Legal Succession to the South African Transport Services Amendment Bill [B43-2008]: adoption and National Railway Safety Regulator Amendment Bill [B32-2008]: adoption

Meeting report

National Railway Safety Regulator Amendment Bill (the Bill)
The Chairperson thanked the legal drafters for producing a new draft of the Bill so speedily. The drafters then took the Committee through the Bill as follows:

Clause 1
Adv Adam Masombuka, Acting Chief Director: Legislation, Transport Policy and Economic Regulation, Department of Transport said that the Department of Transport (DoT) team had agreed on the suggestions regarding the definition of dangerous goods.  This had now been changed, as reflected in the draft. 

In relation to the definition of “integrity”, Mr Gert Boshoff, Senior Legal Advisor, Transnet,  said that this should be read with the words “network and rolling stock” instead of “system”.

The Chairperson said that the term “integrity of the system” would make more sense.

Mr Mervin Panzera, Safety Advisor, Railway Safety Regulator (RSR), said that rolling stock was a system which was composed of various elements such as wagons.  It was a holistic system that would be integrated into a network.

Mr Boshoff said that the definition should clarify this.

The Chairperson agreed.  On page 3 line 15 of the Bill,  he agreed with the insertion of the words “and signalling” after the word “control”.  The insertion of the words “where applicable” after the word “systems” was also correct.  In line 23 the word “cargo” would be deleted.  There were different types of depot than just cargo depots.  The word “and” was omitted in the same line.  The word “or” was deleted from line 24.

Adv Masombuka said that in line 25 a new subparagraph (g) would be added which would say “any matter that may be prescribed”.

Mr S Farrow (DA) felt that the word “other” should be retained in this line.  The Committee agreed to keep it in.

The Chairperson said that the definition of “network operator”, which started in line 28, was replaced by a new definition. Another changed definition was that of “station”, which started in line 37.  The revised definition of “train operator”, which started in line 46, had also been accepted.

Clause 5
The Chairperson noted that on page 4 line 48, subparagraph (c), setting out a new paragraph (n) of Clause 5 had been reworded.

Mr Panzera said that the previous setting out of this subparagraph was incorrect. He thought it was a good idea to add the function of the regulator.

The Chairperson said that the wording was new but was not an issue.  The Minister was happy with the changes.

Clause 9
The Chairperson said that on page 5 at line 32 the phrase “in consultation with the Minister of Finance” was added after “Minister”.  In line 35 the phrase “the Board, after consultation with” would be added after “of”.  A new clause would be added to amend Section 16 of the National Railway Safety Regulator Act (the principal Act).  There were various permits so it was correct to add the word “applicable”.

Clause 10
The Chairperson said that the new subsection (2)(a) on page 5, at line 41 made it clear that the reference was not to an annual fee but an annual consideration of the fee.

Ms Hela Sangomi, Senior State Law Advisor, DoT, said that in subsection (2)(b) the word “fee” should be added before “contemplated”.

Ms Sue Lund, General Manager: Policy and Research, Transnet, was satisfied with this.  She pointed out that the wording of (b) should be changed to read “differ between operators”.

The Chairperson said that all were comfortable with that change.

Mr Panzera said that there was an incorrect reference to Act 16 of 2008.  This should read “Act 16 of 2002”.

The Chairperson said that the emphasis of the National Railway Safety Regulator Bill was on shifting responsibility to the regulator.

Ms Lund said that the previous Minister had determined these matters and published them for comment.  This was a major concern.  There should be engagement prior to regulations being finalised.  There would be an impact on the industry.

The Chairperson said that what the Minister said stemmed from advice from the regulator.  The question was how to ensure that there was space for comment.  Publicising the regulations provided that space.

Ms Kethabile Mabe, General Manager: Legal Services, Railway Safety Regulator, said that the legislation would now make provision for different permits.  She foresaw a process where the Regulator would determine the type of information that was needed.  This would make the process tedious and a gap might result.  She therefore proposed that the measures should be contained in regulations.

The Chairperson said that what she called “tedious:” was what government called “democracy”.  He asked how often the regulations would change.  There would be a problem if this happened too often.  The system should be predictable and key stakeholders should be engaged.  There were deep concerns over similar matters pertaining to road traffic.  He was inclined to let the control revert to the Minister rather than the regulator.

Mr Panzera said that the RSR had developed a set of standards.  Section 29 of the principal Act outlined the process to develop standards.  Standards were amended as the safety process evolved.  The legislation should perhaps say that the regulations must develop standards.  The opportunity for comment was an established procedure.  The regulations served to amplify standards.

