National Railway Safety Regulator Amendment Bill [B32-2008]: Public Submissions

Meeting report

National Railway Safety Regulator Amendment Bill [B32-2008] : Public Submissions
The Chairperson noted that the Committee had sent out letters to stakeholders calling for comments on the Bill; that one Trade Union had responded and that the other asked for more time.

Transnet submission and discussions on the proposals
Ms Sue Lund, General Manager: Policy and Research, Transnet said that written comments were submitted to the Committee on 5 March 2008, some of which had been addressed. The presentation today was a summary of the explanation of those comments, which fell mainly into three categories. The first item dealt with some key definitional issues that required resolution; the second item was the fee dispensation that was proposed by the  Bill; and the third item was the railway occurrence investigations. 

Definition of “dangerous goods”
Mr PJ Bouwer, Compliance Officer,  Transnet, referred to the definition of ‘dangerous goods’ in Clause 1, sub-clause (a)(iii) of the Bill, and stated that the previous definition had referred to specific South African Bureau of Standards (SABS) standards. What was being proposed now was to make reference generically to ‘goods’ or ‘substances’ being made subject to declaration of certain standards by SABS. The problem was that access to those standards was difficult, and the definition so broad the public could not readily ascertain which substances were being listed as ‘dangerous goods’. If a generic reference was made to ‘substances or goods from time to time’ there might be some confusion regarding what was being referred to. There was a major move in the safety environment to refer to ‘hazardous substances’. Some challenges were anticipated with the interpretation if the next SABS standards were to refer to ‘hazardous substances’ and not ‘dangerous goods’. The practical implication could create problems because these references were incorporated in the listing of ‘substances’. He queried whether this incorporation could properly take place if the development and determination was happening elsewhere. The legislation and delegation of powers were being called into question, because standards were not fixed and changed from time to time.

The Chairperson stated that the specific items should be dealt with rather than having a general presentation.

In relation to the definition of “Dangerous goods’ in Clause 1(a)(iii), Mr Bouwer thus proposed that reference be made to the actual SABS standards, so that if they changed in the future then the reference in this law would have to be changed as well.

Ms Lund asked if it was possible to propose that the legislation referred to ‘SABS standards as determined from time to time by the SABS’, but added that it meant that the legislation would have to keep pace with the SABS, and the modification of the standards.

The Chairperson asked for an expert opinion from the Railway Safety Regulator (RSR).

Mr Mervyn Panzera, Safety Advisor, RSR, responded that what Transnet had proposed was exactly what was currently written in the proposal.  Previously the standard SABS O228 was referred to. In the meantime that had changed to SABS 10228. The identification and classification of ‘dangerous substances’ and ‘goods’ was currently covered in SABS 10228, but because this might change in the future to another numbering, no specific mention  was made of the actual specific SABS number. 

Ms Lund then stated that the notion of ‘as set by the SABS from time to time’ should be more clearly incorporated into the drafting, as there was general agreement but the formulation had to be made more explicit.

The Chairperson asked the State Law Advisers if ‘ from time to time’ could be used.

The State Law Adviser said that normally ‘from time to time’ was not used, but the wording would be looked at more closely. 

Mr B Mashile (ANC) stated that he did not have a problem with “from time to time’ as long as reference was made to a list that came from the SABS.

Mr Bouwer stated that the issue was definitional and practical. What was being proposed as a qualification was capable of posing a significant risk to health and safety or the environment. SABS 0228 referred to other pieces of legislation, and because of the definition, more than one standard could be applicable. This was important if some substances were conveyed  on rail or road. To some extent it was about legal certainty, and the necessity of ascertaining what was being referred to specifically. In that context there were different terminologies in the safety environment. ‘Hazardous substances’ was used as one expression and ‘dangerous goods’ had been used in this particular Act. The current name of SABS 0228 was being captured from the present version of the Act, so it was easy to link it and see what was being referred to. What was being  proposed now was resulting in a new definition, which had to be applied in respect of the standard.

The Chairperson asked what the standard was and if the RSR would think about it. He agreed that removing the specific reference made the matter less clear. The alternative route was to look at the regulations.

Mr Panzera suggested that if the words underlined meant ‘commodities’, ‘substances’ and ‘goods’ listed in the appropriate standard specification of SABS that related to identification and classification of dangerous substances and goods, then one could infer that they must be capable of posing a significant risk to health. SABS 10228 was based on the United Nations definition of ‘dangerous goods’.

Mr Bouwer asked if Clause 1(b)(iii) could be re-worded to read as follows: ‘dangerous goods means the commodities listed in an appropriate SABS standard, as determined from time to time by notice from the Minister’.  He added that the real problem was trying to ensure certainty,  predictability and notification, and this was what the SABS actually did

The Chairperson asked the Department to consider this. The onus would then be on the Department to revert, and the RSR needed to be alerted about this matter.

