The Railway Safety Regulator and Department of Transport delegates briefed the Committee on the National Railway Safety Regulator Amendment Bill, which sought to amend the National Railway Safety Regulator Act by amending some definitions, inserting others, extending the threat of safety to include behaviour, to empower the Minister to make certain regulations and include some systems under the Act, to empower the Regulator to exempt railways, and to enter into arrangements with role players. The Bill would also reiterate that the operators were responsible for railway safety, but the role of the Regulator in general, and in relation to transport of dangerous goods, was clarified. There were other conditions relating to the Chief Executive Officer and the Board, a requirement for Ministerial approval of funding, charging of fees and permits. Another clause gave the Regulator the power to conduct investigations or order reinvestigations into railway incidents. Members, having heard the briefings, then went through the clauses with the legal drafters. It was agreed that clause 9(1)(bB) should substitute the wording in relation to the determination of fees, providing that the Minister of Transport should do so “in consultation with the Minister of Finance”. Members agreed that that Clause 9(1)(c) should substitute the reference to the Minister with a reference to the Board.
Members would reconsider whether the word ‘may” in clause 10 should be substituted with “must”. The drafters were also asked to reconsider what exactly they were hoping to achieve in Clause 10(1), and whether the re-investigation was the best way to persuade operators to conduct a proper investigation in the first instance. The Regulator should be properly empowered.
National Railway Safety Regulator Amendment Bill (the Bill) Department of Transport (DOT) and Railway Safety Regulator (RSR) briefing
Mr Marius Luyt, Chief Director: Public Entity Oversight, DOT, briefed the Committee on the Bill, indicating that it sought to amend the National Railway Safety Regulator Act (the principal Act). The Railway Safety Regulator (RSR) was responsible for overseeing safety of railway operations. It had become necessary to amend the Act to keep up with current developments. The Bill would basically amend some definitions and insert others, extend the ambit of “a threat to safety” to include behaviour, empower the Minister to include monorail systems and trams, and empower the Regulator to exempt railways. It would also empower the Regulator to enter into informal arrangements. It would clarify the role of operator associations, and clarify the role of the Regulator in relation to the transportation of dangerous goods by rail. From an internal point of view it would revise the provision regarding the terms and conditions of service of the Chief Executive Officer, set time limits for submission of the Annual Report, require the Board to approve staff service conditions, and allow for delegations. The Regulator’s funds were to include penalties and fees, and he could charge for administering safety permits. The Minister was to be empowered to regulations to adopt and accept existing standards as well as to develop new ones. Inspectors could be appointed by the Chief Executive Officer appoint inspectors, and they would have the authority to inspect and investigate transportation of dangerous goods, and investigate railway occurrences. There were some procedural matters in relation to the inspections. The Minister could be empowered to make regulations for the payment of penalties by operators who defaulted. .
Mr Luyt then proceeded to a clause by clause explanation of the Bill (see presentation for details), setting out what each clause would contain and explaining what it sought to amend in the principal Act, where applicable.
Mr Luyt described the consultation process. The Bill had been published in the Government Gazette. It was also directly forwarded to Ingwe Collieries, City of Tshwane, Moqhaka Municipality in Kroonstad, and Spoornet. Furthermore it had been forwarded to Metro Rail/ South African Rail Commuters Corporation (SARCC), the Chairman of Heritage Railway Association, South African Port Operations Head Office, African Rail & Traction, Rovos Rail, Sandstone Heritage Trust, and Umngeni Steam Railway. Comments that were received from stakeholders were, where necessary, incorporated in the Bill.
The Chairperson noted that DOT had obviously consulted widely, but the glaring gap was consultation with the Labour sector. He thought that DOT would also need to write to them, and to Spoornet, and should activate the relevant trade unions of the two big federations that were active in the sector, particularly since they had previously complained of lack of consultation.
The Committee and the Department then went through the Bill clause by clause, raising comments and deliberating on issues.
Members asked, in view of the removal of the references to S A Bureau of Standards (SABS) Standard 0228, whether any other standards or authorities applied.
Mr Mervyn Panzera, Safety Advisor, RSR clarified that all standards, whether local or American or international, relating to dangerous goods, had SABS standards overprinted, and he noted that SABS had all standards under its auspices. However, provision was made for a level below that of industry standards and local standards, so it was possible that some goods might not have SABS referencing. In addition, the Standard 0228 was the current standard for identification of dangerous goods. To quote only this standard was considered too limiting, since there were other standards relating to dangerous goods. The intention was to remove references to specific standard numbers.
Mr B Mashile (ANC) thought that the SABS had been overhauled, and was now called SA National Standards, and asked DOT to check whether those areas referred to were covered.
