Transport Agencies General Laws Amendment Bill [B27-2007]: briefing by Department; Convention on Oil Pollution Preparedness: Approval

TRANSPORT PORTFOLIO COMMITTEE
22 August 2007
TRANSPORT AGENCIES GENERAL LAWS AMENDMENT BILL: BRIEFING BY DEPARTMENT; CONVENTION ON OIL POLLUTION PREPAREDNESS: APPROVAL

Chairperson: Mr J Cronin (ANC)

Documents Handed out;
Briefing by Department of Transport (DOT) on the Convention
Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC)

Transport Agencies General Laws Amendment Bill [B27-2007]

Audio recording of meeting

SUMMARY
The Department briefed the Committee on the Convention on Oil Pollution Preparedness, noting the dates of its adoption, the contributing parties and the implications of such a ratification for South Africa. The Committee approved ratifying this Convention as well as the Convention presented the previous week, the International Convention for Control and Management of Ship Ballast Water and Sediments.

The Department of Transport proceeded to address the further deliberations on the Transport Agencies General Laws amendment Bill, presented by Mr M Adam, the Director of Legislation. This section was a lengthily part of the meeting in which the Committee proceeded to address all the issues relating to the Amendment Bill, with detailed references to the Principle Acts. Much deliberation went into the various lists of qualifications for the positions within the transport issue. There was much discussion amongst the Committee members aided by the State Legal Advisor, Phumelele Ngema, Senior State law Advisor. The Department was requested by the Chair to confirm their intentions concerning aspects of the Bill for next weeks deliberations.

MINUTES
Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC)
Ms Nosipho Sobekwa of the Department of Transport explained that the Convention was adopted in 1991 at the International Maritime Organisation (IMO) Diplomatic Conference in London, and dealt with appropriate definitions of oil spills and adequate measures for the prevention of oil pollution.

The Department noted South Africa’s biologically diverse shoreline and the importance of its fishing industry and the potentially catastrophic impact of an oil spill on the marine environment. The location of South Africa on the African Continent ensured that its coastline was one of the busiest routes, therefore increasing its vulnerability. With these considerations in mind the Department emphasised the importance of the ratification of this Convention to ensure adequate oil spill preparedness and response.

The Convention provided for both on and off-shore preparations and emergency plans, these included: ship inspections, oil report procedures, combating measures, transfer of appropriate information in the event of an oil spill, oil spill response and technical response cooperation and finally the standardised classification of oil spills, dependent upon their size and danger.

Oil pollution reporting procedures were to be carried out by the masters in charge of the ships and other maritime vessels, in addition to the use of an air reporting system. The procedures on receipt of such information of a spill were detailed in the Convention. Member states were to be informed, and those states whose interests were concerned. The Convention measures ensured prompt response and dissemination of information. The Convention also outlined training procedures and requirements and minimum levels of oil spillage equipment and inspections. Finally it regulated international and technical cooperation.

The Department noted that many other African coastal states had already ratified this Convention and South Africa should do the same to ensure a state of African readiness in the event of an oil spillage incident.

Discussion
The Chair thanked the Department and urged the Committee to ratify the Convention. The Chair asked what aspects of South African compliance needed to be addressed to ensure full compliance.

Ms Sobekwa replied that the ratification of this Convention would assist in compliance. The Department had been aware of this Convention for some time and South Africa had to date been very proactive in the implementation of its regulations to date. She noted that a regional contingency plan needed to be put in place in accordance with the OPRC and the Nairobi Convention, creating an electronic highway to capture the region and create an effective regional contingency plan.

Mr M Moss (ANC) noted that recent experiences had shown that South Africa had the skills but no capacity to deal with the volume of an oil spill. He gave the example of a recent harbour spill, which when enquired about – there had been no conclusive and clear response. There was an urgency not to plan-to-train but to train immediately for the appropriate oil spillage response. He asked how ready were they to implement such training procedures. Secondly Mr Moss noted that compliance with reporting procedures was problematic as many big ships and other maritime vessels did not report spillages. Was there any other way to monitor the shoreline?

Ms Sobekwa replied that South Africa shared responsibility for response with the Department of Environmental Affairs. There was a joint committee for response. Furthermore training had been ongoing to date and was still continuing. She herself admitted to being trained for such an event. In response to the monitoring question, Ms Sobekwa noted that the navy assisted the Department with monitoring the shoreline in addition to an aircraft that circled every 24 hours to ensure aerial monitoring.

