The Committee had intended to discuss their final mandates on the Social Housing Bill but they realised that there was no clarity on whether they had intended their mandates to be final mandates or merely negotiating mandates. A discussion ensued in which Members attempted to reach consensus on the nature of their provinces’ various mandates. While some provinces indicated that they were voting in favour of the Bill with their proposed amendments, others indicated that they were voting in favour of the Bill without amendments.
Questions were raised about the financial implications of the Bill.
The NCOP Procedural Officer advised the Committee that because of the conditional nature of some of their mandates, these could not be regarded as final mandates. Members would have to reach agreement on a final document or text to present to the House when it came to voting and to then indicate if they were supporting or rejecting the Bill or abstaining.
The Chairperson suggested that in future, the minutes of the previous meeting should be available to ensure Members came to meetings prepared and fully aware of the discussions at previous meetings so as to avoid protracted discussion on procedural matters and matters irrelevant to the substantive issues.
The Department of Transport briefed the Committee on the Cross-Border Road Transport Amendment Bill. The purpose of the original Act was to regulate the cross-border activities of both passenger and cargo road carriers. The Bill was designed to tighten up the granting of permits and also to equalise the extent of operations between foreign and local carriers. He outlined the requirements for road transport permits, the conditions for suspension of permits and the Bill’s effect on the sale and hiring of permits.
Committee Members asked about certain definitions, such as “cabotage” and “consignments” and questioned the Department on the reasons for wanting to tighten up the Act. They asked what had motivated the establishment of the Cross-Border Road Transport Agency. Specifically, they asked why permit application procedures had been made more cumbersome and what the need was for the equalisation of operations. What would be the effect on South Africa’s SADC neighbours as well as on the taxi industry and its recapitalisation programme? They wanted to know if a quota system would not perhaps have been preferable to one of equalisation. They also asked about the implementation of the Act and the Department’s cooperation with provincial road authorities in this regard. There were also questions about the monitoring of the Act at border posts between South Africa and neighbouring countries. The meeting ended with the Department promising to try to get all MECs “on board” before the final passing of the Bill.
Free State Final Mandate
The Free State delegate said their mandate had not changed since its negotiating mandate the previous week. The Local Government and Housing Committee of the Free State Legislature voted for the adoption of the Bill without amendments.
Gauteng Final Mandate
Mr M Mzizi said that Gauteng had a few recommendations and also some concerns about the financial implications. He read out their final voting mandate:
”The Housing Portfolio Committee noted the provisions of sections 18(1)(a)(b) and 18(2)(a)(b) and the financing of social housing institutions (SHI) are inadequately/not catered for in the provisions of section 39 of DORA and this could have serious financial implication for the province.
Second, the requirement as stipulated in section 14(1)(1) that the SHI must seek permission for any prescribed matters from the Regulatory Authority, should be clarified insofar as what exactly the purpose of the permission sought from the Regulatory Authority is.
The reporting requirement as stipulated in section 16(1)(a) and (b) that the social housing institution must report to the Regulatory Authority, the Committee notes the response in this regard as inadequate.
The Committee recommends that the provisions of section 13(3) and (4) on the accreditation of social housing institutions and municipalities should be revised to take into consideration the limitations of section 39 of DORA specifically to Schedule B-Vote 26 as the Bill must ensure that capacity exists for all newly accredited institutions and municipalities to obtain funds to avoid compromise of service delivery.
The Housing Portfolio Committee recommends that in terms of section 65 of the Constitution, the House confer authority on the Gauteng Provincial Delegates to the NCOP to vote in favour of the Social Housing Bill [B29B-2007]”.
Ms Odette Crofton, Chief Director: Social Housing, National Department of Housing, said the Bill dealt only with the accreditation of social housing institutions and did not have any effect on municipalities. Municipal accreditation was a Housing Act matter. Accreditation in the Bill was only for social housing institutions and projects. In terms of the Division of Revenue Act (DORA) and financing, there was a process for bringing the social housing programme onto the budget so that there was sufficient funding available. The main funding requirement from the province in terms of funding at the moment was the provision of the institutional subsidy, allowance for which would have to be made in the normal budgetary process. Over and above that, it would not have any further financial implications for a province.
The Chairperson said that according to his understanding, before an institution could be accredited, it had to apply to the Social Housing Regulatory Authority and the latter would have set requirements for accreditation. For any changes the institution wanted to make, it had to seek permission from the Authority, telling them what changes it wanted to make and what the effects of these changes would be.
Mr Mzizi said the problem was that they had never seen the regulations which applied to this Bill. Another problem was that South African Local Government Association (SALGA) had not been party to the discussions on such problems insofar as they affected a municipality. In relation to matters that impacted on municipalities, they should be there.