Mr O Mogale (ANC) said that all were agreed that reports should go to the DoT.  The Minister could be approached if necessary.  Regulations could influence changes to safety management systems.  These should happen on both sides with mutual influence. 

The Chairperson said that he favoured maintaining the status quo.

Mr Farrow said that he understood the reasoning.  It was technical by nature.  There were time and cost implications.  He suggested a similar arrangement to the system that applied regarding municipal rates.  New tariffs were published and the public was given thirty days to object.  If that was followed here, then new regulations would be published for comment, and operators would be given time to respond.  This was a democratic option but the process would move quicker.

Mr Boshoff said that the current regulations incorporated standards.  Any reasonable change to the standards would supersede the applicable regulation.  Standards were published by the South African Bureau for Standards (SABS) and were incorporated into the regulations.  If there was any conflict between regulations and standards, then the standard would prevail.  He suggested that the current situation remain in force whereby the Minister would issue regulations.  The RSR could influence the SABS.

The Chairperson said that regulations must correspond with standards.  The SABS would not be able to address all areas.

Mr Boshoff said that that the standards were specifically for safety management systems.

The Chairperson said that they should go back.  The Minister should issue the regulations on the advice of the RSR.  The cost was not too high.  He asked if it would be acceptable if the Minister was required to publish regulations in the Government Gazette.

Mr L Mashile (ANC) said that the Minister could do well if a period for comment was provided.  Standards could not be nullified.

The Chairperson said that it would not be an insuperable problem if the regulatory responsibility lay with the Minister, and changes were published in the Gazette.  He asked if the RSR had a bad experience of government.

Mr Panzera said that they had learnt from experience.  The current standards needed to be updated.  There was a conflict of priorities between the Act, the Regulations and the standards.  They wished to find a mechanism to settle the conflict.  The public should have the chance to be involved and to make comments.  Neither government nor the Regulator should work in secret.  If there was a misalignment, it had to be determined where the priority lay, and try to correct it.

Mr Farrow said that the situation should be left as currently prescribed in the Act.  He noted that Transnet was not happy, and there needed to be a window for objections.

The Chairperson said that it would be incorrect for the Regulator to actually make the regulations.  The Regulator should have some determination over the content.  He asked if content should be seen as a categorisation or a setting out of specifics.  The Regulator could determine the form of the content and the sorts of matters that should fall under safety management systems or specifics.

Mr Panzera said that the important points were around elements of safety management systems.  There were similar international ISO systems which included policies, legal requirements and labour issues.

The Chairperson concluded that this should then be included as a sub-chapter.  That could not be controlled by the Minister.  He asked if Transnet was unhappy with that suggestion.

Mr Boshoff said they were not.  The regulations were about safety management systems.  The railway operator should maintain a safety management system in compliance with the regulations.  There was currently adequate scope for this.

The Chairperson asked if this meant that Transnet did not see the need for a new clause.

Mr Boshoff confirmed that this was so. If the power was to be taken away from the Minister, he asked if the regulations would then fall away or if they would remain in place until they were revoked by the Minister.

Mr Farrow said that they were more related to safety management systems than other standards.

Mr Mashile said that the regulator should have a say over the form and content of safety management systems.  That form and content might need to be upgraded from time to time.  If the form and content were determined by regulations then this would lead to an amendment to the standards.  It was a question of how improvements would be achieved.  He did not see any real clash.

Mr Boshoff referred to Section 28 of the principal Act.  It only referred to the power of the Minister to make regulations regarding safety management reports.  The Minister must make regulations on the form and content of safety management systems, and had done so in 2004.  The issue was addressed in Sections 28 (a),(b) and (c).  The Minister had said that another body with technical knowledge, such as the SABS, should set the standards.  When standards were in place they would supercede any regulation in respect of safety management systems, which had to comply with the standards.  There was no need to amend the Act.

The Chairperson said that if the regulator had the power to determine standards then the regulations would still be in place.  The regulator could determine the content, and standards could overrule the regulations.  He did not want to see the Minister having tyrannical powers.  The Bill was not serving the purpose in this aspect.  It was an administrative issue.

Mr Panzera provided an illustration.  Certain categories of reports were specified in the regulations.  If a need was found to change the categories then there would be a difference to the regulations.  Regulations would be devalued if the standards were amended.

The Chairperson said that the reading of the Act lay largely in interpreting the regulations.  If the regulations needed to be changed then the Minister must do so.  The standards should prevail.  The regulations should make specific reference to specific documents.

Mr John Motsatsing, Acting Chief Director: Road Transport Regulation, Transport Regulation and Accident and Incident Investigation, DoT, said that compliance to standards was voluntary.  When the standards were included in regulations they became the law of the land.  Regulations could not be modified.

