Cross Border Road Transport Amendment Bill [B51-2007]: Transport Department briefing

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27 February 2008
Chairperson: Mr J Cronin (ANC)
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Meeting Summary

The Department of Transport gave a presentation to the Committee on the Cross Border Road Transport Amendment Bill, highlighting topical issues and important changes to the principal Act. Two issues that gave rise to much discussion were the issues of provision of permits and the definitions and subsequent regulations of cabotage. The Chairperson urged the committee not to get involved in the ‘nitty gritty’ details of the Act just yet but rather to withhold their debates until 4 March when a formal discussion of the amendments would take place.The presentation was intended to give an overview of those sections of the Act to be altered, and the reasons and rationale behind the changes.

Committee Members asked a number of questions, with emphasis on the definitions, the difficulties behind the “9 plus 1” seater vehicle transport, the impact on economic development, the presumption that a person transporting foot passengers “near to” a border post without a permit would be contravening the Act, the necessity for education on the permits and the definition and implications of cabotage. The Committee felt that issues of pragmatic application after implementation were important to consider, but that this was the function of the Department and not of the Committee. A number of issues were flagged for further reports by the Department and consideration by the Committee during the detailed discussions.

Meeting report

Cross Border Road Transport Amendment Bill: Department of Transport (DoT) Briefing
The Chairperson expressed the hope that the Committee would be able to decide upon and finalise the proposed amendments promptly and allow for the Cross Border Road Transport Amendment Bill (the Bill) to be passed within the next two months. He further noted that the Committee should not get into the ‘nitty gritty’ details of the Bill today but save such detailed debates for 4 March, when the Bill would again be put to the Committee. The Chairperson confirmed that the Committee had sent out letters to interested parties.

Mr Marius Luyt; Chief director: Public Entity Oversight: DoT, noted that the presentation was simply a summary and he would touch on changes and budgetary issues throughout. Mr Luyt believed that the changes would cost about R 1 million and this would be sufficient to help support and turn around the current problems.

Mr Luyt highlighted the history of the Cross Border Road Transport Act No 4 of 1998 (the principal Act), noting that soon after implementation issues requiring amendments were noted.  The purpose of the proposed Bill was to close the gaps on the financial and funding side and make sufficient provisions for bilaterial and multilateral agreements, as the cross-border aspects of the Act resulted in international agreement infringements. There were various agreements made regarding cross border transport within the region; which were detailed in the Transport Deregulation Act of 1988. These agreements normally had quota limitations. The Bill would do away with these and implement alternative control methods. It was hoped that it would streamline and assist in implementation of relevant agreements and conditions.

Mr Luyt then looked at the objects of the Bill, noting the specific insertion of a table of contents into the Act, to amend and insert certain definitions, particularly those which had created legal problems, to implement tolls in conjunction with South African National Roads Agency Limited (SANRAL); dependent upon the agreements by the Minister and Department, and to simplify Board Member appointment procedures. Further objectives were to regulate the granting of cross-border permits, to update traffic legislation, to create certain offences and to amend the National Land Transport Transition Act (NLTTA).

Mr Luyt then tabled the individual amendments.

Mr Piet Geringer; General Manager: Operations, DoT explained the meaning of cabotage, by noting that it was the unauthorised travel by a vehicle to a point previously not permitted while carrying passengers or goods. This was a contested  issue, being difficult to regulate, monitor and license. The Bill now extended the definition of cabotage to include both the on and off loading of passengers and to add ‘personal effects’ to the list of cabotage cargo. Finally the Bill intended to attempt to close the frequently used loop hole of carrying workers.

Further definition changes included those of foreign carrier and permits.  The definition of permits was addressed and altered, and it was noted that the period was changed to 5 years, 6 months or 1 year. There was no mention of a guarantee of 5 years.  Further definitions of ‘reward’, ‘unauthoriszed transport’ and ‘vehicle’ were discussed.

Clause 3 of the Bill was amending Section 4 of the Act, dealing with the power to collect tolls. He noted the proposed engagement with SANRAL and the fact that other countries in Southern African Development Community (SADC) charged cross border fees. DoT expressed the intention to have cross border holding bays where heavy vehicles and those vehicles with 9-plus-1 would be diverted and subsequently checked. The DoT hoped to have such a system in place by September this year. The issue of cabotage was further clarified in clauses 5,  6, and 9 which respectively would amend Sections 23, 25 and 31 of the Act. This would  ensure that an agency was established to regulate and permit cabotage.

Clause 6 would amend Section 27 of the Act. This dealt with the factors to consider in Issuing of permits such as permit transfers, tax clearance, Black Economic Empowerment (BEE) and Small Medium and Micro Enterprise (SMME) considerations, and a combination of vehicles.