The Chairperson said that possibly what was needed was to arrange for follow-ups with provinces and stakeholders.
KwaZulu-Natal Final Mandate
Ms M Oliphant (ANC KwaZulu-Natal) said that the KZN Housing Portfolio Committee had mandated its delegation to reject the Bill “in its current form” for the following reasons: The National Department of Housing had not considered the substantial proposals from KwaZulu-Natal and other provinces. The KZN Committee took the view that these proposals should have been incorporated into the Bill. Further the KZN Committee had not had sight of the Regulations as undertaken by the Department at the previous NCOP meeting in order to guide it in passing the Bill.
Ms Oliphant said that their delegation had a mandate to consider any additional amendments, provided that the amendment did not alter the essential elements of the Bill, and consensus was reached on the proposed amendments by the KZN delegation.
The Chairperson said the Committee noted that KZN had rejected the Bill but was still open to persuasion and it would later see whether KZN had been persuaded otherwise.
Ms Oliphant asked for clarity from the Department, saying that the reason for the meeting having been postponed the previous week was to enable delegations to go back to their provinces to get final mandates.
Mr Khwezi Ngwenya, Legal Unit: National Department of Housing, said that at the previous meeting, the Western Cape had raised issues about some of the proposals. If he was not mistaken, there had been a resolution that the Department would not respond unless the request was made in writing about matters raised by the provinces. It was also agreed that provinces would circulate their mandates and would engage with each other about such matters. That is why the Western Cape had been told that they needed to engage with other provinces. It was not that the Department was responding only to the Western Cape, but rather that all the provinces were being exhorted to engage with each other before coming up with their mandates.
Ms Oliphant pointed out that members of the committee had not received such documentation.
The Chairperson said that the matter would be flagged and the Committee could return to it later during their general discussion. He said it was important to avoid a situation where the impression was created that some provinces had received preferential treatment by the Department.
Limpopo Final Mandate
Ms H Matlanyane (ANC Limpopo) said the final mandate from Limpopo was “still as it was”. She said she had communicated with the province and talked directly to the chairperson and all they had said was that they would keep their final mandate the same as their negotiating mandate unchanged as they would not have time to consider the negotiating mandates of other provinces.
Mpumalanga Final Mandate
Mr V Windvoel (ANC Mpumalanga) said Mpumalanga supported the Bill although he added that he did not know whether his provincial housing portfolio committee had had an opportunity to discuss the objections of other provinces.
Northern Cape Final Mandate
Mr R Tau (ANC Northern Cape) said the Northern Cape had conferred authority on its permanent delegates to the NCOP to vote in support of the Social Housing Bill.
North West Final Mandate
Rev P Moatshe (ANC North West) said North West Province’s portfolio committee had resolved to support the amendments made on the Bill but to submit the following additions:
- In Chapter 2’s Roles and Responsibilities, the Bill should include traditional leadership institutions as role players.
- In Clause 2(1)(a) General principles applicable to social housing, the Bill should try to reduce the age restriction to sixteen and consider orphans, in this era of child-headed families, especially in the rural areas.
- In Clause 13 Accreditation of Social Housing Institutions, there should be a provision for the establishment of an Independent Agency institution in provinces to ensure that housing projects are not abandoned before they are completed. There should also be an independent Environment Assessor to ensure that the identified area is inhabitable.
- Further, the National Portfolio Committee on Housing should ensure that the Bills referred to provinces are drafted in languages understood by the citizens of that province.
The Chairperson asked what the North West was saying as it seemed to him that they were supporting the amendments.
Ms Matlanyane (ANC Limpopo) reminded the Committee that at the time when others had negotiating mandates, North West had not and that was why they were bringing in amendments to the Bill now. This was in fact supposed to have been their negotiating mandate. Mr Mzizi agreed.
The Chairperson said that he accepted therefore that there was as yet no final mandate from North West.
Mr Windvoel asked, when North West said they were supporting the amendments, to which amendments were they in fact referring? He agreed with Ms Matlanyane that it was a case of having missed one’s breakfast and wanting to have it at lunchtime. He agreed with the North West that Bills should be drafted in different languages. The matter was one that should be uniformly decided by the NCOP, not only in relation to housing but other matters as well, if “we wanted to strengthen our democracy”.
Mr Mzizi said that had North West brought up the matter earlier, they would have elicited support on this. Nonetheless, his province would like to see this happening and it was up to the Department and the Ministry to consider the matter.