The Chairperson said that in this case the regulations could legally be modified by updated standards.

Ms Mabe said this was true.  The role of the RSR in this regard was set out in Section 29 of the principal Act.

The Chairman felt that the discussion was going in circles.

Mr Mashile said that the Minister was not the technical authority.  There was a flaw in that proviso.

Mr Panzera said that the standards were included in a document called the SANS 3001.

Mr Boshoff said that an amendment to Section 28 of the principal Act would affect Section 29.  These were very legalistic points.  Transnet preferred the wording of the principal Act.  Stakeholders could influence standards.

The Chairperson was sympathetic to that argument.  He was unsympathetic to the broader interpretation.  Standards were specific to SANS3001.

Mr Farrow said that the amendment was effectively a heading change of the regulations for safety management systems and reports.  The Bill proposed a removal of the old Section 28 and the argument would then be null and void.

The Chairperson said that he thought the Committee  should stick to the new proposals. The process of developing standards was a consultative one, and standards were a complicated issue.  He appreciated that Transnet was unhappy, but he appreciated that the Members of the Committee were happy.  It was an important exercise.

Clause 16
The Chairperson said that Clause 16 of the Bill had been rejected by the Committee. A new clause 16 had now been put forward to amend Section 38 of the Act.

Ms Lund asked what the prescribed form was in the proposed Section 38(6).  She felt that the rules of the Magistrate’s Court should be applied.

Ms Sangoni said the DoT had no objection to this.

New Clause amending Section 44
The Chairperson was happy with the amendment to Section 44(2)  of the Act. 

New Clause: Addition of clause 45A
The Chairperson noted that a further amendment by way of a new Section 45A would make provision for penalties.

Ms Lund said that standards should apply in a transparent manner.

Mr Panzera said that it was not just the SABS that was involved.  There were three groups of standards addressed in Section 29.  One was parallel to the SABS standards, the second was developed by industry and was transparent, and the third referred to local operators.

The Chairperson said that it would be difficult to formally consider the Bill without a clean continuous text.  He asked the State Law Advisers if this could be done.

Adv Masombuka said that they could do this.

After the lunch break, the Committee was presented with revised amendments. A quorum was achieved by requesting the attendance of another Member of Parliament.

Adv Masombuka said that if the Bill now included provision for the Magistrate’s Court process for summonsing witnesses for investigations, this would lead to a clumsy process involving sheriffs and payments. The matter should rather be addressed in regulations.  The State Law Advisers would need to devise a process.

The Chairperson said that Transnet indicated no objection to this. 

He then led the Committee through the formal consideration. 

The Motion of Desirability was read out and accepted.

The Bill was formally adopted.

Legal Succession to the South African Transport Services Amendment Bill (the SATS Bill)

The Chairperson said that the Committee had almost reached finality on the Legal Succession to the South African Transport Services Amendment Bill (SATS Bill)

Mr Kuben Pillay, Deputy Director-General: Public Transport, DoT, said that there was a proposal to amend Section 10 of Act 9 of 1989, the Legal Succession to the South-African Transport Services Act (the principal Act). There was a view from Transnet that a wording change was needed to the SATS Bill.  Something should be set in terms of pensions.  He noted that there was some confusion as some of the Members and guests had copies of the proposed amendments dated 24 June 2008 and others of the proposed amendments dated 6 August 2008, and he noted that it was the latter document that he was speaking to. The DoT supported the option of their former employees remaining with the Transmed medical aid scheme.

The Chairperson said that this was the main outstanding issue.  He asked what the solution was.

Ms Lund said she was happy with the wording of the draft amendment.  Transnet was happy that the name of the medical aid scheme staying as Transmed.  However, Transnet had proposed an additional amendment.  While it was accepted that former Transnet members would be allowed to remain as members of Transmed, the provision was now also made that for as long as former Transnet members still comprised more than 50% of the Transmed medical scheme, no new members would be allowed to participate in the scheme.  This would protect the interests of the current members and would be part of the transition from a closed to an open fund.  There was a possible risk to their interests.  Once the Transnet members were no longer in the majority then this need would fall away.

Mr Pillay said that the DoT had no objection to this request.  It made sense for the employees to remain in the fund.  Subsections (10), (11) and (12) of Clause 10 would then fall away.

The Chairperson asked for copies of the principal Act.

Mr Mashile asked which companies Transmed wished to exclude.  He asked if employees of the South African Rail Commuter Corporation (SARCC) would be excluded.  He needed to be persuaded to agree to this form of discrimination.