Clauses 7 and 8, amending sections 28 and 30, dealt with the issues to consider when issuing a permit and the suspension and withdrawal of permits.

Clause 11 was to amend section 33 of the Act. This dealt with the refusal to publish the applications. The Bill would be making necessary amendments to the requirements of publishing. It was noted that further permit-related matters were outlined in clause 21, seeking to amend section 47 of the Act, where the responsibilities and duties of the permit holders were outlined in terms of submission of roadworthy compliance certificates annually, and prohibition on hiring of permits. Clause 23, amending section 52, dealt with unlawful lapsing of provincial permits requiring operators of lapsed permits to apply to the Agency for proper permits within six months.

The appointment of officers and powers of inspectors were being amended by clauses 14 and 15 and 16,  amending sections 37 and 38 and 40 of the Act These set out the powers those officers would have in respect of offences and penalties; such as cross border transport with no permit, the confiscation of permits and presumptions of cross border transport, and cession and hire of permits

Clause 20 contained an important new insertion of section 46A. This allowed for special emergency measures, whereby the Minister, after consultation with the Regulatory Committee, the MEC and South African Police Services (SAPS) could declare an area subject to special measures if it was in the best interests of conflict resolution, and to save lives.

Mr Luyt noted that there had been an amendment to Section 49 in response to public demand. Section 49 dealt with the submission of consignment notes and passenger lists when crossing the border. Clause 22, amending this section, now extended the deadline from 21 to 30 days as a compromise position by the DoT to ensure that information was received.

The topical issue of setting down passengers before border post crossing and then re collecting them on the other side was a loop hole in the National Land Transport Transition Act (NLTTA). The Bill sought to close this loop hole by prohibiting the setting down and picking up of passengers near the border post, where it was clear that they had crossed from another state, unless there was a permit issued.

The final part of the presentation detailed the history of the Bill and the consultation procedures and timeline.

The Chairperson asked why the appointment of board members had not been amended. He further commented that haphazard language such as ‘just’ tended to result in a drain on public funds as it would be challenged.

Mr Luyt noted that indeed this amendment had gone through all the stages and it would be rectified.

Ms B Thompson (ANC) queried one of the objectives of the Bill that had been mentioned – namely to ‘create certain offences’. She called for an explanation.

The Chairperson and Mr Luyt responded that this was not intended to “create illegality” but rather to curtail actions that currently were not seen as illegal nor criminalized, but which were nevertheless detrimental.

Much discussion focused on the definition and implications of the cabotage regulation. The Chairperson noted that the new definition meant that it was not only the transport of passengers but also their freight that was being addressed.

Mr George Mabuza; COO, DoT, addressed the issue of adding ‘personal effects’ to the definition of cabotage; by providing the example of a individual transporting six bicycles; these bicycles could be gifts to direct relations or for retail.

Mr S Farrow (DA) further queried this extension of cabotage to personal effects, specifically asking about the role of customs in the importation of goods.  Mr Farrow was cautious of allowing for an extension of a role that was already specifically mandated to that of customs officers.

Mr Luyt (DoT) again referred to the six-bicycles example. He said that when an individual travelled from one country to another, there would be different regulations in the different countries regarding the bicycles.

The Chairperson clarified this by noting that the objective was to try to define what cross border road transport entailed, both in respect of passengers, or carrying freight for payment, or other form of reward. The Chairperson noted that the key issue was that of reward in exchange for the transport.

Mr L Mashile (ANC) queried whether there was any other legislation governing these particular issues and whether or not preference could be given to that legislation rather than amending the Cross Border Road Transport Act.

The Chairperson clarified that the Bill was seeking to define further what was cross border road traffic, and to cater for its subsequent permits and regulations, rather than to address directly the transport of goods. Indeed there was other legislation, but it did not refer to this issue. The goal of the Bill was to close up loopholes regarding permits for transport.

Ms N Khunou (ANC) again referred to the carrying of objects, particularly medication, noting that  previously these were restricted. She noted that now permits could be acquired for the transport of previously prohibited goods.

The Chairperson answered her concerns by saying that the Bill did not make any distinction in respect of the type of goods carried. This was not under the purview of the Bill, but would be of concern to other entities. All this Bill was concerned with was the sufficient regulation of cross border road transport.

The Chairperson highlighted that the permit validity was not guaranteed for five years. A permit could be granted and could be reneged. He noted that in the new definition the permits would be issued for a maximum period of 5 years. He suggested that in the regulations, similar wording be used, to make it clear that the maximum permit time was five years, and that permits could be retracted, and were not guaranteed.