Ms B Dlulane (ANC Eastern Cape) referred to the document and said that it was titled “North West: Report on the Final Mandate on the Social Housing Bill”. Therefore, the Committee should not try to “formulate the wording” of the document. According to the document, they seemed to have made it clear that they were submitting a final mandate.
Mr Mzizi said the view that North West had not given a final mandate was premised around the wording of North West’s resolution within the report. According to that, there was no final mandate.
Western Cape Final Mandate
Mr F Adams (ANC Western Cape) said that the Department had issued a document which had been sent to the Committee’s secretary and to the Western Cape and last week it was decided that the secretary should forward the document to all other members and provinces. In that document the Department had agreed that they accepted the Western Cape’s proposals. Unfortunately, he did not have that document with him. But the Department had accepted the Western Cape’s proposals.
Mr Mzizi asked on a point of clarity, to be reminded what resolutions were made at the previous meeting. He had the impression that they had agreed to continue with the negotiating mandates at this meeting but now it seemed to be final mandates.
Mr Windvoel said it was necessary to get copies of the document sent to the provinces because it was necessary to know which amendments the Western Cape supported. Second, there seemed to be “a dangerous trend, where you had a Department bilaterally communicating with one province” and that “undermined the constitutional mandate of this House as the NCOP” because the question was how far that agreement bound the other provinces.
Mr Adams said that, on a point of order, the Department did not communicate with the Western Cape but the latter got the document from this committee.
Mr Windvoel said that if the communication went from the Department to this committee, then another question arose: was that information communicated to all the provinces?
A committee member reminded everyone that at the previous meeting, the Committee discussed the mandates for each province including that of the Western Cape. However, the Committee had agreed that the different provinces would exchange their negotiating mandates so that provinces would know whether to support a particular province’s mandate or not. The provinces were to exchange mandates and discuss them with each other so as to be able to return with a true final mandate.
Ms Oliphant said that that meeting had been scheduled for final mandates, but it had been agreed in the previous meeting that, since provinces had not given a final mandate based on the proposed amendments from various provinces, to postpone the meeting until 28 May so that provinces could come up with a clear final mandate and say: this province supports the Bill or not.
Mr Van Rooyen agreed with Ms Oliphant and added that the Free State still had not changed its mandate.
The Chairperson said that he wanted to exercise democracy because he knew that at the previous meeting the Committee had dealt with negotiating mandates and “the mandate I got from my province”. He had reported back to his province and had told them what had been agreed on and what had not as well as other issues raised by other provinces. For this meeting of 28 May, he had been given a final mandate to support the Bill. The whole issue which had arisen now was the openness of the North West mandate, which was open to any interpretation. He had allowed this discussion so that there could be “a common understanding” of what North West was saying. Was that province saying ‘We support the Bill’ or was it saying ‘We support the Bill with the following amendments’? If it was the latter, then it was not a final mandate.
Mr Windvoel asked if, in the light of that explanation, they could get the amendments “in black and white”.
Mr Mzizi said that copies of the minutes should be sent to the provinces to help them when they compiled their final mandates.
Mr Adams then read the Western Cape’s mandate:
”The Western Cape Provincial Parliament, having considered the subject of the Social Housing Bill [B29B-2007] (NCOP), referred to the Provincial Parliament in terms of the rules of the NCOP, begs to report that it confers on the Western Cape’s delegation in the NCOP the authority to support the Bill with the following amendments (The square bracketed sections indicate omissions from existing enactments and italicised words indicate insertions in existing enactments):
Clause 2(1): On page 5, in line 25, to amend paragraph (d) as follows: not discriminate against any residents [on any grounds set out in section 9 of the Constitution, including individuals affected by HIV and AIDS]
CLAUSE 4(1): On page 7, in line 4, to amend sub clause (1) as follows: Every [provincial government, through its MEC] province must –
CLAUSE 9: On page 9, in line 4, to amend paragraph h (1) as follows: (f) he or she has failed to attend [three] two consecutive meetings, without an apology or justified excuse.
CLAUSE 19: On page 14, in line 48, to amend sub clause (1) as follows: 19. (1) The Minister, by notice in the Gazette and after consultation – “
A committee member pointed out that the words ‘after consultation’ were open-ended and should be qualified so as to refer to with whom the consultation should be.
Mr Windvoel requested a copy of what was sent to provinces.
A departmental representative said that they had sent to the provinces all the negotiating mandates as well as the Department’s responses to these.