Mr G Scheemann (ANC) asked how much technical equipment did they have and would the country be able to respond effectively to a spill today?

Ms Sobekwa assured the Committee that indeed South Africa did have sufficient technical support to enable a prompt response. She noted that the procedure would be to contain the spill and then request the experts to deal with it.

Mr S Farrow (DA) asked if there was any form of stockpile of support and where this stockpile was located? He also asked if there were any means to obtain contributions and funding from member nations in the event of a spill?

Ms Sobekwa noted that indeed they did have a stockpile of money that had accumulated as to date they had not used it. Further, there was access via the Minister to the Maritime Fund, and in the event of a large spill they had access to funds from Oil Spill Response in Southampton. She also noted that certain funds based on civil liability were available in such an event.

Ms L Moss (ANC) queried the delay it had taken the Department to table this Convention in Parliament considering its 1990 adoption. She asked if there was a reason for this delay.

Ms Sobekwa replied that South Africa had in fact been very pro active on the matters within the Convention since its adoption, however could not answer the query as to the delay in presentation to parliament.

The Chair noted that there were many practical issues to consider in the event of an oil spill. However he expressed concern in the tardy tabling of this Convention due to its adoption in 1990, and queried whether or not this meant that the department did not take the Committee seriously. He noted however that there was a substantial quorum and urged the Committee to ratify the Convention.

The Chair noted that this Convention and the previously discussed convention on Control and Management of Ship Ballast Water was to be ratified and asked the floor if there was a motion to ratify the two Conventions.

Mr S Farrow (ANC) made a move to had the International Convention for the Control and Management of Ship Ballast Water and Sediments ratified. This was seconded. The first Convention was ratified.

Mr Farrow noted that due to the considerable amount of investigateion that had occurred in the area of research, he suggested that a letter of recognition be initated by parliament in acknowledgement of this work.
Chair noted with previous communication with concerned parties/department the most we could do was ratify this and give it our support.

The Chair then asked the Committee if there was a motion to ratify the Convention of Oil Pollution Preparedness. This motion was taken by Mr L Mashile (ANC), and was seconded. The Second Convention was then ratified.

The Chair thanked the Department of Transport and expressed a hope that the Committee would see them again soon. He further invited the Department to bring any concerns or issues they had to the Committee. The first part of the meeting was then concluded.

Transport Agencies General Laws Amendment Bill
Mr M Adam of the Department of Transport. The Chair asked if the Committee could address all the issues previously flagged in earlier deliberations on this Bill.

The Committee proceeded through the bill chronologically addressing all the flagged issues, and ensuring that their suggestions and deliberations were in line with the formal legalities. The Committee was assisted in this procedure by the State Law Advisor, Ms Phumelele Ngema and guided by the Department of Transport. There was much reference made to the principle acts and the Department of Transport was requested to research and clarify several issues for the deliberations planned for next weeks meeting.

Discussion
The Chair began the deliberations by opening up the meetings at Section 1 of the Bill; the Cross boarder amendment Act, 1998 (CBRT). This act involves the establishment of a board, with the establishment of a CEO, a senior person in the department and a board of 8 in number. The Section specifies some of the expertise of the board members. Notes the powers of the minister to extend the tenure of any of the board members.

Mr L Mashile (ANC) feels that representation on this board was missing an essential element in their in their qualification, he feels there must be a qualification of community representation, was the community adequately represented in the wording?

Mr S Farrow (DA) flagged the ex officio role of office of the department, asked for some clarity on this term and whether or not this person could be considered a board member.

Mr L Mashile (ANC) queried S 14 (1)(a); minister must on the recommendation of the board appoint an individual. Mr Mashile queried what the procedure would be if the Minister did not approve of the boards suggestion.

Mr S Farrow (ANC) asked if the wording of ex-officio needs clarification in the definition, particularly in light of the departmental representation role.

Chair asked if in fact the department was dealing with non voting members when referring to the ex officio role, the chair asked for further clarification.

Mr M Adam (DOT) answered that the ex officio member was there in the capacity to assist in areas where the board perhaps was uncertain, to guide the board, and he was in fact a non voting member.

The Chair asked if it was clear that this individual was in a non voting however still a member of the board? The Chair asked the DOT to query this and asked the assistance of the State law advisor for next weeks deliberations.

