The Acting Chief Director: Legislation and the Deputy Director: Licensing and Permits of the Department of Transport briefed the Committee on the proposed amendments to the Air Services Licensing Act 115 of 1990.
The Amendment Bill made provision for the Minister of Transport to designate the Chairperson and Vice-Chairperson of the Air Services Council, to allow for a public servant to be appointed as a member of the Council, the nomination procedure for members of the Council and to allow for re-appointment of members on expiry of the thee-year term of membership. Technical corrections were made to references to obsolete laws and gender-insensitive words were substituted.
Members agreed that the restriction on the appointment of public servants to the Council was removed but were concerned that the proposed amendments allowed the Minister to appoint officials from the Department of Transport to the positions of Chairperson as well as members of the Council. The Act provided for discretionary consultation by the Minister with industry stakeholders on the appointment of members of the Council. Members suggested that the amendments placed an obligation to consult with industry stakeholders on the Minister in the appointment of members of the Council. Members were concerned over the independence of the Council but conceded that the Council needed to be closely aligned with the Department to ensure alignment with national policy. The Committee suggested that the matter be debated by an ANC study group and requested that the proposed amendments were revised.
Briefing by Department of Transport
Advocate Adam Masombuka (Acting Chief Director: Legislation, Department of Transport) briefed the Committee on the provisions of the Air Services Licensing Amendment Bill (see attached document).
The Air Services Licensing Act 115 of 1990 prohibited the appointment of a public servant as a member of the Air Services Licensing Council. The Minister of Transport was dissatisfied that an employee of the Department of Transport cannot be appointed as the Chairperson of the Council. The proposed amendments made provision for the Minister to appoint the Chairperson and Vice-Chairperson of the Council, for a nomination procedure for candidates to be appointed to the Council, grounds to disqualify members from serving on the Council and to limit the term of office of members to three years. Further technical amendments corrected references to obsolete laws and substituted gender-insensitive terminology.
The Chairperson was satisfied that the technical amendments in the Bill were correct. The substantive issue was the Ministerial appointment of the Chairperson of the Council. The licensing of air services needed to be in line with the strategic objectives of the Department. The Chairperson of the Council was a critical entity to ensure that the objectives were met. He would have preferred it if the presentation included the achievement of strategic objectives as a motivation for the amendments rather than satisfying the Minister.
The Chairperson asked if the fundamental motivation for the amendments was to achieve alignment with the Department’s objectives.
Dr M Sefularo (ANC) noted that the reason given in the memorandum on the objects of the Bill for the introduction of a three year term of office for members of the Council was to provide security of tenure. However, provision was also made in the Act for removal from office within that period. He asked if the amendment proposing the three year term implied security of tenure for that period.
Adv Masombuka explained that the term of office of members of the Council was limited to three years. On expiry, the position was advertised and members were required to re-apply to be eligible for re-appointment. The proposed amendment made provision for the re-appointment of a member for a further term of three years without the person having to re-apply. The motivation of the amendment was to promote continuity and the retention of knowledge within the Council.
The Chairperson said that re-appointment after three years was not guaranteed.
Mr L Mashile (ANC) noted that slide 9 of the presentation referred to the “term of office of the council” and asked if this should not have read the “term of office of the members of the council”.
The Chairperson pointed out that Clause 3 of the Bill referred to the term of office of “a member of the council”.
Mr Mashile asked for clarity on the main reason why the Department wanted a Government official to be appointed to the Council. He was concerned over the issue of separation of duties. He accepted the need for the Council to exist rather than its functions being carried out by the directorate of the Department but felt that the Council should be allowed to operate freely and be independent from direct control by the Department. He was concerned that a Government official appointed to the position of Chairperson would not be allowed to operate freely.
Mr Mashile asked if there was a difference in the meaning of a Vice-Chairperson and a Deputy Chairperson. He said that the term “Deputy” was generally used.
The Chairperson understood that the amendments removed the prevention of the appointment of a civil servant to membership of the Council but did not compel the appointment of a civil servant to the position. He understood that a Council with its own identity rather than a sub-section of the Department was wanted. Although the Council was an independent entity, a strong alignment with the Department was necessary.
Adv Masombuka replied that provision was made for the appointment of a civil servant in the legislation on international air service licenses. This Bill amended the Act governing domestic air services licenses and the proposed provisions were in line with the Act governing international licenses.