Mr Van Rooyen said that the previous meeting had not followed correct procedure of going through all the proposed amendments and deciding which ones the Committee was in favour of and which not. By sending the mandates and their proposals to the provinces, the secretary had confused the provinces. This was because this committee had to take a decision, to agree in writing that it agreed to the Western Province mandate or to the proposal by the Northern Cape. That document was not sent to the provinces and that was the conclusion it came to last week…that that should be done and that was what they were supposed to do today….to negotiate these things and to send these proposals to their provinces for a final mandate.
The Chairperson said that as a newcomer to this Parliament, since 2004, committee members were bringing in a new dimension which for him was “a great learning curve”. He had learnt to understand this House as a ‘Council of Provinces’ which brings together provinces. From where he was seated, he was a representative of a province and when dealing with a Section 76 Bill, all he needed to do was to ensure that the interests of his province were catered for.
He said he had the sense that members were saying that there should be a slightly different approach. This was that they should have a “committee approach” similar to that of the National Assembly, when agreeing on certain matters. He had thought that the issues were brought to the Committee, they then engaged with them and sent them to their province. It was therefore incumbent on each committee member to assist their provinces and to take them through the process of understanding all the issues. It became their responsibility because they had the benefit of engaging with the Department at a national level.
He continued saying that perhaps they should set a new precedent and start meetings with the minutes from the previous meeting “so that we all move in the same direction”. This would ensure that different members did not have different interpretations of the same meeting with everyone ending up getting confused. But at the same time it should be accepted that as permanent delegates, they were at a disadvantage, because all that the NCOP did, was to command them to go and brief their provinces at an introductory level. However, at the follow-up level, they were not there when negotiating mandates or when final mandates were being dealt with and they were now expected to interpret provinces’ positions on mandates ex post facto.
The Chairperson suggested that they should “note” these gaps and challenges, but should decide how to use this knowledge to take things further and ensure that the process was made easier and more efficient. The Chairperson said he was happy with the response from the State Legal Advisor and said he hoped other delegates were likewise happy.
Eastern Cape final mandate
Ms Dlulane read the Eastern Cape’s mandate: ”The Eastern Cape’s Portfolio Committee on Housing resolved that the following mandate be conferred: To vote for the adoption of the Bill; That the Special Delegate, Hon Neer, be mandated to represent the province at the meeting considering the final mandate and vote for the adoption of the Bill.”
The Chairperson noted that the Hon Neer was absent and had tendered his apologies to the meeting.
The Chairperson noted that 8 out of 9 provinces had presented mandates in support of the amendments.
Mr Van Rooyen pointed out that the Free State had given a mandate to support the Bill but “without amendments” so that it could not be said that it had supported the Bill with the amendments. That meant that 7 provinces out of 9 had supported the Bill as it stood.
The Chairperson said that it was clear that a majority of provinces had accepted the Bill with amendments.
He then read out the Committee’s resolution to support the Bill:
“In the National Council of Provinces, the Select Committee on Public Services, having considered the Social Housing Bill – [29B- 2007] - supports the Bill with amendments.”
Mr Gideon Hoon, the State Law Advisor, undertook to draft the resolution and to present it to the Committee.
Ms J Borien, Procedural Officer in the NCOP, said that she had consulted with the Departmental Legal Advisor and noted as follows:
On the contents of the documents which had been presented as final mandates, the question was whether provinces were voting in favour of or against the Bill or were abstaining. All of those mandates she had seen “seemed to have further conditionalities attached to either their support or non-support”. In the interests of “being on the safe side”, the Committee should therefore “not regard these as the final mandates but rather another part of a process of negotiation”, which provinces had wanted to begin. To regard the documents as clear, final mandates, it would have to have regard to some parts of documents and ignore others. What the Committee could do was to agree on a text or a proposed amendment and then, when it came to voting in the House, those would be regarded as the voting mandates and would have to clearly indicate the correct version of the Bill that was being agreed to and should clearly state ‘support, reject or abstain’ so that there were no come-backs.
The Chairperson asked the legal advisor whether the committee could proceed with the acceptance of the mandate as submitted by the provinces and make a statement that, by the time it went to vote in the House, the provinces should have submitted their final mandates to say whether they supported, rejected or abstained.
Ms Borien said that was “definitely the way to go”.
The Chairperson said it seemed that the Committee was quite clear. He said the status of the meeting would be that the Committee would “accept the mandate as submitted by the provinces, but… before the House adopted it, it should ensure that our provinces submitted “clearly written, defined mandates saying ‘we reject, support or abstain from voting’.