On the topic brought up by Mr Mashile, relating to the qualifications of the board members, the Chair suggested adding the words to encompass Mr Mashile’s suggestions.

The Chair noted the original intentions of the act, relating to incoming people and cross boarder people, and urged the Committee to had sensitivity in this area.

On the topic of the number of board members the committee sought clarification on the number of voting and non voting board members.

The Chair addressed Mr Mashile’s concerns as to the qualifications outlined in 2(c) and suggested that additional words be read into the Bill following; ‘ persons with an interest in and knowledge of the cross – boarder road transport industry or the labour and consumer sector’. The suggested addition would concern the role of the community and financial sectors. The Chair asked the state law advisor to ensure correct legality of the wording.

The chair then addressed the second issue broached by Mr Mashile in regard to the appointment of a CEO – by the minister after recommendation of the board. What does this mean, what was the role of the recommendation of the board – was the minister bound by the recommendations put forward by the board.

Mr M Adams (DOT) noted that a safe rewording could occur on this topic.

The Chair then put to the Committee what the appropriate wording would be.

Mr M Moss (ANC), confirmed that indeed further clarity on the topic of the appointment of the CEO by the minister

Mr M Adams (DOT) explained the procedure as it stands to date to the Committee: the Board would be responsible for the advertisement and selection of the CEO and they would then put forward the name of the suggested candidate to the minister. The DOT feels that it was essential for the board to make such a selection to aid with the transparency of the organisation.

The Chair noted the intention of the DOT, noting that it was clear that the role of the minister was to rubber stamp the decisions of the board.

Mr L Mashile (ANC) submits that he had a serious problem with this powerful role of the board, and the diminished role by the minister. Mr Mashile suggests that the board needs to create a space for the minister to object to decisions of the board. He believes that there must be a space for the minister to be consulted and engage with the board.

Ms N Khunou (ANC) noted that the bill cannot give the board more powers than it would give the minister. She suggests that the preferred phrasing would be in consultation with to try to create a middle ground.

The Chair notes the role a performance agreement; allowing the minister a hiring and firing capacity and the reporting of the CEO. The Minister however cannot had say in who gets appointed. The Chair asks the assistance of the state law advisor.

Ms Phumelele Ngema, the state law advisor suggests the wording to be that the minister appoints after consultation with. This leaves the power with the minister, because the minister could then had access to all information and had the final discretion to express his views.

Mr M Adams (DOT) agrees with the suggested phrasing and agrees to move with it.

The Chair asks the DOT to return next week with further clarity to avoid the problems that Mr Mashile highlighted. He notes the temporary and permanent natures of the board and minister respectively and the existing implications that follow from that.

Mr L Mashile (ANC) notes a problem of the CEO under S 14(c) and the appointment of the CEO for his duration of 5 years and the board members for the period of 3 years. Mr Mashile queries whether these appointment times were adequate.

Chair notes what Mr Mashile was saying however noted that he brought these issues up last week. The Chair however stated that he was happy with where the DOT was going on this topic. The Chair then outlined the intentions of the DOT as outlined in the Bill, and although he was happy with these procedures he notes that none of these were fool proof. The Chair recommends that the Committee does not change the position of the Department.

Mr G Scheemna (ANC) and Mr S Farrow (DA) Agree with the Chairs position on this point and agree that if the appointment was too long problems do tend to arise.

Ms N Khunou, agrees with both sides but implores that a middle ground was found.

Chair notes that was an issue was debatable and requests the Committee to flag this issue for further deliberations next week.

The Committee then moves on to Section 5 of the Bill which deals with South African Maritime Safety Authority Act (SAMSA). The Chair notes that the previously deliberated issues such as ex officio and such would also apply here. The chair explains what was dealt with in this section with regard to numbers on the board, appointments and additional board members, furthermore the section deals with appointment qualifications. This was done with reference to the principle act.

The Chair person points out that the constitution of this board was a little different in terms of size and the fact that it had a deputy chair person. The Chair refers this to DOT to confirm that this was the intention of the DOT.

Ms N Khunou (ANC) draws the attention of the Committee to the list of qualifications and queries if this was sufficient or if the Committee would like to address this.

Mr M Adams (DOT) notes that the qualifications mentioned in the Bill were to act as a guideline. He notes that the constitution of the board as outlined by the Chair was indeed the intention of the board.

