Cross-Border Road Transport Amendment Bill [B51- 2007]

Meeting report

The Chair said that deadline for receiving written submissions on the Bill was 7 March 2008. The Committee hoped to complete the work by the following week. This would include dealing with written submissions and issues which had been flagged. The Management Committee of the Cross Border Road Traffic Agency (CBRTA) should assist in determining which of the submissions would require an oral presentation. Members too could give their opinions on whether a particular submission should be presented orally. Although the Committee hoped to finish the Bill by the following week, their priority was still to follow the correct procedures.

The Chair referred to issues which had been flagged:

Clause 2 (d)
In terms of this clause, the period for which a permit was issued, was increased from one year to five years.

Mr B Mashile (ANC) referred to the fact that the permit (which allowed the vehicle to operate) was checked annually. He asked why the operators’ permits were not checked annually as well.

Mr Piet Geringer (General Manager: CBRTA) said that this issue was addressed in Clause 21(6).

Clause 2 (e)
This clause made provision for ‘reward’ to include non-monetary compensation. This would include contributions to the payment of fuel, for example.

Mr Mashile expressed concern about the fact that passengers’ contributions to petrol would constitute monetary reward, while the operator would still have to pay levies or tariffs imposed. He therefore believed that the definition needed to be fine-tuned.

The Chair said that they should guard against getting into too much detail, as it was not their intention to regulate the relationship between customer and operator. An operator who was paid in kind would still need money to pay for the permit. How s/he obtained that money was not the Committee’s concern here, as the Committee was not focused on the way the operator ran his/her business. The Chair was happy with including other forms of compensation, just as long as it still involved a business transaction and not some private arrangement between friends.

Mr Geringer said that the person who was accused of running a taxi (as opposed to transporting a group of friends) would have to take up the matter with the police.

Ms N Khunou (ANC) asked if there were links with people at the border to ensure that people did not get into that kind of trouble.

The Chair said that while one could not say people would not get into trouble; there were treaties in place to address these issues.

Ms Khunou asked how they could check if payment was made in kind.

The Chair said that there was no way of knowing if a cash payment was made either. One should remember that this was a facilitating measure and not a preventative measure. If a person was running a business, it did not matter in what form the compensation was. The fact was that the owner was getting paid and therefore needed a permit.

Clause 3 (4)
The Chair was skeptical about the provision allowing the CBRTA to collect tolls on behalf of the South African National Roads Agency Limited (SANRAL), as this could be outside the mandate of the CBRTA. The Chair felt that the CBRTA was starting to focus on their mandate and this function could distract them.

Mr Geringer referred to other bodies charging road charges.  A heavy vehicle traveling from Zimbabwe would have to pay a toll if traveling to Johannesburg or Durban. If they went an alternative route they would have to pay a penalty to SANRAL. This would ensure that international vehicles traveled on national roads. It also allowed them to turn around unroadworthy vehicles at certain points.

The Chair wanted to know if this was done by the CBRTA.

Mr Mashile said that there were bodies like the police or customs officials who would do these jobs. He asked why SANRAL could not collect the levies themselves. He asked if an additional levy became payable if SANRAL gave the function to the CBRTA to perform.

Adv Adam Masombuka (Acting Chief Director: Legal Services, Department of Transport) said that SANRAL already had officials collecting levies. The amendment would simply empower the CBRTA to do so in the event of SANRAL approaching them to enter into an agreement to this effect. He added that an additional levy would be unavoidable, but that this additional levy would apply even if SANRAL were to enter into such arrangement with a private company.

Mr S Farrow (DA) had a problem with their combining the functions of inspecting for overloads on the one hand, and collecting tariffs on the other. The former could very well be a function of the CBRTA, but they should not be responsible for both functions.

The Chair asked for clarity on the payment of a penalty for vehicles deviating from the scheduled route.

Mr Geringer answered that this system, which ensured that these vehicles remained on national roads, was monitored by an e-tag system.

The Chair said that this would probably entail interface with SANRAL and all other affected agencies. It would become necessary to beef up their capacity to do this function. What they were describing now was not the same as what the amendment was proposing. He suggested that the CBRTA submitted a proposal on this. However there was nothing preventing the CBRTA from entering into memoranda of understanding with other agencies, for example SANRAL. This provision would be unnecessary if dealt with by memoranda of understanding, as long as the CBRTA did not stray outside their mandate.

Clause 6 (d)
The Chair asked if this provision referred only to freight. He felt that it was necessary to include passengers as well.