In response to another question from Rev Moatshe about whether this was a final mandate or not, the Chairperson said: “We are dealing with final mandates. We received a briefing three weeks ago and we went to brief our provinces. We dealt with negotiating mandates and last week we were supposed to receive final mandates, but it was quite clear that there was confusion and the meeting then deferred this matter to this meeting for final mandates. But even last week, we were supposed to have considered final – not negotiating – mandates. Your province was probably the last province to have received a briefing so that was probably the reason for the confusion. Today we are dealing with final mandates. Now, based on the observations by the Legal Department, that much as this mandate is a final mandate, the quality of this final mandate seeks to negate the intended purpose because it says ‘this is our final mandate, but with these conditions and so on’. What we have been advised is that we say we agree with the intention but we must go back to our provinces or advise them to be clear and not to put conditions but to abstain, reject or accept.”
The Chairperson asked for a formal mover for the report.
Ms Borien said she just wanted to make sure that there was a version of the Bill that the Committee was going to agree to recommend to the Council and it was on that version that the final voting mandate must be based.
Ms Matlanyane then proposed the Bill be adopted. There were no objections. The Chairperson said it was agreed what the intended route was and thanked the members of the Committee.
The Chairperson then appealed to members to be proactive and to assist their provinces and not only to receive mandates from the provinces at the time of meetings. He said that the problem was not one of their own making but one arising from the provinces and the mandates given to them. To the Department, the Chairperson asked why it was that MECs were not able to properly inform their portfolio committees. He said it was “quite embarrassing” that they should be sitting in an institution such as theirs with this kind of important policy matter, which was, after all, intended to address the problems of the poor and the homeless and “we are stuck here, arguing over things that are immaterial, instead of engaging on issues which will be taking our revolution much further”.
The Chairperson thanked Committee members and adjourned the first part of the meeting.
Cross-Border Road Transport Amendment Bill: briefing
Mr Marius Luyt, Chief Director: Border Operations and Control, Department of Transport, pointed out that the Cross-Border Road Transport Act Number 4 of 1998 had come into force on 1 April 1998. The Act created the Cross-Border Road Transport Agency, gave effect to various international agreements and regulated cross-border transport. After implementation of the Act, some issues that required some amendment arose. Mr Luyt said that cross-border road transport had to be regulated differently because of international agreements, which included the following: The MOU (Memorandum of Understanding) with Botswana, Lesotho, Namibia and Swaziland; Bilateral agreements with Malawi, Mozambique, Zimbabwe and Zambia.
The agreements were attached to the Transport Deregulation Act of 1988 and remained in force under the Cross-Border Act. The agreements usually had quotas ie states were required to equalise the number of operators. Joint Route Management Committees and similar structures were established to manage these agreements. Different considerations applied than with domestic transport under the NLTTA (National Land Transport Transition Act No. 22 of 2000). The agency had to apply the Act and the relevant agreement(s).
Mr Luyt said the key purpose of the Amendment Act was to close loopholes in the original Act. Mr Luyt went through the Memorandum of the Objects of the Bill (see Appendix).
Mr Luyt said that he hoped the Committee would pass the Amendment Bill as it had been a very long consultation process.
Mr L Van Rooyen (ANC Free State) referred to Clause 10, which required the Regulatory Committee to publish in the Government Gazette before authorising cabotage permits. He wanted to know whether they were not making the process too long and creating unnecessary red tape, as this was a “cumbersome process”.
Mr George Mabuza (Chief Operating Officer: Cross-Border Road Transport Agency) replied that the process for cabotage applications would indeed make the process longer and more cumbersome, but that was precisely the intention. An example of such special conditions was where a vehicle was one that was not available in this country and could only be procured in another country.
Mr Van Rooyen then asked what inspectors were referred to in Clause 14, which empowered inspectors to confiscate cabotage permits. Further, what were the consignments referred to in Clause 21?
Mr Luyt said that the inspectors referred to were from the Cross-Border Road Transport Agency (CBRTA).
Mr V Windvoel (ANC Mpumalanga) asked what had motivated the creation of the Agency. He also asked whether it would be implemented throughout the country and how far it would spread in terms of location, especially with regard to provinces with international borders.
Mr Mabuza replied that the agency existed to control the movement into SADC countries of both people and goods for commercial purposes. It regulated the movements of taxis and buses into SADC countries and back as well as the movement of freight. These regulations had been done in the form of agreements – MOUs (Memoranda of Understanding), bilateral and multilateral agreements. MOUs concerned BLNS states ie countries falling under the Southern African Customs Union – South Africa, Botwana, Lesotho, Namibia and Swaziland, for which there was one joint agreement containing all the regulations. With the other SADC countries – Zimbabwe, Zambia, Mozambique and Malawi, there were bilateral agreements because different forces were at play in those countries. These movements were controlled by the issuing of permits to operators within a particular country. When a taxi operator wanted to apply for a permit to go to Zimbabwe, the company in this country would have to phone its Zimbabwean counterpart and ask for a “concurrency”. If they agreed then a permit could be issued to that operator in this country. The agency’s intention was to ensure that there were an equal number of operators in both South Africa and its neighbours. Yes, there might indeed be a lot of movement from poor countries into South Africa, but there were agreements that if 20 taxis were to be required to move people between South Africa and Zimbabwe, then South Africa would have to provide 10 and Zimbabwe 10. That was how it was intended to equalise the number of operators.