Mr L Mashile (ANC) asked if the vehicle owners had an obligation to submit proof of compliance throughout the duration of their licence. Furthermore Mr Mashile queried the time period of five years, asking what was the significance of that period.

Mr Mabuza noted that no permits were issued indefinitely. There would be limitations on the monitoring of compliance by the holders of the license. If a person had been compliant, he could be granted a license. If he then acted contrary to the terms, this could result in the licence being withdrawn. The indefinite nature of the licence in the past had made it difficult to regulate. Therefore the new maximum period of five years was to ensure continued compliance and roadworthiness of the operator’s vehicles, which would be checked at testing stations.

Ms Khunou queried the administrative costs and asked why annual renewals were not being used. She furthermore asked about the practicality of the administrative requirements.

Mr Luyt noted that the administrative costs of granting permits for three and six months would be too high. Furthermore the five- year permit was important for the operator as it provided a guarantee to him from a business perspective.

Mr Mabuza added that the maximum validity period did not mean that all permits would be issued for a five-year period. .

Mr Farrow noted that despite claims that administrative costs would be high if three and six month permits were granted; this type of administration was going to occur on an annual basis, when assessing roadworthiness. There was a need to check the regulatory side of matters and he suggested that there was a need for greater clarity in the wording.

Mr Mashile (ANC) sought confirmation of the requirements of the annual submission of information, asking if it only dealt with the vehicle and not the driver and the use.

The Chairperson noted that the intention behind the five- year permit was to aid small operators to apply for loans and approach banks.

Mr Luyt confirmed this, noting that indeed this consideration for small operators was a key objective.

Mr E Lucas (IFP) supported the five-year permit issue as it did assist small businesses, but yet did not infringe upon roadworthiness aspects, as the operators were still required to comply with annual tests.

Mr Lucas commented that “carrying passengers for reward” was being defined in a certain way. He commented that there was still the possibility of transport operators working together to circumvent the Act, particularly since reward could be non-monetary.

The Chairperson noted that it was important to note that “9 plus 1” requirement, which would not  cover a car with five passengers. He noted that clearly the DoT wanted to “turn friends into clients”. However despite this, he could foresee that problems might arise, for instance in the transporting of people to something like a church gathering or a soccer match.

Mr Mabuza stated that there was an intention to regulate the size of the party being transported. He noted that in circumstances where groups required emergency permits concessions could be made. However he reiterated that the purpose of the permits was to protect South African citizens, and to prevent them from being prosecuted outside South African borders as an illegal operator.

Mr Farrow queried accessibility issues of the permits.  He further queried the fines in respect of not obtaining permits, as people naturally would wish to avoid costs.

Ms Khunou asked how long it took for a permit to come through. She felt that this was important particularly in emergency situations.

Dr Maria Koorts; Deputy Director General, DoT, sought to clarify the definition of ‘reward’, noting that it could indeed be two things, and compensation had a further three sub issues. The intention was to keep the definitions of ‘reward’ within the scope of the principal Act.

The Chairperson confirmed, clarifying that ‘reward’ concerned the hiring of a car for trade and monetary gain. If the car was hired for other purposes, without any element of gain, then it was a different matter. The Chairperson suggested that the definition should be amended, by removing the last “or”.

Mr Mabuza was not comfortable with the removal of the ‘”or” as suggested. He argued that people needed to apply for a permit when they knew they were to be transporting across a border. Otherwise, if arrested and charged, their passengers would always claim merely to be friends, and this would not protect them in a foreign country.

Mr Lucas noted that this permit system would be difficult to police, as people had large families and extended families. In addition to this it was common practice to drop people off on the approach to the border post. He asked how it could be regulated.

Mr M Moss (ANC) noted the problem experienced in Saldana, with a number of people applying for temporary permits, Those with permanent permits were selling them off at great costs, due to the unavailability of temporary permits. Mr Moss urged the Committee to consider the problems of implementation when discussing the Bill, as the costs and detriment being suffered by the community was important.

The Chairperson agreed and asked that this part of the provision be flagged for further discussion.

The Chairperson addressed the issue of protection of South African citizens. He noted that parliament should not pass legislation that was impossible to implement. However, he did note the necessity for regulating commercial cross border transport.

Dr Koorts noted that the implementation of a regulation letter may be something to consider at a later date.

Mr Mabuza said that the issue of fines often went unnoticed, and this was due to the lack of permits.  He too note of the fact that DoT was worried about the citizens on the ground, and wished to try to protect from spot fines.

Ms B Thompson (ANC) queried whether a passport was now insufficient.