Mr Mashile said that it must be accepted that the Minister will appoint a Government official to the position of Chairperson if he/she was allowed to do so.
Adv Masombuka agreed that was the correct assumption.
Mr Mashile asked how independent the Council will be if the Chairperson reported to and was appointed by the Minister. He said that it was necessary to separate the duties of the Chairperson to ensure that the Council could operate freely and did not base its decisions on whether or not to please the Minister.
The Chairperson said that his objection to the reason given in the presentation that the Minister was unhappy was based on the fact that the amendments should be about ensuring the Council operated in line with national policy and not be about pleasing the Minister. The Department of Transport was essentially a policy and regulatory entity and must ensure that key services were regulated in line with national policy. What the Air Services Council did had to be in line with policy and the Department. The appointment of members and the critical position of the Chairperson was one way of ensuring alignment to the Department.
The Chairperson said the Council must be allowed to meet as its own entity. Section 4 of the Act dealt with the constitution of the Council and allowed for the Minister to consult with interested parties in the appointment of the members of the Council. Consultation was however discretionary and the position was advertised, thereby allowing a form of consultation to take place. It was not clear whether the Minister could appoint all the members of the Council from officials of the Department.
Adv Masombuka replied that the Chairperson only would be appointed from the civil service. Other members of the Council will be from the interest groups.
Mr Mashile remarked that many pieces of legislation made provision for the Minister or the Department to be represented by boards or councils to provide for the link between those entities and the Department. Provision was made for the Minister to appoint civil servants as members of the Council, with the responsibility to report to the Minister on the activities and progress made by the Council. He asked why it was necessary for the Minister to appoint a Government official to the position of Chairperson as well.
The Chairperson asked where it was stipulated in the legislation that the Minister can not appoint the entire Council from the civil service.
Adv Masombuka replied that Section 4(2) of the Act provided for the Minister to consult at his discretion, with stakeholders in the appointment of members of the Council.
The Chairperson said that the provision was not specific. Discretionary powers allowed the Minister to consult or not to consult. Theoretically, the Minister was allowed to appoint public servants to all the positions in the Council. He did not consider this to be desirable. Personally, he was in favour of the Chairperson being a representative of the Minister or an official from the Department. Other members of the Council can be either civil servants or drawn from the stakeholder sector.
The Chairperson said that in the area of aviation licensing, it was not desirable for the industry to be self-regulatory. It was however critical that the public sector played a role in regulatory affairs and provided expertise.
The Chairperson suggested that the matter was discussed by the ANC. From the discussion, it was clear that the amendments needed to be revised and considered in the light of the objectives of the Department. The Council can not be a sub-department within the Department of Transport nor can it be a self-regulatory entity. Members may be appointed by the Minister but should be drawn from the stakeholder group as well. He agreed that the provision preventing the appointment of a public servant must be removed and that a public servant may be appointed as the Chairperson or as a member of the Council. He suggested that an obligation was placed on the Minister to consult with industry stakeholders in the appointment of members of the Council.
Adv Masombuka agreed that the amendments to the Act needed to be in line with Departmental policy. He said it was not intended that Departmental officials were appointed as Council members. The Chairperson only was to be a public servant from the Department. The reason for the appointment of an official was the regulatory nature of the Department and to ensure that Government policy was followed. He said that the Council functioned as an advisory board to the Minister and consisted of five members.
The Chairperson asked if the Council’s advisory role was made clear in the Act and that the actual licensing of air services were governed by the licensing regulations.
Adv Masombuka replied in the affirmative.
Mr Mashile remarked that if the Council played an advisory role only, it must be independent in order for it to provide objective advice to the Minister. If a departmental official was appointed as the Chairperson, the Council would be just another division of the Department.
The Chairperson said that the matter will be debated by an ANC study group. He said advice should be relevant and there was a need for dynamic interaction between advisory bodies and the Department. The debate was useful as the Committee tried to make legislation clearer on what was to be achieved.
In response to Mr Mashile’s question, Mr Andries Ntjane (Deputy Director: Licensing and Permits, Department of Transport) explained that the words “deputy” and “vice” had the same meaning in the context of legislation.
Adv Masombuka added that the intention was to amend as little as possible of the original wording of the principal Act.
The Chairperson noted that public comments were received in response to the advertisement of the Bill. He did not intend to hold public hearings on the Bill and requested that the Committee was briefed by the Department on the comments received and on any issues that were raised by interested parties.
The meeting was adjourned.
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