Definition of “network” and “train operator”
Transnet then moved on to make submissions on the definition of ‘network’ and ‘train operator’ in Clauses 1(b)(vii) and 1(e) respectively. Mr G B Boshoff, Legal Adviser: Transnet  asserted that Transnet believed that the definition of ‘network’ was too broad in some respects and too narrow in other respects. The definition started by defining certain infrastructural elements, but not all networks had electrical traction elements, hence the definition could present a problem because private sidelines were one overall network in South Africa. The question was whether these railway yards formed part of a single network, or whether they were networks in their own right. He pointed out that sub-clauses ‘a’ to ‘f’ referred to the overall network in South Africa, and sub-clause (b) referred to a separate network.

Mr Panzera suggested that the words ‘where applicable’ could be inserted.

The Chairperson asked if the impression of a huge overarching network was being proposed.

Mr Panzera said that it was not the intention that it should be one overarching network as it could be under the control of different networks. After sub-clause (e) he suggested that the words ‘and / or’ could be inserted, so that it was clear that not everything possible was being listed, and so that the definition could list part or all of what was included.

The Chairperson believed that an inclusive list was not necessary, ‘and where applicable’ could be inserted.

Definition of “network operator”
Mr Boshoff then dealt with the definition of ‘network operator’ in Clause1(c)(v). He said that
Transnet needed clarity on the definition of ‘network operator as there was a difference in understanding between ‘ultimate accountability’ and ‘ultimate management accountability’. He added further that in regard to “the authorisation and direction of rolling stock on the network’, train control was done by Transnet, so this part of the definition did not reflect what happened in practice. He proposed that  ‘and’ be changed to ‘or’, to reflect that train control was often run by other networks even if in some cases freight rail was run by the South African Rail Commuter Corporation (SARCC) network operator.

The Chairperson noted that to establish clarity in the body of legislation regarding incidents, the operator had to be dealt with.

Mr S Farrow (DA) stated that this matter referred to accountability, which could be handled jointly or severally in an attempt to broaden the approach.

Mr Mashile said that people needed to know with whom they were dealing, as it was difficult to legislate for what was currently happening on the ground.

Mr Enos Ngutshane, Manager: Legal and Compliance, SARCC, referred to the interface agreements and stated that roles and responsibilities were well defined in those agreements,. When it came to repairs and maintenance, Transnet had to take responsibility for trains that were not owned by the SARCC,  .

The Chairperson noted that an attempt was being made  to regulate freighting so as to embrace all and every entity. A definition was sought to ensure that rail regulation had joint responsibility. He asked if there was agreement to add the word ‘or’.

Mr Boshoff said that there were different elements to qualify someone as a network operator. The elements that qualified a network operator should be listed and the word ‘or’ should be added.

Mr Panzera said that he had a slightly different approach, but on the same theme. There were effectively three different aspects to the work of a network operator. The first was track work; the second was ensuring rolling stock fell within the standards, and the third was the authorisation of safe movement of rolling stock.

The Chairperson emphasised that construction, maintenance and integrity were the  responsibility of the network operator. He proposed that ‘Ultimate management accountability’ be dealt with.

Ms Lund asked if the ‘ultimate’ could be removed, as it was defined in the contractual relationship between parties.

Mr Panzera noted that, from the point of view of the Regulator, ‘ultimate responsibility’ could not be contracted away, as accountability could not be delegated. This was the intention.

Ms Lund asked if it could be managed by referring to ‘the permit holder’.

Mr Boshoff said that the safety permit could not be built into the definition. He added that Transnet would be comfortable, from a legal perspective, if ‘management’ was removed.

There was agreement on this.

Definition of “train operator”
Mr Boshoff stated that Transnet was generally in agreement with the definition of ‘train operator’ in sub-clause(e). However, what was contained in that definition did not always hold true with what happened in practice, for example with regard to hauling rolling stock of another operator. The definition did not account for undertaking of maintenance. 

The Chairperson asked for a proposal in this regard.

Mr Panzera said that  ‘where applicable the maintenance thereof’ could be inserted in the clause.

Mr Boshoff explained that there were three or four different elements that qualifed a person as a train operator, and the word  ‘management’ could be removed from the clause.

There was agreement that this would be possible and desirable.

Clauses 9 and 10:  “safety fee dispensation
Mr Bouwer dealt with amendment to Section 17, as set out in Clause 9 and Section 23, as set out in Clause 10 together. He noted that provision was made only for a processing fee. Three different fee dispensations were being proposed in the amended Section 17. Transnet was not clear on what was meant, because of the implications from the proposals. The  fees for services determined by the Minister could only hold true if the Minister was allowed to determine services.

