Transport Agencies General Laws Amendment Bill [B27-2007]: deliberations; Convention on oil pollution preparedness

TRANSPORT PORTFOLIO COMMITTEE
22 August 2007
TRANSPORT AGENCIES GENERAL LAWS AMENDMENT BILL: DELIBERATIONS; CONVENTION ON OIL POLLUTION PREPAREDNESS

Chairperson: Mr J Cronin (ANC)

Documents Handed out;
Briefing by Department of Transport (DOT) on the Convention
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 Committee deliberated on the Transport Agencies General Laws Amendment Bill. Much of the discussion focused on the various qualifications and competencies for the board members of the different transport agencies, the role of the Minister in appointing board members and the optimum size of each board.

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 at the tardy tabling of this Convention which was signed in 1990.
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 Convention on Control and Management of Ship Ballast Water, discussed the previous week, needed to be approved for ratifying by Parliament and asked the Committee for approval.

The International Convention for the Control and Management of Ship Ballast Water and Sediments was first approved and then the Convention on Oil Pollution Preparedness.

Transport Agencies General Laws Amendment Bill
Mr Masombuka Adam (Director of Legislation: DOT) guided the Committee through the Bill so that it could address all the issues flagged in the previous meeting on the Bill.

The Committee proceeded through the Bill 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. There was much reference made to the principal acts and the Department of Transport was requested to research and clarify several issues for the deliberations planned for the next week’s meeting.

Clauses 1- 4 amending Cross-Border Road Transport Act (CBRTA)
Mr L Mashile (ANC) felt that representation on this board was missing an essential element in that there must be 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 Mashile queried what the procedure would be if the Minister did not approve the board nominations.

Mr Farrow asked if the term ‘ex-officio’ needs clarification in the definition, particularly in light of the departmental representation role.

The Chair asked if the department was dealing with non-voting members when referring to the ex officio role.

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 position however still a member of the board. The Chair asked the DOT and the State law advisor to query this for next week’s 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 people coming in cross border, and urged the Committee to have 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 and suggested that additional words be read into the Bill: ‘ persons with an interest in and knowledge of the cross-border 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 about the appointment of a CEO – by the Minister after recommendation of the board. What did 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 Adams noted that a safe rewording could occur on this topic.

Mr M Moss (ANC) confirmed that indeed further clarity was needed on the topic of the appointment of the CEO by the Minister

Mr Adams explained the procedure as it stood 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 felt 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, saying that it was clear that the role of the Minister was to rubber stamp the decisions of the board.

Mr Mashile had a serious problem with this powerful role of the board, and the diminished role of the Minister. He suggested that the board needed to create a space for the Minister to object to decision of the board. He believed that there must be a space for the Minister to be consulted and engage with the board.

Ms N Khunou (ANC) said that the bill could not give the board more powers than it would give the Minister. She suggests that the preferred phrasing would be in consultation with to try and create a middle ground.

The Chair noted the role of a performance agreement, allowing the Minister a hiring and firing capacity and the reporting of the CEO to the Minister. The Minister however cannot have a say in who gets appointed. The Chair asked for the assistance of the state law advisor.

Ms Phumelele Ngema, the state law advisor, suggested that the wording be that the Minister appoints after consultation with. This left the power with the Minister, because the Minister could then have access to all the information and had the final discretion.

Mr Adams agreed to the suggested phrasing and would re-draft it.

The Chair asked the DOT to return next week with further clarity on avoiding the problems that Mr Mashile had highlighted.

Mr Mashile pointed to the appointment of the CEO for a duration of five years and the board members for a period of three years. He queried if these appointment periods were adequate.

The Chair stated that he was happy with where the DOT was going on this topic. He then outlined the intentions of the DOT as stated in the Bill, and recommended that the Committee not change the position of the Department.

Mr G Schneeman (ANC) and Mr Farrow agreed with the Chair’s position on this point and agreed that if the appointment was too long problems did tend to arise.

Ms N Khunou (ANC) agreed with both sides but suggested that a middle ground was found.

The Chair requested the Committee flag this issue for further deliberations.

Clause 5 – 11 amending the South African Maritime Safety Authority (SAMSA) Act
The Chair said that the previously deliberated issues such as the term ‘ex officio’ and such would also apply here. He explained what was dealt with in this section with regard to numbers on the board, appointments and additional board members, furthermore the section dealt with appointment qualifications.

The Chairperson pointed out that the constitution of this board was a little different in terms of size and the fact that it had a deputy chairperson. The Chair referred this to DOT to confirm that this was the intention of the DOT.

Ms Khunou drew the attention of the Committee to the list of qualifications and queried if this was sufficient.

Mr Adams said that the qualifications mentioned in the Bill were to act as a guideline. The constitution of the board as outlined by the Chair was indeed the intention of the board.

On the issue of qualifications, Mr Farrow believed that there should be a focus on organised labour, as this was an organisation focused on safety and its labour force was at risk.

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

However, Mr Farrow further noted that the list of competencies was particularly wide-ranging, considering the particularly small board numbers. He suggested increasing the board numbers.

Mr Adams drew attention to this section in the principal act, and that the board and organisation were clearly satisfied with the composition of the board and therefore nothing needed to be done.

Mr Farrow again referred to competencies, particularly in regard to achieving a broad-based board. He suggested that perhaps an approach should be made by the Committee to SAMSA to ensure their satisfaction with the composition of their board.

The Chair said 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. 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 believed that maritime law knowledge and some skill in corporate governance was needed. He suggested that the Committee cut this list down as he felt that it was too long.

Mr O Mogale (ANC) proposed that expertise be read into the list of competencies.

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

Mr Adams noted 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 guidance for the selection of board members.