Ms Lund said that this amendment was to ensure that members moving from Transnet’s employ to that of the SARCC would retain their rights in the Transmed scheme if they so chose.  The second part of the amendment concerned Transmed becoming an open fund.  Any employer could then approach the fund for membership.  They wanted to retain some right to comment on the issue.  As the fund manager, Transnet had to be careful of who they allowed to join the fund, as this would change the risk profile.

Mr Pillay said that with regard to the alignment of the definition, the State Law Advisers proposed that Section 23 be amended to contain a cross reference.

Mr Gideon Hoon, Principal State Law Adviser, Office of the Chief State Law Adviser, said that this proposal would amend the National Land Transport Act (NLTA) when it came into force.

The Chairperson asked if there was general agreement on the proposed change to this legislation.

Mr Lucky Montana, Chief Executive Officer, S A Rail Commuter Corporation, said that he needed to look at the definition of the authorities.

The Chairperson asked what the amendments were trying to do.  They were not empowering transport authorities to request rail commuter services.  Inter-modal communication channels could and must be established.  Transport requirements had to be harmonised with integrated transport plans.  The SARCC had a national competency, and must interface with local authorities.  He thought that one option might be to drop the reference to local government in this clause.

Mr Pillay said that the definition of a transport authority was problematic.  Local governments were regarded as transport authorities.

The Chairperson asked if Mr Pillay was saying that there was some question over the definition of a transport authority. He asked that whether, if a local authority was to request a rail commuter service, would SARCC then be obliged to provide this service.

Mr Pillay said that there were constraints on the rail system.

The Chairperson suggested that the authority to request services should be vested in the DoT.  The reference to local government and transport authorities could then be deleted.

Mr Hoon said that Clause 23(1)(a) referred to Metrorail and Clause 23(1)(b) to Shosholoza Meyl.

Mr Montana said that both Shosholoza Meyl and AutoPax offered provincial and inter-provincial services.  It was the SARCC’s intent to turn these services around.  There were restrictions on long haul services.  The words “long distance” should be taken out of the Clause. There was some fear that leaving it in might produce inefficiency.

The Chairperson said that it was important to retain the long-haul concept.  There was no problem with buses.  The SARCC must be clear.  Municipal shuttle services fell within the framework of the NLTA.  There was no problem in principle.

Mr Farrow said that services could be provided between different municipalities.

Mr Mashile said that AutoPax must be empowered.  Some municipalities had no facilities.  He asked if there should also be an amendment to the provisions regarding consultations around bus services.  These would be needed if AutoPax was to run services where there were no municipal services.

The Chairperson referred to the objectives and powers definition.  There was a reference to the National Land Transport Act (NLTA) or its successor.  Consultations with the Minister would be correct as this was a public utility.

Mr Pillay said that there was a question of the transfer of assets to Shosholoza Meyl and AutoPax.  The date included in Section 25(a) was 31 March 2009.  The phrase in subsection (2) should be changed from “on the date” to “by the date”.  Subsection (3) referred to the subdivision of property.  This date might not be met and so a stop-gap was being provided.

Mr Montana said that there were a lot of problems with the subdivision.  Freight hubs would be created.  There was a new proposal in subsection (a).

Ms Lund said that a new proposal was being tabled and that she would have to discuss it with her principal.  There was a need for a negotiated agreement on the transfer of property.  They could not proceed with the subdivision of property if there was disagreement.

The Chairperson said that the amendment was not adding anything.

Mr Mashile asked what the danger was with consultation.

Mr Pillay said that the last change was consequential.  He read the full amendment to Section 10(2)(2).

Mr Mashile said that Transmed would have a board of trustees.  He asked if Transnet had people deployed on this board.  If they were there, then they would surely be there to guard the interests of their members.  If this was so, he asked why the Bill should be changed.

Mr Mogale asked if the correct word should be ‘employer’ or ‘employee’.  The Committee was told that a fund could accept both employees and employers.

Mr Farrow presumed that the SARCC would have its own medical aid fund.  He asked if Transmed was available across the board.  He asked if this fund would be an option for new employees.

Ms Lund said that no employee would be obliged to be a member of Transmed.

The Chairperson said that the fund must make sure that people did not lose their benefits.

Ms Lund said that the benefits would be included in terms of the conditions of employment.  The transfer of employees would take place in accordance with Section 197 of the Labour Act.  They would retain their rights, including the choice of medical aid funds.

The Chairperson said that they should deal with Transmed as an entity.  The medical aid arrangements were part of the succession plans.

Ms Lund said that only employees of Transnet could join the fund.