Mr Panzera clarified that SABS had a division called Standards South Africa, which developed standards and other legs for validating components requiring SABS stamps. South African National Standards were the sets of standards development by Standards SA.
In relation to the definition of ‘network operator’, Mr Panzera explained that the current definition in the principal Act was confusing. The changes were made to avoid misunderstanding of who was meant to be the network operator. Whichever authority was ultimately accountable for the safety of that network was the network operator. That operator had the responsibility to authorise the movement, and was ultimately responsible for the operational safety environment.
The Chairperson mentioned, in relation to the definition of ‘station’ that when the Committee had visited Mitchell’s Plain Station, they noted that effectively the station became a shopping mall. In Pretoria, when the station was burned, there were problems because of commercial properties that were attacked and there was confusion as to who was managing them. The interface between commercial activities and other activities at railway stations had prompted the broadening of the definition.
Mr Mashile asked for clarification on the railway lines running through the station, and asked whether the railway lines inside the station formed part of the normal safety management.
Mr Panzera responded that the network operator was responsible for the railway lines that ran through, as well as the overhead power rigs and any signalling systems that went through the station. The station operator was responsible up to the platform edge and there was an interface between the two. Part of the management system required that interface to be managed and required the operators to indicate to the RSR in what way they were managing that interface, to ensure platforms were the right height and distance for the trains.
The Chairperson confirmed the need for responsibility of the station environment. He noted that the reason that track was excluded from the definition of station was to avoid confusion. He stressed that the management of interface was a joint responsibility.
Mr Mashile wanted to know who was responsible for the safety of passengers in parts of the station.
The Chairperson clarified that the safety of people in that whole environment was the responsibility of the three key entities.
Mr Panzera explained, in relation to the definition of ‘hazardous condition or behaviour’ that an unsafe condition was a physical thing such as an unsafe track or platform, whereas behaviour covered human elements, including people acting irresponsibly.
A Member questioned how, under the current Act, unsafe behaviour was being handled.
Adv Adam Masombuka, Acting Chief Director: Legislation, DOT, recalled an incident in Pretoria during load shedding. There had been a suggestion from the CEO of SARCC that people did not report in time that trains were stuck midway between stations. There might be other instances in which regular reporting was not being done. Negligent behaviour that gave rise to problems was what was really being envisaged by this change of definition.
Mr Panzera added that it could be employees’ or the public’s behaviour that could cause unsafe situations. The definition did not seek to state any limits.
The Members asked whether a person setting a railway coach alight would be a matter for SA Police Services (SAPS), or for the Regulator.
Mr Panzera responded it would be an issue for SAPS, because it was a security related issue. There was now far better understanding about security issues than when the Act was first drafted. The amendments to the safety management system distinctly separated out operational issues and security issues. There was a Memorandum of Understanding with SAPS on what were security issues, and these were situations that directly impacted on operational and personal safety. Those would be covered in detailed regulations.
Mr Panzera explained that this was amending Section 3 of the principal Act, allowing for certain railways to be declared exempt and broadening the possibility of the scope.
The Chairperson asked what was included, asking if the BRTS, which had rubber wheels in the centre, and ran along a guiding track, was included.
Mr Panzera noted that this was intended for a fixed rail system. The underground system in France was run on pneumatic and this would be included.
Dr M Sefularo (ANC) suggested the term hybrid system could be used to include everything.
Mr Panzera added that there were high rails, and a system where vehicles could also run on a track, and they would be covered when running on rails, but not if running on the road.
Mr S Farrow (DA) felt the amendment was not reflecting what had been said in the slide presentation, namely that operators remained responsible for railway safety, and that the function of RSR was to promote rail safety, but not to promote the utilisation of rail modes.
Mr Panzera agreed that the note on the slide was perhaps misleading. The intention was to clarify that the primary function of RSR was not to promote use of rail as a mode of transport, but to promote safety when the rail was used. Increased safety made it likely that there would be increased use.
Ms Kethabile Mabe, General Manager: Legal Services, Railway Safety Regulator, explained that Section 6 of the principal Act was referring to the Regulator entering into cooperative arrangements. This amendment was clarifying the position, and would enable the RSR to enter other arrangements such as Memorandums of Understanding (MOUs) that would clearly state the cooperative efforts required.
It was stressed by the drafters that the Minister’s functions in relation to the determination of the CEO’s conditions was being clarified. The clause was amending Section 9 of the principal Act to bring it in line with the Public Finance Management Act (PFMA).
Dr Sefularo pointed out that the amendment to Section 17 of the principal Act meant nobody could make a contribution to the RSR unless the Minister had approved it. However, he noted that sometimes in the processes the Regulator would sometimes need to appoint a task team, or appoint consultants, and that contribution should be allowed.