Mr Geringer replied that Clause 6 referred to freight, while Clause 7(b) referred to passengers.

Clause 7 (c)-(e)
The Chair referred to an earlier proposal that the words “and safely” be added so that the phrase read “efficiently, effectively and safely”.

Mr Mashile had a problem with the use of “efficiently”. He asked who would determine this.

The Chair replied that this would be determined by the CBRTA. All these terms referred to grey areas, for example, he asked how one determined “effectiveness’”.

Mr Geringer added that there was a requirement of efficiency when the business plan was submitted. The business plan was an indicator of efficiency and showed if the operator would be able to run his/her business.

Mr Mashile was concerned that South African law allowed Zimbabwean vehicles to travel in South Africa without the business meeting the requirement of efficiency. However the South African business had to meet these requirements.

The Chair said that the same would apply to the use of “safely”. This however did not mean that this could be removed as a requirement.

Mr Geringer said that the Act applied to businesses traveling to other countries from South Africa. These principles were however filtering throughout the Southern African Development Community (SADC) region. They did in fact turn back unroadworthy and unlicensed vehicles coming from other countries all the time.

Mr Mashile was concerned that the provision was prohibitive as it excluded the “have-nots” from entering this business. Raising the bar would ensure that only the well-off business would be able to afford to enter this business.

Ms Khunou asked what was being done to assist the small and historically disadvantaged businesses mentioned in Clause 6 (d). She asked if they could get some sort of discount on their permits.

The Chair said that this provision had to be looked at in conjunction with Clause 7(c)-(e). One had to promote transformation, but still have regard to the criteria of efficiency, effectiveness and safety. Failure to do so would make newly emerging businesses unsustainable and actually serve to undermine Black Economic Empowerment (BEE), as one could not allow 1000 new business to operate using broken vehicles. It would be unsustainable and would not be developmental at all, since it would only be done to fill the required quota of black businesses. He conceded that “efficiently” was open to abuse, as it could be used to exclude black business, but it was then up to the Committee and the Department to monitor its implementation.

Mr Mashile said that people obtained the money to start the business from the banks. The banks would examine the business to see if it was efficient.

The Chair said that the problem with leaving this decision with the banks was that not all vehicles were obtained via bank loans. There were many instances where people managed to acquire vehicles by other means but then battled for sustainability. The CBRTA had to play a developmental role. They would have to check if the business had the finances and if they had counterparts in the foreign country. Domestically, the taxi industry has been recapitalized to make it more effective. The Chair felt that the same should be done with cross border transport.

Ms Khunou asked what process was followed when a person wished to start his/own own transport business abroad.

The Chair responded that where the business was set up in the other country, the Department or the CBRTA did not have a say. However when it was set up in South Africa, the operator would have to submit a business plan and meet the necessary requirements. This could be abused by excluding certain businesses, but this would be dealt with by the Committee and Department who would exercise oversight.

Adv George Mabuza (CEO: CBRTA) said that the onus would be on the operator to show how they do business, the route they would use, which border post they would use and if they had any alliances in the foreign country. The CBRTA would then contact the country involved to double check this information. This was done to ensure the safety of the operator as encroaching on another operator’s territory in the foreign country could prove to be dangerous.

Ms Khunou said that there should be no loopholes in the implementation of the requirements or it might result in only members of big associations getting the business.

Ms N Mbombo (ANC) asked if the requirements applied to buses too, as fatalities were very high. She asked how accidents were dealt with by the CBRTA.

Adv Mabuza said that it applied to buses too. Accidents were dealt with by different agencies within the Department. The role of the CBRTA would mean participating in court proceedings where it was necessary to show that the bus was roadworthy enough to be on that road. It was precisely for this reason that this matter needed to be regulated.

Mr Farrow said that the aim was not to raise the bar so high as to exclude people. They were saying that it was necessary to correct past discriminations, while still taking into account the criteria in the checklist.

The Chair suggested that the issue be flagged. He also asked how the Members felt about dropping the use of ‘efficiently’ to ensure that the spirit of transformation would not be undermined. The issue could be addressed with increased Committee oversight over the process, which was not always possible due to time constraints. The issues to be considered were overcoming historical barriers to business on the one hand, while bearing in mind that one could not have a laissez faire approach. One should not just encourage market entry without focusing on real transformation.

Mr Farrow said that the criteria were present in the original Act. They were merely attempting to introduce transformation into the Bill as well.