The Chairperson clarified this, again expressing concern that a piece of paper may yet still be insufficient to rectify the current problems.

Mr Mashile stated that he was struggling to understand the definition of vehicle.

Mr Farrow, returning to the “9 plus 1” issue, asked whether there had been consideration of vehicles that may have been manufactured with certain seating, yet altered. He said there was a need to re-look at the definitions of “9 plus 1” seaters, and the subsequent limitations and restrictions.

Ms Khunou asked whether other SADC countries had agreed on these issues. Secondly she asked how would people become aware of the necessity of the permits.

Mr Geringer suggested that toll roads directly before border posts would provide information, amongst other communication to be carried out by the DoT. In respect of the tolls, he stressed that DoT did not want to exact any additional tolls, but that it would be working on the SANRAL tolls.

Mr Mabuza added to the issue of education, noting that often people learned simply by exposure. He noted that those traveling across the borders would have money available. Ideas such as having information flyers at toll gates informing cross border travelers of the amendments would be used.

Mr Farrow queried whether the amendments to Section 4, regarding the toll function, placed a policing function on the DoT which did not fall within their mandate.  He highlighted the traditional role was that toll roads would be good roads. 

Ms Thompson suggested that the information should be provided prior to reaching the border post, specifically that it should be provided when application was made for the trip.

Mr Mashile urged the Committee to try to reduce the costs. He noted that the cost to SANRAL would be increased, due to administration, and therefore would also have a negative impact on the rest of society.

Mrs D Mbombo again highlighted the negative aspect of receiving information only on arrival at the border post. She was not happy with this.

The Chairperson noted that several issues had been raised, and asked the Committee to put the issue of education aside for a while. He redirected focus onto the mandate of the DoT to collect tolls, where this would normally fall into the realm of SANRAL. He noted that there was a danger that the money-spinner would be the Agency, and this was not what the DoT hads been mandated to do. The Chairperson asked that this issue be flagged.

Mr Geringer again addressed the issue of cabotage in respect of sections 23 and 25 of the Act. He noted that cabotage itself was prohibited unless carrying a permit.

Mr Mashile related the issues to local economic development, drawing on Mr Moss’s previous statement of regional and domestic travel. He believed that there was the capacity to undermine small business.

Mr S Mshudulu (ANC) urged the Committee to consider various factors when making a decision, including the certainty of information, and the importance of considering what would be pragmatic.

The Chairperson highlighted the necessity to have a sense of solidarity. The issue of cabotage is a relevant issue to try to promote a more dynamic Southern African community, with regional growth. However the Committee must be cautious that this did not undermine small business and other economic development.  He noted however that the function of Parliament was to make the laws, and the burden would fall on the Department to work on pragmatic implementation, to ensure that economic development was not undermined.

Mr Mashile asked for further clarity, asking what were the current rules of extending travel with a certain load to include another destination

Mr Mabuza began his answer by noting that within SADC countries the concept of cabotage was prohibited. He then highlighted the necessity of policing such transport. He then outlined the procedure for obtaining a permit, which would include representations to a regulatory committee.

Mr Mashile noted that the problem of approval created another possibility that there would be fraudulent exploitation of permit-issuing via the back door.

Mr Lucas noted the problem of double charging that would impact on the economic development, and urged the Committee to be careful of such issues.

The Chairperson agreed on the points raised by Mr Lucas, but warned that the Committee should not be too protectionist.

Dr Koorts dealt briefly with the steps taken to try to improve on clarity.

Mr Farrow asked the considerations of allocation of permits for road freight, and the role of taxi associations in the allocation of permits.

Mr Geringer noted that the Bill did not examine the SMME and BEE aspects.

The Chairperson noted that the problem with Amendment Bills was that the underlying issues had to be considered. He asked that the issue of SMME and BEE be looked into, and flagged for further discussion by the Committee.

Mr Mashile wanted to check on the tax clearance requirements and implications. He noted that these were issued annually and took time to process and asked whether or not this would infringe upon livelihoods dependent upon cross border travel.

Mr Mabuza assured him that no problems to date had been experienced by the applicants. Tax clearance was critical to the application.

Mr Geringer noted that the tax clearance was now given in three days.

Mr Mshudulu stressed that this was an important issue.

Mr Farrow was concerned with the topic of permits and regulations renewed on the basis of roadworthiness, and asked for this to be flagged for further discussion.

Mr Geringer ensured the Portfolio committee that the DoT did not intend to move away from the NLTTA.

Mr Mashile asked how it would be proven that those being carried for reward fell into the definition of “carrying of workers”. He thought it might be better to refer to “carrying passengers”.