The Chairperson said that was a very important point. Dr Sefularo had given a good example. A Transnet entity or rail commuter entity might want to work closely with, and even allocate funding to the rail track, to improve capacity and have a safer environment. It was very important that there be political oversight of a public nature, because there was a danger that otherwise sponsorships might be given in return for or in anticipation of developing standards that were slanted towards particular commercial interests. It was undesirable that a particular interest be catered for. There was provision for the Minister to give approval, but this meant that the Minister would then be accountable. If the Department was working as it should and the Minister took long to give approval, then that could be a problem not related to the approval principle, but to the departmental process.
Dr Sefularo asked if the problem was not the existing regulatory framework for accepting donations and other contributions. His experience in the social sector, particularly health, was that monies that came from donors had to be regulated by the Minister of Finance or Treasury. The sectors themselves also developed subsidiary frameworks for regulating the conditions under which donations would be accepted. He asked if there was not some other was to regulate the donations without requiring specific Ministerial approval.
The Chairperson said that this might concern a handful of operators, and no charitable organisations.
Mr Panzera explained that the meaning of ‘contribution’ must also be considered. This might be a contribution in money, or in kind, such as making staff available. The industry was contributing to the development of standards, and it was accepted that the industry could be involved, including with use of labour.
The Chairperson said the Committee would need to make sure there was political oversight, and there would need to be ongoing future engagements.
Dr Sefularo asked whether it was necessary to have approval of the Minister or the board.
Mr Luyt responded that this concerned the governance of money, and it was necessary to bring this in line with other similar regulators, such as the Port Regulator. Governance and oversight over where the money was sourced was key. He did not think there would be an obstacle to accepting a donation to improve matters, but there was a need to guard against opening up a gateway for money flowing to the regulators from a number of different sources. All moneys must be accounted for properly in the books, and properly audited.
Mr Mashile said the Board was appointed by the Minister to oversee matters. He would think that the Board should be given the authority to approve as the Board would take final ownership of financial statements and the running of the institution.
Members agreed that Clause 9(1)(c) should substitute the reference to the Minister with a reference to the Board.
Mr Mashile noted that the RSR may charge fees. He noted that the charge for provision of services was an income-generating point. He wondered if the provisions of sub clause (c) were undermining (d).
Mr Luyt explained that there were different ways of getting money. Whatever entities were doing, they must consult with their shareholders, and this would relate also to transfers of fees between public entities.
Adv Masombuka clarified that it was not proper for the RSR to impose and determine the fee to be paid by the applicant for a safety permit. There would need to be monitoring, so the Minister should check that the fee was in accordance with the means of the applicant. He suggested that subclause (bB) should read ‘fees for providing services as determined by the Minister, in consultation with the Minister of Finance, by notice in the Gazette’. This was so that the Minister of Finance could determine the willingness of the people to pay the fees charged.
Members agreed that Clause 9(1)(bB) should read as Adv Masombuka suggested.
Mr Mashile was concerned about the word ‘may’ in this clause.
The Chairperson asked whether the word ‘may’ should be changed to ‘must’. The clause was empowering RSR to charge for the safety permits, processing, testing, the application itself, issuing the permit, and for any subsequent administration, and he thought that the word ‘must’ was more appropriate.
Ms Mabe clarified that indeed this should not be a discretionary power but RSR should be mandated to act. The RSR must charge and did not have discretion, as a discretion would make this clause contradictory with clause 9.
Members agreed to flag this point and revert to it.
Mr Farrow asked how this clause was intended to work, since the clause referred to an investigation of matters prior to loading, in the event that an occurrence had happened.
Mr Panzera clarified that the intention was that should there be a railway occurrence, then the RSR would have to go back and investigate the events leading up to the rail transport leg of the carriage of the goods. This would include an investigation into whether there were any irregularities in the loading, the packaging and the like. RSR were trying to prepare themselves for any eventuality and ensure that records were available. Those powers vested with the Department of Labour in terms of the application of the Safety Act.
Mr S Mshudulu (ANC) added that in terms of labour regulations every workplace with a given number of employees had to have a Safety Committee. It was important to ensure that when goods such as chemicals were loaded, workers had the right to refuse to work if the environment was too risky. The issue of chemicals and safety was on the International Labour Organisation agenda.
The Chairperson concurred. He said that the unions felt that there was often insufficient cross referencing between the occupational safety legislation and the setting up of the mandate of the Road Safety Regulator.
The Chairperson explained there were two kinds of investigation, one run by the RSR and one by an operator, that were covered by Section 38 of the principal Act. The conditions under which each occurrence could be investigated were set out and it was clear that the RSR could also order an investigation or reinvestigation as well.