Mr S Farrow (DA) addresses and issue concerning the qualifications mentioned. Mr Farrow believes that there should be a focus on organised labour, as this was an organisation focused on safety and the labour was at risk in such an organisation.

The Chair confirms that indeed this was a competency that must be included in the list, as it was included in the principle act and considering the nature of the organisation was a fundamental aspect.

Mr S Farrow (DA) further noted however that the list of competencies was particularly vast considering the particularly small board numbers. Perhaps considering this we should perhaps increase the board numbers.

Mr M Adams (DOT) draws the attention of the chair to the principle act, and that there were normally considerations and deliberations noted with regard to the Act. The DOT feels that considering that in this situation there were no such deliberations, the board and organisation was clearly satisfied with the composition of the board and therefore nothing more needs to be done.

Mr S Farrow (DA) again refers to competencies, particularly in regard to achieving a broad based board. Mr Farrow suggests that perhaps an approach should be individually be made to SAMSA to ensure their satisfaction with the composition of their board.

The Chair notes that this was an important discussion to have. He refers the Committee to the principal act where there was another list, and compares it with the extensive list found in the Amendment Bill (a – k). The chair notes that this was a problem as there may be a situation where the commercial interests become dominant, particularly in a safety regulating organisation. Organised labour however was wanted. The Chair believes that maritime law, and some skill in corporate governance. Chair suggests that the committee cut this list down as he feels that it was too long.

Mr O Mogale (ANC) proposes that expertise be read into the list of competencies. He then refers to the skills act which also refers to expertise.

Chair notes that there should some guidance, or else the problem was a potentially unbalanced board.

Mr M Adams (DOT) notes that this list was not to ensure that every member of the board had every competency listed but rather that this list should act as a guidance for the selection of board members.

The Chair notes that there was a need to provide strategic guidance. Feels that there were too many things here and one key thing that was not mentioned – organised labour. The Committee was in favour of shortening the list to about 5 categories, and ensuring the list includes competencies relevant to SAMSA; Maritime law, shipping industry, corporate governance, environmental and organised shipping labour. Furthermore that the department should extend the number on the board to five.

Mr O Mogale (ANC) notes that all these things were mentioned in the principle act, why then should we then repeat it here. Why also was there the addition of the new ‘organised labour.’

Chair agrees we were actually returning the Bill to the principle Act with a little more sensitivity. The Chair then proceeds with a query as to why the board needs a Deputy Chair person whereas no other organisations had this. The Chair and the Committee move to had this position of the Deputy Chair removed.

Mr S Farrow (DA) looks at the CBRTA, asks if there could be the opportunity for the SAMSA board members to be elected for a further 3 year term.

The Chair asks the board to confirm if the department would be in agreement with room for further election of board members.

Ms N Khunou (ANC) queries the section of the amendment that prevents board members from taking any alternative employment that may influence their role on the board.

Mr S Farrow(DA) draws the attention of Ms Khunou to Section 15 (2) (3)of original act. A Member may not engage, disclose, ensure that there was no conflict of interest. This was to ensure that a member does not get elected to the board and uses it a forum to promote his own interests.

Ms N Khunou (ANC) asks how this was going to be overseen that a member of a board does not put their interests into the board.

The Chair simply reminds Ms Khunou of traditional systems of checks and balances of which this Committee was one.

Ms N Khunou (ANC) draws the attention of the possibility that this board may be ‘lily white’ considering the skills.

The Chair reassures Ms Khunou that this was not the case, and she should not be so pessimistic about skills in this arena.

The Committee then progresses on to discussion about South African National Safety Regulating Act;

Mr G Scheemna (ANC) asks if there was any problem in reconciling the different numbers between all the different agencies, as all of these boards had varying numbers.

Mr L Mashile queries why there was a mention of the Director general in regard to finance and not the minister. He also queries accountability and who was going to monitor this accountability.

Mr M Adams (DOT) addressed the issue of the use of the Director General in the department of finance. The DOT believes that the Director General could give expertise and guidance in this arena.

Mr L Mashile (ANC) notes again the problem of accountability, as the board was accountable to the minister of transport, why then was another member from another department now being brought in. Mr Mashile feels that this compromises accountability.

Mr M Adams (DOT) was comfortable with amending the Director General position in the Bill with that of the Minister.