Mr Windvoel asked about the Road Levy and whether it was linked to the Act because those were the sort of questions that “people on the ground” asked. He also asked about the issue of “equalising” operators. Was that practically possible, because especially in poorer countries, operators wanted to come into this country.
One of the challenges, said Mr Mabuza, was that while it might have been thought that there were more taxis going from South Africa to Mozambique, in fact it was the other way round and it was needed to equalise these numbers.
Mr Windvoel also asked what was meant by transformation and how far it would go and how was it intended to enforce and monitor the cabotage laws?
Mr M Mzizi (ANC Gauteng) referred to one of the objects of the Bill being to update reference to traffic legislation. Was this related to penalties or to the type of vehicle intended to be used? He asked how the agency would know if operators were “evading” the Act, by saying they were carrying workers. How would they determine that, because if an operator was carrying goods to other countries, he would have to have workers accompanying him. What was the law’s intention in this regard?
Mr Mzizi also asked about cabotage permits and, given that it had been earlier stated that it was intended to do away with the transfer of permits, whether temporary permits would still be issued or not. He referred to the statement that cabotage permits would only be issued if there was no conflict with ITPs (integrated transport plans) and asked what conflicts were being referred to. With regard to operating licences, some of which were “indefinite”, he thought the only indefinite licences to be taxi licences. Would these be revoked and if so, how?
Rev P Moatshe (ANC North West) asked what was meant by the term “transport agency” and also the acronyms JCPS and BCOCC in the presentation. He asked what the abbreviation “HR” in “HR Division” and what was meant by the “equalising of operators”.
Mr Luyt replied that JCPS stood for Justice Crime Prevention Cluster, BCOCC for Border Control Operations Co-ordinating Committee and HR for Human Resources.
Rev Moatshe also asked how the hiring out of permits would be prevented because someone with the permit might not have a vehicle or vice versa.
Mr Windvoel asked whether, in the spirit of NEPAD, there was not an obligation to assist poorer countries and whether the desire to equalise the playing fields would not defeat such objectives.
Mr Mabuza replied that in reality, we had to look at the growth of our own operators and our taxi operators wanted to share in the financial gain to be had from the movement of people and we wanted them to be able to do so.
Mr Mabuza turned to cabotage, explaining it was the action of a foreign vehicle entering a country with the intention of doing cross-border transfers and then deciding to do local business too. For example, a vehicle from Botswana comes to the Durban docks to deliver goods and then decides it wants to deliver a load from Durban to Johannesburg. That practice was disallowed because they damaged the internal movement of freight and denied our internal operators the opportunity to do the business. Therefore within SADC, cabotage was discouraged and was allowed only under special conditions.
Mr Van Rooyen asked what would happen if a carrier had a consignment note for say 21 days and at Beit Bridge its truck broke down and had to remain there for 31 days.
Mr Mabuza replied that each and every vehicle that left South Africa to go to a SADC country was required to fill in a consignment note, in which it declared what it was taking across the border. Every 21 days after it completed a trip, it would be required to bring its consignment note to the agency. The present amendment was designed to meet the operators’ objection that the 21-day period was insufficient and would increase the period to 30 days.
Ms H Matlanyane (ANC Limpopo) said the situation at border posts was unsatisfactory and monitoring would be very complicated. She asked whether stakeholders at border posts consulted for example the Department of Home Affairs? She knew for a fact that there was collusion between different countries at border posts. Monitoring therefore had to be “first class” if one wanted to implement and ensure compliance with this Bill. There were all sorts of illegal activities going on at border posts. Therefore they had to consult thoroughly and ensure that everybody was on board, and how would that happen?
The Chairperson said that this was one issue the Committee would have to revisit before finalising the Bill. Any policy position had serious political implications. If one looked at the economic and political development of SADC, South Africa had positioned itself as if there were the United States of Africa. South Africa recognised the historical injustice that had taken place and the disadvantage of “our brothers and sisters within SADC but we still wanted to pretend that we were equal to them”. What were the implications of this piece of legislation for our taxi operators and the taxi recapitalisation programme? In respect of permits for carrying passengers and freight, should we not be talking about a quota system rather than about equalisation, so that we did not appear to be wanting to dominate the picture? Such business operations were a form of livelihood for many operators in our neighbouring SADC countries. These were political implications that the Committee needed to carefully examine so as not to have to come back later and ask to amend the legislatio.