Ms Mabe explained that safety was the responsibility of the operator and therefore the operator must investigate occurrences that took place in his environment. The RSR would issue a directive as to how that investigation should be conducted. Subclause (9) was empowering the RSR to play an oversight role. She noted that the principal Act already empowered the Board to do an investigation. If directed to do so by the Minister, it must do an investigation into any railway occurrence, for the purpose of preventing any similar occurrences in the future. The level of the investigation was now being clarified. The operator could be directed by the Regulator to conduct an investigation into any railway occurrence and its surrounding circumstances, in whatever manner and time directed by the Regulator, and should furnish a written report with findings and recommendations to the Regulator on completion of such investigation.
Mr Mashile said that there was a contradiction. Initially the Act said operators were responsible for safety, and the Regulator was overseeing that. The Regulator would expect to receive a report on any occurrence. The right of the Regulator itself to investigate, irrespective of who else had been employed to do an investigation, should be reserved. The other issue would be at whose cost the investigation should be done, and more especially at whose cost a reinvestigation should be done if the Regulator was not satisfied. He proposed that there should be a clause that reserved the right of the Regulator to make any further investigation if not satisfied with what it had received, and that the costs should be borne by the Regulator, unless it could be proved that the operator was wrong in the conduct of the first investigation.
Dr Sefularo favoured a combination of the two. He pointed out that in the first instance the operators may not do all that was necessary to investigate, in which case the Regulator may conduct his own inspection to verify the information.
The Chairperson said under sub clause (8) the operator now ‘must’ carry out an investigation. That wording was not included in the principal Act. The first step was that the operators must investigate, the second step was that the RSR may have the power to investigate, and the third was whether the RSR could set terms and, if not satisfied, order a reinvestigation at the cost of the operator. He personally felt there should be a single RSR in the country, not to deal with every single investigation but to ensure that the South African public would have the confidence that an operator would not be working an investigation to his advantage. The cost of an investigation was considerably less than the public liability claims consequent upon an accident and there might be the tendency to gloss over certain matters. The RSR would be able to override this. However, from the public perspective he thought it was more desirable that the best effective resources and routine investigations be deployed whenever there was an incident. The operator would have the detailed knowledge of the system and should play an active role, with the RSR keeping the process under control.
Dr Sefularo referred to the objects of the bill to extend the ambit of the threat to safety to include behaviour.
The Chairperson suggested that this point be flagged for further discussion.
The Chairperson suggested that the principle first be established. He reiterated that the RSR should play role in ensuring that the operator was not tempted to cover up. The public needed that satisfaction. The operator should conduct the investigation, but the RSR must have the right to oversee, and set terms and requirements for such investigation, and also to call for reinvestigation. However, even before receiving the report, the RSR might decide to have its own investigation and might also have the right to engage with the process and set certain requirements, not simply sit passively awaiting the report. This would promote confidence.
Dr Sefularo submitted that the RSR was a supervisory body and must be given the right to audit the investigation and ensure compliance.
Mr Mshudulu said there was a statutory obligation in terms of standards when there was an accident.
Members agreed with the provisions of subclauses (8) and (9) but wondered why the RSR should have the power to order a reinvestigation at the cost of the operator.
Ms Mabe clarified that the RSR were regulating the industry, and not a particular operator. There was a need to come up with applicable legislation. If RSR was given the power to study the prescribed report and to order a reinvestigation, it would encourage the operators rather to conduct their work more thoroughly the first time, to ensure that there was not an order of reinvestigation. If the power to make this order was removed, then it would fall to the RSR to do its own investigation. Although the RSR had the right to do investigations but it was not their responsibility to do so.
The Chairperson noted that the RSR had significant powers; if there was a shoddy investigation by the operator then there were other and more serious recourses. He would have thought that the incentives to do a proper investigation should not be the threat of having to do a reinvestigation, but rather should be more serious actions ranging through suspension and public naming and shaming.
The Chairperson asked RSR to think about what it really wanted to achieve, and what would be the best way to empower the Regulator to achieve this.
Mr Mashile gave a comparison with building compliance. A building contractor had to test his work. Whenever the inspector was worried about the result he had seen, then the client had the right to retest. If the contractor’s test was proved not correct, the total cost would then be borne by the contractor. He suggested that if an inadequate report was given to RSR, then RSR must have the right to reinvestigate. If the reinvestigation proved that the initial report was not correct then the operator must bear the cost. Other investigators could do the reinvestigation on behalf of and on instructions of the RSR.
It was confirmed that inspectors could make random inspections.
The meeting was adjourned.
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