The Chair said that there was a need to provide strategic guidance. However, he felt that there were too many things listed and one key thing that was not mentioned – organised labour. The Committee was in favour of shortening the list to about five categories, and ensuring the list included competencies relevant to SAMSA, maritime law, shipping industry, corporate governance, environmental factors and organised shipping labour. In addition the department should extend the number on the board to five.

Mr Mogale said that all these competencies were mentioned in the principal act, why then should it be repeated. Why also was there the addition of the new ‘organised labour.’

The Chair agreed that they were actually returning the Bill to was what the principal Act with a little more sensitivity. Her then proceeded with a query as to why the board needed a deputy chairperson whereas none other of the organisations had this. The Chair and the Committee moved to have this position of the deputy chair removed.

Mr Farrow looked at the CBRTA, asked if there could be an opportunity for the SAMSA board members to be elected for a further three-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) queried the section of the amendment that prevented board members from taking any alternative employment that might influence their role on the board.

Mr Farrow drew the attention of Ms Khunou to Section 15 of original act. A board member had to have no conflict of interest. This was to ensure that a member did not get elected to the board so as to use it as a forum to promote his own interests.

Ms Khunou asked how this was going to be overseen that a member of a board did not promote their interests on the board.

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

Ms Khunou drew attention to the possibility that this board may be ‘lily white’ considering the skills.

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

Clauses 11 - 16 South African National Roads Agency Limited and National Road Act
Mr Schneeman asked if there was any problem in reconciling the different board numbers amongst the different agencies, as all of these boards had varying numbers.

Mr Mashile queried why there was mention of the Director General of the Finance Department and not the Minister. He also queried accountability and who was going to monitor this accountability.

Mr Adams addressed the issue of the use of the Director General of the Finance Department, saying that the DOT believed that official nominated by the Director General could give expertise and guidance in this arena.

Mr Mashile said again that there was a problem of accountability, as the board was accountable to the Minister of Transport, why then was a member from another department now being brought in. He felt that this compromised accountability.

Mr Adams said that he was comfortable with amending the Director General position in the Bill with that of the Minister.

Mr Farrow said that he would like to flag an issue about the expansion of the two positions in regard to their ex officio role and their voting. He compared the numbers and roles of the board in the Bill and the Act and felt that there might be conflict between the Bill and Section 15 the Act.

Clause 17 amending Transport Appeal Tribunal Act
There was a minor amendment to this Act. The Committee did not raise any concerns with this clause other than the generic change previously discussed on the term ‘ex officio’ which was going to be looked at throughout the Bill.

Clause 18 - 20 amending SA Civil Aviation Authority Act
The Committee looked at the list of competencies for this board.

Mr Mashile asked for clarification on the concept of ‘expertise’ in Clause 18.

The Chair noted that many issues arose when dealing with the regulation of professional agencies and the protection of blue-collar workers.

Mr Mashile believed that it would be a bad precedent to include business but not to include organised labour in the breakdown of skills.

The Chair suggested that the expertise of ‘business’ could be removed, however he believed that ‘economic analysis’ was of great importance because of the nature of the industry.

Mr Farrow agreed that there were good intentions in ensuring the representation of the industry. This however could be cut down in order to avoid a shopping list.

Ms Khonou referred to the CBRTA and said that the expertise was summarised neatly and expressed the hope that the same could be achieved here.

The Chair agreed to cut the list down to: civil aviation, corporate governance, organised labour and business. However the Chair said that this would be dealt with in detail at the next meeting.

Clause 21 amending Road Traffic Management Corporation (RTMC); Clause 22 amending National Railway Safety Regulator Act
The Committee brought up the issue of the Shareholders Committee and whether it was effective.

Mr Farrow queried whether this Shareholders Committee had been looked at properly as he believed it was a nightmare. However perhaps there was a need for it to satisfy representation per province.

The Chair drew the attention of the Committee to the principal act which outlined the objectives of the Road Traffic Management Corporation. He said that the issues that were arising within the Committee were perhaps within the realm of a constitutional challenge. In the light of these intentions, he proposed that certain aspects of the Bill be removed as he felt that it was a situation where government was avoiding its responsibilities.

Mr Farrow brought up the issue of the pay principle. He said that in other parts of the world these services were not paid for.

The Chair agreed that this was not in fact the intention of the RTMC and in order to fulfill the role they may need to get payment. However it should not be a fundamental thing. He felt that the inclusion of user-pay principles were out of place.

Mr Mogale argued 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 did not know what their mandate was and perhaps they needed to be assisted in this arena. The Committee needed to deliberate on what must be included to ensure the effective running of the RTMC.

Mr Farrow requested that things be left as they were, as they might have problematic repercussions if changed.

Mr Adams requested that consultation with the entity itself would be a preferred option when discussing these issues.

The Chair believed that they had to change the competencies that were flagged under (a). They had to have certain aspects in the competencies such as corporate management, road safety enforcement, information technology expertise and road traffic affairs.

Ms Khonou 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 did they resolve this?

The Chair said that the Shareholders Committee was going to have to stand as is for constitutional issues. The Chair suggested that they allow the RTMC another year, and urged the Committee to scrutinise the annual report.

Mr Mogale asked for clarity on the role of the board and particularly the CEO.

Mr Farrow asked for transparency by ensuring a process of notification to alleviate conflicts of interest, as the Committee did so with the Road Accident Fund.

The Chair suggested that the Committee proposed the wording that one month after the appointment of any of these boards, they inform Parliament and publish a list of the members in the Gazette. This was to monitor and ensure the Committee’s knowledge of a new board.

The Chair then concluded the meeting noting that there were many bits and pieces that needed to be addressed the 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.