Mr Mashile said that the CBRTA was not the only body imposing requirements on the operators. There were already a variety of compliance issues to be dealt with by any potential operator. Adding any more would result in a bureaucratic nightmare.

The Chair agreed, saying that while the CBRTA would not deal with tax compliance per se, a tax certificate would be necessary for them to grant a permit.

The Committee indicated that they would not have a problem with the removal of “efficiency”.

Ms Khunou asked if the CBRTA included the working conditions of drivers as a criterion before granting permits. Drivers worked under terrible conditions and often did not have a place to sleep.

The Chair said this issue should be considered when considering the criterion of safety. This would be raised with the relevant bodies, for example unions. This would not however be dealt with in the Bill.

The Chair said that there was a need to encourage market entry, but one could not have the situation where operators forced drivers to work under poor conditions because they could not afford to employ additional drivers.

Clause 16 (d) (2)
The Chair said that the two questions which arose were:
- whether they wanted to write this into law, as it was already provided for in another piece of legislation
- if the operator was dropping people within one kilometre of the border, they would need to consider whether the onus was on the operator to prove that those passengers would not cross the border.

Mr Mashile pointed out that this happened every day. Operators dropped passengers near the border and the passengers then crossed the border.

The Chair said that this was not a problem if the operator had a permit.

Mr Mashile said that this was already in legislation. Local taxis could not take passengers close to the border. Only those with cross border permits could take them close to the border without even crossing.

Mr Geringer said that the big problem was the fact that Operating Boards were issuing these cross-border permits.

Mr Mashile referred to the practice where taxi associations were stopping taxis one kilometre from the border and demanding payment of R3000 before allowing them to cross.

Adv Mabuza explained that when transporting cross border passengers, a manifest was completed at the starting point. They would not be getting off anywhere in this country and passengers were therefore only dropped off once they reached their destination in the other country. This avoided competition and violence with local operators. The operator was only allowed to do one pick-up, which was at the starting point.

Mr Geringer said that many problems could be addressed by preventing the Operating Boards from issuing cross border permits.

Mr Mashile pointed out that the problem being discussed and the amendment recommended was only in response to the situation in Free State. One could not amend the law to address the problems in one particular area.

The Chair said that ideally they did not want people dropped at borders, but rather wished to promote the seamless movement of passengers across the border. However one would need a cross border permit to be involved in the cross border chain. This would allow this issue to be regulated more effectively. Perhaps it would be better that passengers were dropped at the border and then took taxis to their respective destinations on the other side. He suggested that the Committee should flag this matter until the next meeting.

Mr Mashile referred to the definition of ‘cross-border’ travel, and the fact that the operator would need to comply with agreements on the other side of the border.  It did not make sense that s/he would require a cross border permit and comply with the criteria even though s/he would not actually be crossing the border (that is, if they were dropping passengers less than one kilometre away from the border). Dropping passengers one kilometre away from the border to avoid the need for a permit would result in frustration for the passengers. In areas where there were no cross border taxis, it would mean that all taxis would be forced to drop passengers one kilometre away from the border post.

The Chair agreed that one could not fix the problem within the Free State by creating problems elsewhere. The Chair referred to areas where people living very near to the border needed to travel just over the border. The question is whether one should force the local operator working near the border to obtain a permit for transporting these passengers right over the border. It was clear that they were trying to solve a Free State problem with general legislation.

Mr Geringer agreed that they were doing this.

The Chair pointed out that law had to have general application. One could not use legislation to solve issues that needed to be dealt with by administrative measures or by law enforcement agencies. He said that the Committee would caucus the proposed amendment for the following meeting. The Committee was not unsympathetic to the issues raised by the CBRTA. The Operating Licensing Boards and taxi associations had to be dealt with.

Mr Farrow suggested that this issue should be dealt with in terms of the ‘Special emergency measures’ provided for in Clause 20 of the Bill. He agreed that this matter could not be dealt with by amending legislation to deal with the Free State problem.

The Chair said that this proposed amendment would not solve the problem. Even if it could it would be difficult to enforce. This should instead be dealt with as an inter-governmental issue. Free State province should deal with the licensing board, while the Committee would deal with the taxi associations. He said that the Committee seemed to be leaning in favour of excluding the amendment.

In conclusion, the Chair said that this matter would be discussed further on 11 March 2008. Written submissions would be received on 7 March 2008 and formal consideration of the Bill would be take place at the following meeting.

The Chair adjourned the meeting.