The Chairperson asked for confirmation that fees were being discussed, and not the functions that the Minister would gazette.

Ms Kethabile Mabe, Legal Advisor, RSR,  stated that the issue was about fees and not services.

Mr Panzera explained that the current regulation limited the regulator in terms of sources of funding, and provision was made for railway services outside the country.  The need to find ways for generating other income was covered by this Clause, to empower the regulator.

Mr Bouwer expressed concern regarding fees in Clause 10. There was a need to know what fees were being referred to. In Clause 10 some fees were determined, so the increases could be effected without checks and balances due to the listing structure in Clause 9.
He said that the wording presented a drafting challenge. In summary, Transnet was concerned about predictability regarding the time at which a fee was determined and how long it would apply. It was impossible to anticipate something that was not known.

Mr Farrow asked if paying the fee over three years was the issue of concern.

Mr Panzera said that the fee was payable in three instalments. as stated, rather than upfront. The application was once every three years.

The Chairperson asked that clause 9 be dealt with first.  

Mr Bouwer stated that because there was no distinction between external operators, it was therefore implied that if advice or training was required from the regulator, this would have to be paid for.

Mr Panzera explained that this was part of the process for issuing a permit.

Mr Panzera stated that the Act talked about a processing fee, and the draft regulations included other elements like inspection and an audit. This was so that at the time of making an application there would be awareness of what had been included in the cost.

The Chairperson said that this obviously depended on very different scales, so the process was more demanding.

Mr Boshoff suggested that the application for the permit should be distinguished from the processing of the permit, as contemplated in Section 23(4) and the later functions of the Regulator in terms of the Act. It did not provide for other audits in investigations.

The Chairperson said that he would favour distinguishing three kinds of fees, all subject to some kind of regulation. There was pressure from the Department to allow for some fees to be regulated and others not.

Ms Mabe said that fees differed annually from entity to entity.  If fees were determined by way of regulation, then it should be included that the Regulator needed the approval of the Minister.

Mr Bouwer added that anything done by the Executive must be published in the Government Gazette.

Ms Mabe noted that placing a Notice in the Government Gazette was easier than working through the Gazette.

The Chairperson proposed that a motivation should be forwarded to the Department for a fee structure, so that in principle Transnet was assured of no abuse one way or another.

Mr Bouwer pointed out that the implications of putting things together should be considered, to avoid confusion. A new fee dispensation was being proposed and companies had to budget in advance. Clarity was needed on the funding model as there were implications arising out of this model. 

The Chairperson stated that there was agreement on three kinds of fees: applications for permits, processing of those applications, and issue-determined interventions. There was a distinction between the routine processing, applications that needed variations and guidance, and other work done.

Ms Mabe explained that changes in the safety management system had to be submitted to the RSR.

The Chairperson confirmed that Clause 10(a)(2)(c) would fall away. 

Mr Panzera explained that there was a legal assumption that everyone who applied for a permit would get a permit. This was not the case. That was the reason for amending Section 23(2)(c), so that there was better understanding that it was an administrative permit.

Mr J W Nell, Compliance Manager: SARCC stated that it was a once-off management fee.

The Chairperson said that sub-clauses (a) and (b) of Clause 10 could be amalgamated.

Ms Mabe said that the application fee was used to start the process. She asked whether the fee would still have to be paid to the RSR even if the permit was not issued.

The Chairperson stated that it needed to be a relatively substantive application fee, as free applications could not be allowed.

Ms Mabe noted that fees were published in the Government Gazette.

The Chairperson affirmed that there was agreement on the three kinds of fees: the application, the process of application and the administrative management of permit fee. He asked why there was a distinction between fees determined by the Minister, and those determined by the RSR.

Mr Boshoff stated that before that question could be answered, it must be ascertained if payment was ‘periodic’ or ‘once-off’.

Ms Lund responded that periodic payment applied to all three kinds of payment fees.

The Chairperson proposed that the word ‘periodic’ be removed and said that it would assist if there was pressure from the Department about balancing the books.

Ms Mabe said that the Minister must determine a fee that the Regulator may charge.

Mr Bouwer questioned the impact on the industry, if fees were determined with the monetary requirements of Regulator in mind. He urged political prudence regarding this matter, as he was not sure if the intention was to cover all expenses related to the permit, or to top-up the requirements of the Regulator.

The Chairperson noted that part of vision for the future of rail was to facilitate the legislation. 