Mr Mabuza gave the example of “carrying workers” as those workers who were regularly conveyed across the border, and said it would be a proven situation and not a vague implication that these people were workers. He gave the example of a previous case, where a permit was required by a farmer to transport children to school. The permit was granted, but was restricted to transport only during week-days.

The Chairperson reaffirmed that this regulation system may be open to abuse but there were procedures for appeal allowed when rights were abused.

The Chairperson queried the issues surrounding the setting down and re-collection of passengers on either side of the border post. He highlighted the issues of the presumption of guilt and asked whether something could be done to try to protect abuse of rights.

Mr Gideon Hoon, State Law Advisor, Office of the Chief State Law Advisor; urged the Committee that the issue should not be brought before the courts, as the policing of re collection and dropping of passengers could become a constitutional issue.l

Mr Luyt then outlined the necessity for the emergency powers of the Minister as stated in the new Section 46 A, to prohibit the use of permits along certain routes in attempts to keep peace and prevent conflict.

Mr Mashile queried the powers of the Minister. Whilst he agreed that there was a necessity for Section 46A, he asked what the exact powers of the Minister were.

Ms Khunou queried roadworthy checks and asked whether the onus fell on the applicant to prove roadworthiness or whether there were any measures that would ensure compliance with the DoT.

Ms Khunou also queried how well the permits had been received.

Mr Mashile directed his question towards the requirement relating to the renewal of a permit that was previously illegal or had lapsed, and asked whether the provincial government had been or should beinformed of this.

Mr Mabuza noted that there had been some consultation meetings, which to date had been well received by the taxi associations. There had also been deliberations with provincial government on the issuing of permits and these deliberations were due to continue.

Ms Khunou asked where the permits would be obtained, and where the head offices were situated.

Ms Thompson asked about the necessity to apply for a permit if traveling as an individual.

Mr Mabuza noted that the head offices were in Pretoria, but assured the Committee that this would not impact on the issue of accessibility. There was a procedure for representation for large associations such as the taxi associations, but smaller private and individual permits could be obtained by post. There was no need to apply for a permit if traveling as an individual.

Mr Mashile queried accessibility if the applicants were required to go to Pretoria, particularly for a “9 plus 1” vehicle permit.

Mr Geringer assured the Committee that temporary permits could be acquired simply by applying, and this could be done by postal application within two days. There were no issues around accessibility. The cost of the temporary permit was R 260. Higher costs would apply for a permanent permit and representation was then required.

The Chairperson briefly clarified the issues under discussion, such as the intergovernmental issues between provinces, the detriment suffered by operators in having to travel long distances and noted that indeed the legislation was not only dealing with licenses but also with operators.

Mr Gerigner noted that further considerations could be made, depending upon the circumstances. For instance, the permit board might travel to grant permits in areas where there was high demand.

Mr Mashile highlighted the issue of provision of permits at provincial levels and noted that indeed this needed some attention.

Mr Moss reiterated that education about the necessity for a permit was critical.

The Chairperson refocused the Committee by noting that the role of the Committee was to legislate, not to concern itself with implementation, once the appropriate measure were in place. He urged the Committee to continue to exercise an oversight function

Mr Mashile again mentioned the accessibility issue.

The Chairperson confirmed this and noted that physical accessibility is not the only thing to consider but also accessibility on every other level.

Ms Khunou requested equal access in all towns.

Mr Mshudulu asked about the practical steps to be taken in applying for a cross border permit.

The Chairperson confirmed the DoT’s statement that the steps would be straightforward and simple.

Mr Farrow asked for statistics regarding the numbers of permits at grass roots level, and suggested that such information would be beneficial to the Committee.

Ms Khunou stated that in passing legislation it was the job of the Committee to ensure that the implementation is sensible and that steps were taken to improve capacity for implementation.

The Chairperson summarised the concerns of the Committee, noting the potential price increase with the increased number of offices, tied in to the necessity to ensure access. He asked whether any steps could be taken to avoid such a price increase.

Dr Koorts noted that the issue of accessibility could be taken to the provinces, and that a particular process and system to ensure outreach and accessibility should be developed there.

Mr Mshudulu asked if there were any practical steps to reduce costs.

The Chairperson again revisited the issue of cross border traffic, saying that the practice of dropping off and collecting passengers either side of the border post avoided the cost of permits. The presumption that a person picking up a passenger was contravening the Act might be problematic for a driver innocently collecting those wanting lifts.

Mr Geringer affirmed that this would be looked at, but that the objective was to ensure a smooth flow of traffic from one port to another.

The meeting was adjourned.


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