators in these areas, or inadequate infrastructure to allow buses and taxis to operate. The Department of Transport was trying to introduce proper access roads so that formalised public transport could be set up, and the two solutions should be seen as running parallel.
Mr van Rooyen asked whether the Bill covered farmers taking their farm workers to town on a truck or trailer.
Mr M Wosiyana (Deputy Director, DOT) replied that this was regulated by the National Road Transport Act; Regulations 255 and 258 stipulated the conditions for carriage. Because such carriage was not "for reward" the conditions relating to public transportation would not apply. However, the Department and the law enforcement agencies worked closely to try to enforce safety measures. It was difficult for the Department to regulate for all situations but it was aware of the need to harmonise the various pieces of legislation as far as possible.
Mr Wosiyana further replied to a question on conveyance of children to schools in LDVs or farm vehicles. He confirmed that although there had been some regrettable accidents, the reality remained that for many children this was the only way to get to school. The Department, in conjunction with the South African Police Services, had therefore investigated how vehicles could be adapted to improve safety and were enforcing measures such as proper fixture of seats and benches, the maximum number of children to be carried, rollover bars etc. The challenge remained to couple the measures introduced with effective enforcement. Once again, this was to be regarded as a temporary measure introduced to meet the current needs, not a permanent solution to the problem of insufficient transportation options, which was being addressed on an ongoing basis.
Rev Moatshe asked for clarity on the licensing provisions.
Mr Wosiyana stated that there was provision for temporary replacement of a vehicle to allow an operator to continue his business.
The Chairperson posed a hypothetical question whether a person who had – for instance – a nineteen-seater vehicle would be able to use this for a temporary period in place of the sixteen -seater vehicle for which he was licensed.
Mr Bopape replied that as long as the nineteen seater complied with the safety standards, it would be permitted to be used as a replacement, but that it must operate as a sixteen-seater vehicle. If the operator wished to use all nineteen seats he would have to apply for an amended permit.
Mr Watson, referring to this same hypothetical question, believed that a person permitted to use a vehicle that had more than sixteen seats would fill all seats and the purpose of the Act would be nullified. He questioned the wisdom of incorporating such a provision.
Mr Macozoma stressed that this situation was intended only as a temporary measure to enable an operator to continue his business while one vehicle was undergoing repair.
Mr Bopape clarified once again that the applications to be made to the Board would be, firstly, a new application for a route and to register the vehicles; and only later, application for a temporary replacement of one vehicle with another; or an upgrade by asking for a replacement. In all cases, the Board would need to be informed of the replacement and would be able to exercise its discretion whether to approve the application. Already Clause 22(3)(a)(ii) permitted a minibus replacement to exceed the capacity of the original by twenty percent. It must be remembered that the permits were only issued with due consideration of the passenger needs so that there was sufficient control.
Extensive discussion ensued amongst Members. The Chairperson hoped that the drafters of the Bill had identified the types of vehicles that were available and that their figures of twenty percent had been calculated correctly.
Mr Wosiyana added that the Bill had given minimum and maximum parameters in each category, recognising that it was possible to customise the vehicles.
Mr van Rooyen felt that there was no need to be unduly prescriptive and that a person should be permitted to continue his business.
Rev Moatshe reminded the Committee that the Department had already stated that permission could be sought to use the nineteen-seat vehicle, but that the licence would extend only to carriage of sixteen passengers. He suggested that this could have been clarified better in the original presentation.
The Chairperson proposed that no further time be spent on this question as it could be further debated once the Members had received their negotiating mandates.
Mr Watson believed that Clause 15, amending Section 43 of the Act, contained discrepancies, since the two subsections appeared to be conflicting.
Mr Bopape clarified that subsection (a) attempted to address the problem where owners would sell the public transport vehicles without informing the Board, who may then have one vehicle registered to different operators. Subsection (b) attempted to prevent illegal operators by insisting that licences be obtained before transfer of ownership. There was no discrepancy in the clause as it merely called for a fourteen-day period between the cessation of one operation and the beginning of the next.
The Chairperson stressed that it must be seen in context and did not affect the ordinary citizen’s rights, merely attempted to regulate public transport vehicles.
Mr Watson expressed disquiet with the principle and the way the clause was worded.
The Chairperson stated that more discussion would need to be held on this clause in due course.
The Chairperson indicated that Members should now brief the Provinces, who would then conduct public hearings that would include all interested sectors, and would, in the light of comments received, formulate their negotiating mandates.
Briefing by the Department of Transport on the Convention for the Unification of Certain Rules for International Carriage by Air, Montreal 1999, and consideration and ratification of the Convention.
Ms N Msomi (Deputy Director-General: Transport Regulation) indicated that the Convention had been before Cabinet and the current meeting was the first round of the ratification process.