Picking up from what Ms Matlanyane had asked, the Chairperson also pointed out that a consignment period of even longer than 30 days might have to be considered, particularly in the light of frequent delays experienced by carriers, especially at the end of the year and during the Festive Season. Many such delays were not even related to technical breakdowns but rather administrative and passport-related matters.
Mr Van Rooyen asked if it was cabotage if he was an importer in Botswana and imported some goods and sent his vehicle to the Durban harbour to bring the goods back to Botswana. After all, in such a case, the cargo was his own and so too was the vehicle. Did that fall under the definition of cabotage?
Mr Mabuza replied that that was normal cross-border movement and not cabotage.
Mr Luyt agreed that the need for consultation was paramount and they had endeavoured to consult most of the stakeholders in bringing this legislation to Parliament because he knew how many people on our borders it would affect.
The Chairperson asked when last MECs had been consulted. Was it 2003, as had been stated?
Mr Mabuza confirmed that it was indeed 2003. It was then taken to the BCOCCs and Department of Justice clusters.
The Chairperson said he “strongly proposed” that there be another round of consultations with MECs. Mr Luyt acceded.
Mr Mabuza said that in relation to the transfer of permits, the Department wanted to move away from such transfers and that an operator needed to merely apply for a new permit. Because what was happening was that persons who had permits but no vehicles anymore, sold or rented out their permits. The Department was saying that if people wanted to be part of this industry, they did not have to go and rent a permit but should just come and apply for a permit. They would then appear before a board and if they met all the criteria, the Department would issue them with a permit and “endeavour to recall” the old permit.
With regard to monitoring, Mr Mabuza explained that the agency had three significant divisions – Regulatory, Facilitation and Law Enforcement. Monitoring was done on our roads through the Law Enforcement division. In the Act an amendment was requested so that the powers of appointment of inspectors would reside with the CEO. In the old Act, it was the Board which appointed them and it was becoming difficult for the CEO to keep tabs on accountability. These inspectors were placed at strategic points towards the border and their responsibility was to ensure that each and every vehicle en route to a border post was checked for compliance, whether it was a foreign or a South African vehicle.
In reply to Mr Windvoel asking if that inspection function was also delegated to ordinary traffic authorities, Mr Mabuza said that it was. The Department worked in co-operation with other law enforcement institutions and had joint operations with for example, the South African Revenue Service and Home Affairs.
The Chairperson emphasised that this was just the first meeting and that others would follow.
Mr Luyt said it would be very difficult to get all the transport MECs together within a week and that it would take some time to do so.
Adv Adam Masombuka, Acting Chief Director: Legislation at DOT, pleaded with the Committee, saying that the Bill process had started in 2002 and had been publicised in the Government Gazette several times and that notice of intention to publish had also been published. Various committees had also been consulted. It was very difficult to get all the stakeholders together at one time and maybe even a month would not be sufficient.
The Chairperson said that the matter should be concluded by saying that the Department would do everything in its power and to the best of its ability to take on board the MECs or provinces.
To amend the Cross-Border Road Transport Act No 4 of 1998 so as to insert the table of contents; To amend and insert certain definitions; To provide for transformation in the cross-border road transport industry; To provide for special emergency measures; To regulate the granting of cross-border permits; To update references to traffic legislation; To create certain offences; To amend certain provisions of the NLTTA; To provide for matters connected thereto.
Section 1 of the Act dealt with definitions and had inserted a table of contents to facilitate reading the Act. In the definition of “cabotage”, “or” had been changed to “and” to make it clear that it referred to both on-and offloading. In the definition of “cross-border road transport”, “and personal effects” had been added to “stop loading of freight”. It covered persons carried in the course of business because operators evaded the Act by saying they were carrying workers. The definition of “foreign carrier” had been changed so as to add Cabotage and close the technical loophole that arose in the Airey High Court case. In the definition of permit, the maximum validity period was changed from 3 to 5 years, from 3 months to 6 months or 1 year so as to be in line with the NLTTA. This was because the administration costs were thought to be too high for short period-permits. In the definition of “reward”, it was thought that non-monetary reward should be added to close the gap for hiring schemes. The definition of “unauthorised transport” had undergone a technical change to simplify the Act. The definition of “vehicle” had been changed to make it clearer that the 3 500 kg limit applied to the whole combination of vehicles and not only the truck tractor and to make it clearer that for Cabotage, a single permit was needed for each component of a vehicle combination. In reply to a question as to what was meant by Cabotage, Mr Luyt replied that cabotage was when a foreign carrier with a permit to offload at a particular point, then started to do other deliveries, either of people or cargo from that point.