Clause 16
Ms Lund commented on the ‘railway occurrence investigations’ in Clause 16 of the Bill, which was amending Section 38 of the principal Act. She noted that this clause was seeming to introduce an additional investigation to that set out in clauses 9 to 12. It seemed that the investigation would occur at the same time as the investigation to be undertaken by the operator. Transnet submitted that the provision should be removed and that instead a statutory duty on the operator be created to submit an investigation report to the regulator, within a defined period of the outcome of the investigation, as this clause simply seemed to duplicate what was already in Section 38 (1) of the principal Act. There was a further problem that the investigation that was envisaged by the new Section 38(9) could influence the investigation that the operator was conducting under the new Section 38(8). Transnet’s proposal was therefore that these two investigations must be separated out.

The Chairperson agreed that the new sub-sections 38(8) and (9) needed to be harmonised.

Ms Mabe agreed that the new 38(8) should remain, and that the operator should report to regulator on completion of the investigation.

She suggested that the new 38(9) should be changed to read: ‘regulators may require the operator to assess the impact of recommendations made by the operator’s investigation report in order to effect safety improvements’. The RSR would not be issuing directives to conduct investigations in a particular manner, but the recommendations would be commented upon. She agreed that investigations should not proceed concurrently.

Mr Bouwer proposed that all possibilities of influence be removed. He would therefore suggest that the new subsection 38(9) should state that a report must be submitted. If the regulator was dissatisfied with the outcome of an investigation, an independent investigation could be conducted.

The Chairperson confirmed that the proposed new sub-sections 38(9),(10), (11) and (12) for section 38  would be removed from Clause 16, and that instead a new subsection 38(9) would be drafted.

Ms Mabe said that a Commission of Enquiry was to allow the RSR to subpoena witnesses, but now a formal investigation would have a Board of Enquiry.

Ms Lund stated that the notion of a Commission of Enquiry should be removed.

Mr Farrow asked about the rationale for the Board being substituted with a reference to the Regulator, and asked further how it would affect their accountability.

Ms Mabe said that to place responsibility on the Regulator made more sense than attempting to place responsibility on the Board.

South African Rail Commuter Corporation (SARCC) Submission
Mr Ngushane stated that a number of SARCC concerns had been covered by the presentation by Transnet.

However he raised two issues that needed attention. The first issue was the definition of a “station” as contained in Clause 1 of the Bill. The SARCC’s understanding of station was that it should include the approach to the terminal, the concourse, bridges, the ticket office and the commercial sector on the station, until the platform. However, the definition as presented in the Bill included what was viewed as an inter-modal system, and that would include commercial and retail premises outside the system. The SARCC viewed the commercial and retail premises as the responsibility of the municipality and local authorities. Therefore crowd control and management was not the responsibility of the SARCC.

Discussion
Mr Nell proposed new wording for Section 1(d) that would refer back to the original wording in the old Act. This would be:  ‘a station means a railway station or a railway terminal….. which may include facilities for modal transfer or commercial activities referred to as non-railway operations’. 

Mr Panzera said that ‘may’ was fine, but certain facilities should not be excluded, and the Committee had to decide on whether what had been deleted regarding ‘security’ and ‘crowd management’ was too limiting or added any value.

The Chairperson asked if responsibility was being allocated in terms of the definition and if the RSR was trying to prescribe what would fall under the potential purview of the railway regulator. He added that the RSR had to review this matter.

Mr Nell emphasised that the SARCC was proposing a different definition because different management systems were at issue.

Mr Panzera stated that the House and the Committee were very sensitive to safety and security matters.

Mr Mashile asked what the rationale was for the inclusion of ‘crowd management’.

The Chairperson responded that it affected the railway station, but was not what defined a ‘station’. There was an interface between ‘crowds’ and ‘boarding’ as safety issues.

Mr Mashile asked where ‘crowd control’ was being accommodated, especially after the deletion.

Mr Panzera answered that the regulations for safety management made provision for reporting of occurrences, so the amendment had been split into matters relating to the running of the train, and security reportable issues. One of issues in crowd control was now divided into different sub-sections, addressed as operational issues. In the current standard ‘personal security issues’ had been recovered and was so defined.

Mr Ngushane then dealt with Clause 9. He said that there seemed to be general agreement now on the changes to  Section 17 of the Act. However, there still remained an issue around the new sub-section 17 (1)(c), which dealt with the Safety Regulator requesting donations for developing standards. The SARCC proposed  that this should be amended to provide for approval of the Board instead of approval of the Minister’.
 
Ms Mabe agreed with the amendment. However, she suggested that the words ‘approval of the Board, after consultation with the Minister’ should be used.

The Chairperson stated that the Department and the State Law Advisors would prepare a new draft and number it, and that this would be the basis for further discussions and finalisation of the Bill.

The meeting was adjourned.