Mr S Farrow (DA) would like to simply flag an issue, the expansion of the two positions in regard to their ex officio role and their voting.

Mr S Farrow (ANC) draws attention to the numbers and roles of the board compared in both the Bill and the Principle Act. Mr Farrow proceeds to direct the Committee to S 16 of the Act where the act outlines who the director of the board was and queries whether the Bill varies from the principle act. Farrow queries the constitution of the board, with regard to substitution of the board in the Bill.

The Chair asks the Department to ensure that there was no conflict between Bill and the Principle Act.

The Committee then moves on to the transport appeal tribunal. There was a light amendment on this topic. The chair asks for clarity as to what exactly the transport appeal tribunal is. The Committee raises nothing more on this topic other than the generic changes previously discussed, noted that the wording of non officio was going to be looked at through out.

Mr L Mashile (ANC) asks for the clarification of expertise.

The Committee deals with the South African civil Aviation expertise, particularly the area of competencies;

The Chair noted that may issues arise when dealing with regulation of professional agencies and the protection of blue collar workers. The Committee again proceeds to clarify the competencies of the board.

Mr L Mashile believes that it would be a bad precedent to not include organised labour in the break down of skills, and then to put business in .

Chair suggests if the expertise of e-business could be removed, however believe that economic analysis was of great importance because of the nature of the industry.

Mr S Farrow (DA) agrees that there were good intentions to ensure the representation fo the industry, this however could be cut down and equally summate the industry in order to avoid a shopping list.

Ms N Khonou (ANC) refers to the CBRTA and notes that the expertise was summarised neatly and expresses a hope that the same could be achieved here.

The Chair agrees to cut the list down to; civil aviation, corporate governance, organised labour and business. However the Chair notes that this would be dealt with in detail next week.

The Committee brought up the issue of shareholders committee and whether or not it was effective.

Mr S Farrow (ANC) queried whether this shareholders committee had been looked at as he believes it was a nightmare, however wondered if perhaps there was a need for it to satisfy representation per province.

The Chair draws the attention of the Committee to page 10 of the Principle act to the intentions of the Road Traffic Management Corporation (RTMC). Notes that the issues that were arising within the Committee were perhaps within the realm of a constitutional challenge. The Chair in light of these intentions proposes that certain aspects of the Bill be removed (d, e and f), as he feels that it was a situation where government was avoiding its responsibilities.

Mr S Farrow (DA) brings up the issue of a pay principle. He notes that in other parts of the world these services were not paid for.

The Chair agrees, that this was not in fact the intention of the RTMC and in order to fulfill the role may need to get payment, however it should not be a fundamental thing. Feels that the inclusion of user pay principles were out of place.

Mr O Mogale (ANC) Argues that the main objective of the corporation was to develop resources and therefore the function was satisfied by this inclusion.

The Chair noted however that a primary problem of the RTMC was in fact that they do not know what their mandate was and perhaps they need to be assisted in this arena. The Committee deliberates upon what must be included to ensure effective running of the RTMC.

Mr S Farrow (DA) requests that things be left as they are, as they may had problematic repercussions if changed.

Mr M Adams (DOT) requests that consultation with the entity itself would be a preferred option when discussing these issues.

The Chair believes that we must change the competencies that were flagged under (a) believes that we must had certain aspects in the competencies such as; corporate management, road safety enforcement, Information Technology expertise and road traffic affairs.

Ms N Khonou (ANC) addresses the practicality of the competencies, when were they going to meet to appoint the board members. The problem of the shareholders meeting was an issue, how do we resolve it?

The Chair notes that the shareholders committee was going to had to stand for constitutional issues. The Chair suggests that we allow the RTMC another year, and urges the committee to scrutinise the annual act.

Mr O Mogale (ANC) asks for clarity of the role of the board and particularly the CEO.

Mr S Farrow (DA) asks for transparency, to ensure a process of notification to alleviate conflicts of interest, as the Committee did so in the road accident fund.

The Chair suggests that the committee proposes the wording and later returns to it; one month after the appointment, of any of these boards, inform parliament and publish a list of the members in the Gazette. This was to monitor and ensure the committees knowledge of a new board.

The Chair then concludes the meeting noting that there were many little bits that need to be addressed next week. He asks the Department to come back confirming their mandate and intentions, and to address the clarification requirements regarding competencies.

The Department was thanked and the meeting was concluded.