With regard to Sections 23 and 25 on Cabotage, the Act was not clear enough. Cabotage was defined as happening where a foreign carrier operated inside South Africa or picked up (passengers or cargo) in South Africa to go to a third country. The amendment made it clear that the Agency regulated Cabotage and that a permit was required for Cabotage. Factors to be considered when issuing permits included: Transfers were not necessary and the new operator could simply apply for a new permit. This would stop “consultants” from peddling with permits. Tax clearance was required as was the case with the NLTTA and conditions imposed by a joint Committee were to be considered (to bring the Act in line with agreements). The Board had also to take BEE and SMME considerations into account to bring the Act into line with the BBBEE Act. A single permit was issued for vehicle combinations for cross-border transport but not for cabotage and consequential amendments were intended to effect the same amendments as to Section 27. Mr Luyt said that the factor “ability of the applicant” had been amended to make it clearer and to “remove arguments”. He said the Act was also amended to allow withdrawal or suspension for non-compliance with permit conditions so as to bring the Act into line with the NLTTA and provincial legislation. Notifying the holder about the right of appeal was in compliance with the Promotion of Administrative Justice Act 2000. Subsection (1) was amended to promote clarity so that cabotage permits could only be issued if there was no conflict with integrated transport plans and other transport plans done under the NLTTA.
Section 31 was amended to make it clear that a separate permit was required for each vehicle component. He said the Amendment Bill empowered the CEO to issue temporary cabotage permits but these permits had to be ratified by the Board.
Clause 10 amended Section 3 of the principal Act by requiring the Regulatory Committee, before authorising cabotage permits, to publish these in the Government Gazette. This did not apply to the renewal or transfer of the permit and application for conveyance of passengers or employees carried in the course and scope of the applicant’s trade or business. If the conditions of the renewal or transfer of the permit contemplated the above changes, then the Regulatory Committee would have to publish this in the Government Gazette.
Clause 12 amended Section 35 by adding the list of stakeholders and provincial and local authorities were also added to the list of stakeholders for Route Committees.
Clause 13 amended Section 37 by empowering the CEO rather than the Board to appoint new inspectors.
Clause 14 amended Section 38 by empowering inspectors to confiscate Cabotage permits (this was an omission in the original Act). It was felt that the CEO was in a better position as he was in close contact with the HR and Law Enforcement divisions. Wherever passengers intended to cross a border, the Act defined this as cross-border transport. Provincial Boards could issue permits right up to a country’s borders, where passengers actually walked across the border. And the hiring of permits was made an offence.
Clause 19 amended Section 46 by inserting Section 46A on “special emergency measures”. The new section was designed to empower the Minister to suspend permits on routes or in areas, for example at a rank in the event of violence or unrest. Such powers were Provincial Acts such as the Gauteng Public Passenger Road Transport Act, 2001. These emergency powers of the Minister were necessary to avoid conflict and to save lives.
Clause 20 amended Section 47 by increasing the duties of permit holders and those who held permits for over 1 year would now have to submit roadworthy certificates and proof of insurance annually. This would become important if permits were issued for five years. A provision had been inserted to prevent the hiring out of permits.
Clause 21 amended Section 49 by extending the validity period of consignments from 21 to 30 days. In the past, the NTC and provincial boards issued many cross-border permits and operating licences, some of them for indefinite periods. The Minister had written letters to the Provincial Boards to stop this practice and it had been agreed that these permits should lapse within 6 months and that operators should apply to the Agency for proper permits.
Clause 23 amended Section 46 by deleting subsection (2). Section 46(2) had been deleted because it prohibited setting down passengers at or near a border where they intended to cross the border. Various other sections were amended to effect consequential amendments by for example deleting references to transfers, to update references to the old Road Traffic Act of 1989 and to change cross-references. An Amendment Bill was published for comment in May 2000, a plenary conference with stakeholders was held in February 2002, the Bill went to MINCOM (now MINMEC) in April 2003 and was referred to provinces and other stakeholders for further consultation. The Bill was also approved by the State Law Advisor in July 2006. The Bill was again published for comment on 5 September 2006 and amendments had now become urgent. The JCPS and BCOCC had been consulted and the intention to introduce the Bill in Parliament was published in Government Gazette No 30485 on 23 November 2007.
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