Mr Montana said that Metrorail was a member of the Transmed fund.  They had voted to remain there after their separation from Transnet.  He asked if there had been any approach to change the medical fund rules.  This had happened with the pension funds.  The same objections had been raised.  The regulations fell outside the Bill.  There had been protection for 18 months.  The union had begun with an advisory campaign.  The rules of the fund were not in the Bill.

Ms Lund said that the first part of the amendment was to create Transmed as an open fund.  She had heard no objection to this.  To create certainty the Act had to be amended to create space for this to happen.

The Chairperson had no problem with this issue.  The second aspect could be achieved by a rule change.  This could be done, but there would be more certainty if it was included in the legislation.

Ms Lund said she would leave the Committee to make a decision on this.

Mr Mashile said that if the company was to deploy trustees then they would look after the interests of the members.  There was no need to include a provision to this effect in the Bill.

Mr Farrow said that an application for membership would be determined by the employee’s contract.  He asked if the SARCC had its own fund.  Some provision had to be made for another fund.  One could not join if one was not a member. 

The Chairperson said that an open fund was being created because of the transfer of the company.  He was sympathetic to Transnet’s request but felt that the Committee would be going too far by accepting this amendment.  This should be left to the board of trustees to decide.  If there was any government involvement it should perhaps be left to the Department of Trade and Industry. 

The Members agreed with his comment and agreed that the first part of the amendment would be included.

Mr Pillay said that if the Committee was satisfied then Section 10 of the Act would be amended as discussed.  There would be a consequential deletion of subsections (10), (11) and (12).

The Chairperson began with the formal consideration of the Bill, clause by clause. There were no issues raised on page 1 and 2 of the document.

Mr Hoon said that after Clause 12 there would be an amendment to Sections 10 and 15 of the Act.

Mr Lindikaya Zide, Head and Legal Advisor, SARCC, said that there was an issue over the name.

The Chairperson said that there had been discussion that morning before the meeting over the issue.  The Committee had no problem with the name.  Commuter services were the core function.  He asked the classic question of “What’s in a name?”.  However, there was some confusion and a clean text was needed.

A clean text was provided after the lunch break.

The Chairperson noted that the amendment to Section 25A(3)(a) should include the words “after consultation with the Corporation”.

Mr Hoon noted a change to Clause 3 on line 9.  In Section 25A there was a reference to the power of registration of deeds.  The change to clause 3 was consequential to the Section 25A amendments.

Mr Farrow said that there was a reference to authorities.  They had agreed to remove the reference to local authorities earlier in the meeting.  There was no definition, but there would be no problem with the lack of definition if it was generally understood.

Mr Hoon said the reference was specifically for subdivisions.

The Chairperson said he was happy with that change. 

The Chairperson read out the motion of desirability, which was accepted by Members.

The Chairperson then noted that Members, having gone through the clauses of the Bill, agreed with the Bill, as amended by these discussions, and adopted it.

 Ms Lund said that there had been a discussion when the Bill was introduced on 17 June 2008.  Transnet had been accused of selling stations in an inappropriate manner and they had undertaken to investigate the allegations.  This was not happening.  The station at Port Shepstone was a freight handling facility only, and was not been sold.  The station in Rustenburg was used by AutoPax and was owned by a third party.  Transnet was not acting in bad faith.  The issue had been raised by the DoT and the SARCC.

Mr Pillay said that the transfer of assets would happen prior to finalisation.  The Department would be informed of the possibilities.

Public Hearings on National Road Traffic Amendment Bill
The Chairperson said there had been a misunderstanding on the need for public hearings on the National Road Traffic Amendment Bill.  The DoT was to brief the Committee on progress.  There had been a number of suggestions.  The DoT had thought that there was still a need for public hearings.  However, only two documents had been submitted.  One was from the Chamber of Mines, which was worried that there was insufficient provision for consultations when the Minister was making regulations.  The Chamber had been present on another matter earlier and had made a brief submission.

He said there had been a second submission from an individual.  This was from Mr Bongani Jonas of the City of Cape Town, and was about courses.  He was happy to leave this as a written submission.  Copies would be given to the Department. 

The Committee was scheduled to meet the following Tuesday, and he suggested that at this meeting the Department should provide its comments on the submissions, and that the Committee could then proceed to debate the Bill. The aim was to finalise the legislation as there was a deadline of 15 August.

Mr Mogale asked when the Committee would consider the National Land Transport Bill.

The Chairman said this would happen as soon as possible.  When the National Assembly sat again on 20 August it would consider Constitutional issues, but the Committee would have to have approved the NLTB by 21 August.

The meeting was adjourned.