The Convention, referred to as "The Montreal Convention" provided for issues in civil aviation. South Africa was asked, as a member of the International Civil Aviation Organisation (ICAO) to accede to the Convention. South African legislation on this point was currently the Carriage by Air Act of 1946, which had given effect to decisions adopted by the Warsaw Convention of 1929. That Convention had been amended substantially in 1953, 1971 and 1975, but had still become outdated through the high mobility of passengers and globalisation of the air transport industry. The Montreal Convention therefore sought to modernise all the fragmented amendments into one instrument.
Ms Msomi summarised the difficulties posed by the Warsaw Convention and the solutions that the Montreal Convention would provide. The Montreal Convention now provided for adequate levels of compensation for air accidents (limited by the Warsaw Convention to approximately US$8 300). It introduced strict and unlimited liability in cases of proven negligence and the compensation levels were reviewable every five years. It introduced a two-tier system where compensation could be awarded on a strict liability basis, irrespective of the carrier’s fault up to 100 000 Special Drawing Rights (a currency calculation defined by the International Monetary Fund), and the second tier was based on presumption of fault and had no limit for liability. Whereas the Warsaw recovery system was very complex, the Montreal Convention facilitated recovery of damages and simplified the documentation relating to passengers, luggage and cargo. The Montreal Convention further extended the jurisdictional areas by allowing passengers to bring claims either in their country of permanent residence, or before the Court of domicile of the air carrier, or before the Court at the destination.
Ms Msomi clarified that the Montreal Convention also required air carriers to effect and maintain adequate insurance. South Africa had already included many of the requirements of the Convention in its current legislation and most of the member states were already giving effect to the insurance requirement since a carrier flying to another country would be required to have adequate insurance. South Africa intended to enforce this also in the case of domestic carriers, and Ms Msomi estimated that this requirement had already been met almost fully and that it would not impose additional burdens on the industry.
The Department had already consulted with the Chief State Law Advisor and the aviation industry and the workshops and steering committees had already recommended ratification. A number of organisations had been consulted across government and industry. The Chief State Law Advisor believed that the provisions of the Convention were compatible with the international objectives of South Africa. In summary the Department recommended that the Convention be ratified.
Mr Watson asked whether the jurisdictions were optional and if action only needed to be brought in one jurisdiction. This was confirmed; it was up to the claimant to institute action in whichever jurisdiction he or she found most appropriate. He further asked whether ratification of this Convention would override ratification of the Warsaw Convention.
Ms Msomi replied that since the Montreal Convention would replace the Warsaw Convention in its entirety there would be no need to formally withdraw ratification of the Warsaw Convention.
Mr van Rooyen requested clarity on a comment in the explanatory memorandum by the Chief State Law Advisor relating to the self-executing provisions of the convention, and expressing the view that the Carriage by Air Act of 1946 would nullify the effect of self-execution.
Mr J Makgatho (Deputy Director: Legislation, Department of Transport) stated that self-executing provisions were those that could be applied judicially or administratively without the need for further legislation. This was quite a complex issue and he undertook to provide a full explanation to the Committee within the week.
Mr van Rooyen asked if compensation would include acts of terrorism such as 9/11.
Mr Makgatho replied that it would not but that there were other conventions covering similar situations. The first tier of compensation would apply but it would be impossible to prove fault on the part of the carrier.
Mr van Rooyen asked for clarity on the Special Drawing Rights and whether this would also apply to charter flights, such as the recent loss of a South African aircraft carrying Canadian passengers in the Democratic Republic of Congo (DRC). He asked whether air alliances would be affected.
Mr J Bierman (Acting Chief Director: Aviation, Department of Transport) confirmed that "Special Drawing Rights" were defined by the International Monetary Fund as a currency calculation based on a number of different currencies to fix appropriate compensation in any currency. He confirmed that since charter flights conveyed for reward, they were regarded as commercial transport and would be covered. Private aircraft would not be covered by the Convention unless the terms were specifically included in the conditions of carriage. The Warsaw Convention applicable in South Africa would still apply to a charter flight, unless the DRC had already adopted the Montreal Convention. Air alliances, such as Star Alliance, would also fall within the Convention and compensation claims could be filed either in the country of permanent residence of the claimant, or in a country of destination.
Mr van Rooyen also asked if the International Air Travel Association (IATA) had been consulted. Ms Msomi replied that although they had not been consulted specifically many of their members had been consulted in other capacities (such as SAA, Comair etc) and that IATA had also been an observer at Montreal so were aware of the provisions of the Convention and would have formulated its opinion when the Convention was adopted. She suggested that the Department could consult with IATA specifically.
The Chairperson thanked the Department for the presentation and suggested that, since the question of self-executing legislation still needed to be clarified, no decision should be taken on the ratification, but that it should rather stand over until the following Wednesday (10 May) for finalisation. Members agreed to vote formally on the ratification at the start of the meeting on 10 May.
The meeting adjourned.
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